Under common law, an attorney was originally only entitled to a lien upon the judgment but the scope of the charging lien was extended by statute [Judiciary Law §475] to give the attorney a lien upon the client's cause of action as well. The lien comes into existence, without notice or filing, upon commencement of the action or proceeding. See, Matter of Heinsheimer, 241 NY 361 .... (more)
The Fee Dispute Resolution Program (22 NYCRR §137) was created to mandate arbitration of fee disputes between attorneys and their former clients in civil matters. It has been subject to differing opinions among different departments leading to divergent opinions on the issue of whether or not an arbitration is necessary when the former client fails to object the validity of the underlying fee.... (more)
Sometimes, an attorney is discharged by his client without cause, and with a substantial amount of money due to the attorney from the client. Aside from the attorney bringing a plenary action on the debt owed by the client, the attorney may seek alternative measures through the application of liens upon the client’s cause of action or file, through the employment of either a “charging” lien or “retaining” lien.... (more)
In litigation, there may come a time when, without cause, an attorney withdraws from the case or the client discharges the attorney. At that instance, the attorney is wondering how he is going to get paid the remainder of his legal fee from his client. He may also be wondering what mechanisms may be used to get paid.... (more)
Americans rely on easy credit in order to fund their lifestyles. We are lured by good credit terms, the desire to buy a home, and the need to pay for things like education and home improvements. We do our best to save for our future, putting money into Individual Retirement Accounts (IRAs) or 401Ks, money that is not to be used until retirement. When we have children we consider their futures and the ever increasing costs of college, and we want to save for our children’s future education by opening Education IRAs or 529 Savings Plans.... (more)
At some point in the collection process, the debtor may be either forced to settle the debt or voluntarily settle the debt with the creditor. The debtor might not have sufficient assets or income to pay off the entire debt at once.
Arrangements with the debtor may be made pre-suit, post-filing/pre-judgment, and post-judgment. The agreement signed will include several key provisions.... (more)
Beginning on January 1, 2009, New York State enacted new measures relating to the restraint of debtors’ bank accounts, through the enactment of the Exempt Income Protection Act (“Act”).
The Act materially changes the process of restraints on debtors’ bank accounts, and the steps that each party to the process must take. The Act imposes new requirements on (a) the bank, to identify and analyze the source(s) of income and deposits into an account; (b) the judgment creditor’s attorney, to issue new exemption notices and forms, and appropriately address claimed exemptions by the debtor; and (c) the debtor, to timely raise any exemption claims upon restraint of an account. Since this process is “brand new” to New York law, the manners in which all of these parties, as well as the court system address the process will evolve from practice and procedure.... (more)
The Fair Debt Collection Practices Act, as codified in 15 USC §1692, is a federal statute which governs the practices of "debt collectors." Attorneys engaged in the general practice of law, and debt collection in particular should be mindful of the rules of this federal law.... (more)
Dunkin Donuts may want us to believe that “America runs on Dunkin,” but the truth is, America runs on its service industry. In our everyday lives there are people who provide a service to us; whether it is waiting on us in a restaurant, a physician or health care worker taking care of us, or a contractor working on our homes. America’s service industry is a vital part of our economy and everyday lives.... (more)
A parent is not supposed to outlive his/her children. This is a tragic truth that can only be enhanced when determining that child's estate. Due to the statute EPTL 3-1.1, a child under 18 dies intestate, meaning without a will.(1) The laws of intestacy clearly state that in the event the decedent is not married and has no children, his estate shall be inherited by the decedent's parents. But what happens when one of those parents has not been there for the child? Either due to divorce or other circumstances the child and parent do not have a relationship; is that parent still entitled to collect his distributive share of the child's estate?... (more)
Pursuant to binding Court of Appeals precedents, as well as Appellate Division, First and Second Department precedents, commercial tenants/sublessors are responsible entities for purposes of Labor Law Section 240(1).... (more)
Binding precedents from all four Departments of the Appellate Division, including Second Department precedents hold that where it is uncontested that the plaintiff was injured as a result of falling from a ladder, and “at the time of his fall, there were no safety belts, nets, or other safety devices in the area, and he was not equipped with any safety devices. Under the circumstances, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action pursuant to Labor Law § 240(1)”.... (more)
In litigation, parties may bring motions for dismissal of the action or affirmative defenses, or move for ‘summary judgment’ (that there are no genuine issues of fact and the judge can decide the case on the law alone). Generally, the moving party puts forward all of its proof in support of its motion, including any affidavits, documents or photographs. The opposing party then puts forward all of its proof. At that point, it is inappropriate for either party to provide additional facts in reply papers, as courts want to give each party an opportunity to properly respond to the facts alleged in the original papers. It would otherwise be unfair.... (more)
Civil Practice Law and Rules [CPLR] Section 3025 authorizes the amendment of a pleading in an action, including the Complaint of the plaintiff. According to subsection (b) of CPLR 3025, leave of court is needed to amend a pleading once issue has joined; however, it should be freely given to a party.
New York courts have held that, in the absence of prejudice to the defendant, the amendment of a pleading should be freely granted by a court. It is also well established law that a motion to amend a pleading should be freely given absent a showing by an opposing party of surprise or prejudice.... (more)
Binding precedents of the Court of Appeals, as well as the Appellate Division, First and Second Department hold that a worker assigned by his employer to perform repairs to a damaged or inoperable structure are a covered activity for purposes of the Labor Law, not merely routine maintenance.... (more)
In every type of lawsuit, a plaintiff (commonly known as the person bringing the case) must make certain allegations of fact against a defendant (the party being sued) and tie those allegations of fact to violations of specific laws or rules. Those violations could be based upon a particular statute or rule or section of law, or common law generally (some times the two overlap as well). If the plaintiff cannot prove that the defendant committed an “actionable” wrong, then the lawsuit will be dismissed by the court – either because there is a failure of proof or because the allegations of proof do not amount to a violation of law as interpreted by the court.... (more)
In the recent decision of Dombrowski v. Bulson, 2012 NY Slip Op. 04203 [May 31, 2012], the New York State Court of Appeals dealt with an open issue in the area of legal malpractice, namely: whether a former client may recover nonpecuniary damages in a law suit brought against his attorney for legal malpractice arising from the client’s alleged wrongful incarceration....(more)
The term “statute of limitations” refers to the period of time in which a plaintiff may bring a lawsuit against a defendant for a claim. Different types of cases are governed by different statute of limitations period (for instance, six years for contract actions in New York, three years for tort actions in New York). The effect of the statute of limitations is that a plaintiff bringing a lawsuit after that period of time has expired is barred from bringing it, and the lawsuit will be dismissed as untimely.... (more)
(From Law Currents, Spring 2008)
In legal matters, there is an attorney-client relationship from the moment that the attorney is consulted by the client until the matter concludes. If, during the term of this relationship, the attorney was negligent or commits malpractice in the matter, the client may have a claim against the attorney for legal malpractice. Sometimes, the malpractice is committed at the early stages of litigation and not at the conclusion; for instance, an action may have started in Year 1, malpractice was committed in Year 2, and the action concludes in Year 6. The question then becomes whether or not the client may pursue a claim against the attorney for the malpractice committed in Year 2, when the statute of limitations period may have already passed.... (more)
The New York State Court of Appeals decided an issue of first impression in New York State concerning an issue that arises in legal malpractice cases. In Grace v. Law, [October 21, 2014], the Court had to decide whether a client's failure to pursue an appeal in the original, underlying lawsuit (which failed) bars him from pursuing a legal malpractice case against the attorney who lost the case....(more)
There is a legal concept in personal injury law called "proximate cause." The big question in holding someone liable for the injuries of another is: "Was the defendant’s action the proximate cause of the injury sustained by the plaintiff?" In other words, was it the defendant’s fault or not.... (more)
When a former client sues his attorney for legal malpractice, the defendant-attorney/law firm will almost invariably put forward, as part of its defense of the law suit, the Affirmative Defense of Statute of Limitations. In New York State, the period in which an attorney may be sued (whether for a tort [civil wrong] or breach of contract) is generally three (3) years from the date of malpractice. If the client does not sue the attorney/law firm within the applicable Statute of Limitations period, then the case is “time barred” and may be dismissed as having been filed too late.... (more)
(From Law Currents, Winter 2011)
The Long Island Railroad (LIRR) leased one of its old rail yards in Queens to a recycling company. One of the recycling company’s employees was working the late shift on a rainy evening in 2003. That rainy night, he was assigned the task of welding on a portion of the metal fence surrounding the yard with an acetylene torch. He got up on a ladder, climbed up several rungs, and started to weld. At that point, the injured worker got a shock from the welding equipment. The ladder then shifted in the mud and he fell to the ground, suffering severe injuries. Since that incident, he was unable to work, having become disabled, and having had several surgeries to his back and knee....(more)
In a recent case, in which Richard A. Klass, Your Court Street Lawyer, represented one of three owners of real property asked the trial judge to grant ‘summary judgment’ against the other owners, granting his motion to partition and sell the real property at auction. In support of the motion, it was requested that the court grant partition and sale, in accordance with Real Property Actions and Proceedings Law [RPAPL] Article 9.... (more)
As a buyer, what happens when you find the perfect house, on the perfect street and enter into a contract of sale. Then when you try to perform your obligations under the contract, the seller stands in your way. Then after you file a Lis Pendens (Notice of Pendency) and commence litigation to force the seller to sell you the property (also known as specific performance), you learn there was another buyer who preceded you and also did not close. What are your rights and remedies?.... (more)
A defendant/mortgagor who prevails in the successful defense of a mortgage foreclosure proceeding may be entitled to recover his reasonable attorney's fees and expenses under Real Property Law §282, which provides as follows.... (more)
The doctrine of “equitable estoppel” was applied in a recent case litigated in the Commercial Division of the Kings County Supreme Court. In deciding that a mortgagee was estopped from collecting additional moneys from the mortgagor/cooperative corporation, Justice Carolyn Demarest relied upon the long-standing principle that the courts will not allow a party to “lull” another into inactivity to its detriment. In affirming the Decision and Order of Justice Demarest, the Appellate Division, Second Department found that summary judgment was properly granted on the basis of equitable estoppel.... (more)
When a tenant enters into a lease, they agree to pay all rent sums and in some cases additional rent as they become due and owing. When a tenant defaults on a lease, New York law does not require a landlord to mitigate their damages if they elect not to re-let the space, and the tenant remains liable for unpaid rent throughout the duration of the lease term.... (more)
In Real Property Actions and Proceedings Law [RPAPL] §1304, a pre-commencement notice to a borrower-homeowner is required to be served by registered or certified mail and also by first-class mail at least ninety days prior to commencement of the foreclosure action. Further.... (more)
See also, LawCURRENTS back issues for numerous relevant articles and cases.
Articles in Print by Richard Klass
Article on “Client cannot sue his lawyer for nonpecuniary damages,” NYSBA One on One Journal, Summer 2012.
Article on “New York’s Adherence to Zubulake v. UBS Warburg,” NYSBA One on One Journal, Spring 2012.
Article on “Getting it Done: The Importance of Entering Timely Defaults,” Brooklyn Barrister, February 2008.
Article on “Insurance Needs for your Law Firm,” New York County Lawyer, January/February 2008.
Article on “Equitable Estoppel of a Mortgagee’s Claim,” New York State Bar Association – General Practice Section publication, Spring 2007.
Article on “Debt Counseling Requirement under the New Bankruptcy Act,” Brooklyn Papers, June 2005.
Article on “The Impact of the Presumption of Abuse on the Dismissal of a Chapter 7 Case,” The National List of Attorneys, Volume 16, Issue 19, June 2005.
Article on “The Impact of the Increase in Court Filing Fees upon Debt Collection in New York,” The National List of Attorneys, Volume 16, Issue 16, August 2004.
Featured in “Fair Debt Collection: Show Me The Money,” Brooklyn Daily Eagle, June 25, 2003.
Article on “Attorney’s Guide to the Federal Fair Debt Collection Practices Act,” Brooklyn Barrister, June 2001.
Legal contributor to The Brooklyn Papers on employment law issue, “Heights Chef canned,” April 9, 2001.
Article on “New York CPLR [Civil Practice Law and Rules] Update,” Brooklyn Barrister, April 1998.
Columnist on “Court of Appeals Update,” Brooklyn Barrister.
...The current lay of the land in New York City, where the First Department holds sway, means lawyers must take careful approaches when considering how they might communicate with clients — especially unhappy clients — after the work at hand is done, according to Brooklyn-based attorney Richard A. Klass, who represents malpractice plaintiffs and defendants.
Transactional lawyers, for example, might want to foreclose advice on litigation or appeals at the outset, according to Klass, and they also may want to make it clear that no more advice will be forthcoming at the completion of an engagement in order to shield themselves.
"They should beef up both their hello letters and their goodbye letters," Klass said.
Maybe the security guards at Mario Batali‘s Eataly need to give peace a chance.
Yoko Ono‘s publicist is suing the Manhattan pasta emporium for at least $20 million after he was allegedly beaten up by bouncers, thrown through a glass window and then called a “p—–” and a “f—–.”
Kip Kouri, head of Tell All Your Friends PR, was trying to get a table at Eataly’s popular rooftop beer garden Birreria on July 17 when he was “violently assaulted by” 10 unnamed security guards, according to his Manhattan civil suit.
His attorney, Richard Klass, told The Post his client was at the Fifth Avenue eatery with his boyfriend, sister and stepmother and got into an argument with the hostess about his reservation....(more)
Kip Kouri claims he was ‘thrown’ through a plate glass window by bouncers who also made homophobic remarks. In a statement, restaurant spokeswoman Cristina Villa said Kouri was 'acting as a potential threat to others.'
Kip Kouri, founder of Tell All Your Friends PR, is one of the most familiar and well-liked faces on the New York indie-rock circuit, repping everyone from Yoko Ono to Les Savy Fav to Guided By Voices to white-hot duo Sylvan Esso.
But a recent visit to Eataly, Mario Batali's food emporium in New York's Gramercy Park, ended in a violent altercation with the wait staff, leaving Kouri in stitches after allegedly being thrown through a plate glass window by a security guard. Kouri declined public comment while he sought legal counsel, but clients like Frenchkiss Records' Syd Butler and Miniature Tigers began tweeting in Kouri's defense, suggesting the incident was a hate crime and that a security guard used homophobic slurs against Kouri....
...Kouri declined comment, but deferred to his lawyer Richard Klass, who responded to Billboard in a statement: "Mr. Kouri vehemently denies the allegations made in the statement of Eataly's representative. Mr. Kouri was at Eataly with his stepmother, sister and boyfriend, and a disagreement arose concerning the mishandling by Eataly of Mr. Kouri's reservation. Mr. Kouri proceeded to leave the store after being harassed by Eataly's staff, including being called homophobic slurs and enduring the staff's homophobic hand gestures at him.
"As Mr. Kouri was exiting," Klass continued, "three security guards became physical and began to push Mr. Kouri, his stepmother and sister, all the while calling him names. The security guards then tackled Mr. Kouri and threw him through a glass door, causing him to sustain serious injuries. Footage from Eataly's security cameras were reviewed by the New York City Police Department and the investigation of the matter is pending."
Klass presents award to Lew Tesser for service to
the New York State Bar Association
Current General Practice Section Chair Richard A. Klass presents award to Immediate Past Chair Lew Tesser for his service to the membership of the New York State Bar Association at the Executive Committee Meeting held on July 17, 2014, at the City Bar.
By Pete Brush Law360, New York
April 01, 2014, 6:35 PM ET
A hedge fund owner had six years — not three — to bring a deceit claim against Greenberg Traurig LLP and one of its well-known former attorneys over an allegedly bogus contract rider, New York's top court said Tuesday, a ruling experts say opens the way for more claims of courtroom trickery against lawyers.
The unanimous New York Court of Appeals reversed New York City's First Department and found that plaintiff James L. Melcher's claim against Greenberg Traurig and attorney Leslie D. Corwin, who recently jumped...
By Pete Brush Law360, New York
January 24, 2014, 8:09 PM ET
A New York appellate panel's rare move to revive a legal malpractice suit that had been summarily dismissed has triggered debate among malpractice lawyers, with some suggesting appellate judges may be pushing back when potentially viable damages claims against lawyers are tossed on a hair-trigger basis.
The decision, in Endless Ocean LLC v. Twomey Latham Shea Kelley Dubin & Quartararo LLP, saw a Brooklyn-based appeals panel put the kibosh on a trial judge's summary dismissal of the damages suit. The appeals court reasoned that the lawyer-defendants had not utterly refuted the allegations at the summary dismissal stage....
"...Most New York legal malpractice experts believe the state is a veritable killing zone for claims against lawyers, where judges tend to err on the side of the defense, according to Brooklyn-based lawyer Richard A. Klass, who represents both plaintiffs and defendants in legal malpractice cases.
"A lot of lawyers won't take legal malpractice cases on the plaintiff's side," Klass said. “Traditionally, New York is seen as less friendly to plaintiffs."...
...Still, Klass said, there might be other reasons to think legal malpractice jurisprudence is evolving slowly in favor of plaintiffs. For example, a recent New York Court of Appeals decision — Schneider v. Finmann — gave leave for fiduciaries to an estate to stand in the shoes of a dead person in bringing legal malpractice claims, he said.
Nevertheless, according to Klass, the tough “case within a case” standard is no danger of being disposed of anytime soon — grumbling about its application in court by plaintiff's lawyers notwithstanding — because to do so would likely expose lawyers to a tide of meritless litigation.
"If you had a poor case, and you also had a poor lawyer, it doesn't mean the lawyer should be liable for everything," Klass said....
By Barbara Ross
New York Daily News
Thursday, December 1, 2011
"Linda Salamon thought she won the real estate lottery last May when she bought a $400,000 one-bedroom co-op apartment on the lower East Side for $329,000 at a public auction...."
"...Salamon declined to discuss her battle, but her lawyer Richard Klass said that under state law, the co-op board cannot exercise its right of first refusal because the sale is not voluntary; it was forced by the lender.
"He also noted that Seward Park's board was notified of the auction and could have bid on the apartment when Salamon won the unit...."
March 28, 2007 -- Everything is kosher at Manhattan's popular Le Marais steakhouse, its owners insist. And they've filed a $10 million lawsuit to bar a former supervisor at the restaurant from saying otherwise.... (more)