Monthly Archives: April 2020

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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