New York Real Estate Lawyer Blog

November 1, 2010

New York Legislature Proactively Trying to Level the Playing Field in Residential Foreclosures.

Attorneys in New York are keenly aware of the new representations, but do consumers know how seriously the New York State Legislature is taking the mortgage foreclosure crisis?

The Office of Court Administration sets forth the Proposed Language and Provides consumers with the following warning:

N.B.: During and after August 2010, numerous and widespread insufficiencies in foreclosure filings in various courts around the nation were reported by major mortgage lenders and other authorities. These insufficiencies include: failure of plaintiffs and their counsel to review documents and files to establish standing and other foreclosure requisites; filing of notarized affidavits which falsely attest to such review and to other critical facts in the foreclosure process; and “robosignature” of documents by parties and counsel. The wrongful filing and prosecution of foreclosure proceedings which are discovered to suffer from these defects may be cause for disciplinary and other sanctions upon participating counsel.

November 1, 2010

Attorneys Fees to Tenants in Landlord Tenant Disputes in New York.

by Peter Klose

Did you know that if a landlord includes a provision in the lease that awards fees to the landlord in a summary eviction proceeding, the tenant may also be entitled (as a matter of statutory law) to seek attorney’s fees?

Real Property Law § 234 provides:

Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys’ fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease … there shall be implied in such lease a covenant by the landlord to pay the tenant the reasonable attorneys’ fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease.

September 24, 2010

More on the Power of Attorneys in New York.

by Peter Klose

As reported last year around this time, New York State revised its Power of Attorney Laws.

A Power of Attorney is a very powerful legal document which grants legal authority or “power” to another person to act on your behalf in a legal or business matter. The person authorizing an individual with power of attorney is known as the principal. The person being equipped with the power is known as the agent.

Retroactive to September 1st, 2009, the New York legislature has amended the law and the appropriate forms to address several concerns raised by various attorneys and trade associations. These revisions relax the 2009 law, including:

September 24, 2010

More on the tony New York Bed Bugs-.

by Peter Klose

As reported in past entries on this Blog, bedbugs complaints and media reports of serious infestations in hotels, offices, and residential buildings are on the rise in New York City. As a result, bedbug disclosure is now required.

In a nutshell, when a renter and landlord negotiate a lease in New York City, both the tenant and the landlord must sign a disclosure listing the prior history of bedbug infestations reported in either the apartment or building during the preceding year. As with any law, there is an adjustment period. Before sighing with relief, landlords are worried that these disclosure forms will increase the length of time empty units remain vacant. Accordingly, as with any new law, changes may be in the horizon as New York City landlords lobby to have the disclosure modified or eradicated (like the bugs themselves). For example, they argue that the form is too broad because it makes no distinction between serious infestations and minor ones. Really– do you care?

The Bottom Line– as renters struggle to stay “infestation free,” landlords struggle to keep ahead of the game, proving profitable for exterminators.

August 24, 2010

Small Business and Intellectual Property-Copyrights and Trademarks in New York.

by Peter Klose

Increasingly, small businesses use the Internet to sell, to launch, to inform, to market, to complain, . . . . [to do just about anything]. There are so many rules, regulations, statutes, concerns, and other worries, that it is impossible to address them all. Many arise without expectation. That said, here are some “basics” about copyright.

Intellectual property refers to the set of rights an owner has to creations of the mind. Generally, a copyright is a set of exclusive rights granted to the author – or owner – of an original work. Original works may include literary, dramatic, musical, artistic, and certain other intellectual works. Any unauthorized use of a copyrighted work is an infringement of a copyright holder’s exclusive rights to control who can reproduce, distribute, and display his or her works.

There are exceptions to the general rule (aren’t there always). Fair use allows the use of copyrighted materials for purposes of criticism, comment, teaching, scholarship, or research to serve as a balance between protecting intellectual property rights and the free exchange of information and opinion.

July 7, 2010

Chiming Church Bells and Blaring Fire Horns a Nuisance in New York?

by Peter Klose

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)

July 7, 2010

Illegal Removal of Trees in New York.

by Peter Klose

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.

June 21, 2010

Attorney Ethics May Result in Attorney Liability to Clients and Third Parties in New York.

by Peter Klose

As much as the law changes, it stays the same. Oliver Wendell Holmes, an original legal theorist, revolutionized the understanding of law when he reconceived common law as a theory of social inquiry. Arguing that the law was, in fact, a social reconstruction of ever-changing historical contexts, we are more aware of the interlinked effect of evolution and revolution on legal developments. Whereas in the old days, quill and ink were novel, today, intangible computer files are subject to conversion analysis and e-mails are increasingly accepted in contract and communications law.

One statute, however, has outlasted fleeting technologies and changing socioeconomic conditions through resurrection. A recent decision by the Court of Appeals [Shmueli v. NRT N.Y. Inc., 68 AD3d 479 (2009)] has breathed new life into New York State legal malpractice law and draws from a law which is more than 700 years old. A near facsimile translation of the oldest statute in Ango-American jurisprudence, Judiciary Law 487, prohibits New York attorneys from engaging in practices that deceives any party or any court in any pending proceeding. The statute guarantees that lawyers remain ethically conscious while performing their professional responsibilities and reinforces the personal accountability for their actions both inside and outside the courtroom. While time will tell, the New York State Judiciary Law 487 is designed to deter abusive litigation tactics and misuse of client funds in connection with litigation with the threat of criminal misdemeanor and potential treble (read triple) damages to the injured party in a civil action. Whereas a legal malpractice claim may be based upon negligence, a claim under Judiciary Law 487 must plead that a defendant had an intent to deceive.

Furthermore, the Third Dep’t ruled in Amalfitano v. Rosenberg, 12 NY3d (2009), that treble damages may be sought whether or not a court believes there was, in fact, a material misrepresentation of fact because the costs of plaintiff’s legal representation may be a proximate result of that material misrepresentation. That is, in the absence of a material misrepresentation of fact, the court reasons that no claim nor legal expenses would have resulted. The ruling in Amalifitano eliminates monetary concerns that may have deterred potential opposing parties and as a consequence, there will likely be a considerable increase in claims under Judiciary Law 487.

June 7, 2010

Does Settlement Bar Legal Malpractice in New York?

by Peter Klose

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.

May 13, 2010

Internet Defamation in New York- Opinion or Actionable Defamation?

by Peter Klose

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.