August- Early September REAL ESTATE NEWSLETTER

COMMON LAW CONCEPT APPLIED TO COMPUTERS

Sarit Shmueli was employed by the Corcoran Group beginning 1996 as "an independent contractor real estate agent", but in 2002 she was fired by Corcoran executive vice president Teresa Hall. When Ms. Shmueli returned to her office to pick up her things she discovered that her computer access code had been changed and she could not log in to see her records which were established before she started working for Corcoran group. Records which were accumulated over the past 14 years, records of deals and the details of those deals, she could no longer get access to.

Ms. Shmueli brought suit against Ms. Hall and the Corcoran Group alleging conversion and misappropriation of proprietary information, among other things. The question which was decided by Justice Cahn was whether "the common law tort of conversion becomes an extinct vestige of the past as to documents maintained on a computer, merely because traditional definitions of documents evolve over time to the point where wood pulp is no longer the only required medium upon which to record data?"

The judge concluded that "there should be no reason why that practical view should not apply equally to the present generation of documents - electronic documents - which are just as vulnerable to theft and wrongful transfer as paper documents, if not more so."

The judge ruled that like internet domain names and ideas for Internet-based businesses, electronic documents are property capable of being converted. It was decided that Corcoran's motion to dismiss the conversion claim be denied because the "access code" was provided for a reason to protect information and materials that were in the computer from being read by, or forwarded to, others without her consent.

NO LIABILITY FOR PILE OF WET LEAVES, JUDGE HOLDS

A Brooklyn judge held that since the land owners are not responsible for the injuries occurring from individual wet leaves the same thing holds for injuries resulting from piles of wet leaves. Bibi Rakeeba Misir sued the owners of Beach Haven Apartment No. 1 because on her way home she slipped on the pile of wet leaves that were stacked in the building's driveway. The judge wrote "autumn leaves in and of themselves are not dangerous nor does liability attach for a fall on a slippery pavement."

(7/21/2005)

LANDLORDS NEED NOT TO COVER RADIATORS, JUDGES DETERMINE

In a recent decision, the Appellate Division, First Department has ruled that it is not mandatory for hot radiators to be covered by landlord on order to provide safe conditions for the tenant. This was decided in the case of Rivera v. Nelson Realty and in Rodriguez v. City of New York, where the cases involved children who received burns from the radiators which were uncovered.

The judges overturned the decisions arguing that the injuries did not occur because of the negligence by the landlord and that uncovered radiators which are properly installed and maintained, did not "constitute the type of hazardous condition of which actual or constructive notice would expose a landlord to common-law liability."

The plaintiffs argued on the other hand that the landlords violated the building codes requiring insulation of the pipes carrying steam or liquid at temperatures exceeding 165 degrees. The court noted that this only applies to "piping" and not for covering the radiators.

(7/15/2005)

HASKACHA INC. v. JUBILEE INC.

Landlord brought a suit against a commercial tenant for various types of lease violations. The issue which is at stake is whether the tenant violated the lease and if so whether the tenant failed to correct the violations which terminated its rights to the premises. The landlord claimed that the tenant violated the lease by accepting deliveries and storing merchandise in the residential premises such as the hallway, vestibule and a large section of the basement without authorization and using the premises as a "cabaret". The court held that the tenant did not violate the lease. Although, there were other violations, they were not to such a degree that would result in the tenants termination of the premises even though the corrections were made beyond the date of notice.

(7/5/2005)

GORDON v. PARK MAD 74 REALTY, LLC.

An owner of a townhouse filed suit against a neighboring owner and his contractor because they were leaving building materials on his property. The plaintiff argued that the "sloppy workmanship" was affecting the structural integrity of his townhouse and that it was hazardous, The defendant as well as the plaintiff presented reports from their engineers and observers to prove their point. The court found that the mutual wall that they shared was a convenience to both parties except that it favored the defendant more. Furthermore, the court wanted to determine whether or not the defendant did any damage to the plaintiff's townhouse and ordered a set date for determination.

(7/5/2005)