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Joseph D. Manno Has Passed.

posted Sep 22, 2017, 8:54 AM by Pete Weinman

Dear members, 

It is with deep regret that I have to inform you of the passing of Joseph D. Manno on September 20th, 2017. 

The wake will be held on Friday, September 22nd, 4:00 - 9:00 at Colonial Funeral Home located at 2819 Hylan Boulevard. The mass will be at St. Patrick's Church located at 53 St Patricks Place on Saturday, September 23rd at 10:00 am


Fall RCBA Journal

posted Sep 21, 2017, 5:27 AM by Lou Bara   [ updated Sep 21, 2017, 5:29 AM ]

 Check out photos from our latest events, coverage of Law Day, a special new feature called "Attorneys at the Bar & Grill" plus much more.  You can find the PDF version HERE and the iBooks version HERE.  Enjoy!

Save the Date: Richmond County 34th Annual Red Mass

posted Sep 14, 2017, 10:49 AM by Lou Bara



MONDAY, NOVEMBER 6th, 2017
6:00 PM
Blessed Sacrament Roman Catholic Church
1091 Forest Avenue
Staten Island, NY 10310

See attached flyer below for details.

Delores DeStefano, Charles DeStefano's Mother, has Passed.

posted Aug 31, 2017, 8:12 AM by Pete Weinman

Dear Members, 

We are sad to advise of the passing of Delores DeStefano, mother of Charles DeStefano. 

Visitors will be received on Sunday September 3, 2017 from 7-9 pm and Monday September 4th from 2-4 and 7-9 at Colonial Funeral Home.

The funeral mass will be on Tuesday, September 5th at 10:00 a.m. at St. Patrick’s Church, Richmondtown with burial at Resurrection Cemetery, 361 Sharrott Avenue,  SI NY 10309


Suzanne Vidal 
Executive Director

On Behalf Of:
Allyn J. Crawford
President

Richmond County Bar Association
25 Hyatt Street, Suite 203, Staten Island, NY  10301

Phone: 718-442-4500

R. Randy Lee, Esq. - "Landlords Renting Illegal Apartments Face Multiple Problems."

posted Aug 24, 2017, 12:22 PM by Pete Weinman

Landlords Renting Illegal Apartments Face Multiple Problems

By R. Randy Lee, Esq.

 Click HERE to download a copy.

Reprinted with permission from the “May 11, 2017” edition of the “NY Law Journal”© 2017 ALM Media Properties, LLC. All rights reserved.

Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 - reprints@alm.com.

The real estate market has surged in the past few years and the incentive to increase rental income is strong. Investors are seeking to take advantage of the market for more affordably priced one-, two- and three-family homes by illegally adding rental units.  They, as well as the lawyers representing them, should be wary of New York rules and decisions favoring the occupancy rights and rent payment obligations of tenants in buildings with illegal apartments.

Before advising clients of the law, as it applies to the property they are purchasing, attorneys should conduct an extra measure of due diligence, to equip themselves to provide reasonable advice to their clients.  This advice is best communicated in writing.

Given the financial benefit of modifying an existing property, owners will often take the risk of converting a basement or an attic into a separate rentable unit, or even splitting an existing larger unit into two smaller ones, despite almost certain building code violations and multiple dwelling registration requirements. Property owners, who have engaged in this practice can attest, that renting apartments without the proper certificate of occupancy or multiple dwelling registration is not only illegal, but when uncovered, will prove to be bad business that courts strongly disfavor.

In fact, the Appellate Division has continually reaffirmed its decision in Sheila Props., Inc. v. A Real Good Plumber, Inc. (874 N.Y.S.2d 145 (App. Div. 2009)) that “[a]n owner of a de facto multiple dwelling who fails to obtain a proper certificate of occupancy or comply with the registration requirements of the Multiple Dwelling Law (“MDL”) cannot recover rent or use and occupancy.” The Appellate Division, Second Department (with jurisdiction over the 10 downstate counties of Richmond, Kings, Queens, Nassau, Suffolk, Westchester, Dutchess, Orange, Rockland, and Putnam) has also consistently ruled in favor of the tenant on this issue. In Caldwell v. American Package Co., Inc. (866 N.Y.S.2d 275 (App. Div. 2008)), the court held that a landlord, who allowed tenants to live in a commercial building he owned for which there was no residential certificate of occupancy was not entitled to collect rent or the value of the use and occupancy.

The MDL Directly Affects a Landlord’s Ability to Collect Rent

Those navigating these waters should understand New York State’s MDL and its impact on residential realty, because an owner who fails to obtain a certificate of occupancy or comply with building registration requirements will lose regardless of a booming economy. Generally, section 4(7) of the MDL permits tenants of multiple dwellings (defined as buildings, including houses, occupied by at least three families living separately) to withhold rent where an owner does not obtain a valid certificate of occupancy or where the owner coverts the building into a multiple dwelling without obtaining a new certificate, thus making it a de facto multiple dwelling. Not only does this action allow the tenant to withhold the rent, but MDL section 302(1)(b) bars landlords from bringing actions and summary proceedings for non-payment.

The most common actions that trigger the MDL are converting a two-family to a three, or converting a three-family to four or more. A one-unit building converted to a two-unit property is not considered a multiple dwelling, but the occupancy is nevertheless illegal.

One family properties modified to add a second separate living space are sometimes characterized as a “mother/daughter”, when the residents are family members.  For instance, the Town of Hempstead, New York provides an exception to restrictions on illegal apartments for mother/daughter houses where the owner adds a second kitchen for separate living. The town considers the residence a single-family home, but the certificate of occupancy indicates that it is a mother/daughter house for the exclusive use of a child or a parent. The City of New York is not so forgiving, as far as the so-called mother/daughter designation is concerned. A fully outfitted area within a residence (not separated) that is occupied by a family member, so long as it is code compliant may be tolerated, but will always be considered a single one-family residence on the certificate of occupancy.  It cannot be legally rented.

The Certificate of Occupancy is Determinative

MDL Section 301 specifically prohibits occupancy in whole or in part until the issuance of a certificate of occupancy, which indicates that the dwelling conforms in all respects to the requirements of the MDL, the building code, and all other applicable laws. Its longstanding purpose is to ensure tenant safety, as well as compliance by the property owner. In B.S.L. One Owners Corp. v. Rubenstein (159 Misc.2d 903 (Civ. Ct. 1994)), the court highlighted, “The owner’s preclusion [from collecting rent] derives solely from the owner’s failure to obtain a certificate of occupancy for the premises and terminates once the certificate is issued. The statute’s conditional provision motivates an owner to expeditiously correct, modify or repair the premises to conform with housing standards prescribed by law, and relieve the tenant from unsafe, substandard living conditions.”

The Number of Units is a Critical Issue

Where a property is a legal two-family dwelling, but houses three or more families living independently, the premises constitutes a de facto multiple dwelling. So, while a landlord can maintain a holdover proceeding to recover premises occupied in violation of the certificate of occupancy, it cannot do so to recover rent for use and occupancy, since property lacks a proper multiple dwelling registration.

 

 

 

 

Landlords Can Go to Jail for Renting Illegal Apartments

More important than lost rent, owners of illegal apartments may face criminal charges for injuries or deaths that result from hazardous housing. In a prosecution that resulted from a 2010 fire in a Brooklyn building killing five people, several of whom were trapped inside illegally partitioned apartments, the landlord pleaded guilty to criminally negligent homicide. In another case, prosecutors charged a landlord in Queens, alleged to have rented illegal apartments to 50 people, was charged with reckless endangerment and other crimes.

The Rulings Favor Tenants

Since the courts clearly favor the occupants of illegal apartments, landlords are rarely successful, and then only when they act in good faith, and have been thwarted by legal obstacles. For example, in Hornfeld v. Gaare (515 N.Y.S.2d 258 (App. Div. 1987)), the landlord leased the basement of his building to the tenant specifically for storage of business machines and no other purpose; the certificate of occupancy did not allow residential use of the basement. The landlord subsequently rented this space as a residence and tried to register and bring the space into compliance with the statute, but the required remodeling was structurally impossible, and the tenant continued to live there in violation of his lease term and the MDL. The court ultimately required the tenant to vacate the apartment following the expiration of his lease and surrender the premises to the landlord, but barred the landlord from collecting rent for use and occupancy.

Tenants in Legal Apartments May Withhold Rent Based on an Illegal Unit

 

In Mannino v. Fielder (165 Misc.2d 605 (Civ.Ct. 1995), the court held that even a tenant in a legal apartment in a two-family house featuring an illegal third unit may raise the landlord’s non-compliance with the MDL to prevent proceedings for non-payment of rent. Although the landlord claimed that a multiple dwelling registration was unnecessary because a certificate of occupancy covered the structure as a two-family house with a garage, and the non-paying tenant occupied one of the otherwise legal apartments, the court held that the presence of the third family made it a de facto multiple dwelling and strictly applied the MDL. The absence of a multiple dwelling registration, therefore, precluded the non-payment proceeding. Mannino confirmed that it is irrelevant where in the building the tenant in question lived, so long as the building, as a whole, was not properly registered.

Compliance is Paramount

In cases involving illegal apartments, both tenants and landlords need to have a clear understanding of their rights and remedies. With that knowledge, tenants may be able to use an alleged non-conformity as a justification to withhold rent, since even “legal” tenants covered by a valid certificate of occupancy can use the unlawful presence of a third family in an attic, garage or basement apartment to justify their non-payment, landlords should evaluate their actions considering these potential consequences.

Prior to purchasing a property, prospective landlords should review the building’s history with the appropriate administrative agencies and confirm that the proper certificate of occupancy is on record. This is paramount because in addition to lost rent, there are penalties for violations that can accrue daily. Beyond regulatory agencies, the creation and renting of an illegal unit might very well violate the terms of the property owner’s insurance policies, and lead to a denial of coverage.

Given the potential criminal risks, administrative difficulties, and burdensome time commitment required without the benefit of continuing revenue or any assurance that an illegal condition can be corrected, attorneys representing potential purchasers need to fully advise their clients, in writing, of the potential civil, financial and criminal risks attendant to any plan to purchase or “illegally” modify  a one-, two- and three-family home, being purchased for investment, or to occupy same, with the extracurricular income being counted on to make it affordable to them.

Caveat emptor.


RCBA CLE - Estate Planning for the New York/Florida Snowbird Client & Recent Developments in Guardianship Proceedings.

posted Aug 24, 2017, 8:13 AM by Pete Weinman

Dear Members:

 

The RCBA will be having a CLE seminar on Monday, September 11, 2017 on: Estate Planning for the New York/Florida Snowbird Client & Recent Developments in Guardianship Proceedings.


The time will be from 6 p.m. to 9 p.m. (Light snacks will be provided from 5:30 p.m. - 6:00 p.m.).  The venue will be at Staten Island University Hospital, Regina M. McGinn, MD Education Center, 475 Seaview Ave., Staten Island, NY 10305.


The cost is $75 for members, $90 for pay at door members and $125 for non-members.

This program will qualify for 3.00 CLE credits in Professional Practice.


The speakers are: Howard Krooks, Esq. and Anthony J. Lamberti, Esq.


Materials will be provided.

 

Please register if you are interested in attending.

See attached flyer for more details. 

 


Suzanne Vidal 
Executive Director

On Behalf Of:
Allyn J. Crawford
President

Richmond County Bar Association
25 Hyatt Street, Suite 203, Staten Island, NY  10301

Phone: 718-442-4500

RCBA 2017 Annual Golf & Tennis Outing

posted Aug 17, 2017, 7:22 AM by Lou Bara   [ updated Aug 17, 2017, 7:23 AM ]


RICHMOND COUNTY BAR ASSOCIATION

2017 ANNUAL GOLF & TENNIS OUTING

 

THURSDAY, OCTOBER 5, 2017

Richmond County Country Club

 

*Please see attached flyer with information regarding our 2017 Annual Golf & Tennis Outing*

 

 

Bob Helbock, Jr, Esq.'s wife, Jeanne Collins Helbock, has Passed.

posted Aug 15, 2017, 6:18 AM by Pete Weinman

Dear Members:

It is with great regret that I have to inform all of you of the passing of Jeanne Collins Helbock., wife of  Bob Helbock Jr. Esq.  She passed away on August 12, 2017.

The wake will be held at Harmon Home for Funerals on Tuesday, Aug. 15, from 2-4 and 7-9 p.m.

The funeral mass will be held on Wednesday, Aug. 16, at 12:30 p.m., at Blessed Sacrament Church, 30 Manor Rd. (entrance on Forest Ave.), Staten Island, N.Y. 10310.

RCBA Summer Journal is out - Check your mailbox (or click below).

posted Aug 3, 2017, 11:02 AM by Pete Weinman

Click HERE to download the PDF file or check your mailbox.
  


Ronald M. Cerrachio's Mother has Passed.

posted Jul 24, 2017, 4:54 AM by Pete Weinman

We are sad to advise of the passing of Rose Cerrachio, mother of Ronald M. Cerrachio, Chief Clerk of the Richmond County Surrogates Court. 

Visitors will be received on Sunday July 23rd from 7-9 and Monday July 24th from 2-4 and 7-9 at Hanley Funeral Home.

The funeral is being held on Tuesday at 9:30 am at Our Lady Queen of Peace.  

In lieu of flowers donations may be made to the American Heart Association.  

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