For decades, New York State law treated manufactured homes differently from a single-family homes. Although many manufactured homes function as permanent dwellings, they were historically classified as personal property and regulated under the Vehicle and Traffic Law. Like automobiles, these homes were titled through the Department of Motor Vehicles (DMV) rather than recorded in county land records. This legal distinction limited how manufactured homes could be financed, transferred, or encumbered, often preventing homeowners from obtaining traditional mortgage financing and creating uncertainty in real estate transactions. That legal framework has now changed. The New York State Legislature enacted Senate Bill S7120, commonly referred to as the New York Land Home Property Act. The Act amended both the Vehicle and Traffic Law and the Real Property Law to create a comprehensive statutory process allowing owners of manufactured homes to convert their homes from personal property to real property. Once converted, a manufactured home may be treated in the same manner as other real estate for purposes of sale, financing, and recording. The Act became law on December 12, 2025, and provides for a delayed effective date, with its provisions becoming operative one year later on December 12, 2026. Purpose and Practical Impact The purpose of the Land Home Property Act is to modernize New York’s approach to manufactured housing and to align the state with jurisdictions that already recognize permanently affixed manufactured homes as real property. Prior to the Act, ownership interests were documented solely through DMV-issued certificates of title, and liens were recorded on those titles rather than in land records. This structure restricted access to conventional mortgage products and often resulted in higher-cost personal property loans. The new law removes those barriers by allowing eligible manufactured homes to become part of the real property itself. Converting a Manufactured Home to Real Property The Real Property Law was amended through the creation of Article 9-E, which governs the actual conversion of a manufactured home to real property. A manufactured home is deemed converted only when specific statutory conditions are met. First, the home must be permanently affixed to the land. This requires anchoring the structure to a permanent foundation and connecting it to necessary utilities, such as water, electricity, and sewer or septic systems, demonstrating that the home is intended to remain in place indefinitely. In addition to permanent affixation, there must be proper alignment between ownership of the home and the land. Either the owner of the manufactured home must also own the underlying real property, or the home must be located on leased land pursuant to a recordable lease. In the case of leased land, the landowner must provide written consent acknowledging the permanent affixation and conversion of the home to real property. Recording and DMV Title Treatment The conversion process also requires the execution and recording of an Affidavit of Affixation in the county land records. This affidavit serves as a formal declaration that the manufactured home is intended to be a permanent improvement to the real property and provides notice to future purchasers, lenders, and title companies. The DMV must then accept the surrender of the manufacturer’s certificate of origin or the certificate of title, or issue a confirmation of conversion when those documents are unavailable, thereby completing the transition from personal property to real property. Under the amended Vehicle and Traffic Law, once a manufactured home is properly converted to real property, the DMV is prohibited from issuing a new certificate of title for that home. The DMV is required to maintain permanent records of Affidavits of Affixation, manufacturers’ certificates of origin, and certificates of title, all of which must be accessible electronically to the public. The statute also establishes formal procedures for surrendering a manufacturer’s certificate of origin or an existing certificate of title, as well as a mechanism for confirming conversion when original documents are lost or unavailable. Importantly, any security interest noted on a certificate of title continues to maintain its priority until it is properly released, even after the home is converted to real property. Key Takeaways The enactment of the New York Land Home Property Act represents a significant shift in how manufactured homes are treated under state law. By establishing a clear and uniform path to real property status, it expands access to traditional mortgage financing, simplifies real estate transactions, and provides greater long-term security for manufactured homeowners. For attorneys, lenders, title professionals, and homeowners alike, understanding this new statutory framework is essential when dealing with manufactured housing in New York going forward. If you have questions about this article or any Real Estate & Finance law issue, please contact Kyle C. Pittman at (585) 258-2829 or kpittman@underbergkessler.com .

Underberg & Kessler LLP, a full-service law firm based in Rochester with offices in Buffalo, Canandaigua, and Geneseo, proudly marks its 100th anniversary in 2026. For a century, the firm has delivered comprehensive, client-focused legal services to businesses, municipalities, not-for-profit organizations, and individuals throughout Rochester, Western New York, and across New York State. Union Trust Building in Rochester, NY The firm’s origins trace back to 1926, when respected attorneys Joseph Goldstein and Manuel D. Goldman formed a partnership in the Union Trust Building at 19 West Main Street in downtown Rochester. For more than 25 years, Goldstein and Goldman remained a two-attorney practice, with Joe and Manny dedicating long hours to client service and community involvement. Irving L. Kessler In 1952, the firm expanded when Harry D. Goldman, Manny’s brother, joined as a partner, prompting a name change to Goldstein Goldman and Goldman. That same year, Irving L. Kessler, recognized for his leadership in real estate law, joined the firm as an associate. Five years later, Irv became a partner, and the firm was renamed Goldstein, Goldman and Kessler. Alan J. Underberg In 1963, Alan J. Underberg, an accomplished corporate practitioner, joined the partnership, leading to the firm’s next name change: Goldstein, Goldman, Kessler and Underberg. Legacy Tower, Rochester, NY Continued growth throughout the following decade culminated in the firm’s relocation in the early 1970s to the newly opened Chase Lincoln First Tower, where it became the building’s first non-banking tenant. By July 1988, with more than 30 attorneys, the firm adopted the name Underberg & Kessler LLP. The firm remained in the Chase Lincoln First Tower until relocating its headquarters in 2005 to Legacy Tower (formerly Bausch & Lomb Place), where it remains today. Through every phase of growth and change, the firm’s mission has remained constant: to build and sustain trusted, long-standing client relationships. Anna E. Lynch “Today, Underberg & Kessler stands on the shoulders of generations of attorneys who believed in putting clients first,” said former Managing Partner Anna E. Lynch. “Our practice is built on relationships, many spanning multiple generations. We have worked carefully to ensure that the highest standards of legal expertise, work ethic, and client loyalty are reinforced and continue into the future.” Throughout its history, Underberg & Kessler attorneys have advised individuals, families, and many of Rochester’s most well-known institutions, including dozens of not-for-profit organizations, banks, health care providers, municipalities, and private and public companies. The firm’s legacy also includes alumni who served in prominent judicial roles, among them Harry D. Goldman, Presiding Justice of the New York State Supreme Court Appellate Division Fourth Department, Patricia E. Gallaher, who served as a Monroe County Family Court Judge and Acting Justice of the Monroe County Supreme Court, John C. Ninfo, II, a retired Federal Bankruptcy Judge for the Western District of New York, and Richard A. Dollinger, a former judge of the New York Court of Claims and an Acting Justice of the 7th Judicial District Supreme Court in Monroe County. Patrick L. Cusato Reflecting on the milestone, current Managing Partner Patrick L. Cusato stated, “We celebrate 100 years of service with immense pride and gratitude. This anniversary reflects the firm’s enduring commitment to excellence, perseverance, and dedication to our clients. We remain deeply committed to honoring the legacy and culture established by our founders for generations to come.” As Underberg & Kessler enters its second century, the firm remains committed to providing strategic, practical, and results-driven legal services tailored to today’s evolving challenges. The firm continues to advise individuals, businesses, and institutions across a broad range of practice areas, including corporate and business, commercial lending, construction, creditors’ rights, cannabis, environmental, estates and trusts, family, health care, labor and employment, litigation, municipal, real estate and finance, and tax law — with the same focus on integrity, responsiveness, and partnership that has defined its first 100 years.

On December 19, 2025, Governor Kathy Hochul signed the Trapped at Work Act (the “Act”) into law, amending the New York Labor Law to significantly curtail an employer’s ability to require workers to repay money if they leave employment before a specified period of time. The Act took effect immediately and reflects New York’s continued scrutiny of contractual provisions restricting employee mobility. Covered Employers and Workers The Act adopts an expansive definition of both “employer,” which includes any individual or entity, along with subsidiaries, that hires or contracts with a worker to perform services or provides training to workers. Similarly broad, a “worker” is defined to include not only employees, but also independent contractors, interns, externs, volunteers, apprentices, and sole proprietors providing services. The only express exclusion applies to individuals whose sole relationship with the business is as a vendor of goods. What is an “Employment Promissory Note”? The Act targets what it defines as an “employment promissory note.” This term encompasses any agreement or contractual provision requiring a worker to pay money to an employer – or to the employer’s agent or assignee – if the worker separates from employment before a designated period expires. Notably, the definition expressly includes provisions requiring repayment of training costs, whether the training is provided directly by the employer or through a third party. Certain arrangements are excluded from the definition, including: Repayment of funds advanced to a worker, unless those funds were used for employment-related training; Payment for property sold or leased by the employer to the worker; Agreements governing sabbatical leave obligations for educational personnel; and Provisions negotiated as part of a collective bargaining agreement. Prohibition and Enforceability The Act prohibits employers from conditioning employment on the acceptance or execution of an employment promissory note. Such provisions are deemed contrary to public policy, unconscionable, and unenforceable. Importantly, however, the invalidation of a prohibited repayment provision does not affect the enforceability of the remainder of the employment agreement. Enforcement and Penalties The Act does not create a private right of action for workers. Enforcement authority rests with the New York State Department of Labor, which may impose civil penalties ranging from $1,000 to $5,000 per violation. In addition, workers who successfully defend against an employer’s attempt to enforce a prohibited repayment provision may recover reasonable attorneys’ fees. Practical Guidance for Employers Given the Act’s immediate effective date, employers should review offer letters, training agreements, and other employment documents for repayment or reimbursement provisions. Employers currently seeking to enforce such clauses should consult experienced labor and employment counsel to assess the impact of the Act. If you have any questions regarding this article or any Labor or Employment law issue, please contact Ryan T. Biesenbach at (585) 258-2865 or rbiesenbach@underbergkessler.com .

We are pleased to announce that Jacob H. Zoghlin has been named to the Rochester Business Journal’s 2025  Power List for Environmental Leaders. This recognition honors people who have made significant contributions to climate advocacy and sustainability efforts in the Rochester region. Jacob serves as Chair of Underberg & Kessler’s Environmental Law  and Municipal Law  practice groups and is a Partner in the firm’s Cannabis Law , Litigation  and Real Estate & Finance  practice groups. He counsels individuals, businesses, citizens’ groups, and municipalities on diverse environmental, land use, zoning, cannabis, energy, and municipal law matters. Jacob is an active member of the New York State Bar Association and Monroe County Bar Association and writes regularly on a variety of legal issues. He is a member of the New York State Bar Association’s Local & State Government Law Section, the Environmental & Energy Law Section, and the Cannabis Law Section. In the NYSBA Cannabis Law Section, Jacob is a member of the Executive Committee and has chaired the Local Government Committee since 2022. He is also a member of the Upstate New York Chapter of NAIOP, the Commercial Real Estate Developers Association. He is a former member of the Board of Directors of Flower City Arts Center and a former Attorney Observer to Board of Directors of the Senior Law Center. Jacob has received the Super Lawyers Rising Star Award every year since 2020 and was recognized by Best Lawyers: Ones to Watch in America  in the 2024 and 2025 editions for his work in Environmental Law and Land Use & Zoning Law. In 2021, Jacob received the Up and Coming Lawyers award in The Daily Record  and Rochester Business Journal’s  Legal Excellence Awards program. Jacob graduated with a B.A. from Haverford College and earned his J.D., cum laude , from American University Washington College of Law.

Q: I work at a practice that employs physicians with Non-Compete Agreements. What is the status of the FTC’s proposed rule on Non-Compete Agreements? A: In January 2023, the Federal Trade Commission (FTC) proposed a rule which would essentially render all non-compete clauses and agreements (NCAs) unenforceable against employees. On April 23, 2024, the FTC voted to approve the rule and published it in the Federal Register on May 7, 2024. The rule will go into effect one-hundred and twenty (120) days after it was published, making the effective date September 4, 2024. The new rule bans all existing and future NCAs on the basis that they reduce competition and limit flexibility and wages for employees. While the new rule has been approved by the FTC it currently faces challenges in the courts. In a case filed in a Federal Court in Texas , Ryan LLC v. Federal Trade Commission , the Court granted a preliminary injunction, which stays the effective date of the rule, but only as it applies to the specific plaintiffs in that case. The Court projects to have a final ruling by August 30, 2024, which could provide greater clarity for whether the rule will face a stay of the effective date nationwide. Q: Are there any exceptions to the rule? A: Yes, there are some limited exceptions to the rule. The most notable exceptions to the rule include: 1) existing  agreements for senior executives, 2) non-competes entered into in connection with the bona fide sale of a business, and 3) non-competes enforced where the cause of action accrued prior to the rule’s effective date. The FTC’s rule also does not apply to non-profit organizations. While the rule may not apply to non-profit health systems, there is no specific exception for health professionals or private health care employers. Q: How will this impact health care providers and their employees in Monroe County? A: With Rochester having a robust health care marketplace, career movement for providers within the area is not uncommon. Before implementation of the rule, employers could choose to include NCAs as terms of employment. Typically, these NCAs provide industry, distance, and time restrictions on the employee, which limit their ability to change jobs. The FTC’s rule aims to eliminate these restrictions. Employers should be aware that if the FTC’s ruling does go into effect, current NCAs do not need to be formally revoked, but they are required to notify employees that existing NCAs are no longer enforceable as of the effective date. Also, employers of health care professionals should update any existing forms or contract templates that include an NCA, as to avoid unintentional non-compliance with the new rule. If the rule stands, it could lead to more competitive salaries and benefit packages for employees. On the other hand, while retention of employees could be more difficult, it may be easier to find replacements for employees that choose to pursue new opportunities. New laws and regulations usually come with unintended consequences and this new rule is worth closely monitoring. Reprinted with permission from the August/Sept 2024 issue of The Bulletin from the Monroe County Medical Society and available as a PDF file here .

Municipalities are often the subject of negligence claims brought by citizens who are injured on public property. While it can be difficult for a municipality to be aware of every potentially dangerous condition within its town or city limits, statutes can be enacted to help limit its liability. These laws typically require that the municipality be given prior written notice of the condition so it cannot be held liable for defective conditions without an opportunity to fix them. As technology has evolved, the way in which citizens commonly report potentially dangerous conditions has also changed. Many current municipal codes which address this issue were written long before any of the technological advancements we have today were even considered. As a result, the statutes/codes should be reviewed and revised to account for new methods of citizen reporting, including any electronic or online systems. Naturally, this has raised the question of what constitutes prior written notice in the context of liability for municipalities. This was the central issue addressed in the December 2024 Court of Appeals decision, Calabrese v. City of Albany , (2024 WL 5126038). The Calabrese  Case In Calabrese , the City of Albany (“City”) had previously enacted a prior written notice statute in 1983, which shielded the City from liability for injuries resulting from “any street ... being defective, out of repair, unsafe, dangerous or obstructed unless, previous to the occurrence resulting in such damages or injury,  written notice of the defective, unsafe, dangerous or obstructed condition of said street ... was actually given to the Commissioner of Public Works [.]” Approximately fifteen years after the statute was enacted, the City abolished the Department of Public Works and enacted an online reporting system called “SeeClickFix” (“SCF”) which served as an online portal where citizens could report potentially defective or unsafe conditions on public property. SCF was set up to route any complaints to the appropriate municipal office. At the time, the City had appointed the Department of General Services (“DGS”) to receive notices previously handled by Public Works. In July 2019, the plaintiff was injured when he lost control of his motorcycle in the general area where the City’s Water Department had repaired a water main break approximately two months before. In the months leading up to the accident, DGS had received a number of complaints about a defect in the road near the accident site; some of which were reported through SCF. The plaintiff sued the City and the City moved for summary judgment. The motion for summary judgment was denied and the defendant was granted leave to appeal. The Court of Appeals affirmed the Appellate Division’s denial of the summary judgment motion. Electronic Notice and Delivery Was Sufficient In its decision, the Court of Appeals held that the electronic notices submitted through SCF satisfied the written notice component of the statute as the online form is functionally equivalent to physical writings and are observable tangible records. Moreover, the Court noted that any ambiguity as to what constitutes a writing under the statute must be strictly construed against the City. These holdings seem logical. First, essentially all electronic writings create a digital footprint and the SCF notifications presumably provided evidence that a written notice was actually submitted. Additionally, ambiguities in language being construed against the drafter tracts with a well-established principle of contract law. The Court also held that the reports were “actually given” to the Commissioner of DGS based on the SCF system’s process for routing and maintaining the submitted reports. Even though the reports were not sent directly to the Commissioner of DGS, it was determined that the reports went to the appropriate agency and were actually given to the person designated by statute. In an attempt to limit its liability, the City implemented a disclaimer in the SCF system which stated that “use of this system…does not constitute a valid notice of claim nor valid prior written notice as established under … state and local law.” The Court, in a footnote, stated that the SCF disclaimer did not provide statutory notice and that it did not operate to undo notice made in compliance with the statute. This is an important point to consider as it gives guidance to municipalities showing that catch-all disclaimers may be disregarded if the statutory notice requirements are satisfied by the electronic reporting system. Municipalities Should Amend Statutes to Account for Any Online Reporting In order to properly protect itself from liability, a municipality should amend any prior written notice statutes to accurately reflect what is to be considered “written notice” and “delivery.” The Court in Calabrese  said as much, “[o]f course, should a municipality prefer a different definition of ‘written notice,’ it may choose to provide one in its prior notice statute.” This language, and decision as a whole, highlights the importance for municipalities to review and analyze their prior notice statutes as they are currently written. These laws should be amended to account for any electronic notice system that has been put in place and to clearly define what is considered “written notice” and “delivery.” The statutes should also be amended to remove any ambiguity that exists therein as the courts have shown that it will be construed against the municipality. The failure to amend and properly define the terms in the statute could result in the municipality being held liable for injuries caused by previously reported defective conditions. Reprinted with permission from The Daily Record and available as a PDF file here .

Recent lawsuits and settlements serve as a powerful reminder that sexual harassment prevention should remain at the top of every employer’s compliance agenda. The risks are no longer limited to overt misconduct as enforcement agencies are scrutinizing workplace culture, reporting systems, and managerial accountability more closely than ever. Below is an overview of some current enforcement trends and cases illustrating where employers are facing the greatest exposure and what HR professionals and business owners should be doing now. Quid Pro Quo Harassment This enforcement action involved a Manhattan restaurant where a manager allegedly conditioned favorable work shifts and job treatment on a female employee’s “cooperation” with sexual advances. ( U.S. Equal Employment Opportunity Commission (EEOC) v. KTG Hospitality, LLC (d/b/a “Wall Street Grill”, NYC )). The employer ultimately settled the case for $45,000 and agreed to policy revisions, staff training, and external HR oversight. Quid pro quo harassment, when job benefits are tied to sexual conduct, is among the clearest forms of unlawful harassment under both federal and New York State law. In New York, an employer is often “strictly liable” for quid pro quo harassment committed by a Supervisor. Employers should ensure that scheduling, promotion, and assignment decisions are based on legitimate business factors. Managers should be trained to be aware that any form of favoritism tied to personal relationships can constitute harassment. Hostile Work Environment A Long Island car dealership (Garden City Jeep Chrysler Dodge, LLC & VIP Auto Group of Long Island, Inc.) was recently sued by the EEOC after multiple female employees claimed that a Manager repeatedly touched them and made explicit comments. The EEOC alleges that Management and Human Resources were aware of the harassment but failed to stop it, which led to the creation of a hostile work environment. When Supervisors know (or reasonably should know) about harassment and fail to act, the employer itself becomes liable. The employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. To reduce exposure to liability, be sure to train all supervisory personnel to report and address harassment immediately. A single ignored complaint can turn into a federal enforcement action or state investigation. Race, Sex, and Disability-Based Harassment A fast-food franchisee (R & G Endeavors, Inc., a Culver's franchisee in Cottage Grove, Minnesota) was accused of workplace misconduct, including race, sex, sexual orientation, and disability discrimination, and harassment of teenage employees and a worker with an intellectual disability. Despite multiple internal complaints, the employer failed to investigate or take appropriate corrective action. The employer ultimately agreed to pay $261,000 to resolve two federal lawsuits. Harassment based on  race, color, religion, sex (including sexual orientation, transgender status, or pregnancy), national origin, older age (beginning at age 40), disability, or genetic information (including family medical history), and other factors, violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and/or the Americans with Disabilities Act of 1990, (ADA). The settlements highlight the serious legal risks associated with ignoring or inadequately addressing workplace harassment, particularly when it affects vulnerable workers such as teens, LGBTQ+ individuals, and people with disabilities. Employers should review all harassment and discrimination policies to ensure reporting systems are accessible, investigations are timely, and Manager training addresses harassment, respectful communication, and appropriate handling of complaints. Culture and Oversight Failures In March 2025, the New York Attorney General reached a $750,000 settlement with Consolidated Edison, Inc. (“Con Ed”) following allegations of a pervasive pattern of workplace discrimination and harassment against women employees and employees of color. The company agreed to sweeping reforms, including independent monitoring, expanded training, and revamped reporting mechanisms. The settlement highlights that large employers are being held accountable for workplace culture — not just individual incidents. Regulators now expect companies to demonstrate proactive oversight and measurable progress. Assess whether your organization’s culture and reporting systems work equally well across all job sites, departments, and levels. Field environments and traditionally male-dominated industries warrant special attention. Longer Filing Deadlines in New York Effective February 15, 2024, New York State allows employees to file workplace discrimination and harassment claims with the Division of Human Rights up to three years after an incident, tripling the previous one-year limit. This three-year limit applies to all claims of unlawful discrimination, including employment, housing, and public accommodations claims. The expanded statute of limitations significantly increases employers’ exposure window. To limit liability, employers should be sure to retain complaint, investigation, and training records for at least three years and review document retention policies to ensure consistency with this longer timeframe. Key Takeaways for Employers Update policies – Ensure they clearly define harassment, include all protected categories, and prohibit retaliation. Train regularly – Provide interactive training for all staff and specialized sessions for Supervisors and document completion. Promote clear reporting – Offer multiple reporting options, including anonymous or third-party channels. Investigate promptly – Use impartial investigators, document findings, and communicate outcomes appropriately. Monitor for patterns – Watch for repeat complaints involving the same individuals or departments. Lead from the top – Leadership commitment and accountability set the tone for compliance. Recent enforcement actions underscore that sexual harassment liability often arises not from a single incident but from inaction. Employers who fail to respond decisively when concerns are raised face significant financial, legal, and reputational consequences. As chair of the Underberg & Kessler’s Labor & Employment practice group and partner in the Litigation and Municipal Law practice groups, Paul F. Keneally represents a wide variety of organizations, businesses, and individuals. He provides advice regarding labor law compliance, wage & hour matters, non-compete/non-solicit agreements, sexual harassment, all categories of discrimination and retaliation, family and medical leave, paid family leave, and more. He can be reached at pkeneally@underbergkessler.com or (585) 258-2882. Reprinted with permission from The Daily Record and available as a PDF file here .

Q: I just finished my residency and received a lucrative employment offer, what are the next steps? A: Congratulations! Unlike other industries, a common practice in the health care industry is to have a written employment agreement. Therefore, the first step in assessing any new employment offer is to carefully review the employment agreement. Although it may be tempting to go about this review on your own, we strongly recommend that you engage an experienced health care attorney to assist with this process. For you (and other physicians just finishing their residency), this may be your first employment agreement and you likely haven’t had much guidance on what should (or shouldn’t) be in the agreement. Given the intelligence and level of education necessary to get to the point of a post-residency employment agreement, it is likely that you will be able to grasp the meaning of the provisions in the agreement and even catch some unfavorable terms. It is less likely, however, that you will be able to identify beneficial terms that are missing from the employment agreement or understand how specific provisions are commonly negotiated. An attorney can help make sure you don’t miss any opportunities. Q: Are there certain provisions that I should focus on when I review my first employment agreement? A: Although it is important to carefully read the entire employment agreement, there are certain provisions that require special attention. Two such provisions are the “term” and “early termination” provisions. The “term” provision should clearly identify the date on which you start your employment and the date on which your employment terminates. It should also clarify whether the agreement simply expires at the end of the initial term or whether it automatically renews for additional terms. The “early termination” provision is equally as important. This provision may contain “for cause” or “no cause” language (or both). “For cause” termination will be found in any well-written employment agreement and allows a party to terminate the employment agreement if the other party materially breaches its terms. A “no cause” termination provision allows a party to terminate the agreement at any time (and for any reason) by providing notice to the other party. The following example illustrates the importance of the term and early termination provisions in an employment contract. We recently advised a client who accepted an employment offer only to receive a more attractive offer shortly after she signed the first offer. The employment contract for the first offer was a well-written agreement which was negotiated by both parties and had clear term and no-cause early termination provisions. Based on the clear and unambiguous contract terms, our client was able to provide a notice of termination to the first employer, which took effect prior to the commencement of the term of the contract. Because the termination occurred prior to the start date, our client was free to accept the second job. The early termination provision, however, is not always favorable to the physician. When a physician insists on having an early termination provision, we often see the employer insist that the provision be mutual. In other words, when you want the right to be able to terminate the agreement upon notice to your employer, your employer will typically insist that it has the right to terminate you upon the same notice. The result is reduced job security despite having a written employment agreement. Another legal issue we have recently seen surface because of an early termination provision is patient abandonment. Patient abandonment is a type of medical negligence that occurs when a physician improperly terminates the doctor/patient relationship, which results in harm to the patient. This issue is more of a concern in rural health care systems than in larger health care systems since there are less colleagues available to cover patients when a physician terminates his or her employment. That said, this doesn’t preclude you from including a termination provision in your employment agreement, but a longer notice period (e.g., 180 days instead of 30 days) may be more appropriate. In addition to the term and early termination provisions, it is important to ensure that all the details you have discussed with your prospective employer have made their way into your employment agreement. Some key provisions to look for include: job expectations (e.g., necessary credentials and licenses, scheduling, team meetings, on-call coverage, etc.); compensation (e.g., base salary, pay frequency, bonus structure); benefits [1] ; malpractice insurance coverage (be sure to understand whether the employer offers tail coverage which provides coverage after the policy expires or is cancelled); office location and equipment; and number of support staff. Though this list is not intended to be exhaustive, it will provide you with a good start on items to look for in your first employment agreement. Q: I noticed that my employment contract has a “non-compete provision” – is this common and does it prevent me from taking a new job after my contract is up? A: Non-compete provisions are standard in physician employment agreements. A non-compete provision is a clause in the agreement the prevents an employee from working for a competitor after the termination of the employment agreement. At first blush, most physicians (and non-physicians alike) disfavor non-compete provisions. In fact, we have even seen physicians walk away from employment opportunities because the employer refused to remove the non-compete provision from the employment agreement. What many people don’t understand about non-compete provisions, however, is that they must be reasonable in order to be enforceable. For example, a provision that prohibits you from practicing any type of medicine whatsoever following the termination of your employment will likely be unenforceable. A non-compete provision must be tailored to protect the employer’s interest and cannot be unduly burdensome on you. It must also be reasonable in terms of both its time period and geographic scope. While it is unlikely that your employer will agree to completely remove the non-compete provision from the employment agreement, you may be able to negotiate a narrower scope. This may include limiting the geographic area, shortening the time frame, or even limiting the scope of the provision to cover only specific specialties or specific health care systems. This is yet another reason to enlist an experienced health care attorney to help you. Reprinted with permission from the May/June 2023 issue of The Bulletin from the Monroe County Medical Society and available as a PDF file here . [1] Note that, since benefits often change and are generally the same for all similarly situated employees, these may or may not be included in the employment agreement. If they are not included, you should be sure to ask for and review any documentation that describes your benefits.

In Part 3 of our SEQRA Step-By-Step series, we explained how to complete the Environmental Assessment Form (EAF), an essential tool for evaluating potential environmental impacts. In this installment, we move to the next major phases of the SEQRA process: coordinated review and determining significance. These steps determine how multiple agencies work together and whether an Environmental Impact Statement (EIS) will be required. Coordinated Review Under SEQRA Coordinated review is the mechanism that brings all involved agencies together to conduct a single, unified environmental review. It is required for Type I actions and optional (though often beneficial) for Unlisted actions. Coordinated review helps to: Avoid duplicative or inconsistent environmental analyses; Ensure all environmental impacts are evaluated comprehensively; Identify a single “lead agency” to manage the review process; and Promote collaboration among agencies with approval authority. Establishing the Lead Agency The coordinated review process begins with identifying a lead agency — the entity responsible for administering SEQRA on behalf of all involved agencies. Generally, the lead agency is the entity with the broadest governmental powers over the action or is the most capable of conducting a thorough environmental review. Once agreed upon, the lead agency circulates Part 1 of the EAF, requests input from other involved agencies and oversees all subsequent SEQRA steps. This shared approach ensures environmental impacts are evaluated collectively, not in isolation, helps streamline the decision-making process, and reduces the risk of conflicting determinations. Determining Significance Under SEQRA Determining the significance of an action's environmental impact is a pivotal step in the SEQRA process. This determination dictates whether a detailed environmental review is necessary. An action is deemed to have a significant adverse environmental impact if it is likely to lead to one or more significant adverse effects on the environment. Factors considered include impacts on land, water, air, natural resources, traffic, noise levels, and community character, among others. The lead agency has 20 days from receipt of all information it reasonably needs to issue a determination of significance. Information must include considerations of the whole action, the Environmental Assessment Form (EAF), input by involved agencies, and public input. The lead agency can issue three declarations: Positive Declaration - Issued when the proposed action may result in one or more significant adverse environmental impacts. A positive declaration requires preparation of an Environmental Impact Statement (EIS). Negative Declaration - Issued when the proposed action will not result in any significant adverse environmental impacts. A negative declaration must: Identify the relevant areas of environmental concern; Analyze those concerns; and Explain why the identified environmental concern will not be significant. Conditioned Negative Declaration (CND) - (Available only for Unlisted actions) A CND may be issued if conditions or mitigation measures will reduce all potentially significant impacts to a non-significant level. A CND requires: Completion of a Full EAF; A coordinated review; SEQRA conditions imposed would eliminate or reduce identified potentially significant adverse impacts to a non-significant level; Notice and publication requirements identical to those for Type I actions; and A minimum 30-day public comment period. Key Takeaways Coordinated review and the determination of significance are pivotal points in the SEQRA process. Together, they: Promote efficient, consistent evaluation of environmental impacts; Help agencies collaborate effectively; and Determine whether a full EIS is required. Understanding how these steps work and the obligations of a lead agency can help applicants and municipalities navigate SEQRA more confidently and helps ensure that environmental concerns are properly addressed. If you have questions about SEQRA, need assistance with SEQRA, or are seeking guidance with an Environmental, Land Use & Zoning , or Municipal Law  matter, please contact Jacob H. Zoghlin  at 585-258-2834 or jzoghlin@underbergkessler.com  or Mindy L. Zoghlin  at 585-258-2871 or mzoghlin@underbergkessler.com .

When we first wrote about this topic in August 2025 , the IRS had not yet issued formal guidance on how the tip and overtime deductions added by Public Law 119-21, 139 Stat. 72 (July 4, 2025), commonly known as the One, Big, Beautiful Bill Act (OBBBA) would be implemented. On November 21, 2025, the Treasury and IRS issued Notice 2025‑69 , which provides clarification on how to determine the amount of the deduction if a worker did not receive a separate accounting from their employer for cash tips or qualified overtime. Background Among other provisions, the OBBBA provides federal income-tax deductions for a portion of eligible workers’ tips and overtime earnings. The new law applies to taxable years beginning after December 31, 2024, and will remain in effect at least through the 2028 tax year. It remains important to note that these are deductions, not total eliminations of tax. Employers must continue withholding federal Social Security and Medicare (FICA), and any applicable state or local taxes from all tips and overtime wages. No Tax on Some Tips Under the OBBBA, eligible tipped workers may deduct up to $25,000 in “qualified tips” from their income subject to federal income tax. The deduction phases out for taxpayers with modified adjusted gross income (MAGI) above $150,000 (single filers) or $300,000 (joint filers). Qualified tips include voluntary cash or charged gratuities, including credit/debit-card tips and tip-pool distributions, as long as the tip was given voluntarily by the payor, not mandated by the retailer as a service charge. The deduction applies for employees receiving a W-2, independent contractors receiving 1099-NEC/1099-K, and taxpayers reporting tips on Form 4137. No Tax on Some Overtime The OBBBA also creates a deduction for “qualified overtime compensation” beginning in 2025. For nonexempt employees subject to overtime under the Fair Labor Standards Act (FLSA), only the overtime premium, i.e., the portion of “time-and-a-half” pay beyond the regular hourly rate qualifies. For 2025 and subsequent years through at least 2028, eligible individuals may deduct up to $12,500 (single filer) or $25,000 (joint filer) of qualifying overtime pay per year. The same phase-out thresholds apply as for the tip deduction: $150,000 for singles, $300,000 for joint filers. What’s New Since Our Original Post While the IRS offered guidance on the deductions in Notice 2025-69, they have not yet updated tax forms (Forms W-2, 1099-NEC and 1099-MISC) to include the occupation of the employee receiving tips, the employee is responsible for determining whether the tips received were in an occupation that customarily and regularly received tips on or before December 31, 2024. The IRS states, “employers may choose to provide information on an employee’s occupation or other relevant information to employees using box 14 of Form W-2, in which case employees may rely on that information.” Under Notice 2025-69, taxpayers may use reasonable estimates or employer payroll/tip records, even in absence of a dedicated box on W-2 or 1099 forms. Also on November 5, 2025, the IRS issued Notice 2025-62 , which offers transition-year penalty relief in certain circumstances to employers, payroll services providers, and third-party settlement organizations for tax year 2025. As noted, to qualify for a tip deduction, the tip must be earned in an occupation that “customarily and regularly” received tips before December 31, 2024. In September 2025, the Internal Revenue Service (IRS) issued a preliminary list of nearly 70 such occupations , including traditional tipped industries like food and beverage service, hospitality, personal services (e.g., salons), recreation/instruction, home services and others. Considerations for New York Employers As mentioned above, the federal OBBBA provides federal income-tax deductions for certain tips and overtime premiums beginning with the 2025 tax year. Although these deductions apply nationwide, New York employers face unique compliance obligations due to the state’s strict wage-and-hour rules and enforcement landscape. New York’s Tip Credit Rules Still Apply  - The federal deduction does not change New York’s strict hospitality wage orders, tip-credit rules, or tip-pool restrictions. Service Charges Are Not “Tips” in New York  - Mandatory charges (banquet fees, automatic gratuities, delivery fees) remain service charges, not tips and cannot be considered “qualified tips” for federal deductions. Overtime Tracking is More Complex in New York  - Different regional minimum wages, industry-specific rules, and “spread-of-hours” requirements mean that employers must carefully track the overtime premium separately. Heightened Enforcement Risk - The NYS Department of Labor are already fielding inquiries from workers about how tips and overtime were and are recorded. What Employers Should Do Now Review payroll and tip-tracking systems. Identify whether your workforce includes employees in occupations that may qualify under the IRS preliminary list. Begin tracking and segregating “qualified tips” separately from service charges, automatic gratuities, or other forms of compensation. Maintain clear documentation of overtime hours and overtime premiums paid to nonexempt employees, to enable employees to take advantage of the overtime deduction. Inform employees about the new deductions — many may be unaware they must separately track tips or overtime premiums to claim the benefit. Monitor for updated IRS regulations or final guidance (expected after the 2025 transition period) that may impose stricter reporting requirements or formal W-2/1099-box changes. Although the OBBBA provides significant federal tax savings for workers, it adds complexity for New York employers — perhaps more than in any other state. New York’s unique wage-and-hour framework, recordkeeping rules, and enforcement environment require employers to take proactive steps now to avoid compliance pitfalls. We will continue to monitor and provide guidance on how the OBBBA will impact employers. If you have any questions about these provisions or any other Labor or Employment law issues, please contact our Labor & Employment team: Paul F. Keneally , 585-258-2882, pkeneally@underbergkessler.com Jennifer A. Shoemaker, 585-258-2825, jshoemaker@underbergkessler.com Ryan T. Biesenbach , 585-258-2865, rbiesenbach@underbergkessler.com

Q. Opioid abuse by patients continues to be a serious concern, which our practice works diligently to address while treating our patients. When covering for a colleague who is on vacation, am I permitted to issue prescriptions for opioids to their patients? A: Yes. An authorized practitioner who is covering for a colleague who is temporarily unavailable can prescribe a controlled substance to their patients if certain criteria are met. In response to the public health crisis related to the misuse, abuse, and risk of addiction to opioid-based painkillers, the Centers for Disease Control and Prevention (CDC) issued opioid-treatment guidelines for health care professionals and patients. Under New York State’s Internet System for Tracking Over-Prescribing Act (I-STOP), prescribers are required to review the state’s Prescription Monitoring Program Registry (PMP Registry) within 24 hours of issuing a prescription for a controlled substance.  In addition, in 2017 the New York State Department of Health mandated accredited continuing medical education (CME) for all prescribers. Under the I-STOP law, the PMP Registry must be checked every time before a Schedule II, III, or IV controlled substance is prescribed. It is crucial for prescribers to complete a physical exam and obtain a thorough history from the patient, order appropriate diagnostic testing to identify the existence and source of pain, implement alternative treatments when indicated, and prescribe only the dosage supported by the provider’s findings. The PMP Registry is accessible 24 hours a day, seven days a week through the New York State Health Commerce System, and prescribers may authorize a designee in the same practice to check the registry on their behalf. Once these requirements are met, Department of Health regulations allow an authorized practitioner to issue a controlled substance prescription as part of continuing therapy during the temporary absence of the initial prescriber if the covering practitioner has either (i) direct access to the patient’s medical record and such record supports continued prescribing, or (ii) direct and adequate consultation with the initial prescriber. However, if the covering provider does not have access to the patient’s medical records, the prescribing activity must be documented and transmitted to the initial prescriber upon their return. (See 10 NYCRR §80.63(3)).   [1] A physician’s failure to follow mandatory guidelines and complete the required CME can lead to disciplinary action by the New York State Office of Professional Medical Conduct. If misconduct by a physician prescribing opioids results in a patient’s death, the New York State Court of Appeals has held that the physician can be held criminally liable. (See People v. Stan XuHui Li, 34 NY3d 357 (2019)). Due to the ongoing risks of opioid abuse, care providers must remain vigilant in adhering to all applicable regulations to protect patients and avoid potential liability.  New York allows a covering practitioner to prescribe controlled substances to another provider’s patients, but only when the proper safeguards are followed and the clinical justification for continued therapy is well documented. Professional and Civil Liability Considerations Beyond criminal exposure, physicians who prescribe opioids without complying with regulatory and clinical standards may also face civil malpractice claims or disciplinary proceedings. Allegations often involve negligence in prescribing - such as failing to adequately assess the patient’s condition, overlooking signs of dependency, or neglecting to review the patient’s prescription history.  When covering for another provider, the risk may increase because the physician has limited familiarity with the patient’s history.  To reduce exposure, covering physicians should carefully document the basis for continuing a controlled substance prescription and the medical necessity supporting that decision. Comprehensive documentation that demonstrates compliance with legal and professional standards is essential in defending against claims of negligent prescribing. Communication and Coordination with the Initial Prescriber Whenever possible, communication between the covering and initial prescriber should occur to ensure continuity of care and compliance with New York regulations.  Even a brief written or electronic exchange confirming the patient’s treatment plan can help avoid duplicative or conflicting prescriptions. Practices should consider written coverage protocols specifying when and how covering physicians may prescribe controlled substances, how records are accessed, and how the prescribing information is relayed to the returning provider. These protocols not only promote safe and consistent care but also serve as important evidence of a practice’s diligence in risk management. Emerging Risk Management Trends Given the heightened scrutiny surrounding opioid prescribing, many health care organizations are implementing multimodal pain management strategies and enhanced monitoring systems to identify high-risk prescriptions.  Covering physicians should be aware of these initiatives, including the use of opioid treatment agreements, follow-up visits, and pharmacist collaboration.  Some malpractice carriers also require written opioid prescribing policies that align with the CDC and state guidelines.  By maintaining consistent standards across the practice, providers can reduce the likelihood of patient harm, regulatory violations, and liability exposure. Reprinted with permission from the November/December 2025 issue of The Bulletin from the Monroe County Medical Society and available as a PDF file here . David H. Fitch is a Partner in Underberg & Kessler LLP’s Health Care, Litigation , and Municipal Law practice groups. He represents health care providers and facilities, municipalities, individuals, and businesses in complex litigation in state and federal courts. David can be reached at dfitch@underbergkessler.com or 585.258.2840. [1]   https://www.nyspsych.org/assets/docs/istop%20faqs

We are pleased to announce that Andrew M. Washburn , partner in the Commercial Lending, Creditors’ Rights , and Real Estate & Finance practice groups, has been selected as a 2025 Rochester Business Journal Forty Under 40 honoree. The Forty Under 40 program recognizes Rochester's leaders who are 39 years of age or younger for their professional accomplishments, community service, and commitment to inspiring change. These individuals are not only achieving success in their careers but giving back in meaningful ways to the Rochester community. Andrew was honored on November 18th at an awards celebration at The Strong National Museum of Play. Andrew specializes in real estate law and commercial lending matters. He advises lending institutions and borrowers on complex commercial and residential transactions and frequently speaks on a range of real estate topics. Prior to joining Underberg & Kessler in 2020, Andrew served as an intern at the Monroe County District Attorney’s Office and was an entertainment lawyer in Manhattan. Andrew is a member of the Monroe County Bar Association (MCBA) and a graduate of the 2024 MCBA Leadership Academy. He serves as President of the Board of Directors of Webster Soccer Association/Lakefront Soccer Club, on the Board of Directors of Bishop Sheen Ecumenical Housing Foundation, and on the Board of Directors and Governance Committee of the Webster Chamber of Commerce. He is also a member of the Women's Council of Realtors Rochester, the New York State Commercial Association of REALTORS®, the ReImagine ROC Housing Golf Tournament Committee, the Greater Rochester Association of REALTORS, and the Mortgage Bankers Association of Greater Rochester. Andrew was recognized in the 2025 and 2026 editions of Best Lawyers: Ones to Watch in America ® for his work in Banking & Finance Law and Real Estate Law in Rochester, NY and he received the 2023 Legal Excellence Award for Up and Coming Lawyers from The Daily Record and Rochester Business Journal . A summa cum laude graduate of Fordham University’s Gabelli School of Business, Andrew earned his J.D. from Fordham University School of Law.