Insurance Questions Related to COVID-19 Losses Are a Hot Topic

There have been many claims that have been rejected already, but which may be reviewed and even litigated in court.

It is essential to understand your current policy, how it can cover COVID-19 losses, and if possible to make changes to your policy going forward so that you are properly insured.

I am fortunate to know two great insurance professionals, Jordan Feldman of Rampart Insurance Services, who is an insurance agent and Joseph Miranda of Diamond Adjustment Inc., who is a public adjuster, who can give you the best information on how to handle insurance issues and questions.

Feel free to contact them regarding your insurance questions. Their contact information is included in this newsletter.

Jordan-Feldman and-Joseph Miranda-newsletter

The Kids Upstairs Have Cabin Fever. Is There Any Way to Stop the Noise?

Q: I live in a rental building in Harlem and have always worked from home. Since the start of the pandemic, the family directly above me has been home, too, with two young children. Now that winter is here, they never seem to go out. I can hear running, jumping and shouting. Normally, I’d work at the cafe down the street for a few hours, but that’s not an option. I know they must have cabin fever, but so do I. What am I supposed to do?

A: We’ve all been stuck inside for close to a year, and now that the weather is cold, there are few escapes from our isolation. Children need to play. But you need to work. These are not incompatible, so long as the adults deal with the noise.

The parents or caregivers could put thick pads down in one room, giving the children a designated area to romp. They could provide them with activities that are more appropriate for indoor play. They could remind them to use their inside voices. They could bundle them up and take them outside to run around.

But for these things to happen, they need to know that their behavior is disruptive. You do have rights. Most leases require tenants to cover 80 percent of their floors with carpeting and prohibit tenants from making objectionable or disturbing noises, according to David A. Kaminsky, a Manhattan real estate lawyer.

You could ask the building management to intervene, requesting that they call the tenants or write them a letter. Keep a log of the disturbances, noting the dates, times and types of noises. Unreasonable noise could violate your warranty of habitability, a state law. However, landlords tend not to be strong advocates for tenants with noise complaints directed at neighbors.

“Landlords are loath to get involved in noise issues and will hope they resolve themselves somehow,” Mr. Kaminsky said. (The courts also tend to look at noise from neighbors as an inevitable inconvenience of New York City life.)

You may have better luck reasoning with your neighbors directly. Talk to them, or leave a note under their door. “Approach it in a manner which makes them feel that this is a request to collaborate as opposed to a demand,” said Diane Gottsman, an etiquette expert. Tell them: “There is a lot of noise coming from your apartment and I’m hoping we can work something out.”

You may not even need to mention the children. Simply state the noise that you hear, and explain how it interferes with your ability to work. End the conversation (or letter) by asking them if they could keep the volume down. “That leaves it up to them,” Ms. Gottsman said.

Most people don’t want their children to make other people miserable. Hopefully, your neighbors feel that way and will make the effort.

Rent & Lease-Break Issues During COVID-19 – Attorney Advertising

We are getting many calls from the real estate industry and the public at large on payment and collection of rent issues-  lease-breaks, rent defaults, personal guarantees, business shut-downs, escape to parents’ house in the suburbs, grifter roommates,  etc., etc. and we are up to date on the daily changing picture. 

Many of these situations will develop into actual lawsuits in a few months, but it is always good to know your rights and be ready. 

We welcome calls and consultations on these issues, and we can assist in leading you through the legal confusion back to where you need to be.

Suburban/Country Homes Are Gaining Attention Due to COVID-19 Coronavirus Concerns

Many people have expressed interest in renting and/or buying suburban and country homes, either as a second or primary residence.  David A. Kaminsky & Associates P.C. is extremely experienced in selling your city apartment, and then helping you buy your suburban or country home.

We are familiar with Long Island, including Nassau, Suffolk, Hamptons, North Fork, Westchester, Orange County, Rockland County, even Catskills.  We have done deals all over and know about home inspections, septic tanks, swimming pools, termites, everything about homes that some attorneys overlook.

Let’s have a conversation about your goals in getting a higher level of safety and security for you and your family’s future.

Small Claims Court in New York City

An important change to Small Claims Court in New York City has recently been very quietly enacted, which is the increase of the jurisdictional limit to the amount of a Small Claims lawsuit from $5,000.00 to $10,000.00.

This is a change that has been discussed for a long time but has finally come to fruition.  In my view, it creates a new relevance to Small Claims Court as many claims might exceed $5,000.00 but are still not significant enough to warrant hiring an attorney.

Many of these claims will include landlord-tenant issues, such as claims for return of security deposit, claims for rent overcharge, claims for refund of brokers’ fees etc.

This change in the law will undoubtedly cause more filings in Small Claims court, cause more of a work load for the Judges and Arbitrators, and likely make the amount of time it takes to resolve a small claims case increase to a longer period of time than previously required.

If anyone has questions about Small Claims Court, feel free to email or call David A. Kaminsky.

Non-Residential Tenant Harassment Law

As most of you are aware, a large part of our practice is representing Landlords and Tenants involved with commercial property. It is a common complaint of commercial tenants that their Landlords are “harassing” them in an effort to force them out of their space because their rent is “under market.” It is certainly possible that unscrupulous Landlords could use less than savory tactics to try to force a commercial tenant to leave. Landlords are often motivated to use questionable methods to cause commercial tenants to vacate so that they can re-rent the space at a higher rent. The New York City Council has enacted a “nonresidential tenant harassment” law designed to protect commercial tenants. “Commercial Tenant” within the meaning of the law is defined as a person or entity lawfully occupying a covered property pursuant to a lease or other rental agreement.

The covered property is any building that this is used for business, commercial, professional manufacturing services or activities. Prohibited conduct by the Landlord and/or agents is as follows:

  1. Using force, or making threats of force against commercial tenants;
  2. Causing repeated interruptions of services such as gas, electric, heat, hot water;
  3. Causing interruption of essential services for an extensive period;
  4. Causing an interruption of an essential service which shall substantially interfere with the commercial tenant’s business;
  5. Repeatedly commencing frivolous court proceedings against the commercial tenant;
  6. Removing the commercial tenant’s property;
  7. Removing the entrance door or somehow interfering with the functionality of the entrance door of the commercial property;
  8. Preventing access or entrance to the commercial property by the tenant or tenant’s guests;
  9. Commencing unnecessary construction or repairs to interfere with the commercial tenant and its business;
  10. Engaging in any other acts to interfere with the operation of the tenant’s business.

The tenant’s remedy in the event of such conduct by an unscrupulous Landlord is to bring a lawsuit for a claim of commercial Landlord harassment. The lawsuit could entitle the tenant to a restraining order against further acts of harassment and judgment for damages and attorneys’ fees.

Of course, whether a Landlord is committing harassment or the tenant is truly a victim of harassment is a matter of interpretation and point of view. I am happy to discuss this new statute and your specific circumstances to determine whether there is a violation of this new law, “nonresidential harassment.”

Please feel free to contact me should you have any questions.

Why Some People May Feel That Airbnb is Good for New York Landlords

I had previously written an article on Airbnb and I received feedback that some felt my article was one sided against Airbnb; here I have come up with some reasons why Airbnb is good for New York landlords; I am certain you can think of additional reasons as to why participating in Airbnb activities is good for Landlords and New York. Feel free to contact me and make suggestions to add to the list. 1. Airbnb is good for landlords because it helps the landlord charge an even higher rent to tenants because then the tenants will be able to rely on additional income from Airbnb in order to pay the higher rent. 2. Airbnb causes tenants to maintain their apartment in a better condition so that it is attractive to Airbnb guests and presentable, so that they will get good ratings and be able to rent on Airbnb on a regular basis. 3. Airbnb is generally good for the neighborhood and the city because it encourages visitors and guests who might not be able to afford an expensive hotel but nonetheless want to visit the area, to travel to New York, and will introduce their money and spending for:

  • Travel

for airlines buses trains taxis

  • Entertainment

Broadway shows sporting events bars movies lounges

  • Shopping

tourist souvenirs clothing electronics

  • Restaurants

fine dining casual dining fast food cafes The Airbnb activity then allows the Airbnb guests, by word of mouth, to encourage other visitors from wherever they came from to visit so that New York will have even more tourism, and a better economy which is good for landlords.

Many people think that Airbnb is harmless

To all those who wonder why Airbnb is problematic for landlords and for tenants, I have created lists that will help you understand the difficulties and implications linked to this type of rental.

Please read the following lists:

1. Increased traffic causes increased wear and tear and damage. 2. Insurance issues, in that landlord’s insurance likely does not cover Airbnb types of uses. 3. Occupants who are unfamiliar with the building and a specific unit are more likely to cause damage by reason of their unfamiliarity with the operation of appliances, locks, utilities, etc. 4. Exposure to fines and penalties with the City of New York. 5. Possible insurance policy cancellation. 6. Lessened security, as Airbnb customers are unfamiliar with security policies and are also more likely to allow unauthorized persons to enter the building. 7. Increased risk of personal injury as Airbnb customers are unfamiliar with safety precautions, safety exit routes, staircases and fire escapes. 8. It is possible that Airbnb customers will use utilities in a greater volume than regular tenants such as hot water for showers, laundry, and electricity for AC; transient users are less likely to be concerned about conserving energy. 9. It is disconcerting for a landlord to have a tenant who is making more money on his real estate investment than the landlord himself is, and in such event the landlord is usually motivated to find reason to evict the tenant who is doing Airbnb.

Why Airbnb is a problem for landlords:

Why Airbnb is a problem for Tenants:

1. You are risking a loss of your apartment as doing Airbnb in a residential apartment is illegal. This is particularly harmful if you live in a rent regulated unit, or a coop or condo as your apartment is likely very valuable and could be irreplaceable. 2. You need to declare any income to IRS as it is taxable and residential tenants who are doing Airbnb often do not declare such income and wind up getting audited and penalized. 3. You are exposing your apartment to damage/vandalism/theft. 4. You are under the risk of the Airbnb customer not vacating on time. 5. You are under the risk of being fined by the City of New York and or having the landlord making efforts to pass along any fines that the landlord receives to you. 6. If the landlord takes no action against you during the term of your lease, you are still under the risk of the landlord opting to not renew your lease due to your Airbnb activity, requiring you to move and pay another broker’s commission and moving expenses. 7. If the landlord does commence an eviction law suit against you, you will be on the rental registry and when your record is subject to being searched by a new landlord that record will be viewed as a negative incident, which may prevent you from obtaining an apartment or the apartment of your choice. 8. Airbnb may be a violation of your lease, entitling your landlord to evict you. 9. If the landlord starts an eviction you might have to pay the landlord’s attorney’s fees.

I am certain others can think of additional reasons to not participate in Airbnb activities.

In conclusion, don’t assume your landlord is not aware of your Airbnb activities. Landlords are trolling social media, the Airbnb site and have cameras, supers, etc.

Don’t assume because your neighbor is doing Airbnb that it is okay for you to do the same.

If you have any questions or concerns don’t hesitate to contact me.

The Seller Reneged. What to do?

Q. My fiance and I were set to close on a one-bedroom co-op in Jackson Heights, Queens. Both parties had signed the contract. We had our mortgage commitment letter and had turned in our board application. We were in the midst of moving out of our rent-stabilized apartment when the sellers suddenly informed us that they wanted to cancel the deal. If we, as buyers, had done this, we would have lost our deposit. But it seems as if there’s less at stake for sellers. What recourse does a buyer have when a seller suddenly decides to cancel a fully executed contract?

A. What is the point of a contract, if not to protect you? Without a binding agreement, you might as well be shopping for real estate in the Wild West. “A Seller cannot merely change his mind and elect not to sell,” said David A. Kaminsky, a Manhattan real estate lawyer. “That is the whole point of having a written contract.”

And contracts are the reason buyers don’t back out more often. “It’s unusual and the reason it is unusual,” Mr. Kaminsky said, “is because sellers have attorneys and sellers’ attorneys says to their clients, ‘You can’t just change your mind. You’ll get sued.'”

As for you and your fiance, at the very least, you should get your deposit back. But you likely have other legal options that could allow you to collect damages or even compel the seller to close the deal.

Lead Paint and Babies

Q. My husband and I have lived in a rent-stabilized apartment for six years. Every year we sign a lead paint disclosure form stating that the apartment may or may not contain lead paint. Since we had no children, we never gave it any thought. Now that I am pregnant, I am not sure how to proceed. How do we find out if there is lead paint? And, if we find lead, would we have to move out? Or would our landlady have to repaint the apartment? If she repaints, would she raise our rent?

A. Exposure to lead can cause serious and irreversible health problems for young children. Although lead contamination in the Flint, Mich., water supply has dominated the news in recent months, peeling or chipping lead paint is by far the most common source of exposure for children in the United States. Toddlers face the greatest risk. “They’re exploring their environment and they’re putting everything in their mouths,” said Dr. Philip Landrigan, a pediatrician and dean for global health at the Icahn School of Medicine at Mount Sinai.

Apartments built before 1960 are presumed by New York City to have lead paint (and apartments built as late as 1978 may have it). But the mere presence of lead paint does not necessarily pose an immediate health risk for your baby. If the paint is intact, with no signs of peeling, flaking or chipping, then leave it alone, as it is unlikely a child could ingest it. Look at your walls. Pay close attention to windows and door frames for signs of wear or chipping paint, as those are usually the culprits.

You could call 311 to request an inspection. City rules require landlords to inspect rental apartments annually if children under 6 live there. If any areas need to be repainted, demand that your landlady hire a professional painter certified in lead paint remediation. You should vacate the premises until the work is complete to avoid breathing in any lead dust. Your landlady cannot raise your rent for remediating lead paint, as this is her responsibility, according to David A. Kaminsky, a Manhattan real estate lawyer.

Be aware of another potential hazard: decorating the nursery. Many expectant parents paint the baby’s room before the birth. “It’s a very natural human impulse to make the nursery beautiful,” Dr. Landrigan said. Normally, lead paint does not pose a health hazard to a pregnant woman. However, a pregnant mother can expose a baby to lead if she breathes in dust while doing prep work like scraping and sanding before painting, according to Dr. Landrigan. So, if you do redecorate, hire a professional painter and clear out until the job is done.