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Nysba Summer 2009 | Vol NYSBA SUMMER 2009 | VOL. 37 | NO. 3 N.Y. Real Property Law Journal A publication of the Real Property Law Section of the New York State Bar Association SPECIAL EDITION: SELECTED TOPICS IN MEDICAL ETHICS AND BIOETHICS Inside • Right to Terminate Proprietary Leases • Statutory Short Form Power of Attorney Revised • Development Rights • Protecting a Subtenant from Losing Its Leasehold • Disclosure in the New York City Housing Court • Most Infl uential Commercial Lease Cases • Selling a Co-op Back to the Borrower From the NYSBA Book Store Real Estate Transactions— Residential Property* Real Estate Transactions—Residential Property is a practical, step-by-step guide for attorneys representing residential real estate purchasers or sellers. This invaluable monograph covers sales of resale homes, newly constructed homes, condominium units and cooperative apartments. Numerous practice guides and a comprehensive collection of forms, including examples of forms used in daily practice, make this publication an excellent reference for new and experienced attorneys alike. AUTHORS In addition to updating case and statutory references, this latest Kenneth M. Schwartz, Esq. edition, prepared by Kenneth Schwartz, includes many updated Farer & Schwartz, P.C. forms and a section on fi nancing. New York, NY Claire Samuelson Meadow, Esq. Yearly updates make this monograph a mainstay of your Attorney at Law reference library for many years to come. Larchmont, NY PRODUCT INFO AND PRICES The 2008–2009 release is current through the 2008 New York 2008–2009 / 456 pp., State legislative session. softbound / PN: 42148 NYSBA Members $72 Non-members $80 Free shipping and handling within the continental U.S. The cost for shipping and handling outside * The titles included in the NEW YORK PRACTICE MONOGRAPH SERIEs are also available as segments of the New York the continental U.S. will be added to your order. Lawyer’s Deskbook and Formbook, a five-volume set that covers 27 areas of practice. The list price for all five Prices do not include applicable sales tax. volumes of the Deskbook and Formbook is $650. Get the Information Edge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0533 Table of Contents A Message from the Outgoing Section Chair ....................................................................4 (Peter V. Coffey) A Message from the Incoming Section Chair ....................................................................5 (Joel H. Sachs) The Right to Terminate Proprietary Leases Based on Objectionable Conduct: Five Years After Pullman .................................................................................6 (Vincent Di Lorenzo) Statutory Short Form Power of Attorney Revised; New Statutory Major Gifts Rider ........................................................................................................................13 (Michael J. Berey) Development Rights Purchases by Zoning Lot Merger in New York City ................18 (Francisco Augspach) Protecting a Subtenant from Losing Its Leasehold upon Termination of the Prime Lease or Foreclosure of a Building Mortgage ......................................30 (L. Stanton Towne) Disclosure and Disclosure-Like Devices in the New York City Housing Court ........34 (Gerald Lebovits, Rosalie Valentino, and Rohit Mallick) The Most Influential Commercial Lease Cases in the Last Century That Every Drafter and Litigator Must Know ............................................................46 (Adam Leitman Bailey and Dov Treiman) BERGMAN ON MORTGAGE FORECLOSURES: So You Want to Sell the Co-op Back to the Borrower ................................................55 (Bruce J. Bergman) ON THE COVER A view of rue de Grenelle in Paris, as seen at its intersection with rue du Bac, a few blocks south of the Gare d’Orsay. Painted by Sherman Stein, who said he chose this scene because it “caught the spirit of Paris.” The artist’s son, Joshua, chaired the Section for the year ending in May 2006. The painting appears here courtesy of its owner, Helaina Stein, Joshua’s elder daughter. NYSBA N.Y. Real Property Law Journal | Summer 2009 | Vol. 37 | No. 3 3 Message from the Outgoing Section Chair I am told that this is my last to Ed (Baer), to the other side, but are simply Chair’s Message. They are not going who had to people of goodwill who, observing to let me write any more of them—or go through the facts and law, etc. of a given situ- I can write all of ’em I want, but are some dif- ation, come to a different judgment. not about to publish them. I assume fi culties but In what was probably a perfect storm, they are throwing away my picture. stayed with these new voices were raised at the As a good lawyer I was not going us and now same time that Karl Holtzschue, to- to take somebody’s word for it, so I has come gether with Kathleen Lynch, brought checked it out. It turns out they are back swing- a whole new perspective to our Sec- right. This is it. I once read in an ABA ing. Thanks tion in that we became increasingly publication called Bar Leader, in which Peter V. Coffey to Spencer involved in the legislative process, they dealt with the fact that after the (Compton) in proposed bills, in lobbying and in term of a president of a Bar Associa- for all his work on our budget. And taking positions regarding proposed tion, state or local, or a leadership then there is Heather Rogers, whose legislation. As I say, it was a bumpy position ends, there is a depression election to Secretary has prompted ride but it was a wonderful ride. I that sets in. I would like to tell you universal acclaim. As soon as she was must tell you all I really enjoyed it. after I cease on June 1 whether I expe- nominated, she jumped right in, fully Thanks go out to Karl Holtzschue, rienced a great depression. However, participated, attending regular offi - Kathleen Lynch, Heather Rogers, Ger- they will not let me tell you. Maybe cers’ meetings and phone conferences ry Antetomaso, John Hall, Tom Hall, I could sneak in some night and slip with a very active voice. Harry Meyer, Mel Mitzner, Raun Ras- an article (with a picture) into our mussen, Mike Hanley, Steve Alden, While Chair, Harry Meyer Journal and tell you all about it, but Steven Baum, Ed Filemyr. Their pas- brought a major change to our Execu- I guess that is not going to happen. sion, their integrity, their thoughtful- tive Committee. He created new posi- And besides, I will be too depressed ness and thoroughness made it such tions and invited people to fi ll those to do it. I better move quickly. an exciting year, particularly the last and existing positions who infused month or two. Finally, I do want to Thank-yous are in order. First the Executive Committee with voices single out one person, and that is Karl of all, thank you Joel (Sachs). Being frankly not heard before. To almost Holtzschue. He, like Harry, is a for- Chair can be a pleasant experience everyone, change is unnerving to mer Chair and his efforts for our Sec- but if you do not have the real help some extent and it may be frankly tion to involve us in legislation have of the person following you, this can said that we have had somewhat of been, if not unique, one of the great be a real hell. Joel, a former Section a bumpy ride. In the past, we have efforts I have witnessed. On a person- Chair himself (this will be his second generally focused on the business al level, I want to thank Karl—he did Chairmanship; it may be some sort aspects of banking, mortgages, fore- everything I asked, including coming of record), made life for my term as closures, etc. Now our Public Interest up with a procedure for reviewing Chair a joy. It turns out that Joel is a Law Committee and others want to comments on legislation and always poet, and speaking of fi rsts, I believe focus on those who are affected by graciously accepted my resolution I am the fi rst Chair to go out with a those activities. We would like to whenever there was an issue. poem in his or her honor. At the last think of ourselves as rational beings Executive Committee meeting, Joel whose decisions and positions are There are many issues in which actually read a poem about me, for based upon pure rationality. Frankly, we involved ourselves but the issue me. Good grief, it does not get any that is not true. As Hannah Arendt which was paramount to me was the better than that. The Summer Meet- pointed out in her book Life of the fact that a group of individuals—non- ing was a great success—the Annual Mind, there are basically three aspects lawyers—believes it has the right to Meeting for our Section was a great of the human mind—thinking, will- defi ne our practice of law. This belief success. Joel’s deferential coopera- ing and judging. We can think about is set forth in the New York State tion meant so much. Thanks to Anne something all we want but in the end Land Title Association’s proposed bill (Copps) for advice and encourage- our judgment is a matter of taste. on title agent licensing. For everyone ment. I was about to say that Anne is Hopefully, we can appreciate that in this Section reading this article, always positive, but she is not. Her those with a different viewpoint are you must know that that bill will advice accordingly is so much more not evil, sinful, irrational or all those prohibit most of you from carry- valuable and she has been a treasured other bad things that can be applied ing out your real estate practice. It friend of mine for a long time. Thanks (continued on page 53) 4 NYSBA N.Y.
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