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.
For those of you who are "Lopez-Torres" junkies, we've got some good news: More briefs were filed with the United States Supreme Court.
As many of you may be aware, the judicial convention system -- the method by which New York State Supreme Court Justices have been selected for nomination and election since 1921 -- was found to violate the United States Constitution and is currently under scrutiny by our nation's highest court.
Last week, two Reply Briefs were submitted in the case, and we're pleased to provide our readers with copies of those documents.
Cincu had worked as a doorman and concierge in a residential co-op building for almost two decades. During his final year of service, a resident entrusted Cincu with an envelope containing a holiday card and cash intended for a housekeeper. An investigation ensued when the envelope mysteriously vanished and Cincu was discharged when a surveillance tape showed him opening the envelope.
The Unemployment Insurance Appeal Board (Board) was not sympathetic to Cincu's request for unemployment benefits and denied his claim because he had been fired for "misconduct."
On appeal, the Appellate Division, Third Department, was equally unmoved, as there had been substantial evidence supporting the Board’s decision and “an employee’s apparent dishonesty can constitute disqualifying misconduct.”
In the end, temptation delivered Cincu from a job and unemployment benefits.
During a hay ride on a school field trip to the Green Meadows Farm in Floral Park, Queens, kindergarten student Elizabeth David was injured when a bump on the trail propelled her from her seat to the wagon’s floor.
When the Queens County Supreme Court denied the school's request that the case be dismissed, Saint Raymond’s appealed to the Appellate Division, Second Department, which reversed.
According to the AD2, while schools are under a duty to adequately supervise students in their charge -- and will be held liable for “foreseeable” injuries resulting from negligent failure to provide adequate supervision -- they are not “insurers” of their students' safety.
David was unable to substantiate her claim that Saint Raymond's had failed to provide the requisite level of supervision, as there was one supervisor sitting next to the child and another riding directly across from her when the accident occurred.
Furthermore, by establishing that all prior field trips to that destination had not resulted in any similar injuries, Saint Raymond’s defeated David’s assertion that the school had knowledge or notice that the hay ride would be hazardous.
After Jacqueline Biggio mortgaged the martial home and spent some of those monies on “frivolous” purchases her husband, Lawrence, sought to have her held in contempt of court.
In Biggio v. Biggio, the Nassau County Supreme Court granted Lawrence’s motion since Jacqueline willfully disregarded an order which had limited expenditures to those incurred in the "ordinary course of business or day to day living expenses."
On appeal, the Appellate Division, Second Department, affirmed in view of Jacqueline’s admission that she had knowingly made the prohibited purchases; misconduct which ended up costing her some $5,000 in fees, payable to Lawrence’s attorneys.
Now that’s some spending spree!
For a copy of the Appellate Division's decision, please use this link: Biggio v. Biggio
WHEN LEASE IS SILENT, LANDLORD HAS "REASONABLE TIME"
In Locke v. Nathanson, the Appellate Term, 9th and 10th Judicial Districts, recently examined how much time a landlord has to make repairs when no specific timeframe is delineated in the parties’ lease.
On April 9, 2005, Alan Locke (as tenant) and Arthur Nathanson (as landlord) executed a one-year lease of an apartment, which was to commence on June 1, 2005. Locke made a $2,600 security deposit, which Nathanson could use “to pay amounts owed by tenant, including damages.”
Under that lease, Nathanson was required to “spackle and tape the living room patch, paint the living room ceiling, and put a deadlock on the kitchen door.”
On June 3, 2005, Locke canceled the lease and demanded the return of his security deposit because the promised repairs had not been completed. On July 8, 2005, he commenced a small claims action in the Justice Court of the Town of Minisink, Orange County, seeking the return of his security deposit.
Crediting Locke’s testimony that the parties had orally agreed the repairs would be finished prior to the lease’s commencement date, the Justice Court ruled in the tenant’s favor.
Nathanson appealed to the AT2 which overturned the award. The appellate court noted that the lease’s "merger" clause -- a provision which disclaims the existence of any representations other than those contained in the lease -- precluded the introduction of any evidence “offered to contradict, vary, add to, or subtract from the terms of the writing.” And, since no deadline for the promised repair work was included in the written lease, the court disregarded Locke’s testimony as to the alleged oral agreement.
The court then held that “[n]o time of performance having been fixed in the contract, a reasonable time for performance is implied.” Thus, Locke “was not within his rights in cancelling the lease on June 3, 2005.”
The court ordered a new trial to determine the extent of damages Nathanson sustained due to the lease’s improper cancellation. Should the damages be less than the security deposit, the balance will be returned to Locke.
Looks like Nathanson had a Locke on this one.
For a copy of the Appellate Term's decision, please use this link: Locke v. Nathanson
In addition to not getting enough exercise, most consumers are clearly oblivious to what they're eating.
For example, did you know that a Chili's smoked turkey sandwich (930 calories) has more calories than a sirloin steak (540 calories)? (We didn't.)
And, just in case you were wondering, there's a difference of nearly 1,000 calories between a Burger King cheeseburger (330 calories) and a Triple Whopper with cheese (1230 calories).
In an attempt to stem the obesity tide, New York City has taken the lead in requiring fast-food establishments to list calorie information on their menus. New York City Health Code Regulation 81.50 will require restaurants to "post on menu boards and menus the calorie content (in kcal) ... for each menu item."
Of course, that move has encountered considerable resistance from the New York State Restaurant Association -- a trade group comprised of some 7,000 members, nearly a 1000 of which are located in the New York City area -- which has filed a federal lawsuit in the Southern District of New York in an effort to quash the new law.
Believe it or not, the Association is claiming that the City's regulation is violative of both the Supremacy Clause and the First Amendment of the United States Constitution.
Yes, you read that right.
The Association is claiming (among other things) that the City is infringing upon the "right to freedom of speech guaranteed by the First Amendment." (Puh-leese!)
Since regular and unmonitored intake of high-caloric foods will inevitably lead to excess body weight, why expose consumers to the risk of diabetes, coronary heart disease, high blood cholesterol, stroke, hypertension, gallbladder disease, osteoarthritis, sleep apnea (and other breathing problems), and some forms of cancer (uterine, breast, colorectal, kidney, and gallbladder)?
In addition to a marked increase in mortality rates associated with obesity, the economic costs (ascribed to health care and the like) are a staggering $117 billion.
Why not empower consumers with knowledge and allow them to make informed choices?
As these amici have correctly observed in their joint memorandum filed in mid-July, Congress has not preempted any state nutrition labeling requirements for restaurants, and, courts have typically applied a different standard to "commercial speech," in order to encourage the free flow of information, particularly when it comes to warning and nutrition data.
On a cold evening in February 2000, Dominic DeStefano slipped and fell on a patch of ice on a sidewalk along 27th Avenue in Brooklyn, and later brought an action against the City of New York for personal injuries sustained in the fall.
After the City demonstrated that a storm was still in progress when the accident occurred, the Kings County Supreme Court dismissed the complaint.
On appeal, the Appellate Division, Second Department, noted that the City’s responsibility for correcting icy conditions is not triggered until a storm has completely subsided. In fact, according to the AD2, even a “lull" in the weather did not give rise to a duty on the part of the City to remove any accumulations.
While DeStefano claimed he slipped on pre-existing snow and ice rather than on a fresh accumulation, the AD2 rejected that argument as “pure speculation.”
Finally, the AD2 held that because the City did not have actual or constructive notice of the purported icy patch on the sidewalk, dismissal of the complaint was proper.
We challenge you to find something slippery about this analysis.
On the night of March 8, 2005, Police Officer Anthony Vicaretti found a white Ford truck parked awkwardly behind the Village Hall in Goshen, New York. He approached and found defendant Tyler Keesler asleep behind the wheel.
The officer observed Keesler was nervous, his eyes were droopy and red, his speech was slurred, and that he was fumbling with a “spotting scope” positioned between his legs.
While Vicaretti testified that he did not fear for his safety, he was “nervous” about the situation, and asked Keesler to step out of the vehicle for a pat down and a field sobriety test, which proved inconclusive. He then instructed Keesler to sit on the hood of the police car and asked Kessler to sign a consent form permitting a search of the vehicle’s interior.
After the form was executed, Vicaretti uncovered cocaine and the Justice Court of the Village of Goshen, Orange County, eventually convicted Keesler of criminal possession of a controlled substance in the seventh degree.
Keesler appealed to the Appellate Term, Second Department, which overturned the conviction. The AT2 was of the opinion that the defendant did not “voluntarily consent” to a search, but submitted to “lawful authority.” According to that appellate court, Keesler was treated as if he had been in custody, was not advised he could withhold consent, and, under the circumstances, had yielded to "overbearing official pressure."
In the absence of voluntary consent, a search would have been justified if the officer was in danger and thought it likely the search would produce a weapon. In this case, since the officer testified to the contrary, the drugs retrieved from the truck could not be used as evidence against Keesler.
Do we have your consent to conclude this analysis?
For a copy of the Appellate Term's decision, please use this link: People v. Keesler
DOMESTIC VIOLENCE VICTIMS MAY END RESIDENTIAL LEASES
With few exceptions, residential tenants wishing to leave their apartments prior to the stated expiration of their lease terms, often do so at their own risk and are subject to continuing liability for the rent (as it becomes due), even if the premises are left vacant or unoccupied.
A recently enacted New York State law authorizes tenants who have secured orders of protection to be relieved of liability under their residential leases upon establishing to a court's satisfaction that:
there exists substantial risk of physical or emotion harm to the tenant (or the tenant's child) if relocation is not permitted;
relocation will reduce that risk;
the tenant has attempted to secure the landlord's consent to the lease's termination and that request was denied; and
the tenant is acting in good faith.
If granted, a tenant will only be liable for those lease-related obligations which accrue through and including the court-ordered termination date (which can run anywhere from 30 to 150 days from the "due date of the next rental payment subsequent to the date such order is served" on the landlord).
Daniel E. Clement, a New York divorce and family law attorney, recently observed that, "The landlord's inconvenience and expense of re-letting an apartment, pales in comparison to the need to provide a safe home to a battered person."
We thank Daniel for flagging this new statute to us.
To download a copy of the law, please use this link: A03386
In Coppa v. LaSpina, the Appellate Division, Second Department, addressed whether due process rights are waivable and whether an occupant can be evicted by way of "self help."
In January 1999, Claudia Coppa, a 62-year-old homeless woman suffering from depression, was accepted into a housing program managed by Transitional Services of New York for Long Island, Inc. (TSLI), a not-for-profit corporation run by defendant Bruno LaSpina.
TSLI provides housing for adults suffering from mental illness, and is partially financed through federal grants under the Supportive Housing Program (SHP). Federal law requires grant-recipients to provide program participants with certain due process rights before excluding them from housing.
When she entered SHP, Coppa signed a “housing agreement” with TSLI, wherein she promised: (i) to pay “program fees;” (ii) to allow TSLI staff into the house; (iii) to obey house rules; and (iv) agreed to restrictions on whom she could invite into the home. In addition, because of her “litigious and uncooperative” history, Coppa was asked to “knowingly and willingly waive all statutory and/or regulatory relief or defenses regarding eviction and/or discharge from [the] program.”
In January 2000, LaSpina decided that Coppa was “creating a dangerous condition” in the house. After she failed to respond to warnings, LaSpina had the locks on the house changed while Coppa was away.
Coppa then sued LaSpina in Suffolk County Supreme Court, seeking: (i) a declaration that “any waiver by [her] of due process rights” was void; (ii) a permanent injunction granting her access to the house; and (iii) money damages for illegal eviction. The Supreme Court ultimately granted LaSpina’s summary judgment motion and dismissed Coppa’s claims in their entirety. The Appellate Division, Second Department, affirmed.
The AD2 examined the SHP statute and concluded that the due process rights conferred by that law were waivable and that Coppa legitimately relinquished them. (The housing agreement was not unconscionable, Coppa was capable of entering into such an agreement, and that she had not been forced to sign same.)*
Finally, the Court determined that Coppa was not wrongfully evicted, and thus not entitled to money damages, because she was nothing but a mere "licensee," rather than a tenant.**
Is this case a license to use self help?
Exercise extreme caution riding that "wave."
For a copy of the Appellate Division's decision, please use this link: Coppa v. LaSpina
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*But wasn't there an issue with regard to Coppa's mental capacity? (How was a true, knowing waiver effected in this instance?)
**If Coppa was not a "tenant," then why was a licensee proceeding not required?
If you didn't cause the accident and don't "own, lease, occupy or control" that part of the property on which an accident has occurred, it's likely that you will not be responsible for any damages an injured individual has suffered.
By way of example. in Richardson v. Lenox Terrace Development Associates, Lenox Terrace Pharmacy, Inc., d/b/a Lenox Terrace Drugs (Lenox Drugs), a tenant in a building owned by Lenox Terrace Development Associates, was not getting any heat, so Willie Richardson, a ConEd employee, was sent to the building to investigate the problem.
John Gorham, a drug store employee, escorted Richardson to the building's roof and, while accessing the attic area, Richardson reportedly fell through a hatchway (or down a flight of folding steps) to the floor below.
When Richardson later filed suit, Lenox Drugs sought dismissal of the case on the grounds that it owed no duty to the ConEd employee. While the New York County Supreme Court denied that request, the Appellate Division, First Department, reversed on appeal.
Since Lenox Drugs did not "own, lease, occupy or control" the area in question, it was not liable for Richardson's injury even though he had been accompanied by the tenant's employee. As the AD1 noted, absent special circumstances which did not exist in this case, Richardson did not have a claim against the drug store:
A defendant can be held liable for breach of an "assumed duty" only where the plaintiff "show[s] reliance on the defendant's course of conduct, such that the defendant's conduct placed him or her in a more vulnerable position than he or she would otherwise have been in had the defendant done nothing" ... In this case, Gorham's agreement to accompany Richardson to the areas to which he needed access to perform his job did not expose Richardson to any new risk or enhance any existing risk, since Richardson would have entered the premises even if Gorham had not accompanied him. Further, Richardson, who carried his own flashlight and was fully aware of the alleged placement of the board over the hatchway, does not allege that he relied for his personal safety on anything Gorham did or said.
We're not sure we agree with this decision.
Isn't a "follower" more likely to rely on an escort (who is purportedly familiar with the premises) to point out any areas that may pose a danger or present a likelihood of injury?
New York Mayor Michael R. Bloomberg has been fighting for the implementation of a "congestion pricing" plan, which would allow the City to charge drivers a "user fee" to traverse certain areas of Manhattan during peak traffic hours (weekdays, 6 AM to 6 PM).
In a Fact Sheet distributed by the City, the Mayor is proposing that drivers be assessed $8 to enter Manhattan (south of 86th street), while "large trucks" would be charged $21. (Those remaining within the "zone" would be charged $4.00 and $5.50, respectively.) Drivers using the FDR and West Side Highway would be "exempt," as would "taxis, livery cabs, buses, and emergency and handicap-licensed vehicles."
Yesterday, State Senator Liz Krueger, an avid supporter of the proposal, circulated an e-mail providing an update as to the plan's status. Here's the text of that message:
Last month, the legislature finally took action on legislation addressing Mayor Bloomberg’s congestion pricing proposals. While I had a number of concerns regarding implementation of the Mayor’s original proposal, I believe that passage of a congestion pricing bill is very good news for the City of New York, and that the final legislation (S.6432) we acted on provides the opportunity for those concerns and questions to be addressed. The commission we have created will consider all proposals to mitigate traffic, including the feasibility of the Mayor’s pricing proposal.
The commission must submit their recommendations on or before January 31st, and the State Legislature must vote on or before March 31st.
My district encompasses much of the proposed pricing zone, and the need to cut the number of vehicles on the streets is clear. Congestion is much more than just an annoyance for drivers—it has far-reaching negative consequences to New Yorkers' health and quality of life.
In my district, for a significant part of the day, senior citizens, the mobility-impaired, and families with young children do not feel safe crossing the street because of gridlock with traffic "blocking the box" at every corner. In addition, ambulances, fire trucks and other emergency vehicles have great difficulty getting to those who need their immediate help.
A plan to mitigate congestion in the City's core has the potential to fundamentally change the transportation practices of the entire region. The commission we have created will ensure that the plan ultimately implemented is comprehensive and allows for maximum results. And a very important part of this plan is allowing the proposal to be first approved by the City Council, the local legislative body, meaning that those who are actually affected by our transportation infrastructure have a direct oversight role.
However, the devil is in the details, and there are a number of pieces left to work out. In the coming months, I expect answers related to:
1.) Implementing a long-term strategy that increases access to, and the reliability of, regional mass transit options, including Bus Rapid Transit (BRT), the 2nd Avenue Subway, and expansion of alternatives to private-vehicles into and out of the City;
2.) Resolving serious concerns about the potential traffic and parking impacts on communities in and around the designated zone;
3.) Ensuring that concerns related to the use of cameras as a means to enforce a congestion zone are sufficiently addressed, and civil liberties protected; and
4.) Re-evaluating the City's flawed parking permit system for government workers and reducing the number of unnecessary vehicles through the confiscation of non-justifiable and fake permits.
I look forward to working with the commission, as well as the Mayor and my colleagues in the State Legislature and City Council to develop a reasonable and achievable plan for addressing the issue of congestion in New York City’s core.
SINCE WHEN DO INJUNCTIONS SURVIVE A CASE'S DISMISSAL?
Over the last few weeks, we've received a number of calls from lawyers asking for our take on Victory Taxi Garage, Inc. v. Butaro, a Kings County Supreme Court case wherein a judge was asked to grant "Yellowstone"-type relief to a taxi garage whose lease was under threat of termination.*
Apparently, the building's structural integrity had been compromised by a fire and this particular lease allowed the owner to terminate the tenancy (without any predicate notice to cure) if the premises were totally damaged or rendered wholly unusable.**
Of course, when it received a termination notice, the tenant filed suit seeking an injunction stopping its tenancy from coming to an end. The tenant claimed that the incident had only impacted about 800 out of 4000 square feet of its space and that it wished to exercise its right to repair the damage (rather than have its lease ended).***
While the Supreme Court's decision is difficult to follow, the judge ultimately fashioned a very "unusual" remedy (a bit too unusual, if you ask us). He granted a preliminary injunction stopping the tenancy from being terminated but, at the same time, dismissed the case while the parties battled out their respective positions in landlord-tenant court.
Here's the decision's exact wording:
Accordingly, the plaintiff's motion for a preliminary injunction pending the determination in this Court of plaintiff's action for a declaratory judgment is granted to the extent that the temporary restraining order contained in the order to show cause is continued pending a determination of the matter in Civil Court and the motion is otherwise denied and the complaint is dismissed in anticipation of the conduct of a dispositive summary proceeding in Civil Court.
See a problem with that?
If not, let's just say, that published appellate cases harking back to the 1800's guide that the an injunction is lost, and of no force and effect, when a case is dismissed.****
So, when the judge ended the taxi garage's case, any stays were lifted and the tenancy was allowed to prematurely lapse.
"Can a judge do that?" asked friend and commentator, Dov Treiman.
I smiled and said, "A judge can do whatever she or he damn pleases ... But if that wasn't the outcome intended, then someone needs to get right back to judges' school!"
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*These injunctions are named after the seminal New York State Court of Appeals case -- First Nat. Stores v. Yellowstone Shopping Ctr. (21 NY2d 630) -- which inspired their creation. In that particular commercial lease dispute, the state's highest court concluded that once a tenancy was terminated, there was nothing that could be done to revive the arrangement. It was in that case that the court suggested that the tenant could have avoided a forfeiture of its lease had it secured an injunction from a court "stopping time" -- tolling the running of the time frame delineated in a landlord's notice. (For more on these special injunctions, please use this link: Yellowstones)
**Paragraph 9(a) of the tenant's lease provided, as follows: "If the demised premises or any part thereof shall be damaged by fire or other casualty tenant shall give immediate notice to Landlord and this lease shall continue in full force and effect except as hereinafter set forth; (b) If the demised premises are partially damaged or rendered partially unuseable by fire ... the damages thereof shall be repaired by and at the expense of Landlord and the rent until such repair shall be substantially completed shall be apportioned from the day following the casualty according to the part of the premises which is usable. (c) If the demised premises are totally damaged or rendered wholly unuseable by fire or other casualty then the rent shall be proportionately paid up to the time of the casualty and thenceforth shall cease until the date when the premises shall have been repaired and restored by Landlord subject to Landlord's right to elect not to restore the same as hereinafter provided; (d) If the demised premises are rendered wholly unuseable or (whether or not the demised premises are damaged in whole or in part) if the building shall be so damaged that the landlord shall decide to demolish it or to rebuild it, then, in any of such events, Landlord may elect to terminate this lease by written notice to tenant given within 90 days after such fire or casualty specifying a date for the expiration of the lease, which date shall not be more than 60 days after the giving of such notice, and upon the date specified in such notice the term of this lease shall expire as fully and completely as if such date were the date set forth above for the termination of this lease ...."
***Paragraph 13 provided, as follows: "Notwithstanding anything to the contrary herein contained and subject to the limitation that no substantial portion of the building of which the demised premises form a part shall be demolished or removed by Tenant without the prior consent in writing of the landlord, and, if necessary, any mortgagee, the Tenant may at any time at its own cost and expense make any alteration, building, replacement, change, addition or improvement in and to the demised premises ...."
****See, e.g., Carpenter v. Fisher, 18 AD 561, 46 NYS 5 (4th Dept 1897).
VIOLATION OF USE CLAUSE LEADS TO TENANCY'S TERMINATION
Most leases have "use clauses" -- provisions which govern what a tenant may do with its space.*
By way of example, owners of residential buildings will ordinarily prohibit commercial activity within their structures. While commercial leases will typically discourage residential occupancy and may also require that tenants engage in a particular profession or activity.
In Futurist 1952, Inc. v. Westbeth Corp. Hous. Dev. Fund Co., Inc., the lease allowed Futurist 1952, Inc. (the tenant) to utilize its space as "a photography studio with darkroom shop, and for no other purpose." The agreement further provided that an "illegal" sublet or assignment was triggered whenever the premises were "used or occupied by others (whether for desk space, studio space, darkroom privileges or otherwise) for more than ten (10) days in any given month or more than seventy-five (75) days in any given year."
Notwithstanding those restrictions, the Futurist hired out its space for "special events," which included weddings and bar mitzvahs. When the landlord objected to the agreement's breach and served a notice to cure, the tenant filed a lawsuit in the New York County Supreme Court claiming that the lease's use restrictions were unclear.
Finding no ambiguity in the parties' agreement, the Appellate Division, First Department, affirmed the Supreme Court's finding (made after a hearing), that the tenant had violated its lease.
Let's just say, the future doesn't bode well for the Futurist.
If you have ever received legal papers you know they can be pretty intimidating.
These documents typically warn the recipient that if s/he fails to report to court or otherwise answer the papers, the relief requested by the party bringing suit may be granted on "default" -- without a judge ever hearing that recipient's side of the story.
So, if someone is suing you to recover a debt, a money judgment for that sum could issue. If you are the subject of an eviction or foreclosure dispute, it is also very likely you could lose your place of residence or home.
Apparently, some of our state's top court officials were of the opinion that the wording previously used in one of our legal forms wasn't frightening enough.
As of August 1, 2007, lenders seeking to start foreclosure cases against owners of one- to three-family homes must now ensure that their papers contain the following language:
NOTICE YOU ARE IN DANGER OF LOSING YOUR HOME
IF YOU DO NOT RESPOND TO THIS SUMMONS AND COMPLAINT BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FOR THE MORTGAGE COMPANY WHO FILED THIS FORECLOSURE PROCEEDING AGAINST YOU AND FILING THE ANSWER WITH THE COURT, A DEFAULT JUDGMENT MAY BE ENTERED AND YOU CAN LOSE YOUR HOME.
SPEAK TO AN ATTORNEY OR GO TO THE COURT WHERE YOUR CASE IS PENDING FOR FURTHER INFORMATION ON HOW TO ANSWER THE SUMMONS AND PROTECT YOUR PROPERTY.
SENDING A PAYMENT TO YOUR MORTGAGE COMPANY WILL NOT STOP THIS FORECLOSURE ACTION.
YOU MUST RESPOND BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FOR THE PLAINTIFF (MORTGAGE COMPANY) AND FILING THE ANSWER WITH THE COURT.
Many advocates find that wording needlessly redundant of the language that already appears in a summons form and are of the opinion that the content is a confusing, if not an inaccurate, recitation of a creditor's rights.
By way of example: What of the right of redemption? Doesn't a homeowner have a right to remit the amount sued for and thus avoid a forfeiture of the property? Why discourage the payment of the monies sought?
The statute is also silent as to the ramifications of a pleading's omission of this notice. What happens to a case when the "notice" is missing? Is the error amendable or will it require the litigation's dismissal?
Sometimes, folks, less can be more.
For a copy of new law, please use this link: S4210
Since, New York Labor Law § 200 provides that “a landowner has a duty to provide workers with a reasonably safe place to work,” a Washington County Supreme Court held that American Tissue was negligent and violated the law. However, the Supreme Court apportioned 25% of the fault to Beadleston for knowingly disregarding the risk of injury when he walked across the loading dock.
On appeal, the Appellate Division, Third Department, reiterated that § 200 is not limited to construction activity or when an owner controls the work. Beadleston only needed to establish that American Tissue “had actual or constructive notice of the dangerous condition.”
And while it thought a recovery was appropriate, the AD3 did not agree with the Washington County Supreme Court’s grant of $1,126,582 in damages in Beadleston’s favor. A new trial was ordered unless both parties stipulated to the following sums:
(1) The $200,000 award for future medical expenses was considered “speculative” and reduced to $8,900. (2) Since the $320,000 award for future lost wages was not established with “reasonable certainty,” that number was reduced to zero. (3) The $600,000 award for future pain and suffering deviated from other similar cases and was reduced to $450,000. (4) The award of no damages for past pain and suffering was increased to $75,000 (because Beadleston suffered significant daily pain and impairment of his physical abilities during the time between the accident and the trial).
While Beadleston original recovery was reduced by over half a million, $540,482 is nothing to sneeze at!
Upon purchasing his property in 2004, Ronald Trombly erected a fence which prevented his neighbor, Richard Goss, from accessing a portion of a driveway that crossed onto Trombly’s land.
Although Goss secured a deed to his property back in 2001, he had been utilizing the driveway for some eight years prior, pursuant to “rent-to-own” agreement. For the entire time, Goss had access to a public highway by means of a 12-foot wide strip of land which began on his property but continued until it was completely on Trombly’s property.
In Goss v. Trombly, Goss sought to “quiet title” to that portion of the driveway which traversed Trombly's land and claimed ownership by adverse possession. The Clinton County Supreme Court agreed and directed Goss to submit a “course reading” so that the new boundary lines could be defined.
On appeal, the Appellate Division, Third Department, reiterated that to establish title by adverse possession, one must demonstrate by “clear and convincing evidence” that for a 10-year period possession was “open, notorious, exclusive, continuous, hostile and under a claim of right.” Additionally, the disputed parcel must be either “cultivated or improved” or “protected by a substantial enclosure.”
While Trombly contested any hostility or adversity by Goss, the AD3 dismissed as “pure speculation" Trombly’s assertion that he had granted Goss permission as a neighborly accommodation. According to the AD3, Goss’s daily use of the driveway for 11 years was adverse to Trombly’s ownership interests and was clear and convincing evidence of “hostility.”
Although the acts necessary to establish cultivation or improvement will vary depending on the “nature and situation of the property,” such conduct must be consistent with that of a “thrifty owner.”
According to the AD3, Goss’s maintenance related activities -- plowing the driveway, scraping ice in the winter, mowing the grass along its borders, trimming overhanging shrubbery, and twice filling divots in the gravel -- matched those of a driveway owner.
While Trombly claimed that the Supreme Court erred in directing Goss to submit a course reading to define the driveway’s new boundary line, the AD3 held that “a precise description of the adversely possessed area was necessary to appropriately quiet title and ensure marketability of title to both parties’ parcels.”
Clearly, the court wanted to ensure that these owners proceeded on the right course.
For a copy of the Appellate Division's decision, please use the following link: Goss v. Trombly
It looks like Mary Rosado will be sitting this one out.
While the reports have not been confirmed, we are hearing that Mary will no longer be pursuing the 9th District's Civil Court slot.
Hours ago, Alan Flacks, a political gadfly, circulated this analysis via e-mail:
THE FLACKS REPORT
Mary Rosado, candidate for Civil Court (9th District) unofficially (from a number of reliable sources) is out of the race today (10th Aug., 2007), leaving Andrea Masley as the un-contested Democratic Party candidate.
Lawyers for candidates Masley and Rosado are purported to be drawing up a stipulation of discontinuance of the State Supreme Court proceeding (before Silbermann, J.S.C.) to validate Rosado's designating petition. [Rosado's petition to invalidate Masley's petition was discontinued this past Wednesday.]
And reportedly a revised Manhattan Borough Office clerk's report -- to be presented to the Commissioners of Elections next Tuesday -- gives Rosado even fewer signatures than before!
Further, an independent line would require gathering 3,000 valid signatures within roughly a fortnight's time -- difficult.
Most teachers (and students) look forward to summer vacation, but not Cynthia Last. She wanted to spend her summer teaching.
In Last v. Syosset Central School District, the principal of the Syosset Summer School program sent Last a letter offering her a summer teaching position. Last claimed to have detrimentally relied upon the offer when she declined a position at a different school.
The Nassau County District Court agreed and awarded Last $3,969 for Syosset’s contract breach. On appeal, the Appellate Term, 9th and 10th Judicial Districts, reversed and dismissed Last's case.
According to New York Education Law § 3012, the Board of Education is empowered to make all final hiring decisions. As a result, the AT2 held that Last’s reliance on the principal's letter was not reasonable because she knew her name had to be submitted to the Board of Education for approval.
The notion that everyone is entitled to their day in court is a linchpin of our American legal system. However, a recent decision issued by the Appellate Division, Second Department, proves that not all claims are created equal.
In Hawkins v. Carter Community Housing Development Fund Corp., Bernice Hawkins was injured when she tripped and fell on a sidewalk adjacent to the defendant’s property. Photographs, provided and authenticated by Hawkins, showed a gap between two sidewalk slabs, which measured a meager one-inch wide by one-inch deep. (The remainder of the sidewalk was well maintained, with the accident occurring during the day and with no moisture on the surface.)
After the Queens County Supreme Court dismissed Hawkins's personal injury lawsuit, the Appellate Division, Second Department, affirmed the outcome. The AD2 considered “the width and depth of the defect, as well as the time, place and circumstances of the injury” and concluded that the gap did not “have any of the characteristics of a trap or snare, and was too trivial to be actionable.”
While it isn't uncommon for parents to insist that their grown children move out of the family home, few actually bring a summary proceeding to recover possession. But that is precisely what happened in Goffe v. Goffe.
Initially, Jason Goffe was given permission by his mother to stay (for one night) in his parents' home. Thereafter, Mrs. Goffe agreed to allow her son to stay “until further notice.”
Faced with the prospect of a foreclosure, Mr. and Mrs. Goffe requested that Jason vacate the property. When their son refused, the Goffes filed suit, alleging that Jason entered into possession without consent and that he was a “squatter.”
After trial, the District Court of Nassau County, First District, awarded the Goffes possession based on Jason’s “unlawful holdover.” On appeal, the Appellate Term, Second Department, reversed and dismissed the case.
A squatter proceeding is only available when an individual takes possession of space without permission. Since Jason originally entered the home with his mother’s consent, a “squatter” proceeding was not maintainable and the case had to be dismissed.
While the AT2's decision was silent as to the correct eviction procedure to be utilized, before a new case could be started, the Goffes would likely need to serve a 30-day notice (predicated upon their son's status as a "tenant-at-will" or "at sufferance.")
There's something to be said for abstinence. Wouldn't you agree?
For a copy of the following Appellate Term’s decision, please use this link: Goffe v. Goffe
Earlene Graham claimed that defective electrical wiring, poorly installed electrical outlets, faulty smoke detectors, and, inoperative self-closing doors caused the injuries she sustained in a fire which had started in her apartment.
When Earlene filed suit against the New York City Housing Authority (NYCHA), NYCHA countered that the incident was the result of careless smoking by James Jeter, who had been sleeping on a couch in the unit.
The Bronx County Supreme Court denied NYCHA’s motion to dismiss the case, explaining that there were issues of fact that needed to be addressed by a jury.
On appeal, the Appellate Division, First Department, reversed based on a Fire Department investigation which concluded that the fire originated from an accumulation of papers and “numerous ashtrays with copious quantities of butts” in the living room.
While Earlene had filed complaints about the faulty electrical outlets prior to the incident, without any evidence linking the outlets to the fire, those complaints were found to be of little consequence and did not comprise notice to NYCHA of the defective condition.
And, notwithstanding Earlene’s allegation that the apartment’s self-closing door mechanism did not function, she offered no evidence as to how any purported defect contributed to the fire's origin or caused the injuries suffered.
Because her allegations were perceived to be “speculative,” Earlene's case was doused.
Apparently, where there’s smoke, there ain’t necessarily a viable negligence case.
Last night, we reported on the slug-fest between Mary Rosado and Andrea Masley for the 9th District's single Civil Court slot.
As we indicated, Rosado ended up some 180 shy of the 1500 signatures required to get on the Primary Election ballot and was given a week to show the Commissioners of the New York City Board of Elections why some of the invalidated names should be reconsidered and counted.
A reader -- who has asked to remain anonymous -- claims that even if Rosado's efforts prove successful, she will still be unable to meet the required minimum.
The anonymous insider guess-estimates (based on the arguments Rosado's attorney made before the Board) that the candidate will only be able to garner about another 93 signatures and is speculating that her chances of appearing on the ballot (on the Democratic Party line) are now "slim to none."
If you are staking a "succession" claim to a regulated apartment -- that is, you are seeking to acquire a lease to the unit in your own name, you'll first need to jump some hoops and overcome a few hurdles.
First off, not all occupants may assert a claim since the pool of eligible "family" members is limited by law.
And, if you qualify, you will be required to show that the unit was your "primary residence" -- that you lived in the apartment with the tenant-of-record for at least two years prior to that individual's death or departure. (This "contemporaneous occupancy" time-frame is reduced to one year if the person seeking to remain is disabled or 62 years of age or older.)
The outcome of these cases will typically depend on whether the person making the claim can establish primarily residing in the apartment during the relevant time period. When the documentary proof is deficient or irregular, the case will be lost.
By way of example, in Matter of Pietropolo v. New York City Department of Housing Preservation and Development, Mr. Pietropolo sought to remain in occupancy of Mitch-Lama apartment that had belonged to his sister. When the City denied that request, Pietropolo appealed that decision to the New York County Supreme Court (by way of an Article 78 proceeding) and, eventually, to the Appellate Division, First Department, which both concluded that the agency's decision was "not affected by an error of law, and was not irrational, unreasonable, or arbitrary and capricious."
Apparently, Pietropolo's documents did not support his residency claim. His 1998 and 1999 tax returns, W-2 forms and bank statements all reflected a Dutchess County address. And, in a 1999 New York City Non-Resident Tax Return, Pietropolo represented that he neither maintained an apartment nor lived in the City for any part of that year. (Ouch!)
Petitioner failed to submit adequate documentation to establish that he resided in the subject premises for the requisite time period, in that, inter alia: he neglected to submit an income affidavit for the year 1998; his New York State income tax returns did not show proof of filing; his voter registration and jury service notice only indicated that he had ties to New York, but did not demonstrate his primary residence was here; an affidavit from a neighbor which, while attesting to petitioner's close relationship with the prior resident, failed to state that petitioner actually resided in the apartment during the critical period; and he failed to submit financial or employment documents confirming his purported address.
Brent Seybolt sustained serious injuries when he was bitten on the face by a dog entrusted to the Wheelers.
A frequent visitor of the Wheelers' home, Seybolt was attempting to throw his hosts' young daughter into the swimming pool, when the animal knocked Seybolt to the ground and bit him near his eye on the right side of his face.
After spending nine days in the hospital, Seybolt was forced to endure a number of surgeries to correct blurred vision and swelling above the eye.
When Seybolt later filed a personal injury lawsuit against the Wheelers to recover damages, the Saratoga County Supreme Court denied Seybolt’s motion for summary judgment on the issue of liability and the Wheelers' motion to dismiss the case.
On appeal, the Appellate Division, Third Department, affirmed, explaining that only custodians of domestic animals who know or should know of an animal’s violent propensities, may be held liable for the harm the animal inflicts.
While such knowledge may be established in a number of ways -- such as with proof of a prior bite, or, evidence of past threatening or aggressive behavior (manifested in the form of growling, snapping or baring its teeth) -- “normal canine behavior,” like barking and chasing other animals, will usually not suffice.
In response to Seybolt’s allegation that the dog had exhibited past aggression, the Wheelers offered testimony that the dog only acted violently when provoked.
According to the AD3, since there were issues of fact as to the dog’s vicious propensities and the Wheelers' notice thereof, the case needed to proceed to a formal hearing or trial.
If every dog has its day, this dog’s day will likely be in court.
If you get to thinking you're a person of some influence, try ordering somebody else's dog around.
WILL ROSADO LOSE HER CHANCE TO RUN FOR CIVIL COURT?
NEWSFLASH!
In a contentious bid for the single New York County Civil Court seat now open in the 9th District, Mary Rosado and Andrea Masley, the two Democratic Party candidates, each filed challenges to the other's petitions.
At a hearing held earlier today before the Commissioners of the New York City Board of Elections, the Board found that of the 6,274 signatures submitted by Rosado, only 1,320 were valid. Masley had 7,904 signatures, of which 1,918 were valid. (1500 signatures are required to get on New York County's Primary Election ballot.)
The Commissioners adjourned the matter for a week to afford the Rosado team time to rehabilitate some of the invalid signatures.
Will Rosado make it onto the ballot?
We'll keep you posted!
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Special thanks to our friend Alan Flacks for this scoop!
We came across a disturbing report released in July 2007 by Public Citizen -- a non-profit consumer advocacy group founded in 1971 by Ralph Nader.
Public Citizen claims that of the $65 billion in foodstuffs that are imported to the U.S. each year, the "vast majority" are unexamined and untested.
The Food and Drug Administration (FDA) reportedly inspects only .6 percent of the goods that it regulates, exposing Americans to dangerous levels of pesticide residues, unsafe color additives, and other food-borne perils.
With Americans now consuming seafood at unprecedented levels, 80% of what is available for purchase is imported, yet only about 1.93 percent of those imports is subject to FDA inspection. (Only 11 percent of our beef, pork and chicken imports undergo scrutiny by the United States Department of Agriculture.)
While advocating for increased vigilance by government officials, Public Citizen is also recommending that we, as citizens, take the following steps:
buy local;
read food labels to discern country of origin;
regularly check recall lists and register for safety alerts at www.recalls.gov; and
contact Congressional representatives and request that that they fight for much needed change to trade and food-safety policies and labeling requirements.
There is no excuse for allowing this most fundamental aspect of our nation's security to be ignored.
In Flores v. Parkchester Preservation Company, L.P., Florencia Flores fractured her elbow when she fell on Parkchester Preservation Company’s (PPC) property and filed suit in the Bronx County Supreme Court to recover damages for her personal injuries.
A jury awarded Flores just over $5.7 million for past and future pain and suffering, lost earnings, and medical expenses. Finding the award excessive, the Supreme Court granted PPC’s post-trial motion for a new trial, unless Flores accepted a reduced award of about $1.7 million and $250,000 for loss of enjoyment of life.
While the Appellate Division, First Department, agreed that the original reward was excessive, it modified the outcome even further.
First, the AD1 vacated the award for "loss of enjoyment of life." Not only did the jury not grant such an award, but the law is clear that loss of enjoyment of life is “a factor to be considered by the jury in assessing damages,” not a separate and distinct recovery. The AD1 also modified the amount of other damages awarded. While the $1 million for pain and suffering initially awarded by the jury was inappropriate because Flores’s fracture was “distinguishable from the more serious injuries involved in the cases upon which she relie[d],” the AD1 thought the trial court’s proposed reduction was “excessively sharp,” and suggested that $350,000 would be more appropriate.
The $1 million dollar award for lost earnings was also untenable because it was based on Flores’s total inability to work when Flores’s own vocational rehabilitation expert admitted that Flores had lost about fifty percent of her work life. As a result, the AD1 discounted the economic projections and the speculative nature of pay raises, and held that a damage award of $425,000 for lost earnings was much more reasonable under the circumstances.
Finally, the AD1 found the jury’s award of nearly $2.7 million for medical expenses to be contrary to the weight of the evidence, since there was considerable overlap and no testimony by a medical professional regarding the actual costs. As a result, $250,000 was found to be more reasonable.
Don’t know about you, but we think a $4.675 million hit is quite a fractured result.
PR Restaurants operates a number of “Panera Bread” locations -- “bakery-cafes” that offer coffee, sandwiches, and soups. In March 2002, PR negotiated a lease with White City Shopping Center to place a Panera Bread location in Shrewsbury, Massachusetts. The parties’ agreement prohibited White City from leasing space in the center to a “bakery or restaurant reasonably expected to have annual sales of sandwiches greater than ten percent (10%) of its total sales or primarily for the sale of high quality coffees or teas.”*
In August 2005, PR learned that White City was negotiating with Qdoba, a Mexican restaurant, for space in the same shopping center. PR’s attorneys warned that Qdoba’s tacos, burritos, and quesadillas were “sandwiches,” and that PR’s lease prevented White City from closing the Qdoba deal.
Shortly after it executed a lease with the Mexican chain, White City filed suit in Worcester County Superior Court seeking a declaration that burritos are not sandwiches. PR counterclaimed for breach of contract and sought an injunction stopping the lease violation.
In order to secure an injunction, a party must show:
a likelihood of success on the merits; and
a substantial risk of irreparable harm in the absence of an injunction.
The court then balances the potential effects of an injunction’s grant on the parties involved and the public at-large.
In this instance, PR was unable to demonstrate a violation of the “sandwich” provision. Since the parties’ agreement did not define the word, the Superior Court looked to the New Webster dictionary, which defined a sandwich as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.”
The court then concluded that since burritos, tacos, and quesadillas are commonly made with a tortilla, and are filled with meat, rice, and beans, those food items did not fall under a “sandwich” rubric.
Additionally, PR was unable to show that "irreparable harm" would ensue if an injunction were denied. While PR alleged it would lose income if Qdoba opened, PR was unable to show that its “survival” was at stake.
Finally, the court was of the opinion that White City would suffer greater harm if an injunction were issued, since the center's owner had expended significant time and resources negotiating a lease -- one which was not barred by any agreement White City had with PR.
*The lease specifically prohibited White City from leasing space to a Starbucks. Apparently, it may be the only shopping center left in America without one.
Keith Antwine was arrested for stealing a car (with two children in the back seat) and crashing into another vehicle during a getaway. Upon arriving at the precinct, Antwine complained of a toothache and hernia.
Officers escorted Antwine to St. Barnabas Hospital, where he was handcuffed to a bed. After a few moments, Antwine complained that the cuff was too tight.
Observing a visible discoloration around Antwine’s wrist, an officer inserted a key and loosened the cuff, when Antwine jolted forward and fled.
After chasing him down the hallway, the officer grabbed Antwine but he again broke free. Just as Antwine made it through the first of two sets of exit doors, the officer lunged forward and tackled him. This time, the officer was able to restrain Antwine until two doctors and another officer intervened.
Antwine was convicted of grand larceny in the fourth degree, escape in the second degree, and two counts of endangering the welfare of a child. The Appellate Division, First Department, affirmed those convictions.
On appeal to our State’s highest court, Antwine claimed that because he did not successfully cross the threshold and make it past the hospital’s exit doors, his conviction should be reduced to “attempted escape.”
According to the New York State Court of Appeals, “escape” typically means to “get away, break away, get free or get clear, with conscious purpose to evade custody,” and since Antwine broke free of the realm of custody without authorization –- forcing police to give chase and placing an officer and the public at risk –- there was sufficient evidence to support the conviction in question.
Clearly, there was no escaping that decision.
For a copy of the Court of Appeals's decision, please use this link: People v. Antwine
Many landlord-tenant cases never get to the trial stage and are frequently resolved by way of an agreement known as a "stipulation of settlement" or "stip."
Like other contracts, these documents can be the subject of protracted litigation, particularly when errors, omissions, interpretative disputes or other misunderstandings arise.
So, while one party may think it's getting a form of closure by signing the document, the other may later feel that the agreement should be rescinded, or not enforced as written, and may ask a judge to restore the litigants to the status quo ante -- the way things were before the stip was signed.
While often an effective plot device for works of fiction, judges will typically resist use of this "way-back machine" power, unless extenuating circumstances -- like fraud, collusion or mistake -- are present.
If the existence of one or more of those factors can not be demonstrated to a court's satisfaction, the agreement's silence about a right or remedy will likely be perceived as a knowing and intentional relinquishment or "waiver" and a litigant will not be afforded an opportunity to rewrite the deal.
By way of example, in Rosewohl Enters., LLC v Gluck, Rosewohl settled a nonpayment case it had brought against its tenant, Jack Gluck, by way of a stipulation of settlement that was "so ordered" by a judge.
When Rosewohl later sought to collect the fees it incurred for having to commence the case, both the New York County Civil Court and the Appellate Term, First Department, rebuffed that effort, finding that the stipulation's silence precluded the recoupment of those charges.
There are different ways lawyers can get a case thrown out of court.
One procedure, known as a "motion for summary judgment," is a written request made to a judge to end the dispute based solely on the written arguments (and other submissions) that are presented to the court by the respective parties.
If there are no contested issues of fact which would warrant a formal hearing or trial, the case may come to an abrupt end. If "genuine issues" are left unresolved or unanswered by the parties' papers, the desired relief will be denied and the case will proceed to trial.
Of course, since the process is riddled with technicalities, these motions have been lost as a result of a party's failure (or inability) to comply with the governing requirements.
By way of example, in Dorsey v Les Sans Culottes, Susan Dorsey slipped on a mat in the defendant's restaurant. Although the New York County Supreme Court had granted the restaurant's motion to dismiss the case (on the grounds the establishment neither created nor had notice of the condition), the Appellate Division, First Department, reversed and reinstated the case on appeal.
While the restaurant's motion was supported by the proprietor's sworn testimony, there was a slight problem with that submission: The guy wasn't even in the country when the accident occurred. Since he was in France on the night in question, the owner's statements as to what transpired (and whether or not anything was spilled or the floors were cleaned) were found to lack evidentiary competency.
Because the motion was not supported by an affidavit made by someone with first-hand knowledge of what occurred, the request to end the case could not be granted.
Seems to us like this defendant was caught with its pants down.
In 1994, Liza Minnelli hired M’Hammed Soumayah to serve as her personal assistant and bodyguard. After nearly a decade of service, Soumayah was purportedly told by Minnelli’s attorney that the performer could no longer afford to pay him his full salary and that he was to accept a 50% decrease.
Two days after refusing the pay reduction, Minnelli’s lawyer informed Soumayah that his responsibilities had been assigned to others, and his bi-weekly paychecks were stopped.
After litigation was threatened, Soumayah was summoned to Minnelli's residence where he was supposedly asked what it would take to refrain from filing suit. When settlement discussions faltered, Soumayah filed a civil case against Minnelli alleging assault and battery, sexual harassment, quantum meruit, retaliatory discharge and wrongful termination. Minnelli countered with allegations of extortion, attempted extortion, breach of contract and breach of fiduciary duty.
In Soumayah v. Minnelli, the New York County Supreme Court denied Minnelli’s motion to dismiss Soumayah’s quantum meruit claim and to strike certain allegations in his pleadings that were “irrelevant and inadmissible.”
In the countersuit, Minnelli v. Soumayah, the Supreme Court granted Soumayah’s motion to dismiss the performer’s extortion, attempted extortion, and contract breach claims.
On appeal, the Appellate Division, First Department, dismissed Soumayah’s quantum meruit claim, and affirmed the grant of Minnelli’s motion to strike, the dismissal of her extortion and attempted extortion allegations, and, maintenance of her contract breach claims.
In order to state a cause of action for quantum meruit, one must allege:
the performance of services in good faith;
the acceptance of the services by the person to whom they were rendered;
an expectation of compensation therefor; and
the reasonable value of those services.
While Soumayah performed some $89,000 in services that were outside the scope of his regular responsibilities, the record demonstrated that his employer did not accept those additional services and that Soumayah could not have truly expected compensation.
The AD1 sided with Minnelli's motion to strike, because Soumayah's complaint, “contain[ed] ‘scandalous or prejudicial matter[s]’ that [were] ‘unnecessarily inserted’ in the complaint.”
With regard to Minnelli’s claim that Soumayah sought monies under threat of physical harm and disclosure of her confidential information, the AD1 held that while extortion and attempted extortion are criminal offenses, there was no basis to maintain a civil lawsuit on those grounds. (Although extortion, coercion, and duress may serve as elements of a cause of action for “tortious interference with contract” or “unjust enrichment,” common law has never recognized a civil extortion claim.)
Finally, since Soumayah had a contractual obligation not to disclose confidential information attained during the course of his employment, the AD1 was of the opinion that the Supreme Court correctly determined that the complaint stated a breach of contract claim based on Soumayah’s purported violation of that agreement.
The New York State Property Disclosure Act requires a seller to provide the purchaser of a one- to four-family home with a Property Condition Disclosure Statement (PCDS). (Unimproved land, new construction, cooperative and condominium units are exempt from this requirement.)
The Act instructs the seller to complete the form based upon the seller’s “actual knowledge” of the property’s condition and touches upon such information as how long the seller has owned and occupied property, the structure’s age, whether there have been any claims made against the property, and whether there are any features “shared in common with adjoining land owners or a homeowners association, such as walls, fences or driveways.” There are also questions regarding environmental and structural conditions, and any mechanical systems and services.
Should a seller fail to provide a PCDS, the purchaser is entitled to a credit of $500 off the purchase price. More importantly, should the document contain information the seller actually knows to be untrue, the seller is liable for the actual damages the purchaser suffers and any other equitable or statutory relief a court deems appropriate. A recent case decided by the Appellate Term, Second Department, reinforces that point.
In Ayres v. Pressman, a purchaser filed a small claims action to recover expenses incurred as a result of real-property transaction that went awry. The defendant had provided a PCDS, which asserted that no features of the property were shared in common with adjoining landowners, and that there was an existing septic system which had no known material defects. It was uncontroverted, however, that the septic system was both materially defective and partially located on a neighbor’s property (which was also a violation of local law).
The trial court concluded that the seller had been aware of the septic system’s location and defect, and deliberately refused to disclose that information. On appeal, the Appellate Term, Second Department, found no basis to disturb those findings.
As a result, the purchaser was entitled to recover his actual damages, which included the cost of the title search and mortgage application fees.
Ouch!
For a copy of the Appellate Term's decision, please use this link: Ayres v. Pressman
According to the latest numbers released by Rassmussen Reports and other pollsters, John Edwards is currently the most electable presidential candidate.
Edwards is the only Democrat with a significant lead in a head-to-head match-up against Republican frontrunner, Rudy Guiliani.
When it comes to the other three major Republican candidates, Edwards's average margin of victory is virtually identical to Obama's and significantly higher than Clinton's.
Here's how the numbers currently stack up:
General Election Matchups: Net Democrat/Number of polls
John Edwards
Hillary Clinton
Barack Obama
Rudy Giuliani................
+3, 6 polls
+1, 16 polls
0, 13 polls
John McCain................
+6, 6 polls
+3, 9 polls
+7, 9 polls
Mitt Romney.................
+16, 6 polls
+9, 10 polls
+15, 7 polls
Fred Thompson.............
+11, 4 polls
+6, 10 polls
+11, 12 polls
Edwards is also outperforming the other Democrats in key battleground states:
Battleground StateGeneral Election Match-Ups
John Edwards
Hillary Clinton
Barack Obama
Oregon
Fred Thompson.....
Edwards +15
Clinton +4
Obama +14
Iowa
Rudy Giuliani........
Edwards +14
Clinton +6
Obama +5
Fred Thompson.....
Edwards +23
Clinton +2
Obama +10
Kansas
Fred Thompson.....
Edwards +13
Clinton -12
Obama +4
Wisconsin
Rudy Giuliani........
Edwards +10
Clinton +1
Obama -2
Fred Thompson.....
Edwards +13
Clinton +3
Obama +3
Ohio
Rudy Giuliani........
Edwards +8
Clinton +3
Obama -11
Fred Thompson.....
Edwards +24
Clinton +15
Tied
Minnesota
Rudy Giuliani........
Edwards +8
Clinton +9
Obama -6
Fred Thompson.....
Edwards +24
Clinton +16
Obama +8
Missouri
Rudy Giuliani........
Edwards +5
Clinton -1
Obama -8
Fred Thompson.....
Edwards +21
Clinton +8
Obama +6
Kentucky
Rudy Giuliani........
Edwards +3
Clinton -3
Obama -16
Fred Thompson.....
Edwards +22
Clinton +13
Obama -6
Virginia
Rudy Giuliani........
Tied
Clinton -4
Obama -15
Fred Thompson.....
Edwards +10
Clinton -4
Obama -6
Alabama
Fred Thompson.....
Edwards - 2
Clinton -5
Obama -16
New Mexico
Rudy Giuliani........
Edwards - 3
Clinton +6
Obama -10
Fred Thompson.....
Edwards +18
Clinton +10
Obama +7
Arizona, Grand Canyon State poll
Rudy Giuliani........
Edwards - 8
Clinton -19
Obama -10
John McCain........
Edwards -17
Clinton -21
Obama -15
Mitt Romney.........
Edwards +6
Clinton -6
Obama +3
SOURCE: Survey USA polling. Best Democrat in each category shown in BOLD.
You don't have to be a savvy politician to know that, if you're vying for an elected position, you've got to abide by a pretty fundamental political tenet:
Thou shalt live in the geographic area where thoust running for a slot.
If you're looking to be the next Kings County Surrogate, for example, you'd think it be nice if the candidate called Brooklyn home.
And how about actually living in New York State?
Apparently, of the two remaining Democratic candidates vying to be the next Kings County Surrogate, Shawndya Simpson reportedly lives in the State of New Jersey.
A copy of a deed, which is making the rounds via the Internet and which was forwarded to me by a reader, supposedly shows that Ms. Simpson purchased a condominium up in Edgartown, Massachusetts, back in March 2007.
What's particularly interesting about that document is that a Brooklyn address was originally typed into the form, crossed-out, and then replaced with a New Jersey address.
To download a copy of the deed, please use this link: Massachusetts deed
---------------------------
UPDATE:
On August 17, 2007, the Queens County Supreme Court denied a request made by Diana A. Johnson, in a special proceeding bought pursuant to the State's Election Law, to have Shawndya Simpson knocked off the ballot.
Justice O'Donoghue concluded that there was insufficient evidence supporting Johnson's contention that Simpson was not a Kings County resident. On August 22, 2007, the Appellate Division, Second Department, affirmed that outcome on appeal.
It's not often that toilet-flushing cases make their way to the Appellate Division. So when we came across the matter of Chi-Am Realty, LLC v. Guddahl, we couldn't resist examining the case.
According to Chi-Am, Guddahl was responsible for perpetrating a nuisance over the course of 18 months by causing five incidents of flooding and refusing to allow Chi-Am’s representatives into the apartment to determine the source of the problem.
Additionally, Chi-Am claimed that Guddahl’s son’s behavior (which included skating and playing ball in the building’s common areas) was disruptive to others and also comprised a nuisance.
In opposition, Guddahl argued that the flooding resulted from an undersized toilet and defective plumbing. And, allegedly, when Guddahl allowed the owner access to the apartment he was only given a toilet plunger to remedy the problem.
Under the Rent Stabilization Code (9 NYCRR) § 2524.3(b), conduct that substantially interferes with the comfort and safety of others comprises a “nuisance,” particularly when there is a “pattern of continuity or recurrence of objectionable conduct.”
The Kings County Civil Court held that Guddahl “permitted a nuisance by allowing [his] bathroom toilet to overflow on several occasions, causing water to flood into the apartment below.”
The Appellate Term, Second Department, affirmed and also found the son’s behavior a nuisance.
After an additional appeal to the Appellate Division, Second Department, that court concluded that "nuisance" had been established and that, as a result, Guddahl was not entitled to a post-judgment opportunity to cure.
In other words, Guddahl’s 20-year tenancy was flushed right down the toilet.
In Kings Mall v. Wenk, the Appellate Division, Third Department, affirmed the grant of a preliminary injunction restricting the activities of anti-war demonstrators at a shopping mall.
In May 2005, Jay Wenk and Joan Keefe began leading anti-war protests inside the mall that became “increasingly aggressive and disorderly.” In response, Kings commenced an action in Ulster County Supreme Court seeking to permanently enjoin Wenk and Keefe from entering onto the mall’s property. In the interim, Kings sought a “preliminary injunction,” that is, an order restricting protests to sidewalks along the exterior of the facility during a two-hour time period on Saturday afternoons pending the outcome of a full hearing or trial.
The Ulster County Supreme Court granted the request, and the Appellate Division, Third Department, affirmed.
To obtain a preliminary injunction, a movant must establish:
a likelihood of success on the merits;
irreparable injury; and
a balancing of the equities in its favor.
While the First Amendment of the U.S. Constitution protects citizens against government action, since Kings is a private party, the AD3 could discern no constitutional infirmity triggered by the mall’s restriction or by the lower court's grant of equitable relief.
Although private actors “entwined” with the government, or who have been delegated a traditional state function, may not limit speech, such prohibitions did not apply in this instance since there was “absolutely no evidence” that Kings was acting on the government’s behalf.
The AD3 further concluded that Kings would suffer “irreparable harm” if denied the injunction, as its tenants would lose business during any disruption. And, because the extent of those losses were not readily determinable, an injunction was believed to be a more appropriate remedy under the circumstances.
Finally, the Appellate Court balanced the potential of injury to the respective parties, and found that the mall’s financial losses would be greater than any harm the defendants would experience by having their protest relocated to the exterior sidewalk, rather than interior of the mall.
Justice Karen Peters, while concurring with the majority’s affirmance, objected to the assertion that there was “no doubt” that defendants’ First Amendment rights were not infringed, or that there was “absolutely no evidence” the government was entwined with the mall’s actions. Peters was of the opinion that the presence of a government tenant could cloud a property’s status and make it more akin to a “public forum.”
"The lady doth protest too much, methinks."
To download a copy of the Appellate Division's decision, please use this link: Kings Mall v. Wenk
----------------------------
New Jersey courts have afforded shopping mall protesters free speech rights on the grounds that these facilities have taken on a “traditional state function.” Those cases analogize shopping malls to downtown business districts that historically served as public forums, and have awarded protesters rights akin to those they would have had on a hypothetical “Main Street.”
The New York Civil Rights Law, § 80-b, authorizes a lawsuit to recover all kinds of property, including real estate, given to another in contemplation of a marriage which doesn’t occur. A recent decision by the Appellate Division, Second Department, illustrates exactly how this law affects the most common pre-marital gift, the engagement ring.
In Dreznick v. Lenchner, Elliott Dreznick filed suit to recover various items from Stefanie Lenchner, one of which was an engagement ring. Elliott and Stefanie lived together in New York and were engaged for approximately 18 months. Stefanie ended the relationship, moved out, and took the ring with her. When Elliott demanded its return, Stefanie refused and litigation ensued.
The Suffolk County Supreme Court found Elliott entitled to the ring's return as a matter of law, based on Civil Rights Law § 80-b. On appeal, the AD2 affirmed.
While Stefanie argued that New York lacked personal jurisdiction over her, as she lived in California when the action was commenced, the trial court found “a basis for the exercise of jurisdiction ... [in] CPLR 302(b).” That provision is a “long-arm statute,” which gives New York courts power over a non-resident defendant so long as New York was the individual’s domicile prior to the separation.
So, in the end, even though his "ex" lived in California, New York courts had the power to order the jewelry's return.
Did we manage to keep you engaged?
For a copy of the Appellate Division’s decision, please use this link: Dreznick v. Lenchner
Tenants have been known to make late rent payments, and landlords will frequently excuse these transgressions. However, if a tenant repeatedly makes late payments and the landlord continually accepts them, has the landlord waived the right to reject subsequent tenders which are untimely made?
According to the Appellate Division, Third Department, the answer is a resounding no.
In Bennies Buddies, Inc. v. Lazarian Society for Animals of Congregation Brothers of St. Lazarus, Bennies leased 15 acres of adjoining land from the Lazarian Society, in order to comply with a local ordinance that imposed a minimum-area requirement on the specific use that Bennies was making of the property. While the lease stipulated that rent would be paid on the first day of each month, a rider to the agreement afforded Bennies a 15-day grace period. The rider also provided Bennies with an option to purchase the leased property on or before the expiration of the agreement's term.
Bennies made multiple rent payments beyond the grace period, which the Lazarian Society accepted. In March of 2005, however, when Bennies again attempted to make a rent payment beyond the grace period, the Lazarian Society sent it back. The following month, the Lazarian Society again rejected the rent payment and treated the lease as having been rescinded as a result of Bennies’ payment defaults.
Despite these rejections, Bennies then attempted to exercise the purchase option. When the Lazarian Society rejected that offer, Bennies filed a lawsuit seeking specific performance.
On motion, the Sullivan County Supreme Court dismissed the complaint, finding that the Lazarian Society had not waived the right to terminate the lease for late payment of rent, and that Bennies’ breach terminated the lease and the accompanying purchase option. Bennies appealed, contending the Lazarian Society never gave notice of the termination and had waived its right to declare a payment default by repeatedly accepting late rent payments.
The AD3 was unpersuaded.
Since the lease was unambiguous, the court looked to the language of the parties’ agreement to determine its meaning and to ascertain the effect of the tenant’s default. In this instance, the agreement clearly delineated that the failure to pay rent within the grace period was a default, and that such a breach terminated the lease, regardless of whether the landlord provided notice of the termination. And, since the purchase option was contained within the lease, that option similarly lapsed upon the agreement’s end.
The AD3 also didn’t buy the argument that the Lazarian Society’s prior acceptance of late payments triggered a waiver of its right to terminate the lease for subsequent payment defaults, particularly since the lease provided that the acceptance of rent following a breach did not waive the Lazarian Society’s rights. So while the acceptance of late payments may have excused those specific lapses, it didn't serve as a waiver of any future defaults.
Bennies’ final argument, that it was entitled to equitable relief because it could only legally continue the special use of its property if it had the use of the Lazarian Society’s parcel, also fell on deaf ears since Bennies' hardship was the direct result of its own misconduct.
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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 
During a hay ride on a school field trip to the Green Meadows Farm in Floral Park, Queens, kindergarten student Elizabeth David was injured when a bump on the trail propelled her from her seat to the wagon’s floor.
After Jacqueline Biggio mortgaged the martial home and spent some of those monies on “frivolous” purchases her husband, Lawrence, sought to have her held in contempt of court.
In 
According to a 
On a cold evening in February 2000, Dominic DeStefano slipped and fell on a patch of ice on a sidewalk along 27th Avenue in Brooklyn, and later brought an action against the City of New York for personal injuries sustained in the fall.
On the night of March 8, 2005, Police Officer Anthony Vicaretti found a white Ford truck parked awkwardly behind the Village Hall in Goshen, New York. He approached and found defendant Tyler Keesler asleep behind the wheel.
With few exceptions, residential tenants wishing to leave their apartments prior to the stated expiration of their lease terms, often do so at their own risk and are subject to continuing liability for the rent (as it becomes due), even if the premises are left vacant or unoccupied.
In 
If you didn't cause the accident and don't "own, lease, occupy or control" that part of the property on which an accident has occurred, it's likely that you will not be responsible for any damages an injured individual has suffered.
New York Mayor Michael R. Bloomberg has been fighting for the implementation of a "congestion pricing" plan, which would allow the City to charge drivers a "user fee" to traverse certain areas of Manhattan during peak traffic hours (weekdays, 6 AM to 6 PM).
How badly can you be injured at a tissue company?
Upon purchasing his property in 2004, Ronald Trombly erected a fence which prevented his neighbor, Richard Goss, from accessing a portion of a driveway that crossed onto Trombly’s land.
It looks like Mary Rosado will be sitting this one out. 
Most teachers (and students) look forward to summer vacation, but not Cynthia Last. She wanted to spend her summer teaching.
The notion that everyone is entitled to their day in court is a linchpin of our American legal system. However, a recent decision issued by the Appellate Division, Second Department, proves that not all claims are created equal.
Earlene Graham claimed that defective electrical wiring, poorly installed electrical outlets, faulty smoke detectors, and, inoperative self-closing doors caused the injuries she sustained in a fire which had started in her apartment.
Last night, we reported on the slug-fest between Mary Rosado and Andrea Masley for the 9th District's single Civil Court slot.
If you are staking a "succession" claim to a regulated apartment -- that is, you are seeking to acquire a lease to the unit in your own name, you'll first need to jump some hoops and overcome a few hurdles.
Brent Seybolt sustained serious injuries when he was bitten on the face by a dog entrusted to the Wheelers. 
We came across a disturbing report released in July 2007 by 
In 
In 
Keith Antwine was arrested for stealing a car (with two children in the back seat) and crashing into another vehicle during a getaway. Upon arriving at the precinct, Antwine complained of a toothache and hernia.
There are different ways lawyers can get a case thrown out of court.
According to the latest numbers released by 
In 
The New York Civil Rights Law, § 80-b, authorizes a lawsuit to recover all kinds of property, including real estate, given to another in contemplation of a marriage which doesn’t occur. A recent decision by the Appellate Division, Second Department, illustrates exactly how this law affects the most common pre-marital gift, the engagement ring.
