Some Cases Are Like a Bad Cold—They Keep On Coming Back

Posted on November 4, 2019 | Comments Off on Some Cases Are Like a Bad Cold—They Keep On Coming Back

This article was originally posted on the SGR blog.

Boyd Richards Parker & Colonnelli, P.L. and Bryan J. Mazzola sought a temporary restraining order, dismissal of the matter, sanctions, and requested the Court to enforce its prior order requiring James Pettus to seek judicial leave prior to filing any further papers with the court.

Pettus, without counsel, initiated the action in late 2018, ostensibly seeking further relief upon prior actions which he initiated against the co-op board of his building. The pending action named the law firm which represents his co-op, their attorney Bryan Mazzola and the Honorable Laura Douglas, who ruled against Pettus in a prior related matter. Pettus’ complaint, according to the Court, “ reads as a stream of consciousness wherein he accuses most of the staff of the Bronx Supreme Court of corruption, racial animus, bribery, fraud, and a litany of other violations most familiar to anyone who has studied intentional torts.”

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

What a Tangled [And Costly] Web We Weave …..

Posted on October 28, 2019 | Comments Off on What a Tangled [And Costly] Web We Weave …..

This was originally published on the SGR Blog.

The commercial lease agreement between The St. Luke’s Hospital Center, as landlord, and WestSide Radiology Associates, as tenant, prohibited WestSide from assigning the lease without St. Luke’s prior written consent.

The lease rider defined an assignment as a transfer of a “Controlling Interest,” meaning “more than a fifty percent (50%) interest in the [stock of the corporate tenant]” or “the ability to control the decisions or affairs of the [corporate tenant].” And the lease required that any assignee be an active member of St. Luke’s medical staff with admitting privileges.

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Posted in Landlord-Tenant, Litigation, New York Law, Real Estate

“Offer and Acceptance” and “Meeting of the Minds” Déjà vu

Posted on October 21, 2019 | Comments Off on “Offer and Acceptance” and “Meeting of the Minds” Déjà vu

This was originally posted on the SGR Blog.

In first year “contracts” (in 1966) at NYU Law, Professor Francis J. Putman spent (what seemed like) several weeks on “offer and acceptance” and “meeting of the minds.” Five decades later, our courts still periodically address those threshold issues. A recent case illustrates the point.

In March 2015, William Collins entered into negotiations with Utica Builders, LLC, for the sale of the Collins’ real property located in Brooklyn. On March 6, 2015, Utica submitted a proposal to purchase the property for $590,000, with a deposit of $29,500. Collins then sent Utica an unexecuted proposed contract of sale that included Utica’s proposed price terms and provided that the property would be sold as is. On March 19, 2015, Utica sent Collins a check in the amount of $29,500, as a deposit,  and four signed copies of the contract of sale– with handwritten additions stating that Collins represented that the “[p]remises are a legal (2) family dwelling as per the certificate of occupancy.” On March 26, 2015, Collins’ attorney changed the handwritten description of the premises from “(2) family dwelling” to “(1) family dwelling,” and sent two original copies of the fully executed contract of sale back to Utica’s attorney.

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

Not Every Written and Signed “Agreement” is a Legally Enforceable “Contract”

Posted on October 14, 2019 | Comments Off on Not Every Written and Signed “Agreement” is a Legally Enforceable “Contract”

This was originally published on the SGR blog.

On January 4, 2013, Thelma Sosa and Aron Froimovits signed a handwritten, one-page agreement in which Sosa agreed to sell to Froimovits or his assignee two separate properties in Brooklyn, one located on Menahan Street and the other on Central Avenue. The agreement contained a single purchase price, $1,375,000, for both properties. Froimovits was to give Sosa a deposit of $1,000 “plus $99,000 upon demand of [Sosa] to be held in escrow with [Sosa’s] attorney or a title company.” Froimovits gave Sosa a check for $1,000. No demand was ever made for the additional $99,000.

The Menahan property was to be delivered at closing with at least four apartments vacant. And the Central Avenue property was to be delivered with at least three vacant apartments. The closing was to be held “30 days after notice to buyer that the properties are vacant.”

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Posted in Litigation, New York Law, Real Estate

If A Tree Falls in the Forest…

Posted on October 7, 2019 | Comments Off on If A Tree Falls in the Forest…

This originally appeared on the SGR blog.

In 2016 John and Joanne Rhodes purchased a townhouse unit in the Lagoon Manor Development on the shores of Lake George in the Town of Bolton Landing, Warren County. All common property within the Manor is owned by Lagoon Manor Home Owner’s Association, Inc. Anne Swope also owns a townhouse in the Manor and was a Board member of the HOA from October 2014 to July 31, 2018.

The Rhodes alleged that, on or about August 7, 2017, the Adirondack Park Agency granted permits which authorized view plans to be implemented on HOA property. The view plans — intended to create a “filtered view of Lake George” — provided that certain trees would be removed or trimmed while other trees would remain. The HOA hired a contractor to complete the approved tree trimming.

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Posted in Condominiums, Litigation, Real Estate

Truth is Sometimes Stranger than Fiction

Posted on September 30, 2019 | Comments Off on Truth is Sometimes Stranger than Fiction

This post originally appeared on the SGR blog.

Jared Schaefer was served food at Tony’s Sushi restaurant that contained peanuts, an ingredient that was not listed on the menu. He alleged that the peanuts caused him to suffer an allergic reaction. Schaefer alleged that the restaurant was negligent in failing to warn him of the presence of peanuts in the food, creating a dangerous condition, and in failing to disclose the presence of a potential allergen.

Tony’s moved for summary judgment dismissing the complaint, arguing that it did not owe a duty to Schaefer, or, if it did owe a duty, that there was no causal connection between its alleged negligence and Schaefer’s injuries. Schaefer opposed the motion, arguing that triable issues of fact existed as to the duty owed by Tony’s and as to the causal connection between the presence of the alleged allergen and his injury.

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Posted in Litigation, Litigation, New York Law

Every Dog is Entitled to One Bite

Posted on September 23, 2019 | Comments Off on Every Dog is Entitled to One Bite

This was originally published on the SGR Blog.

On July 5, 2016, the Bakshis’ dog allegedly mauled a small dog owned by Felice Kobrick and bit the finger of Frances Drakes. The incident occurred in the street abutting the Bakshis’ property in Nassau County. A few days later, Kobrick’s dog was euthanized.

The Drakes sued the Bakshis to recover damages for personal injuries. The Bakshis moved for summary judgment dismissing the complaint. Supreme Court granted the motion.

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Posted in Animals, Litigation, New York Law

Work Contemplated by Lease: Not an Actual or Constructive Eviction

Posted on September 16, 2019 | Comments Off on Work Contemplated by Lease: Not an Actual or Constructive Eviction

This was originally published on the SGR blog.

Fieldstone Capital (landlord) filled a summary (non-payment) proceeding against Ryan & Conlon (tenant). And Ryan & Conlon asserted that it did not owe rent because the firm had been partially evicted, actually or constructively, from its 7th floor office as a result of common area renovation work done by Fieldstone.

Paragraph 4 of the governing commercial lease agreement authorized Fieldstone to make “repairs, alterations, additions or improvements” in or to any portion of the building or demised premises, with “no allowance to Tenant for diminution of rental value and no liability on the part of Owner by reason of inconvenience, annoyance or injury to business” arising from these acts. The provision also provided that Ryan & Conlon was not entitled to “any set off or reduction of rent” due to landlord’s failure to comply with any covenant of the lease, and that tenant’s “sole remedy” at law was an action for breach of contract.

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Posted in New York Law, Real Estate

It’s A Dog’s Life

Posted on September 9, 2019 | Comments Off on It’s A Dog’s Life

This was originally published on the SGR Blog.

Westchester Plaza Holdings, LLC filed a summary holdover proceeding to evict Gertrude Sherwood and her son, Sheldon Sherwood, on the ground that they had failed to cure their violation of the no-pet clause in the parties’ lease. Specifically, Westchester Plaza claimed that  the Sherwoods had violated their lease by harboring a dog without landlord’s permission. and sought a final judgment of possession of their rental apartment. Gertrude did not appear in the action. Sheldon appeared and asserted that the dog was an emotional support animal entitling him to keep  the pet in the apartment under the State’s Human Rights Law.

A non-jury trial was held before the Court. Westchester Plaza called Jana Schmidt, its in-house counsel, who testified that she was informed sometime in late February or March of  2019 that the Sherwoods were harboring a dog in the apartment in contravention of the parties’ lease. Schmidt further testified that, after being informed of the dog in the apartment, she directed her staff to investigate. She also testified that she was informed by her staff that visual observation and video confirmed that a dog was being harbored in the apartment by the Sherwoods. Schmidt further testified that neither  of them asked for permission to have a dog in their apartment.

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

Build It And They Will [Sue]

Posted on September 3, 2019 | Comments Off on Build It And They Will [Sue]

This was originally posted on the SGR Blog.

Virginia F. Kleist and Daniel Stern owned own lakefront properties within the Chautauqua Shores subdivision. All property owners were subject to covenants and restrictions that were filed in 1962, when the subdivision was developed. The covenants and restrictions give “each and every owner of land in [the subdivision] . . . the right to enforce the same by appropriate court proceedings.”

In December 2014, Stern purchased his property with plans to demolish the existing house and build a much larger house. When Kleist saw the site plans for the new house, she notified Stern by letter in early August 2015 that the site plan showed that the home he was about to construct was in violation of paragraph five of the covenants and restrictions, which required a 100-foot setback from the lake line for any building. That same month, Kleist filed suit to enjoin Stern from violating that covenant and restriction and to require him to remove any buildings that were in violation. By her amended complaint, Kleist alleged that the house would also violate the second and fourth paragraphs of the covenants and restrictions.

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Posted in Litigation, New York Law, Real Estate