2024

New,York,City,2019:,Cars,,Taxis,And,Buses,Speed,Through

It is no secret that the retail market has faced significant challenges over recent years. With the rise in e-commerce came a prediction of the decline of the brick and mortar retail store. This prediction was reinforced with major retail brands, such as Barneys, Lord & Taylor, and Century 21 facing bankruptcy. Pair that with shrinking discretionary budgets, a global pandemic and ever-changing consumer preferences, many claimed the retail sector was on its death bed. Instead, what we have seen is an industry that is well versed at adaptation and continues to navigate these changes.

According to Cushman & Wakefield’s most recent report, “many markets with large urban centers saw positive demand in Q3, including San Francisco, Dallas/Ft. Worth, Boston, Chicago, New York and Washington D.C.”  In fact, the report also showed the “national vacancy rate remains near a historic low of 5.4%.” In the wake of much doubt about the future of retail, we’ve seen retail adapt and prosper with historically low vacancy rates. Now is no different with the retail market’s newest adaptation, and its strategy may result in retail being more permanent than ever.Continue Reading New York Retail’s New Frontier: The Shift from Leasing to Owning Space in a Changing Market

Close,Up,Of,Mailbox,Full,Of,Letters.

Failing to file a notice of claim pursuant to Civil Practice Law and Rules (“CPLR”) Section 9802 can become a trap for the unwary litigator who commences a hybrid proceeding-action (Article 78 claim(s) combined with plenary cause(s) of action) or a strict Article 78 proceeding against a village (see South Nyack Police Assn. v Village of South Nyack, 229 AD3d 635 [2d Dept 2024]).

Section 9802 provides that “no action shall be maintained against the village upon or arising out of a contract of the village” unless a notice of claim has been served. Although this language appears limited, Courts have interpreted it more broadly. Thus, a party bringing any action against a village must plead and prove, as a condition precedent to the litigation, that the party served a written verified notice of claim. The party’s failure to comply with this requirement can be fatal to the claim(s) asserted.

In South Nyack Police Assn., police officers and their association commenced an Article 78 proceeding against the village, mayor, and trustees, seeking to compel the village to compensate the officers for unused sick time. The Supreme Court, Rockland County, converted the Article 78 proceeding into a plenary action for breach of contract and declaratory relief, and denied village’s motion to dismiss. Upon reargument, the Supreme Court granted the village’s motion to dismiss based on the officers’ and association’s failure to comply with Section 9802 (i.e. the officers and association failed to serve a notice of claim).Continue Reading The Importance of Filing a Notice of Claim Against A Village: CPLR 9802 – A Trap for the Unwary Litigator

Cute piggy bank
Fabian Blank, Unsplash

The good-guy guaranty is a commonly used form of security in the field of commercial leasing.  Despite appearing straightforward, the fundamentals of a good-guy guaranty are often misunderstood by landlords, tenants and brokers.  Failing to understand the implications of a good-guy guaranty may result in unintended consequences for the landlord, the tenant and the guarantor. 

Guaranties are an important component of commercial lease negotiations.  Before signing a lease, a landlord will typically review and assess a tenant’s financial information.  If the tenant doesn’t have sufficient credit, the landlord may require a third party to guaranty the lease.  In the context of leasing, a guaranty is a third party’s promise to pay and perform the tenant’s obligations arising under a lease.  

If the landlord requires a full guaranty, the guarantor will be asked to guaranty all of the tenant’s lease obligations.  Alternatively, a landlord may ask for a limited guaranty, of which there are several variations.  Some limited guaranties cap the guarantor’s exposure to a certain dollar amount, while others may terminate after a period of time. Continue Reading Understanding Good-Guy Guaranties: What Every Landlord and Tenant Should Know

The most powerful word in the world pops up everywhere. Ironically, this is on Sandown Pier on the Isle of Wight (UK) — a place that has not changed for 30 years.
Ross Findon, Unsplash

The Upcoming 7th Revision to the Title Insurance Rate Service Association (TIRSA) Rate Manual is effective on October 1, 2024

What is TIRSA?

The Title Insurance Rate Service Association (TIRSA) is an organization licensed by the New York State Department of Financial Services that provides guidelines for the pricing and availability of title insurance premiums and products in New York State. Since 1993, TIRSA has published, and revised, its TIRSA Rate Manual, which sets forth rules, definitions, risk classifications, premiums and rates for title insurance policies, endorsements and other forms used by members of TIRSA. Notably, any deviations from the TIRSA Rate Manual must be approved by the Superintendent of the New York State Department of Financial Services. The 7th revision to the TIRSA Rate Manual goes into effect on October 1, 2024.Continue Reading A (title) Change Is Gonna Come

Two,White,Geese,Stand,On,Green,Grass.,Poultry,,Breeding,Geese.

In City of New York v Ball, 2024 NY Slip Op 24179 [Sup Ct, Albany County 2024], the Albany County Supreme Court upheld a determination of the Commissioner (“Commissioner”) of the Department of Agriculture and Markets (“Department”) that concluded the City of New York’s (“City”) local law banning food establishments from selling or serving foie gras and other force-fed products (“Foie Gras Ban”) unreasonably restricted and regulated farming operations in “upstate” New York.

This case concerned preemption and a conflict between State and local policies. The Court addressed the Commissioner’s/Department’s State agency power to effectively overrule local elected officials and the will of their electorate. At issue was whether an indirect, extraterritorial restriction or regulation falls within the purview of the farming protection framework, given that City’s Foie Gras Ban affected farming operations situated in Sullivan County – approximately 70 miles north.Continue Reading Foie Gras Faux Pas: City Runs A-fowl of State Farming Protections

Rock,Climbing,In,The,Gunks

OVERVIEW

The Shawangunk Ridge is a cluster of bedrock in upstate New York popular for its scenery and outdoor recreation. The Town of Gardiner’s (“Gardiner”) Shawangunk Ridge Protection District (“SRPD”) protects the scenic and ecological values of the Shawangunk Ridge and requires, among other things, a special use permit for development.

A property owner sought to subdivide and develop property situated within the SRPD; to wit: subdivide a 108-acre lot into two lots, maintain an existing dwelling on one lot, and construct a new dwelling on the second lot. The developer sought and obtained a special use permit and subdivision approval from the Gardiner Planning Board (“Planning Board”). Before the approval, the Planning Board issued a negative declaration pursuant to the N.Y. State Environmental Quality Review Act (“SEQRA”). Notably, the owner himself, a trained biologist and forestry professional, performed his own conservation analysis with respect to the Planning Board’s SEQRA review.

The Friends of the Shawangunks, an environmental conservation organization (“Friends”), commenced an Article 78 proceeding challenging the special use permit, subdivision approval, and negative declaration. The Supreme Court, Ulster County, dismissed the proceeding on the grounds that Friends lacked standing, and Friends appealed. On appeal, the Third Department reversed, held Friends had standing, and addressed the merits.Continue Reading Friend of the Shawangunks v. Town of Gardiner Planning Board: Litigation Concerning a Popular Outdoor Recreation Area Prompts the Third Department to Address Organizational Standing, Special Permit Criteria, and Whether Expert “Bias” is a Consideration Under SEQRA

Healthy hydration at home
Bluewater Sweden, Unsplash

On May 13, 2024, the U.S. Environmental Protection Agency (“EPA”) and New York State officials broke ground on a clean water infrastructure project at Plant 6 of the Hicksville Water District, located in Nassau County.  This groundbreaking step represents just the initial phase of a comprehensive effort to implement a $9 million treatment system to remove a number of hazardous per- and polyfluoroalkyl substances (“PFAS”), also known as “forever chemicals,” from Hicksville’s water supply, and secure clean drinking water for local residents. 

PFAS are used in food packaging and in products that resist heat, oil, stains, grease and water, such as nonstick cookware, water-repellent clothing and some cosmetics, among many other industry and consumer products.  PFAS exposure has been linked to, inter alia, certain cancers, increases in cholesterol levels, changes in liver enzymes, and immune system and development damage to infants and children.Continue Reading Navigating the Waters: A Long Island Community’s Response to the EPA’s PFAS Directive

Recently, in On Point Window Treatment, Inc. v. 208 Clinton Place, LLC, 2024 N.Y. Slip Op. 50241 (N.Y. Sup. Ct. 2024), the Kings County Supreme Court held that even when paired with an insurance procurement requirement, a landlord could not rely on an indemnity clause negotiated into its lease to exempt such landlord from liability.…

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On September 22, 2023, Governor Kathy Hochul signed legislation (A.1967/S.5400) amending the Property Condition Disclosure Act (“PCDA”), which effectively eliminates a seller’s option to provide a residential homebuyer with a $500 credit in lieu of a Property Condition Disclosure Statement (“PCDS”). The amendment further requires sellers to disclose property information regarding flood risk, flood history and flood insurance.  This consequential shift is consistent with Gov. Hochul’s implementation of her comprehensive resiliency plan to protect New Yorkers from extreme weather. The amendment goes into effect on March 20, 2024.

This bill goes a long way towards helping give homebuyers the information they need to make informed decisions about one of the biggest financial investments of their lives — their home.

Joel Scata, Natural Resources Defense Council Attorney for Water Initiatives

Elimination of “Opt-Out” Provision

The New York legislature enacted the PCDA to supplement the information provided by professional inspections and tests and searches of the public records conducted by residential homebuyers (New York Sponsors Memorandum, 2001 Ch. 456). The PCDA was also a response to adherence seen in New York’s case law to the doctrine of “caveat emptor” or “buyer beware,” which has long permitted a residential seller to remain silent as to most matters that are not actively concealed by the seller.  Consequently, buyers ended up with the burden of thoroughly inspecting the premises, searching public records and asking sellers the “right” questions about the property.  Despite the introduction of the PCDA, sellers were given the opportunity to “opt out” of providing buyers with a PCDS, if they were willing to pay the price – $500. Unsurprisingly, the $500 credit to the purchaser became the standard, and not the PCDA.Continue Reading Disclosure Revolution: Legislation Makes Property Condition Disclosure Statements Mandatory, Adding Flood Risks, and Waving Farewell to the $500 Credit

Aerial,Photography,Of,A,River,Swamp,In,A,Wetland,Park

The 2022/2023 State budget included watershed (no pun intended) amendments to the regulations governing New York’s Freshwater Wetlands. It has been published that the changes to the Freshwater Wetlands Act are expected to capture approximately one million acres (1,560 square miles) of previously unregulated freshwater wetlands – the equivalent in landmass of 1/10th the state of Rhode Island.  As part of the move, the New York State Department of Environmental Conservation (“DEC” or “Department”) is seeking information from stakeholders as it considers the revisions to the regulations and develops criteria to implement the Act. Continue Reading DEC Seeks Feedback by February 17th as it Considers Revamped Freshwater Wetland Regulations