We Practice Law for Your Peace of Mind

Safely Clear Snow and Ice

Author: Robin Friedman

January 26th, 2015

The importance of removing snow and ice from sidewalks should never be underestimated.  If it is not removed, sidewalks can become so dangerous that it is almost impossible to walk on them.  This can pose a problem for homeowners and landlords alike.

It also means that emergency crews may not be able to get to your house if you need them.  Furthermore, it makes doing simple things like walking out to get the mail or letting the dog out much more difficult and potentially hazardous than it needs to be.

When there is a lot of snow and ice on your sidewalks, there is always that chance that you could slip and fall, and that you could be severely injured.  Having said that, it is equally important that you engage in the removal of snow and ice in a safe manner.  People are injured on a daily basis when they are trying to remove snow and ice from their sidewalks. This usually happens for one of two reasons.  They are either using an incorrect technique, and they end up with some type of musculoskeletal injury or they are over exerting  themselves, and the problems can be even worse.  In some rare cases, injuries happen because people stay out too long, and they don’t realize that they are becoming hypothermic.

In order to do it safely, it is important to take stock of your personal health and make sure that you are in good enough shape that you can safely do it.  If you have a heart condition or a respiratory condition, it is best that you get someone else to do it for you.  If that is not possible, try to tackle the job when there is not  so much snow and ice that has to be removed and take frequent breaks. Furthermore, you need to have a good snow shovel and make sure that you are using your knees more than your back to remove everything.  Otherwise, you could suffer a significant back injury.  Last but not least, dress appropriately and do your best not to stay out in the cold for too long.  The last thing that you want to do is allow your core body temperature to drop to potentially dangerous levels or suffer from frostbite because you are staying out there too long.

If you follow these safety procedures, you should be able to remove snow and ice from your sidewalks much more safely, thereby creating a safer situation for everyone involved.

Taking Stock of Your Business

Author: Robin Friedman

January 21st, 2015

Slow business cycles provide a unique opportunity for companies to evaluate important and often overlooked aspects of their operation.  In short, this “down” time offers business owners and executives a chance to get their affairs in order.

Employment policies, such as vacation and leave policies, whether or not contained in a company employee handbook, should be reviewed and updated periodically.  Employment termination policies should be looked at carefully if staff reductions are planned.  Obtaining releases from terminated employees, in exchange for severance packages, may help to avoid litigation.  Non-compete and non-disclosure provisions should be in place to deter departing employees from taking valuable company property when they leave.

Customer and supplier contracts, work orders, invoice forms, and other documents used in the ordinary course of business should be should be looked at and, if necessary, updated and improved.  If these documents have not been reviewed by an attorney, now would be a good time to do so. If you are experiencing increased difficulty in getting paid from customers, you need to look at ways to improve collection.

Another area of operation which is overlooked during busy times is internal security, especially for your computer, office equipment, files, records and the like.  One way to protect your important data and records is to restrict employee access.  You may have concerns about employees’ personal use of the internet and the company computer during business hours.  Of course, it is essential that good back-up systems are in place.  Devices to prevent the theft and/or destruction of valuable information should be installed.

Corporate books, which usually contain original incorporation documents, stock certificates and the like, should be looked at and updated.  Often, companies move but fail to change their incorporation documents to reflect this.  If the business is owned by more than one individual, a shareholder, partnership or operating agreement should be in place to protect the owners’ interests upon the death, disability or retirement of a shareholder or partner.  Minutes of shareholder and board of directors meetings should be kept.  At a minimum, major corporate actions should be recorded in writing.

Again, slow business cycles can provide a unique opportunity to review and modify some important aspects of your business.  The changes made will likely prove valuable in avoiding litigation, theft and collection problems.

Winter Weather Accidents

Author: Robin Friedman

January 21st, 2015

Western New York is known for its severe winter weather, and this year has certainly brought its fair share of cold weather and winter storms.  Winter weather often creates slippery conditions that can significantly increase the risk of injury due to slip and falls or motor vehicle accidents. In addition to these risks, cold weather and snow or ice can also have a negative impact on the structural integrity of roads and sidewalks.

When moisture and salt gets into the pavement, it can cause large holes and cracks many of us know as “potholes.” Victims of car accidents caused by poor road maintenance may be able to recover for their losses by bringing a personal injury claim.

This year has been particularly bad for potholes on our local roads; with more weather on the way, we can only assume the issue will get worse before it gets better.  Generally speaking, public entities are responsible for the maintenance of roadways, which makes suing after an accident caused by poor road design or maintenance more complicated than accidents only involving private parties.

After an accident, victims should try and document as much information about the way the accident occurred as possible.  If feasible, take pictures of any dangerous condition that you believe may have contributed to the accident.  Finally, be sure to seek medical attention after an accident to make sure any injuries you sustained are properly diagnosed and treated.

If you have been involved in an accident that occurred during winter driving conditions and you were injured, you may be entitle to bring a claim.  Call the legal team at HoganWillig and let us evaluate your case.

STAR Real Property Tax Exemptions

Author: Linda Grear

January 17th, 2015

People often have questions regarding the STAR real property tax exemption.  The STAR exemption entitles anyone who owns a primary residence to a reduction in the amount they pay for School Tax (STAR = School Tax Relief).  There are two types of exemptions.  The Basic STAR exemption is available to anyone owning a primary residence, as long the annual combined income of all owners is less than $500,000 per year.  If you are a first time homeowner, you can register using a RP-425 form, which you can get from your local (village, town, city) property tax assessor or the application may be downloaded online from the following address:  http://www.tax.ny.gov/forms/orpts/star.htm.

The Enhanced STAR exemption is available to senior citizens.  The exemption is available to any homeowner 65 years of age or older, so long as the home is his/ her primary residence, and if the total annual income for all the owners is below $83,300.  Income means federal “adjusted gross income” minus the “taxable amount” of total distributions from Individual Retirement Accounts (IRAs).

In years past, the homeowner only had to register once and the exemption was automatically renewed.  In 2014 and for years after, the New York State legislation requires anyone who was previously registered to re-register for the STAR exemption.  The State found that many taxpayers, either purposely or by mistake, were taking exemptions on more than one property.  Again, everyone meeting the income requirement is entitled to one STAR exemption, but it must be for their primary residence.  Rental properties, summer homes, are not eligible for the STAR exemption.

To confirm your registration, you may contact the New York State Department of Taxation and Finance online or by phone (518) 457-2036.

Employee or Independent Contractor?

Author: Diane Tiveron

December 25th, 2014

Businesses often question how to compensate those that provide the business with services.  Clients often wonder if they can treat particular workers as independent contractors rather than employees.

Both the IRS and the New York State Department of Labor have opinions and guidelines with respect to whether an individual is considered an employee or an independent contractor.  It would be important and helpful to understand the factors that are considered.

Generally speaking, some of the factors are:

  1. Whether the person performing the services is engaged in an occupation or a business separate from the “employer”.
  2. Whether or not the work is part of the regular business of the employer.
  3. Whether the worker supplies tools, a place to work, and instruments of his or her own or whether he has to use those of the employer.
  4. Whether the services rendered require a special skill.
  5. The length of time for which the services are to be performed.
  6. The method of payment – whether by time or by the job.

There are other factors.  For instance, if an employee can perform a job whenever he or she would like, the status is closer to that of an independent contractor.   An employee can typically enjoy benefits such as health insurance where an independent contractor does not.

It is important to know the differences since businesses may find themselves the subject of audits and to the extent that employees are misclassified, there can be costs and penalties at risk.

Protecting Your Business’s Name

Author: Leonard London

December 11th, 2014

Many people believe that simply by incorporating a corporation or forming a limited liability company they will be entitled to exclusive use of the name.  This is not the case and another Corporation or LLC can be formed with a similar name as long as it is distinguished. A geographical limitation will often suffice. For example the Secretary of State would probably approve Rochester Acme Corporation even though Acme Corporation had been previously filed.

If your name is used in connection with goods or services the corporate or LLC name provides no protection against others using the name. For maximum protection a trademark or service mark registration should be obtained. If your goods and services are sold exclusively in New York you are eligible to apply for a New York registration which will offer protection against other New York users and establish your date of first usage. If your goods and services are sold in interstate or international commerce, including sales to Canada, you would be entitled to register your mark with the United States Trademark Office and that will provide additional protection.

What’s In A Name? The distinction between separate and marital property

December 5th, 2014

Absent a prenuptial agreement to the contrary, everything accumulated during a marriage, with the exception of gifts from third parties, inheritances and personal injury awards, are considered marital property; title is not controlling.   This includes all income from employment received during the marriage.  Therefore, placing these monies into an account in your individual name will result in that account being considered marital property in the event of dissolution of the marriage.

This is a common misconception. Although many people know that inheritances or gifts received from third parties are considered marital property, a common mistake that people make is placing those funds into a “marital account”.  For example, during the marriage, the wife receives an inheritance of $20,000 from her father’s estate.  She places the funds into her individual savings account, which she has funded in the past with a small portion of her income, to pay for small items, including gifts for her Husband. Thereafter, she continues to fund and withdraw from the account in the same manner as she had throughout the marriage.   Unfortunately for the wife, in the event of termination of the marriage, her husband will have a strong argument that the $20,000 inheritance should be treated as marital property.  This is for two reasons: she placed the money into a “marital account” and she also continued to fund the account with marital monies.  When separate property is “commingled” with marital property, it can lose its separate property character and generally, will be considered marital property in the event of a divorce.

Therefore in the event that one party receives an inheritance or gift from a third-party or receives a personal injury award, that spouse should open and deposit the funds into a new account. Thereafter, no additional funds should be deposited into that account. Otherwise that separate property could lose its separate character.

Similarly, in the event that either spouse enters the marriage with premarital and therefore, separate property assets and a prenuptial agreement has not been executed, the titled spouse should take similar steps to protect those separate, premarital assets.  Keeping the assets in their individual name and not “comingling” them with marital assets or marital funds will help protect their separate character.

Another important distinction is that, while gifts from third parties received during the marriage will be considered separate property, gifts from the other spouse received during the marriage are considered marital property.   For example, if the wife purchases a new car for her Husband for his birthday using monies she received and set aside from her income and places the vehicle in the husband’s name, that vehicle will be considered marital property subject to equitable distribution.

New York is an equitable distribution state, which means that, in the event of a termination of the marriage, assets will be distributed equitably and not necessarily equally. For instance, the titled spouse of a business or a degree acquired during the marriage will generally be entitled to retain more than 50% of the overall value of that asset. The non titled spouse’s direct and indirect efforts as they relate to those assets will determine the non titled spouse’s interest during equitable distribution.

No one enters into a marriage with the intention of ending it and hopefully, most couples feel the same way for many years into their marriage.  However, everyone must recognize that people, things and people can change.  Therefore, understanding the law and your rights is important in the event that things do.


We Practice Law for Your Peace of Mind