Category Archives: New York Law

Did COVID-19 Shutdown of Renovation Excuse Delay? Hearing Required to Determine Responsibility

Copyright by, and republished with permission of, Apartment Law Insider.

Covid-19 has seriously impacted almost every aspect of residential and commercial life in one manner or another—but, as a recent case illustrates,  especially in those situations where a  contemplated timeline for work was obstructed or delayed by governmental edicts that that imposed an involuntary “pause”. There, a landlord needed access to an apartment to complete  a project; the issue wound up before the court; the tenants agreed to vacate the unit for a stipulated period of time to accommodate the work;  the project stalled due to the pandemic; and the parties were back in court to consider the consequences.

On August 1, 2019, Timothy and Kiko Tabor stipulated on the court record with 148 Duane LLC that they would relocate from their apartment for 12 months, with 148 Duane covering the costs of their relocation, including paying up to $25,000 a month for comparable housing less the amount of their current rent. The parties also agreed that “[i]n the event that the relocation needs to be extended beyond the twelve-month period because [148 Duane] failed to complete the construction within that time period there will be a per-diem penalty of $500 per day without prejudice to the [Tabors] seeking additional remedies before this Court.” The parties clarified that the penalty applied if the building’s essential services, defined as those that make the apartment habitable, were still out.

Continue reading

Intoxicated Teen/Trespasser Injured on Construction Site at 3 A.M.: Are the Owner/Developer/General Contractor Liable?

This was originally published on the SGR Blog.

If a young adult engages in an athletic competition, and is injured while playing, there may be a defense to third-party liability based upon the doctrine of “assumption of risk”. So does that defense protect a property owner where a person drinks to the point of intoxication; trespasses on a construction site; and is injured in a fall?

In July 2015, Michael Desroches and his friend, Daniel O’Grady, visited Daniel O’Grady’s brother, Ryan O’Grady, who resided in the Timber Creek subdivision in the Town of Ballston Spa, Saratoga County. The group socialized throughout the evening and consumed alcoholic beverages. After midnight, they went for a walk in the neighborhood and eventually decided to enter one of the houses still under construction. When Daniel O’Grady entered the house, followed by Desroches and Ryan O’Grady, he saw an opening in the floor that was located between 10 to 15 feet from the entrance and stepped to the side. But Desroches proceeded forward and fell through the opening approximately 8 or 10 feet into an unfinished basement, sustaining head injuries that required hospitalization.

Continue reading

Does Pandemic Mandated Closing Excuse Payment of Commercial Lease Rent? Court Rejects Defenses of Impossibility/Frustration of Performance

This was originally posted on the SGR Blog.

BKNY1, Inc. (tenant) operated the 132 Lounge on Montague Street in Brooklyn. 132 Capulet Holdings, LLC (landlord) sought an order vacating the Yellowstone injunction in favor of BKNY1 on the grounds that BKNY1 failed to pay rent for the months of April and May 2020.

The Yellowstone injunction was predicated on BKNY1’s representation, made on the record at a hearing, that it had paid (and would continue paying) rent. But BKNY1 failed to pay rent for the months of April and May 2020- claiming that the mandatory closure of BKNY1’s restaurant business during those months by Executive Order No. 202.3 relieved it of the contractual obligation to pay rent. BKNY1 had failed to cite — and the Court’s own review did not uncover — any provision of the lease excusing it from timely and fully paying its rent during (and notwithstanding) the state-mandated closure of its business.

Continue reading

“Family Feud” Is Not Just a Primetime Realty TV Show: Conflicting Claims to Unit Ownership End Up in Court

This post was originally published on the SGR Blog.

By agreement, circumstance or inheritance, residential cooperative or condominium units often end up being owned by several family owners. A “happy family” can only be found on the menu of a Chinese restaurant. So, as two recent cases demonstrate, the family members sometimes end up in a so-called “partition” proceeding in which the Court must decide if the unit should be sold and the parties account for their claims to the proceeds of the sale.

Vernon A. Anthony and his brother, Robert S. Anthony, own condominium Unit 1 at 46 President Street in Brooklyn, as tenants in common. Needless to say, litigation ensued.

Continue reading

Court “Decks” Trespassing Co-op Unit Owner With “Knock Out” Punch of Compensatory/Punitive Damages

This was originally published on the SGR Blog.

A shareholder in a cooperative apartment building on the Upper West Side demolished a deck constructed by an upstairs neighbor because the deck allegedly encroached on his property.

The deck had been in place undisturbed for 25 years; the Co-op board directed it not be destroyed; and the demolition of the deck created a dangerous condition by leaving his neighbor with an unprotected back door opening to a steep drop to the ground below.

The unsurprising answer was that he was not permitted to exercise the self-help remedy of demolishing the deck. His proper course was to seek relief from the courts or other governmental authorities, not to administer what the Court called “frontier justice”.

Continue reading

Did Traffic Infraction (Not Violation) Warrant Search and Seizure? New York Court of Appeals Finds Distinction With a Difference

This was originally posted on the SGR Blog.

Question presented: Did a state trooper lack an objectively reasonable suspicion that a crime had occurred or probable cause to stop a vehicle for a traffic infraction such that the automobile stop was unlawful. The Court answered that the stop was unlawful.

WILSON, J. (for the court):

On the afternoon of November 8, 2014, a New York State Trooper stopped a vehicle on a street in Buffalo. The trooper had observed no traffic violations and saw that the inspection sticker was valid, both of the occupants were wearing their seatbelts, and “everything looked good.” Nevertheless, the trooper ran a check of the car based on the front license plate. The inquiry produced a response that began with a direction to “CONFIRM RECORD WITH ORIGINATOR,” listed as the Buffalo City Police Department. The response then instructed:

Continue reading

Yellowstone Proceedings and the Pandemic: Do COVID-19 Mandates Frustrate Performance?

This was originally posted on the SGR Blog.

The legal press is rife with articles and speculation about the defenses of impossibility and/or frustration of performance to lease defaults triggered by state and local mandates prohibiting or limiting access to businesses. A decision released last week addressed that issue.

Rame, LLC leased space at 200 Park Avenue from Metropolitan Realty Mgt., Inc.

In September 2020, Metropolitan sent Rame a notice of default, alleging that it owed unpaid rent from December 1, 2017 through September 1, 2020 in the amount of $1,863,821.70, and set a deadline of on or before September 14, 2020 to cure the default. Rame sought a Yellowstone injunction tolling the time to cure.

Continue reading

Dog Spooked in Veterinary Clinic Waiting Room & Cat Owner Injured

This was originally posted on the SGR Blog.

New York Court of Appeals Decides If Clinic Has Liability (On 10/22)

Palmer Veterinary Clinic, PC treated Vanilla, a dog, for a paw injury at its clinic. That same day, Marsha Hewitt brought her cat to the clinic for an examination. As Hewitt waited in the reception area, a veterinarian returned Vanilla to her owner in the waiting room; the dog had just undergone a medical procedure to remove a broken toenail. At some point after the veterinarian handed Vanilla’s leash back to her owner, Vanilla saw Hewitt’s cat in its carrier, slipped her collar and—in an apparent attempt to reach the cat—jumped at Hewitt from behind, grabbing her ponytail.

Several months later, Hewitt sued Palmer, alleging that she suffered injuries as a result of the incident. And alleged that Palmer had a duty to provide a safe waiting room, that Palmer breached that duty by failing to exercise due care and by bringing an “agitated, distressed” dog into the waiting area, and that Palmer knew Vanilla had vicious propensities and was in an agitated and aggressive state. Palmer denied the allegations and asserting various affirmative defenses, including that the clinic was entitled to have any liability apportioned between itself and the dog’s owner.

Continue reading

A Bridge[water] Over Troubled Waters

This was originally posted on the SGR Blog.

Local Law 11 Project Divides Condo

Coop and condo boards and unit owners often split into competing factions where one group questions and challenges the decisions of the other. And, as a recent case shows, the charges, accusations and acrimony can lead to very combative litigation.

Petitioners Mike Tong, Cathy Tong, Ann Chen, Te Chen, Nicole Crooks, Kamila Khavasova, Naturi Naughton and Gloria Lee  sought a declaratory judgment and a temporary/permanent restraining order to stop the  Board of Managers of the Bridgeview Tower Condominium from continuing with repairs and renovations relating to New York City Local Law 11.

Continue reading

“Arbitrary and Capricious” Confronts the “Business Judgment Rule” at 137 Duane Street

This was originally published on the SGR Blog.

What Standard Applies in Article 78 Proceeding Challenging Decision of Board of Managers?

Proceedings challenging board decisions under Article 78 of the Civil Practice Rule are governed by the test of whether the disputed action was “arbitrary and capricious”. But challenges to the action of members of the boards of residential condominiums are governed by the “business judgment rule”. So which standard governs when a condominium unit owner questions the conduct of the board of managers?  A recent case addresses that question.

Notoya Green, as Trustee of a family trust, sought an Article 78 order: annulling and setting aside, as arbitrary and capricious, the rejection by the Board of Managers of Diamond on Duane Condominium, of her alteration application with respect to the renovation of two units; and  compelling the Board to consent to the requested alterations or deeming that no consent was required under the building’s governing documents.

Continue reading