Litigation: the Boxing Match That Never Ends

Litigation can often be a boxing match that never ends. Imagine a scenario where you are a professional boxer in a boxing match. You start the match feeling very confident. You throw a straight punch followed by a hook, and then you pull a haymaker and a mixture of other punches that have other names of an unknown origin. To your surprise, however, your opponent pulls a Bolo punch, and you find yourself on the floor. Ready to throw in the towel, you do so, and the referee ends the match.

That’s the end of it, right? Well, no. Your opponent continues to hammer you, relentlessly. Refusing to acknowledge your surrender.  What would you say about such a scenario? What if you were to be told that such scenarios often occur in the world of litigation?

In the event you get sued, you have two options: litigate the case or settle it. You may decide to litigate, but in this scenario you settle, at which point, you enter into a settlement agreement.

You do your part and abide by the terms of the settlement. To your astonishment, however, your opponent does not discontinue the case, despite your compliance and the settlement agreement. How would that make you feel? That is exactly what transpired in the case of Martin v Harrington, 2016 NY Slip Op 04027 [2d Dept May 25, 2016].

In the Martin case, neighbors had a property line dispute. Martin claimed that due to improvements made by Harrington on his property, which included an asphalt driveway, Harrington encroached and trespassed on her property.

The neighbors fought it out in court for about six months. The parties finally agreed to settle the case. The proposition to settle was initiated by Martin’s counsel. The attorney for Martin sent a letter to Harrington proposing to settle the matter; Martin would discontinue the case if Harrington were to satisfy certain conditions. Harrington agreed and satisfied the conditions including removal of the encroachment, which cost him over $5,500.00.

About three years later, Martin complained to Harrington that he is still encroaching upon her property. Harrington’s position was that he satisfied the conditions as agreed upon. To Harrington’s surprise, Martin did not discontinue the case despite complying with the conditions.

It is parallel to our analogy with the boxer; you tap out, but your opponent is still throwing punches at you. Harrington moved the court to enforce the settlement agreement and dismiss the case as settled. Martin (who wants to have her cake and eat it too) claimed that the settlement agreement is not binding.

New York Civil Practice Law and Rules defines what constitutes a binding settlement agreement. An agreement is binding upon a party if it is in writing and signed by the party or the party’s attorney. Furthermore, the settlement agreement must contain all the material terms and must be clear that there is a mutual accord between the parties.

In the Martin case, the material terms were contained in the letter that was sent from Martin’s attorney to Harrington’s attorney. Based upon the correspondence between the attorneys, Harrington performed the tasks set forth within the settlement. Martin never objected to the settlement or to Harrington’s compliance with the conditions. The court in the Martin case therefore concluded that the settlement agreement is indeed enforceable and confirmed the dismissal of the action.

The lesson to be learned here is to make sure that your attorney is careful to ensure that the settlement agreement is absolutely binding, and then to follow-up and verify that the case is discontinued upon satisfaction of the settlement terms. You do not want to be in the position of the boxer that is being pummeled while down.

Renting a Car, Know Your Rights

You are on vacation, and like most people you rent a car. As part of the rental process, you show the agent at the counter your driver’s license. You are asked, “are there going to be any other drivers of the vehicle?” and you say “no, just me” before leaving with the car. The question you should be asking is: if you are renting a car, do you know your rights?

Now let’s say you are traveling with a spouse, a friend, a significant other, or any other properly licensed driver, and they ask you if they can take the car just to “pick something up; they’ll be right back”.

Sound familiar?

Now let’s say that the unregistered driver of the rental car gets into an accident and causes damage to a third party or to the car you rented, which you know would be completely covered if you were the driver.

The insurance company now tells you that you are personally responsible for the damages to the car and/or third party because you let “an unauthorized” person driver operate the rented car.

DON’T FALL FOR THAT LINE! Under New York State Law, you are protected.

New York State Vehicle and Traffic Law (VTL) section 370 requires rental car companies to provide insurance for their vehicles, including minimum liability coverage for bodily injury. The VTL further requires that such insurance “insure to the benefit” of the permissive user of the vehicle.

The New York State Court of Appeals held in MVAIC v Continental Nat’l. Am. Group Co. that where the lessee of a rental vehicle PERMITS another person to operate it, the rental company is deemed to have constructively consented to such use, and here is the important part, folks, that is EVEN WHERE THE LEASE VIOLATED THE RENTAL AGREEMENT BY ENTRUSTING THE RENTAL CAR TO ANOTHER.

In following the lead of the Court of Appeals, the Appellate Division of the State of New York, stated in Lancer Ins. Co. v Republic Franklin Ins Co., the fact the lessee was the only individual expressly authorized to operate the rental car in the case does not make the driver a non-permissive.

Know your rights? Do not assume the insurance company of the rental car company is protecting you or your rights.

For any further questions, or any other issues, please contact us at 631-622-2080 and please like us on Facebookfor more great law insight.

 

“Renting a Car, Know Your Rights” was written by Michael B. Schulman, Managing Attorney.

Michael B. Schulman is now a licensed Real Estate Broker in the State of New York

We are pleased to announce that Michael B. Schulman is now a licensed Real Estate Broker in the State of New York. As always, Michael B. Schulman & Associates, P.C. is here to assist you with regard to any real estate transaction from the time of sale to closing, or to assist in your obtaining a lease for residential or commercial spaces. Please feel free to contact us at 631-622-2080.

Maybe you are a first time buyer or seller of a home, condo or coop.  Maybe you are buying a property to flip. Whether it is a short sale, a multi-family home or a commercial property, you want to work with a group of lawyers who are competent and knowledgeable with regard the various transactions.  Michael B. Schulman & Associates, P.C. pride themselves on  representing  you and only you. We do not represent the bank or lending institution. You can rest assured of getting our complete and undivided loyalty and attention.

Our attorneys will review and prepare all of the necessary documents to ensure you a proper closing. From the contract to loan application, the  title report to the final closing documents, the attorneys at Michael B. Schulman & Associates look to eliminate any “cloud” on title. We review the survey and legal description to make sure they match. We look to make sure that there are no open permits, building applications or violations and see to it that the building has all of the proper certificates.

If there are any obstacles prior to closing, whether you are the seller or buyer, we have the expertise to help you overcome those obstacles. 

If you are a Landlord of a multi-family unit, single family unit or commercial property, Michael B. Schulman & Associates can assist you in reviewing and/or drafting the lease to ensure that the terms are what you want, prior to you signing. 

Our goal at Michael B. Schulman & Associates is to consummate the deal. However, as we all know, sometimes things do not go as planned. If the necessity arises we carefully prepared to litigate a deal that goes “bust”.

Michael is a well-respected attorney in the community who has obtained a wealth of experience in his 30 plus years as a New York attorney. As the founding member of the firm, Michael has taken it upon himself to embody the cornerstone motif of “Professional, Personal and Proficient” in all aspects of his life.

Michael is happily married with two grown children and four small dogs. He is eagerly awaiting the arrival of his first grandchild due in the summer of 2015.

An avid golfer who loves to show off his framed “Hole in One” ball, Michael is a proud member of the Old Westbury Golf and Country Club where he was treasurer and held a position on the Board of Governors. Michael enjoys working in his yard, creative carpentry and traveling when the opportunity arises.

Unlike Michael roots for the underdogs, like the NY Mets. Baseball season brings out a “healthy competition” in the office.

 

“Michael B. Schulman is now a licensed Real Estate Broker in the State of New York” was written by Michael B. Schulman, Managing Attorney.

New Year’s Resolution: Resolve to Get Paid in 2016

As the new year dawns, many individuals make resolutions to try and make better decisions and lead a healthier and a more active lifestyle; the most common example is the resolution to lose weight and get in shape, while many others resolve to give up bad habits such as smoking, but many business owners need to aim to be prosperous, and to get paid.

Often these resolutions fall by the wayside before Martin Luther King Day arrives and few will ever make it past Valentine’s Day.  However, there are those whose resolutions make it far beyond the spring thaw and those who can keep their New Year’s Resolutions are usually much better off than those who recanted.

When it comes to small businesses, a New Year’s Resolution can also lead to increased prosperity in the New Year.  Many small business owners feel renewed by the prospect of starting fresh in a new year and are reinforced by the belief that this will be “their year.”  However, one thing that many small business owners may be surprised to learn is that a great way to help cement that idea and help the bottom line moving forward is to actually look back.

Nearly every business on Long Island, both large and small, have outstanding debts owed to them.  These could be venders who did not deliver on time or at all, sales gone unpaid, contracts breached or interest and penalties gone unenforced.  Often this money goes uncollected to the detriment of the business and vicariously to the business owners themselves.

Going after customers and venders for money is often the last thing that a business owner wants to spend time doing.  Many people would rather use their resources to get new business rather than lament on old business that went bad.   Thus, many choose to “write it off” or “take the loss” or “cut their losses” on such matters.

The good news for businesses in New York is that it does not have to be that way.

They can have it both ways.  Hiring an attorney to collect old debts, those less than six years old anyway, would allow the business owner to still devote their energy to garnering new business, while the attorney collects from those customers and vendors who have wronged you and hurt your business by refusing to pay or breaching their contracts with you.

There are various methods that an attorney can utilize in collecting a debt that a lay-person may not be privy to beyond that of filing suit.  Often businesses and individuals, out of fear of litigation, may suddenly pay the debt or try to work a settlement after receiving a letter on the letterhead of a law firm.  The involvement of an attorney shows that you are serious about the debt and enforcing it.

While it is true that by utilizing an attorney will often mean that a business may not ultimately receive the total amount owned, remember that the debt was not being paid at all before the attorney started working on the case.  The amount owed to the business was just dead, sunken money.  A hungry person does not reject half a loaf of bread because he knows half of a loaf of bread is still better than no bread at all.

 

“New Year’s Resolution: Resolve to Get Paid in 2016” was written by Michael B. Schulman, Managing Attorney.

A Juror Grappling With The Evidence

A Juror Grappling With The Evidence:  While serving as a juror, you will be presented with a wave of evidence that you are expected to consider and draw conclusions from. At times, the evidence may be overwhelming, and so taking a structured approach is helpful to making sense of it all.

A juror need not accept all the evidence admitted in trial as true. Rather the juror must evaluate the testimony and decide how much weight to assign to a given testimony surrounding each piece of evidence. It is important to keep in mind that a testimony may not be reflective of reality. For example, the witness may be lying, or he or she did not accurately observe the events as they transpired. The witness’s memory may have faded, or he or she may not have been clear about the facts, which could, in a juror’s mind, lessen the weight given to such evidence. There is not a set rule based upon which a juror is supposed to evaluate the evidence. A juror is expected to decide the reliability of information based upon the tests he or she applies on a daily basis, and this is molded by their life experiences and background.

There are various questions that a juror should answer about a given witness when weighing the witness’s testimony: (1) whether the witness has an interest in the outcome of the case; (2) whether the witness has a bias or prejudice; (3) the age of the witness; (4) the appearance of the witness; (5) the demeanor of the witness when relaying his or her testimony; (6) the opportunity and the circumstance under which the witness observed the facts he or she is testifying to; and (7) the probability of the witness’s testimony in light of the remaining evidence.

The evidence presented may conflict with other evidence. Therefore, the juror should try to reconcile the evidence, weighing it all in turn. However, if the juror is unable to fit the conflicting evidence, then the juror must decide which evidence to accept and which evidence to reject.

At times, a given testimony is not contradicted with an opposing testimony, but still appears unproven. A jurordoes not need to accept unopposed testimony. Each member of the jury must assign weight to the testimony, especially when it is not opposed, and a juror can reject the testimony in its entirety, as untrue, if they so deem. The important thing to remember as a juror is to weigh each testimony and each piece of evidence.

A case may involve events that have occurred at a certain location. The juror should refrain from visiting the location, because the present condition of the location may be different from what it was at the time that the events occurred. Therefore, the juror must rely only upon the evidence presented at trial in order to assess the condition and circumstance under which the events occurred.

A case may also involve heightened media attention.   Therefore, if necessary, a juror may be instructed to refrain from gathering information about the case through the newspaper, radio, television, or social media. A juror is not permitted to conduct his or her own research about a given matter or topic, whether through books, magazines or the Internet. As a precaution, the juror is asked to turn off electronic devices. As mentioned above, the juror must only draw his or her conclusions from the evidence admitted at trial.

Do not be overwhelmed. Remember, there are other jurors with whom you will have the opportunity to discuss and assess the evidence. You are not on your own.

 

“A Juror Grappling With The Evidence” was Posted by Michael B Schulman, Managing Attorney

What NY Attorney General Ruling on DraftKings & FanDuel Means for You

This week’s announcement from the New York State Attorney General’s office that ruled that daily fantasy sports games, specifically those runs by DraftKings and FanDuel, constituted illegal gambling has left many fantasy sports fans on Long Island and throughout the state of New York wondering exactly what this means for them. Eric Schneiderman, the NY Attorney General, issued a cease and desist letter to both companies ordering them to stop accepting wagers from New York residents. Meanwhile, both FanDuel and DraftKings have fired back stating their intent to fight the ruling and already high-powered attorneys have been hired to represent them in the upcoming legal battle royale.

For those unfamiliar with the popular trend of fantasy sports, the traditional method includes a group of individuals drafting players in a particular sport, most commonly football, baseball, hockey, and/or basketball, and assembling a roster of their own fantasy team that competes against the roster of the other participants in the league. Traditionally, this occurred over the course of an entire season and also involved the adding, dropping and trading of players over the course of that season. Since their origin in the 1980s, fantasy sports have become so popular that millions of Americans compete in leagues each year, and the subject became the basis for a sitcom on FX called The League, which has run for nearly a decade.

However, the newest take on traditional fantasy sports only arose in the past decade, and these “daily fantasy leagues” in question are significantly different than their league-long counterparts. Instead of competing over several months in a season, a daily fantasy player competes in a season that is only one day or one week at a time.

The central focus point at issue is whether daily fantasy sports are considered a game of skill or a game of chance, i.e. gambling. New York has taken the position that daily fantasy sports represent a game of chance in which the player has no control over the outcome of his wager. In essence, New York is claiming that picking a daily fantasy roster is the same thing as playing the lottery. You buy a ticket and from that point forward all results are purely random.

Conversely, DraftKings and FanDuel state that daily fantasy sports is a much more involved game of skill. Their theory is that the winners tend to be those with intense knowledge of the game, the players, the teams, and the attention to detail that fantasy owners bring. They claim there is skill involved in picking which players for your roster in a given day and daily fantasy gamers use that skill and knowledge to perfect their entries and ultimately win the big prizes.

Both sides appear to be digging in their heals on this distinction. Several large investors in both the sports world and corporate America back DraftKings and FanDuel; some of these include but are not limited to Major League Baseball, the NFL, the NBA, Google Capital, Fox Sports, Jerry Jones (owner of the Dallas Cowboys), and Robert Kraft (owner of the New England Patriots). While few would argue that there is not at least some knowledge and skill involved in knowing which matchups would be more likely for success than others in a daily fantasy league, the same can be said for other traditional gambling games of chance such as the table games poker, blackjack, or craps, which are all illegal in New York. Ultimately, the courts will decide in which category daily fantasy sports belongs.

For the approximately 600,000 New York residents registered on the two sites, the big question on their minds is whether they can continue to play daily fantasy sports on these sites. For now, the answer appears to be yes. Both DraftKings and FanDuel are continuing to accept entries from New York, but they still have five days to appeal the Attorney General’s ruling, something they will surely pursue. Once the five days are up, an injunction will likely be requested to keep the sites up and running pending a court ruling. The Attorney General’s office has also made it clear that it is not looking to prosecute the actual users (voters) of the sites, but the sites themselves.

Ultimately, this issue may settle upon regulation rather than abolishment of daily fantasy sports. Similar legislation and regulation is pending and being demanded in other states, such as Nevada and Florida. Even in New York, the State Assembly has petitioned for a task force to examine the industry and determine if an exemption to the New York gambling laws is needed, similar to the horse racing industry and private casinos currently operating in the state.

Stay tuned!

 

“What NY Attorney General Ruling on DraftKings & FanDuel Means for You” was written by Michael B. Schulman, Managing Attorney.