New York Real Estate Lawyer Blog

May 13, 2010

Internet Defamation in New York- Opinion or Actionable Defamation?

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.

May 11, 2010

Debtors are Fighting Back and NY Courts are Listening.

by Peter Klose

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.”

April 29, 2010

HIRING A REAL ESTATE ATTORNEY IN NEW YORK.

by Peter Klose

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.

April 21, 2010

What to do When Someone is Infringing upon Your Internet Domain.

by Peter Klose

So, you spend a lot of time blogging, or you have swell content on your web-site which someone has blatantly copied (hijacked). What do you do to protect your copyright or trademark?

The Problem

The drafters of the Copyright Act (1976)) never contemplated the ease and speed of copyright infringement made possible by technological advances which include the Internet which has billions of pages of content.

April 21, 2010

CREATING A CONSERVATION EASEMENT IN NEW YORK.

by Peter Klose

As our society and the pressures of urbanized living change the face of the Hudson Valley, many land owners are contemplating Conservation Easements to protect, preserve, or otherwise maintain local farmland.

Conservation easements are land preservation agreements (easements) where the landowner agrees to limit the use of her land for purposes of “conservation.” Voluntarily entered and legally binding, these easements often restrict commercial, real estate, and industrial development. Indeed, many communities across New York State have actually passed zoning designed to encourage the creation of conservation easements to ‘run with the land.’ These often complex agreements and statutes mean that the use “limitations” that an owner agrees to will be binding on future owners of the land.

In New York, there are several requirements for a land preservation agreement to qualify as a “conservation easement.” First, the agreement must be perpetual and permanent. Second, the land subject to the easement must be physically located in the state of New York. Third, the easement must be held by a conservation agency which may include any federal, state, or local government agency or non-profit land trust. Fourth, the easement must protect open space, biodiversity, or natural resources by restricting commercial, real estate, and/or industrial development. And lastly, the agreement must be filed with the State Department of Environmental Conservation. Since most “conservation agencies” are non-profit, the sale or gift of such conservation easements often is a charitable donation and potentially limits taxes.

April 16, 2010

Local Hudson Valley Lawyers Can Help Avoid the Pitfalls of a Weekend Retreat!

by Peter Klose

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.

March 13, 2010

What is a Planning Board in New York?

by Peter Klose

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.”

March 11, 2010

What is a Public Adjuster and Why are they Calling?

by Peter Klose

Fire quickly causes tragedy, but don’t let the aftermath cause further tragedy. All of us have been touched by the trauma and tragedy of a structure burning, all of our life long possessions up in smoke. If the house has a mortgage, chances are, there is insurance to protect those assets.

Unfortunately, the fire often causes insurance problems because homeowners don’t know or understand the type of insurance they have. Was it a replacement policy, are there limits to such replacement; what about the contents of the house? These are all questions that a homeowner has immediately.

Following the fire, the insurance company typically sends an independent company to investigate and to assess the damage to the structure and to the contents. There is another type of insurance adjuster that operates in a parallel insurance universe called “Public Adjusters.”

March 6, 2010

Searching for Information on New York State Law.

by Peter Klose

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.

February 22, 2010

What is a Fiduciary and What Should you Expect?

by Peter Klose

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).