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Gregg Kligman Quoted in Long Island Business News

When an employee blows the whistle

By: Bernadette Starzee

“Whistleblower” has been the word of the last couple of weeks after a Washington insider filed a whistleblower complaint alleging that President Donald Trump used the power of his office to coerce Ukraine to investigate a 2020 election rival and that the White House took steps to cover up the president’s actions.

The complaint prompted the U.S. House of Representatives to open an impeachment inquiry while causing some employers to examine their own whistleblower policies.

“A lot of our clients are taking a closer look and asking, ‘Do I have the right policies in place?’” said Ana Shields, principal in the Melville office of Jackson Lewis, a national law firm with a heavy concentration in workplace law.

Employers should have policies that encourage employees to report in good faith any alleged wrongdoing in the workplace without fear of retaliation, Shields said.

There are several laws – on the federal, state and local levels – that protect whistleblowers for alleging wrongdoing in a variety of areas, including fraud, harassment, discrimination and safety violations.

Many whistleblower protections, Shields said, show up in anti-discrimination and anti-harassment laws governing the employer-employee relationship, such as Title VII of the Civil Rights Act, the Americans with Disabilities Act and the New York State Human Rights Law, among others, which contain anti-retaliation policies protecting people who allege workplace discrimination or harassment.

“Allegations of retaliation are very common after people complain about harassment or discrimination,” Shields said. Of the 76,418 charges received by the Equal Employment Opportunity Commission in 2018, 51 percent were for retaliation.

“Year after year, at least half the complaints the EEOC gets are retaliation complaints,” Shields said.

The False Claims Act, which dates to the U.S. Civil War, offers whistleblower protection for employees of government contractors who claim their employer is defrauding the government, said Kevin Mulry, a commercial litigation partner at Uniondale-based Farrell Fritz.

These employers “file actions on behalf of the government,” Mulry said, noting that such actions commonly center on Medicare or Medicaid fraud or construction projects involving public funding. “If the claim is ultimately successful, the whistleblower shares in the government’s recovery.”

The Department of Justice obtained $2.9 billion in settlements and judgments under the False Claims Act in the fiscal year ending Sept. 30, 2018.

In addition to the federal False Claims Act, there are state and New York City versions, as well, Mulry said.

New York Labor Laws 740 and 741 also provide protections for whistleblowers, said Gregg Kligman, an employment law associate in the Garden City office of Meyer, Suozzi, English & Klein, who noted bills were introduced in the state Assembly and Senate this year to expand the protections provided under these laws.

Labor Laws 740 and 741 prohibit termination, suspension, demotion or other retaliation against employees who report or threaten to disclose to a supervisor or public body that policies or practices of the employer are in violation of a federal or state law and create a substantial and specific danger to public health or safety, or that constitute healthcare fraud.

There are also a set of whistleblower laws enforced by OSHA that protect employees from retaliation for reporting various violations impacting workplace safety and health, as well as categories that include consumer products, the environment, transportation and securities laws.

“Every employer policy should encourage good-faith reports of policy violations or law violations without fear of retaliation and should include an open door policy such that employees feel invited to raise issues, which always leads to better communication,” Shields said. “There can always be better communication between the employer and employee. Sometimes the employee is very confident there is wrongdoing going on when there isn’t, and if they sit with the employer to discuss it, perhaps the employer can explain what is going on and clear up the matter.”

Many companies have a person who is designated to handle complaints, such as the human resources manager, or they may have a hotline to call, Mulry said. The steps to report wrongdoing should be communicated to employees.

Click here for the article on LIBN.


Gregg Kligman Quoted in the Nassau Lawyer

Employer Beware: New Requirements for Preventing Sexual Harassment

October 9, 2019 marked the deadline for all employers in New York State to provide all of their employees with a written sexual harassment policy and annual sexual harassment prevention training. These requirements became law on April 12, 2018, and are codified in the Labor Law § 201-g, “Prevention of Sexual Harassment.”

The new law is but one of the laws enacted by the State in the past several years strengthening legal protections from sexual harassment for employees, but creating more potential liability for unwary employers. State law now differs significantly from federal law in the standards of proof for employees asserting sexual harassment claims and employers defending those claims.

Practitioners representing employers who are proactively responding to the new state laws, who were interviewed for this article, emphasize that employer compliance with the new employer policy and training requirements is critical in defending against claims of sexual harassment.

State Law: An Affirmative Duty to Prevent Sexual Harassment

Whereas, New York State Human Rights Law (NYSHRL), Executive Law § 296, addresses “unlawful discriminatory practices,” including sex discrimination, Labor Law § 201-g now creates an affirmative duty for employers to prevent sexual harassment, or aim to, before it occurs.

Pursuant to the new law, the New York State Department of Labor (DOL) and the Division of Human Rights (DHR) have created and published a model sexual harassment policy employers may use, along with guidance, available at the State’s website, “Combating Sexual Harassment in the Workplace.”1 Alternatively, employers may develop their own policy, as long as it meets or exceeds the State’s minimum standards.2

Whichever policy an employer uses cannot just be kept on a shelf in the human resources office; it must be distributed in writing to all employees in English or in an employee’s primary language.

The training requirements in Labor Law §201-g are very specific.

Such model sexual harassment prevention training program shall be interactive and include: (i) an explanation of sexual harassment consistent with guidance issued by the department in consultation with the division of human rights; (ii) examples of conduct that would constitute unlawful sexual harassment; (iii) information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment; and (iv) information concerning employees’ rights of redress and all available forums for adjudicating complaints.

As with the sexual harassment policy, employers may use the model training program developed by the DOL and the DHR or develop their own program.3 In addition, other resources are available on the State’s website, including a model complaint form, training videos and a webinar.

Anti-harassment training in the workplace is not a new practice. In two foundational workplace harassment opinions, [Burlington Indus., Inc. v. Ellerth, and Faragher v. Boca Raton] the Supreme Court emphasized that it is an employer’s primary duty under federal anti-harassment law to exercise ‘reasonable care to prevent and correct promptly any…harassing behavior’ that occurs in the workplace.4

Federal Sexual Harassment Law

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1), states:

It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin…

The term “sexual harassment” did not originate in Title VII. Rather, some 22 years after Title VII was enacted, in Meritor Savings Bank, FSB v. Vinson, the Supreme Court affirmed “that a violation of Title VII may be predicated on either of two types of sexual harassment: harassment that involves the conditioning of concrete employment benefits on sexual favors, and harassment that, while not affecting economic benefits, creates a hostile or offensive working environment.”5

The Supreme Court held in Meritor that “[f]or [hostile work environment] sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’”6

A dozen years later, the Court took up the issue of employer liability in Burlington Indus., Inc. v. Ellerth, and Faragher v. Boca Raton, and fashioned a rule that when a supervisor coupled sexual harassment with a tangible employment action against the employee, a practice known as quid pro quo, the employer would be automatically liable.7

On the other hand,

[w]hen no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. . . . The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.8 (emphasis added.)

Under current federal law (and before recent changes to State law in 2019) an employer might successfully defend a hostile work environment claim based on sex by asserting the Ellerth-Faragher affirmative defense, if the employer prong and the employee prong were both met.

For the employer prong, “one way for employers to demonstrate that they exercised reasonable care is to show that they had an anti-harassment policy in place.”9 “Evidence of training is most commonly introduced to show an employer’s reasonable care to prevent and correct harassment under the employer prong.”10

For the second prong, if the policy has a complaint procedure then whether the employee follows the procedure may be determinative.11

As the Court held in Burlington,

“[w]hile proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense.12

With State Laws More Favorable to Employees, Advice for Practitioners from Practitioners

Until very recently, hostile work environment claims based on sex under Title VII and the New York State Human Rights Law (NYSHRL) were governed by the same standards and the same affirmative Ellerth-Faragher type defense could be employed under both laws.13

However, on August 12, 2019, Governor Cuomo signed legislation amending the NYSHRL, effective October 11, 2019.14

As a result, the standards under Title VII and the NYSHRL have now diverged. The State now sets a lower bar than federal law for a plaintiff to succeed on a sexual harassment claim. The NYSHRL, Exec. Law §296(1)(h), now states, in relevant part:

It shall be an unlawful discriminatory practice…(h) For an employer… to subject any individual to harassment because of an
individual’s…sexual orientation, gender identity or expression…[or] sex…regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims…The fact that such individual did not make a complaint about the harassment to such employer…shall not be determinative of whether such employer…shall be liable… It shall be an affirmative defense to liability…that the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic or characteristics would consider petty slights or trivial inconveniences.

Under the amended State law, plaintiffs no longer have to meet the “severe and pervasive” standard set for plaintiffs in Meritor to establish a prima facie case. Further, the employee prong of the Ellerth-Faragher affirmative defense has been eliminated, so that an employer may be liable even though the plaintiff has failed to complain about the harassment to the employer. In addition, the
threshold for employer liability, rising above the level of “petty slights or trivial inconveniences,” is far easier for a plaintiff to meet than Meritor’s “severe and pervasive” standard for sexual harassment.

Given the changes to state law in favor of employees, and in the wake of the #MeToo Movement and media frenzy with each new high profile sexual harassment story, sexual harassment claims against employers are sure to increase as a result. Practitioners representing employers will need to promptly review their clients’ sexual harassment policies and training, and stress the importance of adopting such policies to employers who do not have them.

Gregg Kligman of Meyer Suozzi English and Klein, P.C. comments that employers who do not comply with the policy and training requirements effective October 9, 2019 “will have a major strike against them in litigation and before administrative agencies such as the Equal Employment Opportunity Commission and the New York State Division of Human Rights. Those out of compliance will be deemed not to have fulfilled their obligations to prevent sexual harassment and provide their employees with a safe work environment.” Gregg’s firm has proactively developed sexual harassment training materials for its clients. The interactivity requirement is met by in-person delivery which includes presenting different scenarios related to sexual harassment specific to the type of workplace. Greg advises that “whereas formerly training was just for managers, now all employees must attend the training to meet the new requirements.”

Hayley Dryer of Cullen and Dykman LLP states that for employers, “compliance is crucial.” “Sexual harassment training can limit corporate liability. Preparation and prevention are far more effective at reducing workplace misconduct than a government investigation, agency proceeding or litigation. A small amount of proactive risk management can save employers time and money while reducing the risk of liability and exposure.”

“In that regard, in order for an employer to have a defensible position if a claim is filed, the employer must be able to demonstrate that employees have been trained and know, or should know, exactly what improper conduct is and what to do about improper conduct if they see it happening to them or anyone else. Employers must ensure
that employees know how to recognize and respond to reports of misconduct and that all employees, particularly supervisors, know about their obligations to report (and consequences of not reporting).”

“To maximize the benefit of such training sessions, employers should make sure that their policies against misconduct are reviewed at the training. Such a review helps to familiarize employees with the policies and will also help a person report the misconduct appropriately. An employee is arguably less likely to immediately seek legal action if he or she believes there is a mechanism in place at the employer to address the misconduct.”

Rhoda Y. Andors is an attorney with Bee Ready Fishbein Hatter & Donovan, LLC in Mineola, where she primarily practices employment law and works on class actions. She is past Co-Editor-In-Chief of the Nassau Lawyer.

The author thanks attorneys Hayley Dryer, Partner, Cullen and Dykman, LLP and Greg Kligman, Associate, Meyer Suozzi English and Klein, P.C., for their thoughtful contributions to this article.

1. Sexual Harassment Policy for All Employers in New York State, available at https://on.ny.gov/2PGrQmS.

2. Minimum Standards for Sexual Harassment Prevention Training, available at https://on.ny.gov/2mnY9Kk.

3. New York State Sexual Harassment Prevention Training (Oct. 2018), available at https://on.ny.gov/2kRde6K.

4. JoAnna Suriani, Reasonable Care to Prevent and Correct: Examining the Role of Training in Workplace Harassment Law, 21 N.Y.U. J. Legis. & Pub. Pol’y 801, 803, 2018–19 (citing Burlington Indus., Inc. v. Ellerth, 524 U.S.742, 744–45 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)).

5. Meritor Sav. Bank, FS v. Vinson, 477 U.S. 57, 73 (1986).

6. Id. at 67.

7. 524 U.S. 742, 765 (1998).

8. Id.

9. Suriani, supra n.4, at 825–26.

10. Id.

11. Id.

12. 524 U.S. at 765.

13. Murphy v. Wappingers Cent. Sch. Dist., No. 15 CV 7460 (VB), 2018 WL 1831847, at *4 (S.D.N.Y. Apr. 16, 2018).

14. Jimmy Vielkind, Gov. Cuomo Signs Tougher Workplace Harassment Law, The Wall Street Journal (Aug. 12, 2019), available at https://on.wsj.com/2mfOjtM.


Meyer Suozzi Attorneys Honored at LI Herald’s Top Lawyers Awards Gala

RichnerLIVE, Herald launch inaugural Top Lawyers of Long Island Awards Gala

The Top Lawyers of Long Island Awards Gala, hosted by RichnerLIVE and Herald Community Newspapers, recognized nearly 50 of the highest-performing legal professionals at the Carltun in Eisenhower Park on Sept. 25.

Long Island’s most successful and esteemed lawyers rubbed elbows at the Carltun in East Meadow’s Eisenhower Park on Sept. 25, where hundreds gathered to celebrate the inaugural Top Lawyers of Long Island Awards Gala.

RichnerLIVE, the events division of Richner Communications, and Herald Community Newspapers honored nearly 50 of the highest-performing legal professionals and law groups at the event.

Honorees were nominated by members of their community based on their proficiency in a variety of different practices, including banking and finance, corporate, bankruptcy, civil rights, divorce mediation and matrimony, criminal, debt, education, emerging companies and capital, elder law, family law, health care, labor and employment, land use and zoning, mass torts, litigation, medical malpractice, personal injury, tax, real estate, tax certiorari and trust and estates.

The event also honored Rising Stars Under 40, the top legal firms based on size, top philanthropic firm, Pro Bono Project of the Year and Top Boutique Firm.

The night kicked off with a VIP reception and a networking and cocktail party, at which a performer wore a shimmering “champagne dress” that was fastened to a table and lined with glasses of champagne that she served to guests.

Samantha DeVictoria and Samantha Frankel, sales managers at Golden Pear Funding, a nationwide provider of consumer legal funding that was one of the event’s sponsors, greeted honorees and guests. “If you’ve been in a car accident, or any accident, and you can’t work and have a personal injury lawyer, we provide you with financial assistance before your case settles,” DeVictoria explained.

Joe Bruha, senior marketing manager of Grassi and Co., also a sponsor, spoke to guests about the company and its mission to support local lawyers with accounting and auditing services. “We want to support Long Island lawyers and do a lot of work with the local legal community,” Bruha said. “This event is a nice opportunity to network with lawyers and recognize their contributions.”

During the networking and cocktail party, honorees expressed their gratitude for their peers’ recognition. “This day and age, a lot of people who went to law school are questioning that decision,” said Honoree Ross Kartez. “Being honored at an event like this, in front of my peers, is so rewarding because it reaffirms that decision and makes me confident doing what I do.”

Kartez, who works in the litigation department of Ruskin Moscou Faltischek in Uniondale, lives in Rockville Centre with his wife, Deanna, and their two children. He earned an undergraduate degree at the University of Buffalo and a law degree at St. John’s University.

Another honoree was Fredrick Johs, one of the founding partners of Lewis Johs Avallone Aviles, who is now the senior trial partner in all areas of litigation. Johs has over 35 years of experience in representing clients in significant claims cases. His work, he explained, focuses on the defense side of civil cases and medical malpractice.

“It’s always nice to receive these kinds of honors,” he said, “and the recognition from my peers means a lot to me.”

Amy Amato, executive director of corporate relations and events at RichnerLIVE, shared a similar sentiment about the event and its goals. “Tonight’s an exciting night to recognize the hard work that our honorees do professionally and in the community to help those in need,” she said. “It reinforces RichnerLIVE’s mission to connect, collaborate and celebrate Long Island’s top business professionals.”

Once attendees settled in the dining room for a three-course meal, members of the Nassau County Girl Scouts presented the colors to begin the ceremony.

“Lawyers, like journalists, are committed to upholding justice,” said Stuart Richner, chief executive officer and publisher of Richner Communications, as he welcomed guests to the event.

Richner presented the honorees with ornate glass awards engraved with their names. Masters of ceremonies Antoinette Biordi, of News 12 Long Island, and Alyssa Seidman, of the Bellmore/Merrick Herald, introduced the lawyers as they walked to the stage to cheers of support and appreciation.

“Community is important to our honorees and guests, and, as a community newspaper, it’s also important to us,” Richner said before introducing the night’s beneficiary, Island Harvest Food Bank, the largest hunger relief organization on Long Island, which received a portion of the event’s ticket sales proceeds.

Click here for the article at LI Herald


Six Meyer Suozzi Attorneys Named LI Herald’s Top Lawyers

On September 25, 2019, six Meyer Suozzi attorneys were honored at the Long Island Herald’s 2019 Top Lawyers of Long Island Awards Gala held at The Carltun in East Meadow. The award celebrates attorneys who have achieved professional excellence and success in specific areas of legal practice, give back to their communities and are recognized as being the best and brightest legal professionals on Long Island.

Meyer Suozzi’s 2019 Top Lawyers of Long Island Honorees

Patricia Galteri – Trusts & Estates

Richard G. Fromewick – Tax Certiorari

A. Thomas Levin – Land Use & Zoning

Edward J. LoBello – Bankruptcy

Andrew J. Turro – Labor & Employment

Lynn M. Brown – Education

 

 

About Meyer Suozzi

Founded in 1960, Meyer, Suozzi, English & Klein, P.C. is a distinguished provider of legal services, with a reputation for integrity, insight and excellent client service. The firm’s attorneys are committed to their clients, community, public affairs, and diversity. With offices in Garden City, New York City and Washington, D.C., the firm provides legal advice in a wide array practice areas.


Hon. Randall Eng Featured in the Queens Daily Eagle

State inaction could delay pay raises for justices

By David Brand

The state commission tasked with considering salaries and pay raises for state Supreme Court justices is understaffed and so far unable to fulfill its duty to evaluate judicial compensation.

Gov. Andrew Cuomo, State Senate President Andrea Stewart-Cousins, Assembly Speaker Carl Heastie and Chief Judge Janet DiFiore are each responsible for appointing members to the commission, known as New York State Commission on Legislative, Judicial and Executive Compensation. So far, only DiFiore has appointed commissioners. The Daily News first reported on the delay in filling positions on the commission Tuesday.

“The Chief Judge has appointed her two members to this year’s commission, both of whom have extensive knowledge and experience in the judiciary and the public sector,” a spokesperson for the Office of Court Administration told the Eagle.

The commission includes seven total members — three designated by Cuomo and two by DiFiore, as well as one each by Stewart-Cousins and Heastie.

DiFiore appointed former New York City Corporation Counsel Michael A. Cardozo, a partner in the firm Proskauer Rose LLP; and Retired Justice Randall Eng to the commission in August. Cardozo will serve as commission chair.

“We are most fortunate to have two such highly esteemed, accomplished individuals to assume these important posts,” DiFiore said in a statement in August. “Each brings tremendous expertise, wisdom and integrity to the critical work of the Commission.”

The seven-member commission meets every four years and considers salary increases for State Supreme Court justices and New York City Housing Court judges. The commission is required to submit their recommendations for judicial pay to the governor, legislature and chief judge by Dec. 31, 2019.

Judicial salaries depend on the type of judge, and can vary from $240,000 for the Chief Judge of the Court of Appeals to $189,000 for City Court Judges outside of New York City, according to OCA.

An elected State Supreme Court justice receives an annual salary of $210,900. Administrative Judges receive $218,500 per year.

 

State law requires the governor, chief judge, senate president and assembly speaker to appoint members to a commission that evaluates judicial pay. So far, only Chief Judge Janet DiFiore has fulfilled her responsibility. DiFiore appointed attorney Michael A. Cardozo (left) and retired Justice Randall Eng (right) to the commission in August. Photo via Proskauer Rose; Eagle file photo by Andy Katz.

PHOTO VIA PROSKAUER ROSE; EAGLE FILE PHOTO BY ANDY KATZ

Click here for the original article on Queen Daily Eagle.


Catherine Z. O’Brien Joins Meyer Suozzi’s Real Estate Practice

September 16, 2019 (Garden City, N.Y.) – Meyer, Suozzi, English & Klein, P.C. is pleased to announce that Catherine Z. O’Brien has joined the firm as Of Counsel in the Real Estate Department in the firm’s Garden City office.

Ms. O’Brien’s practice focuses on commercial real estate matters, including representation of landlords and tenants in a variety of lease transaction, real estate acquisitions and construction loans.  In addition, she has represented national wireless communications carriers in connection with lease and licensing transactions in New York City and surrounding areas.

“Catherine will be a valuable addition to our team,” said Alexander Berger, Chair of the Real Estate Law practice at Meyer Suozzi.“Her arrival reflects the firm’s continuing commitment to providing top quality services to its clients, and we look forward to her contributions.”

Before joining Meyer Suozzi, Ms. O’Brien was associated with two Long Island-based law firms in an Of Counsel capacity, where she advised clients in commercial leasing, real estate acquisitions, construction loans and general corporate representation.

Ms. O’Brien received her J.D., with honors from St. John’s University School of Law in 1992. She was also on the Editorial Staff, St. John’s Law Review. She received her B.A., from the University of Virginia in 1987.

Ms. O’Brien is a resident of Glen Head, New York.


Ten Meyer Suozzi Attorneys Selected to New York Super Lawyers List

Meyer, Suozzi, English & Klein, P.C. is pleased to share that ten of our attorneys have been named as 2019 New York Super Lawyers and Rising Stars. Super Lawyers, a Thomson Reuters rating service, includes outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The publication recognizes no more than 5 percent of the lawyers in each state while no more than 2.5 percent are named to Rising Stars. The annual selections are made using a rigorous multi-phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

Michael J. Antongiovanni  Business Litigation Donnalynn Darling  Personal Injury: Plaintiff
James D. Garbus – Business/Corporate A. Thomas Levin – State/Local/Municipal
Edward J. LoBello – Bankruptcy: Business Matthew A. Marcucci – General Litigation
Paul F. Millus – Employment Litigation: Defense Daniel B. Rinaldi – Business Litigation
Kevin Schlosser – Business Litigation Andrew J. Turro – Animal Law

 

About Meyer Suozzi

Founded in 1960, Meyer, Suozzi, English & Klein, P.C. is a distinguished provider of legal services, with a reputation for integrity, insight and excellent client service. The firm’s attorneys are committed to their clients, community, public affairs, and diversity. With offices in Garden City, New York City and Washington, D.C., the firm provides legal advice in a wide array practice areas.



Kevin Schlosser Quoted in “Judge allows 2nd gas station to open on Poospatuck reservation”

Judge allows 2nd gas station to open on Poospatuck reservation

By Mark Harrington

Heated competition for discount gasoline may be coming to the Poospatuck Indian Reservation in Mastic after a state Supreme Court judge last week lifted a temporary restraining order that has prevented a Smokes R Us station from opening next to Montauk Native Gas in a long-simmering land dispute.

Danielle Treadwell and her off-reservation backers must wait 10 days and produce a bond to cover costs for restoring the already developed Smokes R Us station and convenience store at the southeast corner of the reservation in the event that she ultimately loses a case brought by the Unkechaug Indian Nation. Some tribal members in court last week said they would work to stop the opening of Smokes R Us.

The nation brought the suit last year alleging Treadwell has no rights to the land, negating a 2013 land grant on property her cousin, Curtis Treadwell, was given the right to three years before.

The Smokes R Us gas station remained locked and closed Friday but Danielle Treadwell’s attorney, Linda Margolin, said it would open soon.

“We didn’t think there was any reason to keep it closed,” Margolin said. “We think the entire lawsuit is about trying to stifle competition on the reservation.”

Next door, the Montauk Native gas station, owned by Andre Hardy, Danielle Treadwell’s cousin, was doing its usual brisk business in discount gasoline, with the price of a gallon of regular gas at $2.39, the cheapest on Long Island, according to Gas Buddy, a search service.

Hardy operates the gas station in conjunction with a smoke shop and convenience store. Danielle Treadwell in 2015 filed a lawsuit against Hardy and Curtis Treadwell, charging that Montauk Native and its aboveground gas tanks were on property she claimed was hers.

“They want half the property and they’re saying my gas station is a nuisance,” Hardy said, denying the claim and adding that he believes Poospatuck Lane can support two stations. (A third smaller gas station operates elsewhere on the 55-acre reservation.) Hardy argued state Supreme Court Judge James Reilly erred when he went beyond the nation’s request to rescind Danielle Treadwell’s land claim given that the Unkechaugs are a state-recognized, sovereign tribe.

Mary Trent, a tribal council member and land trustee of the Unkechaug Nation, was in court last week with a group of tribal members to voice opposition to the new Smokes R Us station, which the nation argued in court papers did not properly bury fuel tanks and poses a health and environmental risk to the tribe. Trent was among trustees who ruled that Danielle Treadwell does not hold title to the land.

“She’s trying to say it’s in her name but it’s not,” she said, adding that Danielle Treadwell’s business partners are not tribal members. “Our land is for native blood-right members only,” she said.

Kevin Schlosser, an attorney at Meyer Suozzi in Garden City who is representing the tribe, said the tribe’s concerns remain despite the judge’s ruling.

Unkechaug Indian Nation members have a “significant concern as to the safety of this operation and the way this gas station was constructed” he said.

Schlosser called the Smokes R Us financial backers “trespassers,” noting that “they’ve been banned from the reservation and now they’re seeking to exploit the economic benefit when they are not blood right members.

Margolin said there was nothing that barred Danielle Treadwell from using outside backers.

“My client’s financial backers do not live on the reservation,” she noted. “I think it’s a smoke and mirrors issue, completely unrelated to whether or not the station is safe. We stand by the fact that the gas station is safe.”

But Curtis Treadwell said the case “is not about the safety of the gas station. It’s about who is the rightful owner of the land,” and he said the tribe decided clearly in 2010 that he was the owner. Beyond that, he said, the judge is “messing with the sovereign rights of a tribe. The whole tribe is up in arms right now.”

 

Click here for the article at Newsday