Will the Court Intervene? “[When] Smoke Gets in Your Eyes”

This was originally posted on the SGR Blog.

Some “neighborly” legal disputes are like an Agatha Christie “whodunit”. A recent forensic “thriller” involved two East 83rd Street apartment tenants who had lived in the building for 30 years, a nosy tenant next door and a ubiquitous building super—in a jurisprudential search for the “smoking [one]”.

The landlord imposed a smoke-free environmental policy in March, in the midst of the Coronavirus pandemic, which forced many of the building’s tenants to be home 24/7. Signage in the lobby requested that all smoking be done outside and at least 15 feet away from the building.

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“Water Closet” Brawl Ends in a Legal Draw

This was originally published on the SGR Blog.

Every square inch of space allotted to an apartment in an Upper East Side high-rise residential cooperative has utility and value. And, as appeared in a recent case, when the area in dispute is nine square feet outside a hallway door, the legal claims and issues escalate disproportionately.

Donald Fellner is the owner of shares and holder of a proprietary lease in co-op apartment 12C at 40 East 88th Street.  The residential cooperative is 44 East 88 Owners, Inc. And Orsid Realty Corp is the  managing agent.

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What is a (Door) Man to Do? Level of Lobby Care Required After a Storm

This was originally posted on the SGR Blog.

When it rains it pours. And sometimes litigation en(sues).

Janice Kasni lived at 30 Lincoln Plaza located on 30 West 63rd Street. Shortly after midnight, Kasni returned from an evening out, when she slipped and fell on the floor of the lobby. It had rained for much of day before the accident and long brown rugs had been placed from the doors to the lobby to the elevator bank.

When Kasni entered the building, she stepped onto the rug in front of the door and then headed left towards a couch that was near the entrance—and stepped off the rug and slipped on the floor.

Kasni testified at her deposition that she had taken up to two steps when both feet went out from under her and she fell backwards, flat onto her back. Prior to stepping on to the floor, she saw “the marble floor, that’s all.” Kasni did not notice any water or wet spots. Only after coming in from the rain, falling and lying on the floor, did Kasni first notice water on the marble floor. The water she saw was clear and was like a small puddle. Kasni was unable able to provide dimensions of the puddle and did not know how long the puddle had been there.

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New York Court of Appeals (March/April 2020)

This was originally published on the SGR blog.

The middle of the 2019-2020 Term of the Court featured only a handful of dispositions on civil matters, but no landmark decisions. Two opinions by Judge Stein, relating to the General Business Law and the  arbitration process, do provide templates for  future GBL  claims and arbitration proceedings.

Plavin v. Group Health Inc.
March 24, 2020

Question: The United States Court of Appeals for the Third Circuit asked the Court of Appeals to decide whether Steven Plavin sufficiently alleged consumer-oriented conduct to assert claims under General Business Law §§ 349 and 350 for damages. An insurance company’s allegedly made materially misleading representations directly to the City of New York’s employees and retirees about the terms of its insurance plan to induce them to select its plan from among the varioous health insurance options made available to current and former City employees.

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What is a [Door]Man to do? Level of Inquiry Required When Tenant Brings a Guest

This was originally published on the SGR Blog.

Many luxury and other residential buildings in New York City feature doormen or other concierge services. Does the presence of such personnel create a duty to screen guests—and concomitant liability for the alleged failure to properly do so? A recent case addressed that question.

Zoe Denison sought damages for injuries sustained at the hands of Roxanne Woychowski, and the alleged negligence of the 300 East 57 Street, LLC, and Rudin Management Co. Inc. and others, that arose from a night on the town.

The court granted summary judgment and dismissed Denison’s claims against 300 East and Rudin. Denison asked the Court to reconsider the order.

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An Agreement to Agree is NOT Necessarily An Agreement to Agree

This was originally posted on the SGR Blog.

Juvenal Reis (tenant) and J.B. Kaufman Realty Co, LLC (landlord) signed a lease  in 2002 for real property in Long Island City. Over the years, Reis and Kaufman executed various letter agreements extending the terms of the original lease and providing for the lease of additional space within the  building.

In a document dated June 27, 2012, the parties “consolidate[d] all existing letter agreements to the same expiration date” of February 28, 2015. The 2012 letter agreement also stated that the terms of the lease were “extended to now terminate on Feb. 28, 2030,” with “terms to be determined at the expiration of this initial lease consolidation period.” The 2012 letter agreement further stated that any annual percentage increase in rent will not be less than five percent and will not exceed eight percent.

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If A Tree Falls…(Can I Sue?) Yes, Of Course…(But You May Not Win!)

This was originally published on the SGR Blog.

Rosemarie Russo and Joseph Ostrowsky sued their abutting neighbor, Kenneth Jay, in Small Claims court. The sought to recover for damage that they sustained after a branch from a tree, which was allegedly on Jay’s property, fell into their yard, damaging their fence. Ray counterclaimed to recover damages resulting from the Ostrowskys’ workers trespassing on his property.

At a nonjury trial, the Ostrowskys testified that, in 2016, debris from a tree on Jay’s property fell into their yard and damaged their pool fence. They had sent Jay a certified letter in 2016, informing him that he had several dead trees on his property, which represented a hazard to their land. Jay did not accept the letter. The Ostrowskys offered photographs taken in 2016 to support their position that the trees in Jay’s yard were in a deteriorated condition. Jay asserted that, in 2016, the debris from the tree fell as a result of an “act of God.” And that the Ostrowskys had not shown that a dangerous condition existed or that he had notice of such a condition.

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Trust But Verify: Failure to Memorialize Anticipated Extension of Time of the Essence Closing Date Leads to Loss of $937,500 Downpayment

This was originally posted on the SGR Blog.

Wishful thinking and expectations are not a legally cognizable and enforceable plan. The failure to document the adjournment of a time of the essence closing date recently cost the would be purchasers to lose a substantial million down payment.

Suncore Group SA, LLC sought to purchase real property in New York County from 1660 1st LLC. The purchase did not close on the date specified in the purchase agreement. 1660 took the position that the failure to close constituted a default by Suncore, thereby terminating the contract and entitling 1660 to retain Suncore’s down payment.

Suncore sought a declaratory judgment that 1660 was estopped from enforcing the default provision. And that Suncore was entitled to additional time in which to close on the purchase. 1660 counterclaimed, and sought a declaratory judgment that 1660 properly terminated the agreement, and that it was entitled to retain the downpayment (along with attorney fees and costs). 1660 moved for summary judgment on its counterclaims.

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“Barter Battle” Between Life Coach and Yoga Instructor Ends With Legal Takedown

This was originally published on the SGR Blog.

A life coach and a yoga instructor walk into a bar. Well, not really.

Linnea Wexler sued Jennifer Marvin in Small Claims for Court for breach of contract. Wexler appeared pro se and Marvin was represented by counsel. Both parties testified but neither side called any witnesses.

The parties entered into a Coaching Sessions Agreement. Wexler agreed to provide Marvin a minimum of 10 hours of life coaching techniques and counseling in exchange for 40 hours of pre- and post-natal yoga sessions. The Contract stated that Wexler was not a licensed medical doctor, psychologist, Master’s in Family Therapy professional, or a Master’s in Social Work professional.

Wexler testified that she was a Master Certified NLP Coach, a Master Certified Practitioner of Neuro-Linguistic Programming, a Master Certified Practitioner of Time Line Therapy, and a Master Certified Practitioner of Hypnotherapy. The Contract stated that “the services you receive are not licensed in this state, nor are they regulated by a governmental body.”

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New York Appeals Update (April 2020)

This originally appeared on the SGR Blog.

“Game Change”: Court Holds “Gig” Courier to be an Employee (Not an Independent Contractor) Entitled to Unemployment Compensation
Will Ruling Retroactively Apply?

In a landmark decision, Matter of Vega (Postmates Inc. Commissioner of Labor)[March26, 2020], the Court of Appeals addressed the question of whether or not a deliveryman—who was free to make his own hours, choose what assignments to take and was also available to work for others—was an employee or an independent contractor. The issue arose in the context of a claim by a courier for unemployment compensation.

Question: Was the decision of the Unemployment Insurance Appeals Board that a former Postmates, Inc. courier, and others similarly-situated, were employees for whom Postmates was required to make contributions to the unemployment insurance fund supported by substantial evidence.

Answer: Yes. There was record support for the Board’s finding that the couriers were employees.

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