“Arbitrary and Capricious” Confronts the “Business Judgment Rule” at 137 Duane Street

This was originally published on the SGR Blog.

What Standard Applies in Article 78 Proceeding Challenging Decision of Board of Managers?

Proceedings challenging board decisions under Article 78 of the Civil Practice Rule are governed by the test of whether the disputed action was “arbitrary and capricious”. But challenges to the action of members of the boards of residential condominiums are governed by the “business judgment rule”. So which standard governs when a condominium unit owner questions the conduct of the board of managers?  A recent case addresses that question.

Notoya Green, as Trustee of a family trust, sought an Article 78 order: annulling and setting aside, as arbitrary and capricious, the rejection by the Board of Managers of Diamond on Duane Condominium, of her alteration application with respect to the renovation of two units; and  compelling the Board to consent to the requested alterations or deeming that no consent was required under the building’s governing documents.

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Access to a Neighboring Building Is Not Guaranteed

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

The co-op board at 160 E. 65th St. in Lenox Hill hired an architect to inspect the building’s facade – a routine first step toward complying with the city’s Facade Inspection and Safety Program, formerly known as Local Law 11, which requires owners of buildings taller than six stories to inspect their facades and make necessary repairs every five years. The architect reported back that remedial work was urgently needed – and the project would require access to two buildings behind the 178-unit, 32-story co-op tower. Specifically, the co-op sought a license to install, maintain and remove roof protections, pipe scaffolding, a sidewalk shed, and a protective shed on the neighboring property. Also required was a scaffold that would hang directly above one of the two buildings. Safety plans were annexed to the petition.

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E-Mail to Unit Owners: Privileged or Defamatory? Pause Before Hitting Send

This was originally published on the SGR Blog.

Four things predictably happen in the Fall. Clocks are changed. Leaves lose color. Board controversies surface. And lawsuits result.

Residential coop and condo disputes often now involve nasty on-line accusations and exchanges. Those snarky missives may—or may not—be the basis of a claim for defamation. As a recent case illustrates, the Court may have to decide whether or not the attacks are privileged and protected communications or defamatory and actionable

On April 11, 2018, the Board of Managers of Brightwater Towers Condominium sued Nina Shlivko to recover damages for defamation.

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2015 Decree Collides With 1896 Deed in Ogdensburg: Canon Law Confronts and Trumps the Common Law

This was originally posted on the SGR Blog.

Real property “quiet title” actions often force the Court to apply contemporary facts to complicated legal distinctions raised by controverted century-old documents. A recent case arose out of the right of reverter in a 1896 deed of property for “church purposes” and a 2015 church decree relegating the property “to profane but not sordid use”—and turned on the meaning of phrases under the both the common law and canon law.

In 1896, the president of the Paul Smith’s Hotel Company — Apollos “Paul” Smith — signed a deed by which the Hotel Company transferred property in Franklin County to the Bishop of Ogdensburg in trust for a Catholic congregation. The deed stated that the property was to be used “[a]s and for [c]hurch purposes only, . . . and in case the said premises shall be devoted to any other use than for [c]hurch purposes, . . . this conveyance shall be void and the parties of the first part shall have the right to re-enter and take possession of said premises and every part thereof.”

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“Wrong Way” Biker Hits “Jay-Walker” on E. 55th: NY Law and NYC Reg Collide Btw. Lex. and Third

This originally appeared on the SGR Blog.

A deliveryman drives his  bicycle against traffic on a one way street.  A pedestrian crosses in the middle of the block. The biker hits the jay- walker. Litigation ensues. Both violated the law.  Who is at fault?

Antoinette Montague was struck by an employee  of T&W Restaurant, Inc. while he was making deliveries on a bicycle. The employee was riding the bike against the one-way direction of travel on East 55th Street between Lexington and Third Avenues– a violation of the Vehicle and Traffic Law.

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Can Buyer of Building with Regulated Unit Back Out of Deal After HSTPA?

Copyright by, and republished with permission of, Apartment Law Insider.

Legal blogs are “agog” with speculation as to the viability, during the pandemic, of force majeure and impossibility/frustration-of-performance defenses to obligations under leases, mortgages, and other real property contracts. A recent case examines the viability of those defenses in another context—a change in law.

On April 19, 2019, Malachite Servs., LLC agreed to purchase a building in Midtown Manhattan from 148-150 E. 28th St LLC for $6.668 million, with a down payment of $668,000 but no mortgage contingency clause.

In June 2019, New York passed the Housing Stability and Tenant Protection Act of 2019 (HSTPA). According to Malachite, that caused the appraisal value of the premises to fall to $5.7 million.

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Finger[pointing] Backfires on Grand St.

This originally appeared on the SGR Blog.

Parking space disputes between neighbors, when coupled, conflated  and complicated with claims of adverse possession, can ignite a legal conflagration. And, as a recent case illustrates, jurisprudential fireworks  intensify exponentially where the parties asserting and defending their right to park is a group of attorneys.

Kenneth J. Finger and family members owed a parcel  on Grand Street in White Plains adjacent to a lot owned by Grand St. Realty, LLC.  In May 2016, the Fingers filed suit for a judgment declaring they had acquired, by adverse possession, title to a 24-inch strip of land on Grand’s property. The strip runs between the contiguous parcels for the length of a driveway separating the properties, and a 4-foot strip at the rear of Grand’s land that runs between the two parcels.

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Warnings: “TRAIL CLOSED…STOP, RESTRICTED AREA”: Did Hikers Nevertheless Have a Claim After Being Hit By a Falling Tree?

This was originally posted on the SGR Blog.

With the benefit of hindsight, it is clear that some lawsuits never should have been filed. A recent case makes that point.

Unidentified parents, on behalf of themselves and their child (let’s call them the “Walkers”), brought a premises liability action against New York State. They sought damages for injuries sustained when they were struck by a falling tree at Letchworth State Park — and alleged that the State was negligent in failing to inspect the park’s trees and protect visitors to the park from injury.

The Court of Claims denied the Walkers’ motion for partial summary judgment on the issue of liability and granted the State’s cross motion for summary judgment dismissing the claim. The Walkers appealed.

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Court Declines to Stop Illegal Parties During the Pandemic

This was originally posted on the SGR Blog.

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

Most of the litigation triggered by the coronavirus pandemic so far has involved business disputes – over the terms of commercial leases, for instance, or over claims for business-interruption coverage that were denied by insurance carriers. But a recent decision in state Supreme Court in Brooklyn could be the harbinger of a coming wave of COVID-inspired lawsuits in residential properties, including co-ops and condominiums.

In a residential building at 100 S. 4th St. in Williamsburg, Brooklyn, the owner claimed a resident was a “long-term disrupter” who hosted numerous large gatherings in his apartment, endangering the lives of other residents and brazenly flouting Gov. Andrew Cuomo’s “New York State on Pause” Executive Order that went into effect March 22. That order stated: “Non-essential gatherings of individuals of any size for any reason (e.g. parties, celebrations or other social events) are canceled or postponed at this time.”

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Best Lawyers in America© Recognizes 63 SGR Attorneys in 2021

This was originally posted on the SGR blog.

ATLANTA (August 20, 2020) – Smith, Gambrell & Russell, LLP (SGR) is pleased to announce that 63 of its attorneys were selected for inclusion in the 2021 edition of The Best Lawyers in America©, the leading peer-review-based directory of legal practitioners. SGR has continued to increase the number of firm attorneys recognized each year, with 18 additional selected in 2021.

The following SGR attorneys were selected for inclusion in The Best Lawyers in America© in their respective practice areas for 2021:

New York

·    Roger Juan Maldonado (Litigation – Intellectual Property)

·    Dana Mark (Trusts and Estates)

·    Victor M. Metsch (Litigation – Real Estate)

·    Russell Wolfson (Construction Law)

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