New York Law Diary Blog

Published on: March 17, 2016

New York’s Right of Election

New York estate litigators Tilem & Associates can not only help you plan your estate, but can assist you if you are already involved in the situation where there is a dispute over what you will inherit either through a will contest or because your loved one died without a will, also called intestate.

So, you are married. You spend years with your spouse. You have your ups. You have your downs (but mostly, you have downs). Then, there comes a point when you decide that you are going to write your will and that you are going to disinherit your spouse and bequeath your assets to others. Unfortunately, or fortunately, depending on your position, New York State does not allow an individual to disinherit his or her spouse.

When someone dies with a will in New York, EPTL 5-3.1, allows the surviving spouse to collect certain assets, no matter who the will directs those assets be given to. The surviving spouse can collect cash or cash equivalents of up to $25,000. Moreover, the surviving spouse has the right to inherit one automobile (worth up to $25,000). (By the way, if the value of the car is greater than $25,000, the spouse can still keep the vehicle, but the difference in value will have to be paid to the estate.)

Published on: March 26, 2012

CONSTRUCTION ACCIDENTS – SCAFFOLDING (LABOR LAW § 240)

by Tilem & Associates

What many construction workers don’t realize is that New York laws offer them tremendous protections from work site injuries as well as excellent legal remedies should they be hurt on the job. One such area is the need for proper scaffolding. All contractors and owners involved in the alteration, demolition, cleaning, painting and other work on a building or structure must provide necessary scaffolding, hoists, ladders, stays, pulleys, braces, ropes and other items to ensure worker safety. Unless the building is a one or two family dwelling and the owners do not direct or control the work, the owners are just as responsible as the contractor for ensuring that proper scaffolding, hoists, etc are in place. (See NY Labor Law § 240 for the exact requirements and wording).

For example, if the owner of a one or two family home contracted with a roofing company to install a new roof and that owner had nothing to do with the actual job, he or she would have no responsibility to ensure to above mentioned safety devices were in place. However, if that same owner directed or controlled the work or the dwelling held three or more families, that owner is just as responsible as the contractor with regard to the above discussed safety devices (scaffolding, hoists, ropes, pulleys, braces, etc) (NY Labor Law § 240). Furthermore, unless they are involved in the direction and control of the work site, architects, engineers and landscapers are not responsible for the above mentioned safety devices such as scaffolding and cannot be held liable for the lack of such safety devices. (NY Labor Law § 240).

In particular, scaffolding must be provided. NY Labor Law § 240. In a future blog I will explain how contractors and owners are what are referred to as strictly liable for injuries caused by inadequate, non-existent or faulty scaffolding. As I will explain, you get hurt, the contractor and most often the owner are liable –period!

Published on: March 20, 2012

CHALLENGING NEW YORK AGENCY’S DENIAL OF A LICENSE RENEWAL APPLICATION UNDER ARTICLE 78 OF THE NEW CIVIL PROCEDURE LAW AND RULES

by Tilem & Associates

If you have been denied the renewal of a driver’s license, insurance adjuster’s license, workers’ compensation representative license, pistol permit, attorney license, medical license or any other type of license issued by a New York agency and you have exhausted all the administrative appeal procedures, you might then consider challenging the denial of your renewal application in the New York State Supreme Court pursuant to Article 78 of the New York Civil Practice Law and Rules. When challenging an agency’s denial of a license renewal application, the Supreme Court’s review is generally restricted to determining whether the agency’s decision not to re-new your particular license was arbitrary and capricious or an abuse of discretion [CPLR 7803(3)].

“The arbitrary or capricious test chiefly relates to whether a particular action should have been taken or is justified and whether the administrative action is without foundation in fact. Arbitrary action is without sound basis in reason and is generally taken without regard to the facts.” Pell v. Board of Education, 34 N.Y.2d 222, 231 (1974). “Under this standard, [the Court’s] inquiry is whether the administrative determination has a rational basis supported by fact.” Brown v. New York State Dep’t of Health, 235 A.D.2d 957, 958 (3rd Dept. 1997).

An “agency has an obligation to insure that the information relied upon is reliable and accurate.” Georgian Motel Corp. v. New York State Liquor Auth., 184 A.D.2d 853 (3rd Dept. 1992). In the Georgian Motel Corp. case, the Court annulled the suspension of a liquor license because it was based upon information contained in an Administrative Law Judge’s report the reliability of which the State Liquor Authority had not confirmed in anyway. The Court noted that “the material relied upon by the ALJ is devoid of information suggesting any indicia of reliability.” Id.

Before an agency can simply decide not to renew one’s license, they have to have some type of reliable evidence. The record must contain facts establishing some indicia of reliability. McIntosh v. Coughlin, 155 A.D.2d 762 (3rd Dept. 1989)(In reversing Department of Corrections determination, the court held that the evidence was so lacking in relevance and probative value that no reasonable mind could have accepted it to support a conclusion or ultimate fact). An administrative decision “will not be set aside by the courts unless it is unsupported by proof sufficient to satisfy a reasonable man, of all the facts necessary to be proved in order to authorize the determination.” Pell v. Board of Education, 34 N.Y.2d 222, 231 (1974).
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Published on: March 18, 2012

WELCOME TO THE NEW YORK LAW DIARY BLOG

by Tilem & Associates

Welcome to the opening blog of our newest blog, the New York Law Diary Blog. As a very active, high profile litigation law firm in New York we felt we had so much to tell our readers about that just did not fit with the content of our New York Criminal Attorney Blog or our Greenburgh Speeding Ticket Attorney Blog. So we decided it was time for a different blog where we do not have to be limited and rather can write about any interesting development here at the firm or in New York law or in New York courts without regard to the specific area of law.

The need for such a blog has really become clear to us recently. For example, when we won a large commercial, real estate trial in Brooklyn, the New York Law Journal ran the decision in a two page spread but we at the firm felt that we had no place to write about the case. That case was won on the issue of the Statute of Frauds an ancient doctrine that is codified in New York and requires that certain contracts must be in writing to be enforceable. In New York the Statute of Frauds is actually a law under the New York General Obligations 5-701. Clearly an issue that our readers need to be aware and a topic that we will cover in the future.

More recently, we won a commercial trial here in Westchester County Supreme Court, seeking enforcement of a promissory note signed by our client because evidence at the trial (and in discovery) revealed that the underlying debt was based upon usurious loans. Another ancient principle of law which is codified in New York Law under General Obligations Law 5-501and which prohibits the enforcement of usurious, or very high interest loans; another area of law which our readers must me familiar with.