The Damages Requirement for a Breach of Contract Claim

You say someone breached their contract with you. Start by determining how you will measure your damages because without damage their is no breach of contract claim. Your case will be dismissed.

In New York, like other jurisdictions, a Plaintiff must prove the following elements to bring a claim for Breach of Contract:

(1) formation of a contract between plaintiff and defendant;

(2) performance by plaintiff;

(3) defendant’s failure to perform; [and]

(4) resulting damage

TYPES OF DAMAGES AWARDED BY THE COURT MAY INCLUDE:

Compensatory Damages – Plaintiff is awarded the amount of compensation that would make you whole. For example, price of the contract was $1,000 and as a result of defendant’s breach you had to pay $1,500 for the same services elsewhere. Possible court award may be $500 because you would have had to pay the $1,000 at minium anyway.

Restitution – Defendant is required to refund Plaintiff the money Plaintiff paid to the breaching party.

Liquidated Damages – if your contract has a provision which sets the damages in the event of breach that is what plaintiff is awarded.

Nominal Damages – A damage award made where there were damages were unquantifiable but the court seeks to award the bare minimum for the sake of recognizing the harm. It could be as small as $1.00 so its not worth the time, effort and expense.

Quantum Meruit – Plaintiff is awarded payment for work that plaintiff completed if the defendant who hired plaintiff reneged on the contract before it was complete. Typically a service contract scenario.

Equitable Remedies – The Court issues a declaratory judgement ordering the contract canceled or requiring a specific preformance by the breaching party – a rare remedy because it is hard to monitor.

Punitive Damages – An additional award beyond the basic damages award which generally matches the basic damages in amount. It is awarded to plaintiff punnish morally reprehensible behavior by the breaching party.

Why Airbnb is Illegal in New York City

The fight for free enterprise between companies such as Airbnb and Hotels and Landlords has been in the news for a while. There is no Airbnb Law per se so what makes Airbnb and similar business models illegal in New York City?

Short term leasing is prohibited by New York Multiple Dwelling Law Sec 4(8)(a). A ‘Multiple Dwelling’ is a home rented within a residence with three or more families dwelling independently of each other. Such a dwelling can only be occupied by the same natural person or family for 30 consecutive days or more. However you may allow a non-paying guest to occupy your residence for less than 30 days if they are a non-paying guest.

According to the New York Housing a Maintenance Code 27-2004(14), an apartment is single dwelling unit meant for a single family with lawful sanitary and kitchen facilities for the exclusive use of that family. Under HMC 27-2004(4), a family is a single person with not more than two borders; OR two more persons related by blood, adoption, legal guardianship, marriage, or domestic partnership maintaining a household with not more than two borders; OR not more than three unrelated persons. Furthermore, pursuant to HMC 27-2078, a family may rent to no more than two borders, roomers or lodgers.

When is Airbnb illegal when you are home at the time of rental, which lasts less than 30 days, and the guests don’t number three or more?

When a Rent Stabilized Tenant is profiting off the rental. The Rent Stabilization Code prohibits Rent Stabilized Tenants from profiteering off their apartment by Subleasing

When you are creating a liability for other tenants and ultimately the landlord.

Why should landlords care if they get their rent anyway?

The New York City Department of Buildings and Environmental Control Board will issue violations and fines to a landlord if it finds that the short-term leasing law has been violated. Ignorance is not a defense!

Do not confuse these rules with the tenant’s right to have a roomate.

If you are Landlord faced with the need to evict a tenant for violating the short term leasing law or a tenant facing eviction for violating those laws, Diana Mohyi Attorney at Law P.C. can represent you.

The Difference between Rent Controlled verses Rent Stabilized Apartments

Yes there is a difference between Rent Controlled and Rent Stabilized Apartments. It’s all about the money. Both types of apartments are considered ‘Rent Regulated’ Apartments. The rent a tenant must pay is generally far below the market rate that the landlord could typically charge for the unit. Therefore these units are valuable to the tenants who have them because the tenancy can be passed on through the family or someone that is considered close to you and has lived with you in the unit. The landlord and tenant cannot contract outside of the governing statutes for these types of units. There are significant differences between the two types of units.

Rent Control generally applies to residential buildings built before 1947 in municipalities such as New York City, among others, which did not declare an end to the postwar rental housing emergency. The rent stays stagnant and therefore it would be possible to pay under $100 a month in rent in such a unit. These are considered the most valuable apartments. There have been 10 room apartments in the upper east side which have rents set at not more than $1000 per month. But good luck finding a tenant willing to give it up!

In NYC, Rent Stabilized apartments are generally those apartments in buildings of six or more units built between February 1, 1947 and January 1, 1974. Rent Stabilized apartments are still much lower than market rate to rent. The landlord has a right to increase the rent in accordance with the landlord’s expenses by applying to The Rent Guidelines Board which regulates the rent on Rent Stabilized Units only. Generally, a landlord can convert a Rent Stabilized apartment to a market rate apartment. The landlord must do significant renovation to the apartment, such as a complete gutting of the apartment down to the floor beams, and applying to the Rent Guidelines Board to convert the unit to a market rate apartment. Otherwise, when a Rent Stabilized unit is vacated by a tenant it remains Rent Stablized.

When Rent Controlled Apartments become vacant they automatically convert to a Rent Stabilized Apartment. The landlord cannot unilaterally declare that the unit is now market rate and then start marketing it as such. If a legitimate case for rent over charge is brought against a Rent Stabilized unit’s landlord, the landlord can be required to repay all the rent paid by the tenant which was charged above what was the tenant was legally required to pay as well as hefty fines and the tenants legal fees. The landlord must attach certain riders to a lease for a Rent Stabilized Apartment.

If you are a tenant being forced to pay above market rent for your unit or you are a landlord who is defending such a claim, Diana Mohyi Attorney at Law P.C. can assist you to resolve your dispute.

See more on this topic at https://www1.nyc.gov/site/rentguidelinesboard/resources/rent-control.page

Why a Landlord Cannot Evict & Collect Past Due Rent at the Same Time

Usually the parties in a lawsuit resolve all disputes against one another in one proceeding, but Landlord Tenant Law is a different. A landlord cannot both evict a tenant and obtain a judgement for past due rent from the the tenant in the same proceeding. A landlord must send a termination notice to the tenant first before commencing a holdover proceeding to evict the tenant. If the landlord wants to get past due rent from the tenant they must commence a non-payment proceeding to obtain a judgement from the tenant. In most cases, the tenant has not been paying rent because they don’t have the money to pay it. In that situation it does not make sense for the landlord to start with a nonpayment proceeding. The landlord would typically commence a holdover proceeding. The landlord must be careful to follow the both the rules of Civil Procedure for a Civil Lawsuit and procedures outlined in the the New York State Real Property Actions and Proceedings Law (RPAPL). If any one of the procedural requirements are not followed, the Landlord essentially gives the tenant’s lawyer an excuse to use to have the action dismissed. Therefore it is important for a landlord to obtain the counsel of an attorney who practices landlord tenant law. Otherwise the Landlord will waste time and money commencing an action against a tenant just to restart the process all over again. Diana Mohyi Attorney at Law P.C. is available to represent you in your landlord tenant proceeding whether you are a landlord who is not being paid or a tenant who is being harrassed.

Get Out of Your Comfort Zone with Laughter

I recently took a standup comedy class Manhattan Comedy School, which ran for 6 weeks. At the end of the class we had a graduation show in which I performed. Click to See my 3 minute stand up comedy bit here.  Initially I had intended to take this class to distract me from my usual. I gained so much more. I learned how people process information so that they can be suprised by your punch line. I also learned how to look at my environment and background for the absurd so that I could bring joy to myself first and then others.

The point I am making here is that it is important to stop taking the world around you so seriously that you cannot even experience joy at the inconveniences which are in fact absurdities. For example, the New York City Subway is like a Three Stooges movie every single morning. Everyone is crammed into a train which is not big enough to fit them. The fact that I occasionally get chased by a pair of expensively bred dogs whose owner’s only excuse for that behavior is that they are a bunch hormonal bitc**s. By the way it feels no different than when I’m in court at times.

The inconveniences we experience in life are actually gifts in disguise. They challenge us to stop staying stuck in our usual routine. The same thing happens when one has a business dispute, divorce or landlord tenant issue. Those challenges are merely life’s way of shaking things up a little. Diana Mohyi Attorney at Law P.C. can represent you in your civil litigation matter so that the challenge that irked you helps make you stronger and wiser in preparation for life’s next challange.