Nicholas M. Moccia, P.C.
Attorney at law


Staten Island Foreclosure & Alternatives Law Blog

3 FAQs About Settling Landlord/Tenant Cases

Many landlord/tenant cases settle, meaning there is no trial and the court doesn’t make a ruling but rather, the parties come together and reach an agreement. The Housing Court in New York City strongly favors settlements. Here are three things to know about settling a case.

How do we settle the case?

If you and the tenant come to an agreement, you must file a Stipulation of Settlement with the court. This is a binding agreement that you and the tenant are required to follow. Before signing, make sure you fully understand the terms of the agreement and the legal obligations you must follow after signing. If you are unsure about anything in the agreement, address it before signing. Of course, it’s always best practice to review this agreement with your attorney prior to signing.

Up until the time you sign the agreement, you can choose not to settle the case and exercise your right to a trial before a judge instead.

What should be included?

You want to make sure the stipulation includes all necessary details to resolve all claims and counterclaims. This could include:

  • Repairs required and dates by which the repairs will be completed;
  • Rent owed and dates by which rent must be paid; and
  • Issues the tenant has agreed to correct and dates by which the corrections will be completed.

The stipulation should also include the consequences of failing to abide by the terms. For example, what happens if the tenant does not remove a pet from the premises by the required date? What happens if you do not make the repairs by the required date?

What if the tenant fails to comply with the agreement?

If either party fails to abide by the agreement, the other party can file an Order to Show Cause. This will bring the case before the judge to make a ruling. However, prior to doing so, you can always negotiate with the tenant to resolve the issues on your own.

On the other hand, if you find yourself unable to abide by the agreement, you can request additional time from the judge. This is also done through an Order to Show Cause. For example, if you find that the repairs are going to take 30 days longer than expected, you can be proactive and ask the judge to grant you additional time to complete the repairs.

As a rule, I try to formulate a stipulation that creates an incentive for the other side (particularly tenants) to honor the agreement, and a strong disincentive to breach the agreement.

If you are involved in a landlord/tenant case and are facing similar issues, give us a call.

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3 Things To Know About Holdover Proceedings

A building owner may commence a holdover against individuals or business who are not entitled or no longer entitled to occupy a piece of real estate. However, be aware that if you fail to heed the following 3 cautions, you will significantly delay the eviction.

Prior to the Proceeding

In most instances, you must give your tenant (or unauthorized occupant who is not a tenant) written notice. The nature of the relationship will determine what type of notice and what sort of notice you are required to give the tenant or unauthorized occupant. You would do well to consult an experienced landlord/tenant attorney in order to receive guidance as to what sort of notice is required, what the notice must say by law, and how much time give to vacate. For instance, a month-to-month tenant must receive a 30-day termination notice; however, you do not give the tenant 30 days from the date he receives the notice. The tenant gets 30 days from the date his next rent is due--usually (but certainly not always) the 1st of the upcoming month. In New York City, you should use a process server, licensed by the Department of Consumer Affairs to serve (i.e. to deliver in the legally correct way) the termination notice. There are strict rules on how this initial notice must be delivered to the tenant. This first step is crucial, and if done improperly, the Court will dismiss your case and you will need to start from scratch. This will could cost you several months' worth of time and rent.

Initiating the Proceeding

In New York City, to begin a holdover proceeding you must file a Notice of Petition and Verified Petition with Civil Court, and pay appropriate filing fee--$45.00 as of the writing of this article. You must attach a copy of your termination notice, together with affidavits of service for the same, to your Verified Petition.

You must file your papers in the court that is located in same county as your property--i.e. if the property is in Staten Island, you file your papers in Civil Court located at 927 Castleton Avenue, Staten Island, New York 10304. Once you file your Notice of Petition, Verified Petition and supporting papers and pay the filing fee, the Clerk will tell you when your first court date will be. He will write the court date on the Notice of Petition. If the landlord is a corporation or limited liability company, the landlord must appear with an attorney on that date.

After filing your papers with the clerk, you must then have a licensed process server serve a confirmed copy (i.e. a copy with the clerk's stamp and the court date) of the Notice of Petition and Verified Petition with all attachments on each tenant or occupant. You yourself cannot serve the papers, and it would be wise to use an experienced, licensed process server to take care of this for you. Service can be completed by personal delivery, substituted service or conspicuous place service. Each method has very strict requirements for the service to be valid, and for this reason, you must hire a professional process server. If this is done incorrectly (and it is inevitable that you will make an error if you have never done this before), your case will be dismissed, and this will cost you time and money.

On the Court Date

On the first court date, typically you will sit with your tenant and the judge's law clerk who will encourage the parties to settle. If settlement is not possible, the case will be adjourned for further conferencing and eventually a trial. You should not expect to have a trial on the first court appearance. Whenever possible, you should try to settle the case.

It is wise to have an attorney assist you with a holdover. One misstep could result in the case being dismissed. This is definitely not the place to be penny wise and dollar foolish. Regardless of what stage you are at, give us a call and we will walk you through the process.

Just as every piece of property is unique, each instance of litigation for a piece of property is unique - and not every lawyer has experience handling such litigation. Using the legal process to achieve your strategic objectives involves much more than paper pushing. It requires an understanding of how New York City and New York State law is applied to your specific case.

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Here’s The Scoop On Snow Removal For Rental Properties.

Depending where you live, your city may or may not have a local ordinance about snow shoveling requirements. Typically, if you own a house (or business) that borders a public walkway or sidewalk, the owner is charged with keeping the sidewalk clear of snow and ice.  These rules give time frames for when snow needs to be cleared and failure to comply will result in a fine.  

Often, the time frame is within 24 to 48 hours after the snow has stopped falling. State and municipal laws may also include language about snow removal that includes de-icing procedures like putting salt or sand down after you shovel.

Additionally, when shoveling snow from the sidewalk, it needs to be stored on private property, not simply dumped on the road which is considered public property.  Patricia Stell, the city recorder of Bend, OR explains to the Bend Bulletin, “The sidewalk and street is considered a public right of way, and a homeowner can’t dump snow back on the right of way. That means the snow has to be stored on your private property.”

Other snow removal laws can be even more confusing for a property owner, where the owner holds zero liability until he actually moves the snow and then he becomes liable if an accident occurs as the result of snow removal.  See this example of snow removal at an apartment complex in Arkansas.

You should also check with local laws regarding parking restrictions on snowy days.

A Landlord’s Responsibility for Snow Removal

While landlords of single-family rental properties can specify in the rental agreement that snow removal as the tenant’s responsibility in most states and provinces, multi-family rental properties often have common walkways that the landlord must maintain, and liability is a real concern.

If you own or manage a multi-unit property, the best course of action is to take on snow removal yourself or hire a service. If you own a single-family rental property, you can include snow removal in your lease agreement as the tenant’s responsibility. When you create the tenant-landlord agreement, it’s important to be clear about when and where the snow needs to be shoveled. For example, you should specify how soon after a snowfall a path needs to be cleared and how wide the path needs to be.

Keep your resident updated on the local laws regarding snow disposal and offer safety tips to reduce the risk of injury while they do it. To ensure regular shoveling of the property, you might want to provide your tenant with a shovel and the salt or sand needed to prevent anyone from slipping on your property post-shoveling.

If you are a renter here’s what you should do when it comes to snow season – Check your lease! The lease should expressly state who is responsible for snow removal. Your landlord should be familiar with the local laws about time frames for shoveling snow.  If you are lucky, a super nice landlord may state in the lease that he will come shovel the sidewalks for you! Your landlord or property manager may also have rules in place that prevent snow removal because that could make the property owner liable if an accident occurs. Now is the time to check in with your landlord or property manager so you know what to do before a snow storm hits.

Snow Removal in Your Lease Agreements

Proper wording on the lease agreement can help eliminate a lot of confusion on who is responsible for snow removal. The lease agreement should reflect the state or municipal laws on snow removal and clearly define any details concerning time and so forth. If your lease agreement doesn’t include language about  snow removal responsibilities, create an addendum that expressly discusses it and make sure both of you sign it.  Make sure to have your lease agreement reviewed with an attorney who is familiar with landlord-tenant laws and snow removal requirements in your area.

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Why You Should Avoid A DIY Eviction

Being a landlord is a tough job. Unfortunately, evictions and other legal proceedings are part of the process. While there are plenty of DIY resources at housing court for both landlords and tenants, if you are a landlord, it is highly recommended that you hire a lawyer to assist you.

Why You Need a Lawyer

Housing court is not a good place to go unrepresented and fend for yourself. New York's landlord tenant laws are complicated. The housing court is chaotic at best and can be intimidating. Evictions were initially structured to be fair, quick and relatively inexpensive. In reality, however, this is far from the case. The eviction process can be in frustrating and unfairly stacked against a landlord without representation.

Save Money

A recent New York Times article stated that a study is currently underway tracking the economic impact of equal representation. Thus far, statistics say that for every dollar spent on legal representation, three dollars are saved by using counsel.

Save Time

Time is money, and you can't afford to waste it trying to get a nonpaying tenant out. As mentioned above, any type of misstep can cause your case delayed or dismissed, where you have to start the entire process from scratch. Or, you may get the case completed from beginning to end, but perhaps you won't get the results you had hoped for. Investing a little at the onset to retain the services of a lawyer will pay off exponentially in the long run.

What To Do Next

ust as every piece of property is unique, each instance of litigation for a piece of property is unique - and not every lawyer has experience handling such litigation. Using the legal process to achieve your strategic objectives involves much more than paper pushing. It requires an understanding of how New York City and New York State law is applied to your specific case. 

Nicholas Moccia provides prospective clients a Property Strategy Session in order to ensure he understands your objectives as well as your obstacles. Nicholas Moccia then formulates a plan of action that is tailored to your objectives including a cost/benefit analysis. To this end, Nicholas Moccia provides predictable and transparent fees structures, and to the extent possible he will project for you, step by step, the likely course your case will take. 

If he's not the right attorney for the matter, or if an alternative to legal action is more appropriate, you have his commitment that he'll point you in the right direction. Just call his office at (718) 701-5772 to schedule.

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New Landlord's Procedures For Tenants When A Gas Leak Is Suspected

NYC landlords should be aware of a new requirement issued by the NYC Department of Housing Preservation and Development (HPD) regarding gas leaks. 

Local Law 153 is effective starting June 4, 2017 and requires the owner of a dwelling to provide residential tenants with a notice regarding procedures that should be followed when a gas leak is suspected. This information must be provided in at least two ways.

The first requires the landlord to deliver such notice to each tenant AND prospective tenant of such dwelling (all tenant-occupied units, including 1- and 2-family homes) with the lease or lease renewal form for such tenant and prospective tenant.

Secondly, landlords must post and maintain a notice in a common area of the building. Failure to post and to provide the appropriate notice can result in a violation being issued.

The Law Office of Nicholas M. Moccia, P.C. is prepared to assist landlords with compliance. Forms and noticed approved by HPD are customizable for landlord's use are available at our office for clients.

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Mark Works, the majority owner of Works Fitness, Inc., the holding company for a string of independent fitness centers, found himself in a lot of trouble. Mark always prided himself on being able to handle all aspects of the Works Fitness business, including lease negotiations. 

About 10 months after renewing a lease agreement at one of his facilities, the owner of the property, ACE LLC, decided to rehabilitate the parking lot pavement. It was about time, as extreme weather conditions had caused the parking lot to fall into disrepair. 

When Mark and other tenants complained about the condition of the lot, the owner would send in a crew to complete minor patching as needed. But this time was different. The landlord finally went the extra mile to solve the issue, and decided to do a complete makeover. 

Operating Expense or Capital Expenditure? 

The project cost ACE LLC more than $450,000. Under the Common Area Maintenance (CAM) provisions of its commercial leasing contracts, ACE LLC would recover the cost from the property's tenants. The landlord intended to amortize the expense over 10 years, the industry's standard for the useful life of a new asphalt parking lot. Amortization protects shorter-term tenants from bearing the full cost of the project. 

A month later, the landlord began billing Works Fitness and the other tenants in monthly installments. For several months, Works Fitness paid its portion of the expense at an additional $650 per month. However, Mark began to realize that the project exceeded maintenance and repair and should not fall under the CAM provision. He contends the project should be treated as a capital expenditure and written off as such. 

Beware of Common Area Maintenance Expenses Provisions

Most commercial leases have a Common Area Maintenance, CAM Expenses, or Operating Expenses provision. This clause requires the tenant to pay its pro rata share of operating expenses incurred by the landlord in the operation and maintenance of the office building, shopping center, or other commercial property. 

Typically expressed as a cost per square foot, CAM allows the landlord to pass through to the tenant legitimate expenses that cover the operation and maintenance of the common areas. It should only consist of non-capital costs, such as:

  • Cleaning the exterior facade.
  • Shared interior cleaning and repairs.
  • Parking lot maintenance and repairs.

Despite the intent of the provision, many CAMs are potential traps for unaware tenants as landlords seek to turn the provision into a profit center. As Mark discovered, CAMs can be a point of heated dispute. 

He argued that the parking lot project was a capital expenditure that provided permanent benefit to the property overall, and that it should not be treated as an operating expense, but built into the base rent. Of course, ACE LLC rejected the argument, stating that the extreme weather made the cost unpredictable and impossible to factor into the base rent. Furthermore, the landlord was merely exercising its right to pass through to the tenant operating expenses as allowed under the CAM provision contained in the lease agreement. 

Who Wins? 

Complex issues related to capital expenditures are common in commercial landlord-tenant relationships. In the case of tenants like Works Fitness, an unfavorable outcome regarding the issue can have a profound impact on the company's bottom line. Mark decided that he was in over his head on this issue, and would hire an experienced real estate attorney to handle his current issue with the landlord as well as future lease negotiations. 

The new attorney reviewed the contract and quickly identified cause for concern, especially in the CAM provisions of the contract.Some of the problems he found included: 

  1. The definition of the base year did not protect the firm against the obligation to pay for expenses during the base year, and it did not subject variable expenses to a gross up, requiring the landlord to show the full amount of incurred operating expenses if the building is 100% occupied.
  2. The contract contained a provision that made the property owner's determination of CAM final.
  3. The lease agreement did not contain a cap on CAM charges nor allow the tenant to terminate the lease if expenses exceeded the cap.

After a review of the lease agreement with ACE LLC, the attorney had some negotiation points to address to ensure that his new client had the necessary financial and legal protections. He completed negotiations with the landlord and was able to correct and clarify red flags that were contained in the CAM and other potential issues. 

Fast forward to the subsequent meeting between the principals of both companies and their respective attorneys. It was determined that the cost of the new parking lot could not be passed through to Works Fitness, thanks to the work of the firm's new real estate lawyer. 

If your business is involved in real estate, it's crucial for you to have competent legal counsel to protect your interests. Hire an attorney who specializes in commercial real estate law and possesses an appreciation for the various market forces that affect your bargaining position and business decisions.


What To Do Next:

Just as every piece of property is unique, each instance of litigation for a piece of property is unique - and not every lawyer has experience handling such litigation. Using the legal process to achieve your strategic objectives involves much more than paper pushing. It requires an understanding of how New York City and New York State law is applied to your specific case. 

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Foreclosure Process in NY Expedited by Federal Ruling

A pivotal Federal Court decision concerning court jurisdiction for foreclosure lawsuits in New York was handed down on March 1, 2017, by Judge Nicholas G. Garaufis, United States District Judge for the Eastern District of New York.

This ruling is important because in New York, foreclosures in the state court system now routinely take up to three years to complete. The state has a system and statutory framework that outlines the procedure for the processing of New York foreclosure cases.

However, by staying out of state courts, the foreclosure process can be accelerated. “In Federal court, you don't need to go through the state mediation settlement conference,” said Alan Weinreb, plaintiff’s attorney. “In New York state courts, all residential owner occupied properties are entitled to a settlement conference with the borrowers and the lenders, and there are procedural safeguards during the foreclosure proceeding,” he added. “That makes it slow. It's like everything is on hold in New York. Your case can't proceed until you go through this separate settlement conference, which could delay cases for up to a year or more.”

The petition for ruling by the court was filed by Plaintiff Avail Holding, LLC, holder of the mortgage on the foreclosed property. Defendant was Frances Ramos and several additional defendants that “may claim to have some interest in" the subject property.

The defendant, Frances Ramos, maintained that because New York has a comprehensive statutory framework to protect borrowers in residential foreclosure cases, including procedural safeguards in the law, that the Federal court should abstain from hearing these types of cases.

After an extensive consideration of New York’s statutory protections, Judge Garaufis ruled that the Federal court need not abstain from hearing this type of court case and can determine a New York residential foreclosure action, provided there is diversity jurisdiction and that the amount in controversy exceeds $75,000.

Weinreb said that to get a case heard by a Federal court, you have to prove diversity. “Diversity means the citizenship of the plaintiff is different than the citizenship of each and every defendant. Our plaintiff in this case was a Florida company,” he said. “They hold the note. Because they hold the note and they’re in Florida and it’s a New York property with New York borrowers, the citizenships are different.”

The original note on the property was secured by a mortgage which Ramos executed, acknowledged, and delivered to Mortgage Electronic Registration Systems, Inc., as nominee for First Franklin. The note and mortgage were reassigned several times before being assigned to Plaintiff Avail on November 6, 2015. Beginning in August 2010, Ramos stopped making the required monthly payments and thereby defaulted on the mortgage. Default continues to date and, as of the filing of the Complaint, Ramos owed approximately $548,653.76.

On December 11, 2015, Plaintiff began a foreclosure action in the Federal Court pursuant to New York Real Property Actions and Proceedings Law. According to Ramos, this is the third foreclosure action that Plaintiff and its predecessors have filed against her, with the first two actions being dismissed "because the plaintiff in each failed to comply with New York foreclosure law's predicate notice requirements and other statutory protections.

Ramos’ attorneys argued that the court should abstain from adjudicating this action "in order to effectuate New York's comprehensive regulatory scheme and consumer protections governing residential foreclosure actions, which address a foreclosure crisis of compelling interest to the State of New York."

Plaintiff’s attorneys argued that the court has diversity jurisdiction to adjudicate this action. Instead, Ramos argued that the court should decline to exercise its jurisdiction and should dismiss the case pursuant to the abstention doctrine. Under this doctrine, however, a district court may decline to exercise or postpone the exercise of its jurisdiction in certain "exceptional circumstances."

Defendant's primary argument was that abstention is appropriate because "the New York state courts continue to grapple with the parameters of the good faith negotiation standard and the appropriate remedies for failure to negotiate in good faith" with respect to the settlement conferences that are mandated by state law.

Additional arguments were fielded concerning whether Ramos was entitled to a settlement conference in federal court, whether she had failed to negotiate in good faith, and whether her conduct did not constitute a meaningful effort at reaching a resolution. Plaintiffs cited cases that said, “In cases like the one at hand where state law issues are not unclear, the federal court should not abstain.”

At the end of the day, the court declined to dismiss the action based on the abstention doctrine and declared that the Defendant’s motion to dismiss was denied thus paving the way for the Federal Courts to hear New York residential foreclosure cases. Weinreb said that this case may have ramifications in other states following a similar model to New York. He thinks that attorneys will see what happened in New York and will want to bring their own federal cases in states that have similar requirements to New York. “Just be sure you have the diversity and that the amount owed is more than $75,000,” he said.

Although foreclosures in New York are declining, Weinreb said that the courts are struggling because of the time it takes to process a foreclosure in that state. Plaintiffs were represented by Alan H. Weinreb and Alyssa L. Kapner, Margolin & Weinreb Law Group, LLP. Defendant was represented by Franklin H. Romeo and Christopher Newton of Queens Legal Services.


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Landlords: Beware of “Silent Issues Lurking in Standard Commercial Leases

It's far too often the case that, after negotiations between a landlord and prospective tenant over the business terms of a commercial lease, the landlord rushes to sign a lease. In an effort to close the deal as quickly as possible, the landlord uses a standard form lease that hasn't been updated to reflect the transaction's distinct features or recent developments in leasing law. 

Using a standard commercial lease without careful review and customization can be fraught with unforeseen risk. As a landlord, should you find yourself in a conflict with a commercial tenant that reaches the courtroom, you don't want to be in a position where the judge states, to your detriment, that they cannot infer obligations or prohibitions in leases. If something is not expressly stated in the documents signed by the parties, it's not part of the deal. 

"Silent" issues – the gaps and omissions in a standard lease – can wreak havoc for the landlord. Avoiding these potential landmines requires taking the time to work with a knowledgeable real estate attorney to draft a lease that equips you with the fullest protections possible. 

Here are some common silent issues that landlords should think about before signing off on a commercial lease: 

1. Alterations to the Property

If you allow a tenant to make alterations outside the leased premises (HVAC equipment installations, back-up generator, or fuel storage and transmission), the tenant should be held to the same removal and restoration requirements applying to interior alterations. One option you may want to consider is performing all exterior alterations yourself, but at the tenant's expense. 

The lease should require all tenant alterations to comply with the Americans with Disabilities Act and all applicable laws on disabled or handicapped access. The lease should allow the landlord to block any alteration, even within leased premises, that would require significant changes outside the leased premises to comply with laws. 

Reserve the landlord's right to install security cameras, scanning devices, and any other security technology in common areas. Require the tenant to waive any right to object to such devices and any right to sue the landlord over privacy, labor, or workplace issues arising from their use. 

2. Assignment and Subletting

If you allow assignment or subletting, prohibit the tenant from accepting an assignment of any other tenant's lease or subletting any other tenant's premises without your consent. 

Prohibit assignments or sublets that compete with the landlord. A lease assignment or sublet could create conflict with the landlord if it is:

  • For less than fair market rent or the present rent.
  • If the landlord has available space.
  • To existing tenants in the building or any other building that the landlord owns within a specified area.
  • To entities with whom the landlord or its affiliate is actively negotiating or has recently negotiated.

Prohibit assignment or sublet to any entity with whom the landlord or its affiliate is in litigation. 

The lease should expressly state that the new occupant will be bound by any use clauses in the original lease. While this might seem self-evident, courts may infer some unintended flexibility on use if the parties negotiate a right to assign or sublet. 

3. Tenant's Bankruptcy

If the tenant provides a letter of credit in lieu of a security deposit for more than one year's rent, make sure that the letter of credit expressly allows the landlord to draw on it if the tenant files for bankruptcy. 

If a tenant is leasing multiple locations from the same landlord, structuring the transaction as a single combined lease for all locations could protect the landlord in the event that the tenant files for bankruptcy. This could reduce the likelihood of the bankruptcy judge "cherry picking" from the various leases. 

4. Compliance with Laws

If the tenant uses the leased premises as a "public accommodation" or any other use to which the Americans with Disabilities Act applies, the tenant should pay for all work needed to fulfill the legal requirements. These should include common areas such as parking lots, entrances, lobbies, or public corridors. 

Require the tenant to perform all alterations required by law. For required alterations that apply to the building as a whole, the tenant should pay their proportionate share. 

Make the tenant financially responsible if they cause your property to become non-compliant with the law. For example, if the code allows the landlord to maintain an old fire alarm system but requires you to upgrade if anyone performs a certain amount of construction work in the building and the tenant plans to undertake that work, the landlord should require the tenant to pay for the fire alarm systems upgrade. 

Require the tenant to certify they are not a terrorist or other party with whom you're not legally allowed to do business. The tenant should indemnify the landlord against any loss, including attorney fees, resulting from the tenant being a terrorist or engaging in any activity that creates legal liability for the landlord, such as money-laundering. 

5. Environmental Compliance

You may want to have the tenant provide an environmental assessment at the end of the lease term and require them to remedy any conditions that are the responsibility of the tenant under the lease. 

Require the tenant to indemnify the landlord against any harm resulting from the tenant's use of the leased premises and the property. This should include all environmental issues and should extend beyond the expiration or termination of the lease. 

If you seek to comply with LEED or other environmental certification, you may need to include language in the lease to ensure that every tenant in your building complies with the requirements of the environmental certification. 

6. Landlord's Liability

Limit the landlord's liability to their interest in the property or whatever equity they would have had in the property had they entered into a mortgage securing financing equal to 80 percent of the property's value. The landlord should not be personally liable, nor should their partners, members, managers, officers, directors, affiliates, and the like. 

The lease should include a statute of limitations under which the tenant forfeits the right to file a claim against the landlord after a short period of time has passed after the tenant became aware of the facts supporting the claim. 

The current landlord should not be held liable for the previous landlord's acts.


Just as every piece of property is unique, each instance of litigation for a piece of property is unique - and not every lawyer has experience handling such litigation. Using the legal process to achieve your strategic objectives involves much more than paper pushing. It requires an understanding of how New York City and New York State law is applied to your specific case. 

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The Importance of Preparing Dispute Documentation

Stephanie had been living as a tenant in a co-op building for the last three years and had never had an issue with the other people in the building. However, she recently started complaining about Laura, a new tenant who lives across the hall. Stephanie said Laura played music loudly throughout the day and late into the evening. Stephanie also complained about Laura constantly inviting people at all hours of the night, making her feel unsafe. When Stephanie complained, Laura said it was within her right to do all of these things.

The Importance of Preparing Dispute Documentation

If you are a property owner with tenants who are in conflict, it's necessary to mediate, document your policies and processes, and act quickly to resolve disputes that could potentially result in the loss of income from a great tenant who decides not to renew their lease or the legal expenses involved in evicting a disruptive tenant.

Ideally, individuals living in a close community go about their daily lives without clashing with other members of the building, condo, or co-op. However, there are times when two members of the community rub each other the wrong way and wreak havoc on the rest of the community. A dispute might begin with parking on the wrong spot in the lot to playing music too loud and escalate to bigger problems. In order to avoid further conflict, you need to prepare proper dispute documentation.

Ultimately, a well thought out dispute policy will protect you as the landlord as well as the tenants. Establish a protocol that will be followed in the event of a tenant dispute. It could, for example, include the following points:

  • After a tenant complaint is received, meet with both parties to get the facts.
  • Document the findings and give a verbal warning.
  • If the offensive behavior continues, send a written letter.
  • Advise the complaining tenant to call police and file an incident report depending on the behavior.
  • If the offensive behavior persists, start eviction proceedings.

Your dispute resolution guidelines should be clear to all residents before they move into the building. Before signing the lease, rental agreement, or purchase agreement, you should go over the dispute policy with your prospective tenants or residents. While nobody plans on entering a dispute, having a resolution process in place in the event that a conflict does occur is critical. With proper documentation, you can bring the disputing parties together and mediate the situation until an appropriate middle ground is found. Dispute documentation should cover all the bases and leave nothing out.

Luckily, Stephanie and Laura's landlord had prepared dispute documentation. Stephanie filled out her complaint and submitted it. After going over the documentation, the landlord called a meeting with Stephanie and Laura. They discussed the noise and visitor issue. According to the documentation she had signed, Laura would have to either turn down the volume or use headphones after 8pm. However, Laura did have the right to invite guests at any time as long as they were accompanied by her and followed the building's rules. By sitting down and going over the disputes and documentation, both Stephanie and Laura came to a resolution.

As a property owner, you can avoid problems like this by working with an experienced real estate attorney to create clear guidelines and contracts that document expectations, rights, and penalties for all parties involved, which is essential to managing disputes and growing your successful leasing business.

What To Do Next:

ust as every piece of property is unique, each instance of litigation for a piece of property is unique - and not every lawyer has experience handling such litigation. Using the legal process to achieve your strategic objectives involves much more than paper pushing. It requires an understanding of how New York City and New York State law is applied to your specific case.

Nicholas Moccia provides prospective clients a Property Strategy Session in order to ensure he understands your objectives as well as your obstacles. Nicholas Moccia then formulates a plan of action that is tailored to your objectives including a cost/benefit analysis. To this end, Nicholas Moccia provides predictable and transparent fees structures, and to the extent possible he will project for you, step by step, the likely course your case will take. 

If he's not the right attorney for the matter, or if an alternative to legal action is more appropriate, you have his commitment that he'll point you in the right direction. Just call his office at (718) 701-5772 to schedule.



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Never Prepare a Commercial Lease without an Attorney’s Guidance
When Frank's commercial tenant, an auto parts dealer, told him they would not have the rent on time, Frank tried to play it cool. It was his first commercial rental property, and he wanted to make sure he came off as professional. He told himself that this was just part of being a landlord, and he would have to roll with the punches. Besides, he had enough money to make his payment to the bank.

The real problem came a month later when the tenant explained that business had yet to pick up. The tenant did not have last month's rent, and unfortunately, would not be able to pay this month's rent either. This left Frank in a real tough spot. He needed the rent money to meet his debt with the bank. He was going to have to make an arrangement with the lender. 

After the phone call with the bank, Frank was feeling pretty frustrated. The lender expected him to pay his loan payment on time. Tenant issues were Frank's problem, not theirs. 

A day later, Frank decided he was not going to put up with a deadbeat tenant. He called the tenant and told him that he wanted him out. The tenant told Frank he was being unfair, that he should understand how business worked. He told Frank that he needed more time and that he was not going to leave. He was going to stick it out and make things right. 

As much as Frank wanted to believe the guy, he had his own problems. The bank was not going to continue to let things slide. Choosing what seemed like the only reasonable option, Frank set out to officially remove the tenant. 

Money was tight, so Frank opted for the DIY method. He went online, found some forms, took them down to the courthouse, and submitted them. Then he waited. One week. Two weeks. After two and a half weeks, he had not heard anything. Frank went down to the courthouse again, waited in line for an hour – again – and finally got the chance to talk to a clerk. The clerk informed Frank, in a barely civil tone, that he had submitted the wrong forms. He was going to have to restart the action and wait for approval. Meanwhile, Frank had yet to see a dime in rent money. 

After weeks of frustration, confusion, and stress, Frank made a call to a real estate attorney. With the attorney's help, he managed to get his commercial rental space back. The lesson was a costly one, but, from then on, Frank always consulted his attorney on rental matters. Having a lease that protected Frank as a landlord and having legal guidance when dealing with tenant matters proved to be far more valuable than Frank would have ever imagined when he started out.

The Importance of Commercial Leases

Frank could have saved himself a lot of stress if he had discussed his first commercial rental with a qualified real estate attorney. Had Frank talked to an attorney, he would have had a commercial lease that was designed to protect his interests and would have known what his options were when dealing with his problem tenant. 
Commercial leases are essential to define the business relationship between the renter and the landlord. While most leases have fairly similar structures, a quality lease is written with the specific needs of a property owner in mind. This is why it is so important to visit a lawyer when writing a lease. Your business and your properties are unique to you, and the lease should reflect that.

Key Elements of a Commercial Lease

Designed to cover all common concerns in a landlord-tenant relationship, these elements of a lease address a wide range of potential problems:
· Parties Clause. A parties clause defines who the lease refers to. Your business is one party, while the tenant's business is the other party. Exact language is important in legal matters, so you want to make sure that the names listed here match the names of each company exactly.
· Premises Clause. This is the official address that is being rented. Any space that is part of the rental needs to be listed here as well, including additional storage locations, parking, kitchen facilities, etc.
· Use Clause. You want to be clear on what the tenant can and cannot use the space for. It may not be a problem if the renter conducts various types of activities in your rental, or you may want to make certain that only specific business activities occur in the building.
· Exclusive Clause. The tenant may want to have certain exclusivity. For instance, a coffee shop tenant may want to be the only coffee shop in your building.
· Rent Clause. This clause defines monthly rent amount and other expenses. This is the amount the tenant is agreeing to pay to you during the term described by the lease. You can also list dates when rent will increase in this clause.
· Term Clause. This defines the starting and ending dates of the rental agreement. Other dates can be defined here, such as when the business will open or when the rent payment is due.
· Alterations or Improvements Clause. Either you or the tenant may want to make improvements to the space. This clause defines who will pay for improvements, when they will be started, and when they will be finished. You can also state which contractor will do the improvements.
· Security Deposits. As a commercial property owner, you can ask for whatever amount you want for a security deposit. Or course, if you want to attract tenants, the amount needs to be competitive for the area. Whatever amount you choose will be listed in the lease.
· Insurance. You can define the amount and type of insurance each tenant is required to carry. Think carefully about what levels of insurance are reasonable – low enough to attract tenants, but high enough to protect your investment.
· Maintenance. Tenants reasonably expect you to keep the property in working order. Define your responsibilities for building maintenance.
· Assignment/Sublet Clause. This provision is important especially if you want the flexibility of selling your business or sharing space with other individuals or companies. There may come a point when you want out of a space. It this clause that sets the parameters for doing so.
A Comprehensive Lease Protects Your Investment
Your commercial rental property can prove to be a solid long-term investment, but only if it is protected. A strong lease is a necessity to protect both you and your property from the unexpected. The best way to develop such a lease is with the help of a skilled attorney.
What To Do Next:
Just as every piece of property is unique, each instance of litigation for a piece of property is unique - and not every lawyer has experience handling such litigation. Using the legal process to achieve your strategic objectives involves much more than paper pushing. It requires an understanding of how New York City and New York State law is applied to your specific case.

Nicholas Moccia provides prospective clients a Property Strategy Session in order to ensure he understands your objectives as well as your obstacles. Nicholas Moccia then formulates a plan of action that is tailored to your objectives including a cost/benefit analysis. To this end, Nicholas Moccia provides predictable and transparent fees structures, and to the extent possible he will project for you, step by step, the likely course your case will take. 

If he's not the right attorney for the matter, or if an alternative to legal action is more appropriate, you have his commitment that he'll point you in the right direction. Just call his office at (718) 701-5772 to schedule.
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Related Companies labels luxury rentals "affordable housing" for tax break

It is not breaking news that Related Companies has been cracking down on, a social networking site that allows individuals to find roommates or sublet their apartments via the internet.  Related Companies has sued Henry Ikezi in a New York City Housing Court for profiteering from his "rent stabilized" apartment through, but as will be demonstrated on appeal Related Companies and its attorneys, Borah Goldstein, have failed to sustain their burden of proof.  The fact is that Mr. Ikezi's tenancy in the MiMA Building was terminated a mere twenty (20) days after the commencement of his lease merely because of an account he maintained on -- an account that Mr. Ikezi testified he opened some six (6) months before his tenancy commenced.

At trial, none of Related Company's witnesses could testify how many unauthorized guests Mr. Ikezi hosted, how much he charged these guests, how long they stayed, or even their identity.  None of these guests were called as witnesses at trial.  The testimony of Related's witnesses was conveniently self-serving but insufficient to prove Related's claims of profiteering.  The MiMA building, while technically rent stabilized because of a 421-a tax abatement, nevertheless charges its tenants rent at or in excess of fair market value.  Related could charge upwards of $9,000.00 a month for Mr. Ikezi's apartment. Related charged Mr. Ikezi a "preferential rent" of about $6,000.00 a month, not because the law requires that figure, but because the $9,000.00 legal maximum is likely in excess of market value.  If someone were willing to pay $9,000.00 per month for Mr. Ikezi's apartment, Related could legally charge $9,000.00 per month while still calling the apartment "rent stabilized" in order to maintain its 421-a tax abatement.   Todd Nahins, Esq., of Borah Goldstein touts his victory as a "landmark decision", but the fact is the decision rendered in Housing Court is not binding precedent and is under appeal.    Mr. Nahins styles himself as some sort of crusader who protects the integrity of rent regulation and affordable housing in New York City, yet nothing could be further from the truth.  Instead, Mr. Nahins' clients grotesquely profit from a property tax loophole. This loophole allows one of the largest of real estate concerns in the City to label luxury high rises as "affordable housing" for a generous tax abatement, all while charging rents at or in excess of fair market value.

The records of the New York City Housing Court Clerk demonstrate that Mr. Nahins' firm aggressively commences evictions in the MiMA building under the slightest pretext, and every time a new tenant is placed, MiMA takes a 18% or 20% vacancy increase allowance permitted under the NYC Rent Stabilization Law.  Thus, the legal regulated rent for Mr. Ikezi's allegedly rent stabilized apartment increased from about $6,000.00 in 2011 to about $9,000.00 in 2014.  The real profiteer is Related Companies.  Even by New York City standards, the MiMA Building can scarcely be characterized as "affordable housing."

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Brooklyn Evictions Q&A: whether house guests (licensees) can be "asked to leave" after just 15 days.

Question: Can a temporary house guest staying in a furnished room be asked to leave after just 15 days? they leave the main door unlock day and night! and this is very dangerous for New York!  They never clean up. No moneys were given. They were to design a website in exchange for short-term help...

Answer: You can ask them to leave voluntarily, of course; however, if they refuse to leave, you have to evict them through the housing court. You need to serve a 10 day notice to quit and commence a licensee holdover proceeding. If this is done improperly, the court will throw your case out, and you waste time.

I do not recommend engaging in "self-help" and forcibly removing them, otherwise you may find yourself looking not only for a landlord/tenant attorney, but also a criminal defense attorney.

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Staten Island Foreclosures -- Exit Strategies

Foreclosure law is a specialized practice area that should be entrusted to a professional who handles foreclosure cases on a daily basis. The Law Office of Nicholas M. Moccia, P.C., has successfully litigated and settled dozens of foreclosure matters in Manhattan, Brooklyn, Queens, Bronx and Staten Island. Your exit strategy may include the following:

1.  loan modification;

2.  short sale

3.  deed-in-lieu of foreclosure

4.  cash-for-keys from bank in order to relocate


I have yet to see a single foreclosure case where the bank or its attorneys have not made several serious errors in their papers. The reason these errors are so pervasive is due to the sheer volume of cases that they must handle. I have also observed many foreclosure firms intentionally cut corners fully expecting that most homeowners will not contest the foreclosure at all or call them out on their mistakes. In particular, it is very common for banks to commence foreclosures without being able to demonstrate their standing to do so. This amounts to the banks being unable to demonstrate to the court their legal right to enforce a mortgage and take someone's home.

Such defects form the basis of your legal defense strategy, and may result in the dismissal of your case or a more favorable settlement. Sometimes these errors are so serious that it may be possible to undo a foreclosure sale. These errors, however, are not always obvious to a non-attorney or to an attorney who does not regularly practice in this area. Failure to raise these defenses at the appropriate time may result in decreased leverage to negotiate a favorable settlement or, worse still, even the loss of your home.


My firm has defended foreclosure cases against all the big foreclosure firms including Steven J. Baum, Rosicki Rosicki & Assoc., McCabe Weisberg, Berkman Henoch, Frenkel Lambert, Fein Such & Crane, Hogan Lovells, etc. I am able to anticipate the litigation strategy of bank attorneys, and I understand how these firms operate. I have also developed working relationships with attorney's in many of these firms, which helps to facilitate settlement discussions for the benefit of my clients.

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