Brown & Kelly

News & Achievements

Tips for Landlords

Difficult tenants and a lack of understanding of the law can result in a monetary loss for a landlord.  It is, therefore, essential that a landlord be aware of his/her rights and the rights of the tenants prior to entering into a lease. 

A lease is a binding contract between the landlord and tenant, which must detail the rights and responsibilities of the parties, as well as penalties for failure to comply. The preparation of a lease sounds simple, but many pre-made leases overlook important rights a landlord may want to preserve, as well as rules they expect the tenants to follow.  A lease is not simply legalese, rather it is an exhaustive contract tailored to the needs of the landlord.  As the drafter, if the landlord’s lease is not clear, the law will rule against the landlord in the event of an ambiguous clause. Moreover, without the appropriate provisions which sever any void or ambiguous clauses, an ambiguity in one part of the lease may void the entire document.

Another consideration is to assure that all adult persons living on the property be listed on, and sign, the lease, otherwise they are not bound to its terms and conditions. This applies whether the renters are unrelated college students, or a married couple.

The lease must clearly outline behaviors that are prohibited on the property, such as smoking, quiet hours, illegal activities, and loud music, so as to allow the landlord to rectify the situation immediately instead of having to amend the terms of the residency. No one wants other tenants, or neighbors, complaining about an obnoxious tenant while the landlord is helpless to act instantly.

An understanding of the law, and potential exposure, is necessary before agreeing to permit animals on the property. In addition to the potential damage a pet can cause, landlords must be aware of the need to report various pets to their insurance company, especially dogs. Permitting a tenant to own a dog on the property could result in a lawsuit against the owner if the dog bites or causes injury, even if the owner does not reside on the premises.

The landlord must also determine what information is needed to screen the potential tenants. A proper rental application will contain requests for basic information for EVERY person who will reside on the premises, including names, alias, SSN, date of birth, employer contact information, references, etc.  In addition to allowing the landlord to screen the potential tenants, obtaining this information will assist in the event the tenancy goes sour and enforcement of a judgment is needed. The application, and landlord or agent, must advise the prospective tenant that a background check and/or financial check will be performed. 

A landlord must also be cautious when the need arises to enter the property for repairs or an inspection. In most circumstances, it is best to have the tenant present, or have approval to enter. Absent an emergency, the best policy is to give the tenants 24 hours’ notice.

To further protect the landlord and property, a landlord should mandate that the tenant have renter’s insurance which names the landlord as the additional insured. This requirement should be in the lease with a demand for proof of the policy.

If the home is older, especially a home built prior to 1978, lead paint may exist on the premises. While dangerous to all individuals, small children may be affected, exposing the landlord to a great deal of liability. The law requires certain documents be provided to the tenants advising of the potential of lead, even if the landlord is not aware of its existence.

A landlord must be especially careful when the need arises to evict a tenant. Eviction will result in the removal of the person for their home, thus the law is exact as to what must be done. The advice of attorneys can make the process easier and provide an additional buffer that all prerequisites have been met. One small error can result in the Court denying the eviction and requiring the landlord start the process all over. Not only will this incur additional charges, but the landlord is limited in the time period of back rent recoverable during the eviction proceeding.

Our firm has prepared a myriad of leases and handled many eviction matters over our 90 year history. Our expertise can save you from the headaches, lost time and potential loss of rights during the eviction process. Should you wish to have one of our attorneys review or tailor your lease, assist with the rental process or eviction of a tenant, please contact Renata Kowalczuk or Shea Kolar to schedule an appointment.

2014 Court of Appeals Decision on Disclosure Requirements in New York Lead Paint Cases

On June 12, 2014, in the case of Hamilton v. Miller et al., the New York State Court of Appeals addressed whether a plaintiff has to supply medical narrative reports diagnosing every condition or injury alleged in plaintiff’s bill of particulars prior to an independent medical examination. The Court answered in the negative.

In Hamilton, plaintiffs’ attorney alleged over fifty (50) injuries in the Bill of Particulars, including kidney damage, liver damage, eye damage, and neurological damage with related cognitive and behavior problems. The plaintiffs provided no medical evidence regarding most of the injuries and disclosed no medical diagnoses linking their injuries to the lead exposure. The only "evidence" they provided were their diagnoses of elevated lead levels (a lead level of 35 in one case and a lead level of 58 in the other).

Before conducting independent medical examinations under CPLR Section 3121, six defendant landlords moved pursuant to 22 N.Y.C.R.R. 202.17 to compel the plaintiffs to produce any medical reports diagnosing them with the injuries alleged in the Bill of Particulars, and causally relating those injuries to lead exposure. The Supreme Court agreed and ordered the plaintiffs to produce the disclosure to the independent medical examination as it would be fundamentally unfair and contrary to the spirit and intent of 22NYCRR202.17 to force defendants to conduct IMEs in a vacuum. The Fourth Department affirmed.

The New York State Court of Appeals reversed. The Court held that the trial level order imposed unduly burdensome obligations not contemplated by 22 N.Y.C.R.R. 202.17. The Court held the regulation requires only the disclosure of medical reports by medical providers who have previously treated or examined the party seeking recovery, whereas the disclosure sought by the defendants was akin to expert disclosure. For the plaintiff to succeed at trial, the plaintiff will likely need to retain an expert to review the medical records and render the type of causation opinion contemplated by the defendants. However, nothing in the language of 22 N.Y.C.R.R. 202.17 required a plaintiff to make such disclosure at this early stage in litigation, i.e., pre independent medical examination.

The Court of Appeals further indicated that the proper way to deal with issues regarding expert disclosure would be for defendants to ask the individual Judges to amend, or issue, scheduling orders requiring plaintiffs produce expert disclosure at an earlier date. Thus, defense counsel must request the Court order plaintiff to provide expert disclosure prior to the defense expert disclosure deadline, and in advice of 30 days before trial.

Should you have any questions or concerns, please feel free to contact Renata Kowalczuk or Kristen B. Degnan.

Paul M. Hassett Jr. receives the 2014 Canisius College LaSalle Medal

At Canisius College, the LaSalle Medal is presented periodically to outstanding alumni who have made substantial contributions to advance the interests of the college.  Paul Michael Hassett Jr. from the Class of 1962 is one of two recipients to have been selected to receive the 2014 LaSalle Medal.

The Medal was presented to Paul at the college’s 148th Undergraduate Commencement Ceremony on Saturday, May 17, 2014 at the Koessler Athletic Center.

As a recipient of this honorary award, Paul joined President John J. Hurley and other key institutional leaders as a member of the platform party.

Lawyers for Learning Bowling Tournament

Brown & Kelly, LLP again participated in the Lawyers for Learning Bowling Tournament. The Lawyers for Learning program matches volunteers from the legal community to students in grades one through eight who are academically at risk and/or financially disadvantaged in order to improve their academic performance, build self-esteem, provide profession role-modeling and increase self-confidence. Kathleen T. Feroleto is a volunteer tutor with the program.
The combined efforts of bowlers Renata Kowalczuk, Managing Partner, and Rebecca Koenig, Litigation Paralegal and Administration and Personnel Manager, lead to them winning “The Worst Bowler” trophy for the evening. Dawn Lindner, the firm’s Litigation Medical Coordinator, coordinated our participation and school supplies donations, as well as bowling at the event. The other bowlers were: Kristen B. Degnan and Shea Kolar, Attorneys; Kristie Marshall, Paralegal; Laura Young, Bookkeeper; Teresa Cleary, Legal Assistant; and a few significant others.


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Mentioned Attorney: Kathleen T. Feroleto

Jessica J. Burgasser Is Named Partner
Brown & Kelly is pleased to announce that Jessica J. Burgasser has been named a partner to the firm. Jessica joined Brown & Kelly in 2001 and concentrates her practice in insurance defense and coverage litigation, as well as family law matters. She manages the firm’s asbestos case load and provides experienced legal advice to a wide range of asbestos clients, including manufacturers, property owners and retailers.

Mentioned Attorney: Jessica J. Burgasser

Renata Kowalczuk and Kristen B. Degnan attended the Federation of New York Insurance Professionals Conference
Renata Kowalczuk and Kristen B. Degnan attended the Federation of New York Insurance Professionals Conference in Fishkill, NY with the Insurance Women of Buffalo. The Federation of New York Insurance Professionals, Inc. was founded in 1943 as a professional organization which provides its members with skills and experiences to help them progress in the risk and insurance fields through educational, networking and philanthropic activities.
KRISTEN B. DEGNAN PRESENTS ON WORKERS COMPENSATION LAW

On April 10, 2014, Kristen B. Degnan was invited to speak to a senior level class at D’Youville College on Workers Compensation Law. Her presentation was geared toward including the perspectives of both employers and employees.  She also offered many useful tips to the class.  Thank you Kristen for your volunteer spirit as I am sure the class also appreciated your insightful tips and the time you offered out of your busy schedule.

MEGHAN LYTLE AND SHEA KOLAR PARTICIPATED IN THE MDA LOCK-UP

On April 3, 2014, Meghan L. Lytle and Shea P. Kolar of Brown & Kelly, LLP participated in the MDA Lock-Up to raise awareness and funding for the Muscular Dystrophy Association.
The Lock-Up is one of the Muscular Dystrophy Association’s fundraising programs which are held across the country at various times throughout the year. Individuals agree to be "put behind bars" and attempt to raise donations that will go toward their “bail.”
Ms. Lytle raised $1025 for the Association.


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Attorneys at Work

Attorneys Jessica Burgasser and Kathleen Feroleto traveled to a paper mill with our expert witness to perform a site inspection. Both attorneys put on their safety gear to prepare for an upcoming trial regarding an asbestos related matter.

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Brown & Kelly Remembers Friend and Colleague Julia Roberts

November 13, 2013: Brown & Kelly remembers Julia Roberts, our dear friend and colleague, who passed away one year ago today.  Julia was an integral part of the Brown & Kelly family and we continue to mourn her loss. We will forever remember Julia and reflect on her spirit, dedication and personality. We are proud to remember that Julia loved her job, her friends at Brown & Kelly, and her many many friends in the asbestos litigation community. We take comfort in knowing that she will  never be replaced nor forgotten.

BROWN & KELLY LLP WINS $25 MILLION VERDICT

On June 12, 2012, a jury in the Western District Federal Court awarded plaintiff Elijah Turley a twenty-five million dollar ($25,000,000.00) verdict. The lawsuit was commenced on behalf of Elijah Turley against ArcelorMittal in 2006 for Hostile Work Environment and Intentional Infliction of Emotional Distress. Mr. Turley was represented by Donald B. Eppers and assisted by paralegal Rebecca E. Koenig of Brown & Kelly LLP.

The jury found a Hostile Work Environment existed along with Intentional Infliction of Emotional Distress. The plaintiff presented evidence of a work environment permeated by racial discrimination. Plaintiff argued the activities in question went beyond harassment and included such incidents as "KKK" graffiti repeatedly sprayed on the walls and a stuffed monkey with a noose around its neck hanging from the plaintiff’s vehicle.

Elijah Turley and his family are very pleased that justice was finally obtained. We have a tremendous amount of respect for the jury in this case.

Mentioned Attorney: Donald B. Eppers

Brown & Kelly Wins 2010 Pro Bono Award

Brown & Kelly has been awarded the Law Firm Commitment Award from the Volunteer Lawyers Project of Western New York for its strong commitment to providing pro bono legal assistance.

2010 Super Lawyers

Donald B. Eppers, William D. Harrington, Paul Michael Hassett, Kenneth A. Krajewski, and Andrew D. Merrick have been named Super Lawyers by New York Super Lawyers Magazine, 2010 Upstate Edition. Inclusion in Super Lawyers is based on a rigorous, multi-step selection process, which includes background and experience as well as peer review recommendation. The selection as a Super Lawyer is a great honor, not only because it recognizes outstanding achievement, but also because it is dependent upon the recommendation of peers.


Jessica J. Burgasser Appointed to DRI Social Media Subcommittee

Jessica J. Burgasser has been appointed Co-Vice Chair of the Social Media subcommittee at the Defense Research Institute. 

Kenneth A. Krajewski to Serve as Chair of NYSBA Program

Kenneth A. Krajewski will serve as the Buffalo Chair for the New York State Bar Association's program "Law School for Insurance Professionals" to be held in Buffalo on September 28, 2011.  He will also speak on current auto liability and coverage issues at the Program when given in Albany on September 23, 2011. 

Donald B. Eppers to Present at Mediation Conference

Donald B. Eppers will speak on June 9, 2011 at the Erie Institute of Law program "Secrets of Successful Advocates in Mediation".

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