Q: I was asked to serve on a not-for-profit board. I understand the organization wants to revamp its membership structure as a number of long-time, active members have retired in the last few years (or will retire soon) and there are ongoing discussions about modernizing to appeal to new members. What are things I should consider before I decide to volunteer? Are there resources I should consult related to board governance or that would be helpful with a membership project?   A: Congratulations on being asked to join a not-for-profit board. Being invited to serve is a recognition of your reputation, interest, skill, and anticipated contributions. Before saying "yes," it can be helpful to take a pause to evaluate what the role entails, especially in light of the organization's focus on revamping its membership model. Here are a few ideas to consider and a few resources to help guide your decision and equip you to contribute meaningfully:   Understand Mission and Goals. To manage your own efforts, begin by clarifying the nonprofit’s mission, vision, and current priorities. Ask yourself: Do I believe in and support the mission? Is there alignment between the organization's goals and my values or interests? What are the current strategic priorities? And how does the membership structure revamp fit in with the priorities? In a recent study, nearly 48% of professional organizations reported declining membership. A decline in membership renewals might reflect broader issues with engagement or programming. Understanding the organization's history and where it hopes to go will help you assess whether you are the right person to help chart that course.   Expectations of Board Service. Not all board roles are the same. Get clarity about (1) the time commitment (e.g., monthly meetings, committee work, fundraising duties); (2) financial expectations (e.g., personal donations, fundraising asks); (3) skillsets needed (e.g., strategic planning, marketing, finance, government relations, governance); and (4) the structure and culture of the board.   Ask whether there is an onboarding packet or board manual or training. If one does not exist, that may be a signal that the organization could benefit from stronger governance practices.   Evaluate the Membership Project. Because the organization is specifically focusing on revamping its membership structure, inquire about past membership models: What worked? What didn’t? Ask for some data regarding demographic shifts: Who are the current members? Who are the members they are trying to attract? Inquire about revenue goals: How significant is membership revenue to the operating budget? Ask for information related to member engagement: How does the organization define and measure engagement? Perhaps check the website or newsletter to see how they communicate. Effective membership models today go beyond simply dues. They are about a value exchange and relationship-building. People want to feel heard, included, and connected.   Resources for New Board Members. There are a number of resources for volunteer not-for-profit directors that may be helpful to your board learning and also support the organization’s efforts to improve membership strategy.  A . The New York State Charities Bureau is the entity charged with overseeing the activity of not-for-profit entities incorporated in or operating in New York State. The Charities Bureau offers a helpful guide: Right from the Start: Responsibilities of Directors of Not-for-Profit Corporations, which   outlines key governance duties, legal obligations, and best practices for board members. You can find the guide online at charitiesnys.com  and reviewing it will help any director feel more confident in the role and may help the organization assess whether it is operating within best practice norms. B . BoardSource is a national leader in board education for nonprofit organizations and offers toolkits, webinars, and resources specifically on topics like board engagement, governance, and member recruitment and retention. Their online platform can help you build your own knowledge and offer well-informed suggestions to the board. Learn more at boardsource.org . C . The Center for Nonprofit Leadership at St. John Fisher University offers community engagement programming, including workshops and consulting clinics for nonprofits and board leaders. The Institute’s offerings are designed to ensure a strong volunteer sector to maintain a high quality of life in the community. Courses cover leadership development, engagement strategies, and nonprofit management. The Institute is a wonderful resource providing local expertise to support community-engaged learning and service. D . The Art of Membership: How to Attract, Retain, and Cement Member Loyalty , by Sheri Jacobs, explains the importance of personalized experiences, strategic onboarding and evolving benefits to create lasting connections for member organizations. The author emphasizes building programs that deliver what members truly value and she advocates taking a data-driven membership approach from recruitment to retention, with a focus on continuous engagement.   Modern Engagement Strategies. Many organizations have historically relied on annual dues and a calendar of recurring events – educational forums, member social events, or fundraising galas – to ensure engagement with members. To refresh engagement strategies, associations or organizations may wish to engage members through digital surveys to assess the determining factors driving membership renewals, to enhance offerings, and or identify services that are outdated. Many young professionals seek short-term, purpose-driven volunteer roles to connect with peers and contribute meaningfully. Groups have responded with initiatives like Young Professionals Advisory Boards, mentor-for-the-moment programs, and delegating networking projects to early-career members. New engagement opportunities (and existing events) should foster inclusion, promote fresh programming, and help develop meaningful relationships across generations.   Should You Volunteer? There is no doubt that joining a board is a commitment of time, resources, and creativity. However, it can lead to new learning opportunities, while also providing an opportunity to support community organizations that provide important services. If you feel that your skills and perspective can help an organization to modernize, grow or reimagine its membership base, then sign up. With luck, you will meet other civic-minded volunteers, enjoy making connections, learn new skills, and find volunteer work that is satisfying and meaningful.     Reprinted with permission from the May/June 2025 issue of The Bulletin  from the Monroe County Medical Society and available as a PDF file here . 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, is active with and has served on the boards of a number of nonprofits providing healthcare, educational and affordable housing services. David can be reached at dtang@underbergkessler.com or 585.258.2845.

Nearly 18 years ago, I wrote an article for The Daily Record  posing the question, “Are dog owners entitled to one free bite?” That article addressed the standard applied by courts in New York State when a plaintiff seeks to recover for injuries suffered as a result of a dog bite. At the time of that article – until approximately two months ago – the law was clear in New York that the owner of a dog or other domestic animal would only be held liable if they knew or should have known of that animal’s vicious propensities. In fact, the only theory of recovery for a prospective plaintiff was one of strict liability, based upon the Court of Appeals’ decision in Bard v. Jahnke, 6 N.Y.3d 592 (2006). According to Bard,  there could be no common law negligence liability when a domestic animal causes harm. This remained the state of the law in New York until April 17, 2025, when the Court of Appeals overruled its holding in Bard in Flanders v. Goodfellow, 2025 N.Y. Slip.Op. 02261 (2025).  In Flanders, a postal carrier was bitten by a homeowner’s dog while delivering mail. During the course of discovery, the defendant homeowners denied knowledge or awareness of any vicious propensities previously exhibited by their dog and subsequently moved for summary judgment to dismiss the case. In opposition, the plaintiff submitted affidavits from two other postal carriers who had previously delivered mail to the defendant’s house. Both affidavits stated that although they were only able to observe the dog through the window, it acted very aggressively, baring its teeth and barking at them. In awarding summary judgment to the defendants and dismissing the action, the trial court concluded that there was no triable issue of fact whether defendants had actual or constructive knowledge of the dog’s alleged vicious propensities. With respect to the affidavits from the postal workers, the court found them insufficient to defeat defendants’ motion because the affidavits did not demonstrate that defendants were home to observe the dog allegedly acting aggressively. Further, based on Bard, the court dismissed the negligence cause of action as inapplicable to harm caused by domestic animals. Subsequently, the Fourth Department confirmed. On further appeal, the Court of Appeals first found that there was a triable issue of fact whether defendants had constructive knowledge of their dog’s vicious propensities. The Court of Appeals found the affidavits of the postal workers significant – especially the allegation that had anyone been in defendant’s home at the time of the mail deliveries, they would have observed its behavior. According to the Court of Appeals, this created a triable issue of fact on the credibility of defendants claimed ignorance of their dog’s behavior. However, the Court of Appeals did not limit itself to merely reversing the grant of summary judgment on the strict liability cause of action. Rather, it took the invitation of plaintiff to overrule Bard and recognize negligence as an alternative theory for injuries caused by domestic animals. The Court recognized that overruling Bard could be viewed as violative of the principle of stare decisis , i.e., that a rule of law once decided by a court will generally be followed in subsequent cases presenting the same legal problem. It concluded that “stare decisis is not an inexorable command, and that ‘although a court should be slow to overrule precedents, there is little reasons to avoid doing so when persuaded by the lessons of experience and the force of better reason.’” The Court of Appeals reasoned that one of the primary goals of tort law is to require individuals to be aware of the risk of harm their behaviors could impose on others, and to compel individuals to take reasonable steps to prevent foreseeable harm. It concluded that Bard was inconsistent with this principle when it exempted owners of domestic animals from liability based on a theory of negligence.  The Court observed that the inability to maintain a negligence claim shifted the burden from the owner of a dog to those injured by one, and gave dog owners “little reason to familiarize themselves with any potential proclivities that might lead the animal to cause harm, and in turn, to take reasonable steps to prevent any harm that may result.” The Court acknowledged that one of the goals of Bard was to provide an easy-to-follow rule – even if it was fatal to negligence claims. However, it observed that the progeny of Bard has resulted in a number of carveouts that allow negligence claims against owners of domestic animals in certain situations. This, according to the Court of Appeals, made adhering to Bard based upon the principle of stare decisis  all the less compelling.  To that point, Flanders cited a portion of the descent in Bard, which asked “Why should a person who is negligent in managing an automobile or a child be subject to liability, and not one who is negligent in managing a horse or bull?” The Court concluded that in light of the inconsistencies and lack of uniformity in the aftermath of Bard, stare decisis  did not support the continued prohibition on negligence claims by plaintiffs harmed by a domestic animal.  A plaintiff now has the choice to proceed under a theory of strict liability (i.e., that the owner knew or should have known that the animal had vicious propensities), or a theory of ordinary negligence (i.e., that the defendant failed to exercise due care), or most likely advance both theories. While the impact of the decision in Flanders remains to be seen, it is fair to assume that certain cases involving dog bites and injuries caused by other domestic animals were not pursued because of the prohibitions set forth in Bard. Potential plaintiffs and plaintiffs’ counsel are now more likely to do so given that Bard has been overruled.    Colin D. Ramsey is a Partner in Underberg & Kessler LLP’s Health Care , Labor & Employment , and Litigation practice groups. He defends nursing homes and medical providers against negligence and malpractice claims, municipalities against personal injury and property damage claims, and individuals and businesses in labor and employment claims. He can be reached at cramsey@underbergkessler.com  or 716-847-9103. Reprinted with permission from The Daily Record and available as a PDF file   here .

Effective June 8, 2025, the daily rate for jury duty in New York state increased from $40 to $72. While this may seem like a small administrative change, the implications for employers – especially those with hourly or part-time workers – are important. Here is what employers need to know to stay compliant and avoid legal pitfalls. Section 519 of New York’s Judiciary Law prohibits employers from discharging or otherwise penalizing an employee summoned for jury duty. The law also permits employers to withhold wages from an employee during their days of jury service without violating other requirements concerning the payment of wages. However, employers with ten (10) or more employees are required to pay their empaneled employees the daily rate referenced above for the first three (3) days of jury service – if the employee’s regular wages for time missed from work are lower than the jury fee, the state will pay the difference. Beginning on the fourth day of jury service, the state pays the fees to employees not otherwise compensated. Employers are not required to pay employees who work less than twenty-five (25) hours per week or are independent contractors – these employees are eligible for state payment from day one of jury duty. It is also important to note that per the Fair Labor Standards Act (FLSA) salary basis rules, exempt employees should be paid their full salary for any work week during which they are off for jury duty service, though employers can offset the amount the employee receives from the state. Employers may not discharge or penalize an employee for jury service. Violations can result in civil penalties, reinstatement and back pay, and being held in criminal contempt of court. To stay compliant with both New York law and the FLSA, employers should take proactive steps to manage jury duty leave consistently and lawfully: Ensure managers, human resources personnel, and payroll teams are fully informed about the increase to New York’s mandatory jury duty pay. Update internal policies – such as employee handbooks – to reflect the changes in the law. Advise and instruct employees (and their supervisors) of these policies and on how to accurately report jury duty leave in your timekeeping or payroll system. By taking these steps, employers can ensure legal compliance, reduce risk, and support employees in fulfilling their civic duties with clarity and fairness. If you have any questions regarding this article, please contact the Underberg & Kessler attorney who regularly handles your legal matters, or Ryan T. Biesenbach  at (585) 258-2865 or rbiesenbach@underbergkessler.com .

In a significant move to bolster environmental protection and public health, New York State has enacted major amendments to its Superfund Program. These changes, part of the 2025 Executive Budget, aim to enhance the cleanup of hazardous waste sites, align state regulations more closely with federal standards, and prioritize environmental justice. Strengthening Enforcement and Liability Standards The revised Superfund Program expands the definition of "responsible parties" to include a broader range of entities, such as current and former site owners, operators, and waste transporters. This expansion ensures that more parties can be held accountable for contamination. Additionally, the New York State Department of Environmental Conservation (NYSDEC) now has enhanced authority to issue summary abatement orders in cases of imminent danger to public health or the environment, streamlining the process for initiating cleanups. Aligning with Federal CERCLA Standards A notable aspect of the amendments is the alignment with the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The state has codified the "bona fide prospective purchaser" (BFPP) defense, providing liability protection to parties who acquire contaminated properties after conducting appropriate due diligence. This change encourages the redevelopment of brownfield sites by reducing legal uncertainties for new owners. Prioritizing Environmental Justice The updated program places a strong emphasis on environmental justice by prioritizing the cleanup of hazardous sites in disadvantaged communities that have historically borne a disproportionate burden of pollution. This focus aims to address long-standing inequities and improve health outcomes in vulnerable populations. Increased Funding for Cleanup Efforts To support these initiatives, the state has allocated an additional $1.25 billion over the next decade to the Superfund Program. This funding boost will facilitate the remediation of contaminated sites, particularly in communities most affected by environmental hazards. How an Environmental Attorney Can Assist Navigating the complexities of the revised Superfund Program can be challenging for property owners, developers, and municipalities. An experienced environmental attorney can provide guidance on compliance with new regulations, assist in conducting due diligence for property transactions, and represent clients in enforcement actions or negotiations with regulatory agencies. Engaging legal counsel early can help mitigate risks and facilitate the successful redevelopment of contaminated properties. If you have questions about the New York State Superfund Program, environmental due diligence, or any other environmental 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 .

The Trump administration has filed lawsuits against four states—New York, Vermont, Hawaii, and Michigan—aimed at halting recent climate-related legislation and/or litigation efforts. These state initiatives seek to hold fossil fuel companies financially responsible for environmental damage(s) tied to climate change. The federal challenges reflect a growing battle over the scope of state powers in environmental governance and raise important legal questions that could shape the future of climate accountability nationwide. State Climate Accountability Laws in Context Over the past year, several states have introduced legislation modeled on the federal Superfund law to impose liability on major greenhouse gas emitters. Notably, New York passed the Climate Change Superfund Act, which authorized the state to pursue billions from companies whose emissions have significantly contributed to climate-related harms. The legislation sparked national attention—and controversy. In a sharp rebuke, a coalition of 22 Republican-led states submitted a letter opposing the law, arguing that it conflicts with federal environmental policy and threatens to impose extraterritorial economic penalties. These states warned that New York’s approach could fragment national energy policy and set a troubling precedent for interstate litigation. On February 6, 2025, those 22 states joined coal, oil, and gas trade associations in suing the State of New York to block its Climate Superfund Law (Read my April 5, 2025 article, here , to learn more). Climate Deception Lawsuits: A Legal Reckoning for Misinformation An emerging front in climate litigation focuses not just on the environmental impact of fossil fuels, but on the longstanding misinformation allegedly spread by major energy companies. Known as climate deception cases, these lawsuits accuse oil and gas firms of concealing or downplaying scientific evidence linking their products to global warming, often dating back decades. States like Hawaii and Michigan have taken steps to challenge this history of corporate communication. Hawaii recently filed a comprehensive suit asserting that fossil fuel companies deliberately misled the public about the risks of their operations, contributing to climate-related harms across the islands. The case invokes multiple legal theories, including consumer protection violations, public nuisance, and failure to warn, and pursues accountability for the burden imposed on state infrastructure and natural resources. Michigan, while not yet having filed its complaint, has publicly signaled its intent to pursue similar legal action. Its attorney general has been sharply critical of the Trump administration's preemptive legal maneuvering, which she argues aims to stifle legitimate efforts to hold corporations accountable under state law. These lawsuits follow a broader national trend: since 2018, over two dozen municipalities and states have initiated similar claims. While outcomes vary, and some face procedural hurdles like standing or jurisdiction, others are proceeding to discovery, potentially uncovering internal documents that could significantly shape public and legal narratives about the fossil fuel industry’s role in the climate crisis. This area of litigation is gaining momentum and scrutiny, particularly in light of federal attempts to limit such state-level initiatives through executive action and litigation. For stakeholders — from energy companies to public agencies — understanding this legal trend is critical, as it signals a shift in how climate responsibility may be assessed in courtrooms across the country. Federal Intervention: Lawsuits Against Four States The DOJ’s recent lawsuits go further than prior lawsuits brought by other states, formally challenging the constitutionality of climate superfund legislation and related deception-based litigation in four states: New York and Vermont  have enacted climate superfund laws to hold fossil fuel companies financially accountable for the historical costs of climate change impacts, such as infrastructure damage from extreme weather. Hawaii and Michigan  are pursuing public nuisance and consumer protection suits, alleging fossil fuel companies misled consumers and policymakers about the risks of carbon emissions. The federal government’s argument hinges on three core legal doctrines: Federal Preemption: Citing the Clean Air Act, the DOJ argues that only the EPA has authority to regulate greenhouse gas emissions, and that state laws attempting to do so are preempted. Dormant Commerce Clause: These laws, the DOJ claims, unduly burden interstate commerce by penalizing out-of-state conduct. Foreign Affairs Doctrine: By attempting to hold multinational companies liable for global emissions, the states allegedly interfere with the federal government’s exclusive control over foreign relations. States Push Back State attorneys general and governors have rejected the federal government’s arguments, defending their right to protect public health and the environment. They argue that their laws do not attempt to regulate emissions directly but rather obtain compensation for damages—a distinction that could prove crucial in court. New York, in particular, has emphasized that its law is narrowly tailored to address state-level climate costs and was developed using peer-reviewed methodologies for allocating corporate liability based on historic emissions. Legal and Strategic Implications These lawsuits strike at the heart of evolving climate liability frameworks and could impact the balance of power between state and federal environmental authority. If successful, they may curb similar legislation in other states. If unsuccessful, they could embolden more states to pursue aggressive legal action against fossil fuel producers. For companies in the energy, insurance, and manufacturing sectors, these developments signal increased litigation and regulatory risk. Understanding the legal landscape—and preparing for potential state-level liabilities—will be essential. Conclusion The Trump administration’s litigation against state climate accountability efforts represents a pivotal moment in US environmental law. These cases could redefine the limits of state authority and corporate liability in the climate context. Legal teams, policymakers, and corporate stakeholders should closely monitor these proceedings and evaluate their implications for regulatory compliance and strategic planning. Jacob H. Zoghlin is a Partner in Underberg & Kessler LLP’s Litigation department and chairs the firm’s Environmental Law practice group and Municipal Law practice group. 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 . Reprinted with permission from The Daily Record and available as a PDF file here.

As municipalities in New York State explore opportunities to lease public land for renewable energy projects, such as solar or wind developments, there are several critical legal considerations to keep in mind. These projects can offer significant environmental and economic benefits, but they also require municipalities to navigate a complex regulatory landscape to avoid legal pitfalls. SEQRA Compliance: Avoiding Segmentation Before entering into a lease agreement with a private developer, the municipality must comply with the New York State Environmental Quality Review Act (SEQRA). SEQRA mandates a comprehensive environmental review to assess potential environmental impacts and mitigate adverse effects. One key concern under SEQRA is segmentation, which occurs when a project is improperly divided into smaller parts to avoid a full environmental review. For example, if the lease agreement is evaluated separately from a larger development plan, the municipality risks missing potentially significant environmental impacts that could arise from the project as a whole. Conducting a thorough SEQRA review upfront helps municipalities identify and address potential environmental concerns, ensuring a more robust and legally defensible decision-making process. Declaring the Property as Surplus Under New York State law, a municipality cannot convey an interest in real property — including leasing public property to a private developer —unless it first determines that the land is no longer needed for public use. This is typically accomplished through a formal resolution by the municipal board. The resolution must clearly state that the property is surplus to municipal needs and is being considered for lease to a private party for renewable energy development. Compliance with Town Law § 64(2) In addition to SEQRA and the surplus property declaration, towns in New York State must comply with Section 64(2) of the Town Law, which governs the leasing of town-owned property. This section requires that any lease of town property be subject to a permissive referendum. This means that, after the town board passes a resolution approving the lease, the public has a period of time to petition for a referendum to approve or disapprove the lease agreement. Failing to adhere to this requirement can result in legal challenges and delays, potentially jeopardizing the project. Properly structuring the lease and ensuring full compliance with the permissive referendum process is crucial to the success of a renewable energy development on municipal land. Why You Need Experienced Legal Counsel Navigating the regulatory framework for leasing municipal property to private developers for renewable energy purposes is complex. From SEQRA compliance to declaring property as surplus and adhering to the requirements of Town Law § 64(2), each step involves legal risks that can potentially delay or derail a project. A knowledgeable attorney can assist with drafting resolutions, conducting SEQRA reviews, and ensuring that all procedural requirements are met, positioning the project for success. If your municipality is considering leasing property for renewable energy development, we are here to help you navigate the legal complexities and maximize the benefits of sustainable development. Please contact Mindy L. Zoghlin at 585-258-2871 or mzoghlin@underbergkessler.com or Jacob H. Zoghlin at 585-258-2834 or jzoghlin@underbergkessler.com .

We are pleased to announce that Leah Tarantino Cintineo , Partner and Chair of the Litigation  Department and the Family Law Practice Group, has been selected as President-Elect of the 2025-2026 Board of Directors of the Greater Rochester Association for Women Attorneys (GRAWA). A chapter of the Women's Bar Association of the State of New York (WBASNY), GRAWA's mission is to advance the status of women in society and the legal profession, promote fair and equal justice, and act as a united voice for its members on issues of statewide, national, and international significance. Leah represents clients in divorce and post-divorce matters, pre-nuptial agreements, high conflict child custody litigation, and child support litigation. She also has years of experience handling divorce matters involving businesses, complex financial issues, and extensive marital estates, as well as preparing QDROs for the division of retirement assets at the completion of a divorce. Leah is active in community and industry groups as a member of the Monroe County Bar Association and its Family Law Section and a member of the Ontario County Bar Association, where she recently served as President. In addition to being a GRAWA member for many years, Leah is a member of the Collaborative Law Association of the Rochester Area (CLARA), and she served for eight years on the Society for the Protection and Care of Children Board of Directors, including two years as Board Chair. A graduate of Albany Law School, Leah was selected as an Upstate New York Super Lawyers Rising Stars honoree from 2016-2023 and an Upstate New York Super Lawyers honoree in 2024. She was named to the 2024 Daily Record's  Power List in Litigation and both the 2022 and 2023 Daily Record's  Power 20 in Family Law lists. She was the 2022 recipient of The Daily Record  and Rochester Business Journal's Legal Excellence Award for Pro Bono Excellence and is a past recipient of the Rochester Business Journal’s  "Forty Under 40" Award. In addition, Leah was the 2017 recipient of the Honorable Michael F. Dillon Attorneys for Children Award for her work advocating for children in court proceedings and was a 2016 Rochester Business Alliance ATHENA Young Professional Award finalist.

We are pleased to announce that Ericka B. Elliott  and Andrew M. Washburn have been elected Partners of the Firm. “Ericka and Andrew have made significant contributions to our clients, to the collegial culture of our Firm, and to our community. I am happy to welcome them into our partnership,” said Patrick L. Cusato , Underberg & Kessler managing partner. “They are both exceptional attorneys who have consistently demonstrated professional excellence, as well as earned the trust and respect of their colleagues, peers, and clients.”   Ericka is a member of the Firm’s Creditors’ Rights , Health Care , Litigation , and Municipal Law  practice groups. She represents hospitals, physicians, nursing homes, home health agencies and other health care providers on issues ranging from risk management and patient care to collections and regulatory compliance. In her litigation practice, she helps small businesses, banks, and individuals with contract disputes, debtor/creditor issues, and corporate governance matters. In addition, Ericka represents municipal clients in litigation and advises on legislative, administrative, economic development, planning and zoning matters. Ericka is a member of the Monroe County Bar Association (MCBA), and the Greater Rochester Association for Women Attorneys (GRAWA), where she recently served as a Board member and Secretary. In 2023, she was selected to participate in MCBA’s inaugural class of The Leadership Academy and now serves on the Steering Committee for the Academy. She serves on several non-profit Boards of Directors, including Lifespan, St. Ann’s Foundation, and the WNY Rural Area Health Education Center. She served as the Board Chair for 13thirty Cancer Connect in 2024, serves on the Lima Joint Village/Town Planning Board, and is a volunteer with the Cornell Alumni Admissions Ambassador Network. Ericka was recognized in the 2025 edition of Best Lawyers: Ones to Watch in America ® for her work in Litigation-Labor & Employment in Rochester, NY. She was named a finalist in the 2024 Greater Rochester Chamber’s IGNITE Award’s program and was also named a 2024 Rochester Business Journal  Forty Under 40 honoree. In addition, Ericka is a 2023 and 2024 Upstate New York Super Lawyers Rising Stars honoree and received the 2023 Legal Excellence Award for Up and Coming Lawyers from The Daily Record  and Rochester Business Journal . Ericka earned her B.S. from Cornell University and her J.D. from University at Buffalo School of Law. Andrew is a member of our Commercial Lending , Creditors’ Rights , and Real Estate & Finance  practice groups. His practice is focused on commercial and residential real estate matters, representing both lending institutions and borrowers in a variety of transactions. He serves on the Board of Directors of the Webster Chamber of Commerce, is a member of the Women’s Council of REALTORS and Chair of the annual golf tournament, the Mortgage Bankers Association, Greater Rochester Association of REALTORS Young Professionals Network and serves on its Leadership Committee, and the RAC NYS Commercial Association of REALTORS. In 2024, Andrew graduated from the MCBA’s Leadership Academy program. He is the President of the Board of Directors of the Webster Soccer Association/Lakefront Soccer Club, one of the largest youth soccer organizations in New York State. Andrew was recognized in the 2025 edition of Best Lawyers: Ones to Watch in America ® for his work in 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.

Underberg & Kessler Partner Jacob H. Zoghlin and other local professionals shared their perspectives on the challenges in New York’s legal cannabis market and what they see as the biggest obstacles in a recent Rochester Business Journal article. “One of the biggest and most frustrating obstacles, because of how many of them there are and how much uncertainty they create, is the litigation,” said Jacob H. Zoghlin, an attorney and partner with Underberg & Kessler, who is also a member of the New York State Bar Association’s Cannabis Law Section, where he has chaired the Local Government Committee since 2022. Zoghlin says there has been a significant amount of litigation surrounding the cannabis system not just in New York, but throughout the country in states that have created regulatory systems to legalize either medical or adult-use cannabis. “Some of them have been really disruptive, particularly in New York,” Zoghlin said. “And they’ve been disruptive precisely because some of them have resulted in injunctions that have affected the entire market.” He does not anticipate 2025 will see an easing of litigation. “Fortunately, that’s what the attorneys are here for,” he said. “We are in a position of following along with these laws and the litigation so that we can advise people about what’s going on so that they have less uncertainty than they would have in a vacuum if they were going out of themselves.” Zoghlin also points to staffing within OCM and its Cannabis Control Board as a continued potential challenge in the year ahead, as well as uncertainty as to what direction the new Trump administration might go in terms of possibly rescheduling or de-scheduling cannabis. A positive is how the state’s focus on social equity in the cannabis space appears to be shaping up, Zoghlin said. Per OCM’s 2024 Annual Report, of the adult-use cannabis licenses approved to date, 54.1% were awarded to social and economic equity-eligible applicants, surpassing the Marihuana Regulation and Taxation Act’s goal of 50%. “A lot of states have tried to work on correcting historical injustices and tried to get licenses into the hands of people disproportionately impacted,” Zoghlin said. “And although there’s been a lot of litigation in New York, some of the reporting from the state has been that they have succeeded to a limited degree in getting the first round of licenses to those groups.” A member of U&K's Cannabis Law , Environmental , Litigation , Municipal Law , and Real Estate & Finance practice groups, Jacob counsels individuals, businesses, citizens’ groups, and municipalities on diverse environmental, land use, zoning, cannabis, energy, and municipal law matters. In his cannabis law practice, Jacob helps entrepreneurs grow their businesses the right way by navigating them through complex state and local requirements, advising them on license applications to the New York State Cannabis Control Board, assisting them with statutory and regulatory compliance, and helping them identify social equity benefits available under the Marihuana Regulations and Taxation Act. To view the full article, reprinted with permission from Rochester Business Journal , click here .

We are pleased to announce that Partner Jacob H. Zoghlin  has been appointed Chair of the firm’s Municipal Law  and Environmental Law  Practice Groups. “I am honored to take on these new roles at Underberg & Kessler and to continue advocating for our clients in these critical areas of law,” said Jacob. “Municipal and environmental legal matters have far-reaching implications, and I look forward to working with our team to provide innovative, effective solutions for our clients.” Jacob counsels municipalities, individuals, businesses, and citizens’ groups on diverse environmental, land use, zoning, cannabis, energy, and municipal law matters. As practice group chair, Jacob will lead a multi-disciplinary team dedicated to serving clients’ needs in these growing practice areas. Jacob is an active member of the New York State Bar Association and Monroe County Bar Association and is a prolific blogger on a variety of legal issues. He is a member of the New York State Bar Association’s Cannabis Law Section, where he has chaired the Local Government Committee since 2022. Jacob has received the Super Lawyers Rising Star Award every year since 2020 and has been recognized by Best Lawyers: Ones to Watch in America® since 2023. In 2021, Jacob received the Up and Coming Lawyers award in The Daily Record  and Rochester Business Journal’s  Legal Excellence Awards program. Jacob brings a wealth of experience to this new role, having served as practice group chair for both the Cannabis Law practice group and the Zoning and Land Use Law practice group at his prior law firm. Jacob graduated with a B.A. from Haverford College and earned his J.D., cum laude , from American University Washington College of Law.

In a significant legal development, the New York State Supreme Court has ruled that the Cannabis Control Board (CCB) and the Office of Cannabis Management (OCM) improperly denied a dispensary license to DNP-Z, Inc., based on a policy not properly promulgated under the State Administrative Procedure Act (SAPA). Background of the Case DNP-Z, Inc., owned by individuals who also control another licensed cannabis entity, DNP-Y, Inc., applied for a retail dispensary license in November 2023. The application was denied in June 2024, citing a policy that prohibited the issuance of more than one license per majority owner. This policy, adopted in May 2024, was not subjected to the formal rulemaking process required by SAPA, which includes public notice, comment periods, and impact analyses Court's Findings The heart of the case involved a rule that limited each majority owner to a single cannabis dispensary license. DNP-Z, Inc. was denied a license under this “one-license-per-majority-owner” policy. The problem? That policy wasn’t officially enacted through New York’s required rulemaking process, which is governed by SAPA. Under SAPA, state agencies must publish proposed rules, allow for public comment, and follow other procedural steps before adopting new regulations. In this instance, the state relied on internal guidance documents, not properly promulgated rules, to deny DNP-Z’s application. The court ruled this was improper. Agencies, New York State Supreme Court Justice Gerald W. Connolly emphasized, cannot enforce substantial restrictions on license eligibility without going through the formal rulemaking process. In other words: if it walks, talks, and acts like a rule, it must be treated like one. The recent ruling has put the brakes on how cannabis licenses are denied in the state — sending a strong message to regulators that shortcuts won’t cut it when it comes to rulemaking. In DNP-Z, Inc. v. New York State Cannabis Control Board et al.  (Index No. 908870-24), the court found that the CCB and OCM improperly denied a retail dispensary license based on internal guidance that was never formally adopted as a rule, that CCB's policy constituted a "rule" under SAPA, and that the Board failed to comply with the necessary procedural requirements before enforcing it. As a result, the denial of DNP-Z's license application was annulled, and the matter was remitted for a new determination based on valid procedures. Implications for the Cannabis Industry For applicants and municipalities alike, this decision could reshape how cannabis licensing works in New York — and underscores the importance of regulatory transparency and adherence to established procedures in this fast-growing industry. For cannabis entrepreneurs, this decision is a game-changer. It clarifies that significant eligibility criteria can’t be imposed in a vacuum or enforced through unpublished policies. Regulators must play by the rules — and follow SAPA — if they want their policies to hold up in court. For municipalities navigating cannabis-related zoning and land use decisions, the ruling is also significant. Local governments must coordinate with state licensing decisions, and clarity around what constitutes a valid, enforceable rule can help avoid unnecessary delays or denials for applicants working through local approvals. How Legal Counsel Can Assist This is not just a procedural issue — it’s a broader question of fairness and transparency. In a complex regulatory landscape like New York’s emerging cannabis market, predictability and due process matter. Businesses are investing time and money into compliance and deserve to know the standards they're being judged against. This ruling serves as a cautionary tale for state agencies: attempting to enforce policy through informal guidance, without public input or official procedures, won’t withstand judicial scrutiny. Navigating New York's cannabis regulatory framework is complex and evolving. Experienced legal counsel can provide guidance on compliance, assist with license applications, and represent clients in legal challenges. If you have questions about cannabis law, are navigating the cannabis licensing process, or are facing challenges with regulatory compliance, reach out to our team to learn how we can help. For more information about cannabis law in New York State, please contact Jacob H. Zoghlin  at 585-258-2834 or jzoghlin@underbergkessler.com  at Underberg & Kessler LLP.

The State of New York is moving forward with proposed regulations to implement the Renewables, Accelerated Permitting and Infrastructure Deployment (RAPID) Act, enacted in 2024. These regulations aim to consolidate and streamline the permitting process for major renewable energy and electric transmission projects under a new Article VIII of the Public Service Law (PSL). For municipalities, developers, and stakeholders navigating the intersection of land use, energy, and environmental regulation, these changes signal a pivotal shift in how large-scale energy projects will be permitted and reviewed. The draft regulations would implement the 2024 RAPID Act by bringing the permitting of large transmission facilities and large renewable generating facilities within one set of procedures. Previously, the permitting processes were separate: the New York State Public Service Commission (PSC) had jurisdiction over the permitting of transmission facilities whereas the Office of Renewable Energy Siting and Electric Transmission (ORES) had jurisdiction over the permitting of renewable generators. What the RAPID Act Does The RAPID Act restructures the permitting framework by: Transferring authority from ORES to a newly reconstituted office within the Department of Public Service (DPS), while retaining ORES’s streamlined permitting process. Creating a unified permitting scheme for both major renewable energy facilities (MREs) and major electric transmission facilities (METs), previously governed by Articles 10 and 7 respectively. Replacing the siting certificates under Articles 7 and 10  with a new “siting permit” process governed by Article VIII. Structure of the Proposed Regulations The proposed regulations are divided into three parts: Part 1100 – General Procedures: Establishes the procedural framework for all applications under Article VIII, including definitions, permit transfers, application completeness criteria, and hearing procedures​. Part 1101 – Major Renewable Energy Facility Siting:  Details pre-application requirements and application content for renewable projects, including rigorous requirements for wetlands, water resources, species protection, cultural and visual resources, and public engagement​. Part 1102 – Major Electric Transmission Facility Siting:  (Not detailed here but follows a parallel structure for transmission projects.) Key Legal and Regulatory Takeaways One-Stop Permitting Article VIII creates a “one-stop shop” for permitting MREs and METs. While state and local substantive laws still apply, all procedural requirements are preempted, and ORES may waive local laws deemed “unreasonably burdensome” when measured against the state’s climate targets (CLCPA goals)​. Tightened Timelines Permitting decisions must be made within one year of an application being deemed complete, bringing predictability for developers and requiring readiness from host municipalities and stakeholders​. Expanded Jurisdiction over Transmission Projects ORES now has authority to permit major electric transmission facilities, a function previously held by the PSC under Article VII. The RAPID Act requires the creation of uniform standards and conditions (USCs) for both generation and transmission projects by April 2025​. Enhanced Environmental Protections Applications must include detailed wetland and waterbody delineations, threatened and endangered species assessments, and pre-construction habitat and cultural resource surveys. These are required well before application submission, necessitating early planning and community engagement​. Community and Municipal Involvement Municipalities are afforded an opportunity to participate through formal statements of local law compliance, intervenor funding, and public hearings. However, the ability of municipalities to enforce local laws is curtailed if such laws conflict with climate policy objectives​. Automatic Approvals The draft regulations include an automatic permit approval provision that would grant a permit if ORES fails to timely decide the application. What This Means for Clients For project developers, this regulatory overhaul offers a more efficient permitting path—but demands early coordination and compliance with new environmental and procedural requirements. Developers with projects in the pipeline should evaluate whether to opt into Article VIII. For municipalities and landowners, it presents new procedural hurdles and the need to assert local concerns early and strategically. Municipalities should consider preparing now for an active role in the new process. Our Team’s Perspective As a firm focused on zoning, land use, energy, and environmental law, we see the RAPID Act as both a challenge and an opportunity for stakeholders across the spectrum. We are closely tracking the regulations and are available to assist clients in preparing for this new permitting landscape. If you have questions about the RAPID Act, its implementing regulations, or any other environmental 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  at Underberg & Kessler LLP.