In recent years, municipalities across New York—and the nation—have found themselves in the crosshairs of so-called “First Amendment auditors.” These self-styled activists visit government offices with cameras rolling, often without warning, claiming to test public officials’ respect for constitutional rights. In practice, their tactics often include baiting staff, provoking confrontations, and posting selectively edited videos online, sometimes leading to a deluge of hateful calls, emails, and even threats. These incidents are disruptive and stressful for staff, but they can also escalate into viral PR crises. Worse, if not handled correctly, they may expose a municipality to legal liability or public scrutiny. That’s why preparation is essential. What Is a “First Amendment Audit”? A “First Amendment audit” typically involves an individual entering a public building, often without identifying themselves, and filming interactions with staff and visitors. While the stated goal is to uphold free speech rights, the reality is frequently more confrontational. The auditor may aggressively assert a right to film in areas that are not, in fact, open to public expression. The footage is then shared on platforms like YouTube, where it is edited for maximum impact. This can lead to serious reputational harm, as well as an influx of online harassment. The Legal Landscape: What the Law Actually Says The First Amendment does indeed protect the right to film government officials in public spaces, like sidewalks or parks. But not all government property is a public forum. Areas like the interior of municipal buildings—including clerk’s offices, hallways, or meeting rooms—may be classified as nonpublic forums. In such spaces, municipalities have the right to enforce reasonable restrictions on behavior, including recording, so long as the rules are content-neutral and uniformly applied. In other words, just because a building is owned by the government doesn’t mean there’s an unrestricted right to film inside it. Best Practices for Municipalities To protect both staff and constitutional rights, municipalities should take proactive steps: 1. Adopt an Official Recording Policy Have your legislative body (city council, town board, or village board) adopt a formal policy on where and when recording is allowed. Without such a policy, enforcement becomes much riskier—and more prone to viral backlash. 2. Post Clear Signage Clearly identify public and restricted areas, and explicitly note where recording is not permitted. Signage should be professional, visible, and in compliance with your adopted policy. 3. Train Your Staff Staff should be calm, courteous, and informed. Panic or hostility is exactly what auditors are looking to provoke. Ensure staff know when to engage, when to disengage, and when to involve law enforcement. 4. Prepare Law Enforcement Coordinate with your local police department to make sure they are familiar with your policy and know how to respond. Removal may be warranted in some cases—but arrest or confrontation should be a last resort, and only where legally justified. 5. Consult Legal Counsel Every building, every policy, and every encounter is different. Experienced municipal counsel can help craft policies that are legally sound, defensible, and tailored to your facilities and operations. Why Legal Counsel Matters Handling a "First Amendment audit" is as much about legal compliance as it is about public relations. A knowledgeable municipal attorney will help ensure your policies are enforceable, your staff are protected, and your municipality avoids unnecessary liability or media fallout. Unfortunately, these confrontational encounters are becoming more common, not less. The best defense is preparation, education, and calm, consistent enforcement. If your municipality has not yet reviewed its public access and recording policies, now is the time. These “audits” are not going away—and failing to prepare is preparing to go viral for all the wrong reasons. If you have questions about so-called “First Amendment Audits,” how municipalities can prepare, or any other 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  at Underberg & Kessler LLP.

On December 26, 2024, New York Governor Kathy Hochul signed into law the Climate Change Superfund Act (the “Act”), a statute designed to hold fossil fuel companies financially accountable for their contributions to climate change. The Act   imposes strict liability based on environmental damage caused mainly by fossil fuel companies’ emission of greenhouse gasses and mandates that such major greenhouse gas emitters pay $75 billion over the next 25 years into a fund dedicated to climate adaptation and resilience projects across the state. The New York State Department of Environmental Conservation (NYSDEC) will then use the fund to pay for climate mitigation projects throughout New York, which will be identified through a statewide climate change adaptation master plan, which the NYSDEC will create within two years. The climate mitigation projects, for which such funds may be available, could include adapting transit, roads, water and sewage systems, buildings, or other important infrastructure. The Act may also create new compliance and reporting obligations for businesses engaged in fossil fuel production and distribution. Companies should be prepared to conduct internal audits, assess their exposure under the law, and explore potential legal defenses if they are targeted for payment under the new framework. The $75 billion in required payments will be distributed over 25 years, with individual companies expected to contribute based on their historical emissions data. While proponents argue that this will help fund necessary climate adaptation projects, industry groups warn that the financial burden could lead to higher energy costs for consumers and businesses. Some argue that companies may choose to pass these costs along to consumers, while others may reduce investments in energy infrastructure or shift operations outside of New York. The policy purpose behind the Act is to shift the financial burden of climate adaptation from taxpayers to the corporations most responsible for environmental degradation. Funds collected are intended to support critical infrastructure initiatives, including coastal protection and flood mitigation systems, enhancing the resilience of New York communities against climate-related events. The Climate Change Superfund Act is modeled after the federal Superfund legislation, which has been used for decades to hold companies responsible for environmental contamination. However, New York’s Climate Change Superfund Act differs in that it applies retroactively to greenhouse gas emissions, a novel legal approach that raises significant constitutional questions. Opponents argue that it violates the Commerce Clause by imposing penalties on companies that may not be based in New York but have historically sold fossil fuels in the state. Additionally, there is debate over whether the law conflicts with federal statutes such as the Clean Air Act, which grants the Environmental Protection Agency (EPA) authority over emissions regulation. Legal practitioners anticipate that courts will closely examine whether New York has the authority to impose climate-related liability in this manner. If upheld, the law could pave the way for similar measures in other states, potentially reshaping how environmental accountability is enforced across the country. However, the legislation has encountered significant opposition. On February 6, 2025, a coalition of 22 states led by West Virginia; several coal, oil, and gas trade associations; and a mining company, filed a lawsuit challenging the constitutionality of New York's Climate Change Superfund Act. They contend that the Act is unconstitutional, alleging it violates the Supremacy Clause, the Commerce Clause, and the Takings Clause of the U.S. Constitution. The plaintiffs argue that the law unfairly penalizes energy companies for past emissions that were lawful at the time and contend that it violates the U.S. Constitution and is preempted by the federal Clean Air Act. They also express concern that the financial obligations imposed by the Act could lead to substantial job losses within the energy sector. In response, New York officials, including Governor Kathy Hochul and Attorney General Letitia James have defended the legislation, emphasizing the necessity of holding corporate polluters accountable for the environmental and economic damages resulting from climate change. Governor Hochul's office stated that the law is intended to ensure that the costs associated with climate adaptation are borne by those who have significantly contributed to the problem, rather than by everyday New Yorkers. The outcome of this legal battle carries profound implications for environmental policy and corporate liability nationwide. As this situation unfolds, it is imperative for businesses operating within the energy sector and related industries to stay informed and assess the potential impacts on their operations. While it appears that New Jersey, Maryland, Massachusetts, and California have considered, or are now considering, similar legislation, as of the writing of this article, only Vermont has enacted a climate change superfund law similar to the New York State law discussed here. That law is also facing challenges. On December 30, 2024, the American Petroleum Institute (API) and the U.S. Chamber of Commerce filed a lawsuit in the U.S. District Court for Vermont, contesting the constitutionality of the state's Climate Superfund Act. Accordingly, the outcome of the New York and Vermont litigation may impact how other states choose to proceed, and how other courts respond, when confronted with such issues. Affected companies would therefore do well to monitor these cases and statutes closely, as they may have lasting and far-reaching consequences. Despite its challenges, the Climate Change Superfund Act may also present opportunities for companies to adapt and innovate. Businesses that proactively invest in clean energy technologies, carbon offset programs, and sustainable infrastructure may find themselves better positioned to navigate regulatory changes while also gaining a competitive edge. Additionally, companies facing potential liability under the Act may explore litigation options, negotiation strategies, or policy advocacy efforts to shape how the law is implemented and enforced. Regardless of your place in the market, one thing is clear: environmental and energy-related legislation is constantly changing, being reshaped by litigation, scientific advances, and shifting policy priorities. In this climate, staying informed and up to date on these changes is the first line of defense. Stay-tuned for our next article on developments in the environmental law landscape. 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, zoning and land use, and 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 .

On March 19, 2025, the White House issued an executive order titled Achieving Efficiency Through State and Local Preparedness , which aims to enhance the role of state and local governments in disaster preparedness and infrastructure resilience. The order focuses on localized decision-making, which could have implications for how towns and villages in New York plan for and respond to various challenges. Key Aspects of the Executive Order Increased Role for Local Authorities  – The order emphasizes that state and local governments are well-positioned to assess and address risks related to natural disasters, infrastructure vulnerabilities, and other potential hazards. Development of a National Resilience Strategy – A coordinated strategy is to be created within 90 days to help guide state and local governments in strengthening infrastructure and preparedness efforts. Creation of a National Risk Register  – This new framework will help catalog and assess risks to critical infrastructure, providing local governments with data to inform planning and resource allocation. Potential Impacts on New York’s Towns and Villages Greater Local Responsibility  – Municipalities may take on more responsibility for preparedness and infrastructure planning, requiring a thorough assessment of local risks and strategies. Budgetary and Resource Considerations  – With an increased focus on local decision-making, municipalities may need to evaluate funding strategies for preparedness initiatives. Opportunities for Regional Collaboration – The emphasis on state and local preparedness may encourage neighboring towns and villages to collaborate on shared challenges and resources. Navigating the Changes with Legal Guidance As local governments adjust to these shifts, understanding the legal and regulatory implications will be essential. Municipalities may benefit from legal counsel to help: Interpret New Policies  – Ensuring compliance with federal and state guidelines. Develop Local Preparedness Plans  – Creating policies and regulations that align with the order’s objectives. Secure Funding and Resources – Identifying potential funding opportunities for infrastructure and disaster preparedness efforts. With informed planning and strategic legal guidance, municipalities can adapt to evolving policies while continuing to serve their communities effectively. For guidance on how these proposed changes may affect your community, contact an experienced municipal attorney today. Our team can help you navigate the regulatory process, ensure compliance, and advocate for your interests. If you have questions about local preparedness or any municipal , environmental, zoning, or land use  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.

On February 18, 2025, a federal judge in the Eastern District of Texas lifted the preliminary injunction that was the last legal block to the Treasury Department’s Financial Crimes Enforcement Network’s (“FinCEN”) enforcement of the Corporate Transparency Act’s (“CTA”) reporting requirements. The Department of Treasury announced a new filing deadline of March 21, 2025, which is applicable to companies that had reporting deadlines prior to the new deadline. Any company subject to a deadline that is later than March 21, 2025, will still be able to file up until that later deadline. For a bit of background, the CTA, which took effect on January 1, 2024, attempts to hinder money laundering, tax fraud, terrorism financing, and other financial crimes through shell or front companies. It requires certain entities to report beneficial ownership information to the U.S. FinCEN. The entities required to report under the CTA include corporations and LLCs, in addition to various other business entities created by filing a document with a secretary of state or any similar office under the law. There are twenty-three categories of entities that are exempt from the reporting requirement. Examples of entities that are not required include banks, credit unions, and tax-exempt entities registered with the IRS. If you have questions regarding the CTA, please contact Joshua B. Beisker at 585-258-2879 or jbeisker@underbergkessler.com.

Q: One of my employees has recently been diagnosed with cancer. What legal documents, advice, and plans do you recommend to help her prepare for the future? A: Estate planning can provide peace of mind and help create the proper documents to protect your employee’s loved ones during this challenging time. An important first step is speaking with a qualified estate planning attorney who can assist them with creating a comprehensive plan, so they can focus on healing and taking care of themselves. While it's important to consult with an estate planning attorney to tailor each of the following documents to an individual’s specific needs and circumstances, here are some key legal documents to consider: 1. Last Will and Testament Purpose: A Last Will and Testament is a document that specifies how your assets will be distributed upon your death. You can name beneficiaries for your property, choose guardians for minor children, and designate an executor who will carry out your wishes. The Will can be revised during your lifetime, provided you have the requisite capacity to do so. If a person passes away without a Will and retains assets solely in his/her name alone at death with no designated beneficiary named for said assets, then the laws of intestacy will apply and your assets will be divided between certain family members, despite the fact that the decedent may not have wanted his/her assets to be distributed in that manner. If the decedent had no family, then it is a possibility that the state of New York could inherit the decedent’s estate. 2. Health Care Proxy with HIPAA Authorization Purpose: A Health Care Proxy designates someone (your agent) to make medical decisions on your behalf if you are unable to make them yourself due to illness or incapacity. This document is critical if you are unable to communicate your wishes. It can also authorize individuals (like your family members or healthcare agents) to access your medical information. Without this, even your family may not be able to get information about your condition from your doctors. Having an agent who can make decisions that reflect your wishes and interests, such as choosing or stopping treatments, can best ensure that you receive the type of care that you desire. Further, it can help prevent conflicts between family members or medical professionals. If a person becomes incapacitated and can no longer make his/her medical decisions and he/she does not have a valid health care proxy, then it will be necessary to petition the court to assign a court appointed guardian to make such medical decisions. A guardianship hearing can be both costly and prolonged. 3. Living Will (Advance Directive) Purpose: The Living Will outlines your preferences for end-of-life care, such as whether you want life-sustaining treatments (e.g., mechanical ventilation or resuscitation) if you are terminally ill or in a coma. This can be part of your health care proxy or a separate document. This document helps prevent any confusion among your loved ones and healthcare providers about your wishes. 4. Durable Power of Attorney for Financial Matters Purpose: The Power of Attorney appoints someone (your agent) to handle your financial matters, such as paying bills or managing investments, if you become incapacitated. This can be extremely beneficial since the agent of a POA will be given legal authority to act on behalf of the POA principal and can assist if the principal becomes incapacitated or is unavailable and ensure that the principal’s assets and finances are protected. Further, having a valid POA can aid in avoiding a costly and prolonged guardianship proceeding, as discussed above. 5. Beneficiary Designations Purpose: Many assets like life insurance policies, retirement accounts and bank accounts allow you to designate beneficiaries directly. These designations supersede any instructions in your Will or trust. It is prudent to make sure your beneficiary designations are up to date and reflect your current intentions. Sometimes these documents are overlooked. If a named beneficiary is designated to receive assets, then at a principal’s death, the assets will avoid probate and pass directly from the decedent to the named beneficiary in an expeditious and streamlined manner. It is important to note, however, that if a person is named as a designated beneficiary, that will trump what is said in a decedent’s Will, so for example, if a decedent desires for proceeds of a life insurance policy to pass equally to her children – A, B, and C – but she desires for C’s share to pass into a trust established under her Will, then this will have to be imparted on the beneficiary designation form as well. If the beneficiary designate form simply names Child C as a beneficiary of a life insurance policy, then the proceeds will pass to Child C outright, despite the decedent’s intent for the proceeds to pass to the trust established under the Will. 6. Revocable Living Trust (Optional) Purpose: A revocable living trust allows you to transfer your assets to a trust while you are still alive, enabling your successor trustee to manage and distribute your assets without going through probate. This can be particularly helpful if you want to avoid probate or ensure your assets are handled in a specific manner, but it requires more maintenance and can be more complex to set up than a Will. Revocable trusts are generally private, as their contents stay between the donor, their trustee, and the beneficiaries of the trust. They do not require a court to accept their validity and family members (in the absence of litigation) have no access to what you left other beneficiaries. They generally avoid the probate process and can sometimes be an effective way of preventing family conflict. 7. Letter of Instruction (Optional) Purpose: This informal document can provide additional guidance to your loved ones about how you want your affairs handled. It can include information about funeral arrangements, where important documents are kept, and other personal matters not covered by formal legal documents. This document is not legally binding but can be very helpful to your loved ones. 8. Funeral or Memorial Instructions (Optional) Purpose: These instructions specify your preferences for your funeral or memorial service. While this is typically not legally binding, it can relieve your family from having to make these decisions at an emotional time. You might include details like burial or cremation preferences, whether you'd like an obituary, or what type of service you want. Reprinted with permission from the 2025 February/March issue of The Bulletin from the Monroe County Medical Society and available as a PDF file here . Joshua B. Beisker is a Partner in Underberg & Kessler LLP’s Estates & Trusts , Corporate & Business , and Tax Law practice groups. He focuses his practice on complex estate planning and estate administration matters. He also provides counsel to businesses on tax and succession planning, general corporate governance, and achieving tax efficiencies. Joshua can be reached at jbeisker@underbergkessler.com or 585.258.2879.

The New York State Department of Environmental Conservation (NYSDEC) has released five new draft general permits and two updated general permits for activities in state-regulated freshwater wetlands, wetland adjacent areas, protected waterbodies, and navigable waters. These permits aim to streamline the regulatory process following recently updated wetlands regulations that took effect on January 1, 2025. The NYSDEC is accepting public comments on the following proposed general permits until March 14, 2025: Community-Scale Solar Energy Installations General Permit (GP-0-25-004) Electric Utility Right of Way Maintenance and Repair General Permit (GP-0-25-005) Housing Development Freshwater Wetlands General Permit (GP-0-25-006) Lake Shorelines Freshwater Wetlands General Permit (GP-0-25-007) Natural Gas Utility Right of Way Maintenance General Permit (GP-0-25-009) Modification of Management of Invasive Species General Permit (GP-0-25-008) Modification of Stream Crossings for Timber Harvesting General Permits (GP-0-23-004 and GP-0-23-005) Who Benefits and Who May Be Impacted? These proposed general permits offer a more structured approach for industries and individuals engaging in activities that impact wetlands. Renewable energy developers  could benefit from the Community-Scale Solar Energy   Installations Permit,  which provides clear guidelines for site preparation, vegetation clearing, and wetland mitigation. Utility companies  maintaining electric and natural gas infrastructure may see more efficiency in securing approvals for routine maintenance and upgrades under the proposed right-of-way maintenance permits. Developers and property owners  pursuing housing projects will need to carefully assess the Housing Development General Permit , which authorizes construction activities but imposes mitigation requirements for unavoidable wetland impacts. Environmental advocates and conservationists  may be concerned about potential increased disturbances to wetland ecosystems, particularly regarding smaller but ecologically significant wetlands now classified under the updated regulations. How an Environmental Attorney Can Help Navigating wetlands regulations can be complex, and while these general permits are designed to streamline approvals, they also introduce new compliance requirements. An environmental attorney can help by: Assessing project impacts  and determining whether a proposed activity qualifies under a general permit or requires an individual permit. Preparing and submitting permit applications  to ensure compliance with NYSDEC regulations and mitigation requirements. Advising on wetland jurisdictional determinations , including whether a project falls under NYSDEC oversight. Representing stakeholders  in the public comment process, ensuring that concerns are effectively communicated to regulators. Appealing jurisdictional determinations or permit decisions  if a project is improperly classified or denied approval. Take Action Before the Deadline If your project involves wetlands or protected waterbodies, now is the time to review these proposed regulations and evaluate their potential impact. The public comment period, which ends on March 14, 2025, offers an opportunity to voice support, raise concerns, or seek clarifications. For guidance on how these proposed changes may affect your business or property, or to submit comments to the NYSDEC, contact an experienced environmental attorney today. Our team can help you navigate the regulatory process, ensure compliance, and advocate for your interests. If you have questions about freshwater wetland regulation or any environmental, zoning, or land use  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.

In 2022, Governor Kathy Hochul signed the Environmental Justice Siting Law, also known as the "Cumulative Impacts Law," to address environmental burdens in disadvantaged communities across New York State. This legislation mandates that state agencies consider the cumulative environmental impacts on these communities when reviewing projects. To implement this directive, the New York State Department of Environmental Conservation (NYSDEC) has proposed amendments to the State Environmental Quality Review Act (SEQRA) regulations. The public comment period on the proposed amendments began on January 29, 2025. NYSDEC will accept written comments until May 7, 2025. Understanding SEQRA SEQRA is a framework that requires state and local agencies to assess the environmental consequences of their actions, including issuing permits/approvals, funding projects, or directly undertaking activities. The goal is to identify and mitigate significant environmental impacts before decisions are made. Key Changes in the Draft Amendments The proposed amendments to SEQRA aim to integrate considerations from the Environmental Justice Siting Law. Notably, they require agencies to evaluate whether a proposed action may cause or increase a disproportionate pollution burden on disadvantaged communities. This involves assessing both existing and potential environmental burdens, as well as socioeconomic vulnerabilities. Additionally, the amendments propose streamlining SEQRA reviews for certain small-scale, multi-family housing developments by classifying certain projects as "Type II" actions, meaning they are not subject to SEQRA review, provided they meet specific conditions to ensure compatibility with surrounding neighborhoods. Implications for Communities and Developers For disadvantaged communities, these amendments offer a mechanism to ensure that new projects do not exacerbate existing environmental challenges. By requiring a thorough analysis of cumulative impacts, the regulations aim to promote environmental justice and protect vulnerable populations. Developers and municipalities will need to navigate these new requirements carefully. Projects located within or near disadvantaged communities will require a more detailed environmental assessment to determine potential disproportionate impacts. However, the streamlined process for qualifying housing developments may expedite approvals, supporting the state's broader housing objectives. The Role of Environmental Attorneys Navigating the evolving landscape of environmental regulations can be complex. An experienced environmental attorney can provide invaluable assistance by: Interpreting Regulatory Changes: Offering clarity on how the new SEQRA amendments apply to specific projects. Conducting Impact Assessments: Working with subject matter professionals to assist in evaluating potential environmental and socioeconomic impacts on disadvantaged communities. Facilitating Compliance: Guiding developers and municipalities through the SEQRA process to ensure adherence to the latest requirements. Advocating for Communities: Representing the interests of communities affected by proposed developments, ensuring their voices are heard in the decision-making process. If you find yourself involved in or affected by an “action” or have concerns about whether the environmental review is being conducted properly, make sure you contact an experienced attorney who can help. This is especially important in SEQRA cases because the timeline for bringing such claims in court is very short, and the law and regulations affecting SEQRA have recently changed. We will continue to monitor the progress of the draft amendments and keep you informed regarding the impact on all stakeholders. If you have questions about environmental reviews in NYS (such as SEQRA) or any environmental, zoning, or land use 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.

In recent blog posts, we have provided updates on the fits and starts of the Corporate Transparency Act (CTA or Act). Since the CTA went into effect on January 1, 2024, the courts have gone back and forth on the constitutionality of the Act. Last week, the U.S. Supreme Court put the CTA back on the books by lifting an injunction against enforcement of the CTA imposed by the U.S. District Court of the Eastern District of Texas in Texas Top Cop Shop v. McHenry . This clears a way for the government to move ahead with enforcement until oral arguments in the U.S. Court of Appeals for the Fifth Circuit in late March. However, because a separate order issued by a different federal judge in Texas ( Smith v. U.S. Department of the Treasury ) remains in place, reporting obligations are currently suspended. The Treasury Department’s Financial Crimes Enforcement Network (FinCEN) clarified on their website on January 24, 2025, that registration is still voluntary: "In light of a recent federal court order, reporting companies are not currently required to file beneficial ownership information with FinCEN and are not subject to liability if they fail to do so while the order remains in force.” Businesses should continue to monitor this situation closely since it is possible courts could pave a path for the government to proceed with enforcement of the CTA. It’s equally possible, however, that the courts could overturn it or that Congress could act to repeal it. Further, it remains to be seen which way President Trump, who opposed the Act during his first term, will swing the pendulum. We will continue to monitor further court decisions and guidance provided by FinCEN in response to the latest decision. If you have questions regarding the CTA, please contact Joshua B. Beiske r at 585-258-2879 or jbeisker@underbergkessler.com .

On December 3, 2024, a federal district court in the case of Texas Top Cop Shop, Inc. v. Garland , No. 4:24-CV-478, entered an order enjoining enforcement of the Corporate Transparency Act (“CTA”) and its corresponding reporting rule.  The Government appealed, and on December 23, 2024, a motions panel of the U.S. Court of Appeals for the Fifth Circuit granted the Government’s emergency motion for a stay pending appeal. On December 26, 2024, the Fifth Circuit vacated the stay that had been issued by the motions panel that had lifted the preliminary nationwide injunction. As a result, the CTA’s beneficial ownership information (“BOI”) reporting requirements are back to being voluntary, pending the appeal, which the court confirmed remains expedited. In response, FinCEN has added the following alert on its website:  In light of a recent federal court order, reporting companies are not currently required to file beneficial ownership information with FinCEN and are not subject to liability if they fail to do so while the order remains in force. However, reporting companies may continue to voluntarily submit beneficial ownership information reports. Despite the injunction, reporting companies are permitted to continue to voluntarily submit beneficial ownership information reports, and individuals are permitted to voluntarily obtain FinCEN identifier numbers and file with FinCEN updated or corrected information in applications for FinCEN identifier numbers. Though the timeframe for the Fifth Circuit’s consideration of the issues and an eventual final decision regarding the disposition of the CTA is uncertain, reporting companies should continue to monitor proceedings in the litigation and further guidance issued by FinCEN. If you have questions regarding the CTA and the reporting requirements, please contact Joshua B. Beisker at 585-258-2879 or jbeisker@underbergkessler.com .

In December 2024, the Rochester City Council passed a landmark piece of legislation that will have significant implications for both landlords and tenants within the City of Rochester. The Good Cause Eviction (“GCE”) law was approved to protect tenants from arbitrary eviction and ensure greater stability in rental housing. Rochester now joins a growing list of municipalities across New York State that have adopted tenant protections, a trend initiated by similar legislation passed in the New York City metro area. This law, originally signed by Governor Kathy Hochul in April 2024, marks a significant shift in housing policy, expanding protections to upstate New York municipalities like Rochester. Prior to this change, laws such as rent stabilization and good cause eviction protections were only applicable to New York City and its suburbs. With the passing of the GCE law in Rochester, many other cities in New York State, including Albany, Beacon, and Ithaca, have also adopted similar measures, demonstrating the growing momentum behind protecting tenant rights in the region. Understanding the Key Provisions of the Good Cause Eviction Law At its core, the GCE law aims to provide tenants with more stability and security by restricting landlords’ ability to impose unreasonable rent increases and evict tenants without just cause. Below are some of the most important elements of the law: Rent Increase Limitations : The GCE law imposes strict limits on rent increases, capping them at either 10% or 5% plus the Consumer Price Index (“CPI”), whichever is lower. This cap will prevent landlords from imposing excessive rent hikes, providing tenants with a predictable and stable cost of living. Landlords must be mindful of these limitations when renewing leases or adjusting rent.    Right to Renew Leases for Tenants in Good Standing : One of the primary protections afforded by the GCE law is the tenant’s right to renew their lease, provided they have complied with the terms of the lease agreement and have not violated any rules. This gives tenants greater peace of mind, knowing that they are not at risk of eviction simply because their landlord chooses not to renew the lease.   Grounds for Eviction : While the GCE law limits evictions in many cases, it does still allow for eviction under specific conditions. These include: Nonpayment of rent Violation of a substantial lease term Committing or permitting a nuisance Using the premises for illegal activities Unreasonably denying the landlord access to the unit for repairs or showing the property The landlord’s desire to demolish the unit or convert it into owner-occupied housing Withdrawal of the unit from the rental market The tenant’s refusal to agree to reasonable lease changes upon renewal For landlords, it is crucial to be fully aware of these permissible eviction grounds, as any eviction outside of these specific reasons may be subject to legal challenge under the GCE law. Exemptions from Good Cause Eviction Protections : The GCE law includes several exemptions that landlords should be mindful of. Properties may not be subject to the GCE protections if they meet one or more of the following criteria: Small Landlords : Landlords who own no more than 10 rental properties may be exempt from the law’s provisions, as defined by the state statute. Owner-Occupied Properties : Units in buildings that are owner-occupied with no more than 10 rental units may be exempt. Government-Regulated Housing : Properties subject to rent regulation or affordable housing programs may also be exempt from the GCE law. Seasonal or Transient Housing : Properties used for seasonal purposes, such as summer homes or transient hotel units, are also excluded from the law. Higher Rent Properties : Units with a monthly rent that exceeds 245% of the fair market rent, as published by the U.S. Department of Housing and Urban Development, are exempt. Implications for Landlords in Rochester For property owners, the passage of the GCE law presents several challenges and requires immediate attention to ensure compliance with the new regulations. Here are key considerations for landlords: Lease Renewal and Rent Increases : Landlords will need to carefully review all current leases and any planned renewals. Given the rent increase limitations, landlords may need to adjust their rent-setting practices to stay within the prescribed cap, taking into account the CPI. Additionally, any rent increases above the limit could result in legal disputes with tenants.   Eviction Procedures : Landlords should be prepared to prove valid grounds for eviction. If a tenant challenges an eviction, the landlord may need to demonstrate that the cause for eviction falls within the permissible grounds outlined by the GCE law. Nonpayment, substantial violations, and nuisance are the most common eviction grounds, but landlords should keep thorough records to support any legal action.   Notice Compliance : Under GCE, landlords will be required to provide written notice regarding the applicability of the law to their rental unit. This notice must specify whether the property is subject to the protections of GCE, and if exempt, must state the reason for the exemption, such as small landlords owning fewer than 10 rental units. Implications for Tenants in Rochester For tenants, the GCE law represents a major step forward in housing stability and fairness. Tenants are now afforded enhanced protections against arbitrary eviction and unreasonable rent hikes, making it more difficult for landlords to disrupt their living arrangements. Increased Lease Security : The right to renew a lease in good standing is one of the most significant benefits for tenants under the GCE law. Tenants now have greater assurance that they will not face eviction or the loss of housing unless there is a valid reason, thus promoting long-term stability.   Rent Protection : The law provides tenants with protection against sudden and excessive rent increases, which have become a growing concern in many rental markets. The cap on rent hikes ensures that tenants’ rent remains in line with broader economic trends, offering a crucial safeguard against financial instability. Moving Forward: Compliance and Practical Considerations As Rochester prepares for the full implementation of the GCE law, it is essential for both landlords and tenants to fully understand their rights and obligations. For landlords, this means revisiting lease agreements, updating rent policies, and ensuring compliance with the new rules on eviction grounds and exemptions. Tenants should familiarize themselves with their rights under the law to ensure they are not subject to unjust eviction or rent increases. Whether you are a landlord seeking to ensure compliance with the GCE law or a tenant who needs guidance on your newly granted rights, we are ready to help. Please contact Kyle C. Pittman or any of our Real Estate & Finance attorneys with questions at (585) 258-2800 or visit underbergkessler.com to schedule a consultation.

We are pleased to announce that attorneys Mindy L. Zoghlin , Jacob H. Zoghlin , and paralegal Julie Wallace from The Zoghlin Group will be joining the Firm effective January 1, 2025. The additions will increase the Firm’s environmental, land use, zoning, renewable energy, cannabis, mediation, and municipal law capabilities. “We are excited to welcome Mindy, Jacob, and Julie to Underberg & Kessler and to provide our clients with a deeper bench of talent,” said Underberg & Kessler’s Managing Partner Patrick L. Cusato . “The expansion compliments our environmental, municipal, and land use capabilities and enhances our ability to meet clients’ ever-evolving needs, with a shared commitment to delivering the highest quality, cost-effective legal services,” added Leah Tarantino Cintineo , Chair of the Litigation Department.   Formed in 2016 by Mindy L. Zoghlin, The Zoghlin Group has a successful statewide practice navigating clients through statutory and regulatory requirements and applying for relevant licenses and approvals from state and local authorities. Mindy Zoghlin, joining as Senior Counsel, represents municipalities, individuals, small businesses, developers, and citizens’ groups in a wide range of environmental and land use matters, including Article 78 proceedings, zoning and regulatory permitting proceedings, toxic tort, and property damage cases. Her practice includes litigating in state and federal courts and counseling clients on minimizing and/or avoiding litigation risks. Mindy offers mediation services in zoning, land use, environmental, and municipal law matters. In 2018, Mindy received The Daily Record’s  Excellence in Law/Top Women in Law award. She has been recognized by Super Lawyers as a Top Rated “Land Use & Zoning Attorney” in Rochester, New York since 2017. Mindy graduated from Brandeis University with a B.A. and earned her J.D. from University at Buffalo School of Law. Partner Jacob Zoghlin’s practice is focused on environmental, zoning, land use, cannabis, energy, and municipal law. He counsels individuals, businesses, and municipalities. 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  every year 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. He graduated with a B.A. from Haverford College and earned his J.D., cum laude , from American University Washington College of Law. Julie Wallace joins U&K as a Paralegal in the Litigation Department. She has extensive experience supporting attorneys at all stages of legal challenges, from administrative proceedings to trials and appeals.  At The Zoghlin Group, Julie identified and implemented project management software that significantly improved workflow efficiency, enabling the team to dedicate more time to client needs. She earned a Certificate for Legal Office Management from the Center for Workforce Development in 2017, and she is a 2022 Daily Record  and Rochester Business Journal’s  Legal Excellence Awards program recipient in the Paralegal category.

With over 60% of the vote, New York’s Proposal 1 (“Prop 1”), also known as the Amendment to Protect Against Unequal Treatment and the Equal Rights Amendment, passed this election year. In doing so, the New York Constitution will expand to protect more specified classes, including sex, sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy. The text of Prop 1 reads as follows: “§ 11.  a.   No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color,  ethnicity, national origin, age, disability,  creed [ or ] ,  religion,  or sex, including sexual orientation, gender identity, gender   expression, pregnancy, pregnancy outcomes, and reproductive healthcare   and autonomy,   be subjected to any discrimination in [ his or her ]  their   civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state , pursuant to law . b. Nothing in this section shall invalidate or prevent the adoption of any law, regulation, program, or practice that is designed to prevent or dismantle discrimination on the basis of a characteristic listed in this section, nor shall any characteristic listed in this section be interpreted to interfere with, limit, or deny the civil rights of any person based upon any other characteristic identified in this section.   (Explanation – Matter in underscored is new; matter in brackets [ ] is old law to be omitted.) Prior to this amendment, New York State had passed statutes protecting similar classes of individuals. In 2003, the Sexual Orientation Non-Discrimination Act (“SONDA”) became effective, which protected individuals targeted based on their actual or perceived sexual orientation in, among other areas, their employment, private and public housing accommodations, and admission to education institutions. In 2015, the New York State Human Rights Law (“HRL”) was amended to make clear that failure to provide reasonable accommodation for pregnancy-related conditions is a form of disability discrimination. In January 2019, the HRL was amended to protect individuals to provide protection on the basis of gender identity and expression. With all of these protections already in place, it would make sense to ask, what difference does the implementation of Prop 1 make in terms of protections against discrimination in New York State? The answer: Prop 1 will likely not affect the protections already afforded under New York State statutes. However, as with the federal government, adding an amendment to the New York State Constitution creates increased stability and security for its provisions. In order to make a change to the New York State Constitution, the proposed amendment must be approved by both the Senate and Assembly in two separate sessions. While certainly not an impossible process, altering the New York State Constitution is certainly more difficult and time consuming than altering a statute. Essentially, the discrimination protections afforded by the HRL, its subsequent amendments, and other statutes like SONDA, are now encompassed in New York’s highest governing legal document. Just as your right to freedom of speech is protected under the First Amendment to the United States Constitution, your right to be discriminated against under any one of the seven specifically protected classes and the six subcategories, is now protected in New York under its Constitution. However, the protections afforded under Prop 1 are more narrowly limited as compared to the protections detailed in the HRL. One key consideration is that in adding an amendment to the New York State Constitution, the way in which it will be applied is soon to be interpreted by the courts, including the New York State Court of Appeals. Some argue that a state constitutional protection against age discrimination will result in efforts to lower things such as the drinking age or age required to obtain a driver’s license. However, there has been no evidence in New York, or any other state’s history to suggest such a possibility. Susan Cersovsky, co-chair of the Sex & Law Committee at the New York City Bar Association stated as much, saying that there are cases addressing “age protections in [other] state constitutions . . . and the courts have found that the government maintains an interest in regulating public health and welfare.” There have also been concerns raised about changes in voting eligibility for non-citizens as a result of the passage of Prop 1. However, there has likewise been no confirmation to that theory either in United States history or New York history. There is no language in Prop 1 that discusses voting eligibility or any change in necessary qualifications. In fact, Article II, Section I of the New York State Constitution, already explicitly defines the qualifications required to vote and has not been amended since 1995. Either way, any challenge brought on this basis would be weighed by the courts, as all constitutional challenges are, and would likely find that non-citizens are still bound by Article II, Section I of the New York State Constitution. In conclusion, while Prop 1 does not introduce new discrimination protections in New York State, it plays a crucial role in solidifying the state's commitment to equality by embedding these protections into its highest legal framework. By enshrining the rights to protection against discrimination based on sex, sexual orientation, gender identity, pregnancy, and more into the New York State Constitution, the amendment ensures greater stability and legal security for these rights. Although its impact on the existing statutes may be minimal, Prop 1’s passage represents a significant step in reinforcing the state's dedication to civil rights and equal treatment for all. Edward D. Passero is an Associate in Underberg & Kessler LLP’s Litigation and Family Law practice groups. Edward is a former Appellate Court attorney who represents businesses, organizations, and individuals in litigation, negotiation, and mediation. He can be reached at epassero@underbergkessler.com . Reprinted with permission from The Daily Record and available as a PDF file here .