Underberg & Kessler LLP has been named a 2017 Rochester Tier 1 “Best Law Firm” by U.S. News - Best Lawyers®. The firm’s real estate, municipal law and corporate practices were included in the top tier rankings of Rochester law firms.  The “Best Law Firms” are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a ranking signals a unique combination of quality law practice and breadth of legal expertise. The U.S. News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Have you ever had one of those dreams that you are winning a game show? “Alex, let’s go with ‘Publish or Perish in the Courtroom’ for $1,000.” Your heart races with excitement as Alex announces: “this answer is a Daily Double!” “Is meaningless until published”, Alex says. Your hand smashes down onto the red button as you shout: “What is a verdict?!” The applause of the studio audience fills your dreamy ears. Now, before you go collecting on your imaginary winnings, what does it mean to publish a verdict? The correct answer to this question could save you from the real life jeopardy of calling your carrier to report malpractice. The answer is not in the CPLR where you might expect. CPLR Rule 4112 Entry of a Verdict says: When the jury renders a verdict, the clerk shall make an entry in his minutes specifying the time and place of the trial, the names of the jurors and witnesses, the general verdict and any answers to written interrogatories . . .[.] The statute certainly does not help you in a real situation like this: Say that your client is one of two defendants at trial. This is a big client. Millions of dollars are at stake. During deliberations, the jury asks for a calculator. Beads of sweat appear on the foreheads of your client ant the co-defendant. The co-defendant caves and offers the whole policy to settle. You and your client remain steadfast and refuse to settle. Plaintiff’s counsel reports to the court that “we are settled.” Before the judge realizes that only one defendant has settled, the jury is called back into the courtroom and the judge tells the jury that the parties have reached a settlement. Plaintiff’s counsel quickly corrects the record that a settlement was only reached with one defendant. So the judge asks the jury if they had completed their verdict sheet for your client. After the jury reports that they had, the judge asks to see the verdict sheet, reads it and then reports that the jury unanimously found no cause for action on behalf of your client. Before the judge thanks the jury and sends them home, the verdict sheet is entered into the minutes of the proceedings and a copy is given to the parties. So now comes the Double Jeopardy question of your career: Has the jury properly rendered a defense verdict for your client pursuant to CPLR Rule 4112? If you answered “No”, you would be correct. But, you only saved yourself from malpractice if you also turned yourself into one of those really annoying know-it-alls, and instructed the judge to properly publish the verdict, embarrassing the judge in front of all whose opinions a judge holds dear. The confusing part is that CPLR Rule 4112 doesn’t say anything about a verdict being published to be properly rendered. So you might be rebuffed by the judge. But, hold your ground. According to the common law upon which CPLR Rule 4112 rests, for a verdict to be ‘rendered’ it must be properly published and that means three very specific things: (1) that the verdict be published by having been declared in open court by the jury (not the judge); (2) that the parties be permitted to, or that they waive, polling of each juror as to their verdict (i.e., asking that each juror publish the verdict individually); and (3) that the verdict be entered by the clerk of the court in the minutes of the proceedings. So, in our imaginary trial, you would have had to insist that the judge return the verdict sheet to the foreman. Even though the judge had already read the verdict sheet to everyone, the foreman must still read the verdict sheet out loud, in open court. You must then make sure that the judge offers to have the jury polled so that the losing party cannot later invalidate the verdict by claiming that s/he was deprived of the right to poll the jury. Polling requires that each juror verbally assent to the verdict which had been read aloud. It is not enough for the judge to look at the verdict sheet and report that all the jurors signed the verdict sheet. It is not enough for the judge to globally ask the whole panel if they all agree to the verdict. After the jury has been polled, or polling has been waived, then the judge can have the verdict sheet marked and filed with the minutes of the trial proceedings. Absent the fulfillment of each of these elements, a verdict is not published and no verdict has been rendered. You cannot enforce a judgement for the defense. You cannot collect on a bill of costs. You cannot compel the plaintiff to sign a stipulation of discontinuance. In fact, your client could be looking at a brand new trial. And that would make any trial lawyer wish they were dead. So, remember: Publish or Perish! Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

On December 16, 2015, the New York State Court of Appeals issued a decision that has important implications for medical malpractice liability. In Davis v. South Nassau Communities Hospital, the Court held that treating physicians and hospitals owe third parties a duty to warn patients of the risks or side effects associated with medications. In this case, the physicians at the hospital administered medication to a patient that had the potential to impair her ability to safely operate an automobile. The patient subsequently drove away from the hospital and, allegedly impaired by the medication she received, caused an accident with Davis, who sustained injury. Davis sued the physicians and the hospital for medical malpractice for failing to warn the patient of the side effects of administered medication. Although the Court admonishes readers against interpreting this decision as an erosion of the prevailing New York principle that a physician’s duty of care does not extend beyond the patient to the community at-large, this belies the actual effect of the decision. In fact, the decision expands the potential pool of litigants who can sue a physician for malpractice. Specifically, unknown third parties with whom the physician has no doctor-patient relationship now have standing to sue if they have been injured by the physician’s patient. In our view, this case illustrates a shift from prior New York case law which required a direct relationship between the doctor and the patient before a valid medical malpractice action could arise. The Court also argues that its decision imposes no additional obligation on a physician who administers medication to a patient. This argument, however, overlooks the increased burden upon the provider to carefully document the specific warning to the patient, since one has to assume that the patient will not be a credible witness. If the patient ignored the warning and injured someone else while their judgement was impaired by the medication prescribed by the physician the only witness to the warning may be the chart. Physicians should continue to comply with their obligation to advise patients of the specific risks and side effects of administered medications. This decision does not compel physicians to prevent patients from leaving the hospital after receiving certain medication, but requires physicians to ensure that when patients leave the hospital, they are properly warned about the side effects of that medication. Careful documentation of specific warnings to the patient will be critical to defending these cases in the future. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Jessie Gregorio has been named a 2016 recipient of the Rochester Business Journal's Forty Under 40 award.  The Forty Under 40 honorees are professionals younger than 40 who demonstrate leadership in the workplace and in the community.\ Jessie is an associate in the firm's Litigation and Health Care Practice Groups, and focuses her practice in the areas of civil litigation, medical malpractice defense and health care law. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

What are recent legislative and other developments affecting the practice environment? Medical professionals may want to take note of three recent changes that affect the practice environment. Two stem from new legislation regarding telehealth services and opioid prescriptions. The third pertains to new technology applications which have legal implications. New York’s new Telehealth Law and proposed legislation for payment parity. New York’s new telehealth coverage law, which went into effect on January 1, 2016, provides for innovation in care delivery methods. Under the amended law, telehealth services are eligible for reimbursement under New York Medicaid. Telehealth is broadly defined as the use of electronic information and communication by providers, for delivery of health care services including but not limited to diagnosis, treatment, care management and education. Under the new law, commercial health insurers are required to cover telehealth; insurers are barred from excluding from coverage services which are “otherwise covered under a policy that provides comprehensive coverage for hospital, medical or surgical care because the service is delivered via telehealth…” The Department of Health is expected to issue telehealth regulations in the coming months. The law gives patients the choice of receiving services inperson or by telehealth technologies. However, the statute does not, in its current form, include a payment parity provision, which would require insurers to “reimburse the telehealth provider for covered [telehealth] services on the same basis and at the same rates as [in-person services].” Recently, in response to decisions by certain insurers to pay providers for telehealth services at a rate significantly lower than reimbursement rates for in-person services, a new bill was introduced to ensure commercial health plans will pay the same rate for telehealth services as for in-person services. Bill SB 7953 was introduced on May 31, 2016. It seeks to extend payment parity for telehealth services to NY Medicaid, as well as to private health insurers. New Opioid Legislation - State and Federal. In June, Governor Cuomo signed a new law to address the heroin and opioid addiction crisis. The new law is intended to increase access to treatment, limit over-prescription and expand community addiction prevention strategies. The legislation reduces prescription limits for opioids from 30 days to 7 days, mandates that physicians and opioid prescribers complete ongoing education (three hours of education every three years on addiction, pain management, and palliative care), and requires hospital medical staff to provide discharge planning services to connect patients with treatment options to better combat substance abuse disorders. The new law also authorized trained professionals to administer overdose-reversal medication such as naloxone in emergency situations, without putting their professional credentialing at risk. Congress, in response to record numbers of U.S. deaths from drug overdoses in the last couple years, has passed the Comprehensive Addiction and Recovery Act of 2016 (CARA). The legislation, which is seen as a significant step forward in addressing addiction as a health problem, authorizes $181 million a year in spending for a new program to reduce opioid overdose and support education and training to reverse addiction trends. Overdose death rates have been the subject of national attention in recent years. The Department of Health & Human Services Secretary has reported that each day, an average 129 Americans die from opioid overdoses. As of the time of this writing, President Obama is expected to sign the bill. Patient-Facing Smartphone Apps. Earlier this year, two New York City health systems launched mobile apps for patients. In June, Mount Sinai Health System launched MountSinaiNY, an umbrella app with features that allow patients to pay bills online, search physicians and facility locations, schedule appointments, access medical records and exchange secure messages with providers. In January 2016, New York-Presbyterian (NYP) launched a mobile app for patients. The app is designed to improve patients’ access to services from the convenience of their smartphones. NYP is working on a telehealth platform that will feature remote patient monitoring. According to a recent Pew Research Center study, 68% of Americans own a smartphone (up from 35% four years ago). Although umbrella apps may work well for large systems with thousands of affiliated physicians, different patient groups have different mobile needs. Indeed, few, if any, all-in-one apps are likely to meet patient expectations. As physician groups incorporate practice management software and utilize new tools to optimize revenue cycles and streamline billing, more providers are discussing specific mobile health apps with their patients. These new apps, which include tracking and reminder or ‘nudging’ functions, may be relevant in the context of chronic care or routine care (either for diet, exercise, or improved selfmanagement). Notwithstanding possible data privacy concerns, providers are also investing in simplified apps to improve the patient experience as it relates to bill payment, requesting appointments or adding medication reminders. Download the Reprint from 'The Bulletin' by MCMS As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Recently news agencies have publicized reports of nursing home staff using smart phones and other electronic devices to record residents in demeaning or humiliating situations, and posting those recordings on social media platforms such as Facebook, Snapchat or Instagram. In response, the Centers for Medicare and Medicaid Services (CMS) issued a Memorandum to State Survey Agency Directors requiring immediate action. On August 5, 2016, CMS advised Surveyors to immediately begin requesting and reviewing nursing home policies and procedures prohibiting staff from taking or using photographs or recordings of any type that would demean or humiliate a resident. In order to be in compliance, a nursing home must do the following: 1. Include in its written policies and procedures a prohibition of nursing home staff taking or using photographs or recordings of any type that would demean or humiliate a resident; 2. Provide training on the prohibition of staff using any type of equipment to take, keep or distribute photographs and recordings of residents that are demeaning or humiliating, including educating staff on reporting responsibilities; and 3. Ensure that these policies and procedures are implemented as written by providing ongoing oversight and supervision of the nursing home staff. Nursing homes should immediately review and revise their policies and procedures to comply with the attached CMS Memorandum. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Underberg & Kessler LLP is proud to announce that 11 of its attorneys have been selected by their peers for inclusion in The Best Lawyers in America® 2017, and one attorney was named Rochester “Lawyer of the Year” in his area of practice. Jim Coniglio, Pat Cusato, Steve Gersz, Lew Heisman, Ron Hull, Kate Karl, Paul Keneally, Anna Lynch, Paul Nunes, Margaret Somerset and George Van Nest are included in the 2017 edition under the following specialties: Jim Coniglio – Municipal Law Pat Cusato – Real Estate Law Steve Gersz – Closely Held Companies and Family Businesses Law, Corporate Law Lew Heisman – Family Law Ron Hull – Environmental Law, Litigation – Environmental Kate Karl – Commercial Finance Law, Real Estate Law Paul Keneally – Commercial Litigation, Litigation – Labor & Employment Anna Lynch – Corporate Law, Elder Law, Health Care Law Paul Nunes – Mass Tort Litigation/Class Actions–Plaintiffs, Mass Tort Litigation/Class Actions–Defendants, Personal Injury Litigation–Plaintiffs, Personal Injury Litigation–Defendants Margaret Somerset – Medical Malpractice Law–Defendants George Van Nest – Environmental Law Additionally, Steve Gersz was named “Lawyer of the Year” in Rochester for Closely Held Companies and Family Businesses Law.  Only one area lawyer in each specialty receives this honor. Best Lawyers® conducted its annual peer-review survey in which 55,000 attorneys cast more than 7.3 million votes on the legal abilities of other lawyers in their practice areas. Lawyers are neither required nor allowed to pay a fee to be listed, and are included solely based on the results of the peer review. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Seven attorneys from Underberg & Kessler LLP have been named 2016 Upstate New York “Super Lawyers”, and four have been named 2016 Upstate New York “Rising Stars”. Jim Coniglio, Ron Hull, Paul Keneally, Tom Knab, Anna Lynch, Paul Nunes and Margaret Somerset were included in the 2016 “Super Lawyers” group under the following practice areas.  This group represents the top 5% of attorneys in Upstate New York and is awarded to those attorneys who have attained a high degree of peer recognition and professional achievement. Jim Coniglio – Government Finance Ron Hull - Environmental Law Paul Keneally – Employment & Labor Tom Knab – Business Litigation Anna Lynch - Health Care Paul Nunes – Real Estate Margaret Somerset – Personal Injury Medical Malpractice: Defense Leah Tarantino Cintineo, Trisha Kirsch, Colin Ramsey and David Tang and were included in the 2016 group of Upstate New York “Rising Stars” under the following practice areas.  This group represents the top 2.5% of lawyers who are under 40 years old or who have been practicing for 10 years or less. Leah Tarantino Cintineo - Family Law Trisha Kirsch - Business/Corporate Colin Ramsey- Construction Litigation David Tang - Creditor Debtor Rights The “Super Lawyer” list is produced annually, through a rigorous selection process of statewide nominations, peer review within the local legal community, and independent research of candidates. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

On August 1, the Governor’s Office announced that the New York State Public Service Commission (PSC) approved New York’s most far reaching clean energy mandate. The Clean Energy Standard is aimed at fighting climate change, reducing air pollution and diversifying the energy supply. The standard seeks to force reductions in fossil fuel use by mandating that an increased percentage of the State’s energy come from “clean” energy sources. Specifically, the standard will require that 50% of the State’s electricity come from renewable energy sources such as wind and solar by 2030, starting with an intense phase-in over the next few years. At the outset, utilities will be required to obtain and procure new renewable power sources starting with 26.31% of the State’s electricity load in 2017, increasing to 30.54% of the State’s total in 2021. Under the standard, the 50% renewable mandate by 2030 is aimed at reducing greenhouse gas emissions by 40% (from 1990 levels) and up to 80% by 2050. The standard is to be implemented by requiring utilities to obtain a targeted number of Renewable Energy Credits each year. The credits will in turn be paid to developers of renewable energy to assist in financing renewable energy projects. Among other steps, the PSC is to work with NYS Energy Research and Development Agency on a variety of matters, including: creating a NY-certified clean electric product that can be labeled and sold; maximizing energy efficiency and renewable heating and cooling technologies; and developing a report on offshore wind energy. The Clean Energy Standard will be subject to reviews every three years. Interestingly, the standard relies on nuclear power plants to achieve the goals. As early as April 2017, the standard requires all State investor-owned and energy suppliers to purchase Zero Emission Credits to pay for the carbon-free emissions from NY’s nuclear plants. This is aimed at supporting upstate nuclear plants. Almost one-third of the State’s power comes from nuclear plants. The plants are financially stressed due to historic low natural gas prices, subsidies to renewable energy sources, mandates for wind and solar capacity and stagnant growth in power demand. Apparently, the State has judged that the long-term questions posed by nuclear power opponents regarding storage and disposal of nuclear fuel waste are outweighed by the carbon free emissions from the plants and need for generating capacity. The Nuclear Energy Institute has lauded the standard saying “Gov. Cuomo and the Public Service Commission correctly acknowledge nuclear power plants as indispensable sources of emissions-free power, meriting explicit valuation by the state as a clean energy source. Other states should strongly consider emulating New York’s new energy standard.” The costs of the Clean Energy Standard for business and consumers are expected to be significant. PSC has suggested that the costs are likely to exceed $3 billion over the next 14 years. Additionally, the cost per megawatt-hour is expected to be higher than the nuclear subsidies that are part of the standard. As anticipated, PSC and green groups praised the standard and argue that the costs will be outweighed by anticipated benefits through reduction of greenhouse gas emissions and expansion of the renewable power supply. A comparison of statements following announcement of the standard is instructive. The Chair of Energy and Finance for NY, Richard Kauffman, stated that “[u] nder Governor Cuomo’s leadership, New York State has started a clean energy revolution and today is just the latest step in our path to a cleaner energy future. The Clean Energy Standard aligns with the Governor’s directive to phase out coal power by 2020 and affirms New York’s position as a leader in combating climate change.” In sharp contrast, the New York Business Counsel has stated that “[w]ith today’s action, it is clear the Public Service Commission has failed to properly evaluate the significant costs associated with the Clean Energy Standard. This failure will cost New York State businesses billions of dollars and put current and future New York manufacturing jobs, and jobs in other energy-intensive sectors, in mortal danger.” While increasing renewable energy may be a worthwhile goal, doing so in a command and control fashion under the Clean Energy Standard without a clear understanding of costs, economic impact and benefit, has the potential for significant consequences to all New York businesses and consumers. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

"When you’re thrust into litigation, you obviously have to make sure you’re prepared to deal with that.” — Roger Goodell The U.S. Court of Appeals for the Second Circuit recently issued decisions in the “Deflategate” matter, which involved spoliation of relevant evidence – specifically, destruction of a three-time Super Bowl MVP’s cell phone. The case offers a good reminder to civil litigation counsel about the importance of litigation holds and preservation notices. A litigation hold is a process that an organization follows to preserve all forms of relevant information in anticipation of future litigation. Hold notices are typically directed to in-house counsel, executives or custodians of certain documents or electronically stored information (ESI). They provide a description of the pending or anticipated proceeding and instructions to suspend normal document retention or destruction policies and institute a hold on all material which may be relevant evidence. Spoliation of ESI was a significant issue for NFL Commissioner Roger Goodell in the proceeding and internal appeal that led to the four-game suspension of NFL Quarterback Tom Brady stemming from allegations that Brady’s team, the New England Patriots, tampered with game balls used in the 2015 AFC Championship Game. In May 2015, the NFL announced the suspension of Brady. The Commissioner, presiding as arbitrator in the internal appeal – pursuant to the League and Players Association’s collective bargaining agreement – later upheld the suspension. In September 2015, the U.S. District Court denied the NFL’s motion to confirm the arbitrator’s decision and vacated the suspension of Brady, citing legal deficiencies such as inadequate notice to Brady, denial of the opportunity for Brady to examine a lead investigator, and denial of equal access to investigative files. In April 2016, the Second Circuit reversed the district court and reinstated the arbitrator’s decision and, on July 13, the Second Circuit denied a request filed by Brady’s lawyers for a rehearing of the case by the full court. In its April 2016 decision, National Football League Management Council v. NFL Players Association (on its own behalf and on behalf of Tom Brady), the Second Circuit confirmed that a federal court’s review of an arbitration decision is highly deferential to the arbitrator’s decision. The court wrote that the NFL Commissioner has broad authority to impose discipline in matters involving players and the case was not one where the arbitration award should be disturbed. With respect to the destruction of the cell phone, the Commissioner cited Brady’s failure to cooperate with the investigation and his deliberate effort to ensure that the requesting party would never have access to the requested information as bases for drawing an adverse inference that the cell phone would have revealed incriminating evidence. The Second Circuit, in a 2-1 decision, found no fault with the Commissioner’s determination. To secure an adverse inference instruction based on destruction of evidence, a party must establish that: (a) the party having control over the evidence had an obligation to preserve it; (b) the records were destroyed with a “culpable state of mind;” and (c) the destroyed evidence was “relevant” to the moving party’s claim or defense, such that a reasonable trier of fact could find that it would support that claim or defense. Chin v. Port Authority, 685 F.3d 135 (2d Cir 2012). Under NY Civil Practice Law and Rules section 3126, a party’s willful failure to disclose information, which the Court finds ought to have been disclosed, can result in harsh penalties. A court can order that: (1) the issues to which the information is relevant are deemed resolved in accordance with the claims of the party obtaining the order; (2) the disobedient party is prohibited from opposing a claim or supporting a defense; or (3) a pleading be struck and judgment by default be entered against the disobedient party. See e.g. Voom HD Holdings v. EchoStar Satellite, 93 AD3d 33 (affirming adverse inference against company that implemented a hold but failed to suspend automatic deletion of emails until four months after suit was filed). Tips for Implementing a Litigation Hold Courts have consistently held that the obligation to preserve begins when a party knows or should have known that the evidence is relevant to future or current litigation. At a minimum, that means counsel must direct the client to ensure documents are preserved, not deleted from an ESI system or otherwise destroyed or made unavailable. Failure to do so has been found to be grossly negligent.   The following practices will help the practitioner execute a litigation hold. 1. Put the hold notice in writing. Clearly identify the reason for the hold and issue instructions for locating material to be preserved. The hold notice should state clearly the prohibition on destruction of relevant documents and ESI and should be shared with all key personnel, not just the official custodian of records. Be prepared to modify the hold notice if new locations of information are discovered or new issues arise in the course of the litigation. 2. Talk with your client. Discuss who will oversee the hold (see 5. below) and develop a plan with client input to assess the types of ESI they have, where and how it is stored and who are the employees and individuals with access.   Are sources of data with relevant information stored on laptops, mobile devices, thumb drives, or home computers that access the company’s network?  Consult with your client’s IT manager to identify whether text and voice messages are included in the universe of data sources so the preservation obligation can be fully explained and monitored.  Establishing clear channels of communication early will make it easy for custodians to ask questions. 3. Provide guidance on what is relevant. Take a moment to specify what material is, in fact, relevant to the facts most likely to be at issue in the litigation. Is the scope of the hold covering information “reasonably calculated to lead to the discovery of admissible evidence”? 4. Plan ahead. It is not too early to review or refresh your client’s litigation readiness plan so that, if necessary, a litigation hold can be effectively implemented. This can include suspending document/data destruction policies, implementing ESI collection procedures and locating and preserving backup tapes. Create a checklist for identifying who will be contacted for timely preservation of data so that documents and ESI are properly stored. 5. Have a point person. To ensure proper implementation and compliance, identify an individual who will be responsible for sending periodic reminders about the litigation hold to keep key individuals updated and in the loop in the event the scope of the hold should change. That individual can also be the go-to person for answering questions, advising key employees once a litigation hold release is authorized, and notifying the relevant individuals of a return to normal document retention and destruction practices. The courts have made clear that negligence is not an acceptable excuse to spoliation of relevant evidence. To that end, preparation is the key for executing a successful hold process. Whether your client owns Super Bowl rings or not, the above strategies should help guide those who find themselves thrust into litigation avoid the potentially severe consequences of disregarding a litigation hold notice. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

For over 50 years, federal contractors and private employers with more than 100 employees have completed the EEO-1 form to provide the U.S. Equal Employment Opportunity Commission (EEOC) and Office of Federal Contract Compliance Programs with workforce data by race, ethnicity, sex and job category. Following the release of a proposed rule earlier this year, yesterday the EEOC issued another revised version of its proposal to expand pay data collection for those employers by having employers collect W-2 income and hours worked data within 12 distinct pay bands for each job category.  The employer would then report the number of employees whose W-2 earnings for the prior 12-month period fell within each pay band.  The expanded pay data will assist the agencies in identifying possible pay discrimination, and assist employers in promoting equal pay in their workplaces. In issuing the updated version, the EEOC said it considered suggestions made by commenters during the initial 60-day comment period.  The proposed revision will still include collecting summary pay data from employers.  The updated rule comes with a new 30-day comment period that runs through August 15. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

It has long been the law in New York that employment contract covenants restricting what employees can do post-employment, generally difficult to enforce, are much easier to enforce against physicians. However, a New York trial court in Suffolk County recently refused to enforce a restrictive covenant against a physician, finding the covenant unreasonable in the circumstances. The Court utilized the standard New York test for enforcement of restrictive covenants: reasonable as to time and area, necessary to protect a legitimate purpose, not harmful to the public, and not unduly burdensome. The Court noted that the same practice's physician covenant had been enforced previously, but that had been against a partner while the current case was against a physician employee. It was also important to the Court that the physician employee was willing to discontinue anesthesiology, the practice's primary or sole area, and only sought to work going forward in pain management. It is important to note that the decision was made in the beginning of the case, in the context of a preliminary injunction application and a summary judgment motion, so the outcome could be different after fact discovery is conducted. Nonetheless, these issues and arguments are coming as doctors are increasingly sub-specializing and hospital systems and medical practices are increasingly growing and using restrictive covenants. For those seeking to enforce physician (or any) restrictive covenants, careful, specific drafting by or with the assistance of experienced employment counsel is vital. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.