Monthly Archives: August 2021

Condo Owner Alleges Defamation/Interference with Sale: Did Managing Agent & Broker Cross the Line?

Posted on August 30, 2021 | Comments Off on Condo Owner Alleges Defamation/Interference with Sale: Did Managing Agent & Broker Cross the Line?

This was originally posted on the SGR Blog.

It is easy for a plaintiff to plead the elements of causes of action for defamation and tortious interference with economic advantage. But, as a recent case—involving a condo unit owner, the managing agent, and a real estate broker—demonstrates, it is far more difficult to assert and sustain a plausible claim that can survive a motion to dismiss.

Cheryl Keeling sued the property manager of her condominium and a real estate broker for defamation and tortious interference with economic advantage in what was, in essence, a dispute between Keeling, a unit owner, and the building as to the amount of common charges she owed. Keeling owns a unit at 3614 Johnson Avenue, Bronx, New York. Silvina Salvo also owns a unit in the building. Chintan Trivedi was a property manager for the condo. And Trivedi operated Remax/ITC Realty Company.

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Posted in Defamation, Litigation

Statement on Facebook Arguably May be Libelous: But Undeniably Defamatory Statement in Lawsuit is Absolutely Privileged

Posted on August 26, 2021 | Comments Off on Statement on Facebook Arguably May be Libelous: But Undeniably Defamatory Statement in Lawsuit is Absolutely Privileged

This was originally posted on the SGR Blog.

“I am going to sue you for libel!!! A not uncommon threat in our multi-faceted media and digitalized-legal landscape. Ironically, as a recent case illustrates, there may be greater defenses to defamatory statements made in Court than to those made on Facebook.

NTC Collision Services, Inc. and Edward Baecher sued Michael E. Archer alleging that a statement made on Facebook constituted libel per se and/or that the statement was false, defamatory, and constituted libel innuendo. Archer moved to dismiss the complaint on the ground, among others, that the statements were based upon pure opinion and were not actionable.

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Posted in Defamation, Litigation

Condo Unit Owner Inconvenienced by Defective Exhaust Fan: Was the Board Entitled to Foreclose the Common Charge Lien?

Posted on August 23, 2021 | Comments Off on Condo Unit Owner Inconvenienced by Defective Exhaust Fan: Was the Board Entitled to Foreclose the Common Charge Lien?

This was originally posted on the SGR Blog.

Condo unit owners often feel aggrieved by every day “housekeeping” type problems—and withhold payment of their common charges until the matter is resolved. But the Board may file a common charge lien as a result of the non-payment. Was the “inconvenience” of a broken exhaust fan sufficient to stop foreclosure of the lien?

Bristol Plaza is a 50-story “white glove” condominium at 200/210 East 65th Street. Angus McCallum is the fee owner of apartment 21K in the 308-unit building.

The Board sued McCallum to foreclose on a $10,202.72 lien for unpaid make common charges, assessments and other charges assessed against the apartment. The Board moved for summary judgment alleging that no material issues of fact existed as to whether the Board was entitled to foreclose on the lien.

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Posted in Condominiums, Real Estate

Legal Loggerheads at Horseheads in Chemung County: Constructive Trust and Unjust Enrichment Claimed

Posted on August 19, 2021 | Comments Off on Legal Loggerheads at Horseheads in Chemung County: Constructive Trust and Unjust Enrichment Claimed

This was originally posted on the SGR Blog.

Failed romantic relationships, in the course of which the parties purchased and sold real property and other assets, are a constant source of post-breakup litigation asserting claims for “constructive trust” and/or “unjust enrichment”. But, as a recent case illustrates, even where based on the same “facts”, the two distinguishable causes of action may lead to different outcomes.

Jim Clark and Michele Locey were involved in a long-term intimate relationship. Clark was in the business of building residential homes and Locey was a real estate broker. Together, they engaged in a business venture in which they would buy parcels of land, build residential homes, and sell for a profit. In 2005, they bought a lot in Florida as tenants in common for their personal use and as an investment and built a house on the property. Clark ultimately contributed approximately $103,000 to that property and Locey invested approximately $400,000. In 2009, Clark deeded his interest in the Florida property to Locey’s living trust and Clark was discharged from the mortgage. In early 2012, they decided to sell the Florida property. Clark then again deeded his interest in the Florida property to Locey’s living trust upon the request of the title company.

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

Raging Roadway Rumble at Big Moose Lake in Hamilton County

Posted on August 16, 2021 | Comments Off on Raging Roadway Rumble at Big Moose Lake in Hamilton County

This was originally published on the SGR Blog.

Did Scholets Improperly Block Sardinos Sole Means of Access?

Lake-adjacent upstate properties bring to mind the pastoral, peaceful, and sublime. But, as a recent case illustrates, rural neighbors can be as contentious and litigious about their rights to access their properties as their downstate counterparts can be with respect to mid-town high-rise roof access rights.

The families of Kathleen Sardino and Arthur Scholet own adjacent parcels of property along the south shore of Big Moose Lake in the Town of Long Lake, Hamilton County. The Sardinos owned or occupied their respective properties (the Sardino Property and the Williamson Property) since the 1950s. They access their properties over a roadway referred to as the East Bay Extension, which extends in sequence from Judson Road across the property of Arthur Scholet and Diane Scholet, the property of Cosanne Schneberger and Scott Schneberger, the Williamson Property, and ending at the Sardino Property.

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Posted in Easements, New York Law, Real Estate

Did Dog Already Have Its “One Bite”: And Thus Was Vicious Propensity Known?

Posted on August 12, 2021 | Comments Off on Did Dog Already Have Its “One Bite”: And Thus Was Vicious Propensity Known?

This was originally posted on the SGR Blog.

Dog bite case decisions regularly and routinely address the legal basis of liability: did (or did not) the owner know of the canine’s “vicious propensity”. But that is where the similarity begins and ends. As a recent case illustrates, each case is “fact-specific” and requires an examination of the dog’s “propensity” pedigree.

Mindy Gordon was the owner of a dog named Mystery. On September 30, 2018, Amisha Mulji was walking her dog named CJ around 8:45 in the evening. Mystery was also out and being handled by Melissa Torres. Mystery was leashed but was not muzzled. Mystery then attacked, scratching Mulji and biting CJ. Eventually, CJ died from its injuries. As a result, the New York City Department of Health entered into a settlement with Gordon setting forth the care and responsibilities of Mystery. The settlement stated “Mystery was involved in both the foregoing incident and a prior incident on December 11, 2015, in which Mystery attacked and caused physical injuries to persons and killed another dog.”

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Posted in Animals, Litigation, New York Law

Assignment of Mortgage Condition Precedent to Closing of Condo Unit Sale: Did Buyer Have Right to Cancel When Lender Failed to Agree to Assignment?

Posted on August 9, 2021 | Comments Off on Assignment of Mortgage Condition Precedent to Closing of Condo Unit Sale: Did Buyer Have Right to Cancel When Lender Failed to Agree to Assignment?

This was originally posted on the SGR Blog.

Contracts for the sale of real property usually contain so-called “conditions precedent” to closing. Contracts sometimes contain, as such a condition, a lender’s consent to the assignment of an existing mortgage on the premises. And, as a recent case illustrates, the failure of that condition raises a broad panoply of legal issues, in general, and contract-specific disputes, in particular.

Prosperous View LLC agreed to purchase a condo unit at 170 Mercer Street in Manhattan from 170 Mercer LLC for $6.7 million and paid the down payment of $350,000 (to be held in escrow). Prosperous contended that the sale was contingent on Prosperous being assigned an existing mortgage on the property. It argued that it complied with its obligation to apply for the mortgagee’s consent to assume the mortgage. And alleged that the mortgagee began demanding onerous provisions in order for the assumption of the mortgage to be finalized, including an additional security payment of $1 million to be placed on deposit for the life of the loan. Prosperous contended that Mercer refused to pay the additional cost of complying with that condition.

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Posted in Litigation, Mortgages, New York Law, Real Estate

Kayaking Guest Drowns Near Hadley Dam: Was VBRO Host Liable to Estate?

Posted on August 5, 2021 | Comments Off on Kayaking Guest Drowns Near Hadley Dam: Was VBRO Host Liable to Estate?

This was originally posted on the SGR Blog.

Timothy Tang, as Administrator of the estate of Jonathan Tang, sued Jevon Damadian for damages after his brother’s death while, as a paying guest, using Damadian’s kayak on nearby water. Tang asserted causes of action for negligence, violation of the Navigation Law, and wrongful death. Did Timothy assert legally cognizable and viable claims against Damadian?

Damadian owned a home in Hadley, New York, on 112 acres and across the road from a lake called Stewart’s Reservoir. The property itself had no direct lake access. Damadian rented the home to Tyler Vestel and several of Vestel’s friends for the weekend of September 20, 2014. He advertised the property for rent on VRBO. The listing described the property as a 7 Bedroom, 3 ½ Bathroom home. And also stated that Stewart Reservoir was across the street from the property and that a canoe and two kayaks were available for use. Stewart Reservoir is owned by Niagara Mohawk, and there was a dam on both ends of the lake. Damadian claimed to have been out on the reservoir hundreds of times and had boated around the entire body of water.

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

Family Cash Pooled to Build $23M Mixed-Use Condominium in Flushing: Court Determines Interests of Parties in Absence of Definitive Paperwork

Posted on August 2, 2021 | Comments Off on Family Cash Pooled to Build $23M Mixed-Use Condominium in Flushing: Court Determines Interests of Parties in Absence of Definitive Paperwork

This was originally posted on the SGR Blog.

New York real property development disputes often require the Court to navigate hundreds of pages of lengthy and dense contracts, agreements, or understandings that are the source of contention despite having been drafted by experienced attorneys and signed by sophisticated investors. But, as a recent case illustrates, matters become even more contentious where family members informally invest large sums of money with little concomitant paperwork.

Chun You Cheng (“Cheng”) and Chiu Ming Yan Cheng (“Chiu-Ming”) brought a derivative action against family members and other entities (“defendants”) seeking a judgment declaring the ownership interests of the investors (or their successors or assigns) in Garden View LTD (“GVL”). The Court held a 10-day “bench” (non-jury) trial over several months.

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Posted in Condominiums, Litigation, New York Law, Real Estate