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Serving Central New York and Beyond for Over 45 Years

Business and Estate Planning Attorneys

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M - F: 8am-5pm

Franklin Square, 507 Plum Street, Suite 300
Syracuse, NY 13204

Info@scolaro.com

WHO WE ARE

Since 1979, the Syracuse-based law firm of SCOLARO FETTER GRIZANTI & McGOUGH, P.C. has provided sophisticated tax, business, litigation, employee benefits, estate and trust planning, and administration services to its individual, business, entrepreneurial, and professional clients throughout New York, Pennsylvania, Florida, and other states in which its attorneys are admitted to practice. When you are in need of a business attorney or estate planning lawyer, contact our team for reliable legal guidance.

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PRACTICE AREAS



FIRM ANNOUNCEMENTS

Congratulations to Elizabeth M. Maugeri for having successfully passed the New York State Bar Exam. On January 17, 2024, Elyse was admitted to practice before the Appellate Division, Fourth Department.  Elyse is an an Associate Attorney practicing in our Business and Tax Practice Group.


Read about Elyse: Elyse's Biography

We are pleased to announce that, on February 5, 2024, Donghoo Sohn joined our Firm as an Associate Attorney in the Business and Tax and Commercial Real Estate and Land Use Practice Groups. Donghoo represents buyers, sellers, developers, and lending institutions in all aspects of residential and commercial real estate. Donghoo complements his practice by assisting local non-for-profit corporations with legal consulting.


Read about Donghoo: Donghoo's Biography


LATEST INDUSTRY RESOURCES


05 Feb, 2024
By: Elizabeth M. Maugeri, Esq. The Department of Labor issued a new final rule regarding the distinction between employees and independent contractors on January 10, 2024. This rule, while in some ways is similar to the 2021 Independent Contractor Rule (IRC), mostly departs from the previous iteration. The Department believed the 2021 IRC was not fully in agreement with the framework outlined in the Fair Labor Standards Act (FLSA) or the courts' interpretation of the FLSA by departing from accepted case law in applying the economic reality test. Thus, on October 13, 2022, the Department published a Notice of Proposed Rulemaking (NPRM) regarding the classification of employees versus independent contractors under the 2021 IRC. The final rule returns to the notion of framing of investment by a worker as its own separate factor, and the most significant factor being whether the work performed by the worker is an integral part of the potential employer’s business. However, the final rule maintains that no one factor is determinative in assessing if a worker is an employee or independent contractor. Additionally, it offers a broader discussion of how scheduling, remote supervision, price setting, and the ability to work for others concurrently should be considered as factors and allows for more consideration of reserved rights, which was minimized in the 2021 IRC. The main purpose of the changes made was to avoid any potential misclassification of workers whether intentional or accidental. The rule maintains that part 795 continues to contain the Department’s general interpretations. After taking comments, the Department published the final rule, which consists of an outline of six, non-determinative, factors for consideration. The factors are: (1) opportunity for profit or loss depending on managerial skill, (2) investments by the worker and the potential employer, (3) degree of permanence of the work relationship, (4) nature and degree of control, (5) extent to which the work performed is an integral part of the potential employer’s business; and (6) skill and initiative. Other relevant factors may be considered on a case-by-case basis. These six factors are meant to be offered as a guide for assessment as to the economic realities of the working relationship. When assessing opportunity for profit or loss depending on managerial skill, the Department implores potential employers to consider if their workers have opportunity for profit or loss that affect the worker’s economic success or failure when performing the work. Factors that may be relevant to this assessment could be whether the worker can meaningfully negotiate the charge or pay for their work, whether the worker accepts or declines jobs on their own, whether the worker makes hiring decisions, or if the worker chooses when or how the work is performed. If the worker does not have these types of opportunities available, then this factor suggests that they may be an employee. When considering the second factor, whether any investments by the worker are capital or entrepreneurial in nature, the assessment asks what the costs are to the worker for performing the job. Notably, some costs that are unilaterally placed on the worker by the potential employer, such as the tools or equipment needed to perform the job, or the cost of the labor do not necessarily suggest the worker performs independently. If the worker has opportunity to do differing types of work, reduce costs, or extend their market reach, this may indicate they are an independent contractor. However, the costs to the potential employer and to the worker should be considered relative to each other. The comparison should be done on investments, such as if the worker is making similar investments as the potential employer, even if on a much smaller scale. The third factor weighs in favor of a worker being an employee when the working relationship between the worker and the potential employer is indefinite, continuous, or exclusive. However, this does not imply that temporary or seasonal workers should be considered independent contractors as the lack of permanence due to operational characteristics to a particular business should be considered in these circumstances. A worker may an independent contractor if the work performed is non-exclusive, project-based, or generally sporadic. Fourth considers the control over the worker and the working relationship that the potential employer has. It may be relevant to consider whether the potential employer sets the worker’s schedule, supervises the work, limits the worker’s ability to work for others, or the sets pricing or rates of the services. Additionally, when a potential employer’s actions in regard to the worker go beyond that is required for compliance with federal, state, or local laws and regulations, this may be suggestive of an employer-employee relationship. The fifth factor is one of the more significant factors, and asks whether the work performed by the worker is integral to the potential employer’s business. This factor does not ask whether the worker themselves are integral, but rather if the work they perform is. This factor will likely consider a worker an employee if the work performed is critical, necessary, or central to the potential employer’s business. The final factor considers whether the worker utilizes specialized skill sets to perform their work and if those skill sets contribute to a business-like initiative. If the worker does not utilize specialized skills or if the worker is dependent on training to learn or utilize specialized skills, then the factor weighs towards the worker being an employee. However, if the worker brings a specialized skill set to the jobs they perform, this does not automatically indicative of the worker being an independent contractor. The worker’s use of the skills in connection with the job itself is what matters in most cases. While the final rule does not act as anything other than a reinforcement of already established legal guidance, it leans more pro-employee than its predecessor. The impact of it is likely to be felt by companies in the gig economy, such as food delivery (i.e., DoorDash, Postmates, UberEats) or transportation mobility services (i.e., Uber, Lyft); freelancers; construction workers; and truckers. Litigation has already been brought forth by associations and individuals in these spaces, who argue that the final rule creates a much vaguer landscape for assessment which will ultimately force independent contractors into unnecessary employment relationships. Decisions by the courts regarding the filed complaints have not yet been issued. The final rule does not impact any other federal, state, or local laws that use other determinative factors for employee classification. This article is intended to be for informational and discussion purposes only and is not to be construed as legal advice or as a legal opinion on which certain actions should or should not be taken.
wooden blocks with the word mediation written on them
21 Nov, 2023
By: Chaim J. Jaffe, Esq. Often times, clients ask why the litigation process is so lengthy. The answer is not always a simple one. The time-frame within which an action is judicially resolved is a function of the court's caseload, the complexity of the matter being litigated and the lawyers' schedules. There are, however, avenues available to litigants in certain circumstances that will allow them to resolve their disputes quicker and, in many cases, more economically. The two most recognized methods of alternative dispute resolution ("ADR") are mediation and arbitration. This article will focus on the mediation process. In many instances, parties to an agreement can contractually agree to submit any dispute that may arise to one or more forms of ADR. Parties' whose claims are not controlled by a contract can similarly agree to utilize the ADR process prior to or subsequent to the commencement of a formal court litigated matter. Finally, there are circumstances under which a judge presiding over a court litigated matter can "order" the parties to participate in the ADR process. Mediation is usually the first step in the ADR process, although parties can agree to skip this option and proceed directly to arbitration. Parties who agree to submit their dispute to mediation will agree who the neutral mediator will be. This individual can be an attorney whom counsel for the litigants believes is best qualified to impartially provide an opinion as to the merits of the underlying dispute. In many written contracts, the parties will agree to select the mediator from one of several nationally respected mediation companies. Procedurally, the mediation process is relatively straight forward. Once the parties agree on a neutral mediator, the parties will enter into a written mediation agreement with the mediator. In addition to the parties usually agreeing to equally bear the mediator's fee, the parties will be required to agree to, among other things, the confidentiality of the proceeding, that nothing disclosed during the mediation sessions will be used at trial (if the mediation process is unsuccessful) and that the mediator cannot be called by either party as a witness if the dispute proceeds to a court supervised process. Prior to the commencement of the mediation session, both parties will usually be required to provide the mediator with a confidential written mediation statement, the length of which depends on the complexity of the matter and the mediator's instructions. This pre-hearing submission will usually include a description of the parties, the underlying facts and circumstances of the dispute, the legal issues involved, the parties' respective strengths and weaknesses, the resolution of specific issues by the mediator that the parties believe would be beneficial in resolving the entire dispute and a history of any previous settlement efforts undertaken by the parties. The mediation session can be held wherever the parties agree. Sometimes it can be held at the mediator's office or at the office of the attorney for one of the litigants. It is not uncommon at the beginning of a mediation session for the mediator to gather the parties in the same room for purposes of reviewing the "ground rules" and for allowing each party to make some opening remarks. At the conclusion of this "joint session", the mediator will separate the parties into different rooms. The mediator will then conference separately with each party. The amount of time that the mediator conferences with each party can vary and can often be lengthy. It is not uncommon for parties to wonder why the mediator is spending so much time conferencing with the opposing side. It is during these private conferences that the mediator "goes to work". The mediator, needing to be very good listener, will allow the participants to tell their "side of the story". The mediator will provide the litigants with his/her view of the case, including an opinion as to the legal issues involved and the monetary value of the claim being asserted, where money damages are involved. This process continues until (a) the conclusion of the agreed upon time for the mediation session, (b) the parties have reached a resolution, or (c) the mediator and the parties agree that a resolution cannot be achieved. It is important to emphasize that without express permission from a party, the mediator will not share what was discussed during the private conference with the opposing side. The participants to the mediation need to feel comfortable discussing the matter openly and freely with the mediator. Simply stated, each individual in mediation needs to gain the mediator's trust and vice versa. Once that trust is established, the hope is that the parties will be more amenable to looking at their dispute from a different perspective. What makes mediation an attractive alternative to the court system is that the process is not binding. The parties are free to accept or reject the mediator's recommendation. In some written agreements, mediation might be a required precursor to proceeding to a binding arbitration process. Where no written agreement controls the dispute, the parties are free to proceed with commencing a formal court action or can agree to submit their claim to binding arbitration. Mediation can be a very productive ADR mechanism, the results of which depend on the effectiveness of the selected mediator and the parties' willingness and desire to resolve their dispute quicker and more economically.
a piece of paper that says last will and testament on it
03 Nov, 2023
By: Scott M. Ceurvels, Esq. New York was recently ranked the worst state to die in without a Will in a study published by Caring.com. The Caring.com 2023 Estate Planning Study considered factors pertaining to the probate process, guardianship, taxes and various other aspects of estate distribution to establish this ranking, all of which is described more fully and can be read at the link above. As the 2023 Estate Planning Study points out, and various other sources corroborate, it is estimated that only one-third (1/3) of Americans have a Will in place overall. That number further declines among certain demographics, with less than one-fourth (1/4) of Black and Hispanic Americans having a Will. There are numerous reasons why so many Americans have not executed a Will of their own, from the number or value of assets one does (or doesn't) have to being "too young" or even assumptions surrounding what happens "automatically" upon one's death without a Will, just to name a few. Regardless of the reason, the fact remains that well over half of Americans don't have a Will in effect and, upon their death, will be reliant on State law to direct how their assets are distributed. Although not covered directly in the studies referenced above, another aspect of estate planning that is frequently addressed in conjunction with Wills are financial and health care planning documents that can be utilized to put some of the most sensitive and personal decisions in the hands of a trusted family member or friend in the event of a serious injury or illness that results in your incapacity. What Happens if I Die in New York Without a Will? Generally speaking, if you die without a Will in New York, any assets held in your individual name ("Probate Assets") will be distributed in accordance with the State intestacy laws. This excludes assets that pass by beneficiary designation and certain jointly-owned property ("Non-Probate Assets"). In New York, the State intestacy law provides that: If you are survived by a spouse and no children/grandchildren/etc., all of your Probate Assets will be inherited by your surviving spouse. If you are survived by a spouse and children/grandchildren/etc., the first $50,000 of Probate Assets will be inherited by your surviving spouse, and half of any remaining assets will go to your surviving spouse and the other half to your surviving children, grandchildren, etc. If you are not survived by a spouse but are survived by children/grandchildren/etc., all of your Probate Assets will be inherited by such children/grandchildren/etc. If you are not survived by a spouse or children, all of your Probate Assets will instead be inherited by your surviving parent(s). If you are not survived by either of your parents, then your Probate Assets will be inherited by any surviving siblings of yours, and so on. While there are a number of tax, asset protection, business succession and other more complex considerations that often drive estate planning, it is equally as important for the simple reason of ensuring that trusted individuals of your choice are designated to make your healthcare and financial decisions in the event you are unable to do so and that your assets are inherited in accordance with your wishes upon your death. If you do not have a Will or other estate planning documents in place, or have not updated or reviewed your estate planning documents recently, please contact Scott Ceurvels or the attorney at our firm with whom you work.
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