General Interest

May 25, 2011

Attorney Fee Disputes in New York and Part 137 de novo review.

So, you signed the retainer with an attorney, litigated a case or resolved the matter, but now have a fee dispute with your lawyer over fees, malpractice, or something else. You are considering a lawsuit against that attorney, or that attorney may have sued you to recover her fees. You look at your retainer agreement and see that in contains a provision requiring arbitration under Part 137 (22 NYCRR 137 et seq.). What is that, and if you win, does your attorney get the right to re-litigate the finding of the fee arbitrators.

The answer to whether an attorney may litigate the arbitration finding and request a new trial (“de novo“) in the courts is a complex issue that has actually been litigated by attorneys seeking to avoid the findings of the fee arbitrators. Try to follow the chain of thought:

First, either party may reject a Part 137 arbitration award and sue for a de novo trial.

May 19, 2011

Attorney Malpractice, Title Insurance to Prescriptive Easements, No Access in New York.

by Peter Klose

The plaintiff in McColgan v. Brewer owned a part of what was a larger parcel of property owned by M. Kelley. During construction of the New York State Thruway, the state of New York acquired the middle part of the original Kelley parcel.

As a result, Kelley owned two separate parcels, one west of the Thruway and the other east of the Thruway. The physical layout required Kelley, and now the plaintiff, to use Albert’s Lane to reach Route 32. Kelley’s southern neighbors entered into a series of right-of-way agreements with the owners of the northern parcels to secure access to Route 21 via Alberts Lane in 1953. Kelley was never a party to these right-of-way agreements granting an easement between her property and Route 32.

The plaintiff purchased the Kelley parcels. Prior to purchasing the subject property, the plaintiff (1) hired the defendants Rothe Engineering & Construction and Donald Brewer to conduct a survey of the subject property, (2) hired the Attorney defendant Philip Kirschner to determine if the easterly portion of the property had access to Route 32 via Alberts Lane, and (3) obtained insurance from the defendant Chicago Title Insurance Company through a local agent, Abbacy Abstract, to insure against any losses that he would incur if the landlocked portion of the property did not have access to Route 21.

April 29, 2011

The Appraisal Contingency in Today’s New York Real Estate Contract.

by Peter Klose

In today’s real estate market of short sales, mortgages underwater, depressed prices and a buyer’s market, where financing can be a tricky and arduous journey there is one contingency that may protect the buyer– the appraisal contingency, often negotiated by attorneys for real estate buyers.

Stated simply, the appraisal contingency is designed to give a buyer the right to cancel the contract if the home does not appraise for the price the buyer agreed to pay. Take the case of a Florida couple who contracted to buy a house from for $620,000. The purchase and sale contract provided that the sale was “contingent upon this property appraising for no less than $620,000.” The purchasers commissioned an appraisal which apparently came in at $560,000, and refused to close.

In response, the Sellers secured an appraisal which valued the real estate at $635,000. The sellers sued for breach of contract, arguing that any appraisal of $620,000 or more obligated the purchasers to buy the house. The purchasers argued that since it appraised for less (by their appraiser) they could terminate. The Florida appellate court favored the buyers, ruling: “In our view, ‘appraising for no less than $620,000’ means that no appraisal may be less than $620,000,” the court ruled.

April 28, 2011

What to do about Buying a Home with your Significant Other in New York.

by Peter Klose

So, you want to buy a house, condominium, cooperative apartment or vacant land with your significant other in New York. You have been serious about this life partner for years, but you aren’t bound by the typical bonds of legal matrimony.

Did you consult with your real estate attorney, did you ask that attorney about a partnership or “co-habitation” agreement? What are you going to do if you are no longer interested in “cohabiting?” Too many times, people don’t ask these questions, and get burned later. Take for instance the common predicament of this individual.

As a real estate lawyer, I always ask unmarried couples whether they want a basic partnership agreement about what happens when they dissolve their relationship from a real estate perspective. In addition to a real estate partnership agreement, non-married couples should consider a cohabitation agreement, which is a contract that includes provisions about each partner’s separate property, debts and financial responsibilities and spells out the division of goods, property and responsibilities should the relationship dissolve.

April 26, 2011

Sometimes life just gets in the way– Judges in New York should be so Compassionate.

by Peter Klose

Should a lawyer be granted a continuance of a trial because his wife is expecting a baby?

Unfortunately, some lawyers didn’t think so, and the expectant father was required to make a motion to federal court to adjourn a trial. The Court, much to its credit, granted the adjournment with a dose of reality, morality and compassion rarely seen. Read the decision here. Read the decision here.

Bottom line– we are all part of the human condition, even if we are litigators.

March 18, 2011

Sidewalks are Our Responsibility in Nyack, New York.

by Peter Klose

A famous former New York City mayor prosecuted “quality of life” crimes to “clean up the streets,” but what if that enforcement mentality came to the streets and sidewalks of Nyack. This month, a local resident saw my article in the Nyack Villager, and asked,

My problem is with property owners that are allowed to grow their hedges and shrubberies well over the edge of the sidewalks. I have found the worst violators are along . . . . . Up to a foot of sidewalk is lost in places because vegetation has grown without proper maintenance. In places, two people who want to walk abreast have to go into single file…or worse, one has to walk in the street. At this point, it is more than just an annoyance, it is a safety issue. . . . .[Name withheld by me].

As someone who commutes by foot, I understand the blight of overgrown hedges, cracked and damaged sidewalks, and icy patches near down spouts pouring onto the sidewalk. What are the rules that govern our sidewalks, and whose responsibility is it to fix the problem? It turns out that the Village of Nyack has very strong sidewalk laws designed to make them clean and safe– the question is whether we as a community are going to enforce those laws.

March 16, 2011

Home Town Law-Nyack, New York

by Peter Klose

Do you remember the 1990 release of Pacific Heights where the young couple renovates their home and takes a nightmare tenant who refuses to leave. Whether you are a tenant or a homeowner, these river village towns in suburban New York incubate potential problems between unrelated families living under the same roof, sharing utilities, driveways, even entrances. What a complex relationship.

At the core is the landlord’s ownership interest in the land, which may be devised, lent or leased to a tenant. In exchange for paying rent, the tenant is supposed to be able to “quietly enjoy” the “demised space” without interference from the landlord, but subject to certain basic written or unwritten rules. Sometimes the tenant fails to pay rent, or the landlord fails to provide a clean, safe, warm place to live. Both parties jealously guard their rights (their castle), and feel indignant when the other fails to live up to their end of the “bargain.”

That bargain generally comes in two forms, either with a written lease or a “month to month” tenancy. Generally, a written lease has well developed language setting forth in plain language the rent, security, term, location, and the nuances of daily living by which the landlord expects the tenant to abide. Two rules of thumb for landlords: the security should be sequestered in a separate bank account even for a two family house; and the right to retain it at the end of the lease is not a given, meaning you have to follow the rules if there is damage.

March 13, 2011

Home Improvement Protections Exist in New York, Use Them.

by Peter Klose

Do you hire a doctor or a lawyer without checking their licenses, their pedigree, and their referrals? So, why is it that when it comes to investing in their greatest asset (the home), so many people become victims of dishonest contractors who demand large advance payments for projects, and then fail to complete the work fully or competently. What are your rights.

In Rockland County, there are several resources designed to protect us from unscrupulous home improvement contractors. The first, Rockland County Code, Section 286, empowers the Office of Consumer Protection to license and regulate nearly all home improvement contractors and transactions. [Rockland County Law can be found at http://www.ecode360.com/?custId=RO1021, Chapter 286].

The comprehensive law covers everything from licensing individual contractors; (286-7) the contents of home improvement contracts (286-12); the prohibited acts (286-10); the penalties for not complying with the law (286-21); and the powers of the Board. While the nuances of such law are complex, the goal is to provide minimum standards to avoid the main problems that homeowners have with contractors.

March 11, 2011

So, You’re Starting a Business. . . . . in New York?

by Peter Klose

The economy is topsy turvy, the job unrewarding, the grass always greener . . . . . so why not start a business. America runs on . . . small business (and the coffee), so let’s consider the basics. While insurance will protect your assets sometimes, starting a separate entity helps to shield yourself from liabilities.

A Name to Call Thyself. Not all names are created equal. Take a name, say, “The Chocolate Library,” creative, descriptive, perfect. Turns out that under the New York State Business Corporation Law, “Libraries” are generally known as a collection of books and other materials for reading and study. So, New York bans the use of school-related words such as ‘library,’ ‘school,’ academy,’ ‘institute,’ and ‘kindergarten,’ in a certificate of incorporation by any New York business is barred unless there is prior consent from the education commissioner.

A Form to Fill. Now that we have a name, what “type” of entity for liability and tax purposes. New York State recognizes various corporate structures, but why choose one over another. While your attorney and accountant are best prepared to advise you for your particular situation, but here are some of the more identifiable structures:

March 9, 2011

So, you don’t have a Will in New York. . . . .

by Peter Klose

What happens at your death is psychologically difficult for many of us to deal with. There are almost always more pressing issues than planning for what will happen when you die. A majority of people die without a will. This means that there is no clear message to the family about what a person’s assets are, where those assets are located, what should happen them, and what arrangements that person has made for his or her body or funeral.

In New York State, a will is a legal document witnessed by at least two people who are not “interested” in the assets of the person who is signing the will. The will sets forth how the assets (no matter how small) will be distributed by the person designated to gather and distribute them (the Executor) upon death. If you do not have a will when you die then you allow New York State to decide who gets what, without regard to your wishes or your heirs’ needs, through the laws of “intestacy.” In today’s world of blended families, long lost cousins, and global assets, it is advisable to think about, organize and have an attorney draw up your will.

Making a will is especially important if you are parents of young children because you will want to designate who will have guardianship of the children. You may consider separating the physical guardianship of the children from the guardianship of the money intended for those children. Obviously, depending upon your assets, you can make many different provisions for your family, including attempting to protect your assets from Medicaid and estate tax.