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Reconceptualizing Incomplete Attempt, Youngjae Lee

Faculty Scholarship

Incomplete attempt laws are typically explained as laws that exist to justify timely law enforcement intervention. Such explanations may well provide good reasons for the laws based on harm prevention rationales, but they do not address the question whether a person who has, say, “cocked and aimed the pistol” has actually attempted to kill and is blameworthy for having done so. It turns out that this question is notoriously difficult to answer. This Article describes the challenge of defining incomplete attempt and of identifying and articulating its wrongfulness as a general theoretical matter. This Article then argues in favor of …

Clermont York Assoc. Llc V. Zgodny

All Decisions

In this nonpayment proceeding, the landlord moved to restore the case to the court calendar after a nine-year delay following an interlocutory appeal. The court denied the motion, finding that the landlord failed to demonstrate a reasonable excuse for the lengthy delay, a crucial factor for granting restoration motions. The court emphasized the importance of diligence in prosecuting legal claims and the potential prejudice to the tenant from such a significant delay.

Bogom-Shanon V. Altman

All Decisions

In this Small Claims Court case, the tenant, a former resident of the landlord's property, brought a claim against the landlord. The landlord moved to dismiss for lack of personal and subject matter jurisdiction. The court denied the motion. While the statute initially appeared to limit jurisdiction to current tenants, the court considered the legislative history and found that the statute was intended to include former tenants in landlord-tenant disputes. The court emphasized the importance of legislative intent and the need to avoid an absurd result in interpreting the statute.

Kong Min Wong V. Carvajal

All Decisions

In this holdover proceeding for lease expiration, the tenant moved to dismiss based on the landlord's failure to timely file the affidavit of service and improper service of the petition and notice of petition. The court initially denied the motion, finding the landlord's late filing of the affidavit of service was not prejudicial and that the landlord could not have served the documents timely due to court delays. On reargument, the court granted the tenant's motion to dismiss, finding that the landlord failed to serve the petition and notice of petition within the statutory time frame required by RPAPL §733(1), …

Shamie, Llc V. Rush

All Decisions

In this nonpayment proceeding, the tenant moved to dismiss the petition because the landlord used a modified version of the mandatory Notice of Petition form. The court granted the motion, finding that the landlord's modifications to the form, including changes to language regarding the potential loss of the tenant's home and the right to counsel, were improper and could confuse unrepresented tenants. The court dismissed the proceeding without prejudice, allowing the landlord to refile using the correct form.

Sans Souci Apartments, Inc. V. Koltowich

All Decisions

In this holdover proceeding based on nuisance, the tenant moved for discovery regarding the landlord's allegations of 17 incidents of objectionable conduct. The court granted the motion, finding that the tenant demonstrated "ample need" for the information to adequately defend herself. The court emphasized the importance of discovery in nuisance cases to ensure a fair trial and allowed the tenant to obtain information such as the identities of witnesses and the basis for the landlord's knowledge of the alleged incidents.

Matter Of 160 E. 84th St. Assoc. Llc V. New York State Div. Of Hous. & Community Renewal

All Decisions

In this case, the landlord challenged DHCR's interpretation of the Housing Stability and Tenant Protection Act (HSTPA), which repealed luxury deregulation. The landlord argued that apartments with pending deregulation orders prior to the HSTPA's enactment should still be deregulated upon lease expiration. The Court of Appeals affirmed DHCR's interpretation, holding that the HSTPA effectively repealed luxury deregulation for apartments whose leases expired after the statute's effective date. (Such apartments are still subject to rent stabilization.) The court emphasized the legislative intent behind the HSTPA and rejected the landlord's arguments regarding undue delay in DHCR's processing of deregulation applications.

Briar Hill Realty Llc V. Reisner

All Decisions

In this nonpayment proceeding, the landlord obtained a default judgment against the tenant. The tenant moved to vacate the default judgment, arguing that the landlord's agent misled him into believing he did not need to respond to the court proceedings. The court granted the tenant's motion, finding that the landlord's agent's actions constituted extrinsic fraud, which warranted vacating the judgment even without a showing of a meritorious defense. The court emphasized the importance of preserving the integrity of the legal process and preventing situations where parties are misled into believing they do not need to defend themselves in court.

Decision In Art. 78 Proceeding - Stewart, Andrew (2024-11-07)

Decisions in Art. 78 Proceedings

No abstract provided.

513 W. 150 Gardens Llc V. Simmons

All Decisions

In this nonpayment proceeding, the court affirmed the dismissal of the petition. The court found that the apartment was created through an illegal alteration (combining two apartments). Since the violation issued by the Department of Buildings had not been remedied and the certificate of occupancy was not amended, the landlord was precluded from recovering rent or use and occupancy.

Matter Of Mccabe V. 511 W. 232nd Owners Corp.

All Decisions

This case involved a co-op resident (tenant) who sought to inherit her deceased partner's co-op unit. The co-op board denied the transfer, arguing that the tenant was not the deceased's spouse and therefore not eligible for automatic transfer under the lease. The tenant argued that the board's denial constituted discrimination based on marital status under the NYCHRL. The Court of Appeals affirmed the lower courts' decisions, holding that the NYCHRL's prohibition on marital status discrimination does not extend to unmarried partners. The court emphasized the plain meaning of "marital status" and the lack of legislative intent to extend protection to …

Hakim V. Ahmed

All Decisions

In this no-grounds holdover proceeding, the tenant moved to dismiss the petition on grounds of improper service and the omission of a necessary party. The court denied the motion. Regarding service, the court held that while the COVID-19 Emergency Eviction and Foreclosure Prevention Act (CEEFPA) had temporarily heightened service requirements, those requirements no longer applied. The court found that the landlord's service of process complied with RPAPL § 735, which governs service in summary eviction proceedings. The court also found that the tenant's arguments regarding the omission of a necessary party were insufficient to warrant dismissal at this stage.

Auguste V. Lee

All Decisions

The court granted summary judgment based on the petitioner and respondent's relationship as a couple, living together with children in common. After the petitioner moved out, a Family Court child support order was issued. While no general familial eviction exception exists, the support obligation prevented maintaining the summary proceeding. However, the court denied respondent's motion for summary judgment on harassment, ruling that the two-family home status did not allow a rebuttable presumption of harassment. The court dismissed the entire case without opportunity to restore the harassment claim.

170 Ny Props. Llc V Edwards

All Decisions

The landlord commenced a nonpayment proceeding against the rent-stabilized tenant. The tenant asserted a defense under MDL 302-a, claiming that rent-impairing violations entitled them to a 100% rent abatement. The court found that the tenant failed to prove that the notices of violation were properly served to the landlord and dismissed the defense.

Barros V Bokonos 243, Llc

All Decisions

Tenant alleged fraudulent deregulation of their apartments by landlord's predecessor through false claims of individual apartment improvements (IAIs) in 2007 and 2008, resulting in unlawful rent increases. The court held that these allegations, if proven, established a fraudulent scheme under precedent. Landlord's argument of no liability due to pre-purchase due diligence was deemed a fact-laden defense unsuitable for resolution at the pleading stage. The motion to dismiss was denied, with costs awarded to the tenant.

Matter Of 2406 Realty Llc V Department Of Hous. Preserv. & Dev. For The City Of N.Y.

All Decisions

The landlord challenged the Department of Housing Preservation and Development's decision to provide relocation services to a former occupant of the landlord's building. The court reversed the lower court's decision, finding HPD's determinations had a rational basis, as the vacate order was issued due to health and safety concerns and the former occupant provided sufficient proof of occupancy.

Rechovos Estates Llc. V. Thomas

All Decisions

In this licensee holdover proceeding, the court dismissed the petition and found that the tenant, the son of the deceased tenant of record, had proven his entitlement to succeed to the rent-stabilized tenancy. The court found that the tenant's documentary evidence and testimony, including bank statements, utility bills, and identification documents, outweighed the landlord's testimony that he had never observed the tenant residing in the apartment. The court also rejected the landlord's argument that the tenant's omission from the deceased tenant's SCRIE application precluded his succession claim.

Matter Of Federation Of Orgs. For The N.Y. State Mentally Disabled, Inc. V Lindsay

All Decisions

The landlord commenced a holdover proceeding against the tenant for breach of the lease. The court held that the landlord's notice of default and termination notice were insufficient to maintain the holdover proceeding, as they did not comply with the lease's cure period requirements. The court reversed the Appellate Term's decision and dismissed the petition.

Houston Triangle Iii Llc V. Biswas

All Decisions

The court dismissed the landlord's illegal sublet claim for insufficient predicate notices. The notices failed to allege specific facts necessary to establish an illegal sublet under Rent Stabilization Code §2525.6. The landlord's evidence, presented only after the case commenced, could not cure the defective notices. The tenant's motion to dismiss for failure to state a cause of action was granted, as predicate notices cannot be amended. The dismissal was without prejudice, preserving the landlord's ability to recommence proceedings.

A Guide To Parole Preparation In New York State, Parole Preparation Project, Michelle L. Lewin

All Categories

No abstract provided.

The Constitutional Limits To The Taxing Power, Ari Glogower

Fordham Law Review

The modern U.S. Supreme Court has elevated the apportionment requirement for direct taxes into the most important constitutional limitation to Congress’s taxing power. The U.S. Constitution requires that any “direct tax” must be apportioned among the states by population, which is impracticable or impossible for a tax today. The modern interpretative approach focuses on the formal categorization of the tax base, as either a “direct tax” or not. This approach could bar Congress from enacting certain taxes—such as a federal wealth tax or possibly even capital income tax reforms—simply through their formal labeling as direct taxes.

This interpretation inflates apportionment’s …

Plausibly Illiberal: Sua Sponte Dismissals Of Pro Se Complaints Under The Prison Litigation Reform Act, Pierce Edlich

Fordham Law Review

Over a quarter of civil litigants file suit in federal court without an attorney. Most unrepresented litigants are in prison, and many of their cases raise complex, delicate constitutional questions. The number of unrepresented litigants in federal courts rose steadily until the 1990s, when Congress passed the Prison Litigation Reform Act (PLRA) of 1995 to limit the burden of frivolous inmate litigation on federal courts. Since 1996, the PLRA has defined courts’ procedural obligations for inmate and in forma pauperis (IFP) suits, often filed pro se. The PLRA requires that courts screen and dismiss sua sponte cases that are frivolous, …

Lost At The South China Sea: A Legal Rationale For Joining Unclos, Dean Feinman

Fordham Law Review

Rising tensions in the South China Sea are a tired front of great power competition. Since President Barack Obama’s “pivot to Asia,” there has been renewed attention on growing Chinese naval power and influence, which stands to challenge the U.S. status as the world’s preeminent naval force. Despite a clear and obvious interest in maintaining a favorable global oceans regime, the United States has not ratified the United Nations Convention on the Law of the Sea (UNCLOS), the principal international instrument governing the use of the oceans. Instead, the United States argues that ratification is unnecessary because UNCLOS “embodies” customary …

The Equal Protection Case Against Disparate U.S. Humanitarian Parole Policies For Afghans Compared To Ukrainians, Darcy Gallego

Fordham Law Review

The disparities between the U.S. government’s use of humanitarian parole in response to the humanitarian crises in Afghanistan and Ukraine are indicative of discrimination and violate the Equal Protection Clause. As such, U.S.-based relatives of Afghans should prevail in seeking accountability for the thousands of Afghans who continue to wait for protection.

First, this Note explains what immigration parole is, provides an overview of standing, equal protection, and animus, and describes how the government has used parole for Afghans and Ukrainians. Second, it compares parole for Afghans and Ukrainians and discusses recent immigration equal protection challenges. Third, it demonstrates that …

A Broken Shield: Ineffective Assistance Of Counsel Claims In Cases Of Racist Defense Attorneys, Sophia Sabet

Fordham Law Review

Defense attorneys are not immune to racism, and a defense attorney who holds racist beliefs about their client’s race fundamentally calls into question the representation received. Under the Sixth Amendment, all criminal defendants have the right to the effective assistance of counsel. To prevail on an ineffective assistance of counsel claim, the U.S. Supreme Court held in Strickland v. Washington that a criminal defendant must prove that their counsel’s performance was deficient and that the deficiency prejudiced the defense. The Supreme Court supplemented the Strickland standard in Cuyler v. Sullivan and United States v. Cronic, holding that a conflict …

Compelling Compliance: An Analysis Of Methods For Enforcing New York’S Compulsory Education Law As Applied To Haredi Yeshivas, Kaitlyn Sivertsen

Fordham Law Review

This Note explains recent findings that many of New York’s Haredi yeshivas are failing to comply with the compulsory education laws and advocacy for the state to heighten enforcement. It examines other community members’ opposition to this belief and numerous legal challenges. This Note advances legal scholarship by pointing out that although these debates regarding education and religious freedom are important, in the context of New York’s Haredi yeshivas, they are futile without also recognizing that New York’s statute does not provide for efficient means of enforcement. There is little to no existing literature on this specific issue. Thus, this …

A Proxy For Piety: A Closer Look At Religious Cost In The Substantial Burden Inquiry, Philip Andrew B. Wines

Fordham Law Review Online

This Comment discusses whether the Establishment Clause and “religious question” doctrine prohibit courts from considering the subjective religious harm suffered by free exercise claimants when determining if laws impose a “substantial burden” on the claimant, as defined by the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). It explores a dilemma that courts are presently facing. They must choose either to wade into constitutionally perilous theological debates to decide cases on their merits, or to defer to free exercise claimants on their own assertions of substantial burden and risk swallowing up the law …

Will Bruen Kill Cops?, Peter N. Salib, Guha Krishnamurthi

Fordham Law Review Online

Criminal procedure is a balancing act. On one hand, it must allow law enforcement officers to protect the public and themselves. On the other hand, criminal procedure must safeguard citizens’ individual constitutional rights—privacy, physical liberty, and bodily integrity. And now, the right to bear arms.

There is a serious tension here. Landmark Fourth Amendment cases like Terry v. Ohio, Pennsylvania v. Mimms, and Chimel v. California give the police wide latitude to seize firearms on the assumption that guns are dangerous. But these doctrines largely evolved before the Second Amendment’s ascendance. In District of Columbia v. Heller, …

Article Iii Standing In Federal Prosecutions Of “Victimless Crimes”, Ryan H. Nelson

Fordham Law Review Online

Plaintiffs in federal court bear the burden of proving their standing, as Article III permits inferior federal courts, after Congressional authorization, to exercise jurisdiction over “Cases” and “Controversies” alone. From these constitutional terms of art—“Cases” and “Controversies”—we derive the familiar case-or-controversy requirement of standing, including injury. These terms of art authorize Congress to empower the inferior federal courts to hear civil and criminal actions alike, but federal prosecutors have never been similarly burdened with proving the standing of the United States in federal court, including that the United States has suffered injury. This Essay examines that lapse and contends that …

Chang V. Guzman

All Decisions

Tenant sought to vacate a stipulation of settlement and judgment of possession, claiming a lack of understanding due to language barriers and asserting rent stabilization defenses. The court reviewed the stipulation, including a Spanish interpreter, and found no basis to vacate the agreement. However, the tenant's motion was denied. The court stayed eviction for one month, to allow the tenant to vacate the premises with dignity.