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

Posted on January 31, 2020 | Comments Off on A Yellowstone Proceeding Cannot Extend the Time to Cure an Incurable Default

This was originally published on the SGR Blog.

A 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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Posted in Litigation, New York Law

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

Posted on January 20, 2020 | Comments Off on 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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Posted in Litigation, Litigation, Motor Vehicle Law, New York Law, Personal Injury

Rules Are [Not] Made to Be Broken

Posted on January 13, 2020 | Comments Off on Rules Are [Not] Made to Be Broken

This was originally published on the SGR Blog.

Supreme Court recently addressed a motion to dismiss claims by residential unit owners—who were holders of unsold shares — that the cooperative’s board of directors had impermissibly amended various rules relating the housing of pets, subleasing and move-in charges.

Ironically, the Court issued an extremely and extraordinarily lengthy summary and analysis of the arguments and counter-arguments with respect to the by-laws and proprietary lease, only to find and conclude that the relevant provisions ran unambiguously in favor of the board.

Murray House, a residential cooperative, owns a building at 220 Madison Avenue. The elected Board of Direct was authorized, pursuant to its by-laws, to manage the business and affairs of the cooperative.

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Posted in Co-Ops, Litigation, New York Law, Real Estate

Hotly Contested Upper West Side Coffee Pot Dispute

Posted on January 6, 2020 | Comments Off on Hotly Contested Upper West Side Coffee Pot Dispute

This was originally posted on the SGR Blog.

On August 27, 2015, Theodore Comando went to a  deli on the Upper West Side, owned by C.P. Yang Corp, to purchase a cup of coffee. He walked to the counter and lifted a coffee pot from the coffee burner. While lifting the pot, the bottom of the pot fell out, causing his legs and feet to be scalded with second degree burns.

Countering Comando’s version of the facts, the owner of the store, Keumyul Yang, stated in deposition testimony that he was not present during the incident but was told by his employee, Domingo Ogacion, that two coffee pots were involved, and that Comando was holding the right coffee pot and hit the pot into the left coffee pot, causing a hole in the side of the coffee pot that he was holding. However, when was deposed separately, Ogacion stated that Comando was holding the left coffee pot and the bottom fell out.

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Posted in Litigation, New York Law, Personal Injury

“Stormy Weather”: [Was] the Sun Up in the Sky?

Posted on December 31, 2019 | Comments Off on “Stormy Weather”: [Was] the Sun Up in the Sky?

This was originally posted on the SGR Blog.

Joanna Lechowicz sued the Condominium for injuries she allegedly sustained, on March 10, 2014 at approximately 6:25 a.m., when she slipped and fell on snow or ice on the sidewalk abutting 130 Pondfield Road, Bronxville, New York, at or near the property line of 12 Meadow Avenue, Bronxville. Wojcjech Lechowicz sought damages for the alleged loss of consortium arising from Joanna’s accident and injuries.

The Board moved for summary judgment dismissing the complaint on the ground that the “storm in progress” rule applied.

A defendant property owner moving for summary judgment in an action predicated upon the presence of snow and/or ice has the initial burden of establishing prima facie that it neither created the snowy or icy condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of such condition. That burden may be satisfied by offering evidence that there was a storm in progress at the time of the accident. If the defendant meets this initial burden, then the burden shifts to the plaintiff to raise a triable issue of fact as to whether the injured plaintiff’s fall was caused by something other than precipitation from the storm in progress.

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Posted in Condominiums, Litigation, New York Law, Real Estate

New York Court of Appeals Update (December 2019)

Posted on December 27, 2019 | Comments Off on New York Court of Appeals Update (December 2019)

This was originally posted on the SGR Blog.

The Fall session of the Court’s 2019-2020 term saw a jurisprudential smorgasbord of decisions relating to the scope and application of civil, criminal, local and administrative statutes, ordinances and regulations.

  • Conviction of a physician for homicide  for providing controlled substances that resulted in overdose deaths.
  • Liability  of the State for injuries to an inmate by corrections officers.
  • Place of injury and applicable statute of limitations in breach of contract dispute.
  • Private right of action for bad-faith reporting of medical misconduct.
  • Enforceability of local zoning law precluding music festival on rural property.
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Posted in Litigation, New York Law

Canine Behavior Consultant Finds Pit Bull to be “Fear-Aggressive”—and Willing to “Attack and Fight”

Posted on December 16, 2019 | Comments Off on Canine Behavior Consultant Finds Pit Bull to be “Fear-Aggressive”—and Willing to “Attack and Fight”

This was originally published on the SGR Blog.

Alan and Lisa Johnson, husband and wife, sued for injuries Alan Johnson suffered when a dog owned by Kalpano Rao and Narayan Raj attacked Alan in an elevator in a residential condominium owned by Element Condominium and managed by Elliman Property Management. Rao and Raj owned and resided in condominium units in the building.

On May 30, 2011, Johnson, Raj, and his dog Ibiza boarded a public passenger elevator inside the building. Once inside, Johnson asked if he might pet Ibiza, to which Raj assented. Johnson lowered his hand to Ibiza to allow the dog to sniff him, and, after the dog appeared to accept Johnson’s hand, Johnson knelt down to face and pet the dog. After Johnson pet Ibiza, as Johnson was standing up, the dog barked at him, lunged at him, and bit his face, tearing off pieces of his nose and lip. Raj immediately pulled the dog away from Johnson, but not before he had suffered severe facial injuries that required plastic surgery.

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Posted in Animals, Litigation, New York Law

Liability is a Matter of Inches

Posted on December 9, 2019 | Comments Off on Liability is a Matter of Inches

This was originally posted on the SGR blog.

Awilka Alonzo  sued Audubon Avenue Housing after she purportedly trip and fell over a metal door saddle in her apartment building’s lobby at the 215 Audubon Avenue Housing Development. She claimed that, on July 10, 2015, she was leaving for work when her left foot bumped into the metal door saddle and she fell. Alonzo contended that the door saddle constituted a defective condition because it was not flush with the tile floor.

Audubon moved for summary judgment on the ground that the metal door saddle did not constitute a defect. Audubon’s expert opined that “the saddle/threshold at the subject premises [was] free of defect in design, installation or maintenance, and does not pose a tripping hazard.” He found that:

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Posted in Landlord-Tenant, Litigation, New York Law

[Brawl] Over Troubled Waters

Posted on December 2, 2019 | Comments Off on [Brawl] Over Troubled Waters

This was originally posted on the SGR Blog.

Plaintiffs (Joseph Ubiles and Bernice Ubiles) and defendants (Ndingfarae Ngardingabe and Julie Camisuli) own adjoining properties on West 147th Street in Manhattan. Plaintiffs claimed that rain water and snow melt was flowing from defendants’ driveway into their property. Plaintiffs contended that, as a result of the runoff, the foundation and the walls of their home had been damaged. They contended that defendants caused the condition by impermissibly altering the water drainage system in defendants’ driveway and doing nothing to remediate the problem despite plaintiffs’ complaints.

Plaintiffs sued. Defendants moved to dismiss based on the statute of limitations and on plaintiffs’ failure to state a cause of action. Defendants claimed that the driveway was installed in 1989 when two lots (431 and 433 West 147th Street) were merged. Defendants argued that the driveway is pitched towards the street and was not causing damage to plaintiffs’ property. Defendants claimed that,  in 2006, plaintiffs requested  their permission to access defendants’ driveway to do pointing work and partial waterproofing on plaintiffs’ wall. Defendants contended that, by 2009, the work on plaintiffs’ wall was deteriorating and rendered the property vulnerable to damage from rain and snow.

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Posted in Litigation, New York Law, Real Estate

New York Court of Appeals Alert (November 2019)

Posted on November 25, 2019 | Comments Off on New York Court of Appeals Alert (November 2019)

This was originally posted on the SGR blog.

The mid-2019/2020 term of the New York 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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Posted in Litigation, Litigation, New York Law