A mortgage foreclosure lawsuit has a 6-year statute of limitations pursuant to CPLR §213(4). However, dismissal for statute of limitations purposes is largely dependent on lender error because lenders have the unilateral ability to deaccelerate a loan and thereby restart the accrual date of the statute of limitations. As a result, lenders may, through careful monitoring of the statute of limitations, avoid exposure to statute of limitations’ dismissal. To clarify, a lender cannot restart the accrual date for previously defaulted mortgage payments, which will continue to be subject to the 6-year statute of limitations and date of default accrual. Instead, a lender can only avoid statute of limitations dismissal with respect to future installment payments, which are only in default because of a lender’s prior election to contractually accelerate such payments, which is generally done by summons and complaint (e.g., pleading that lender “hereby elects to declare immediately due and payable the entire unpaid balance of principal”). It is these accelerated payments which may be deaccelerated to reset the accrual date for statute of limitations purposes and thereby preserve the lender’s right to future suit. However, whether a deacceleration election is effective has been fragmented in the case law until now.

Read the full article, be Andrew Lieb. Esq, published in The Suffolk Lawyer here. 

Regulation 208 (11 NYCRR 228) is now annulled pursuant to New York County Supreme Court Justice Rakower’s decision and order on New York State Land Title Association (NYSLTA) et. al. v. New York State Department of Financial Services (DFS).

The Court annulled Regulation 208 in its entirety and reasoned, among others, that Regulation 208 is “irrational” and “internally inconsistent.”

DFS has filed its Notice of Appeal. Stay tuned as it is yet to be determined whether Regulation 208 would be reinstituted with a stay or otherwise.

You have your property, and now you’re thinking about what more you can build. If you’re near tidal wetlands, there is much to consider. Construction on tidal wetlands is often disallowed, there are three permits required, the applicant needs competent representation and most importantly, a lot of patience.

Read the full article in Dan's Papers by Andrew Lieb, Esq. here. 

How Much Will Upgrading to a New Home Actually Run You? 

Andrew Lieb, Esq. explains the true cost of moving on up in Dan's Papers. Read the full article here. 

You rented your Hamptons’ summer home for serenity, but your neighbor apparently rented his to throw parties. Your idea of perfection is outdoor lunch with some nice background music and perhaps a nap on the hammock or reading a book. Your neighbor clearly likes drinking with a DJ and loud dance parties. You are just incompatible and this isn’t going to work. What should you do?

In 2017, there were 8 administrative appeals before the Secretary of State concerning license law violations of real estate brokers.

As real estate brokerage professionals, we learn the following rules from these decisions:

1. Hortman v. DLS (71 DOS APP 17): The 150 days in which an administrative law judge should make their determination is directory, not mandatory, in nature and cannot result in the proceeding being dismissed if violated; instead, an application to a court to compel the decision is the only recourse for a broker awaiting such a decision. Additionally, we are reminded that "efforts undertaken to locate financing to be secured by a mortgage, to pre-qualify potential borrowers, and to coordinate financing are activities which require appropriate licensure" if involving commercial real estate.
2. Ronald St. Cyr v. DLS (74 DOS APP 17): Deadline periods to make payment on consent orders should be strictly followed, absent proof of a modification. While modification of the deadline was proven, we are reminded that records are everything when dealing with the government. 
3. Ronald St. Cyr v. DLS (117 DOS APP 17): There is no right to have more time to settle and the default interest rate on a judgment is 9%. All too often clients believe that they have a right to settle; you don't!
4. Da Huang v. DLS (87 DOS APP 17): If you lose a case on default, always make sure that jurisdiction was obtained over you, which, for real estate brokerage license law complaints, means "by delivery of same personally to the licensee, or by mailing same by certified mail to the last known business address of such licensee... or by any method authorized by the civil practice law and rules." Remember to check the address if certified mail was utilized because if its wrongly addressed, there are grounds for dismissal. 
5. Banfield v. DLS (85 DOS APP 17): Failure to cooperate with a DLS investigator is grounds for charge pursuant to RPL 442-e(5). Better have a paper trail of efforts to cooperate. We always recommend using the hot potato game when dealing with the government. Make sure they are caught with the hot potato (last contact offering dates) when the music stops.  
6. Cilino v. DLS (19 DOS APP 17): Defaulting in appearing at a hearing is really bad. 
7. Goulbourne v. DLS (118 DOS APP 17): An appeal of decision or order of suspension must be made within 30 calendar days of receipt of the decisions / order in compliance with 19 NYCRR 400.2(k). Plus, there are special rules of construction in the General Construction Law about how those 30 days are calculated. Know the rules or don't play the game.
8. Zubulake v. DLS (19 DOS APP 17): An application for a real estate brokerage license based upon "equivalent experience in general real estate business for a period of at least three years" is determined by a point system set forth at 19 NYCRR 179.3 and is mandatory to be following by the DLS in hearing such an application.  

NYS companies utilizing the services of independent contractors, such as real estate brokerage firms, are now exposed to liability for the acts of their independent contractors who sexually harassed other independent contractors who were associated with the same company by way of new Executive Law.

Read the full article by Andrew Lieb, Esq. here. 

Excited to share a special Dan's Papers Advertising Deal for Lieb School Students! 

$999 Full Newsprint Page for the Memorial Day Issue of Dan's Papers, if you book by 6pm on Monday 5/21. 

Plus get 2 FREE General Admission tickets to the Dan’s Rosé Soirée event! To take advantage of this deal email ericf@danshamptons.com 

If you are investing in real estate this year, this is a must read for buyers, sellers, landlords, tenants and even neighbors. While this was published in a hamptons magazine, the facts can really apply to all NY real estate.

Read Andrew Lieb, Esq. full article published in Behind The Hedges Here. 

We never recommend a general form as each situation is unique and requires specific information. However, sometimes in our Agency Disclosure classes we do reference the Department of State's article called "Be Wary of Dual Agency". 

Being a Dual Agent means your fiduciary duties are compromised on the individual level. Further, it's a direct deal where the seller/landlord & buyer/tenant both knowingly waive the conflict of interest permitting you to have compromised loyalties in neither negotiating on behalf of either party to a transaction.

A Dual Agent form should only be used when you represent both the seller/landlord & buyer/tenant. Additionally, no other agents are involved from your brokerage firm or another brokerage firm. You can use Dual Agent if you have a listing & you are acting as a selling agent by procuring a client to the listing.

We always recommend that large brokerage companies select Advanced Consent to Dual Agent with Designated Agent when clients are okay with it. You never know who will find a buyer for your listing or who will have a listing for your buyer.

The NY Department of State (DOS) is now ACTIVELY auditing real estate broker and salespersons websites for compliance.

If you are NOT in compliance you are subject to:

• Revocation
• Suspension 
• $1,000 fine PER violation 
• Censure 
• Disgorgement of commission + interest 
• You get charged with untrustworthiness & incompetency in the practice of real estate brokerage in the state of NY. 

Find out if you are in compliance by taking Lieb School's Video Continuing Education Class, Deceptive & Misleading Advertising ONLINE.

You can also take advantage of our $99 special which includes 7 CE classes (including Deceptive & Misleading Advertising ONLINE).

Click Here to Register for the $99 Real Estate CE Package

If you couldn’t make it to our in-person strategic negotiating CE class, no worries, we are currently cutting up the video and creating an online class version. Here’s a clip of what to expect. This real estate CE class will be available by the end of this year!

Andrew Lieb, Esq. announces exciting news about Lieb at Law, P.C.'s expansion including opening up a 40 seat compliance training center. 

Lieb at Law, P.C. is thrilled to announce Mordy Yankovich has joined the litigation team. Mordy's practice focuses on corporate, real estate and employment litigation and compliance. Mr. Yankovich represents companies in all aspects of litigation in federal and state courts and before administrative agencies. He prides himself on advocating zealously for his clients while providing constructive and honest counsel to achieve the best possible result.

In addition to litigating matters, Mr. Yankovich advises clients on compliance with federal, state and local laws and conducts trainings for employers, including anti-discrimination and anti-harassment trainings, to minimize clients’ potential exposure. Prior to working at Lieb at Law, P.C., Mr. Yankovich was a litigation associate with Jackson Lewis, P.C., a national law firm focusing on labor and employment law.

Mr. Yankovich is admitted to practice law in New York and New Jersey state courts, the U.S. District Court for the Eastern and Southern Districts of New York and the U.S. District Court of New Jersey. He received his law degree from Hofstra University School of Law where he was an articles editor of the Labor and Employment Law Journal and a member of the Dean’s List. Prior to law school, Mr. Yankovich graduated from Boston University with a B.S. in Public Relations and a minor in Economics.

When not advocating on behalf of his clients, Mr. Yankovich enjoys playing golf and tennis, creative writing, following the stock market, and spending quality time with his wife and 2 children.

Andrew Lieb Esq, put together a special real estate section of the Suffolk Lawyer's April 2018 addition. Included in the section are the following articles:

• Considerations When Planning a Real Estate Investment Business by Sabie Franco
• The Effect of a Discontinuance on the Mortgage Foreclosure Statute of Limitations Period by Christopher Gorman and James Wighaus
• Condo and Co-op Boards Beware - Discrimination in Housing by Dennis Valet
• Don't Slip Up Handling a Slip and Fall Deposition by Kenneth Landau

These articles are designed to ground educate and inspire us. They are the foundation of what is today because without learning about today, we cannot be prepared to leverage tomorrow.

To read the full section, click here. 

Condominiums and cooperatives, especially high-end associations, are infamous for their lengthy, comprehensive, and often draconian purchase applications, by-laws, and house rules. In their quest to ensure that prospective new purchasers will be the proverbial “good neighbor” it is easy for a board of managers to inadvertently take discriminatory actions that expose the board to liability. This article examines some common issues a board of managers should consider when hiring an attorney to craft or review purchase applications, by-laws, and house rules that ensure compliance with ever-changing local, state, and federal discrimination laws.

To read the full article by Dennis Valet, Esq, click here. 

Available here are all cases, statutes, and other supporting materials for the CLE, The Top Real Estate Laws of 2017, sponsored by First American Title, presented on Monday, April 9, 2018 at the The Omni Building.

Click HERE for downloadable materials. 

Transaction Attorney: Resumes to careers@liebatlaw.com

Litigation: Commercial Litigation, Real Estate Litigation, Real Estate Brokerage Litigation, Title Litigation, Plaintiff Personal Injury, Landlord/Tenant, Discrimination and Estate Litigation.
Legal Compliance for Regulated Industries: Outside Compliance Counsel for regulated professions, Policy Drafting, Policy Implementation, Auditing, Corporate Compliance Trainings. Focus on real estate brokerage and title insurance industries.
Estate Planning and Probate: Last Wills, Advance Directives, Trusts, and Probate Administration.
Transactions: Commercial and Residential Real Estate Purchase and Lease Transactions, Business Transactions and Negotiations.

• Purchases & Sales for Single Family / Vacation (Second) Homes, Multi-Family Homes, Co-ops, Condos, New Construction, Short Sales, Vacant Land 

• Commercial Sales / Purchases for Stand Alone Buildings, Shopping Centers / Strip Malls, Hotel / Motels, Entity Transfer Agreements, Religious Institutions, Operator / Master Tenant Agreements and more… 

• Commercial / Residential Leasing 

• Deed Transfers 

• Land Use & Zoning Advice & Applications 

• Promissory Notes & Mortgages 

• Property Management

• Purchases & Sales (UCC Filings / Bulk Sale Transactions) 

• Drafting & Negotiation of Commercial Contracts 

• Drafting Legal Viability Reports for Business Planning 

• Business Structuring & Startup Counseling 

• Organization of New Businesses, Formation of Corporations, Partnerships, LLCs and more

• Shareholder / Membership Agreements 

• Drafting Form Contracts 

• Drafting & Advice for Policy Manuals 

• Intellectual Property Copyright / Trademark Filings & Licensing Agreements 

• Regulatory Advice, Compliance & Advocacy

The Appellate Division, Second Department, ruled on an issue of first impression in 159 MP Corp. v. Redbridge Bedford, LLC, that commercial tenants may waive declaratory judgment remedies in their written lease agreements and as such, landlords can now avoid Yellowstone injunctions through carefully crafting their lease agreements. All landlord’s counsel should include a provision in their leases mirroring the operative lease language. It would be wise for landlord’s counsel to expressly set forth broad consideration for the waiver of declaratory relief so that it is not subject to unconscionability analysis. 

Read the full article by Andrew Lieb, Esq. published in The Suffolk Lawyer here. 

• Litigation: Commercial Litigation, Real Estate Litigation, Real Estate Brokerage Litigation, Title Litigation, Plaintiff Personal Injury, Landlord/Tenant, Discrimination and Estate Litigation.
• Legal Compliance for Regulated Industries: Outside Compliance Counsel for regulated professions, Policy Drafting, Policy Implementation, Auditing, Corporate Compliance Trainings. Focus on real estate brokerage and title insurance industries. 
• Estate Planning and Probate: Last Wills, Advance Directives, Trusts, and Probate Administration.
• Transactions: Commercial and Residential Real Estate Purchase and Lease Transactions, Business Transactions and Negotiations. 

• Largest Real Estate Brokerage firm in the State of New York
• Largest Title Insurance company in the State of New York
• Lieb School: New York State / Connecticut Real Estate School
• Small and medium size businesses and property owners 
• High net worth individuals

The Civil Rights Division of the Department of Justice announced a new initiative that brings local law enforcement, legal service providers, and DOJ officials together in order to encourage victims to report instances of sexual harassment, increase awareness, assist in obtaining necessary resources for relief, and ultimately, continue the vigorous enforcement of the Fair Housing Act’s ban on sexual harassment.

This initiative stemmed from four cases in 2017, wherein DOJ recovered over $1 million in damages for claims of sexual harassment and violations of the Fair Housing Act. Two of those cases are U.S. v. Kansas City, Kansas Housing Authority and U.S. v. Tjoelker.

On September 29, 2017, DOJ executed a settlement agreement resolving a case against Kansas City Kansas Housing Authority (KCKHA). The Complaint alleged KCKHA employees engaged in a pattern or practice of sexually harassing female housing applicants and residents. One defendant even admitted in sworn deposition testimony that he exposed himself to multiple females. In the agreement, the fourteen aggrieved females were awarded $360,000 in monetary damages. In addition, KCKHA was ordered to implement a written policy against sexual harassment, including a formal complaint procedure to be approved by DOJ and to pay a $5,000 civil penalty to the United States.

On October 3, 2017, DOJ also executed a settlement agreement against Frank Tjoelker, owner and/or manager of rental dwellings in Grand Rapids, Michigan. The Complaint also alleged that he engaged in a pattern or practice of sexually harassing actual and prospective female tenants. Allegations include unwelcome sexual comments and advances, unwanted groping or touching, offers for housing benefits in exchange for sexual favors, and taking or threats of taking adverse housing actions for those who object to such harassment or refuse to grant sexual favors. Under the settlement agreement, Tjoelker was ordered to pay $140,000 to compensate the ten victims and a $10,000 civil penalty to the United States.

Although DOJ only executed settlement agreements to obtain resolutions on the above-mentioned cases and such agreements are binding only among the parties involved, it is likely that DOJ will apply similar penalties in future settlement agreements or decisions on violations of the Fair Housing Act’s sexual harassment ban. See U.S. v. Bailey, U.S. v. Barnason, and U.S. v. Bathrick.

In this regard, as evidence of good faith compliance with the Fair Housing Act, real estate professionals are encouraged to establish written policies against sexual harassment, to train their employees and agents to identify and refrain from engaging in acts of sexual harassment, and to establish procedures for handling complaints.

Now that 2018 is here it is important to be aware of the changes in the law for our industry. This is not a list about the best events from 2017, but instead, a list that highlights the new legal landscape
that real estate attorneys face in 2018. Being familiar with these laws, regulations and opinions may help Attorneys better address their client’s goals and make them money while helping them
avoid malpractice.

Here is a link to the full article by Andrew Lieb, Esq. published in The Suffolk Lawyer. 

New section of the Real Property Law protects tenants from illegally converting dwellings in all residential leases. This statute will place an exorbitant risk on the landlords; a risk only magnified by the likelihood that a property insurance carrier will disclaim coverage for such a claim.

Read the full article by Andrew Lieb, Esq. published in the Suffolk Lawyer here.

Deceptive & Misleading Advertising

The NYS Assembly held a hearing before the Committee on Insurance on January 12, 2018, which goes into great detail about new Insurance Regulations 206 and 208.

During the first approximate 2 hours of the hearing, Superindent Maria T. Vullo of the Department of Financial Services made a statement and fielded many questions about these regulations and the industry as a whole. Then, a second panel of the big 3 title insurance underwriters discussed their take on the regulations. Next, a consumer advocacy panel and then, a title insurance agency representative testified, which were followed by the President of the New York State Land Title Association and an independent title closer. Finishing up the testimony, the Executive Director of TIRSA testified.

Beyond this hearing, real estate professionals should continue to track New York State Bills A8467 and S6704, which each relate to the definition of the phrase "an inducement for, or as compensation for, any title insurance business" as set forth in Insurance Law 6409 and can further change the title insurance industry, if signed into law.

Andrew Lieb Esq., shares the top 5 real estate laws of 2017 in Behind The Hedges.