Enko Construction Corp. v. Eva Scrivo, Inc., Eva Scrivo Salon, Inc., Eva Scrivo, Arik Efros, 13th Street Entertainment, LLC, Bagatelle Holdings LLC, RDV Holdings LLC, Jarmco Holding Corp., Stewart & Sons, LLC, New York City Environmental Control Board, Blake Electric Contracting Co., Israel Discount Bank of New York, Board of Managers of The 50 Bond Street Condominium
Our client, Stewart & Sons, LLC is the owner of a commercial condominium unit and our client, the Board of Managers of The 50 Bond Street Condominium, is the governing body of the owners’ association of the condominium building. Our clients were named as Defendants in a lawsuit commenced by Plaintiff, the contractor claiming nonpayment of its bills for construction services rendered to its customer, the tenant of our client’s condominium. Plaintiff filed a mechanics lien and sought to enforce and foreclose upon the mechanics lien in the amount of $276,000.
Our examination of the mechanics lien revealed that it had been filed as a blanket lien against the entire first floor and basement of the property rather than being limited to the particular unit in the condominium. On behalf of our clients, we sought dismissal of the action and discharge of the mechanics lien, asserting that the mechanics lien itself was defective in that it failed to properly describe the real property subject to the mechanic’s lien.
Under Lien Law § 19(6), this Court is granted the authority and power to discharge a mechanic's lien that is defective. A mechanic's lien placed on a condominium unit must limit the lien to the particular units in the condominium, if any, which were claimed to be subject to the lien, and sha1l not impose a "blanket lien" on the entire property. N.Y. Lien Law § 9(7); Real Property Law § 339-l; see also City of Albany Indus. Development Agency v. Degraff-Moffly/General, 164 A.D.2d 20, 22, 562 N.Y.S.2d 821, 823 (3d Dep't. 1990); Advanced Alarm Technology, Inc. v. Pavilion Associates, 145 A.D.2d 582, 584, 536 N.Y.S.2d 127,129 (2d Dep't. 1988); In re Atlas Tile & Marble Works, 191 AD2d 247 (1st Dept. 1993).
The Court granted our motion and dismissed the lawsuit against our clients and discharged the mechanics lien, holding that Plaintiff’s description of the real property subject to the lien was inadequate and rendered the lien invalid and the lien should be discharged under Lien Law § 19(6).
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Scottey Limited, as Assignee of Cristina Caleffi v. 40 Broad Street LLC
We were referred a matter from a Florida attorney in which our client sought return of a $243,715 Contract Deposit made in anticipation of the purchase of a condominium unit offered for sale by the Sponsor, arguing that the Sponsor’s failure to provide and amendment of the offering plan which included a right of rescission, extended client’s right to rescind, which right was properly exercised. After a temporary restraining order was issued by the Court, prohibiting the Sponsor’s escrow agent from releasing the Contract Deposit from escrow, the parties negotiated and consummated a settlement in favor of our client in excess of $225,000.
The Estate of Delores Munroe v. Ana Santiago
Our client came to us six months after she had already entered into a stipulation of settlement with the advice of previous counsel, wherein she agreed to vacate her apartment by a certain date and consented to a judgment of possession and issuance of warrant of eviction. Our client did not want to leave her home. We diligently and expeditiously reviewed the Court’s file to determine if there was any hope of undoing what our client and her predecessor counsel had locked her into. We determined that the proceeding was improperly commenced in the name of an estate and not in the name of an officially appointed personal representative of the estate, which is required by the ETPL. We therefore filed an Order to Show Cause seeking to vacate the prior stipulation and dismiss the proceeding. The Court granted our application, vacated the stipulation and dismissed the proceeding.
Joseph Porto v. Jomo Watts
Client, a rent controlled tenant, lived in a four bedroom, top floor apartment. Landlord brought several holdover eviction proceedings against our client in an effort to get back the apartment, all of which were defended resulting in their dismissal. In the last action, landlord claimed that our client was profiteering by charging his roommates more than their proportionate share of the legal regulated rent. On behalf of our client, we argued that there were no provisions in the rent control regulations which precluded a tenant from charging a roommate more than a proportionate share of rent, unlike the Rent Stabilization Code. The Court agreed with our argument and the case was dismissed. Following the landlord’s defeat, the landlord offered our client a lucrative buyout deal which we negotiated and consummated in excess of $75,000.
Tridee Associates, Inc. v. New York City School Construciton Authority, 292 AD2d 444 (2nd Dept. 2002)
Our client Tridee Associates, Inc., leased its building to the New York City Construction Authority for use as a public elementary school. The authority assigned the lease to the Board of Education of the City of New York. The lease provided that the landlord, Tridee, would provide the "necessary alterations and improvements" so that the premises would be suitable for school use. According to the lease, the Board was to reimburse Tridee for the costs incurred for the alterations and improvements, in an amount not to exceed $750,000.
The lease contained no provision for change orders or extra work. The lease did state, however, that it set forth the entire agreement between the parties and that the lease could only be modified by a writing signed by both parties.
Tridee performed the work which was specified in the "scope of work" annexed to the lease. In addition, pursuant to the Boards direction, Tridee performed extra work costing $430,634.75. While Tridee was reimbursed $750,000 for renovations and improvements pursuant to the terms of the lease, it was not paid for the extra work. According to Tridee, the Board requested numerous changes and extras for which it represented it would pay Tridee.
On behalf of our client, we commenced suit against the Board to recover on its extra work claim. Construction contracts normally require written authorization for extra work. These provisions are generally enforceable and the failure to obtain written authorization may result in the inability to recover the costs of extra work. We argued that the Board orally directed our client to perform the extra work and consented to that work. We argued that the requirements to obtain written authorizations were waived when the Board had knowledge that the extra work was being performed on the oral instructions of authorized personnel. Additionally, a course of conduct between the parties may result in the modification or waiver of a contract provision requiring written authorization.
The Board claimed that there was no written authorization for the extra work as required by the contract. The lower court denied the Board's summary judgment to dismiss the complaint and the Board appealed.
The Appellate Division affirmed the lower court's decision, holding that Tridee's extra work claim was not precluded by a clause in the lease that it could only be modified by a writing signed by both parties. Under New York law, oral directions to perform extra work, or the general course of conduct between the parties, may modify or eliminate contract provisions requiring written authorization. The court said that a provision in the contract which requires that there be written authorization for extra work can be waived under certain circumstances.
The court held that there should be a trial to resolve the issues of fact as to whether the extra work performed by Tridee was at the Board's request and whether the Board waived the requirement that any changes to the contract be in writing. The court added that, assuming that the Board was correct in its argument that the individuals who requested the extra work did not have the authority to bind the Board, there remains a triable issue of fact as to whether the Board ratified the changes and extra work.
The appellate court in this case apparently was influenced by equitable considerations in arriving at its decision. It would be unfair to preclude Tridee form recovering on its extra work claim if it can establish that the extra work performed was clearly requested by the Board and the Board accepted the benefits of such work. It is always better practice, however, to obtain written authorization for extra work, rather than litigate the issue of the contractual requirements.
Exclusive Dry Cleaning & Laundromat Inc. and Oleg Malychev v. Energoservice Inc. and Brooklyn Business Brokers
Client had purchased a drycleaners and laundromat based upon misrepresentations of the seller and broker. It was alleged that the business generated more income than it actually did and that the client list was inflated. Action was brought on behalf of client for rescission of the contract, promissory notes and security agreements and for damages based upon fraud and misrepresentation, resulting in a judgment rescinding and canceling all contract documents and money judgment in excess of $96,000.
Donald Lamothe v. 408 East 73rd Street Housing Corp.
Client occupied a basement storage space for many years. Landlords may not use self-help to evict persons in occupancy of rental space in a building. Cooperative corporation used self-help and evicted client and discarded most of his personal property. Action was brought on behalf of client for damages. Trial on the issue of liability resulted in favor of client. Damages aspect of case was settled in excess of $64,000.
Kathleen Downey v. 44-46 West 66th Street Associates
Client lived with horrific conditions in her apartment. Landlord had breached the warranty of habitability. Action was brought on behalf of client to compel landlord to make necessary repairs and for damages. After obtaining an Order from the Court compelling landlord to make repairs, case was settled resulting in a buyout in excess of $50,000.
109th Street Realty Corp. v. Stephanie Buckley
Client lived with horrific conditions in her apartment. Landlord brought action for nonpayment of rent. We counterclaimed for damages resulting from the landlords breach of the warranty of habitability and overcharge. The case was settled resulting in a buyout in excess of $20,000.
Vendome Commercial, LLC v. 57th Street Video and Photo, Inc., Trio Drug Corp., Prestige Plant Center Inc., Anthony Amerillas, West 57th Street Distributors, Inc., 24 HCR 666A, NYLJ 12/4/96, p. 26. col. 1
New owner of commercial property had commenced a reforeclosure action against our clients, the commercial tenants of the building, to extinguish their leases. If successful, five businesses with dozens of employees would have been put out of business. We interposed a defense asserting that while the new owner could reforeclose a junior lien as a security interest, it could not reforeclose a commercial tenant who had a possessory interest. The tenants had always paid their rent to the previous owner and to the previous receiver in foreclosure and the original foreclosure judgment was made subject to the tenants leases. It was further advocated on behalf of our clients that the new owner had accepted rent from the tenants and had thus created an attornment resulting in the new owner being stopped from disavowing the landlord and tenant relationship. The Court ruled in favor of the tenants and dismissed the complaint.
57-59 Second Ave. Corp. v. Fat Tai Yeung, 2002 NY Slip Op 50124U
On behalf of our client, the landlord, we commenced a holdover proceeding asserting that the tenant was committing a nuisance by repeatedly allowing the water to overflow and damage the apartment of the tenant below. After a trial, the landlord was granted a final judgment of possession and the tenant appealed. The Appellate Court affirmed the trial court and determined that the trial evidence supported the findings that the tenant created a nuisance. The tenant was evicted.
Adrian Tiemann and Jerome Tiemann v. Sylvia Zedlar
Our client, the landlord, owned a brownstone on the Upper Westside. Landlord occupied the entire brownstone with the exception of one room and bathroom which was occupied and used by the tenant, who paid less than $100 a month. It was alleged by the landlord that the tenant would amongst other things, maliciously destroy parts of the brownstone, leave late at night and maliciously leave the front door open, flood the building, leave food, garbage, boxes and refuse in the hallways and bathroom. Landlord commenced a holdover proceeding asserting that the tenant was committing a nuisance by engaging in a persistent and continuing course of conduct to the annoyance, inconvenience, discomfort or damage of others, the primary purpose of which was intended to harass the landlord by substantially interfering with their comfort, health and/or safety. The landlord was granted a final judgment of possession and the tenant was evicted.
201 East 37 Owners Corp. v. Evelyn Cass and Steven Cass, 2004 NY Slip Op 50339U, 3 Misc.2d 1102A
Landlord cooperative corporation commenced a holdover proceeding on the ground that the proprietary lessee did not reside coterminously with her son. Landlord was seeking to terminate the proprietary lease and evict the owner of the apartment. Our client, the proprietary lessee, was in jeopardy of losing a very valuable asset. On behalf of our client, we argued that the cooperative corporation and its past and present managing agents had waived the right to assert that the failure of our client to reside in the apartment coterminously with her son was a violation of the proprietary lease. Our defense of waiver was supported by the facts that our client had never resided in the apartment, that the cooperative corporation had accepted rent for more than 11 years knowing that our client resided elsewhere in her primary residence and that there was written communications from a prior managing agent approving the non-coterminous occupancy of the tenants son. Even a non-waiver clause in a lease may be waived if a landlord accepts rent with knowledge of particular conduct which is claimed to be a default. The case was dismissed and the cooperative corporation was ordered to reimburse our client reasonable attorneys fees.
Eva Philips v. Brunell Daniels
The owner of a small building in Brooklyn was referred to us by the NY Rent Stabilization Association. The owner was ordered to make substantial renovations to an apartment but the tenant refused to provide access to the owner to do the work. The failure to provide access to an apartment to make necessary repairs is a basis to support eviction proceedings. On behalf of the owner, we successfully secured a final judgment of possession in her favor and evicted the tenant. Thereafter, the owner was able to make the necessary renovations. The owner informed us that we had accomplished what her five previous lawyers could not.
Claude Horsford & Daphne Horsford v. Yvonne Bacott, Index No. 570393/04
Our clients, the owners of a five-story, walk-up, brownstone townhouse consisting of a residential duplex unit on the first and second floors and five single room occupancy tenant-occupied apartments on the upper two floors commenced a holdover proceeding seeking possession of the tenant’s rent stabilized apartment for their personal use and occupancy by them and their immediate family as their primary residence. Owners own use holdover proceedings are generally hotly contested actions filled with animosity. This action was typical. After motion practice and lengthy disclosure, a trial ensued. A presentation of testimony and documentary evidence was made on behalf of the owners which made clear to the trial court that the owners had an honest and good faith intention to have their daughter occupy the tenant’s apartment. A judgment of possession was granted in the owners’ favor. The tenant appealed to the Appellate Term and the Court affirmed the trial court’s determination, upholding the judgment of possession in the landlord’s favor. The tenant appealed again to a higher Court, the Appellate Division, for the first time arguing that the owners’ family member’s testimony was required to satisfy the owners’ burden of proof. The Appellate Division affirmed the Appellate Term and trial court’s determinations, holding that the lower court’s determination on good faith intentions was supported by sufficient evidence and comported with the weight of the evidence. The Court declined to hold that it was necessary that the owners’ family member testify in order to meet the owners’ burden of proving good faith intention. The Court of Appeals unanimously affirmed the determination of the Appellate Division, holding that the factual determination upon which the trial court’s decision was based was supported by sufficient evidence.
Holly Doan and Yvette Doan v. Meira Sitton, 1 AD3d 1063 (1st Dept. 2003)
Our client, the owner of a cooperative apartment, had entered into a Contract of Sale to sell the apartment. The Contract was modified by letter agreement to provide that the Closing was to occur no later than April 30, 2002, Time Being of the Essence. When a provision that time is to be of the essence is inserted in a contract, the date established as the law day takes on special significance. Ordinarily, the law will allow the vendor and vendee a reasonable time to perform their respective obligations, regardless of whether they specify a particular date for the closing of title. When there is a declaration that time is of the essence, however, each party must tender performance on the law day unless the time for performance is extended by mutual agreement. Owner was ready, willing and able to close on April 30, 2002. The purchasers sought an adjournment which the owner refused to grant.
Purchasers commenced an action seeking specific performance and thereafter sought return of the contract deposit. On behalf of our client, the owner, we interposed a counterclaim seeking to retain the contract deposit as liquidated damages.
Each party moved for summary judgment. The court granted judgment in favor of our client, holding that unless the time for Closing is extended by mutual agreement, each party is obligated to perform on the law date when there is an express provision that time is of the essence in a contract.
Divine Fayez Olabi and Michell Fayez Olabi v. James D. Mayfield, Jr., et. al., 8 AD2d 459 (2nd Dept. 2004)
Our client, entered into a contract to purchase plaintiffs house and at the closing of sale, agreed to lease the house back to plaintiff/seller for a period of one year. At the expiration of theyear, plaintiff refused to vacate the house. On behalf of our client, we commenced an eviction proceeding against plaintiff.
Upon receipt of the eviction proceeding, plaintiff commenced its own action alleging that our client was really only holding ownership of the house in trust, that our client had promised to sell the house back to plaintiff, fraud, misrepresentation, breach of fiduciary duty and damages.
Under the New York Statute of Frauds, contracts concerning real property must be in writing and if a material element of a contemplated contract is left for future negotiations, there is no enforceable contract.
On behalf of our client, we vigorously defended against the plaintiffs action and simultaneously pursued the eviction proceeding. Plaintiffs withdrew their action and consented to a judgment of possession in favor of our client.
Not satisfied with the outcome, plaintiffs commenced a new lawsuit alleging many of the same causes of action as well as additional causes of action. Again, on behalf of our client, we vigorously defended against the plaintiffs action.
On behalf of our client, we enforced our judgment. Plaintiffs were evicted from our clients house. In addition, plaintiffs new lawsuit was dismissed and a money judgment was entered in favor of our client on his counterclaim against plaintiffs.
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