Howard Koh

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145 W. 21st Realty LLC v. First West 21st Street LLC, New York County Index No. 653241/2012 New York County Supreme Court Justice Kelly O’Neil Levy has issued a decision adding to the understanding of the party wall rules. In 145 W. 21st Realty LLC v. First West 21st Street LLC, Justice O’Neal Levy granted the defendant summary judgment dismissing causes of action sounding in conversion/encroachment, trespass, and negligence. In 145 W. 21st Realty v.…
US Bank National Association v. Zeidman, Westchester County, Supreme Court Index No. 52204/2012 Foreclosing lenders often have back-office operations out-of-state.  In US Bank v. Zeidman, the foreclosing lender’s back-office operations were performed by a loan servicing company located in California.  In support of a motion for summary judgment in foreclosure, the lender filed an affidavit of its loan servicer’s Vice President of  Loan Documentation.  The Vice President’s affidavit contained a notary’s jurat and a “Uniform…
SPRE Realty, Ltd. v. Dienst, First Department 651671/2013 The Appellate Division, First Department has clarified the test for whether a broker is entitled to a commission in the absence of a written agreement. In SPRE Realty, the plaintiff-broker showed the defendants a two-unit, duplex, condominium apartment at 397 West 12th Street during the summer of 2008.  Thereafter, the broker negotiated on the defendants behalf and a contract was prepared. In August 2008, the defendants pulled out of the deal…
Eastern Savings Bank, FSB v. McLaughlin United States District Court, Eastern District of  New York 13 CV 1108 Federal Magistrate Judge Lois Bloom of the Eastern District of New York has held that New York law permits interest to accrue at the default rate even after the plaintiff is awarded summary judgment in foreclosure as long as the loan documents so provide in clear, unambiguous and unequivocal language. In this case, heard in federal court…
Gural v. Drasner, Appellate Division, First Department Index No. 103283/2008 The Appellate Division, First Department has limited the applicability of the part performance exception to the Statute of Frauds. As many real estate lawyers know, the Statute of Frauds, which requires certain contracts for conveyances of interest in real property to be in writing and signed, contains an exception for “part performance.” by the party claiming the existence of a binding agreement.  The alleged part…
Cadelrock Joint Venture, L.P. v Callender, Supreme Court, Kings County, Index No. 3354/2011 Justice Carolyn Demarest has held that a note holder suing on a note secured by real property must serve the notice required by Real Property Actions and Proceedings Law 1304 even though the lender is not seeking foreclosure. RPAPL 1304  is applicable to actions at law to recover on a note securing a  “home loan” in addition to actions for foreclosure. In…
Azad Property Group, LLC v. Willspring LLC, Supreme Court, New York County, Index No. 656626/2013 Commercial Division Justice Marcy Freidman has allowed a broker’s claim for breach of an implied-in-fact contract to pay a commission to survive a motion to dismiss.  In this case, the plaintiff alleged that although it did not have a written agreement with the owner, it produced a buyer, Vornado Realty Trust, that accepted all of the material terms that the…
AMT CADC Venture v. 455 CPW, Supreme Court, New York County Index No. 810109/2011 In this mortgage foreclosure action, the court addressed the issue of what constitutes a “first mortgage” for purposes of Real Property Actions and Proceedings Law 339-z.  This statute provides that the condominium will have a priority lien for unpaid common charges that will receive priority over all other liens, irrespective of when filed, with the exception of tax liens, certain government…
1855 7 Ave. Housing Dev. Fund v. Wigfall, New York County Landlord-Tenant Court, Index No. 81069/2010 In this residential landlord-tenant case, a co-op board was successfully able to terminate a tenant-shareholder’s proprietary lease based upon objectionable conduct in violation of the House Rules and  the Proprietary Lease that created a nuisance and an unhealthy and unsafe environment for residents and guests.  The trial testimony established that the co-op had documented 744 separate incidents of objectionable conduct,…
Kaplan v. Park South Tenant Corp., New York County Supreme Court, Index No. 157669/2013 While the business judgment rule often protects a decision by a co-op board from legal challenge, there are times when it does not.  As a recent decision by New York County Supreme Court Justice Arthur Engoron demonstrates, the Board’s business judgment cannot trump the tenant-shareholder’s proprietary lease. the proprietary lease trumps the business judgment rule Kaplan began with the tenant-shareholder’s request…