Defamation Privilege | Construction Access Agreement | Warrant of Eviction

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A Defamation Privilege Cannot Be Abused

A Defamation Privil ege Cannot Be Abused

In Ferrara v. Bank, the defendants in a defamation action appealed the denial of their motion to dismiss the complaint on a qualified common-interest privilege.

Defamation is the communication of a false statement that harms the reputation of the party who was the subject of the communication. In New York, spoken defamation is called “slander” and defamation in other media is called “libel.”

The “common interest privilege,” as explained by the Court of Appeals, New York’s highest Court, holds that one cannot be held liable for defamation, even if the statement is false, if the “communication is made by one person to another upon a subject in which both have an interest.” This privilege has been applied, for example, to communications among employees of an organization.

According to the Appellate Court decision in Ferrara, the plaintiff was employed by the defendant Esquire Bank from September 18, 2014, until his employment was terminated on December 31, 2014. The plaintiff sued Esquire Bank and its principals, Andrew Sagliocca and Eric Bader, to recover damages based on communications made by Sagliocca and Bader concerning the reasons for the termination to representatives of the non-party recruiting firm that had placed the plaintiff with Esquire Bank.

On the defendants’ motion to dismiss the complaint, they argued that the defamatory statements were subject to a qualified common interest privilege, and that the plaintiff had failed to allege how the defendants acted with malice. In the order appealed from, the Supreme Court denied the defendants’ motion, concluding that the defendants had failed to establish that the common-interest privilege applied to the communications. The defendants appealed and the Appellate Court affirmed the denial of the motion, but on a ground different from that relied upon by the Supreme Court.

“To state a cause of action to recover damages for defamation, a plaintiff must allege that the defendant published a false statement, without privilege or authorization, to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se. ‘A communication made by one person to another upon a subject in which both have an interest is protected by a qualified privilege.’ However, this ‘common interest privilege’ may be overcome by a showing of malice. ‘To establish the malice necessary to defeat the privilege, the plaintiff may show either common-law malice, i.e., spite or ill will, or may show actual malice, i.e., knowledge of falsehood of the statement or reckless disregard for the truth.”

Here, the Appellate Court recognized that the agency that placed the plaintiff with Esquire Bank “had an interest in the reason for the termination of the plaintiff’s employment and as to why Esquire was seeking the return of the placement fee it had paid” for placing the plaintiff. While the Court concluded that the common-interest privilege applies to the allegedly defamatory communications, it found the complaint sufficiently alleged malice to overcome the privilege, noting that a “plaintiff has no obligation to show evidentiary facts to support his or her allegations of malice on a motion to dismiss pursuant to CPLR 3211 (a) (7).” That proof must be established at a later stage of the litigation.

Construction Access Agreements May Be Compelled By Court Order

Construction Access Agreements Ma y Be Compelled By Court Order

During development, owners, developers and builders are required to avoid damaging adjoining properties from their construction work. This is usually a greater problem in cities such as New York, where construction activities have damaged congested neighboring properties,most notably the spate of recent crane accidents. The method for dealing with these problems is the statutory mandate that the owner/developer enter into a license agreement with adjoining property owners permitting access to protect those properties. Despite the extensive, advanced planning that goes into real estate development projects, this requirement is often overlooked. But doing so will create real problems, as negotiating and/or litigating the myriad issues associated with these license greements can cre-ate many delays to the development process, especially because neighboring property owners often leverage their required approval by making their own demands.

New York’s Real Property Actions and Proceedings Law § 881 deals with the situation when those demands create a roadblock to construction. It is entitled “Access to adjoining property to make improvements or repairs” and provides as follows:

When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lesseefor actual damages occurring as a result of the entry.

In DDG Warren v. Assouline Ritz 1, LLC, although a Supreme Court denied an immediate access license fee to property owners from a neighboring owner who needed access to make repairs to its own property, an Appellate Court reversed and granted the immediate fees.

Relying upon RPAPL §881, the Appellate Court in DDG Warren said that “although the determination of whether to award a license fee is discretionary, in that RPAPL 881 provides that a ‘license shall be granted by the court in an appropriate case upon such terms as justice requires,’ the grant of licenses pursuant to RPAPL 881 often warrants the award of contemporaneous license fees. After all, ‘the respondent to an 881 petition has not sought out the intrusion and does not derive any benefit from it…Equity requires that the owner compelled to grant access should not have to bear any costs resulting from the access.’ In the circumstances presented here, where the granted license will entail substantial interference with the use and enjoyment of the neighboring property during the planned 30-month period, thus decreasing the value of the property during that time, it was an improvident exercise of discretion to postpone until the end of the three-year license period the matter of the fees to which respondents must be entitled.”

Without Substitution of a New Owner, A Warrant of Eviction Cannot Be Executed

Without Substitution Of A New Owner, A Warrant of Ev iction Cannot Be Executed

In 1521 Sheridan LLC v. Vasquez, a Court was faced with a not so uncommon situation where a landlord obtains a money judgment, a judgment for possession and a warrant of eviction and then sells the property before the judgment and warrant are enforced.

In this case the landlord commenced a non-payment summary proceeding, seeking rent arrears from its tenant for five months plus legal fees and late charges. After a stipulation of settlement providing the landlord with a possessory judgment and monetary judgment, the tenant moved to vacate the judgments and warrant of eviction following landlord’s divestment of title to the subject premises, and the new owner’s failure to seek leave to be substituted in as the new petitioner. Instead, the new landlord commenced a totally new non-payment summary proceeding for rent arrears that included the same arrears that were the basis of the money judgment.

In response to the tenant’s motion to vacate, the landlord argued that the tenant could not support with any legal precedents the argument that the money judgment the landlord obtained when it was the rightful owner of the premises should be vacated.

The Court agreed with the landlord, reasoning “certainly, case law makes it clear that the purpose of non-payment proceedings is to recover possession for failure to pay rent. Yet, having secured a money judgment for unpaid rent, just because a former owner can no longer recover possession does not lead to the conclusion that its money judgment is a nullity.”

“Having conveyed the premises, however, Petitioner no longer has the right to ‘Recover Possession’ under Article 7 of the Real Property Actions and Proceedings Law (“RPAPL”). Petitioner is no longer the “landlord or lessor,” and no longer has standing to enforce the judgment of possession by executing a warrant of eviction. As explained by the court in Boyd v.Sametz, ‘[w]hen Boyd delivered the deed to the New York Life Insurance Company he divested himself of all title to the premises, and the rights of landlord as respects to these tenants were transferred by operation of the conveyance to the grantee. Of what value, then could be a warrant commanding the officer to put the petitioner into possession of the premises?’”

“Based on the above authority, it is this court’s finding that the monetary judgment issued to Petitioner remains intact, but the possessory judgment and concomitant right to execute the warrant of eviction are unenforceable. To ensure such unenforceability, the court exercises its discretion to stay execution of the possessory judgment under CPLR § 2201, as well as to permanently vacate the warrant of eviction.”

As for the new owner’s non-payment summary proceeding which includes arrears for the same period as the money judgment, the Court noted that it was “evident that both the prior and current owners each believe they have the right to collect the same alleged rent arrears from Respondent: Petitioner by retaining its money judgment for $5,663.90 representing rent due through November 2016, and, simultaneously, the new owner—who did not move to be substituted for Petitioner under CPLR §1018—by seeking a possessory judgment and a monetary judgment for $11,171.37, representing rent due for the overlapping period of July 2016 through May 2017, in a new non-payment proceeding. In other similar instances, an assignment of rents executed at the time of the deed transfer generally resolves the question; however, in this case the incomplete copy of the Assignment that was presented to the court raises more questions than it answers, given, inter alia, the absence of a complete date of execution of the Assignment and a signature by a representative of the new owner. Accordingly, questions regarding the effect of that Assignment on the rights of the prior and new owners await resolution on another day. In the meantime, Petitioner’s money judgment will stand, although the enforcement mechanism of execution of a warrant of eviction will not. And, of course, Respondent will not be responsible to pay the new owner rent arrears which are the subject of the money judgment which Petitioner herein retains.”

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