Articles Posted in Legislation-Regulation

[Dutchess County, New York]. When is a television monitor a “sign,” under Rhinebeck Zoning Enforcement Regulations. That is a battle being waged between our client and the Village of Rhinebeck, New York. Since this is a pending matter, we will permit the Poughkeepsie Journal newspaper account to speak for itself.

Bottom Line– The First Amendment of the US Constitution is a powerful tool, supported by the New York State Constitution which provides even broader protection to freedom of speech.

Judge for Yourself

So, you are an entrepreneur, a small business trying to distinguish yourself from the crowd. You pick a name, say, “The Chocolate Library,” and you think you are good. But, under the New York State Business Corporation Law, such a name may not be available.

“Libraries” are generally known as a collection of books and other materials for reading and study. In a clever play off the traditional definition, an East Village boutique tried using the name The Chocolate Library, and hoped to register the name to describe the store’s large assortment of chocolate, including various international brands, origins, types, and tastes.

Effective July 2005, however, 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.

Attorneys in New York are keenly aware of the new representations, but do consumers know how seriously the New York State Legislature is taking the mortgage foreclosure crisis?

The Office of Court Administration sets forth the Proposed Language and Provides consumers with the following warning:

N.B.: During and after August 2010, numerous and widespread insufficiencies in foreclosure filings in various courts around the nation were reported by major mortgage lenders and other authorities. These insufficiencies include: failure of plaintiffs and their counsel to review documents and files to establish standing and other foreclosure requisites; filing of notarized affidavits which falsely attest to such review and to other critical facts in the foreclosure process; and “robosignature” of documents by parties and counsel. The wrongful filing and prosecution of foreclosure proceedings which are discovered to suffer from these defects may be cause for disciplinary and other sanctions upon participating counsel.

Did you know that if a landlord includes a provision in the lease that awards fees to the landlord in a summary eviction proceeding, the tenant may also be entitled (as a matter of statutory law) to seek attorney’s fees?

Real Property Law § 234 provides:

Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys’ fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease … there shall be implied in such lease a covenant by the landlord to pay the tenant the reasonable attorneys’ fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease.

Last month, the New York Court of Appeals ruled that the state of New York may legally seize private land for private developers use. In the 6-1 decision, the court allowed the seizure of a 22-acre plot located in downtown Brooklyn – effectively allowing the Atlantic Yards Project to proceed – reasoning it would allow for improvements on the “blighted conditions” of the property. The recent ruling falls in line with the 2005 decision by the Supreme Court in Kelo v. City of New London that similarly allowed a corporation to seize private homes and businesses to build a research campus.

The New York court’s ruling has raised arguments from opponents that ownership rights amount to being worthless if a government deems private land for the ‘public good.’ The Atlantic Yards Project, headed by Forest City Ratner Cos., seeks to develop office towers, apartments, and most notably an $900 million arena for the NBA’s New Jersey Nets. The only dissenter on the court’s bench stated, “It might be possible to debate whether a sport stadium open to the public is a ‘public use’ in the traditional sense, but the renting of commercial and residential space by a private developer clearly is not.” The New York Court of Appeals, however, ultimately ruled that the definition of ‘blight’ is a matter for the legislature, not the courts, to change.

You owe some money on a debt, the creditor gets a judgment against you, and suddenly, your checking account is frozen by a restraining notice. That scenario is all too common, especially when we all live in a large metropolitan neighborhood, change addresses often, and sometimes don’t get copies of the lawsuit naming you as a party to the action.

New York State has recently amended its laws relating to when a creditor seeks to restrain a debtor’s bank account. Specifically, New York state law exempts certain types of income from debt collection. These exemptions include veterans’ benefits, Social Security, Social Security disability, pensions, public assistance, workers compensation, unemployment insurance, child support, as well as spousal support and maintenance. Although the New York State exemptions are intended to ensure “at-risk” New Yorkers have the means to buy food, pay rent, and have basic necessities, procedural loopholes have increasingly led creditors to freezing bank accounts containing legally exempt income.

As a result, New York has recently enacted the Exempt Income Protection Act (EIPA). The EIPA limits creditors’ ability to restrain exempt funds stipulating that banks cannot restrain the first $1,716 in a debtor’s account if he or she does not receive government benefits or assistance.

As the fiscal crisis for government deepens, local leaders are increasingly pressed to re-tool. For years, consolidation of governmental services has been a complex labyrinth of regulation understood by few. New York State Attorney General, Andrew M. Cuomo believes that one way to improve the services and reduce the tax burden, is to remove and consolidate various layers of government– to reduce the tax bills for everyday tax payers who often pay county and town taxes, village taxes, school taxes and taxes for special districts, including water, sewer, and utilities.

Given the current fiscal crisis New York State faces, with declining revenue (taxes) and increasing needs (costs of services), how is the local municipality going to effectively provide the services without increasing taxes or reorganizing governmental entities to efficiently provide the same services.

Just as private businesses re-organize in this global economy, the municipal market place might need re-structuring if we are to retain our middle class, our businesses, and our home rule. Think of the duplicity (redundancy and otherwise) in services provided by an estimated 10,521 overlapping governmental units, sub-divisions, etc. Would private industry permit the same wasteful bureaucracies that exist in local communities.

How much litigation is spawned by incomplete or suspicious powers of attorney issued to people in confidential or, at least, close personal relationships to the person giving the power to the agent. The opportunities for undue influence are unbelievable, and have lead to sweeping changes in the New York State laws.

By signature on January 27, 2009, New York’s Governor Paterson signed into law revisions to sections of the NYS General Obligations Law which governs short form of powers of attorney. Although it is unclear whether the enactment date of March 1, 2009 will be extended, the comprehensive revisions will result in a completely new form, and, in some cases, along with a separate formal rider required when the the Agent makes significant gifts using the Power of Attorney.

One change will require the agent to have his signature “acknowledged” (with the formality of a deed) on the power of attorney giving the agent the right to do the transaction. The power will not be effective unless the acknowledged (and notarized) signature of both the Agent and the person giving the power appears on the form. For further safeguarding, statutorily defined “major gifts” will have to be separately executed as a rider (SMGR rider), with two disinterested witnesses attesting to the signature. New York title companies may refuse to write title if the form is not followed particularly.

Your home is your sanctuary, your largest investment, and possibly your largest headache if you are not careful about who you hire. So, it pays to be careful when hiring home improvement contractors, whether for a small construction project or a huge renovation, you need to know that your contractor is reputable, reliable and not a cheat. Here are some helpful hints in selecting a home improvement contractor in New York.

According to a recent article in the Poughkeepsie Journal, the New York State Attorney General’s office has mediated more than 1,550 complaints against home improvement contractors since January 2007, and recovered more than $800,000 in restitution, settlements, or other discounts for consumers. So, how do you avoid becoming the next victim of home improvement contractor problems?

With the Internet, you have valuable resources at your fingertips allowing you to research your selection of a reputable contractor, with know your contractor links to NY state and local county agencies offering consumer assistance and information as to status of a contractor’s license (if required), and any complaints.

New York State has recently enacted a new section (27-2405) of the Environmental Control Law which shall now require Landlords and Owners to Notify Tenants of “Indoor Air Contamination.” Effective December 2008, property owners and landlords will be required to to disclose the results of environmental testing to tenants (both current and prospective). What are the potential ramifications of such a new law?

First, although the New York Environmental Law focuses on “indoor air contamination” and vapor intrusion, the law broadly defines the disclosure to include all “test results.”

“TEST RESULTS” SHALL INCLUDE THE RESULTS OF ANY TESTS CONDUCTED ON INDOOR AIR, SUBSLAB AIR, AMBIENT AIR, SUBSLAB GROUNDWATER SAMPLES, AND SUBSLAB SOIL SAMPLES”