Each person appointed by the New York court to be a Mental Hygiene Law Article 81 guardian must complete a training program which covers:

1. the legal duties and responsibilities of the guardian;
2. the rights of the IP;
3. the available resources to aid the IP;
4. an orientation to medical terminology, particularly that related to the diagnostic and assessment procedures used to characterize the extent and reversibility of any impairment;
5. the preparation of annual reports, including financial accounting for the property and financial resources of the incapacitated person.

The New York court may, in its discretion, waive some or all of these education requirements or impose additional requirements.

In doing so, the court shall consider the experience and education of the New York guardian with respect to the training requirements , the duties and powers assigned to the guardian, and the needs of the IP.

The law allows   family members and friends to make health care decisions, including decisions about the withholding or withdrawal of life-sustaining treatment, on behalf of patients who lose their ability to make such decisions.

It applies to patients who have not prepared advance directives, such as health care proxies and living wills. There is a protocol for health care practitioners to determine whether a patient in a hospital or nursing home has decision-making capacity.

For patients without such capacity, the selection of a surrogate is required from a list of individuals ranked in order of priority, including family members, domestic partners and close friends.

Even with the passage of the FHCDA, you should still prepare a health care proxy and living will. These can be tailored to give your agent as much or as little authority as you desire.

Your wishes regarding the administration of artificial nutrition and hydration must be specified in writing in order for your agent to discontinue such measures

New York’s Guardianship Statute, Article 81 of the Mental Hygiene Law, ensures that the guardian’s authority is narrowly tailored to do only what the IP can no longer do for himself or herself.

The need for a New York guardian could arise when an IP becomes physically or mentally incapacitated for any number of reasons, including accident, disease, or merely the natural process of aging.

This incapacity must pose a risk of harm to the individual who must be incapable of understanding the nature and consequences of his or her incapacity and its potential risk.

The following people may commence a proceeding for the appointment of a New York guardian: the person himself or herself, children, siblings, parents, the chief executive of a hospital or other health facility where the person resides, someone with whom the person resides and others who can demonstrate direct concern for the welfare of the person.

The court appoints an impartial court evaluator to interview the alleged IP and make recommendations to the court. The court hears from all of the interested parties involved, especially the alleged IP if able to communicate his or her wishes.

The court-appointed evaluator, the alleged IP’s attorney if represented by legal counsel and the person seeking the guardianship are all present and heard.

The New York guardian’s chief responsibility is to make decisions for the IP. These decisions must be well reasoned, protecting the IP and within the scope of the authority the court has granted the guardian, including: managing the monthly income and expenses of the IP, selling real or personal property, hiring home health aides and applying for government benefits.

The guardian is also responsible for visiting the IP at least four (4) times per year, providing the court with a report 90 days after being appointed that explains the steps the guardian has taken to meet the needs of the IP and providing the court with a yearly report on the status of the IP and whether the guardianship should continue. The guardian does not have the power to make health care decisions on behalf of the IP unless specifically authorized by the court.

Service may be made in one of three ways:

(1) personal service (directly on the tenant);

(2) substituted service (directly on some other person of suitable age and discretion residing or employed at the same address);

(3) conspicuous “nail and mail” service (affixing copies on a conspicuous part of the property).  Methods 2 and 3 also require mailing.

The Niagara County, New York Court ruled that courts have the power to enter a money judgment against a tenant who defaults after receiving a petition and notice of petition by substituted or conspicuous, rather than personal, service if:

(1) at least two reasonable attempts were made to serve the tenant before resorting to these methods of service; and (2) Within one business day after such alternative service, a copy of the eviction papers was mailed to the tenant both by registered or certified mail and by regular first class mail.

Furthermore, in order to obtain a money judgment for attorneys’ fees and other incidental expenses (e.g. late fees) beyond traditional rent owed, the lease must identify these damages as “additional rent.

If you are a NY landlord and have legal issues that need to be addressed,  call 1-800-729-4571 to find out more about professional and affordable legal services offered by the Bob Friedman, a Buffalo Landlord Attorney.

Compensatory damages consist of special and general damages. Special damages include actual out-of-pocket expenses or losses, including actual expenses such as moving and storage expenses and the losses that directly result from discriminatory practice such as having to move to more expensive alternate housing or inferior alternate housing.

Compensatory damages also include general damages for humiliation, embarrassment or emotional distress.

Courts award punitive damages if there is a reckless disregard for another’s rights. The following factors are considered in determining the amount of damages:

• The egregiousness of the conduct.
• The frequency of discrimination, i.e. whether it was a single, isolated incident or part of a continuing pattern of practice.
• The relative wealth of the owner.
• Whether the property owner participated in conciliation in an effort to settle the complaint.
• An amount sufficient to deter the property owner from continued violations of the civil rights laws.

Punitive damages were awarded against a landlord who evicted tenants for entertaining black guests because:

• The tenants had warned the landlord that his eviction attempt violated the Fair Housing Act.
• The landlord expressed animus by using racial epitaphs.
• The landlord had a history of racial discrimination.

If you are a Landlord with property in the Buffalo, New York area and need assistance with legal issues specific to property owners, see my Landlord legal page for more information

The notice contained a seven-point list of facts surrounding the arrest of the tenants inside the premises where they were in possession of marijuana. The tenants claimed that the eviction proceeding must be dismissed because the notice failed to lay-out the underpinnings of the illegal conduct complained of, rendering the notice vague, conclusory and defective.

The City of New York Civil Court, Richmond County held that the annexation of the following materials to the petition and the notice of termination gave clear notice of the events out of which the landlord’s grievance arose and served to allege adequately the elements of its cause of action: search warrant, arrest reports of the tenants, the Police Laboratory Controlled Substance Analysis Report indicating that marijuana was seized at the premises and the Police Report indicating that a scale and packaging materials were seized during the search and subsequent arrests.

The court held that the tenant’s participation or acquiescence in the use of the apartment for illegal drug sales may be inferred from the indicia of drug measurement, packaging and scales recovered in the search of the premises.

Only a duly appointed executor (designated in the will), administrator (if there is no will) or Public Administrator (if there is no will and no known heirs) is permitted to enter the apartment and dispose of the decedent’s personal property. Children or other relatives of the tenant may not have authority to remove property from the apartment.

If an administrator or executor has not been appointed by the New York Surrogate’s Court and no one has taken possession of the apartment, the landlord can institute eviction proceedings three months from the date of death. The eviction notice of petition and petition must be served on:

• The surviving spouse, if any, otherwise on:
• A surviving child, if any, otherwise on:
• One of the other distributees (those who would inherit the estate if there
  were no will, i.e. grandchildren, parents, nieces or nephews).
• If there are no known heirs, contact the Public Administrator for guidance.

The estate is liable for the remaining balance of the lease term. If there is an unexpired lease, the executor, administrator or legal representative of a deceased tenant my request that the landlord consent to assignment of the lease or to subletting.

The request must be accompanied by the written consent of any co-tenant or guarantor of the lease and state the name, business and home address of the proposed assignee or sublessee. Within 10 days after the mailing of the request, the landlord may ask for additional information.

Within thirty days after the mailing of the request or the additional information requested by the landlord, (whichever is later) the landlord must send notice of his election to terminate the lease or to grant or refuse his consent.

The landlord’s failure to send such a notice will be deemed to be a consent to the proposed assignment or subletting. If the landlord consents, the estate of the deceased tenant and any other tenant still remain liable for the performance of the tenant’s obligations under the lease.

If the landlord terminates the lease or unreasonably refuses to consent, the lease shall be deemed terminated and the estate of the deceased tenant and any tenants thereunder are discharged from further liability as of the last day of the calendar month during which the landlord was required to exercise his option.

If the landlord reasonably refuses to consent, the lease shall continue in full force and effect subject to the executor’s right to make further requests for consent. All requests, notices or communications must be sent by registered or certified mail.

If there are damages to the apartment and unpaid rent, the landlord should file a proof of claim in Surrogate’s Court and serve it on the executor or administrator within seven months of when he is appointed by the court.

• If there is an “automatic renewal” clause in the lease, the landlord must give the tenant fifteen to thirty days advance notice that the rental period is about to be automatically renewed.
• Non-payment of rent: The landlord must properly serve the tenant with a three-day notice to pay late rent or vacate the premises.
• Other violations of the lease: The tenant must be served with written notice that if violations of the lease are not corrected within a certain amount of days specified in the lease, the lease will be terminated. Examples of violations are: improper subletting, excessive noise or violation of a no-pet provision.
• A month-to-month lease, unless otherwise specified, may be terminated by either the landlord or the tenant on a full month’s notice. No specific reason is necessary for the landlord to terminate the lease of a month-to-month tenant. For example, in order to terminate a lease effective November 30, notice must be given no later than October 31.No notice is required to terminate a lease for a fixed-term (e.g. January 1 through December 31). However, a tenant should be sent a written reminder, well in advance of the expiration of the lease, that he or she will have to move if the lease is not renewed in writing by a certain date.
• Landlords may increase the rent (except in rent-controlled apartments) of month-to-month tenants on a full month’s notice.

A. This will depend on the condition of the apartment and the terms of your lease.  Tenants have the right to vacate their apartments and cancel the lease if:

1.         The building is destroyed or damaged (e.g., fire, hurricane),

2.         The building is untenable and unfit for occupancy,

3.         The damage is not due to the tenant’s fault or negligence, and

4.         There is no lease clause or other written agreement preventing the tenant from                                canceling the lease.

Landlords should use lease clauses that:

• Require the tenant to give the landlord prompt written notice of fire damage or a dangerous or defective condition.
• Require that the tenant pay rent for the usable part of the apartment if damaged.
• The landlord is not responsible for delays due to settling insurance claims, obtaining estimates, labor and supply problems or any other cause not fully under the landlord’s control.
• The landlord has the right to cancel the lease.
• The building can be either demolished or rebuilt.

The landlord has the option of what will be repaired or replaced in the building.

The security deposit should be collected before the tenant is given the apartment keys.

Security deposits are trust funds which are used by the landlord to pay for damages to the apartment and to cover non-payment of rent.  There is no limit on the amount that New York landlords can request for a security deposit.

The landlord should provide the tenant with an itemization of all deductions that are made from the security deposit.

Landlords may not combine security deposit funds with their own personal accounts.  The tenant must be notified in writing of the name and address of the bank holding the security deposit and the amount deposited.

This information should be contained in the lease.

If you need more information on New York Landlord-Tenant Law, type a question into the search box found on the lower right left of this page or see my New York Landlord-Tenant Law webpage.