The funeral mass will be on at Our Lady Queen of Peace at
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 onat 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.
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.
The RCBA Surrogate's Court Committee will be having a CLE onto 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.
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
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
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
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."
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.
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
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 at 2-4 and 7-9. The funeral will be on at Divine Mercy Parish, 2437 Niagara Street, Niagara Falls, NY 14303.