OCTOBER 2011

 

 

            Ganfer & Shore, LLP is pleased to invite clients and friends of the firm to a wine tasting, seminar, and tour to be held on November 17, 2011 at the New York Design Center. The panel discussion will focus on employment law and electronic discovery and is entitled “Sex, Tattoos, and E-Mail Blunders.” The panel discussion will include Steven J. Shore, Robert I. Gosseen, and Mark A. Berman. This event will include an optional tour of the Design Center located at 200 Lexington Avenue (at 32nd Street) from 4:00 to 5:00 p.m., and the Legal Panel at 5:00 p.m., followed by an expert-led wine-tasting. To sign up, please call Amarilys Garcia at (212) 922-9250, ext. 262, or e-mail her at agarcia@ganfershore.com, prior to October 31, 2011.

Effective November 14, 2011, new rules promulgated by the National Labor Relations Board (NLRB), will require all employers – regardless of their size beyond a minimal level, and regardless of whether they are unionized – to post a notice of employees’ rights under the National Labor Relations Act (“NLRA”). The notice must be posted in a conspicuous place and the employer must take “reasonable steps” to ensure that the notice is not altered, defaced, covered by any other material, or otherwise rendered unreadable.

 

Copies of an acceptable form of notice will be available from the NLRB’s regional offices and may be downloaded from the NLRB’s website.  Employers may also use their own notices (if they follow the NLRB text) or purchase notices from outside vendors.  If twenty percent or more of the workforce “is not proficient in English and speaks a language other than English,” the employer must provide notice in the language that such employees speak (including each such language, if more than one). The NLRB says that it will provide translations of the notice.

 

The NLRB will treat an employer’s failure to post the notice as an unfair labor practice, and may also extend the six-month statute of limitations for filing charges involving other unfair labor practice allegations against the employer if the notice has not been posted. The NLRB may also consider an employer’s knowing and willful failure to post the notice as evidence of unlawful motive in any unfair labor practice case involving other alleged violations of the NLRA.

Generally, when a condominium's governing documents delegate responsibility for maintenance and repair of the building’s common elements to the Board of Managers, individual unit owners are not liable for injuries caused by alleged defects in those areas. (Please see discussion of prior cases on this issue in the January 2006 and May 2006 issues of this Client Advisory, available on our website, www.ganfershore.com.) Ganfer & Shore, LLP has obtained favorable rulings dismissing claims against individual condominium unit owners on this basis. A recent court decision, however, suggests that a unit owner may be liable where the condominium’s governing documents grant the owner exclusive control over a particular common element area. Araujo v. Mercer Square Owners Corp., et al., 929 N.Y.S.2d 439, 2011 WL 3863031 (Sup. Ct. N.Y. Co. Sept. 1, 2011).

 

The plaintiff in this case was a pedestrian who was injured in a “trip and fall” on the sidewalk in front of a commercial storefront, which was located in a mixed-use condominium building. She brought a lawsuit alleging negligence against the individual commercial unit owner, among others. The Condominium Declaration granted the owner of the commercial unit an “exclusive easement for the use of that portion of the common elements that includes the store fronts, entrances and sidewalks,” the “right to alter and improve the store fronts and entrances,” and the “responsibility of repairing any damages resulting” from use of such exclusive easement. 

 

The court denied a motion by the commercial unit owner for summary judgment dismissing the pedestrian’s claim. In its opinion, the court analyzed whether the commercial unit owner was an “owner” within the meaning of New York City Administrative Code § 7-210, which imposes a non-delegable duty on the owner of the abutting premises of a sidewalk to maintain and repair the sidewalk. The court found that the Declaration's grant of an exclusive easement made it the responsibility of the commercial unit owner to repair and maintain the easement in good condition. The condominium as building owner, on the other hand, was not obliged to perform work or bear the expense of keeping that part of the sidewalk in good repair, and thus was not liable for injuries to third-parties caused by the condition of that area. The court also found that the commercial unit owner had not demonstrated that it had neither created the dangerous condition on the sidewalk nor failed to remedy the condition despite being on actual or constructive notice of the defect.

 

However, the court dismissed plaintiff’s negligence claim insofar as it was asserted against the condominium’s management company, because the management agreement was not broad enough to displace the owner’s responsibilities for the sidewalk. The court also dismissed the negligence claim insofar as it was asserted against the tenant of the commercial space. The court held that the tenant had no duty under the Administrative Code to maintain the sidewalk, nor did it contract to do so under its lease with the commercial unit owner. 

 

The Legislature has enacted New York Real Property Law section 470, which prohibits the imposition of private transfer fee obligations with respect to the transfer of certain real property interests. The new law, which was enacted to address a practice found in other parts of the country but that is not prevalent in New York, makes all private transfer fee obligations recorded or entered into after September 23, 2011 unenforceable and not binding against any owner, purchaser, or mortgagee of any interest in real property. Transfer fee obligations recorded or entered into prior to that date are still enforceable. Anyone who records or enters into an agreement imposing a prohibited private transfer fee obligation will be liable for any and all damages resulting from such imposition and all attorneys’ fees incurred by the party to the transfer or the mortgagee of the real property.

 

However, the law excepts from the prohibition fees payable to a homeowners’, cooperative, or condominium association pursuant to a declaration, covenant, or law applicable to such association. For example, it is apparently intended that cooperative documents requiring fees payable to the cooperative upon transfer of shares (flip taxes) are still allowed. We understand that efforts may be made to amend the law to further clarify that this type of fee remains permissible.