Court Determines if Frustration of Purpose Defense Applied The pandemic has unquestionably, materially, and adversely affected many businesses that have been directly impacted by New York State Executive and New York City administrative orders restricting work and other activities. But, as a recent case illustrates, those legal mandates and prohibitions may not suffice to sustain the defense of frustration of purpose, Union 16 Parking LLC operates a parking garage at a building owned by East16th St. Owner LLC. TMO Parent LLC signed a good guy guarantee in connection with Union’s lease. Owner claimed that Union had not paid rent since… Read more

The Court is the “umpire” when an actual baseball umpire brings suit. And, as a recent case illustrates, jurisprudential umpiring is far more complicated than simply calling “balls and strikes.” Joseph H. West, a currently active and well-known Major League Baseball umpire, sued Paul Lo Duca, a former Major League Baseball player, for defamation. West alleged that Lo Duca made defamatory statements about him on a podcast carried on a popular sports podcast provider. Contending that, during the podcast, Lo Duca, a retired catcher, described an alleged conversation with teammate Billy Wagner, a retired relief pitcher, in which Wagner purportedly… Read more

The New York State Legislature has, over the years, passed hundreds of statutes. Some are generally known. But some are obscure. Real Property Actions and Proceedings Law Section 861, known in the trade as the “stump law,” covers allegations that a person impermissibly cut down trees on the property of another. And, as a recent case illustrates, “stump law” litigation raises unique factual and legal issues. Daniel J. Holser owns rural property in the Town of Poestenkill, Rensselaer County, that adjoins a portion of property owned by Gregory T. Miller and Lauren R. Miller. Holser sued the Millers on December… Read more

A contract for the sale of entity-owned real property may contain a representation that the signatory on behalf of the seller has the authority to bind the titleholder. But what happens if that authority is challenged after the agreement is signed? As a recent case illustrates, apparent authority may not suffice where actual authority does not exist. On July 12, 2004, Samuel Fleischman, Avi Shriki, and Mordechai Danino executed an operating agreement when they formed E.N.Y Plaza, L.L.C., a limited liability company. Fleischman, Shriki, and Mordechai Danino each held a one-third interest in Plaza, the sole asset of which is… Read more

Is every dog entitled to one bite? As a recent case illustrates, proof of prior canine misconduct is required to show vicious propensity.  Suzanne Castelluccio was bitten on May 12, 2016, by a dog named “Charlie” in the driveway of 13 Kent Street in Rock Hill, New York, owned by Karen Hudson and Phillip Hudson.  According to Karen Hudson, she and Castelluccio were traveling to Middletown when they stopped by the Hudson house in Rock Hill. Hudson exited the van and approached the chain-linked pen, which contained her Siberian husky, Charlie. The fence of the pen was approximately five feet… Read more

Certain defenses to claims by landlords against commercial tenants for rent accrued but unpaid during the pandemic have become almost “boilerplate.” The frustration of performance. Impossibility of performance. They were closed by casualty. But, as a recent case illustrates, joining that panoply is the defense that governmentally-ordered restrictions or shutdowns constituted a taking by eminent domain that excused the payment of rent. 111Fulton St. Investors, LLC is the landlord for a commercial space located on the ground floor of a building in Manhattan. Fulton Quality LLC entered into a lease for the premises in 2011 for a twelve-year term. Quality… Read more

Proposals, counter-proposals, term sheets, and memos-of-understanding are regularly and routinely exchanged in the ordinary course of negotiations of contracts for the purchase and sale of real property. But, as a recent case illustrates, a mutually accepted MOU may be found to constitute a binding and enforceable agreement in the absence of a more formal contract. South Bronx Overall Economic Development Corp. sued 4521 Park Ave. Realty Corp. for specific performance and breach of contract in connection with an alleged agreement for sale by 4521 Park to Sobro of the real property at 4521-4529 Park Avenue in the Bronx. 4521 Park… Read more

Commercial litigators in metropolitan areas face a general and familiar panoply of laws and precedents applicable to business disputes. But, as a recent case illustrates, our suburban and upstate counterparts often encounter an entirely different array of statutes and case law applicable to tort claims against a municipality. Douglas Soffey sued the Town of Chester to recover damages for personal injuries he sustained in an incident that occurred on June 1, 2016, at approximately 8:00 PM, at the downstream side of a culvert pipe located under Hardscrabble Road in the Town of Chester, Warren County. Soffey had been fishing with… Read more

Residential cooperative living presents foreseeable “nuisance” challenges from contiguous neighbors, in general, and from people living directly above, in particular. But, as a recent case illustrates, not every annoyance—no matter how hard the facts—leads to injunctive or other relief. Steven Dubin sought a Court order directing his upstairs neighbor, Brian Glasses, to cease his nuisance activities, to comply with their coops house rules, and to refrain from activities that deprived Dubin of the quiet enjoyment of his home. Glasser moved to dismiss the complaint on the grounds that there was a pending proceeding in Housing Court, and the complaint failed… Read more

Commercial tenants routinely assert both frustrations of purpose and impossibility of performance as defenses to claims for non-payment of rent accruing during the pandemic. And, as a recent case illustrates, the defense of actual or constructive eviction has joined that panoply, with a similar result. Valentino U.S.A., Inc.’s entered into a lease with Thor 693 LLC for lower level and ground/second/third-floor space at 693 Fifth Avenue for the display and sale of luxury womenswear, menswear, goods, and accessories. Valentino sought to terminate the obligations under the lease and related guaranty or an abatement of rent, claiming pandemic-related frustration of purpose,… Read more