Real Estate Update

Anthony S. Guardino

Eligibility of Residential Developments for IDA Benefits

By Anthony S. Guardino |

In his Zoning and Land Use Planning column, Anthony Guardino discusses 'Matter of Ryan,' which upheld what has long been understood to be the rule: Residential developments are eligible to receive industrial development agency benefits.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews 'Miller v. Falco,' where an unlicensed home improvement contractor was held not able to recover on claims for breach of contract, quantum meruit or unjust enrichment, and 'Estrada v. Browand,' where a tenant was restored possession of the subject apartment after the landlord's actions where held to constitute an illegal lockout.

Steiner-Goldstein

Local Considerations in Jury Trial Waiver Enforcement

By Jeffrey B. Steiner and Jason R. Goldstein |

In their Financing column, Jeffrey B. Steiner and Jason R. Goldstein discuss the inclusion of pre-dispute jury waiver provisions in loan documents as a means to circumvent a trial by jury in commercial cases. They use a recent California case, 'Rincon v. CP III Rincon Towers,' to highlight the issue.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law discusses 'Rehabilitation Support Services v. Town of Esopus,' where a zoning board's finding was held not to constitute a final decision on the proposed residence at issue.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews “11-01 36 Avenue v. Quamar,” dealing with time-of-essence letters, and “Roger Morris Apt. v. Varela,” where a factual dispute barred summary judgment.

Kenneth M. Block and Joshua M. Levy

Recurring Issues With Contract Indemnities

By Kenneth M. Block and Joshua M. Levy |

In their Construction Law column, Kenneth M. Block and Joshua M. Levy discuss two common misconceptions with regard to construction contract indemnities.

Warren A. Estis and Jeffrey Turkel

Commercial to Residential Substantial Rehabilitation

By Warren A. Estis and Jeffrey Turkel |

In their Rent Regulation column, Warren A. Estis and Jeffrey Turkel discuss the topic of "substantial rehabilitation" and look at whether units converted from commercial to residential use are exempt from "stabilization per se."

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law discusses 'Klyczek v. Shannon', a civil rights case dealing with discrimination and the definition of "single-family house" under the Fair Housing Act.

Ezra Dyckman and Daniel W. Stahl

Regulations Address Partner Reimbursements

By Ezra Dyckman and Daniel W. Stahl |

In their Taxation column, Ezra Dyckman and Daniel W. Stahl discuss new treasury regulations that were issued on Oct. 5, 2016 which provide that the amount that can be distributed to a partner as a tax-free reimbursement of capital expenditures is limited to the partner's share of the qualified liability.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews 'WDF v. The Trustees of Columbia Univ.', where the court held that "no damage for delay" clauses are generally enforceable, while also discussing the exceptions to this rule.

Investing in U.S. Real Estate Using Domestically-Controlled REITs

By Mitchell Berg and Scott Sontag |

In their Transactional Real Estate column, Mitchell Berg and Scott Sontag discuss the advantages to foreign investors of investing through a domestically controlled REIT which include the ability to sell the stock of the domestically controlled REIT without incurring U.S. federal income tax under FIRPTA.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews 'Matter of Peralta v. N.Y. State Division of Housing and Community Renewal', where a deputy commissioner's determination was held to be an abuse of discretion, and 'Hildred Temple v. Hudson View Owners', where the court dismissed disabled plaintiffs' complaint alleging entitlement to two parking spaces.

Acceleration Clauses in Foreclosure Actions: New Rules

By Adam Leitman Bailey and Adam M. Swanson |

In their Foreclosure Law column, Adam Leitman Bailey and Adam M. Swanson review recent case law and discuss some of the benefits and pitfalls when using an acceleration clause and how to overcome these obstacles.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews 'Schroder & Strom v. Vazouras', where the court found that the mere filing and settling of tax assessment claims was not the practice of law, and 'Rios v. Rosado', where tenants were granted disclosure beyond the four-year look back period in a nonpayment suit.

Warren A. Estis and Michael E. Feinstein

Court Finds Powerful Remedy Against Defaulting Condo Owners

By Warren A. Estis and Michael E. Feinstein |

In their Landlord-Tenant column, Warren Estis and Michael Feinstein discuss "Heywood Condominium v. Wozencraft," where the Appellate Division, First Department, affirmed the eviction of a condominium unit owner for non-payment of common charges.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews 'Pureform v. 2374 Concourse Assoc.,' where a commercial tenant who was able to show an ability to cure its defaults was granted a Yellowstone injunction, and 'Matter of Brown, HP,' where the court denied a motion to appoint an Article 7A administrator.

Anthony S. Guardino

Can Zoning Stop Property Owners From Renting?

By Anthony S. Guardino |

In his Zoning and Land Use Planning column, Anthony Guardino explores a number of the significant New York court decisions that help to establish a framework for analyzing the validity of zoning restrictions and the conditions imposed by local governments on permits and variances when rental units are involved.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews 'Waterview Towers v. 2610 Cropsey Development,' where a cooperative housing corporation was held to have established the required elements of adverse possession.

Steiner-Goldstein

Condominium Loans and Lien Priority

By Jeffrey B. Steiner and Jason R. Goldstein |

In their Financing column, Jeffrey B. Steiner and Jason R. Goldstein address some unique aspects of condominium structures which require closer examination on a case-by-case basis.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews 'Goldman v. Bracker,' where a tenant was granted additional time to view video surveillance tapes in a non-primary residence case, and 'St. Joseph Immigrant Home v. Bulong,' where the duration of the tenants' efforts to relocate was held to be not unreasonable.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews “Garson v. Tarmy,” where an easement reserved to owners of dominant lots was held not to have created an express easement , and “Westbeth v. Gross,” where it was held that the respondent in the case could not occupy the subject premises in an individual capacity.

Warren A. Estis and Jeffrey Turkel

The 'Altman' Conundrum (Continued)

By Warren A. Estis and Jeffrey Turkel |

In their Rent Regulation column, Warren A. Estis and Jeffrey Turkel examine how the Appellate Division in 'Altman v. 285 W. Fourth, LLC' and the Appellate Term in 'Aimco 322 E. 61st Street v. Brosius' have arrived at differing interpretations of the same statutory deregulation threshold scheme.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews 'Skanska USA Building v. Atlantic Yards B2 Owner, LLC,' where a "guarantee" posted by a high-rise's builder was found to meet Lien Law §5's "undertaking" requirement.

Ezra Dyckman and Daniel W. Stahl

New Regulations on Debt Share for 'Disguised Sales'

By Ezra Dyckman and Daniel Stahl |

In their Taxation column, Ezra Dyckman and Daniel Stahl discuss the new regulations issued by the Treasury Department October 2016 that modify a number of the partnership debt allocation rules and write how the new regulations have taken a "drastic approach, with respect to determining a partner's share of partnership liabilities for purposes of the "disguised sale" rules—and in a surprising twist cause some partnership liabilities to not be included in any partner's share."

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews “Metro Sixteen Hotel v. Davis,” where a tenant was permanently enjoined from filing further lawsuits without court approval, and “Partita Partners v. USA,” where a $4 million deduction based on a preservation easement was held not authorized under §170(h)(4)(B).

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews 'Hamilton 65th Partners v. Smallbone', where a landlord was judicially estopped from seeking holdover rent, and '700 Bklyn Realty v. Forsythe', where a tenant who established a colorable claim of fraud and was granted discovery beyond the usual four-year look-back period.

Adam Leitman Bailey and John M. Desiderio

Court Clarifies Condo Owners' Right to Inspect

By Adam Leitman Bailey and John M. Desiderio |

In their Condominium Law column, Adam Leitman Bailey and John Desiderio discuss the recent First Department case 'Pomerance v. McGrath,' in which the court has clarified the rights of condominium owners to inspect management books and records.

Todd Soloway and Bryan Mohler

Efforts by Agents to Disclaim Their Fiduciary Duties

By Todd E. Soloway and Bryan T. Mohler |

In thier Hospitality Law column, Todd E. Soloway and Bryan T. Mohler explore whether the effort by hotel operators to curtail their fiduciary obligations to hotel ownership is compatible with long-settled principles of New York law governing agency relationships. Simply put: Can they do it?

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews 'Matter of Village of South Blooming Grove v. Village of Kiryas Joel Board of Trustees,' where the court upheld Kiryas Joel's annexation of 164 acres from the town of Monroe.

Warren A. Estis and Michael E. Feinstein

'Hamilton': Enforcement of Holdover Rent Provisions

By Warren A. Estis and Michael E. Feinstein |

In their Landlord-Tenant column, Warren A. Estis and Michael E. Feinstein discuss 'Hamilton 65th Partners, LLC v. Smallbone Inc.', which illustrates how a landlord's conduct may preclude enforcement of a holdover rent provision.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews 'Aponte v. N.Y. City Housing Authority,' where tenants were granted a directed verdict on NYCHA's liability in failing to eradicate a bedbug issue.

Bruce J. Bergman

The New Foreclosure Statutes: A Review of the Perils

By Bruce J. Bergman |

In his Foreclosure Litigation column, Bruce Bergman discusses the new omnibus foreclosure law and he addresses the numerous issues created by changes to certain aspects of the law such as judgment and sale, conveyance impositions, settlement conferences, maintenance obligations and the expedited procedure for vacant and abandoned properties.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews 'Pfeffer v. N.Y. City Depart. of Finance', where class certification granted in ADA suit over rent freeze program's administration by agency; and 'Houdek Real Estate Co. v. Bayport Postal Realty’, where a landowner's adverse possession claim failed, but its prescriptive easement assertion was allowed to proceed.

Anthony S. Guardino

Exhaustion of Remedies is Often Key to Seeking Relief

By Anthony S. Guardino |

The well-known doctrine of exhaustion of administrative remedies applies in land use and zoning matters. In his Zoning and Land Use Planning column, Anthony Guardino discusses this doctrine and also the important exceptions to it.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews 'Dolomite Products v. Town of Ballston,' where a challenge to a zoning decision was held not 'ripe' because the final decision on the underlying project was never issued.

Jeffrey B. Steiner and Jason R. Goldstein

Pitfalls of Relying on General Indemnities

By Jeffery B. Steiner and Jason R. Goldstein |

In their Financing column, Jeffery B. Steiner and Jason R. Goldstein write: Lenders cannot rely exclusively on generic catch-all indemnification provisions to recover all of their loan expenses from their borrowers. To the extent that lenders expect to enter into hedging transactions when extending credit, the loan documents should delineate the circumstances when the borrower will be liable for losses arising from unwinding any such transactions, including upon an early prepayment.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews 'Old Country Road Realty v. Zisholtz & Zisholtz', where the court rejected a tenant's claim of five percent late fee as usurious, granting the landlord summary judgment; and 'Women in Need, Inc. v. Allen', where the respondent was granted vacatur of judgment in a non-payment proceeding.

Kenneth M. Block and Joshua M. Levy

Ensuring Additional Insured Status in Construction Agreements

By Kenneth M. Block and Joshua M. Levy |

In their Construction Law column, Kenneth M. Block and Joshua M. Levy discuss how the ruling in 'Gilbane Building v. St. Paul Insurance Co.' has heightened uncertainty among those who believe they are protected by their status as an additional insured under a policy, and advise that owners and their counsel should either review the language of the blanket additional insured endorsements carefully or require that any necessary entities be clearly named in specific additional insured endorsements.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews 'East Village Re Holdings v. McGowan,' 'City Club v. Park Trust,' and 'NSA 2015 Owner v. Frederick.'

Warren A. Estis and Jeffrey Turkel

Conditional Rentals Can Lead to Default Rent Formula

By Warren A. Estis and Jeffrey Turkel |

In their Rent Regulation column, Warren A. Estis and Jeffrey Turkel discuss how some landlords have been known to insert clauses into leases where the incoming tenant represents that they will not be a primary resident of the apartment. This is usually part of a scam to "deregulate" an apartment that was otherwise subject to rent stabilization. They explain that such clauses are illegal and discuss how these clauses have resulted in adverse consequences to both individual landlords and the real estate industry as a whole.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews 'Thurston v. Sisca,' 'Morgan Stanley Mtge. Loan Trust v. Morgan Stanley Mtge. Capital Holdings,' and 'Cushman & Wakefield of Connecticut v. Access Private Duty Services.'

Ezra Dyckman and Daniel W. Stahl

New Regulations Disregard Partnership 'Bottom Guarantees'

By Ezra Dyckman and Daniel W. Stahl |

In their Taxation column, Ezra Dyckman and Daniel W. Stahl write that partners have long enjoyed the ability to influence a partnership's allocation of its liabilities by making a "bottom guarantee" of partnership debt, and conclude: "We have known that the end was coming for bottom guarantees since the issuance of proposed regulations by the Treasury Department in 2014. That expectation has now become a reality, as temporary regulations regarding bottom guarantees were issued earlier this month."

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews 'RSP 100 Property LLC v. Brant,' where nuisance allegations made to justify terminating a landlord/tenant relationship were held unproven; and 'Deutsche Bank v. Flagstar Capital Mkts,' where the court held that a 2015 Court of Appeals ruling mandated dismissal of a 2014 breach action as time-barred.

Mitchell L. Berg and Peter E. Fisch

Greater Clarity Needed for New HVCRE Regulations

By Mitchell L. Berg and Peter E. Fisch |

In their Transactional Real Estate column, Mitchell Berg and Peter Fisch discuss the new high volatility commercial real estate, or "HVCRE" rules and conclude: "The full impact of the new HVCRE regulations on the commercial real estate industry is still unclear, with banks continuing to develop their positions on the issue and borrowers testing alternatives for their financing needs. This lack of clarity should dissipate over time as market practice develops and if regulators issue guidelines and clarifications that provide more direction to lenders and borrowers."

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews three landlord-tenant cases: 'Pena v. Lockenwitz,' 'ROC Century Associates v. Papavasiliou,' and '1120 Bergen Street v. Beckford.'

Adam Leitman Bailey and Dov Treiman

Post-Lease Expiration Nonpayment Proceedings

By Adam Leitman Bailey and Dov Treiman |

In their Housing Litigation Column, Adam Leitman Bailey and Dov Treiman write: As a general rule of thumb, when there is a definitive appellate pronouncement on a principle of law in one judicial department and the other departments are silent, the other departments will follow the departments who have spoken to the issue. However, this has not been happening in the lower courts of the First Department who continue to adhere to a position contradicted by authority controlling in the Second and Third Departments: that summary nonpayment proceedings do lie after the expiration of a lease.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen reviews cases involving the fiduciary duty owed by tenants-in-common, the requirements of a notice of nonrenewal based on a landlord's assertion he was recovering the subject apartment "for the use and occupancy of himself and his immediate family," and the impact of a subsequent amendment to a land use code during an appeal.

Warren A. Estis and Michael E. Feinstein

Due Process Requirements Regarding Section 8 Tenants

By Warren A. Estis and Michael E. Feinstein |

In their Landlord-Tenant Law column, Warren A. Estis and Michael E. Feinstein discuss 'West Farms Estates v. Aquino' where a landlord attempting to evict a Section 8 tenant based on her son's criminal activity was held to have violated the tenant's constitutional rights.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law reviews 'Garry v. Ryan & Henderson, P.C.,' where the court found issues of fact existing as to whether a landlord promptly repaired premises' parking garage; and 'Matter of City of New York v. 2305-07 Third Ave., LLC,' where an EDPL Article 4 Eminent Domain Proceeding for certain Harlem parcels was held timely brought by the city.

Anthony S. Guardino

When a Municipality Makes a Mistake

By Anthony S. Guardino |

In his Zoning and Land Use Planning column, Anthony S. Guardino discusses how estoppel is rarely applied against a local government, which allows zoning and other kinds of errors to be corrected.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen reviews 'Congel v. Malfitano,' where the court dealt with determining the value of a partnership interest post dissolution; and 'Colleen & John Austin v. Town of Farmington,' where a fair housing claim was revived in a property restoration suit.