Just in case you missed it, our partner, Lucas A. Ferrara, appeared in yesterday's (May 4, 2008) edition of the New York Post's Page Six Magazine.

Of course, that isn't Lucas pictured on the front cover.

You'll find him quoted on page 28 in an article entitled "Co-op Showdown," a piece on the growing number of New York area conflicts involving "annoying neighbors."

What can people do when they're faced with too much noise, foul odors, or other nuisance?  

After giving their neighbors -- and the landlord (such as a co-op) -- notice  of the offending conduct, Lucas addresses the pros and cons of taking these kinds of disputes to court.

Unfortunately, no link to an electronic version of the story is currently available. But we'll post a copy of the piece as soon as we're able. (We'll add them below.)

In the meantime, special thanks to Page Six Magazine contributor Kate Torgovnick for the ink!

Cheers!

Continue reading "LUCAS MAKES PAGE SIX!" »

Posted by Daniel Finkelstein, Esq. at 6:00 AM | Permalink | TrackBacks (0) | Comments (5)

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.

For a copy of the Appellate Division's decision, please use this link: Graham v. New York City Housing Authority

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (0)

Punitive damages are designed to punish a party to a case and serve as a disincentive for the miscreant to engage in the proscribed conduct in the future. When such awards are found to be excessive, our nation’s highest court has reined them in, characterizing them as “takings” of property without due process, a violation of the Fourteenth Amendment.

The United States Constitution’s “Due Process Clause” requires that certain standards of fairness be applied to all legal proceedings. For example, a defendant must be given adequate notice of a matter’s pendency so that the party can be afforded an opportunity to interpose an appropriate defense. Along those same lines, punitive damages may become unconstitutional if they bear no relation to the offense committed, or, if the defendant was denied advance notice that the punishment would be so substantial. Disproportionately large awards can also impact interstate commerce and allow one state to regulate an industry in another state; an outcome which our nation’s highest court has sought to discourage.

When it has reviewed these kind of awards, the United States Supreme Court has substantially reduced recoveries found to be “grossly excessive,” but has afforded no clear indication as to how that impermissible level is triggered nor provided a precise formula to be utilized.*

In Phillip Morris v. Williams, the Estate of Jesse Williams sued the cigarette manufacturer after Williams, a heavy Marlboro smoker, died. The jury found that Williams’s death was caused by smoking, that he believed the product was safe, and, that the manufacturer knowingly and falsely induced him to believe in the product’s safety. The jury awarded $821,000 in compensatory damages and a staggering $79.5 million in punitive damages for harm done to him and to other Marlboro smokers in Oregon.

Philip Morris hoped the U.S. Supreme Court would find the award -- almost 100 times the compensatory damage component -- to be excessive. Philip Morris argued that allowing juries to consider the harm done to third parties when determining the size of such awards violated due process. The manufacturer further asserted that it was incapable of preparing a defense to claims held by people who had not actively participated in the litigation. In this case, while Mr. Williams may not have known cigarettes were dangerous, Philip Morris was foreclosed the ability to prove whether other Marlboro smokers were aware of those dangers and knowingly accepted the risk.

Williams’s representatives argued that, in order to assess the reprehensibility of the defendant’s actions, juries must be allowed to consider the harm caused to others. After all, doesn’t conduct become more heinous if Philip Morris was not only deceiving Mr. Williams, but countless thousands of other citizens?

The U.S. Supreme Court agreed with both camps. In the majority opinion, Justice Breyer guided that while juries could not directly consider the harm the defendant’s action caused to others, such evidence could be introduced to establish the degree of reprehensibility.**

Although the Court declined to pass on whether the award in this case was excessive, the dispute was remanded to the trial court with instructions that the jury consider the harm done to third parties only for purposes of determining the reprehensibility of Philip Morris’s conduct.

Were we to venture a guess, we think it's a safe bet that a large chunk of that $79 million just went up in smoke.

For a copy of the Supreme Court's decision in Philip Morris v. Williams, please use the following link: http://www.supremecourtus.gov/opinions/06pdf/05-1256.pdf.

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*Some U.S. Supreme Court cases have suggested that around ten times the amount of compensatory damages suffered by a party would likely be an acceptable parameter.

**Confused?  As Justice Stevens, noted in his dissent, “The nuance eludes me.”  Also confusing is that Justices Thomas and Scalia, the most conservative members of the Court, joined Justice Ginsburg’s dissent, one of the most liberal justices on the Court.

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (0)

It's a decision that made the news and has been analyzed by commentators in such publications as The New York Times and the New York Law Journal. But the outcome in Poyck v. Bryant, didn't come as a surprise to those of us in the landlord-tenant arena who are all too familiar with the existing statutory protections which govern residential tenants' safety and welfare. (In actuality, we were wondering what took so long.)

In a case of first impression, a Judge of the New York County Civil Court was asked to decide whether secondhand smoke -- which permeated a residential-building's hallways and an adjacent apartment unit -- somehow violated state law and triggered conditions which made the space untenantable for a smoker's neighbors.

In the absence of any prior caselaw on the subject, the Honorable Shlomo S. Hagler concluded that secondhand smoke could comprise a breach of the state's "implied warranty of habitability" -- Real Property Law section 235-b -- a statute which imposes an affirmative duty or obligation on lessors to ensure that residential units are free of conditions which would pose a threat to the occupants' health, safety and well-being, even when the violative acts are caused by a third party.

Michelle and Stan Bryant were the tenants of a deregulated fair-market space situated in a condominium building located at 22 West 15th Street, here in Manhattan. In March of 2001, new neighbors -- who happened to be smokers -- moved into the adjoining apartment and their tobacco smoke wafted into the Bryants's unit (and permeated the building's common areas). Although the Bryants noted their complaints (both orally and in writing) to the building's superintendent, the unit's owner (Peter Poyck), and the owner's attorney, the smoke condition continued unabated. As a result, on August 1, 2001, the Bryants opted to break their lease (which was then scheduled to expire on December 21, 2002) and relocate to another apartment.

When Poyck later sued to recover unpaid rent arrears, the Bryants countered that no sums were due as a result of the owner's breach of the statutory warranty of habitability and conditions which triggered a constructive eviction. [A "constructive eviction" occurs when a landlord's "wrongful acts" or omissions "substantially and materially deprive the tenant of the beneficial use and enjoyment of the premises...The tenant, however, must abandon possession in order to claim there was a constructive eviction." Barash v. Pennsylvania Terminal Real Estate Corp., 26 N.Y.2d 77 (1970).]

As Judge Hagler observed:

While there appears to be no reported cases dealing with secondhand smoke in the context of implied warranty of habitability, secondhand smoke is just as insidious and invasive as the more common conditions such as noxious odors, smoke odors, chemical fumes, excessive noise, and water leaks and extreme dust penetration. Indeed, the U.S. Surgeon General, the New York State Legislature and the City of New York City Counsel declared that there is a substantial body of scientific research that breathing secondhand smoke poses a significant health hazard .... Therefore, this Court holds as a matter of law that secondhand smoke qualifies as a condition that invokes the protections of RPL section 235-b under the proper circumstances. As such, it is axiomatic that secondhand smoke can be grounds for a constructive eviction. [citations omitted]

Although Poyck claimed he could not be held legally responsible for his neighbors' conduct, the Civil Court found that argument to be "misplaced," noting as follows:

While the landlord contends that he had no control over the neighbors in apartment 5-C, he failed to offer any evidence that he took any action to eliminate or alleviate the hazardous condition. The landlord could have asked the board of managers of the condominium to stop the neighbors from smoking in the hallway and elevator as well as to take preventive care to properly ventilate unit 5-C so that the secondhand smoke did not seep into the Bryants' apartment. Specifically, Real Property Law section 339-v(1)(i) mandates that condominium by-laws restrict the use and maintenance of both the units and common elements such as the hallways and elevators so as to "prevent unreasonable interference with the use of respective units and of the common elements by several unit owners." The board of managers and even the landlord could have commenced an action for damages or injunctive relief for non-compliance with the by-laws and decisions of the board of managers pursuant to the Condominium Act .... Moreover, in the case of "flagrant or repeated violation" by a unit owner, the Condominium Act also authorizes the board of managers to impose sufficient surety to ensure future compliance with their by-laws and decisions. Real Property Law section 339-j.

In fact, for some thirty years, our appellate courts "have continuously held that the implied warranty of habitability can apply to conditions beyond a landlord's control." And this case presented no exception to that rule.

As a result of this decision, apartment dwellers may want to think twice before "lighting up" in the privacy of their own homes. Not only can such conduct subject them to eviction, but there may also be liability for damages arising from any rent (or "maintenance") credits that may issue together with such other compensation that be awarded to neighbors under an array of cognizable legal theories, like negligence or breach or contract.

Unless an appellate court chimes in to the contrary, tobacco users can expect to be smoked out ... to the suburbs.

For a copy of the Civil Court's decision in Poyck v. Bryant, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_26343.htm

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (0)