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 L E G A L   B R I E F
February 2013
Newsletter Archive
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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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.


Scaffold Law Reform Update
by Nicole Marmanillo, Esq. 


New York's controversial Scaffold Law imposes absolute liability on general contractors and property owners (subject to statutory limitations regarding one and two family dwellings) when construction workers sustain injuriesMarmanillo  as a result of gravity-related accidents. The law is 130 years old and New York is the only state in the country that has not yet repealed or amended it.

On February 12, 2013, over 175 contractors, builders, small business owners, developers, lawyers, municipal officials, and representatives from over 30 advocacy groups met at the State Capitol to encourage lawmakers to pass legislation to reform the antiquated law. Over the years, advocates of reform have sought to have the law extinguished entirely. This time, a different approach was taken. Advocates, recognizing that New York remains the most unionized state in the nation, pushed bipartisan legislation that would not extinguish the law, but would allow employers to defend themselves where there is evidence of a worker's negligence. They cite situations that involve criminal acts, drugs, alcohol, failure to use provided safety gear or failing to adhere to safety training provided by the employer. The law, as it exists today, would hold a property owner 100% at fault for the injuries a worker sustained when he was injured in a gravity-related accident . . . regardless of whether the accident occurred as a result of his own negligence. Advocates for reform emphasize that they are not seeking to extinguish the right of workers to sue those responsible for their injuries. Rather, they are asking for an opportunity to defend themselves in situations where they are not at fault or have limited fault.
To read more click here.


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Department of Health Issues New Privacy Rules to Expand Patient Privacy Protection
by Michele Gipp, Esq. 


On January 17, 2013, the U.S. Department of Health and Human Services ("HHS") released new updates to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") to expand patient privacy regulations. Gipp

Originally, HIPAA applied only to covered entities (i.e., healthcare providers, health plans, and organizations that process health insurance claims), and covered entities entered into contractual arrangements with business associates to further protect patient privacy. Now, the final rule applies to business associates directly and business associates are separately and directly liable for HIPAA violations. Business associates include parties providing legal, accounting, consulting and certain other services to or for covered entities and any party that creates, receives, maintains or transmits protected health information ("PHI") on behalf of a covered entity. Furthermore, if the business associate discloses PHI to a subcontractor, there must be a business associate agreement between the parties to satisfy HIPAA requirements.

For business associate agreements that are already in place, such agreements will likely need to be amended to include additional provisions for the reporting of breaches to the covered entity, directly complying with HIPAA, and complying with the HIPAA security rule for electronic PHI.
To read more click here.


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Intellectual Property Update 

Fight Over Chocolate Kisses Trademark
by Eryn Y. Deblois, Esq.

As demonstrated by a recent lawsuit filed by a carpet manufacturer against chocolate-giant Hershey, one has to ask how far large companies are going to go in attempt to stretch their trademark rights. What these companies wantDeblois  is a monopoly over their marks in every good and service.

However, trademark rights are limited in scope. The goods and services listed on a trademark registration establish the scope of the applicant's rights in the relevant mark. This, however, does not prevent large companies from testing the boundaries.

In the lawsuit, Shaw Industries Group Inc., a carpet manufacturer owned by Berkshire Hathaway Inc., is seeking declaration that a carpet color it calls "Chocolate Kiss" does not infringe Hershey's "Kisses" and "Hershey's Kisses" trademarks.

Shaw has used the name "Chocolate Kiss" for a particular carpet color for over two decades without any indication of confusion between the products or the companies until December of 2012, when Hershey sent a cease and desist letter to Shaw in demanding that it stop using the "Chocolate Kiss" name. Despite Shaw's response that it already planned to phase out the use of the "Chocolate Kiss" color name in June of 2013, Hershey demanded that it immediately stop using the term and threatened to file suit. Shaw, however, beat Hershey to the punch.

Click here to  read more  > >

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Landlord/Tenant Update 

Split Decision-Nonpayment Proceedings Against
Month-to-Month Tenants
by Patrick McCormick, Esq.

In 1400 Broadway Associates v. Henry Lee and Co. of NY, Inc.,1 the parties' commercial lease expired January 31, 1990 and the tenant, who did not realize the lease had expired, continued to make monthly rent payments, in the McCormick amount set forth in the expired lease, for six months. The tenant learned that the lease had expired during negotiations for a new lease and during the negotiations continued to pay rent through October 1992. Tenant then stopped making monthly rent payments and landlord commenced a nonpayment proceeding. Tenant moved for summary judgment to dismiss the complaint for failure to state a cause of action. The Court granted the motion holding that a nonpayment proceeding could not be maintained against a month-to-month tenant because, "absent a meeting of the minds, no agreement exists regarding the monthly rental rate." The Court held:

A month-to-month tenancy, by its nature, is renewable by the parties' conduct, i.e., by continued payment and acceptance of agreed-upon amounts each month. When the parties no longer agree to continue the relationship, either party can terminate it. However, if the tenant does not voluntarily surrender, the owner must serve a statutory notice of termination at least 30 days before expiration of the monthly term, as a condition to bringing a holdover proceeding.

Thus, the Court held that "Petitioner's acceptance of respondent's monthly payments created a month-to-month tenancy, by operation of law, which could be terminated only by service of a 30-day notice." A 30-day termination notice, the predicate to commencing a holdover proceeding against a month-to-month tenant, was not served and therefore a holdover proceeding was not possible.

Click here to  read more  > >


Wills, Trusts & Estates Update 

Estate Planning: Do "DIY" Wills work?
by Martin Glass, Esq.

In today's world of electronics and the Internet, people are turning to their computer for answers to even the most complex questions. Estate planning websites are all over the place. They all claim to help you prepare a valid will at Glass an extremely low price. Personally, I'm a big believer in "you get what you pay for." Is it worth it to save a few hundred dollars and risk putting your entire estate at risk?

Online legal document services offer an enticing bargain. Most people realize that they need an estate plan to manage their affairs if something happens to them. But, estate planning attorneys can be expensive. That's why many potential clients are now questioning whether it's possible to skip the attorney fees and use a low-cost Web site to prepare estate planning documents. The short answer is that, yes, it is possible. The longer answer, in my humble opinion, is that it's not recommended. You could save a few bucks now, but end up creating an expensive and frustrating mess for your family.

Hiring an estate planning attorney may seem overwhelming to you and you may wonder if it is really worth it. Let's look at this on a basic level. An attorney is a live person, professionally trained in a specific area of the law, who will listen to your particular needs and goals. A computer program cannot take into account all the particulars of your circumstances and help you make strategic decisions to meet the needs of your loved ones. A Web site cannot anticipate what you may need in the future, like the appointment of a guardian or a healthcare directive or your plans to move to Florida in three years.


Click here to  read more  > >

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Negotiating Update 

Negotiating Strategies for Buying a Home (Part 1)
by Joseph N. Campolo, Esq.

Negotiation strategy is different from negotiation style. From pit bull to diplomat, each of us has a personal style. But the strategy for negotiating the purchase of a home is based on facts: the real estate market at the moment and Campolo3 what we know about the seller's needs and the property.

Market knowledge courses through the veins of experienced real estate agents, which is one good reason to use one. Another is that agents are experienced negotiators who speak the same lingo. That means your agent probably will find out more about the seller's situation than you will working on your own. And for those of us who start sweating at the very thought of confronting a seller and the seller's agent face-to-face, why not pay a commission to someone who will relieve us of the task?

Can you negotiate without an agent? Absolutely. Many buyers do. It means:
  1. Doing intensive research about the market, the property you want to buy, and the seller's situation
  2. Figuring out an appropriate negotiating strategy and style based on that information
Tips for Staying Sane With or Without an Agent
  1. Do your homework.
  2. Ask questions constantly.
  3. Share the details of your budget, emotions, and mental state only with your advocates (this does not always include your agent).
  4. Find an agent with whom you feel comfortable from the start - this will save you headaches later in the process.
Click here to read more > >

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Firm News


        CM&M Expands its Intellectual Property Practice

We are pleased to announce that Campolo, Middleton & McCormick has expanded the range of services it offers in its Intellectual Property practice area. 


The firm's Intellectual Property practice group consists of attorneys with diverse experience capable of providing comprehensive advice and solutions to any Intellectual Property issue or challenge, including the protection and enforcement of rights in patents, trademarks, copyrights, confidential information and trade secrets.   


Click here to



Eryn Deblois Featured in LIBN Who's Who


Attorney Eryn Deblois was featured in the LIBN Who's Who Deblois in Intellectual Property Law. The special section highlights the region's leading intellectual property attorneys.  Eryn discusses her typical approach to a new case, including understanding the client's needs and expectations, and how to exceed them.  She says that every client's needs are different.



Arthur Yermash Featured in LIBN Who's Who  


Attorney Arthur Yermash was featured  in the LIBN Who's Yermash Who in Labor Law. The special section highlights the region's leading labor law attorneys. Arthur discusses 
his approach to working with a new client, including spending the time to fully understand the client's circumstances, before recommending a legal strategy.



     Campolo Speaks at HIA-LI Young Entrepreneurs

                               Committee Meeting

  HIA-LI Logo

Joe Campolo spoke to the members of the HIA-LI Young Entrepreneurs Committee on Feb 27th. The subject was business planning for new and emerging companies. He discussed his experiences as an attorney and an entrepreneur.

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