Real Estate Update

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.

Jeffrey B. Steiner and Jason R. Goldstein

The Importance of Reviewing Term Sheet Contingencies

By Jeffrey B. Steiner and Jason R. Goldstein |

In their Financing column, Jeffrey B. Steiner and Jason R. Goldstein discuss term sheets contingencies and write: Term sheet disputes can be frustrating but they are a natural result of a fast-paced negotiation that seeks to distill a couple hundred pages of loan documents down to a ten-page letter agreement. A well-written term sheet will protect a lender from being obligated to lend on terms that, following diligence or complete loan document negotiation, turn out to be unacceptable to the lender.

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 'Graham v. 420 East 72nd Tenants Corp.,' '729 Prospect Realty Service Corp. v. Rodriguez,' and 'Fuller v. 79 Hamilton Place Housing.'

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 “Jack Kelly Partners v. Zegelstein,” where the Appellate Division ruled on issues of fact as to frustration of purpose, recission and breach of contract.

Bruce J. Bergman

The New 90-Day Notice Rules: A Potential Morass for Lenders

By Bruce J. Bergman |

In his Foreclosure Litigation column, Bruce Bergman discusses the implications to lenders of the changes to the 90-day notice provision for home loans, offering that while some of the changes are innocuous, others are "quite portentous and may create unintended consequences."

Warren A. Estis and Jeffrey Turkel

Newly Created Apartment is Luxury Deregulated

By Warren A. Estis and Jeffrey Turkel |

In their Rent Stabilization column, Warren A. Estis and Jeffrey Turkel discuss case law, "First-Rent Rule" case law, including 'Rubin v. Decker Assoc.,' and write: The creation of new units has always been the gold standard for raising rents and avoiding rent overcharge claims. As 'Rubin' makes clear, creating a new unit has the added benefit of permanently deregulating that unit if the first rent charged exceeds the luxury deregulation threshold.

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 “N.Y. City Construction v. Morgenstern Bros. Realty,” where the court granted tenant a Yellowstone injunction, finding the landlord’s assertions “speculative"; and “Oceanview Manor Home for Adults v. Vargas," where the Housing Court was found to have jurisdiction over the termination of an SSL facility resident.

Adam Leitman Bailey

Recent Efforts to Speed Up Foreclosure Proceedings in N.Y.

By Adam Leitman Bailey |

Adam Leitman Bailey discusses some of the changes the state Legislature and the state courts have taken to expedite foreclosure proceedings and how they will affect the New York foreclosure process.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen reviews 'Roger Morris Apt. Corp. v. Varela,' where a factual dispute barred summary judgment and failure to show 'ample need' led to a denial of discovery; and 'Matter of Shilian v. All Sons Electric Corp,' where a contractor showed good cause to allow the court to extend a mechanics' lien nunc pro tunc.

Ezra Dyckman and Daniel W. Stahl

And the Wall Came Crashing Down

By Ezra Dyckman and Daniel W. Stahl |

In their Taxation Column, Ezra Dyckman and Daniel W. Stahl discuss the Tax Court's decision in 'Alphonso v. Commissioner' which provides taxpayers with a reminder of what constitutes a casualty loss for an individual.

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: 'Git Leb, LLC v. Golphin,' 'IA2 Service LLC v. Quinapanta,' and '135 W. 13, LLC v. Judith Stolerman,' and a contract case, 'Wang v. Martinez.'

Todd Soloway and Bryan Mohler

Lifting the Veil on Hotel Management Expenses

By Todd E. Soloway and Bryan T. Mohler |

In their Real Estate Litigation column, Todd Soloway and Bryan Mohler explain the common hotel management agreement cost structure and explore some common related pitfalls and the factors a developer should consider during the due diligence and negotiation process.

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 “Kosciuszko Plaza v. N.Y. City Department of Housing Preservation and Development,” where an owner's petition challenging HPD's denial of J-51 tax benefit application was held time-barred, and “61 West 37th Street LLC v. Senevi,” where a landlord was held not to be entitled to an assignment fee.

Kenneth M. Block and Joshua M. Levy

New York Slow to Embrace the 'Design-Build' System

By Kenneth M. Block and Joshua M. Levy |

In their Construction Law Column, Kenneth M. Block and Joshua M. Levy state that the 'design-build' system attempts to eliminate the risks of the 'design-bid-build' system by the owner retaining a single entity that is responsible for providing both the design and construction of the project. They note, however, that New York lags behind other parts of the country in making use of design-build because of conflicting legal authority that has created an uncertain regulatory environment.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen reviews recent cases, including one where a co-op requested its insurer pay for structural work needed to bring the building into compliance with codes, asserting that because the need for those repairs was discovered during water damage remediation, which was covered, the structural work should be covered by the policy's 'Blanket Ordinance or Law Coverage Endorsement.'

Warren A. Estis and Michael E. Feinstein

Landlord's Noncompliance Leads to Contempt Charge(s)

By Warren A. Estis and Michael E. Feinstein |

In their Landlord-Tenant Law column, Warren Estis and Michael Feinstein discuss the case "729 Prospect Realty Service Corp. v. Rodriguez," where the court held a landlord in both civil and criminal contempt of court for what it considered "an obvious and flagrant failure" to comply with prior court orders.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen reviews 'Chateau Owners Corp. v. Monahan,' where a co-op sought to terminate a tenant's lease because the tenant had allegedly made plumbing modifications without the co-op's permission; and 'Green Tree Servicing v. Christodoulakis,' where prejudgment interest was awarded on an unjust enrichment claim.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen reviews 'Kimso Apartments v. Mateo,' where a landlord failed to establish that harboring pit bulls was a “hazardous act"; and 'Tomic v. 92 East LLC,' where plaintiffs failed to demonstrate that the current owner knew that the prior owner unlawfully deregulated the apartment.

Anthony S. Guardino

Guidelines for Evaluating Standing in Land Use Cases

By Anthony S. Guardino |

In his Zoning and Land Use Planning column, Anthony Guardino discusses a recent decision by the New York Court of Appeals which helps to clarify the "special injury" requirement of standing.

Jeffrey B. Steiner and Jason R. Goldstein

Guarantees: When Is a Contest 'Material'?

By Jeffrey B. Steiner and Jason R. Goldstein |

In their Financing column, Jeffrey B. Steiner and Jason R. Goldstein discuss guarantee agreements and advise: "In order to ensure that a lender's rights to exercise its default remedies are protected, guaranty agreements should always be negotiated with care to ensure that the guarantor will be held sufficiently liable for any losses incurred by the lender."

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen '805 Car Wash v. Lichter,' where a lease's proposed assignee was held to lack standing to assert a claim against the landlord of a car wash over an allegedly wrongful and unreasonable refusal to grant consent to assign the business; and 'Tomic v. 92 East LLC,' where tenants were found entitled to summary judgment in an overcharge suit.

Peter E. Fisch and Mitchell L. Berg

Exceptions in Rights of First Refusal Provisions

By Peter E. Fisch and Mitchell L. Berg |

In their Transactional Real Estate column, Peter E. Fisch and Mitchell L. Berg discuss how certain scenarios, such as foreclosure sales, are typically not intended to trigger a right of first refusal but may inadvertently be captured by such provisions that do not expressly exclude them.

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 'HSBC Bank v. Zair,' where a mortgagee bank could not be forced to accept ownership of a home destroyed by Superstorm Sandy; and 'Yashar Foundation v. Schwatzman,' where a non-profit was denied summary judgment in a holdover proceeding to recover possession for own use.

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 “Step By Step, Inc. v. City of Ogdensburg,” where the court found that animus against the disabled was a significant factor in the city's decision to deny a zoning application; and “Galanova v. Safir,” where justices dismissed a co-op tenant's defamation suit.

Warren A. Estis and Jeffrey Turkel

Individual Apartment Improvements: an Overview

By Warren A. Estis and Jeffrey Turkel |

In their Rent Regulation column, Warren A. Estis and Jeffrey Turkel discuss a landlord's right to add new equipment and improvements to an apartment, thus enabling a rent increase.

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 “1301 Properties v. Abelson,” where ex-Dewey partners were spared liability for lease payments.

Bruce J. Bergman

Legislative Assaults on Mortgage Holders

By Bruce J. Bergman |

In his Mortgage Litigation column, Bruce J. Bergman discusses a disturbing new law just passed in New York's Town of Hempstead.

Ezra Dyckman and Daniel W. Stahl

Conflicting N.Y. City and State Transfer Tax Rulings

By Ezra Dyckman and Daniel W. Stahl |

In 2015, Ezra Dyckman and Daniel W. Stahl discuss the tax on transfers of real property and two decisions involving the interaction between the rules governing a mere change in form and the transfer of a controlling interest in an entity owning real property. In one holding, New York City prevailed, but the same taxpayer on the same issue prevailed in the state case.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen reviews 'Colin Realty v. Manhasset Pizza,' where the court found that the defendant did not have any "easement, license, occupancy rights, or other right of access over the plaintiff's real property," and 'AR v. GR' where a Referee ruled that the asking price for the subject home was unrealistically high following Super Storm Sandy.

Kenneth M. Block and Joshua M. Levy

Recommended Owner Modifications to Standard AIA Documents

By Kenneth M. Block and Joshua M. Levy |

In their Construction Law column, Kenneth M. Block and Joshua M. Levy offer suggestions for modifications to B101 (Standard Form of Agreement Between Owner and Architect) and A107 (Standard Form of Agreement Between Owner and Contractor for a Project of Limited Scope) forms.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen reviews 'Picaro v. Pelham 1130,' where the NYC Department of Buildings was released from liability for violation of ADA and Fair Housing Act in relation to a landlord shutting down an elevator.

Adam Leitman Bailey and Dov Treiman

The Sound and the Fury: Noise in Rentals, Co-ops and Condos

By Adam Leitman Bailey and Dov Treiman |

In their Housing Litigation column, Adam Leitman Bailey and Dov Treiman discuss and explain the noise laws and remedies in New York.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen reviews 'Flushing LLC v. 33 Development', where the court found that a binder to a contract was only an agreement to agree, not a binding contract as some material terms were missing, and 'Dormitory Authority v. Samson Construction', where breach of contract and negligence claims against architects were allowed to proceed where the project was found to be "so affected with the public interest that the failure to perform competently can have catastrophic consequences."

Warren A. Estis and Alexander Lycoyannis

Airbnb Faces Strong Headwinds in N.Y. Courts

By Warren A. Estis and Alexander Lycoyannis |

In their Landlord-Tenant column, Warren A. Estis and Alexander Lycoyannis explore some recent court decisions concerning the short-term rental of residential apartments via Airbnb.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen reviews 'Soundings v. Foerster,' which held that a condo may sue to rescind a unit whose buyer hid her intent to use the unit as a day care center, and 'Andrews v. Acacia,' where a drug facility resident was afforded due process by the court.

Anthony S. Guardino

Court Limits Judicial Review of SEQRA Positive Declaration

By Anthony S. Guardino |

In his Zoning and Land Use Planning column, Anthony S. Guardino discusses how a ripeness decision by the New York Court of Appeals imposes a significant financial burden on applicants who seek to challenge positive determinations under SEQRA.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen reviews 'Terzo v. 33 Fifth Avenue,' where transfer of a co-op to the deceased shareholders's sons was upheld, and 'Israel Realty v. Shkolnikov,' where the court found that even if certain work done to an apartment was mandated by law, it can still be the basis of a constructive eviction claim by the tenant.

Scott E. Mollen

Realty Law Digest

By 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 “78 Havemeyer v. Abuzaid,” “Mansfield Owners v. Phillip,” and “JP Morgan Chase v. Barbara.”

Jeffrey B. Steiner and David Broderick

Secured Claims Not Impaired by Housing Restrictions

By Jeffrey B. Steiner and David Broderick |

In their Financing column, Jeffrey B. Steiner and David Broderick discuss 'In re Sunnyslope Housing Limited Partnership,' where the Ninth Circuit held that subordinate affordable housing restrictions should not impair the value of a senior lender’s secured claim in bankruptcy.

Todd E. Soloway and Joshua D. Bernstein

Kesha, Freedom, and 'Efficient Breach'

By Todd E. Soloway and Joshua D. Bernstein |

In their Real Estate Litigation column, Todd Soloway and Joshua Bernstein answer the question: "What do pop singer Kesha, hotel owners and other parties to commercial contracts have in common?"

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen reviews 'Reinhard v. Connaught Tower Corp,' where the court granted a co-op owner 100 percent abatement on a constructive eviction claim for smoke infiltration; and 'West 97th St. Realty Corp. v. Aptaker,' where a tenant was denied dismissal of a holdover eviction petition.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen reviews "Rebenwurzel v. Swieca," where the court denied summary judgment to a real estate broker seeking a brokerage commission.

Warren A. Estis and Jeffrey Turkel

How Grim is 'Grimm'?

By Warren A. Estis and Jeffrey Turkel |

In their Rent Regulation column, Warren A. Estis and Jeffrey Turkel examine recent case law interpreting and applying 'Grimm v. DHCRl,' where the Court of Appeals ruled that the four-year look-back period for determining a stabilized rent can be breached where a tenant can establish that the base rent was tainted by fraud; or at the least, can raise a colorable claim of fraud.

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 “Lafayette Boynton v. Pickett,” where the court upheld a decision to return a disabled tenant to his apartment after the execution of a warrant for eviction.

Ezra Dyckman and Vivek Chandrasekhar

New Partnership Audit Rules Create Uncertainties

By Ezra Dyckman and Vivek Chandrasekhar |

In their Taxation column, Ezra Dyckman and Vivek Chandrasekhar discuss the "good news" and the "bad news" with the new partnership audit rules.

Peter Fisch and Andrew Gaines

Pension Fund Investments in Real Estate

By Peter Fisch and Andrew Gaines |

In their Transactional Real Estate column, Peter Fisch and Andrew Gaines discuss the most important rules applicable to real estate investments by private pension funds.

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 "BDS Associates v. QI Song Lin," which dealt with the issue of primary residence, and "NRI Group v. Crawford, where a landlord was barred from harassing "three-quarter house" tenants.

Adam Leitman Bailey and John M. Desiderio

The Rules for Allowing Pets in 'No-Pet' Buildings

By Adam Leitman Bailey and John M. Desiderio |

Adam Leitman Bailey and John M. Desiderio provide an in-depth discussion of the applicable laws protecting persons with disabilities looking for a waiver to allow them to keep a service pet in an otherwise "no-pet" building.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen reviews 'MB Property Group v. Church & Swan Properties,' where a real estate broker provided sufficient proof of an implied agreement, allowing him to receive a commission.

Warren A. Estis and Alexander Lycoyannis

Airbnb Encounters Legal Barriers in NYC

By Warren A. Estis and Alexander Lycoyannis |

In their Landlord-Tenant column, Warren A. Estis and Alexander Lycoyannis discuss how although the popular website Airbnb has had great monetary success, most of its transactions involving New York City residential apartments appear to violate the law.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen reviews 'Gomez v. Rossrock,' a landlord-tenant case where the tenants fraudulent overcharge claim was dismissed, and '385 Bayview v. Warren,' a holdover proceeding where it was found that the landlord did not waive the holdover petition by accepting rent between the time of the service of the notice of termination and service of the petition.