About Appellate Litigation
Adam Leitman Bailey, P.C. has assembled a team consisting of many of the best real estate appellate attorneys in the State of New York.
The collective experience of this team has been responsible for winning several landmark decisions in real estate law. These attorneys have won more appellate cases at the Court of Appeals and its subsidiary appellate courts than any other real estate practitioner. In addition, an in-house study using a Westlaw search found that Jeffrey M. Metz has won more real estate appellate cases than any other practicing attorney. Members of this team have participated in over three hundred and fifty appeals and are best known for these dozen landmark cases representing hundreds of others:
- Holy Properties Ltd. v. Kenneth Cole Productions, Inc., 87 N.Y.2d 130
Reaffirmed that in a commercial setting, the landlord has no duty to mitigate damages.
- Eighteen Assocs., LLC v. Nanjim Leasing Corp., 257 A.D.2d 559, 683 N.Y.S.2d 291 (2d Dep’t 1999) Found that the absence of privity of contract presents no bar to a landlord obtaining use and occupancy from former subleases of a commercial space. Subtenants claimed they had no liability because they were not parties to the lease between the owner and its tenant.
- Graubard Mollen, et. al. v. 600 Third Avenue Assocs., 252 A.D.2d 453 (1999) Seminal case detailing the scope and nature of “Yellowstone Injunctive Relief.” Found that deposit of rent into escrow as condition of obtaining Yellowstone relief did not relieve tenant from the obligation to pay interest on the rent arrears pursuant to lease. Tenant thus required to pay several hundreds of thousands of dollars in interest.
- Domen Holding Co. v. Aranovich, 1 N.Y.3d 117 (2003) Submitted amicus curiae brief on behalf of the Rent Stabilization Association leading to holding that Notice of Termination was sufficiently detailed to support ejectment action sounding in nuisance and establishing the essential principles of nuisance proceedings.
- Million Gold Realty Co. v. S.E. & K. Corp., 4 A.D.3d 196, 772 N.Y.S.2d 271 (1st Dept. 2004) Established that despite seller-commercial landlord’s issuance of two identical rights of first refusal to commercial tenants, tenant must comply with provisions of lease agreement regarding purchase of building including down payment amount.
- Classic Realty LLC v. DHCR, 2 N.Y.3d 142 (2004) Demonstrated to Court of Appeals that in a luxury decontrol proceeding where tenant was found to be over-income and subject to deregulation that DHCR’s comment period could not be used to furnish an amended tax return to bring the tenant’s income under the statutory threshold for deregulation.
- Sinenksy v. Rokowsky, 22 A.D.3d 563, 802 N.Y.S.2d 491 (2d Dept. 2005),Appeal in favor of holocaust survivor rejected from cooperative board; Appellate Division recognizes standing of non-shareholder-applicant to sue cooperative board
- Sykes v. RFD Third Ave. I Assocs., LLC, 35 HCR 361A, 39 AD3d 279, 833 NYS2d 76 (1st Dep’t 2006)Ground breaking case establishes that a victory in a stipulation is victory enough to support an award of attorneys’ fees.
- Yang v. Chin, 42 A.D.3d 320, 839 N.Y.S.2d 90 (1st Dep’t 2007), The Court held Intended buyer was not entitled to specific performance of agreement for the sale of real property after vendor cancelled the contract due to an inability to clear a title problem, where vendor possessed under the agreement, an absolute and unconditional right of cancellation.
- East 51st Street Crane Collapse, 106 A.D.3d 473 (1st Dept. 2013)Established that settlements of wrongful death action due to crane collapse should be unsealed for review by the public and other parties adversely affected by the collapse.
- B&C Realty, Co. v. 129 Emmut LLC , 106 A.D.3d 653 (1st Dept. 2013) Successfully defended owner of a building with potential zoning violations against purchaser who failed to close and lost a two million dollar down payment with finding that purchaser failed to demonstrate reasonable reliance necessary to sustain claims of fraudulent inducement, fraud and promissory estoppel.
- Board of Managers of 184 Thompson Street Condominium v. 184 Thompson Street Owner LLC, 106 A.D.3a 542 (1st Dept. 2013)Clarified the “total price” calculation in determining what a sponsor must contribute to a condominium’s reserve fund.
- Stalker v. Steward Tenants Corp., 93 A.D.3d 550 (1st Dept. 2012)In a case of first impression, successfully argued to appellate court that sellers of a cooperative apartment could sue cooperative under the New York State Human Rights Law and the Federal Fair Housing Act for damages when cooperative refused to approve a sale of the unit to elderly buyers.
- Fort Washington Holdings, LLC v. Abbott, 36 Misc. 3d (App. T. 1st Dept. 2013)In a succession case, reversed trial court decision nullifying a jury’s verdict which held that for a non-traditional family member to succeed, claimed successor must prove both an emotional commitment interdependence and a financial commitment interdependence appellate term found that succession was not established.
- Hartman v. Goldman, 84 A.D. 3a 374 (2d Dept. 2011) In a case of first impression involving the 2008 amendment to Real Property Actions & Proceedings §543, successfully defended an adverse possession claim on the basis that de minimus non-structural encroachments are permissive and non-adverse.
- 221-06 Merrick Blvd Associations, LLC v. Crescent Electric Acquisitions Corp., 79 A.D. 3d 896 (2d Dept. 2010)Reaffirmed that renewal lease option is ineffective if not given in a timely manner and found that equity should not intervene to excuse tenant’s tardiness in exercising option.
- Lorne v. 50 Madison Ave, LLC, 65 A.D.3d 879 (1st Dept. 2010) Successfully represented Board of Directors against challenge by shareholder of a unit who claimed that the Board breached its fiduciary duty to her by not permitting certain sponsor obligated repair work to be performed by the shareholder absent to shareholder executing an alteration agreement. Also reaffirmed that board member cannot be sued in individual capacity about the member committing an independent tort against the shareholder.
- Nehmadi v. Davis 63 A.D. 3d 115 (2nd Dept. 2009) Reaffirmed that a time of the essence letter must detail the consequences of a failing to appear at the closing and hold that specific performance cause of action remains viable when a time of the essence letter is deficient.
- Chan v. Chin62 A.D. 3d 471 (1st Dept. 2009) Successfully represented owners from challenge by perspective purchaser to obtain valuable commercial property who several documents did not satisfy statue of frauds. Because documents never established a purchase price, there was no meeting of the minds.
- Pacific Carlton Development Corp. v. 752 Pacific, LLC., 62 A.D.3d 677 (2nd Dept. 2009) Found that a cause of action for tortious interference with contraction relations brought against individual defendant could be based upon their actions on corporate officer.
- Hooters of Manhattan, Ltd. v. 211 West 56 Associates, 857 N.Y.S.2d 112 (1st Dep’t 2008),Reaffirms the validity of exculpatory clauses in commercial leases as well as the validity of a provision which shifts the obligation from landlord to tenant to obtain insurance for direct and indirect loss of earnings.
- Candida v. Salvation Army, Inc., 847 N.Y.S.2d 81 (1st Dep’t 2007), Found that charitable institution which owned two buildings did not lose exemption from Rent Stabilization and was entitled to refuse to renew leases when it determined to sell the buildings to a for profit entity.
- Pinehurst Const. Corp. v. Schlesinger, 833 N.Y.S.2d 428 (1st Dep’t 2007),In affirming judgment of possession based upon nuisance due to pounding of ceiling and screaming directed to tenant directly overhead, Appellate Division found that Notice of Termination was sufficiently detailed to allow tenant to prepare a defense even though it set forth no names of complainants or dates or specific instances of misconduct.
- Novita LLC v. 307 West Restaurant Corp., 828 N.Y.S.2d 5 (1st Dep’t 2006),Where tenant looked to avoid damages for removing a load-bearing wall by claiming that three-year statute of limitations for negligence was controlling and matter was therefore time-barred, successfully argued that six year statute of limitation applied because claim was for a breach of contract for property damages.
- Shoprite Supermarkets, Inc. v. Yonkers Plaza Shopping, LLC, 817 N.Y.S.2d 291 (2d Dep’t 2006),First Appellate Division opinion to detail what constitutes a proper demand for rent and a proper notice to cure in a commercial setting.
- Whaling Willie’s Roadhouse Grill, Inc. v. Sea Gulls Partners, 793 N.Y.S.2d 124 (2d Dep’t 2005),Successfully argued that court abused discretion by ordering commercial tenant, which alleged it had been partially actually evicted due to new building blocking certain parking areas it was entitled to under lease, to deposit the full amount of all past and future rent into court while case was pending.
- Chang v. SDI Intern, Inc., 15 A.D.3d 520 (2d Dep’t 2005),Demonstrated to court that plaintiffs’ request for turn-over of corporation’s tax returns and other sensitive financial information was inappropriate and should be subject to protective order.
- Nobu Next Door LLC v. Fine Arts Housing, Inc., 1 NY3d 117
Where lease required tenant not to be in default at time of renewal of lease, and tenant made choice to defer maintenance to maintain an exhaust stack, demonstrated to Appellate Division that tenant was not entitled to Yellowstone and injunctive relief tolling period to exercise renewal option. Decision was subsequently appealed to Court of Appeals where order was affirmed. See 4 N.Y. 3d 839 (2005).
- SRM Card Shop, Inc. v. 1740 Broadway Associates, L.P., 769 N.Y.S.2d 483, TLC Actual Partial Eviction 1, TLC Agents 1 (1st Dep’t 2003),Where evidence tended to show a partial actual eviction (relieving commercial tenant from paying rent for the remainder of a commercial lease) due to landlord’s destruction of a portion of the tenant’s storage space in exchange for other space, convinced Appellate Division that the tenant had acquiesced in the space substitution thereby saving landlord approximately one million dollars over the remaining term of the lease.
- Domen Holding Co. v. Aranovich, 769 N.Y.S.2d 785, TLC Nuisance 2, TLC Termination Notices 16 (2003),Submitted amicus curiae brief on behalf of the Rent Stabilization Association leading to holding that Notice of Termination was sufficiently detailed to support ejectment action sounding in nuisance.
- Gulotta v. Ippolito, 745 N.Y.S2d 439 (2d Dep’t 2002), Reaffirming that when proposed purchaser fails to obtain mortgage loan commitment in time specified in the contract, owner can rightfully exercise option to cancel the contract.
- Sessler v. DHCR, 722 N.Y.S.2d 864 (1st Dep’t 2001),Affirmed that the 4 year rule applies to rent overcharge proceedings before DHCR.
- East 145 Co. v. Benayoun, 736 N.Y.S.2d 830 (Appt. T. 1st Dep’t 2001),Held that prosecution of a no-pet holdover proceeding after the tenant settled a negligence action brought against the landlord due to injuries sustained by the tenant’s son in the apartment was not retaliatory in nature.
- Paganuzzi v. Primrose Mgmt. Co., 701 N.Y.S.2d 350 (1st Dep’t 2000),Reaffirmed that when landlord brings an unsuccessful Article 78 proceeding to challenge a fair market rent appeal, tenant may not collect legal fees pursuant to RPL 234.
- Avon Bard Co. v. Aquarian Foundation, 688 N.Y.S.2d 514 (1st Dep’t 1999),Absent a designated beneficiary clause, corporate tenant in a residential apartment is a non-primary resident and therefore unable to demand a renewal lease.
- Rose Associates v. Lenox Hill Hospital, 695 N.Y.S.2d 1 (1st Dep’t 1999),Obtained more than two million dollars in use and occupancy arrears from holdover hospital tenant.
- Nick v. DHCR, 664 N.Y.S.2d 777 (1st Dep’t 1997), Early luxury decontrol case which found that owner entitled to an order of deregulation upon tenant’s default and that luxury decontrol provisions of the Rent Stabilization Law do not violate due process or equal protection guarantees.
- Cox v. J.D. Realty Associates, 637 N.Y.S.2d 27 (1st Dep’t 1995),Established that the Civil Court, rather than the Supreme Court, is the proper forum to resolve apartment succession disputes.
- Baer v. Lipson, 599 N.Y.S.2d 618 (2d Dep’t 1993),Tenant waived jurisdictional claim of lack of jurisdiction when, after judgment was entered against him on default, his attorney moved to vacate default but did not assert jurisdictional defense.
- Briar Hill Apartments Co. v. Teperman, 568 N.Y.S.2d 50 (1st Dept’ 1991),Established criteria to determine non-primary residence issues.
- 61 W. 62 Owners Corp. v. Harkness Apartment Owners Corp., 570 N.Y.S.2d 8 (1st Dep’t 1991),Established that owner may recover possession if tenant fails to pay court ordered use and occupancy as condition to a Yellowstone injunction.
- Sohn v. Calderon, 78 N.Y.2d 755 (1991),Established areas where administrative agencies have exclusive jurisdiction.
- Kumble v. Windsor Plaza Co., 76 N.Y.2d 843 (1990),Established that attorney’s fees must be proven by means of an adversarial hearing.
- 829 Seventh Avenue Co. v. Reider, 67 N.Y.2d 930 (1986),Expounded on the living with requirement for Rent Controlled Succession rights.
- Vance v. Century Apartment Assocs.,61 N.Y.2d 716 (1984), Established that sub-letter must demonstrate intent to return.
These successes have led to the firm’s recognition as a leader in real estate law and resulted in the firm receiving prestigious awards given to New York real estate attorneys. Adam Leitman Bailey, P.C. is the only New York real estate litigation law firm with under 30 attorneys to receive the Leading Real Estate Lawyer honors from Chambers USA, the highest rating from Martindale-Hubbell, AV, Super Lawyers honors, Best Lawyers, Best Law Firms and selection into the Bar Registry of Preeminent Lawyers as well as the American College of Real Estate Lawyers.
One of the foundations of the Appellate Bureau’s successes comes from the fact that its attorneys have written some 80 books on landlord-tenant law, including encyclopedias and the Housing Court Reporter, a twenty-five year collection, organization, and analysis of over 60,000 landlord-tenant cases used by most regular housing court practitioners and all landlord-tenant judges. Furthermore, two of these attorneys have been tapped for the annual lectures to the judges and chambers of the Appellate Terms of the First and Second Judicial Departments at their annual seminar as well as to Housing Court judges.
This record of achievement has made the Adam Leitman Bailey, P.C. Appellate Bureau the law firm of choice for all appeals.