Itkowitz PLLC Accomplishments

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Itkowitz PLLC Obtained Summary Judgment Voiding a Commercial Lease Entered into by a Receiver of a Property, which was then in Foreclosure

On April 20, 2016, Itkowitz PLLC obtained summary judgment voiding a commercial lease ab initio entered into four years prior by a receiver of a commercial property, which was then in foreclosure. 

The order appointing the receiver specifically limited the receiver’s ability to lease the commercial space for periods no longer than one year.  Nonetheless, the receiver gave the commercial tenant a five-year lease with a five-year option to renew.  

In February 2015, our client purchased the building out of foreclosure and immediately sought to arrange for the commercial tenant to vacate the space.  The commercial tenant refused to vacate.  The client then filed a declaratory judgment complaint, seeking to declare the subject lease to be void as the lease resulted from the Receiver exceeding his authority without prior court approval.  The commercial tenant filed an answer and after a period of unfruitful discussions over a number of months, our client sought our assistance to resolve the problem.  

We immediately diagnosed that a motion for summary judgment needed to be made.  We did so and the tenant cross moved for summary judgment.  On April 20, 2016, The Honorable Justice Sylvia Ash, J.S.C., granted our motion for summary judgment declaring the lease invalid, directing that the tenant pay use and occupancy from the date our client purchased the property and going forward until eviction, and directed that tenant allow our client reasonable access to inspect and maintain the property.

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Itkowitz PLLC Obtains Cancellation of Lis Pendens Allowing Developer to Proceed with Condo Sales

March 2016

Itkowitz PLLC obtained a cancellation of a lis pendens, with prejudice, allowing a developer to proceed with condo sales.

A disgruntled investor sued a condo developer alleging breach of fiduciary duty -- seeking removal of the managers, breach of contract and fraud.  In connection with the lawsuit, the investor filed a lis pendens against the property, effectively blocking the developer from proceeding with any of the six upcoming closings of sales of six of the ten total condo units.

Itkowitz PLLC moved by order to show cause to vacate the lis pendens citing well-settled case law that a lis pendens may not be filed where the plaintiff “claims no right, title or interest in or to the real estate against which it is filed….”

The court agreed and cancelled the lis pendens, thereby allowing the planned condo closings to go forward.

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Itkowitz PLLC helps a Landlord in Greenwich Village Recover a Rent Controlled Apartment for a $25k Buyout, with ZERO Litigation.

March 2016

Itkowitz PLLC helped a landlord in Greenwich Village recover a Rent Controlled apartment for a $25k buyout, with ZERO litigation.  

The tenant was a college professor who had been in the apartment since 1971.  The problem was that he no longer truly lived there.  He used the apartment as a pied-a-terre   and a storage facility.  The case had a few tricky points to it, however.  They all do.

The way we increased our chances of success was by spending extra time on the predicate notice of termination.  Video showed that the tenant was not there a lot.  Many predicate termination notices in non-primary residence cases merely recite the ubiquitous line – “Furthermore, upon information and belief, you have failed to spend more than 183 days out of the preceding year at the subject apartment.”  We decided to do more than that, however.  Among many other things, our notice contained this:

The only means of ingress and egress to the Premises was under continuous video surveillance for a period of approximately seventh months, from October 2014 through and including April 2015 (“the Surveillance Period”).  During the Surveillance Period:

(a) Tenant never occupied the Premises;
(b) Tenant was only at the Premises on 15 occasions, out of 212 days, or 7% of the 212 days;
(c) Tenant did not go to the Premises once from the period spanning Wednesday, October 14, 2014, through and including Monday, December 14, 2014, a period of 54 days, almost 8 weeks;
(d) Tenant’s longest visit to the Premises lasted for 2 hours and 18 minutes on Thursday, January 15, 2015; her visits on the other fourteen occasions lasted sometimes only a few minutes;
(e) The earliest Tenant ever arrived at the Premises was 4:41 p.m. on Saturday, March 15, 2015, and the latest she ever left was 9:46 p.m. on Thursday, April 15, 2015; she never spent the night in the Premises;
(f) The total amount of time that Tenant was inside the Premises over the Surveillance Period, which was comprised of 5,088 hours, was 14.35 hours, or .029% of the 5,088 hours.  
Who is going to argue with that?!  A tenant who receives a notice like this understands that the landlord is finally serious about recovering the apartment.

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Obtaining Favorable Building Capital Improvement Tax Categorization from the New York State Department of Taxation and Finance

February 19, 2016

Itkowitz PLLC helped obtain favorable building capital improvement tax categorization on behalf of a midtown office building client from the New York State Department of Taxation and Finance.

Our client owns a midtown office building for which it had undertaken major capital repairs to the façade. The rehabilitation included replacement of windows, removal and replacement of failing sealant, removal and replacement of upper roof coping, replacement and repair of terracotta blocks, and repair and replacement of steel components.

In the absence of denominating the work as a capital improvement, the owner would have been liable for sales tax on work and materials for the job.  However, upon our application, the Department of Taxation and Finance agreed the work was a capital improvement and therefore was not subject to sales tax pursuant to Section 1105(c)(5) of the Tax Code.

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Retroactive Billing for Additional Rent on Air Conditioning Survives Summary Judgment

January 25, 2016

Itkowitz PLLC just defeated a motion for summary judgment in Supreme Court, New York County, brought by Atalaya Capital Management LP, which occupied a portion of the 16th floor of 623 Fifth Avenue.  Atalaya had sued commercial landlord Fifth Avenue Building Co., seeking a judgment for its security in the amount of $43,982.24 plus $11,919.32  for an alleged overcharge for condenser water for a total of $55,901.56. 

During its last month of occupancy, Fifth Avenue billed Atalaya retroactively for use of a 10 ton supplemental air conditioning system.  Shortly, before the tenant was to vacate, Fifth Avenue advised Atalaya that it had mistakenly been billing it for a 2.5 ton system. Fifth Avenue thereupon presented Atalaya with a retroactive bill for $43,982 for condenser water.  When Atalaya vacated on or about May 2, it had refused to pay the $43,982 and that amount was deducted from its security.  It sued to recover and claimed it was entitled to a refund of  an additional $11,919.32 in alleged condenser water charges.  Fifth Avenue denied Atalaya’s claim, served discovery demands and filed a counterclaim for $31,460 in rent for May claiming that Atalaya, who had vacated on May 2, was responsible for a full month’s rent for May.

Atalaya then moved for summary judgment.  Fifth Avenue opposed and cross moved to compel compliance with its discovery demands. The Court agreed with the position espoused by Itkowitz PLLC that factual issues precluded summary judgment and that Fifth Avenue is entitled to discovery.

Atalaya Capital Management LP v. Fifth Avenue Building Co.; Supreme Court, New York County

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