Case Notes by
Kenneth R. Jacobs, Smith Buss & Jacobs
Category
- Access
- Alterations
- Arbitration
- Assessment
- Attorney Fees
- Attorney-Client
- Authority to Sue
- Balcony/Terrace Rights
- Bike Lane
- Books and Records
- Breach of Lease
- Business Judgment Rule
- Bylaws
- Bylaws/House Rules
- Certificate of Occupancy
- Charges/Fees
- Commercial Unit
- Common Element
- Common Elements
- Companion Animal
- Constitutionality
- Construction Defects
- Contracts
- Conversion
- Defamation
- Discovery
- Discrimination
- Easement
- Elections
- Estate
- Eviction
- Eviction/Termination
- Fiduciary Duty
- Fines
- Foreclosure
- Fraud
- Governance
- Gym
- House Rules
- Indemnification
- Indemnification/Subrogation
- Injunction
- Insurance
- Labor Law
- Liability of Directors
- Licenses
- Liens
- Maintenance
- Malpractice
- Management
- Mechanic's Lien
- Misrepresentations
- Motion Practice
- Motion Practive
- Notice of Pendency
- Nuisance
- Occupancy Agreement
- Ownership
- Parking
- Partnership
- Personal Injury
- Pets
- Property Damage
- Proprietary Lease
- Reasonableness
- Receivership
- Release
- Repairs
- Representations
- Sales
- Sponsor
- Statute of Limitations
- Stock/Shares
- Stocks/Shares
- Sublets
- Tax
- Third-Party Liability
- Transfers
- Trespassing
- Trial Practice
- Violations
- Warranty of Habitability
- Yellowstone Injunction
- Zoning
First published: Aug 2023
Dope, Dogs, and NoiseTAKEAWAY We strongly recommend that when seeking injunctive relief (or contempt) against an owner, you must be prepared to present live witnesses at any court hearing, especially if you expect opposition. Written affidavits cannot be cross-examined by a defendant. The court is unlikely to grant relief based solely on affidavit evidence unless the defendant fails to appear at all.
Read full articleFirst published: Dec 2022
A Big To-Do Over Small DollarsSo far this is a typical skirmish over discovery. But once again we see a board that has entangled itself in costly and distracting litigation, this time seizing a potential legal loophole in a quest for a little additional income. The motion practice threatens to overwhelm the fundamental issues. The typical strategy of the parties at this stage also does not help to solve the problem. The board may be trying to bleed the Gobins so as to compel a settlement, and the Gobins may be maintaining their discrimination claims to raise the risk to the condo of their being awarded legal fees. And every dollar spent raises the stakes in a potential settlement.
Read full articleFirst published: Jul 2022
David vs. GoliathThis case illustrates why property damage claims usually go to trial if they’re not settled. The cause and scope of damage is a factual question. The plaintiff makes fact-based arguments to show how the other party caused the damage, and the defendant makes fact-based claims why they were not responsible for the damage. Unless the court deems that one party had no legal duty (or had an unbreakable legal duty) to the other, or the evidence on one side is overwhelming, the court will usually elect to have a jury (or the court) weigh the credibility of the competing claimants at a trial, rather than making a judgment based on depositions and documents alone. These cases can last for several years, draining the resources of a condominium or co-op and negatively affecting owners’ ability to sell or obtain mortgages in the interim. Even though many of these claims have a basis in fact, boards need to weigh the unintended consequences on the community before making them.
Read full articleFirst published: Jul 2022
295 Greenwich Court Condominium, LLC. V. Consolidated Edison Company of New York, Inc.This case illustrates why property damage claims usually go to trial if they’re not settled. The cause and scope of damage is a factual question. The plaintiff makes fact-based arguments to show how the other party caused the damage, and the defendant makes fact-based claims why they were not responsible for the damage. Unless the court deems that one party had no legal duty (or had an unbreakable legal duty) to the other, or the evidence on one side is overwhelming, the court will usually elect to have a jury (or the court) weigh the credibility of the competing claimants at a trial, rather than making a judgment based on depositions and documents alone. These cases can last for several years, draining the resources of a condominium or co-op and negatively affecting owners’ ability to sell or obtain mortgages in the interim. Even though many of these claims have a basis in fact, boards need to weigh the unintended consequences on the community before making them.
Read full article