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The Law Office of Aaron M. Schlossberg Esq. P.L.L.C.
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New York's Business and Commercial Law Attorneys
New York's Business and Commercial Law Attorneys

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Petitioner Fails to Demonstrate Pre-Litigation Disclosure Under CPLR 3102(c) Warranted

It is often best to try to avoid costly, protracted litigation where possible. Under CPLR 3102(c), a petitioner may initiate a special proceeding before commencing an action to obtain disclosure “to aid in bringing an action, to preserve information or to aid in arbitration.” Pre-litigation discovery pursuant to CPLR 3102(c) may be used in two primary instances. First, a plaintiff might require the information in order to obtain the identity of a necessary party. Second, a party may obtain pre-litigation discovery to preserve necessary evidence when there is a strong possibility that the evidence will be lost or destroyed. However, CPLR 3102(c) cannot be used to determine whether the petitioner has a cause of action. The petitioner in Matter of Saloman v. Porter, 2018 NY Slip Op 50463(U) at *1 (Sup. Ct. W. Co. 2018) commenced a special proceeding pursuant to CPLR §3102(c), seeking to compel depositions of respondents relating to assets. The petitioner, “wanted to bring an action to recover those assets for the benefit of the estate and himself, but needs to obtain and preserve evidence from the respondents in order to do so.” In opposition, respondent affirmed “she no longer has any files relating to transactions which occurred more than 25 years ago, that she had no recollection of the documents she would have had at the time, and that the documents submitted by petitioner, to the extent they may involve her, do not refresh her recollection.” In denying petitioner’s motion, the court held that petitioner failed “to meet the threshold set to warrant invoking the power of the court to grant pre-commencement disclosure” since petitioner “has not articulated that the estate has a cognizable cause of action or shown that respondents are exclusively in possession of information or documentation that may aid him in his pursuit.”

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

#lawyer, #lawblog, #attorney, #attyblog, #civillitigation, #commerciallitigation, #businesslawyer, #businesslaw, #CPLR, # CPLR3102(c), #discovery, #disclosure, #pre-litigationdisclosure, #specialproceeding, #motiondenied, #cognizablecauseofaction
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Changes are Coming to New York City’s Housing Courts

A commission created by Chief Judge Janet DiFiore has issued a report suggesting several major reforms to New York City’s Housing Court. The report identified ways the court system could be ready for the roll out of the Universal Access to Legal Services law, enacted in 2017, that mandates a right to counsel in the courts for low-income litigants and suggested a number of changes that should be enforced in order to ready the courts for the impact of the law, due to be fully implemented by 2020; the law will likely lead to even more congestion and delay in an already over taxed court system.

For example, the report recommended that assignment of counsel should occur at the earliest stage of litigation, in the hope that this will promote early resolution and diversion of cases away from already overcrowded dockets. The report also suggested that counsel should regularly confer to extend the time before an answer is due so that attorneys and their clients have an opportunity to familiarize themselves with the case before submitting an answer. Tenants should also be informed of their rights as part of the court’s notice of petition.

The report also aims to shed the common perception that the housing court is a second-class court system by introducing new policies and procedures to streamline proceedings and to demand greater professionalism of and accessibility to the courts themselves. For example, the report urged that the court’s employees, including judges, receive training and practice to make the courts a more equitable and professional environment. Unrepresented litigants should be treated more fairly with court personnel better explaining the process, and certain practices that allow attorneys to operate more freely in the courts than unrepresented litigants should come to an end. The report also called for a pilot project to stagger morning calendar start times, rather than the current 9:30 a.m. universal call that floods court rooms. Finally, the report proposed that the total number of judges increase from the current figure of 50 to 60 and that the numbers of court staff, including court attorneys and clerks, need to increase as well. Multiple structural changes to the courthouse buildings themselves should also take place.

The full report can be viewed here.

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

#lawyer, #lawblog, #attorney, #attyblog, #civillitigation, #commerciallitigation, #businesslawyer, #businesslaw, #landlord-tenant, #housingcourt, #RPAPL, #petition, #upgrades, #changestothehousingcourt, #ChiefjudgeDiFiore




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Landlord’s Witness Not Credible, Proceeding Dismissed for Failure to Serve

Laws are made to be followed. Eviction proceedings commenced under Article 7 of the Real Property Actions and Proceedings Law (RPAPL) in New York are governed by specific statutory provisions. Following a motion by Respondent-Tenant in Hirakis v. Beepat, 2018 NYLJ LEXIS 892 (Civ. Ct. Q. Co. 2018) to dismiss the petition on the ground that she did not receive the notice of petition and petition, a traverse hearing was scheduled. At the traverse hearing, the petitioner’s son (Emmanuel) claimed that he attempted service of the petition and notice of petition on the respondent on two different days at three different hours and then affixed the papers on the door of the subject premises in addition to mailing copies by certified mail and by regular mail. After testifying, Emmanuel then stated that he was mistaken on his attempts and that he attempted service on only one day. Emmanuel did not testify as to how many copies of the petition and notice of petition were affixed to the door. Emmanuel further testified that he was not a licensed process server and did not serve more than five legal papers in the past year. Noting Emmanuel’s multiple discrepancies in his testimony and his failure to testify as to how many copies of the papers were affixed to the door, Judge Hoyos ruled that Emmanuel was not a credible witness, and that petitioner failed to establish respondent was properly served under RPAPL §735. Accordingly, Judge Hoyos dismissed the proceeding. It is imperative that housing court litigants have savvy and experienced counsel.

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

#lawyer, #lawblog, #attorney, #attyblog, #civillitigation, #commerciallitigation, #businesslawyer, #businesslaw, #landlord-tenant, #housingcourt, #RPAPL, #Art.7proceeding, #petition, #noticeofpetition, #failuretoserve, #petitiondismissed, #traversehearing, #witness, #testimony, #cross-examination, #crediblewitness
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Landlord Ordered to Restore Tenant to Possession of Premises in Illegal Lockout Suit

The petitioner-tenant and respondent-landlord in Alcindor v. Raphael, 2018 NYLJ LEXIS 569 (Civ. Ct. N.Y. Co. 2018) executed a lease agreement for the subject premises in September 2016 that was to commence on November 1, 2016. In addition, the landlord entered into a contract with the New York City Department of Housing Preservation and Development (“HPD”) under the Housing Assistance Program (“HAP”) wherein HPD was to pay the difference between the tenant’s share of the rent and the contract rent amount. HPD subsequently sent the tenant a letter informing her that the subject premises had passed inspection and that she had to move into the subject premises by November 15, 2017 or she would lose her HAP subsidy.

However, the landlord subsequently suspected that the tenant would be unable to afford her share of the rent and decided that he no longer wanted to rent the subject premises to her. The landlord thus refused to sign an amended HAP contract. After learning of the landlord’s decision, the tenant gained entry to the subject premises around November 21, 2017 or November 22, 2017 by changing the locks and moving in some of her personal property. Around November 22, 2017, the landlord again changed the locks, thus depriving the tenant of possession. As such, the tenant commenced a proceeding seeking possession of the subject premises on the ground that the landlord illegally locked her out.

Finding that the parties had executed a valid lease agreement, that HPD had agreed to enter into a contract with the landlord for the full contract rent, that HPD had informed the tenant that she could move into the subject premises and that the tenant had a right to possession pursuant to the lease agreement, Judge Stoller ruled that the landlord’s denial of access based upon a belief that the tenant’s income would be insufficient to pay her share of the rent constitutes conduct giving rise to a cause of action sounding in illegal lockout. Accordingly, Judge Stoller awarded the tenant a final judgment of possession and ordered the landlord to restore the tenant to possession of the subject premises forthwith.

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

#lawyer, #lawblog, #attorney, #attyblog, #civillitigation, #commerciallitigation, #businesslawyer, #businesslaw, #landlord-tenant, #housingcourt, #HAPsubsidy, #leaseagreement, #judgmentofposession, #illegallockout


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Plaintiff’s Comparative Negligence Reduces Damages Award By One Third

New York State is a comparative negligence state. Comparative negligence is an affirmative defense that reduces the amount that a plaintiff can recover based upon the degree to which the plaintiff’s own negligence contributed to the cause of the injury. The plaintiff in Carone v. St. George Theater Restoration, Inc., 2018 NY Slip Op 50266(U) (Sup. Ct. R. Co. 2018) fell while exiting from her seat following a performance at St. George Theater. According to plaintiff’s testimony, “I was in the seat. I got up, moved to my right. There was a half a step. I slipped on that step. I started to tumble [and fell] one or two steps, three steps” onto her back and then rolled. Following a non-jury trial, Judge Marin concluded that the fall aggravated plaintiff’s degenerative lumbar spine condition. Judge Marin stated that there were several elements to consider in determining liability, including “the adequacy of the lighting; whether there should have been hand railings; the depth of, and markings on, an access step; and the use of ushers for crowd control.” The court found that plaintiff did not exercise adequate care for her own safety, given the fact that the lighting was adequate, she safely made her way up the steps and to her seat, which her companion managed to do in both directions, that the unusual configuration of the access steps was “open and obvious” and that there had been no prior comparable accidents. Although the court held the defendant liable for plaintiff’s injuries, the court also found the plaintiff to be one-third comparative negligent and reduced plaintiff’s damages award accordingly from $315,056.00.

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

#lawyer, #lawblog, #attorney, #attyblog, #civillitigation, #commerciallitigation, #businesslawyer, #businesslaw, #negligence, #comparativenegligence, #reduceddamagesaward, #painandsuffering, #non-jurytrial
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Triable Issues and Conflicting Medical Opinions Bar Entry of Summary Judgment

Following plaintiff’s independent medical examination, defendants moved to dismiss in this motor vehicle accident case on the ground that the injuries plaintiff allegedly suffered failed to meet the “serious injury” threshold requirements of Insurance Law §5102(d). Plaintiff opposed the motion by submitting copies of her medical records and the sworn medical report of her doctor. Finding that the defendants had established their prima facie entitlement to judgment as a matter of law by submitting proof that plaintiff’s spine, shoulder and knee injuries were resolved and that plaintiff had full range of motion, the burden shifted to plaintiff. Judge Mayer concluded that plaintiff did meet her burden by raising triable issues of fact as to her range of motion limitations and that the injuries to plaintiff’s spine and knee were significant, permanent, and related to the accident. As such, Judge Mayer denied defendants’ motion for summary judgment holding that the conflicting medical evidence was a question for the jury to resolve at trial. Ordonez v Labor, 2018 N.Y. Misc. LEXIS 279, 2018 NY Slip Op 30151(U) (Sup. Ct. S. Co. 2018). Litigants may wish to bear in mind that obtaining non-economic damages differs from obtaining economic damages.

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

#lawyer, #lawblog, #attorney, #attyblog, #civillitigation, #commerciallitigation, #businesslawyer, #businesslaw, #insurancelaw, #summaryjudgment, #conflictingevidence, #triableissues, #issuesoffact, #personalinjury, #seriousinjury; # InsuranceLaw§5102(d)
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Summary Non-Payment Proceeding Stayed Pending
Administrative Agency’s Determination on High-Rent Vacancy Deregulation

Following last week’s post regarding the potential far reaching impact an upcoming Court of Appeals proceeding (the “Altman Case”) could have on high-rent vacancy deregulation, the petitioner-landlord in 170 Irving Ave. LLC v. Attalla, 2018 NYLJ LEXIS 458 (Civ. Ct. K. Co. 2018) (“Attalla”) commenced a summary non-payment proceeding to recover possession of an apartment and outstanding rent on the ground that the respondent-tenant failed to pay rent pursuant to the Lease Agreement. One year prior to the commencement of the non-payment proceeding, the respondent had filed an administrative rent overcharge complaint with the New York State Homes and Community Renewal (“HCR”) seeking a determination challenging the high rent vacancy de-regulation of the apartment and rent overcharge. Upon the parties’ request, the court wrote to HCR and requested that it expedite its determination. The HCR responded and advised the court that the HCR would be unable to issue a determination “since the question of which increases the owner may use to the achieve exemption under high-rent vacancy deregulation is being addressed under pending court proceedings related to [the Altman Case].”

Accordingly, the Attalla respondent filed a motion to stay the non-payment proceeding pending the outcome of the HCR determination asserting that “the decision in Altman could be dispositive in determining whether respondent may avail herself of the protections of the Rent Stabilization Code (RSC).” Concluding that there were overlapping issues and common questions of law and fact with the Altman Case and that the HCR is “an administrative agency which has the necessary expertise to dispose of an issue,” Judge Poley ruled that it was provident for the court stay the non-payment proceeding pending the resolution of the HCR determination. You may wish to consider carefully your next steps if you are involved in a rent regulation matter.

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

#lawyer, #lawblog, #attorney, #attyblog, #civillitigation, #commerciallitigation, #businesslawyer, #businesslaw, #landlord-tenant, #rent-stabilized, #rentregulated, #thealtmancase, #courtofappeals, #HCR, #summaryproceeding, #high-rentvacancyderegulation, #administrativeagency, #motiongranted, #non-paymentproceeding
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As Tenant In Continuous Possession of Premises, Apartment Did Not Become Deregulated

Navigating the world of the New York City rental market can be expensive and cut-throat. Tenants who get their hands on rent-stabilized apartments are reluctant to let them go, while landlords are constantly trying to find ways to deregulate apartments so that they can charge market rental rates. The petitioner-landlord in Gavrielov v. Unger Consulting Group Ltd., 2018 NY Slip Op 50106(U) at *1, 2018 WL 577741 asserted that following the expiration of a 421-a tax abatement, the subject apartment became vacant when the under-tenant, Unger Consulting Group Ltd (“Unger”), was substituted in as the tenant in a renewal lease agreement between the landlord and International Pension Systems Ltd. (“International”). The landlord claimed that upon International’s vacancy, the property became deregulated and it was entitled to charge market rates for the apartment. However, the devil is in the details and the slightest nuance can mean the difference between paying regulated rental rates and market rates for your apartment. In this case, the Appellate Term found that even though International had technically vacated the apartment, Unger had been continuously occupying the apartment as an under-tenant of International for at least six years when Unger was substituted for International in the renewal lease agreement and that therefore, the apartment did not, in fact, become vacant and was therefore not entitled to deregulation. Stay tuned…. because the Court of Appeals is about to hear the “Altman Case,” which could fundamentally change the practice of deregulating rent-stabilized apartments in New York.
The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

#lawyer, #lawblog, #attorney, #attyblog, #civillitigation, #commerciallitigation, #businesslawyer, #businesslaw, #landlord-tenant, #rent-stabilized, #rentregulated, #rentguidelinesboard, #marketrates, #421-ataxabatement, #deregulated, thealtmancase, #courtofappeals, #leaseagreement
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General Release Dismisses Complaint

In 2007, the plaintiff in Koller v. Paul Stamati Galleries, 2018 NY Slip Op 30135(U) at *1 (Sup. Ct. N.Y. Co. 2018) paid the defendants $80,000 for a piece of art he was told had been created by the artist Edgar Brandt. According to plaintiff, he later discovered that the value of the artwork was artificially inflated and was worth only about $40,000. As such, in 2009 the parties negotiated a settlement wherein defendants paid $15,000 to plaintiff and the parties executed a general release. According to plaintiff, during settlement negotiations, defendants’ counsel falsely represented to plaintiff that the leading authority on works by Brandt (Joan Kahr) had inspected the piece and was going to include it in a book about Brandt.

Thereafter, in 2015 plaintiff decided to sell the artwork, however, after having trouble with an auction house accepting it, plaintiff contacted Kahr who said that she could not authenticate it because it did not have Brandt’s signature. Plaintiff commenced the instant action alleging that he would not have settled the dispute for $15,000 but for defendants’ counsel’s misrepresentation that Kahr had inspected the artwork and confirmed that it was a Brandt. The defendants moved to dismiss the complaint because the action was barred by the 2009 general release. Plaintiff opposed the motion, asserting that the dispute in 2009 was about the purportedly inflated price of the artwork, while the current dispute was about the authenticity of the artwork.

Citing well-established New York law that “[a] release may not be treated lightly. It is a jural act of high significance without which the settlement of disputes would be rendered all but impossible,” Judge Bluth ruled in favor of defendants and dismissed the complaint. Judge Bluth reasoned that the general release “does not contemplate specific disputes… [i]t releases all claims” and had plaintiff wished to narrow the scope of the release then he “should have included conditional language” or “included language stating that the piece was an authentic Brandt.” Indeed, plaintiff could have had the artwork appraised to confirm that it was a Brandt before signing the release. However, after failing to take adequate precautions, Judge Bluth concluded that plaintiff cannot now “avoid his obligations under the general release because he failed to exercise proper due diligence.”

As this case illustrates, when executing legal documents, even when the parties appear to have reached a friendly agreement and are solely finalizing the end-game release, the specific verbiage is nonetheless critical. Detail-oriented contract attorneys are key.

(internal citations omitted)

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

#lawyer, #lawblog, #attorney, #attyblog, #civillitigation, #commerciallitigation, #businesslawyer, #businesslaw, #generalrelease, #claimbarred, #complaintdismissed, #contract, #settlementnegotiations, #Brandt
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Labor Law §200 Claim Dismissed

Although New York Administrative Codes do contain strict liability protections for construction workers in the state, liability under such provisions is not inescapable. Recently, the plaintiff in Warchol v. City of New York, 2018 NY Slip Op 50049(U) at * 1 (Sup. Ct. Q. Co. 2018), commenced an action against the City of New York and the New York City Department of Education after he was injured while climbing through a fence at the school where he was performing construction work. The construction site was bordered by a fence which had four gates through which the construction workers could enter and exit the construction site. According to the plaintiff, at around 8:00 p.m. on the day of the accident, he noticed that one of the gates was locked. Plaintiff conceded that, despite the fact that there were additional gates, “he did not look for an open gate before he tried to squeeze through the opening in the iron fence” causing him to hit a metal bar with his knee.

Plaintiff’s complaint included a cause of action for breach of Labor Law §200 which imposes a duty on employers, owners, and general contractors to use reasonable care and to provide “reasonable and adequate protection to the lives, health and safety” of workers. (Labor Law §200(1)). However, a plaintiff’s negligence can be applied to offset any liability to the defendant. Concluding that “the sole proximate cause of the plaintiff’s accident was his action in attempting to exit the school grounds by squeezing through the bent bars of the iron fence rather than using one of the other three construction gates or asking his foreman to open the construction gate,” Judge Weiss held that the defendants had demonstrated their entitlement to summary judgment dismissing plaintiff’s claim.

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

#lawyer, #lawblog, #attorney, #attyblog, #civillitigation, #commerciallitigation, #businesslawyer, #businesslaw, #laborlaw, #proximatecause, #comparativenegligence, #constructionsite, #workersafety, #absoluteliability, #scaffoldlaw, #vicariousliability
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