News reports have it that the Chief Judge has admonished the various Departments to constrain themselves in granting motions for leave to appeal to the Court of Appeals – so that the Court may determine what decisions are worthy of further pursuit.  This direction, if true, may account for the fewer number of meaningful decisions on civil matters during the first several months of the Court’s 2018-2019 Term. The Court of Appeals did release decisions having to do with the posting of prices for credit card use; the constitutionality of differential security for cost provisions between residents and non-residents; the… Read more

Copyright by, and republished with permission of, Habitat Magazine. It happens all the time in New York City. Someone buys an apartment relying, without further investigation, on statements made by a sales agent – and then learns, too late, that the statements were incorrect. According to a news report, it happened last year to a purchaser, who placed a $1 million down payment on a $10.5 million Chelsea condo after being told by the selling agent that the ceilings in the under-construction apartment would be “just shy of 10 feet tall” – high enough to accommodate her extensive art collection…. Read more

To establish a claim of title to real property by adverse possession, a party must demonstrate, by clear and convincing evidence, that the possession was (1) hostile and under claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years. Needless to say, each and every element of the formula has developed a unique and discrete body of law – pursuant to which a final disposition is, as often than not, fact-specific.  Several recent examples follow. Mazzei v. Metropolitan Trans. Auth., 2018 NY Slip Op 06007, App. Div. 2nd Dept…. Read more

Copyright by, and republished with permission of, Habitat Magazine. It was a grim and bloody night at the Sea Cliff Towers co-op on Staten Island. The New York Times carried this terse account: “A fight between two friends who were dating the same woman ended in the death of one of them, the police said yesterday. On Wednesday night, Michael Cafferata, 33, was visiting Michael Kett, 41, in Fort Wadsworth. The two argued, and Mr. Kett stabbed Mr. Cafferata with a steak knife, the police said. Mr. Kett fled, but was later arrested and charged with second-degree murder.” Years after… Read more

Now that I have your attention:  Litigation abounds over the right to keep/return the deposit when a real estate transaction fails.  Several recent examples follow: Ward Capital Mgt. LLC v. New Pelham Parkway N. LLC, 2018 NY Slip Op 06797, App. Div. 1st Dept. (October 11, 2018) Supreme Court granted defendants’ motion for summary judgment dismissing the complaint; granted their counterclaims to retain plaintiff’s $1 million downpayment; and denied plaintiff’s cross-motion for summary judgment. The Appellate Division, as follows, summarily affirmed: Defendants made a prima facie showing of their entitlement to judgment as a matter of law. They submitted evidence… Read more

A dustup at the Village Dunes co-op in Montauk highlights the differing standards that may govern the enforceability of decisions made by co-op boards. This dispute began when a shareholder sought the consent of the co-op board to make alterations to his apartment, including raising the ceiling of the apartment, enclosing an unfinished common area above the apartment for his exclusive use, and replacing a window with one of a different type and size. The proprietary lease provided that the board could not unreasonably withhold its consent to a proposed alteration. When the board denied the shareholder’s request, he filed… Read more

In a Yellowstone proceeding, a commercial tenant applies to Supreme Court for an Order tolling the time to cure an alleged default asserted by its landlord and staying the termination of the lease and the prosecution of a summary (holdover) proceeding.  In order to obtain relief, the tenant must show that it is “ready, willing and able” to cure the default (if one is found to exist); however, the legal predicate is that the alleged default is, in fact, curable. The following cases summarize recent Yellowstone proceedings in our Courts.  Especially noteworthy are the decisions finding that the failure to… Read more

Copyright by, and republished with permission of, Habitat Magazine. The owner of the cellar unit in a small Tribeca condominium decided to sell the unit, which, under the condominium’s certificate of occupancy (C of O), could be used only for storage or as a boiler room. A potential buyer planned to turn the space into a showroom for her business. The seller promised her that, by the time of closing, he would have all approvals required to change the C of O to allow for the unit’s use as a showroom – or the deal was off. (A C of O… Read more

When this old world starts getting me down And people are just too much for me to face I climb way up to the top of the stairs And all my cares just drift right into space…[*] Every aspect of residential cooperative or condominium life sooner or later becomes the subject of disagreement. And disputes as to responsibility for maintaining, and the right to use or build on, the roof are frequent in our Courts. A few recent examples follow: Hersh v. One Fifth Ave. Apt. Corp., 2018 NY Slip Op 05522, App. Div. 1st Dept. (July 26, 2018) Supreme… Read more

Copyright by, and republished with permission of, Habitat Magazine. The board at a 10-unit Tribeca building has learned how difficult it can be for a condominium to fund litigation. The board decided to sue the condominium’s sponsor, claiming that the sponsor failed to reveal physical defects in the building, failed to fund the reserve fund as required, and allowed one of its principals, the owner of the building’s commercial space, to cause structural damage to the building. In its suit, the board claimed unit-owners faced “staggering” costs to repair existing damage and prevent further damage. Before filing suit, the board… Read more