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New York Real Estate Law Reporter
Development
NYRE Staff
When Zoning Amendment Adds Permitted Uses In Zoning District, Landowners Subject to the Ordinance Have Standing to Challenge the Amendment
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New York Real Estate Law Reporter
Co-ops and Condominiums
NYRE Staff
Unit Owner’s BCL 501(c) Claim Dismissed
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New York Real Estate Law Reporter
Landlord & Tenant Law
NYRE Staff
Local Law Prohibiting No-Cause Evictions Pre-Empted By State Law
Contractual Indemnification Unenforceable
Indemnification Clause Enforced
Good Faith Efforts to Cure Extend Cure Period for Yellowstone Injunction
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New York Real Estate Law Reporter
Real Property Law
NYRE Staff
Recorded Mortgage Does Not Remove Title Insurance Claim From Policy Exclusion When Underlying Deed Was Not Recorded
No Easement By Necessity for Parking
Lawn Mowing and Driveway Plowing Suffice to Establish Adverse Possession
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Entertainment Law & Finance
IP Experts Discuss AI Art Copyright Litigation
Isha Marathe
IP experts weigh in on a case involving AI-created images based on an original work. The outcome of the case may have a significant impact on AI development and generative art.
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Entertainment Law & Finance
No Bad Faith Found In Tidal Streaming Service Investment
Ellen Bardash
Block Inc.’s board may have made a bad deal when it acquired music-streaming company Tidal, but that’s its right without evidence of bad faith.
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Commercial Leasing Law & Strategy
Third Circuit: Pre-Bankruptcy Commercial Lease Termination Not Fraudulent Transfer
Michael L. Cook
Is an insolvent debtor’s pre-bankruptcy termination of a commercial lease a fraudulent transfer? The circuit courts seem to be split, however a close reading of cases in the Third and Seventh Circuits shows that the reasoning of both courts can be reconciled on their facts.
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Business Crimes Bulletin
ITC General Exclusion Orders Targeting All Importers Are On the Rise
Daniel Muino, Brian Busey and Nomin-Erdene Jagdagdorj
In recent years, the ITC has issued more General Exclusion Orders (GEOs) than in the past. For importers of products potentially implicated by a requested GEO, the GEO can be a major threat even if the importer is not a respondent in the case.
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The Bankruptcy Strategist
Lease Terminations As Fraudulent Transfers
Michael L. Cook
Is an insolvent debtor’s pre-bankruptcy termination of a commercial lease a fraudulent transfer? The circuit courts seem to be split, however a close reading of cases in the Third and Seventh Circuits shows that the reasoning of both courts can be reconciled on their facts.
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Entertainment Law & Finance
Fresh Filings
ELF Staff
Notable court filings in entertainment law.
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Business Crimes Bulletin
Ticket Resellers’ Campaign Raises Securities Law and Money Laundering Issues
Chris Castle
Some markets allow for the sale of a future contract for tickets that have not gone on sale as yet (i.e., “speculative ticketing”). The future contract, like an option or a commodities future, allows someone to purchase the right to buy a ticket once the tickets are offered for sale. This seems to implicate securities law issues, broker-dealer regulations and potentially the general solicitation rule.
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The Bankruptcy Strategist
The Role of Third-Party Releases In Successful Chapter 11 Reorganizations
John J. Rapisardi and Jacob T. Beiswenger
Part Two of a Two-Part Article
In Part Two, we continue the analysis by evaluating two constitutional issues arising from third-party releases: whether creditor consent to be bound by a third-party release is required to satisfy the due process clause of the Fifth and Fourteenth Amendments; and whether bankruptcy courts have constitutional authority to issue final orders granting third-party releases in a plan of reorganization under Stern v. Marshall.
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The Bankruptcy Strategist
Fourth Circuit: Corporate Subchapter V Debtors Subject to Discharge Exceptions Under Bankruptcy Code
Lawrence J. Kotler and Elisa Hyder
In a matter of first impression not yet addressed by any circuit court, the Fourth Circuit addressed whether the discharge exceptions under Section 523(a) apply to corporate debtors under Subchapter V of Chapter 11 of the Bankruptcy Code.
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Cybersecurity Law & Strategy
Legal Travel Is Back: Post-Pandemic Tips for Lawyers Traveling for Trials
Ryan Spear
Many courts across the country have resumed in-person trial operations. Law firms now face new challenges when it comes to planning for out-of-town trials, as the return to in-person proceedings requires coordinating travel logistics such as airfare, hotel reservations and technological needs.
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New York Real Estate Law Reporter
Three Takeaways from 'Casey v. Whitehouse Estates' Rent Regulation Decision
Jeffrey Turkel
On March 16, 2023, the Court of Appeals decided Casey v. Whitehouse Estates, Inc., the first Court of Appeals ruling to address rent regulation since its landmark decision in Matter of Regina Metro. Co., LLC v. New York State Div. of Hous. & Community Renewal, the Court of Appeals unanimously reversed the First Department’s finding that the landlord’s purported fraud mandated use of DHCR’s so-called default rent formula.
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New York Real Estate Law Reporter
Development
NYRE Staff
Sand Mine Enjoys Nonconforming Use Protection
Contract Vendee Entitled to Use Variance Despite Knowledge of Ordinance’s Provisions
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New York Real Estate Law Reporter
Real Property Law
NYRE Staff
Strict Liability for Excavation Damage
Easement Was Non-Exclusive
Purchaser’s Claims Barred By Merger Doctrine, Caveat Emptor
Purchaser’s Claim Based on Inoperative Elevator Dismissed In the Absence of Active Concealment
Deed Forgery Claim Survives Motion to Dismiss
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New York Real Estate Law Reporter
Landlord & Tenant Law
NYRE Staff
Wrongful Eviction Claim Raises Questions of Fact
Yellowstone Injunction Cure Period
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The Bankruptcy Strategist
Appellate Court Reverses Chapter 11 Confirmation Order Based on Faulty Tax Ruling
Michael L. Cook
The Northern District of California recently issued two blistering opinions on appeals by the IRS and California Franchise Tax Board from a bankruptcy court’s Chapter 11 plan confirmation order and a tax determination order.
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Commercial Leasing Law & Strategy
Syndicated Commercial Real Estate Loan Transactions In Today’s Market
Richard S. Fries and Darby K. Brown
Larger commercial real estate mortgage loans are often originated by a group or “syndicate” of lending institutions that each contribute a portion of the overall loan proceeds and share the benefits and risks. This article describes several significant features of a “syndicated” real estate loan that are not commonly known or understood.
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The Bankruptcy Strategist
Corporate Bankruptcies and the Restructuring Solution
Brian Wanat
Recent, big-name Chapter 11 filings have brought to the light the importance of insurance solutions for companies in financial distress, as companies in this situation face oftentimes new and uncharted issues.
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Entertainment Law & Finance
Fresh Filings
ELF Staff
Notable court filings in entertainment law.
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Commercial Leasing Law & Strategy
Buyout Provisions In Commercial Lease Litigation
Adrienne B. Koch
Litigation frequently involves an attempt by one party to enforce the terms of the buyout provision through specific performance. But that remedy may be less readily available than the parties might assume. This article explores the reasons why, and suggests some drafting considerations.
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The Bankruptcy Strategist
Ninth Circuit Bankruptcy Panel Holds Lack of Timely Objection Bars Objection to Homestead Value Exemption
Lawrence J. Kotler and Geoffrey A. Heaton
In In re Masingale, the U.S. Bankruptcy Appellate Panel for the Ninth Circuit held that in the absence of a timely objection, debtors who claimed a homestead exemption of “100% of FMV” in their residence had a valid exemption claim for the full fair market value of the property.
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The Intellectual Property Strategist
IP News
Jeff Ginsberg and Zhiqiang Liu
Federal Circuit Affirms the Board’s Finding of Anticipation Because Prior Art Patent and References Incorporated Therein Inherently Meet the Disputed Claim Limitations
Federal Circuit Affirms a Finding of Infringement Because the District Court Correctly Construed “a” and “said” and Rejects Anticipation Argument on Waiver Grounds
Federal Circuit Vacates Judgment of Non-Infringement Because the Underlying Stipulation Failed to Provide Sufficient Detail for the Court to Resolve Certain Claim Construction Issues
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The Bankruptcy Strategist
Bankruptcy Court Rules Limited Partnership Agreement Is Not an Executory Contract
Andrew C. Kassner and Joseph N. Argentina Jr.
Certain types of agreements, such as real estate leases, clearly are executory contracts subject to assumption or rejection in bankruptcy cases. But what about the partnership agreement itself?
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Entertainment Law & Finance
Bit Parts
Stan Soocher
“Sister Sledge” Sibling’s Use of “Sister Sledge Sledgendary” Isn’t Trademark Infringement
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The Bankruptcy Strategist
Courts and Plaintiffs Lawyers Question Viability of ‘Texas Two-Step’
Christine Schiffner
As defendants increasingly seek bankruptcy as a resolution to multidistrict litigation claims, plaintiffs firms and judges are starting to ask questions about the legitimacy of the tool commonly referred to as the "Texas Two-Step."
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New York Real Estate Law Reporter
Landlord & Tenant Law
HSTPA Does Not Violate Taking or Due Process Clauses
Landlord Liable for Bite By Tenant’s Dog
Tenant Not Liable As Holdover Absent Offer and Acceptance of Rent Payments
Issues of Fact Preclude Summary Judgment on Habitability Claim
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New York Real Estate Law Reporter
Real Property Law
NYRE Staff
Injunctive Relief Denied In Action to Enforce Restrictive Covenant
Neighbor Lacked Standing to Enforce Restrictive Covenant
Easement Holder Entitled to Preliminary Injunction
Disposition to Husband and Wife Creates Tenancy By the Entirety
Tax Sale Notice Satisfied Statutory and Constitutional Requirements
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New York Real Estate Law Reporter
Eminent Domain Law
NYRE Staff
Condemnation Exceeded Agency’s Authority
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New York Real Estate Law Reporter
Co-ops and Condominiums
NYRE Staff
No Binding Contract Between COOPA and Shareholders
Failure to Provide Notice of Mortgage Justifies Return of Downpayment In Foreclosure Sale
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The Intellectual Property Strategist
IP News
Howard Shire and Alicia Ginsberg
Proving Damages for Trademark Infringement In the Eleventh Circuit
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Entertainment Law & Finance
11th Circuit Joins Controversy Among Circuits on Copyright Damages Look Back
Michael A. Mora
The federal appellate court in Atlanta, GA, in a case of first impression “that has divided our sister courts” over the U.S. Copyright Act’s §507(b) statute of limitations on recovering damages beyond three years of a copyright lawsuit filing, just added to that division.
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Entertainment Law & Finance
Fresh Filings
ELF Staff
Notable court filings in entertainment law.
Read More ›
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Entertainment Law & Finance
Bit Parts
Stan Soocher
Script Writer Newton’s Funding-Help Lawsuit Against Former NBCUniversal Vice-Chair Meyer Is Dismissed
Read More ›
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Commercial Leasing Law & Strategy
Negotiating Surrender Clauses In Commercial Leases
Stephanie Friese
Notwithstanding the importance of a lease to the balance sheets of both landlords and tenants, surrender provisions are commonly glossed over and consequences can be detrimental to either side.
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Commercial Leasing Law & Strategy
Liquidated Damages In Real Estate Transactions
Adrienne B. Koch and Neil S. Miller
Commercial real estate is a unique asset, making damages resulting from a breach of an agreement involving it are often difficult to measure. As a result, parties to such agreements must give careful thought to the remedies for such breach, including liquidated damages.
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Commercial Leasing Law & Strategy
What Constitutes A Landlord’s Acceptance of a Tenant’s Surrendered Lease During COVID?
Cedra Mayfield
As pandemic-related business disruptions continue to appear on dockets statewide, a reversal by the Georgia Court of Appeals has clarified what does, or rather does not, constitute a landlord’s acceptance of a tenant’s surrendered lease.
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Commercial Leasing Law & Strategy
Ten of the Worst Words to Hear In a CRE Deal
Joseph J. Ori
There are many positive words and terms of wisdom in the CRE industry: That was a great deal, great management equals great value, etc. Conversely, there are also some very scary words and phrases in the CRE industry. Below are 10 of the worst.
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The Bankruptcy Strategist
Innocent Business Partner’s Fraud Liability Survives Bankruptcy
Michael L. Cook
The decision by the Supreme Court has practical significance for corporate officers and others in an agency or partnership relationship, and also may have serious consequences for corporate Chapter 11 debtors whenever a “domestic governmental unit” is a creditor.
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The Bankruptcy Strategist
Prejudgment Attachment of Assets Allowed By DE Bankruptcy Court
Andrew C. Kassner and Joseph N. Argentina Jr.
Are there exceptions to the general rule against prejudgment attachment that may allow a plaintiff to obtain injunctive relief against a defendant freezing the defendant’s assets prior to the outcome of the litigation? This issue was recently considered by the U.S. Bankruptcy Court for the District of Delaware.
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The Bankruptcy Strategist
The Role of Third-Party Releases In Successful Chapter 11 Reorganizations
By John J. Rapisardi and Jacob T. Beiswenger
Part One of a Two-Part Article
This two-part article will examine the role of third-party releases in successful Chapter 11 reorganizations. This part will address the factors considered in each Circuit where such releases have been deemed permissible within the confines of the Bankruptcy Code, evaluate several recent cases highlighting the uncertainty created by the current Circuit split, and consider options for creating a clear, nationwide standard.
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The Bankruptcy Strategist
Hourly Billing in FTX Bankruptcy Already At Historically High Level
Ellen Bardash
Attorneys and consultants involved in the FTX bankruptcy have asked the District of Delaware bankruptcy court to approve billed hours and expenses totaling just under $37 million for the first six weeks of Chapter 11 proceedings.
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Cybersecurity Law & Strategy
Yes, You Are My Data’s Keeper
Josh Hummel
Federal Court Decision Among the First to Allow a Data Breach Liability Claim to Proceed Under Common Law Bailment Theory
Data breach lawsuits have often struggled to match up the unique realities of data breaches with traditional theories of legal liability. A recent decision from the Southern District of Indiana, however, cut through these issues by allowing a class action claim to proceed on a theory of liability often proposed by commentators as a solution to the data breach liability conundrum but until recently almost uniformly rejected by courts: the common law theory of bailment.
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Cybersecurity Law & Strategy
Federal Jury Rejects First Amendment Defense In ‘MetaBirkins’ NFT Standoff
Todd Larson and Yonatan Shefa
Leading the charge in thorny IP issues have been cases addressing whether NFT makers who utilize other parties’ trademarks can turn to the First Amendment as a defense to trademark infringement. This article analyzes the summary judgment decision that set the stage for trial in Hermes International, and provides some takeaways concerning the legal landscape for NFTs moving forward.
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Entertainment Law & Finance
Music Rates and Royalties 2023: Past, Present and Future
Jeff Brabec and Todd Brabec
Part One of a Two Part Article
Analysis of the most important music rate and royalty areas, both past, present and future and how and by whom they are set or determined as well as the effect that legislation, litigation, the Copyright Royalty Board and the Department of Justice have had on the process.
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Entertainment Law & Finance
Getty Images’ Suit Over AI Generator
Isha Marathe
The magical world of AI-generated art has become more mainstream over the past few months. There has also been some backlash against the industry, including brewing class action lawsuits alleging copyright violations and resistance from online artist communities. But until recently, a substantial legal threat was yet to emerge against the technology that underpins artificial-intelligence art.
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The Bankruptcy Strategist
Can a Debtor That Has No Ongoing Business Operations Reorganize Under Chapter 11 In Good Faith?
Lawrence J. Kotler and Roxanne J. Indelicato
In a recent decision, the U.S. Bankruptcy Court for the Southern District of Texas (the court) addressed whether a debtor that has no independent assets or ongoing business operations can reorganize under Chapter 11 in good faith.
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Entertainment Law & Finance
Handling IP Ownership Issues In Remote Work
Sarah Schaedler and Jennifer T. Criss
Even with legal assumptions that certain intellectual property rights in works created by employees are owned by the employer, these should not be relied upon exclusively. A well-drafted employee-agreement form is increasingly essential in light of the explosive growth of remote and flexible work arrangements.
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