December 24th, 2012
As of the end of September, 2012, the New York State Department of Motor Vehicles has new regulations pertaining to drivers with multiple alcohol/drug-related driving convictions. This is a logical result from the increasing sanctions that pertain to Driving While Intoxicated or Driving While Impaired by Drugs offenses enacted by the Legislature.
These new regulations define a “persistently dangerous driver” as one who has had five or more alcohol/drug-related driving offenses or convictions in their lifetime or a motorist who in the last twenty-five years has had three or four alcohol/drug-related driving convictions plus one “serious driving offense”. Motorists with the “persistently dangerous driver” finding are to be permanently denied re-licensure, however, that permanent disqualification may not occur to the extent that the motorist demonstrates “compelling or extenuating circumstances”.
The regulations provide that if a current revocation for an alcohol-related offense involves a motorist with three or four similar prior convictions and without any serious driving offense in the last twenty-five years the denial of re-licensure shall be a period of five years in addition to whatever the statutory revocation period was for the current offense and with any subsequent re-licensure resulting in a restricted use license, as well as the requirement to install an ignition interlock device for a five year period.
To the extent that the current conviction is for a non-alcohol-related offense but results in some form of a revocation penalty, the Department of Motor Vehicles will deny re-licensure for two years in addition to whatever the statutory revocation period was for that particular offense and then re-license with a restricted use license for a period of two years, however, the ignition interlock device would not be required in that circumstance because the latest conviction would not have been alcohol-related.
Lastly, motorists that have two or more alcohol/drug-related driving convictions within the prior preceding twenty-five years are required to serve their entire suspension or revocation period even to the extent that they have completed the Drinker Driver Program.
The Department of Motor Vehicle already had an internal system for governing the timing of re-licensure in the event of revocations and these new regulations simply increase and strengthen those which have already existed.
The difference between a suspension and a revocation is that the suspension allows for the license to be returned following a relative short period of time whereas a revocation is akin to the license being destroyed such that the motorist is then required to reapply to the Department of Motor Vehicles to request that a new license be issued. Despite how important the ability to drive is in our society, the ability to maintain a driver’s license is a privilege as opposed to a right.
As a result, this is simply another example of why all should be very careful when operating their motor vehicles after consuming alcohol or drugs.
December 17th, 2012
With the New Year on its way, and in addition to the “fiscal cliff” issues, there are a few changes that will or may arise from the Legislature that affect individual homeowners and potential buyers of real estate, and the real estate market as a whole.
The first such change will be the possible elimination of real estate related income tax deductions. If such a bill passes, the individual tax payer would no longer be able to benefit from taking deductions for the mortgage interest they pay throughout the year on their mortgages and real estate taxes that are paid on such real estate, or such deductions would be limited or modified in some way. Experts are debating as to whether or not this elimination would cause potential homeowners to decide against owning and continue renting for their housing needs.
Another change that may be on the horizon is the possible failure of Congress to extend the Debt Relief Act which will expire on December 31, 2012 if not renewed. The Act temporarily amended the tax code to allow mortgage debt that is cancelled through a loan modification, foreclosure sale or short sale to escape tax as ordinary income. Depending on the amount of mortgage debt forgiven, a homeowner could be subject to substantial tax if that amount is considered ordinary income by the IRS.
On a better note, the Federal Housing Administration (FHA) has already eased its standards in certifying condominiums and their homeowner’s associations in order to allow more access to FHA mortgages. The FHA, before certifying a condominium, looks at the viability of the association, which usually includes a review of the association’s budget, reserves, assessment default rates and ratio of owner-occupied units to leased units. The FHA has significantly lowered the factors they require for certification. Whether this will significantly increase the numbers of buyers for said condominiums (traditionally purchased by first time home buyers who are in need of FHA’s assistance in the loan market) or not is the question.
Given the above, it seems like there will most likely be some changes in the coming year that will affect the real estate market. The extent of said changes is still up in the air.
December 12th, 2012
From time to time, and particularly during the holiday season, I am asked by kith and kin alike about the responsibility a homeowner has to prevent people from drinking too much at a holiday party. Concerns range from the health of the person drinking copious quantities of eggnog to the legal liability and of the host who provided the eggnog. I cannot offer an opinion on the healthy amount of eggnog, but I can provide some insight into issues that may arise when a drunk guest leaves a party and injures someone.
Without turning this into a legal brief, in New York State the basic rule is that an adult host of a party (whom we’ll call Martha) is not legally liable or responsible if an adult guest (whom we’ll call W.C.) has too much alcohol and then drives away from the party causing some injury to a someone else (we’ll call her Sue). So if Martha spiked the eggnog and W.C. imbibes too much eggnog and then injures Sue, Martha is not responsible for W.C.’s actions and the law will not support a lawsuit against Martha.
The line can get blurred when an adult host provides alcohol to an under-age guest who then leaves the party and injures someone else. In that situation, if W.C.’s son (call him Chester) consumes too much eggnog, and Martha is aware of Chester’s drinking and lets it happen, then Martha has some legal responsibility. Sue can take Martha to court for her role in Chester getting drunk and injuring Sue. Also, W.C. can take Martha to court for the injuries sustained by Chester.
To be sure, it is generally unlawful for an adult to provide alcohol to a minor. The law recognizes a parental exception, but still does not permit intoxication by the minor even if the parent approves.
So eat, drink, and be merry including, but not limited to, encouraging responsible behavior toward alcohol [this is no way should be interpreted as an endorsement of alcohol consumption by minors or to excess by anyone, and prior results do not guarantee similar outcome]. That may seem at odds with the merrymaking, but when you’re making memories, you should at least keep in mind the ability to recall them.
November 29th, 2012
Many commercial landlords often find themselves litigating the terms of a lease agreement to obtain a recovery against a tenant that has defaulted. To increase the likelihood of succeeding against a tenant that has defaulted, the following three provisions should be included in the lease agreement:
- Acceleration Clauses – these clauses are very important especially for long-term lease agreements. Acceleration clauses allow a landlord, upon default of the tenant, to accelerate and immediately demand payment in full of the tenant’s rental obligation under the lease for the remaining term of the lease following the default. Without an acceleration clause, a cause of action to recover unpaid rent will have to be brought periodically as payments would become due or at the end of the lease term.
- Personal Guarantees – in connection with renting a commercial space to a corporation, partnership or limited liability company, a unconditional guarantee by the principal of the tenant-entity is a must have. A guarantee by the principal allows the landlord to recover rent due from the owner of the company generally without having to proceed against the company first. If your tenant is a business entity with no assets, and a default occurs, without a personal guaranty, any judgment obtained for rent, costs, etc. will not be recoverable. The personal guarantee provides additional security for payment to the landlord.
- Attorneys’ Fees – to ensure that you can recover the attorneys’ fees you incur in connection with litigation or curing a default by a tenant, the lease agreement must specifically provide the right to recover attorneys’ fees and costs. To the extent that the tenant will agree to a clause that allows a landlord to recover fees and costs, without a right of reciprocal recovery to the tenant, this is a more favorable position for the landlord. Otherwise, the clause should provide for the right of the prevailing party to recover attorneys’ fees and costs. Without this clause, New York State Courts disfavor awarding them to any party.
We have several attorneys on staff that can review your commercial lease agreement to provide you with suggestions on improving and/or updating the provisions contained therein.
November 26th, 2012
The issue of a person’s legal place of residence has significance in matrimonial proceedings and other legal matters affecting where you can sue or be sued or where you must pay taxes among others. Legal residence is primarily a function of intent. To put it simply, your place of residence is where you intend it to be. When an issue arises such as residence for legal purposes, there are various factors that courts or other governmental agencies look at to determine your place of residence. Included in these factors are: where do you vote; what jurisdiction issued your driver’s license; where are your bank accounts; where do you or your children attend school; where do you own property; how much time do you spend in one state or another; where is your investment advisor; your doctor; your dentist?
The above tests help determine if your actual residence matches your declared intention. In some situations in New York, a bright line test is used. In determining if you are a NY residence for income or estate tax purposes , the Dept. of Taxation and Finance looks at the above factors, but if you spend too much time in the state, these factors make no difference. The same holds true for New York City income taxes.
Duration of residence is also important. In New York, a minimum of one years residence is necessary before commencing an action for divorce. For active duty military and their families, the state of legal residence is their declared “home of record.” This can be the state from which the serving member entered the service, or any other state in which they were, for a time, stationed. The home of record remains their state of legal residence until they declare an intention to establish legal residence elsewhere. This is true even if they are absent fro the state of declared residence for months or even years.
November 15th, 2012
Am I eligible for Social Security Disability?
In order to qualify for SSD you must have worked in a job(s) covered under the Social Security System and paid Social Security taxes. By working and paying taxes, you earn Social Security credits. The number of credits required to qualify for disability depends on your age and how long you have worked. You can check your Social Security Statement to see how many credits you have earned or contact Social Security’s toll free number at 800.772.1213 for this information.
Can I work and still receive Social Security Disability Benefits?
Working and receiving benefits is possible under certain circumstances. Generally, if you make less than $800.00 gross wages per month, and your work is not considered “substantial” than you can work and also receive Social Security Disability benefits.
If I win my case how much money will I receive?
This depends how much you have paid into the Social Security system. Monthly individual amounts for Social Security Disability range from approximately $800.00 to $2100 per month. If you have dependent children under age 18 you will be paid an additional 50% of your benefit amount for your children’s support.
How far back will Social Security go in awarding me benefits?
You cannot get paid back benefits dating more than one year prior to your application date. It is very important to submit your application for Social Security Disability benefits within 17 months of stopping work.
How does Social Security decide who is disabled?
The Social Security Administration considers an individual disabled if they meet the following criteria:
- The applicant cannot do work they previously did;
- The applicant cannot adjust to other work because of the applicant’s medical condition (s);
- The applicant’s disability has lasted or is expected to last for at least one year or result in death.
If you need assistance with an existing claim or have questions about a potential claim please feel free to contact me at 716.932.6814.
November 12th, 2012
Many parents are under the misunderstanding that if they are the custodial parent of a child they can relocate at will and merely have to file documentation alerting the court and other parent of their decision. This is entirely incorrect. A custodial parent cannot relocate with a minor child without written consent from the other parent or a court order. Even in situations where the custodial parent has sole legal custody of the child, he or she must petition a court of competent jurisdiction prior to relocating with the child. The custodial parent should file a petition as soon as possible, as it may take months to schedule a trial date and the Court will be very reluctant to allow the parent to move on a temporary basis in the meantime. In the event a custodial parent relocates without written consent or court order, the other parent may file a motion for the immediate return of the child (with or without the custodial parent).