Winter 2003 Edition

Vol.7 – No.3

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.

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. We promise to:

• Communicate with you in plain language that is easy to understand.
• Promptly return your telephone calls.
• Quickly and thoroughly investigate and analyze your case.
• Have your case personally handled by an attorney.
• Keep you informed of the progress of your case at all times.
• Show you the personal care, concern and attention which has been the hallmark of Friedman & Ranzenhofer, PC, PC, P.C. since 1955.
• Accommodate the needs of you and your family during the handling of your case.
• 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, New York Trial Lawyers Association, New York State Trial Lawyers Association and Erie County Bar Association Negligence Committee.

Executor’s LegalSurvival® Guide

The newly released Executor’s Legal Survival® Guide will assist you in naming a good executor in your will; explain to executors their duties and responsibilities and inform estate beneficiaries of the role of the executor in the probate process. The guide, by Robert Friedman, answers such frequently asked questions as: What is probate? What are the steps in probating a will? Should a family member be named as executor? What death benefits are available? Checklists include: Documents that the executor must collect. Who the executor must notify. How to preserve estate property. What advisors to hire. What records must be maintained. To receive a complimentary copy of the guide, send a stamped (.60), self-addressed business size envelope to Friedman & Ranzenhofer, PC, PC, P.C., P.O. Box 31, Akron, New York 14001-0031 or visit www.legalsurvival.com.

Can You Answer These Questions?

• Can landlords be jailed for not disclosing lead paint to tenants?
• Can a public housing tenant be evicted even if he did not know that other occupants were involved in drug-related activity?
• Are grandparent visitation laws constitutional?
• Can an employee who signs a confidentiality agreement work for a competitor?
• Are the yellow pages liable for misrepresenting a doctor’s qualifications?
• Is mold covered by insurance?

The answers to these questions are in the Fall, 2002 issue of the LegalSurvival.com newsletter which is available online at www.legalsurvival.com/newsletter or by calling (716) 333-5144. All back issues for the past 6 ½ years are available on the website.

What’s New in Employment Law?

$11.65 Million awarded to employee for distress under the Family Medical Leave Act (FMLA). A hospital maintenance worker was fired after taking intermittent leave to care for his ailing parents. When he returned from leave after his mother died, his immediate supervisor gave him his first bad evaluation in 26 years based in part on not doing work while he was on leave, and increased his case load. The hospital did not investigate the supervisor’s claim that the employee was performing poorly. It essentially accepted the allegations at face value, even though it knew he was on family leave and had previously been named employee of the year. The supervisor did not follow the hospital’s written grievance procedure before firing the employee. He was diagnosed with clinical depression and had been prescribed increasingly higher dosages of anti-depressant medications that he will have to take for at least another year. The psychiatrist testified that he had bouts of sleeplessness, feelings of worthlessness, self-hate, marital problems and had contemplated suicide (U.S. District Court for the Northern District of Illinois).

What’s New in Municipal Law?

Synagogue loses zoning challenge. A synagogue wanted to build a place of worship, classes and religious events in a neighborhood zoned for single-family residential uses. The property was formerly a convent and then a monastery. The town denied the congregation’s request for non-conforming use because it said that the nuns and monks primarily used the property as a residence with an accessory religious use, whereas the principal use proposed by the plaintiff was religious. A special permit was not allowed under the controlling zoning ordinance, which permitted only certain “special exceptions” such as outdoor recreational facilities, but not places of worship. Religious institutions were permitted in the town’s community service district. The congregation sued, alleging that the township had violated the federal Equal Protection Act and the Religious Land Use and Institutionalized Persons Act. The court held that the synagogue must first show that it was “similarly situated” to other allowed uses and then show the town lacked a rational basis for baring religious uses in a residential zone. As long as the municipality has a rational basis for distinguishing between uses, and the distinction is related to the municipality’s legitimate goals, federal courts will be reluctant to conclude that the ordinance is improper, the U.S. Court of Appeals, 3rd District held.

What’s New in Personal Injury Law?

Parents awarded $1 Million against day-care center. The parents of an eight-week old infant who died because he was put to sleep on his stomach in a day-care center were awarded $1 million. The infant died from suffocation when he was placed on his stomach for a nap due to apnea, or the inability to breath (Georgia Superior Court, Catoosa County). Strip Club must pay for drunk driving death. A strip club was ordered to pay $10 million to the family of a lawyer who was run over by a driver who had been drinking at the club. $15 million was also awarded against the drunk driver himself, who pleaded guilty to murder. The lawyer’s widow filed the lawsuit under Alabama’s Dram Shop Act which makes it illegal to serve alcohol to an intoxicated person.

Life Estates and Medicaid

Q.How can I give my home to my children now and still be able to live there as long as possible and be eligible for Medicaid for nursing home care? A.You could transfer your home to your children with a life estate deed which gives you the right to live there for the rest of your life. During your lifetime, you will continue to be considered the owner of the home for most purposes. For example, you will still be responsible for the payment of all taxes, insurance and maintenance of the home. To determine whether the life estate deed will affect eligibility for Medicaid, the following must be considered:

• Lookback period. Assets transferred within 36 months (60 months for trusts) preceding the Medicaid application date will be considered for eligibility purposes.
• Value. The transfer is not considered to be for the full value of the house but the “remainder interest” in the house. The remainder interest is the right that your children have to receive the home automatically upon your death. The value of the remainder interest is calculated using IRS actuarial tables based on your life expectancy.
• Penalty Period. The number of months of ineligibility or penalty period is calculated by dividing the value of the gift by the average monthly cost of nursing home care. This “regional rate” for New York is now $5,614.

Social services cannot require you to liquidate the life estate or to rent the life estate interest property. However, if you rent out the property, any net rental income you receive is counted in determining eligibility for Medicaid. Also, if you sell the property, the proceeds or fair market value are a countable resource for determining Medicaid eligibility. The life estate deed has many advantages over an outright gift by a regular deed, such as: 1) the property will still qualify for any property tax exemptions such as veterans and senior citizens exemptions that were available prior to the transfer; 2) you will not lose all legal rights to the property; 3) your children can’t make you move out; 4) your children’s creditors or bankruptcy trustee can’t take possession of the home; 5) capital gains when your children sell the home will be calculated on a stepped up basis which is the value at the date of your death rather than your original cost basis; and 6) since the value of the remainder interest is lower than the full value of the house, it will result in a shorter Medicaid penalty period than an outright transfer. An outright transfer of assets to the following individuals does not affect Medicaid eligibility:

• • Spouse.
  • A minor, blind or disabled child.
  • A sibling who has an equity interest in the home and was residing there for at least one year immediately before the date of institutionalization. An “equity interest” is an ownership interest evidenced by being named on the deed, having paid monthly mortgage payments or having made capital improvements.
  • An adult child who resided in the home for at least two years immediately before the date of institutionalization and provided care.

Since Medicaid law is very complex and constantly changing, always consult with an attorney before taking any action.

Neighbor Sued for Encroaching Tree

A neighbor’s overhanging tree branches shrouded the plaintiff’s house in permanent shade and caused her roof to rot. A tree limb crashed through her roof and attic. Rainwater leaked into her home and the ceiling fell down. Tree roots clogged her sewer line making her toilet unusable for two years. Raw sewage bubbled up into her bathtub. The neighbor argued that the plaintiff’s only remedy was to cut back the branches and roots herself. However, the Tennessee Supreme Court ruled that limiting a plaintiff’s remedy to self-help encourages a “law of the jungle” mentality. It found that more harm than good could come from a rule that encourages angry neighbors to take matters into their own hands. The court held that although encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property, they may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner may be held responsible for harm caused by the tree or plant, and may also be required to cut back the encroaching branches or roots. The court cited similar decisions from New York, Hawaii, Illinois, Indiana, Kansas, Minnesota, Ohio and Oklahoma.

What Clients Like About Elizabeth DiPirro

“Beth DiPirro is extremely professional and responsive to her client’s needs” C.H., Buffalo, NY. “Ms. DiPirro is what all lawyers should be – business like, understanding, friendly and helpful” E.P., Buffalo, NY. “My closing was extremely complicated, but Beth and Amber not only made it so I could sleep at night, but also closed on time for me. Even when they could not reach me, they left messages on my pager so I knew I put my legal dealings in the right hands. You can be reassured any future legal situations, I will be using Beth DiPirro” D.H.W., Clarence Center, NY. “Excellent service” H.Z., Tonawanda, NY. “Beth has done a wonderful job, she is professional, competent and compassionate” C.B., Middleport, NY. “Through a very difficult and embarrassing situation, we were treated professionally and with respect” J.G., Cheektowaga, NY. “Very reasonable fees” V.E., Clarence Center, NY. “Elizabeth is a well rounded individual, knowledgeable and truly an asset to your firm” K.B., East Aurora, NY. “I was very satisfied with the timely legal service performed and its quality” D.B., Wilson, NY. “Thank you all so much. I am very satisfied with everything that you did. You made everything so much easier in a time that’s been very difficult. Thank you again” N.B., Middleport, NY. “Everyone was very courteous and helpful. Ms. DiPirro answered all my questions and completed everything very promptly and to my complete satisfaction” A.J., Kenmore, NY. “Elizabeth DiPirro was so nice and understanding” M.D., Amherst, NY. “I appreciate your dedication and efficiency” C.B., Williamsville, NY. “Your staff and you have been so totally patient with me” J.B., Newfane, NY.

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.