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 L E G A L   B R I E F
 
January 2013
Newsletter Archive
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Client Advisory
Intellectual Property Update
Landlord/Tenant Update
Wills, Trusts & Estates Update
Negotiating Update
Firm News
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Campolo, Middleton & McCormick, LLP, is a full-service business law firm that represents clients in a wide variety of legal matters including litigation and appeals; corporate and technology; real estate development and zoning; wills, trusts and estates; labor and employment; personal injury matters including the defense of general liability, construction, premises liability and transportation cases.
 
3340 Veterans Highway Suite 400
Bohemia, NY 11716
p 631-738-9100
f  631-738-0659

  
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Disclaimer
The information contained in this newsletter is provided for informational purposes only, and should not be construed as legal advice on any subject matter. The Firm provides legal advice and other services only to persons or entities with which it has established an attorney-client relationship. No recipients of information from this newsletter, clients or otherwise, should act or refrain from acting on the basis of any information included in this newsletter without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state. The content of this newsletter contains general information and may not reflect current legal developments. The Firm disclaims all liability in respect to actions taken or not taken based on any or all of the contents of this newsletter.
 

Client Advisory



Cuomo Signs Notice of Claim Legislation 
by Scott Middleton, Esq. 

 

Governor Andrew Cuomo has approved legislation designed to streamline the process of filing lawsuits against municipalities and other government entities in New York, providing the groundwork for uniform, fair, cost-effective Middleton and straightforward statewide procedures for filing a Notice of Claim.

State law requires individuals intending to sue government entities for any tort -- such as a slip-and-fall or a malpractice at a public hospital -- to file a Notice of Claim to alert a potential defendant of an impending lawsuit. Currently, they must be filed in the county in which an alleged incident occurred.

The bill will allow plaintiffs to file notices of claim with the secretary of state in Albany, who would then notify defendants. Most of the bill's provisions take effect in 180 days.

The legislature will also amend the bill to ensure that local governments and public authorities will not face shortened time periods within which to investigate claims if the secretary of state faces delays in notifying potential defendants.

The legislation also provides for a uniform 90-day filing deadline for all notices of claim, regardless of the type of government entity involved.
        
To read more click here.

   

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Intellectual Property Update 



Covenant Not to Sue Forestalls Trademark
Invalidity Claim
by Eryn Y. Deblois, Esq.

On January 9, 2013, the U.S. Supreme Court in Already, LLC v. Nike, Inc. unanimously ruled that Already could not dispute the validity of one of Nike's trademarks after Nike agreed not to sue the company for infringement. Deblois

Nike sued Already, a designer and marketer of athletic footwear, for trademark infringement and Already counterclaimed to declare the trademark invalid. Eight months after filing suit, Nike provided Already with a covenant not to sue, and subsequently moved to dismiss all claims. In the covenant not to sue, Nike agreed to "unconditionally and irrevocably" refrain from making any claims or demands against Already, as well as its employees, distributors and customers, for any possible cause of action based on trademark infringement, unfair competition or dilution relating to the Nike trademark. In its motion to dismiss, Nike asserted that the covenant not to sue terminated the case or controversy and rendered the case moot.

The district court dismissed the counterclaims as moot and the Second Circuit affirmed. The Supreme Court unanimously affirmed. It held that the broad covenant not to sue, which covered past and future shoes, met the demanding standard of mootness by voluntary cessation, particularly as Already has no plans to develop or market shoes which infringe on the trademark. Since Nike had agreed unconditionally not to sue Already, the federal courts lacked jurisdiction over Already's counterclaims that Nike's trademark is not valid.

Click here to  read more  > >
 


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Landlord/Tenant Update 



Is it a License or a Lease?
by Patrick McCormick, Esq.

Perhaps the better question is not whether the relationship at issue is one between a landlord and tenant or between a licensor and license, but whether it matters legally or practically? The short answer is that it does matter both McCormick legally and practically. But first, what is the distinction between a lease and a license?1

The Court of Appeals, long ago, described a license as "a personal, revocable and non-assignable privilege, conferred either by writing or parol, to do one or more acts upon land without possessing any interest therein." Licenses are commonly used for kiosks found in shopping malls or for cellular towers on roofs of buildings. Under a lease, the landlord surrenders "absolute possession and control of property to another for an agreed-upon rental."2 Thus, the primary factor is whether the occupant has the exclusive right to use the premises. If the use is exclusive, the relationship is most likely a landlord/tenant relationship. If not, a licensor/licensee relationship likely exists.3 As will be discussed below, there may be reasons a landowner may want a licensor/licensee relationship, but it is important to note that courts will analyze the relationship to determine whether it is a licensor/licensee or landlord/tenant relationship and will not simply acquiesce in the characterization of the relationship used by the parties.4

In addition to obtaining the exclusive use of premises that is the hallmark of a lease, what are the other factors to consider when deciding whether to enter a license or lease? The most obvious consideration relates to termination of the relationship and resulting eviction. Initially, as set forth above, the license may be revoked at any time. Thus, absent an agreement, the revocation, and thus termination of the license can generally come with no notice whatsoever. Any resulting eviction requires service of a 10 day notice to quit before commencement of a summary proceeding. Notably, the 10 day notice to quit is also required if the license term expires.5

Click here to  read more  > >
 
 

 

Wills, Trusts & Estates Update 



Looking Over the Cliff
by Martin Glass, Esq.

Well, happy new year to all. At the 11th hour Congress decided not to let us fall off the Fiscal Cliff by passing the American Taxpayer Relief Act of 2012. But what does that mean in the world of estate planning? There are a number Glass  of things that happened (or didn't happen). So let's go through each one.

First, the federal exemption for gift and estate taxes was fixed permanently at $5 Million indexed by inflation, instead of reverting back to $1 Million. As of January 2013, that amount became $5.25 Million. This means that you can transfer the first $5.25 Million tax free, whether it was by gifting to people during your lifetime or to your loved ones upon your death. Of course, 'permanent' just means until Congress changes it.

What about transfers between spouses? The IRS still looks at this as a special type of transfer. They still have what's called an unlimited marital deduction, meaning you can transfer all of your estate to your spouse tax free, regardless how large it is! Just remember that now the surviving spouse has all of the assets and will be taxed for anything over the exempted amount when he or she dies. Also remember that this marital deduction is only available to spouses who are U.S. citizens.

 

Click here to  read more  > >


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Negotiating Update 



Learn to Spot these 10 Negotiating Tactics
by Joseph N. Campolo, Esq.

Here's how to spot 10 tactics that many negotiators use. These have nothing to do with the win-win successful agreements of a good negotiation. Learn what to do when somebody pulls these tricks. Awareness of these tactics Campolo3 can strengthen your own negotiation skills.

  1. Left at the altar - The other party feigns backing out of a deal just before you are ready to complete the agreement. Hoping the tactic brings the other party closer to their position, the tactic often yields 11th-hour concessions.

    Your countermeasure: Don't fall for the bait. Let the deal drop and go through a quiet period. Try resurrecting the deal after no less than 30 days, or when the other party calls you. At that point, it will be your turn to get concessions.
     
  2. Making balloon futures - The other party forecasts future sales growth, which is accelerated from historic averages. This is similar to the "call-girl principle," in which a service is worth more before it's performed.

    Your countermeasure: Base your decision or price only on past history. Make future bonuses or payouts available if accelerated growth actually happens.
     
  3. Calling a higher authority - The other party says that they are unable to make a final decision or won't tell you who the final decision maker is.

    Your countermeasure: Stop negotiating until you are discussing directly with that decision maker. You are wasting your time and energy.
Click here to read more > >

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Firm News

 

          Campolo Quoted in Newsday Article
                         on Year-End Taxes

 

Campolo3Joe Campolo was quoted in a Newsday article on year-end taxes. "November and December have been the two busiest months ever in the history of our six-year-old firm," he said.

  

Click here to read more >>

 


 

CM&M Welcomes Attorney Sharon Barkume

 Sharon Barkume

Campolo, Middleton & McCormick is pleased to welcome patent attorney Sharon Barkume to the firm. She brings broad knowledge and wide experience in intellectual property to her position as Of Counsel.

 

To learn more click here. >> 

 


           

  Hoeppner Wins CM&M Associate of the Year Award

 

We congratulate David Hoeppner for being awarded Campolo, Middleton & McCormick's Associate of the Year. Hoeppner #2 He is recognized for his excellent work ethic and exceptional customer service. Awardees are selected as those who have had an extraordinary impact on the Firm for the given year in areas such as leadership; mentoring other employees; delivering measurable value and results for our clients; and business development initiatives.

 

To learn more click here  >>   

 


 

Alyson Repp Featured in LIBN Who's Who

 

Attorney Alyson Repp was featured Repp in the LIBN Who's Who in Commercial and Residential Real Estate Law. The special section highlights the region's leading real estate attorneys as they discuss the their advice to property owners on what to prepare for should another "superstorm" hit Long Island as we saw with Hurricane Sandy.

For more information,
click here > >

 


 

CM&M Supports HIA-LI Breakfast

  HIA-LI Logo

Campolo, Middleton & McCormick, was proud to support the HIA-LI's Annual Meeting & Legislative Breakfast on January 11, 2013 at The Hamlet Wind Watch Golf Club in Hauppauge.

To learn more
click here > >

 




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Campolo, Middleton & McCormick, LLP
3340 Veterans Highway, Suite 400
Bohemia, NY 11716
p 631-738-9100 | f 631-738-0659
contact@cmmllp.com | www.cmmllp.com