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 St Vincent Catholic Medical Centers wants to build a 625,000 square foot state-of-the-art medical facility which will house 365 beds, 18 operating rooms, and a new emergency room and trauma center.
BUT the plan involves destroying landmarked structures and has also triggered vehement community opposition. Here's how the hospital's lobbyists are spinning the proposal: St. Vincent’s and the Rudin Family Introduce Revised Design While St. Vincent’s Applies for Hardship Exemption on O’Toole BuildingSaint Vincent Catholic Medical Center badly needs a new hospital – currently its medical facilities are inefficiently dispersed among eight separate buildings - but lacks sufficient funds for construction. To remedy this problem, it had sought to execute with the Rudin family what both sides regard as a mutually beneficial deal. St. Vincent’s would sell to the Rudins eight buildings on the east side of Seventh Avenue between 12th and 13th streets, for $310 million. The Rudins would demolish these buildings to clear space for a new residential tower and several town homes; St. Vincent’s would put the money it received from the Rudins toward construction of a new $835 million, 21-story hospital on the site where the O’Toole building currently stands. As St. Vincent’s buildings sit within a historic district, the planned demolitions require the approval of the New York City Landmarks Preservation Commission (LPC). Earlier this month LPC dashed the St. Vincent’s/Rudin proposal when the commissioners unanimously rejected demolition of the O’Toole building, citing it as an important example of modern architecture. Some commissioners also objected to elements of the Rudin design plan for residential development. Though the LPC ruling presents a major challenge, this week St. Vincent’s and the Rudin family took steps intended to keep their project moving forward. St. Vincent’s filed with LPC a “hardship application” meant to show that demolition of the O’Toole building is critical to enabling St. Vincent’s to carry out its charitable mission of providing medical treatment. Though LPC has not granted a hardship exemption since 1986, at a public meeting Monday night with members of Community Board 2 representatives of St. Vincent’s expressed confidence that they could demonstrate why a new hospital building was essential for St. Vincent’s, why the O’Toole building site is the only reasonable location for such a facility, and why preservation of the O’Toole building is incompatible with construction of a modern hospital. On another front, the St. Vincent’s and the Rudin family released new design plans that respond to comments from LPC. The new proposal would preserve four buildings within the historic district that had been slated for demolition; it would also significantly decrease the height and bulk of the planned residential tower. Specifics of the revised St. Vincent’s/Rudin design plan include: The preservation, renovation and adaptive reuse of four buildings East of Seventh Avenue and within the existing St. Vincent’s campus (Nurses, Raskob, Smith, Spellman) A reduction of 30 feet in height and 60 feet in width of the main residential building slated for 7th Avenue between 11th and 12th Streets; these changes will diminish the width of the building by nearly a third A reduction of 9 percent on the height of the proposed hospital, bringing the total height (including mechanical installations) below 300 feet; also a reduction in the width of the tower by 53 feet
Public discussion of St. Vincent’s hardship application and of the Rudin family’s revised design will begin at an LPC meeting on June 3.
 In Campos v. Ofman, Mendel Ofman allegedly agreed to pay $7,000 for each apartment Martin Campos renovated. When he went unpaid after finishing nine units, Campos filed suit with the Kings County Supreme Court.
Ofman claimed that Campos had been hired as a helper to assist with the renovations, and was fully compensated for those services. After a jury found in Campos’ favor, the parties stipulated to damages in the amount of $51,000. On appeal, the Appellate Division, Second Department, determined that the jury's verdict was supported by a fair interpretation of the evidence. It further concluded Ofman wasn’t entitled to challenge the amount awarded since he agreed, in writing, to that sum. You certainly have our word on that. To download a copy of the Appellate Division’s decision, please use this link: Campos v. Ofman
 Rafael Villaneuva was inspecting a building’s roof -- which had been repaired by Professional Environmental Systems (PES) -- when a heavy wind caused a loose piece of plywood to hit him. Apparently, construction materials had been left on the property after PES’ completion of its work.
When the Kings County Supreme Court denied PES’ motion to dismiss the case, the company appealed to the Appellate Division, Second Department, which found there were unresolved questions as to whether PES had “adequately secured its equipment.” Will poor PES get popped for its purported unprofessionalism? To download a copy of the Appellate Division’s decision, please use this link: Villaneuva v. Professional Environmental Systems, Inc.
 One reason landlords hate when commercial or residential tenants perform alterations in their buildings is that the activity triggers liability for any injury that may occur, even when the work is undertaken without the owner's consent.
In Uribe v. Fairfax, LLC, for example, Michael Garstin -- a tenant in a building owned by Fairfax, LLC (and others) -- hired a contracting company to perform alterations to his apartment. During the course of that work, John Uribe, one of the contractor’s employees, was injured when he fell off a ladder, filed suit under Labor Law 240(1) to recover for his injuries, and, was awarded relief against the landlord. Because Garstin had breached his lease by permitting the alterations and hiring contractors without the owner’s consent, Fairfax sued Garstin for “indemnification” -- finding the tenant culpable and directing him to reimburse Fairfax for the monies paid to Uribe. After the New York County Supreme Court dismissed its claim, Fairfax appealed to the Appellate Division, First Department, which affirmed. Since Garstin wasn’t in the apartment when the project was underway, didn’t supply any tools nor instructed (or supervised) the work, the AD1 concluded that Garstin’s “alleged violation of the lease [was] not relevant to the issue of common-law indemnification in light of the lack of evidence that the accident was attributable to negligence on [Garstin’s] part.” In other words, even though the tenant had "unclean hands," and disregarded the requirements of his lease, the owner ultimately got stuck with the bill for the accident. What landlord wouldn't consent to an alteration of that outcome? To download a copy of the Appellate Division’s decision, please use this link: Uribe v. Fairfax, LLC
 In Princeton Insurance Co. v. Jenny Exhaust Systems, Inc., Princeton sought damages for injury to property after work performed by Jenny Exhaust Systems was alleged to have caused a restaurant fire.
Jenny asked the Queens County Supreme Court to dismiss Princeton’s case based on “spoliation” -- the destruction or alteration of evidence. Although it had been previously denied that relief, Jenny reiterated its dismissal request after it received photographs of the fire scene. Once again, the Supreme Court was unwilling to extinguish the case since discovery hadn't been completed, On appeal, the Appellate Division, Second Department, noted that Jenny failed to pursue certain objections when its first motion had been rebuffed by the Supreme Court. Since no justification was offered for that omission, the appellate court declined to consider those objections on appeal. Further, since the parties hadn’t yet engaged in discovery, the AD2 was of the opinion that Jenny was being premature. "Jenny, I've got your number!" To download a copy of the Appellate Division’s decision, please use this link: Princeton Insurance Co. v. Jenny Exhaust Systems, Inc.
 Just in case you missed it, our partner Lucas A. Ferrara was in yesterday's New York Times. In a piece, entitled "Improvements in a Rental," Lucas offered his insights on whether or not tenants may make improvements to their apartments without the owners' consent. Here's the piece in its entirety: 
November 18, 2007 Q & A Improvements in a Rental Q I live in a rent-stabilized apartment in Manhattan. As apartments become vacant, the owner is making major improvements to the kitchens (new refrigerators, stoves, cabinets, etc.). Being handy, I would like to replace my appliances and make some of these improvements myself, possibly with a little outside help from a plumber. Am I entitled to do this, and can I do it without it affecting my rent? A “Unauthorized repairs and renovations to a rental unit, whether or not the premises are subject to some form of rent regulation, could result in a tenant’s eviction,” said Lucas A. Ferrara, a Manhattan real estate lawyer. With few exceptions, Mr. Ferrara said, tenants are prohibited from removing their fixtures or appliances or from undertaking renovations, other than those that are purely cosmetic, without the owner’s consent. “The items the letter writer wants to replace probably belong to the landlord,” he said. “And if they are removed or replaced, a claim may be made that the tenant has substantially violated the lease agreement.” Mr. Ferrara said the letter writer would be well advised to get the landlord’s consent before making any improvements or modifications. “If the landlord refuses, the choices are to either not do the work or allow the landlord to do it,” Mr. Ferrara said. And if the landlord does the work, he will be entitled to a permanent monthly increase equal to one-fortieth of the cost of the improvement.
 After purchasing John Della Croce's home, Keith DiPrima filed a small claims case alleging Della Croce had breached the parties' contact of sale.
DiPrima claimed that before buying the home, he noticed a sizable hole, and significant water damage, in the living room ceiling. A provision was thus added to the contract of sale requiring Della Croce to repair the damage -- which meant fixing the leak and patching the hole. While the living room ceiling looked perfect at the walk-through, a mere two days after the sale "the hole reopened and water leaked onto the living room floor." Since Della Croce testified that the leak was fixed and the hole was patched four days prior to the closing and submitted proof that such work had been performed, the Suffolk County District Court dismissed the case. On appeal, the Appellate Term, Second Department, was equally unsympathetic. The AT2 held that once title has closed and the deed is delivered “any claims the plaintiff might have had arising from the contract of sale were extinguished by the doctrine of merger unless there was a clear intent evidenced by the parties that a particular provision of the contract of sale [would] survive the delivery of the deed.” The AT2 found no evidence that either party intended the provision to survive the closing. And, since the evidence established that the damage was repaired in accordance with the contract's terms, the AT2 was of the opinion that “substantial justice” had been effected and affirmed the lower court's decision. Looks like someone also had a gaping hole in his contract. For a copy of the Appellate Term’s decision, please us this link: DiPrima v. Della Croce
 In Precision Mirror & Glass v. Dicostanzo, the Appellate Term, Second Department, reversed a Staten Island Civil Court order which granted Ben Dicostanzo summary judgment and dismissed Precision Mirror & Glass’ (PM&G) breach of contract suit.
Dicostanzo entered into an agreement with PM&G to install two custom glass shower doors over an existing bathtub in his home. Although the Administrative Code of the City of New York, § 20-387(a), requires “home improvement” contractors to be licensed, PM&G contended that the work performed was cosmetic and thus no license was required. The Staten Island Civil Court disagreed. On appeal, the AT2 pointed to work that was structural in nature, such as driveways, swimming pools and terraces, as examples of “home improvements;” while cosmetic items such as the installation of linoleum, carpeting and venetian blinds have been found to be exempt from the code’s purview. As a result, the appellate court found the installation of glass doors to be fundamentally “cosmetic” in nature and warned that a liberal interpretation of the code would give the law “too broad a reach” and render the activities enumerated therein “meaningless.” Since it concluded that work in question was not a home improvement for which a license was required, the AT2 reversed the Civil Court’s award of summary judgment and the matter will now proceed to trial. Let's see you improve on that. To download a copy of the Appellate Term's decision, please use this link: Precision Mirror & Glass v. Dicostanzo
 To the victor belong the spoils, except, of course, in landlord-tenant cases.
In First Ave. Village Corp. v. Harrison, a holdover case started against tenant Alexander Harrison was dismissed due the landlord's "incredible" testimony and failure to establish the existence of certain lease defaults alleged in its predicate notice. Upon dismissing the holdover, the New York County Civil Court granted the tenant's request for legal fees and also concluded that the landlord had engaged in frivolous litigation practices. While the Appellate Term, First Department, agreed that the case should have been dismissed, it did not believe that the landlord's counsel had engaged in sanctionable conduct nor that the tenant should recover his legal costs since the latter had engaged in "unauthorized" alterations and there had been "initial intransigence in responding to the landlord's demands for access" which resulted in "undue delay in resolving the disputed issues." So, even though the tenant's purported misconduct couldn't be established at trial, his "unclean hands" impeded his ability to recover fees. Does that make sense to you? For a copy of the Appellate Term's decision, please use this link: First Ave. Village Corp. v. Harrison ----------------------- *For our other blog posts on this topic, please use this link: Prevailing Party
 Most people would call Max Lopez a hero for risking his own life to save others. Yet, for some reason, the New York County Supreme Court didn't see it the same way.
In Lopez v. Boston Properties Inc., Mr. Lopez was working on the seventh floor of a construction site where, during the course of the day, a colleague on the ground would hoist buckets of bolts, nuts, and washers up to Lopez by way of a pulley system. Lopez was injured when his coworker, who thought that the bucket was being unloaded, let go of the rope. Knowing that the pulley system lacked an emergency brake, and that the bucket would fall and injure those in its path, Lopez reached for the 200 pound overloaded bucket, lost his footing, fell some six to eight feet, and sustained various spinal injuries. (A safety line abruptly halted Lopez’s decent.) The New York County Supreme Court granted Boston Properties’ motion for summary judgment and dismissed the personal injury case, finding Lopez’s election to leap off the building was the sole cause of his injuries. On appeal, the Appellate Division, First Department, disagreed. It correctly concluded that Lopez was reaching for the bucket rather than propelling himself off the structure. Under New York’s Labor Law, not only are construction contractors required to furnish safety devices to their employees, but the offered protections must be reasonable and adequate. The AD1 held that the safety line which prevented Lopez from falling to his death did not prevent a recovery by him because the device “proved inadequate to shield [Lopez] from gravity-related injuries.” The appellate court reasoned that “the risk that an elevated worker might become injured while trying to save a coworker below from injury is not so unforeseeable as to be a superseding cause.” The AD1 reinstated Lopez’s claims, holding that issues of fact -- including the degree to which Lopez’s actions may have contributed to the accident -- precluded an award of summary judgment in anyone’s favor. In other words, the case will proceed to trial and a judge or jury will determine the amount of any recovery. That’s the nuts and bolts of it. 
For a copy of the following Appellate Division’s decision, please use this link: Lopez v. Boston Properties Inc.
 In Pantelidis v. New York City Board of Standards and Appeals, a divided panel of the Appellate Division, First Department, engaged in a bitter “cat fight” over whether the New York County Supreme Court had properly ordered a variance's issuance.
The underlying dispute involved the construction of a glass-enclosed staircase at the rear of George Pantelidis’s townhouse. When Pantelidis’s permit was invalidated after construction had been completed, he was denied a variance by the Board of Standards and Appeals (BSA), which refused to address whether Pantelidis had relied in good faith on the invalidated permit. Pantelidis then filed an “Article 78 proceeding” in New York County Supreme Court, seeking to overturn the BSA’s decision. After the Supreme Court opted to examine the good-faith reliance issue, the BSA appealed to the Appellate Division, First Department, contending that the matter should have been remanded to the administrative agency for that determination. The AD1 did not concur and concluded that the Supreme Court could proceed with a hearing because the record was sufficiently developed and the BSA had had an opportunity to examine all issues, but had declined to do so. When the Supreme Court ultimately granted the variance, the BSA again appealed to the AD1 and a different appellate panel affirmed the Supreme Court’s determination, but, this time, with an unseemly contentiousness. The majority was most annoyed at having to address whether it should consider the dispute's merits, and concluded that its prior decision was binding "law of the case" -- a fact which a lone dissenter apparently “fail[ed] to come to grips with.” The “fundamental disagreement” was over the judiciary’s role when reviewing agency determinations -- a function which the dissent characterized as a “separation of powers” issue. According to Justice McGuire, “determinations are to be made in the first instance by the agency” and the courts’ “limited role” is to ensure the agency is not acting in an arbitrary and capricious manner. Under the dissent’s framework, the majority would require “clairvoyance and confidence” to affirm the variance because it would need to predict how the BSA would have acted and then need to determine whether that hypothetical action was arbitrary and capricious. According to the dissent, the delineated compartmentalization was also necessary because “sensitive planning decisions” require the BSA’s technical expertise, a competence McGuire believes our courts lack. The dissenter further charged the majority with “fail[ing] to come to grips with” the fact that good-faith reliance was not the only issue to be adjudicated. The BSA could also base a ruling on such technical questions as whether: (i) granting the variance would alter the nature of the neighborhood; or (ii) it is the “minimum variance necessary to afford relief.”
While fundamental disagreements on legal issues are to be expected, the bitter tone set by this AD1 opinion is unacceptable. The majority’s impatience with the dissent, and the dissenter’s characterization of the panel’s arguments as "insupportable" and “beyond [the Court’s] competence and expertise,” just didn’t hit us right. Let's just say it struck us as ironic that a court entrusted and encharged with resolving disputes, appears incapable of resolving one of its own. To download a copy of the Appellate Division's decision, please use this link: Pantelidis v. New York City Board of Standards and Appeals
 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. In the end, Messner was left out in the cold. 
For a copy of the Appellate Division's decision, please use this link: Messner v. 112 E. 83rd St. Tenants Corp.
 Most lease forms (whether they be commercial or residential in nature) require that tenants allow their landlords entry onto the premises for inspection and/or repairs. Failure to cooperate could lead to a tenant's eviction, as was demonstrated in the case of MHM Sponsors Co. v. Hirsch.
In that case, Paulette Hirsch was found to have impeded her landlord's ability to effect repairs to her apartment's wood flooring. Although that condition violated the local housing codes, Ms. Hirsch repeatedly refused to permit the landlord access to the unit citing an extreme allergic response to the glue that would be used to adhere the wood tiles to the floor. Despite medical testimony as to the adverse physical reaction some may have to the glue fumes, a physician testified that once that glue dries it ceases to pose a health or safety hazard. A Housing Judge of the New York County Civil Court did not find the tenant's refusal to cooperate with the landlord "reasonable" under the circumstances, particularly given the "trip hazard" caused by the continuing existence of the loose floor boards. As the court observed: An ordinary prudent individual would accept potential short term risk to his or her health in order to alleviate a condition that was causing an ongoing and continuing risk to health and safety. Further, a person of ordinary prudence, who was susceptible to an allergic reaction during a repair, would mitigate the short term risk to health by absenting herself from the premises during the period of glueing and drying. Thus the continuing hazard caused by the broken floor would be abated and the short term potential hazard from the glue avoided.
As a result of Hirsch's obstructionist behavior, the Civil Court found in the landlord's favor but gave the tenant a final opportunity to preserve her tenancy if she allowed her landlord to have unrestricted access to the apartment so that the wood flooring could be replaced. Failing that, Ms. Hirsch could be evicted from her rent-stabilized apartment. We wonder if the Appellate Term will be taking a whiff of this case any time soon? For a copy of the Civil Court's decision in this please, please use this link: MHM Sponsors Co. v. Hirsch ---------------------------- Our thanks to Robert Roth, Esq, for bringing this case to our attention.
 Have you ever had to deal with a home improvement contractor?
It can be quite a nightmare. But do not despair. The displeasure need not be unilateral. A number of jurisdictions require home improvement contractors to be licensed. And, without that piece of paper, a contract reached with such an individual or entity may be unenforceable; which means that the contractor will be unable to collect any sums claimed to be due despite the work's performance. By way of example, in Flax v. Hommel, Flax sued David Hommel for breach of contract and to recover damages for work undertaken on Flax's home. Hommel countersued for the contract's unpaid balance. After the Nassau County Supreme Court refused to dismiss the contractor's counterclaim, Flax appealed to the Appellate Division, Second Department, which reversed. Here's why: A home improvement contractor who is unlicensed at the time of the performance of the work for which he or she seeks compensation forfeits the right to recover damages based on either breach of contract or quantum meruit ... Since Hommel was not individually licensed ... at the time the contract was entered and the work was performed, the alleged contract between Hommel and the plaintiff was unenforceable ....
Please spare us flak(s) about this. For a copy of the Appellate Division's decision, please use this link: Flax v. Hommel ----------------------------- UPDATE: Some five days after we posted this entry, the AD2 issued a comparable decision in Al-Sullami v. Broskie. In that case, an unlicensed contractor was also unable to compel arbitration of the dispute (pursuant to the terms of parties' unenforfceable construction contract).
 Does a landlord's knowledge of a water leak in a tenant's apartment trigger liability for ensuing mold-related injuries?
The Appellate Division, First Department, doesn't think so. In Litwack v. Plaza Realty Investors, Inc., the AD1 concluded that the mere presence of moisture together with a small leak in a steam pipe did not, as a "matter of law," comprise notice of a "potential for mold growth." Without other evidence establishing that the owner had been aware of a mold condition, the AD1 affirmed the New York County Supreme Court's dismissal of Wendy Litwack's personal-injury lawsuit. In an interesting twist, a lone dissenter, Justice David Saxe, noted his disapproval of the majority's decision and opined that the case should have proceeded to trial. He observed: Evidence of defendants' knowledge of ongoing water leak problems, based upon plaintiff's repeated complaints about the growing brown discolored spot and the surrounding wetness on a wall in the apartment, as well as other leak conditions of which she and her parents before her had repeatedly complained, was enough to create a question of fact as to whether defendants had notice of the potential for the mold growth that allegedly caused plaintiff's injuries ....
Since Litwack may now appeal the case to our state's highest court, her options to have this dismissal reversed haven't evaporated, just yet. A fix is necessary. For a copy of the Appellate Division's decision, please use this link: Litwack v. Plaza Realty Investors, Inc.
 Nathan & Elizabeth Hoogs were granted a special-use permit by the Town of Canaan (Columbia County) allowing them to produce hand-blown glass in an "accessory building" to be constructed on their residential property.
Their next door neighbor, Manfred Ohrenstein, objected to the permit and filed an Article 78 proceeding in the Columbia County Supreme Court contending that the studio did not fit within the Town's "home occupation" parameters and that the use would be at odds with the area's residential character. When the Supreme Court dismissed Ohrenstein's case, he appealed to the Appellate Division, Third Department, which found the local zoning board's interpretation of the law to be rational and reasonable. In the Town of Canaan, a "home occupation" is defined as: "An occupation or profession conducted in any zone subject to the limitations which follow and which:
a) Is customarily carried on within the finished living area of a single family residential dwelling or its accessory building ...
c) Is clearly incidental and secondary to the use of the dwelling unit for residential purpose, and
d) Which conforms to the following additional conditions:
1. The occupation or profession shall be carried on wholly within the principal building or its accessory building" (Town of Canaan Zoning Law, art II, § 31).
Since retail sales would be restricted, the glass-blowing would occur exclusively within a barn-like structure to be erected adjacent to the Hoogses' home, the building would be painted and trimmed to match the residence, the equipment (a furnace and oven) was akin to that found in a residence, and, all activity would be "conducted wholly within the accessory building," the AD3 concluded that the zoning board's grant of a permit was "neither irrational nor lacking the required support of substantial evidence." In other words, Ohrenstein got blown away by the glass-blowers! For a copy of the Appellate Division's decision in this case, please use this link: Matter of Ohrenstein v. Zoning Bd. of Appeals of Town of Canaan
 James Sykes purchased a newly constructed penthouse apartment from RFD Third Avenue I Associates (RFD) for $3.9 million. Prior to closing, Sykes found a number of problems with the unit and a punchlist was provided.
RFD agreed to complete the repairs within thirty days and placed $75,000 in escrow to ensure the work's performance. If litigation ensued, the parties further agreed that "the prevailing party [would] be entitled to recover its legal fees and disbursements." A lawsuit alleging breach was filed and RFD eventually released the $75,000 (together with accrued interest thereon) to Sykes. Since the parties were unable to reach an accord on legal fees, the New York County Supreme Court assigned the matter to a special referee to hear and determine the issue. The referee was of the opinion that since the parties had settled the repair/escrow claim, neither side had prevailed and no award of fees was appropriate under the circumstances. On appeal, the Appellate Division, First Department, reversed. The AD1 concluded that the "true scope" of the dispute was whether RFD had "work[ed] diligently and use[d] reasonable good faith efforts to complete" the open items. Since it apparently did not do so, the appellate court was of the opinion that Sykes had "won" the case, even though he achieved that favorable result by way of a "stipulation rather than than a judicial determination." While we understand the general premise, we are not certain the AD1 called it right. Shouldn't courts be encouraging the resolution of disputes? If parties feel it is in their interests to resolve a dispute amicably, then the outcome should be viewed as a "draw" -- with each side absorbing its own fees and costs. Let's face it. More often than not, disputes are settled because of the perceived "nuisance value," particularly when the costs of litigation will exceed the amount in controversy. Since such resolutions are not always a concession that a suit was rightfully maintained or that the adversary's claim had merit, then why allow a mere settlement to trigger an entitlement to fees? We believe that exposing litigants to an opponent's fees disincentivizes participants from seeking or achieving closure earlier in the process. (That can't be a good thing.) Each side should bear its own costs unless and until there has been a formal adjudication of a dispute's merits. And, at that point, if an adversary has a right to recover fees, so be it. Let's make peace, not war! Onward! For a copy of the Appellate Division's decision, please use this link: Sykes v. RFD Third Avenue I Associates, LLC
 Nuri Taub tripped and fell while in space belonging to The Art Students League of New York.
In a personal injury lawsuit failed against the League in the New York County Supreme Court, Taub was unsure of the accident's precise cause, but speculated that it had been attributable to protruding metal that existed in the hallway area ("two weeks after the accident") or to the floor's "uneven transition." Absent a definitive cause of her injuries, neither the Supreme Court nor the Appellate Division, First Department, would allow the case to continue. Here's how the AD1 summarized the problem: There is no evidence probative of what caused plaintiff to trip and fall on the premises of defendant Art Students League. Plaintiff merely surmised, after seeing metal "sticking out" in the hallway two weeks after the accident, that the protruding metal had caused her fall. She never testified that an uneven transition in the floor precipitated her fall, the theory she now relies upon, and accordingly advances no non-speculative ground for such causation .... To the extent plaintiff attributes her fall to the uneven surface of the floor in the hallway, based on "circumstantial evidence," her arguments are unavailing ....
What is left unresolved, is whether that "protruding metal" was a work of art or a dangerous condition that had been ignored by the school. (Looks like we'll never know.) For a copy of the Appellate Division's decision, please use this link: Taub v. Art Students League of N. Y.
 Most leases restrict what tenants can do within their apartments. Alterations, or other changes made without the owner's consent, are usually prohibited.
By way of example, paragraph 10 of the The Real Estate Board of New York, Inc.'s "Standard Form of Apartment Lease" provides, in substantial part, as follows: You [Tenant] cannot build in, add to, change or alter, the Apartment in any way, including wallpaper, painting, repainting or other decorating, without getting Owner's written consent before You do anything. Without Owner's prior written consent, You cannot install or use in the Apartment any of the following: dishwasher machines, clothes washing or drying machines, electric stoves, garbage disposal units, heating, ventilating or air conditioning units or any other electrical equipment which, in Owner's reasonable opinion, will overload the existing wiring installation in the Building or interfere with the use of such electrical wiring facilities by other tenants of the Building.
Violations of these kind of provisions can not only get a tenant evicted, but can also lead to liability for the costs incurred by the landlord to restore the unit to its original condition (ordinary wear and tear excepted, of course). In Ebrahimi v. Martino, Mr. Ebrahimi sued his landlord for the return of his security deposit ($850) together with an additional $200 which had been promised to him if the tenant vacated the apartment and no "damage" was found. Of course, as one might anticipate, the landlord refused to release the monies, claiming that he had to pay $1475 to undo the tenant's unauthorized "alterations." For some undisclosed reason, Ebrahimi had decided to paint the apartment's walls "red and green." After a trial, the Nassau County District Court (small claims part) concluded that Ebrahimi was not entitled to the monies in question. And, on appeal, the Appellate Term, 9th and 10th Judicial Districts, affirmed. The tenant recovered ZILCH! Nada! Nothing. Which reminds us of a bad joke, which goes something like this: What's red and green and goes 175 miles an hour? Answer: A frog in a blender. Our sincerest apologies, in advance, to all our friends at PETA. For a copy of the Appellate Term's decision, please use this link: Ebrahimi v. Martino
 It's no fun living next to a construction site. The noise, dirt and debris can be maddening. The work can also disrupt the use and enjoyment of your space, particularly if the construction crew decides to take certain "liberties."
In McMullan v. HRH Construction, LLC., McMullan filed an action in the New York County Supreme Court seeking to stop HRH Construction from "entering onto [McMullan's] premises and bringing onto or leaving thereon equipment, materials or debris." Apparently, HRH's crew made itself at home, entering McMullan's backyard, removing fences, obstructing an exit from McMullan's unit, and, bolting closed the building's fire exit. (That was in addition to the damage the crew caused to McMullan's apartment and the construction materials and debris that were left in McMullan's backyard.) Faced with HRH's "cavalier attitude and disregard of [McMullan's] rights," the New York County Supreme Court granted the tenant's request for preliminary injunctive relief. On appeal, the Appellate Division, First Department, affirmed. While HRH argued that it was entitled to enter McMullan's space in accordance with Real Property Actions and Proceedings Law (RPAPL) § 881, a special statute that applies to these kind of access disputes, the AD1 razed that analysis since the company failed to show why entry onto McMullan's space was necessary.* Looks like HRH got hammered this time around, wouldn't you agree? For a copy of the Appellate Division's decision, please use this link: McMullan v. HRH Construction, LLC --------------------------- *RPAPL § 881, entitled "Access to adjoining property to make improvements or repairs," provides as follows: When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.
 In Cullimore v. Buchanan, Mr. Cullimore sought to recover $3,000 for water damage that was allegedly attributable to Buchanan’s defective installation of a bay window. Buchanan countered that the leakage was not caused by any faulty work on his part, but was triggered by the improper alignment of the shingles on the homeowner’s roof. When the dispute was dismissed by the Justice Court of the Village of Wappingers Falls, Cullimore appealed.
Interestingly, the Appellate Term, 9th and 10th Judicial Districts, found it could not undertake an independent review of the case, as there was no trial record, stenographic minutes, or any appropriate transcript of the testimony. As a result, the appellate court was compelled to reverse the dismissal and remanded the case for a new trial. The AT noted that customarily a clerk of the court or the judge who presided over the case will prepare a statement setting forth the substance of the proceeding, which is sufficiently descriptive of the testimony to make appellate review possible. If that standard is not met, as was the case here, then a case will need to be retried. So, to avoid a needless “do-over,” why wouldn't a judge want to make sure everything is done right, “on the record,” the first time around? For a copy of the Appellate Term’s decision, please use this link: Cullimore v. Buchanan
 As he helped prepare the theater for its latest production, Joseph Scott Holler probably envisioned stars gracing the stage, rather then encircling his head. But the latter happened when this Brooklyn Academy of Music stagehand was unexpectedly struck by a falling object while assisting with the installation of a hoist motor used to lift theater scenery.
In Holler v. City of New York, Holler brought an action against the City of New York for personal injuries he incurred, claiming that they stemmed from violations of Labor Law §§ 240(1) and 241(6). Labor Law § 240(1) provides that owners who contract for, but do not direct or control, the erection, repair, or alteration of a building are required to protect all workers. Labor Law § 241(6) provides that reasonable safety precautions must be implemented for employees working in all areas where construction work is being performed. Upon completion of discovery, the City of New York sought summary judgment dismissing Holler’s complaint, while Holler cross-moved for summary judgment based upon the alleged Labor Law violations. The Kings County Supreme Court only granted that part of the City’s motion which sought summary judgment on the Labor Law § 241(6) violations. Since the accident did not “arise from construction, excavation, or demolition work,” the Appellate Division, Second Department, modified that outcome by finding that the City was also entitled to summary judgment on Holler’s Labor Law § 240(1) claim. While Labor Law § 240(1) is not limited to actual construction sites, the AD noted that the work performed by the injured employee must be of a nature which involves significant change to a structure. Where, as here, the work involved "routine maintenance," rather than significant physical changes, dismissal of the Labor Law § 240(1) claims was also required. Holler is proof that show business ain’t all the glitz and glamour it’s cut out to be. For a copy of the Appellate Division’s decision, please use this link: Holler v. City of New York
 We must eradicate the “pervasive culture of corruption,” announced New York City’s Department of Building’s Commissioner Patricia J. Lancaster, at a March 16, 2007 breakfast meeting sponsored by New York Law School.
Upon assuming her role as Commissioner, Lancaster set out to improve the Department’s reputation as a “slow, inefficient, and corrupt" bureaucracy. According to Commission Lancaster, many of the Department’s problems were attributable to an antiquated computer system that seemed to fuel inefficiency, frustration, and corruption. The response was a massive $22 million investment in technology to help usher the Department of Buildings into the 21st Century. Lancaster also established a system of “deliverables,” or strategically determined benchmarks, which have fostered accountability and personalized ownership of tasks where none had previously existed. And by affording special training to her staff, Lancaster was able to delegate greater responsibilities to others and ensure the competent performance of their tasks without the need for micromanagement. To adapt to New York’s ever-changing needs, Lancaster outlined a series of initiatives that would serve as the foundation of her 4-year strategic plan for the future. The initiatives range from technological advancement aimed at increasing volume and accountability to dealing with quality assurance and enforcement.
The “Be First” initiative, for example, provides plumbing inspectors with handheld electronic devices which allows them to issue real time on-the-spot receipts. The result is that where customers once had to wait more than a week to retrieve the data, now they receive the data instantaneously in the field. The “Be Scan” initiative was created to combat the frequent loss of important hard-copy documentation by creating “virtual folders” accessible online. The “Zoning Compliance” initiative involves checking zoning diagrams prior to the start of construction, so that zoning problems are identified and addressed. In order to maintain a spotlight on integrity, in June 2002, Lancaster formed a strategic alliance with the Department of the Investigation. This endeavor was sparked by the criminal indictments of some 19 (out of the Department’s 24) plumbing inspectors. The collaborative effort, which has involved undercover investigations and the drafting of a Code of Integrity, has thwarted corruption and serves as a disincentive to those predisposed to accepting bribes. Lancaster’s most ambitious initiative involves rewriting the Building Code to better serve New York City’s needs. This new Code will be submitted to the City Council in a bill this coming April. Lancaster believes that the revisions will make our great city safer and should prove to be more "user-friendly" to owners and developers. And finally, echoing a theme trumpeted by Comptroller Thompson in his speech at New York Law School, back on January, 19, 2007, Lancaster reinforced the need to bolster the City's supply of affordable housing so that, as the city population increases, no one is “left behind.” To view Commissioner Lancaster’s speech, please click the following link: Lancaster video To view the Department of Buildings website, please use this link: DOB To view Comptroller Thompson’s speech, please use this link: Thompson video
 Chapel Bank Farm, a Delaware County dairy farm, used a motorized milking and pumping system. In May of 2004, when the system ceased functioning Ronald Kane -- an employee with Thering Sales and Services, Inc. -- tried to repair it. Although he was not a licensed electrician, Kane got the system to work but, as luck would have it, a fire broke out a short time thereafter.
While no animals were injured, the barn was “extensively damaged” and in a lawsuit later filed in the Delaware County Supreme Court, Chapel alleged that Thering had failed to “properly inspect and repair” the milking system and that the independent contractor’s negligence was the “proximate cause of the fire.” Thering moved to dismiss the case alleging that it had breached no duty of care. However, the Supreme Court, and the Appellate Division, Third Department, were not convinced that Thering was free of liability in this instance and both courts concluded that a formal hearing or trial was warranted. Here’s how the AD3 summarized the parties’ positions: According to defendant's expert, Gary Hauf, the fire began due to an internal motor malfunction of the milking system and, therefore, Kane's actions were unrelated. On the other hand, plaintiff's expert, Thomas Conlon, asserts, among other things, that the fire began due to electrical overheating in the wiring between the circuit breaker box and the milking system caused by imprudent and incorrect alterations to the wiring and circuit breaker box by Kane, which overly stressed the wiring resulting in overheating and eventual ignition. Viewing the evidence, including Conlon's opinion, as well as statements prepared by plaintiff's insurance investigator and the Delaware County Department of Emergency Services, in the light most favorable to plaintiff, as the nonmoving party ..., we will not disturb Supreme Court's denial of defendant's motion for summary judgment.
Looks like we milked this one to death. For a copy of the Apellate Division's decision, please use this link: Sutherland v. Thering Sales & Serv., Inc.
 In January 2006, the Permanent Mission of the Republic of Estonia to the United Nations began searching for a residence for its Ambassador, Tiina Intelman. The home was also to be used to host diplomatic functions, such as official meetings, receptions, and state dinners.
On January 26, 2006, Intelman inspected the upper triplex at 245 East 52nd Street. On February 1, 2006, the Mission signed a lease with New Start, LLC, the building's owner, and, $90,000 in rent was paid for the year. Interestingly, the lease provided that essential services such as heat and hot water were the Mission’s responsibility, and that the landlord would not be liable for any interruption or delay in the provision of those services. On February 8, 2006, Intelman arrived at the premises with movers, only to find the gate padlocked. Upon entering, Intelman discovered that the gas stove, the hot-water heater, the heating units, and the fireplace were all inoperable. She then contacted Con Ed, who informed her that the building’s gas system for the building was unconnected and inoperable. At no point during her tenancy did the landlord manage to get the gas turned on. Instead, late in February of 2006, the landlord converted the hot water heater to electric power, and installed an electric stove and electric heaters. Unfortunately, the electric heaters didn’t do the trick. Ambassador Intelman testified that she joined a sports club so that she could shower in the mornings. Marike Kokajev, the Deputy Permanent Representative of the Mission, testified that the Ambassador often stayed at his residence because her apartment was too cold. Kokajev further indicated that when he visited the Ambassador's apartment, he needed to wear his coat and scarf due to the frigid temperature. The apartment was obviously unsuitable for diplomatic functions, and so the Mission rented space elsewhere, when necessary. Intelman moved out on September 20, 2006, and on October 30, 2006, surrendered the space back to the landlord. On April 24, 2006, the Mission filed a complaint against the owner in the U.S. District Court for the Southern District of New York, and established at trial that New Start had breached the warranty of habitability and that the Mission had been constructively evicted. New York’s statutory “ | | |
