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Pawling Public Radio: This Side of the Law:The Simple Truth, Dangers of Guaranteeing a Loan in the State of New York

This Side of the Law:The Simple Truth, Dangers of Guaranteeing a Loan in the State of New York

Pawling Public Radio: This Side of the Law: Berlandi Nussbaum & Reitzas LLP Hudson Valley | New York | Attorneys

By: Joshua T. Reitzas
Partner – Berlandi Nussbaum & Retizas LLP
April 28, 2013
lend-money-to-friends-and-family-300x199

 

Thinking about signing a personal guarantee? Perhaps on behalf of a corporation because the company cannot afford to stand on its own without your assistance?  Or on behalf of a family member whose credit is terrible?  Or even a friend? Well, definitely think again.

Last week, I had the unique privilege of actually arguing in Court the exact opposite sides of the same underlying issue: whether a guarantor has the right to assert a defense on a personal guarantee.  Two different clients, argued in two different types of courts (New York’s version of a “Business Court” and its regular Court), two different types of judges (different demeanor), and a couple of days apart.  In the end, there was only one decision rendered.  New York holds a guarantor strictly liable and defenses, almost always, will likely not be entertained.

What people really need to better understand is that signing personal guarantees may affect them both when the loan is considered in default, as well as when things are status quo (i.e. payments are being made timely).  In a default situation, it is more likely than not that a Lender will file suit.  Further, if the Guarantor sets forth a defense (i.e. answers the complaint), a summary judgment motion will presumably then be filed or at least one should be filed in my opinion (assuming the case was properly made out prior to suit).  This basically means that the Lender will ask the Court for a judgment immediately without having the expense of a trial.  All that would be needed is for the Lender to prove its prima facie case evidencing (a) that the loan was made, (b) that the unconditional and irrevocable Guarantee exists, and (c) the Borrower under the loan has defaulted (i.e. nobody paid the bill).

Assuming the Lender makes this showing, the burden would then shift to the party opposing the motion to produce evidentiary proof sufficient to establish the existence of material issues of fact remaining for trial. In sum, all a Lender needs to do is show the Court the underlying note (i.e. the actual loan document), the actual copy of the Guarantee (i.e. the physical document) and proof that the underlying loan was not paid back (i.e. account statements from the Lender’s financial records and supported by a proper affidavit).  This is a very tough obstacle for any Guarantor to overcome.  In fact, New York is so harsh that even if a Guarantor could assert a defense, it may be completely disregarded.

Now, keep in mind that Guarantees will often times include language in the document expressly mandating that Guarantors waive the right to any possible defense(s), offset(s), or counterclaim(s).  As mentioned earlier, even in the absence of specific waiver language, New York has held Guarantors liable.  So if you are thinking about signing that Guarantee, we suggest that you first analyze the gravity of the situation upon signing a Guaranty – do you really know what you are getting in for?

In one of our cases, the Guarantor purchased a $17,000,000 home and placed ownership into a corporate entity and then executed a Guarantee with respect to the mortgage.  We advised the Lender to pursue a money judgment and not to do a residential foreclose (so as to avoid any possible right to a modification of the loan that may exist otherwise). This is absolutely within the right of a Lender to select the type of remedy in New York.

Finally, Guarantors should be somewhat reticent about executing Guarantees, as the underlying obligation must be accounted for on all bank applications and/or personal financial statements.  Recently, we discovered that a client’s business credit line (which the client personally guaranteed) was not included on a recent bank loan application.  Thank goodness we caught it.  If we did not, the bank may have brought some serious allegations against our client for possible misrepresentation on the loan application.

We recommend that if you are thinking about signing a Guarantee, you first consult with an attorney to know exactly what you are getting in for.  And if you elect not to do so, we suggest reading this article again and again to make sure you completely understand what you may be faced with in the future.

Always feel free to call or write if you have any questions.

Berlandi Nussbaum & Retizas LLP

New York | Hudson Valley

Attorneys

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Berlandi Nussbaum & Reitzas LLP

Hudson Valley | New York | Attorneys

Pawling Public Radio: Three Ways to Avoid Liability for Alcohol Served at Association-Sponsored Social Activities

Pawling Public Radio

This Side of the Law: Three Ways to Avoid Liability for Alcohol Served at Association-Sponsored Social Activities

Pawling Public Radio: BNR – Law Firm NYC | Hudson Valley

By Jay Nussbaum
Partner Berlandi Nussbaum & Reitzas LLP
January 17, 2013

Organizing social activities like pool parties, cookouts, and holiday parties is a big part of managing a community association. They bring members together and foster a sense of commu­nity. But association-sponsored social activities can be risky, too, if you serve alcohol.

If a member, employee, or guest drinks too much and gets into an accident, the victims—including the person who caused the accident—may sue the associa­tion and/or manager. And in many states, they’ll have a good chance of winning. The easiest way to avoid liability for alcohol- relat­ed accidents is to not serve alcohol at social events you sponsor. Many community associations are now doing this, making all social gatherings “dry”—that is, alcohol free.

But if you do decide to serve alcohol at association-sponsored social events, you can take steps to minimize your exposure to liability. Here are three things you can do:

Pawling Public Radio: Three Ways to Avoid Liability for Alcohol Served at Association-Sponsored Social Activities

  • Have the right kind of insurance coverage. Your general liability policy may already have a clause giving you “limited liquor liability” or “host liquor lia­bility” coverage. These clauses protect you against lia­bility for accidents caused by people who have consumed liquor you served. If you don’t have this coverage, and you plan to serve alcohol at association-sponsored social events, you should get it.PRACTICAL. POINTER: If you have only one activity a year at which you serve alcohol—say, at a holiday party—consider saving money by getting limited liquor liability coverage just for the single event, rather than having it added on to your policy for year-round coverage.
  • Don’t charge fee for admission or alcohol. Just having the right kind of insurance coverage isn’t good enough. If you charge money for the drinks you serve, the limited liquor liability clause won’t help you much. It won’t cover you for injuries for which the association might be held liable as a result of its:
    • Causing or contributing to the intoxication of any person;
    • Furnishing alcohol to an underage person;
    • Furnishing alcohol to an already intoxicated per­son; or
    • Violating any law in the provision of alcohol.

A limited liquor liability clause isn’t intended to cover those in the business of selling, serving, or provid­ing alcohol.  So if you want to serve alcohol at a social function, don’t charge for it. That way, you won’t be con­sidered to be in the business of selling, serving, or pro­viding alcohol, and your limited liquor liability clause should cover you in case there’s an accident.Don’t charge an entry fee, either. Some insurance companies might say that even though you’re not charging money for the alcohol itself, charging for entry into an event at which alcohol is served is the same as being in the business of selling, serving, or pro­viding alcohol. If that’s what they con­clude, they won’t cover you for any accidents that happen. So err on the side of caution and don’t charge an entry fee.

  • Hire professionals to serve the alcohol. An alternative is to “subcontract” the provision of alcohol to a professional, licensed organization that uses trained bartenders. Having a professional bartender can help protect you because bartenders are trained to spot minors and to know when to stop serv­ing guests who are intoxicated—tasks your employees won’t be able to do as well.The other big advantage of subcontracting out the provision of alcohol is that professional companies carry liquor liability insurance to shield them—and you—from liability. Insist that the company you hire name you on its insurance policy as an “additional insured” for the association-sponsored social event. Getting an outside firm to serve the liquor is the way to go, as long as it’s insured and the association is named on the policy as an additional insured. 

Pawling Public Radio: BNR – Law Firm NYC | Hudson Valley

Pawling Public Radio: Three Ways to Avoid Liability for Alcohol Served at Association-Sponsored Social Activities

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Pawling Public Radio: This Side of the Law

This Side of the Law (Listen to the Radio Broadcast)

October 24, 2012

By

Brian Berlandi

Partner – Berlandi Nussbaum & Retizas LLP

Pawling Public Radio: BNR LLP – Law Firm NYC | Hudson Valley

People have long and often said that the best thing about a small town is that “it’s a small town.” I have always found that to be the case with Pawling, where friends and acquaintances can be found on every street corner, at all times of the day, and where people truly care about their neighbors’ well-being. These are the biggest reasons why I was intent upon BNR maintaining an office in Pawling when we formed the firm in the summer of 2011.

BNR is a general practice law firm, which offers our clients a wide variety of legal services, including entertainment law, commercial litigation, congressional investigations, commercial and residential real estate, corporate law, election law, mergers and acquisitions, employment law, intellectual property, tax, and criminal defense (federal and state). As devoted as BNR is to providing high-quality legal services, we are equally committed to improving the way in which clients pay for legal services.  Therefore, we offer a variety of creative fee alternatives to better align our interests with those of our clients. I invite you to visit our website to learn more about our practice and our attorneys. www.bnrllp.com

Although headquartered in mid-town Manhattan, BNR maintains an office in Pawling at 527 Route 22 – across the lobby from Rose & Kiernan Insurance Agency, and in the northern section of the same building in which the Pawling Central School District offices are located.

Moving forward, BNR is delighted to be working with Pawling Public Radio to provide a monthly legal column about new and interesting legal issues on a variety of topics. We hope you will find them compelling. Of course, we welcome any suggestions or requests for topics that are important or relevant to you!

Please don’t hesitate to stop into our office any time to visit, or to have a cup of coffee, or to just say hello, or to discuss any legal needs you may have. We love seeing our friends, and we can never have enough of them! We have already had the pleasure and privilege of working with so many of you, and we would be delighted for the opportunity to help even more of you.

Pawling Public Radio: This Side of the Law |BNR Berlandi Nussbaum & Reitzas LLP Attorneys of New York, Hudson Valley& New Jersey

Garnish Member’s Salary to Collect Past Due Assessments Without Having to Foreclose

Creditors’ Rights & Commercial Litigation

Garnish Member’s Salary to Collect Past Due Assessments Without Having to Foreclose

INSIDER’S COMPLETE GUIDE TO MANAGING COMMUNITY ASSOCIATIONS

Jay Nussbaum
Berlandi Nussbaum & Reitzas LLP

Legislatures nationwide have been seeking ways to make it harder for community associations to foreclose on members who owe money to the association. Because of a few high-profile cases, the political climate is such that many of these state legislatures may succeed. But your association still needs to collect assessments, fines, and late fees in order to operate. So what can you do to collect without having to resort to the drastic measure of foreclosure? One thing you can do if you’ve already gotten a money judgment in court against the member and you know where the member works- is to garnish the member’s salary. Often called “wage garnishment,” this allows you to collect a certain percentage of the member’s net salary until the judgment is paid off. It’s available to collect past due assessments, fines, and late fees in every state except Texas, North Carolina, South Carolina, and Pennsylvania.  Garnishing wages is the most effective tool associations have to collect money owed to them, according to Paul Williams of ACA International. We’ll give you the basics on wage garnishment and the six steps you must take to garnish a member’s wages.

Garnishment Basics

Garnishment specifics vary from state to state. But in nearly all states, you must first have a court judgment that orders the member to pay you money. The procedure after you get the judgment will depend on the laws of your state, but it usually involves your filling out court forms and giving them to your county sheriff to deliver to the member’s employer. (In legal terms, this is called “serving” the employer. See the box on p. 27 for tips on how to find the employer). Once the sheriff serves the employer, the employer will take out money from the member’s paycheck and send you a check, either directly or through the sheriff. It’s illegal for the employer to ignore the garnishment forms or to fire the member because of them, says Williams. Federal law limits the amow1t you can garnish. In most cases, you can’t collect more than 25 percent of a person’s net weekly earnings after taxes, Social Security, and other required deductions are taken out. Some state laws also limit how much you can garnish. For example, in New York, you can get only 10 percent, and in Wisconsin, you can get only 20 percent, says Williams.

PRACTICAL POINTER: Consult your attorney if you want to garnish the salary of a federal employee or an active member of the military, Williams warns. Different rules apply that often involve specific and highly complex forms and procedures, and if you fail to follow them precisely, your garnishment request will be denied, he says.

Can You Do It Yourself?

It’s smart to use an attorney or a collection agency when you garnish a member’s wages, says Williams. But some managers handle wage garnishment on their own. Consider these factors in making your decision:

  • Complexity of garnishment procedure in your state. For example, if you must file the forms in court, as some states require, you may need an attorney.
  • Size of your community. If your community is large or you manage many  communities, it’s probably cost effective to use an attorney or a collection agency.
  • Experience with other legal processes. If you’re comfortable filling out legal papers, you might be able to garnish wages on your own.

Is It Worth It?

Before filling out the garnishment forms and paying the court or sheriff’s fee, evaluate whether garnishment is worth your time and money, says Robin Hein, a Georgia attorney. With small judgments, it’s often not worth it, explains John McMillan, a Florida attorney. Figure out how much it will cost to garnish, including your time. If this amount exceeds the judgment, don ‘t garnish, says McMillan.

Here are the factors to consider:

  • Amount of judgment. There’s no cutoff point as to how much a member must owe for you to garnish his wages, says McMillan. But as a general rule, if the judgment is less than a few hundred dollars, it’s probably not worth it, he says. For example, if you have a $300 judgment and garnishment fees cost $1 00, it’s not worth it to garnish. On the other hand, if a member owes you a few thousand dollars, it’s probably worth the work.
  • Fees. Depending on your state, the fees may end up costing more than the judgment. For example, in Florida, you must pay a $100 deposit (refundable only if the sheriff can’t serve the employer) and a sheriff’s fee, says McMillan. But in California, according to Brian Stevens, a California collections expert, you pay only $7 for the garnishment forms and $25 for the sheriff.
  • Type of job. In some situations, you can predict that the member will quit the job once his salary is garnished, says Stevens. For example, a restaurant busboy probably won’t stick arow1d if his wages are garnished, he says. Look at how long the member has been at the job, the job’s skill level, and whether the nature of the job would make it likely that the member would leave it.
  • Member’s salary. Sometimes the employee’s salary is too low and you won’t be able to garnish, says Williams. Federal and state laws prevent you from garnishing the salary of a person whose weekly earnings arc below a certain level. Sometimes you won’t know the member’s salary, says Hein, until after the sheriff serves the forms and the employer calculates how much to withhold.
  • Location of member’s job. If the member’s job is in another state, you’ll have to file more legal forms. You’ll also have to sue the member by filing a judgment in that state’s court.

SIX BASIC GARNISHMENT STEPS

Here are the six basic steps you’ll need to take to garnish a member’s wages:

Step #1: Get Forms for Garnishing Wages

When you get a court judgment, tell the court clerk you want to “execute,” or enforce, the judgment by garnishing the member’s wages. Ask the clerk what forms you need, the fees involved, and what steps to take, says Williams. If your judgment is mailed to you, you’ll have to go to the court to get the forms you need and ask about the fees, he says. The forms you need will vary from state to state. For example, in many states, like Tennessee and California, you’ll need to get what’s known as a “writ of  execution.”  In Arizona, you’ll need a “writ of garnishment.” In some states, like Florida, you’ll need both. In Georgia, you’ll need an “affidavit for continuing garnishment” and a “summons of continuing garnishment.”

Step #2: Fill Out Forms

Fill out the forms required in your state. The forms authorize the employer to withhold money from the member’s paycheck for you. You may need the following information to fill out the forms: the name and current address of the member (if he’s no longer living in the community), the member’s Social Security number, the member’s employer, the amount of the judgment, the fees, and so on. You can get most of the information from your court judgment. When filling out the forms, make sure you get the name of the member’s employer right. Don’t use a shorthand version, says Hein. If the employer isn’t accurately named in the forms, it may be legally able to refuse to garnish the member’s wages.

Step #3: File Forms with Court, if Required

Depending on what state and county you’re in, you might have to file the forms with the court. For example, in Georgia and California, you must do this. But in New York, you can just fill out the forms and give them to the sheriff-no court fi ling is required. If you must file the forms, you ‘ll need to pay a court fee. In some states, you must first try to collect on the judgment on your own and/or wait until the member has a chance to appeal tJ1e judgment before you can file garnishment forms, Williams notes. For example, in West Virginia, you must wait 20 days after getting a judgment before fi ling the forms. In California, you must wait 30 days for a small clain1s filing, says Stevens.

Step #4: Give Forms to Sheriff to Serve Employer

Once you file the forms in court (if required), give the completed copy of the forms to your county sheriff. Your sheriff or  Marshall will then serve the garnishment forms on the employer. Depending on how busy the sheriff is, it may take a week or so before he serves the forms, says Stevens. Once the sheriff serves the employer, says Stevens, the employer must comply with the garnishment order.

In most states, the clerk of the court will then notify the member of the proposed garnishment. In some states, like Florida, you don ‘t  have to notify the member, says McMillan. In other states, like Colorado, you must serve the forms on the employer and the member yourself. If your state requires you to serve the forms yourself, ask your attorney for help or ask the clerk of the court how to serve the forms. Depending on your state, the employer will either pay you directly or send payment to the court, which will then send you a check. Or the employer will send the check to the sheriff, who will then send the check to you. You’ll get a check either every month or every other month.

In some states, like Colorado, you can garnish for only a certain time period. Then you must re-file new garnishment forms. In many states, though, you need only one set of garnishment forms, and you may continue to garnish an individual’s salary until the judgment is paid off.

Step #5: Pay Fee to Sheriff

You must pay a sheriff If’s fee to cover costs. For example in New York, the sheriff ‘s fee is approximately $60. Once the forms are served, don’t r—- ————————, expect a refund, even if the member offers to settle and you never actually garnish wages. After all, the sheriff’s job is to serve the forms, not to ensure collection of the money.

Step #6: Collect Money Each Month

Once the sheriff serves the employer, the employer may have to wait a certain number of days, depending on your state’s Jaw, before taking the money out of the member’s wages. For example, in California, an employer must wait I 0 days after getting the garnishment forn1s, says Stevens. In other states, an employer must wait 30 days, says Williams. This gives the member a chance to challenge the garnishment. For example, he may claim that the garnislm1ent imposes an undue hardship on him because he can’t support his family. After the waiting period is over, the employer should begin taking money from the member’s paycheck (assuming that the member doesn’t challenge the garnishment). But if the member has other judgments against him that are already being garnished, they will take priority.

How to Track Down Where Member Works

To garnish a member’s wages. you must find out where the member works. Here are a few ways of doing this.

Prejudgment discovery. Because you’ll first have to get a judgment against the member before you can garnish his wages. you’ll have an opportunity during the lawsuit’s discovery process to find out where he works. says Georgia attorney Robin Hein. Whether in a  deposition (where your attorney gets to ask the member questions face to face). or interrogatories (written questions that the member answers and sends back to your attorney in writing). ask the member if he has a job and. if so. where he works. These questions are usually permissible at this stage of a lawsuit. says Hein.

Employer and phone number. If you call the employer the member told you about during the lawsuit and he no longer works there. ask if the employer’s human resources department has a forwarding phone number for the member’s current employer. Be sure to get the full  company name so that you have the correct formal name to put on the garnishment forms.

Employment supervisor. If the employer’s human resources department doesn’t have forwarding information for the member. his former supervisor may have the information. says Brian Stevens, a California collections expert.

Social Security number. If you know the member’s Social Security number you may be able to pull his credit report. Sometimes the person’s present employment is listed on the report, says Stevens. But Stevens warns that credit reporting bureaus have specific rules about the reasons for which they’ll allow you to see credit reports, so you’ll have to check with the bureau, your collection agency, or your attorney.

Emergency contacts. If you have emergency contacts for the member. You can call them and ask in a polite tone where you can reach the member. Says Stevens. “Sometimes this works:· he says, “and the person will tell where you can find the member:· If the person asks who you are, you can identify yourself. says Stevens. Be careful what you say about the member when you call the employer or other contacts. Be professional and don’t mention that you’re collecting money the member owes the association, says Hein. The member could sue you for slander or defamation-that is, saying untrue things that damage his reputation.

Guidelines When Asking Job Applicants About Drug and Alcohol Use

Employment & Labor Law

Follow Federal Guidelines When Asking Job Applicants About Drug and Alcohol Use

INSIDER’S COMPLETE GUIDE TO MANAGING COMMUNITY ASSOCIATIONS
Jay Nussbaum
Berlandi Nussbaum & Reitzas LLP

What can you ask a job applicant about drug and alcohol use without facing a discrimination lawsuit? You must be very careful if you have 15 or more employees. (The law doesn’t apply to companies with fewer than 15 employees.) While you want a workplace free of drug- and alcohol-related problems, the Americans with Disabilities Act (ADA) bars companies with 15 or more employees from discriminating against the disabled, including those who are recovered or recovering alcoholics or drug addicts. It’s easy to fall into a trap and ask the wrong questions. And if you do, you could be held liable for damages. In 1999, Wal-Mart had to pay $ 157,500 for asking improper questions [Equal Employment Opportunity Commission v. Wai-Mart Stores, Inc.). Using an Oct. I 0, 1995, memo issued by the Equal Employment Opportunity Commission (EEOC), we’ll help you identify the questions you can legally ask job applicants about drug and alcohol use. The memo indicates that a very fine line exists between questions that are okay and those that could get you into trouble. To help you screen job applicants without violating the ADA, we’ll tell you what the memo says about drug and alcohol-related questions. We’ve also put together a chart separating the good questions from the bad ones (seep. 6).

Dont Ask Questions About Drug or Alcohol Disabilities

Having employees who don’t use drugs and alcohol on the job is of prime importance to community association members and managers, notes Larry Niemann, general counsel to the Texas Apartment Association. Employees who use drugs and alcohol on the job are more likely to cause accidents and create problems with members.

But in your zeal to find out about an applicant’s drug or alcohol use, don’t ask questions about disabilities, that could put you in the wrong. TI1e ADA makes it illegal to discriminate based on a job applicant’s disability, and recovered drug addicts and alcoholics are considered to have a disability under the ADA. You can’t deny them employment because of their past condition. The same is true of recovering drug addictsthose who are enrolled in a rehabilitation program. Current

alcoholics are also considered disabled whether or not they are in a rehab program, says Niemann. As a general rule, you can’t ask any question that’s likely to bring out information about a disability, including past drug addiction or past or present alcoholism. These questions don’t belong on an application and shouldn’t be asked in an interview. An employer

can ask disability-related questions or require a medical exam only after it has made a ” real” job offer. The EEOC considers a job offer to be “real” only if the employer has evaluated all nonmedical information it reasonably could have obtained before making the offer. (The offer can sti II be contingent on an applicant’s answering disability-related questions and/or passing a medical exam.) Even a job applicant who isn’t disabled has the right to sue you for asking the wrong questions [Mack v. Johnstown America Corp.].

 

Asking About Illegal Drug Use

The memo allows you to ask a job applicant if he or she currently uses illegal drugs. Someone who currently uses illegal drugs isn’t protected by the ADA. If an applicant admits to currently using illegal drugs, you can also ask which drugs, says Chris Kuczynski, A.D.A. Policy Director for the EEOC.  But asking about an applicant’s prior illegal drug

use gets you into a delicate area. You may not ask questions that are likely to bring out information about past addiction to illegal drugs or controlled substances, because past addiction is considered a disability. But past casual use isn’t considered a disability. That means you may ask about an applicant’s casual use of drugs in the past (for instance, “Have you ever used illegal drugs?”). But you can’t word a question so that the answer would reveal whether the applicant was ever addicted to drugs (for instance, “Have you ever been addicted to drugs?” or “Have you ever been treated for drug addiction or abuse?”). And if an applicant answers yes to “Have you ever used illegal drugs?”- you can’t ask about the extent of the applicant’s past drug use.

Asking About Legal Drug Use

The EEOC memo says that you can’t ask employees about prior or present legal drug use, unless the question is “innocuous” and won’t bring out information about a disability. Many questions about legal drug use are likely to bring out information about a disability (for instance, “What medications are you currently taking?” or “Have you ever taken AZT?”-AZT is an AIDS drug). questions are innocuous and unlikely to bring out information about a disability. For example, if the applicant volunteers that she’s coughing and wheezing because of her allergies, you can mention a medication that you’ve found helpful for your allergies and ask the applicant if she’s tried it.

Asking About Alcohol Use

You can’t ask questions that are likely to bring out information about alcoholism, which is a disability, whether past or present. You can ask an applicant whether she drinks alcohol or whether she has been convicted for driving under the influence, because these questions don’t reveal alcoholism. But asking an applicant how much she drinks is likely to

bring out information that could reveal alcoholism.

Asking About Convictions

The EEOC memo says that under the ADA you can ask applicants about their conviction records because these records aren’t likely to bring out information about a disability. You can specifically ask if the person has ever been convicted of driving under the influence of alcohol. According to Kuczynski, you can also ask whether a person has ever been convicted for the use or sale of illegal drugs.  And you can ask applicants whether they’ve ever sold illegal drugs or whether they currently sell illegal drugs, says Kuczynski. Dealing drugs isn’t a disability, he notes. The EEOC memo says that under the ADA, employers may ask applicants about arrest records. But our legal experts warn that asking about arrest records can get you into trouble under other federal law and the laws of many states. They recommend that you not ask about arrests.

Drug Testing Rules

The EEOC memo says that you may test applicants to determine whether they currently use illegal drugs. But check with your attorney to determine whether your state allows you to require applicants to submit to drug testing. If you test for drugs and get a positive result, you can ask the applicant questions about what legal medications he or she was taking that could account for the result.

Alcohol Testing Rules

The EEOC memo bars you from testing job applicants for alcohol, because alcohol testing is considered a medical test. Note that EEOC rules allow you to test someone for alcohol only after you’ve made the person a job offer contingent upon passing the test. +

 

Whats OK, Whats Not OK

Based on the EEOC memorandum. here’s a guide to the questions you can and can’t-ask prospective employees about drugs and alcohol before you decide whether they’re qualified for the job. Most of these questions were taken directly from the EEOC memo.

OK
  • Do you currently use illegal drugs?
  • If you do. what illegal drugs do you currently use?•
  • Have you ever used illegal drugs?
  • When was the last time you used illegal drugs?
  • Have you used illegal drugs in the past six months?
  • Have you ever been convicted for any drug- or alcohol-related activity?•
  • Have you ever engaged in the sale of illegal drugs?*
  • Do you currently engage in the sale of illegal drugs?•
  • Do you drink alcohol?
  • Have you ever been convicted for driving under the influence of alcohol? •
  • If you test applicants for drugs and a test result is positive. you can ask the applicant the following:
  • What medications have you taken that might have resulted in this positive test result?
  • Are you taking this medication under a lawful prescription?

NOT OK

  • What medications are you currently taking?
  • Have you ever taken (name of legal drug)?
  • How often did you use illegal drugs in the past?
  • Have you ever been addicted to drugs?
  • Have you ever been treated for a drug addiction?
  • Have you ever been treated for drug abuse?
  • How much alcohol do you drink?
  • Have you ever participated in an alcohol rehabilitation program?

Follow Federal Guidelines When Asking Job Applicants About Drug and Alcohol Use 

LEGAL CITATIONS

• Americans with Disabilities Act: 42 USC § 12101 er seq. (1990).

• Equal Employment Opportunity Commission v. Wai-Mart

Stores, Inc.: 202 F.3d 281 (U.S. Ct. App. 10th Cir. 1999).

• Mack v. Johnstown America Corp.: No. CIV A. 97-325J, 1999

WL 304276 (U.S. Dist. Ct. W.O. Pa. 5/12/99).

C 2004 by Vendome Group, LLC (formerly Brownstone Publishers, Inc.). For more in~tion calll-800-643-8095 or visit liii’YII’N.br0’V”11Stone.corn

Pawling Public Radio: Our Town: BNR is AOK

Our Town: BNR is AOK

Pawling Public Radio: BNR – Law Firm NYC | Hudson Valley

August 15, 2012

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There is nothing more inspiring for small town America than experiencing the renewed confidence that comes with new businesses or business expansions taking place within its borders. One such expansion is the new office location of the law firm of Berlandi Nussbaum & Reitzas LLP (BNR) at 517 Rt. 22, in the village of Pawling. Currently undergoing a complete renovation of their office space, which will accommodate several attorneys, they are a general practice firm offering legal services in corporate transactions, litigation, real estate, banking, media & entertainment, intellectual property, tax and trusts and estates, among other areas.

Brian Berlandi, a well known Pawling personality, will be situated in this new office space, having decided that the commute to his New York City office was too much wear and tear on a regular basis.  He described the new Pawling space as the Hudson Valley office of a firm that is national in scope with offices in several locations.  It is from this locale that regional and local clients will be serviced.

Berlandi,  a former partner with Daniels & Porco, decided that it was time to have his own name on the door…”be his own boss and control his own destiny,”…a move that occurred when the firm opened for business July 1, 2011. Brian is a corporate attorney, handling all corporate transactions, banking, IP, technology and health care. He grew up in Boston, attended Bowdoin College as an undergraduate and Boston College Law School, graduating in 1999 and working for many years in several big firms in New York City.

Along with his wife Katie, (granddaughter of the late Dr. and Mrs. Norman Vincent Peale) he currently resides in Sherman with their daughters Amelia and Eloise, and son John. Moving back to the area in 2004 was a “coming home” for Katie, but Brian, describing himself as  “a country boy at heart…just loves the Pawling area,” and donates his time to the community as Vice President of the Pawling Fire Department, and Captain of the Mizzentop Engine Company.

Following an open house celebrating BNR’s newest location Thursday, Aug 16, at Petite on East Main Street from 5-8 p.m., Brian may be reached at 212-804-6329 x501. The BNR website has wonderful information about the firm and the services they offer, and can be found at www.bnrllp.com

Berlandi Nussbaum & Reitzas LLP – Law Firm -Hudson Valley, New York, Manhattan, New Jersey, Connecticut and Washington DC


 

BNR Open House

 

Open House Page

 

 

Still Sitting on the Sidelines?

Commercial Real Estate, Mortgage Financing, Law

Jay Nussbaum

Berlandi Nussbaum & Reitzas LLP
July 13, 2012

Anecdotally at least, there seem to be a lot of commercial real estate investors, developers, etc., who finally like where prices are, like the way returns are penciling out, and are eager to move forward, but haven’t ripped off their warm-ups and gotten into the game because they don’t know where to access mortgage financing.

I’m thinking about this today because I just represented a very aggressive lender on a nice $5.5M loan secured by a 600-unit apartment building in the Southeast. The buyer was very savvy, and realized that conventional financing wasn’t going to be available for his deal because the property he was buying was only 60% leased at the time of acquisition. So instead of wasting his time and losing the deal—or worse, never going to contract at all out of fear of the mortgage market—he wisely found a bridge lender that jumped at the deal. Sure, that’s a more expensive way to go than conventional financing, but it enabled him to buy the property, and after he turns it around (he estimates 12 to 24 months) he’ll refinance out into a conventional loan.

Sure beats sitting around grumbling about the lack of available financing.

Kevin A. Denton
Phone: 212-804-6329 ext 513
527 Route 22, Suite 2, Pawling, NY 12564

The Honorable Kevin A. Denton serves as Of Counsel to the firm. In 1998, he was elected as Town Judge for the Town of Pawling, NY and in 2006, he has been acting Judge for the Village of Pawling, both of which he continues to serve as.

With over 36 years of legal experience, Judge Denton has been practicing law with an emphasis on trusts & estates, real estate, mortgage banking and municipal law. His broad experience includes representing banks and other mortgages in closings and foreclosures. His reputation is known for his prompt and efficient administration of decedent’s estates and effective dealings with Federal & State Estate Tax departments. He has experience in representing criminal defendants at the municipal court level.

Judge Denton has been actively involved in the community by providing pro bono legal services including local churches, the Pawling Fire Department, the Beekman Fire Department & district and the Pawling Historical Society. He has been a guest lecturer for the American Institute of Banking since 1998. In addition, he is the author and contributor to the regular column A Country Lawyer, dealing with legal issues of everyday interest and answering reader’s questions.

EDUCATION

  • Harpur College, Binghamton, NY, 1971, Major American History with emphasis on U.S. Foreign Policy in Far East, BA
  • New England School of Law, Boston, MA, 1974, JD

 PROFESSIONAL ASSOCIATIONS

  • New York State Bar Association
  • Estates & Trusts and International Law Sections
  • Dutchess Co. Bar
  • The Federalist Society
  • NYS Magistrate’s Association
  • Dutchess Co. Magistrate’s Association

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