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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 creates original political content comments on the state of politics, media and culture. He was the co-creator of a 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. His current project, Buffoon of the Week!, reviews the previous week's news and current events in search of the "dumbest newsmaker of the week."


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

; 8.5Gene R. Berardelli
Publications


Creating Original Content On Current Events
Gene was a co-creator of Behind Enemy Lines Radio, which was a national Award-Winning radio show / podcast that broadcasted live out of the belly of the Democratic beast - "The People's Republic of" New York City and aired on multiple radio stations and on multiple networks across the internet. The show highlighted national politics with a conservative spin. Guests ran the gamut of politics - candidates, elected officials, journalists, authors, personalities, pundits and prognosticators - stopped by to discuss current events. The show and its predecessor, Brooklyn GOP Radio, were 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.

Gene's opinions have been published on various news outlets as well, including Independent Voter Network, Newsmax and more. Gene has also been a panel commentator on various online and broadcast outlets, and has been a featured expert in stories published in several national news publications.

But Gene's work in media was not all business! He is cuurently creating original video content for his new project, Buffoon of the Week! Sarcasm is a second language on this show, which searches the week's news and current events in search of nominees to be recognized for the dubious distinction fo having been the dumbest newsmaker of the week! This culminates 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 $500K settlement for client who tripped on a garden hose left strewn on a walkway.
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
Trial victory over election fraud turned an 87-vote deficit turned into a 13-vote victory during 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 a print 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
Won commercial bench trial to reclaim withheld returns on investment plus interest from a Manhattan invoice factoring business.
International Law
Trial consultant on a successful international arbitration for a subcontractor in Dubai against a Korean general contractor, including preparation of handling attorneys' direct and cross-examinations and all 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 mis-translated testimony
GENE'S BLOG

Suing The City of New York? Don't Sit On Your Rights!


Commencing litigation in New York City against a private entity is an undertaking. But, suing the City of New York in state court starts with a big-time crunch, so don't sit on your rights! 

 

 I am re-publishing a blog post I authored that outlines the best practices when you think you have a case against the City of New York:

 

In New York, if you are suing any state or local government municipality or authority, you have, in most cases, 90 days to submit a Notice of Claim to the proper entity. The time period starts accruing from the date that the event triggering your claim occurred. In the Notice of Claim, you must give your personal information, the date, time and location of occurrence, a brief description of the incident in question and a brief description of the damages claimed. 

 

This Notice of Claim, in New York, must then be delivered to the proper entity - or entities if you are not sure if one or many are involved - at the proper location. To find a listing of entities and municipalities and addresses for service of process, New York City publishes the searchable New York City Green Book online. 

 

After filing the Notice of Claim, the noticed entity has the right to a 50-H hearing (referring to a section of the NY General Obligations Law), which is an investigative proceeding much like a deposition where the entity has an opportunity to ascertain additional facts about the claim. 

 

Different municipal entities and authorities have different statutes of limitations, ranging from one year to one year and ninety days, depending upon who you are and why you are suing the entity.  


When taken altogether, this means your attorney needs to ramp up the initial work-up and investigation of your matter faster than the average case in litigation.  Always remember that time is of the essence when bringing a claim against the government of New York.

Applying For NY State and Federal Tax Exemption For Your New York Nonprofit


I've been writing a lot about the basics of forming and running a non-profit in New York.  For this blog post, I want to run down my experience in applying for 501(c)(3) status for a New York non-profit as well as state tax exemption.

 

Working with nonprofits is one of the more rewarding experiences of my professional career. It is always good to help others do good.  

     Now that you created your New York nonprofit,  let's discuss how your New York nonprofit can apply for state and federal tax exemption.

    After your New York nonprofit has held its first organizing meeting, you will need the continued assistance of an experienced attorney to file documents with the federal government and New York State.  By this point, you should have already consulted an attorney about the formation of your organization and hopefully the attorney made sure that you have created an entity that the IRS will find qualifies for tax exemption.

    For the federal government, you will need to complete and file IRS Form 1023, which is a long and detailed form that asks for extensive information about your New York nonprofit's organization, history, finances, structure, governance policies, operations and more. The IRS Form 1023 should be accompanied by appropriate supporting documents that your attorney will request that you produce. 

    Smaller New York nonprofits may be eligible for the streamlined and simpler IRS Form 1023-EZ that can be submitted online if your New York nonprofit's annual gross receipts are less than $50,000 and total assets are less than $250,000.  Your attorney will know which IRS form best suits your New York nonprofit.

    After submission of your completed application, the IRS may send you a letter asking for clarification of certain issues before issuing a determination letter. This letter often includes a deadline by which you must respond.  This letter is a serious matter and must be handled promptly - an inaccurate, untimely or inappropriate response may jeopardize your application!

    Some time after submission of your responses, you will receive a determination letter stating whether your New York nonprofit qualifies for tax exemption status. 

    For New York State, NY Form ST-119.2 is the appropriate document for you to submit to apply for a tax exemption certificate from the NY State Department of Taxation, but it should be accompanied by your 501(c)(3) determination letter and other documents that your attorney will need to attach. 

    With all applications, patience is key.  Both the federal government and New York State have been known to take several months to process applications for tax exemption.  Your attorney should be the point of contact for all correspondence and interaction on behalf of your New York nonprofit with all levels of government during this process.


While nothing will substitute for the work of a capable attorney, I have found this site to be a great resource for budding nonprofits to use to organize their order of operations and act as a step-by-step guide. Definitely bookmark it! 


Fundraising In New York? Register In New York

I recently received an email from the head of a very prominent new non-profit concerned about a letter that the organization received. It was a reminder letter o the organization to register with the New York State Office of Attorney General's Charities Bureau. 


This is an example of an issue that many non-profits forget about: they are so concerned with federal filings, that they neglect their statewide obligations. 


This immediately brought to mind a past blog posting from June of 2016 that I wrote concerning the importance of this very topic: 

If your New York nonprofit is fundraising in New York, then you may likely need to register with the New York Attorney General's office.

Before soliciting contributions from individuals, foundations, corporations or government agencies within New York, a New York nonprofit must register with the NY Attorney General's General Charities Bureau, unless it falls within one of the many exceptions:

Exceptions to the New York Nonprofit Filing Requirements

1. Religious organizations or other organizations with a religious purpose (i.e., a religious school);
2. Educational institutions that solicit contributions only from alumni, the student body, faculty, trustees and their families, and other educational organizations that report to or are chartered by the Board of Regents of the State University of New York are exempt;
3. PTAs (Parent-Teacher Associations);
4. Fraternal, patriotic, social or alumni membership organizations that limit their solicitations to its membership;
5. Law enforcement support groups, veterans organizations, and volunteer firefighter/volunteer ambulance service organizations;
6. Any other organization that (a) does not use professional fundraisers in New York; and (b) its gross contributions (which includes contributions and grants, but excludes membership dues) from New York of less than $25,000 per year are exempt.
If your New York nonprofit does not fall within any of the above exceptions, then your New York nonprofit must file a CHAR410 application with the NY State Department of Law Charities Bureau Registration section, along with accompanying documents. 

Like most nonprofit filings, it is advisable for your New York nonprofit to consult an attorney to determine whether you must register, and to handle the filing and registration. 

Once filed and registered, you do not have to renew your New York nonprofit's registration. 

 Since I wrote this blog posting, the NYS OAG Charities Bureau allow non-profits to register with it online. After filing, your non-profit is required to file annually concerning your fundraising efforts.  


If you have questions about non-profits in New York, including questions about tax exempt status, I'd be happy to discuss your individual matter with you further.  

Which Tax Exempt Status Fits Your New York Non-Profit?

Ever wonder how some non-profits can lobby the government, but others cannot? 

I cannot tell you how many people in the political circles I have worked and volunteered in have asked me about the differences in various kinds of state and federal political committees.  Of course, that is before we even get to the basics of forming a NY not-for-profit company, which is necessary for you to understand. 


Inevitably, the issue of tax exemption and permissible activities always arises. Tax law can be especially confusing, as there are strict rules to follow if you wish to engage in political activity and remain a non-profit entity. 


This prompted me to write this very basic explanation of the nuances of the two most common tax exempt options available for those who dream of becoming a K Street lobbyist. 

Whether your New York nonprofit should apply for tax exemption under IRS 501(c)(4) depends upon the type of organization you have and the political activities it may be undertaking.

New York nonprofits that are civil leagues and local associations that further a social welfare objective, but do not quite meet the level of a charitable organization (religious, educational, charitable purposes), may pursue exemption under 501(c)(3).  For example, a local civic association, homeowner's association, or the local Lions Club, are organizations that meet this description. 

New York nonprofits that wish to freely conduct political or lobbying efforts, gain support or opposition for political candidates or take action to pass or repeal laws and legislation should choose to apply for 501(c)(4) exemption. 

A New York nonprofit that obtained 501(c)(3) exemption is limited to conducting "insubstantial" lobbying efforts that allocate less than 10% of its total operating budget.  A New York nonprofit that obtained 501(c)(4) exemption may engage in unlimited lobbying and political activity so long as there is some relation to the purpose of the organization.

You should note that should your NY nonprofit obtain 501(c)(4) exemption, individuals and businesses that donate to your organization will most likely be unable to take a tax deduction. 

If you are considering applying for exemption under IRS 501(c)(4) for your New York nonprofit, you should consult an attorney that knows the eligibility requirements and costs and benefits to each classification so you can make an informed decision.

Believe me, it gets more complicated than this. I haven't even talked about the state and federal registration and reporting requirements for certain kinds of political action committees, let alone the requirements on candidate committees and the existence of other options that exist depending upon your own personal background (such as bring a veteran.) 


Luckily, there are some no-cost options available for you to start educating yourself further, such as this workshop provided by the IRS. 


Also, we can get into all the nitty-gritty details of your personal ideas and questions, so feel free to contact me to discuss your individual situation.  


Forming A Not-For-Profit Entity in New York


As a young attorney, I became very active in my local community. I joined my local civic association and found, to my surprise, that it had not applied for tax exemption from the government. This hampered the organization's ability to obtain government grants that would have allowed the association to better serve our neighborhood. 


But, this was only my introduction to non-profits. Soon, I explored creation of not-for-profit entities in New York for other projects that interested me, including political committees. I basically took a crash course in both NY not-for-profit law and federal tax exemption. 


So, I thought it would be beneficial to share some of the introductory information I learned both on not-for-profit formation here in New York, and then a similar introduction to the complexities of obtaining tax exemption for a New York not-for-profit entity. 


 Here is a not-so-quick introduction of how to start a nonprofit corporation in New York.

A 501(c)(3) organization, which are formed for religious, charitable, scientific, literary or educational purposes, is eligible for federal and state tax exemption.  But before you can have a tax exempt organization, you need to create an organization in New York.  Here is what you need to do to create a organization in New York.

***

Choose Directors: Choose 3 initial directors over the age of 18, preferably people who live in New York.

Select a Name: Choose the name of your nonprofit corporation that is distinguishable from the name of any other corporation.  To assist you, New York's Department of State has a business name search database of New York businesses to determine whether your name is available.

Select the Address: Determine the address and location of your New York nonprofit to create a Certificate of Incorporation to be filed with the State of New York.

Articulate the purpose of your nonprofit for your Certificate: This can be tricky because it must contain more than what your nonprofit's purpose actually is. An insufficient statement of purpose that does not meet either state or federal requirements will delay creating your organization and obtaining tax exemption. Your attorney should have boilerplate language available for you to utilize that should pass all levels of scrutiny.

Prepare bylaws: Before you file your certificate, you will need to have bylaws that comply with New York law that contain rules and procedures for holding meetings, electing officers and other corporate formalities that your nonprofit will need to follow. While you need not file your bylaws, they will be needed later on when you file for tax exemption.

Set up a Records Binder: Your New York attorney should organize your important documents and provide a record binders for future documents like minutes, resolution and other important documents that will be accumulated over the time your New York nonprofit is operating.

Select the Type of Nonprofit: Determine the type of nonprofit you are filing, as defined by the law:

Type A nonprofits are formed for any lawful non-business purpose or purposes including, but not limited to, any one or more of the following non-pecuniary purposes: civic, patriotic, political, social, fraternal, athletic, agricultural, horticultural, animal husbandry, and for a professional, commercial, industrial, trade or service association;

Type B nonprofits are formed for any one or more of the following non-business purposes: charitable, educational, religious, scientific, literary, cultural or for the prevention of cruelty to children or animals;

Type C nonprofits are formed for any lawful business purpose to achieve a lawful public or quasi-public objective, which must be explained in a separate statement identifying the lawful public or quasi-public objective which each business purpose of the corporation will achieve;  

Type D nonprofits are formed when authorized by any other corporate law of New York for any business or non-business, or pecuniary or non-pecuniary, purpose or purposes specified by such other law, regardless of whether its purposes are also with Type A, B or C.

 

Your New York attorney will, also, likely request other documents for the processing of the non-profit incorporation.  No worries, with a proactive attorney, most formations go smoothly.


Obtaining tax exemption? That's an entirely different story altogether. 

Non-Compete Agreements In New York

H/T to Trade Secrets Law for the funny cartoon!

Having represented businesses that have sued independent contractors to protect the misuse of the business's proprietary information, I recognize the importance of drafting a proper non-compete agreement in New York. 

The company I represented was suing a former independent contractor who was improperly misappropriating  the company's trade secrets and using that proprietary information to tortiously interfere with my client's business. The evidence tended to prove that the independent contractor was moving the business's customers to the independent contractor's newly formed company which then provided the exact same services as my client, but for a lower price. 

It was clearly an underhanded tactic.  Litigating this matter taught my client a lot about the pitfalls of protecting the trade secrets of their business, including what constitutes a trade secret and how business relationships can inadvertently develop in the course of the contracted relationship. 

Whether a customer list constitutes a trade secret or is readily ascertainable from public sources is usually an issue of fact1So it is important to distinguish between the two. In many cases, the independent contractor agreement also creates an agency relationship between the business and the independent contractor2A principal-agent relationship may be established by evidence of the "consent of one person to allow another to act on his or her behalf and subject to his or her control, and consent by the other so to act." An agent is a party who acts on behalf of the principal with the latter's express, implied, or apparent authority3.  

Ultimately, the facts in my client's case fell heavily in their favor. My client prevailed on the Defendant's summary judgment motion and soon settled with the offending independent contractor for a significant sum of money. But, the years lost to litigation highlights the need to properly draft non-compete agreements between parties. 

Here is a blog post I wrote back in November of 2016 on this issue.

The validity of a non-compete agreement in New York is measured in light of relevant principles and the particular facts and circumstances of your business's situation.
Non-compete clauses are commonly found in employment agreements across many industries regardless of size or products / services offered. They impose restrictions on future employment of key employees within a defined geographic area for a competitive business within a reasonable period of time after employment in your NY business ends.  The validity of a specific non-compete clause is taken on a case-by-case basis.  Those agreements are considered "reasonable" when:
The clause / agreement is no broader than is required to protect the NY business's legitimate interests, such as confidential information, trade secrets, or preventing loss of key employees to competitors;
The clause / agreement does not unduly burden the employee; 
The clause / agreement does not injure the public;
The clause / agreement is not for an unreasonable duration of time (typically 6 months or less is considered reasonable); or
The clause / agreement has a reasonable geographic scope.
If a contracted party breaks your non-compete clause or agreement, your NY business has two options to pursue in Court.  A NY business can (a) seek an injunction via an Order to Show Cause to enforce the non-compete clause and prevent the employee from engaging in the behavior at issue, or (b) seek money damages, should the behavior at issue result in loss of profits to your business.
When presented with such matters, courts have been known to modify terms, or "blue pencil" clauses and agreements based upon their own sensibilities and what it considers fair and reasonable.
Because of this subjective nature, it is imperative that you consult an attorney so that you can analyze what positions in your NY business are key to your operation, what interests and information must be protected, and the best way to craft your non-compete clause or agreement.
Creating a valid non-compete agreement for your NY business protects your business interests and prevents loss of profits.
If you require further guidance on non-compete agreements or other aspects of business planning so that you can avoid the litigation that my client experienced, I am happy to discuss your specific matter with you. 



SOURCES
1 Suburban Graphics Supply Corp. v. Nagle, 5 AD3d 663, 774 N.Y.S.2d 160 (2d Dept 2004)
2 Barber v Actknowledge, Inc., 24 Misc 3d 1211[A], 1211A, 2009 NY Slip Op 51419[U], (Sup Ct, Kings County 2009)
3 Time Warner City Cable v Adelphi Univ., 27 AD3d 551, 552 (2d Dept 2006); see also: Maurillo v Park Slope U-Haul, 194 AD2d 142, 146, 606 NYS2d 243 (2d Dept. 1993); Art Fin. Partners, LLC v Christie's Inc., 58 AD3d 469, 471, 870 N.Y.S.2d 331 (1st Dept 2009); Dynas v Nagowski, 307 AD2d 144, 147-148, 762 NYS2d 745 (4d Dept. 2003).

Maximum Rates Of Interest Allowed On Private Loans In New York: Updated


I recently read a great article on a recent federal court decision written by Kristen E. Andreoli, C. Jason Kim and Timothy E. Davis at White & Williams, LLP, concerning a clarified limitation of New York's usury laws. I encourage you to go read it. 


The article details a case before the Second Circuit concerning the rate of interest a commercial borrower can be charged once they default on a mortgage.  The part of the decision that caught my eye was that the Second Circuit held that New York State's usury limitations do not apply to defaulted obligations. 


The article also brought to mind a past posting I wrote in November of 2016 giving the basic understanding of New York's usury laws for non-attorneys: 


 New York business owners on the lookout for financing should know how much interest they can be charged on private loans made by persons or entities other than banking institutions or credit card companies.

 

Charging interest rates that exceed the state maximum allowed by law is called usury (also commonly referred to as "loansharking"), which is illegal. When it comes to determining at what rate a particular interest charge becomes actionable on a civil basis (where a borrower can object to the terms of the loan), and at what rate the charge may actually expose the lender to criminal liability, New York law can be a little complicated. Usury laws in New York, regulate the maximum interest rate a person or entity may be charged on a money loan. The applicable laws are the General Obligations Law and the Banking Law, which set civil law limits, and the NY Penal Law, which sets criminal law limits.

 

Under these laws, if a private loan exceeds the maximum "civil" usury rate, then the entire loan is considered void, and the lender may be denied the right to recover interest as well as principal. Additionally, the borrower may maintain an action for the return of interest payments previously made. If the loan exceeds the maximum "criminal" usury rate under New York law, then the lender may be prosecuted for committing a felony.

 

New York laws create a tiered system based upon the nature of the borrower and the size of the private loan:

For private loans made to individuals that do not exceed $250,000, the maximum annual "civil" interest rate is 16%.  The maximum "criminal" interest rate is 25%. 

For private loans made to individuals that are between $250,000 and $2.5 million, there is no maximum "civil" rate. There is a 25% maximum "criminal" rate. 

For private loans that exceed $2.5 million, there is no maximum "civil" or "criminal" interest rate. 

For private loans made to corporations that do not exceed $2.5 million, there is no maximum "civil" interest rate, but there is a 25% maximum "criminal" interest rate.  For loans that exceed $2.5 million, there is no maximum "civil" or "criminal" interest rate.  

 

States other than New York may have their own statutory and common-law rules and standards for usury. Therefore, we suggest that you obtain advice from a knowledgeable attorney in the event that a legal question arises concerning that the interest charges in a particular private loan transaction is usurious,


Obviously, this article was only meant to be a primer on the issue of New York's usury laws.  If you have specific questions about a loan arrangement you are involved in, I would be happy to consult with you on the matter. 

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