210deathThe timing of death is never particularly welcome.  Some families are prepared, in that the deceased was elderly, maybe ill, and living in a nursing home.  Perhaps such a person also had the foresight to have their attorney prepare her Will and other estate documents.   Others may pass away at a relatively young age, in the prime of life, with ongoing financial and personal activities.  This post will examine the legal ramifications of passing away while a legal matter is pending.

Imagine that the deceased was a party to a contract concerning the sale of a house which has not yet closed.  The first step that the survivors would need to undertake is to review the contract and determine if it addresses the potential death of one of the parties before the closing.  In most cases, the seller is bound to the terms of the contract through her successors.  This means that the survivors cannot decide to nullify the contract and move into the house.  However, the seller is not available to conclude the transaction.  The attorney for the seller  would need to apply to the Surrogate’s Court  to apply for Letters Testamentary or Letters of Administration , which appoints the appropriate fiduciary to act for the Estate in order to complete the closing.  Should circumstances warrant, it may be prudent to apply for Preliminary Letters Testamentary or Preliminary Letters of Administration, to permit the sale to conclude if it is jeopardized by a continued delay.

If the deceased was the potential purchaser of the house, the contract is likely to allow the purchaser’s survivors to cancel the contract.  This is a logical result, as the transaction is inherently dependent upon the purchaser maintaining a job in order to pay the mortgage and other carrying costs of the house.  Forcing this transaction to conclusion is a cruel result.  In most cases, the downpayment is refundable.  However, some contracts only provide that half or none of the downpayment would be refunded.  It is advisable to have your attorney negotiate a favorable disposition for the downpayment in this instance when representing a purchaser, even if he is a young person.

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Recently, President Donald Trump nominated federal judge Neil Gorsuch to the Supreme Court of the United States.  While the U.S. Supreme Court is the highest court in the country, New York’s Supreme Court is not even the top court in New York State.

In New York, the Supreme Court is the name given to the trial court for most cases filed within the state.  Any case with an amount in controversy exceeding $25,000.00 may be filed in the Supreme Court.  Cases involving lower amounts may be heard in local courts, such as Justice Courts or City Courts.  In addition, if a case involves possession of real property, it should be filed in landlord-tenant court, which is usually part of a local court such as District Court, Town and Village Courts, Justice Court, or City Court, depending on where the property in question is located.

Appeals from the Supreme Court are heard in the Appellate Division.  Should a litigant want to appeal to the highest court in the state, which is known as the New York Court of Appeals, located in the state capital, Albany.  Any case heard by the New York Court of Appeals which involves U.S. constitutional principles may eventually be appealed to the United States Supreme Court and be heard by Judge Gorsuch (if he is confirmed by the United States Senate), as well as the other eight current Supreme Court Justices.

rescue-300x235Our firm often represents borrowers whose homes may be the subject of a foreclosure action.  While we attempt to resolve all such cases with the lending institutions, sometimes a foreclosure judgment and sale cannot be avoided, or has already occurred by the time the borrower seeks legal counsel.  In such situations, the borrower needs to be on alert for possible “scams,” or individuals seeking to take advantage of a person in distress.

Because foreclosure lawsuits and judgments are a matter of public record, it is easy for unscrupulous individuals or entities to obtain the name and address of the person whose home has been foreclosed and sold at auction.  Because most auctions result in the property being sold back to the original lending institution, some people will claim that they have purchased the property from the lender.  If the borrower is still living at the property, they will contact the borrower directly or leave a note at the property, requesting that the borrower contact them directly.

We would recommend that if a defendant receives such communications, that they contact their attorney immediately.  Using legal counsel will enable a person to avoid the high pressure tactics that these individuals may exert on the defaulting borrower, so that their desperation to reclaim the property or continue to live in it is not used to her disadvantage.

transitionOne of the hallmarks of our country’s democracy is the peaceful transfer of power that will occur tomorrow.  Americans recently endured a polarizing election process.  Republicans will now hold the office of the Presidency instead of the Democrats.  Nonetheless, the forty-fifth President of the United Statestrump is expected to take the oath of office by peaceful transition.  This administrative transition occurs no more than every four years on the national level.  However, in the New York metropolitan area, such an administrative change happens much more often.  This author is reminded of the transitions that occur when a new board is elected to run a cooperative or condominium building.

Contested elections for cooperative or condominium boards  can become just as divisive as our country’s elections.  Perhaps unit owners feel that the existing board is out of touch with the current needs of the building.  Shareholders may disagree as to the prudence of agreeing to sell the building’s air rights or as to the extravagance of a lobby renovation.  Boards can also turn over when long-term board members sell and are replaced by much younger board members who may not follow the way in which matters have been handled in the building.

The harmonious tenor of the building may start to unravel once unit owners start to share their concerns about the board online and find that other unit owners agree with them.  Then, a successful takeover of the board may result.  Even though a new board may be in place, certain steps should be undertaken to ensure a peaceful transition.

stopOur firm is occasionally consulted by a party against whom a judgment of foreclosure has been entered.  Prior blog posts have discussed the foreclosure process in detail.  Among the last actions to be taken in a foreclosure case are the issuance of a judgment of foreclosure and the actual foreclosure sale.  This post will discuss the few options available to a foreclosure defendant at this point.

The issuance of a judgment in foreclosure by the Supreme Court of the County in which the property is located usually occurs at two points in the foreclosure litigation.  The first point would be if the defendant fails to answer the initial foreclosure Summons and Complaint, and the lending institution is granted a judgment by default.  If the default was inadvertent, and the defendant has a reasonable excuse for not answering, as well as a meritorious defense, it is possible for the defendant’s attorneys to file a motion to vacate the default judgment.

Another point in the litigation allowing for a foreclosure judgment would be when the plaintiff moves for summary judgment and the motion is granted by the Court.  Once a final judgment is submitted to the Court and signed by the Judge, the foreclosure process is in its final stages.  The plaintiff must advertise a public foreclosure sale in a local newspaper for four weeks prior to the sale, and then conduct the sale, usually at the Supreme Court Courthouse in the county in which the property is located.

starwarsMovie fans recently learned of the deaths of Carrie Fisher and her mother Debbie Reynolds, which occurred within one day of each other.  Those with symbiotic relationships, such as spouses married for more than fifty years, sometimes die within a close timeframe from one another.  This phenomenon is known as dying of a broken heart.  This post will discuss the legal ramifications of deaths occurring within close proximity.  This author will assume that the persons are husband and wife.

Spouses can pass away in close succession as a result of a sudden event such as an airplane crash or due to natural causes such as failing health in old age.  New York State has adopted its own version of the Uniform Simultaneous Death Act.  This statute provides that if two or more persons who are heirs to one another die within one hundred twenty hours of each other, that they are deemed to predecease the other.  Their estates would then be treated in accordance with the intestate provisions of New York’s Estate Powers and Trusts Law , with their property eventually being inherited by those individuals surviving them in the order as designated by the statute.

There are exceptions to the simultaneous death statute.  Such provisions do not take effect if the result would be that the person’s estate escheats to the state.  Escheat means that when there are no surviving relatives who may inherit, the state receives the property.  In addition, the beneficiary designations in a person’s life insurance policies or specifications contained in legal documents such as a will or trust take precedence over the statute’s simultaneous death provisions.  Your attorney  may advise a couple to include “mirror image” clauses in their wills wherein the wife is deemed to survive the husband in the event of deaths occurring within a certain period of time from one another, preferably in the range of sixty to ninety days.  There may be estate tax concerns that determine which spouse should “survive” the other.  Also, a person may wish to include a provision stating that a particular person should be considered to have predeceased her if she has personal reasons to disinherit a particular person.

trumpAs a result of the recent election of Donald J. Trump to the Presidency, the area around Trump Tower in New York City has been subject to greatly increased security, including closures of streets, as well as guards and other restrictions on pedestrian access to the shopping areas around Trump Tower.  Of course, this additional security has had a detrimental effect on businesses located in and around Trump Tower.

What legal recourse do these businesses have regarding their leases?  This post will discuss the legal issues related to businesses and their leases in situations when access to their properties may be limited.

New York Courts have interpreted commercial leases to incorporate a warranty of habitability for the premises.  The warranty of habitability means that the landlord warrants that the property is fit to be used for its intended purpose.  For example, if the ceiling collapses at a store, causing the store to be closed, then the landlord is generally responsible for making the necessary repairs.  Should access to a portion of the store be limited by damage caused by a fire, or other such event, the tenant may be entitled to a partial rent abatement until full access is restored.

duediligenceYou have found the perfect house, cooperative or condominium apartment after a long search.  It has the ideal updated kitchenkitchen to show off your culinary skills and a beautiful bathroom that rivals a spa-like retreat.  Is there anything that should delay the signing of the contract and procession to closing?  Yes, there is.  A prudent purchaser needs to conduct the appropriate due diligence to make sure that the property and surrounding neighborhood is financially and physically sound.  Otherwise, the purchaser may acquire a property that is a long-term headache and difficult to sell when desired.

First, an inspection should be conducted by a professional engineer when buying a house.  Some condominium and cooperative purchasers also find it appropriate to conduct an inspection. For a house, such an inspection may reveal a serious condition, such as a crack in the foundation.  In this case, the buyer may want to search for another property.  An inspection may also show items that the buyer will want to monitor once she is a homeowner.  For instance, if the inspection predicts that the remaining useful life of the roof or the hot water heater is going to be five years, the homeowner may want to budget for such replacement and should not be surprised if these elements need replacement at such time.  The inspection may also list items that your attorney may wish to request for inclusion while negotiating your contract.  The seller may agree to repair the dishwasher, replace a broken smoke detector and the like prior to closing.

Inspections when purchasing a foreclosed property  serve another purpose.  Although properties offered for sale after foreclosure are generally strictly “as is”, inspection results that are unsatisfactory to the buyer may allow the buyer to cancel the contract or present the opportunity to ask the seller to remedy a particular condition or offer a price reduction.  In any case, the buyer will have knowledge as to the condition and the expectations going forward.