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It”s alive….it’s alive!

In Uncategorized on January 15, 2012 by bleakhouses

That non-primary residence case whose death I posted about a few months ago. The client tendered full payment of the outstanding rent and, imagine, the Landlord rejected it…but did so after cashing the check! They actually had the gall to cash the check and then have their bank return the funds to the client by bank check.

They have also made two attempts to renew the lease but have done so improperly on each occasion by getting the rent stabilized “window period” for renewal wrong.

We are certainly now headed back to Court on what will likely be a new non-payment proceeding. I have already established a strategy that will put the client in a very beneficial position in this case. If you would like to know about it, feel free to drop me a line…by any of my contact forms. I look forward to it.

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New year, things are changing

In Uncategorized on January 15, 2012 by bleakhouses

I closed shop on the solo practice at the end of 2011 to join with a law firm.  I felt that with the resources the firm can provide me I will be able to better service clients and to take on larger clients with larger tasks.  Cornicello, Tendler & Baumel-Cornicello is a full service, high quality firm and I look forward to growth and success with the firm.

Articles

When proof of service isnt proof enough

In Uncategorized on November 9, 2011 by bleakhouses

I am embroiled in a silly little bit of litigation in the Manhattan Commercial Landlord/Tenant part involving proof of service.

The Respondent is claiming the proceeding must be dismissed because the pre-requisite notices and petition contain copies of certified mail receipts and USPS return receipts signed for by a representative of the Respondent. Respondent is arguing that an affidavit of service, in this case it would be mine since I prepared the mailings, is required under RPAPL 741(1) because the affidavit describes the facts upon which the case is based and the proofs of mailing describe nothing.

To me its a ridiculous argument especially considering that the case relied upon by Respondent states that even if the proof of service are bad as long as the petition annexes the pre-requisite notices the Court has jurisdiction.

Never the less…we have killed at least one tree already fighting about it.

Stay tuned for the decision.

Articles

Updates and new matters

In Uncategorized on October 31, 2011 by bleakhouses

That non-primary case I posted on a few months back has died a quite death.  The landlord threw in the towel and decided not to prosecute!

Unfortunately, the decision was made on technical grounds because their process server retired and left the jurisdiction and would not be able to testify at the traverse.

So all those issue may be addressed again in the future.  I may also have to post on how to prepare a client for a future non-primary residence claim as I will have to spend some time with my client doing this.

Just as I have retired some big cases (the ECB and non-primes previously discussed) a new interesting issue comes across my desk!  Good or why me?

It seems that the Department of Labor has assessed a minimum wage penalty against a client building owner.  The DOL disagrees with our two points:

That the apartment was compensation for the employment as part time superintendent.

You may say, “that looks like one point…where is the second?”

Well, it seems that while you a building owner can apply apartment rent to wages for DOL standards there are 2 HUGELY unfair rules in place:

1.  DOL never considers a superintendent a part time worker regardless of how many hours they work.

2.  DOL calculates the wage credit for rent based upon a percentage of the average rents for the year 1975….yes 1975.  Crazy right?  It gets worse…they refuse to acknowledge the fact that the apartment is rent stabilized and thus the rent amount is already regulated and that the rules for Rent Stabilization were completely revamped in 1984 and that there are no reliable records that predate 1984.

This is offensive…another illustration of the hidden socialism that we live under. I am going to make it my mission to dispose of this ridiculousness!

 

On a lighter note…the string of victories is not just legal.  I won my first bike race a few weekends back!  It was a cyclocross race, something I really enjoy doing, and I managed to beat , not only all of those in my category (I raced in a mixed category race) but some in a higher category and a bunch of 19 year old college kids too!  I guess age, treachery and a heap of training will overcome youth!

Articles

Cracking the nut at the Environmental Control Board

In Uncategorized on October 31, 2011 by bleakhouses

I have been fighting like a junk yard dog with the ECB over the last 6 or 8 months.  Truthfully, I am offended to my core by the way the whole procedure jettisons justice for the pretense thereof.  I have made it my mission to test their every procedure and force them to comply with basic concepts of due process.

I had a trial a few weeks back where I made an issue of the procedure of the inspector in regards to his methods of service of the violation.

The decision says it all, but in summary, it was my opinion that the service was bad because the process server did not know what kind of company the building owner was and therefore, I surmised, he could not have known who he could have tried to serve before resorting to alternative service.

Read the decision here:

https://docs.google.com/open?id=1e0wJhRRr4b4SPn_YiK5bDyQijoD85MNE3yzHPls46xjMcW939s15Il3LYT-d

The specific law says:

NY Code – Section 1049-A: Environmental control board

 (2) (a) The environmental control board  shall  not  enter  any  final
  decision  or  order  pursuant to the provisions of paragraph one of this
  subdivision unless the notice of violation shall have been served in the
  same manner as is prescribed for service of process by article three  of
  the  civil  practice  law  and  rules  or  article three of the business
  corporation law, except that:
 (ii)  service of a notice of violation of any provision of the charter
  or administrative code, the enforcement of which is  the  responsibility
  of  the commissioner of sanitation, the commissioner of buildings or the
  commissioner of the fire department and  over  which  the  environmental
  control board has jurisdiction, may be made by affixing such notice in a
  conspicuous place to the premises where the violation occurred; and

 (b) Such notice may only be affixed or delivered pursuant to items (i) and (ii) of subparagraph (a) of this paragraph where a reasonable attempt has been made to deliver such notice to a person in such premises upon whom service may be made as provided for by article three of the civil practice law and rules or article three of the business corporation law.  When  a  copy  of  such  notice  has  been affixed or
  delivered, pursuant to items (i) and (ii) of subparagraph  (a)  of  this
  paragraph,  a  copy  shall be mailed to the respondent at the address of
  such premises. In addition to the foregoing mailing, if  the  respondent
  is  neither the owner nor the managing agent nor the occupying tenant of
  such premises, then a copy of the notice shall also  be  mailed  to  the
  respondent  at  such  respondent's  last  known  residence  or  business
  address, and, if the respondent is the owner or agent  of  the  building
  with  respect to which such notice was issued and the identity of and an
  address for such person is contained in any of the  files  specified  in
  items  (i),  (ii)  and  (iii) of this subparagraph, a copy of the notice
  shall also be mailed:

Section 311-A: Personal service on limited liability companies

(a) Service
  of process on any domestic or foreign limited liability company shall be
  made by delivering a copy personally to (i) any member  of  the  limited
  liability  company  in  this  state,  if  the  management of the limited
  liability company is vested in its members,  (ii)  any  manager  of  the
  limited  liability  company  in  this  state,  if  the management of the
  limited liability company is vested in one or more  managers,  (iii)  to
  any other agent authorized by appointment to receive process, or (iv) to
  any  other person designated by the limited liability company to receive
  process, in the manner provided by law for service of a  summons  as  if
  such person was a defendant. Service of process upon a limited liability
  company  may  also  be  made  pursuant  to  article three of the limited
  liability company law.

You would think my point was obvious...right?  Well, it wasn't.
The Dept of Buildings attorney was actually laughing out loud at the argument. 
He was objecting over and over again at my line of questioning as well.  I guess
we now know who got the last laugh!  Anyway, please read the decision and USE IT
TO WIN YOUR OWN CASES.  If you need my assistance or input on any such case please
feel free to call or email me.


													

Articles

Justice, cont’d

In Uncategorized on June 15, 2011 by bleakhouses

I will have a series of posts updating this “issue.”

As I posted earlier, the hearing office demanded that I start the proceedings with a statement of my client’s defense and then gave me a hard time when I challenged him on due process grounds.

Here is the published procedure of the ECB for such hearings:

(d) Order of Hearing. The following shall be the order of all adjudicatory hearings, subject to modification by the hearing officer for good cause:
(1) Presentation and argument of motions preliminary to a hearing on the merits;
(2) Presentation of opening statements; if any
(3) Petitioner’s case in chief;
(4) Respondent’s case in chief;
(5) Petitioner’s case in rebuttal;
(6) Respondent’s case in rebuttal;
(7) Respondent’s closing argument;

 

Funny, no…how the rules don’t apply to them.  Of course, they could always argue that its “good cause” (see d above) to dispose of due process.  Wouldnt that be just like a Governmental agency to do just that!

 

Anyway, my review lead to a new idea, so something of value may come of all this frustration.   The ECB rules allow me to demand discovery prior to a hearing and present the penalty of preclusion in the event of non-response.  I am going to create a form discovery demand and serve it on every single violation that I get.

If you want to be part of my experiment in justice give me a call or email.

Thanks again for reading.

Articles

Justice, New York Administrative style!

In Uncategorized on June 14, 2011 by bleakhouses

Here’s the insanity I went through las week at the Environmental Control Board on a hearing for 2 violations.  This doesn’t fully describe it all and I will have to post again on it later, but thanks for reading anyway:

Violation 1-
Judge  “Counselor, do you admit the violation and if not what’s your defense?”
Me…”I haven’t yet heard a case made out, so I’m not at liberty to disclose anything.”
Judge “Well, the violation is the case, so what’s your defense?”
Me…”Huh?  I have a due process right to voir dire my accuser.”
Judge  “Not really, this is an administrative Court, if you convince me that you have a defense I might call in the inspector and let you examine him….Im not going to just bring him in and let you test his memory!”
Me…”Can I have that decision in writing?”
Judge  “Ok, we can adjourn for the inspector.”

Violation 2-
(Same intro)
Me…”this involves a violation attesting to measurements and observations.  My client doesnt believe them to be correct.”
Judge  “So we need to bring in the inspector…ok we can adjourn”
Me…”There is a facial defect on the violation mandating dismissal, so that can be determined today.”
Judge   “No it cant, we’re adjourning.”
Me…”The violation is defective, it cites the wrong law!”
ECB Attorney….”Yes Judge, we will be moving to amend to correct that defect.”
Judge”Noted…counselor, they are going to amend that mistake so I’m not going to dismiss.”
Me…”you can’t amend a violation to change the basic allegations, it violates the constitution in so many ways”
Judge  “Well, argue that to the next judge, but I’m not dismissing it.”