Category Archives: Litigation

Transfer Triggers $900,000+ In State and Local Transfer Taxes: But No Flip Tax Due?

This was originally published on the SGR Blog.

Proprietary leases for units at residential cooperatives often prohibit an assignment of the lease without the prior written consent of the board of managers. But what are the ground rules if the unit is owned by a limited liability company; the interests in the LLC are assigned: and the lease does not expressly prohibit or require board approval for such an assignment?

A recent case addressed the question: Does a change in the beneficial ownership of an LLC/lessee violate a provision of a proprietary lease which required board approval for any assignment of the lease or the shares appurtenant thereto, “including any interest therein,” but did not expressly prohibit changes in the beneficial ownership of the lessee?

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Court “Fl[u]shes Out” Leaking Loo Litigation

This was originally posted on the SGR Blog.

A ceiling fixture falls on a tenant in his apartment. Shortly before the incident a toilet leaking from the unit above was replaced. The tenant blames the owner. And the owner blames the plumber. Case closed. Not. Issues of fact as to causation and notice. Claims for contribution and indemnification. Cross-claims for negligence. A textbook case worthy of a bar exam  question.

Daniel Ebalo claimed that he was injured when a ceiling light fixture in his bathroom fell onto him due to the negligent installation of the toilet in the apartment above his by the Trustees of Columbia University, Columbia University, the property owners, and Titan PH LLC, a plumbing contractor.

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The East River Divide

This was originally posted on the SGR Blog.

Litigation is not mathematics. There is not always a universally accepted equation or answer. And as we often tell clients: Any similarity between justice and our justice system may be purely coincidental. Outcomes are often dependent upon the experience-based tendencies of the trial court, or the composition of a jury or appellate court panel.

Many considerations go into filing a lawsuit, such as the various theories of liability to be prosecuted, the nature of the relief sought, and the cost-benefit analysis based upon the anticipated expense of litigation. But occasionally, in a suit to be pursued in New York City, an important threshold consideration is in which of the five counties the proceeding should be filed.

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Bouncy House Brouhaha: Imagined Danger Does Not Invite Rescue

This post originally appeared on the SGR Blog.

What did 26 year old  Samantha Fernandez expect when she entered the bouncy house at her four year old niece’s birthday party? As a recent case illustrates, an injury resulting from an instinctive act of concern raised a plethora of legal issues.

Samantha Fernandez injured her left foot while inside an inflatable rubber bounce house at the Laser Bounce of Li, Inc. children’s entertainment center in Levittown, New York. Fernandez sued Laser Bounce  on various theories of liability, including violations of the New York State Labor Law as well as provisions set forth in bulletins issued by the U.S. Consumer Product Safety Commission. In response to Laser Bounce’s motion for summary judgment, Fernandez retreated to the exclusive theory of liability in this matter that the negligent failure to provide adequate supervision of the bounce house which Laser Bounce owned, operated, maintained, and which it had a responsibility to supervise. Laser Bounce moved for summary judgment dismissing the complaint.

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What is a (Door) Man to Do? Level of Lobby Care Required After a Storm

This was originally posted on the SGR Blog.

When it rains it pours. And sometimes litigation en(sues).

Janice Kasni lived at 30 Lincoln Plaza located on 30 West 63rd Street. Shortly after midnight, Kasni returned from an evening out, when she slipped and fell on the floor of the lobby. It had rained for much of day before the accident and long brown rugs had been placed from the doors to the lobby to the elevator bank.

When Kasni entered the building, she stepped onto the rug in front of the door and then headed left towards a couch that was near the entrance—and stepped off the rug and slipped on the floor.

Kasni testified at her deposition that she had taken up to two steps when both feet went out from under her and she fell backwards, flat onto her back. Prior to stepping on to the floor, she saw “the marble floor, that’s all.” Kasni did not notice any water or wet spots. Only after coming in from the rain, falling and lying on the floor, did Kasni first notice water on the marble floor. The water she saw was clear and was like a small puddle. Kasni was unable able to provide dimensions of the puddle and did not know how long the puddle had been there.

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New York Court of Appeals (March/April 2020)

This was originally published on the SGR blog.

The middle of the 2019-2020 Term of the Court featured only a handful of dispositions on civil matters, but no landmark decisions. Two opinions by Judge Stein, relating to the General Business Law and the  arbitration process, do provide templates for  future GBL  claims and arbitration proceedings.

Plavin v. Group Health Inc.
March 24, 2020

Question: The United States Court of Appeals for the Third Circuit asked the Court of Appeals to decide whether Steven Plavin sufficiently alleged consumer-oriented conduct to assert claims under General Business Law §§ 349 and 350 for damages. An insurance company’s allegedly made materially misleading representations directly to the City of New York’s employees and retirees about the terms of its insurance plan to induce them to select its plan from among the varioous health insurance options made available to current and former City employees.

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What is a [Door]Man to do? Level of Inquiry Required When Tenant Brings a Guest

This was originally published on the SGR Blog.

Many luxury and other residential buildings in New York City feature doormen or other concierge services. Does the presence of such personnel create a duty to screen guests—and concomitant liability for the alleged failure to properly do so? A recent case addressed that question.

Zoe Denison sought damages for injuries sustained at the hands of Roxanne Woychowski, and the alleged negligence of the 300 East 57 Street, LLC, and Rudin Management Co. Inc. and others, that arose from a night on the town.

The court granted summary judgment and dismissed Denison’s claims against 300 East and Rudin. Denison asked the Court to reconsider the order.

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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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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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