We're most honored that our blog has consistently rated in the "Top 10" of all law blogs, nationwide, as tracked by an American Bar Association website (abajournal.com).
Our thanks to all of you for your continued encouragement and support.
In the case of In re Michael Quercia v. New York University, the Appellate Division, First Department, affirmed the suspension of an N.Y.U. student found to have been in possession of marijuana.
In May 2005, officers uncovered 10 ounces of marijuana, $1,740 in cash, and assorted drug paraphernalia in Quercia’s dorm room. He was immediately suspended, told to contact the University in order to begin the disciplinary process, but failed to do so for some 10 months.
In January 2006, Quercia, as part of a plea bargain, pled guilty to one count of disorderly conduct and was sentenced to a conditional discharge of one-year and 10 days of community service.
In March 2006, Quercia finally contacted N.Y.U. to begin the disciplinary review process. At a hearing before the Judicial Board, Quercia denied selling or distributing drugs. He also disclaimed knowledge of the drugs’ existence prior to the search, and suggested that perhaps a roommate or prior occupant of the dorm room had owned them. He admitted to owning some of the alleged drug paraphernalia, but testified that he had used it for collecting pollen and grinding flowers. (Apparently, Quercia thought the members of the Judicial Board were high.)
The Board suspended him until the Fall of 2007, and required him to do 500 hours of community service prior to reinstatement.
On June 12, 2006, Quercia filed an Article 78 proceeding with the New York County Supreme Court, seeking to overturn the Board’s decision, reinstating him to NYU, and expunging the disciplinary proceeding from his records.
The Supreme Court upheld the Board’s determination, but reduced the punishment to 100 hours of community service. The Appellate Division, First Department, reversed and affirmed the original punishment.
The AD1 noted that judicial review of a university’s disciplinary rulings is limited to whether the school adhered to its own published rules and whether the punishment was so disproportionate as to “shock one’s sense of fairness.” It further concluded that the suspension was proper.
First, NYU’s prohibition of drugs and the penalties for violating that prohibition -- probation, suspension, expulsion -- were quite clear. Second, the AD1 found the outcome to be appropriate considering the severity of the infraction, which posed "a substantial risk to the health and safety of students."
Two college students were sued by The Great Atlantic & Pacific Tea Company d/b/a A&P -- a 337-store supermarket chain -- for allegedly defaming the company in a music video which they recorded on-premises without the company's consent.
Priding themselves as rappers known as the "Fresh Beets," the young men appear to be engaged in a musical parody of their work, rather than on a mission to disparage or harm the company's products or reputation.
While the video is certainly childish and crude, we're of the opinion that the company overacted when it filed a lawsuit seeking a million dollars in damages, and terminated the two New Jersey residents from their respective positions as "produce clerks."
Just because someone is found to have breached an agreement with you doesn't mean you'll recover anything.
You've got to be able to prove -- to a judge's satisfaction -- damages were suffered.
By way of example, in F & D Bagel Corp. v. Wald Realty, F & D Bagel d/b/a Bernie's Bagels, sued its landlord for refusing to consent to an assignment of the store's lease to a prospective purchaser. (The lease provided that the owner would not "unreasonably" withhold its approval to such a transaction.)
Although the Rockland County Supreme Court found the landlord had violated the agreement, it ultimately dismissed the case due to Bernie's inability to prove damages. And, on appeal, the Appellate Division, Second Department, affirmed.
Despite Bernie's claim that the failed deal was the landlord's fault, the evidence demonstrated that the buyer had only executed a "letter of intent" to acquire the business for $275,000. And, that the document afforded the purchaser a 30-day due diligence period and was also subject to a formal contract of sale. (Isn't that an "agreement to agree?")
Without a "valid and enforceable agreement to sell the business," Bernie was unable to prove he had been damaged by the landlord's misconduct.*
We're at a loss to figure out why it took a trial to get to that point. Wouldn't that have been an issue readily disposable by way of motion practice?
*It didn't help Bernie's case that he was a bit "fast and loose" with his facts and figures. When presented with a copy of the deli's tax returns -- which revealed that the business's income generation had been "significantly overstated" -- the purchaser testified at trial that had that information been made know to him he never would have purchased the deli nor made an offer.
Yes, folks, the adverse possession saga continues.
Yesterday, we reported that Governor Spitzer rejected the Legislature's attempt to amend the law of adverse possession.
In a "Veto Message - No. 153," the Governor declined to approve the bill citing the "radical impact" it would have on the state's adverse possession laws and the "significant adverse consequences" it would have on the state's property owners.
The Message notes, in part, as follows:
This bill could have significant adverse consequences for New York property owners. The addition of a "knowledge" element to the statute of limitations would likely result in extensive litigation of virtually every adverse possession claim, and thus would undermine the certainty that the statute of limitations was established to provide. The protections against future litigation that a statute of limitations affords will be unavailable for this class of title claims, which could also impact the availability and cost of title insurance.
Kensington International Ltd., a financial institution which invests in debt and equity instruments issued by foreign governments, had secured a $56,911.991.47 money judgment against the Republic of Congo, and, in furtherance of executing that judgment, was seeking the testimony of Medard Mbemba, a citizen of France and Congo.
Because of his dealings with the Congolese government, Mbemba was believed to be familiar with the location of the Republic's assets and had been subpoenaed by Kensington's attorneys to testify as a non-party witness.
When partners at Cleary -- which served as counsel to the Republic -- learned that Mbemba had agreed to testify without being accompanied by a lawyer, he was contacted by Jean-Pierre Vignaud (a member of Cleary's worldwide executive committee), who allegedly attempted to dissuade Mbemba from cooperating by appealing to the latter's sense of patriotism and warning him that his testimony could "hurt the Congo," and prove "dangerous."
Finding this conduct to be highly irregular and inappropriate, Judge Preska concluded that Cleary's "incivility" warranted formal rebuke and reproach. The Judge noted, in pertinent part, as follows:
Sanctions serve three purposes: (1) to prevent a party from benefiting from its own improper conduct, (2) to provide specific deterrents, and (3) to provide general deterrence ... Here, Cleary did not benefit from its own improper conduct. But Cleary is an ideal candidate for specific deterrence. It has shown a willingness to operate in the murky area between zealous advocacy and improper conduct, and here it crossed the line.
Cleary, through two of its attorneys, sought to interfere with the legitimate post-judgment discovery process in this case by attempting in bad faith in furtherance of its own interests to dissuade Mbemba from attending the properly noticed deposition.
This conduct is inconsistent with counsel's obligations under the Federal Rules of Civil Procedure and recognized ethical strictures ....
This case is far from over, and sanctions are necessary to remind Cleary that it has obligations beyond representing its client. Accordingly, Cleary is hereby sanctioned pursuant to the Court's inherent authority. Cleary is directed to pay Kensington the reasonable costs and attorney's fees incurred by Kensington in connection with this motion. This sanction is imposed as a formal reprimand and should be circulated to all attorneys at Cleary. Sanctions here will also serve as a general deterrent to other law firms and perhaps as an entreaty as well: civil litigation can be high stakes, zealously litigation, aggressively fought, and civil.
ERROR IN "J-51" RIDER MEANS APARTMENT STAYS REGULATED
The J-51 Tax Exemption/Tax Abatement Program (J-51) provides tax incentives to owners of residential structures which have been substantially rehabilitated (or commercial buildings that have been converted to residential use).
But there's a catch: By law, the tenants must be given written notice (upon signing the initial lease and upon each renewal) advising them when the J-51 benefits are scheduled to lapse. Should a landlord fail to adhere to that requirement, the unit(s) in question may remain subject to stabilization until voluntarily vacated by the tenant(s) after the J-51 benefits period has expired.*
By way of example, in 245 PAS Property LLC v. Gamboa, the landlord's lease rider informed the tenant, Rosemarie Gamboa, that the J-51 benefits were scheduled to lapse on June 30, 1991, when the actual expiration date was June 30, 1997. (Oops!)
Since that six-year "discrepancy" was not viewed to be inconsequential or "de minimus," both the New York County Civil Court and the Appellate Term, First Department, were of the opinion that the tenancy could not be terminated and that unit remained subject to rent stabilization "because of the landlord's persistent failure to furnish tenant with a proper lease notification specifying that the apartment will be deregulated at the expiration of the tax abatement period."
This landlord clearly made a bad move gambling with Gamboa.
For a copy of a guidebook released by the New York City Department of Housing Preservation and Development, please use this link: J-51 Guidebook (2004)
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*To that end, Section 2520.11(o) of the Rent Stabilization Code requires that "each lease and each renewal thereof of the tenant in residence at the time of the expiration of the tax benefit period includes a notice, in at least 12-point type informing such tenant that the housing accommodation shall become deregulated upon the expiration of the last lease or rental agreement entered into during the tax benefit period, and states the approximate date on which such tax benefit period is scheduled to expire."
On August 28, 2007, Governor Spitzer vetoed the adverse possession bill that had been the subject of our recent blog posts.
While the proposed legislation was certainly flawed, this development is viewed as a major setback for property owners throughout the state.
One reader wrote:
We are back to square one. "Good" news for those who adversely occupy property, and "bad" news for the affected owners.
I thought the Governor would sign it into law. Even though it was not a perfect bill, it eliminated a "dishonest state of mind." And since the Governor had been a vigilant Attorney General and prosecuted some Wall Street "bigs" for their dishonesty, I thought we would prevail.
I was wrong.
To download a copy of the Bill Summary, please use this link: S05360
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For our other blog posts on this topic, please use this link: Adverse Possession
Our friends at Scorpion Design have prepared a demo reel showcasing their website video services, and they've selected two of our partners, Daniel Finkelstein and Jonathan H. Newman, to serve as representative spokespersons.
Congrats to Dan and Jon! (Next stop: HOLLYWOOD!)
If you'd like to see the guys in action, here's the video:
When Snapple inked a deal with the City of New York to sell its products to public schools, Matthew J. McGuckin, Jr., got all juiced up.
Apparently, McGuckin held an exclusive right to "market, sell and distribute" Snapple's products to "retail outlets in a specifically designated geographic area of Manhattan."
After he filed suit with the Westchester County Supreme Court, alleging breach of contract, Snapple secured summary judgment dismissing the case. And, the Appellate Division, Second Department, affirmed that outcome on appeal.
The AD2 was of the opinion that McGuckin's contract excluded public schools and municipal entities and thus had to be enforced "according to its plain meaning."
In Bido v. 876-882 Realty, LLC, Carmen Bido slipped and fell down a flight of stairs as she attempted to avoid debris which had accumulated on her building’s stairwell.
In a personal injury lawsuit filed in the Bronx County Supreme Court, Bido characterized the condition as a continual problem. And, despite her numerous complaints to “Rego,” the building’s superintendent, nothing was supposedly done to rectify the situation. (Bido’s daughter, along with another witness, confirmed the stairwell’s “dumpy” condition.)
The landlord sought to have the case dismissed, arguing that it did not have notice of the condition that caused the accident. One of the building’s owners offered testimony that he inspected the stairwell at least once a week, that he did not observe a problem, and, that he knew of no one named “Rego.”
The Bronx County Supreme Court opted to dismiss the case due to the owner’s "lack of actual or constructive notice of the hazard, and [Bido’s] admission that she did not know how long the garbage that caused her detour had been there."
On appeal, the Appellate Division, First Department, trashed the lower court’s determination and reinstated the complaint. The AD1 was of the opinion that Bido’s testimony and that of her witnesses raised “issues of fact as to whether the accumulation of refuse in this stairwell was a dangerous and frequently unremedied recurring condition that caused this injury.”
In a most thoughtful analysis, Mr. Milner shared his concerns about the proposed modifications to the law (which has made it way to Governor Spitzer) and suggests that a more "in depth study" of the governing elements and caselaw is warranted.
We concur.
In fact, we have observed in our prior posts that the proposed tweaks may be fundamentally flawed and may not achieve the result property owners were anticipating.*
Mr. Milner's letter (dated August 24, 2007) follows:
Dear Mr. Ferrara:
I read with interest your brief article [WILL CHANGE TO ADVERSE POSSESSION LAW MAKE A DIFFERENCE?] regarding the efforts to reverse, by legislation, the Court of Appeals Decision in Walling v. Pryzbylo. As one who has frequently litigated this and other similar issues, primarily in the Second Department, I have more than a passing interest in these activities.
One of the cases cited in Walling was a case which I had litigated, namely Harbor Estates Limited Partnership v. May, 294 A.D.2d 399. The Harbor Estates case involved a small group of approximately 15 homes that were built on a site purchased by the developer from the City of New York. The site was part of a much larger parcel consisting of an overgrown, undeveloped and debris-ridden site which had been used as a dump by the community for many, many years. The homeowners who purchased houses in this newly developed community complained to the City concerning the fact that their backyards were invaded by rodents and when they got no response from the City after numerous attempts many if not all of the homeowners built out their rear yards, installed pools, cultivated the newly added land and enclosed the same. This situation existed for almost 15 years with the homeowners apparently believing that the City had long since abandoned the lot. Subsequently a new developer purchased the remaining land from the City and desired to build more than 150 homes. The developer commenced legal action to eject all of the homeowners who had build out on their land from the site. The defenses interposed included claims of adverse possession. The defendant in the cited case was the first test case and he testified as to his belief that the property had been abandoned New York City property. It was this admission that was held, by the Second Department, to constitute an admission barring him from forever claiming adverse possession. When I researched the case, I believe my research reflected that the majority view in this country was the view adopted by the Court of Appeals in Walling, represented by the then prominent 3rd Dept. case, Birkholz v. Wells, 272 A.D.2d 665.
One of the questions I argued in that case was whether or not an admission made subsequent to the running of the statutory period for adverse possession would destroy the requirement of hostility. There was authority that such an admission would not bar a finding of adverse possession. Ahl v. Jackson, 272 A.D.2d 965; City of Tonawanda v. Ellicott Creek Homeowners Association, 86 A.D.2d 118. The court, however, held that the timing of the admission was irrelevant and that the date of the acquisition of knowledge of the prior ownership was the measuring date.
The proposed legislation would probably change the result in the Harbor Estates case, cited above, because my client could not and did not have “actual knowledge” of the prior ownership. He merely assumed that it was an abandoned City lot.
Another interesting Second Department case which I litigated involving issues of prior ownership was Zolotov v. Toussie, 306 A.D.2d 274 where, although the issue was raised by defendant the Second Department virtually ignored the issue. The case dealt with the purchase of a residential ocean front home with a large front lawn, facing the ocean, and abutting a concrete walkway in Manhattan Beach, Brooklyn, which everyone referred to as the “Esplanade”. The property was fenced in and cultivated for a period of more than 40 years. The plaintiff acquired title only a few years before the lawsuit was brought and, by virtue of tacking, alleged to own the entire area of the lawn, right to the paved walkway. In fact, the Esplanade consisted not only of the paved walkway but the adjacent 20 feet of what was the plaintiff’s lawn area. The defendant raised the issue that by reason of a title survey and title insurance the plaintiff and his predecessors in interest had to know that the property was not owned by them. Interestingly the Esplanade, consisting of both the 20 foot concrete walkway and the 20 feet of adjacent lawn which continued similarly, for many blocks in the Manhattan Beach community was privately owned but was not taxed. The Appellate Division affirmed a finding of adverse possession in favor of the plaintiff and held merely that the plaintiff had satisfied all of the requirements. One must assume that they adopted the plaintiff’s position that once the other elements of adverse possession were proven hostility under a claim of right or title was presumed. Once again, however, I do not believe that the result would be affected if the proposed legislation passes. As you note in your article “blind indifference is encouraged by the language of the statute”. Clearly in the Zolotov case my client had no knowledge whatsoever that his enclosed front lawn was owned by anyone else. I believe it would be highly uncommon for a residential purchaser, to review a title report and title documents prior to purchasing a home, leaving that task to his or her attorney.
Finally, in Casini v. Sea Gate Association, 262 A.D.2d 593, the court found that my client, a homeowners association owning title to most of the bed of the streets of the community of Sea Gate was entitled to adverse possession of a piece of land at the intersection of a number of streets which allegedly had been purchased by the plaintiff at an in rem sale; the land being purchased consisting of a series of undeveloped lots plus the bed of a publicly used street in the private community and the traffic island which had been improved and enclosed. The in rem sale was apparently not the first in rem sale of the same property but the holding period in between each in rem sale was more than the statutory minimum. The issue primarily involved adverse possession of a municipally owned property held for a proprietary as opposed to governmental purposes and I was successful on that issue as well as on all other elements of proving the adverse possession claim.
In the Casini case, an argument could have been made, but was not, that the property was known, at least constructively, to be owned by the City of New York because of the prior in rem proceedings as well as the current in rem proceedings of which the Association was purportedly given notice. The case does not obviously fit into the set of facts one normally finds in an adverse possession case but the result was well justified and equitable result since the property literally lay in the bed of an intersection of streets and the plaintiff claimed a desire to construct a residence on the traffic island itself.
One other matter to throw into the breach is the fact that some courts have found that inadvertent possession or possession by mistake may still support a finding of adverse possession. See, e.g., Bradt v. Giavannone, 35 A.D.2d, 322, another 3rd Dept. case. This issue, when it comes up, usually deals with the element of “hostility,” but I believe that it also bears on the knowledge of prior ownership since the element of “hostility” is frequently presumed. In any event it makes for interesting discussion.
Even in the presence of actual knowledge perhaps esoteric title issues such as that involved in the Walling case are deserving of entirely separate treatment since it is often difficult for any homeowner to entirely evaluate his title to certain lands or boundaries which may be in dispute. Rather than the knee jerk reaction to the Walling case which resulted in the proposed legislation which you report has found such wide support would the issue not be better dealt with after sustained analysis of both traditional principles of real estate law and a careful review of the treatment afforded by other states.
The issue is, I believe, deserving of a far greater in depth study than that which appears to have been conducted.
New York's Civil Practice Law and Rules (CPLR) § 208 affords minors and the mentally challenged more time than would normally be given to other litigants to commence a lawsuit. That provision states that "[i]f a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues," that individual (or representative) may file suit up to three years after the disability ceases, or the person dies, whichever first occurs.
In Giannicos v. Bellevue Hospital Medical Center, Peter Giannicos's guardian brought a medical malpractice case against the City of New York, but his efforts were nearly flummoxed from the start. In order for a suit to be maintained, leave of court to file a late notice of claim was required.
The New York County Supreme Court found that Giannicos was entitled to the additional time pursuant to the law’s "insanity toll."
On appeal, the Appellate Division, First Department, agreed and found that Giannicos had been "'unable to protect [his] legal rights because of an over-all inability to function in society' as a result of suffering a stroke," and was thus entitled to the protections of CPLR § 208. (The fact that a legal guardian had been appointed to act on Giannicos’s behalf, did not impact that statutory relief.)
In a brief filed with the United State Supreme Court, on August 17, 2007, Andrew M. Cuomo, Attorney General of the State of New York, has argued that any dysfunction with regard to the selection of New York State Supreme Court Justices is not due to any infirmity with the state's Election Laws, but with the party system itself.
Cuomo notes in his brief, as follows:
If the system has been hijacked by party leaders to serve their own interests rather than the party's, it is up to the party members to reign in those leaders. The solution is not, as the lower courts did here, to invalidate the statutes on their face and replace the Legislature's chosen nomination system with an entirely different one.
Andrew, you gotta be kidding!
The ugly reality, of course, is that rank-and-file party members are powerless to combat the whim of entrenched politicians and the established power structure. And, the current convention-based system has been rendered more of a rubber-stamping "exercise" rather than a truly open, deliberative, and "democratic" selection process.
Direct primary elections are the only way to ensure that the people of our great state are afforded a true voice in the selection of judicial officers. Neither nominating conventions controlled by "party hacks," or, an appointive system controlled by "insiders" who are equally suspectible to "corruptive" influences is an acceptable alternative.
Prior to Joan Messner’s purchase of her penthouse apartment, her predecessor secured permission from the cooperative to enclose the terrace and convert it into a greenhouse.
In Messner v. 112 E. 83rd St. Tenants Corp., Messner believed that she was entitled to damages for the co-op’s failure to repair defects that allowed water to leak into her apartment and greenhouse. To that end, Messner filed a claim for breach of the proprietary lease, breach of the warranty of habitability, and further sought specific performance -- that is, an order requiring the co-op to allow the terrace area to be connected to the building’s central heating system.
After the New York County Supreme Court found the co-op was not liable (since an indemnification agreement required Messner to effect repairs to those areas that had been altered by the prior owner), Messner appealed to the Appellate Division, First Department.
On appeal, the AD1 reiterated that because the co-op was under no duty to make the repairs, it could not be held liable for its refusal to do so.
While Messner alleged that the co-op breached the proprietary lease and the warranty of habitability by failing to heat the greenhouse, since that enclosed area was never a habitable portion of the apartment, the AD1 was of the opinion that the co-op was under no obligation to provide that service.
Furthermore, although Messner claimed that she had received permission from the manager to connect to the building’s heating system, without any written proof, that argument was also given the cold shoulder.
Finally, the appellate court also determined that Messner could not amend her complaint to include a breach of fiduciary duty or fraud claim. In the absence of a fiduciary relationship before the closing, and in view of the co-op’s pre-sale disclosure of a report which questioned the greenhouse’s legality, the AD1 was of the belief that the entity's refusal to obtain a certificate of occupancy for the enclosed area was made in good faith and not subject to judicial scrutiny.
On Friday, August 24, NBC televised the 2007 "Miss Teen USA" pageant.
An embarrassing moment from the program is making the rounds via the Internet and was forwarded to me by one of our readers.
After making it to the Top 5, Ms. South Carolina, Lauren Caitlin Upton, was asked the following "thought provoking" question by one of the pageant's judges:
Recent polls have shown that a fifth of Americans can't locate the U.S. on a world map. Why do you think this is?
Rather than respond with a relatively simple answer, like "People -- young people, in particular -- are spending too much time watching mindless T.V. shows, like the Miss Teen USA pageant." This was her response:
I personally believe that, we as Americans are unable to do so, because ah some people out there, in our nation, don't have maps and I believe that our eduction -- like such as in South Africa, and the Iraq, everywhere, like such as, and -- I believe that they should -- our education over here in the U.S., should help the U.S., or should help South Africa, it should help Iraq, and the Asian countries, so we will be able to build up our future ... for our children.
We guess that Ms. South Carolina was expecting one of those standard "world peace" kind of questions. (Needless to say, she didn't win.)
But is Ms. Upton living proof that ingesting lip gloss and inhaling hair-spray fumes can be hazardous to one's mental health?
This past weekend, I was invited to accompany John and Elizabeth Edwards as they toured the great state of Iowa.
Little did I know how grueling a schedule it was to be, and that I was about to embark on an unparalleled journey.
Here's an overview.
On Friday, August 17th, I departed from Newark, New Jersey, on a 6:00 AM flight to Des Moines. After barely catching my connecting flight in Detroit, I arrived in Iowa around 9:30 that morning, and was greeted at the baggage claim area by David Cooling, an Edwards' staffer.
David drove me to the "John Edwards for President State HQ," in downtown Des Moines, where I was joined by 30 other supporters from throughout the country to hear Rob Tully (former Iowa Democratic Party Chair, and Iowa Campaign Co-Chair), speak about the great strides John is making in that state (and elsewhere in the country) -- despite some media coverage to the contrary.
After a quick lunch with Rob, and Fred Baron, National Finance Chair, we headed off on a 2 hour and 40 minute bus ride to Wapello, Iowa -- where John was scheduled to have a community meeting with the residents.
His presentation was to take place directly in front of the town's courthouse, and while we waited for the locals to assemble, I took a quick tour of the court's facility. (Unlike here in the Big Apple, there were no magnetometers, no security personnel, and no locked doors. Visitors had free reign of the place. Think: Inherit the Wind)
When the event began at 6:00 PM, I was struck by the warmth with which the people of Wapello embraced John. It was invigorating to see their smiles and to share their excitement as these citizens interacted with the man who was likely to be the next President of the United States.
John answered all of the questions posed to him directly and eloquently. And if the repeated ovations and applause were any indication, all present were extremely receptive to his message.
Some 90 minutes later, after John had pressed the fleshed, signed autographs, and spoke to virtually all of the attendees on a one-on-one basis, we boarded the campaign bus for a 1 hour 20 minute ride to Iowa City, Iowa, home to the University of Iowa.
We checked in at the Sheraton Iowa City Hotel, where I barely had time for a quick shower before an 9:30 PM dinner with John and Elizabeth, and Congressman David Bonoir, Campaign Manager.
[Expect to see John's numbers shoot up in the polls as the mainstream media's unhealthy fascination with the current front-runners, Hillary and Obama, begins to wane. Ultimately, the facts and figures bear out that John is the most electable Democrat.]
The most poignant moment of the day came after dinner, when Elizabeth read a few passages from her book, Saving Graces.
Here's just a bit of what she read to us that evening:
But for a moment, I want also to say a little about this man I was so fortunate to marry nearly thirty years ago. As we sat in that [hospital] room, he took my hand in his, and his fingers spun the $11.00 wedding rung on my finger. He watched it turn, and I spoke first.
"It's been a long journey."
"It's not over," he answered, but he didn't, couldn't, look at me at first. His fingers just turned the rung around and around. Then he lifted his face, and his eyes found mine. "Will you marry me again?" he asked. "This summer, on our anniversary, will you marry me again?" We had talked about renewing our vows, but this wasn't that same idle conversation. This was urgent, pleading, and full of love. A real proposal.
"Can you take thirty more years?" I asked, knowing it was somewhere beyond reason to say such a thing.
"More than you know," he said.
Watching John's eyes tear as Elizabeth read from her book was quite moving and a moment I will not soon forget.
And, despite the personal challenges ahead, Elizabeth's energy and spirit are virtually unbridled, and her unwavering commitment to her husband and his campaign to be our country's next President, should serve as an inspiration to us all. She is truly an amazing individual.*
Around 11:00 PM, it was time for bed.
The schedule for Saturday called for an early morning departure to the Port of Dubuque, where John was to meet with countless hundreds of additional voters at a local amphitheater.
We were slated to be on the road for some 15 hours, yet, I could barely wait for what was in store.
(To be continued ....)
*Elizabeth is scheduled to be in the New York City area on Thursday, September 20, 2007. If you would like to meet her, and get an autographed copy of her book, please drop me a note at: lferrara@fnfllp.com
Roy signed a contract with Distance Learning, agreeing to make payments for study materials as they arrived in conjunction with her college classes. She later refused to pay for the tutoring and study materials because she was dissatisfied with the products.
The District Court of Suffolk County granted Distance Learning’s motion for summary judgment. The DC found that Roy failed to honor the terms of a valid contract and awarded Distance Learning $2,574.46 in damages.
On appeal, the Appellate Term, 9th and 10th Judicial Districts, held that Distance Learning was not entitled to recap the full contract price.
Under New York Personal Property Law § 412(a), in the event of a cancellation of a contract with a correspondence school, the institution's recovery may consist of no more than five percent of the cash price (but not to exceed fifty dollars) and a pro rata portion of the total price, representing the proportion of services used or completed.
Because Roy "only received and used study materials corresponding to one college course before indicating her wish to cancel the agreement," the award was reversed and remanded for recalculation.
Yesterday, I got some spam from a respected New York publicist (who was hawking a book to lawyers on marketing their professional practices).
His e-mail offered the following unsolicited advice:
Now that faxes are less used, recipients tend to notice them more. That's good for those of us who are marketing our businesses. Fax messages have gone full circle - from being a good tool, to a bad one, to a good one again. Try sending a fax message to prospects and clients once or twice a year as part of your marketing mix.
Believe it or not, following that guy's suggestion will expose his readers to hefty fines and penalties.
A federal law -- the Junk Fax Protection Act* -- prohibits the unsolicited transmission of faxes to another's facsimile machine and subjects a miscreant to minimum fine of $500 and, when "willful or knowing," damages may be trebled at the court's discretion.
[When the transmission is "volitional," it is "willful," while a "knowing" violation occurs when the sender knew "or should have known" that the transmission was violative of the law.]
Believe it or not, even if the unsolicited fax were sent inadvertently or accidentally, a minimum liability of $500 applies. (A party may recover its "actual monetary loss ... [or] $500 in damages for each such violation, which is greater ....")
A sender may evade this fine by establishing that the transmission was encompassed by an "existing business relationship" or "EBR." This exception requires that a sender:
have a a preexisting EBR with the recipient;
received the fax number voluntarily from the recipient;
include opt-out information on the fax's first page; and
honor all opt-out requests within a reasonable period of time (not to exceed thirty days).
By way of example, in Bromberg Law Office, P.C. v. Itkowitz & Harwood, Itkowitz & Harwood (I&H) got zonked by the New York County Civil Court with a money judgment for $500 even though an employee had "mistakenly" used an I&H fax sheet when transmitting a solicitation about "law suites" to the plaintiff's law office.
Luckily, in the absence of "scienter" -- deliberate misconduct -- the Civil Court refused to apply the law's treble-damage penalty in that particular instance.
Better watch your back, Mr. P.R. man ... a whole bunch of lawyers may come gunning for you!**
United Pickle Products held a lease to property located at 4370 Park Avenue in the Bronx, for use as a factory. To its north was a 25-foot square parcel, improved by a building, which was accessible only through United Pickle Product’s factory.
Although owned by the Prayer Temple Community Church since 1976, United Pickle Products had exclusively used and occupied the building for storage since 1979.
When United Pickle Products brought an action to quiet title, the Bronx County Supreme Court denied the parties’ motions for summary judgment but, on appeal, the Appellate Division, First Department, ruled in United Pickle’s favor.
As we have previously observed, to prevail on an adverse possession claim, a party must show its possession throughout the 10-year statutory period was:
hostile and under claim of right;
actual;
open and notorious;
exclusive; and
continuous.
Noting that the small parcel had been improved by a structure, was walled off, and accessible only by way of United Pickle Product’s space, the AD1 concluded that all the governing adverse possession elements had been fulfilled.
Its concession that it had never granted United Pickle Products permission to use the building didn’t help Prayer Temple’s case. (Although its Bishop claimed that the building’s prior occupant, a milk distributor, had given United Pickle Products permission to use the property, the AD1 held that such "permission" would not have vitiated the hostility of United Pickle Product’s possession since the milk distributor was not the property’s owner.)
It's been reported by most of the major media outlets, but just in case you missed it, some lawyers at top firms are now charging their clients a hefty $1000 an hour for their services.
Do I hear a ka-ching?
Here's the version of the report that appeared in today's Wall Street Journal:
Lawyers Gear Up Grand New Fees
Hourly Rates Increasingly Hit $1,000, Breaching a Level Once Seen as Taboo
By NATHAN KOPPEL August 22, 2007; Page B1
The hourly rates of the country's top lawyers are increasingly coming with something new -- a comma.
A few attorneys crossed into $1,000-per-hour billing before this year, but recent moves to the four-figure mark in New York, which sets trends for legal markets around the country, are seen as a significant turning point.
On Sept. 1, New York's Simpson Thacher & Bartlett LLP will raise its top rate to more than $1,000 from $950. Firm partner Barry Ostrager, a litigator, says he will be one of the firm's thousand-dollar billers, along with private-equity specialist Richard Beattie and antitrust lawyer Kevin Arquit. The top biller at New York's Cadwalader, Wickersham & Taft LLP hit $1,000 per hour earlier this year. At Fried, Frank, Harris, Shriver & Jacobson LLP, also of New York, bankruptcy attorney Brad Scheler, now at $995 per hour, will likely soon charge $1,000.
At large firms, billable rates have climbed steadily over the years, since 2000 rising an average of 6% to 7% annually, according to the law-firm group of Citi Private Bank, a unit of Citigroup Inc. But for some time, the highest-billing partners at top big-city firms have hovered in the mid-to-high $900 range, hesitant to cross the four-figure threshold. "We have viewed $1,000 an hour as a possible vomit point for clients," says a partner at a New York firm. "Frankly, it's a little hard to think about anyone who doesn't save lives being worth this much money," says David Boies, one of the nation's best-known trial lawyers, at the Armonk, N.Y., office of Boies, Schiller & Flexner LLP.
A select group of attorneys began billing at that rate before this year, such as Stephen Susman, a founding partner of a Houston firm who has tried big-ticket cases around the country, and Benjamin Civiletti, a former U.S. Attorney General under President Carter and a senior partner at Washington, D.C-based Venable LLP. And in London, top attorneys bill at rates that, when converted, can hit almost $1,500 an hour.
As a critical mass develops around fees of $1,000 an hour in New York, though, more firms may feel comfortable going to that level and beyond. "One-thousand dollars per hour has symbolic significance," says Robert Rosenberg, a Latham & Watkins LLP partner who bills $925 an hour. "But like the year 2000, it's just a number."
Yet, many attorneys are still reluctant to charge $1,000 an hour. "There is a perception issue between $1,050 and $950," says Hugh Ray, a partner at Andrews Kurth LLP in Houston. "At some point, you look bad if you go too high." Mr. Boies says psychology in part has held him back from charging more than $880 per hour, noting, "When I started practicing law in 1966, my billing rate was considerably under $100."
Law firms also derive comfort from running with the pack. "We prefer not to be market leaders when it comes to rates," says J. Gregory Milmoe, a bankruptcy attorney at Skadden, Arps, Slate, Meagher & Flom LLP in New York. Mr. Milmoe says in September his hourly rate will climb to $950.
Firms' hesitation to breach the $1,000 mark shows that legal services aren't unlike other high-end products that sell at "just under" prices, like the $19,900 car, says Eric Anderson, a marketing professor at Northwestern University's Kellogg School of Management. "The sellers are worried that they will be perceived as extremely expensive."
Some clients' reactions bear that out. Brackett Denniston III, the general counsel of General Electric Co., says the company has paid $1,000 per hour for "specialized" legal advice. Still, "that's a line we'd rather not see crossed," Mr. Denniston says. "A thousand dollars per hour is emblematic of the high cost of major law firms," he says. "More than rates, my greater concern is the overall inflation level" in legal costs.
Thomas Sager, assistant general counsel of DuPont Co., says he recently balked when a New York lawyer cited $1,000 as his hourly rate. Instead, Mr. Sager says, he agreed to pay the attorney a flat monthly fee. "One-thousand dollars may be someone's choke point, but mine is actually a lot lower," he says.
Still, some lawyers are confident they're worth $1,000 per hour, and that now's the time to break the barrier. "I haven't personally experienced resistance to my billing rates," Mr. Ostrager says. "The legal marketplace is very sophisticated."
Law firms say the boosts aren't just about lining partners' pockets. They're partly a response to booming costs, which in recent years have included skyrocketing associate salaries -- first-year lawyers in many firms make $160,000 a year -- and expenses associated with geographic expansion.
While it's hard to raise prices on standard legal work, for matters such as bet-the-company deals, intricate patent disputes, huge bankruptcies or complex antitrust litigation, firms often feel they can raise fees for name-brand partners without upsetting clients.
Indeed, clients are often most cost-conscious about junior attorneys, believing they provide less value-per-dollar than senior counsel. Considering a major-league baseball player can make the equivalent of $15,000 per hour, "$1,000 for very seasoned lawyers who can solve complex problems doesn't seem to be inappropriate," says Mike Dillon, the general counsel of Sun Microsystems Inc.
Hourly rates, of course, tell just part of the fee story. Firms occasionally discount their stated rates for top clients. And companies sometimes prefer to pay their lawyers a flat fee for each case or deal, believing it encourages more efficiency than billing by the hour.
Plaintiffs trial lawyers often bill on a contingency-fee basis, earning a share of a settlement or verdict -- an amount that can dwarf top rates. "It represents an opportunity cost when I am working by the hour," says Mr. Susman, who last year raised his hourly fee to $1,100. He did it in part, he says, "to discourage anyone hiring me on that basis."
In Speirs v. Dexter Shoe Co., Jean Speirs filed a personal injury lawsuit to recover damages she sustained when she slipped and fell while bowling at Herrill Lanes, in New Hyde Park, New York.
Speirs, a recreational bowler with over 40-years of experience, was wearing bowling shoes manufactured by Dexter Shoe Company. Since she believed the shoes were defective and contributed to the accident, Speirs also asserted a products liability claim.
Finding that Speirs had owned the shoes for nearly two-years and, by her own admission, had worn the shoes approximately 64 times, the Nassau County Supreme Court awarded Dexter Shoe Company summary judgment in its favor and dismissed the products liability claim.
On appeal, the Appellate Division, Second Department, was equally unsympathetic to that theory of recovery, and held that the “evidence submitted by Dexter made out a prima facie case demonstrating that, as a matter of law, the bowling shoe was not defective.”
It seems that Speirs hit the gutter with that one.
Can a corporation which has failed to update its address with New York’s Secretary of State (“SOS”) still demonstrate an excusable default when it fails to respond to a court deadline?
By law, a corporation may be served with legal process by way of the SOS, who will then forward those documents to the last registered address for the intended recipient.
When designated agents change or relocate, and/or when these entities move, corporations are required to file a "certificate of change" with the SOS, otherwise papers will continue to be directed to that entity’s last recorded address, important court deadlines might be missed, and, a judgment on default could ensue.
By way of example, in Cantarelli S.P.A. v. L. Della Cella Co., Inc., L. Della Cella Co., Inc. (LDCCI) failed to advise the SOS of its move. Upon receiving a copy of the summons and complaint after its time to answer had expired, LDCCI reached an agreement with Cantarelli, that the plaintiff would take no further action against the defendant while settlement discussions were underway.
Unable to resolve the dispute, Cantarelli sought to enter judgment, but the New York County Supreme Court granted LDCCI’S motion to vacate its default.
On appeal, the Appellate Division, First Department, was of the opinion that, since there were meritorious defenses to the action, LDCCI should not be penalized for its lapses.
Clearly, this case demonstrates that a corporation’s failure to give an SOS update, won’t necessarily turn into a Song of Sorrow.
After giving Griffen Gillette a $10,000 down payment toward the purchase of a piece of real property, Jeremy Meyers stopped payment on the check and faxed a letter to Gillette’s broker withdrawing the offer.
When Gillette later filed suit to recover damages for contract breach, the Otsego County Supreme Court granted Gillette’s motion for summary judgment.
On appeal, the Appellate Division, Third Department, noted that a purchaser who defaults on a real estate contract, without providing a “lawful excuse,” may not recover a down payment.
And, according to the AD3, the letter sent by Meyers lacked a satisfactory explanation for the rescission.
Although Meyers alleged that the deal was contingent upon the property's physical inspection, that term did not appear in the parties’ contract. Therefore, stopping payment on that basis amounted to a wrongful refusal to perform a contractual obligation.
Meyers’s insistence that an attorney-approval clause operated in his favor, was also not embraced by the AD3. That provision required Meyers’s attorney to notify Gillette’s broker of any disapproval in writing within seven days of the deal’s acceptance. Since that notice never issued, Meyers’s reliance upon that provision was also bounced right out of court.
An inelastic outcome, wouldn't you agree?
For a copy of the Appellate Division's decision, please use this link: Gillette v. Meyers
In Breezy Point Cooperative v. Young, the Appellate Term, Second and Eleventh Judicial Districts, affirmed a summary judgment ruling, which allowed a cooperative board to end a shareholder's lease due to objectionable conduct.
Young’s proprietary lease with Breezy Point Cooperative permitted termination for "objectionable conduct," which was defined as the repeated disregard of the co-op's rules and regulations.
In early 2004, 225 stockholders signed a petition calling for a vote at the annual stockholders’ meeting on whether to terminate Young’s lease. After he and other shareholders addressed the annual meeting's attendees, the group voted overwhelmingly in favor of termination. (1,259 to 121)
In October 2004, Breezy served Young with the requisite notice and subsequently initiated a holdover proceeding against him in Queens County Civil Court.
Breezy alleged that, from 1986 to 2004, Young engaged in some 94 instances of objectionable conduct, which included "the repeated harassment of security officers, the defacement of cooperative property, [and] numerous violations of noise, litter, animal and motor vehicle regulations." The co-op also alleged that Young had filed a number of meritless lawsuits, which caused the cooperative to incur hundreds of thousands of dollars in legal fees.
When the Civil Court granted Breezy’s motion for summary judgment on its holdover petition, Young appealed to the Appellate Term, Second and Eleventh Judicial Districts, which affirmed. The "business judgment rule" requires courts to "exercise restraint and defer to good faith decisions made by boards of directors in business settings." Absent a showing of fraud, self-dealing, or other misconduct, courts will usually refrain from overriding a board’s decision, even if the latter may be unwise or improvident.
Because Young was unable to offer any evidence that the board engaged in any wrongdoing, and since the termination process transpired in accordance with the cooperative’s bylaws and the parties' lease, the AT2 deferred to the entity’s determination to terminate Young’s interests in the subject premises.
Friends:
In the case of 
Just because someone is found to have breached an agreement with you doesn't mean you'll recover anything. 
Yes, folks, the adverse possession saga continues.
When 
We received a letter from 
New York's Civil Practice Law and Rules (CPLR) § 208 affords minors and the mentally challenged more time than would normally be given to other litigants to commence a lawsuit. That provision states that "[i]f a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues," that individual (or representative) may file suit up to three years after the disability ceases, or the person dies, whichever first occurs.
We've been tracking the status of 
Prior to Joan Messner’s purchase of her penthouse apartment, her predecessor secured permission from the cooperative to enclose the terrace and convert it into a greenhouse.
On Friday, August 24, NBC televised the 2007 "
This past weekend, I was invited to accompany John and Elizabeth Edwards as they toured the great state of Iowa.
We checked in at the Sheraton Iowa City Hotel, where I barely had time for a quick shower before an 9:30 PM dinner with John and Elizabeth, and 
That’s exactly what Elsie Roy did in 
Yesterday, I got some spam from a respected New York publicist (who was hawking a book to lawyers on marketing their professional practices). 
In 
It's been reported by most of the major media outlets, but just in case you missed it, some lawyers at top firms are now charging their clients a hefty $1000 an hour for their services.
In 
After giving Griffen Gillette a $10,000 down payment toward the purchase of a piece of real property, Jeremy Meyers stopped payment on the check and faxed a letter to Gillette’s broker withdrawing the offer.
In 