Monday, September 24, 2007

Repeating, Reposting

Some time ago, in my landlord/tenant articles, the Jamestown Lawyer believes something was written about the timeline of an eviction proceeding. Needless to say, not everyone is an avid reader and takes my words to heart, so I would like to repeat something:

Should the court issue a warrant of eviction, the tenant has three days following service of the warrant to vacate or be removed.

Court signs, three days. Those four words are the most relevant bits. Perhaps "service" is one to be examined in another post, but that's usually done correctly locally in my experience.

I post this because there seems to be a common misconception that it is "three days, except ___" where the blank is filled by the tenant's situation of choice. There is no provision other than three days when one is talking rentals outside of a mobile home park. Nothing that can fill that blank will alter the language of the law.

That said, the court does have certain discretion to extend the timeline. Tenants who are actively trying to move, who have family situations that complicate things, that are disabled, etc., all have grounds to ask the court for an extension. However, there is no provision of the Real Property Actions and Proceedings Law that says because you have a small child at home or are in a wheelchair or anything else that you're automatically granted 30 days to move.

Thursday, September 20, 2007


The NY Times reports on a recent Inspector General report concerning widespread mismanagement of subsidized housing in NYC. The Department of Housing and Community Renewal has been found to have bungled oversight and management of a wide variety of housing complexes.

This article is only tangentially related to Jamestown, but the Jamestown Lawyer is concerned in reading it. DHCR doesn't only operate and oversee subsidized housing in NYC. It's also the agency that enforces mobile home park laws. If the agency track record is poor in an area where they face massive scrutiny and frequent investigation, what are the chances that complaints and policies are being properly administered in WNY?

Tuesday, September 18, 2007

Illegal Eviction

A Second Department case that will no doubt be oft-cited in the near future:

Schehr v McEvoy
2007 NY Slip Op 06659Decided on September 11, 2007
Appellate Division, Second Department

2006-01733 (Index No. 28881/02)
Wagner, Doman & Leto, P.C., Mineola, N.Y. (Colin Rathje of counsel), for appellants.
Russo & Pedranghelu, Hicksville, N.Y. (Warren W. Quaid of counsel), for respondent.

In an action to recover damages for wrongful eviction and conversion, the defendants Michael McEvoy and Empire State Properties, Inc., appeal from a judgment of the Supreme Court, Suffolk County (Berler, J.), entered January 10, 2006, which, upon granting the plaintiff's motion pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability, and upon an order of the same court dated October 6, 2005, granting their motion to set aside the award of punitive damages only to the extent of reducing the award from the sum of $200,000 to the sum of $100,000 upon the plaintiff's stipulation, is in favor of the plaintiff and against them in the total sum of $129,900.

ORDERED that the judgment is affirmed, with costs.

At trial the plaintiff established his prima facie case and the defendants did not put on a case. Thereafter, the trial court granted the plaintiff's motion pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability. "A trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the non-moving party" (Szczerbiak v Pilat, 90 NY2d 553, 556; cf. Tapia v Dattco, Inc., 32 AD3d 842, 844). In considering the motion, "the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light [*2]most favorable to the nonmovant" (Hand v Field, 15 AD3d 542, 543; see Szczerbiak v Pilat, 90 NY2d at 556, supra). Here, as the appellants failed to present an affirmative case to contradict the plaintiff's prima facie evidence, the Supreme Court properly granted the plaintiff's motion for judgment as a matter of law on the issue of liability.

The award of punitive damages, as reduced by the Supreme Court upon the plaintiff's stipulation, was not constitutionally excessive (see Deters v Equifax Credit Information Services, Inc., 202 F3d 1262, 1272; cf. Fournier v Services For The Underserved, 191 Misc. 2d 290, 292; see generally State Farm Mut. Auto. Ins. Co. v Campbell, 538 US 408, 425, cert denied 543 US 874; BMW of North America, Inc. v Gore, 517 US 559) and was certainly warranted due to the "high degree of moral turpitude" (Ross v Louise Wise Servs., Inc., 8 NY3d 478, 479) exhibited by Patrick McEvoy, an agent of the defendant Empire State Properties, Inc.
The appellants failed to preserve for appellate review their contention that the Supreme Court charged the jury with an incorrect burden of proof regarding punitive damages (cf. Prote Contr. Co. v Board of Educ. of City of N.Y., 276 AD2d 309).

The appellants' remaining contention that the punitive damages award should not be applied to the defendant Michael McEvoy is also unpreserved for appellate review and is being raised for the first time on appeal. We do not consider it (see New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 571). CRANE, J.P., RITTER, DILLON and CARNI, JJ., concur.


Across the county, there are various primaries being held today for party nominations in the general elections.

Here in the city of Jamestown, there's a Democratic Primary between Mayor Samuel Teresi and retired City Clerk Shirley Sanfillipo, who is already running on the GOP line. Polls are open noon until 9 pm.

Full information and results, after the polls close, can be found at, the official site of the Board of Elections.

Wednesday, September 12, 2007

A MCLE note for lawyers

The court system has released some relatively minor changes to the rules regarding mandatory continuing legal education (MCLE). The first is that "substance abuse" issues have been swapped out of Law Practice Management and into Ethics/Professionalism.

The changes more likely to require your attention are new sections concerning which programs qualify for credit. Any program featuring a disbarred attorney as an instructor is no longer eligible for credit. Additionally, to be eligible for credit, a program must feature the active participation of an attorney (in good standing) instructor.

This last one is the one most likely to have an impact, due to cross-registering programs that serve, for example, financial planners or CPAs but also offer attorney credit. The Jamestown Lawyer will wait patiently to see if there are any effects. On one hand, I'm concerned at "lawyer only" regulations because we stand a good chance of monopolizing ourselves out of business. The attorney no longer has an elevated standing in our society and protectionism isn't going to reverse that, no matter how much I wish it could. At the same time, the new rule is completely logical, as I've attended some programs that were basically marketing seminars for the sponsor without any real legal education content.

Monday, September 10, 2007


This post isn't directly law-related, but it is Jamestown-related.
Following on the Local Music Showcase weekend, which reportedly was a big draw to downtown on Saturday night, today's Post-Journal contained further news on the state of downtown. A city council committee meets tonight to discuss a grant proposal and other business related to restoration of vacant and crumbling downtown buildings.