Category Archives: Real Estate

Would UWS Hi-Rise Developer be Forced to Demolish Top Floors?: First Department Tackles Complicated/Ambiguous Zoning Rules

This was originally published on the SGR Blog.

Questions presented: Was it proper for Supreme Court to annul the determination by the Board of Standards and Appeals to approve a new 55-story condominium building at 200 Amsterdam Avenue on the Upper West Side of Manhattan? For Supreme Court to direct the demolition of an unspecified number of floors from the building? And were legal proceeding moot because the building was substantially completed and the Committee of Environmentally Sound Development and the Municipal Art Society of New York failed to exercise continued due diligence to halt the project by not seeking injunctive relief at every stage of the protracted litigation?

The building lot was originally part of a single parcel of land, which in the 1960s consisted of five buildings along West End Avenue. In 1987, the DOB approved a subdivision into two separate parcels that included partial tax lots and, subsequently, two mergers with four other tax lots. In 2015, the DOB approved another zoning lot subdivision, creating two new zoning lots, both of which contained partial tax lots, and filed a declaration with the City Register. The pertinent subdivided zoning lot included the improved land at 200 West End Avenue, the unimproved land at 200 Amsterdam Avenue, and portions of four other tax lots.

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“Something There Is That Doesn’t Love A Wall”: Especially Between Two Outdoor Apartment Terraces

This was originally posted on the SGR Blog.

Contiguous neighbors often get into disputes concerning protection or invasion of their property lines and rights. But, as a recent case illustrates, the legal battle can reach great heights when the claims are between the disputatious owners of neighboring outdoor terraces.

Nocola W. Cicchetti sued TRNC Associates Ltd. and 333 East 46th St. Apartment Corp. for trespass, breach of contract, and injunctive and declaratory relief arising from a dispute over the placement of a partition wall between two outdoor apartment terraces. TRNC and the coop moved to dismiss.

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Shootout at the Poonam on Park Hill Ave: Was Security Lax and Incident Foreseeable?

This was originally posted on the SGR Blog.

Terry Kellman sued Poonam Apts. LLC, the owner of 180 Park Hill Avenue on Staten Island, and Jelene Greenfield, the building’s managing agent, for injuries sustained when he was shot at the building by Angelo Nesemi.

Kellman asserted two causes of action for negligence. In the second negligence claim, he asserted that Poonam and Greenfield were negligent in failing to take proper precautions for his safety, hiring, screening, training, supervising of its employees, and failing to adopt appropriate procedures for the protection of visitors. Poonam and Greenfield moved to dismiss the complaint.

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NYC Administrative Code Collides with Personal Guaranty of Lease At Sons of Thunder in Murray Hill

This was originally published on the SGR Blog.

The recent legal tsunami of executive and administrative orders in New York State and New York City has fueled a wave of litigation between commercial landlords, tenants, and lease guarantors. As a recent case illustrates, the disputes raise issues as to the constitutionality of those orders.

204 E. 38th LLC leased space to Sons of Thunder LLC, under a ten-year lease signed in 2014, for a restaurant in Murray Hill specializing in Hawaiian and Californian beach-inspired food. Thunder stopped paying rent (and additional rent) in March 2020. John Kim signed a guaranty in connection with the lease. E.38th LLC sued Thunder and Kim.

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Good Timing is Invisible: Bad Timing Sticks Out a Mile

This was originally published on the SGR Blog.

Harsh facts do no automatically lead to an equitable result. In a recent case, a commercial tenant signed a New York City lease that contemplated the tenant would “build-out” the leased “white box” space into a second-floor gymnasium. The day after the signing, construction was stopped, and gyms were closed by Executive Order due to the pandemic.

ITS Soho LLC sought rescission and termination of a long-term lease for second-floor space with 598 Broadway Realty Associates, Inc. The lease term was to start on March 15, 2020. The lease required Realty to provide a “white box” to Soho, and Soho was to do its own build-out as a gym. The lease also provided no obligation to pay rent for the first six months, and the first monthly installment was not due until September. Soho took possession on March 15, 2020, and the very next day, March 16, 2020, gyms were ordered to shut down effective on March 17, 2020, due to the ongoing pandemic. Gyms were not permitted to reopen until September 2020.

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Tenant’s Pandemic Related Exercise of “Good Guy“ Guarantee

This was originally published on the SGR Blog.

Confronts Dispute With Landlord Over Amount Due

Commercial leases are often signed with a concomitant “good guy” guarantee, in which a principal of the tenant guarantees the payment of the financial obligations under the lease. And the guarantor can be released from such liability if both a timely notice to terminate the lease is given, and rent and additional rent are paid in full until the date of surrender. But what if the landlord and tenant disagree about the amount due to perfect the termination and release?

Monica King Contemporary LLC, a corporate tenant, and Monica King, individually, as “good guy” guarantor, sought injunctive relief from a lease with Kedskidz Realty II for the ground floor and basement space used for an art gallery and office at 39 Lispenard Street.

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Pix of House From Google Street Dispositive: Resolve Dispute Between Chauncey St. Neighbors

This was originally posted on the SGR Blog.

Neighbors regularly and routinely litigate disputes over fallen trees and branches. A recent case had a twist: the dispositive proof was photographs from Google Maps.

Terry L. Young sued Fredrick Wide, Rory O’Flaherty, Elizabeth O’Flaherty, Arnoldo’s Tree Service and Outside Space for property damage and trespass based on a tree branch from the adjacent property, owned by Wide, falling on the rear portion of the roof of her property; the unpermitted removal of an apple and a fig tree from Young’s property; and the erection of a fence which purportedly encroaches on her property.

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Life, Liberty and the Pursuit of Yoga: Fitness Studios Challenge NYC Shutdown

This was originally posted on the SGR Blog.

Pandemic-related Emergency Executive Orders by the Governor of New York and the Mayor of New York City have had a severe and differential impact on the operation of fitness, yoga, pilates, and other group activity studios. Indoor classes in studios in the NYC metropolitan area were banned—while similar activities were permitted upstate. A recent case addressed the question: did the geographic divide raise constitutional issues?

Grasmere Fit, Inc. sought a preliminary injunction stopping New York City from enforcing, attempting to enforce, threatening to enforce, or otherwise requiring compliance with the continued New York City lockdowns and New York City shutdown of fitness, yoga, pilates, and other boutique studios.

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A Disguised Late Fee Is Nevertheless a Late Fee: Landlord Fails to Navigate Statutory Restrictions

This was originally posted on the SGR Blog.

Residential rent late fees and charges are unambiguously limited by statute in New York. A landlord’s effort to avoid the legal restrictions was the subject of a recent appeal in an action in which a tenant challenged an attempt to navigate around the law.

Douglas Ritter was the landlord and owner of several rental properties in Broome County, and Karina Beco and others were Ritter’s tenants. In June 2019, Ritter sent a notice to Beco providing that, as of August 1, 2019, the monthly rental rate would be increased to $1,000 per month unless she paid the rent by the first of each month, upon which she would be entitled to a rental “discount” equal to the difference between their original monthly rental rate and the new $1,000 monthly rental rate. Beco’s attorney sent Ritter a letter informing him that his notice of proposed rental increases and corresponding “discounts” constituted an illegal late fee in violation of Real Property Law § 238-a and requested that change be withdrawn. In reply, Ritter sent Beco an amended notice, slightly reducing the newly proposed monthly rental rate and further providing that she would be entitled to a $375 “discount” if the rent was paid, in full, by the seventeenth of each month. Beco’s attorney objected to the amended notice on the same ground.

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COVID-19 Meets “Yellowstone” at a Restaurant on Avenue A: Was Pandemic a “Casualty” that Excused Payment of Rent?

This was originally published on the SGR Blog.

Our Courts have recently issued several decisions addressing (and, for the most part, rejecting) arguments by commercial tenants that payment of rent was excused due to pandemic and Executive Order-related impossibility or frustration of performance. In a ruling released last week, the Court tackled the novel question of whether or not the pandemic constituted a “casualty” that excused the payment of rent.

188 Ave. A Take-Out Food Corp. signed a commercial lease with Lucky Jab Realty Corp. on May 1, 2017, to operate an indoor dining restaurant. On March 16, 2020, Governor Andrew Cuomo issued Executive Order 202.3 that suspended indoor dining within the State of New York until further notice to prevent the spread of the COVID-19 pandemic. Per the Executive Order, Food Corp. suspended indoor restaurant operations and did not use the premises for such purposes until November 2020.

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