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“Be Concise, Accurate When Responding to RFPs”

By Kristen D’Andrea, Long Island Business News

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 looking for,” McCormick said.

Unfortunately, the same can’t be said for some responses.

Amy Stein, professor of legal writing at Hofstra University’s Maurice A. Deane School of Law, likened submitting an RFP to being in the honeymoon stage. If the entity that put out the request struggles to understand a response, they’ll likely be concerned about a firm’s ability to follow direction in litigation. “How you put together your proposal is foreshadowing to a company of how you’ll act as a business partner to them,” Stein said.

In drafting a response, Stein stressed the importance of simple steps, such as following instructions and doing homework. If an RFP has 10 questions, each with three sub-parts, she advises responders to go through each item step-by-step. The order in which the RFP is organized can likely offer a glimpse into the company’s priorities and needs.

Still, she doesn’t recommend relying solely on the contents of an RFP to learn about the company. “Do your research and you might pick up information about their business that’s not in the proposal,” she said. “Maybe a partner at the company went to school where someone from your firm did.” Including any additional information about a company, obtained outside of the RFP, will show that the responder is hungry, she said.

Writing clearly and effectively, and proofreading, are all critical to submitting a winning RFP, Stein said. “Handing in a proposal with a typo is like going on a job interview without brushing your hair,” she said.

McCormick recommends being short and sweet. “You want to respond completely but there’s no need to say more than needs to be said,” he added. In fact, submitting the longest, most verbose response may work against you, Stein said.

Should a firm’s marketing staff help draft a response to an RFP? It’s fine to ask them for help with editing, McCormick said, but it’s important the people who are going to be involved in doing the work respond. The people who will know how long a project will take to complete and the types of consultants needed should run the show.

An RFP is not the place to market yourself, McCormick cautioned. “You should already be past that stage,” he said. Those putting out the requests want to know a firm is qualified to do the necessary work at the price stated.

When it comes to bids, “Don’t say you’ll do an entire case for $250 if your hourly rate is $250,” said Stein. Rather, when drafting a response, attorneys should be careful not to promise anything unethical or they can’t deliver. “Be honest and realistic,” she said. “Don’t guarantee you

will always collect all of their debts, for example.”

Likewise, if the business reading the RFP responses finds a law firm that bid an extremely low price, it should raise a red flag the firm might not understand the work that needs to be done, is not well staffed, or does not have a lot of business, McCormick said.

Ultimately, responses should be customized and tailored to the individual needs of the entity putting out the request. While it’s fine to work off a response from another RFP, Stein recommends ensuring at least 15 percent is personalized.

McCormick agreed. “No one wants to see a form or cookie cutter response,” he said.

Read it on LIBN.

By Patrick McCormick

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 thus toll the running of a lease cure period, the party requesting the relief needs to demonstrate:

(1) it holds a commercial lease, (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease, (3) it requested injunctive relief prior to the termination of the lease, and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises.4

As is evident from this well accepted standard, to obtain Yellowstone relief, the tenant need not meet the more stringent requirements for a preliminary injunction.⁵ However, despite this relaxed standard, obtaining Yellowstone relief is not always a simple matter and there are numerous cases denying relief, most of which focus on the timeliness of the application or the tenant’s ability to cure the alleged default.

Timeliness of Application
As set forth above, the Court of Appeals has confirmed that an application for a Yellowstone injunction must be made prior to the termination of the lease.⁶ What appears to be a simple standard is not, however, so simple.

Where a tenant fails to make a timely request to toll a cure period, “a court is divested of its power to grant a Yellowstone injunction.”⁷ The Appellate Division, Second Department, has interpreted the timeliness element as requiring the tenant to make an application forYellowstone relief “not only before the termination of the subject lease — whether that termination occurs as a result of the expiration of the term of the lease, or is effectuated by virtue of the landlord’s proper and valid service of a notice of termination upon the tenant after the expiration of the cure period — but must also be made prior to the expiration of the cure period set forth in the lease and the landlord’s notice to cure.”⁸

In Goldcrest Realty Company v. 61 Bronx River Owners, Inc.,⁹ the plaintiff sponsor of the subject cooperative and holder of unsold shares allocated to 15 apartments, moved by order to show cause for both a Yellowstone injunction and a preliminary injunction. The motion was made after receipt of 15 separate default/cure notices, after the expiration of the cure period and after receipt of termination notices but before the date set in the termination notices for the termination of the respective leases. The Court held in these circumstances that neither a Yellowstone nor preliminary injunction was available.

In reaffirming prior holdings the Court explained that once the cure period expired, the Court was powerless to revive a lease. The Court once again explained that the request for a Yellowstone injunction must be made both before the termination of the lease and before the expiration of the cure period set forth in the lease and cure notice. In so doing, the Court restated its express rejection of any prior decision “fixing a different or longer period of time in which an application for Yellowstone relief must be made.”¹⁰ The Appellate Division held that the Court below improperly granted the Yellowstone injunction “since the plaintiff did not seek Yellowstone relief within the cure period . . .” In addition, the Appellate Division also held, in agreement with the First and Third Departments, that a motion for a preliminary injunction “must also be made prior to the expiration of the cure period.”

Disagreeing with the Second Department, the Appellate Division, First Department, takes a more forgiving view.¹¹ In a case involving a commercial lease where the lease provided for a specific time period within which to cure any alleged default, but also provided for an unspecified longer cure period for those defaults that could not be cured within the specified time period, where the tenant took significant steps to cure the alleged default, but could not cure the default within the specified time period, the Court reversed an order denying an application for a Yellowstone injunction even though the application was made after the expiration of the initial cure period and after service of a notice of termination. Emphasizing that the specific lease in question simply required the tenant to commence diligent efforts to cure the defaults within the initial cure period, the Court explained that because the lease at issue provided for a scenario where the tenant might not be able to cure an alleged default within the specific cure period, the landlord should be bound to the specific terms of its lease agreement which provided for an additional unspecified cure period.¹²

Delay in making the application can also prove harmful even if made within the applicable cure period. In a recent case¹³ the plaintiff commercial tenant sought a Yellowstoneinjunction one day before the cure period was to expire. A temporary restraining order was issued by the Court ultimately denied the motion holding that the tenant failed to demonstrate it was ready and able to cure the defaults alleged (failure to pay rent and late fees and procure the required amount of liability insurance). As there was one day left in the cure period when the motion was decided, the lease terminated the next day.

After expiration of the lease, tenant moved to renew and reargue, conceding its initial motion failed to address its ability to cure the claimed insurance default. The Court below granted the motion to renew/reargue and granted the Yellowstone injunction. The case eventually went to trial and tenant was found to have breached the insurance provision but the trial judge determined that the Yellowstone injunction had been granted nunc pro tuncas of the date of the original Yellowstone application and that therefore tenant still had one day to cure the default.

The Appellate Division, First Department, held that the trial Court “improperly concluded that Tenant still had the right to cure its breach.”¹⁴ The Court reasoned that after the initial motion for a Yellowstone injunction was denied, because the motion to renew/reargue was brought after the cure period expired, the Court did not have the power to grant Yellowstonerelief. The Appellate Division also held that, while in certain extremely limited circumstances retroactive relief was possible, those circumstances did not exist in this case and that giving retroactive effect to the Yellowstone injunction upon the motion to renew/reargue was improper.

Finally, where a lease provides for a specific time period within which to cure alleged defaults, but the landlord’s default notice grants a longer period to cure the default, an application for Yellowstone relief will be deemed timely if made before the expiration of the longer period provided in the notice.¹⁵

Willingness to Cure
Unlike the dispute regarding timeliness of an application for Yellowstone relief, the First and Second Departments agree that a tenant need not actually prove it as the ability to cure an alleged default in order to obtain relief. A tenant need only “convince the Court of his desire and ability to cure the defects by any means short of vacating the premises.”¹⁶ The Second Department has stated that the willingness to cure requirement will be demonstrated where a tenant in its motion papers indicates that it is willing to repair any defective condition found by the Court and by providing proof of the substantial efforts it already made in addressing the majority of conditions listed in the notice to cure.¹⁷

Residential Leases
While the majority of Courts addressing Yellowstone injunctions involve commercial leases,Yellowstone injunctions are available in certain instances involving residential leases. RPAPL 753(4), which is applicable only in New York City, grants a residential tenant who has been found in default of his lease a ten day period to cure lease violations before being subject to eviction. Because this statutory protection is available only in New York City, courts have permitted Yellowstone Injunctions in matters involving residential leases outside New York City.¹⁸

1 Pfeiffer v. Larrea, 33 Misc.3d 1212(A), 2011 N.Y. Slip Op. 51909(U) (October 21, 2011).

2 Fifty States Management Corp. v. Pioneer Auto Parks, Inc., 46 N.Y. 2d 573, 415 N.Y.S.2d 800 (1979); Olim Realty Corporation v. Big John’s Moving, Inc., 250 A.D.2d 744, 673 N.Y.S. 2d 439 (2d Dep’t 1998).

3 Beaumont Offset Corp. v. Zito; 256 A.D.2d 372, 681 N.Y.S.2d 561 (2d Dep’t 1998); 210 West 29th Street Corp. v. Chohan 13 A.D.3d 613, 786 N.Y.S.2d 322 (2d Dep’t 2004).

4 Ross Realty v. V & A Iron Fabricators, Inc. 5 Misc.3d 72, 787 N.Y.S2d 602 (App. Term 2004).

5 46 N.Y. 2d at 577.;

6 Ross Realty v. V & A Iron Fabricators, Inc. 5 Misc.3d 72, 787 N.Y.S.2d 602 (App. Term 2004).

7 Pfeiffer v. Larrea 33 Misc.3d 1212(A), 2011 N.Y. Slip Op. 51909(U) (October 21, 2011).

8 42 A.D.3d 246, 836 N.Y.S.2d 242 (2d Dep’t 2007).

9 42 A.D.3d at 249.

10 17 Misc.3d 1126 (A), 851 N.Y.S.2d 71 (N.Y.C. Civ. Ct. 2007).

11 Ruppert House Co., Inc. v. Altmann 127 Misc2d 115, 485 N.Y.S.2d 472 (N.Y.C. Civ. Ct. 1985).

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 malls or for cellular towers on roofs of buildings. Under a lease, the landlord surrenders “absolute possession and control of property to another for an agreed-upon rental.” Thus, the primary factor is whether the occupant has the exclusive right to use the premises. If the use is exclusive, the relationship is most likely a landlord/tenant relationship. If not, a licensor/licensee relationship likely exists.3 As will be discussed below, there may be reasons a landowner may want a licensor/licensee relationship, but it is important to note that courts will analyze the relationship to determine whether it is a licensor/licensee or landlord/tenant relationship and will not simply acquiesce in the characterization of the relationship used by the parties.

In addition to obtaining the exclusive use of premises that is the hallmark of a lease, what are the other factors to consider when deciding whether to enter a license or lease? The most obvious consideration relates to termination of the relationship and resulting eviction. Initially, as set forth above, the license may be revoked at any time. Thus, absent an agreement, the revocation, and thus termination of the license can generally come with no notice whatsoever. Any resulting eviction requires service of a 10 day notice to quit before commencement of a summary proceeding. Notably, the 10 day notice to quit is also required if the license term expires.

Another significant factor involves the ability of a licensor to exempt himself from liability for damages resulting from his own negligence. New York General Obligations Law §5-321 generally provides that a lease clause attempting to exempt a landlord from damages resulting from his own negligence is void as against public policy and is thus not enforceable. There is no analogous statutory provision applicable to a licensor. Thus, it is possible for a licensor to exempt himself from damages caused by his own negligence.

Yet another consideration is whether a licensee is able to obtain a Yellowstone injunction. As discussed in a prior article, to obtain a Yellowstone injunction to toll the running of a cure period, one of the requisite elements to be shown by the party seeking the injunction is the existence of a commercial lease. If no lease exists, it follows that a Yellowstone injunction is not available. Also, because a license is revocable at will, there will not likely be a cure period to be tolled by a Yellowstone injunction.

Thus, a licensee may not enjoy all the rights enjoyed by tenants, but is protected by some procedural safeguards. In evaluating whether to enter into a license or lease, both the owner and potential tenant/licensee need first to evaluate whether the exclusive right to possess the subject premises is important and, if not, whether the protections available to tenants but not licensees is significant given the particular circumstances at hand. Whether a license or lease is ultimately chosen, the most important factor is that both parties understand the nature of the relationship from the beginning, so that there are few surprises if the relationship turns sour.

By Patrick McCormick

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 deposits1. The failure to comply with the General Obligations Law can prove costly. Indeed, as demonstrated by the following case, the failure to comply with GOL §7-103 can have harsh results.

In relevant part, GOL §7-103 (1) provides:

Whenever money shall be deposited or advanced on a contract or license
agreement for the use or rental of real property as security for performance
of the contract or agreement or to be applied to payments upon such contract or
agreement when due, such money . . . shall be held in trust by the person with
whom such deposit or advance shall be made and shall not be mingled
with the personal moneys or become an asset of the person receiving the
same . . . (Emphasis supplied)
GOL §7-103 (2) provides, in relevant part:

Whenever the person receiving money so deposited or advanced shall
deposit such money in a banking organization, such person shall thereupon
notify in writing each of the persons making such security deposit or advance,
giving the name and address of the banking organization in which the deposit
of security money is made, and the amount of such deposit.
Pritzker v. Park South Lofts LLC2 was an action brought by a residential tenant against his landlord for the return of his security deposit. The landlord refused to return tenant’s $84,000.00 security deposit because the tenant allegedly caused $36,404.06 in damage to the demised premises. Landlord also refused to return the entire deposit because it was incurring legal fees in connection with the repairs and with the action commenced by the tenant. The tenant alleged claims against the landlord for conversion, breach of the lease, violation of GOL §7-103 and attorneys fees. Landlord asserted counterclaims alleging damage to the apartment and attorneys fees.

In discussing the General Obligations Law, the Court specifically held that “where a landlord has deposited a security deposit in a bank and fails to comply with the notice provision of GOL §7-103(2), a court may draw the rebuttable inference that the landlord has mingled that security deposit with the landlord’s own money, in violation of GOL §7-103(1). [citations omitted] Such commingling constitutes a conversion, as well as a breach of fiduciary duty [citation omitted] and regardless of any non-compliance by the tenant with the terms of the lease, it entitles the tenant to an immediate return of the deposit. [citations omitted]. In the event of such commingling, the landlord may not use any portion of the deposit even for otherwise legitimate purposes. [citations omitted].”

In this case, it was not disputed that the landlord deposited the tenant’s security deposit in an “agency account” of landlord’s managing agent and neither landlord nor its managing agent notified tenant of that deposit as required by GOL §7-103(2). Landlord produced certain banking records from the agent for a period surrounding the deposit of the tenant’s security deposit which records showed seven deposits into the account in addition to the deposit of tenant’s security. Landlord did not identify the sources of those other deposits and no proof was submitted that anyone other than the landlord may have owned any portion of the money in that particular account.

The Court held that “the mere fact that [tenant’s] security deposit was deposited in an agency account does not show that the deposit was not commingled with any of [landlord’s] own money.” A member of the landlord (an LLC) provided an affidavit that its agency account “is wholly segregated from [landlord’s] monies.” Notwithstanding such affidavit, the Court held “in the absence of any explanation of the sources of the many credits to [the agency] account, other than that of plaintiff’s security deposit, in the absence of a copy of such contract as [landlord] and [its agent] may have entered into, and in the absence of unambiguous evidence that the [agency] account does not include money belonging to [landlord]” the affidavit was not sufficient “to rebut the presumption that the security deposit was mingled with the personal monies [of the landlord] within the meaning of GOL §7-103.” Also troubling to the Court was the fact that, after the tenant vacated the apartment, the landlord determined that a portion of the security deposit would be used to repair damage allegedly caused by tenant. But, rather than return the excess security deposit, the landlord retained the entire security deposit to guarantee attorneys fees to which it believed it would be entitled in connection with the tenant’s action. The Court held that these facts demonstrated that the landlord exerted dominance over the security deposit and did not view it as segregated from its own money and therefore granted tenant summary judgment on its claims for conversion and violation of the General Obligations Law.

While the Court did find the tenant partially liable to landlord on landlord’s counterclaims for damage to property, the Court nevertheless granted tenant a judgment for the full amount of the security deposit [$84,000.00] with interest from the end of the lease term.

While this result may be harsh, it could have been avoided had landlord or its agent provided tenant with notice in compliance with GOL §7-103(2) and produced sufficient proof in accordance with GOL §7-103 that the security deposit was not commingled with landlord’s personal funds.

The Appellate Term also recently considered a matter in which the tenant sued to recover his security deposit and the landlord sought to recover sums for certain unpaid charges. In awarding the tenant the return of his security deposit and reducing the amount awarded to the landlord, the Court focused on the specific terms of the lease. In Schlesinger v. Edwards3 after a non-jury trial, the Court awarded the tenant, who had vacated the premises at the end of the lease term, a judgment in the sum of $4,300.00 representing the return of tenant’s full security deposit and awarded the landlord the sum of $553.54 on his counterclaim to recover sums for unpaid electric bills, water bills, carpet cleaning, cleaning and repair of bath and kitchen tile and for rekeying locks to the premises. On appeal, the landlord argued that a rider to the lease required the tenant to provide 60 days notice to landlord if tenant did not intend to renew the lease and that if tenant failed to do so landlord was entitled to retain the entirety of the security deposit.

While the specific lease language is not reported in the case, the Court found that the landlord’s interpretation of the lease clause did “not appear to reflect the parties’ intention, as the lease was for a defined one-year term.” The Court interpreted the lease clause at issue to require the tenant, upon the expiration of the lease term, to provide 60 days notice to the landlord if tenant intended to remain in the premises after the expiration of the lease term and that if the tenant did not give such notice but nevertheless remained in the premises, his security deposit would be forfeited. Finding the lease clause ambiguous, the Court applied the doctrine of contra proferentem, and construed the clause against the landlord and granted the return of the security deposit because the tenant had timely vacated the premises upon the expiration of the one year term. The Court also reduced the monetary award to the landlord finding that the lease specifically provided that if the premises was not cleaned at the expiration of the term, the sum of $100.00 would be deducted from the security deposit but that landlord could collect more than $100.00 if the cleaning costs exceeded $100.00 and landlord provided itemized receipts for such cleaning. The landlord, despite claiming that the cleaning costs for the carpet and bathroom/kitchen tile exceeded $100.00, did not provide itemized receipts for such and thus reduced the landlord’s award for such cleaning costs to $100.00 reducing the entire award to $373.54.

The very simple lesson learned from these cases is that both landlords and tenants should specifically comply with the terms of their lease, which should be carefully drafted to properly memorialize their agreement, and should scrupulously comply with applicable governing statutes.