Real Estate

In the United States, individuals with disabilities are protected by the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA), which aim to prevent discrimination based on disability. In recent court decisions, Avila v. Acacia Network, Inc. and Hanyzkiewicz v. Allegiance Retail Servs., LLC, plaintiffs brought forward ADA and FHA claims against defendants for alleged violations.

Avila v. Acacia Network, Inc. involved a plaintiff who brought forward an FHA and ADA claim against a landlord for failing to comply with a doctor's recommendation for transfer to a one-bedroom apartment. The court found that the plaintiff failed to state a claim but granted leave to amend. To state a claim of intentional discrimination under the FHA, the plaintiff must allege that they were a member of a protected class, suffered relevant adverse treatment, and can sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation. Under the ADA Title III, it is discriminatory to afford an individual or class of individuals, on the basis of a disability, the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals. The court found that the plaintiff failed to state a claim under both the FHA and ADA Title III.

Hanyzkiewicz v. Allegiance Retail Servs., LLC involved a plaintiff who alleged ADA Title III and NYCHRL violations based on an inaccessible website. The defendant was subject to a consent decree from a prior case and had remediated its website, but the plaintiff claimed that accessibility issues remained. The court found that the plaintiff's suit must be enjoined because it could upset the consent decree, which includes a proposed class that is absent from the consent decree and seeks materially different remedies. The court also found that the defendant's voluntary cessation of discriminatory conduct did not moot the case.

In conclusion, these recent court decisions highlight the importance of understanding the rules and requirements of the ADA and FHA when bringing forward claims. Plaintiffs must allege the necessary facts to state a claim under these acts, and the courts must ensure that consent decrees are respected and enforced. For individuals with disabilities, these decisions offer insight into their legal protections and avenues for seeking justice when their rights have been violated.

ATTENTION NEW YORK CITY BUILDING OWNERS AND LANDLORDS, the next time a former or current commercial tenant files a notice of pendency or lis pendens against your building claiming that he, she or it has the right to be restored to possession of the premises, please take solace in the fact that the First Department, Appellate Division has ruled that said notice of pendency must be cancelled because a leasehold interest is deemed to be personal property and not an interest that would affect title to, or the possession, use or enjoyment of, real property, as required by statute in order for a notice of pendency to be filed in the courts of New York.  You’re welcome!

What is a notice of pendency? A notice of pendency has been described by the New York Court of Appeals as “an extraordinary privilege” that allows a litigant to put a lien on real property when the complaint in the underlying lawsuit falls within the scope of CPLR 6501.    Although a notice of pendency has a powerful effect because of the ease in which it can be used and the alienability it may cause to the marketability of the property, the courts will not initially investigate whether the notice of pendency filed is proper or if it should remain upon the real property.

However, the Appellate Division, First Department has held that the privilege of filing a notice of pendency ceases when a litigant uses such filing as a “sword” against the owner of the real property and not as a “shield” which it is intended for when protecting a litigant’s claimed interest in real property from being lost during a lawsuit.

Partner, Erik Bashian, immediately recognized this issue in his New York commercial litigation case in that the plaintiff, a former commercial tenant, was using the filing of a notice of pendency against his client’s building as a “sword” and not as a “shield.” Here, plaintiff sought to be restored to possession of a premises under a lease agreement despite the fact it had, among other things, abandoned possession of the restaurant and returned its keys to the premises more than five months before the building was purchased by Bashian’s client (the new building owner) and that the notice of pendency was not filed until even one year after that.

As a result, Bashian moved before the New York Supreme Court to have the notice of pendency vacated. Bashian’s position was quite simple – a notice of pendency is inappropriate when a litigant’s claims stem from rights under a lease, which is personal property and not real property, as required.  Bashian went even further by asserting that to allow the notice of pendency to be filed in this context would be in direct contravention with the 1994 amendment to the statute, which also prohibited the filing of a notice of pendency in summary proceedings.

At oral argument, the trial court granted Bashian’s motion to vacate the notice of pendency but in its subsequent written order it erroneously declined to do so.

Therefore, Bashian appealed the lower court’s decision to the Appellate Division, First Department by alleging that it, among other things, erred by failing to vacate the notice of pendency.

The Appellate Division, First Department agreed with Bashian and his law firm in its decision entitled PK Rest., LLC v Lifshutz, 2016 NY Slip Op 02595 [1st Dep’t Apr. 5, 2016] by holding that a lease is “personalty” and that whereas here, an out of possession tenant, is asserting to be restored under a lease and not pursuant to some statute that the notice of pendency must be cancelled.

To read more this Appellate Division, First Department’s decision please see here:  http://law.justia.com/cases/new-york/appellate-division-first-department/2016/84-654177-13.html

We would like to share the recent ruling of the Court in Naldi v. Grunberg, an Appellate Division, 1 ^st  Department, New York Supreme Court case, as we believe that it may be of some interest to you and your colleagues, in deciding what content to include, if any, in emails to prospective buyers in the sale of real property.  Essentially, the New York State Appellate Division has ruled that a “sent email” holds the same weight as a traditional ink-on-paper agreement, when interpreting the statute of frauds.  “Given the vast growth in the last decade and a half in the number of people and entities regularly using e-mail… the terms ‘writing’ and ‘subscribed’…should now be construed” to include both emails and electronic signatures in its expanded interpretation of the statute.  

The statute of frauds, a late 17 ^th  Century English law that was adopted in the United States, requires that all contracts for the sale of real property be evidenced by a writing signed by the party to be charged.  The Naldi Court reasoned in its decision that if “the writing and subscription requirements of the statute of frauds have been held in flexible enough to accommodate earlier innovations in communications technology, such as the telegram, the telex, and the fax” then the same application should also be made to the Court’s interpretation of emails in conjunction with the statute of frauds.  

As a result, real estate brokers and sellers of real property should be mindful of the content of emails that they forward to prospective buyers during the sale of real property.   Read the  Court’s Opinion

Baltazar v. Goldfarb Props., 2023 U.S. Dist. LEXIS 30238 (SDNY 2023) is a recent case that sheds light on how the Fair Housing Act (FHA) and Americans with Disabilities Act (ADA) relate to housing accommodations for individuals with disabilities. The pro se plaintiff in this case alleged that his landlord refused to make reasonable accommodations in allowing him to move to a different location to address his issues of isolation.

Under the FHA, disability discrimination includes a "refusal to make 'reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.'" To state a claim under the FHA for failure to accommodate a disability, a plaintiff must allege facts showing that the defendant knew or reasonably should have been expected to know of the disability, that the accommodation was likely necessary to afford the disabled person an equal opportunity to use and enjoy the dwelling, that the requested accommodation was reasonable, and that the defendant refused to make the requested accommodation.

The ADA generally requires that a defendant not discriminate against individuals with disabilities in public services and make reasonable accommodations to enable them to take part in those services. To succeed on an ADA claim, a plaintiff must show that they were denied the opportunity to participate in or benefit from a public service or activity, or were otherwise discriminated against, due to their disability.

In this case, the plaintiff's FHA claim failed because he did not plead sufficient facts to show that the defendants intentionally discriminated against him because of his disability or failed to provide reasonable accommodations. Similarly, his ADA claim failed because he did not allege any facts showing that he was denied the opportunity to participate in or benefit from the defendants' services, programs, or activities, or was otherwise discriminated against by reason of his disability.

Conclusion: It's important to understand the requirements under the FHA and ADA to ensure individuals with disabilities are afforded equal opportunity to use and enjoy housing accommodations. Requested accommodations are reasonable where the cost is modest and they do not pose an undue hardship or a substantial burden on the housing provider. If you or someone you know has faced discrimination or a lack of reasonable accommodations in housing, seek legal advice to ensure your rights are protected.

Attention all New York real estate brokers!!! Are you aware of the new rule and regulation of the real property law, which is now in effect?

Pursuant to rule and regulation 175.23 of the Real Property Law, a New York licensed real estate broker is required to keep for 3 years all paper and electronic records, including emails, faxes and other computer generated information for every transaction concerning the sale or mortgage of 1 to 4 family dwellings, real property used or occupied, or intended to be used or occupied, wholly or partly, as the home or residence of one or more persons improved by a 1 to 4 family dwelling, or a condominium or cooperative apartments. The rule does not apply to unimproved real property upon which such dwellings are to be constructed.

Some of the records and information that should be safeguarded by New York real estate brokers are the following: (a) the names and addresses of the seller, and the buyer, or mortgagee, (b) the broker prepared purchase contract or binder, or if the purchase contract is not prepared by the broker, then the purchase price and resale price, if any, and the amount of deposit, (c) the amount of commission paid to broker, and (d) the gross profit realized by the broker if purchased by him or her for resale.

In the alternative, New York real estate brokers shall keep and maintain with respect to each transaction a copy of (1) contract of sale, (2) commission agreement, (3) closing statement, (4) statement showing disposition of proceeds of mortgage loan, (5) any document required under Article 12-A of the Real Property Law and (6) the listing agreement or commission agreement or buyer-broker agreement.

If you a New York real estate broker or Long Island real estate agent and are in need of assistance with a real estate transaction please feel free to contact the New York real estate attorneys of Bashian & Papantoniou to meet all of your legal needs.

The tenants of the rent stabilized apartments of 1L and 1R on Linden Street in Bushwick, Brooklyn are living in debris and rubble, after granting their landlord and developer, Joel Israel, access to the premises for “repairs” that turned out to be drastic renovations. The tenants’ kitchens and bathrooms were destroyed, beams were exposed, and they can see the building’s basement through what it left of their kitchen floor. Eight months later, these tenants remain living in these conditions. The city has not ordered these tenants to vacate the building for, among other reasons, relatives in the building opened up their doors granting these suffering tenants access to their kitchens and bathrooms. Landlord Israel is facing allegations of eighty-five housing code violations related to the renovations in this apartment building, as well as almost four hundred housing code violations in other buildings he is associated with. These low income tenants, are among the many tenants struggling to hold onto their residences amidst the rent-regulation apartment war in Garden City, where more affordable housing is lost to deregulation than are created or preserved. The only employed occupant of apartment 1R told the New York Times, “If we had an alternative, we would have left already.”

Currently, Garden City landlords are seeking to capitalize on New York’s booming real estate market and offset rising property taxes and sewage rates by seeking deregulation of apartments. Affordable apartments can be lost to rent deregulation under several legal circumstances, including the expiration of a building’s government subsidies, a conversion to condominium or cooperative, or when the premises becomes vacant and undergoes rent-raising improvements. A great deal of landlords, however, are illegally pressuring tenants to move out such as by demanding documentation of citizenship or making buyout offers. In 2012, over nine thousand apartments were removed from rent regulation, 71% due to vacancy. Rent deregulation is especially on the rise in Manhattan and Brooklyn.

Alleviating affordable housing woes of low to moderate income New Yorkers is one Mayor De Blasio’s top priorities. He has ambitiously promised to build or preserve 200,000 affordable units over ten years. De Blasio seeks to do this by allocating one billion dollars of city pension funds for the development of affordable units and raising taxes on vacant lands to incentivize development. He is pushing to legalize some basement and cellar apartments. Most importantly, developers in major residential construction projects will be required to designate some new units for affordable apartments. While 60,000 rent-regulated apartments were lost during Bloomberg’s tenure, De Blasio’s plan is predicted to produce between 25,000 and 50,000 new apartments for low to moderate income tenants.

In a recent EDNY case, a plaintiff with mobility issues brought several claims against their apartment building under the ADA and FHA. The plaintiff alleged that the building had failed to make reasonable accommodations for their disability, had subjected them to a hostile housing environment, and had retaliated against them for engaging in protected activity under the FHA. However, the court granted the defendant's motion to dismiss all claims. The court found that the plaintiff had failed to allege that they had requested reasonable accommodations before filing their lawsuit, which was required to establish a claim under the FHA. The court also found that the plaintiff had failed to allege sufficiently severe and pervasive harassment to establish a claim for hostile housing environment under the FHA. Additionally, the court noted that a residential facility is not a public accommodation under the ADA, and that the plaintiff had failed to allege a concrete adverse action to establish a claim for retaliation under the FHA.

In conclusion, the case of Levy v. Lawrence Gardens Apartments Del, LLC, 2023 U.S. Dist. LEXIS 53346 (EDNY 2023) highlights the importance of understanding the requirements and limitations of the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA) in the context of discrimination claims related to housing. The ruling clarifies the necessary elements for claims of failure to make reasonable accommodations, hostile housing environment, and retaliation under the FHA, as well as the limited applicability of the ADA to residential facilities. Ultimately, the decision emphasizes the importance of carefully pleading and presenting evidence to meet the legal standards necessary to establish a violation of the FHA or ADA in housing discrimination cases.

Toro v. Merdel Game Mfg. Co., 2023 U.S. Dist. LEXIS 23215 (SDNY 2023) is a recent case that sheds light on the legal proceedings related to default judgments and the Americans with Disabilities Act (ADA).

In the case, the plaintiff missed the deadline to file for default judgment, and the court ordered the plaintiff to file for default judgment, while also ordering the defendant to show cause why a default judgment should not be granted.

The ruling provides insights into the criteria for entering a default judgment against defendants and establishes that a court's decision to enter a default does not entitle plaintiffs to an entry of a default judgment. Additionally, the court noted that a valid cause of action under the ADA must be alleged in the Complaint.

It's worth noting that the court found that the ADA excludes websites of businesses with no public-facing, physical retail operations from the definition of public accommodations.

Toro v. Merdel Game Mfg. Co., 2023 U.S. Dist. LEXIS 23215 (SDNY 2023) highlights the importance of complying with legal procedures and requirements when filing for default judgments in ADA cases. It also underscores the need to ensure that a valid cause of action is alleged in the Complaint. For businesses, understanding the ADA's definition of public accommodations is essential to ensure compliance and avoid potential legal issues related to their website's accessibility