Kenneth M. Schneider

New York City In 2025, there was an array of proposed laws and amendments to existing laws, which have been enacted or are anticipated to be enacted in the near future and which will impact developers and owners of real estate in New York in 2026 and beyond. These important legal developments were largely aimed at streamlining access agreements; reducing the impacts of scaffolding, noise, traffic and pests; enhancing construction safety; and expediting prompt payment to contractors and subcontractors during construction projects. This article will examine the most significant developments and identify certain potential penalties for failure to comply. Access Agreements As any property owner who seeks to develop its property (and as a result requires access to its neighbor’s property) can attest, negotiating access agreement has become increasingly difficult over the years. S3799B, which awaits Governor Kathy Hochul’s signature, helps to streamline this process by amending Real Property Actions and Proceedings Law §881 (RPAPL §881) and includes several significant features. First, S3799B allows a real estate developer to underpin its neighbor’s property. Almost unilaterally, New York courts have held that they are precluded from granting the right to underpin a neighbor’s property under RPAPL §881, since RPAPL §881 discusses temporary protections, whereas underpinning is considered a permanent encroachment. Based on such court rulings, a real estate developer could be forced to redesign its project to eliminate the need for underpinning. Accordingly, S3799B could be a gamechanger. Second, S3799B allows a court that hears an RPAPL §881 application to award reasonable attorneys' fees to either party upon a finding that the other party acted in bad faith or engaged in willful misconduct. This also is a significant development. If nothing else, a neighbor who refuses access, or at least attempts to extort a large license fee from a developer, will have second thoughts if it faces the prospect of paying the developer’s legal fees in the proceeding. New York City Construction Codes There have been several construction-related quality of life laws that have been enacted or are in the late process of enactment. The New York City Department of Environmental Protection (DEP) has released a draft rule that would require construction sites, (i) over 200,000 square feet, (ii) are within 50 feet of designated noise sensitive living areas or healthcare facilities, and (iii) which have an Alternative Noise Mitigation Plan, to install equipment to monitor noise and report noise data directly to the DEP. The data would be used to determine if additional noise mitigation or a change in construction hours is needed. The rule would also be treated as a pilot to help set future construction noise mitigation policies. In July of this year, the New York City Council passed Intro 750A, which requires building owners applying to demolish a building that has been issued a vacate order pursuant to Section 27-2139 of the Administrative Code to show what actions the owners have undertaken to remedy any violations associated with such vacate order, including but not limited to permits, financing, estimates and the like. In the proposed New York State budget submitted this past March, there is a proposal that would enable the City of New York to authorize a new surcharge for permits relating to the obstruction or closure of streets, sidewalks, or pedestrian plazas for the purpose of construction. This proposal is being championed by the City and the Department of Transportation and includes the ability for the City to set a surcharge for permits that is above the administrative cost — currently $50 for 90 days. The proposal provides a range of permissible fee increases but exempts affordable housing developments. Additionally, there is a proposed bill (Intro No. 1217) amending the New York City Administrative Code to require the New York City Department of Health and Mental Hygiene to perform a building inspection in response to any 311 complaints relating to rats, mice, pests, or conditions which might attract them, within ten days of such complaint being made. The bill would also require a record of such inspections be made publicly available. 2025 Prompt Payment Act Amendments The Prompt Payment Act (General Business Law [GBL] Article 35-E) is designed to ensure prompt payment to contractors and subcontractors on private projects costing in excess of $150,000. On November 17, 2023, the Prompt Payment Act was amended to, among other things, limit the right of owners and general contractors to withhold retainage in excess of 5% of the contract sum. Previously, retainage in a “reasonable amount” could be withheld. While the amendments created much concern and comment in the construction industry and bar, the Prompt Payment Act itself contains a broad savings clause which, we believe, permits parties to contract around the amendments. In view of the foregoing, the purpose of S5655 / A5405, which awaits Governor Hochul’s signature, is to fully prohibit the ability to require retainage in excess of 5% of the total contract sum. It is important to note that contrary to public projects, the 5% cap on retainage will apply to the aggregate contract sum, not on a per invoice basis. Thus, owners may decide to withhold a greater percentage of retainage through the first half of a project (for example, 7.5% - 10% through 50% completion), and thereafter reduce or remove the retainage withholding for the duration of the project, so that the total withholding never exceeds 5% of the total contract sum. Conclusion Developing, owning and operating real estate in New York, both within and outside New York City, presents a multitude of challenges to owners and the parties with whom they contract. Accordingly, these parties need to stay apprised of all laws, including new laws and amendments to existing laws. Hopefully, this article will serve as a primer for such parties as they look forward to a successful 2026. Kenneth M. Block and Stuart B. Rosen are partners of Tannenbaum Helpern Syracuse & Hirschtritt. Hillel E. Sussman, an associate at the firm, assisted in the preparation of this article.

Nov 18

4 min

An Illinois federal judge has refused to hand Comcast a pretrial win in long-running litigation accusing the company of refusing to work with advertisers that don't use the cable provider's internal advertising system, ruling that the platform at issue is one-sided and that a damages expert dispute is best resolved at trial. U.S. District Judge Sharon Johnson Coleman of the Northern District of Illinois denied Comcast's motion for summary judgment in the litigation alleging that Comcast shut Viamedia out of the market by illegally tying its so-called interconnect services to its cable advertising representative services. In the order, Judge Coleman determined that she did indeed have jurisdiction to consider the one- or two-sided question. And Comcast's argument that the relevant markets — for interconnect services and for spot cable ad rep services — are two-sided transaction platforms doesn't hold up, the judge said. Beyond that, Judge Coleman refused to take issue with Viamedia's theory that Comcast engaged in anticompetitive tying before any actual sale of spot cable ad rep services. Comcast had argued that the theory can't be squared with binding precedent, but the Seventh Circuit already rejected that argument, Judge Coleman said in the order, which is dated Oct. 14 and was posted to the case docket on Tuesday. Judge Coleman is the latest federal judge to oversee the case since it was revived by the Seventh Circuit over five years ago. Comcast initially secured a summary judgment win over claims that it shut Viamedia out of the market by illegally tying its interconnect services to its cable ad rep services. "The court acknowledges that the parties' motions have been fully briefed for almost three years and that this case has been before four district court judges," she said in the order. "The court appreciates the parties' patience." The antitrust suit by Viamedia, a spot-cable advertising broker, accuses Comcast of using monopoly power to control spot ad sales in several designated market areas. The suit stems from Comcast's decision not to renew its contract with Viamedia after it expired, opting instead to sell ads through its own ad rep subsidiary, according to Viamedia. Comcast had argued that Viamedia was proposing a market definition that treats ad sales as one-sided even though under the Supreme Court's 2018 ruling in Ohio v. American Express, they should be considered two-sided and therefore in line with the Sherman Act. Comcast's interconnect services bring advertisers together with cable companies and other multichannel video programming distributors to buy and sell ads, which creates a "virtuous feedback loop" where increased participation on one end drives up value for the other, making it two-sided, it told the court earlier this year. But Judge Coleman said in her order that the undisputed facts "show that in the market for the tied product, spot cable ad rep services, ad reps sell a myriad of services," not transactions themselves. "Additionally, Comcast is mistaken that an ad rep cannot make a sale of a spot cable ad [time slot] to an advertiser without simultaneously making a sale of spot cable advertising rep services" to a multichannel video programming distributor, Judge Coleman said. Similarly, the market for interconnect services involves operators providing a multitude of services, not a transaction, she said. "Accordingly, the court concludes that neither the market for spot cable ad rep services nor for interconnect services is a two-sided transaction platform," Judge Coleman said. The parties have a status conference scheduled for Nov. 4, according to the case docket. Comcast and Viamedia didn't immediately respond to requests for comment late Tuesday. Viamedia is represented by James M. Webster III, Aaron M. Panner, Kenneth M. Fetterman, Derek T. Ho and Leslie V. Pope of Kellogg Hansen Todd Figel & Frederick PLLC, and by Richard J. Prendergast, Michael T. Layden and Collin M. Bruck of Croke Fairchild Duarte & Beres LLC. Comcast is represented by Ross B. Bricker and Michael T. Brody of Jenner & Block LLP, and by Arthur J. Burke, David B. Toscano and Christopher P. Lynch of Davis Polk & Wardwell LLP. The case is Viamedia Inc. v. Comcast Corp. et al., case number 1:16-cv-05486, in the U.S. District Court for the Northern District of Illinois.

Oct 21

3 min

Owners of a healthcare system in western North Carolina couldn't prevail in an early summary judgment attempt to avoid antitrust claims, after a North Carolina Business Court judge said the complexity of the request at hand precludes a "piecemeal" ruling. Judge Mark A. Davis denied HCA Healthcare Inc., ANC Healthcare Inc. and Mission Hospital Inc.'s motion for summary judgment without prejudice, reasoning that an early ruling would not promote judicial economy in the 4-year-old case. Dueling filings over the motion, which included the contested admission of expert testimony, have added complexity to the request, according to his Monday order. Instead, Judge Davis found it preferable to wait for a more complete factual record, and for dispositive motions that will include both parties' fully fleshed-out grounds for summary judgment. He said his initial sense that an early ruling on matters of law would promote efficiency changed after both sides submitted filings that exceeded the issue at hand, related to contracts with commercial insurers. Combined, the parties submitted 300 exhibits, including 25 deposition transcript excerpts and multiple communications between key witnesses, according to the order. The plaintiffs are a proposed class of western North Carolina citizens who claim they've had to pay higher premiums for health insurance since HCA acquired the formerly nonprofit Mission Health hospital system from ANC in 2019. Mission Health's flagship property is Mission Hospital-Asheville in the mountains of North Carolina. Since the residents filed a second amended complaint in July 2023, the parties have been in fact discovery, according to the order. However, HCA and ANC asked the court to permit a preliminary motion for summary judgment before discovery closed. The court granted it, initially believing that an early motion might promote efficiency by allowing the court to rule on a matter of law, Judge Davis said. The narrow issue at hand is if the residents' claims can survive when challenged contractual provisions — such as "tying" provisions, gag clauses or anti-steering provisions — aren't present in the defendants' managed care contracts with commercial health insurers, according to the order. The residents alleged that Mission Health coerced health insurers into contracts with these provisions in order to expand its monopoly. In opposing HCA and ANC's summary judgment motion, the residents also filed two expert witness affidavits. HCA quickly asked to depose the witnesses and then exclude their testimony, arguing that designating them as expert witnesses was premature. The companies contended that their contract interpretation issues were purely a matter of law that did not need expert analysis, according to the order. The residents disagreed, arguing that the court needs expert analysis to analyze the motion, particularly in how the contractual provisions affect relevant markets. The residents first sued in 2021, alleging not only that ANC had run the Mission Health system as a monopoly before the 2019 sale, but also that competition continued to be stifled afterward, resulting in even higher premiums. The suit was trimmed in late 2022. The proposed class then avoided a dismissal request less than six months later, after Judge Davis ruled HCA and ANC must face the monopoly claims. Several North Carolina cities and counties also sued in federal court over a similar grievance — that HCA drove up the price of health insurance to public employees — which settled in August. Judge Davis also denied a motion to adjust the case schedule, saying the schedule contained in his February order remains intact. Counsel for the parties did not respond Tuesday to requests for comment. The proposed class is represented by Jamie Crooks of Fairmark Partners LLP, and Mona Lisa Wallace, John Hughes and Olivia B. Smith of Wallace & Graham PA. HCA is represented by Abram J. Ellis, Sara Razi and Rachel S. Sparks Bradley of Simpson Thacher & Bartlett LLP, and Phillip T. Jackson, Ann-Patton Hornthal, John Noor, David Hawisher and Bryant G. Cross of Roberts & Stevens PA. ANC is represented by Dana C. Lumsden of Seyfarth Shaw LLP, Kenneth M. Vorrasi, Jonathan H. Todt, Alison M. Agnew, Paul H. Saint-Antoine and John S. Yi of Faegre Drinker Biddle & Reath LLP. The case is Davis v. HCA Healthcare Inc., case number 2021CVS3276, in the North Carolina Business Court.

Oct 14

3 min

Paul, Weiss is advising funds affiliated with Ares Management LLC, a major shareholder in Clear Channel Outdoor, in connection with Clear Channel’s sale to Mubadala Capital, in partnership with TWG Global, for an enterprise value of $6.2 billion. Clear Channel is a leader in U.S. out-of-home advertising. The all-cash transaction, announced on February 9, is expected to close by the end of the third quarter of 2026, subject to customary closing conditions. The Paul, Weiss team is led by corporate partners Michael Vogel, Lara Solomons and Kenneth Schneider, and includes partner Thomas de la Bastide; and tax partner Scott Sontag.

Feb 9

1 min

Groups of buyers accusing Apple of monopolizing smartphone and smartwatch markets told a New Jersey federal court the multidistrict litigation concerns the same allegations that recently survived dismissal in a government action. The three groups of buyers filed separate oppositions Thursday to a motion from Apple seeking dismissal of the claims. The buyers are seeking to recover overcharges for iPhone and Apple Watch purchases allegedly stemming from the tech giant's monopoly over smartphone and smartwatch markets. U.S. District Judge Julien Xavier Neals refused to toss similar claims from federal and state enforcers in June and the direct and indirect iPhone buyers said Thursday this means their claims should survive as well. "In every material respect, [the direct iPhone purchasers'] allegations parallel the allegations that this court already held sufficient to plead a claim for unlawful monopolization against Apple," the direct buyers' response said. Apple contended in its motion that the buyers' claims should be tossed, even though the government case survived dismissal, because private actions face unique hurdles and because the buyers' claims conflict with the governments' in some respects. One of the areas that Apple contends the cases differ is in how they define the markets that are allegedly being monopolized, but the iPhone buyers said in their responses that the cases all accuse Apple of having a monopoly over smartphones and performance smartphones sold in the U.S. "And they all plead that Apple has imposed a 'lock in' strategy that creates barriers for consumers to switch from iPhones to competing smartphones and allows Apple to charge supracompetitive iPhone prices," the indirect buyers said Thursday. The buyers, like the government, accuse Apple of monopolizing the smartphone market by restricting third-party developers to undermine competing products and services and to prevent users from switching to other smartphones. This allegedly includes degrading the quality of cross-platform messaging apps, suppressing mobile cloud services and digital wallets and limiting the functionality of non-Apple smartwatches. In addition to the iPhone buyers, the multidistrict litigation also includes claims from Apple Watch buyers. They argued in response to Apple's dismissal motion Thursday that iPhone owners have little choice when purchasing a smartwatch because Apple is interfering with the ability of rivals and developers to compete. As examples, the response said iPhone owners cannot send text messages from a non-Apple smartwatch or maintain a stable connection with other smartwatches because of technological restrictions. The response also said developers are unable to advertise that their apps are compatible with other smartwatches because Apple's contracts forbid it. "This conduct has crushed or driven away competitors," the Apple Watch buyers said. "Once Apple entered the market, Samsung and Pebble exited. Potential competitors Google and Meta declined to enter." The response said Apple's primary argument for dismissal of the smartwatch claims is that it has no "duty to deal" with its competitors. But the buyers said this does not shield Apple from the impact its conduct has on consumers and app developers who are not its rivals. "This court rejected that argument in the government case and should reject it again now," the response said. "The court must assess Apple's conduct 'as a whole' — not each specific restraint in isolation." The U.S. Department of Justice and contingent of state enforcers first filed their sweeping antitrust suit against Apple in New Jersey federal court in March 2025. The DOJ suit rounded out a quartet of long-anticipated government antitrust litigation that was already proceeding against Google, Meta and Amazon. Days later, a group of iPhone buyers filed suit, launching three separate proposed class actions accusing the tech giant of suppressing innovation, which were later included in an MDL centered in the same court as the DOJ case before the same judge. Representatives for Apple and the buyers did not immediately respond to requests for comment Friday. Co-lead interim class counsel for direct iPhone purchasers plaintiffs is William Christopher Carmody, Shawn J. Rabin, Cory Buland and Mark Musico of Susman Godfrey LLP, James E. Cecchi of Carella Byrne Cecchi Brody & Agnello PC, Christopher A. Seeger of Seeger Weiss LLP, Steven W. Berman of Hagens Berman Sobol Shapiro LLP, Dena Sharp of Girard Sharp LLP and Melinda R. Coolidge of Hausfeld LLP. Interim co-lead counsel for the indirect iPhone purchaser plaintiffs is Stanley O. King of Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins PC, Michael Dell'Angelo, Candice J. Enders and J. Taylor Hollinger of Berger Montague PC, Matthew S. Weiler, Todd M. Schneider, Raymond S. Levine and Suneel Jain of Schneider Wallace Cottrell Kim LLP, Heidi M. Silton, Jessica N. Servais, Joseph C. Bourne and Michael J.K.M. Kinane of Lockridge Grindal Nauen PLLP and William G. Caldes, Jeffrey L. Spector and Rachel Kopp of Spector Roseman & Kodroff PC. Co-lead interim counsel for the Apple Watch plaintiffs is Thomas R. Curtin and Kathleen N. Fennelly of McElroy Deutsch Mulvaney & Carpenter LLP, George A. Zelcs, David Walchak, Daniel Epstein, Stephen M. Tillery and Carol O'Keefe of Korein Tillery LLC, Steven F. Molo, Lauren F. Dayton, Eric A. Posner, Matthew E. Gold, Kayvon M. Ghayoum and Caroline A. Veniero of MoloLamken LLP and David C. Frederick, Aaron M. Panner, Alex A. Parkinson, Scott K. Attaway, Ariela M. Migdal and Katherine V. Tondrowski of Kellogg Hansen Todd Figel & Frederick PLLC. Apple is represented by Cynthia E. Richman, Daniel G. Swanson, Joseph R. Rose, Julian W. Kleinbrodt and Connor S. Sullivan of Gibson Dunn & Crutcher LLP, Liza M. Walsh and Douglas E. Arpert of Walsh Pizzi O'Reilly Falanga LLP and Craig S. Primis, Matthew J. Reilly, K. Winn Allen, Luke P. McGuire, Devora W. Allon and Alexia R. Brancato of Kirkland & Ellis LLP. The case is In re: Apple Inc. Smartphone Antitrust Litigation, case number 2:24-md-03113, in the U.S. District Court for the District of New Jersey.

Nov 21

4 min