On October 24, 2025, the New York State Department of Environmental Conservation (DEC) was directed by the Albany County Supreme Court in the case Citizen Action of New York et al v. New York State Department of Environmental Conservation  (Index No. 903160-25, NYSCEF Doc. No. 93) to promulgate final regulations implementing the emissions-reduction mandates of the Climate Leadership and Community Protection Act (CLCPA). The court gave DEC until February 6, 2026, to complete that rulemaking. Background of the CLCPA and ECL Article 75 In 2019, the New York State Legislature enacted the CLCPA, which amended the Environmental Conservation Law (ECL) by adding Article 75, which sets out statewide greenhouse-gas (GHG) reduction targets and assigns responsibility to DEC to adopt rules to meet them. Specifically, ECL § 75-0107 establishes the GHG limits: a 40% reduction from 1990 levels by 2030, and an 85% reduction by 2050. In addition, ECL § 75-0109 states that DEC “shall … promulgate rules and regulations to ensure compliance with the statewide emissions reduction limits” by no later than four years after the effective date of Article 75. The statute specifies that the regulations shall “ensure that the aggregate emissions of greenhouse gases from greenhouse gas emission sources will not exceed the statewide greenhouse gas emissions limits” and that they “shall reflect, in substantial part, the findings of the scoping plan” prepared under the CLCPA. Accordingly, the Legislature mandated regulation-making as the mechanism for achieving the targets. DEC’s regulatory initiative is central to turning those statutory mandates into enforceable obligations. The Lawsuit and the Court’s Order A coalition of environmental and community-based organizations, including Citizen Action of New York, Sierra Club, WE ACT for Environmental Justice, and People United for Sustainable Housing Buffalo, filed a petition on March 31, 2025, alleging that DEC had failed to fulfill its mandatory duty under ECL § 75-0109(1) to adopt regulations by January 1, 2024. The petition contended that DEC’s delay deprived the law of its intended effect and sought a court order compelling promulgation of the required regulations. The court found that the statutory language is mandatory: the use of “shall” and the express deadline leave DEC no discretion to indefinitely delay regulation-making. The court granted the petition, concluding that DEC had a clear legal duty and had not discharged it. The remedy: DEC must issue final regulations consistent with Article 75 by February 6, 2026. What the Order Means for DEC’s Rulemaking Path Practically speaking, the court order puts DEC on a firm timeline, requiring the agency to promulgate rules that ensure New York meets the statutory GHG limits that reflect the findings of the CLCPA Scoping Plan. (The Scoping Plan was previously developed to recommend broad strategies for achieving the targets.) What will the regulations look like? Prior to the lawsuit, DEC, in co-operation with the New York State Energy Research and Development Authority (NYSERDA) had begun rulemaking work, including a December 2023 “pre-proposal outline” for a three-part regulatory program comprising: (1) a Mandatory GHG Reporting Rule; (2) a Cap-and-Invest Rule; and (3) an Auction or Allowance Rule. The court order means DEC must now push that work to completion—ensuring the regulations are formally proposed and finalized, following the required public comment and review under the State Administrative Procedure Act. Why This Matters for Land Use, Zoning, and Municipal Law For local governments, developers, land-use attorneys, environmental consultants, and municipal agencies, the decision has important implications. DEC’s upcoming regulations will establish the statewide framework for GHG compliance under the CLCPA, which in turn will interact with municipal planning, zoning decisions, environmental review (under the New York State Environmental Quality Review Act, SEQRA), and land use permitting. Once regulations are finalized: Entities may be required to report GHG emissions or surrender allowances under a cap-and-invest mechanism. This will affect industrial facilities, fuel suppliers, large emitters, and those integrating development or land use decisions tied to emissions. Municipalities may need to consider how their comprehensive plans, zoning codes, and development approvals align with the statewide GHG targets and the new regulatory regime. Environmental review analysts may need to factor in the obligations under the future rulemaking when evaluating whether a project’s GHG emissions are consistent with the statewide reduction targets or applicable regulation. Developers and land-use attorneys should anticipate a regulatory environment where GHG emissions and compliance costs become integral to project feasibility, permitting, and timing. What Lies Ahead DEC must navigate a compressed timeline. Drafting substantial regulations, conducting at least one (often two) public hearing(s) and a minimum 60-day public comment period under the State Administrative Procedure Act, responding to comments, and finalizing the rules all must occur if the February 2026 deadline is to be met. If DEC fails to adhere to the deadline, stakeholders and municipalities will watch for whether the court will grant extensions or whether legislative amendments to ECL Article 75 might intervene. The regulations themselves are likely to cover major sectors: stationary sources such as industrial facilities, electricity generation, transportation fuel suppliers, large-scale land-use implications, and possibly linkages between municipal planning decisions and statewide climate obligations. The three-part approach (reporting rule, cap-and-invest rule, auction/allowance rule) provides a scaffolding for the regulatory regime. In Summary The court’s decision in Citizen Action of New York sets a concrete deadline for DEC to deliver the regulations required by Article 75 of the ECL under the CLCPA. It enforces the statutory mandate that DEC must act by making regulations that “ensure compliance” with New York’s greenhouse-gas limits. The upcoming regulations will become a foundational element of how land-use, zoning, municipal planning, and environmental review operate in the context of New York’s climate-law regime. Parties involved in municipal or land-use matters should begin preparing for the regulatory changes ahead and consider how the final rules may affect project approvals, permitting decisions, reporting obligations, and compliance strategies.   Jacob H. Zoghlin  is a Partner in Underberg & Kessler LLP’s Litigation  department and chairs the firm’s Environmental Law  and Municipal Law  practice groups. He focuses his practice in the areas of environmental law, municipal law, development law, energy law, zoning and land use law, cannabis law, Article 78 proceedings, and related litigation. He can be reached at jzoghlin@underbergkessler.com  or 585-258-2834. Reprinted with permission from The Daily Record and available as a PDF file here .

In acknowledgment of the existing backlog of cases at the agency, effective November 14, 2025, the New York State Division of Human Rights (“DHR”) is implementing significant changes to the way individuals report and file complaints of unlawful discrimination under the New York State Human Rights Law. These changes result from amendments to 9 NYCRR §§ 465.1, 465.2, 465.3, 465.5, and 465.6, and the repeal of § 465.8, which were finalized on September 10, 2025. According to the DHR, these amendments are part of a broader effort to reduce investigation backlogs and streamline case processing. Recent organizational announcements include: An $11 million budget increase in Fiscal Year 2024-2025, enabling a 50% increase in staff. Establishment of a new leadership team and a Training Unit to promote consistent investigative standards statewide. Adoption of new technologies and streamlined business processes for faster, more efficient case management. After 5:00 p.m. on November 14, 2025, complaints must be filed using one of the following two methods: Online: Through the DHR’s new online reporting forms. By Phone: Through the DHR Call Center at 844-NYS-DHR1 (844-697-3471) The DHR will return any submissions received after this deadline that do not comply with the new filing requirements. Until the online forms are available in other languages, individuals who speak languages other than English may continue to use the prior forms. The DHR Call Center can receive reports in any language, ensuring continued accessibility for all New Yorkers. Ryan T. Biesenbach  is an Associate in Underberg & Kessler LLP’s Litigation and Labor & Employment  practice groups. He focuses his practice on civil and commercial litigation and labor & employment law, including the development of employment policies, discrimination and harassment claims, wage and hour issues, employee benefits claims, and compliance with state and federal labor laws. Ryan can be reached at (585) 258-2865 or rbiesenbach@underbergkessler.com .

We are pleased to announce that the Firm has been recognized for professional excellence in multiple practice areas in the 2026 edition of Best Law Firms . The Best Law Firms rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and a review of additional information provided by law firms as part of the formal submission process. To be eligible for a ranking in a particular practice area and metro region, a law firm must have at least one lawyer who is recognized in the current edition of The Best Lawyers in America ®  in that practice area and location.   Underberg & Kessler received the following rankings in the 2026 edition: Regional Tier 1 Buffalo, NY Litigation - Construction Litigation - Insurance Rochester, NY Banking and Finance Law Commercial Finance Law Commercial Transactions / UCC Law Corporate Law Elder Law Health Care Law Litigation - Health Care Medical Malpractice Law - Defendants Municipal Law Real Estate Law   Regional Tier 2 Buffalo, NY Commercial Litigation Legal Malpractice Law - Defendants Real Estate Law Rochester, NY Closely Held Companies and Family Businesses Law Commercial Litigation Corporate Governance Law Labor Law - Management Litigation - Labor and Employment Mergers and Acquisitions Law   Regional Tier 3 Buffalo, NY Litigation - Labor and Employment Medical Malpractice Law - Defendants Rochester, NY Litigation - Municipal

We are proud to announce that Steven R. Gersz  and Paul F. Keneally  were selected as 2025 Attorneys of the Year honorees by the Rochester Business Journal  and The Daily Record . The Attorneys of the Year program pays tribute to lawyers who are working to make the community stronger and to advance the law profession. The honorees were selected based on their dedication to the legal profession, their commitment to their clients and the community, and letters of reference. Steve, a partner in the firm’s Corporate & Business , Health Care , and Tax Law  practice groups, was recognized in the Lifetime Achievement category. The Lifetime Achievement award honors lawyers whose careers have helped shape the legal landscape in the Rochester area and who have shown longstanding commitment to the community. Steve, a former Chair of the Corporate & Business practice group of the firm, has been a dedicated and committed team member at Underberg & Kessler LLP for nearly 40 years. He is highly respected by both peers and clients for his sophisticated understanding of business law and for his leadership and generosity. Steve has extensive experience in the organization and development of business and professional entities, mergers, acquisitions and dispositions, equity and debt financings, and federal and state securities law. He is adept at using his expertise in corporate law and business transactions to find creative solutions in business disputes. Steve serves on the Venture Jobs Foundation Board of Directors, he is a past President and member of the Mental Health Association of Rochester and Monroe County Board of Directors, and a past Chair and member of the Board of Directors of The Jewish Home of Rochester, and a past board member of the Jewish Senior Life Foundation and Temple Beth El. ​ Paul F. Keneally, a partner in the firm’s Labor & Employment , Litigation , and Municipal Law  practice groups, is Chair of Underberg & Kessler’s Labor & Employment practice group. He was recognized in the Leaders in Law category, which honors attorneys and judges who have shown tremendous dedication to the legal profession and a selfless, tireless commitment to the community. Paul’s advocacy is passionate and principled, earning the respect of clients, colleagues, and opposing counsel alike. Paul advises on a wide range of day-to-day labor and employment matters, helps resolve complex commercial, construction, and labor and employment disputes, and defends municipalities and public entities. Paul is active in the community and serves on the Board of Directors of St. John's Foundation and as Counsel to the Board of Directors and Management of The Tennis Club of Rochester. He is a past member of the Board of Directors of Literacy Rochester, Career Services Development, and Young Audiences of Rochester as well as the past Legislative Representative for the Genesee Valley Chapter of the Society of Human Resources Management.

In Part 2 of our SEQRA Step-by-Step series, we discussed the first procedural step once you determine that SEQRA applies —classifying the action. In this installment, we move to the next step: completing the Environmental Assessment Form (EAF). The type of EAF required depends on how the action is classified. Understanding which form to use, and how to complete it, is essential to complying with SEQRA and keeping the review process on track. Type I Actions As discussed in the last post, Type I actions are those more likely to have significant adverse environmental impacts. These projects meet or exceed specific thresholds outlined in SEQRA regulations, such as large-scale developments, major infrastructure projects, substantial changes in land use or zoning affecting 25 or more acres, or adoption of a Comprehensive Plan. Steps for Completing a Full EAF for Type I Actions: Full EAF – Part 1: Complete Part 1 of the Full Environmental Assessment Form, providing detailed information about the project’s location, purpose, and potential environmental impacts. Submission and Coordination: Submit the completed Part 1 to the lead agency. The lead agency will then distribute it to all involved agencies as part of a coordinated review. All “involved agencies” have 30 days to agree on a lead agency. Public Participation: Type I actions often involve public engagement, including opportunities for scoping and commenting on a Draft Environmental Impact Statement (DEIS), if required. (This process will be covered in a future post.) Unlisted Actions Unlisted actions fall below Type I thresholds and are not exempt under Type II. They can include smaller-scale developments, site plan approvals, or minor zoning changes. The required form and level of review depend on the project’s scope and potential impacts. Steps for Completing an EAF for Unlisted Actions: Short EAF – Part 1: In most cases, a Short Environmental Assessment Form (SEAF) is sufficient. Part 1 gathers basic information about the project and its potential environmental effects. Optional Full EAF: If the reviewing agency determines that the SEAF does not provide enough detail, it may request completion of a Full EAF. Review Process: The lead agency may conduct either a coordinated or uncoordinated review. In a coordinated review, the lead agency consults with all involved agencies before making a determination. In an uncoordinated review, each agency conducts its own independent assessment. Type II Actions Type II actions are predetermined by regulations not to have significant adverse environmental impacts and are therefore exempt from further SEQRA review. Examples include: Construction of a single-family home. Granting of a setback or lot line variance. Routine maintenance or replacement in kind. Adoption of a moratorium. Because these actions are excluded from further review, no EAF needs to be completed. Key Takeaways Understanding which Environmental Assessment Form (EAF) applies, and completing it correctly, is a critical step in the SEQRA process. Type I actions require a Full EAF and a coordinated review, while Unlisted actions typically require a Short EAF but may require a Full EAF depending on the agency’s discretion. Type II actions are exempt from further review, streamlining the process. Proper classification and accurate completion of the EAF helps ensure compliance with SEQRA, promotes transparency, and lays the groundwork for an efficient environmental review. 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 .

It has taken half a century for pregnancy to move from a private circumstance to a legally protected condition. The journey from outright employment bans to affirmative accommodation mandates traces one of the most significant evolutions in American workplace law. For New York employers, the shift has seemingly accelerated sharply in recent years. With overlapping federal and state regimes now in place, the risk of misstep, and subsequent litigation for those who fail to adapt, has never been greater. When Congress passed the Pregnancy Discrimination Act of 1978 (42 U.S.C. §2000e(k)) (“PDA”), it did so in direct response to the Supreme Court’s decision in General Electric Co. v. Gilbert , 429 U.S. 125 (1976), which held a pregnancy exclusion from disability benefits was not sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) (42 U.S.C. §2000e et seq. ). The 1978 amendment to Title VII made clear that discrimination “because of sex” includes pregnancy, childbirth, and related conditions. From that point forward, employers could not lawfully fire or demote a worker because of pregnancy, nor deny her benefits available to other temporarily disabled employees. Fifteen years later, the Family and Medical Leave Act of 1993 (29 U.S.C. §2601  et seq. ) (“FMLA”) added a second layer of protection; twelve weeks of unpaid, job-protected leave for childbirth and bonding. But the FMLA’s coverage thresholds (50 employees in a 75-mile radius, 12 months’ tenure) left millions uncovered. For the next three decades, federal law stood still until a series of bipartisan reforms reignited the conversation. The PUMP Act of 2022 (29 U.S.C. §218d) extended lactation rights to nearly all employees, and in 2023, the Pregnant Workers Fairness Act (42 U.S.C. §2000gg et seq. ) (“PWFA”) broke new ground by requiring reasonable accommodations for pregnancy-related limitations, even when not disabling. The 2024 regulations promulgated by the U.S. Equal Employment Opportunity Commissions (“EEOC”) list examples of per se reasonable accommodations required by employers of pregnant employees: additional rest breaks, modified uniforms, permission to carry water, or temporary reassignment to light duty. In practice, the PWFA has imported the “interactive process” model of the American with Disabilities Act of 1990 (42 U.S.C. §12101, et seq .) into pregnancy laws, creating fertile ground for litigation in federal courts. New York has, historically and characteristically, gone further than its federal counterparts. The New York State Human Rights Law (Executive Law §296 et seq. ) (“HRL”) has prohibited pregnancy-related discrimination as a form of sex discrimination since 1965, but a 2015 amendment to HRL (§292.21-f) explicitly defined “pregnancy-related conditions” and the requirement of reasonable accommodations. In 2019, the New York State Legislature also enacted the Pregnant Employees’ Fairness Act (Labor Law §203-e), further banning discrimination and retaliation on the basis of reproductive health decision making, and mandating written notice of these rights be disseminated to employees. Meanwhile, a separate constellation of state laws has provided a growing number of entitlements available to pregnant and postpartum employees. The Disability Benefits Law (Workers’ Compensation Law §200 et seq. ) provides partial wage replacement for pregnancy-related medical recovery (typically six to eight weeks postpartum). The Paid Family Leave Law (2018) offers up to twelve weeks of paid, job-protected bonding leave at two-thirds salary. The Paid Sick Leave Law (Labor Law §196-b, 2021) allows prenatal or postpartum medical use of accrued time. The Lactation Accommodation Law (Labor Law §206-c) – expanded in 2023 – requires, inter alia , a private space with refrigeration and electrical access for expressing breast milk. The newest addition, the Prenatal Leave Law (Labor Law §196-c, 2025), creates 20 hours of paid prenatal leave annually for medical appointments and testing. New York thus became the first state to guarantee stand-alone prenatal leave separate from other entitlements. For employers, these layered statutes form a dense lattice of obligations. Each law carries its own enforcement route: The EEOC for federal claims alleged under Title VII, ADA, PDA, and PWFA (which, procedurally, may result in a federal district court action). The U.S. Department of Labor for FMLA and PUMP Act matters. The NYS Department of Labor, Workers’ Compensation Board, Division of Human Rights, or Supreme Court for state claims. The overlap produces fertile ground for dual filings and concurrent jurisdiction. A single factual scenario such as a denied request for light duty or a termination following a prenatal appointment can now trigger claims under multiple distinct statutes. Litigation trends emerging reveal several recurring patterns, including but not limited to the failure to engage in the interactive process, retaliation following requests for leave or other accommodations, interference with leave (especially where employers miscalculate concurrent eligibility), constructive discharge allegations where pregnant employees face schedule reductions or reassignment after disclosure or birth, or straightforward acts of claimed discrimination or harassment. The exposure to potential liability under these laws is significant. Federal and state laws alike permit back pay, compensatory damages, punitive damages, and attorney’s fees. The HRL further allows individual liability for supervisors who participate in discriminatory acts, an often-overlooked distinction from Title VII. As awareness spreads, plaintiffs’ counsel are combining state and federal theories into hybrid complaints. A routine failure to grant a modified schedule can now yield a multi-count action alleging violations of any combination of these laws. Moreover, New York’s broad anti-retaliation provisions create low thresholds for pleading adverse action. What began as a mandate for equal treatment has evolved into a layered and overlapping regime of affirmative accommodation obligations representing a profound transformation of workplace rights. For New York State employers, pregnancy and postpartum protections are no longer peripheral concerns but a central compliance obligation. The modern risk lies less in overt bias than in administrative oversight, as even well-intentioned employers may stumble amid intersecting statutes and enforcement avenues. Preventive lawyering through updated policies, consistent documentation, and proactive supervisor training is the most effective way to navigate these converging obligations and avoid costly missteps. Ryan T. Biesenbach is an Associate in Underberg & Kessler LLP’s Litigation and Labor & Employment practice groups. He focuses his practice on civil and commercial litigation and labor & employment law, including the development of employment policies, discrimination and harassment claims, wage and hour issues, employee benefits claims, and compliance with state and federal labor laws. Ryan can be reached at (585) 258-2865 or rbiesenbach@underbergkessler.com. Reprinted with permission from The Daily Record  and available as a PDF file here .

We are proud to announce that fourteen attorneys were selected for inclusion in the 2025 Upstate New York Super Lawyers list and three attorneys were recognized in the 2025 Upstate New York Rising Stars list. Super Lawyers recognizes the top attorneys nationwide and across a variety of practice areas and firm sizes. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Only 5% of attorneys are selected to the Super Lawyers list and just 2.5% are chosen for the Rising Stars list.   The attorneys selected for inclusion in the 2025 Upstate New York Super Lawyers list and their recognized practice areas are: Leah Tarantino Cintineo  – Family Law James A. Coniglio  – Government Finance Patrick L. Cusato  – Real Estate David H. Fitch  – General Litigation Steven R. Gersz  – Businesses & Corporate Katherine H. Karl  – Banking Paul F. Keneally  – Employment & Labor Thomas F. Knab  – Business Litigation Anna E. Lynch  – Health Care Colin D. Ramsey  – Health Care Jennifer A. Shoemaker   – Family Law Margaret E. Somerset   – Personal Injury Medical Malpractice - Defense David M. Tang  – Creditor Debtor Rights Mindy L. Zoghlin  – Land Use & Zoning     The attorneys selected for inclusion in the 2025 Upstate New York Rising Stars list and their recognized practice areas are: Ryan T. Biesenbach – Employment Litigation - Defense Ericka B. Elliott  – Business Litigation Jacob H. Zoghlin  – Energy & Natural Resources

When New Yorkers went to the polls in November 2021, more than 70% voted in favor of adding a new environmental right to the State Constitution. This amendment, often called the “Green Amendment” or the “Environmental Rights Amendment,” took effect in January 2022 and states, in just one sentence: “Each person shall have a right to clean air and water, and a healthful environment.” The language is simple, but its impact is anything but. For the past three years, courts, government agencies, lawyers, and community groups have wrestled with a basic but fundamental question: what does it actually mean to have a constitutional right to clean air and water? And what does it mean to have a right to a healthful environment? A recent decision in Friends of Fort Greene Park v. NYC Parks and Recreation Department  seeks to answer those questions. The ruling, issued in May 2025, may become a core part of how New York State interprets and applies the Green Amendment. An appeal is already pending, but the decision is worth examining closely because of what it says about the Green Amendment’s scope, its enforcement, and how it fits alongside New York’s existing environmental laws. The Case: Trees, Parks, and Constitutional Rights The dispute arose from a project in Brooklyn’s Fort Greene Park, where the New York City Parks Department approved a plan that involved cutting down 78 mature trees as part of a redesign. A community group, Friends of Fort Greene Park, challenged the decision, arguing that the Parks Department had violated the State Environmental Quality Review Act (SEQRA), New York State’s main environmental review law. But they also added a new kind of constitutional claim: that the plan to cut down the trees without proper consideration of their environmental benefits or mitigation of the project’s impacts violated their members’ constitutional rights under the Green Amendment. The group argued that the loss of trees would worsen air quality, increase stormwater runoff, and reduce environmental health in the area, directly undermining the constitutional guarantee of “clean air, clean water, and a healthful environment.” The New York City Parks Department, for its part, countered that the Green Amendment was not meant to replace or expand SEQRA or other environmental laws. Instead, it said, the Amendment is not a brand-new way to challenge government projects that affect the environment. This clash set up the key legal question, does the Green Amendment create enforceable rights that people can bring directly to court, or does it simply reinforce the importance of existing laws? What the Court Said In the Fort Greene Park decision, the judge ruled that the Green Amendment is self-executing , meaning it creates rights that can be enforced in court without any additional laws from the Legislature. In other words, people can file lawsuits claiming their constitutional right to a healthful environment has been violated, just as they could for rights like freedom of speech or equal protection under the law. The court also found that these rights can be enforced against government actors. While private companies are not directly subject to Green Amendment claims, state and local agencies, like the Parks Department, are. At the same time, the judge noted limits. The ruling emphasized that the Green Amendment does not erase or replace existing environmental review laws like SEQRA. Instead, it provides a parallel avenue for claims: one that could be used in cases where existing laws are not enough to protect environmental rights. How This Differs from Prior Cases To understand why the Fort Greene Park case matters, it helps to compare it with earlier rulings. Fresh Air for the Eastside (2022, 2024):  This case involved a landfill in Monroe County. A trial court initially allowed claims against the state under the Green Amendment, but dismissed the Green Amendment claims against the landfill operator. On appeal, the higher court dismissed the claims against the state as well, leaving unclear if/how the Amendment could be directly enforced. Marte v. City of New York  (2023):  In this case, community groups challenged a real estate development in Manhattan. The court expressed hesitation to use the Green Amendment as a “new route” to challenge projects already reviewed under SEQRA. The claims were ultimately dismissed as time barred. Chan v. U.S. Department of Transportation  (2024):  In a federal case over New York City’s congestion pricing plan, the court echoed the caution from Marte . It read the Green Amendment as setting a baseline guarantee of environmental quality, not as a tool to block every project that causes localized harm. Against this backdrop, the Fort Greene Park decision is notable for squarely holding that the Green Amendment is self-executing and creates enforceable rights against government agencies. Why It Matters The decision in Fort Greene Park has the potential to impact how environmental disputes play out in New York. It could mean: A New Legal Tool - Citizens may have a direct way to argue that government actions, whether approving developments, infrastructure projects, or park changes, violate their constitutional rights to a healthful environment. Greater Judicial Role - Courts may be asked to balance government projects against individual environmental rights in ways they have not done before. Interaction with SEQRA - While SEQRA focuses on the process of environmental review, the Green Amendment may add a substantive constitutional layer, asking whether a project ultimately respects the right to clean air, water, and a healthful environment. Uncertainty and Development -  Because the Green Amendment is so new, courts are still defining its boundaries. Future cases will determine how far this environmental right extends, what kinds of harms are significant enough to trigger relief, and how it fits with other environmental and land use laws. Looking Ahead The Fort Greene Park decision is not the final word. An appeal is pending, and New York’s higher courts may ultimately decide whether they agree with the ruling’s interpretation. As that process unfolds, the case has already highlighted the central tension in the Green Amendment: is it a broad, enforceable right like freedom of speech, or a guiding principle that mainly works through existing laws? For the public, the decision is a reminder that the Green Amendment was designed to be more than symbolic. Voters approved it in response to events like the Hoosick Falls water crisis, Hurricane Ida’s devastating floods, and growing concerns about air quality, climate change, and environmental justice. Whether the courts interpret it narrowly or broadly, the Amendment is now a part of New York’s constitutional fabric, and cases like Fort Greene Park will continue to shape how it is understood. Jacob H. Zoghlin  is a Partner in Underberg & Kessler LLP’s Litigation  department and chairs the firm’s Environmental Law  and Municipal Law  practice groups. He focuses his practice in the areas of environmental law, municipal law, development law, energy law, zoning and land use law, cannabis law, Article 78 proceedings, and related litigation. He can be reached at jzoghlin@underbergkessler.com  or 585-258-2834. Reprinted with permission from The Daily Record  and available as a PDF file here .

If you are an employer in New York, you have probably had to navigate short-term disability leave at some point. And one of the most common questions we hear is, “Can I terminate an employee who’s out on short-term disability?” The answer is: It depends. While short-term disability insurance is a partial income replacement, it does not protect an employee’s job. But that does not mean you can terminate without taking a closer look. In fact, doing so can raise some serious legal red flags if you are not careful. In New York, employers are required to provide short-term disability insurance to cover employees who are unable to work due to their own non-work-related illness or injury. Here are the key features: Employees can receive 50% of their average weekly wages, capped at $170 per week. Wages are calculated from the last eight weeks of employment. The benefit can last for up to 26 weeks in any 52-week period. There’s a seven-day waiting period before benefits kick in. As a partial income replacement insurance product, short-term disability does not specifically guarantee employee job protection. However, many factors make it risky to terminate an employee on short-term disability. Accrued Sick Leave or PTO If the employee has earned sick leave or vacation time, they’re entitled to exhaust that time prior to any possible termination. Keep in mind that New York’s Labor Law Section 196-b now requires all private employers to provide employees with paid leave, regardless of industry, occupation, part-time or overtime exempt status, and seasonal status. The amount of leave an employee is entitled to is based on the size of their employer's business, so be sure any required paid time off has been provided and used before considering termination. Family and Medical Leave (FMLA) If a company has 50 or more employees within a 75-mile radius, the employee may also be eligible for federal FMLA, which gives them up to 12 weeks of unpaid, job-protected leave. Employers can require employees to use up accrued PTO or sick leave during FMLA, but they still have the right to job restoration at the end of the leave. If they are still within that 12-week window, termination is not an option, unless there is an unrelated and well-documented reason, such as a layoff. Disability Discrimination Protections Lastly, if an employee has used up all sick time, PTO, and FMLA leave, or was not entitled to one or more of them, the federal Americans with Disabilities Act and the New York State Human Rights Law prohibit discrimination on the basis of disability, which is broadly interpreted as a physical or mental impairment affecting a major life activity. These disability discrimination laws require that the employer and employee engage in a good faith “interactive process” to determine if a reasonable accommodation (such as extended, unpaid leave) would help them return to work. Employers should be sure to document this process carefully and completely. When Might Termination Be Defensible? If the employer wishes to terminate an employee out on short-term disability, it should first analyze whether additional leave beyond accrued sick time, PTO, and FMLA leave entitlement would be reasonable or unduly burdensome, given the position at issue, potential coverage for that position, the employer’s number of employees, and other factors unique to each situation pertinent to the ability to accommodate an extended absence. While employers should always be cautious, there are situations where terminating an employee on short-term disability leave may be legally justified: The Medical Prognosis Is Indefinite - If the employee’s doctor cannot give any estimated return-to-work date, and additional leave would create an undue hardship, termination might be appropriate. But this depends heavily on the facts—like the employee’s role, your ability to temporarily cover their duties, and how long the leave has already lasted. A Legitimate Layoff or Restructure - If there is a company or practice-wide layoff, and the employee on leave would have been let go regardless of their medical status, that decision is usually defensible. Employers should make sure they can show that the termination was part of a broader plan and not tied to the employee’s disability or leave. While short-term disability leave does not automatically protect an employee’s job, termination during that leave is rarely straightforward. As always, companies considering any employee termination, especially those on short-term leave, should discuss all the relevant considerations with experienced employment law counsel. If you have any questions about paid leave, short-term disability, or any Labor or Employment law issue, please contact someone from 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: What is digital health and what are some benefits for my practice? A: Digital health includes the use of various electronic technologies to enhance patient care, streamline clinical workflows, improve patient engagement, and predict and improve health outcomes. It includes multiple means for furthering these objectives, including electronic health records (EHRs), telehealth/telemedicine, patient portals, digital diagnostic tools, clinical decision support systems (CDSS), mobile health (mHealth) apps, electronic wearables/monitors, and artificial intelligence and predictive analytics tools.  Use of digital health technology can improve internal efficiency in a health care provider’s office by creating less paperwork and quick access to data, enhancing communication between the provider and patient, enhancing care coordination where a patient treats with multiple providers, and can result in greater patient engagement because patients can track their health and interact with their care team conveniently.  Q: What are some legal issues with digital health? A: While digital health has many benefits, it presents a few legal issues for consideration. The list of issues outlined below is not exhaustive but serves as a starting point for providers.  Privacy: HIPAA, New York SHIELD Act, and the NY HIPA First, providers must still comply with HIPAA and the New York SHIELD Act. Under HIPAA, providers must safeguard protected health information (PHI). However, telehealth, EHRs, and mHealth apps create more endpoints for potential data breaches. Health care providers must be careful to ensure that these platforms are secure. If a provider does business with third parties, the provider must have a Business Associate Agreement (BAA) in place if there is reason to believe that PHI may be disclosed to the Business Associate (BA). Further, HIPAA still requires providers to obtain informed consent before disclosing PHI. Similarly, the New York SHIELD Act applies to any business, including health care providers, that keep personal information of any New York residents. The Act requires providers to maintain reasonable administrative, technical, and physical safeguards for data, and to notify patients in the event of a data breach. In 2025, the New York Legislature passed NY HIPA (General Business Law Article 42), which awaits the Governor’s signature and is not law (yet). The bill imposes restrictions on the use and storage of consumer health data and is intended to cover businesses that collect consumer information but are not covered under HIPAA.   Telehealth Licensing and Scope of Practice.  New York law generally requires telehealth providers to be licensed in the state if they are treating New York residents, and providers are required to adhere to a standard of care as if the visit were conducted in person.  Reimbursement . Public Health Law § 2999-dd requires insurance companies and Medicaid to reimburse providers at the same rate as in-person services, even if the appointment or service is conducted remotely. Additional legislation to expand coverage is pending. Prescription of Controlled Substances . In May 2025, new rules went into effect to preserve the in-person requirement for the prescription of controlled substances, with a few exceptions, including where a recent in-person examination was conducted in the 12 months prior, where another provider in the same practice is temporarily covering and the provider consults with the original prescriber, or where there is an emergency. The prescriber, however, must still comply with DEA and DOJ rules governing controlled substances. Unauthorized Practice of Medicine New York law expressly prohibits corporations from practicing medicine, except where providers form a professional corporation or professional service limited liability company. If a digital health company offers its services in New York, the care must be delivered by a licensed professional under the appropriate corporate structure; non-clinicians cannot control or make clinical decisions. Billing and Fraud Telehealth and remote services must adhere to strict documentation and billing rates.  Overbilling and upcoding are heavily monitored. Providers must comply with Medicaid and telehealth rules, and any insurance panel policies. Employment and Workplace Privacy Issues If digital health tools are used, such as to monitor staff health through COVID questionnaires or biometric scanners, the practice must comply with the New York Civil Rights Law, Labor Law § 203-c (which protects employee privacy and prohibits employers from making video recordings of employees in private areas absent court order), and the Electronic Monitoring Disclosure Law (requiring employers to notify employees about any electronic monitoring of their internet, email, or telephone usage). Reprinted with permission from the August/September 2025 issue of The Bulletin from the Monroe County Medical Society and available as a PDF file here . Ericka B. Elliott is a Partner in Underberg & Kessler LLP’s Health Care and Litigation Practice Groups. She helps health care providers navigate the ever-changing world of health care compliance and can be reached at eelliott@underbergkessler.com or 585.258.2830.

Underberg & Kessler Partner Joshua B. Beisker shared his perspectives on notable state and local tax (SALT) developments under the One Big Beautiful Bill in a recent Rochester Business Journal  article titled “Businesses face new challenges under SALT tax changes.” “Under the newly enacted One Big Beautiful Bill, the SALT deduction cap has temporarily been raised from $10,000 to $40,000 for households earning up to $500,000 (phasing out above that), offering short‑term relief for many in high‑tax states but reverting to $10,000 starting in 2030 amid ongoing debates over fairness and fiscal costs,” said Joshua, who is Chair of the Estates & Trusts and Tax Law practice groups and Co-Chair of the Corporate & Business practice group. He further explains that the most consequential recent SALT change is the temporary increase of the deduction cap to $40,000 (through 2029), which substantially benefits high‑earners in high‑tax states while creating sharp phase‑out thresholds that can raise marginal tax rates significantly and prompting complex planning tactics like multi‑trust strategies. “Businesses with multi-state operations should prioritize monitoring federal restrictions on SALT workaround strategies for pass-throughs, new deductions at the entity level, shifts to single-factor apportionment in key states, emerging service-sector surtaxes, and evolving rules around digital and transactional taxation, all of which materially impact tax liability, compliance burden, and location strategy.” To view the full article, reprinted with permission from Rochester Business Journal , click here Joshua advises clients on complex estate planning and estate administration matters, including estate and income tax planning, the preparation of wills and trusts, durable powers of attorney, health care proxies, and fiduciary administration. He also represents corporations, LLCs, partnerships, and individuals in connection with mergers and acquisitions, corporate governance, business planning and financing, as well as advising on day-to-day operations and on achieving tax efficiencies.

Recently, our firm evaluated the Artificial Intelligence (AI) assisted tools offered by Lexis and Thomson Reuters Westlaw and the attorneys have had opportunity to test-drive both. The results can be, like ChatGPT, extraordinary. The tools can help draft contract provisions in seconds, condense hundreds of pages into a few tight paragraphs, and suggest creative ways to shape arguments. The benefits are obvious — fewer hours working with a form or template, more time for focus on analysis or strategic judgment to advance a client’s case or matter. That is the promise, and these tools do offer opportunities for creating significant efficiencies for practitioners that simply were not available even just a few years ago. The pitfalls, however, are just as clear. These models are designed to give an answer — and not necessarily the correct one. Since ChatGPT’s public release in November 2022, the technology has advanced rapidly, and the current version, ChatGPT-5, is far more capable than its earliest iterations. OpenAI touts that GPT-5 is their “smartest, fastest, most useful model yet, with built-in thinking that puts expert-level intelligence in everyone’s hands.” However, the problem of hallucinations remains. As sophisticated as generative AI tools are becoming, they may still make things up. For lawyers, those hallucinations can take the form of nonexistent citations, quotations that never appeared in any reporter, misleading characterizations of authority, or entire legal doctrines conjured out of thin air. There have been some recent decisions which serve as reminders of the potential pitfalls practitioners face when they fail to check or double check the sources and all citation to authority generated using an AI tool. The most popular AI chatbot is currently ChatGPT with roughly 350 million monthly users (as of January 2025). Although the AI tool has seen multiple advancements and the current version is designed to be helpful and provide the desired answer, there continue to be regular reports of non-existent authority (e.g. fake cases, misleading quotes, self-serving interpretations of actual authority, or outright made-up legal principles). The appropriate response to the query of, “Should we submit hallucinated cases or make-believe authority in briefs, memoranda, or other court filings?” should be an emphatic, “Never.” And the reader is encouraged to adopt this philosophy and otherwise comply with Rule 11 of the Federal Rule of Civil Procedure (FRCP) in all respects. Still, in several cases decided in the last ten months, multiple attorneys fell short. Their situations offer some timeless lessons.    In Shahid v. Esaam, 2025 WL 1792657 (Georgia, June 30, 2025), a divorce matter, the Georgia Court of Appeals granted the wife-appellant’s application for discretionary review and vacated the lower court’s order, after determining the appellate brief completely ignored wife's argument that trial court's order contained two fictitious case citations, and that counsel had provided 11 bogus case citations out of 15 total. The appeals court wrote “we are troubled by the citation of bogus cases in the trial court's order.”   In  Coomer v. Lindell , 2025 WL 1865282 (Colorado, July 7, 2025), the federal court issued 4-figure sanctions against one lawyer and his firm, jointly and severally, and a second lawyer individually for Rule 11 violations in the form of submitting briefs that contained hallucinated cases and the lawyer admitted to not double-checking any of the citations prior to submission.    Most recently, in Johnson v. Dunn , (Case No. 2:21-cv-1701, July 23, 2025), the U.S. District Court for the Northern District of Alabama evaluated claims regarding fabricated citations to legal authorities and disqualified three lawyers from the case after determining that they had included citations hallucinated by ChatGPT in motion filings. The court found the three lawyers benefitted from repeated warnings, internal controls, and firm policies about the dangers of AI misuse and that they have regular access to gold-standard legal research databases. In addition to being disqualified from further participation in the case, the judge publicly reprimanded the attorneys, and the matter was referred to the Alabama State Bar and other applicable licensing authorities.   The takeaways should be clear: Do the work. Do good work. Do all of the work. One of my favorite law professors often told our class to “read the statute or the contract” and if you do, “you will save or earn your clients lots of money.” Diligence and competency are the cornerstones of good to exceptional advocacy. For the practitioners in 2025, utilize tools that will support efficiencies in your practice and that will benefit your clients but at the same time, one must still read the cases. If you do, you will enjoy avoiding the discomfort of scrambling to respond to sanctions, motions, or inquiries like in the Lindell  and Shahid  matters or being deeply embarrassed like the lawyers in Alabama.  Most notably, your clients, your colleagues, and the tribunal will all appreciate knowing that the authority cited in your brief or related submission is rock solid and reliable.    David M. Tang is a Partner at Underberg & Kessler LLP and serves as Chair of the firm’s Health Care and Creditor’s Rights practice groups. He advises clients on business, health care, restructuring, and commercial litigation matters. David can be reached at dtang@underbergkessler.com   or 585.258.2845. Reprinted with permission from The Daily Record and available as a PDF file here .