Hat-tip to the CL&P blog, the Federal Reserve has finally approved a rule curbing abusive overdraft fees. Starting July 1, 2010, banks will no longer be allowed to charge overdraft fees for ATM or one-time debit/credit transactions. You can read the whole rule, with commentary, here, or the cliff-notes version here.
RELATED POSTS:
* US Supreme Court Signals Shift In Federal Pre-Emption
* Bank of America Settles NSF Fee Class-Action
* June 27, 2008, "Week In Review," (the Federal Reserve is now considering a rule to curb abusive overdraft fees by banks).
* May 7, 2008, "Debit Cards and Overdraft Protection: The US Allows Banks To Steal 10 Billion Dollars Per Year From The Poor."
* August 31, 2007, "The UK Takes Steps to Curb Illegal Overdraft Fees, But US Efforts Have Not Been So Well Received."
Thursday, November 12, 2009
Monday, November 9, 2009
Construction Injury Trial On The One- Or Two- Family Dwelling Issue
I just finished a trial in Queens. It was a construction accident case, and the issue was whether a property consisted of a one- or two-family dwelling.
Under New York's construction site safety laws, specifically Labor Law 240(1) and 241(6), owners and general contractors are jointly responsible for certain types of construction accidents. This rule does not apply, however, to owners of one- or two-family dwellings who do not direct or control the work.
In this case, my client had fallen through an unprotected floor opening and was severely injured. The general contractor did not have proper insurance, and had gone out of business (leaving no assets to go after). The only viable defendants were the property owners, a retired couple.
The owners had torn down a one-family ranch and were building two two-story houses on the lot. They had not yet received a certificate of occupancy, but the plans and permits listed the structures as two one-family houses. Each house was initially supposed to have five bedrooms, but the plans were later changed (after the complaint was served) so that each house had three bedrooms. One was supposed to have two full and two half baths; the other was supposed to have one full and three half baths.
In those houses, the owners claimed that they would reside in one; their oldest son (42 years old, who paid approximately half of the construction costs) would become the owner of other and live there with his wife and two kids; and the two other adult sons would rent rooms from either their parents or older brother. There was no set "rent," but the brothers (in their 30's, both recently laid off) would pay what they could afford. My client was injured in the house that the owners claimed they intended to occupy.
We suspected that the owners either planned to sell the property for a profit, or have additional tenants, but they flatly denied it during both their depositions and at trial.
As part of the project, the parents established a home owners association creating various easements over the lots after they are formally divided. The home-owners association by-laws contemplated tenants on the property, sale of the property, and possibly building a third house or buying another adjascent house in the future.
This case raised an unsettled issue of New York law: was this purported family compound a one- or two-family dwelling?
There are several cases from the New York Court Of Appeals addressing the one- or two-family dwelling exception. Under these cases, the issue depends on the "site and purpose of the work." Stejskal v Simons; Khela v. Neiger). Where the construction project involves multiple structures with "arguably unifying features," the intended occupancy of the structures can be combined. (Mandelos v. Karavasidis). The one- or two-family dwelling exception is an affirmative defense, and the defendant has the burden of proof. (Van Amerogen v Donnini).
In addition to intended occupancy, there was also the issue of commercial use. The homeowner's exemption applies where the project is "undertaken solely in connection with... residential use, even if the construction "may have fortuitously affected another area of the property that was used for commercial activities." (Cannon v. Putnam). The exception does not apply, however, if the one- or two-family dwelling is used "solely and exclusively" for a commercial purpose (such as preparation for rental or sale). A property can be consider "solely and exclusively" commercial even if it is also the owner's primary residence. (Lombardi v. Stout; Van Amerogen). The Court of Appeals has not announced a rule for situations where the distinction between commercial and residential use is a matter of degree.
Although it was a thorny issue, the trial seemed to be going in my favor. The property owners were hostile during cross-examination, and were caught making several misrepresentations. For example, the husband had claimed during his deposition that all three of his sons were single and lived at home; at trial we heard that the oldest son had been married for ten years and lived on hid own. The wife authenticated blueprints on direct, laying a well-rehearsed foundation; on cross, however, she admitted that she had only seen them once several years ago and had no idea what she was looking at. She also equivocated about whether the basement was divided into seperate rooms, and where the younger sons were going to live.
As the trial continued, the defendants moved off from their nuisance-value offer. After significant discussion (and my firm's managing partner coming in to close the deal), we agreed to a high-low settlement: agreeing not to go after the defendants' individual property if we won in excess of the insurance policy, and guaranteeing our client a not-insignificant amount if we lost. As part of the high-low, both sides waived their right to appeal.
Prior to closing arguments, both sides moved for a directed verdict. In addition to the Court of Appeals cases above and others, I relied on a recent case from the Third Department, Nudi v. Schmidt, which found that renting to an adult child can be considered a commercial purpose. Defendants relied largely on Baez v. Cow Bay Construction, a 2003 Second Department case finding that the homeowner's exception applied where a family had torn down their old house, built two one-family homes for the family to live in, and put the properties in a corporate name but insisted that they intended to live there.
Before closing arguments, both sides moved for directed verdicts, and the court dismissed the case as a matter of law. We knew it was a possibility, but it was extremely disappointing. I felt we had a solid argument that: first, the anticipated occupants -- two couples and two grown men -- counted as more than two families; and, second, the occupants, although related, had a business arrangement that made the construction predominantly commercial.
Was the judge right?
RELATED POSTS
- Construction Accident Attorney[Violations Of The Industrial Code]
- Construction Accident Attorney [Falling Workers And Objects]
- One- Or Two- Family Dwelling Exception
- Out Of Possession Landlords Are Still Responsible For Construction Accidents
- Court Of Appeals Clarifies That Construction Safety Laws Apply To "Cleaning" Activities Even When Not Related To Construction
Under New York's construction site safety laws, specifically Labor Law 240(1) and 241(6), owners and general contractors are jointly responsible for certain types of construction accidents. This rule does not apply, however, to owners of one- or two-family dwellings who do not direct or control the work.
In this case, my client had fallen through an unprotected floor opening and was severely injured. The general contractor did not have proper insurance, and had gone out of business (leaving no assets to go after). The only viable defendants were the property owners, a retired couple.
The owners had torn down a one-family ranch and were building two two-story houses on the lot. They had not yet received a certificate of occupancy, but the plans and permits listed the structures as two one-family houses. Each house was initially supposed to have five bedrooms, but the plans were later changed (after the complaint was served) so that each house had three bedrooms. One was supposed to have two full and two half baths; the other was supposed to have one full and three half baths.
In those houses, the owners claimed that they would reside in one; their oldest son (42 years old, who paid approximately half of the construction costs) would become the owner of other and live there with his wife and two kids; and the two other adult sons would rent rooms from either their parents or older brother. There was no set "rent," but the brothers (in their 30's, both recently laid off) would pay what they could afford. My client was injured in the house that the owners claimed they intended to occupy.
We suspected that the owners either planned to sell the property for a profit, or have additional tenants, but they flatly denied it during both their depositions and at trial.
As part of the project, the parents established a home owners association creating various easements over the lots after they are formally divided. The home-owners association by-laws contemplated tenants on the property, sale of the property, and possibly building a third house or buying another adjascent house in the future.
This case raised an unsettled issue of New York law: was this purported family compound a one- or two-family dwelling?
There are several cases from the New York Court Of Appeals addressing the one- or two-family dwelling exception. Under these cases, the issue depends on the "site and purpose of the work." Stejskal v Simons; Khela v. Neiger). Where the construction project involves multiple structures with "arguably unifying features," the intended occupancy of the structures can be combined. (Mandelos v. Karavasidis). The one- or two-family dwelling exception is an affirmative defense, and the defendant has the burden of proof. (Van Amerogen v Donnini).
In addition to intended occupancy, there was also the issue of commercial use. The homeowner's exemption applies where the project is "undertaken solely in connection with... residential use, even if the construction "may have fortuitously affected another area of the property that was used for commercial activities." (Cannon v. Putnam). The exception does not apply, however, if the one- or two-family dwelling is used "solely and exclusively" for a commercial purpose (such as preparation for rental or sale). A property can be consider "solely and exclusively" commercial even if it is also the owner's primary residence. (Lombardi v. Stout; Van Amerogen). The Court of Appeals has not announced a rule for situations where the distinction between commercial and residential use is a matter of degree.
Although it was a thorny issue, the trial seemed to be going in my favor. The property owners were hostile during cross-examination, and were caught making several misrepresentations. For example, the husband had claimed during his deposition that all three of his sons were single and lived at home; at trial we heard that the oldest son had been married for ten years and lived on hid own. The wife authenticated blueprints on direct, laying a well-rehearsed foundation; on cross, however, she admitted that she had only seen them once several years ago and had no idea what she was looking at. She also equivocated about whether the basement was divided into seperate rooms, and where the younger sons were going to live.
As the trial continued, the defendants moved off from their nuisance-value offer. After significant discussion (and my firm's managing partner coming in to close the deal), we agreed to a high-low settlement: agreeing not to go after the defendants' individual property if we won in excess of the insurance policy, and guaranteeing our client a not-insignificant amount if we lost. As part of the high-low, both sides waived their right to appeal.
Prior to closing arguments, both sides moved for a directed verdict. In addition to the Court of Appeals cases above and others, I relied on a recent case from the Third Department, Nudi v. Schmidt, which found that renting to an adult child can be considered a commercial purpose. Defendants relied largely on Baez v. Cow Bay Construction, a 2003 Second Department case finding that the homeowner's exception applied where a family had torn down their old house, built two one-family homes for the family to live in, and put the properties in a corporate name but insisted that they intended to live there.
Before closing arguments, both sides moved for directed verdicts, and the court dismissed the case as a matter of law. We knew it was a possibility, but it was extremely disappointing. I felt we had a solid argument that: first, the anticipated occupants -- two couples and two grown men -- counted as more than two families; and, second, the occupants, although related, had a business arrangement that made the construction predominantly commercial.
Was the judge right?
RELATED POSTS
- Construction Accident Attorney[Violations Of The Industrial Code]
- Construction Accident Attorney [Falling Workers And Objects]
- One- Or Two- Family Dwelling Exception
- Out Of Possession Landlords Are Still Responsible For Construction Accidents
- Court Of Appeals Clarifies That Construction Safety Laws Apply To "Cleaning" Activities Even When Not Related To Construction
Monday, October 12, 2009
Saturday, September 5, 2009
Should I file a Lawsuit? Should I Contact A Personal Injury Lawyer?
Deciding whether to file a lawsuit is a decision that must be based upon each person's individual facts and circumstances. Making an informed decision, however, is difficult without understanding what is involved in the legal process. In this post, I have tried to outline some of the factors to be considered in deciding whether to pursue a lawsuit.
If you are considering filing a lawsuit, and are looking for a personal injury lawyer, particularly a construction accident lawyer, please feel free to contact me. I personally handle matters throughout lower New York State, especially on Long Island (both Nassau and Suffolk County) and in New York City, and can also help you find a quality lawyer in other regions.
SHOULD I FILE A LAWSUIT?
Pro:
The main motivation for filing a civil suit is to receive financial compensation. Even though money cannot replace what you've lost, it can make your life more comfortable. Money received from a lawsuit can pay for education, medical expenses and devices, food, shelter, and transportation. It cannot make everything better, but it can alleviate financial problems that may make things worse. It is a not a lottery, or a get-rich quick scheme. When someone receives money in a lawsuit, it is because they are entitled by law to receive compensation for an injury they suffered that was someone else's fault. Usually, the compensation is provided by an insurance company, which is in the business of issuing policies to compensate injury victims and makes a profit doing so.
A lawsuit gives you an opportunity to tell your story. For some people, their case may become precedent, and can become an important part of a little niche of history. My grandfather, for example, died of asbestos poisoning. Kreppein v. Celotex later became a leading case in products liability litigation, and there is a sense of pride in seeing my family name in case law.
Lawsuits can also promote positive change. The threat of litigation is a substantial motivating factor in many institutional safety practices. Contractors, property owners, manufacturers, and pharmaceutical companies, among others, are kept from cutting corners due partly to the threat of liability.
Con:
A lawsuit is not a substitute for, or a means towards, closure. The legal process will not make you feel better. It is not a vindication of your struggles, there will be no clapping or cheering, it will not put things right in the world, and it will not make people care.
In fact, going through a lawsuit will likely involve an invasion of your privacy. It will make you re-hash painful memories in a way that will not be comforting. And, for years, it will keep you from closing a painful chapter in your life.
In the end, you will not say "it was all worth it." The legal process may have been worth the struggle, but whatever amount of money you receive will not make up for the injuries you suffer. By it's nature, it can't. If you don't really have a serious injury, you can't fake it. And if you wake up in pain, you are missing a limb, or someone you love is dead, your bank account balance will not make up for it.
CONCLUSION
In the end, no-one but you can decide whether you should pursue a lawsuit. It is rarely a situation where you contact a lawyer and then, without much further involvement, collect payment for your injuries. It is also rare, however, that -- when everything is over -- someone with a legitimate claim regrets having filed a suit. If you are searching for a construction accident attorney or a general personal injury attorney, please feel free to contact me to discuss your claim using either by e-mail or the form below. I would be happy to provide you with an objective, individualized evaluation.
If you are considering filing a lawsuit, and are looking for a personal injury lawyer, particularly a construction accident lawyer, please feel free to contact me. I personally handle matters throughout lower New York State, especially on Long Island (both Nassau and Suffolk County) and in New York City, and can also help you find a quality lawyer in other regions.
SHOULD I FILE A LAWSUIT?
Pro:
The main motivation for filing a civil suit is to receive financial compensation. Even though money cannot replace what you've lost, it can make your life more comfortable. Money received from a lawsuit can pay for education, medical expenses and devices, food, shelter, and transportation. It cannot make everything better, but it can alleviate financial problems that may make things worse. It is a not a lottery, or a get-rich quick scheme. When someone receives money in a lawsuit, it is because they are entitled by law to receive compensation for an injury they suffered that was someone else's fault. Usually, the compensation is provided by an insurance company, which is in the business of issuing policies to compensate injury victims and makes a profit doing so.
A lawsuit gives you an opportunity to tell your story. For some people, their case may become precedent, and can become an important part of a little niche of history. My grandfather, for example, died of asbestos poisoning. Kreppein v. Celotex later became a leading case in products liability litigation, and there is a sense of pride in seeing my family name in case law.
Lawsuits can also promote positive change. The threat of litigation is a substantial motivating factor in many institutional safety practices. Contractors, property owners, manufacturers, and pharmaceutical companies, among others, are kept from cutting corners due partly to the threat of liability.
Con:
A lawsuit is not a substitute for, or a means towards, closure. The legal process will not make you feel better. It is not a vindication of your struggles, there will be no clapping or cheering, it will not put things right in the world, and it will not make people care.
In fact, going through a lawsuit will likely involve an invasion of your privacy. It will make you re-hash painful memories in a way that will not be comforting. And, for years, it will keep you from closing a painful chapter in your life.
In the end, you will not say "it was all worth it." The legal process may have been worth the struggle, but whatever amount of money you receive will not make up for the injuries you suffer. By it's nature, it can't. If you don't really have a serious injury, you can't fake it. And if you wake up in pain, you are missing a limb, or someone you love is dead, your bank account balance will not make up for it.
CONCLUSION
In the end, no-one but you can decide whether you should pursue a lawsuit. It is rarely a situation where you contact a lawyer and then, without much further involvement, collect payment for your injuries. It is also rare, however, that -- when everything is over -- someone with a legitimate claim regrets having filed a suit. If you are searching for a construction accident attorney or a general personal injury attorney, please feel free to contact me to discuss your claim using either by e-mail or the form below. I would be happy to provide you with an objective, individualized evaluation.
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