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Toni Ann Barone's Grandmother / Anthony P. Barone's Mother-in-Law has Passed away.

posted May 4, 2015, 6:03 AM by Pete Weinman   [ updated May 4, 2015, 6:03 AM ]

It is with great sadness that I have to deliver sad news.  Toni Ann Barone Esq.'s grandmother and her dad's (Anthony P. Barone) mother in law, Viola Cretella passed away on Friday. The wake will be held at Hanley's Funeral Home today, May 3, 2015 from 3 - 7 p.m. and tomorrowMonday, May 4, 2015 from 2 - 4 p.m. and from 7 - 9 p.m.
The funeral mass will be on Tuesday, May 5, 2015 at Our Lady Queen of Peace at 10:30 a.m.

RCBA Annual Meeting & Vote for Directors/Officers is June 2, 2015.

posted Apr 27, 2015, 9:51 AM by Pete Weinman

Click HERE for the flyer.

Attached you will find the Annual Meeting Notice for Nomination of Officers and Directors to be voted for at the RCBA Annual Meeting which will take place on Tuesday, June 2, 2015 at 5:30 p.m. at Li Greci's Staaten.  You will also find the Annual Meeting Letter which will have a portion that will tell you the price of the function as well as an area to fill out and return to the RCBA office.  Please note that the attached will be mailed out as well.

Vincent J. Gallo: Legal Malpractice (Or, rather, how to avoid it as Purchaser's Attorney."

posted Apr 27, 2015, 9:48 AM by Pete Weinman

For the story, click HERE.

The RCBA Surrogate's Court Committee will be having a CLE on Thursday, May 21, 2015 from 2 p.m. to 5 p.m. in the Surrogate's Courtroom, Room 202.

posted Apr 24, 2015, 9:53 AM by Pete Weinman

For the flyer Click HERE.

The RCBA Surrogate's Court Committee will be having a CLE on Thursday, May 21, 2015 from 2 p.m. to 5 p.m. in the Surrogate's Courtroom, Room 202 (see attached flyer and hard copy will be going out by regular mail).

This CLE will be different in that it will be like you are participating in an interactive game show (think of Jeopardy).  

Please sign up as soon as you can.

This CLE will qualify for 1 CLE Credit in Professional Ethics and 2 CLE Credits in Skills.
The cost is: $75 (Pre-registered members); $90 (Pay at door members) and $125 for non-members.
This course is valid for all attorneys including newly admitted attorneys (a Transitional course).

Application Deadline for Court Interpreter Exam for Languages other than Spanish: Friday, April 24, 2015.

posted Apr 20, 2015, 1:56 PM by Pete Weinman

Individuals fluent in English and another language (other than Spanish) are encouraged to apply for the Written English Proficiency Exam to become a Court Interpreter with the New York State Unified Court System. The court system provides interpreting services in over 100 languages to ensure that hearing impaired and non-English speaking persons can clearly understand court proceedings.

Visit our website to download an application. Also listen to the latest Amici podcast featuring Sandra Bryan, former Statewide Coordinator of the Office of Court Interpreting Services, to learn about the requirements to be a court interpreter, the exam and the court interpreting profession.

 

Note: The exam for Spanish-language court interpreters will be offered in late 2015.

 

Than you,
Andrea Garcia
___________________________________
Andrea Garcia 
New York State Unified Court System
Office of Public Affairs
www.nycourts.gov/community_outreach

Vincent J. Gallo, "And the Survey Says..."

posted Apr 20, 2015, 5:04 AM by Pete Weinman   [ updated Apr 20, 2015, 5:08 AM ]

For the story, click HERE.

April 19, 2015

And the survey says………………..

A. Gugliotta v. First American Title, 2013 NY Slip Op (112 AD3d 559) (December 4, 2013)

First American issued a Title Insurance Policy (“Policy”) to the Purchaser. Among other things, 

the Policy contained an exception referencing a survey reading, which, in turn, contained a 

notation regarding a trail running across the property. Purchaser thereupon attempted to sell the 

property, but the prospective Purchaser withdrew from the deal based on the existence of the trail 

which prompted the Purchaser to file a notice of claim with First American that the trail 

"encroaches over and upon the premises," asserting that the property "cannot be subdivided 

without preserving the trail," and that the property cannot be conveyed "without removing the 

trail." First American Title denied the claim, stating that the Policy excepts the trail from 

coverage. 

The Purchaser sued for breach of the Policy, alleging that the trail is an insured encumbrance or 

defect on the property because it prevents the property from being subdivided or conveyed.  The 

Court held that a policy of title insurance is a contract by which a title insurer agrees to 

indemnify its insured for loss occasioned by a defect in title and that liability is governed and 

limited by the agreements, terms, conditions, and provisions contained in the title insurance 

policy. The Court went on to say that a Title Insurer would be liable for hidden defects and all 

matters affecting title within the policy coverage and not excluded or specifically excepted from 

said coverage, and that an exclusion from coverage must be specific and clear in order to be 

enforced. 

Here the Court ruled that First American established that the Policy specifically excepted the trail 

from coverage, without ambiguity as to interpretation, thereby denying coverage to the Purchaser 

under the Policy, further holding that the Policy need not be more specific in its exception to 

more precise by specifying the rights of third parties which may arise from the trail.

This decision, however, should be a wakeup call to attorneys representing Purchasers that a Title 

Report and Survey, which is read into the Title Report, is not meant to simply be placed in the 

file, pending closing.  It should be thoroughly examined and considered as to the potential 

consequences to the Purchaser of what the survey reveals and discloses and what type of 

protection the attorney could exact from the Title Insurer for the Purchaser as it relates to the 

Survey.

In the instant case, there is no mention as to whether the Purchaser, after losing against the Title 

Insurer, went on to “Plan B”, and then directed his or her attention towards his or her attorney for 

a possible claim of legal malpractice.  This is something that attorneys should seriously consider, 

as well as the degree of attention that attorneys need to dedicate towards each real estate file.

Vincent J. Gallo, Esq., "A checklist as to what an attorney should NOT DO in the course of properly representing a Purchaser."

posted Apr 13, 2015, 4:45 AM by Pete Weinman   [ updated Apr 13, 2015, 4:46 AM ]

It’s not a problem………..until it’s a problem.

Blanco v. Polanco, 2014 NY Slip Op 02735 (April 23, 2014) The Plaintiffs purchased a two-

family home from the Defendant, Your First Home, LLC. They did so without first conducting 

an inspection of the premises. At the closing, the Seller agreed to make certain repairs set forth 

on a punch list within 10 business days following closing. Shortly after the closing, the 

Purchasers took occupancy of the premises.

The Seller never completed the punch list. Furthermore, after the Purchasers moved into the 

premises, they discovered mold in various areas and found that water accumulated in the 

basement whenever it rained. Additionally, when the Purchasers tried to rent the second floor 

apartment of the house, they were informed that they could not do so because the house did not 

have a Certificate of Occupancy (hereinafter CO), and that there were numerous "outstanding 

requirements" that needed to be satisfied before one could be obtained.

The Purchasers commenced an action against, among others, the Seller and their attorney who 

represented them in the transaction, alleging that the Defendants in the action colluded to defraud 

them in connection with the purchase of the premises by, inter alia, dissuading them from 

obtaining an inspection (as did the Seller), representing that any repairs and construction required 

on the premises would be performed and paid for by the Seller before or immediately after the 

closing, misrepresenting the condition of the premises, and misrepresenting that the apartment on 

the second floor could be rented immediately upon closing and that the premises had a CO. The 

Purchasers sought to recover damages from their attorney for legal malpractice, fraud, breach of 

fiduciary duty, negligence, unjust enrichment, and conspiracy to commit fraud.

The Purchasers submitted evidence that their attorney had his non-attorney assistant pose as him 

and counsel them throughout the transaction. They also supplied proof that their attorney 

hastened them to sign the Contract of Sale without reading it and failed to advise them that by 

signing the Contract, they were agreeing to purchase the premises "as is" and waiving their 

opportunity to conduct an inspection. They also presented proof that their attorney reassured 

them that the Seller would make needed repairs and advised them that they should trust the 

Seller's opinion that a professional inspection was not necessary. They also presented proof that 

their attorney failed to ask the Seller to fulfill its obligation under the Contract of Sale to provide 

a CO or "a letter from the Building Department . . . to the effect that no CO is required."

Furthermore, the Purchasers submitted a report from the New York City Department of 

Buildings indicating that subsequent alterations may have been made to the premises, triggering 

the need for a CO and that various "outstanding requirements" needed to be satisfied before a CO 

could be obtained.

Compounding the above, the Purchasers submitted evidence showing that their attorney had a 

relationship with the Seller, pursuant to which he received more than 100 referrals from the 

Seller, and when they were in the Seller's office, they were introduced to the non-attorney 

impostor posing as their attorney who told them that he was the attorney. The Court held that 

when viewed as a whole, it may be inferred from this evidence that the attorney and the Seller 

may have colluded to defraud the Purchasers in connection with their purchase of the premises. 

Accordingly, the attorney’s motion for summary judgment was, in large part, denied.

Succinctly, this case stands as a checklist as to what an attorney should NOT DO in the course 

of properly representing a Purchaser.

Vincent J. Gallo, Esq.: "So, do you want to risk losing your down payment? Here is how to do it."

posted Apr 13, 2015, 4:42 AM by Pete Weinman

Han v. Furst, 2014 v NY Slip Op 04749 (118 AD3d 975) The Contract of Sale contained a 

mortgage contingency clause wherein the Purchaser was required to make an application to an 

institutional lender, to pursue the application with due diligence, and to cooperate in good faith 

with the institutional lender. The Court held that the Seller established, prima facie, that the 

Purchaser breached the Contract of Sale by failing to make an application to an “institutional 

lender”. There was evidence that the Purchaser made an inquiry to a mortgage broker, but the 

mortgage broker never submitted an application to a lending institution. Consequently the Court 

held that the Purchaser failed to comply with his or her obligation to submit an application to an 

“institutional lender”, thereby forfeiting their down payment as liquidated damages.

This case is important for a few reasons. An attorney representing a Purchaser should be 

extremely diligent in closely examining the precise language contained in the mortgage 

contingency clause, so as to not allow for a Purchaser to place himself or herself in harm’s way 

by failing to comply with his or her obligations therein, and thereby risking being held in default.  

Accordingly, if the precise language requires the applicant apply to an “institutional lender” and 

the borrower/applicant accepts this language, then apply to an institutional lender. If the 

borrower intends, or possibly intends to utilize the services of a mortgage broker, then he or she 

should be certain to allow for the inclusion of such language in the Contract of Sale, allowing for 

same, so as to not risk being held in default.

The Court was unclear as to how it would have held had the mortgage broker actually submitted 

an application on the borrower’s behalf to an “institutional lender”, and whether this would have 

sufficed for purposes of satisfying the mortgage contingency clause. Since the Court was not 

clear in this regard, one should not want to be the test case.  Accordingly, an attorney should be 

careful so as to craft the Contract language as to not place the borrower at risk of being held in 

default.

Salvatore V. Tillona (father of RCBA Member Thomas Tillona, Esq.) passed away.

posted Apr 8, 2015, 7:03 AM by Pete Weinman

Thomas Tillona, Esq.'s father, Salvatore V. Tillona passed away.  The wake will be tomorrowThursday, April 9, 2015 at Casey Funeral Home on Slosson Ave., from 2-4 and 7-9.  The funeral will be on Friday, April 10, 2015 at St. Teresa's Church on Victory Blvd. at 10:45 a.m. and burial will follow at Moravian Cemetery.

Carol Wojtowicz's Father Has Passed Away.

posted Apr 8, 2015, 6:16 AM by Pete Weinman

Dear Members:
Carol Wojtowicz's, former law secretary of Hon. Judith McMahon, father (Peter I. Wojtowicz) passed away.  The wake for him will be at Zajac Funeral Home, 319 24th Street, Niagara Falls, NY 14303 on Tuesday, April 14, 2015 at 2-4 and 7-9.  The funeral will be on Wednesday, April 15, 2015 at 9:30 a.m. at Divine Mercy Parish, 2437 Niagara Street, Niagara Falls, NY 14303.
 

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