Summer 1999

Vol.4 – No.1

Landlord Seminars

“How to Survive Legally as a Landlord” will be presented by attorney/author Robert Friedman from 6:00 to 9:30 p.m. on the following two dates: (1) Monday, September 27, 1999 at Williamsville North High School (1595 Hopkins Road, Williamsville, New York 14221. Telephone: (716) 626-8080); and (2) Thursday, November 4, 1999 at Erie Community College, North Campus (6265 Main Street, Williamsville, New York 14221. Telephone: (716) 851-1800). Mr. Friedman will discuss evictions, leases, Small Claims Court, discrimination laws, civil liability, insurance, security deposits, elderly tenants, drugs, debt collection, and lead paint regulations. There is a registration and book fee. To register, call the telephone number at the location where you wish to attend.

Newly Released Books by Robert Friedman

How to Survive Legally as a Landlord (Fourth Edition, Victoria Square Publishing) and How to Form Your Own “S” Corporation and Avoid Double Taxation (Second Edition, Dearborn) by Robert Friedman were released this summer. For further information, see the insert in this newsletter or visit the Legal Survival Bookstore.

What’s New in Consumer Law?

Car dealer must pay $669,000 for threatening repo notice. A Navajo couple purchased a 1985 Chevy Blazer with an odometer reading of 67,000 miles. The salesperson told them that the engine had been overhauled and the four-wheel drive worked, which proved to be untrue. The four-wheel drive shaft was missing, the engine had been overhauled and the vehicle actually had at least 167,000 miles. The dealer knew the vehicles history and true condition as well as the odometer situation because he had bought and sold the Blazer several times. When the couple was delinquent $705 in car payments, they received a collection notice in the mail containing a cartoon drawing of two unshaven thugs, labeled “Repo Man J and Repo Man K”, standing next to a trash can stuffed with a person, presumably a customer. Only the person’s legs stick out of the trash can. A pool of blood is on the ground. One of the repo men is putting a gun back into his jacket. The other one is holding a club.

What’s New in Debtor/Creditor Law?

Collection agency must report oral dispute. A debtor notified a collection agency by telephone that he was disputing a debt for unpaid rent. The U.S. Court of Appeals, First Circuit, held that the agency was required under the Fair Debt Collection Practices Act (FDCPA) to inform credit reporting agencies of the dispute. The FDCPA prohibits a debt collector from communicating any credit information which is known or which should be known to be false, including the failure to communicate that a debt is disputed. The agency argued that it had not violated the Act because the tenant never disputed the debt in writing. However, the court ruled that the plain language of the FDCPA requires debt collectors to communicate the disputed status of a debt if the debt collector “knows or should know that the debt is disputed”. This standard requires no notification by the consumer, written or oral. Instead, it depends solely on the debt collector’s knowledge that a debt is disputed, regardless of how or when the knowledge is acquired.

What’s New in Divorce/Family Law?

Adoption agency sued for not disclosing abuse. A couple that was not told that their adopted child had been sexually abused can sue the agency for “wrongful adoption”. Before the adoption, the couple specifically asked if there was anything about the child that they should know. The agency failed to reveal the abuse. After the adoption, the child sexually abused two of her siblings. At least twelve other states have allowed similar claims (New York Appellate Division).

What’s New in Estate Planning/Elder Law?

Assets may be transferred to qualify for Medicaid. A wife served as her husband’s court-appointed guardian. He had been in a coma since 1996. The New York Appellate Division, Second Department, held that she can transfer his assets to herself, refuse to use them for his care and thus make him eligible for Medicaid. The court ruled that the husband “…who had the unrestricted right to give his assets to his wife, or to his children, or to anyone else for that matter, at all times, up until the moment of his terrible injury did not…lose that fundamental right merely because he is now incapacitated and financial decisions on his behalf must necessarily be made by a surrogate”. The court added that “no agency of the government has any right to complain about the fact middle-class people confronted with desperate circumstances choose voluntarily to inflict poverty upon themselves when it is the government itself which has established the rule that poverty is a prerequisite to the receipt of government assistance in the defraying of the costs of ruinously expensive, but absolutely essential, medical treatment”.

What’s New in Health Law?

Couple deceived about “in vitro” success rate. An “in vitro” fertilization program that misled a couple about its success rate can be sued under a state deceptive trade practices statute. The wife underwent seven treatments, but did not get pregnant. The couple claimed that the program’s promotional materials and advertisements contained misrepresentations that had the affect of deceiving and misleading members of the public. The program claimed that women who underwent four “in vitro” treatments had a 50 percent chance of getting pregnant (New York Court of Appeals).

What’s New in Landlord/Tenant Law?

Landlord’s liability for rape. A tenant who was raped in her Florida apartment was awarded almost $350,000 by a jury that found the 392 unit apartment complex negligent for not providing adequate security. Three weeks after moving into the apartment, an intruder slashed the screen on her porch, broke the light next to her sliding glass door and raped her. She sued the landlord claiming that the apartment complex manager failed to install adequate outdoor lighting, security jams in the sliding glass doors and a guard gate. She also claimed that the thick foliage throughout the complex, the dim lighting and the lack of security guards invited the perpetrator…An Iowa tenant was raped by an intruder who used a set of master keys which he obtained from an unlocked cabinet in the manager’s office to get into her apartment. An employee previously used one of the keys to enter another tenant’s apartment and tried to rape her. However, the landlord never changed the locks or moved the keys to a more secure location. The court ruled that the landlord owes a duty of care to protect tenants from reasonably foreseeable harm.

What’s New in Municipal Law?

Municipalities may reject cellular towers. The town planning board denied an application to build three 150′ cellular phone towers because of the affect on property values and aesthetics. The U.S. Court of Appeals, Second Circuit, ruled that the denial did not violate the federal Telecommunications Act. However, a city or town must allow gaps in coverage to be filled-in with additional towers if current service is inadequate. An application can still be denied where: (a) there are less intrusive means to fill such gaps; (b) fewer towers would still provide the minimum coverage necessary to fill such gaps; or (c) the community is already sufficiently serviced by a wireless service provider.

What’s New in Personal Injury Law?

Football helmet manufacturer must pay $14.62 million. A football helmet manufacturer was ordered by a Texas jury to pay $14.62 million for a severe brain injury suffered by an 18-year-old boy. During a high school scrimmage, the boy tackled the ball carrier and struck the side of his head on the ground. He tried to return to the huddle, but felt dizzy and walked to the sidelines. Moments later, he collapsed and fell into a coma. Doctors predict that he will only live to be about 42-years-old at the most. His medical costs are estimated to be $125,000 a year. The lawsuit alleged that the manufacturer, which makes most of the helmets used by high school, college and professional football players, provided a defective helmet. The company lined the inside of the helmet with foam that it knew was sub-standard. It left more protective helmet-lining foam, which would have prevented the injury, on its shelves.

What’s New in Real Estate Law?

Deductibility of home mortgage points. Home buyers now have the option to deduct “points” paid on a mortgage over the life of the loan. An IRS private letter ruling gives taxpayers more flexibility in cases where they cannot use the full deduction in the current year. A couple paid 1.25 points to buy a house. Because their total itemized deductions for the year, including the points, were less than the standard deduction available to them, they wanted to take the standard deduction and spread the points out over the life of the loan. Points are prepaid interest payments that are paid to the lender when buying or refinancing a home. Each point equals one percent of the total loan.

What’s New in Small Business Law?

Corporate formalities checklist. Corporations must maintain proper formalities to safeguard limited liability and proper tax treatment. A corporation needs to be treated as a separate entity in order for the shareholders to avoid potential business liabilities and tax problems. Many of the important “arm’s length” indicia that are evaluated by courts and the IRS include the 14 items discussed in this three-part series. Items one through five were discussed in the Spring 1999 issue and items six through ten were discussed in the Summer 1999 issue.

Injured Victims’ Rights

The Friedman & Ranzenhofer, P.C. Ten Point Pledge to Accident/Injury Clients is:

• To communicate with you in plain language that is easy to understand.
• To promptly return your telephone calls.
• To quickly and thoroughly investigate and analyze your case. Friedman & Ranzenhofer, P.C. does not accept every accident case.
• To have your case personally handled by an attorney.
• To keep you informed of the progress of your case at all times.
• To show you the personal care, concern and attention which has been the hallmark of our law firm since 1955.
• To not handle your case in an “assembly line” fashion.
• To accommodate the needs of you and your family during the handling of your case.
• To vigorously protect your legal rights.
• To never release your name to the media after your case has been completed, except with your written permission.

Attorney Michael H. Ranzenhofer limits his practice to automobile accident, slip and fall, dog bite and defective product cases. He is a member of the Association of Trial Lawyers of America, the New York Trial Lawyers Association, the New York State Trial Lawyers Association and the Erie County Bar Association Negligence Committee.