CHURCH BELLS

Langan v. Bellinger, 203 A.D.2d 857, 611 N.Y.S.2d 59 (3rd Dept. 1994)

In Langan, residents living twenty fifty (250) feet from church brought a nuisance claim against church to prevent hourly ringing of bells between 8a and 8p and presentation of carillon concerts at 12p and 6p. Among evidence presented, an acoustical expert testified that the church bells made no more noise than passing automobiles and affidavits from fifteen community residents stated the church bells were pleasant. Additionally, the village mayor and village attorney established there was no violation of an ordinance. The court granted the defendant’s motion for summary judgment because residents had failed to allege that the bell ringing and presentation of carillon concerts was an interference that was either substantial in nature or unreasonable in character particularly failing to present objective evidence that either rebutted opinion of defendant’s expert or to demonstrate that the music and chimes constituted nuisance.

Remember: whether the interference is "substantial in nature" or "unreasonable in character" are two tests for nuisance in New York.

Impellizerri v. Jamesville Federated Church, 428 N.Y.S.2d 550 (1979)

In Impellizerri, residents brought a nuisance claim against church to prevent ringing of church bells three times a day and four times on Sundays of approximately four minutes each time. Residents argued that the volume of the bells affected their son who had a neurological disease and that he suffered heightened migraine headaches and muscle spasms as a result of the church bells. The court dismissed residents motion for injunction reasoning that although residents had special circumstances, ringing of church bells did not amount to a nuisance because ringing would not have produced an unwanted effect on an ordinary person in the same circumstances.

FIRE ALARMS

Fire bells are generally not a nuisance. See Van de Vere v. Kansas City, 107 Mo. 83, 17 S.W. 695 (1891) (ruling a lot owner cannot have a city enjoined from erecting a fire engine house on an adjacent lot on the ground that fire bells constitute a nuisance and would depreciate the value of his property). Although the operation of a municipal fire alarm system may constitute a nuisance, fire bells are not an actionable nuisance in light of the public’s need to be protected from fire and other injuries. Malhame v. Borough of Demarest, 162 N.J. 248 (1978) (articulating that if operation of present fire alarm system and certain sound levels in some locations in borough were an actionable nuisance, then continued maintenance of that nuisance would be patently unreasonable and would constitute an abuse of discretion).

The question of whether to bring suit often turns on the question of whether the damages are sufficient to warrant a lawsuit. Was that tree your favorite Black Cherry. Indeed, the type and extent of the damages varies by statute, often determining whether the landowner brings suit in New York. For example, under New York's Real Property Actions and Proceedings Law, RPAPL § 861, a landowner may seek treble or triple damages for the improper removal or cutting of a tree. That, three times the stumpage value of the tree, or $250, or both in addition to any permanent and substantial damage caused to the land if any person removes or attempts to remove any tree without consent.

Other actions that may be brought for injury to property include arguing there was a trespass of land. In Western New York Land Conservancy, Inc. v. Cullen, 886 N.Y.S.2d 303 (4th Dep’t 2009), the plaintiff-landowner sought treble stumpage value for tree damage to its property in a trespass action against the adjoining landowner. The court ruled that the plaintiff was not entitled to treble damages because he had failed to present evidence establishing stumpage value, and, instead, presented evidence of restoration costs. If the plaintiff in this case had presented credible evidence establishing stumpage value, the court would have likely awarded treble damages.

Landowners may also file an action for negligence or nuisance under well established law in New York. Damages in such actions for negligence or nuisance, however, will likely be limited to compensatory damages – or damages flowing from the injury and harm the defendant caused – rather than treble or punitive damages. For all claims to recover for injury to property, the Statute of Limitations is three years.

If there is an illegal removal of trees in a critical environmental zone, the Department of Environmental Conservation (DEC) should be notified. Notifying the DEC will inform the agency of the situation and whether any relevant parties are in compliance with environmental laws and permits. If the illegal tree removal involved state land, the guilty party may be liable for a civil penalty or treble damages, or both.

Bottom Line-- you are not without rights against the party who illegally cuts the trees in New York. The municipality, the neighbor and the DEC might all have claims, including compensatory damages and treble damages.

One statute, however, has outlasted fleeting technologies and changing socioeconomic conditions through resurrection. A recent decision by the Court of Appeals [Shmueli v. NRT N.Y. Inc., 68 AD3d 479 (2009)] has breathed new life into New York State legal malpractice law and draws from a law which is more than 700 years old. A near facsimile translation of the oldest statute in Ango-American jurisprudence, Judiciary Law 487, prohibits New York attorneys from engaging in practices that deceives any party or any court in any pending proceeding. The statute guarantees that lawyers remain ethically conscious while performing their professional responsibilities and reinforces the personal accountability for their actions both inside and outside the courtroom. While time will tell, the New York State Judiciary Law 487 is designed to deter abusive litigation tactics and misuse of client funds in connection with litigation with the threat of criminal misdemeanor and potential treble (read triple) damages to the injured party in a civil action. Whereas a legal malpractice claim may be based upon negligence, a claim under Judiciary Law 487 must plead that a defendant had an intent to deceive.

Furthermore, the Third Dep't ruled in Amalfitano v. Rosenberg, 12 NY3d (2009), that treble damages may be sought whether or not a court believes there was, in fact, a material misrepresentation of fact because the costs of plaintiff's legal representation may be a proximate result of that material misrepresentation. That is, in the absence of a material misrepresentation of fact, the court reasons that no claim nor legal expenses would have resulted. The ruling in Amalifitano eliminates monetary concerns that may have deterred potential opposing parties and as a consequence, there will likely be a considerable increase in claims under Judiciary Law 487.

Bottom Line-- clients and third parties mishandled by deceptive tactics have a newly invigorated, but long established tool to review deceit in New York.

Generally, New York does not bar claims for legal malpractice arising from a litigation settled by the former client. A client may sue her former attorney after settling a case if the attorney compelled the settlement. In Latimore v. Bergman, (2nd Dep’t 1996), the plaintiffs sued their former counsel for legal malpractice asserting that the defendant had forced a settlement in a previous personal injury action. The court denied the defendant’s motion for dismissal and summary judgment articulating that a settlement in a previous case does not preclude a plaintiff from seeking the full damage amount that would have otherwise flowed from her attorney’s negligence. Latimore v. Bergman, 637 N.Y.S.2d 777 (2nd Dep’t 1996).

See also, Leone v. Silver & Silver, LLP., 880 N.Y.S.2d 676, (2nd Dep’t 2009), where the same Appellate Division ruled a client may sue her former attorney after settlement if the attorney compelled the settlement, and in doing so, failed to protect client interests within reasonable skill and knowledge and that breach of duty caused actual damages. Unless the former attorney-defendant can prove with evidence that the defendant had indeed protected client interests within reasonable skill and knowledge OR that the breath of duty did not cause actual damages, a legal malpractice suit after settlement will survive a motion to dismiss.

Obviously, each case is fact specific, but don't be deterred from having your case reviewed by a competent legal malpractice attorney in New York.

So, what is defamatory, I recently saw an interesting article trying to explain when a New York Court might find a statement to be "opinion" (non actionable), as opposed to actionable words for defamation.

Defamation is generally defined as a false statement of fact that is harmful to some one's reputation. Many people mistakenly believe that only factual utterances are actionable for defamation liability. Opinion, however, is actionable if it can be reasonably understood as declaring or implying actual facts that can be proven true or false. Courts examine the totality of the circumstances to distinguish factual statements from actual expressions of opinion.

In the article, the author reported that constitutionally protected "opinion," within the context of that case, could be words and phrases as "leech," "sleazy male worm," "a showbiz reject," "parasite," "a loose cannon," "pathological," "lazy" and "unethical and sleazy."

In finding some of the words actionable, the Court permitted the case to proceed where the blogger "kept [defendant's] name and likeness on his website during the peak of the Departed and blocked work from [defendant]," that "[plaintiff] lied to many people taking credit when he brought nothing to the table" and "used [defendant's] name ... to lure people to the business" were factual, and thus provided a predicate for plaintiff's defamation cause of action.

The bottom line-- defamation actions require very careful analysis of what statements might be the expression of opinion (jealously protected by our Constitution and case law), as opposed to what might be factually based and maliciously intended statements of fact. Hire a New York Litigation Lawyer who will review the intricacies of such statements.

As recently reported by the NYTimes, a number of New York judges are speaking out against the increasingly sloppy litigation and collection practices of credit card debt collectors, who simply fail to investigate the claims, don't have documentary proof of the debt, fail to properly serve the debtor, and make all sorts of errors when trying to collect often stale debt.

For example, one Manhattan appeals court recently threw out a credit card case because the debt collection company had apparently sued the wrong person; while a Nassau County District Court ordered a law firm to pay $14,800 in sanctions for ethical violations stemming from their improper debt collection efforts, which included ignoring court orders, making false statements, and harassing an alleged debtor even after the debt and case was dismissed. "Debt collectors seemed to think their lawsuits were taking place in a legal Land of Oz, where everyone was supposed to follow anti-consumer rules invented by some unseen debt-collection wizard."

The bottom line-- debtors have the right to verification of debt, and the Fair Debt Collection Practices Act has teeth-- use it.

How do you identify a real estate lawyer you want to work with?

One way to find a real estate lawyer is through referrals from family or friends. Ask your family or friends whether the real estate attorney was attentive to their questions, available by telephone, took their calls personally. Personal attention and attentiveness deserves a premium when you are purchasing what will likely be your most expensive asset.

What about finding an attorney on the internet. As you can see, at Klose & Associates, we believe that the internet and e-mail are essential tools in a real estate attorney's arsenal. We handle most of our transactions by constant electronic contact with real estate brokers, clients, title agents, banks and mortgage brokers. You get prompt service, prompt response to your questions, and all parties are privy to the major steps to a real estate transaction. Make sure that the real estate lawyer you hire will meet your particular needs.

Beware, not all real estate transactional attorneys also know how to deal with real estate litigation. Litigation real estate lawyers handle lawsuits involving adverse possession, zoning and planning (Article 78), and other types of litigated issues. The morass of real estate law means that a litigation attorney needs to know how and where to look for cases that are similar to the ones involving yours.

Bottom Line-- understand that different real estate attorneys bring different skills and knowledge to a transaction or litigated matter. You should call several to be sure that they have the experience you need for your matter. Ask questions regarding your concerns, including billing rates, whether there is a flat fee, hourly fee, or contingency basis. While estimated costs in litigation are hard, they may not be in a transactional situation.

As simple and obvious as it sounds, don’t hire a lawyer for your real estate case that does not practice real estate

The Problem

The drafters of the Copyright Act (1976)) never contemplated the ease and speed of copyright infringement made possible by technological advances which include the Internet which has billions of pages of content.

A copyright is a set of exclusive rights granted to an author – or owner – of an original work fixed in tangible form for a limited and specified period of time. Original works may include literary, dramatic, musical, artistic, and certain other intellectual works. Ownership is obtained when an author (the owner) creates an original work and fixes it in a tangible form. It is a "violation" or "infringement" to copy, distribute, or adapt a work during the term of protection.

When it comes to the Internet infringement occurs in various, but often not blatant ways. The infringement occurs by faceless and nameless third parties, but occurs in the medium known as the Internet. So, owners of the copyright are economically encouraged to go after the internet providers because they are most "visible" and identifiable. This is type of infringement action seeks to enforce copyright liability through "contributory" or "vicarious" infringement.

Contributory infringement occurs when a person acts knowingly to cause or induce infringing conduct. Vicarious infringement, on the other hand, occurs when a person has both the ability to control an infringe’s actions and benefits financially from the infringement.

Defenses to Infringement

In all cases, the potential infringer has certain "defenses" to liability for infringement. One such defense is known as "fair use," another is the First Amendment's protection of free speech. "Fair use" allows the use of copyrighted materials for purposes of criticism, comment, teaching, scholarship, or research. The idea is to balance intellectual property rights against the free exchange of information and opinion-- which is a large reason that the Internet exists.

Courts determine whether copyright infringement occurred (or whether it is a "fair use") on a case-by-case basis factoring: 1) purpose and use of copy, 2) nature of copyrighted work, 3) amount copied, and 4) copy’s effect on the copyrighted work’s potential market.

Applying this "fair use" to the Internet world is a difficult task for Congress and American courts. Internet content providers argue their use of copyright works is fair use; Copyright holders and content creators argue that their protections are being infringed.

Under the First Amendment, the idea is that anonymous encouraging a certain ‘freedom of expression," which we as Americans hold dear The challenge to free speech is that compulsory disclosure of the identity of the speaker may discourage free speech opportunities where people are more likely to voice their opinion and provide information. One side promotes Internet anonymity because it promotes the First Amendment rationale that democracy is most effective when there is an open exchange of ideas.

The Balancing Act

Congress has tried to balance the challenges and the burgeoning infringement cases by enacting The Digital Millennium Copyright Act (DMCA) (1998) to provide safe harbor provisions for Internet Service Providers (ISPs) and web hosts, while giving a voice to the copyright owners.

The first step to pursuing a copyright claim against an ISP or a web-hosting company is to request a DMCA take down notice. The copyright owner may send "notice" to the ISP demanding the removal or blockage the copyrighted material. The ISP must reply promptly and comply to remain exempt from liability for contributory or vicarious infringement.

The take down notice under the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”) must contain several legal buzzwords and address various legal requirements, but is a great first step toward having the copyright honored and protected by the Internet chiefs who control the content.

The Bottom Line-- the cost for investigation and prosecution of a take down notice against the web-site provider is not prohibitive. Contact your friendly Internet and intellectual property lawyer to protect your interest.

Conservation easements are land preservation agreements (easements) where the landowner agrees to limit the use of her land for purposes of "conservation." Voluntarily entered and legally binding, these easements often restrict commercial, real estate, and industrial development. Indeed, many communities across New York State have actually passed zoning designed to encourage the creation of conservation easements to ‘run with the land.’ These often complex agreements and statutes mean that the use "limitations" that an owner agrees to will be binding on future owners of the land.

In New York, there are several requirements for a land preservation agreement to qualify as a "conservation easement." First, the agreement must be perpetual and permanent. Second, the land subject to the easement must be physically located in the state of New York. Third, the easement must be held by a conservation agency which may include any federal, state, or local government agency or non-profit land trust. Fourth, the easement must protect open space, biodiversity, or natural resources by restricting commercial, real estate, and/or industrial development. And lastly, the agreement must be filed with the State Department of Environmental Conservation. Since most "conservation agencies" are non-profit, the sale or gift of such conservation easements often is a charitable donation and potentially limits taxes.

Conservation obviously touches a nerve and fosters a debate among residents, politicians, land owners, farmers and developers as to the efficacy of such agreements. If you are contemplating such an easement, you should definitely hire a real estate attorney capable of explaning the issues to you.

When purchasing a second home we recommend hiring a local real estate attorney to give you the "lay of the land," to direct you as to issues that arise in "upstate" real estate transactions, and to help you avoid the pitfalls. In the past three years, as second home prices have fallen in the region, distressed real estate has become a haven for problems caused by neglect, economic desperation and ignorance. Leaking oil tanks, failed septics, contaminated water, even leaky roofs have caused problems.

The process begins with an application to the Building Inspector. The homeowner (we’ll call her the “Applicant”) completes an application with the Building Inspector, who reviews the proposal (or “Site Plan”) to see if it meets various code requirements– is the lot large enough to support the planned structure, is drainage adequately directed to prevent run off, are the plans professionally drawn and contain all of the technical data required by New York State’s building code. The Building Inspector next refers the Applicant to the Planning Board with instructions to “post” notice of a “public hearing.” In Nyack, we meet the first Monday of every month to hear these applications.

The Planning Board receives the Site Plan and the Building Inspector’s opinion, and we review against our local Zoning Code and Comprehensive Master Plan. In Nyack, our Comprehensive Master Plan was adopted by the Village Board on January 11, 2007 (a process that took many years of hard work by various civic minded volunteers). Our Comprehensive Master Plan (available on line or at the Village Hall) sets the tone from its first sentence, “The Village of Nyack is a special place, proud of its historic, scenic and socially heterogeneous character– quite unlike the suburbs to the west.”

The Planning Board is granted limited rights to review the Site Plans for (1) traffic access on and near the site; (2) circulation and parking; (3) landscaping and screening; (4) underground utilities (5) and to be sure that the plans “reasonably preserve and maintain view corridors and sight lines (particularly Hudson River views) throughout the commercial zones in the Village of Nyack. Broadly speaking, the law permits the Planning Board to consider the public health, safety and general welfare, the comfort and convenience of the public in general and of the residents of the immediate neighborhood, in particular.

In conducing the public hearing, local residents, the Applicant, and the Planning Board learn what might be acceptable, negotiate various ways to mitigate the effects of various design elements, and impose “reasonable conditions and safeguards” to further the general purpose and intent of the Comprehensive Master Plan. During the process (or negotiation), the Planning Board can only apply the law enacted by the Village Board, the Town Board or the New York State Legislature. The Planning Board does not have the legal power to simply deny a Site Plan that otherwise complies with such laws. Stated differently, if the law permits a twenty (20) story apartment complex, the Planning Board may not deny the application because it requests a twenty story apartment building.

From my perspective as a lawyer and as a member of the local Planning Board, it is safe to say that when the community shows up to air its concerns at a public hearing, everyone (including the applicant) is benefitted. The moral of the story is to participate in the process, don’t simply agitate about the change that is forecast for your neighbor.

Unfortunately, the fire often causes insurance problems because homeowners don't know or understand the type of insurance they have. Was it a replacement policy, are there limits to such replacement; what about the contents of the house? These are all questions that a homeowner has immediately.

Following the fire, the insurance company typically sends an independent company to investigate and to assess the damage to the structure and to the contents. There is another type of insurance adjuster that operates in a parallel insurance universe called "Public Adjusters."

Public adjusters are licensed claims adjusters hired by the homeowner to "adjust" or "negotiate" the sometimes complex world of insurance and fire insurance. Most public adjusters argue that they can better navigate complicated insurance policies, netting the homeowner a higher settlement.

Beware-- Public insurance adjusters are independent from the government and work for their own financial benefit. They are looking to earn a percentage of any recovery. Sometimes, that recovery is exactly what the homeowner would have received in the first place.

Sometimes, these public adjusters take their jobs a little too seriously, and have been known to overstep their authority.

Bottom line-- be careful, take a deep breath, and assess what you need and when. If needed, consult with a local New York State lawyer versed in insurance issues.

Well, there are various lawyer "Blawgs" that will give you an idea about the content. You can go to a place like Justia.com to find a listing of various Blawgs. That might get you to a real estate blog like this one. But it's hard to find exactly the fact scenario you are looking for. Where else can you go?

New Yorkers are lucky to have a wonderful web-site that is accumulated by Cornell University. Searchers can find all sorts of helpful information on this site.

Bottom line-- you should look to law clearing houses or "meta sites" to help you narrow your search for a good article on point. Nothing substitutes for actual legal advice from competent attorneys.

Well, it depends upon the type of the relationship, but here is an interesting article that provides a "stop gap" or screening device for consumers to ask their money managers, their attorneys, their mortgage brokers, here in New York and all over the country.

The Bottom Line-- you should expect that the person selling you products has your best interest in mind (not their profits).

In 2005, Joseph and Teresa Guidos settled a shareholder dispute with Allstates WorldCarger Inc. Two years later, the Guidos filed a malpractice suit against their attorneys from the settlement alleging that Joseph Guido was ‘stripped’ of his majority shareholder as a result of ineffective representation. The New Jersey Supreme Court decided a client can sue for malpractice if ‘particular facts’ serve as evidence of as attorney incompetence even in light of the fact that the client might have originally accepted the settlement. Does that make sense?

Dismissed on summary judgment, but reversed on appeal, the appellate court found that genuine issue of material fact as to whether the clients would have taken the settlement, whether the attorneys reasonably explained the significant details, and whether the clients understood the ramifications of the settlement before it became final. The attorneys argued that the "malpractice claim" was based on ‘hindsight bias’ or 'buyer's remorse" because the clients simply wish they had acted differently.

The consequences of the New Jersey ruling are immense for both attorneys and clients because of the potential that making the attorney liable in this type of situation pits the attorney against the client, having an adverse impact on the attorney-client relationship, and militating against the traditionally strong policy of favoring dispute resolutions and settlements.

The fact that clients have survived summary judgment suggests that lawyers will become a more attractive target for malpractice suits if they fail to detail objections or concerns – in writing – regarding a settlement before it becomes final.

Bottom line-- there are important issues to consider for both clients and attorneys (and their malpractice insurers).