VACATION?

Not easy when you have deadlines as a lawyer but I will be taking a week of from this blog.

SELLING A HOME IN TODAY'S MARKET

Section 461 provides:

"§ 461. Definitions. As used in this article, the following terms shall
have the following meanings:

1. "Agent" means a person who is licensed as a real estate broker or a
real estate salesperson pursuant to section four hundred forty-a of this
chapter and is acting in a fiduciary capacity.

2. "Binding contract of sale" means a real estate purchase contract or
offer that would, upon signing by the seller and subject to satisfaction
of any contingencies, require the buyer to accept a transfer of title.

3. "Knowledge" means only actual knowledge of a defect or condition on
the part of the seller of residential real property.

4. "Real estate purchase contract" means any of the following:

(a) a contract which provides for the purchase and sale or exchange of
residential real property;

(b) a lease with an option to purchase residential real property;

(c) a lease-with-obligation-to-purchase agreement for residential real
property; or

(d) an installment land sale contract for residential real property.

5. "Residential real property" means real property improved by a one
to four family dwelling used or occupied, or intended to be used or
occupied, wholly or partly, as the home or residence of one or more
persons, but shall not refer to (a) unimproved real property upon which
such dwellings are to be constructed, or (b) condominium units or
cooperative apartments, or (c) property in a homeowners' association
that is not owned in fee simple by the seller.

6. "Transfer of title" means delivery of a properly executed
instrument conveying title to residential real property and shall
include delivery of a real estate purchase contract that is a lease or
installment land sale contract."

SELLING A HOME IN TODAY'S MARKET

We begin with Article 14 of the Real Property Law with Section 460: Short title:

"This article shall be known and may be cited as the "property condition disclosure act".

SELLING A HOME IN TODAY'S MARKET

First thing a seller must be aware of is thr Property Disclosure Statement. The following is from the form prepared by NYS Department of State Division of Licensing Services:

"General Instructions:

The Property Condition Disclosure Act requires the seller of residential real property to cause this disclosure statement or a copy thereof to be delivered to a buyer or buyer’s agent prior to the signing by the buyer of a binding contract of sale.

Purpose of Statement:

This is a statement of certain conditions and information concerning the property known to the seller. This Disclosure Statement is not a warranty of any kind by the seller or by any agent representing the seller in this transaction. It is not a substitute for any inspections or tests and the buyer is encouraged to obtain his or her own independent professional inspections and environmental tests and also is encouraged to check public records pertaining to the property. A knowingly false or incomplete statement by the seller on this form may subject the seller to claims by the buyer prior to or after the transfer of title. In the event a seller fails to perform the duty prescribed in this article to deliver a Disclosure Statement prior to the signing by the buyer of a binding contract of sale, the buyer shall receive upon the transfer of title a credit of $500 against the agreed upon purchase price of the residential real property. “Residential real property” means real property improved by a one to four family dwelling used or occupied, or intended to be used or occupied, wholly or partly, as the home or residence of one or more persons, but shall not refer to (a) unimproved real property upon which such dwellings are to be constructed or (b) condominium units or cooperative apartments or (c) property on a homeowners’ association that is not owned in fee simple by the seller."

SELLING A HOME IN TODAY'S MARKET

It’s still a buyer’s market and in addition to the usual suggestions and tips (i.e. curb appeal, etc.), my experience has shown there are some legal issues to prepare too.

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

Thus, by following this procedure, timely and worthwhile statements of appeals can be submitted to the Appeal Board.

It is almost impossible to achieve the same results if I was not at the ALJ hearing and thus, except for rare circumstances, I cannot represent a claimant in an appeal to the Appeal Board if I was not present at the ALJ hearing.

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

Once I receive from the Appeal Board the notice of transcript availability, I immediately notify the claimant by phone and in writing as follows:

"Hi:

The transcript and exhibits are available for copying at the ALJ office. Please arrange to have them copied and drop off to me immediately."

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

Because of these time restraints, when I first make my request for the transcript, I discuss the mechanics with the claimant, send a copy of the request to the claimant with the following note:

"Hi:

See attached. As we discussed, once the transcript is available, I will notify you. You must immediately go to the ALJ office, make a copy and drop it off to me."

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

Note also the time limits in picking up the transcript for duplication - it must be picked up prior to 3pm and during normal business hours and returned by 4pm.

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

Note the mechanics involved in getting the transcript. One must go to the ALJ office, pick up the transcript, go to a copy center, make a copy, and return the transcript to the ALJ office.

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

The notice of availability of transcripts:

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

Second, as Instruction 4 states:

"...In such event, the time to submit written statements, documents or briefs shall be 20 days from the date when that party is sent notice that the transcript is available for inspection or copying."

So once you receive notice that the transcript is avilable, the time clock starts from the date it was sent and that notice may be received by you days after it is sent.

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

First, a memorandum of law was already prepared by the time a hearing was held - either used for submission or for just hearing preparation, closing argument, etc. If new facts or legal issues are raised at the hearing, I still have a basic legal brief already prepared.

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

By the time I have made my request for transcript, I have already made my draft of my statement of appeal for claimant. This is due to several reasons.

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

In my experience, the only time I have been involved in a matter where the board granted an extension for a request of transcript was the appeal case I described earlier in a post:

"The employer's attorney argued that the notice was timely sent but that the Appeal Board did not acknowledge receipt - or a "lost in the mail" argument. There were several phone hearings and the Appeal Board finally accepted the affidavit of service by the attorney's secretary and ruled the notice was filed in time."

Thus the attorney was able to file a "late" request for transcript.

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

If a timely request for a transcript has not been made, of course one should note Appeal Board Rule Section 463.2(h):

"In the interest of justice and without prejudice to the substantial rights of any party, and upon good cause shown, the board, on its own motion or on application duly made to it, in its discretion, may excuse a default of a party at any stage of a case or appeal. A party who shows good cause for the default shall be entitled to consideration of the case or appeal as if no default had occurred."

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

Note first - "The request to make such arrangements must be made within seven days from the date of the notice of receipt of appeal."

This presents a problem when claimants seek counsel after they file a notice of appeal. Many times, the claimant has failed to make a request for the transcript. In my experience, I cannot adequately file a statement of appeal just based upon the information contained in the adverse decision of the ALJ.

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

Note that the request for transcript incorporates the language of instruction 4 which states:

"(4) Upon written request, arrangements may be made to inspect the minutes of the administrative law judge hearing or to borrow the minutes for the purpose of making a copy thereof at the party's expense. The request to make such arrangements must be made within seven days from the date of the notice of receipt of appeal. In such event, the time to submit written statements, documents or briefs shall be 20 days from the date when that party is sent notice that the transcript is available for inspection or copying."

NEW YORK UNEMPLOYMENT INSURANCE - APPEALS TO APPEAL BOARD

The request for transcript is simple:

"XXXXXXXXXX, 2012


UNEMPLOYMENT INSURANCE APPEAL BOARD
PO BOX 15126
ALBANY, NY 12212-5126

Re: AB XXXXXXXXX4: IN RE: XXXXXXXX

Gentleman:

On behalf of Claimant, I request to inspect the minutes of the hearing and
to borrow same for purposes of copying. I understand that my time to submit
written statements, etc. shall be 20 days from the date of your notice that
the transcripts are available.

I certify that I have mailed a copy of this letter to each of the other
parties listed below.

Sincerely,



Jon M. Probstein


Cc: EMPLOYER"