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It’s always a challenge to lose someone that you love. It feels even more tragic when your loved one dies because of another person’s negligent or reckless behavior. When this occurs, New York law provides a way for surviving family members to be compensated for their losses by filing a type of New York personal injury claim known as a wrongful death lawsuit.  

Negligence in Wrongful Death Cases

Obviously, the first step is to assess whether or not you can even file a claim. If your family member died due to another person’s negligence, then it’s a possibility. Negligence is the failure to act with a reasonable amount of care. For example, every driver on the road has a duty to pedestrians and the other drivers to follow the traffic laws and regulations. If the motorist drives while intoxicated and hits a pedestrian in the crosswalk, the pedestrian’s spouse can file a wrongful death action against them.

Who Can File a Wrongful Death Claim?

Only immediate family members are allowed to make a wrongful death claim– this means parents, spouses, or children of the deceased person. New York law differs from other states because it mandates that the person filing a wrongful death claim must be the “personal representative” of the deceased person’s estate. It can’t just be a relative unless that person is also the personal representative. New York doesn’t recognize wrongful death claims from parents when a fetus dies before birth, even if the death was caused by another person’s wrongful act.

The New York Definition of “Wrongful Death” 

If you are going to file a wrongful death claim, there are four elements needed to establish it:

• The defendant was negligent
• The defendant’s negligence caused the victim’s death
• There are surviving family members 
• The surviving family members have suffered damages as a result of the victim’s death

Wrongful Death Damages

When the personal representative files the claim, they may seek damages for losses that were suffered by the deceased’s heirs, beneficiaries, or devisees. This is in addition to the damages for any losses suffered by the estate. The damages will depend on the specific details of the case. However, they can include the following:

• Funeral and burial expenses
• Medical, nursing, and other health care expenses related to the deceased person’s final injury/illness
• Lost wages and benefits for time between the deceased person’s final injury/illness and their death
• The value of support and services the victim provided to family members
• The value of parental nurturing, care, and guidance to surviving children
• Lost inheritance suffered by surviving children
• The victim’s pain and suffering they experienced due to the final injury/illness

New York Statute of Limitations

A wrongful death claim in New York must be filed within two years of the date of the deceased person’s death. The state will not stop the statute of limitations from running if the personal representative is a child; the child’s guardian can file the claim in these situations. 

Speak with an Experienced New York Wrongful Death Attorney

When your loved one dies because of someone’s negligence, it can be devastating. In addition to the grief you’re experiencing, you probably have a lot of questions about how to hold the wrongdoer accountable. An experienced MOWK Law attorney can help you with answers and will treat you with the care that you deserve during this challenging time. Contact us today to explore courses of action.  

Usually when you’re selling your home, you make repairs and improvements so that it is in the best condition to fetch the highest price possible. However, when you sell your house “as is,” you forgo those repairs and put your home on the market in its current condition, without negotiations with the buyer for any credits to fund any upgrades. Whether you’re in a hurry to unload your property or you simply don’t have the additional funds for renovations, there are various reasons for wanting to go this route. Read on for information about what you should know about selling an “as is” home in New York.

1. The role of real estate agents and real estate lawyers:

Although it isn’t a requirement to have a real estate agent for your home sale, it’s a very good idea because they can offer a lot of support and knowledge, especially with an as-is sale. The agent can help you navigate through home selling procedures and advise you on setting a price. New York requires the participation of a lawyer in all home sales and their duties include drafting a purchase contract, analyzing the title report, and assisting with documentation at closing. 

2. As-is sellers offer significant discounts:

Many buyers are hesitant to purchase because the homes are is disrepair and will require a lot of effort to fix. Thus, the offer will be well below a normal listing. It’s a trade-off: The buyer gets a lower price in exchange for the efficiency of a quick sale. The price that you set is significant because it will determine the final sales price and how soon you get an offer; it needs to be competitive, yet fair to reflect the as-is status.

3. Cash buyers can be good sources: 

If a quick sale is a priority, consider selling to a cash buyer. This means that the buyer pays with cash and you don’t have to wait for them to secure financing, which slows down the home sales process. You can even list the house as “cash offers only.” The drawback is that the offer will likely be a lot lower than fair market value. 

4. Requirements for an as-is sale: 

New York law mandates that all as-is sellers disclose any known issues. If not, the seller must pay a credit to the buyer. If you don’t want to make such disclosures, then you can just pay a credit without the disclosure. The fee will protect you from liability in most cases. However, this liability protection doesn’t always apply; for instance, if the buyer is in a special relationship of trust with the seller, it will not protect the seller. An attorney can provide clarity on these issues. Sellers aren’t required to obtain a pre-listing inspection or make any attempts to discover any problems that they weren’t already aware of. However, an inspection might be helpful because it could potentially protect you from some liabilities later on. If you’re working with a real estate agent, they can help you gauge whether it’s worth pursuing. You might also consider making some low-cost repairs because they can have a significant effect on your home’s final sales price. 

5. Closing costs associated with as-is sales: 

As a seller of an as-is home, you will have to pay for a title search, mortgage prepayment fees, real estate transfer tax, attorney fees, and realtor commission fees. This will probably be at least 1-3 percent of the home’s final sales price. 

Get Help with an As-is Home Sale 

Before you sell your home as is, you will want to make sure that you understand how it differs from a normal listing. An experienced real estate attorney can guide you through the process. You can consult with the skilled MOWK Law real estate attorneys to get answers to your real estate questions. Contact us now to get started. 

The Covid-19 crisis has had a devastating impact on every pretty much industry. With businesses struggling to operate under the shadow of shelter-in-place orders, many parties are in the difficult position of not being able to meet their contractual obligations. The business entities that are experiencing this struggle are seeking solutions in their contracts and hoping that they have provisions that can excuse a breach of contract during these unprecedented times. 

Some contracts that have been implicated are IP licenses, which can contain agreements with sales minimums or royalty agreements that are difficult, if not impossible to fulfill during this time of cancellations and business closures. Both licensees and licensors have recourse to excuse or enforce provisions due to the coronavirus. Because the events of Covid-19 will not automatically apply to excusing a nonperformance of a contract, you must first look at the specific license to determine the possibility. 

Does the License have a Force Majeure Clause? 

Many licenses have “force majeure” (superior force) clauses that expressly relieves a party from performance or postpones performance when events or “acts of God” that are beyond their control occur. Although it may seem that the unpredictable environment of Covid-19 is tailor-made for the applicability of a force majeure clause, it depends on the specific license and the ensuing circumstances as to whether the force majeure excuses a given type of nonperformance. 

When analyzing the specific language of the contract, look at the following:

• The definition of force majeure: Some will mention a pandemic or epidemic specifically, but the contract may still excuse Covid-19 related occurrences if it mentions quarantines or travel restrictions or there is a “catch-all” provision which defines force majeure broadly. However, some majeure provisions are limited to the events mentioned.
• Identify the performance that the force majeure refers to: Establish whether the clause applies to the type of breach being contemplated. Also, some clauses are drafted to excuse liability that concerns not only nonperformance, but also underperformance. 
• Any preexisting conditions that must be met: A party might have to complete a prerequisite before the clause is invoked as a nonperformance excuse.  

When there is no force majeure provision or it doesn’t apply, then the parties must rely on the common law contract doctrines of frustration of purpose and commercial impracticability. Unfortunately, they usually don’t result in excusing the performance. However, it’s possible that nonperformance may be excused on “impracticability” or “impossibility” grounds due to an unforeseen change in circumstances due to Covid-19.

Bankruptcy Issues

The coronavirus also triggers issues for IP licenses, such as the potential for bankruptcies and pledges of non-enforcement of IP rights. If there is bankruptcy of a licensor, the license might be rejected by the licensor, making the licensee to either force compliance or pursue a breach. On the other hand, if a licensee declares bankruptcy, some IP licenses have clauses that attempt automatic reversion or termination of IP rights. 

Talk to an Attorney about IP Issues

The Covid-19 crisis will continue to impact business and how contracts are performed. If you’re concerned about how your intellectual property issues are handled during the pandemic, then you may want to talk with a MOWK Law attorney who is well-versed in IP law. Contact us today for more information on how we can help you.

When people own property as tenants in common, they own it with other co-tenants and any one of them can force a partition (division) and sale of the property. For centuries, partition actions have had unfortunate consequences for many individuals trying to retain property. More recently, real estate investors used this tactic to their advantage by acquiring shares of property at well-below market rates; often, with the end result forcing owners to leave their family home. To help combat this, states like New York have passed a version of the Uniform Partition of Heirs Property Act (UPHPA). 

Tenants in Common

Family members can inherit property from a parent or other relative from a will or through New York’s

intestacy laws when the relative doesn’t have a will. The UPHPA only applies if the family members were left the property as tenants in common with their other family members. 

A tenant in common relationship is one where two or more individuals share the ownership rights in property. Each independent tenant in common is considered an individual owner.  For example, a father dies and leaves his home to his four daughters as four tenants in common, with each one owning a 25 percent interest in the house. Alternatively, they could own different shares. For instance, one daughter could be a tenant who owns 40 percent, and the other three daughter/tenants could each own 20 percent. 

Tenants in common have the right to pass down their own share of the property to any beneficiary in a will or trust; family members can independently sell their part of the ownership, or they can borrow against it. However, one tenant can’t sell their portion without the approval of the other owners unless the court issues a partition action. 

When Owners Don’t Agree

If there is disagreement about whether or not to sell the property, the owner that wants to sell may file a lawsuit for a partition. These types of lawsuits have grown in popularity due to an increase in property values and more siblings inheriting property they want to sell while their sibling/co-owners (often those living on the property) don’t. 

In these situations, (prior to the enactment of the UPHPA) many commercial real estate investors would buy a share of the property. Then the investors would request a partition action, which would result in family members being forced to sell their family home at an auction sale; these homes sell for much less at auction than they do on the open market. 

What the UPHPA Does

Although the owner still has the right to force the sale of jointly owned property, the New York legislature wants to ensure that family members have the opportunity to first buy out one another’s interest before selling the property to a third party. When families can’t agree as to whether or not to sell a property, they will need to attend a mediation session. The purpose of the mediation is to work out the issue before a partition occurs. If the owners can’t reach a resolution through mediation, then a New York judge may require the sale of the property through the open market, not an auction.  

New York Real Estate Lawyers

If own property with someone else and are having difficulty agreeing with them, then you might have to consider a partition action. Although this impasse may be difficult, talking to an experienced real estate lawyer can help you through the strain going through this process. That’s why it’s a good idea to get in touch with the skilled MOWK real estate lawyers. Let us answer your questions. Contact us today. 

New York State Attorney General Letitia James has repeatedly recommended that the New York Police Department stop making routine traffic stops. James, a special prosecutor who investigates certain police shootings, came to this recommendation after her work on the Allan Feliz case.  

In October 2019, New Yorker Allan Feliz was killed in a fatal police shooting following a traffic stop for a seat belt violation. AG James contends that simple traffic stops for minor infractions tend to lead to unnecessary violence that may end in fatalities. Although James’ office investigation concluded that the NYPD was justified in their use of force in the Feliz case, she still contends that his death would not have occurred if he hadn’t been stopped by the police in the first place. Thus, in order to help lessen these instances of escalated violence, her ideal solution to this problem is that the NYPD should stop conducting traffic stops for minor traffic violations.  

The Proposed Alternative to NY Traffic Stops

Rather than completely demanding that cops entirely refrain from traffic stops, James has made a compromise in the form of suggestions that cops can follow during traffic stops. Here are her five recommendations: 

• When conducting a stop, officers should ensure that the vehicle can’t be moved throughout the encounter.
• Officers should consider checking the driver’s license and registration at a safe distance from the vehicle.
• During a car stop, an officer shouldn’t enter a vehicle over which the driver has dominion and control.
• NYPD should modify its must-arrest policy for warrants for failing to appear on a summons, and for bench warrants on violations discovered during a car stop.
• All officers should follow proper car protocols as set forth in the NYPD Vehicle Stop Manual. 

The Attorney General’s position has received a mixed response. With on-going tensions between communities of color and the police, some supporters think that eliminating these type of traffic stops this will help decrease the instances of police brutality and officer-involved shootings– events that disproportionately impact the African American and Latino communities. Supporters also argue that these procedures will make streets safer from crashes. 

Conversely, critics think that eliminating stops for minor infractions are missed opportunities: There are multiple examples of how these stops have led to capturing major criminals. Some believe that traffic stops are a necessary form of policing. Additionally, the use of cameras can assist with de-escalation. 

Regardless of how people feel about James’ idea, it is unlikely to come to fruition. At least it probably won’t happen anytime soon. Following the police killing of George Floyd and the nationwide protests that preceded it, Berkeley, California, has become the only city in the U.S. so far to make substantial steps to remove police from traffic enforcement.  

New York Criminal Defense Lawyer

It looks like the NYPD and other law enforcement agencies will be conducting traffic stops for some time to come, despite some interest in reassessing the status quo. If you were stopped by the police and arrested, then there are a lot of issues that you must deal with. If your encounter with the police was such that you are now facing resisting arrest charges, then it adds even more worries. That’s why it’s a good idea to retain skilled legal professionals like MOWK criminal lawyers. Contact us today to get started on your case. 

If you’re naming some of the most dangerous areas of work, then construction work is usually near the top of the list. Even when acting with extreme caution and using appropriate safety measures, there’s always potential for an accident that can cause injuries or even fatalities. Fortunately, there are laws in place that help to protect construction workers and give them certain rights. Specifically, in New York there is New York Labor Law 200, which includes the “Scaffold Law.” Section 240 of the New York State Labor Law (also known as The Scaffold Law) applies to construction workers who have experienced a fall or have been hit by a falling object. 

Strict Liability

New York’s Scaffold Law is the only law of this kind in the country that holds construction site owners and general contractors absolutely liable for scaffold accidents which result in injuries to construction workers. This means that when the owner/contractor doesn’t give the worker all the necessary safety equipment that they’re entitled to and the worker gets injured as a result, then their employer is held completely responsible. This also means that the construction site owner can’t transfer blame for the accident to a foreman or to the worker.  

Generally, this means that the mere act of failing to provide the scaffolding and the other safety equipment that meets the standards of the Labor Laws is typically enough for a worker to be compensated for their damages. 

What Type of Work is Covered?

The owners and contractors must give proper protection to workers who do specific work that is named in the statue. Many types of employees and independent contractors deal with scaffolds daily in their work, including window washers, painters, welders, carpenters, bricklayers, electricians, to name just a few. However, Section 240 only covers certain types of scaffold work including the following:

• Altering
• Cleaning
• Demolitions
• Erecting buildings and erections of safety measures (braces, hoists, ladders, and pulleys)
• Pointing
• Repairs

If the worker was engaged in these specific activities, then the law applies to them, but it may also apply to a worker if they weren’t engaged in one of the activities at the time of the accident. In this case, the worker needs to be engaged in work that was in “furtherance of a project” that is one of the activities covered by the statute. 

Some of the specific provisions that the owners must comply with that are intended to protect workers include the following: 

• A scaffolding which is positioned 20 feet or more above the ground or the floor must be equipped with a safety railing that rises a minimum of 34 inches, which is nearly 3 feet;
• The railing must be securely fastened to the scaffold to prevent swaying;
• The safety rail must enclose the full-length and both ends of the scaffold; and
• The scaffolding must be able to hold 4x its maximum weight. 

Criticism of the Scaffold Law

The unique feature of “absolute liability” that the statute places on site owners and contractors who break the law makes Section 240 controversial. Many opponents have called for reforms because no other state has an equivalent law; they also believe that it raises construction costs for New York. 

Talk to a New York Personal Injury Attorney

If you’ve experienced an accident while working at an elevated height and you think that the scaffold law may apply to your situation, then you should not delay talking to an experienced personal injury attorney. They can help you sort out the complexities of the law. If you’re covered, a MOWK personal injury lawyer can help you get the compensation that you’re entitled to receive. 

Why Racial Bias in the New York State Court System Matters to You 

The results of a review of racial bias in the New York State court system were published this month.

 On June 9, 2020, Chief Judge Janet DiFiore of the Court of Appeals and of the State of New York appointed Jeh Johnson as Special Adviser on Equal Justice to review hostile opinions about racial groups in the courts. This independent inquiry arose because of race-related issues across the country, including the death of George Floyd, which resulted in unrest and rioting. 

Results of the Independent Review on Racial Bias 

Not surprisingly, the review found that racial bias exists in the New York court system. The study cited specific examples of bias: 

• Court officers could not report incidents of unfair treatment because of adverse career consequences or 
• Court officers yelled more at litigants of color or at those who did not speak English as a first language 
• Court officers are more likely to require litigants and attorneys of color to show identification or enforce the policy of no cell phone usage against them. 

We at MOWK Law understand that this widespread racial bias against individuals of color or from ethnic backgrounds can result in unfavorable results in court. As this study confirmed, we also understand that employees of color or ethnic employees may be treated unfairly in their employment in the New York court system.

Recommendations Resulting from the Review on Racial Bias IN New York Courts

Mr. Johnson and his team interviewed hundreds of people across the court system. They came up with many recommendations to address and fix racial bias problems that are rampant in the New York court system, including:

• Court system’s leadership should have zero tolerance for racial bias, applicable to everyone working in the New York court system.
• All court personnel should be trained against racial bias and informed about cultural sensitivity.
• Jurors should be educated about biases and prejudices they are exposed to in society, including with specific rules and jury instructions.
• Court personnel should adhere to a policy restricting use of social media for racially or culturally offensive remarks that reflect poorly on the court system. 
• There should be better practices to improve complaints and investigations to better handle racial bias and race discrimination incidents.
• Legislation and rules should be reviewed for possible bias or negative impact on people of color.

What this means for You

Have you been involved in the New York court system on a civil matter or criminal defense matter? If so, have you had a negative experience due to your race? Would any of the Special Adviser’s recommendations help address your experience in the New York court system? 

Have you been employed by the New York court system and have been treated unfairly because of your race or ethnicity?

If you answered yes to these questions, you may have recourse.

New York Lawyers Familiar with the Court System

If you have gone through the New York court system and have been treated unfairly because of your race or ethnicity, you may want to explore whether you have options to address your outcome. If you have been employed by the New York Court system and have been treated unfairly due to your race or ethnicity, you may have an employment action. 

The skilled attorneys at MOWK Law can help assess your situation. Please contact us for more information.

Whether in a rush, not paying attention to the speedometer, or just blatantly disregarding the law, speeding drivers are a common sight on New York’s roads – with devastating consequences. The NHTSA cited speeding as the most common cause of fatal collisions, and further identified four distinct behavior patterns of speeding drivers. 

Understanding the different patterns helps people to recognize when you or the driver of your vehicle may be engaging in this dangerous driving behavior and take the necessary precautions to avoid it. This reduces your risk of motor vehicle accidents, avoids costly speeding tickets, gives you more time to react to road hazards, and helps you maintain greater control of your vehicle.  

Driver Speeding Patterns

The NHTSA has identified four speeding patterns that affect drivers in New York and the rest of the country: incidental, situational, casual, and habitual.

Incidental Speeding

Incidental speeding is referring to motorists that normally obey the speed limit. However, when they do speed, it’s usually not excessively over the legal limit when they are driving. The drivers also only engage in the behavior on a small percentage of their trips. Breaking the speed limit is usually unintentional, and they don’t continue to speed for the entirety of their trip.

Situational Speeding

A situational speeding pattern occurs when a motorist usually obeys the speed limit, but occasionally goes well above posted limits during a given trip. This is often due to a factor in the motorist’s situation when behind the wheel – this could mean:

• Oversleeping
• Medical emergency
• Traffic congestion that has resulted in delays
• Being late for obligations that include school, work, or family events

Casual Speeding

Casual speeding, also known as regular speeding, refers to motorists who frequently exceed the speed limit – but generally just for a fragment of their trip. The NHTSA believes this particular speeding pattern is associated with systematic or repeated behaviors of the driver. 

Habitual Speeding

The most dangerous pattern of behavior is habitual speeding. This means motorists who regularly disobey the speed limit – often going very high speeds – for the majority of most of their trips. 

New York Personal Injury Lawyers

Speeding New York drivers not only break the law but engage in negligent, dangerous behavior that puts themselves and others on the road at risk of car accidents resulting in catastrophic injury or death. It’s important to drive safety and within the speed limit, but to take action and hold a speeder who has injured you in a wreck responsible for your injuries. For help recovering the maximum possible compensation for your injuries, contact the experienced New York personal injury attorneys at MOWK Law today. Our attorneys have provided aggressive, comprehensive representation for injury victims for years. We know how to investigate and litigate complex motor vehicle accidents and deliver successful outcomes for our clients. Contact us today with your questions!