Bank’s Bad Faith Forfeits Interest and Real Estate Attorney Fees in Foreclosure Peter Moulinos

Pursuant to New York C.P.L.R. §3408, parties in a real estate foreclosure action are mandated to conduct settlement discussions in order to ascertain whether it is possible to avoid having a defendant lose their home. The statute requires all parties to negotiate in good faith to reach a mutually agreeable resolution, including a loan modification.

In Aurora Loan Services, LLC v. Diakite, the parties agreed that the defendant would make three trial payments as part of a HAMP loan modification. After defendant made those three payments, the Bank rejected any further payments, while also keeping the initial three payments. After twenty-five foreclosure settlement conferences, over the course of more than three years, from January 2010 to April 2013, the referee appointed by the Court found that the bank had acted in bad faith in violation of C.P.L.R. §3408. The defendant, in a bad faith hearing, testified that he submitted modification packages over and over to the bank. At the end of 2009, he was offered a trial modification, and he timely made the three trial payments. Defendant then stated that he was required by the bank to continuously submit further documents to his counsel in an effort to modify his mortgage payments, all to no avail. The bank was unable to provide any evidence that it intended to comply with C.P.L.R. §3408 and even failed to produce the original note and mortgage at the bad faith hearing scheduled by the Court.

As a result, the Court found that the bank failed to negotiate in good faith pursuant to C.P.L.R. §3408 and stayed the collection of all interest, costs, and real estate attorney fees are stayed from March 1, 2010 to October 27, 2014. The judge presiding over this action is the Hon. Genine Edwards of the Supreme Court of the State of New York, County of Kings.

Landscaping Stops Adverse Possession Claim Real Estate Attorney

In an action arising in Queens County, New York, Plaintiffs brought suit against their neighbor, which happened to be Apple Bank, claiming that they were entitled to the right and title of a fenced in portion and unfenced portion of their neighbors land by reason of adverse possession. The Plaintiffs’ real estate attorney asserted that, for over 10 years, the land was fenced in and that they planted, cultivated and watered the vacant land. This was not deemed enough to acquire the land by adverse possession.

In regard to the unfenced portion, the Court ruled that Apple Bank submitted evidence showing that its own landscaper cultivated the land for over 16 years and that the Plaintiffs was allowed onto the Bank’s property “as a neighborly accommodation”. It thus denied that Plaintiffs were entitled to adverse possession of the unfenced portion of the land. In regard to the fenced in portion of the land, the Court ruled found that both parties made claims that they routinely entered the fenced in area in order to maintain the Bank’s property. With both parties claiming that they landscaped that portion of the land, the Court ruled that a triable issue of fact existed which warranted a trial on the matter.

This case was cited as Pritsiolas v. Apple Bankcorp Inc., 120 A.D.3d 647 (2nd Dept. 2014).

Chelsea Piers Not Liable For Trespass Real Estate Attorney

In Abraham v. Chelsea Piers Management Inc.,, Chelsea Piers was sued for the death of an individual who trespassed onto Chelsea Pier’s property and drowned in the Hudson River. The decedent scaled a locked gate at Chelsea Piers while intoxicated. He was part of a group that had been earlier escorted off the property by two Chelsea Piers employees. After the decedent re-entered the property, he was spotted in the Hudson River swimming away from Chelsea Piers. He eventually drowned. The decedent’s real estate attorney argued that Chelsea Piers was liable for this individual’s death.

The Court however disagreed. It ruled that the decedent’s actions, in diving into the Hudson River, were not foreseeable and that Chelsea Piers could not be held liable for the decedent’s death. Equally significant is that the decedent was a trespasser who, after being removed from the property, re-entered it without authorization and without the knowledge of Chelsea Pier’s employees who also re-locked the gate.

Are Listings on AirBnb in New York Legal? Real Estate Attorney Peter Moulinos

The growing popularity of the website AirBnb has given many homeowners the opportunity to list their properties for temporary rental to third parties. Typically however a real estate attorney will urge caution. In New York, the recent enactment of the Short Term Rental Law makes illegal the rental of a apartment in a multiple dwelling unit to a person unless that person occupies the apartment continuously for 30 days. Regardless, many condominiums and cooperatives in New York do not permit the rental of an apartment to any party, regardless of the time period, unless approval is granted by the managers of the housing organization or an application is presented pursuant to the rules of the housing organization. This means that renting apartments thorugh AirBnb, for periods even beyond 30 days, may not be valid unless the housing organization approves of the measure.

According to real estate attorney Peter Moulinos, who represents a number of cooperatives and condominiums in New York, many housing organizations now scan AirBnb seeking to determine if any apartments in their buildings are listed for rent. As recently reported in Crain’s New York, The Related Cos., one of the largest owners of luxury residential properties in New York, is warning building managers to keep an eye out for tenants using AirBnb and even considered offering $500 rewards to property owners who report illegal rentals. This action was prompted after it was reported in the New York Post that some apartments listed on AirBnb were utilized for sex by prostitutes and as temporary brothels.

Finally, individual unit owners and rents should be aware that, pursuant to New York’s Roommate Law, it is not illegal to rent out a portion of an apartment to another person so long as the owner or primary tenant occupies the unit simultaneously. Consulting a real estate attorney for matters pertaining to rentals through AirBnb, prior to doing so, is generally advisable.

Top Reasons Cooperatives Reject Buyers – Real Estate Attorney Peter Moulinos

Here is a great article which appeared in the The Cooperator, a real estate attorney and managing agent favorite, listing the top dozen reasons for cooperative boards to reject prospective buyers in New York.

One reason not appearing on the list is the purchaser’s current line of work and the current state of that industry. During the banking crisis, cooperatives regularly looked upon purchase applications by those employed in the banking industry with extreme skepticism and scrutiny for fear that the prospective purchaser may not be employable in the future. During the dot com bubble, persons employed in the tech industry were also subject to such scrutiny. Years ago, real estate attorneys were generally disfavored by cooperatives as they were considered to be too sophisticated in dealing with cooperative boards and would be able to either circumvent cooperative rules or impose their will upon a board. However, the passage of time has created a climate where cooperative boards look upon a real estate attorney favorably as she or he may bring knowledge and experience to assist a condominium or cooperative in managing its affairs.

Click here to view article.

Court Grants Dissolution of New York LLC

In the case of Natanel v. Cohen, the Petitioner, one of the 50-50 partners of a limited liability company (“the LLC”) sought to dissolve the LLC on the basis that he and his business partner had differences in accounting of the LLC’s finances and that they had also parted ways and created new businesses separate and apart from the LLC. No operating agreement was ever executed between Petitioner and his business partner. The LLC was formed so the partners could buy a building that housed a moving and storage company. However, because of the deteriorated relationship between the two, their business closed by mid-2012.
Petitioner asked the Court to be guided by several rulings from the Delaware Chancery Court.

However, theHon. Carolyn Demarest declined this offer stating, “The partnerships in those Delaware cases had operating agreements or other controlling documentation and it does not appear that Delaware law applies in New York.” Judge Demarest further ruled that mere disagreements between partners regarding accounting are not sufficient to warrant dissolution. Instead, Judge Demarest relied upon New York Limited Liability Company Law §702 which provides for judicial dissolution of an LLC “whenever it is not reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement.”

The Court ruled that ‘[t]here is no dispute that the Company no longer functions as a business and, indeed, both partners have formed separate businesses.” She continued, “In such circumstances, the Company’s purpose no longer exists and dissolution is appropriate.” The Court granted Petitioner dissolution and directed both sides to submit the names of prospective trustees to oversee the liquidation of the remaining property.

This post was written by Nicholas Moneta. This case is cited as: Matter of Natanel v. Cohen, 502760/13, Supreme Court of the State of New York, Kings County.

Real Estate Attorney – Borrower Recovers Mortgage Overpayments Peter Moulinos

In a very interesting matter, a borrower who had taken a $275,000 loan from a seller upon buying a real estate property was obligated to re-pay the seller for a period of ten (10) years. After fully paying the seller, the buyer, not realizing that his debt had been satisfied, continued to pay the seller for another three (3) years. He subsequently realized his error and hired a real estate attorney to file suit against the seller to recover the overpayments. The buyer’s real estate attorney also sought pre-judgment interest from the date his mortgage overpayments commenced.

The Court ruled however that the buyer was not entitled to pre-judgment interest from that date. It decided that it was reasonable to start calculating pre-judgment interest from the mid point between the date the overpayments were made and the date the buyer realized he the loan was fully satisfied. The overpayments totaled $156,268.83. The buyer should have been on notice regarding his overpayments and acted sooner to enforce his remedies.

This case was cited as Kost v. Louis Moiser Trust and was decided in the United States District Court for the Northern District of New York.

MTA Property Can Be Subject to Adverse Possession – Real Estate Attorney Peter Moulinos

In a unique action brought against the New York Metropolitan Transit Authority (“MTA”) the Court ruled that property belonging to the MTA is not immune from adverse possession. In Brocho V’Hatzlocho Corp. v. MTA, Plaintiff’s real estate attorney claimed that it acquired title to an adjacent property which was owned by the MTA through adverse possession. Adverse possession effectively allows a party to gain title to another person’s real property where the claiming parties possesses the property in a manner which is hostile and under claim of right, actual, open and notorious, exclusive, and continuous for a period of 10 years. The MTA sought to defeat the Plaintiff’s claim by asserting that property owned by the government cannot be taken through adverse possession. However, the Court disagreed with this contention.

The Court first determined that the MTA is a public benefit corporation which is empowered by the State Legislature to acquire, hold and dispose of real property in the exercise of its powers. While the Court ruled that government entities are immune from adverse possession, that immunity does not apply where the government holds property which is not inalienable. The MTA’s power to acquire and dispose of real property reflects the simple fact that property which is acquires is not considered inalienable.

Time Warner Condo Board Buys Unit Real Estate Attorney Peter Moulinos

The Condominium Board at the Time Warner Center Condominiums was allowed to exercise its right of first refusal and purchase a condominium unit on behalf of a prior prospective purchaser who was unable to purchase the unit from the Seller who had hired a real estate attorney.

In The South Tower Residential Board of Managers of Time Warner Center Condo. v. The Ann Holdings, LLC, the seller, Ann Holdings, had been, through her real estate attorney, in negotiations with a prospective buyer for the purchase of a unit at $7,800,000. When negotiations floundered, the seller sought to sell the unit to another buyer for the price of $7,400,000. Pursuant to the condominium’s by-laws, the Seller gave notice of the sale to the Condominium Board so that it would waive its right of first refusal. The Condominium Board however exercised its right to acquire the unit and entered into an agreement with the first prospective purchaser to assign the unit to him for additional consideration. When the Seller discovered this, it refused to close and the Condominium Board sued for specific performance.

In his decision, Judge Anil Singh ruled that the Condominium Board was within its right to acquire the unit and then exercise its right to assign the unit to the prior prospective purchaser for an additional fee. The Court ruled that this additional fee was in the interests of the Condominium’s unit owners and was protected under the business judgment rule applicable in the State of New York. The fee generated for the unit owners was in furtherance of their interests and benefited the Condominium. Thus, the Court had no authority to interfere with the good business judgment of the Condominium.

Peter Moulinos indicated that this case was significant as it insulated a condominium board from liability in a decision taken which contrary to the interests of a unit owner but in furtherance of the interests of the entire Condominium.

Real Estate Attorney Are Home Inspections Necessary by Natalie Frazier

This is a common question to a real estate attorney from first time home buyers New York City. Opinions of a real estate attorney may vary as to their usefulness in NYC home purchases, but here are some basic things to consider when tossing around the idea of getting an inspection. With the right information, you can be in the best position to make the most favorable decision for your particular purchase.

WHEN YOU SHOULD DEFINITELY GET ONE: You should always get an inspection before buying a free standing home, which includes townhomes, as the quality of the property and/or the history of maintenance and repair may not be fully documented by an objective source. You’re only getting the seller’s side of things and they may not be valuing the same issues from their perspective that you value from yours.

WHEN YOU MIGHT WANT TO SKIP ONE: For large, well maintained buildings, you will usually find what you need to know about the structural and performance history of a particular unit and/or building by taking a careful look at the building minutes. Review of the building minutes is part of a real estate attorney’s due diligence process.

Peter Moulinos, a real estate attorney and founder and managing partner of Moulinos & Associates explains. “As part of our due diligence, we take a careful look at the building minutes which chronicle the workings of the building as a whole. Those minutes may discuss the maintenance and condition of the electrical and mechanical systems of a building, including any major defects or repairs, evidence of infestations, functioning of the heat and water, etc. If the building appears to have kept regular and thorough records, and we don’t see any red flags, you may feel comfortable skipping an inspection.”

WHEN YOU MIGHT WANT TO GET ONE: “While it’s uncommon, some buildings might have poor record keeping practices‐ intentionally or unintentionally, “says Sean Hayden, of The Hayden Law Office. “In that case, we could request that the management company answer a questionnaire to fill in gaps as to the condition of the property.” If you’re still left with questions after that, an inspection might be the only way to get answers.

Hayden mentions other instances when an inspection might be worthwhile. “If the apartment is in a bad state of repair or if it’s a high‐end apartment with significant square footage or an apartment recently completed by a sponsor, then an inspection may be a good idea.”

“Generally, a risk assessment on a sliding scale is great way to help the buyer determine the usefulness of an Inspection,” Moulinos adds. “How much information do we have from the building minutes and then, without knowing more, what are the buyer’s possible risks. Far greater responsibility would rest upon an owner in a four unit building versus one in a building with 300 units if, for example, a roof collapsed.”

WHY GETTING ONE COULD BE A BAD THING: In a low inventory market, a buyer should also keep in mind how much time it will take to get to the contract signing phase. The decision to get an inspection (or even to have the management company fill out a questionnaire) could postpone contract signing by a week or more. “Because of the competition for NYC apartments, asking for an inspection can often cool the seller to you or allow another qualified buyer to swoop in and take your place,” adds Hayden.

WHAT TO DO: There are a dozens of variables that could change how you feel about getting an inspection on a potential purchase. Solicit the advice of your real estate broker and your attorney; we are here to work in your best interest. While the decision to inspect must ultimately be made by you, the buyer, it’s important to note that you’ll never be 100% sure about everything. There is always some risk involved in buying a home, in NYC or anywhere. The best you can do is be as informed as possible about your choices, follow the best practices for your situation, and then go with your gut on the rest.

This article was written by Natalie Frazier, a real estate agent with Fenwick Keats in New York. She may be reached by telephone at 212-352-8135 and by email at