LIEB BLOG

Legal Analysts

Tuesday, August 14, 2018

Great Architects Are Land Use Experts

Andrew Lieb , architects
Great Architects Are Land Use Experts
As of right land use is the dimensional and physical limits that a town or village permits on a given parcel of property and which is set forth within a given town’s or village’s municipal code. Municipal codes throughout the East End can be found at ecode360.com and should be fully analyzed for as of right uses before a given parcel is purchased, especially when the purchase is being made with an eye towards development. These as of right land use laws cap the size, siting, materials, and engineering of structures while containing severe penalties for those who do not comply. These laws also differentiate the good architects from the great ones.

 Read the full article in Dan's Papers by Andrew Lieb, Esq. here. 
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Monday, August 06, 2018

Amendment To New York State Paid Family Leave Law Would Require Employers To Provide Paid Bereavement Leave

Bereavement Leave , Employee Handbooks
Amendment To New York State Paid Family Leave Law Would Require Employers To Provide Paid Bereavement Leave
The New York State Senate and Assembly recently passed legislation to amend the New York Paid Family Leave Law, which went into effect in January 2018, to include paid time off for bereavement leave. The amendment, if signed by Governor Cuomo, would entitle qualified employees to use their Paid Family Leave to grieve the death of a family member.

The Paid Family Leave Law currently entitles qualified employees eight (8) weeks (increases to twelve (12) weeks by 2021) of paid leave for the following reasons:
  1. Provide care for a family member with a serious health condition;
  2. Bond with a child during the first twelve months after the child’s birth, adoption, or foster care placement;
  3. Due to exigent circumstances arising out of the employee’s spouse, domestic partner, child, or parent being on active duty in the armed forces of the United States.
Employers must ensure their insurance policies are updated to include coverage for Paid Family Leave which must include coverage for bereavement leave, if the Governor signs the legislation. In addition, employers should update their employee handbooks accordingly.
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Wednesday, August 01, 2018

Service Requirements when Evicting a Tenant

Service Requirements when Evicting a Tenant

When a landlord seeks to evict a tenant, the landlord needs to ensure compliance with service requirements. 

In New York, there are three ways that service is typically effectuated: (1) personal delivery (2) nail and mail; or (3) substituted service. 

When selecting a hearing date for the eviction proceeding, landlords must be mindful of the 5 and 12 Rule, as set forth in RPAPL §733. The rule states that the tenant must be served no fewer than five days, but no more than twelve days prior to the hearing date. However, when is service complete?  

Although the rules vary slightly between the Housing and Justice Courts, generally speaking, the date the tenant is served does not count; the clock starts the date after the tenant was served.

However, the date of the hearing does count.

Putting it all together - if the hearing date is scheduled for a Wednesday, the last date to complete service would be the Friday before.

Also, if the final day of service falls on a Saturday, Sunday or public holiday, the time to complete service is extended to the next business day.

Lastly – don’t ever serve the lawsuit on a Sunday or other religious holiday as this is prohibited by law.

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Monday, July 30, 2018

Luxury Has Rules: Landscaper Licensing and Payment Info East Enders Must Know

Andrew Lieb , Dan's Papers
Luxury Has Rules: Landscaper Licensing and Payment Info East Enders Must Know
Not every business can landscape the luxurious real estate on the East End. It takes a test, some fees, and possibly multiple hours of continuing education to be permitted to manicure our yards, install our swimming pools and nestle our homes within shrubs and trees. We are serious about our landscapes on the East End.

 Read the full article by Andrew Lieb, Esq. published in Danspapers here. 
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Thursday, July 19, 2018

Mortgage Foreclosure SOL: 5-Prong Acceleration Test

The Suffolk Lawyer ,
Mortgage Foreclosure SOL: 5-Prong Acceleration Test
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. 
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Tuesday, July 10, 2018

Judge Strikes Down Title Insurance Regulation 208

Title Insurance ,
Judge Strikes Down Title Insurance Regulation 208
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.
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Monday, July 09, 2018

Rules for Building on Tidal Wetlands

Andrew Lieb , Dan's Papers
Rules for Building on Tidal Wetlands
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. 
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Monday, July 02, 2018

The True Cost of Moving On Up

Andrew Lieb , Dan's Papers
The True Cost of Moving On Up
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. 
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Monday, June 25, 2018

Outdoor Living Next Door to a Noisy Hamptons Neighbor

Andrew Lieb , Dan's Papers
Outdoor Living Next Door to a Noisy Hamptons Neighbor
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?

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Friday, June 01, 2018

Real Estate Brokerage License Law - 2017 Appeals to Secretary of State - Precedent for Future Cases

Real Estate Brokerage License Law - 2017 Appeals to Secretary of State - Precedent for Future Cases
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.  
As can clearly be gleaned, going at it alone or without knowledge of prior decisions is almost certainly fatal if you want to protect your license.  
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