New York Real Estate Lawyer Blog

May 31, 2013

ilence is Golden for Sellers in New York– the Property Condition Disclosure Statement (PCDS)

Who knows the most about your house? Its history, its features, its quirks, its problems? The answer is you, the seller. As someone about to sell a New York home, consult your lawyer (not your realtor) about the Property Disclosure Statement. Under New York State Law, you have a decision to make– complete a 35 question exam about your house, or give a $500 credit for not disclosing to buyers.

This disclosure or admission is part of New York’s Property Condition Disclosure Act, which became law in 2002. The law applies to all land that is improved by one to four family dwellings that are used or intended to be used as residences. Condominiums, cooperatives, vacant land to be used for construction, and certain other forms of ownership are exempt from disclosure.

It sounds simple, but the law demands much more than saying, “My home is in excellent condition!” or “My home is great!” In fact, the Act requires sellers to complete a six-page form that includes questions ranging from the age of your house to whether your property ever contained a fuel storage tank to whether you have ever tested the water quality and flow.

April 1, 2013

NYS STAR Exemption– Calling ALL homeowners in New York

by Peter Klose

After various district attorneys around the state found that homeowners were cheating the system, the New York State Legislature is poised to make all home owners RE-REGISTER for the STAR exemption which can result in a reduction of school taxes. According to recent reports, homeowners will have a year to re-apply for the program, with a deadline of April 1, 2014.

Under the STAR program, New York homeowners who make less than $500,000 and live in their property are eligible, making the the first $30,000 of the full value of a home from school taxes. New Yorkers 65 and older may qualify for the enhanced STAR program. That exempts the first $63,300 of the full value of a home.

Homeowners can apply for the STAR exemption on the website of the state Taxation and Finance Department.

February 11, 2013

CHOCOLATE KISS COLORED CARPET…. BEAUTIFUL? YUMMY? or INFRINGING?

by Peter Klose

Shaw Industries Group, a leading carpet manufacturer recently sued The Hershey Company in Federal Court in Georgia for a declaratory judgment that its Chocolate Kiss colored carpet did not infringe Hershey’s CHOCOLATE KISS trademark.

According to the complaint, Shaw has been using CHOCOLATE KISS as a color in connection with its carpets since 1993 and has used it in connection with 200 carpet styles since that time. Shaw received a cease and desist letter from Hershey’s in December of 2012 which claimed that the use of the CHOCOLATE KISS mark illegally diluted and infringed its trademark. Despite its almost 20 years of use of the Chocolate Kiss color name, Shaw claimed that this December letter was the first time that it was notified that Hershey’s objected to the use. In its response to Hershey’s cease and desist letter, Shaw noted that it was discontinuing use of the CHOCOLATE KISS colored carpets in June of 2013.

Apparently dissatisfied with Shaw’s response to its cease and desist letter, Hershey’s sent a responsive letter demanding that Shaw “immediately” discontinue the carpet. Shaw responded by commencing the lawsuit. Given the planned phaseout of the Chocolate Kiss colored carpet, it is doubtful that this case will ever go to trial, however, it presents an interesting issue of whether products named after popular goods and services do infringe or dilute the trademarks in those goods. In light of Shaw’s long use of this carpet color, another interesting issue would be whether the defense of laches would be sustained by the court. Laches is a defense to certain actions based upon the right holder failing object or do something to curtail the illegal use.

November 18, 2012

Think Twice Before Posting an Online Review.

by Peter Klose

It seems to be getting a little more risky to post negative online reviews. A Virginia Court recently ordered that certain negative online reviews of a home improvement contractor be removed from Yelp.com, pending a trial for defamation against the reviewer.

The reviewer, apparently unsatisfied with the work performed by the contractor at her home, posted negative comments on the websites of Yelp and Angie’s List, alleging that the contractor caused damage to her home and that jewelry had gone missing after the contractor performed work at her home. A civil suit is currently pending against the reviewer who posted the negative comments seeking $750,000 in damages for defamation of the contractor.

While this isn’t the first defamation case arising from a negative online review, these lawsuits are fairly uncommon. Although the Communications Decency Act of 1996 protects websites like Yelp and Angie’s List from lawsuits relating to negative reviews posted by their users, the individuals posting such reviews are not immune from liability. In New York, like most other states, a claim for defamation arises when a person makes a false statement resulting in harm to another person’s reputation. Although there are a number of defenses that can prevent a plaintiff from succeeding in recovering damages on a defamation claim, proving that the statement is true is always a defense to such a claim.

October 14, 2012

What to do with a Lost Original Will in New York.

by Peter Klose

For most things in life the original is better than its copy. In the context of wills and estate probate, the original is generally required. So, when may the heirs offer a copy of someone’s will to probate in New York?

In New York, a copy of the orignal will may be offered to probate if the administrator or executor can establish that: (1) the will was not revoked; (2) execution of the will was proved in the manner required for the probate of an original will; >and (3) all provisions of the will are clearly and distinctly proven by each of at least two credible witnesses or by a copy of the will proved to be true and complete. See New York Surrogate Court Practice Act § 1407.

Surrogate courts are not going to absolutely accept a copy for probate without strong proof of each of the foregoing elements because the law generally presumes that if there was no original, it was revoked by the person who died. That is, a will that is “shown to have existed,” and was in the testator’s possession at the time of their death, that will is presumed destroyed by the testator and, therefore, revoked. See In Re Evans, 264 A.D.2d 484 (2d Dep’t 1999). By introduction of the statute, the presumption may be “rebutted,” by showing all the three elements. Where the Testator had the last will and testament in her possession at death, the law takes extra steps to protect the presumption that the dead person did NOT intentionally revoke the will. Afterall, the testator cannot explain their desires.

September 25, 2012

The new leader of Legal Malpractice Claims– HIre the Right Real Estate Lawyer.

by Peter Klose

The American Bar Association just released the latest survey of legal malpractice claims showing some interesting results. For the first time, real estate claims represented the greatest number of claims (20.33%), followed by plaintiffs’ personal injury (15.59%), family law (12.14%), estates, trust and probate (10.67%), and collection and bankruptcy (9.2%). While there are some caveats to the survey, – for example, the survey did not differentiate disciplinary proceedings from actual malpractice claims – the results may provide an illustration of trends in legal practice.

The study revealed that the number of claims payments exceeding $2 million has declined. It is not clear whether this may have been caused by larger firms underreporting larger dollar claims or increased reporting by all insured groups. However, it may show a general trend toward settlement of malpractice claims or juries’ unwillingness to award large payouts at trial.

The survey also showed that although substantive errors still generate the largest portion of claims at 45.07%, the share of claims relating to administrative errors is 30.13% – an all time high. In addition, the number of claims arising out of alleged intentional wrongs has decreased to 10.19% from 13.53% in 2007 – a good sign that the legal profession is evolving in a positive way.

September 7, 2012

Do You Have the Right Amount of Insurance– Think About it when you Buy a House in New York?

by Peter Klose

It can be difficult to strike a balance in finding adequate insurance coverage, while avoiding unnecessary coverage or being underinsured.

While states generally require a minimum amount of auto insurance coverage, and mortgage lenders also generally require you to maintain homeowner’s insurance for at least the value of the mortgage, these amounts may not represent the optimum amount of insurance for your circumstances. For example, in New York, motorists are required to carry $25,000 in liability insurance for bodily injury to a single person, $50,000 for bodily injury to all persons, and $10,000 for property damage in any accident. Minimum “no-fault” coverage of $50,000 is also required. However, given the price of auto repairs and the price of a replacement car if a car is totaled in an accident, damages could far exceed the $10,000 minimum. If you only carry the minimum amount of insurance, you will be personally liable for any property damage in excess of $10,000.

In addition, insurance policies, whether they are auto, homeowner’s, or life insurance, contain a seemingly endless list of exclusions from coverage – it can be hard to determine exactly what is covered. However, these exclusions and limits are very important in protecting your hard earned nest egg in the event of an accident or other unforeseeable event.

August 18, 2012

How Much will that Building Permit Cost? It depends …

by Peter Klose

Before you start knocking down walls and get knee deep in home improvements, make sure you have all of the required building permits. Obtaining a building permit involves completing an application with plans for the improvements, and paying a fee.

Even seemingly small home improvement projects may require a building permit. For example, in Nyack, like many other towns, installing a wood burning stove or fireplace would require a building permit, and failing to get the proper permit can result in a fine of up to $500 or 30 days in jail, or both. Also, a “Stop Order” can be issued by the Building Inspector if he or she has reasonable grounds to believe that the proper building permit was not obtained or the work is not being done in accordance with the building permit issued.

Permit fees are generally based on the cost of construction, and bills and invoices are normally required with the application to substantiate the stated cost of construction. This serves to prevent fraud and discourage homeowners from understating the cost of construction to save some money on the permitting fees. However, building permit fees can vary widely throughout New York, with little rhyme or reason.

August 10, 2012

What Effect Does Your Landlord’s Housing Violation Have on Your Duty to Pay Rent?

by Peter Klose

So your landlord just got slapped with a housing violation – what does that mean for you as a tenant? Can you stop paying your rent altogether? If you live in New York, not so fast.

Although your duty as a tenant to pay rent is dependent on the landlord’s “satisfactory maintenance of the premises in habitable condition,” a housing violation on its own does not relieve you of your obligation to pay rent. Park West Management Corp. v. Mitchell, 47 N.Y.2d 316 (1979). The key factor is whether the violation threatens the health and safety of the tenant thereby breaching the landlord’s warranty of habitability. Park West, supra; New York Real Property Law, § 235-b. Therefore, a housing violation is merely the “starting point” in such a determination, and it is possible that the finding of a violation does not have an impact on habitability. Note, however, that the landlord’s warranty of habitability cannot be waived. Real Property Law, § 235-b-2.

If a breach of the landlord’s warranty of habitability is found, damages are measured by the difference between the fair market value of the premises in their habitable condition (as measured by the rent set forth in the lease), and the value of the premises during the period of the breach. Park West, supra. An award of damages to a tenant can be made through a lawsuit by the tenant to recover lease payments from the landlord, or in defense to an action by the landlord for non-payment of rent. Park West, supra.

August 9, 2012

Punitive Damages: A New Risk in Legal Malpractice in New York?

by Peter Klose

A Florida Court recently affirmed a significant award of punitive damages against a law firm in a legal malpractice case, raising the question: could this happen in New York? See Young v. Becker & Poliakoff, P.A., No. 4D09-4869 (Fla. 4th DCA May 23, 2012). In the Young case, the plaintiff brought a legal malpractice action against a law firm that handled her federal employment discrimination lawsuit. An associate of the law firm failed to attach the correct EEOC right-to-sue letter to the Complaint, and the plaintiff’s case was dismissed. The plaintiff successfully alleged that the law firm intentionally delayed telling her about the dismissal of her case in an effort to settle a related case in which they would receive over $2.9 million in fees. The jury awarded the plaintiff $394,000 in compensatory damages, including $144,000 in past lost wages and $250,000 in damages for “pain and suffering, mental anguish, or loss of dignity,” and $4.5 million in punitive damages, which was reduced by the trial court to $2 million. The Court of Appeals upheld this award finding that “the punitive damages in this case were properly assessed to further the State’s legitimate interests in punishing reprehensible conduct and deterring its repetition.” Young, supra.

In New York, a Plaintiff in a legal malpractice action may recover “actual and ascertainable damages” that were proximately caused by a defendant’s negligence. M & R Ginsburg, LLC v. Segal, Goldman, Mazzotta & Sigel, P.C., 90 A.D.3d 1208 (3d Dep’t 2011). Unlike the Young case in Florida, New York courts have consistently rejected awards for emotional distress in legal malpractice actions. Epifano v. Schwartz, 279 A.D.2d 501 (2d Dep’t 2001); Dirito v. Stanley, 203 A.D.2d 903 (4th Dep’t 1994); Andrewski v. Devine, 280 A.D.2d 992 (4th Dep’t 2001); Kaiser v. Van Houten, 12 A.D.3d 1012 (3d Dep’t 2004).

Moreover, New York’s First Department (which handles New York City) has rejected a punitive damages award where plaintiff failed to establish that defendant’s conduct “was so outrageous as to evince a high degree of moral turpitude and showing such wanton dishonesty as to imply a criminal indifference to civil obligations.” Zarin v. Reid & Priest, 184 A.D.2d 385 (1992). However, the court’s limited basis for rejecting a punitive damages claim in such a legal malpractice case seems to leave the door open for an award of punitive damages under the right facts – a scary thought for legal practitioners, particularly in light of the exclusion for punitive damages under most professional liability policies.