Fall 2002

Vol.7 – No.2

New York Bar Features LegalSurvival.com

LegalSurvival.com® is a “Site Highlight” on the New York State Bar Association’s www.LPMforum.com. The online community of the Law Practice Management Committee was created to help lawyers learn the skills needed for managing a law practice. LegalSurvival.com® has received “numerous awards for the wealth of free information it provides.” The site is a comprehensive source of legal information, tools and news covering twenty-nine legal topics. Consumers, small businesses, lawyers and law students are offered free forms, newsletters, legal checklists, discussion forums and an attorney locator. Also featured are a bookstore, prepaid legal plans and marketing tools for attorneys.

Landlord Seminar

“Landlord Legal Survival” will be presented by attorney/author Robert Friedman from 6:00 to 9:30 p.m. on Thursday, February 6, 2003 and Thursday, May 1, 2003 at Clarence High School, 9625 Main Street, Clarence, New York. 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 Clarence Community Education at (716) 759-0403.

Robert Friedman’s Books Published By West, USA Today and Business Week

How to Survive Legally as a Landlord by Robert Friedman has been published in West’s Am Jur® Trials. The book explains how landlords can draft leases, evict tenants, win and collect in Small Claims Court, avoid lawsuits by tenants, save legal costs and buy and sell rental property. Authored by a virtual “Who’s Who” of the American trial bar, Am Jur® Trials shares the techniques and strategies that spelled success in the actual cases of more than three hundred prominent trial attorneys, judges and other legal experts. The Upstart Small Business Legal Guide has been published on the websites of USA Today, Business Week, West, CBS-TV, Fox TV and the LA Daily News. The guide has information, forms, checklists and resources for starting and running a small business including corporate formation, taxes, real estate and human resources. Mr. Friedman’s books can be ordered at our bookstore.

What’s New in Landlord/Tenant Law?

“Innocent” tenants evicted for drug-related activity. The U.S. Supreme Court upheld a statute that permits public housing authorities to enforce lease provisions that provide: “any drug-related criminal activity, on or off premises, engaged in by a public housing tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control, shall be cause for termination of tenancy.” Under U.S. Department of Housing and Urban Development (HUD) regulations, the Oakland California Housing Authority was authorized to evict, based on drug-related activity even if the tenant did not know, could not foresee, or could not control behavior by the other occupants. Landlords jailed and fined for not disclosing lead paint. Before renting or selling most pre-1978 housing, landlords must disclose the presence of known lead-based paint and/or lead-based paint hazards. Tenants must also be given a federally-approved pamphlet on lead poisoning prevention. Two landlords were jailed in the first prosecutions under the federal Residential Lead-Based Paint Hazard Reduction Act of 1992. A Washington, D.C.-area landlord was sentenced to two years in jail and received a $50,000 fine. He admitted making false statements during a HUD investigation of his properties and failing to notify his tenants of the presence and hazards of lead-based paint. A Manchester, N.H. rental property manager received a fifteen-month sentence and a $40,000 fine on similar charges. The most egregious allegation against him was failure to warn the family of a two-year-old girl who died from allegedly ingesting lead paint. A Denver-based property management firm agreed to test and clean-up its apartment units and pay a $129,580 penalty after being charged with failure to warn tenants that their apartments may contain lead-based paint. Landlord’s attorney must comply with the Fair Debt Collection Practices Act (FDCPA). Attorneys for landlords who bring non-payment actions are considered “debt collectors” under the FDCPA. Debt collectors must send a special notice with their first communication to a debtor containing: (1) the amount of the debt; (2) the name of the creditor; (3) a statement that unless the debtor, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid; (4) a statement that if the debtor notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will mail to the debtor verification of the debt or a copy of a judgment against the debtor; and (5) a statement that, upon the debtor’s written request within the thirty-day period, the debt collector will provide him or her with the name and address of the original creditor if different from the current creditor. The thirty-day notice does not stop any other proceedings. Attorneys can send the three-day demand for rent and the thirty-day notice simultaneously. If the tenant disputes the debt in writing, any proceedings will be delayed fr only as long as it takes for the attorney to mail verification of the debt to the tenant. Attorneys must comply with the notice provisions even though they only prepare the notice for the landlord and their firm name does not appear on the notice (U.S. District Court, Southern District of New York).

What’s New in Family Law?

Most grandparent visitation laws are constitutional. A grandparent-visitation statute that applies only when the family is no longer intact is constitutional if there is a showing that the lack of visitation would harm the child. The Massachusetts Supreme Justice Court applied the U.S. Supreme Court case of Troxel vs. Granville which suggested that broad visitation laws for grandparents and others could infringe parental rights. That led trial courts in California, Florida, Maryland, Michigan, New Jersey and Oklahoma to find their state laws unconstitutional. However, the statutes of the following states have been found to be constitutional: Alabama, Arizona, Illinois, Kansas, Louisiana, Main, Mississippi, Missouri, Ohio, Oregon, Texas, West Virginia and Wisconsin. The Massachusetts plaintiff was the maternal grandmother of a nine-year-old boy. After a family argument, the boy’s parents, who never married but shared custody of their son, decided to bar the grandparents from visiting him. The grandparents sought visitation under a Massachusetts statute which states that if the parents of an unmarried minor child are divorced or if the child was born out of wedlock and the parents do not reside together, the grandparents may be granted reasonable visitation rights upon a written finding that such visitation rights would be in the best interest of the child. The court held that the grandparents must allege and prove that the failure to grant visitation will cause the child significant harm by adversely affecting the child’s health, safety or welfare.

What’s New in Employment Law?

Employee can work for competitor. The vice president for sales of a company that manufactured and sold locks left to work for a competing lock manufacturer. He handled the same major customer accounts as he had for his old employer. He had signed a confidentiality agreement with his old employer, but not a covenant not to compete. The employer sought an injunction to prevent its former employee from working for the competitor. It argued that he possessed trade secrets that he would inevitably have to rely on in his new position at the competing company. This doctrine of “inevitable disclosure” runs counter to the strong public policy of favoring employee mobility. Since the employer and its former employee did not agree upon a covenant not to compete, the court declined to impose one, sighting similar decisions from U.S. District Courts in Florida and New York as well as a Virginia State Court. (California Court of Appeal, 4th District).

What’s New in Municipal Law?

Town must allow a cell tower. The Federal Telecommunications Act was violated by a town that refused to grant a zoning variance allowing a communications company to build a 150-foot cell phone tower. Although the land on which it planned to build the tower was zoned for “light industrial” use, the plot didn’t meet the minimum size requirements for that designation and the permit was denied. The company applied for a variance, but their request was denied because of aesthetic issues and safety concerns regarding electromagnetic emissions. Under the Act, such denials must be in writing and supported by substantial evidence which must be a separate written record, describe the reasons for the denial and contain a sufficient explanation of the reasons for the denial, to allow a reviewing court to evaluate the evidence in the record that supports those reasons. In this case, the zoning board’s order denying the company’s variance request was separate from the written record but it did not contain any explanation of the reasons for the denial. (U.S. Court of Appeals, 6th Circuit).

What’s New in Tax Law?

IRS settlements are easier for taxpayers to negotiate. The IRS’s decision to accept or reject an “offer in compromise” now depends on a taxpayer’s individual circumstances. A taxpayer is eligible for a compromise where collection of the entire tax debt would create economic hardship or make voluntary compliance more difficult, based on the taxpayer’s history of tax payment. It is evidence of hardship if a taxpayer can not: 1) earn a living due to a long-term illness or disability, and its foreseeable that his or her resources will be exhausted; 2) pay basic living expenses if assets are liquidated to pay the tax debt; or 3) borrow against equity in his or her assets, and seizure or sale could make it difficult for the IRS to enforce collection. Taxpayers may also be able to compromise if all available funds are being used to support dependents.

What’s New in Health Law?

Nursing home patient attacked by ants awarded $5.35 million. A 79-year-old nursing home resident suffered from a horrifying fire ant attack. She developed a staph infection and spent 84 days in the hospital. Although she was mobile, she did not try to avoid the ants or call for help because she suffers from mental illness. Employees testified that they had complained about the ant problem but nothing had been done about it. Both the nursing home and the pest control company were sued. (Alabama 23rd Judicial Circuit Court, Madison County). $20 million awarded against allergy drug manufacturer. A 42-year-old business woman suffered a stroke after taking non-prescription allergy medicine containing phenylpropanolamine (PPA) which is a decongestant formerly used in a number of common cold, allergy and diet medications. A study sponsored by the pharmaceutical industry suggested PPA increases the risk of hemorrhagic strokes. A day after she had taken an over-the-counter allergy medicine, her husband found her unconscious from a hemorrhagic stroke which involved bleeding in her brain. After surgery to stop the bleeding and swelling, she had a portion of her brain removed. She remained in a coma for the next three weeks and is totally disabled. The plaintiff and her husband sued the drug manufacturer, claiming the company was strictly liable for selling a dangerous product, provided inadequate warnings and violated state consumer protection statutes. (Superior Court of Washington, King County). Yellow Pages sued for misrepresenting doctor’s qualifications. A woman who was injured by a negligently performed liposuction can sue the local yellow pages for publishing a misleading advertisement about the doctor. The doctor was a board certified dermatologist with some training in performing liposuction. He was listed under the category of dermatology in the yellow pages. When he told the yellow pages representative that he performed liposuction, the representative recommended that he also be listed under the category of plastic and reconstructive surgeons. The advertisement stated that he was “board certified”, even though his only board certification was in dermatology. The plaintiff claimed that the yellow pages publisher negligently lead her to believe that the doctor was board certified in plastic surgery. The court found that although the yellow pages included a disclaimer, it also contained statements that the yellow pages provided “the most complete information about all the businesses and stores in your area” and that the yellow pages “made it easy for you to select the one who can serve you the best.” (Oregon Court of Appeals).

What’s New in Personal Injury Law?

$400K verdict against owner of gun used in murder. A 35-year-old man was killed in his home by his brother who was charged with first-degree murder after police searched his room in his parents’ home and found .38 gun casings. A jury found him not guilty by reason of mental disease or defect. He was committed to the state mental hospital. He lived with his parents for over one year before the shooting because of depression. His father purchased the gun and took him to a shooting range six weeks before he killed his brother. To show that the parents were aware of their son’s mental illness, the plaintiff’s attorney produced police evidence that prescription bottles of Prozac and Lithium were on the refrigerator in the family kitchen. The parents told the son’s ex-wife that they bought the gun for him because he was afraid of drug dealers. (Jefferson County Circuit Court of Missouri).

What’s New in Toxic Tort Law?

Tenant’s toxic mold case settles for $900,000. A tenant and her three sons sued the property manager, landlord, the previous owners of the apartment complex and the contractor called in to abate the mold after the property manager failed to clean up mold in spite of numerous complaints. The tenant suffered from a range of health problems, including a rash all over her body that doctors were unable to identify. Over a six-month period, she was diagnosed with a series of illnesses that she never really had, including lupus, AIDS and other sexually transmitted diseases. She and her sons also suffered various respiratory ailments including asthma. The tenant noticed a black substance growing on the walls of their apartment, as well as some water damage on the living room carpet. After she called the property manager a few times, he sent a contractor who either sprayed down the molding areas with bleach and paint or cut out the damaged part of the dry wall. However, he did not search for the water source that was causing the problem. The contractor replaced the carpet and padding. The tenant noticed a musty odor in varying degrees. Although the property manager informed the tenant the substance was mold, he did not indicate that mold could be harmful or that an outside water intrusion could be the cause of the mold. One source of the water leak was later found to be a bathroom in the apartment above. (Orange County, California Superior Court). Insurance coverage for mold. Insurance companies are eliminating coverage for mold claims, such as denying coverage unless the mold is caused by a covered event such as a storm and putting a $5,000 cap on claims. However, the Louisiana State Insurance Commissioner refused an insurance company’s request to cap mold claims. A Texas judge upheld a $13 million jury verdict against an insurance company for bad faith in failing to repair a leak that caused mold to spread. Mold is predominantly a problem in hot weather states like California, Florida and Texas where hot, damp weather combined with recent construction techniques have created ideal conditions for increase in the growth of mold. Air conditioning and central heating systems also contribute. California has created standards for removing mold and requires that notification of mold problems be given in all rentals and sales of residential, commercial and public building. To avoid mold exclusions in homeowner’s policies, plaintiffs’ attorneys are arguing that the mold is an ensuing loss that is covered so long as the underlying event – a burst pipe or a leaky roof, for example – is a “covered peril.” This argument has been accepted by some courts.

Yes We Are Accepting New Clients

We are often asked if we have time to serve additional clients. We appreciate your business, and we would also appreciate your referrals. We are a growing firm so new clients are welcome. Please mention our name to your friends, relatives and business associates for estate planning, real estate, personal injury, probate, criminal, traffic, marital, family, bankruptcy, business, municipal, corporate, debt collection, landlord/tenant and elder law matters.

Accident Victimes…Dignity

Have you been hurt in an accident? Are you worried what this may mean to your family, your job, and your credit? Is the insurance company pressuring you? Are you beginning to feel a bit confused? Since 1955, the attorneys at Friedman & Ranzenhofer, PC, PC, P.C. have been helping injured people. You have a lot of choices to make. We can help you make the choices that will get you what you need quickly, honorably and with your dignity intact. We will help you to maximize your benefits, while protecting you and your family. If you have questions about your responsibilities, your legal remedies or just what the best thing is for you to do, call us at (716) 333-5144. Our initial conversation costs you nothing even if you choose not to have us represent you. Our promise:

1. To communicate with you in plain language that is easy to understand.
2. To promptly return your telephone calls.
3. To quickly and thoroughly investigate and analyze your case. Friedman & Ranzenhofer, PC, PC, P.C. does not accept every accident case.
4. To have your case personally handled by an attorney.
5. To keep you informed of the progress of your case at all times.
6. To show you the personal care, concern and attention which has been the hallmark f Friedman & Ranzenhofer, PC, PC, P.C. since 1955.
7. To accommodate the needs of you and your family during the handling of your case.
8. To vigorously protect your legal rights.

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.

Disclaimer

While a great deal of care has been taken to provide accurate and current information, the ideas, suggestions, general principles and conclusions presented in this newsletter are subject to local, state and federal laws and regulations, court cases and any revisions of same. The reader is thus urged to consult legal counsel regarding any points of law – this newsletter should not be used as a substitute for competent legal advice. The purpose of this newsletter is to give the reader a general understanding of the law – not to provide specific advice. Every effort has been made to achieve accuracy. The law constantly changes and is subject to differing interpretations. Always consult with your attorney and act only on his or her advice. Legal Survival, LLC shall not be responsible for any damages resulting from any inaccuracy or omission. This newsletter is designed to provide accurate and authoritative information in regard to the subject matter covered. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Certain portions of this newsletter may be applicable only to New York State law.