Monthly Archives: January 2024

Landlord Terminated Hoarders Residential Lease

Were Predicate Notices and Evidence Sufficient to Evict?

The April 22, 2022 notice to cure and demand for access to apartment  Riverbay Corp., as landlord, to Stanley Frere. as tenant, alleged the Frere had:

” …amassed an unreasonable amount of clothing, debris, boxes, plastic bags, papers, personal items and garbage in the apartment to the point where the unit is so filled with such items as to make access into and navigation throughout the apartment dangerous and impracticable. Such accumulation which includes inflammable materials, piled several feet high throughout the apartment, interferes substantially with your safety, comfort and well-being as well as that of the occupants and members of the housing complex of which the apartment forms a part in that same constitutes a substantial fire hazard.”

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Horse Named “Blaze” Throws Rider Who Then Sues Owner

Did Owner Conceal– or Rider Assume—the Horseback Riding  Risk?

Jesse Stanhope sued  Alexander Conway on theories of negligence and strict liability seeking to recover for injuries allegedly sustained when he was “bucked” off a horse  named “Blaze” and owned by Conway.

Following joinder of issue and discovery, Conway moved for summary judgment dismissing the complaint contending that Stanhope assumed the risks inherit in horseback riding. Stanhope opposed the motion. And Supreme Court denied the motion, finding outstanding questions of fact regarding whether the specific horse posed risks that were above and beyond those known by Stanhope.

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Dispute Between Joint Owners of Mobile Home on Small Lot

Court Decides If Remedy is Partition or Sale Under RPAPL Article 9

     Christine E.. Beattie and David J. Johnson, Jr. s are the owners in fee simple of certain real property located at 87 Old Gick Road in the Town of Wilton. Beattie filed an action, pursuant to RPAPL Article 9, seeking the partition or sale of the property. Johnson served an answer requesting that the complaint be dismissed or, alternatively, that the Court direct an accounting and adjust the parties’ share of the sale proceeds based on their contributions for taxes, insurance, and maintenance.

     In July 2023, the Court conducted a non-jury trial and heard testimony from the parties and a real estate broker. The Court received into evidence a real estate appraisal report and a written opinion from the broker, as well as copies of the deed and bill of sale.

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Real Property Buyer Defaulted After Proper TOE and Cure Notices

Did Court Err in Giving Buyer An Additional 30 Days to Close?

Shukam Herman sued 818 Woodward, LLC for specific performance of a contract for the sale of real property and to recover damages for breach of contract.  

Supreme Court granted Woodwrd’s motion to dismiss the complaint to the extent of directing that a closing take place within 30 days and that failure to close within that time frame would result in dismissal of the complaint. Both Herman and Woodward appealed.

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Option to Buy Second Resi Condo in Purchase Agreement

Was “Right” Barred by New York  EPTL Rule Against Perpetuities?

In a declaratory judgment action, pursuant to Real Property Actions and Proceedings Law Article 15, Max Protetch sought to compel JOCAR Realty Co., Inc. to complete the sale of real property pursuant to an option provision of a purchase agreement. Realty moved to dismiss Protetch’s complaint, asserting that documentary evidence clearly established a defense as a matter of law; the claims were time-barred; and failure to state a cause of action.

On February 19, 1993,  Protetch and Realty entered into a purchase agreement for two residential condominium units, Unit 5SF and Unit 5SR, at 262 Mott Street, New York, NY. On June 4, 1993, the purchase agreement was modified because Unit 5SR  was occupied by a residential tenant (Richard Keene), pursuant to Article 7C of the Multiple Dwelling Law. Since Realty could not deliver the unit vacant, the purchase agreement was modified to state in relevant part:

Paragraph 26 of the Purchase Agreement states: This Purchase Agreement, together with the Plan, as the Plan may be amended from time to time, constitutes the entire agreement between the parties as to the subject matter hereof and supersedes all prior understandings and agreements.

Paragraph 7 of the Rider to the Purchase Agreement states: Upon the Closing, the Seller shall deliver the Units to the Purchaser vacant, free of all occupants or tenants, and the rights of any tenants or other persons in and to the Units.

Paragraph 8A of the Rider to the Purchase Agreement states: As Seller is unable to deliver vacant possession of Unit 5SR at the closing hereof, the Purchaser shall only purchase Unit 5SF and the purchase price hereunder shall be reduced to $153,123.15; the percentage interest in the common elements shall be reduced to .012429%; the amount of the purchase price to be financed shall be $141,500.00; and the Purchaser shall have the option to purchase Unit 5SR at the time the seller shall be able to deliver vacant possession thereof on all of the same terms and conditions as contained herein, except for the following terms and conditions:

a. The purchase price for Unit 5SR shall be $176,876.85; and

b. The amount of the purchase price to be financed shall be $141,500.00; and

c. The percentage interest in the common elements shall be .014357. [emphasis added]

On April 12, 2006, Realty purported to convey fee title to Unit 5SR to one of its principals, Joseph A. Chinnici. No consideration was paid for the conveyance. Upon his death, the unit was conveyed to  STATE5SR, also for no consideration.

During that time, Keene continued to live in the Unit but died in September 2021. On September 16, 2021, Protetch’s attorney notified Realty that Protetch elected to exercise the option and demanded STATE5SR, as the purported fee owner, to close the sale to Protetch pursuant to the terms of the purchase agreement. Realty refused and this lawsuit ensued.

Realty moved to dismiss Protetch’s complaint on the grounds that the purchase agreement option was barred by New York’s rule against perpetuities, pursuant to Estates, Powers and Trusts Law § 9-1.1 and was time barred by CPLR 213.

EPTL 9-1.1(a), commonly referred to as the rule against perpetuities, sets forth the suspension of alienation rule and deems void any estate in which the conveying instrument suspends the absolute power of alienation for longer than lives in being at the creation of the estate, plus 21 years. Under the statutory rule against remote vesting, an interest is invalid ‘unless it must vest, if at all, not later than twenty-one years after one or more lives in being. That is, an interest is void from the outset if it may vest too remotely.

There was no dispute as to the authenticity of the purchase agreement and Protetch and Realty stipulated that the purchase agreement with rider represented the complete agreement between the parties, the contract qualified as “documentary evidence” .

Under the terms of the purchase agreement, the option vested and must be exercised at the time Realty was able to deliver vacant possession of the unit. Protetch argued that, since the unit was occupied by Keene at the time the option was created and Keene was the apparent holder of the possessory interest to be extinguished in order for Realty to be able to obtain and convey vacant possession, it was indisputable that Keene was a ‘life in being’ for the purpose of applying EPTL 9-1.1 to the option. However, Protetch did not cite to any case law that allowed the Court to simply re-write the contractual terms of the purchase agreement to include Keene as a measuring life. And  the Court could not by construction add or excise terms, nor distort the meaning of those used and thereby ‘make a new contract for the parties under the guise of interpreting the writing’. An option such as the one here, containing no limitation in duration, demonstrated the parties’ intent that it last indefinitely,. And EPTL 9-1.3, the “saving statute”, did not permit an extensive rewriting of the option agreement so as to make it conform to the permissible period.

Where an option agreement contains no limitation on duration nor words suggesting that the parties intended the extent of its life to be anything other than indefinite, the agreement violates the rule against remoteness in vesting. Without a measuring life or any temporal limitation, the option violated the New York state rule against perpetuities. EPTL 9-1.3 (d) provides that where vesting requires “any specified contingency, it shall be presumed that the creator of such estate intended such contingency to occur, if at all, within twenty-one years from the effective date of the instrument creating such estate.” Here, the option was contingent on the vacancy of the unit, an event that was not certain to occur within 21 years of the purchase agreement. And, in fact, vacancy of the unit did not occur within the statutory period of the rule against perpetuities. As such, no option existed or was available to Protetch. raised by defendants.

 Realty’s motion to dismiss Protetch’s complaint was granted.

Residential Property Owner Entered Into New Leases Between Contract and Closing

Were Buyers Entitled to Return of Down Payment Due to Seller’s Alleged Breach?

151 E. 19th St. LLC brought suit for a declaration that it was entitled to retain the $1,695,000 down payment made by Edwin Ashourzadeh and Nuchem Obstfeld in connection with the July 19, 2022 contract to sell the building at 151 East 19th Street $11.3 million. The agreement contained a time of the essence clause that set a closing date for October 27, 2022.

Seller admitted that, one week before the closing, Buyers’ counsel sent a letter claiming that the renewal of certain residential leases in the premises constituted a default. But Seller insisted that the contract of sale did not prevent a renewal of any leases and instead only prevented it from entering into any new leases. Seller claimed that Buyers knew about those lease renewals and that this was merely a pretext to avoid the closing. Seller maintained that there was no way to read the contract to require it to put existing tenants out of their homes. And claimed it was ready willing and able to close on the closing date but that Buyers refused to close on the premises.

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Ruth Sues Olga Over Promise to Share Proceeds of Sale of Margaret’s Property

Did Complaint State  Claim Against Sibling For Constructive Trust  Over Mother’s Land?

Ruth Kissane and others sue Olga Cashman to impose a constructive trust on real property formerly owned by nonparty Margaret Cashman, the now-deceased mother of Ruth and Olga.  The complaint alleged that, prior to Margaret’s death and while she was the owner of the property,  Ruth  and Ruth’s then husband advanced Margaret $600,000 for repairs to the property so that Margare could remain living there. And Olga advanced Margaret $400,000 for repairs.

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Husband’s Divorce Attorney Maligns Wife’s Lawyer

Were Defamatory Statements Absolutely Privileged?

Jonathan Davidoff sued Dina S. Kaplan and Eric Dorfman for defamation.

Kaplan, an attorney, represented Dorfman in a divorce action. Kaplan allegedly represented to the court in the divorce action, including court personnel, that Davidoff, an attorney and a nonparty to the divorce action, was the boyfriend of Dorfman’s wife. In an email exchange between Kaplan and Herbert Adler, an attorney representing Dorfman’s wife in the divorce action, Kaplan allegedly made a defamatory statement about Davidoff, referring to him as a “wife beater . . . who is in criminal prosecution.” In addition to Adler, the email was sent to court personnel and other attorneys.

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Experienced Motocross-er Injured After Jumping/ Losing/ Control/ Landing in Hole

Did Allegedly Suboptimal Conditions Trump Participant’s Assumption of Risk?

In September 2016,  Joseph C. Fritz was injuried during a motocross practice at the Walden motocross track, a recreational facility owned and operated by  Walden Playboys M.C. Inc.  Fritz went off a jump and lost control of his bike after landing in a hole on the track. Fritz and his spouse, derivatively, sued Walden and others for negligence.  Walden answered and asserted several affirmative defenses, including that Fritz had assumed the risk of injury when he engaged in the sport of motocross. Following discovery, Walden moved for summary judgment, arguing that Fritz’ claims were barred by the primary assumption of risk doctrine. Fritz opposed the motion, arguing that Walden created an unreasonable risk of harm by failing to address a hole that developed on the track, which was caused by their negligent grooming of the track with soil that was too dry. Supreme Court denied the motion. Walden appealed.

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