Estate Planning | Statute of Limitations | Eviction of Aide

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7 Reasons To Create An Estate Plan Now

7 Reasons To Create An Estate Plan Now

1. To choose those who will inherit your property: If you die without a Will, assets pass to your heirs according to State intestacy laws. A Will not only names beneficiaries, but can set up trusts to direct when and how your beneficiaries receive the assets.

2. To provide for minor children: Who will raise your children if you die? You can nominate guardians of your choice to care for your children through your Will. Without such a designation, a court will choose.

3. Blended families: If your family is the result of multiple marriages, your estate plan can determine what goes to your current spouse and to the children from prior marriages.

4. Unmarried couples: An estate plan is particularly important for unmarried couples who typically are not afforded the same inheritance rights as married  couples.

5. Children with special needs: Without a plan, a child with special needs risks being disqualified from receiving Medicaid or SSI benefits. A properly crafted estate plan can set up a Supplemental Needs Trust to preserve the child’s benefits while using trust assets to pay for non-covered expenses.

6. Loss of capacity: What if you become incompetent and unable to manage your own affairs? Without a plan, a long and expensive court proceeding is required to appoint someone to manage your affairs. With a plan, you choose the person through a power of attorney.

7. Long-term care planning: How will you pay for care at home or in a nursing home if you need it? An estate plan may be structured to anticipate long term care costs and protect your assets.

Estate plans are not just for the wealthy. Regardless of the size of your estate, a plan may be necessary to protect yourself, your family and your assets. Our attorneys are available to consult with you to develop a plan which addresses all of your concerns (631.694.2400).

Know Your Limitations

Know Your Limitations

In AWI Security and Investigations, Inc. v. Whitestone Construction Corp., the defendant hired the plaintiff to provide security services on four construction sites. Each contract contained a clause limiting the time within which to bring a claim for breach of the agreement to no later than six months after the claim accrued, termination of the contract, or the last day plaintiff performed work at the site.

The plaintiff sued to recover damages for defendant’s alleged failure to pay for services rendered at the sites asserting breach of contract, among other, claims and seeking over $231,000, and the defendant moved to dismiss those claims based up on “statute of limitations.”

Statutes of limitations are laws passed by a legislative body to fix the maximum time after an event when legal proceedings may be commenced. They exist for both civil and criminal causes of action, and begin to run from the date of the injury, or the date it was discovered, or the date on which it should have been discovered with reasonable efforts. When the period of time specified in a statute of limitations passes, a claim can no longer be filed. The period of time varies depending on the jurisdiction and the type of claim. Ordinarily, the statute of limitations in New York for a breach of contract is six years from the breach, but in most cases parties are free to shorten that time frame.

Here, the defendant, which provides general construction services, retained the plaintiff to provide security services at three New York City Public School construction sites and one New York City Housing Authority construction site. Four contracts, one for each construction site, were entered into between the parties. Each contract contained the following clause:

“33.5 Limitation on Suit. No claim or action by [plaintiff] arising out of or related to this Agreement shall lie or be maintained against [defendant] unless such action is commenced no later than six (6) months after either (a) the cause of action accrues, (b) the termination or conclusion of this Agreement, or (c) the last day [plaintiff] performed any physical work at the Project Site, whichever of the proceeding [sic] events shall occur first. (Emphasis added)

The plaintiff did not challenge the clauses in the contracts. Rather, it opposed the motion, arguing that, by virtue of General Municipal Law (“GML”) §106-b(2), the defendant has a continuing and ongoing obligation to disburse to the plaintiff funds that the defendant received from the City of New York for work performed at the four construction sites. GML §106-b deals with payment on public works contracts and subdivision “2” of that statute deals with payment by contractors to subcontractors. The Court rejected the argument reasoning that the “plaintiff’s contention that GML §106-b(2) imposes on defendant an ongoing obligation to pay plaintiff is without merit. The purpose of that statutory provision is to promote prompt payment by contractors to their subcontractors upon receipt of payment from the public owner of a construction project. Nothing in GML §106-b(2) supports the construction thereof expounded by plaintiff: that, for statute of limitation purposes, the prompt-payment provision creates an ongoing obligation on the part of a contractor to disburse payments received from a public owner to subcontractors, such that a failure to do so constitutes a continuing breach. Similarly, nothing in that provision purports to supersede or displace a contractual statute of limitations.”

The plaintiff also argued that the statute of limitations for its claims has been extended under General Obligation Law (“GOL”) §17-101 because defendant’s counsel acknowledged in writing in June 2012 that any amounts owing to plaintiff were not yet due and that plaintiff has not been alerted by defendant that the amounts are owed. The Court rejected this argument as well, stating: “Plaintiff’s argument that the statute of limitations applicable to its causes of action was extended under GOL §17-101 by virtue of defendant’s counsel’s letter of June 5, 2012 fares no better. GOL §17-101 provides that: ‘An acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take an action out of the operation of the provisions of limitations of time for commencing actions under the [CPLR]….’ ‘The writing, in order to constitute an acknowledgment, must recognize an existing debtand must contain nothing inconsistent with an intention on the part of the debtor to pay it.’ The writing on which plaintiff relies, the June 5, 2012 letter of defendant’s counsel, does not recognize an existing debt, and contains matter that is inconsistent with an intention on the part of defendant to pay a debt.”

Defendant’s motion to dismiss the complaint was granted.

Eviction of Former Aide Without Notice

New Law on “Exhibition” in Post-Foreclosure Action

In Bennardo v. Searchwell, the District Court of Nassau County recently denied a licensee’s motion to dismiss a holdover summary proceeding. The petitioner alleged earchwell, a former home health aide, was a “tenant”, alleging a notice was served on her terminating the lease. Searchwell denied being a tenant, claiming she was a “licensee,” and that no landlord-tenant relationship ever existed. She claimed the 30 day notice served on her as a tenant was inappropriate as a 10 day notice should have been served, noting
also she never paid rent.

According to the decision, Searchwell was hired by Esther P.Stincone as a home aide and lived at the subject premises providing services. Eventually, Stincone went into a nursing home and died. Searchwell had lived at the premises up to the time of the Court’s decision.

New York recognizes a difference between a lease of property that creates a landlord-tenant relationship and a mere license to use or occupy property. According to our State’s highest Court, a license “is a personal, revocable and non-assignable privileged, conferred either by writing or parole, to do one or more acts upon land without possessing any interest therein.” In other words, it is the “authority to do a particular act or series of acts upon another’s land, which would amount to a trespass without such permission.” A lease, on the other hand, is the transfer of an estate or interest in a designated portion of real estate, whereby the landlord yields up to the tenant exclusive possession of such designated portion of real estate for a specific term.” The biggest difference is that in a lease the owner “surrenders absolute possession and control” of the property to another for an agreed-upon rental, thereby creating an interest or estate in the land. A license is not an interest or estate in the land. Under the State statute, a license is revocable, even if a consideration is paid for the license, at the option of the licensor, on 10 days’ notice to quit.

Here, however, in denying Searchwell’s motion to dismiss the proceeding, the Court did not have to reach the issue of whether a 10 days or 30 days’ notice was required, but instead relied upon New York’s Real Property Actions and Proceedings Law Section 713(11), which states that no notice at all is required to evict a person who entered the premises incidental to employment:

The person in possession entered into possession as an incident to employment by petitioner, and the time agreed upon for such possession has expired or, if no such time was agreed upon, the employment has been terminated; no notice to quit shall be required in order to maintain the proceeding under this subdivision.

The Court concluded that Searchwell was a licensee, not a tenant, and her occupancy rights terminated upon the end of her employment. “Thus, while generally a 10 day notice to terminate occupancy was required under §713, same was excluded by §713(11).”

This newsletter is provided by Hamburger, Maxson & Yaffe, LLP to keep its clients, prospective clients, and other interested parties informed of current legal developments that may affect or otherwise be of interest to them, and to learn more about our firm, our services and the experiences of our attorneys. The information is not intended as legal advice or legal opinion and should not be construed as such

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