Articles Posted in General Interest

It seems to be getting a little more risky to post negative online reviews. A Virginia Court recently ordered that certain negative online reviews of a home improvement contractor be removed from Yelp.com, pending a trial for defamation against the reviewer.

The reviewer, apparently unsatisfied with the work performed by the contractor at her home, posted negative comments on the websites of Yelp and Angie’s List, alleging that the contractor caused damage to her home and that jewelry had gone missing after the contractor performed work at her home. A civil suit is currently pending against the reviewer who posted the negative comments seeking $750,000 in damages for defamation of the contractor.

While this isn’t the first defamation case arising from a negative online review, these lawsuits are fairly uncommon. Although the Communications Decency Act of 1996 protects websites like Yelp and Angie’s List from lawsuits relating to negative reviews posted by their users, the individuals posting such reviews are not immune from liability. In New York, like most other states, a claim for defamation arises when a person makes a false statement resulting in harm to another person’s reputation. Although there are a number of defenses that can prevent a plaintiff from succeeding in recovering damages on a defamation claim, proving that the statement is true is always a defense to such a claim.

For most things in life the original is better than its copy. In the context of wills and estate probate, the original is generally required. So, when may the heirs offer a copy of someone’s will to probate in New York?

In New York, a copy of the orignal will may be offered to probate if the administrator or executor can establish that: (1) the will was not revoked; (2) execution of the will was proved in the manner required for the probate of an original will; >and (3) all provisions of the will are clearly and distinctly proven by each of at least two credible witnesses or by a copy of the will proved to be true and complete. See New York Surrogate Court Practice Act § 1407.

Surrogate courts are not going to absolutely accept a copy for probate without strong proof of each of the foregoing elements because the law generally presumes that if there was no original, it was revoked by the person who died. That is, a will that is “shown to have existed,” and was in the testator’s possession at the time of their death, that will is presumed destroyed by the testator and, therefore, revoked. See In Re Evans, 264 A.D.2d 484 (2d Dep’t 1999). By introduction of the statute, the presumption may be “rebutted,” by showing all the three elements. Where the Testator had the last will and testament in her possession at death, the law takes extra steps to protect the presumption that the dead person did NOT intentionally revoke the will. Afterall, the testator cannot explain their desires.

The American Bar Association just released the latest survey of legal malpractice claims showing some interesting results. For the first time, real estate claims represented the greatest number of claims (20.33%), followed by plaintiffs’ personal injury (15.59%), family law (12.14%), estates, trust and probate (10.67%), and collection and bankruptcy (9.2%). While there are some caveats to the survey, – for example, the survey did not differentiate disciplinary proceedings from actual malpractice claims – the results may provide an illustration of trends in legal practice.

The study revealed that the number of claims payments exceeding $2 million has declined. It is not clear whether this may have been caused by larger firms underreporting larger dollar claims or increased reporting by all insured groups. However, it may show a general trend toward settlement of malpractice claims or juries’ unwillingness to award large payouts at trial.

The survey also showed that although substantive errors still generate the largest portion of claims at 45.07%, the share of claims relating to administrative errors is 30.13% – an all time high. In addition, the number of claims arising out of alleged intentional wrongs has decreased to 10.19% from 13.53% in 2007 – a good sign that the legal profession is evolving in a positive way.

It can be difficult to strike a balance in finding adequate insurance coverage, while avoiding unnecessary coverage or being underinsured.

While states generally require a minimum amount of auto insurance coverage, and mortgage lenders also generally require you to maintain homeowner’s insurance for at least the value of the mortgage, these amounts may not represent the optimum amount of insurance for your circumstances. For example, in New York, motorists are required to carry $25,000 in liability insurance for bodily injury to a single person, $50,000 for bodily injury to all persons, and $10,000 for property damage in any accident. Minimum “no-fault” coverage of $50,000 is also required. However, given the price of auto repairs and the price of a replacement car if a car is totaled in an accident, damages could far exceed the $10,000 minimum. If you only carry the minimum amount of insurance, you will be personally liable for any property damage in excess of $10,000.

In addition, insurance policies, whether they are auto, homeowner’s, or life insurance, contain a seemingly endless list of exclusions from coverage – it can be hard to determine exactly what is covered. However, these exclusions and limits are very important in protecting your hard earned nest egg in the event of an accident or other unforeseeable event.

Before you start knocking down walls and get knee deep in home improvements, make sure you have all of the required building permits. Obtaining a building permit involves completing an application with plans for the improvements, and paying a fee.

Even seemingly small home improvement projects may require a building permit. For example, in Nyack, like many other towns, installing a wood burning stove or fireplace would require a building permit, and failing to get the proper permit can result in a fine of up to $500 or 30 days in jail, or both. Also, a “Stop Order” can be issued by the Building Inspector if he or she has reasonable grounds to believe that the proper building permit was not obtained or the work is not being done in accordance with the building permit issued.

Permit fees are generally based on the cost of construction, and bills and invoices are normally required with the application to substantiate the stated cost of construction. This serves to prevent fraud and discourage homeowners from understating the cost of construction to save some money on the permitting fees. However, building permit fees can vary widely throughout New York, with little rhyme or reason.

So your landlord just got slapped with a housing violation – what does that mean for you as a tenant? Can you stop paying your rent altogether? If you live in New York, not so fast.

Although your duty as a tenant to pay rent is dependent on the landlord’s “satisfactory maintenance of the premises in habitable condition,” a housing violation on its own does not relieve you of your obligation to pay rent. Park West Management Corp. v. Mitchell, 47 N.Y.2d 316 (1979). The key factor is whether the violation threatens the health and safety of the tenant thereby breaching the landlord’s warranty of habitability. Park West, supra; New York Real Property Law, § 235-b. Therefore, a housing violation is merely the “starting point” in such a determination, and it is possible that the finding of a violation does not have an impact on habitability. Note, however, that the landlord’s warranty of habitability cannot be waived. Real Property Law, § 235-b-2.

If a breach of the landlord’s warranty of habitability is found, damages are measured by the difference between the fair market value of the premises in their habitable condition (as measured by the rent set forth in the lease), and the value of the premises during the period of the breach. Park West, supra. An award of damages to a tenant can be made through a lawsuit by the tenant to recover lease payments from the landlord, or in defense to an action by the landlord for non-payment of rent. Park West, supra.

A Florida Court recently affirmed a significant award of punitive damages against a law firm in a legal malpractice case, raising the question: could this happen in New York? See Young v. Becker & Poliakoff, P.A., No. 4D09-4869 (Fla. 4th DCA May 23, 2012). In the Young case, the plaintiff brought a legal malpractice action against a law firm that handled her federal employment discrimination lawsuit. An associate of the law firm failed to attach the correct EEOC right-to-sue letter to the Complaint, and the plaintiff’s case was dismissed. The plaintiff successfully alleged that the law firm intentionally delayed telling her about the dismissal of her case in an effort to settle a related case in which they would receive over $2.9 million in fees. The jury awarded the plaintiff $394,000 in compensatory damages, including $144,000 in past lost wages and $250,000 in damages for “pain and suffering, mental anguish, or loss of dignity,” and $4.5 million in punitive damages, which was reduced by the trial court to $2 million. The Court of Appeals upheld this award finding that “the punitive damages in this case were properly assessed to further the State’s legitimate interests in punishing reprehensible conduct and deterring its repetition.” Young, supra.

In New York, a Plaintiff in a legal malpractice action may recover “actual and ascertainable damages” that were proximately caused by a defendant’s negligence. M & R Ginsburg, LLC v. Segal, Goldman, Mazzotta & Sigel, P.C., 90 A.D.3d 1208 (3d Dep’t 2011). Unlike the Young case in Florida, New York courts have consistently rejected awards for emotional distress in legal malpractice actions. Epifano v. Schwartz, 279 A.D.2d 501 (2d Dep’t 2001); Dirito v. Stanley, 203 A.D.2d 903 (4th Dep’t 1994); Andrewski v. Devine, 280 A.D.2d 992 (4th Dep’t 2001); Kaiser v. Van Houten, 12 A.D.3d 1012 (3d Dep’t 2004).

Moreover, New York’s First Department (which handles New York City) has rejected a punitive damages award where plaintiff failed to establish that defendant’s conduct “was so outrageous as to evince a high degree of moral turpitude and showing such wanton dishonesty as to imply a criminal indifference to civil obligations.” Zarin v. Reid & Priest, 184 A.D.2d 385 (1992). However, the court’s limited basis for rejecting a punitive damages claim in such a legal malpractice case seems to leave the door open for an award of punitive damages under the right facts – a scary thought for legal practitioners, particularly in light of the exclusion for punitive damages under most professional liability policies.

With the farm-to-table movement all the rage, and demand for more transparency in the production of our food, home coops have taken off. You may think that because you live in an urban area you can’t possibly be permitted to have your own chicken coop or because you live in a suburban or rural area you can keep as many chickens as you’d like, but you would be surprised. For example, the City of White Plains only requires that any chickens kept in the city be, “securely enclosed in such a manner as to prevent them from straying from the premises of the person owning them.” White Plains Code of Ordinances, § 5-2-1(a). On the other hand, the Westchester Village of Port Chester prohibits any chickens or roosters from being kept within its limits. Port Chester Village Code, § 136-14.

While many towns and villages in New York permit the keeping of chickens on residential property, it is common for localities to ban roosters. The Village of Nyack prohibits “owning or keeping a rooster within village limits” and violation constitutes disorderly conduct. Village of Nyack Code, § 131-1. Similarly, some towns place restrictions on just how many chickens you can have on your property.

In the Town of Somers, Westchester County, a maximum of six (6) chickens (but no mature cockerels) may be kept on your property if its area totals 40,000 square feet or more. Somers Town Code, § 170-11. If you want to keep more chickens on your property than your town allows, you’ll need to ask the Zoning Board of Appeals for a variance and/or a special use permit.

Surrogate Courts in New York may require a probate bond – also called an “executor bond,” an “administrator bond,” or a “trustee bond” – when an individual is appointed to handle the distribution of a deceased person’s estate. The bond acts as a guarantee that the estate’s debts will be paid and the assets will be distributed properly. Before a bond will be issued, bond companies will review the credit history of the person administering the estate to assess their risk in issuing the bond.

Depending upon the facts and circumstances, the Surrogate Court sitting in Rockland, Dutchess, or Westchester County, New York, may require a bond if the gross value of the probate assets for the estate is $30,000 or more. N.Y. Surrogate’s Court Procedure, § 801-1(a) and § 1301-1. The amount of the bond required is determined by the court, but is generally equal to the value of the property in the estate, including rents on real property for 18 months and the “probable recovery” of any lawsuit being prosecuted by the fiduciary of the estate. N.Y. Surrogate’s Court Procedure, § 801-1(a). The size of the bond will depend upon the number of “creditors” and the claimed amount due.

The premiums on the bond are paid from the deceased person’s estate. Bond premiums are generally paid annually until the estate is settled, i.e. all of the property has been distributed. In your will, you may direct that the court not require a bond. By doing this, you will save your estate money on bond premiums, but there will no longer be a third-party guarantee ensuring that your estate is properly distributed.

The New York Times recently ran an article highlighting the myriad of legal obstacles gay couples face in raising a family together.

For example, although many states allow a second mother to be listed on a child’s birth certificate, when a same sex married couple travels to a state that does not recognize their union, the relationship established by the child’s birth certificate may not be recognized (despite the general principle that state courts give full faith and credit to other states’ judgments).

This failure to recognize the same sex parent-child relationship can have widespread consequences. For example, an unrecognized parent may not have authority to make medical or other decisions for the child, and in the event of the legally recognized parent’s death, the other spouse would not necessarily be granted guardianship of the child.