• A Bright Line Rule is No Longer Bright

    The long standing “one inch” rule in New York, in connection with actual partial evictions, as explained by Judge Cardozo1 has been that an actual eviction by a landlord, even if partial, and no matter how trivial, will suspend the entire rent owed by the tenant. The reason for such rule, as explained by the Court of Appeals2 is “that the tenant has been deprived of the enjoyment of the demised premises by the wrongful act of the landlord; and thus the consideration of his agreement to pay rent has failed.” As a result of such rule, practitioners in Landlord/Tenant courts ...

    cmandm

    Tuesday, April 10th, 2012

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  • Medication Wake-Up Call: It May Be More Than an Accident

    It can be extremely dangerous for aging parents to rely only on memory when it comes to taking medication. It’s amazing how many aging folks have memory loss issues. A large percentage of those with memory problems go on to develop dementia. Take this simple example of a senior couple. Both are in their mid 80s, but they’re independent and dad still drives locally. They take care of themselves. Except, unbeknownst to anybody, mom was forgetting to take her pills. Last month she had six left over at the end of the month, so she decided to take them all at ...

    cmandm

    Sunday, March 18th, 2012

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  • The Dangers of Your Digital Death

    Ian Fleming once wrote in one of his James Bond novels that you only live twice. Well, it now seems that you die twice as well. The first is your paper death and the second is your digital death. Digital death is quite a new phenomenon, so most of us simply aren’t prepared for it. But your digital death could be far more troublesome than the paper version. You already know what to do about your good old-fashioned paper death. You write a Will, setting out which of your loved ones will inherit your property and other assets. Of course, half ...

    cmandm

    Sunday, February 12th, 2012

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  • Delayed Disclaimer: Carrier Who Hesitates May Be Lost

    Insurers beware, you may be forced to provide coverage for personal injury claims if you wait too long to disclaim coverage of an insured. Insurance Law § 3420(d)(2) requires a liability insurer to give the insured or the injured person written notice of disclaimer of a personal injury claim “as soon as is reasonably possible.” So what exactly does “as soon as is reasonably possible” mean? The First Department recently spoke on the issue, and their answer may catch some insurers off guard. This Advisory will explain when insurers need to disclaim and serve as a reminder for those in the Second Department of the consequences that a delay in disclaiming coverage can have. The ...

    cmandm

    Saturday, February 11th, 2012

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  • Be Concise, Accurate When Responding to RFPs

    By Kristen D’Andrea More than ever, private clients and businesses are shopping for bargains in legal services. And as more legal teams respond to requests for proposals, the importance of drafting a concise and accurate response is paramount to a firm’s business. “From a firm perspective, we’re in favor of them,” said Patrick McCormick, partner at Campolo, Middleton & McCormick in Bohemia. “If we think we can provide value at a competitive price, we’ll get involved.” It is not uncommon for law firms to bid on RFPs for government or municipal work. “Generally, they’re well drafted by the municipality and we know exactly what they’re ...

    cmandm

    Wednesday, January 25th, 2012

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  • Special Care for Special Needs Children

    “Special needs children” are those who need extra assistance. They may be disabled, have learning issues, Down Syndrome, Cerebral Palsy, ADD, autism, muscular dystrophy, depression, obsessive compulsive behavior, closed head injury, spinal cord injury, or any one of a host of other physical or mental challenges. Sometimes those problems are severe, other times children function normally only at a lower level. Special needs children usually need more emotional support, have higher expenses and need additional financial resources for a longer period of time. It is possible (if not probable) that a special needs child will require assistance throughout his or ...

    cmandm

    Thursday, January 19th, 2012

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  • Enforcing Rent Acceleration Clauses

    Public policy in New York seeks to avoid forfeiture of leases.1 What is commonly referred to as a Yellowstone injunction is a procedural mechanism used by tenants in furtherance of that policy.2 As succinctly stated by the Court of Appeals: A Yellowstone injunction maintains the status quo so that a commercial tenant, when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the cure period so that upon an adverse determination on the merits the tenant may cure the default and avoid a forfeiture.3 To obtain a Yellowstone injunction, and ...

    cmandm

    Tuesday, January 10th, 2012

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  • Is it a License or a Lease?

    January 13, 2012 Perhaps the better question is not whether the relationship at issue is one between a landlord and tenant or between a licensor and license, but whether it matters legally or practically? The short answer is that it does matter both legally and practically. But first, what is the distinction between a lease and a license? The Court of Appeals, long ago, described a license as “a personal, revocable and non-assignable privilege, conferred either by writing or parol, to do one or more acts upon land without possessing any interest therein.” Licenses are commonly used for kiosks found in shopping ...

    cmandm

    Tuesday, January 10th, 2012

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  • Be Careful with Security Deposits

    Landlords routinely collect a security deposit from tenants at the commencement of a lease term with the deposit generally to be used to ensure the tenant’s compliance with its lease obligations.These obligations typically include the payment of rent or additional rent and payment for any damage to the leased premises caused by the tenant. While Courts will look to the lease to determine the nature of a deposit (i.e. whether the deposit is security, liquidated damages or a penalty) and the right to the deposit, the parties to the lease sometime overlook the General Obligations Law provisions relating to security ...

    cmandm

    Tuesday, January 10th, 2012

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  • New York Employers Must Issue Wage Theft Prevention Act Notice

    As we reported earlier this year in our advisory, New York State Wage Theft Prevention Act Notice Templates, the Wage Theft Prevention Act (WTPA) annual notice requirement is effective as of January 1, 2012 and must be complied with by February 1, 2012. Thus, the implementation period is exceedingly short. If you employ individuals in New York State, or have affiliates and branches in New York which employ individuals, then you must comply with the current notification requirement of the WTPA. The WTPA, which became effective in April 2011, provides increased obligations and enhanced penalties for employers relating to employee pay ...

    cmandm

    Sunday, January 01st, 2012

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Fred Eisenbud