In today’s ever concentrating society, where we live in close proximity to one another, I was wondering whether citizens in our communities ever considered the chiming of church bells and the blaring of fire horns to be a “nuisance,” and whether they ever sought to quite these things we hear every day. Here are some cases.
CHURCH BELLS
Langan v. Bellinger, 203 A.D.2d 857, 611 N.Y.S.2d 59 (3rd Dept. 1994)
So you go out one day and find that your neighbor has cut down your tree. What are your responsibilities, your rights when such tree has been removed illegally. Notwithstanding the fact that many municipalities have tree ordinances of varying types, the removal of trees on another’s land is illegal.
The question of whether to bring suit often turns on the question of whether the damages are sufficient to warrant a lawsuit. Was that tree your favorite Black Cherry. Indeed, the type and extent of the damages varies by statute, often determining whether the landowner brings suit in New York. For example, under New York’s Real Property Actions and Proceedings Law, RPAPL § 861, a landowner may seek treble or triple damages for the improper removal or cutting of a tree. That, three times the stumpage value of the tree, or $250, or both in addition to any permanent and substantial damage caused to the land if any person removes or attempts to remove any tree without consent.
Other actions that may be brought for injury to property include arguing there was a trespass of land. In Western New York Land Conservancy, Inc. v. Cullen, 886 N.Y.S.2d 303 (4th Dep’t 2009), the plaintiff-landowner sought treble stumpage value for tree damage to its property in a trespass action against the adjoining landowner. The court ruled that the plaintiff was not entitled to treble damages because he had failed to present evidence establishing stumpage value, and, instead, presented evidence of restoration costs. If the plaintiff in this case had presented credible evidence establishing stumpage value, the court would have likely awarded treble damages.
Does a client have the right to bring a legal malpractice case against the attorney who forced, recommended, or otherwise allowed the client to knowingly accept in New York?
Generally, New York does not bar claims for legal malpractice arising from a litigation settled by the former client. A client may sue her former attorney after settling a case if the attorney compelled the settlement. In Latimore v. Bergman, (2nd Dep’t 1996), the plaintiffs sued their former counsel for legal malpractice asserting that the defendant had forced a settlement in a previous personal injury action. The court denied the defendant’s motion for dismissal and summary judgment articulating that a settlement in a previous case does not preclude a plaintiff from seeking the full damage amount that would have otherwise flowed from her attorney’s negligence. Latimore v. Bergman, 637 N.Y.S.2d 777 (2nd Dep’t 1996).
See also, Leone v. Silver & Silver, LLP., 880 N.Y.S.2d 676, (2nd Dep’t 2009), where the same Appellate Division ruled a client may sue her former attorney after settlement if the attorney compelled the settlement, and in doing so, failed to protect client interests within reasonable skill and knowledge and that breach of duty caused actual damages. Unless the former attorney-defendant can prove with evidence that the defendant had indeed protected client interests within reasonable skill and knowledge OR that the breath of duty did not cause actual damages, a legal malpractice suit after settlement will survive a motion to dismiss.
The growing popularity of the Internet as a means of communication has created a new way to spread potentially defamatory statements. Users may be held accountable in court for making defamatory remarks in these informal – but very public – forums, and blog posts. As long as statements are demonstrably false, someone other than the alleged defamer received the defamatory message, and the content was intended to injure or expose the victim to contempt or ridicule, Internet users can be liable for defamation.
So, what is defamatory, I recently saw an interesting article trying to explain when a New York Court might find a statement to be “opinion” (non actionable), as opposed to actionable words for defamation.
Defamation is generally defined as a false statement of fact that is harmful to some one’s reputation. Many people mistakenly believe that only factual utterances are actionable for defamation liability. Opinion, however, is actionable if it can be reasonably understood as declaring or implying actual facts that can be proven true or false. Courts examine the totality of the circumstances to distinguish factual statements from actual expressions of opinion.
As we all feel, some more than others, the economic recession has resulted in hundreds of thousands of suits filed by bill collectors in the New York courts. We always learned that a plaintiff (the collector) must prove the debt. Well, New York judges are here to tell these collectors that they better have a real and viable debt, which they can prove.
As recently reported by the NYTimes, a number of New York judges are speaking out against the increasingly sloppy litigation and collection practices of credit card debt collectors, who simply fail to investigate the claims, don’t have documentary proof of the debt, fail to properly serve the debtor, and make all sorts of errors when trying to collect often stale debt.
For example, one Manhattan appeals court recently threw out a credit card case because the debt collection company had apparently sued the wrong person; while a Nassau County District Court ordered a law firm to pay $14,800 in sanctions for ethical violations stemming from their improper debt collection efforts, which included ignoring court orders, making false statements, and harassing an alleged debtor even after the debt and case was dismissed. “Debt collectors seemed to think their lawsuits were taking place in a legal Land of Oz, where everyone was supposed to follow anti-consumer rules invented by some unseen debt-collection wizard.”
There are many attorneys in New York, but when it comes to buying your home, a commercial business, or other transaction involving New York State real estate, you really should hire an attorney that handles real estate transactions. Real estate transactions can get complex. Hiring a real estate attorney has the practical advantage of simplifying the process.
How do you identify a real estate lawyer you want to work with?
One way to find a real estate lawyer is through referrals from family or friends. Ask your family or friends whether the real estate attorney was attentive to their questions, available by telephone, took their calls personally. Personal attention and attentiveness deserves a premium when you are purchasing what will likely be your most expensive asset.
I just noticed this recent post in the NYTimes about more modest weekend homes and retreats in the Hudson Valley.
When purchasing a second home we recommend hiring a local real estate attorney to give you the “lay of the land,” to direct you as to issues that arise in “upstate” real estate transactions, and to help you avoid the pitfalls. In the past three years, as second home prices have fallen in the region, distressed real estate has become a haven for problems caused by neglect, economic desperation and ignorance. Leaking oil tanks, failed septics, contaminated water, even leaky roofs have caused problems.
Planning Boards play an important role in shaping how our community will look, feel, act and react. In a very real sense, the Planning Board is charged with overseeing the “orderly” development of real property, and in the process shaping the “public” face. Developers want the best return on their “investment,” homeowners want to protect what they know, and the Planning Board must implement the laws as enacted by the Village, Town, County and State, a difficult tight rope for a Board comprised of local volunteers and neighbors.
The process begins with an application to the Building Inspector. The homeowner (we’ll call her the “Applicant”) completes an application with the Building Inspector, who reviews the proposal (or “Site Plan”) to see if it meets various code requirements– is the lot large enough to support the planned structure, is drainage adequately directed to prevent run off, are the plans professionally drawn and contain all of the technical data required by New York State’s building code. The Building Inspector next refers the Applicant to the Planning Board with instructions to “post” notice of a “public hearing.” In Nyack, we meet the first Monday of every month to hear these applications.
The Planning Board receives the Site Plan and the Building Inspector’s opinion, and we review against our local Zoning Code and Comprehensive Master Plan. In Nyack, our Comprehensive Master Plan was adopted by the Village Board on January 11, 2007 (a process that took many years of hard work by various civic minded volunteers). Our Comprehensive Master Plan (available on line or at the Village Hall) sets the tone from its first sentence, “The Village of Nyack is a special place, proud of its historic, scenic and socially heterogeneous character– quite unlike the suburbs to the west.”
You are are sitting up late one night, thinking that your neigbor’s new fence is located on your property. You type in the search term fence and property into a search engine like Google or Yahoo! and 2.5 million returns hit you in 0.15 seconds. How do you narrow that search down to find information about the law in New York.
Well, there are various lawyer “Blawgs” that will give you an idea about the content. You can go to a place like Justia.com to find a listing of various Blawgs. That might get you to a real estate blog like this one. But it’s hard to find exactly the fact scenario you are looking for. Where else can you go?
New Yorkers are lucky to have a wonderful web-site that is accumulated by Cornell University. Searchers can find all sorts of helpful information on this site.
In this age of ultra-competitive, make a buck at any price advisers, we have lost our focus upon what a good “fiduciary” should be providing to their real estate, mortgage, estate, insurance and other types of recommendations. What is it that you should expect from your broker or salesman when they sell you that insurance policy, annuity, or mortgage?
Well, it depends upon the type of the relationship, but here is an interesting article that provides a “stop gap” or screening device for consumers to ask their money managers, their attorneys, their mortgage brokers, here in New York and all over the country.
The Bottom Line– you should expect that the person selling you products has your best interest in mind (not their profits).
New York Real Estate Lawyer Blog