Category Archives: Litigation

An Agreement to Agree is NOT Necessarily An Agreement to Agree

This was originally posted on the SGR Blog.

Juvenal Reis (tenant) and J.B. Kaufman Realty Co, LLC (landlord) signed a lease  in 2002 for real property in Long Island City. Over the years, Reis and Kaufman executed various letter agreements extending the terms of the original lease and providing for the lease of additional space within the  building.

In a document dated June 27, 2012, the parties “consolidate[d] all existing letter agreements to the same expiration date” of February 28, 2015. The 2012 letter agreement also stated that the terms of the lease were “extended to now terminate on Feb. 28, 2030,” with “terms to be determined at the expiration of this initial lease consolidation period.” The 2012 letter agreement further stated that any annual percentage increase in rent will not be less than five percent and will not exceed eight percent.

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If A Tree Falls…(Can I Sue?) Yes, Of Course…(But You May Not Win!)

This was originally published on the SGR Blog.

Rosemarie Russo and Joseph Ostrowsky sued their abutting neighbor, Kenneth Jay, in Small Claims court. The sought to recover for damage that they sustained after a branch from a tree, which was allegedly on Jay’s property, fell into their yard, damaging their fence. Ray counterclaimed to recover damages resulting from the Ostrowskys’ workers trespassing on his property.

At a nonjury trial, the Ostrowskys testified that, in 2016, debris from a tree on Jay’s property fell into their yard and damaged their pool fence. They had sent Jay a certified letter in 2016, informing him that he had several dead trees on his property, which represented a hazard to their land. Jay did not accept the letter. The Ostrowskys offered photographs taken in 2016 to support their position that the trees in Jay’s yard were in a deteriorated condition. Jay asserted that, in 2016, the debris from the tree fell as a result of an “act of God.” And that the Ostrowskys had not shown that a dangerous condition existed or that he had notice of such a condition.

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“Barter Battle” Between Life Coach and Yoga Instructor Ends With Legal Takedown

This was originally published on the SGR Blog.

A life coach and a yoga instructor walk into a bar. Well, not really.

Linnea Wexler sued Jennifer Marvin in Small Claims for Court for breach of contract. Wexler appeared pro se and Marvin was represented by counsel. Both parties testified but neither side called any witnesses.

The parties entered into a Coaching Sessions Agreement. Wexler agreed to provide Marvin a minimum of 10 hours of life coaching techniques and counseling in exchange for 40 hours of pre- and post-natal yoga sessions. The Contract stated that Wexler was not a licensed medical doctor, psychologist, Master’s in Family Therapy professional, or a Master’s in Social Work professional.

Wexler testified that she was a Master Certified NLP Coach, a Master Certified Practitioner of Neuro-Linguistic Programming, a Master Certified Practitioner of Time Line Therapy, and a Master Certified Practitioner of Hypnotherapy. The Contract stated that “the services you receive are not licensed in this state, nor are they regulated by a governmental body.”

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New York Appeals Update (April 2020)

This originally appeared on the SGR Blog.

“Game Change”: Court Holds “Gig” Courier to be an Employee (Not an Independent Contractor) Entitled to Unemployment Compensation
Will Ruling Retroactively Apply?

In a landmark decision, Matter of Vega (Postmates Inc. Commissioner of Labor)[March26, 2020], the Court of Appeals addressed the question of whether or not a deliveryman—who was free to make his own hours, choose what assignments to take and was also available to work for others—was an employee or an independent contractor. The issue arose in the context of a claim by a courier for unemployment compensation.

Question: Was the decision of the Unemployment Insurance Appeals Board that a former Postmates, Inc. courier, and others similarly-situated, were employees for whom Postmates was required to make contributions to the unemployment insurance fund supported by substantial evidence.

Answer: Yes. There was record support for the Board’s finding that the couriers were employees.

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[De]Constructive Trust: Romance in Ruins

This originally appeared on the SGR Blog.

First year law school students often take a course about equitable remedies, one of which is the imposition by  the Court of a “constructive trust”. The remedy is almost always intensely fact  sensitive because the disputes often  arise out personal relationships and undocumented special  circumstances without the formalities of a contract. A recent example follows:

From 2000 until 2017, Michael Baker and Anna Harrison were in a long-term romantic relationship. During their relationship, they ran a timber harvesting business for which various equipment was purchased. By deed dated March 7, 2017, a 4.66-acre parcel of undeveloped land on State Route 9 in the Town of Chester, Warren County, was transferred by its owner to Harrison for $3,500. The deed was not recorded.

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On a Bicycle Built…to Sue

This was originally published on the SGR Blog.

With the onset of warm weather, cyclists will again take to the road. As with almost every other form of recreation, biking provides a fertile ground for accidents, finger pointing and litigation of both simple and complex issues. Some recent examples follow.

On November 12, 2017, Frank Marzan was involved in an accident in or near a Manhattan intersection that caused him to sustain significant personal injuries. Marzan alleged that Marilyn J. Levine, a pedestrian, stepped into the bicycle lane in which Marzan was riding his bicycle, causing him to maneuver abruptly to avoid Levine and, in the process, strike nearby construction fencing. Levine maintained that she was crossing a street in a crosswalk with a pedestrian crossing signal in her favor, Marzan failed to yield the right of way to Levine and that Marzan is solely (or at least significantly) to blame for his claimed injuries.

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Legal “War of the Roses” in Jackson Heights

This was originally posted on the SGR Blog.

Some coop disputes rival for longevity the infamous “War of the Roses” (1455-1485). A recently litigated summary “nuisance” holdover proceeding, that followed the termination  of a residential proprietary lease for “objectionable conduct”, was the end result of more than twenty years of complaints.

Surfair Equities, Inc., a cooperative housing corporation, filed an objectionable conduct holdover proceeding to recover possession of Apt. 3A located at 35-30 73rd Street, Jackson Heights, NY 11435 from Alberto Marin, the shareholder of Apt. 3A.

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When You Choose New York Law – Have You Chosen New York Law?

This was originally published on the SGR Blog.

As members of SGR’s transportation group, Marc (in New York) and Shani (in L.A.) are often called upon to advise clients about the choice of the law to govern the interpretation and enforcement of agreements and the place for adjudication of disputes (likely with little nexus to New York other than that clause). And, as a commercial litigator in New York, Victor must navigate, challenge or defend those choices.

One of the factors to be considered is the extent to which the Courts in New York will enforce the selection of New York law and venue.

Under agreements, governed by New York law, but involving parties in different jurisdictions, disputes often arise as to which state’s substantive law applies. “Old Timers” were schooled in choice of law/conflict of law analysis under the “grouping of  contacts”/”center of gravity”/“significant relationship” protocols.

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A Yellowstone Proceeding Cannot Extend the Time to Cure an Incurable Default

This was originally published on the SGR Blog.

Yellowstone proceeding (so-called after a Court of Appeals decision establishing the legal protocol) maintains the status quo so that a commercial tenant, when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the cure period—and, if an adverse determination on the merits ensues, the tenant may cure the default and avoid a forfeiture.

The proceeding is New York–specific. Our Civil Courts in New York City and District Courts in the rest of the State (where landlord-tenant cases are litigated) do not have jurisdiction to grant equitable relief. So a tenant charged with default (who either controverts the default or needs more time to cure or both), must file a Yellowstone proceeding in Supreme Court (which has equitable jurisdiction) before the cure period ends to avoid termination of the lease.  Supreme Court has the ability to toll the cure period and grant an extention of the time to cure (if the default is sustained).

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Loss of a New York City Parking Space Is Not A Laughing Matter: Ask Alec Baldwin

This was originally published on the SGR blog.

Saturday Night Live comedian Alec Baldwin engaged in a shoving match with Wojciech Cieszkowski over a mid-town New York parking space. The result was not a laughing matter. Baldwin was criminally charged and pled guilty to harassment in the second degree.

But that was only the beginning. Cieszkowski sued Baldwin for assault, battery, legal fees and slander per se. In addressing a motion to dismiss the slander claim, the Court took a jurisprudential “deep dive” into the law of defamation, slander ( in general) and slander per se (in particular).

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