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FYI: Public Hearings re Judge Lippman's Commission on Attorney Discipline

posted Jun 26, 2015, 5:08 AM by Pete Weinman   [ updated Jun 26, 2015, 5:19 AM by Lou Bara ]

Chief Judge Jonathan Lippman created the Commission on Statewide Attorney Discipline to conduct a comprehensive review of the state’s attorney disciplinary system to determine what is working well and what can work better, and offer recommendations to enhance the efficiency and effectiveness of New York’s attorney discipline process. In connection with its responsibility, the Commission will hold three public hearings to receive the views of interested individuals, organizations and entities.


The hearings will take place as follows:


  • July 28, 2015 11 a.m. to 1 p.m., New York State Court of Appeals, 20 Eagle Street, Albany, N.Y. 12207
  • Aug. 4, 2015 1 p.m. to 3 p.m., Erie County Ceremonial Courtroom, 92 Franklin Street, Buffalo, N.Y. 14202
  • Aug. 11, 2015 11 a.m. to 1 p.m., New York County Lawyers' Association, 14 Vesey Street, New York, 10007


Among the issues under consideration by the Commission are whether New York’s departmental-based system leads to regional disparities in the implementation of discipline; if conversion to a statewide system is desirable; the point at which disciplinary charges or findings should be publicly revealed; and how to achieve dispositions more quickly in an effort to provide much-needed closure to both clients and attorneys.


The Commission will consider both oral testimony and written submissions. All testimony is by invitation only. If you are interested in being invited to testify at the hearing, please send an e-mail to AttorneyDiscipline@nycourts.gov no later than 14 days in advance of the scheduled hearing at which you propose to testify. Proposed testimony should not exceed 10 minutes in length.


If requesting an invitation, please (1) identify yourself and your affiliation; (2) attach a prepared statement or a detailed outline of the proposed testimony, and specify which, if any, of the topics described above will be addressed, and; (3) indicate at which of the hearings you would like to deliver the testimony. In advance of the hearing, invitations to testify will be issued and will include an approximate time for each presenter's testimony. For those not invited to present oral testimony, the proposed testimony will be deemed a written submission for consideration by the Commission.


Persons unable to attend a hearing or interested in only making a written submission may submit their remarks by e-mail toAttorneyDiscipline@nycourts.gov at least seven days in advance of the hearing, or by mailing the submission to the Commission at:


Commission on Statewide Attorney Discipline

c/o The Honorable A. Gail Prudenti, Chief Administrative Judge

25 Beaver Street

Eleventh Floor

New York, N.Y. 10004-2310


Please note that any materials, submissions or statements provided to the Commission are subject to the provisions of the Freedom of Information Law and subject to publication by the Office of Court Administration.


For further information and updates, please visit the Commission’s webpage at www.nycourts.gov/attorneys/discipline/

Panelists sought for Contract Dispute Resolution Board (CDRB)

posted Jun 25, 2015, 9:54 AM by Pete Weinman   [ updated Jun 26, 2015, 5:24 AM by Lou Bara ]

Click HERE for a notice seeking applications for a place of the roster of Contract Dispute Resolution Board (CDRB) panelists. 

Come Celebrate the 2015 Gay Pride in the Staten Island Courts! 6/19/2015.

posted Jun 18, 2015, 7:42 AM by Pete Weinman

Click HERE for the flyer.

Good morning:


Just a reminder that you are invited to attend the Annual New York State Courts Gay/Straight Alliance event in Richmond County.  The event will be held on Friday, June 19, 2015 at 1:00 p.m.

 in my Courtroom located at 18 Richmond Terrace, Room 210.


Please R.S.V.P. to Jean of my Chambers if you have not done so already.


Thank you.


Honorable Judith N. McMahon

Administrative Judge of Richmond County




Jean M. Callan

Principal Secretary to

Honorable Judith N. McMahon

Administrative Judge

Supreme Court, Richmond County

18 Richmond Terrace

Staten Island, New York  10301

(718) 675-8630

Vincent J. Gallo, Esq.: In Defense of Title Closers.

posted Jun 17, 2015, 9:42 AM by Pete Weinman   [ updated Jun 17, 2015, 9:43 AM ]

June 16, 2015 

The new target is the Title Closer.  I will limit my discussion to only one aspect of the tasks undertaken by the Title Closer at a closing.  A Title Closer is entrusted with the task of obtaining mortgage payoff letter, and thereupon ensuring the accuracy of the mortgage payoff amount, calculating enough interest to ensure that the payoff amount is sufficient enough to satisfy the mortgage in full, establishing the last real estate taxes that were paid, establishing the last insurance premium that was paid, determining the amount still held in escrow that is to be refunded to the mortgagor once the mortgage is paid in full, and ensuring that these escrow funds are appropriately transmitted to the mortgagor since these monies belong to the mortgagor. The Title Closer is further entrusted with ensuring that the existing mortgage that is a cloud on title and of record with the Office of the County Clerk and/or Register is fully discharged of record, either directly with the Recorder’s Office or by transmittal to the Title Agency for recordation within the time frame established by law. The Title Closer is further entrusted with ensuring that the Satisfaction Piece is properly drafted and in precise form accurate and precise enough to ensure that it mirrors the mortgage that is of record to ensure that the mortgage will be fully discharged of record with no loose ends, at the risk of the mortgage remaining open of record and continuing to appear in that mortgagor’s credit report, to say the least.

At the closing, the Title Closer is entrusted with transmitting by over-night delivery the payment in full satisfactory to satisfy the mortgage in full, at the risk to the Title Closer of these funds being insufficient to satisfy the mortgage, in full, at the further risk of the Lender returning these funds back to the Title Agency as being insufficient to satisfy the mortgage, with the clock continuing to run on a per diem basis, at the risk to the Title Closer in having to go in pocket to make up the difference, so as to not cause the mortgage to satisfied late, causing a late fee to be imposed as against the mortgagor, as well as a “black mark” on the mortgagor’s credit report.

For this task, the Title Closer is paid what is referred to as a “pick up fee”.  This is a fee paid to the Title Closer, not for the ministerial task of placing the check in an over-night envelope, but instead to serve as a “quasi-insurer” to ensure that all of the above tasks are fully executed on, to full completion, at the risk of potentially costing the Title Closer a small fortune for failing to execute on all, and I do mean ALL, of these above tasks.

For this, in an effort to save a Seller the pickup fee charge of 275.00, more or less, the Department of Financial Services wants to eliminate this charge, thereby preventing a Seller who must pay off his or her mortgage at a closing from having to pay this charge.

That is admirable, if it did not, however, leave a void.  So who then will be entrusted with undertaking the entire above-described task through completion? Say, for argument’s sake, the Seller’s attorney is then entrusted with undertaking this task, and all of the risks attendant thereto. Will not the Seller’s attorney charge as an additional legal fee at least this amount that is the “going rate” charged by Title Closers? Attorneys, no doubt, are not expected to take on this additional risky task for free. So where is the savings? Add to that, what if the Seller’s attorney, in tribute to Nancy Reagan decides to “just say no”? Then who will take on this task? Again, the changes that are being advocated are commendable, except that these changes are being proposed with no formidable substituted procedure.  So while it may be easy to issue an edict as to what cannot be done, now the void still needs to be filled, and no solutions have been proposed as a reasonable substitute.

In an effort to find a substitute, perhaps tearing a page out of the Co-Op closing handbook, what if the Title Agency, in an effort to ensure that the open mortgage is satisfied, mimics the procedures in place for Co-Op closings, which is to require that the mortgage Lender whose mortgage is being satisfied physically requires that a representative of the payoff Lender personally attend the closing, with an original Satisfaction Piece in hand, in an exchange for a certified check or bank check for the entire mortgage payoff? That appears to be a formidable solution; except however, the “going rate” for such an attendee is in the area of $350.00, so where is the savings? Add to that the fact that if the closing extends beyond one hour, the attendee from the payoff Lender normally imposes a surcharge! Why not? He or she deserves to be paid for his or her time. What if the attendee, who is now another indispensable party to the closing, is running late, and the bank attorney seeks to impose an “over-time” charge? Add to that the fact that these additional charges, under the current and soon to be “new rules” will necessarily change the final figures on the Seller’s side of the HUD-1, and since these figures will need to be precise and exact, this will then necessarily cause the closing to have to be adjourned. That ought to make everyone happy. All of this seems to create a problem where, respectfully, there isn’t one. So while it may appear simple to issue an edict as to what cannot be done, that can only work if a formidable and workable alternative is clearly put out there that effectively and seamlessly fills the void.  Otherwise, as the adage so reads, “if it ain’t broke, don’t fix it”.

Upcoming changes to CLE formats available to newly admitted attorneys.

posted Jun 16, 2015, 6:28 AM by Pete Weinman



The New York State CLE Board has adopted the following changes, effective January 1, 2016, to the current requirement that newly admitted attorneys complete all of their CLE credits in the traditional live classroom setting or by fully interactive videoconference:


•     Law Practice Management and Areas of Professional Practice credit may be completed in any approved format, including nonparticipatory formats, such as on-demand audio or video, or live broadcast.


•     Ethics and Professionalism credit may be completed in the traditional live classroom setting; by fully interactive videoconference; or by simultaneous transmission with synchronous interactivity, such as webconference, or teleconference, where questions are allowed during the program.


•     There is no change in the requirement for Skills credit, which must be completed in the traditional live classroom setting or by fully interactive videoconference.


Thank you,

Sarah Dean


Sarah Dean Tompkins

Assistant Deputy Counsel

New York State CLE Board



Vincent Gallo, Esq., "For Informational Purposes Only" - Are You Kidding Me?

posted Jun 16, 2015, 5:48 AM by Pete Weinman   [ updated Jun 16, 2015, 5:49 AM ]

Click HERE for a downloadable copy of this story.

June 14, 2015

Most top rated sommeliers and connaisseurs de vin will readily tell you that you should drink no wine before its time. With this being duly noted, I thought back to a decision from 2007 that I had read which I found interesting, but I somehow felt that it just wasn’t time to “put it out there”. With all der sturm und drang currently emanating from the New York State Department of Financial Service’s Regulation 208, as it relates to title insurance, I am confident that now is the time to “pop the cork”, so to speak.

The case is entitled Paloubis v United General Title Insurance Company, 2007 NY Slip Op, 31278(U) May 4, 2007, Supreme Court, Queens County, Docket Number: 0016910/2006. In this case, the Insured was the successful bidder on a property at public auction known as 166-66 21st Avenue, Whitestone, NY (Block 5760 Lot 37) for $531,000. The Defendants, a Title Insurance Company and Title Agent, issued a Title Report resulting in a Title Insurance Policy for the Insured. The Insured alleged that the Defendants negligently misrepresented that the Certificate of Occupancy for the premises permitted residential use of the dwelling by two families, when, in fact, the Certificate of Occupancy for the premises authorized residential use of the dwelling by one family only. The Insured alleges that he relied upon this misrepresentation and on the Title Report and Title Policy when proceeding with the purchase and his then making renovations to convert the dwelling on the premises into a two-family dwelling. The Insured further alleges that he subsequently "discovered" that the property was not a "two-family dwelling, but a one-family dwelling," and was assessed fines for having renovated and used the premises as a two-family dwelling in violation of the zoning law. The Insured asserts causes of action for breach of contract, negligence and negligent misrepresentation, claiming that the Defendants wrongfully refused to pay them the amount of $424,800, pursuant to the Title Policy. The Defendants moved to dismiss the Complaint. The Defendant, Title Agent ordered the "Certificate of Occupancy" search from AIS (a Municipal Search Company), who failed to appear in this action.

The Court held that with respect to the claim by the Insured for breach of contract, "[a] policy of title insurance protects a property owner against loss by reason of defective titles and encumbrances and insur[es] the correctness of searches for all instruments, liens or charges affecting the title to such property' and that the liability of the title insurer to its insured is essentially based on contract law [and] is governed and limited by agreements, terms, conditions and provisions contained in the title insurance policy".

The Court held that the Owner’s Policy affords the Insured coverage for loss occasioned by a defect in title, including liens or encumbrances on the title, or unmarketability of the title. Contrary to the Insured’s argument, that the Certificate of Occupancy for the property restricts its use to one-family residential use does not render the title defective or unmarketable, or constitute an encumbrance on the title. "[M]arketability of title is concerned with impairments on title to a property, i.e., the right to unencumbered ownership and possession, not with legal public regulation of the use of the property". Because a Certificate of Occupancy and zoning laws regulate the manner in which the property can be used and does not impair title, the damages claimed by the Insured do not fall within the scope of the title insurance policy.

The Court went on to say that insofar as the Insured based his claims against the Defendants for negligence and negligent misrepresentation regarding the authorized use of the premises, he relied upon a copy of the "CERTIFICATE OF OCCUPANCY" report annexed to the Title Report which states that a Certificate of Occupancy had been issued on February 5, 1958 for a three-story, "TWO FAMILY DWELLING" and garage for the premises known as "166-66 21 AVENUE COUNTY: QUEENS BLOCK: 05760 LOT: 00037." In addition, he alleges that he relied upon the copy of the Certificate of Occupancy provided to him. The misrepresentation regarding the property's authorized use in the Certificate of Occupancy report was not made until after the Insured already had entered into the Contract of Sale. Thus, the Insured could not have relied upon the misrepresentation to his detriment in contracting to purchase the property. To the extent the Insured asserts that he relied upon the same misrepresentation when closing the transaction, the Contract of Sale itself made no representation regarding the existence of a Certificate of Occupancy for any dwelling. Thus, a reasonable and prudent person should have carefully read the copy of the Certificate of Occupancy supplied by the Title Agency if the type of authorized use was relevant to the decision to close the transaction. If the Insured had done so, he would have seen that on its face, the property address listed thereon, including the Block and Lot numbers, failed to match the one set forth in the Certificate of Occupancy report, or in the offer or Contract of Sale. Hence, he should have realized it may not have been the correct Certificate of Occupancy for the property he contracted to purchase. In view of the address discrepancy, and because the cover sheet to the annexed copy of the Certificate of Occupancy, (denominated "Municipal Department Searches and Street Report") specifically warned that any search reported was furnished "FOR INFORMATION PURPOSES ONLY," and would not be insured and that the company would not assume "any liability for the accuracy thereof," the Insured should have made an additional inquiry as to whether the representation in the Certificate of Occupancy report was, in fact, correct. Additionally, the Insured himself acknowledged in the offer and in the Contract of Sale that he had inspected the property, and, thus, should have been aware that the physical layout of the dwelling was inconsistent with a residential use by two families. At a minimum, the Insured should have double-checked to confirm the accuracy of the representation in the Certificate of Occupancy report, prior to commencing the renovation work. As the Insured concedes, the status of the Certificate of Occupancy issued for the correct premises was readily available as a matter of public record. The Certificate of Occupancy provided to the Insured stated it was for a property with the address "160-66 21st Ave.," "Block 5755 Lot 20" (as opposed to 166-66 21stAve., Block 5760, Lot 37). Under such circumstances, the Insured cannot be said to have justifiably relied upon the misrepresentation regarding the authorized use of the premises pursuant to the Certificate of Occupancy at the time he closed the transaction.

Lastly, the title insurance policy further provides: "EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses which arise by reason of: 1. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, regulating, prohibiting or relating to (I) the occupancy, use, or enjoyment of the land . . . or the effect of any violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy." Thus, the terms of the Contract sued upon specifically and unambiguously disclaim responsibility for the mistake related to the Certificate of Occupancy that forms the basis for this action. Hence, the Court dismissed the Complaint for failure to state a cause of action.

My comments: It appears, by all accounts, that the Court was pre-disposed in finding no liability against the Defendants for breach of contract, negligence or negligent misrepresentation. The Court held that the Owner’s Policy was a Contract as between the Insured and the Title Company, and it clearly detailed therein the terms of coverage which clearly excluded all matters relating to the Certificate of Occupancy. However, and in most instances, Municipal Department Searches, which include a Certificate of Occupancy Search and a copy of the Certificate of Occupancy, when available, are searches that a prospective Insured pays for, and while they may be ancillary to a Title Report and are not insured under the Owner’s Policy, they are, without question relied upon by a prospective Purchaser as being accurate when a proposed Insured is considering purchasing a property. Therefore, while the Title Company may contractually rely upon the “For Information Purposes Only” declaration, as an “out”, I find it highly implausible that a Title Agent, under a contract theory, quasi-contract theory, and/or a negligence theory, may rely upon an “oops, I’m sorry, what we stated is wrong, and while you may have relied upon the accuracy of what we provided to you in making a decision to close, we assume no responsibility for the accuracy or in-accuracy of the contents of what may be contained in the Searches” theory. There has to be some semblance of culpability when the contents of the Municipal Department Searches prove to be wrong. If the searches are fore-warned as being worthless, then why bother running the searches?

Collaterally, when a Lender receives a Title Report and examines the Municipal Department Searches, the Lender, no doubt, relies upon the accuracy of the searches. Having said that, since a Title Agent (or its Municipal Search Company), to say the least, should bear responsibility for the accuracy of these searches, the Title Agent, just the same, should be entitled to charge appropriately for these searches, and not only as a pass-through expense, since the Title Agent will find itself bearing the responsibility for the accuracy of these searches, at the very least, as a quasi-insurer as to their accuracy, at the risk of being held financially responsible for their in-accuracy.

I find this Decision to be a pre-disposed aberration, and Title Agencies should not downplay or under-estimate the value of these Municipal Department Searches, the accuracy of these searches, or the potentiality of liability of the Title Agent emanating from the in-accuracy of these searches.

NOTICE: Attorney Secure Passes/Online Renewal.

posted Jun 2, 2015, 6:05 AM by Pete Weinman   [ updated Jun 2, 2015, 11:59 AM by Lou Bara ]

A message from the Honorable Judith N. McMahon, Administrative Judge of the Thirteen Judicial District:

I am pleased to announce that effective July 1, NYS attorneys will be able to renew their Secure Pass ID cards online. Specific information and a brief Power Point instruction module on the new system will be posted to the UCS website in the next couple of weeks, but the highlights of the new system are:


-Attorneys may opt to renew their Secure Passes by logging onto www.nycourts.gov

-The renewal period for a Secure Pass will increase from 2 to 5 years

-The cost of an Attorney Secure Pass will increase from $25 to $50 (The replacement fee for a lost Attorney Secure Pass or non-attorney Secure Pass will also increase to $50)

-Attorneys will have to pick up their Secure Passes renewed online at the court house of their choice to verify identity


The online system is limited to renewals of Attorney Secure Passes. Attorneys who have never had a Secure Pass will have to apply in person at a courthouse as they do currently. Similarly, the new system will not be available to non-attorneys applying for a Secure Pass.

From an operational perspective, the new system has been designed to work with the protocols your staffs are already familiar with. The biggest impact the system should have is to significantly reduce the number of personal visits to your offices by attorneys.  Please note new hard copy application forms reflecting the new fee and renewal period will be distributed to the courts prior to July 1.

Please share this information with Public Safety staff and/or clerks’ offices that process Secure Pass applications in your jurisdiction.

We will alert you when additional information about Secure Pass Online is posted to the website, but if you have any questions or concerns, please feel free to contact me or email the Secure Pass Unit directly at SecurePass@nycourts.gov

Thank you all very much.

Protocol on Courthouse Procedures for Electronically Filed Cases

posted Jun 1, 2015, 10:33 AM by Lou Bara

Please be advised that effective June 19, 2015 the Richmond County Supreme court efile protocol will be in full force and effect.  Specifically regarding working copies of proposed orders.  The protocol reads that in efiled cases, working copies of all motions, orders to show cause and proposed orders must be submitted.  Failure to submit the working copy will prevent the proposed order/judgment from being reviewed.

Please see the attached Richmond County efiling protocol.  Any questions may be emailed to RichmondSupremeEfiling@nycourts.gov.

Gallo on "So, do you think I should have had an attorney represent me on my real estate purchase?"

posted Jun 1, 2015, 8:43 AM by Pete Weinman   [ updated Jun 11, 2015, 12:28 PM by Lou Bara ]

Kokoshka v. Banco Popular North America, U.S. Dist. Ct. (McNulty, U.S.D.J.)

(Filed March 2015).

Vincent J. Gallo, Esq,. is the Chair of the RCBA's Real Property Committee.

Ira Harkavy, Common‑Sense Judge, has died at the age of 84.

posted May 26, 2015, 12:30 PM by Pete Weinman   [ updated May 27, 2015, 6:31 AM by Lou Bara ]

In the annals of New York ju­risprudence, the penalty was considered unprecedented: Judge Ira B. Harkavy of Brook­lyn Civil Court sentenced a 77-­year‑old landlord to 15 days of house arrest in one of his own di­lapidated apartment buildings.


Judge Harkavy (pronounced HARK‑a‑vee), who died on Sun­day at 84, was known for com­mon‑sense solutions to juridical arcana.


In 1985, he dismissed charges against a Korean‑American greengrocer whose store had been looted after he left it un­locked upon being taken into cus­tody by the police after squab­bling with a customer. The judge said the dispute had apparently grown out of a misunderstanding and that the grocer's embarrass­ment was punishment enough.


In 2002, Judge Harkavy re­moved the operators of an adult home for the mentally ill in Brooklyn after a series of articles in The New York Times found ne­glect and malfeasance. In 2007, he ruled for the Lubavitch Orthodox Jewish movement's central or­ganization in a highly charged dispute with a messianic group over control of the movement's headquarters in Brooklyn.


But he was best known for his sentencing, on Dec. 7, 1987, of Morris Gross of Brighton Beach to 15 days in the six‑story build­ing Mr. Gross owned at 320 Ster­ling Street in what is now called Prospect‑Lefferts Gardens for failing to address more than 400 housing code violations.


Commenting on the case, Law­rence P. Cartelli, a lawyer for the New York City Department of Housing Preservation and Devel­opment, said, "This building is an example of the type of situation where a landlord buys a building and bleeds it."


Abraham Biderman, New York's housing commissioner at the time, said that no landlord in the city had received such a sen­tence before. A spokesman said this week that the department knew of none that had been hand­ed down since.


When Mr. Gross arrived at the building on Feb. 12, 1988, to begin serving his sentence in a freshly plastered and painted apartment, he was met by jeering tenants and a banner in the lobby that read, "Welcome, you reptile" He was fitted with an electronic an­kle bracelet, accompanied full-time by two guards and wore sunglasses despite gloomy skies.


"He was trying to hide his face," Rubiela Rodriguez, a ten­ant, said. "When he came to col­lect the rent, he didn't hide his face."


Judge Harkavy fined Mr. Gross $32,000 for contempt of court and ordered him to pay $137,900 in civil penalties, which he could use to improve the building after serving his sentence.


The punishment proved effec­tive. Mr. Gross dispatched con­struction crews to make repairs, and most of the violations were fixed within a month of his re­lease, eight days early for good behavior. He vowed to do no more harm.


"I've retired from the real estate business," he said.


In 1992, the city seized the property for unpaid taxes, but a plan to let a tenants' group lease it until renters could buy their units as co‑ops did not work out. The city later took the building back and converted it into rent-­stabilized apartments. (A one-­bedroom unit went for $1,350 a month in 2013, with a cap on how much tenants could earn.)


Judge Harkavy died of cardiac arrest at a nursing home in Old Bridge, N.J., his son Elliot said. He is also survived by his wife, Roberta; two other sons, Steven and Daniel; and six grandchil­dren.


Ira Baer Harkavy was born in Brooklyn on April 13, 1931. His fa­ther, Morris, was the chief engi­neer for the Borough of Queens. His mother, Esther, did not work outside the home. He graduated from Brooklyn College and Co­lumbia Law School.


After serving as chairman of a local community board, he was elected to the Civil Court in 1981, appointed as an acting State Su­preme Court justice in 1992 and elected to the State Supreme Court in 2000. He retired at the end of 2007.


Mr. Gross's case inspired a 1991 film, "The Super," starring Joe Pesci as an unscrupulous land­lord, Louie Kritski, who is or­dered to spend 120 days in his own building. Even the rats snub him initially.


"Maybe," one tenant says, "they're avoiding your floor out of professional courtesy."



Friday, May 22, 2015

p. B14, col. 4


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