Monthly Archives: January 2021

Life, Liberty and the Pursuit of Yoga: Fitness Studios Challenge NYC Shutdown

Posted on January 28, 2021 | Comments Off on Life, Liberty and the Pursuit of Yoga: Fitness Studios Challenge NYC Shutdown

This was originally posted on the SGR Blog.

Pandemic-related Emergency Executive Orders by the Governor of New York and the Mayor of New York City have had a severe and differential impact on the operation of fitness, yoga, pilates, and other group activity studios. Indoor classes in studios in the NYC metropolitan area were banned—while similar activities were permitted upstate. A recent case addressed the question: did the geographic divide raise constitutional issues?

Grasmere Fit, Inc. sought a preliminary injunction stopping New York City from enforcing, attempting to enforce, threatening to enforce, or otherwise requiring compliance with the continued New York City lockdowns and New York City shutdown of fitness, yoga, pilates, and other boutique studios.

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Posted in Litigation, New York Law, Real Estate

A Disguised Late Fee Is Nevertheless a Late Fee: Landlord Fails to Navigate Statutory Restrictions

Posted on January 25, 2021 | Comments Off on A Disguised Late Fee Is Nevertheless a Late Fee: Landlord Fails to Navigate Statutory Restrictions

This was originally posted on the SGR Blog.

Residential rent late fees and charges are unambiguously limited by statute in New York. A landlord’s effort to avoid the legal restrictions was the subject of a recent appeal in an action in which a tenant challenged an attempt to navigate around the law.

Douglas Ritter was the landlord and owner of several rental properties in Broome County, and Karina Beco and others were Ritter’s tenants. In June 2019, Ritter sent a notice to Beco providing that, as of August 1, 2019, the monthly rental rate would be increased to $1,000 per month unless she paid the rent by the first of each month, upon which she would be entitled to a rental “discount” equal to the difference between their original monthly rental rate and the new $1,000 monthly rental rate. Beco’s attorney sent Ritter a letter informing him that his notice of proposed rental increases and corresponding “discounts” constituted an illegal late fee in violation of Real Property Law § 238-a and requested that change be withdrawn. In reply, Ritter sent Beco an amended notice, slightly reducing the newly proposed monthly rental rate and further providing that she would be entitled to a $375 “discount” if the rent was paid, in full, by the seventeenth of each month. Beco’s attorney objected to the amended notice on the same ground.

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Posted in Landlord-Tenant, Litigation, Real Estate

COVID-19 Meets “Yellowstone” at a Restaurant on Avenue A: Was Pandemic a “Casualty” that Excused Payment of Rent?

Posted on January 21, 2021 | Comments Off on COVID-19 Meets “Yellowstone” at a Restaurant on Avenue A: Was Pandemic a “Casualty” that Excused Payment of Rent?

This was originally published on the SGR Blog.

Our Courts have recently issued several decisions addressing (and, for the most part, rejecting) arguments by commercial tenants that payment of rent was excused due to pandemic and Executive Order-related impossibility or frustration of performance. In a ruling released last week, the Court tackled the novel question of whether or not the pandemic constituted a “casualty” that excused the payment of rent.

188 Ave. A Take-Out Food Corp. signed a commercial lease with Lucky Jab Realty Corp. on May 1, 2017, to operate an indoor dining restaurant. On March 16, 2020, Governor Andrew Cuomo issued Executive Order 202.3 that suspended indoor dining within the State of New York until further notice to prevent the spread of the COVID-19 pandemic. Per the Executive Order, Food Corp. suspended indoor restaurant operations and did not use the premises for such purposes until November 2020.

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Posted in Landlord-Tenant, Litigation, Real Estate

Music and Passion Were Always in Fashion – At the Copa …Don’t Fall…

Posted on January 19, 2021 | Comments Off on Music and Passion Were Always in Fashion – At the Copa …Don’t Fall…

This was originally published on the SGR Blog.

The Copacabana nightclub, which opened in 1940 and recently closed due to the pandemic, was legendary for many things: Danny Thomas. Martin & Lewis. A New York Yankees brawl. And, as recent cases illustrate, despite the Copa’s physical demise, the legacy survives in the courtroom if not in a ballroom.

Kayla Pedraza alleged that, while a patron of Copacabana Nightclub, she slipped and fell due to “wetness and ice on the floor” and suffered a severe ankle fracture. The Copa moved for summary judgment dismissing the complaint arguing that Pedraza could not establish a prima facie claim of negligence because she could not identify the cause of her fall or demonstrate that the club had any notice of the alleged unobserved condition. Pedraza argued that the Copa had notice of the recurrent dangerous condition that they created.

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Posted in Litigation, New York Law, Personal Injury

Tenant Claims Habitability Breach Amounts to Harassment

Posted on January 14, 2021 | Comments Off on Tenant Claims Habitability Breach Amounts to Harassment

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

When landlords take tenants to court over nonpayment of rent, tenants often claim as a defense that the landlord breached the warranty of habitability. But, as a recent case illustrates, a tenant may preemptively claim such a breach before a landlord acts to evict—and argue not only that that the breach was aggravated by the pandemic, but that it amounted to harassment for which the tenant should be awarded a civil penalty.

In evaluating the merits of the breach of warranty claim, the court in this case considered the inconvenience to the tenant due to the pandemic as an aggravating factor. And then it conducted a detailed analysis in determining whether a civil penalty was in order.

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Posted in Landlord-Tenant, Litigation, New York Law, Real Estate

Co-op Board Learns That Emails Can Bite Back

Posted on January 11, 2021 | Comments Off on Co-op Board Learns That Emails Can Bite Back

Copyright by, and republished with permission of, Habitat Magazine.

The brawl begins. Back in 2017, the actors Justin Theroux and his then-wife Jennifer Aniston got approval from their Greenwich Village co-op board to combine their apartment with the newly acquired apartment next door, then embark on a $1 million renovation of the expanded space. But the downstairs neighbors, Norman and Barbara Rescinow, complained about excessive noise from the renovation work. A war of words erupted – including charges of harassment, voyeurism, and animal and spousal cruelty, plus a dispute over access to the shared roof deck. Eventually the brawl wound up in court, where a judge placed a restraining order on Norman Rescinow, forbidding him from trespassing on Theroux’s property or from using “abusive language” when addressing the co-op board or potential witnesses in the mushrooming litigation.

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Posted in Co-Ops, Litigation, New York Law, Real Estate

Hit by Falling Towel Dispenser – Res Ipsa Loquitur: “The Thing Speaks for Itself”

Posted on January 7, 2021 | Comments Off on Hit by Falling Towel Dispenser – Res Ipsa Loquitur: “The Thing Speaks for Itself”

This was originally published on the SGR Blog.

Res ipsa loquitur is the Latin phrase describing a legal doctrine that infers negligence from the very nature of an accident or injury in the absence of any behavior or activity by the aggrieved person.

In most negligence cases, the plaintiff must establish a duty of care, breach of that duty, causation, and injury. But under res ipsa loquitur, the first three elements are inferred from an injury that does not ordinarily occur without negligence. 

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Posted in Litigation, Litigation, New York Law, Personal Injury

Bad Faith in Rejecting Sale of Unit Leads to Damages: Board Breached Fiduciary Duty to Apartment Owner

Posted on January 4, 2021 | Comments Off on Bad Faith in Rejecting Sale of Unit Leads to Damages: Board Breached Fiduciary Duty to Apartment Owner

This was originally posted on the SGR Blog.

The Business Judgment Rule was put to the test in a recent case where Sharie Graham, the owner of a co-op apartment on the Upper East Side, charged the Board with bad faith in refusing to approve the sale of her unit to the Soffens, two physicians from New Jersey, for use as a pied a terre.

Graham sued her 420 East 72nd Street residential cooperative apartment building’s Board of Directors for refusing to approve proposed buyers of her unit. The main issue for trial was whether the Board acted in bad faith– because the proprietary lease for the coop provided that the Board could refuse to approve a sale for “any reason and no reason”. Both sides conceded, however, that the clause could not insulate the Board from decisions involving bad faith. After a trial, the Court found that Graham proved, by a preponderance of the evidence, that the Board acted in bad faith.

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Posted in Co-Ops, Litigation, New York Law, Real Estate