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Philip Halpern Wins Constitutional Challenge

May 3, 2012

White Plains, N.Y., litigation law firm, Collier Halpern & Newberg, LLP, would like to congratulate our Managing Partner, Philip M. Halpern, on his latest decision, in which General Municipal Law §959, which governs Empire Zone certification, was found, in part, to be unconstitutional.  The Empire Zone Program was created in 2000 by the New York State Department of Economic Development (DED) as a successor to the Economic Development Zones Program to provide tax benefits and credits to businesses that invest capital and create jobs in economically distressed areas of New York. The New York Legislature amended portions of GML §959 in April, 2009, in response to reports from the Comptroller that indicated problems in determining the cost effectiveness of the program.  Pursuant to the amendments, the performance of participating businesses between 2001 and 2007 was to be reviewed and assessed for compliance with two new standards for eligibility. Those who did not meet the new standards would lose their Empire Zone certification -- retroactive to January 1, 2008.  On May 3, 2012, the Appellate Division, Third Department, inter alia, reversed the trial court and held that the revocation of Mr. Halpern's client's Empire Zone certification could not be made retroactive to January 1, 2008, and that the retroactive application of the amendments constituted an unlawful taking of property that violated due process.  In the Matter of Morris Builders, LP et al. v. Empire Zone Designation Board et al., No. 511897, 2012 N.Y. App. Div LEXIS 3494 (3rd Dep't, May 3, 2012).  The Appellate Division determined that participants who were complying with existing standards could not have anticipated that the program rules governing certification would be changed and had every reason to assume that they would continue to enjoy the benefits of certification.  Id.  Mr. Halpern is a Westchester County trial attorney, who has been practicing law since 1980. He is certified by the National Board of Trial Advocacy, and is distinguished by his lengthy list of reported decisions.  He now adds to his credits the honor of representing his client in a matter of constitutional impact.

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