Leaky Can of Insecticide Befouls NYC Apt.: Which of Several Parties Was Responsible? Under What Law?

This was originally published on the SGR Blog.

Much of civil litigation involves finger-pointing, blame-shifting, or culprit-finding—with the concomitant shoe-horning of a set of unique facts into the various cause of action templates. And, as a recent case involving an imploding can of insecticide illustrates, the Court may have to meticulously navigate both the facts and State (GOL) and Federal (FIFRA) statutes.

John Pankow and Kristine Pankow are apartment residents. Plant Shed Inc. sells a variety of plants, floral, botanical, and gardening products, including pesticides, insecticides, rodenticides, and disease control products for plants. Bonide Products, Inc. manufactures, designs, engineers, tests, distributes, markets, imports, and sells a variety of garden products, including Bonide Systems Insect Control.

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COVID-19 Meets Force Majeure at the Edison Ballroom: Was Equitable Relief Warranted to Postpone Birthday Party?

This was originally posted on the SGR Blog.

The law reports are replete with contract disputes arising out of the pandemic. But, as a recent case illustrates, a force majeure clause in an agreement may be conclusive.

Adam and Randi Sanders sued to recover money deposited for an event at defendant Edison Ballroom, LLC’s facility, which did not occur due to the COVID-19 pandemic.

The parties entered into an agreement dated May 25, 2018, for the Sanders’ use of the Edison Ballroom to host an event that was to take place on April 25, 2020, to coincide with their daughter’s age-related birthday.

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Does Gryffin belong to Shalloo or Zarrour? Court Decides Claims to Welsh Terrier Puppy

This was originally posted on the SGR Blog.

A dog may be wo/man’s best friend. But, when it comes to the law, a dog is a mere chattel or thing—possession of which is governed by the competing proofs in action for conversion.

Madison Shalloo sued Beleal Zarrour for the replevin of a dog on August 14, 2020. In her complaint, Shalloo alleged she was in a relationship with Zarrour. They shared an apartment in Long Island City from November 30, 2017, to January 10, 2020. In April 2018, they agreed to purchase a dog together. Shalloo located and was the contact person with the breeder. On July 2, 2018, they purchased a Welsh Terrier puppy named Gryffin Shalloo. And she reimbursed Zarrour for one-half of the cost of Gryffin.

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Yet Another Fight About Exclusive Coop Roof Rights: Battle on 93rd St. Over Deck Space Next to Greenhouses

This was originally posted on the SGR Blog.

Access to and use of the roof of a residential coop is a much sought, cherished, and protected amenity. As a recent case illustrates, a claim to “exclusive” enjoyment of space on a roof can result in complicated and contentious litigation.

Nina Neivens brought an action individually and as temporary administrator for the Estate of Mary Neivens, her late mother, against 24-26 E. 93 Apts. Corp., a residential coop. She sought declarations regarding her rights to exclusive use of the roof of the coop’s building as the proprietary lessee of apartments 10AB and 10CD.

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Court Orders Tenant to Wear Mask

Copyright by, and republished with permission of,  Apartment Law Insider

A tenant who flouts building rules and disregards the city’s mask mandate is likely to spark complaints from neighbors and staff members who are concerned about their health. The eviction moratorium doesn’t mean a landlord can’t take the matter to court. Consider the recent case of a Brooklyn landlord who sought injunctive relief and a temporary restraining order against a tenant based upon nuisance conduct that created health and safety risks affecting other occupants of the building.

What Happened

The landlord claimed that the tenant violated his lease and building rules because he: (1) refused to wear a mask over his nose and mouth or socially distance in common areas and the gym; (2) allowed his dog to run “off leash”; and (3) regularly caused marijuana smoke to emanate from his apartment. The landlord submitted copies of the lease agreements, multiple photos showing COVID-19-related signs posted throughout common areas, and affidavits from staff members and the tenant living in the apartment directly beneath the problem tenant.

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“Family Feud” is Not Just an Iconic Television Game Show: Fight Over Yaphank Burial Plot Implicates Genealogy, N-PCL and EPTL

This was originally posted on the SGR Blog.

Two brothers sued their grandfather’s “heir at law” for changing the inscription of the monument on a family plot (allegedly) without the authority to do so. The case was reminiscent of the Abbott & Costello comedy skit “Who’s on First.” Determination of the dispute took the Court to the intersection of genealogy, cemetery law, and the statute governing descent and distribution.

Robert and John Liere sued Alan E. Frick Memorials and Herman Liere for negligence, trespass, and conversion, based on their modification of the inscription on a monument for a family plot in the Yaphank Cemetery. Robert and John did not contest the accuracy of the modification; instead, they argued only that Herman Liere had no ownership interest in the plot or the monument and thus lacked the authority to cause the changes to be made. Memorials, Inc. is the entity that Herman hired to inscribe the modifications on the monument.

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Court Confronts Extremely Existential “Edible Balloon” Brawl: Was Culinary Creation Part of Agreement With Celebrity Chef?

This was originally posted on the SGR Blog.

It is not unusual for understandings to change or evolve in real-time after an agreement is made and before performance is completed. Sometimes the change is implemented in writing. And, as a recent case illustrates, where the verbal “amendment” is not memorialized, the Court (or a jury) may have to sort out the differing and competing recollections. 

 J Events Company hired chef Andrew Maturana and his catering company Rapt LLC for a large corporate party. Events were dissatisfied with Rapt’s work (and billing) on the party and sued for breach of contract, deceptive practices, and fraud. Manturana and Rapt counterclaimed for breach of contract, promissory estoppel, and defamation. 

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State/NYC Ordered Pandemic-Related Shutdown of Retail Store: Did Mandates Trigger Defense of Impossibility of Performance?

This was originally posted on the SGR Blog.

Commercial tenants sued by their landlords for non-payment of rent have resurrected a broad panoply of commercial contract “defenses” related to the pandemic-ordered shutdowns—such as casualty, frustration, and impossibility of performance. For the most part, the “defenses” failed. But, as a decision released late last week illustrates, the “defenses” are not always futile.

The Governor of New York (by Executive Order) and the New York City Council (by amendment to the Administrative Code) imposed a moratorium on commercial evictions and suits on personal guarantees where the non-payment of rent is caused by the COVID-19 pandemic. But the Orders and Code do not prohibit lawsuits against the tenant for rent.

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Business Judgment Rule Meets Unreasonably Withheld Consent: Did Co-op Board Have Basis to Deny Assignment of Shares?

This was originally posted on the SGR Blog.

It is axiomatic that, as night follows day, the Business Judgment Rules protects the Board of a residential coop from corporate and personal liability for good faith decisions made in the ordinary course of the coop’s affairs. But does it always? As a recent case illustrates, exoneration is not automatic where the proprietary lease expressly sets forth a different and higher standard.

Stuart B. Kotler, as Executor of the Estate of Gail Lowe Haymes, owned 510 shares 979 Corporation, a residential coop, allocated to apartment 2/3… Kotler wanted the co-op to transfer the shares and proprietary lease to the decedent’s daughter, Elizabeth Haymes Hempin. The co-op refused to approve the transfer. Kotler sued. The coop moved to dismiss.

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A Sidewalk Shed Meets the Pandemic on West 99th Street: Did Construction and Delay Constitute a Trespass?

This was originally posted on the SGR Blog.

Construction in New York City often leads to the long-term installation of façade scaffolding and sidewalk sheds that interfere with access to street-level commercial properties. Needless to say, as a recent case illustrates, scaffolding and a sidewalk shed are combustible ingredients for litigation, especially where the pandemic delays the completion of construction.

Steven and Shulie Kirschner are shareholders in a co-op located at 233 West 99th Street in Manhattan. They have a proprietary lease for the commercial space located on the ground floor of the co-op. The Kirschners claimed that the Board erected a sidewalk shed on August 31, 2019, in front of their space without their permission. They complained that the sidewalk shed continued to obstruct their business.

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