The Appellate Division, Second Department, in Moore v. Trent, has upheld a decision in a contested attorney-fee case finding that the attorney’s agreement failed to provide for a contingency fee under the plain language of the agreement. Esseks, Hefter & Angel, LLP represented the clients contesting the attorney’s claim to a contingency fee.
EHA is pleased to announce that Southampton attorney, Martin R. Gilmartin, Esq., has joined the firm as Counsel. As a member of the Southampton legal community since 1975 and an attorney for over 40 years, Mr. Gilmartin brings to the firm his vast experience in real estate, estate planning, and general practice. Mr. Gilmartin will continue working from his prior office at 25 Bowden Square until January, when he will begin working from EHA’s new Southampton office. His full bio is available here.
EHA has opened a new satellite office in the heart of Southampton Village, at 30 Main Street. In addition to its main office in Riverhead, and its other satellite office in East Hampton Village, at 34 Pantigo Road, EHA’s new Southampton office will offer additional flexibility and convenience for holding conferences, closings, and client meetings.
EHA congratulates its partner, Anthony Pasca, for his selection on the 2014 New York Metro Super Lawyers list. Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, a Thomson Reuters business, makes its annual selections using a process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The 2014 New York Metro Super Lawyers list is published in Super Lawyers Magazine and in city and regional magazines and newspapers across the country.
The Supreme Court, Suffolk County (Hon. Peter H. Mayer) has granted a seller summary judgment on a downpayment and specific performance dispute in Friedman v. Kriss, Index No. 13-9326. The action involved competing claims by the sellers and buyers: the sellers claimed that the buyers breached the contract by failing to make a required installment payment, and the buyers claimed that the sellers breached by failing to deliver an updated “certificate of occupancy” a year prior to the scheduled closing. The court agreed with the sellers and found that the buyer’s duty to make the installment payment was “time of the essence,” whereas any requirement of the sellers to deliver a certificate of occupancy was not. The sellers were therefore awarded summary judgment on their claim to retain the downpayment, and the buyers’ claim for specific performance was dismissed. EHA represented the sellers in the action.
The Supreme Court, Suffolk County has upheld a zoning board’s decision granting a variance to allow the replacement of a nonconforming guest house in Wambold v. Village of Southampton ZBA, Index No. 13-21238 (Hon. Arthur G. Pitts). The case involved a recurring but often misunderstood issue: is a second dwelling on a residential property a nonconforming use (which would require a use variance to authorize its expansion) or a nonconforming structure with a conforming use (which would only require an area variance)? The zoning board found the latter, and the Supreme Court, following a line of cases in New York on the issue, agreed. The court explained that an “application for a variance to enlarge the floor area and density seeks an area variance because the essential use of the land is not being changed.” Esseks, Hefter & Angel, LLP represented the recipients of the variance in the unsuccessful lawsuit brought by an objecting neighbor.
EHA welcomes Christine Perrucci Smith to its real estate practice group. Christine joins EHA after having spent much of the past decade involved in residential real estate in a variety of roles. For more information about Christine, review her bio here.
During the 2014 spring semester, EHA’s Managing Partner, Stephen Angel, served as a Visiting Professor with the Faculty of Law at the University of Debrecen, in Debrecen, Hungary. Mr. Angel taught a two-week course on Constitutional Issues Before the U. S. Supreme Court, from April 8th to the 17th.
The Supreme Court, Suffolk County has rejected a prior lawyer’s claim of entitlement to a broad contingency fee because his retainer agreement did not clearly provide for an award under the circumstances, in Moore v. Trent, Suff. Index No. 12-35962. The attorney in question had an originally been retained by several neighbors, including the defendants, in connection with an anticipated action against the Town of Riverhead over flooding caused to their properties on Hortons Lane. The attorney’s retainer agreement contained some inconsistencies but included a provision for a 20% contingency on any “award” obtained. Rather than sue the town for damages, the defendants ended up negotiating a sale of their properties to the town, at which point the attorney claimed entitlement to 20% of the entire purchase price as his contingency fee. The Supreme Court (Hon. Andrew G. Tarantino, Jr.) rejected the claim for the contingency fee on the basis that the agreement did not clearly contemplate a contingency under the circumstances of a sale.
The New York courts have cleared the way for a Georgica homeowner to complete construction of a buried rock revetment in Trustees of the Town of East Hampton v. Zweig. The oceanfront property at issue had suffered severe damage in successive years as a result of Hurricane Irene and Superstorm Sandy. The homeowner secured her permits from the NYSDEC and the Village of East Hampton and began construction in November, 2013. The project was halted, however, when the Town Trustees (a distinct body) claimed that they owned the beachfront land in question and brought an action to stop the revetment from going forward. After several months of motions and hearings, the Supreme Court, Suffolk County (Hon. Andrew G. Tarantino, Jr.) issued an order on March 3, 2014 (Suffolk Co. Index No. 13-29760) denying the Trustees’ request for an injunction to stop construction. When the Trustees took an immediate appeal for an injunction to the Appellate Division, Second Department, that court denied the request on March 12, 2014, clearing the way for the homeowner to complete the project prior to “piping plover” season. [Note: The revetment was, in fact, subsequently completed and covered with a restored dune.]