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Get To Know

Gene Berardelli, Esq.

Gene Berardelli is known as a street-smart attorney with significant experience in civil and commercial litigation. Gene was born and raised in Brooklyn, New York. Gene has achieved several career achievements for his clients, including a seven-figure personal injury settlement, successfully arguing before the New York State Appellate Division and successfully representing clients in litigation, mediations and arbitrations against such recognizable entities as the City of New York, New York City Transit Authority, JPMorgan Chase, TD Wealth Management Services, Inc., The Long Island Railroad, and Macy*s..

Gene is also a noted NY Election Law expert whose opinions have been cited in scholarly works and featured in news and feature articles. He has taught Election Law and Ethics as faculty on several CLE courses for attorneys and has served as a member of the City Bar's Election Law Committee where he has co-authored position papers on pending election legislation. Gene served as Law Chairman of the Kings County Republican Committee, General Counsel of the Brooklyn Young Republicans and has represented hundreds of candidates for public office, including trials concerning election recounts for state and municipal offices, including the closest election in New York State Senate history in 2012. Gene has also served as a member of Congressman Bob Turner's committee to select candidates to attend our nation's military academies.

In his spare time, Gene is an national award-winning talk radio host of Behind Enemy Lines Radio, a conservative talk show syndicated on multiple radio platforms both online and on terrestrial radio.


Education

B.A., Government, International Studies (Asia), 1999



  • 1999 Ryan Medal (Government)
  • Phi Beta Kappa
  • Pi Sigma Alpha (Government)
  • Omicron Delta Epsilon (Economics)
  • Sigma Iota Rho (Int'l Studies)

Juris Doctor, 2002





  • Superior Classroom Performance
  • 2001 Outstanding Appellate Brief: Mugel National Tax Moot Court Competition

Honors
Gene R. Berardelli
Rated by Super Lawyers


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  • 2014 Counselor of the Year
    Kings County Republican Committee
  • 2012 Young Republican of the Year
    Kings County Republican Committee
  • 2007 Recognition Award
    Sheepshead Bay / Plumb Beach Civic Association


Licensed to Practice in New York

; 8.7Gene R. Berardelli
Publications


Behind Enemy Lines Radio
Behind Enemy Lines is a national Award-Winning radio show / podcast broadcasting live out of the belly of the Democratic beast - "The People's Republic of" New York City that airs onmultiple radio stations as part of theTalk America Radio Network! The show is also available on multiple networks across the internet, with more being added regularly.

The show highlights national politics with a conservative spin from "insurgent" Republicans fighting for every scrap they can get! Guests from the world of politics - candidates, elected officials, journalists, authors, personalities, pundits and prognosticators - stop by to discuss current events. The show and its predecessor, Brooklyn GOP Radio, has been recognized as a legitimate source - even shows like The O'Reilly Factor and CBS This Morning have cited the show and its blog for original source material!

But it's not all business on air - in fact, there's rarely a dull moment, especially when the hosts put listeners on notice of the #TwoDrinkMinimumRadio requirement to listen. Sarcasm is a second language on Behind Enemy Lines, as evidenced by the wildly successful "Buffoon of the Week", where the hosts will nominate a public figure and hold him/her out for ridicule for some dubious distinction ripped from the headlines, culminating at the end of the year with "Buffoon of the Year" honors bestowed upon the truly deserving.


CAREER HIGHLIGHTS

Construction Fall
Successful mediation of a $1.25M claim for injuries suffered after a fall from elevation on a construction site.
Premises Liability
Reached a $469K settlement for single mother who suffered serious ankle fracture on a cracked concrete ramp.
Car Accident
Obtained $100K policy tender after arbitration for a back-seat passenger that required back surgery.
Appellate Victory
Successfully argued for reversal of a trial court decision that restored a candidate to the primary ballot for a party postiion.
Election Win
Dismissal of allegations of fraud via trial. An 87-vote deficit turned into a 13-vote victory in the closest election in New York State Senate history.
Business Success
Corporate counsel services for a leading sports media company, including re-structuring of management, distribution of sports publication and review of a multitude of contracts.
Non-Profit Services
Registered a tax exempt non-profit and obtained allocations of millions of dollars for a proposed waterfront park.
Earned Ballot Access
Successfully guided hundreds of candidates through the filing process for public office and party positions, including judicial nominees.
Commercial Litigation
Successfully prosecuted debt collection matters for a high-profile alarm installation and home security monitoring company.
International Law
Trial consultant on a successful international arbitration for a subcontractor against a Korean general contractor, including preparation of handling attorneys' direct and cross-examinations and witness preparation.
FINRA Arbitration
Successful mediation of a securities dispute involving a broker-dealer's breach of confidentialty and failure to secure private financial information.
David v. Goliath
Successfully obtained a six-figure settlement for a slip-and-fall inside Macy*s after successful rehabilitation of mistranslated testimony
GENE'S BLOG

Obtaining A New York Liquor License - Application & Process Basics


Once upon a time, my family and I ran a bar in Brooklyn, NY - let's just say it was a really... interesting experience. Anyways, I wrote this back in June of 2016 to share what I learned about getting a liquor license for a business and the application process itself.
Qualifying for a liquor license in New York State may seem straightforward, but will get complicated if you do not know the basics.

The application process starts with choosing your business's location in New York, because it can impact your license application.  A New York business selling alcoholic beverages must be 200 feet from schools and religious buildings.

Generally, you must also consider that a license for on-premises liquor consumption may be granted for any premise within 500 feet of three or more existing premises licensed and operating with an on-premises liquor license. This rule can be waived by the New York State Liquor Authority if it determines that the license would be “in the public interest” after consulting with the local Community Board and holding a public hearing commonly referred to as "The 500-Foot Hearing".

Additionally, only qualified persons can obtain a New York State liquor license.  The personal qualifications are simple:  you must be (1) 21 years of age; and (2) a US citizen with no criminal convictions. Please note that a felony DWI and some out-of-state convictions can all disqualify your application.

Also note that in New York City, community boards must also be informed of your intention to pursue a liquor license within 30 days of filing your application.  You must also publish notice in a newspaper once a week for two successive weeks after you file your application.

Knowing what kind of liquor license your New York business needs also changes the application process.  In New York, the following liquor licenses are available:

On-premise retail license
Liquor store and wine store license
Beer & wine product license (store)
Special event permit

There are also wholesale liquor licenses available from the State of New York.  

While owning a bar sounds like a lot of fun (that is, until you watch Bar Rescue), the application process can take can take as long as a year to process without the assistance of an experienced attorney. Attorneys are allowed to partake in New York State Liquor Authority's Self-Certification program. and can file retail applications on behalf of client-applicants by certifying that statements and documents provided in the application are true and accurate and that the application meets all statutory requirements. This means a more timely process for the applicant.

Yet another perk of having a law degree!

Commercial Lease Basics: Negotiate a Good Guy Clause For Your New York Start-Up


I wrote this back in June of 2016 when I was working on a commercial litigation matter involving a breach of lease by an international tenant, and was wading through the nuances of  so-called "good guy" clauses.

New York start-up businesses can negotiate a Good Guy Clause into commercial leases in New York to gain flexibility in terminating leases should things go wrong.

A Good Guy Clause is commonly used in New York City as a personal guaranty within a commercial lease.  In exchange for a guarantee from the tenant or an affiliate of the tenant to fulfill all obligations under the lease, the commercial landlord agrees to allow the New York tenant to terminate the lease early so long as all rent has been paid in full and the tenant gives sufficient notice.  The premises must be delivered "broom-clean" with all possessions and trash removed. 

Good Guy Clauses in New York may protect both the commercial landlord and tenant.  These clauses protect commercial landlords in New York City because these clauses avoid landlord-tenant litigation and, if there is a party other than the tenant offering the guarantee - the individual offers additional assurance that the rent will be paid.  These Good Guy Clauses, also, may protect tenants in New York by giving them an option to terminate a lease in the event that the tenant's business is unprofitable.  This is why a Good Guy Clause is so important to New York business start-ups.

If you are a New York start-up negotiating a lease for commercial space, here are some things to consider before signing your commercial lease:

1. With a personal guaranty comes personal responsibility.  That means you will be responsible personally for any shortfall in payments should you wish to terminate the lease.  If there is no personal guaranty, then all you lose is your business's security deposit.  

2. Good Guy Clauses can include a clause where you waive your right to any return of your security deposit.  This is NOT standard language within the clause.  Look out for it. 

3. Some landlords seek to make Good Guy Clauses conditional upon a minimum time of continued occupancy.  This kind of language negates the purpose of a Good Guy Clause, as most early terminations happen within the first few years of the lease term.  

The lesson here is simple: before negotiating a commercial lease with a New York commercial landlord, consider these people - and definitely hire an experienced New York attorney to guide you through the process.

Enforcing Foreign Judgments in New York: Hague Convention on Service


A lot of the work I handled for the brief time that I handled international matters concerned how rulings in one nation could be enforced in another. Being based out of New York, I thought this would be helpful to those who, like me, find their practice stretching beyond our borders:
Enforcing a foreign judgment in New York can be accomplished depending on the type of foreign judgment, and how you obtained your New York judgment.  The procedure requires an understanding of not only New York law, but international law.  

Recognition of judgments by foreign courts is not automatic in New York a procedure in place must be followed prior to recognition of the foreign judgment. 

The judgment must first be authenticated in accordance with an Act of Congress or the statutes of New York, and filed within 90 days of the date of authentication. An exemplified copy is needed that has been authenticated either through the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and if the nation is not a party to it, through consular legalization.

After the foreign judgment is authentication, a New York court must determine if the the foreign country judgment was rendered by a court which provides impartial tribunals or procedures compatible with due process of law and that the foreign court had personal jurisdiction over the party. All of the grounds for recognition are contained within CPLR 5301 through 5309, which adopts the Uniform Foreign Country Money-Judgments Recognition Act. 

New York has found that these standards are met in judgments from Canada, Mexico, England, Bermuda, Japan, India, Korea, Brazil, France, Germany, Switzerland, Italy, Hong Kong, Belgium, the Netherlands, Spain, Sweden, Denmark, Romania and most developed nations. On the other hand, judgments from Liberia, Iran and Ecuador fail to meet these requirements. 

To meet your burden of proof for recognition,  you must file an affidavit along with the certified copy, stating:

the judgment was not obtained by default in appearance or via a confession of judgment; 

that it is unsatisfied in whole or in part; 

the amount remaining unpaid and that its enforcement has not been stayed; and

the name and last known address of the judgment debtor. 

There is an extra added wrinkle if your foreign judgment is also a default judgment. To obtain recognition of a foreign default judgment, there are a few steps to take in addition to the authentication process outlines.

The easiest avenue is to file a motion for summary judgment in lieu of complaint pursuant to CPLR 3213.  This sets up a summary proceeding designed to determine whether you properly served the defendant in the out-of-state case, whether the court had jurisdiction to hear the case, and whether recognizing the judgment would violate public policy. 

Alternatively, you can bring a new action in a New York court based on the judgment in hand. 

Once a foreign judgment has been domesticated in New York it can be enforced the same as any other New York judgment. 
New York is the "Capital of the World", and attorneys must be ready to service a wide range of clientele - this is just another arrow that all NY practitioners should keep in their quiver.

Tips, Gratuities And Mandatory Service Charges: Rules for New York Businesses and Employees


One of the many blog postings that I've written in the past merited citation in an articles on the fact-checking site Snopes - I guess that means I knew what I was talking about in some small measure.
New York businesses and its employees alike can both benefit from learning the rules for tips, gratuities and mandatory service charges.

Many New Yorkers are tipped employees. Jobs where workers earn tips range from waiters and servers, to hotel employees and those who provide other services like delivery workers. In fact, part of the incentive for New Yorkers to take these kinds of jobs is the possibility that you may be able to earn more in tips than in straight wages. However, very few tipped employees and their employers understand all the applicable wage laws regarding tips, which can get complicated.

First, let's establish what is considered a "tip" or "gratuity" in New York. In its usual everyday meaning, a tip or gratuity is a voluntary payment over and above the charge for products or services (plus tax). Employers do not need to withhold additional funds for Social Security and Medicare (FICA) tax and can claim a credit against their own tax obligations for these amounts. The basic rule of tips is that they belong to the employee, not the employer.

Tips and gratuities differ slightly from a "mandatory service charge" which some restaurants add on to bills for large tables, private parties, catered parties or special events. While some states consider this to be money owed to the employer, New York law establishes a rebuttable presumption that any charge in addition to charges for food, beverages, lodging, and so on, is a gratuity which must be distributed to employees. However, the tax treatment of those distributed as tips can be a burden on both employer and employee. Any portion of such a charge which the employer pays to employees must be treated as wages. This means the employer must withhold additional funds for FICA and may not claim any credit as it can for tips. Also, employers must include them as part of the employee’s hourly wage when determining overtime payments.

So when is a tip really a tip and not a service charge for tax purposes? For the amount to count as a tip rather than a service charge, all of the following must be true:

The payment must be entirely voluntary;

The customer must have the unrestricted right to determine the amount of the tip;

The amount cannot be set by any employer policy or be subject to negotiation with the employer; and

The customer must have the right to determine who receives the payment.

In other words, tips are payments outside of the control of the employer.  However, there are instances where employers may require employees to hand over their tips:

The employer takes a tip credit. New York law allows employers to count all or part of an employee’s tips towards its minimum wage obligations. The credit is the amount the employer doesn't have to pay towards the applicable minimum wage (which is the higher NY minimum wage). If an employee doesn’t make enough in tips during a given shift to earn at least the applicable minimum wage, the employer has to pay the difference. The amount of an applicable tip credit depends on the employer’s industry and the employee’s job duties, and employees must be informed of the tip credit in writing.

The employee is part of a valid tip pool. Under both federal law and New York state law, employees can be required by their employer to pay part of their tips into a shared pool with other employees. Only employees who perform personal service to patrons as a principal part of their job may participate in the pool. All employees in the pool must contribute a portion of their tips that then gets divided among the employee pool. However, if the employer takes a tip credit, the employer counts only the tips the employee gets to take home up to the minimum wage limit as the credit. The employer may not keep any part of the pool or tip sharing arrangement -  it all must be distributed to employees. Employees who have limited supervisory duties may participate in the pool if providing personal service to patrons is a regular or principal part of their duties. However, an employee who has meaningful authority or control over other employees may not take part in the pool.

For more information on tips and how they should be treated, we recommend consulting with the NYS Department of Taxation and Finance



A World Without Honor

Since being involves in politics, I've learned that this is a world without honor, though I find myself still hopeful to find a glimmer now and again. 

I've always had the subject of personal honor and courage on the brain. Maybe it's because I'm such a fan of The D'Artagnan Romances - the adventurous stories of Alexandre Dumas' Musketeers, who always act appropriately in the service of a calling higher than themselves, and drew a clear line in the sand:
A rogue does not laugh in the same way that an honest man does; a hypocrite does not shed the tears of a man of good faith. All falsehood is a mask; and however well made the mask may be, with a little attention we may always succeed in distinguishing it from the true face.
Nowhere is this contrast more clearly drawn than in the absurd theater of local politics. Here, the honorable are the cannon fodder for those I'll call "The Honor-Less" - politicos, whether elected or not, who think that simply having the title "honorable" appear before their names bestows a virtue that they don't possess. 

Doing good has become an externality of political expediency - no one does good things for the sake of just doing good things. Words are broken - or were they even really given at all? Maybe I'm even more naive than most because I believe their words were even given. I'd probably be more accurate in saying that these "Honor-Less" out-and-out lie to your face as if it was an art form. 

The "Honor-Less" maneuver, they cajole, and they screw good, honorable people over - all to be the head of their little fiefdom where all that is done revolves around maintaining a illusory power that's just as temporary and fleeting as life itself.

Everyone wants to be king of their own little anthill and they are willing to compromise themselves to do so.

I've been very lucky in politics - I have searched out and found people I believe to be honorable. More often than not, they are those who are involved in politics as an activity outside of earning their livelihood. More often than not, they want to accomplish something bigger than themselves - and something other than feathering their own nest.

I've largely stayed away from The "Honor-Less." I've never been beholden to their whims for my livelihood, so I can come and go as I please. But I'm no Musketeer, either - though even they had their faults. I can't say that I myself haven't been compromised at times - of course I've have. Everyone in politics does something they would prefer not to do. For me, those instances have often involved putting the needs of the organization ahead of my opinion, or where decisions were made "above my pay grade." An unfortunate, but necessary, evil.

My friend and co-host on the former Brooklyn GOP Radio (now Behind Enemy Lines), Russell Gallo, has often asked rhetorically "what would happen if good people who see something wrong idly stand by and do nothing?" We've seen that it's a cycle, really. Good, well-intended people get involved, then either buy-in or get disenchanted, and then leave as the next crop of the willing emerges. I guess that's why they call it "machine" politics - there's always a need to feed the machine. 

When it comes down to it, politics is much like every other aspect of life - the result of personal choices. I can look at myself in the mirror and honestly say that I have never and will never allow myself to sell anyone out for personal or political gain. 

That also means I'm unlikely to "get far" in the political arena, but at least I'll get my full eight hours of sleep nightly. 

An Introduction to Business Planning Tools

Back in the summer of 2016, I worked with an international law firm that wanted the enter the American legal market, with a specific focus on business planning serving start-up businesses and other corporate clients - a hard way to start from scratch in "Capital of the World." 

This article was the first in a series of blog posts I wrote that explored how small businesses in New York can look to grow through outside investment  

Oh, and before I forget, keep in mind that these kinds of posts are instructive in nature, it is always best to consult an attorney before making any major business decisions. 
Everyone who goes into business thinks that they have the next "big idea".  If only you had the capital to take off.  But how do you get from point A to point B?   And how do you get your hands on that sweet investment capital that you so desperately need 

There are two tools out there that can be used to stir interest and attract investment.   

A business plan is a document that describes the fundamentals of your business idea and provide financial data to show that you will make good money. The content of any given business plan depends on the audience that will read it - potential investors, lenders, or even just for yourself to use as a tool to measure your progress.

A private placement memorandum (PPM) sometimes called an "offering memorandum",  is a  document created by a company and provided to prospective qualified investors to drive interest in purchasing stock in your company. Owners of privately-held corporations use PPMs in “private” transactions for securities not registered under applicable federal or state law for "public" sale on a stock exchange or other market. These sales are exempt from registration, but because of their highly-speculative nature and the high risk involved to investors, the material terms of the offering are disclosed under SEC Regulation D and are only open to qualified investors.  

The PPM outlines the company selling the securities, the terms of the offering, the risks of the investment, and other disclosure, which vary depending on the complexity of the offering.

Business plans and PPMs serve different functions.  A business plan is basically a marketing document created to introduce and promote your company, containing forward-looking information and projections. A PPM is a disclosure document descriptive in nature that allows an investor to decide on the merits of investing in your company. 

The presentation within a business plan outlines market analysis, target customer / audience, potentials for market growth, any potential competition, anticipated streams of revenue, and strategic partnerships. The presentation within a PPM may contain some marketing aspects, but is more factual and concrete in that it must address external and internal risks facing the company that an investor must weigh.  If a business plan is the advertisement, the PPM is the fine print.  
Don't worry if you're confused - that's why God invented lawyers who specialize in business formation and planning! If you want to learn more, feel free to contact me.

Triangulation: Plaintiffs Win While Defendants Fight

Sometimes, you have to get a little creative when it comes to maintaining a client's cause of action. Here is a posting I had made for another legal blog about one such case.

You can see my Memorandum of Law that I filed here. 
Here is a perfect example of how a skilled attorney can use proper strategy that applies to just about any dispute, whether it be a claim for injury or a dispute over money: when you have more than one target, you can pit one against the other to maximize your position. 

My client, a front seat passenger in a motor vehicle, doesn't know what happened to him. All he knows is that he was injured in a car accident - and that was enough to win the day for him.  

My client was sitting in the front seat of a vehicle driven by a young relative of his.  While traveling on Jericho Turnpike on Long Island, this vehicle collided with one driven by a third party.  The impact was so severe that my client was knocked unconscious, remembering nothing until paramedics removed him from the twisted metal that was the vehicle.  

The driver of his vehicle contended that she did nothing wrong and that the fault was with the other driver.  And of course, the driver of the other vehicle had a completely different story, as you'd imagine.  But our driver moved for summary judgment.  

Summary judgment motions are the gateway to moving from discovery to preparing for trial.  The standard for granting a motion for summary judgment is that the case should be similarly decided when there is no issue to be resolved at trial. Andre v. Pomeroy, 35 N.Y.2d 361 (1974). When faced with a motion for summary judgment, the Court must decide whether there is no genuine factual issue. Richard v. Credit Suisse, 242 N.Y. 346, 152 N.E. 110 (1926).  To beat the motion, I would have to show a triable issue of fact that can only be resolved at trial. 

The challenge laid out for me was clear - how to obtain full compensation for my client's injuries.  To do that,  I would need to defeat this summary judgment motion to not only keep his relative in the matter, but more importantly, to keep her insurance company - and its greater coverage -  in it as well. To do so, I pitted driver against driver. 

The driver of the vehicle which my client was in claimed in her sworn testimony that the other vehicle was traveling in the opposite direction and turned as if to pass through the intersection where the accident occurred and struck her while she was traveling with a green light.  

For his part, the other driver testified that he did not turn at all. He claimed to be standing at a red turn signal on Jericho Turnpike when the other vehicle plowed into him head-on, driving his vehicle back several yards.

The divergent stories made my life so easy - and the decision easy for the Judge, who held that "significant issues of fact exist[ed] sufficient to require a plenary trial" based upon "the parties' conflicting testimony concerning how the accident occurred".   

But, this matter would never see trial, as this ruling strengthened our negotiating posture and resulted in a much more favorable outcome than had been envisioned before this decision.

***

I didn't even really have to work to reach my client's goals:  the other side did all the work for me!  It's a handy tactic to employ when you have multiple defendants who are both looking to avoid responsibility, but who ultimately put themselves on the hook.

Just as a quick post-script: not only did the client settle with both drivers, but also ended up having a medical malpractice claim for injuries sustained from doctors performing an improper procedure in treating his injuries to his face - he beat summary judgment on that matter as well.

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