Category Archives: Litigation

Was There Asbestos in A/C Ducts of Resi Condo? Court Adjudicates Buyer’s Right to Intrusive Testing

This was originally posted on the SGR Blog.

Contracts for the sale of residential property often contain both generic and specific provisions with respect to the purchaser’s right to inspect the premises between the time the contract is signed and the actual closing and transfer of title. But, as a recent case illustrates, the scope of that inspection right may nevertheless be the basis of a dispute.

Oren Mor and Hadar Laor (for convenience, the “Mors”) owned a residential condominium unit 3C at 15 Hubert Street in Manhattan. Jessica Fisher signed a contract to buy the unit for $3,875,000, with a $387,500 deposit. She contemplated making extensive alterations to meet her specific requirements. Fisher suffered from various medical ailments, including allergy-induced asthma, which required her to investigate an apartment’s HVAC units and soundproofing. And alleged that she was promised unfettered access to the apartment prior to the closing so that she could perform various inspections. Despite purported oral representations about her access to the apartment, Fisher claimed that her request for an asbestos inspection was denied. She claimed that this was a routine inspection and required in order to submit any alteration plans.

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Was There Asbestos in A/C Ducts of Resi Condo? Court Adjudicates Buyer’s Right to Intrusive Testing

This was originally posted on the SGR Blog.

Contracts for the sale of residential property often contain both generic and specific provisions with respect to the purchaser’s right to inspect the premises between the time the contract is signed and the actual closing and transfer of title. But, as a recent case illustrates, the scope of that inspection right may nevertheless be the basis of a dispute.

Oren Mor and Hadar Laor (for convenience, the “Mors”) owned a residential condominium unit 3C at 15 Hubert Street in Manhattan. Jessica Fisher signed a contract to buy the unit for $3,875,000, with a $387,500 deposit. She contemplated making extensive alterations to meet her specific requirements. Fisher suffered from various medical ailments, including allergy-induced asthma, which required her to investigate an apartment’s HVAC units and soundproofing. And alleged that she was promised unfettered access to the apartment prior to the closing so that she could perform various inspections. Despite purported oral representations about her access to the apartment, Fisher claimed that her request for an asbestos inspection was denied. She claimed that this was a routine inspection and required in order to submit any alteration plans.

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Water Runoff From Neighboring Driveway Causes Damage: Was Claim Time-Barred or Actionable Continuous Wrong?

This was originally posted on the SGR Blog.

Construction often leads to an increase in the range, or a change in the pitch, of impermeable surfaces (such as driveways and parking areas). With a concomitant increase in water flow. And damage to contiguous properties. But what is the injured neighbor to do? As a recent case illustrates, whether or not claims for negligence, trespass, or nuisance survive a motion to dismiss may depend more on” timing” than “substance.”

Joseph Ubiles and Bernice Ubiles owned and lived at 429 West 147th Street. Ndingara Ngardingabe and Julie Camiuli owned the lots next door at 431-433 West 147th Street, where he lived, and she worked. Lots #431 and #433 were merged in 1991. And the former lot # 431 (adjacent to the Ubiles’ property) was used as a driveway that was constructed in 1989 and paved in 2009.

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Upper West Side Penthouse/Wine Room Wrangle: Improper Cooler Selected for Vintage Italian Artisanal Wines?

This was originally posted on the SGR Blog.

The COVID-19 pandemic has fomented lawsuits relating to frustration/impossibility of performance, taking of property by Executive Order, and insurance coverage for casualty losses. But our Courts must still hear and determine less consequential, non-recurring fact-specific disputes. And, as a recent case illustrates, what would appear to be rather banal to some is “essential” to others.

Ellen Mathias and Enrico Dealessandrini brought suit arising from their almost $1m renovation of PH-2B at 200 Riverside Drive–more $800K under a construction contract; in excess of $156K in change orders; and over $32K in direct payments to subcontractors.

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Was Residential Holdover Proceeding “For the Birds?”: Pigeon-Feeding Tenant Faced Eviction for “Nuisance”

This was originally posted on the SGR Blog.

Pigeons are synonymous with New York City’s high-rise ecology. Pets to be fed by some. An annoyance to others. But, as a recent case illustrates, a pigeon-feeding tenant may face eviction if her conduct rises to the level of “nuisance.”

GSKP LLC filed a nuisance holdover proceeding seeking possession of unit no. 3 at 28 Bond Street from Margaret Lee. The premises were not subject to the Rent Stabilization Law or the Rent Control Law. The premises were rent-regulated pursuant to Article 7-C of the Multiple Dwelling Law. The Notice of Petition and Petition alleged that the term for which the premises were rented expired on November 30, 2018.

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Hotels Quiet Due to COVID Related Exec. Orders: Were the Resulting Losses Covered by Insurance?

This was originally published on the SGR Blog.

Almost every commercial enterprise carries, or is covered by, insurance policies intended and expected to cover catastrophic losses. The pandemic certainly has been catastrophic. But, as a recent case illustrates, coverage may depend upon whether or not the virus is found to have caused direct physical loss or damage. 

The plaintiff/hoteliers own and/or operate hotels in Onondaga County, two of which were affiliated with Marriott International, Inc. Zurich American Insurance Company, issued insurance to Marriott covering the hotels.

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Would Garage Be Permitted To Operate Rent Free During Pandemic?

This was originally posted on the SGR Blog.

Court Determines if Frustration of Purpose Defense Applied

The pandemic has unquestionably, materially, and adversely affected many businesses that have been directly impacted by New York State Executive and New York City administrative orders restricting work and other activities. But, as a recent case illustrates, those legal mandates and prohibitions may not suffice to sustain the defense of frustration of purpose,

Union 16 Parking LLC operates a parking garage at a building owned by East16th St. Owner LLC. TMO Parent LLC signed a good guy guarantee in connection with Union’s lease. Owner claimed that Union had not paid rent since April 1, 2020, and owed over $1 million through November 1, 2020. They argued that the lease did not permit Union to withhold rent under any circumstance. And did not contain a force majeure provision.

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“The [U]mpire Strikes Back” at Former MLB Player: How Much Was His Reputation Damaged By Podcast?

This was originally posted on the SGR Blog.

The Court is the “umpire” when an actual baseball umpire brings suit. And, as a recent case illustrates, jurisprudential umpiring is far more complicated than simply calling “balls and strikes.”

Joseph H. West, a currently active and well-known Major League Baseball umpire, sued Paul Lo Duca, a former Major League Baseball player, for defamation. West alleged that Lo Duca made defamatory statements about him on a podcast carried on a popular sports podcast provider. Contending that, during the podcast, Lo Duca, a retired catcher, described an alleged conversation with teammate Billy Wagner, a retired relief pitcher, in which Wagner purportedly claimed that West gave him favorable ball-and-strike calls during the game because Wagner gave West access to one of his vintage automobiles.

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Rensselaer County Neighbors in “Stump Law” Suit: Who Owned Land On Which Cut Trees Were Located?

This was originally posted on the SGR Blog.

The New York State Legislature has, over the years, passed hundreds of statutes. Some are generally known. But some are obscure. Real Property Actions and Proceedings Law Section 861, known in the trade as the “stump law,” covers allegations that a person impermissibly cut down trees on the property of another. And, as a recent case illustrates, “stump law” litigation raises unique factual and legal issues.

Daniel J. Holser owns rural property in the Town of Poestenkill, Rensselaer County, that adjoins a portion of property owned by Gregory T. Miller and Lauren R. Miller. Holser sued the Millers on December 30, 2016, after discovering that trees had been cut and removed from his property and there was damage to his land, including significant rutting. Alleging that the Millers directed Todd Geerholt and others to remove the trees on their property, the Holsers asserted causes of action for trespass, conversion, negligence and violations of RPAPL 861. Following discovery, Geerholt moved for dismissal of the complaint as untimely. And the Millers moved for summary judgment dismissing the complaint against them. Supreme Court denied those motions. Geerholt and the Millers appealed.

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Contract of Sale Signed by One Member of Three-Party LLC: Apparent Authority Meets Actual Authority at E.N.Y Plaza

This was originally posted on the SGR Blog.

A contract for the sale of entity-owned real property may contain a representation that the signatory on behalf of the seller has the authority to bind the titleholder. But what happens if that authority is challenged after the agreement is signed? As a recent case illustrates, apparent authority may not suffice where actual authority does not exist.

On July 12, 2004, Samuel Fleischman, Avi Shriki, and Mordechai Danino executed an operating agreement when they formed E.N.Y Plaza, L.L.C., a limited liability company. Fleischman, Shriki, and Mordechai Danino each held a one-third interest in Plaza, the sole asset of which is a building located in Brooklyn.

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