FAQ

Legal issues have a way of arising when you least expect them, and, rather unfortunately, they can quickly become difficult to manage on your own. Whether you are concerned about an aging loved one, dealing with a tenant, facing foreclosure, planning your estate, buying property, or pursuing compensation after an injury, you most likely have several questions about what happens next. That is why the Law Office of Peter A. Hurwitz, PLLC has compiled the following answers to some of the most frequently asked questions about these areas of New York law. Read our New York legal FAQ below.

Guardianship FAQ

Q: What is an Article 81 guardianship in New York?
A: Essentially, an Article 81 guardianship allows a New York court to appoint someone to address the personal or financial needs of an adult who can no longer manage those needs or understand the consequences of failing to do so. Importantly, the court must only give the guardian the powers that are necessary and appropriate under the circumstances.

Q: What is the difference between an Article 81 and Article 17-A guardianship?
A: Though Article 81 and Article 17-A guardianships both allow another person to make certain decisions on someone’s behalf, they serve different purposes. Article 81 guardianships are based on an adult’s functional limitations and can be tailored to meet specific needs. Article 17-A guardianships generally concern adults with qualifying intellectual or developmental disabilities and are typically more restrictive.

Q: When can an emergency guardian be appointed in New York?
A: A court may appoint a temporary guardian when there is a reasonably foreseeable danger to an allegedly incapacitated person’s health or well-being. A temporary guardian may also be necessary when the person’s money, property, or other assets are in danger of being wasted, misappropriated, or lost. The court will specifically identify the temporary guardian’s powers and responsibilities.

Q: What happens when a guardianship proceeding is contested?
A: A guardianship proceeding may become contested when the allegedly incapacitated person or another interested party disputes the need for a guardian, the individual selected to serve as guardian, or the powers being requested. In a contested Article 81 proceeding, incapacity must be proven by clear and convincing evidence, and the court must also consider whether less restrictive alternatives are available.

Landlord-Tenant Law Questions

Q: How can a landlord legally evict a tenant in New York?
A: Rather simply, a New York landlord cannot remove a tenant without first completing the proper legal process. Generally, the landlord must provide all required written notices, file either a nonpayment or holdover proceeding, properly serve the tenant, and obtain a judgment and warrant of eviction. Only an authorized officer may carry out the actual eviction.

Q: What is the difference between a nonpayment eviction and a holdover proceeding?
A: There are two primary types of eviction proceedings in New York: nonpayment proceedings and holdover proceedings. A nonpayment proceeding is brought when a tenant owes rent and remains in the property. A holdover proceeding is used for other reasons, such as an expired tenancy, a substantial lease violation, or the presence of an unauthorized occupant.

Q: What notice must a New York landlord give before filing a nonpayment case?
A: If rent has not been received within five days of the date on which it was due, a New York landlord generally must send the tenant a written late-rent notice. Before filing a nonpayment proceeding, the landlord must also serve a written 5-day and 14-day rent demand. Failure to properly prepare or serve these notices may result in the case being dismissed.

Q: Does New York’s Good Cause Eviction Law affect every landlord?
A: No, New York’s Good Cause Eviction Law does not apply to every landlord or rental property. The law applies in New York City and in municipalities that have chosen to adopt it, though several exemptions exist. For covered properties, landlords generally must establish a legally recognized reason before evicting a tenant or refusing to renew a lease.

Q: What should be included in a New York residential lease?
A: A properly drafted residential lease should clearly identify the parties, the rental property, the length of the tenancy, the amount of rent, and the security deposit. It should also address utilities, repairs, maintenance, pets, entry, subletting, renewal, and termination. Finally, the lease should contain all legally required disclosures and comply with any applicable rent-regulation laws.

Foreclosure Defense FAQ

Q: What should I do after receiving foreclosure papers in New York?
A: If you receive a foreclosure summons and complaint, you should first understand that you do not have to immediately leave your home. That being said, you should not ignore the paperwork. You will need to determine your deadline for responding, preserve your mortgage records, and review whether you have defenses to the foreclosure. Failing to answer may result in a default judgment.

Q: How long does the foreclosure process take in New York?
A: Generally speaking, the New York foreclosure process takes approximately one year from the filing of the case to the eventual sale of the property. However, every case is different, and some foreclosures take considerably longer. Settlement conferences, disputed defenses, loan-modification reviews, motions, court scheduling issues, and delays by the lender may all affect the timeline.

Q: What happens at a foreclosure settlement conference in New York?
A: During a foreclosure settlement conference, the homeowner, the lender, and a court representative will discuss whether there is a reasonable way to resolve the case. Potential solutions may include a loan modification, repayment plan, short sale, or deed in lieu of foreclosure. Homeowners should bring their mortgage, income, tax, and expense records to the conference.

Q: Can a loan modification or short sale stop a New York foreclosure?
A: In many cases, a loan modification can resolve a foreclosure by changing the mortgage’s interest rate, payment amount, loan term, or treatment of missed payments. A short sale, on the other hand, allows the property to be sold for less than the remaining mortgage balance. Simply applying for either option does not necessarily stop the foreclosure case.

Estate Law Questions

Q: What happens if someone dies without a will in New York?
A: When someone dies without a valid will, they are considered to have died “intestate.” Rather than allowing the deceased person to decide who should receive their property, New York’s intestacy laws determine which relatives will inherit. The Surrogate’s Court may then appoint an administrator to collect property, address debts and taxes, and distribute the remaining assets to the appropriate relatives.

Q: What is the difference between a will and a trust in New York?
A: A will is a document that states how a person’s probate property should be distributed after death and names the individual who will serve as executor. A trust, however, holds property for selected beneficiaries and is managed by a trustee. Property properly transferred into a lifetime trust may pass outside of probate, though assets left outside the trust may still require court administration.

Q: What does a New York power of attorney allow someone to do?
A: A power of attorney allows a person, referred to as the principal, to select an agent to handle certain financial and legal matters on their behalf. Depending on the document, the agent may manage bank accounts, benefits, taxes, real estate, or business interests. Importantly, a power of attorney terminates upon the principal’s death.

Q: What is the probate process in New York?
A: Probate is the legal process used to establish that a deceased person’s will is valid and to formally appoint the executor named in that will. From there, the executor can identify and collect estate property, address outstanding debts and taxes, and distribute the remaining assets. Certain qualifying estates with less than $50,000 in personal property may use a simplified proceeding.

Real Estate Law

Q: What does a real estate attorney do during a New York property transaction?
A: Real estate transactions involve far more than simply agreeing on a price and signing a contract. A New York real estate attorney can review or prepare the contract, negotiate contingencies, examine title issues, coordinate with lenders, calculate adjustments, and prepare the documents necessary for closing. Real estate brokers cannot provide legal advice or draft provisions that require legal judgment.

Q: What must a New York home seller disclose to a buyer?
A: Subject to certain exceptions, sellers of covered one-to-four-family residential properties must provide buyers with a signed Property Condition Disclosure Statement before the buyer enters into a binding contract. This document addresses conditions that are actually known to the seller. However, it is not a warranty and should not be treated as a replacement for a professional inspection.

Q: How is a commercial real estate transaction different from a residential closing?
A: Commercial real estate transactions are generally more complicated than residential transactions, primarily because they require a more extensive review of zoning, environmental conditions, leases, rent rolls, operating expenses, financing, title, surveys, and permitted uses. Furthermore, commercial contracts often contain detailed representations, warranties, indemnification provisions, and due-diligence deadlines that are not ordinarily found in residential contracts.

Civil Litigation

Q: What happens during a civil lawsuit in New York?
A: There are several stages to a civil lawsuit. Generally, the case begins when one party files pleadings that explain the dispute and the relief being requested. The parties may then exchange evidence through discovery, file various motions, attend conferences, negotiate a settlement, and, if necessary, proceed to trial. Civil litigation can involve contracts, property, businesses, fraud, fiduciary obligations, and more.

Q: How long do I have to file a civil lawsuit in New York?
A: The amount of time you have to file a civil lawsuit will depend primarily on the type of claim involved. For example, many contract and fraud actions have six-year statutes of limitations, while property-damage claims generally have three-year deadlines and defamation claims generally have one-year deadlines. Claims involving government entities may have considerably shorter notice requirements.

Personal Injury

Q: What must an injured person prove in a New York negligence claim?
A: To bring a successful negligence claim, an injured person generally must prove that the defendant owed them a duty of care, breached that duty, and directly caused an injury and resulting damages. Evidence used to establish negligence may include photographs, videos, accident reports, medical records, witness statements, inspection records, expert opinions, and documentation of lost income.

Q: How long do I have to file a personal injury lawsuit in New York?
A: Generally, injured people have three years from the date of an accident to file a personal injury lawsuit in New York. However, there are several important exceptions. Medical malpractice claims generally have a two-year-and-six-month deadline, wrongful death actions generally have a two-year deadline, and claims involving government entities may require notice within only 90 days.

Q: What compensation may be available in a New York personal injury case?
A: Depending on the circumstances, an injured person may be entitled to compensation for medical bills, rehabilitation costs, lost income, reduced earning capacity, property damage, pain and suffering, and the loss of enjoyment of life. Ultimately, the compensation available will depend on the severity of the injuries, the supporting evidence, the applicable insurance coverage, and the parties’ respective responsibility.

Contact The Law Office of Peter A. Hurwitz, PLLC

If you have additional questions or you’d like to speak with a knowledgeable lawyer about your case, simply contact the Law Office of Peter A. Hurwitz, PLLC for an initial consultation today.