Category Archives: New York Law

SHOUT “FORE” BEFORE TAKING THAT “MULLIGAN”

Golf, like any other recreational activity, runs the risk of accidents on the course – and the resulting injuries often lead to “finger pointing” as to which golfer was at fault.  And the game also often raises predictable and unpredictable collateral disputes such as whether a golf club membership is property that can be seized by a judgment creditor; and claims for trespass and nuisance damages when golf balls land on an adjacent property.  Several recent examples follow:

MacIsaac v. Nassau County, 2017 NY Slip Op 05814, 2d Dept. July 26, 2017 Continue reading

New York Court of Appeals Alert (March 2019)

This first appeared on the SGR Blog.

The mid-2019/2020 Term of the Court of Appeals did not result in any “blockbuster” civil law decisions. The Court, however, did release two opinions that demonstrate how the panel addresses the application of precedents, on the one hand, and substantive conflicts in the Appellate Divisions, on the other.

In the first case, over a stinging dissent, the Court adhered to a 1999 decision  holding that a “stairway” may constitute a “sidewalk”  for tort liability purposes.  And in the second, the Court resolved a split in the Departments over whether the filing of  suit by a New York attorney who did not (as required by law)   maintain an office in the state,  was a curable violation.

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Court-Imposed Access for “Underpinning” Next Door

Originally published on the SGR Blog.

CUCS Housing Development Fund Corporation  and several related entities sued under RPAPL § 881  for Court-imposed  access, for the  purpose of underpinning  a neighboring property on West 12th Street owned by  Clifford S. Aymes.  Underpinning is  the extension of the foundation of one property to below the foundation of a neighboring parcel.

CUCS was trying to begin a construction project to provide New York City’s homeless population with affordable housing. Aymes owned the one-story, unoccupied building adjoining  the project.

The New York City Building Code  required CUCS take careful measures to protect public safety and to prevent damages to Aymes’ property during the building’s construction.

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Co-op Boards Are Not Quality-Control Watchdogs

Copyright  by,  and republished with permission of, Habitat Magazine

Wade and Vanessa Johnson thought they were getting a “triple mint” luxury unit when they bought a gut-renovated apartment from the sponsor of a cooperative conversion at 1150 Fifth Avenue. But after the closing, the Johnsons learned that there were numerous conditions in the apartment that were not up to code – or actually dangerous – most of which had been concealed.

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PET PEEVES & OTHER FOUR-LEGGED DISPUTES

New Yorkers own hundreds of thousands of cats, dogs, farm animals and other pets.  Thus, it is not surprising that accidents and injuries caused by animals are a fertile source of litigation.  Several recent examples follow.

Thompson v. Brown, 2018 NY Slip Op 08736, App. Div. 3rd Dept. (December 20, 2018)

In an action for negligence arising out of the escape of a bull owned by defendants, Supreme Court granted plaintiff’s motion to the extent of finding that plaintiff sustained a serious injury within the meaning of the insurance law.

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Nuisance on Central Park West

Originally published on the SGR Blog.

A Central Park West condominium sued the owner of a first floor unit and her son for breach of contract and nuisance. The Board wanted to enjoin them from smoking marijuana and making excessive noise in their unit. At the outset, the Supreme Court issued a preliminary injunction that prohibited defendants from smoking marijuana and permitting marijuana smoke and excessively loud noises from infiltrating into the common areas and other units of the condominium. And several months later the Court addressed the application for a permanent injunction.

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Court of Appeals #17

We recently published Court of Appeals #17.

Measure Twice. Buy Once. Never Sue.

Copyright by, and republished with permission of, Habitat Magazine.

It happens all the time in New York City. Someone buys an apartment relying, without further investigation, on statements made by a sales agent – and then learns, too late, that the statements were incorrect. According to a news report, it happened last year to a purchaser, who placed a $1 million down payment on a $10.5 million Chelsea condo after being told by the selling agent that the ceilings in the under-construction apartment would be “just shy of 10 feet tall” – high enough to accommodate her extensive art collection. However, when she later reviewed the offering plan and measured the finished apartment, she learned that the ceilings were not the anticipated height. She has had to sue to recover her down payment.

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IS THAT POSSESSION LEGALLY ADVERSE?

To establish a claim of title to real property by adverse possession, a party must demonstrate, by clear and convincing evidence, that the possession was (1) hostile and under claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years.

Needless to say, each and every element of the formula has developed a unique and discrete body of law – pursuant to which a final disposition is, as often than not, fact-specific.  Several recent examples follow.

Mazzei v. Metropolitan Trans. Auth., 2018 NY Slip Op 06007, App. Div. 2nd Dept. (September 12, 2018) Continue reading

The Great “Washing Machine” Dispute

This was originally published on the SGR blog.

Nancy McCaskill  bought the shares for a cooperative apartment in Mount Vernon, New York in April 1998. At the time she entered into possession a washing machine was installed.

In 2014, the Board of Directors enacted the following House Rule 21:

The Board of Directors having determined that the plumbing systems of the Buildings are not sufficiently robust to allow use of washing machines without damage to the plumbing and to other apartments, washing machines, dryers or combination washer/dryer machines are not permitted to be used or kept in any apartment.

The cooperative did not contact McCaskill regarding her washing machine after enactment of House Rule 21.

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