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 L E G A L   B R I E F
April 2013
Newsletter Archive
Real Estate
Landlord/Tenant Update
Intellectual Property 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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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.


Plaintiff's Claim of Continuing Damages Precluded
by Scott Middleton, Esq.
On February 14, 2013, the New York Court of Appeals ruled on a case that will drastically affect damage awards in cases where a plaintiff has made a worker's compensation claim contemporaneous with a personal Middleton injury suit. 

Auqui v. Seven Third One Limited Partnership, 2013 N.Y. Slip Op 00950, involved a case where plaintiff, a food service deliveryman, was injured when a sheet of plywood fell from a building under construction and owned by defendant. While receiving worker's compensation benefits, plaintiff commenced a personal injury action. While the personal injury action was pending, the worker's compensation carrier for plaintiff's employer moved the Worker's Compensation Board to discontinue plaintiff's benefits on the grounds that he was no longer disabled as a result of the accident. The administrative law judge ruled in favor of the employer's carrier, thus terminating plaintiff's benefits in 2006. In 2007, a full panel of the Worker's Compensation Board upon appeal affirmed the administrative law judge's ruling, finding plaintiff's disability had ended as of January 24, 2006 and that plaintiff required no further medical treatment other than for post-traumatic stress disorder.

In April 2009, the defendants in the personal injury matter moved to preclude plaintiff from re-litigating the duration of his work related injury on the grounds that the issue was already fully litigated and decided in the administrative proceedings.


Real Estate

Demystifying the Mechanics of the 1031
Like-Kind Exchange

by Alyson S. Repp, Esq.


Just say the acronym "IRC" in a room full of attorneys and business owners and you can see the chills running down their spines. The Internal Revenue Code is a complicated beast which is best explained by your accountant or Repp an experienced tax attorney. There is one section, however, that has become very important in the commercial real estate world. If you are at all familiar with commercial real estate, you have likely heard the term "1031 exchange" thrown around and may have a vague idea that it has something to do with taxes. Below, I have set out a brief overview of the sometimes frightening 1031 exchange. While I cannot fully explain all the intricacies of a 1031 exchange within this article, it is a tool which can be extremely helpful to those who invest wisely and take the requisite time to learn about it.

Generally, when you sell a commercial property, you pay capital gains tax on any gain you realize at the time of the sale. Section 1031 of the Internal Revenue Code provides an exception to this rule, allowing you to postpone or defer paying the tax if you reinvest the proceeds you have gained from the sale into a similar property under an IRS qualifying like-kind exchange.

Although not the only kind of exchange or tax saving method, there are three types of exchanges which real estate investors frequently engage in. The most simple and straightforward is known as a simultaneous exchange. In a simultaneous exchange, property A is sold and property B is purchased simultaneously. The funds obtained from the sale of property A are used to purchase property B. In order to avoid paying capital gains tax on the purchase and deferring the payment of the tax, you must invest all the funds gained in the sale of property A into property B. Any funds remaining at the end of the exchange may be immediately taxable.

To read more click here >>


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Landlord/Tenant Update

Death of a Tenant
by Patrick McCormick, Esq. 


Suppose you are a landlord and lease space, commercial or residential, to an individual tenant. Tenant timely pays rent for a while but, suddenly, rent payments stop. Upon investigating, you learn that the tenant has died. Does the McCormick death terminate the lease? Is a nonpayment proceeding available to obtain possession of the premises?

While not a common occurrence, this simple fact pattern raises several issues regarding when, and against whom, a nonpayment proceeding may be brought.

Initially, while perhaps not well known, but certainly well settled, the death of a tenant does not terminate an unexpired lease or the tenant's leasehold estate. In such situations, generally, the executor, administrator or legal representative is permitted to remain in possession of the demised premises until the expiration of the lease.

Under our facts, how can the landlord obtain possession of the premises? The answer lies buried in RPAPL �711(2). The last sentence of RPAPL �711(2) provides: "Where a tenant dies during the term of the lease and rent due has not been paid and no representative or person has taken possession of the premises and no administrator or executor has been appointed, the proceeding may be commenced after three months from the date of death of the tenant by joining the surviving spouse or if there is none, then one of the surviving issue or if there is none, then any one of the distributes."

To read more click here >>


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SCOTUS Update 

Supreme Court Holds that the "First Sale" Doctrine Applies to Copies of Copyrighted Works
Lawfully Made Abroad

by Lauren Kanter, Esq.
Copyrighted works imported into the United States from abroad are subject to the same "first-sale" rules as items purchased in the United States, according to a Supreme Court decision issued last month (Kirtsaeng v. John Wiley Kanter & Sons, Inc., No. 11-697).

Supap Kirtsaeng, a citizen of Thailand, came to the United States in 1997 to study mathematics at Cornell University and the University of Southern California. While working on his degrees, Kirtsaeng asked friends and family in Thailand to buy copies of foreign edition English language textbooks in Thailand, where they were sold at low prices, and mail them to him in the United States, where he then sold the books, reimbursed his family and friends, and kept the profit.

Publisher John Wiley & Sons commenced a copyright infringement lawsuit against Kirtsaeng in 2008, alleging that Kirtsaeng's resale of the books infringed on Wiley's exclusive right to distribute under �106(3) of the Copyright Act. Kirtsaeng countered that he had acquired the books legitimately and that the "first-sale" doctrine codified in �109(a) of the Copyright Act allowed him to resell or otherwise dispose of the imported books without permission from the copyright owner.

To read more click here >>

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Intellectual Property Update

License is Required for Playing Music in
Public Establishments
by Eryn Y. Deblois, Esq.

Business owners should be advised that a license is required for any public performance of music. Some owners are unknowingly playing music in their restaurants, bars, gyms, and storefronts from CDs, iPods, or MP3 players in Deblois violation of Copyright Laws.

What is needed are public performance rights -- the right to play music that the general public will hear in one way or another. Public performance rights licenses are handled by two very large companies named ASCAP (American Society of Composers, Authors and Publishers) and BMI (Broadcast Music Incorporated). Each one handles a catalog of about 4,000,000 songs. Their fees depend upon the type of establishment, size, etc.

Further information on how to obtain a license from BMI and ASCAP can be found at:

www.bmi.com/licensing   and   www.ascap.com/licensing/generallicensing.aspx

The penalty for failing to obtain a license is a potential lawsuit for copyright infringement. Under the Copyright Law, the violator can be subject to sanctions, which can include an injunction and the copyright owner's actual damages, as well as the infringer's profits, or statutory damages of up to $30,000 for each copyrighted song performed without a license (up to $150,000 if the infringement is willful).

To read more click here >>


Wills, Trusts & Estates Update

Estate Planning: Does Your 18-Year-Old Need It?
by Martin Glass, Esq.

The quick answer to that question is "yes." When your child turns 18 years of age, he is considered a legal adult. As such, he should have an estate plan. This includes a health proxy, power of attorney, and even a will or trust. Glass While it is difficult for parents to think about this as being necessary, failure to take these measures can have unexpected or severe consequences.

When your child reaches the age of maturity, HIPAA (Health Insurance Portability and Accountability Act) prevents even you, his parents, from obtaining confidential medical information. He needs to have communicated that he wishes for you to still be involved through HIPAA release documents. Additionally, if your child is unable to communicate his desires for his own medical care (or decisions regarding life support) you would need to be appointed as his health care proxy to make these decisions on his behalf. Otherwise, it could require years of litigation before you can make those types of decisions.

While it may be difficult to do, it is important that you discuss with your young adult their end-of-life wishes. You should know whether or not she wishes to be kept alive by heroic measures, even if it means she would not have a meaningful quality of life. As hard as it may be, you should even discuss with her other issues such as burial preferences, organ donations and cremation. Other important decisions, such as who may receive her important tangible property (her "stuff") and her financial assets need to be worked out and documented as well.

To read more click here >>


Negotiating Update 

Building Rapport During Negotiations
by Joseph N. Campolo, Esq.


If you are like most busy professionals, you are typically pressed for time and would prefer to not waste time on small talk and just get to the issues at hand. This "small talk," however, if used correctly, has value and should not Campolo3 just be dismissed or glossed over. When bargaining parties take the time to establish some rapport and develop personal relationships, they tend to behave more cooperatively and enhance the likelihood they will achieve mutual agreements. It's important to remember that you shouldn't build rapport simply to win the upper hand in negotiations. Only building a sincere and genuine rapport can promote trust and credibility.

Many believe that the ability to connect with people is a natural gift -- either you can build rapport or you can't. However, developing rapport, like all negotiation skills, is something that anyone can learn, and then use. Here are some tips.


Unconsciously mimicking each other's gestures, facial expressions and tone of voice. Keeping your arms uncrossed, the occasional head nod to assure your attention. Maintaining eye contact, leaning toward the other person, and smiling are indications of openness and interest in each other.

Meet in Person
Easier to build rapport face-to-face rather than via email or over the phone, many of the above mentioned non-verbal communication cues are lost via email.

To read more click here >>

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Firm News

     CM&M Wins Judgment Against Agape Brokers


Campolo Middleton is pleased to announce that it has Campolo3 successfully represented eight victims against sub-brokers in the Agape World fraud. These victims of Long Island's largest-ever Ponzi scheme have won a judgment of $4.1 million, plus attorneys fees, against the brother and sister duo, siblings Martin C. Hartmann III of Massapequa, N.Y. and Laura Ann Tordy of Wantagh, N.Y. This is the first civil judgment obtained against the brokers or sub-brokers.

To read more click here


    CM&M to Host Breakfast Seminar on April 25th


In light of the upcoming changes to the patent laws, we cordially invite you to an IP Breakfast Seminar hosted by Technology our Intellectual Property attorneys to learn about the new developments and how to protect your business. We still have seats available, so sign up now. The seminar will take place on Thursday, April 25, 2013 from 8:30 - 10:00 am at the Holiday Inn located at 3845 Veterans Memorial Highway, Ronkonkoma, New York 11779.  

To reserve your seat click here



 BOLT BUS Wheels, Wine & Networking on Apr 24th


Bolt Bus Join us in attending the BOLT BUS Wheels, Wine and Networking event on Wednesday, April 24th from 6-9pm at the Hilton Garden Inn in Riverhead. Admission is free and all attendees will receive two free round trip tickets on BoltBus.


 To learn more click here >>



Basso Jeff Basso Quoted in LIBN Article on
Non-Compete Clauses


Jeff Basso was quoted in an LIBN article on the importance of Non-Compete Clauses in a world of digital information.


 To learn more click here >>



Middleton was Guest Speaker at Stony Brook University Leadership Series


Scott Middleton was a guest speaker at the Leadership Speaker Series Middleton hosted by Stony Brook University's Langmuir College on April 8th at 7:30. The mission of the series is to have seasoned leaders within the community to give some insight on their leadership skills and their career paths to Stony Brook students.



CM&M to Sponosr LI Imagine Awards on May 7th  


Campolo, Middleton & McCormick is a proud sponsor Imagine of the Long Island Imagine Awards presented by Cerini & Associates to acknowledge some of Long Island's most effective and innovative nonprofit organizations. The awards dinner will take place on Tuesday, May 7th at the Crest Hollow Country Club.  


For more information click here >>




CM&M to Support VIBS Jun 17th Annual Golf Classic 


Please join us in supporting the VIBS 18th Annual Golf Classic (Victims Information Bureau of Suffolk) being held VIBS Logo on June 17th at the Bellport Country Club. VIBS' mission is to assist the survivors of domestic violence, rape and sexual assault; to prevent the incidence of these crimes through education and services; and to raise community awareness of the need for justice and compassion for victims.  


For more information 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
[email protected] | www.cmmllp.com