The Copacabana nightclub, which opened in 1940 and recently closed due to the pandemic, was legendary for many things: Danny Thomas. Martin & Lewis. A New York Yankees brawl. And, as recent cases illustrate, despite the Copa’s physical demise, the legacy survives in the courtroom if not in a ballroom. Kayla Pedraza alleged that, while a patron of Copacabana Nightclub, she slipped and fell due to “wetness and ice on the floor” and suffered a severe ankle fracture. The Copa moved for summary judgment dismissing the complaint arguing that Pedraza could not establish a prima facie claim of negligence because she could… Read more

Copyright by, and republished with permission of, Apartment Law Insider. When landlords take tenants to court over nonpayment of rent, tenants often claim as a defense that the landlord breached the warranty of habitability. But, as a recent case illustrates, a tenant may preemptively claim such a breach before a landlord acts to evict—and argue not only that that the breach was aggravated by the pandemic, but that it amounted to harassment for which the tenant should be awarded a civil penalty. In evaluating the merits of the breach of warranty claim, the court in this case considered the inconvenience… Read more

Copyright by, and republished with permission of, Habitat Magazine. The brawl begins. Back in 2017, the actors Justin Theroux and his then-wife Jennifer Aniston got approval from their Greenwich Village co-op board to combine their apartment with the newly acquired apartment next door, then embark on a $1 million renovation of the expanded space. But the downstairs neighbors, Norman and Barbara Rescinow, complained about excessive noise from the renovation work. A war of words erupted – including charges of harassment, voyeurism, and animal and spousal cruelty, plus a dispute over access to the shared roof deck. Eventually the brawl wound up… Read more

Res ipsa loquitur is the Latin phrase describing a legal doctrine that infers negligence from the very nature of an accident or injury in the absence of any behavior or activity by the aggrieved person. In most negligence cases, the plaintiff must establish a duty of care, breach of that duty, causation, and injury. But under res ipsa loquitur, the first three elements are inferred from an injury that does not ordinarily occur without negligence.  In such cases, the injury is caused by an agency or instrumentality under the defendant’s exclusive control. Or the injury-causing accident is not caused by any voluntary… Read more

The Business Judgment Rule was put to the test in a recent case where Sharie Graham, the owner of a co-op apartment on the Upper East Side, charged the Board with bad faith in refusing to approve the sale of her unit to the Soffens, two physicians from New Jersey, for use as a pied a terre. Graham sued her 420 East 72nd Street residential cooperative apartment building’s Board of Directors for refusing to approve proposed buyers of her unit. The main issue for trial was whether the Board acted in bad faith– because the proprietary lease for the coop… Read more

In a recent case, an iconic Upper East Side luxury retailer sought to escape the obligation to pay $1.68m in  rent because the pandemic destroyed the efficacy of the high-end/tourist/walk-in-and-buy business model for its branded shoes. 35 E.  E. 75th St. Corp. claimed that Christian Louboutin LLC (the tenant in a building owned by E. 75th) had not paid rent since March 3, 2020. And argued that the amount due was comprised of the monthly payments of rent and real estate tax escalation charges for 2020/21. Louboutin admitted it had not paid the rent since March. Instead, Louboubtin argued defenses… Read more

This document reflects a series of meetings hosted by the Federal Reserve Bank of New York’s Community Development unit in collaboration with other organizations on the looming housing and commercial property crisis.* It is designed to facilitate further discussion to help remedy this critical issue. As this paper was being finalized, Congress was voting to approve a second stimulus plan that included extending the federal eviction moratorium to January 31, 2021. The perspectives herein reflect those of the authors and do not reflect the views of the Federal Reserve Bank of New York or the Federal Reserve System. SGR’s Roger… Read more

On September 23, 2016, Yassaman Kazemi was dining at Boqueria Soho, LLC. She ordered a tapas dish with sirloin steak and piquillo pepper confit. Yassaman claimed that when she bit into the piquillo pepper, she bit into a concealed piece of a sharp bone which caused severe injuries. She claimed that she was entitled to summary judgment under the doctrine of res ipsa loquitur and implied warranty. And asserted that the failure to remove the sharp bone from the pepper constituted negligence as a matter of law. Boqueria argued that there were numerous issues of fact that preclude summary judgment…. Read more

Contracts for the sale of residential real property often require the seller to deliver the premises “broom clean”. And leases for residential apartments almost always require a tenant to surrender the unit “in broom clean condition” at the end of the lease term.  A recent dispute, concerning the condition of a home at the time of delivery, is equally applicable to the condition of an apartment at the end of a lease. Phillip and Janet Witter sold their house to Daniel and Erin Nitschke but remained on the premises pursuant to a post-closing occupancy agreement. The Witters claimed that they… Read more

Court Nixes Grossly Disproportionate Liquidated Damages: Landlord Not Entitled to $1M+ for Tenant Default of $175K The Court of Appeals recently considered the enforceability of a liquidated damages provision in a commercial lease Surrender Agreement between  Columbia University, one of the City’s premier universities, and D’Agostino Supermarkets, a family-owned food market chain founded in 1932. As a general matter, parties are free to agree to a liquidated damages clause provided that the clause is neither unconscionable nor contrary to public policy. But were the damages sought by Columbia grossly disproportionate to the amount due from D’Agostino upon full performance of… Read more