Entries tagged: real estate

Equity Does Not Relieve Tenant’s Failure to Timely Exercise Renewal

By: Patrick McCormick, Esq.

Posted: June 10th, 2012

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A recent article discussed the decision by the Appellate Division First Dept. in 135 East 57th Street LLC v. Daffy’s Inc.1 in which the Appellate Division excused a tenant’s failure to timely give notice of its election to exercise its option to renew its commercial lease because the tenant had “garnered substantial good will in […]

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A Bright Line Rule is No Longer Bright

By: Patrick McCormick, Esq.

Posted: April 10th, 2012

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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 […]

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Enforcing Rent Acceleration Clauses

By: Patrick McCormick, Esq.

Posted: January 10th, 2012

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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 […]

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Be Careful with Security Deposits

By: Patrick McCormick, Esq.

Posted: January 10th, 2012

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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 […]

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Recovery of Attorney’s Fees Under Residential Leases

By: Patrick McCormick, Esq.

Posted: October 10th, 2011

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It has long been the rule in New York that “attorneys’ fees are deemed incidental to litigation and may not be recovered unless supported by statute, court rule or written agreement of the parties.” Flemming v. Barnwall Nursing Home & Health Facilities, Inc., 15 NY3d 375, 379 (2010). A lease for residential property can constitute […]

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The Rent Demand Revisited: Strict Construction and Harsh Results

By: Patrick McCormick, Esq.

Posted: September 10th, 2011

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It cannot be debated that making or serving a proper rent demand under RPAPL § 711(2) is a necessary precondition to the commencement of a nonpayment proceeding. It is common practice, indeed I suspect it would not be an exaggeration to say it happens every day in every landlord/tenant court, for a landlord to make […]

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Smoking and Second-Hand Smoke Intrusion

By: Patrick McCormick, Esq.

Posted: July 10th, 2011

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Two recent cases address issues that arose when a tenant’s smoking and the resulting intrusion of second-hand smoke into a neighboring tenant’s apartment created objectionable living conditions. In Upper East Lease Associates, LLC v. Cannon, 30 Misc.3d 1213(A), 924 N.Y.S.2d 312 (2011, Dist. Ct., Nassau Co.; Ciaffa, J.) the Court held that landlords of “high-rise apartment” […]

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Inadvertent Creation of Month-to-Month Tenancy

By: Patrick McCormick, Esq.

Posted: June 10th, 2011

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In its recent decision in Islands Heritage Realty Corp. v. Joseph, LT-002642-10, NYLJ 1202492662252, at *1 (Dist., NA, Decided April 28, 2011), Judge Scott Fairgrieve, in deciding a motion brought on by order to show cause to vacate a judgment of possession and warrant of eviction, determined that a month-to-month tenancy had been created by […]

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Failure to Timely Obtain Yellowstone Injunction Results in Lease Termination

By: Patrick McCormick, Esq.

Posted: April 10th, 2011

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Yellowstone injunctions — an injunction to stay the available cure period provided in a commercial lease and in the landlord’s notice to cure while the merits of the alleged default are litigated — have been commonplace since the Court of Appeals’ decision in First Nat. Stores v. Yellowstone Shopping Center, 21N.Y.2d 630, 290 N.Y.S.2d 721 […]

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Security Deposits – A Cautionary Tale

By: Patrick McCormick, Esq.

Posted: March 15th, 2011

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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. […]

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