Tenant Can Terminate Lease for Second-Hand Smoke
Posted by Andrew McDermott, GRI in Real Estate, Rentals on February 24, 2011
A New York court has considered whether a tenant could terminate her lease when her landlord failed to remedy, after numerous complaints, second-hand smoke coming from another tenant’s apartment into her apartment.
Danielle Cannon (“Tenant”) leased an apartment from Upper East Lease Associates, LLC (“Landlord”) commencing on May 7, 2008 and ending on May 31, 2009. The lease contained an addendum in which tenants agreed to prevent second-hand smoke from entering the common areas and other apartments.
In September 2008, a new resident occupied the apartment below the Tenant’s apartment and this lease also included the Addendum. This new resident was a smoker and also had a guest that was a smoker. This caused second smoke to enter the Tenant’s apartment, and so the Tenant complained to the Landlord about the second-hand smoke starting in October 2008.
Despite the Tenant’s complaints, the second-hand smoke continued. The Landlord took measures to try and keep the smoke out of the Tenant’s apartment such as caulking the door and vents, but this did not stop the problem.
The Tenant requested another apartment in November 2008. The Landlord offered to transfer her to another apartment, but only if she would agree to a year rental term. The parties could not agree on the terms of the transfer, and the Tenant eventually refused to pay her January and February rent because the second-hand smoke problem continued. On February 4th, she vacated her apartment.
The Landlord brought a lawsuit against the Tenant for the unpaid rent, claiming that she had breached her lease. The Tenant counterclaimed, alleging that the Landlord had breached the warranty of habitability by allowing the second hand smoke to penetrate her apartment, causing a constructive eviction. The trial court conducted a bench trial.
The New York District Court, Nassau County, ruled in favor of the Tenant and awarded her damages equaling the amount of unpaid rent. First, the court stated that the both the lease provisions and the warranty of habitability governed the rights of the parties. The warranty of habitability requires a landlord to prevent one tenant from unreasonably interfering with the rights of another tenant. The lease gave the Landlord the power to take action against the smoking tenant, since the lease prohibited tenants from causing second-hand smoke to travel outside of their apartments.
Under New York law, second-hand smoke constitutes a nuisance when the second-hand smoke is more than a single occurrence, but instead is a pervasive problem. Failure to remedy a nuisance will constitute a constructive eviction.
The court ruled that the second-hand smoke in this case constituted a nuisance and the Landlords failure to abate a known nuisance resulted in a breach of the warranty of habitability, resulting in a constructive eviction of the Tenant. The court found that the Landlord had failed to meet its obligations by not preventing the second-hand smoke intrusion after numerous complaints.
Based on the breach of its duties, the court ruled that the Landlord could not collect damages for any unpaid rent after the Tenant vacated her apartment. In addition, the court award the Tenant damages that escalated as time went on without the Landlord’s cure of the problem. The amounts awarded to the Tenant equaled the unpaid rent amounts, and so neither party owed the other anything at the conclusion of the trial.
Upper East Lease Assoc., LLC v. Cannon, No. 44409/09, 2011 WL 182091 (N.Y. Dist. Ct. Jan. 20, 2011). ). [This is a citation to a Westlaw document. Westlaw is a subscription, online legal research service. If an official reporter citation should become available for this case, the citation will be updated to reflect this information].
Andrew McDermottLicensed Associate Broker
Clove Lake Realty, Inc.
80 Broad St. 5th Floor, New York, New York 10004
Office: 917-668-6088
St. Clare’s Bridal Showcase
Posted by Andrew McDermott, GRI in Real Estate, Staten Island on October 11, 2010
St. Clare’s Bridal Showcase
On
Thursday, October 28th, 2010
6:00-10:00PM
St. Clare School Gym
151 Lindenwood Road
Staten Island, NY 10308
Andrew McDermottLicensed Associate Broker
Clove Lake Realty, Inc.
80 Broad St. 5th Floor, New York, New York 10004
Office: 917-668-6088
Dana Ford Lincoln Mercury
Posted by Andrew McDermott, GRI in Life, Staten Island on May 6, 2010
About a month ago, I decided I was going to car shopping. I figured I can get an idea of what is available, and get an idea on where my budget can be. Doing my homework, I felt was the best thing, so I would know what to expect.
My cars are usually leased. In case you don’t know what a lease is, you make monthly payments and get to keep a car for a specific time frame. Generally two to three years.
A few years ago I was introduced to a Ford Fusion. I was really impressed with the styling, power, and even better the price. Now I had a new toy.
Since it is getting close to the end, I am deciding on whether to keep the car, or get a new car. After much research, I am leaning more towards purchasing the car, since it works so well and is so strong. Ford is making an impressive car.
However, I’ve been speaking to many dealers, of various makes. In my opinion cars are pretty much the same size, and it really comes down to name, features, and price. All I need is for a car to get to point A and B and back. I don’t need a rocket ship.
Island Ford closed probably about a year ago due to the economic standards. Dana Lincoln Mercury bought the Ford dealership and moved it in with their other brands.
When I went to go get my buyout price, I knew and was right that I was going to be sold a new car. I was suppose to meet this girl, but she wasn’t in. The manager was. She then told me to take a sit and would be with me.
A gentleman then approached me asking if he could help me. I said I was waiting for the woman (manager) to come give me my buyout price. He then proceeded to bath mouth the idea of buying out the car, and telling me why I shouldn’t do it. I couldn’t believe that he would badmouth the very car that he sells. If I was the salesperson I would be like wow, you really like the car. I would offer the suggestion of a new car after giving the buyout price, and maybe the customer can afford to have a second car.
So then I agreed to listen to what he had to say about getting a new lease. I figured that I would consider getting a Focus instead. In an effort to keep the payments down and possibly less out of pocket. So then we proceeded on the lot to look at the cars. I find that too overwhelming, and don’t know why they don’t have an idea of the inventory in their head or a computer to reference. So we then found a Focus. It would do the job for what I wanted. The salesman insisted that we test drive the car. I said I didn’t need to, as long as we see the inside.
The inside was fine, the car was fine, so now it comes to the magical price. So when he sits down at the desk, he asks for my information, and then went to the sales manager for a monthly price. The monthly price he came back with was unreasonable, and I tried to see if it could be lower.
I did have some remaining lease payments, so I know somehow they were incorporating them, but the price was too wacky. Then I said how about a Fusion for around the same price I am being quoted, or lower. Magically, it was agreed that I could do that. Yet again, we were on the lot looking and found a Fusion. It wasn’t the same as I had, but would do.
So when we went back, I guess the sales manager agreed to the terms, and the salesman want a deposit. When I said I didn’t bring money with me, he seemed really annoyed. He then asked me to go home get it, and come back. I had another place to go, and wasn’t going directly home. So very sternly he said he wanted me to call him tomorrow. He kept on talking about how it was going to take two hours to prepare the car.
When I said I wasn’t in a rush, and that is fine, he really seemed to be annoyed. The sales manager was calm, and didn’t force me and gave me my freedom. He was mentioning all the bad things about my current lease, and being really negative about it, and making me feel like garbage.
I’m in sales also. I want to have people’s respect. I don’t treat people like garbage, and I don’t want them to treat me the same. Real Estate and Auto industries have the worst reputations, so therefore it is important that you have your “A” game on, and treat people the way you want to be treated and have customers for life.
The next day, I was busy at work. It happens. I did get a voicemail from the salesman looking for my credit card for the deposit. The tone of his voice was like he was annoyed that I didn’t answer. At the end of the day I ended up getting five calls.
I personally thought it was obsessive. Each call seemed to get nastier and nastier. If the phone messages were nice, I would have been polite and took his call the second time, and politely told him to hold on, and that I would call him when I was ready. If he was a gentleman salesman, he would have respected it. It’s happened to me, and I’ve politely called a few weeks later or a few months, and earned their business.
Now I am so turned away, and really don’t want to do business with Dana. A ton of their cars can be seen driven all over Staten Island, but thank’s to that one salesman, he totally lost my trust and support. I figured that since you see Dana cars all over Staten Island that they would be doing the right thing, and have customers for life, especially myself.
Each dealership has it own story and reputation. The car manufactures don’t seem to address or care about it. They just produce the cars, sell them to the dealers, and the manufactures just cross their fingers that their product will sell.
The economy is rebounding. So why now work together, do the right thing each and every time. Putting pressure to someone is not the way to do the sale or to make them feel like garbage. You want your customer/client to feel important, appreciated, and like a human being. Not a number or a robot.
It will be interesting to see if I find another Ford dealership, and can work something out, or leave Ford and go to another car brand, all because of this bad experience. I have many years left of driving. Let’s build a nice reputation early, and not leave a bad taste in my mouth.
Andrew McDermottLicensed Associate Broker
Clove Lake Realty, Inc.
80 Broad St. 5th Floor, New York, New York 10004
Office: 917-668-6088
Close to 10 Years in Real Estate
Posted by Andrew McDermott, GRI in Life, Real Estate, Staten Island on March 21, 2010
It’s getting close to my ten year anniversary in the real estate business. Its so hard to believe it been that long. So many accomplishments, milestones, ups and downs. While thinking of this article, I also though I would compare it to the music charts. What was popular to what is popular now. When you see the songs and the artists who created them, some are still around, some have split up.
The real estate business too has seen it’s changes. Who is still in the business, who left, and also what was once a big company is now gone and never heard of. Its interesting to see how the times have changed, and what life brings to us in opportunities.
I reflect on past sales and how families have grown faster than a speeding bullet. Some people have moved into larger more spacious homes. Some have found retirement, and moved into smaller homes, almost back to when they were single or newly married.
The amount of education I have had is also enormous. I got my Graduate of the Realtor Institute (GRI) designation, and took countless classes and seminars on various real estate subjects. Also going to the conventions and seeing what the trends are, and the times I’ve gone, I think I’ve been ahead of the curve in my technology and my creativity. I enjoy learning and reading and listing to the stories of peoples failures and learning from the mistakes they made.
You also have seen the people who are trying to make a comeback in the business. Not only do you see that in real estate, but you see it in other business ventures as well. Some are successful, and other struggle to erase their past, and get moving with the future.
Staten Island has also gone though its changes also and the end is not in sight. I really enjoy the fact that Staten Island has the Greenbelt, and that it can never be developed. It is acres of enjoyment for people to walk on the hiking trails, see plants, hear nature, and a place to get lost for hours in the serenity of nature, all by being in your backyard.
Social Networking has allowed me to connect with old classmates, some of which I never thought I would see again! It has been nice connecting with them, and learning what they’ve been up to. Its weird how we were once kids, and now we are grown up doing some great things.
My business is commissioned based. So its up to me to come up with my salary and to meet my goals year after year. Its about building relationships with people, so that they will introduce me to their family, friends, and neighbors. I know I can sleep well at night with the hard work and effort that I put forth in growing my business. I never thought I could give it up, while there were times I did, but I stuck it through. Countless fliers in the doors of Staten Island homes, all waiting for that magical phone call.
Driving through Staten Island, I can point out the many homes I was was welcomed into and saw go through new ownership. Truly amazing and rewarding. There are so many homes, and the stories are endless. I can only imagine what the next ten years will bring.
Andrew McDermottLicensed Associate Broker
Clove Lake Realty, Inc.
80 Broad St. 5th Floor, New York, New York 10004
Office: 917-668-6088
A TEAM Movie
Posted by Andrew McDermott, GRI in Life on February 23, 2010
Fox Movies announced that there will be an A Team movie. However, very little is being said or promoted about it. I happen to catch it on a Google Alert. I even found the trailer for it, and it is listed on the Fox Movies website, but the website isn’t active.
Wikipedia has an article about it. At first I thought it was a fluke, but Fox Movies has it on its website with a release date of June 11, 2010
When I was little, I grew up watching the A TEAM television show. It was one of my favorite shows growing up. Thanks to technology, I now have the show on DVD and can watch it whenever I choose to.
The show featured Mr. T as Sgt. B.A. Baracus, George Peppard as Col. John “Hannibal” Smith, Dirk Benedict as Lt. Templeton “Faceman” Peck, and Dwight Schultz as Capt. H.M. Murdock.
As the shows opening credits says they escaped from a military prison and escaped to the Los Angles underground. If people were able to locate them, they were able to hire them take care of their problems. The show was very entertaining, especially being little.
So now they are taking it to the bring screen. They had always talked of a reunion and it never happened. The movie was suppose to happen a long time ago. So to finally see a trailer for the movie, is one step closer.
The new movie has some big stars so play the roles, Liam Neeson is to play Hannibal, Bradley Cooper is to place Face, Quinton Jackson is to play BA, Sharto Copley is to play Murdock, Jessica Biel is to play a love interest of Faceman, Patrick Wilson is to play Col. Lynch.
Finally Dirt Benedict (original Face) and Dwight Shultz (original Murdock) is to make cameo appearances in the movie.
Stephen J. Cannell the orignal writer of the A TEAM also has a part in writing the movie. The movie trailer looks awesome, I am just now hoping that the trailer matches the movie, and actually comes out with a great product.
Andrew McDermottLicensed Associate Broker
Clove Lake Realty, Inc.
80 Broad St. 5th Floor, New York, New York 10004
Office: 917-668-6088
This Old House – 30th Anniversary
Posted by Andrew McDermott, GRI in Life on February 23, 2010
This Old House is celebrating it’s 30th anniversary. It’s so hard to believe that it’s been on that long. I’ve been watching that show most of it’s time span.
This Old House is featuring a project in Roxbury, Massachusetts, in which they will be rehabbing a foreclosed property, and turn it over to two new families.
This Old House features Master Carpenter, Norm Abram, General Contractor, Tom Silva, Heating Expert Richard Trethewey, and Roger Cook does the landscaping. Kevin O’Connor is the current show host, while Bob Vila was the original host, and then Steve Thomas. The show is aired on PBS, which is channel 13 here in New York.
Every year they do about two projects. They chose a project mostly in Massachusetts, in which where they are live and work, and generally for the summer months move out into the US and abroad to a warmer place, and work on a project there. The show is only a half house, and I am dedicated in watching it weekly.
I’ve always been fascinated with home improvement work, and always learn a thing or two from the show. I apply that knowledge to what I do in my own home, as well as use that for my future home.
The This Old House website also provides valuable research information you can use for research. They also added videos to the website as well. They also have a magazine as well. All provide valuable information in owning and maintaing a home. Some renters even take advantage of the information to maintain a property they are renting.
I’ve had the opportunity and privilege of meeting all of the cast members of This Old House and have either autographs or pictures. The stories will be pages, so I’ll leave it at that. If you ever want to hear the stories, I love telling them. They are so down to earth.
You might ask how i got so interested in watching This Old House. My dad was a stockbroker growing up, and my mom was a homemaker. None of them had knowledge of home improvement, until they started watching the show. My parents said I was three when I first started watching it, and having stopped since.
My parents said I took an interest in the show, and therefore decided to let me watch the show since it wasn’t violent and was a simple how to show.
Since being so little I wasn’t allowed to use power tools. They were very strict about it, and i respected them. They told me that i could cut a finger off, and I decided not to go for it. Eventually when I was ten they allowed me to use power tools, and I started with a sabre saw. One of my parents would watch, and I would have to tell them about what I read about safety.
Norm has that infamous line…Before we do anything, lets talk about shop safety. Be sure to read, understand, and follow all safety rules that come with your power tools and ends with there is no important rule than to wear safety glasses.
Thankfully, I never seriously injured myself, and was successful in the projects I have completed.
A few times I have research the idea of getting a job with the crew, even if it meant doing the grudge work. My dream would be to hose the show. I would leave everything, and move to Massachusetts for it.
Congratulations to This Old House for making it this far. There are many more years to come.
Andrew McDermottLicensed Associate Broker
Clove Lake Realty, Inc.
80 Broad St. 5th Floor, New York, New York 10004
Office: 917-668-6088
“Amanda’s Law”
Posted by Andrew McDermott, GRI in Life, Real Estate, Staten Island on February 22, 2010
New carbon monoxide detector law to take effect February 22
Last year, Gov. David Paterson signed a bill amending the Executive Law requiring carbon monoxide detectors in every one-to-two family property, apartments in a multiple dwelling, as well as all condominium and cooperative apartments only where the dwelling unit has appliances, devices or systems that may emit carbon monoxide or has an attached garage.
The new law is known as “Amanda’s Law.”
Licensed Associate Broker
Clove Lake Realty, Inc.
80 Broad St. 5th Floor, New York, New York 10004
Office: 917-668-6088
How’s the market?
Posted by Andrew McDermott, GRI in Life, Real Estate, Staten Island on January 18, 2010
I was in a conversation the other day with a good friend who knows I am in the real estate business. They asked me this question:
My friend: How’s the market?
Andrew McDermott: Overall the market is doing well.
Andrew McDermott: I’m curious when you ask how’s the market, would you be interested in specifically how much homes are selling for in your neighborhood and how long they are taking to sell?
My friend: Yes.
Andrew McDermott: What I do for my friends, family and other people in the neighborhood is send a quick email that gives you an up to the moment analysis of how well the market is doing in your neighborhood. Would you like me to send that to you?
My friend: Yes
Andrew McDermott: Cool, what’s your email address.
Have you checked?…
Posted by Andrew McDermott, GRI in Life, Real Estate, Staten Island on January 14, 2010
When was the last time you checked your credit report? If you have not done so, you should, especially if you are looking to purchase a new home for the first time or upgrade or downgrade your current living standards.
Every year, you are entitled to a Free credit Report from each of the credit bureaus. Experian, Equifax, and TransUnion. It allows you to see all of your accounts, and allows you to address any discrepancies.
You need to pay extra to see your credit score. The report is free on your anniversary date. You want to make sure that you have a credit score of 700 or higher. Any lower, don’t worry, there is always a way to fix it or improve it.
While I am only a Real Estate Agent in Staten Island, New York, experience shows by having a higher credit score means a better interest rate, and less headaches. Especially since the banks are being strict on who they lend their money to.
My only brief suggestion is that you want to stay on top of any credit card, car loan, or mortgage payment. The day that you are late, is when trouble usually happens, and it will take a while to clear up on your credit report.
If you know you are going to be late with a payment, call the company. Let them know you are going to be late. Let them know the date and the amount. They can note it in the system, and may possibly help you avoid late fees. Don’t keep it a consistent pattern or you will be on that company’s watch list.
Budgeting, and knowing what you spend can be an extremely valuable resource as well. You can see where your money is going, and you can sometimes find unnecessary spending. My website has a mortgage calculator, in which you can estimate payments, so that you can set a budget for yourself.
Also, don’t forget the utility bills, as well as an emergency fund in case something haywire goes on in your house.
Raising your credit score doesn’t happen overnight, and you can’t pay the credit bureau’s to raise it for you. You need to be smart in what you do, and communication and doing your homework is the key.
As of right now, people don’t get credit for paying their rent on time. Credit cards, personal loans, car loans, are the big ticket items. Make sure that you pay them, and possibly a little over the minimum payment.
Andrew McDermott is an Associate Broker with Clove Lake Realty in Staten Island, New York. Clove Lake Realty is located at 1267 Clove Road, Staten Island, New York. Around the corner from us is the Clove Lake Book Store, and we are across from Clove Lakes Park.
Mortgage Calculator
Posted by Andrew McDermott, GRI in Real Estate, Staten Island, Staten Island Homes for Sale on January 11, 2010
Mortgage Calculator