Monthly Archives: September 2021

Crossbow Seized by Dewpew PD: Was Weapon Seizable “Firearm”?

Posted on September 30, 2021 | Comments Off on Crossbow Seized by Dewpew PD: Was Weapon Seizable “Firearm”?

This was originally published on the SGR Blog.

The range of legal issues that a Court may be called upon to adjudicate is beyond generic or simple description. As a recent case in which the police seized a crossbow illustrates, the answer to a superficially easy question may be far more complicated.

The Village of Depew Police Department filed this petition pursuant to what is commonly known as the “Red Flag” law, seeking an Extreme Risk Protection Order (a so-called “ERPO”) to retain certain weapons seized from the home of Jeffrey Lloyd. After responding to a 911 call from his house, the Police eventually sent Lloyd to the Erie County Medical Center for examination under the authority of the Mental Hygiene Law. He had since returned home.

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Posted in Litigation, New York Law

Schiele Portrait of Wife Title Dispute Meets the Doctrine of “Tax Estoppel”

Posted on September 27, 2021 | Comments Off on Schiele Portrait of Wife Title Dispute Meets the Doctrine of “Tax Estoppel”

This was originally posted on the SGR Blog.

Was New York Rule of Evidence Dispositive of Ownership of Austrian Painting?

Our news media regularly report on disputed claims to artwork taken during World War II. But, as a recent case illustrates, the passage of time and the crossing of national borders implicate many procedural and evidentiary rules that are unrelated to a particular painting’s provenance or country of origin.

In 1917, Austrian artist Egon Schiele made a portrait of his wife Edith. In 1964, the artwork was bought by art collector Robert Lehman, Sr. from an exhibition at an art gallery in London, England. And, later that year, Lehman, Sr. gifted the artwork to his son, Robert Owen Robin Lehman. In 2016, Robin gifted the artwork to the Robert Owen Lehman Fund, Inc., his eponymous foundation. After the Fund consigned the artwork to Christie’s for auction, two groups asserted competing claims of ownership of the artwork, alleging that the artwork left the possession of its rightful owner during the Holocaust. Israelitische Kultusgemeinde Wien represented the Susan Zirkl Memorial Foundation Trust, which claimed ownership of the artwork as an heir of Karl Maylander. Robert Rieger Trust and Michael Bar claimed ownership as heirs of Heinrich Rieger.

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Posted in Evidence, Litigation, New York Law

All is Not Peaceful on Willow Lane on Shelter Island: Neighbors Litigate Scope of 1959 Right of Way

Posted on September 23, 2021 | Comments Off on All is Not Peaceful on Willow Lane on Shelter Island: Neighbors Litigate Scope of 1959 Right of Way

This was originally published on the SGR Blog.

Shelter Island (2010 pop. 2,392), a Town on the East End of Long Island, separated from the rest of Suffolk County by a body of water– and accessible only by ferry from Greenport (to the north) and North Haven (to the south)– is known for its bed and breakfast and boutique hotel charm and culture. But, as a recent case illustrates, the full-time residents can be as litigious as the mainlanders who visit the island.

Sharon and Brenda Grosbard and Abbey on Willow Lane, LLC own adjoining properties that were once part of a larger common parcel in Shelter Island. Abbey’s property borders the Grosbard’s property on the north and also borders a portion of it on the west. The Grosbard’s property is burdened by an express easement that benefits Abbey’s property. The easement was granted as part of a 1959 property subdivision dividing the contiguous properties. The undivided property had benefitted from an easement to the south (the so-called Willow Lane connector easement), which extended over two other properties to connect to another easement over a private road known as Willow Lane, which ultimately connected to a public roadway.

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

SGR Litigator Victor Metsch Honored with a New York City Bar Justice Center 2021 Outstanding Pro Bono Service Award

Posted on September 22, 2021 | Comments Off on SGR Litigator Victor Metsch Honored with a New York City Bar Justice Center 2021 Outstanding Pro Bono Service Award

This was originally published on the SGR Blog.

ATLANTA (September 20, 2021) – Smith Gambrell Russell, LLP (SGR) is pleased to announce that attorney Victor Metsch has been chosen from among 2,000 volunteers to receive a City Bar Justice Center (CBJC) 2021 Outstanding Pro Bono Service Award. Mr. Metsch was selected by the Director of the Neighborhood Entrepreneur Law Project (NELP) as that project’s most outstanding volunteer of 2021. CBJC, the largest division of the City Bar Fund which is the nonprofit affiliate of the New York City Bar Association (City Bar), furthers access to justice by addressing unmet civil legal needs of New Yorkers struggling with poverty and systemic socioeconomic barriers. The Outstanding Pro Bono Service Award will be presented to 11 recipients during the Celebrate Pro Bono Awards on October 26, 2021 as the kick off to the City Bar’s observance of National Pro Bono Week. The event will be held in-person with a virtual attendance option.

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Posted in Law Firms

Town Voided Certificate of Occupancy Before Closing: Was Non-Disclosure Excused by “Caveat Emptor”?

Posted on September 20, 2021 | Comments Off on Town Voided Certificate of Occupancy Before Closing: Was Non-Disclosure Excused by “Caveat Emptor”?

This was originally posted on the SGR Blog.

Caveat emptor”—or “buyer beware”—historically was rule number one of real property purchase and sales. But did the rule still control as to the duty to discover or disclose that a certificate of occupancy had been voided?

David Chapman sought damages for, fraud arising from his purchase of a home from Adam and Jennifer Jacobs. Chapman alleged that the Jacobs represented that there was a certificate of occupancy for a pole barn situated on the property when, in fact, the Town of Farmington voided the certificate of occupancy when it discovered that the barn encroached on the adjoining property.

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Posted in Litigation, New York Law, Real Estate, Vendor/Purchaser Disputes

Coop Terminated Proprietary Lease for Objectionable Conduct

Posted on September 16, 2021 | Comments Off on Coop Terminated Proprietary Lease for Objectionable Conduct

This was originally posted on the SGR Blog.

May Court “Second Guess” Board’s Decision? or Did Business Judgment Rule Apply ?

Proprietary leases for residential coop units often permit the Board to terminate a lease for “objectionable conduct”—an arguably subjective cause. In a recent case, the Judge in the Landlord & Tenant Part concluded that the “business judgment rule” did not apply to the facts before the Court. That determination was the subject of an appeal.

111-15 75th Ave. Owners Corp, a residential cooperative corporation, commenced a holdover proceeding against Min Fan and Thomas Pellegrino after the Board terminated their proprietary lease on the ground the tenants had engaged in objectionable conduct. Civil Court denied Owners’ motion for summary judgment, rejecting the argument that the business judgment rule applied to the coop board’s determination to terminate the lease, and finding that the determination was not entitled to deference because Owners had not acted in good faith. The Board appealed.

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

Subdivision Declaration Prohibited Daily/ Weekly/ Monthly Sublets: Court Decides if One Year Rental was Covered or Permitted

Posted on September 13, 2021 | Comments Off on Subdivision Declaration Prohibited Daily/ Weekly/ Monthly Sublets: Court Decides if One Year Rental was Covered or Permitted

This was originally posted on the SGR blog.

Reported decisions abound relating to the violation/enforcement of the prohibition of short-term rentals of coop and condo units. But are those restrictions enforceable where contained in the declaration of a residential subdivision in which each singular property was separately and privately owned?

LG Lakeside Limited Liability Company, owned by Glenn and Laura Kupsch, completed the construction of a home at 6 Mayfair Drive in Bolton Landing, Warren County in early 2018/late 2019. The home is located in the Mayfair Resort subdivision on the shores of Lake George, with all homes in the subdivision subject to a Declaration of Covenants, Restrictions, Easements, and Assessments dated May 15, 2012, and amended on November 13, 2013.

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Posted in Co-Ops, Condominiums, Landlord-Tenant, Litigation, New York Law

Much Legal Ado About “Running Bamboo” on Shelter Island: Were Kings Liable to Sultans for Nuisance/Trespass/Negligence?

Posted on September 9, 2021 | Comments Off on Much Legal Ado About “Running Bamboo” on Shelter Island: Were Kings Liable to Sultans for Nuisance/Trespass/Negligence?

This was originally posted on the SGR Blog.

“Running bamboo” is an invasive species that is now barred by law in New York. But, as a recent case illustrates, the Court may still be called upon to determine legal liability for the aggressive plants’ encroachment on a neighboring property– where the bamboo was planted before the statutory ban came into effect.

Melinda and Sady Sultan sought damages relating to the spread of bamboo from the neighboring Shelter Island property of Loren and Lynn King. The Sultans sued to recover the cost to excavate and remove bamboo that had spread onto their property from next door and for the installation of a barrier along the property line separating the two properties and along a portion of the rear property line to prevent the future spread of bamboo onto their property. They also sought damages for loss of use of their property. The Sultans’ claims were based on a private nuisance claim, negligence, and trespass.

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Posted in New York Law, Real Estate

Post-Romantic/Real Property Breakup Litigation: Did Incorporation Dissolve Partnership?

Posted on September 2, 2021 | Comments Off on Post-Romantic/Real Property Breakup Litigation: Did Incorporation Dissolve Partnership?

This was originally posted on the SGR Blog.

Recent posts on this blog have highlighted the various and complicated disputes arising over failed intimate relationships– after which the formerly loving partners became combative adversaries. And, as a recent case illustrates, the jurisprudential gymnastics are even more complex where an oral joint venture evolves into the corporate form of ownership.

According to the complaint in 1995 and 1996, Kristen Eikenberry and Joseph Lamson entered into a romantic relationship as well as an oral partnership together developing and renovating real estate in New York and New Jersey. The complaint refers to the partnership as EL Partnership. And asserts that Lamson provided all the investment and construction services and Eikenberry supplied “market intelligence” and interior and other designs for the properties.

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Posted in Litigation, New York Law