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Legal Briefings: General (NY)

Am I My Brothers' (and Sisters') Keeper? Why It's So Important to Check In from Time-to-Time

During his presidency, my good friend, Brad Kammholz, began a program that challenged each one of us to check in on one another. To call one another and ask how we are doing. To lend a shoulder to lean on and an ear to bend to those that may be going through things that cannot be seen to the naked eye but are just as impactful to their health and well-being as a punch to the gut. For all the lofty goals I have set for my term, it will most certainly be a failure if I did not, at a minimum, keep this program and this task going forward.


“No man is an island, entire of itself.” – John Donne. This is one of my favorite poems because it speaks to the interconnectivity of all of humanity. In sum, it has been said to be a metaphorical phrase meaning that all human beings are connected to one another in one form or fashion. No person is like an island separated from all land masses and onto itself alone. We as attorneys, as human beings, are connected to one another. Through our craft and profession. Through our desire to help our clients. Through our desire to make a difference. Having said that, we must all recognize that with such aspirations comes a great amount of stress. This stress affects us all. It affects our mental, physical, and emotional well-being.


As evidence of this fact, consider the following. Recent studies have shown that while 6.7% of the U.S. population suffers from depression, a whopping 45% of attorneys suffer from, or have suffered from, depression. Of that 45% of attorneys dealing with depression, 12% of them have had active suicidal ideations at one point or another of their careers.


It does not end there, 19% of attorneys suffer from anxiety. Twenty-one percent of attorneys have voluntarily disclosed that they have an alcohol abuse problem. When questioned further, and their lifestyles and habits more closely examined, that number rose to 35%.

Additionally, 9% of attorneys suffer from an addiction to prescription drugs or other illicit drugs. In fact, the rate of addiction amongst attorneys is anywhere from 2.5 to 3.5 times higher than any other profession.


All of this data makes it undeniably clear. Although we may not want to admit to ourselves, we, sometimes, need help. We, sometimes, need a shoulder to lean on. An ear to bend. A friend to check in on us and see how we are doing. Sometimes we need to recognize when someone else needs that person in their lives and we need to be that person.


We as attorneys are fond of boasting, or complaining, about how busy we are. We bemoan that there is not enough time in a day to get to all of the things we need to get to for our clients. We hand wring and fret about the lack of hours in a day to touch all of the files on our desk.


Well, consider this. There are 24 hours in a day, 1,440 minutes in that same day and 86,400 seconds in that day. A phone call to check in on a friend or a colleague takes no more than five minutes out of that day. Or 300 seconds. Considering that reality, can we really not spare 300 seconds of the 86,400 seconds we are giving each and every day of our lives? Consider that those 300 seconds may help someone get through a tough time in their day or life. Those 300 seconds may make the difference for someone about to give into the pressures this profession foists upon all of us. In short, those 300 seconds may just make a difference.


This article is titled “Am I my brothers’ (and sisters’) keeper?” I would like for us all to answer that question in the affirmative by saying YES I AM. Please check in on one another from time to time and let’s help lower the statistics shared in this article.

Selling Goods and Services over Online Platforms - What to Be Aware of as Tax Season Approaches

Many small businesses utilize mobile applications, such as Venmo, PayPal, Etsy, and Square, to transact business with consumers in a fast, convenient way. For 2022, as part of the American Rescue Plan Act, the U.S. government passed legislation which requires these companies to send a Form 1099-K to anyone who receives at least $600 in payments for goods and services through these applications. Form 1099-K is an IRS form for individuals that earn income online. This new requirement takes the burden off of the individual who would have typically self-reported in the past, and now places it on third party payment processors.


Prior to 2022, the reporting requirement for Payment Card and Third-Party Network Transactions was for totals exceeding $20,000 and 200 or more transactions. Now, the threshold number for reporting has dropped to $600 and has no minimum on the number of transactions.

This announcement and change in reporting requirements caused some confusion for many individuals who utilize the applications for various reasons. For example, was the transfer of funds to a roommate for a rent payment now going to require payment of income tax? Will I be taxed if I pick up the tab at dinner and my friends reimburse me? The answer to both is probably no. This new tax rule does not apply to personal payments between friends and family. To assist with the potential confusion and concern, some apps have developed features that allow users to toggle a button to indicate whether the transfer is for the purchase of goods and services.


It should be noted that if someone in an Independent Contractor role takes payment via one of these methods noted in this briefing, there may need to be reconciliation with the Form 1099-K and the Form 1099-MISC, typically given to Independent Contractors for income earned. It is always best to consult with an accountant or tax preparer when questions arise regarding taxes.

New Alcohol Permits for Caterers

On December 16, 2022, Governor Hochul signed Senate Bill S.9049 which updates the Alcoholic Beverage Control Law. This bill authorizes New York State to grant eligible catering businesses a license to serve liquor off-site at weddings, banquets or other events. Effective immediately, these eligible catering businesses can now apply for an off-premises catering license without meeting bulky facility requirements to benefit caterers and small businesses.


Previously, caterers were required to have a facility with a kitchen and a dining or banquet hall with the ability to serve and seat at least 50 people to serve alcoholic beverages at an off-site location where an event is taking place. Caterers that did not meet the facility requirements previously had to apply for a temporary permit that would only allow them to serve beer, wine and cider at each individual event.

Further, the Off-Premises Catering Establishment annual licensing fee is two-thirds the cost of the license fees for selling alcohol that is intended to be consumed on the premises. Seasonal licenses may be issued, and the fees will be pro-rated for the period that the license is effective.


Our Firm has extensive experience counseling employers/businesses on compliance requirements, as well as preparing and implementing applicable policies. If you have any questions related to this Legal Briefing, please contact any member of our Firm at 876-946-1361. Please note that any embedded links to other documents may expire in the future.

Believe It or Not, Trustees Do Not Always Have to Make the “Best” Decisions

Some people are afraid of serving as a trustee to a trust because they fear that they may not always make the “best” decisions. Well, have no fear – the law does not require a trustee to always make the “best” decision. Trustees are only required to make a decision that is reasonable at the time it was made. Remember, it is often said that “hindsight is 20/20”. Unfortunately, beneficiaries of a trust, who often have the benefit of hindsight, sometimes try to evaluate the performance of a trustee by arguing that there were other options that, if selected, would have resulted in a better outcome for the trust (i.e., some beneficiaries expect the trustee to always make the “best” decision). Such arguments by beneficiaries, however, should not prevail.


Generally speaking, and above all else, a trustee must act in the best interests of the trust’s beneficiaries. New York’s Estates, Powers, and Trust Law Sections 11-2.3 (a) and (b) state that a trustee must exercise reasonable care, skill, and caution when making investment and management decisions. This is otherwise known as the “Prudent Investor Rule”. The test for judging a trustee’s conduct is their prudence, not the outcome of their performance.

In determining whether a trustee has complied with the Prudent Investor Rule when investing trust assets, one must view the trustee’s conduct at the time the decision was made. “Whether the trustee is prudent in the doing of an act depends upon the circumstances as they reasonably appear to him at the time when he does the act, and not at some subsequent time when his conduct is called in question.”[1]
 A trustee has a general duty to invest funds and diversify the assets of the trust. The trustee is under a duty to make such investments as an intelligent, prudent person would make with his own property or assets.[2] As such, a trustee must weigh multiple factors in determining whether an investment decision is in the best interest of the trust. 

How much money is involved in the decision? What are the general economic conditions currently? What type of investment is it compared to other assets owned by the trust? What kind of income will be derived by the investment, if any?

Does the asset at issue cost the trust any money to maintain? What are the risks associated with the investment? Has the trustee considered other available options?


There are many different investment options from which a trustee can choose, and there will always be some choices that appear prudent and others that are seemingly less prudent, but still viable. Just because the trustee may have chosen an option that ultimately did not perform as well as another option available to the trustee, does not support a finding that the trustee acted imprudently. “A fiduciary is neither insurer nor guarantor of the value of a trust’s assets.”[3]


Given the above, if you are ever chosen to act as trustee of a trust, never fear a beneficiary’s hindsight when it comes to evaluating investment choices. As trustee, you will not be required to be able to predict the future. Your decisions, as trustee, might not ultimately be deemed to be the “best” decision, which is okay. The Courts are looking to see if you, as trustee, made a reasonable decision at the time it was made.


If you are ever in the position where you have been nominated or appointed as a trustee of a trust or if you are a beneficiary of a trust and questioning whether a trustee has adhered to his or her fiduciary duties, do not hesitate to contact an attorney at Pullano & Farrow.


If you have any questions related to this Legal Briefing, please contact any member of our Firm at 876-946-1361. Please note that any embedded links to other documents may expire in the future.