ABOUT OUR LAW FIRM
Roe Taroff Taitz & Portman, LLP provides a wide variety of legal services to Long Island businesses and individuals. RTTP's primary areas of concentration include civil litigation, admiralty, personal injury, creditors' rights, replevin, trusts and estates, estate planning, business law, refinancing, criminal defense and real estate.
The firm is dedicated to providing high quality legal services at affordable rates. |
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DON'T CHOP DOWN THAT CHERRY TREE FOR ANYONE ELSE BUT ME 
Before you embark on your next landscaping maintenance project, be sure the trees you are trimming are situated on your own property. Steve Taitz and Paula Wetstein are currently litigating a suit over trees on our client's property that a neighbor's contractor chopped down.
In New York, property owners are protected by a statute known as Real Property Actions and Proceedings Law section 861 which imposes liability for damages for cutting, trimming or destroying trees located on another's property without the owner's consent, even if it was done unintentionally. And the penalties can be quite hefty, since the statute provides for treble damages for the value of the trees removed, plus the costs of restoration of the property. Hiring a contractor to do the work will not insulate you from liability either, as you can be responsible for your contractor's actions if you directed him to do the work.
Property owners are often confronted with a dilemma when a hedge or tree planted years ago has become overgrown and it is situated on or near the common property line with a neighbor. Even if you were the one who initially planted these trees, you must proceed with caution. If the trees are located on the boundary line between the properties, the law deems you and your neighbor to be common owners of the trees and neither of you may remove them without the other's permission.
You may, however, trim those leaves and branches that hang over onto your property, but must do so carefully, so as not to destroy the entire tree. If your in-artful pruning causes the tree to die, you are subject to liability under section 861.
If there is any doubt that the trees you would like pruned or cut down are located wholly within the boundaries of your own property, you should consult with a licensed surveyor. |
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DO YOU REALLY WANT TO TAKE ON PERSONAL LIABILITY FOR A COMPANY DEBT?
Think twice before you write a personal check to pay a business bill. Under New York law, an individual can be held responsible for a corporate debt by sending a personal check in payment of the debt. Section 3-4-3 of our Uniform Commercial Code ("UCC") provides that if you sign a negotiable instrument, such as a check or a promissory note, and that instrument does not show on its face that you are signing in a representative capacity, you are personally obligated for the face amount of the instrument. Indeed, even if the instrument is imprinted with a company name, you can be held personally liable if the instrument is dishonored unless your signature is accompanied by some indication that you are signing on behalf of the company. See Tropical Ornamentals, Inc. v. Visconti [a check] and Rotuba Extruders, Inc. v. Ceppos [a promissory note]. For further information call Les Taroff or Elliott Portman.
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IRS OFFERS SAFE HARBOR FOR LOSSES FROM PONZI SCHEMES
In view of the number of investment frauds recently discovered, and the potential scope of the losses, the Internal revenue Service recently adopted a Revenue Ruling (#2990-9) and Revenue Procedure (#2009-20) aimed at avoiding difficult issues of proof as to how much income reported in prior years was fictitious. The new safe harbor procedure applies to losses discovered in a tax year beginning after December 31, 2007. It allows a deduction of 95% of the loss for investors with no potential third-party recovery, and of 75% for investors with potential third-party recovery. For information on this and other tax issues, call Pete Roe, our business and estates partner.
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July 29, 2009 - August 22, 2009
Alive After Five
in downtown Patchogue
July 17 & 24, August 7 & 14
Beatlemania Now
August 14-16, 2009
Fuoco Memorial Golf Feastival
sponsored by:
the Patchogue Rotary Club
to be held at:
The Bellport Country Club
September 17, 2009 | |
Brought to you by:
Partners:
ELLIOTT M. PORTMAN
JOHN J. ROE, III
STEVE TAITZ
LESTER TAROFF
PAULA WETSTEIN
Of Counsel:
CAMPION LALLY
Retired: EDWARD V. ESTEVE
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ARE THE DEADLINES IN YOUR REAL ESTATE CONTRACT ABSOLUTE ?
 A typical residential real estate contract of sale calls for a closing of the sale to be held "on or about" a given date. The "on or about" language is generally construed to mean within a reasonable time (or within approximately thirty days of the stated date). However, some agreements state that time is "of the essence," and in such cases, the closing date is strictly enforced. In some cases, a contract starts out with an "on or about" date, but delays ensue, and one of the parties loses patience, declares time to be of the essence, and demands closing on a specified date. The deadline then becomes absolute, provided the party who declared time to be of the essence gave the other side a reasonable time to perform.
In Iannucci v. 70 Washington Partners, LLC, the parties had an "on or about" closing date in February, and closing did not take place. In April, the seller set a closing date in May with time being of the essence, but offered to terminate the contract and return the down payment if the buyers failed to close on that date. The day before the closing the buyers informed the seller that they agreed to accept the return of their deposit and the cancellation of the contract. The seller responded that if the buyers failed to close on the sale, their deposit would be forfeited. Noting that a time-of-the-essence letter that does not give the other party sufficient time to perform is a nullity, the Appellate Division ruled in favor of the buyers.
In ADC Orange, Inc. v. Coyote Acres, Inc., the purchaser was obligated to make an interim payment towards the purchase price by a particular date. Because the contract contained no time of the essence clause, the New York Court of Appeals held that the purchaser had not materially breached the contract when he sent the payment in two weeks late.
Of course, as we frequently remind our clients, there are no guaranties in litigation. In Crane v. Kahn, decided two years after ADC Orange, the seller missed a deadline by two business days due to events beyond his control. But the Suffolk County Supreme Court ruled that the buyer was entitled to cancel, even though the contract contained no time of the essence clause and the seller still would have been able to close as scheduled.
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ESTATE PLANNING
Estate Planning has always been important for a number of reasons, but it is particularly important now. On January 1, 2009, the Federal Estate Tax exemption rose to $3,500,000 per person, while the New York State exemption remained steady at $1,000,000. On January 1, 2010, the Federal estate Tax will disappear entirely for one year, but will return in 2011 with the exemption reduced to $1,000,000. If you have assets that exceed $1,000,000, you should either plan on dying in calendar year 2010, or meet with an attorney who can help you create an estate plan that will minimize your tax exposure. May we recommend our partner John J. ("Pete") Roe, III?
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