New York adheres to the doctrine of caveat emptor which relieves the seller from liability for failing to disclose information about a property to a buyer when the two parties deal at arms length. A seller may only be held liable if there is some conduct by the seller which constitutes the active concealment of conditions or facts which would not otherwise be readily discovered by a buyer upon reasonable examination. For concealment to be actionable as fraud, the defrauded buyer must show that the seller “thwarted” the due diligence efforts made by the buyer. Otherwise the seller will not be held responsible under the doctrine of caveat emptor.
Very few protections are available to a buyer of real property in New York State. Indeed the buyer is ultimately liable for any code or zoning violations on the property and purchases the property subject to all governmental or private restrictions (easements and covenants, etc.) imposed on the use of the property. Some thirty or forty years ago, only a building permit was usually required to construct or renovate a single-family home or even a small office building. However, over the past few decades, municipalities and state agencies have added more and more regulations affecting property rights. Today the same small project will likely be subject to a wide variety of municipal and state permitting requirements including site development plan approval, wetlands, steep slopes and tree removal permits, storm water plan approval, species protection and historic preservation laws. Multiple applications to local planning, zoning and wetlands boards as well as to county and state agencies may need to be made. A buyer must carefully investigate and consider all such government regulations which may impact the intended use of the property before purchasing a property.
New York State Law requires all properties in Westchester to be assessed at a uniform percentage of market value each year. This means that all properties must be assessed at market value or at the same uniform percentage of market value each year.
Annual assessments are determined by your assessor who independently estimates the market value of real property in your municipality. Market value is how much your property would sell for under normal conditions. It is generally defined as the price a willing buyer would pay a willing seller for a property in its present condition. A market value sale also is known as an arm’s length transaction. Once the assessor estimates the market value of your property, the assessment is then calculated.
Each taxing jurisdiction (school district, town, village, city, county, etc.) is responsible for developing and adopting an annual budget. There are several steps involved in this process. Revenue from all sources other than the property tax is determined. Revenues are then subtracted from the budget to arrive at the tax levy – the total amount needed to be raised through the property tax. The tax rate for properties in your community is then determined by dividing the tax levy by the total taxable assessed value of all taxable real property in your community (tax levy ÷ total assessed value = tax rate).
All property owners have the right to challenge their tax assessment each year. There are two levels of formal review: (1) administrative review via the grievance process conducted in each assessing unit, and (2) judicial review via a Supreme Court trial or Small Claims Assessment Review (SCAR).
Any person aggrieved by an assessment may file a complaint with either the Assessor or the Board of Assessment Review. Town Boards of Assessment Review meet on the third Tuesday in June. Failure to timely file a Complaint on or before June 19th will result in a forfeiture of your right to challenge your 2012 assessment.
The Appellate Division of New York State Supreme Court recently ruled in favor of a school district in a personal injury claim brought by the parents of a high school student. The plaintiffs commenced suit against the school district when their daughter, a high school cheerleader, fell while performing a cheerleading stunt which she had performed numerous times in the past. The school district’s defense was two-fold: first it argued assumption of risk, meaning that the student assumed the risk of injury by voluntarily engaging in the activity of cheerleading with knowledge of its inherent risks. The school also defended the claim on the grounds that it properly supervised the cheerleading activities. The Appellate Division, Second Judicial Department, granted the school district’s motion and dismissed the complaint in Testa v. East Meadow Union Free School District, decided February 28, 2012.
Every school has a legal duty to adequately supervise the activities of students under its care. However the law does not make schools the insurer of the safety of its students. The adequacy of a school’s supervision of its students is generally a question left to the jury deciding the case. The negligence standard is whether the school exercised the same care over its students as a parent would provide for his or her own child in similar circumstances. The age of the child is obviously an important factor as younger children require constant and close supervision. The potential danger of personal injury is also a critical factor.
The U.S. Supreme Court recently ruled on the Telephone Consumer Protection Act of 1991 (also known as the TCPA). Voluminous consumer complaints about abuses of computerized calls dispatched to private homes and other abusive telephone practices prompted Congress to pass this law which authorizes any State to bring civil actions to enjoin prohibited practices and to recover damages on their residents’ behalf. Consumers may also privately sue collection agents or telemarketers who violate the TCPA.
Congress made findings that unrestricted telemarketing can be an intrusive invasion of privacy. Congress responded to many consumer complaints and outrage over the proliferation of intrusive, nuisance telemarketing calls to their homes. Automated or pre-recorded telephone call made to private residences were rightly regarded by recipients as an invasion of privacy.
The TCPA outlaws four practices. First, the Act makes it unlawful for a telemarketer to use an automatic telephone dialing system or an artificial or pre-recorded voice message, without the prior express consent of the called party, to call any pager, cellular telephone, or other service for which the receiver is charged for the call. Second, the TCPA forbids using artificial or pre-recorded voice messages to call residential telephone land lines without prior express consent. Third, the Act prohibits unsolicited advertisements sent to fax machines. Fourth, it bans automatic telephone dialing systems which engage two or more of a business’ telephone lines simultaneously.
In Marcus D. Mims v Arrow Financial Services, LLC, Mr. Mims, a Florida resident, alleged that Arrow, seeking to collect a debt, repeatedly used an automatic telephone dialing system or pre-recorded or artificial voice to call his cellular phone without his consent. He commenced suit in the Federal District Court for the Southern District of Florida under the TCPA, charging that Arrow willfully or knowingly violated the TCPA. He sought declaratory relief, a permanent injunction, and money damages. The U.S. Supreme Court ruled that such consumer lawsuits brought under the TCPA can be commenced in either State or Federal courts. This broad interpretation of the TCPA will hopefully help curb abusive telemarketing and collection calls to consumers.
Telephone numbers can be placed on the National Do Not Call Registry by signing on the Registry at www.donotcall.gov. Telephone numbers placed on the Registry will remain listed on there permanently due to the Do-Not-Call Improvement Act of 2007, which became law in February of 2008. More than 157 million phone numbers are on the National Do Not Call Registry.
A recent decision by our Court of Appeals, New York State’s highest court, provides an important lesson to party hosts who serve alcohol to their guests. In Martino v Stolzman, the 7 judges on the Court examined the liability of the hosts in separate lawsuits brought against them by their guest and a passing motorist. Both claimants were severely injured when a male guest backed his truck out of the hosts’ driveway after attending a New Year’s Eve party with his lady friend. He was later tested and found to have a blood alcohol content of .14 percent, nearly twice the legal limit. Both his female passenger and the driver of the vehicle struck by his truck asserted claims against the hosts of the party under New York’s Dram Shop Act, a law that prohibits the service of alcohol to guests who are visibly intoxicated. A violation of the Dram Shop Act exposes hosts to liability to third persons injured by their guest who drives off drunk and causes an accident. Serving alcoholic beverages to your guests is not illegal but you must always be sure your guests do not drive away drunk. Good hosts take care of their intoxicated guests by arranging a substitute driver or alternate transportation.
