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Latham, NY

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New York Real Estate Broker’s Liens FAQ

New York Real Estate Broker’s Liens FAQ

By John Harwick, Esq., featured by the Greater Capital Association of Realtors.

What is a broker’s lien?John Harwick_cropped

When a licensed real estate broker obtains a tenant for a lease of commercial property, the broker is entitled to a commission. In cases where a broker’s client is reluctant to pay a broker’s lien for the commission may be filed against the real property.

Who can file a broker’s lien?

A broker who obtained a tenant for a lease of a term of more than three years for non-residential purposes pursuant to a written contract of brokerage employment or compensation can file a lien. However, a tenant’s broker is not eligible to file a lien. Only the broker for the landlord or owner of the property is entitled to file a lien

What does the lien attach to?

The lien attaches to the leased real property.

When can a broker’s lien be filed?

The Notice of Lien may be filed after the performance of brokerage services and execution of the lease. However, if the commission is to be paid in installments then the Notice of Lien may be filed within eight (8) months after final payment is due but no later than five (5) years after the date the first payment was made.

When does the lien arise?

The lien “attaches” to the property upon filing a Notice of Lien. The Notice of Lien must be served on the owner of the property within the statutory period. If the broker does not properly serve the owner of the property, and file proof of service within the statutory deadline, then the lien is terminated and ineffective.

How do I file a lien?

The Notice of Lien must be filed in the Clerk’s office of the county where the property is situated. If the property is in two counties then it must be filed in both Clerks’ offices. The commission agreement must be attached to the Notice of Lien. There are very strict service requirements for serving notice on the property owner and filing proof of service. A broker should consult an attorney to ensure the lien is prepared, filed, and served correctly.

How long does a broker’s lien last?

A broker’s lien can last for one (1) year after the Notice of Lien is filed unless the lien holder within that one year time acts to foreclose on the lien to seek payment. The lien can be extended another year by filing a notice of extension, which must include the name of the property owner, name of the lien holder, a brief description of the property, how much the lien is for, when the original lien was filed and the extension should be served on the property owner. The lien can only be automatically extended that one time. If another extension is sought it must be through a court order.

Is a written brokerage agreement required?

Yes. Generally a written agreement is not required for a brokerage contract. However, New York Lien Law requires a “written agreement of employment or compensation” to be able to file for a broker’s lien.

Can the broker waive the right to a lien for his commission?

No. Under New York Lien Law any agreement to waive a right to file or enforce any lien will be found void as against public policy and wholly unenforceable.

Can a broker file a lien regarding the sale of real property?

No, a broker can only file a lien for commission when the broker has procured a tenant, with a lease for more than 3 years, for non-residential purposes. However, a broker can file an affidavit for entitlement of commission in a sale of real property but this does not arise to the level of a lien and has far different rules.

What is the effect of bankruptcy on a broker’s ability to file a lien?

A broker can file a lien against a client in bankruptcy as the “automatic stay” does not prevent any act to perfect or to maintain perfection of an interest in property.

What happens if the client refuses to pay?

The broker can foreclose on the lien and force the sale of the property at public auction. The cost of the sale, taxes, and superior liens will be paid first. The broker will be entitled to the surplus up to the amount of their lien.

 

E. Stewart Jones Hacker Murphy Law Firm Promotes Three to Partner

NEW APPOINTMENTS POSITION FIRM FOR GROWTH

 TROY – The E. Stewart Jones Hacker Murphy Law Firm is proud to announce the promotion of three attorneys to the position of partner. Ryan M. Finn, Thomas J. Higgs and James C. Knox each boast successful careers spanning diverse areas of litigation. “This is an important piece of our continued growth at E. Stewart Jones Hacker Murphy,” said James E. Hacker, Managing Partner. “Ryan, Thomas and James have been integral to our success, and these new roles illustrate just how valuable they are to our firm.”

Ryan Finn (1)

Attorney Ryan Finn

Having developed a reputation as one of the more creative and effective attorneys in Upstate New York, Ryan Finn delivers the highest level of personal service to his clients. Mr. Finn has been honored as a Top 10 Personal Injury Attorney Under the age of 40 in New York State. Mr. Finn has also been consistently honored as a Super Lawyer in the fields of Labor and Employment; Business Litigation; and Personal Injury. Mr. Finn is a graduate of Albany Law School, where he was the Salutatorian of his class, and Siena College.

Thomas Higgs

Attorney Thomas Higgs

Thomas J. Higgs is a civil litigator with extensive experience in complex business litigation who has achieved successful results for his clients in both Federal and State Courts. Mr. Higgs also focuses on personal injury litigation and appellate work having argued before the Appellate Division, Third and Second Departments, and the United States Court of Appeals for the Second Circuit. In 2015, Mr. Higgs was selected by his peers as an Upstate New YorkSuper Lawyer. Mr. Higgs is a graduate of Albany Law School, where he was a member of Law Review and served as the research assistant to the late David D. Siegel, and Colgate University.

James Knox

Attorney James Knox

An accomplished litigator, James C. Knox has earned a reputation of excellence. Although his practice is focused on personal injury litigation and criminal defense, Mr. Knox has an active appellate practice, having argued before the Appellate Division, Third Department, the New York State Court of Appeals and the United States Court of Appeals for the Second Circuit. Mr. Knox has been recognized as a “Rising Star” by Super Lawyers every year since 2013, an honor bestowed upon just 2.5% of attorneys in New York State. A graduate of Lewis & Clark Law School, Mr. Knox achieves top results for his clients in State and Federal Courts and is well known for the personal dedication he invests in each client and every case.

The appointment of these three new partners ushers in the next chapter for the prestigious E. Stewart Jones Hacker Murphy Law firm. The firm continues to be committed to growing and continuing to serve its clients across New York State.

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About E. Stewart Jones Hacker Murphy: The January 2015 merger of the E. Stewart Jones and Hacker Murphy law firms created an entity with a combined 134-year track record of success in the Upstate New York legal community. With offices in Albany, Troy, Latham and Saratoga Springs, the firm’s 15 attorneys offer unparalleled legal counsel in the areas of commercial litigation, property tax dispute, criminal defense and personal injury law. For more information, visit www.joneshacker.com.

Fewer Young People are Getting Behind the Wheel After Drinking

DWI Defense in AlbanyAccording to the New York Times, a new government survey found that there was a 59% drop in drinking and driving among 16- to 20-year olds from 2002 to 2014. There was a 38% decline for adults between 21 and 25 during that same time period.

The study was recently published in the Morbidity and Mortality Weekly Report from the Centers of Disease Control and Prevention. Researchers said the decline was likely because of the overall drop in drinking among young people, aggressive law enforcement steps, and preventative efforts at schools across the country.

The study used data from more than 380,000 respondents to the federal government’s annual National Survey on Drug Use and Health. Young people were asked about their alcohol and drug use over the last 12 months during in-person interviews.

Even though law enforcement officials considered this encouraging news, the data suggested there were still a lot of dangerous young drivers on the road last year. According to the Times, nearly one in five people between the ages of 21 and 25 admitted to drinking and driving. Far fewer drivers between the ages of 16 and 20 said the same; only about one in 15 acknowledged getting behind the wheel drunk.

If you or a loved one have been charged with DWI and need a local, Albany based lawyer, contact us immediately to schedule a free, no-obligation consultation with one of our experienced DWI / DUI / DWAI attorneys. We are available 24/7 and offer convenient meeting times at any of our four Capital Region law offices in AlbanyTroyLatham and Saratoga Springs. If needed, we can meet with you at the police station or courthouse.

The legal team at E. Stewart Jones Hacker Murphy is always available for emergency legal situations, like DWI charges, by calling (518) 274-5820.

Swearing-In Ceremony for ACBA, James E. Hacker, President-Elect

logoThe Albany County Bar Association (ACBA) will be holding its Annual Meeting and Swearing-In Ceremony at the Albany County Courthouse Today, January 12, 2016 at 5:30 PM. Daniel W. Coffey, partner at Bowitch & Coffey, LLC, will be sworn in as President. Coffey has been a member of the Association since the early 1990s, holding multiple roles on the Board since 2009. He was also instrumental in developing the Organization’s first Law Day Run 5K in 1994. This year he will celebrate 22 years on the Run Committee.

The slate of Officers being sworn in include:
• President-Elect: James E. Hacker of E. Stewart Jones Hacker Murphy
• Vice-President: Hon Christina L. Ryba, NYS Supreme Court
• Treasurer: Daniel J. Hurteau of Nixon Peabody
• Secretary: Michael P. McDermott of O’Connell & Aronowitz
• Immediate Past President: Janet M. Silver of Hinman Straub, P.C.

The slate of Directors being sworn in include:
• Douglas R. Kemp of the NYS Attorney General’s Office
• Matthew P. Barry of McNamee, Lochner, Titus & Williams, P.C.
• Hon Ryan T. Donovan of Harris, Conway & Donovan, PLLC
• Elizabeth J. Grogan of Wilson, Elser, Moskobitz, Edlerman & Dicker, LLP
• William T. Little, Jr. of Teresi & Little, PLLC
• Lisa R. Harris, Senior Counsel, New York State Senate Majority Conference

LAPD chief recommends criminal charges for officer in fatal shooting of homeless man in Venice

Latimes-logoThe entire Los Angeles Times story is available below, or by clicking here

Los Angeles Police Chief Charlie Beck has recommended criminal charges against an officer who killed an unarmed homeless man in Venice, marking the first time as chief that Beck has called for charges in a fatal on-duty shooting.

LAPD investigators concluded that Brendon Glenn was on his stomach, attempting to push himself off the ground, when Officer Clifford Proctor stepped back and fired twice, hitting the 29-year-old in the back, Beck told The Times.

After reviewing video, witness accounts and other evidence, investigators determined Glenn was not trying to take either Proctor’s gun or his partner’s weapon at the time of the shooting, Beck said. Proctor’s partner also told investigators he did not know why the officer opened fire.

The May 5 shooting generated fierce criticism of the LAPD and came amid a heated national conversation about police officers and their use of force, particularly against African American men. Glenn was black, as is Proctor.

Beck said he made his recommendation to Los Angeles County Dist. Atty. Jackie Lacey last month when the LAPD handed over its investigation to prosecutors. He said he has suggested that prosecutors file charges against officers in other cases but never for a fatal on-duty shooting.

It will be up to Lacey and her office to decide whether to bring a case against Proctor, and it’s unclear when that decision will be made. Los Angeles County prosecutors have not charged a law enforcement officer for an on-duty shooting in 15 years.

Mayor Eric Garcetti said in a statement Monday that he hoped Beck’s recommendation “is considered with the utmost gravity.”

“No one is above the law, and whenever use-of-force crosses the line, it is our obligation to make sure that principle is upheld,” Garcetti said.

Beck said the majority of shootings by officers are justified. But, he added, “in those much rarer cases where a shooting is not justified–and on top of that, not legal–I will also say that.”

Proctor’s attorney, Larry Hanna, defended his client’s decision to shoot, saying the officer saw Glenn going for his partner’s gun — even if his partner may not have realized it. Although a security camera captured the events leading up to the shooting, Hanna said, both of Glenn’s hands could not be seen for the entirety of the recording.

Hanna accused LAPD brass of making a “political decision,” saying the chief spoke too early about the case last year when he publicly questioned Proctor’s actions just hours after the shooting. The chief’s recommendation to the district attorney, Hanna said, is “following suit.”

The attorney said he believed Lacey’s office would “make the right decision” and decline to file charges against the officer.

“There’s a lot of people out there who want to see officers tried for any type of shooting,” Hanna said. “When an officer is making a split-second decision and he sees somebody going for his partner’s gun…the officer’s perception is very crucial here.”

E. Stewart Jones, a New York attorney who is representing Glenn’s family, said they were grateful — and surprised — by the chief’s decision.

“It’s telling,” Jones said. “It’s not easy for a police chief, particularly when he’s never done it before, to make a decision that one of his own be prosecuted by the district attorney’s office.”

Jones, who expects to file a lawsuit on behalf of the family sometime this month, said he believed Lacey’s office would charge Proctor. Not doing so, he said, would be “political suicide.”

“There’s too much controversy over police shootings,” he said. “When someone is unarmed and shot in the back, you’ve got to send a message to the rest of the police that you can’t do that.”

Glenn’s death stood out among the 21 fatal shootings by on-duty LAPD officers in 2015. Local activists and friends of Glenn packed a town hall meeting in the days after the shooting, angrily complaining about how the LAPD uses deadly force and interacts with homeless Angelenos.

Within a day of the shooting, Beck told reporters he was “very concerned” by surveillance video that captured the incident. The video, he said at the time, did not show the “supporting evidence” or “extraordinary circumstances” that would justify an officer shooting an unarmed person.

Beck’s actions in the Venice incident contrast with his finding in another high-profile case: the fatal shooting of Ezell Ford. Beck cleared the two officers who shot Ford, a mentally ill black man, in August 2014. The city’s Police Commission later disagreed with the chief and found that one of the officers violated the department’s policy for using deadly force. The district attorney’s office said last week it was still reviewing whether to file criminal charges against the officers.

Glenn’s shooting occurred after Proctor and his partner went to Windward Avenue in response to a complaint that a homeless man – later identified as Glenn – was “harassing customers” outside a building, the LAPD said in the hours after the shooting. The officers briefly talked to the man and returned to their patrol car after he walked toward the boardwalk.

Soon after, police said, the officers saw Glenn struggling with a bouncer outside a nearby bar. The officers approached Glenn and tried to detain him, police said, leading to a “physical altercation.” At some point, Proctor opened fire.

Proctor, who has been with the LAPD for eight years, has not returned to work since the shooting.

Those who knew Glenn described him as a kind man who constantly told people he loved them. The New York native was known for his “hand hugs” – grabbing hold of someone’s hand before saying goodbye, they said, and adored his black Lab mix.

Glenn’s friends acknowledged he would sometimes be vocal when he drank – one mentioned “a little mean streak” – but said they had never seen him be aggressive.

Tim Pardue, the manager of a homeless center on Windward Avenue, said Glenn had stopped by the center just a few hours before the shooting. Glenn left about 8 p.m., thanking Pardue for the noodles and crackers he had given him.

At some point, Glenn stopped to visit with other friends, including Bill Hinson. Hinson said Glenn told him he wanted to find some money to buy a beer, then took off for the boardwalk.

About 11:30 p.m., gunshots rang out. Pardue walked out of the center and saw a man lying on the ground.

It was Glenn.

Story by Kate Mather, Los Angeles Times, kate.mather@latimes.com 

Car Seats Can Save A Child’s Life

New York State Thruway Accidents Albany LawyersCar accidents can happen to anyone, and as a result we all know someone who has been involved in an accident. According to the National Highway Traffic Safety Administration, there were 5.4 million car accidents in the United States in 2014 alone, making car accidents are the leading cause of preventable death in children between the ages of 2 and 14.

It is absolutely essential to make sure children are properly restrained in vehicles at all times. Using the proper equipment installed the correct way could be a life saving decision for you and your children.

According to a leading government website, here are four main types of car seats: Rear-facing, forward-facing, booster and seat belts. Each type of seat has different guidelines for use and age/weight ranges. Follow the instructions for correct installation, and use LATCH (Lower Anchors and Tethers for Children) if possible. Also, consider having the seat checked by a trained technician to ensure it is installed properly. Visit SafeNY website for a list of local Child Safety Seat Inspection Stations.

To ensure you are notified if the car seat you are using is ever recalled, parents should register their car seat(s) with the manufacturer. When a new car seat is purchased, it includes a registration card that simply has to be filled out and mailed in. If you do not have a registration card, you can access a list of manufacturers and a link to their online registration here.

If you or your child has been injured in a car accident, contact us immediately to schedule a free, no-obligation consultation with one of our experienced personal injury lawyers. We offer convenient meeting times at any of our four regional law offices in Albany, Troy, Latham and Saratoga Springs, NY.

The E. Stewart Jones Hacker Murphy legal team is also available 24/7 for emergency situations by calling (518) 274-5820.

Personal Injuries Increase in Winter

Personal InjuryClimbing a ladder can be a dangerous task, and in the winter there are numerous reasons to do so, including hanging holiday lights and removing snow from the roof.  Each year, there are more than 164,000 emergency room treated injuries and 300 deaths that are caused by ladder falls. If you are working on faulty equipment, these statistics will only increase.

Click here to learn more about ladder safety guidelines and follow these tips this winter to stay safe while prepping and enduring the deep freeze:

Holiday Lights:

  • Be sure to test the lights you wish to hang before you climb onto the ladder.
  • Also make sure you have enough lights and light clips for the desired area.
  • Safely climb the ladder and only carry a little bit of the lights and clips at a time to ensure safety.
  • Hang the lights in the same direction and if there is no gutter to hang the lights off, simply clip the lights to shingles.

Removing Snow:

  • Use a snow rake for removing snow off pitched roofs.
  • Keep gutters and drains clean, free of ice and snow and keep downspouts clean.
  • Try to leave a few inches of snow on the roof. If the roof is scraped clean it can cause damage to your shingles or roof covering.
  • Start from the edge and work your way into the roof.

If you or a loved one has been injured due to a faulty ladder or a slip and fall accident, contact us immediately to schedule a free, no-obligation consultation. Our experienced legal team is ready to take action to protect your rights and help you obtain the financial compensation you deserve. We are available 24/7 for emergency situations and offer convenient meeting times at any of our four Capital Region law offices in Albany, Troy, Latham and Saratoga Springs.  Call today: (518) 274-5820.