New York Real Estate Lawyers Blog

The Law Offices of Weiss & Weiss are located within walking distance of both New York State Supreme Court (Westchester County) and the United States District Court for the Southern District of New York (White Plains). Our firm handles cases in all forums, including these two Courts. This blog post will discuss the differences between litigating cases in state court as opposed to federal court.

Generally, most civil cases handled by our firm are filed in New York State Supreme Court. Despite its name, New York State Supreme Court is the lowest level of trial court in the State, and is used generally for litigating cases where the amount in dispute is greater than $25,000.00. Each county in the State has its own Supreme Court, so, for the "downstate" portion of New York State, there are Supreme Courts in each of the five boroughs, named for the counties in which they are located (New York, Kings, Queens, Bronx, and Richmond), as well as Nassau, Suffolk, Westchester, and Putnam). The Westchester Supreme Court is located at 111 Dr. Martin Luther King Boulevard in downtown White Plains, a few blocks from Weiss & Weiss.

In order to "make a federal case out of it," there are certain requirements that must be met to file a case in United States District Court for the Southern District of New York. The Southern District has Courthouses in downtown Manhattan, as well as downtown White Plains. All bankruptcy cases are filed and heard in Federal Court. Therefore, when a debtor files for bankruptcy, our firm is able to file a bankruptcy claim in the White Plains Federal Courthouse on behalf of any creditor that our firm represents.

Other than bankruptcy, there are certain cases that involve federal statutes. Federal Courts would have jurisdiction over these cases. Examples of such federal statutes are copyright and trademark matters, cases involving interstate commerce matters, interstate transportation, and cases involving insurance obtained on behalf of servicepersons in the United States military. Our firm has litigated all of these types of cases. They involve interpretation of federal statutes which apply to the entire country, as opposed to just New York State. For this reason, any lawsuit involving these subject matters are generally filed in Federal Court on behalf of our clients. Federal Judges are appointed by the President, are subject to approval by the Senate, and have a life term, unlike New York State Supreme Court judges, who are elected for a limited term.

Another type of "federal case" is one involving diversity of citizenship. A diversity case involves a litigation where the parties on each side are citizens of different states. In addition to a diversity requirement, a case brought under diversity must also involve a case involving a sum exceeding $75,000.00, as well as other statutory requirements. The diversity statute also requires that, if there are co-defendants or co-plaintiffs, that they also be citizens of different states. Occasionally, a case may be transferred from State Court to Federal Court, or vice-versa, on the motion of one of the parties. This may happen when there is a dispute over which Court has jurisdiction, and the Court itself will render a decision over the correct venue for the case.

Our firm has extensive experience litigating in both New York State Courts and Federal Courts [link to litigation]. The main difference we have experienced is that the Judges in federal court generally maintain much tighter control over the management of their cases. When a case is filed in New York State Supreme Court, a Judge is generally not assigned to it until the parties request it, through the filing of a Request for Judicial Intervention (RJI). Until that point, the attorneys litigating the case generally work with each other regarding case management and litigation deadlines.

Conversely, when a case is filed in Federal Court, it is immediately assigned to a Judge. The Judge's office will maintain tight control over the case, and, even if the attorneys for the litigating parties agree to extend deadlines, the Judge's approval is needed for any such extensions. The Judge will also ensure that the parties are moving the case at a brisk pace, and their office will generally be in contact with the attorneys directly if no progress is being made in moving the litigation forward.

Our firm invites inquiries from all parties who may have matters requiring litigation in New York State Court, or Federal Court.

Real estate transactions commonly involve the inclusion of title insurance policies. For the purposes of this blog post, we will be discussing title insurance obtained when a person purchases a house. Title insurance is a unique type of insurance, in that the events that are to be covered have already occurred. For instance, an automobile policy covers loss resulting from an accident that could happen after the policy is bound. On the other hand, title insurance covers acts that have already happened but not discovered prior to closing, such as a fraudulent deed in the chain of title.

Attorneys who practice real estate law rely upon title insurance companies and their examiners to identify problems with a particular property. Our firm maintains relationships with the major title insurance companies in our region and determines the most appropriate company to use for particular clients. Title companies also play an important role in reviewing closing documents such as Powers of Attorney to confirm that they are valid and in proper form to record. Ideally, title examiners do not miss documents recorded against a property, such as open mortgages that need to be satisfied as of closing. If the title examiner failed to locate a recorded mortgage or if the seller intentionally or inadvertently misled the parties as to the existence of a mortgage, the title insurance company is generally legally obligated to pay the claim for loss suffered by the purchaser (and its lender) because the mortgage lien was not paid and removed as of closing.

At the request of the purchaser's attorney , title companies can provide enhanced coverage in certain situations. For instance, by paying a slightly higher premium at closing, the purchaser can obtain a "market value rider" to the policy. This rider provides that the policy coverage limit will inflate to the future market value of the property, regardless of the amount that the purchaser paid at the closing for the property. Generally, a property sold by a real estate broker to an unaffiliated purchaser reflects market value, making the purchase of the market value rider unnecessary to a purchaser looking for prudent means to reduce closing costs. However, if a property is acquired through foreclosure, an estate or through a seller who was not introduced by a real estate broker, the price paid at closing may be well below market value, making the purchase of the market value rider an intelligent move.

"Eagle" policies have been offered by title insurance companies at higher premiums (20% over the standard policy) than traditional title policies. Such policies provide enhanced coverage for issues such as forgery, fraud, forced removal of a structure and losses due to zoning classification. In some cases, such as building violations, the Eagle policy provides coverage, while a traditional title policy provides no such coverage. Our attorneys have the experience to determine the best policy and rider suitable to the needs of our clients.

Title insurance is a vital component of a real estate property purchase transaction. Our attorneys endeavor to select the title insurance company best suited to our client's requirements, so that our client will be protected in the event of a claim.

Our firm often fields inquiries from clients regarding residential lease situations. One common question relates to the right to renew an existing lease. This blog post will explain certain conditions which may apply to the renewal of a lease after it expires.

We are first assuming that there is a written lease between the landlord and the tenant for the premises in question. If a tenant takes possession of the premises without any written lease whatsoever (this situation arises more than one would expect), then the tenancy is considered a month-to-month tenancy. This means that either party may terminate the tenancy by giving one month's notice to the other party. For this reason, a written lease will protect both party's interest in the tenancy.

A written lease between the landlord and tenant will generally be for a specific period of time. Many leases run for multiple years, such as two, three, or even five year terms. Smaller premises or those for cooperative or condominium apartments may rent for only one year. The question we are asked is what rights the tenant may have to a renewal lease after the lease term expires.

The first legal requirement our firm will check is the terms of the lease itself. The lease may contain a clause providing for a renewal at the option of either party (landlord or tenant). The lease may state that either party may exercise an option to renew the lease no more than thirty days prior to the end of the lease term. For example, if the lease expired on December 31st, the option must be exercised by November 30th. The lease may also contain the method by which the renewal should be communicated, such as a written notice sent by certified mail to the landlord. It is important to review the notice provisions in any lease so that the notice is sent by the correct method and is therefore legally valid.

If the lease does not contain a renewal clause, the next issue to examine is whether the premises in question are subject to rent stabilization. Certain rental units with New York are subject to rent stabilization. Rent stabilization is a law in New York which gives tenants an automatic right to renew their residential leases at a rental rate established by law. Rent stabilization does not apply to commercial property, although there have been calls to extend the law in that direction.

When an apartment is subject to rent stabilization, the landlord may only increase the rent in keeping with a formula set by the New York City Rent Guidelines Board. The Board will usually establish a ceiling for a one year lease renewal, as well as one for a two year renewal. For example, if the one year renewal rate is 5%, and the tenant is paying $2,000.00 per month for their rental apartment, then the landlord must offer a one-year renewal lease for $2,100.00 at the end of the current lease term. The tenant has the option of renewing their lease at this rate, or moving out at the end of the lease term.

By law, the landlord of a rent stabilized unit must provide a "rent stabilization rider" with their lease. This rider is a form that explains the rights and responsibilities of rent stabilization, in basic form, as well as the renewal rights to the unit.

It should be noted that not every rental unit is subject to rent stabilization. Certain types of new luxury construction may fall outside of the rent stabilization law. In addition, if the tenant's annual income is more than $200,00.00, then the unit is deemed "free market," allowing the landlord to charge any rent that he wishes and that a tenant agrees to pay. Apartments renting at free market rates are also not subject to automatic renewal rights.

Finally, cooperative and condominium units are also not subject to rent stabilization, unless the tenant was living in the unit prior to the building converting to cooperative or condominium status. For instance, if a tenant is renting a cooperative apartment from the owner, she should be aware that there is generally no right to renew the lease. Once the lease term ends, the landlord has the legal right to raise the rent to any amount, or have the tenant vacate the premises.

Further, rentals in cooperative and condominium buildings are subject to the individual building's rules. Some buildings only permit one year, non-renewable subleases.

If the tenant continues to pay rent after the lease term expires, and the landlord accepts such rent, then the tenancy is converted to a month-to-month tenancy. As explained elsewhere in this post, either party may terminate a month-to-month tenancy after giving thirty day's notice to the other party.

Weiss & Weiss welcomes inquiries from both landlords and tenants regarding their legal rights relating to residential rental properties.

Our readers who follow politics know that members of Congress have battled in recent years with respect to revisions to the tax law. Specifically, estate, gift, and income taxes have been subject to adjustments. The purpose of this blog post is not to describe the specific changes made to these laws. The laws in this area are fluid and heavily influenced by politics, making them subject to change at almost any time. Because our readers cannot rely on consistency in the tax law, they must be mindful of their estate plans, beneficiary designations, and means by which title is held. The goal is so that intended recipients receive intended assets and that taxes are reduced as much as legally possible.

Further, while some of the tax laws have been revised at the Federal level, they have not been so adjusted in New York State. As such, estates valued at more than one million dollars are subject to New York State estate tax. In the New York metropolitan area, it is easy to accumulate one million dollars in assets, which could be deemed the value of real estate (net of the balance of a mortgage), life insurance policies that are considered to be revocable and other assets.

In any tax climate, estate planning will always be needed for the purpose of naming guardians for minor children, providing for beneficiaries with special needs such as those with physical or mental disabilities, identifying those persons desired to serve as executors and for establishing business succession plans. People with property in multiple states also require estate planning services, as different states may have their own estate tax, necessitating strategies to achieve tax reduction. In addition, same sex couples require estate planning, even if they reside in a state where they are considered legally married, to determine the allocation of assets in other states and to ensure that the spouse receives intended assets, rather than blood relatives.

Estate documents should be considered to be organic documents, requiring review and redrafting from time to time. Those persons who executed estate documents in the last fifteen years would benefit from a consultation with our firm to evaluate whether the documents comply with current tax law and personal circumstances. Certainly in that period of time, marriages or divorces may have occurred and children may have been born, requiring the naming or deleting of particular beneficiaries. We look forward to discussing your estate planning needs.

Our firm is often asked to enter judgments on behalf of creditors. A judgment can be obtained in several ways. If a lawsuit is brought, and the defendant does not respond, a default judgment may be obtained. A case may also go to trial, and, if successful, a judgment may result. In addition, other situation can arise where a client obtains a judgment in another state, other than New York. These are known as "foreign" judgments, even though they are still obtained within the United States.

Article IV, Section 1 of the Constitution says that "[F]ull Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." This means that if a lawsuit is brought in another state, goes to trial, and a judgment is obtained, then every state in the U.S. must consider that judgment valid, and allow it to be entered in their own state. The main reason that one would want a foreign judgment entered in New York is because the debtor has assets within New York. Collecting such a judgment will be addressed in the second part of this blog post.

New York Civil Practice Law and Rules Article 54 regulates the entry of foreign judgments in New York State. It allows foreign judgments which were not obtained by default or confession of judgment to be entered in New York. In order to enter such a judgment, the original judgment must be authenticated. This generally means that an official, such as a Judge, in the state where the original judgment was entered, must provide an affidavit that the judgment is currently valid. The original judgment must usually contain a raised seal from the originating state. In addition, the judgment creditor must provide an affidavit stating that the judgment was not entered by default, that it has not been paid, and provide the name and last known address of the judgment debtor. Our firm has extensive experience in preparing such affidavits and entering foreign judgments in New York State.

Once the judgment has been entered in New York, C.P.L.R. § 5403 requires the judgment creditor to provide the judgment debtor with notice of its entry at his last known address. Once the debtor has been so advised, the judgment creditor may proceed with her attempts to collect on the judgment.

Collection of a judgment is not always a simple matter. New York State Courts do not have a legal mechanism whereby a judgment creditor can convert an entered judgment into cash. In order to collect, an experienced collection attorney is usually engaged. The first goal in collecting a judgment is to locate the assets of the debtor. Assets can be real property, bank accounts, vehicles, or anything else of value owned by the debtor. Once assets have been located, an execution can be issued to the marshal or sheriff of the county in which the property is located. If the assets are located within New York State, it is necessary to have a valid judgment entered in New York State to execute on the assets. This is the main reason why foreign judgments are entered in New York, or any other state in which the debtor may own property.

If the debtor is earning wages within New York State, then a wage garnishment can also be issued to collect a portion of their wages. New York statutes limit the amount which can be collected through a wage garnishment. Again, an entered judgment in New York is necessary to issue a wage garnishment within the State. If the debtor works in another state, then the judgment must be entered in that State in order to collection a portion of the debtor's earnings.

Weiss & Weiss welcomes all inquiries relating to the entry of foreign judgments and their collection in New York State.

Bundled services have commonly been offered to purchasers of real estate in New York. For example, a real estate broker, wishing to enhance an affiliated title insurance company, has a program that encourages attorneys to refer their title business to the title company. A title agent provides tax reduction services as a benefit to its title customers. Mortgage providers may have an affiliation with a real estate broker. Purchasers may consider bundled services to be convenient and beneficial. They may be unfamiliar with the community in which they are purchasing or new to the process, giving them the tendency to trust recommendations of professionals that they have already selected. However, in some cases, bundled services predominantly benefit those entities to which the referral is made and do not necessarily result in better or less expensive service for the customer.

Title insurance companies are highly competitive entities that have fewer transactions to close since the "Great Recession". In an effort to stand out among their competitors, it is not unusual for a title company to have an affiliated mortgage loan provider or title insurance company. They argue that closing issues can be resolved more readily since the servicers are constantly working with one another. Real estate brokers want to make sure that their purchaser can obtain financing, so referring to their affiliated entity is perceived by some as making the issuance of a loan commitment more likely. In some cases, they attempt to bring attorneys, who they select to be on an "approved list", into the arrangement. Purchasers should be aware that in order to be on the "approved list", an attorney may be requested to refer its title business to a particular entity on substantially all of his or her transactions, even those that did not result from the real estate broker with the affiliated title business.

Some title insurance companies that have lost transactions from attorneys on approved lists with other title companies are crying foul to this arrangement. They argue that the deck is stacked against them, in that the title company is in effect selected before the contract is even signed. While the real interest in the complaints may be to stifle the competition, there are legitimate reasons for some of the objections. New York's Insurance Law provides that those who accept or receive a quid pro quo are subject to financial penalty. Title companies have been forbidden from providing goods of value as an inducement for future business. Expensive gifts and tickets to sporting events are of concern. Financial inducements (kickbacks) are prohibited. Invitations to continuing education events and office supplies are not considered an inducement for business. It is not unusual to refer business in any field to a golfing buddy, but if the service is deficient or too expensive, it only benefits the person who wants to keep playing golf, rather than the purchaser.

The main issue is the quality of the title insurance product provided to the purchaser. Is the policy backed by a major national underwriter with substantial reserves? Does the title insurance company have a full staff of experienced professionals who are readily available? Can your attorney easily reach the title company's staff attorney to discuss closing issues? Will the title company promptly pay and file all fees, taxes and documents issued in connection with the transaction, so that the parties are not penalized? Any title company can collect your premium at closing, but not all will properly service the purchaser if issues arise after the closing. An experienced real estate attorney will objectively evaluate these issues and select the title company best suited to the particular transaction.

Excessive costs are another issue. If a payment is delivered as an inducement to obtain the referral, such cost is most likely passed on to the purchaser. Recently, the Consumer Financial Protection Bureau settled a complaint against four major mortgage insurers that made improper payments to lenders in exchange for business. Until this matter was resolved, some purchasers in effect paid more for mortgage insurance in order to support this kickback arrangement.

Since the financial crisis, regulations governing real estate transactions have become more onerous. The Real Estate Settlement and Procedures Act ("RESPA") prohibits the receipt of compensation in exchange for referrals for real estate settlement services. Parties to real estate transactions should obtain advice from an independent professional who can confirm that the financial incentives of the other professionals in the transaction are not detrimental to the purchaser.

A recent article in the New York Times discusses new legal developments relating to the Westchester County, New York fair housing settlement. For those who are unfamiliar with the situation, a lawsuit was brought in 2009 by a public interest group against Westchester County, alleging housing discrimination. In order to settle the lawsuit in 2009, then-County executive Andrew Spano agreed to build at least 750 units of "affordable housing" in Westchester by a Court-approved settlement agreement.

Recent developments in this case involve the federal government threatening to have the County held in contempt of Court for failing to comply with the settlement agreement. In addition, the federal Department of Housing and Urban Development has stated that it will revoke $7.4 million in money awarded to Westchester County if the county does not comply with the terms of the settlement.

More specifically, the settlement agreement required that the county create 750 houses and apartments for moderate-income people in particular Westchester neighborhoods. The County has claimed it is actually ahead of schedule to accomplish this goal. The current County Executive states that the County already has financing for 305 units of affordable housing in place. However, HUD and the housing advocates who brought the original lawsuit claim that the County is not only obligated to build affordable housing, but also to take affirmative steps to prevent housing discrimination within Westchester under the terms of the settlement agreement.

One major lesson to be taken from this dispute is the necessity for exact and specific language to be written into any settlement agreement. If there is indeed language in the settlement agreement requiring Westchester to take steps to prevent discrimination in housing, that language may be so broad as to require almost any action that is deemed by the County's opponents to be within the spirit of the agreement. The current County Executive, Rob Astorino, vetoed new legislation requiring landlords not to discriminate against tenants using Section 8 vouchers to pay their rent. Section 8 vouchers are in essence government-assisted payments given to low-income tenants. Mr. Astorino argued that he was within his rights as County Executive to veto legislation he deemed not in the best interests of the County. He also claimed that he was not bound by the terms of the settlement agreement, as he was not County Executive at the time that the settlement agreement was executed.

A Federal Appeals Court recently rejected both of these arguments. It ruled against the County and Mr. Astorino, stating that, under the terms of the settlement agreement, the County, and the County Executive, is required to promote legislation prohibiting discrimination in housing. The Court said that Mr. Astorino's 2010 veto of legislation banning discrimination in housing based on source of income (such as Section 8 vouchers) was not in compliance with the terms of the settlement agreement. The United States Justice Department has now threatened to hold Westchester officials in contempt of Court if they fail to enact such legislation.

Of course, this continuing dispute could have been easily avoided at the time of the negotiation of the original settlement agreement. By agreeing to promote "fair housing" and take action to prevent discrimination in housing, the County accepted an open ended and ambiguous obligation which will now be subject to endless Court rulings and determinations, and which may never end. Instead, the County should have agreed to take certain specific actions which would not be subject to any legal interpretation. There would have then been no doubt as to the County's exact obligations under such a settlement. The settlement also should have had a time limit within which the County was to perform these actions. By agreeing to "promote fair housing," and not agreeing to a specific time period, the County has "opened the door" to having Courts and Judges decide what the County needs to do to promote fair housing, and the time period to perform such actions will almost certainly extend far beyond what the parties envisioned. If such an agreement could not have been made specific, the County should have continued to litigate the action and not settled under these conditions.

We are pleased to announce that as of April 15, 2013, the law firm of Weiss & Weiss has moved to 1 Barker Avenue, Third Floor, White Plains, New York 10601. Our new telephone number is (914) 328-6100 and our new facsimile number is (914) 328-7842. Our new location enhances our ability to provide high quality professional services to our clients. We are located within walking distance of the White Plains Metro North train station and bus transit center, the Westchester County Courthouse and the Federal Courthouse for the Southern District of New York. Street parking is available by parking meter along the perimeter of our office building. In addition, a parking garage for the use of our visitors is located adjacent to our office building. Our expanded facilities include three conference rooms, a comfortable reception area and modern office equipment. We look forward to continuing to serve the needs of our clients and to welcoming visitors to our new location.

Our firm often interacts with other professionals, such as doctors, architects, and accountants, in the course of our practice. This can happen in several ways. The first is when such services are needed by our clients in the course of litigation. For example, an architect may be needed to evaluate whether a property can be divided in separate parcels in a partition action. Courts will consider this separation to be the preferred remedy, so the expertise of an architect is often needed to provide their professional judgment on whether the property can be subdivided.

Another situation which may occur is when a client states that they received professional services which were not satisfactory. One client informed our firm that the person they hired to prepare and file their professional income taxes had done such a poor job that their business was subject to IRS investigations and liens from the government.

When either of these situations occur, our first step is to check the New York State Licensing Division website. This website allows us to determine whether a person holds a professional license in New York State. Examples of such licensed professions are doctors, nurses, architects, certified public accountants, and other financial and health related occupations. If a person practicing such a professional is not listed as licensed, this would raise several "red flags" in our evaluation of the situation. We have had several situations in which a tax preparer was neither a licensed certified public accountant nor a licensed accountant of any kind. At that point, we informed our client and told him not to use such a person in the future.

There are several reasons why using unlicensed professionals is not recommended to our clients. The first is that in order to become a licensed professional, there is a certain level of education and training that is required by New York State. Of course, the specifics of such education and training will vary according to the professional in question. A prospective doctor is required to complete medical school, pass certain types of board examinations, and complete a residency program before New York State will license her as a physician. Other professions have similar, if less rigorous, training and examinations. Continuing education is often required to maintain and renew professional licenses.

In addition, licensed professionals are held to a higher legal standard than those without a license. A certified public accountant, in preparing one's tax returns, is expected to meet or exceed the standard of the "average" licensed CPA in preparing and filing tax returns. If he does not, he may be subject to a malpractice lawsuit. In a malpractice lawsuit, the aggrieved party is alleging that the professional did not meet the standard of an "ordinary" professional in providing the services in question. A professional who does not follow what is considered standard or basic procedures in providing their services may be subject to a claim for legal damages resulting from such failure.

Legally, one cannot hold an individual to a standard of practice of a licensed professional if they are not a licensed professional and do not hold themselves out as being one. For example, the person who uses a tax preparer who is not a licensed accountant cannot claim that the preparer should meet the legal standard expected of a certified public accountant. For that reason, a malpractice suit against an unlicensed professional may not be successful, as there is no professional standard by which they may be judged.

Our firm welcomes all inquiries regarding possible misconduct by professionals, including accounts, architects, and doctors.

This blog post contains a description of some of the standard substantive objections that a person may have to the admission of a Will to probate. Estate practitioners deem these objections the "four horsemen". Due execution, testamentary capacity, undue influence and fraud comprise the four horsemen.

Due execution is known as the Statute of Wills. The proponent of the Will must show by the fair preponderance of the evidence that the Will was signed at its physical end in the presence of at least two disinterested witnesses. At the time of execution, the person making the Will should make it known to the witnesses that he is signing his Will and wants the witnesses to act as witnesses. Due execution is assumed if an attorney supervised the Will execution "ceremony" and if the Will contains the legal attestation clause. Our firm is mindful of New York's execution requirements and conducts the Will signings that it supervises in accordance with the statute.

Testamentary capacity, the ability to make a Will, is broadly defined as every person over eighteen years of age who is of sound mind and memory. The Court will look to the testator's capacity at the time that the Will was executed. Elements that the Court will consider include whether the testator understood the meaning of the Will's provisions, the nature and extent of his property and the "natural objects of his bounty" (the identity of his family members or friends). Old age, dementia, and physical infirmaries such as blindness are not automatic disqualifiers depending upon the condition of the person when he signed his Will.

Undue influence is when a person exerts such control over the testator that the testator changes the dispositions made in the Will to favor the controlling person. The objectant will need to prove that the perpetrator had the motive and opportunity to exercise undue influence, which was actually exercised over the testator. The Court may consider the issue of confidential relationships as proof of undue influence. Common types of confidential relationships include doctor-patient and clergy-congregant.

Fraud is another objection. Was the testator tricked into making certain provisions in his Will based on the false statements of another person? Fraud must be shown by a higher standard of evidence, clear and convincing. The evidence must show that the perpetrator knowingly misrepresented a fact with the intent to deceive and that such acts caused injury to another. Confidential relationships will also be considered in fraud cases.

The proponent of the Will may choose to enter a monetary settlement to resolve the claims of objectants or the probate proceeding may continue as any other litigation, pre-trial discovery and motion practice to be followed by a trial. Our firm welcomes your inquires should you have questions as to the validity of a Will presented for probate.

Inquiries are often made of our firm as to whether a claim can be made which may dispute the terms of another person's Will and the proper time and legal mechanism for doing so. This post will address the issues that arise in a Will contest. As our readers may know , when a person dies with a Will, the proposed Executor must submit the original Will and other required documents to the Surrogate's Court in the County in which the deceased resided and request that Letters Testamentary be issued appointing the person as Executor. This process is called probate.

In the probate proceeding, the Surrogate's Court will require a signed Waiver and Consent from all distributees (those who would inherit if there was no Will) or proof of service of a Citation should these parties be unwilling to sign the Waiver and Consent. The time between the service of the Citation on an objectant and the return date of the Citation (the date scheduled by the Court to hear objections to the admission of the Will to probate or else the proposed Executor will be appointed) is the appropriate time to submit objections to the Will.

New York statute grants broad authority to file objections to the probate of a Will. Essentially, any person who would be adversely affected if the subject Will is admitted to probate may file objections. One exception to this broad rule is that good cause must be shown if the basis of the objectant's claim is the disqualification from receiving commissions as a fiduciary.

Once objections are filed as legally required, the Court will commonly order a "1404 Exam". This term refers to a particular provision of New York's Surrogate's Court Procedure Act. In such an exam, at least two of the witnesses to the Will (if they are within New York State) are to attend an examination before the Court. Further, the attorney-draftsman, proponents of the Will and other persons that the Court deems relevant will be examined at the Court. The viability of objections will be determined in the 1404 process.

Common objections that the Court will entertain are as follows. The proposed fiduciary may be ineligible because of his status (he is a felon, not a United States citizen or an infant). A surviving parent or spouse may be disqualified under certain circumstances. As in any probate proceeding, the Court must be satisfied as to the genuineness of the Will, the validity of its execution and that the person making the Will was competent and without restraint. We suggest that you contact us should you have a concern as to the admission of a Will and your rights thereunder.

Our firm is often asked by clients who are purchasing real estate or starting a business what type of legal entity, if any, they should form to protect their interests. In order to insulate an individual from personal liability, a corporate or partnership should be formed. In addition, within these categories, there are subcategories, such as limited liability companies ("LLC") and limited liability partnerships ("LLP"). This post will discuss the basic qualities of such entities, as well as the legal effect that they have on their individual shareholders and partners.

According to New York State, a limited liability company (LLC) is an unincorporated business organization of one or more persons who have limited liability for the contractual obligations and other liabilities of the business. It combines corporation-style limited liability with partnership-style flexibility. The owners of an LLC are called "members" rather than shareholders or partners. A member may be an individual, a corporation, a partnership, another limited liability company, or any other legal entity. A managing member is to be designated when this type of entity is formed.

Forming an LLC will generally be more expensive than forming a New York corporation. This is because an LLC, upon formation, has a legal obligation to publish a statement of its formation in a publication ordered by the New York Department of State. The cost of such advertisement usually makes the cost of forming an LLC greater than the cost of forming a standard business corporation. An LLC has no restrictions on what it may own, so it can hold legal title to real estate or any other type of property. The members of an LLC are not personally liable for the debts and obligations of the LLC.

Another type of business entity considered by our clients is a limited liability partnership, or LLP. An LLP is similar to an LLC, except that the partners in an LLC must be licensed to practice a profession, such as law, dentistry, medicine, and certain other professions. Evidence of such licensing must be submitted to the Department of State at the time of formation of the LLP, showing that the proposed partners are licensed and in good standing in New York State. An LLP should have at least two partners. An LLP which is formed to perform a certain profession, such as law, dentistry, or medicine, is not permitted to conduct other types of businesses beyond the profession stated in its formation documents.

Although partners in an LLP are protected from personal liability for the LLP's contractual obligations, they remain liable for their own negligence and misconduct, as well the negligence or misconduct of those under their direct supervision or control. For example, a doctor cannot insulate himself from personal liability for his own malpractice by being a partner in an LLP. However, the other partners in the LLP would not be personally liable for such malpractice. An LLP is therefore an entity in which partners who practice particular professions can form a entity which runs the "business" side of their profession, and be insulated from personal liability for the business debts of the entity. They would not be liable for any professional malpractice committed by the other partners, but would remain personally liable for their own potential malpractice.

Our firm has extensive experience in advising clients who wish to form their own legal entities as to which business entity best suits their needs, taking into account the particular business, potential tax considerations, management considerations and restrictions, transferability of interests, and the necessity to insulate themselves from potential personal liability. Please contact us if you are interested in forming such an entity for your business.

Our firm has represented photographers, artists, musicians, and other creative professionals in protecting their work from unauthorized use and copying. Copyright protection extends to almost every type of original work that can be expressed in a tangible means of expression, such as a photograph, artwork, or song. All such works are protected under United States copyright law.

Infringement is generally defined as the use of copyrighted work without the consent of the creator of such work. Legally, this unauthorized use may arise in different legal situations. For example, a photographer may license a particular photograph she created for use in an advertisement. Such use may encompass a specific period of time, such as one year. After the year has passed, the company continues to use the photograph without authorization. This would be considered a legal infringement of the rights of the copyright holder.

Another issue arises when a person is employed by a company and creates a original work while an employee. Under copyright law, this doctrine is known as a work made-for-hire. If a work is legally deemed "for hire," then the employer, and not the employee, owns the copyright to it. Proving this principal involves many factors, including whether there was a written agreement between the parties which specifically delineated that all work created by the employee is to be deemed "work made-for-hire." As this can be a complex legal issue, we advise all parties in such arrangements to consult with legal counsel so that their rights and responsibilities are clear.

Copyrighted works are categorized by the United States Copyright Office. For example, photographs are deemed works of the visual arts. We advise all of our clients to register their works with the U.S. Copyright Office. Assuming the work has been registered, and infringement occurs, our firm would then send a "cease and desist" letter to the infringing party. This letter would delineate the alleged infringement, and demand that the infringement end. If the infringing party does not comply, then a lawsuit should be brought, usually in United States District Court. In order to commence a federal lawsuit and be eligible for statutory damages, the work in question must be registered with the U.S. Copyright Office.

A copyright infringement lawsuit will generally demand two types of relief. The first type is a legal injunction ordering that the infringing action cease. If the Court grants the request for an injunction, the infringing party risks being in contempt of Court if they continue to infringe on the copyrighted material.

In addition, the lawsuit will seek money damages for the unauthorized use of the copyrighted material. These damages may include all profits made by the infringing party from its use of the copyrighted work, as well as the amount that the holder of the copyright would have charged for a licensing fee. In addition, statutory damages are available, in the amount of up to $30,000.00 per infringement. This statute also allows for the awarding of attorney's fees when the infringing behavior has been found to be willful, as opposed to inadvertent or accidental.

Our firm welcomes inquiries from artists, photographers, and other professionals who believe that their work may be being used without permission or without compensation by any third party.

For various reasons, not everyone dies has a Will that disposes of their property and identifies the person authorized to manage such distribution. In such a case, the surviving heirs should engage the services of an attorney to submit a Petition to the Surrogate's Court in the County in which the deceased resided for Letters of Administration. Once duly appointed by the Court, the Administrator has similar powers to an executor for an estate. The Administrator locates, collects and distributes assets and settles claims and liabilities against the estate.

When a person dies without a Will (legally known as "intestate"), their assets will be distributed to particular classes of relatives, in the order prescribed by Estates Powers and Trusts Law Section 4-1.1 . For instance, if a person left no surviving spouse, children, or parents, his assets would be inherited by his sister. The common perception that the assets of a person dying without a Will "go to the state" is a myth when a relative in the proper class has survived the deceased. In an administration proceeding, the person who will inherit the assets is the proper person to act as petitioner and commence the proceeding. Survivors who have superior or equal rights to be appointed Administrator (such as siblings of the proposed Administrator) are to submit a Waiver, Renunciation and Consent to the appointment of the Administrator along with the Petition.

The petitioner is required to confirm that she conducted a diligent search in the deceased's personal papers and safe deposit box, but did not find a Will. Such a diligent search should also include the Surrogate's Court record retention files, in the event that the deceased filed her Will with the Court.

Depending on the family composition, children born out of wedlock to the deceased may need to be included in the proceeding, so that they have the opportunity to inherit. Documentary proof such as a birth certificate and order of filiation establishing paternity may be required to establish the rights of an out-of-wedlock child. The Surrogate's Court may require the submission of a family tree and Affidavit of Heirship in order to confirm familial relations with respect to children born out of wedlock, relatives of distant relation and cases where there are few surviving relatives.

Other special circumstances include survivors under eighteen years of age and noting whether they have a court appointed guardian. Further, survivors may be considered to be "under a disability", requiring the appointment of a guardian ad litem to protect their interests. Persons in the disability category include survivors who are incarcerated, a person with a mental or physical disability or unknown heirs.

Persons who are not United States citizens are treated differently in an administration proceeding. For instance, if a person is not a United States citizen, then she cannot serve as the sole administrator and needs to locate a United States citizen to serve with her. Further, if the deceased was the citizen of another country or the survivors are citizens of another country, then the office of the Consul General for such country needs to be served in the administration proceeding.

Our firm recommends that the following documents be provided to us to commence an administration proceeding: death certificate, paid funeral invoice, divorce decree (if applicable), and list of assets in the sole name of the deceased and liabilities with amounts. We will prepare the necessary documents, file and serve same as required and attend Court appearances as necessary to obtain the Letters of Administration required to transfer assets and settle claims of the estate.

Our readers should be wary of persons who may be engaging in the unauthorized practice of law. This issue is defined as a non-lawyer rendering legal advice or drafting legal documents. Section 478 of New York's Judiciary Law declares that it is unlawful to practice or appear as an attorney for another person, to render legal services or hold oneself out to the public as entitled to practice law, without being duly licensed and admitted to practice law. This blog post will define the unauthorized practice of law, discuss New York laws pertaining to same and describe situations that our readers should avoid.

Common situations comprising the unauthorized practice of law include the following. A real estate broker drafts a contract, lease or mortgage. A "loan modification expert," claiming to be an attorney, negotiates with a lender and then advises the borrower to enter into a loan modification. A client or customer dealing with such persons should be especially concerned if they are told that the transaction is on the "fast track," that there is "no time" to consult an attorney and that they are advising them as an attorney. Another red flag is the person's self- interest. A real estate broker wants to get the deal done to earn his commission and will encourage a simple contract to be signed without attorney objections, which objections may be validly protective of the client.

Real estate brokers and agents are subject to the loss of their license for the unauthorized practice of law. Article 12-A of New York's Real Property Law governs the licensing requirements of real estate brokers and salespersons. This Article contains the provision requiring real estate brokers and agents to be licensed and the procedure for the potential revocation of their license. The New York Attorney General's Office prosecutes criminal actions for violations of said Article. In addition, the New York Department of State accepts complaints against licensed brokers and conducts investigations accordingly. Brokers are vulnerable to claims involving the unauthorized practice of law if they draft any document pertaining to real estate such as a contract, lease, mortgage or deed, especially if they are paid to do so. However, if they use one of the forms approved by the bar association or local brokerage association in the county in which they are located, including only ministerial terms such as name, date, property address, they will not be subject to claims of unauthorized practice of law; particularly if they note in boldface type that the document is subject to review by each party's attorney.

Attorneys are trained to employ the proper judgment in which document to use, when a provision pertaining to the unique transaction should be drafted "from scratch" and the delivery of verbal advice. While lawyers genuinely appreciate brokers as those who introduce the parties to the transaction, our mutual clients deserve the opportunity to obtain the advice of skilled attorneys. It is very easy for the general public to determine if a person is licensed to practice law in New York. Should a person represent himself as a lawyer, you should look up the person on this database to verify whether they are admitted to the New York State Bar and whether they are in good standing. If the person is not in the database, they may be involved in a scam and/or be a disbarred attorney (or be validly admitted in another state besides New York). Our firm has encountered such situations in our representation of clients, who we have protected from unscrupulous individuals.