We are proud to announce that 15 attorneys were recognized in the 2024 edition of The Best Lawyers in America and one attorney was selected to the 2024 edition of Best Lawyers: Ones to Watch in America. The attorneys selected by Best Lawyers and their areas of recognition are: James A. Coniglio* – Municipal Law, Geneseo, NY Patrick L. Cusato – Real Estate Law, Rochester, NY David H. Fitch – Litigation - Health Care; Medical Malpractice Law – Defendants, Rochester, NY Steven R. Gersz – Closely Held Companies and Family Businesses Law; Corporate Law, Rochester, NY Timothy P. Johnson – Real Estate Law, Buffalo, NY Katherine H. Karl – Banking and Finance Law; Commercial Finance Law; Commercial Transactions/UCC Law; Real Estate Law, Rochester, NY Paul F. Keneally – Commercial Litigation; Labor Law – Management; Litigation - Labor and Employment, Rochester, NY Thomas F. Knab* – Commercial Litigation; Litigation – Construction; Litigation – Insurance; Litigation - Labor and Employment, Buffalo, NY Anna E. Lynch* – Corporate Law; Elder Law; Health Care Law, Rochester, NY Colin D. Ramsey – Legal Malpractice Law; Defendants and Litigation – Insurance, Buffalo, NY Edmund J. Russell III – Banking and Finance Law; Corporate Law, Rochester, NY Margaret E. Somerset – Medical Malpractice Law – Defendants, Rochester, NY David M. Tang – Health Care Law; Litigation - Health Care, Rochester, NY George S. Van Nest – Environmental Law, Buffalo, NY Helen A. Zamboni – Corporate Law; Real Estate Law, Rochester, NY *Also awarded 2024 “Lawyer of the Year.” The attorney selected by Best Lawyers: Ones to Watch and his two areas of recognition are: Justin P. Alexander – Banking and Finance Law; Real Estate Law, Rochester, NY Best Lawyers recognitions are based on an exhaustive Purely Peer Review® evaluation. More than 123,000 industry leading lawyers are eligible to vote, and Best Lawyers receives more than 20 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2024 edition of The Best Lawyers in America, more than 13.7 million votes were analyzed, which resulted in more than 76,000 leading lawyers included in the milestone 30th edition.

Congratulations to Joshua B. Beisker for being selected to The Daily Record's 2023 Power 20 Trusts & Estates Law list for the third year in a row. The Power 20 list showcases power players in the Western New York legal community who are recognized as leaders in their area of practice. “The people on this list help clients make sure their wishes are followed and their families’ well-being is protected. These lawyers guide clients through stressful and uncertain times to give them the peace of mind they deserve. And they have done so while navigating ever-changing ways of doing business over the past several years.," stated Ben Jacobs, Associate Publisher and Editor of The Daily Record. Josh serves as Chair of the Firm's Estates & Trusts and Tax Law Practice Groups. He focuses his practice in the areas of 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. Josh is a frequent lecturer at numerous organizations including the National Business Institute, universities and other educational institutions, adult education programs, financial planning organizations, alumni groups, and community organizations. He is a member of the Estate Planning Council of Rochester and the Monroe County and New York State Bar Associations.

You will be hard pressed today to find someone who does not have an electronic footprint. Whether it’s email, social media, bank accounts, or simply owning a smartphone, almost every person creates an electronic trail. Knowing that these trails exist is crucial to any comprehensive litigation discovery plan, especially if electronically stored information (“ESI”) is relevant. This article lays out some reminders and warnings when preparing an electronic discovery (“E-discovery”) plan and evaluating the forms of discoverable materials relevant to a case. Preparation of a Case Pursuant to Rule 1.1 of the New York Rules of Professional Conduct, “A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Included within this rule’s comments is a provision that reads: “To maintain the requisite knowledge and skill, a lawyer should … keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information.” For attorneys, there is an obligation to be knowledgeable about the technology used by clients, their law firms, and their legal offices, especially in anticipation of litigation. First, it is important to understand one’s obligations when it comes to disclosure. With some exceptions, both the New York Civil Practice Law and Rules and the Federal Rules of Civil Procedure require parties in litigation to disclose any and all nonprivileged matters that are material and necessary to prosecute or defend an action. The test of materiality is one of usefulness and reason, and this rule extends to ESI as well. Second, it is important that you know where to look for matters that are material and necessary to support your client’s claim(s). To achieve this goal, create an outline of questions you plan to pose to your client about their claim(s). The purpose of these questions is to develop your knowledge about potential adverse parties, the custody and location of important documents and materials, the method, content, and timing of communications between relevant parties, the types of technology, if any, used to effectuate those communications, and how said technology works. Although this is not an exhaustive list, it includes most questions that should be answered before filing a lawsuit. Once your questions are composed, schedule a meeting with your client to evaluate the merit of the claim(s). Evaluation of the Merits The courts obligate counsel for all parties to consult prior to a preliminary or compliance conference about various topics, including discovery and any voluntary disclosure the parties agree will aid in early settlement of the matter. As such, understanding your client’s claims and having knowledge about the location of relevant documents, including ESI, in advance of consulting with opposing counsel is crucial. When evaluating your client’s claim(s), you must determine whether metadata should be considered in your analysis. Metadata is relevant to the disclosure of ESI because it can contain the underlying characteristics, origins, and usage of an electronic document. Metadata is important for any action where the following are relevant: (1) location and custody of ESI and (2) file creation and modification dates. As such, when questioning your client about their claim(s), be sure to inquire about the retrieval process governing relevant ESI. For instance, ensure your law firm or legal office has the capability to review the file types produced by your client’s technology. When ESI is retrieved and can be reviewed in its original format, you are better able to see your client’s claim from their perspective and zealously advocate their claim(s) in a tribunal. Once you understand the universe of materials available to your client, identify who controls them, learn where they may be located, and evaluate the discovery devices necessary to access the sought-out information. For example, when questioning your client, you may learn that your client retains a third-party vendor for ESI storage, including emails, text messages, and client files, or you may learn that the adverse party made certain admissions via voice memos, which are stored in Apple’s cloud database. In either scenario, this learned information could be the basis to issue a subpoena to the third-party vendor or to Apple to gain access to desired materials. The Litigation Hold Once the evaluation is complete, you should have a better idea whether litigation will ensue. If you reasonably anticipate litigation, you must issue and oversee the distribution of a written litigation hold notice. If you posed a thorough line of questioning to your client, you should have a list of adverse parties or non-parties who act as the custodian of important materials. These are the people and entities that should be contacted about the possibility of litigation and the requirement to protect and preserve material documents, including ESI and related metadata, from routine disposition. Please be aware that if you fail to issue a litigation hold notice at the proper time, you, your law firm, your legal office, or your client could be subject to sanctions for spoliation of evidence. The Takeaway As the world has grown more connected due to technological advances, the world of electronic discovery, too, has grown, and with this growth has come an increased obligation for attorneys to understand their client’s electronic footprint. Being strategic and purposeful in your preparation and evaluation of a case can make all the difference when the time comes to litigate the matter and engage in discovery. Katherine T. McCarley is an Associate in Underberg & Kessler LLP’s Litigation Practice Group. She focuses her practice in the areas of civil and commercial litigation, defending institutional and small businesses. Katherine can be reached at kmccarley@underbergkessler.com Reprinted with permission from The Daily Record and available as a PDF file here.

On July 25, 2023, the United States Citizenship and Immigration Services (“USCIS”) published a notice to inform the public that the Employment Eligibility Verification Form (“Form I-9”), has been updated. Employers are encouraged to familiarize themselves with the updated form and the methods available for completing the new Form I-9, including the E-Verify option. As such, this post is intended to summarize some of those updates and alert employers about the approaching Form I-9-related deadlines. General Background Between March and September of 2022, USCIS and the Department of Homeland Security (“DHS”) ran congruent efforts to gauge the public’s perspective on proposed changes to the Form I-9 and related review procedures (see our post from early 2022 that highlights some of the proposed changes here). USCIS published two information collection notices and reviewed and responded to hundreds of comments between the two information collection notices. DHS issued a Notice of Proposed Rulemaking and sought comments on an optional alternative to the required in-person physical document examination method. DHS has since published the Final Rule, which is available in the Federal Register. Form I-9 Amendments Amendments have been implemented for both Form I-9 and its correlating instructions. The goal of the amendments is to reduce employers’ and employees’ respective burdens when completing the form. Some of the major changes to Form I-9 are listed below: Section 1 and Section 2 have been reduced to one, shared, single-sided sheet. Section 3 has been moved to a separate supplement form, Supplement B. Form I-9 can now be filled out on tablets and mobile devices. A box has been added to indicate that an employee’s Form I-9 documentation was examined via a DHS-authorized alternative procedure instead of via physical examination. To correlate with the Form I-9 amendments, the instructions were also revised. Some of these changes include shortening the length of the instructions from fifteen (15) pages to eight (8) pages and adding a section on how employers are to utilize the new checkbox for alternative Form I-9 review procedures. The Final Rule: Alternative Review Procedure In conjunction with the new Form I-9, DHS, in partnership with the Social Security Administration (“SSA”), has modernized employment eligibility verification, taking steps to offer certainty and flexibility to American businesses considering the realities of post-COVID work cultures where remote employment has become increasingly prevalent. E-Verify is a free, flexible, and electronic option for employment eligibility verification that advances DHS’s mission of safeguarding the integrity of the employment eligibility verification process. Employers should not be intimidated by this process as DHS has ensured employers have access to information about this program. The E-Verify website provides information and resources, including webinars, to employers about the alternative verification method, E-Verify qualifications, and the enrollment process. Under the current requirements, employers are required to conduct a physical examination of Form I-9 documentation within three business days after the first day of employment of a new hire. Employers who enroll with E-Verify will have the option to complete the review process via either physical or remote examination. Employers that do not qualify for the E-Verify program must perform all required physical examinations of identity and employment authorization documents for those employees hired after March 20, 2020, and for those employees who have received only a virtual or remote examination under the temporary COVID-19 accommodations. Noteworthy Dates As a reminder, the temporary COVID-19 accommodations permitting remote review of employee identification and employment authorization documents ends today, July 31, 2023 (see our prior post on the topic here). Employers who elect not to enroll in, or who do not qualify for, the E-Verify program have until August 30, 2023 to become compliant with Form I-9 physical examination requirements. Starting August 1, 2023, employers can download or purchase the paper versions of the updated Form I-9 from USCIS’s website. Like the current Form I-9, a Spanish language version of the new Form I-9 will also be available on USCIS’s website. The current version of the Form I-9 continues to be effective through October 31, 2023. As such, starting November 1, 2023, the current version of Form I-9 will be discontinued and invalid. Employers that are working to gain compliance by the August 30, 2023 deadline should be careful to avoid unnecessary verification for current employees with a properly completed Form I-9 on file. Unnecessary verifications could result in a violation of the anti-discrimination provision of the Immigration and Nationality Act. If you have any questions regarding this article, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Katherine T. McCarley at (585) 258-2820 or kmccarley@underbergkessler.com.

We are pleased to announce that Ryan T. Biesenbach, associate attorney in the Labor & Employment and Litigation Practice Groups, has been appointed to serve on the Board of Directors of Literacy Rochester. Founded in 1964, Literacy Rochester’s mission is to improve reading, mathematics, English language, and digital literacy skills of adults. They provide one-on-one tutoring, small group instruction, family literacy programs, adult basic computer skills training, and English conversation skills classes. Ryan advises clients on all aspects of labor and employment law, including the development of effective employment policies, discrimination and harassment claims, wage and hour issues, employee benefits claims, and ensuring compliance with state and federal labor laws. Ryan additionally has experience in all stages of litigation, from intake to resolution in federal and New York State courts, tribunals, and agencies. He earned his B.A. from the State University of New York at Fredonia, his M.A. from Wake Forest University, and his J.D. from the Maurice A. Deane School of Law at Hofstra University. Ryan is a member of the Society for Human Resource Management and the Monroe County Bar Association.

On May 4, 2023, the United States Immigration and Customs Enforcement (“ICE”) announced that the COVID-19-related accommodations concerning the review of a new hire’s Employment Eligibility Verification Form (“Form I-9”) documentation will be discontinued on July 31, 2023. As such, employers should ensure compliance with the renewed Form I-9 review requirements as soon as practicable for every remote employee hired in the last three years. Since November 6, 1986, employers must verify and retain certain paperwork, including Form I-9, that demonstrates a new hire’s authorization to work within the United States. This requirement arises under the Immigration Reform and Control Act. Due to the social-distancing caused by COVID-19, in March of 2020, the Department of Homeland Security (“DHS”) and ICE published an announcement that employers were no longer required to review a new hire’s Form I-9 in the new hire’s presence. Remote review was authorized so long as an in-person inspection of the Form I-9 was completed within three (3) business days after an entity’s in-person operations resumed. These accommodations were updated in March 2021, but a final termination date has been set for July 31, 2023. With the elimination of the Form I-9 accommodations, employers must work to ensure their Form I-9 paperwork for remote new hires is in compliance with the former Form I-9 review requirements within thirty (30) days of the effective date. As such, by August 30, 2023, employers must complete an in-person, physical inspection of Form I-9 documents for employees whose documents were inspected remotely and must notate in the “Additional Information” field in Section 2 of the Form I-9 that the new hire had a remote and subsequent physical inspection for reverification. ICE and DHS issued Form I-9 Examples Related to Temporary COVID-19 Policies as an aid to employers working on compliance during the 30-day grace period. It is also a possibility that DHS may issue new rules relating to last year’s publication of a “Notice of Proposed Rulemaking” for alternative procedures allowing remote document examination for Form I-9 documentation. Employers should keep a lookout for this final rule as it could influence the way employers are expected to complete and retain records relating to a new hire’s Form I-9 moving forward. If you have any questions regarding this article, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Katherine T. McCarley at (585) 258-2820 or kmccarley@underbergkessler.com.

In addition to its more noteworthy recent General Counsel proclamation that most non-compete agreements violate the National Labor Relations Act (“NLRA”) (see prior post - Non-Competes Soon To Be No More in New York?), the National Labor Relations Board (“NLRB”) recently found that certain common provisions of employer-provided severance agreements violate the NLRA. The NLRB has also recently released its latest view on when a worker should be classified as an independent contractor, not an employee. Regarding severance agreements, the NLRB focused on non-disparagement clauses and clauses requiring that the employee keep the circumstances of his or her employment confidential. The NLRB noted that Section 7 of the NLRA specifically permits employees to speak freely about their employment and employer, such that even the employer’s mere offer of those clauses violates Section 8 of the NLRA by forcing the employee to choose between their Section 7 rights and the proposed severance compensation. As to the employee/independent contractor test, the NLRB returned to the President Obama-era test, meaning potentially more employee and less independent contractor classifications, and likely more unions. No longer will the entrepreneurial opportunity for profit or loss be the “animating principle” of the test. Rather, that will again be one factor among the many traditional common law factors considering whether the worker is conducting an independent business. Particularly important is whether the company imposes restraints on that opportunity to be an independent contractor. If you have any questions regarding this or any other Labor & Employment law topic, please call Paul F. Keneally at (585) 258-2882 or email pkeneally@underbergkessler.com.

Restrictive covenants generally, and covenants not to compete in particular, have long been difficult to enforce in New York, under the law as stated in the Seminal 1999 Court of Appeals BDO Seidman case. However, enough discretion remained in the law regarding the reasonableness of the covenant at issue that enforcement still occurs with some regularity. The New York Legislature has responded by passing a sweeping bill effectively banning all non-compete agreements. Governor Hochul has expressed support for barring non-competes in the past and could sign it into law any day. On the federal level, the General Counsel of the National Labor Relations Board has recently opined that non-competes are already illegal under the National Labor Relations Act, and that opinion will certainly be litigated. Independently, the Federal Trade Commission is reportedly considering a broad, fully retroactive non-compete ban. Although the proposed NYS law is not retroactive, it will certainly make it less likely older laws will be enforced. Remedies against employers attempting to impose or enforce non-competes under the new law include injunctions, attorneys’ fees, liquidated damages up to $10,000, and lost compensation, if any. Claims may be brought within two (2) years of signing a non-compete, the end of employment, or the start of attempted enforcement of it. While all employee non-competes would be voided by the law, employers could still utilize non-solicitation of customer agreements, though the litigation of who solicited who is often difficult for employers. Employers will also be able to retain clauses protecting trade secret and confidential client information to the extent they would not “otherwise restrict competition in violation” of the law. If you have any questions regarding this or any other Labor & Employment law topic, please call Paul F. Keneally at (585) 258-2882 or email pkeneally@underbergkessler.com.

We are pleased to announce that Matthew M. Simmonds has joined Underberg & Kessler as Senior Counsel in our Litigation Practice Group. Matt is a former Appellate Court attorney who brings extensive experience to the Firm’s litigation team. During his 18 years with the Appellate Division of the New York State Supreme Court, Fourth Judicial Department, and the Florida First District Court of Appeal, he handled thousands of cases in nearly every area of civil and criminal law. Matt’s experience gives him the unique advantage of understanding how judges may approach a case, as well as the ability to help his clients chart the most beneficial procedural course. Matt earned his B.A. from Vanderbilt University and his J.D., magna cum laude, from the Florida State University College of Law. He is a member of the Monroe County Bar Association.

Fresh off proposing Clean Air Act vehicle emission rules in April that will mandate electric vehicles, on May 10, 2023, the Environmental Protection Agency (“EPA”) issued proposed rules that will dramatically reduce existing fossil fuel power plants. While the Supreme Court blocked President Obama’s Clean Power Plan last summer, EPA has gone back to the drawing board and issued new proposed plant rules under the Clean Air Act that will be more restrictive. Section 111 of the Clean Air Act provides that EPA can regulate pollutants from stationary sources through the “best system of emission reduction” that is “adequately demonstrated.” In addressing the myriad of power plant rules being issued, last year EPA Administrator Michael Regan said that ‘[b]y presenting all of those rules at the same time to the industry, the industry gets a chance to take a look at this suite of rules all at once and say, is this doubling down on investments in this current facility? Or should we look at cost and say now it’s time to pivot and invest in a clean energy future.” The rules will require fossil fuel plants to adopt carbon capture, low emissions hydrogen co-firing and natural gas co-firing for different categories of plants. The proposed rules require performance standards for new fossil fuel-fired plants and emission guidelines for existing gas and coal plants based on a variety of different categories of plants. In particular, new baseload and existing gas plants using carbon capture to comply will be required to capture 90% of CO2 by 2035. Gas plants that elect to use hydrogen co-firing will be required to burn 96% hydrogen by 2038. Coal plants are subject to more stringent limits, namely those still operating after adoption of the regulations and by 2040 will be required to co-fire with natural gas or operate less frequently. Strikingly, the rules mandate that any coal plants operating beyond 2039 will be subject to 90% carbon capture and sequestration requirements. As with most of the Biden Administration climate change rules and orders, there are fundamental problems with the mandate that have been ignored by EPA in issuing the rule. First, the technology that EPA wants to mandate does not presently exist. While EPA has suggested that the rules will not kick in for 7 to 12 years, the utilities sector makes business and investment decisions today. To the extent that the power plants implement carbon capture, the cost of generation is projected to double. This is likely to make fossil fuel plants less competitive against federal and state-subsidized wind and solar generation facilities. Carbon capture will also require significant permitting for pipelines and infrastructure. The EPA is not moving promptly on existing permit applications for carbon sequestration facilities. Beyond facilities, the system mandated by the new rules will require thousands of miles of pipelines to transport to carbon storage locations. Pipeline permitting, from the now canceled Keystone pipeline to regional natural gas pipelines, is fraught with uncertainty, delays, and legal challenges. Finally, EPA’s rules attempt to mandate switching away from fossil fuel plants and will inherently impact power grid reliability. While environmental groups and President Biden’s supporters are all in on the climate change policies reflected in the proposed rules, the power industry is significantly less enthusiastic and pragmatic about potential issues. Jim Matheson, CEO of the National Rural Electric Cooperative Association, noted that “[n]ine states experienced rolling blackouts last December as the demand for electricity exceeded the available supply. Those situations will become even more frequent if EPA continues to craft rules without any apparent consideration of impacts on electric grid reliability.” In addition, the plan threatens to eliminate large numbers of coal and fossil fuel jobs. Similar to EPA’s recent vehicle emissions rule, the power plant rules are almost certain to be challenged in the courts on various grounds. The recent decision by the United States Supreme Court in West Virginia v. EPA dealing with the Clean Air Act and the proposed Clean Power Plan established that EPA does not have unlimited authority to impose regulatory schemes that set major policy for the entire country. The decision addressed the major questions doctrine and found that “it is not plausible that Congress gave EPA the authority to adopt its own such a regulatory scheme…A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to clear delegation from that representative body.” West Virginia Attorney General Patrick Morrisey, who brought the challenge to the Clean Power Plan, has been critical of the proposed rules and stated that “[w]e plan on ensuring that those limits are upheld, and we expect that we would once again prevail in court against this out-of-control agency.” The Biden Administration is intent on addressing climate change through administrative rules and regulations. In doing so, EPA seems to ignore legal constraints that exist on agency action when dramatic, economy-wide changes are not legislatively adopted by Congress and instead instituted through rulemaking. Given recent legal challenges to agency action, such as West Virginia v. EPA, the new power plant rules will certainly be subject to suit and extensive appeals through the federal courts. Due to the significance of these rule changes and massive impact on US power production, legal scrutiny seems necessary in the absence of congressional action on the plan. George S. Van Nest is a Partner in Underberg & Kessler LLP’s Litigation and Municipal Practice Groups and Chair of the Firm’s Environmental Practice Group. He focuses his practice in the areas of environmental law, development, construction, and commercial litigation. George can be reached at gvannest@underbergkessler.com. Reprinted with permission from The Daily Record and available as a PDF file here.

We are pleased to announce that Ericka B. Elliott, associate attorney in the Litigation and Health Care Practice Groups, has been appointed to serve on the Board of Directors of Lifespan. Lifespan, founded in 1971, helps older adults and caregivers take on the challenges and opportunities of longer life. As an independent nonprofit, not aligned with any health care system, Lifespan is a source of unbiased information, guidance, and more than 30 services and advocacy for older adults and caregivers. They also provide training and education for allied professionals and the community on a wide variety of topics ranging from Medicare to fall prevention. Elliott focuses her practice mainly on health care and commercial litigation. She has a wide range of experience advising clients in civil litigation, municipal law, and on labor and employment matters. She earned her B.S. from Cornell University and her J.D. from the University at Buffalo School of Law. Elliott is a member of the Monroe County Bar Association (MCBA) and a participant in the 2023 Inaugural Class of the MCBA Leadership Academy. She also serves as a Board Member for 13thirty Cancer Connect, the Greater Rochester Association for Women Attorneys (GRAWA), the Lima Joint Village/Town Planning Board, and is a volunteer for the Cornell Alumni Admissions Ambassador Network.

As a landlord, it is best practice to stay updated on current eviction procedures. This article outlines the general steps any residential landlord should take when evicting a tenant under two common circumstances: (1) when a tenant fails to pay rent and (2) when a tenant fails to vacate the property at the conclusion of the lease term. It is worth noting that this article does not, however, consider regulations applicable to HUD-managed properties. The Premise. Management Co. (“Management”) executed a management agreement with Rent-With-Us, LLC (“RWU”), a local landlord of a duplex, that grants Management the right to collect rents and enforce tenant obligations at the duplex. Since managing the duplex, Management has monitored two tenants. The first tenant, Tina, occupied her apartment for three years and fell behind on rent two months ago. The second tenant, Charlie, occupied his apartment for nine months and has a lease term that expires in three months. Last week, RWU informed Management that it wants to evict (1) Tina if she fails to pay rent for the approaching month and (2) Charlie if he fails to vacate the apartment at the conclusion of his lease term. RWU wants to lease each apartment immediately following each tenant’s departure. Knowing that RWU wants to evict these tenants, Management must be proactive. The necessary paperwork must be prepared and served to each tenant before Management can file any eviction papers. Management must familiarize itself with the following forms to evidence RWU’s entitlement to warrant of eviction and judgment of arrears: (1) Notice of Failure to Receive Rent, (2) 14-Day Notice to Quit, (3) Non-Renewal Notice, and (4) an Affidavit of Service. Tenant 1: Failure to Receive Rent Payment Most lease agreements grant a landlord the right to evict a tenant if the tenant fails to pay rent in a timely manner. However, a tenant must first be given notice before a landlord can seek a court’s assistance with collecting rental arrears or removing an unwanted occupant. The following steps will help Management achieve RWU’s goals in a timely and efficient manner: Review the Tenant File. If organized correctly, the tenant file should provide Management with vital information about the tenant-landlord relationship and should include: (1) the lease agreement, identifying the tenant(s), the lease term, and the rental rate, (2) the tenant’s rental ledger, showing the tenant’s payment history, and (3) written communications between landlord and tenant, informing Management about any past complaints, which could become defenses for Tina’s failure to pay rent. Send Default Notice. To justify a landlord’s entitlement to rental arrears, Real Property Law § 235-e [d] requires Management to send Tina a Notice of Failure to Receive Rent, via certified mail, for each month she does not pay rent. Because Tina failed to pay rent for two prior months, Management can send one notice to Tina that identifies each month she failed to pay rent. Management must retain a copy of the certified mailing receipt to prove RWU notified Tina. If Management fails to send Tina this notice, Tina can claim she lacked knowledge of her default and request the court grant her additional time to cure. Communicate with the Tenant. It is best that Management sends Tina written communication after sending the default notice. Management should do this to demonstrate a good faith effort to rectify the default in terms agreeable to Tina and RWU. If Tina cures the default, Management no longer has a reason to evict Tina. If Tina fails to cure the default, Management must send Tina a 14-Day Notice to Pay or Quit and contact an attorney in anticipation of having to file an eviction petition. 14-Day Notice to Pay or Quit. Real Property Actions and Proceedings Law § 711(2) requires Management to serve Tina with a 14-Day Notice to Pay or Quit via personal hand delivery or double mailing, demanding Tina pay her rental arrears. The notice must breakdown RWU’s calculation of Tina’s arrears and put her on notice that if she fails to cure her default at the end of the 14-day notice period, RWU will initiate an eviction proceeding. As proof that Management sent the 14-Day Notice to Pay or Quit, an affidavit of service must be executed and notarized. Preparing the Petition. Management must work with their attorney to finalize the eviction petition. The attorney will need the tenant file, which, for a nonpayment eviction, must include: (1) any default notices and the corresponding certified mail receipts, (2) the 14-Day Notice to Pay or Quit and the corresponding affidavit of service, and (3) a copy of the fully executed lease agreement. The attorney may also need the management agreement with RWU to eliminate any challenges to Management’s ability to evict Tina. Tenant 2: Holdover A landlord has the right to have a tenant removed from an apartment if that tenant stays beyond the termination of their lease term without permission. The lease termination date should be included within the lease agreement, and Management should follow the steps below to ensure the correct paperwork exists to effectuate Charlie’s eviction if he decides to continue his occupancy of the apartment without RWU’s permission: Review the Lease Agreement. The lease agreement should list the lease term, informing Management when a Non-Renewal Notice should be sent to Charlie. Send Non-Renewal Notice. Because Charlie has a lease term of one year, he is entitled to a 60-Day Notice of Non-Renewal under Real Property Law § 226-C. The notice should be sent via certified mail and must put Charlie on notice that RWU has elected not to renew Charlie’s lease. The notice must also inform Charlie that his failure to vacate the premises will force RWU to initiate an eviction proceeding. Monitor the Premises. It is possible that Charlie may vacate the premises before his lease term ends, which will eliminate Management’s need to file an eviction petition. However, if Charlie fails to vacate the premises at the end of his lease term, Management should contact an attorney in anticipation of having to file an eviction petition. Send Default Notice. It is not unusual for a tenant to stop paying rent after receiving a Non-Renewal Notice. If Charlie stops paying his rent, Management must send Charlie a Notice of Failure to Receive Rent via certified mail for each month Charlie fails to pay rent. This notice must be sent after any grace period included in the lease agreement, and act as support for RWU’s entitlement to a judgment for rental arrears. Preparing the Petition. To file an eviction petition for a holdover tenant, the attorney Management retains will need: (1) the Non-Renewal Notice, (2) the default notices, if any, and the corresponding certified mail receipts, and (3) a copy of the fully executed lease agreement. The Takeaway. Evictions can be tricky. Efficiency and cost effectiveness depends on: (1) a landlord’s ability to maintain complete tenant records, ensuring each tenant has a file that includes (a) a fully executed lease agreement, (b) an updated rental ledger for the tenant, (c) all written communications to and from the tenant, and (d) the records of service for any notices sent to the tenant, and (2) getting an attorney involved as early in the process as possible. Katherine T. McCarley is an Associate in Underberg & Kessler LLP’s Litigation Practice Group. She focuses her practice in the areas of civil and commercial litigation, defending institutional and small businesses. Katherine can be reached at (585) 258-2820 or at kmccarley@underbergkessler.com. Reprinted with permission from The Daily Record and available as a PDF file here.