Litigation Archives

Feb 7, 2019

Automatic Stay of Federal Judgments Extended to 30 days

Rule 62 of the Federal Rules of Civil Procedure[1] addresses a stay of proceedings to enforce a judgment. Amendments to Rule 62 became effective on December 1, 2018. The amendments reorganize the Rule somewhat, clear up some confusing timing issues, and replace the term “supersedeas bond” with “bond or other security.” As to timing, amended Rule 62(a) extends the automatic stay of judgment enforcement from 14 days to 30 days following entry of judgment. According to the Advisory Committee, this change from 14 to 30 days resolves an “apparent gap” between the expiration of the automatic stay after judgment and… Read more

Jan 18, 2019

Nuisance on Central Park West

A Central Park West condominium sued the owner of a first-floor unit and her son for breach of contract and nuisance. The Board wanted to enjoin them from smoking marijuana and making excessive noise in their unit. At the outset, the Supreme Court issued a preliminary injunction that prohibited defendants from smoking marijuana and permitting marijuana smoke and excessively loud noises from infiltrating into the common areas and other units of the condominium. And several months later the Court addressed the application for a permanent injunction. The by-laws prohibited nuisance within the condominium property, as well as improper, offensive, or unlawful… Read more

Dec 7, 2018

Co-op Board and the Great “Washing Machine” Dispute

Nancy McCaskill bought the shares for a cooperative apartment in Mount Vernon, New York in April 1998. At the time she entered into possession a washing machine was installed. In 2014, the Board of Directors enacted the following House Rule 21: The Board of Directors having determined that the plumbing systems of the Buildings are not sufficiently robust to allow use of washing machines without damage to the plumbing and to other apartments, washing machines, dryers or combination washer/dryer machines are not permitted to be used or kept in any apartment. The cooperative did not contact McCaskill regarding her washing… Read more

Nov 13, 2018

Airbnb Rentals Hit Legal Turbulence

A tenant of a rent-stabilized Manhattan apartment listed the unit on the Airbnb website at nightly rental rates starting at $200. Entered into more than one dozen separate rentals totaling 79 nights in 10 months, with up to 5 guests per rental. And collected as much as $366.00 per night, more than four times tenant’s daily rent of $90.00. Landlord started an eviction proceeding. The trial court concluded that tenant commercialized her apartment, an incurable violation of the Rent Stabilization Law. And also found that the illegal, de facto hotel operation showed complete disregard for the legitimate security concerns of landlord… Read more

Oct 5, 2018

Beware of the “Espinal” Exceptions

Documents included with offering plans (i.e. declarations, by-laws, rules and regulations, etc.) and other evidence are used to determine whether the board of a residential cooperative (co-op) or condominium or the owner of an apartment is responsible to fix failures in a building system. Keep in mind, however, that a board or managing agent may become responsible for damages (which are otherwise the obligation of the apartment owner) if they voluntarily or gratuitously inject themselves into addressing or remediating a unit owner’s problem. In 2002, the Court of Appeals enunciated what has become commonly known as the “Espinal exceptions”. Espinal,… Read more

Jul 25, 2018

Husted: The Legality of Purging the Voter Rolls

Voting Booth: National Voter Registration Act

By: Marcie Ernst and Melanie Walker[1] The United States Supreme Court recently ruled in Husted, Ohio Secretary of State v. A. Phillip Randolph Institute[2] that Ohio’s process for removing voters on change-of-residence grounds did not violate the National Voter Registration Act (NVRA), also known as the “Motor Voter Act.”[3] A. Phillip Randolph Institute, a labor and civil rights group, filed the case on behalf of Larry Harmon, a resident of the state who had not voted in the previous two elections, but who attempted to vote in the following election and found his name stricken from the voter roll. The… Read more

Dec 7, 2017

“We Have a Deal” Email Established an Enforceable Settlement, and “Standard” Release Was Not a Material Term of the Settlement

In Scheinmann v. Dykstra, 2017 WL 1422972 (S.D.N.Y. Apr. 21, 2017), a New York federal court considered the issues of whether a series of emails was sufficient to establish an enforceable settlement agreement between the parties, and whether a “standard” release was part of the deal. In this lawsuit against a former Mets baseball player, Lenny Dykstra, brought by his social media manager, the federal court held that emails constituted an enforceable settlement, even without a formal settlement agreement and even though one of the parties expected a “standard” release to be part of the settlement. On March 13, 2017,… Read more

Nov 3, 2017

SCOTUS to Decide When Statute of Limitations is Tolled After Dismissal of State Law Claims Without Prejudice

“For Whom the Bell Tolls” Litigants often try to resolve their federal and state law claims in a single action. In order for a federal court to hear state law claims, it must invoke supplemental jurisdiction, codified at 28 U.S.C. § 1367. As long as the court has subject matter jurisdiction and the state law claim arises out of the same transaction or occurrence, the federal court can hear the state law claim. However, the courts have the discretion to decline to hear the state law claim. In such a case, the state law claim is dismissed without prejudice, and… Read more

Sep 27, 2017

Service by Mail Under the Hague Service Convention

By Marcia M. Ernst[1] The United States Supreme Court recently ruled in Water Splash, Inc. v. Menon[2] that Article 10(a) of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters[3] (“Hague Service Convention”) does not prohibit service of process by mail. The Hague Service Convention is an international treaty signed by 72 countries, including the U.S.[4] It establishes a uniform mechanism for serving judicial documents on parties in other member countries and streamlines the service process so the documents reach recipients in a timely manner.[5] The Water Splash decision resolved a long-standing split… Read more