BLOG - Warren S. Dank, Esq., P.C.

February 19, 2020February 19, 2020

Everything You Need to Know About Bad Faith Insurance Claims

Insurance companies play a major role in settling claims. They are known to have the expertise to validate claims and negotiate on behalf of the policyholder. Insurance companies are also well-known for using technicalities in assessing claims to ensure the company makes the most money. After an accident, an insurance adjuster will evaluate the damage and can look for reasons that could justify denying claims or use bad faith tactics in approving or denying a claim.

Insurance companies acting in bad faith often deny or under bid a policyholder’s claim without a clear reason. If a policyholder suspects that his/her insurance company wrongfully denied your claim or manipulated the law to offer them less than they deserve according to their insurance policy, it is their responsibility to prove this with the assistance from a consumer protection attorney.

Here are some specific strategies insurance companies use in bad faith claims:

1. Refusing to investigate the claim

Insurance companies are legally mandated to investigate claims of responsibility for the covered individual. The problem is that in some instances they conduct unreasonable investigations and use invalid or frivolous reasons to deny the claim. Instead of focusing on finding evidence that substantiates the claim they look for issues that can be used against you. The company does this to pay a lower settlement or no settlement at all.

2. Unclear or unreasonable explanation for claim denial

Denying claims is a regularity for insurance companies, however, this can only be done based on evidence and facts. If an insurance company denies a claim with no unclear or unreasonable explanation, the policyholder can take the case to court. Most insurance companies would rather settle than go to court.

3. Delayed response as to whether the claim was accepted or denied

Another tactic often used by insurance companies is to purposely not respond to a claim immediately. Insurance companies do this in hopes that the claimant is in dire financial need and will accept a low-ball offer being made by the insurance company. This is constituted as ‘failure” to act in good faith and claimants can fight this through their legal counsel.

Insurance companies are not always fair in their practices and often claimants are not even aware of the unfair treatment they receive by insurance companies. To avoid this, claimants must seek out legal guidance in the event of an insurance claim. If you believe your insurance company is acting in bad faith, contact Warren S. Dank today to speak with a consumer protection attorney.

December 30, 2019December 30, 2019

3 Ways Landlords Can Protect Themselves and Avoid Liability

For most landlords, rental properties provide a reliable source of passive income. However, landlords can face some maintenance challenges.

Also, leasing your property is complicated and can greatly enhance a landlord’s chance of getting sued. To mitigate or completely circumvent liabilities, landlords must uncover and assess all vulnerabilities and undertake proactive steps to prevent or minimize potential lawsuits by current and prospective tenants.

In this post, our landlord tenant attorney addresses a few important ways landlords can protect themselves and avoid liability.

Do regular inspections

Landlords understand the importance of a rental inspection when a tenant moves in and after a tenant moves out. Landlords use rental inspection reports to help determine which repairs are required, who should bear the cost of those repairs, and if the costs can be deducted from a tenant’s deposit. But, landlords should also do regular walk-throughs to note what needs to be fixed and arrange to have it repaired promptly. Walk-throughs can also help landlords discover problems tenants may have neglected to mention, like a leaky faucet or a pest problem. Landlords can also instantly notice environmental hazards such as lead paint, carbon monoxide, mold problems, etc. that must be eliminated.

Regular walk-throughs help landlords stay on top of their obligations, prevent delays with repairs, make sure the property is safe and in good condition, and prevent issues from spreading or worsening, costing more money and time.

2. Obtain proper insurance

Landlords must have their property correctly insured at all times. The insurance must offer protection against lawsuits brought by a tenant. A tenant can sue for various reasons including if landlords illegally enter a rental unit, if the landlord has not followed proper eviction procedure, or because of injuries caused due to dangerous conditions on the premise. Landlords must have adequate liability insurance to cover the cost of litigation and the damage awarded if the tenant wins the suit.

3. Utilize a rental agreement.

Before renting the property to a tenant, landlords should have a written lease or rental agreement — that is state-approved or written by a real-estate attorney — in place. This agreement must include rules that all tenants must follow and landlords must enforce the rules consistently. Landlords, however, must stay away from including any illegal provisions in their rental agreement that could lead to them getting sued.

Landlords must protect themselves against lawsuits at all times, therefore they should consistently strive to fulfill their duties and obligations to their tenants. The above-mentioned tips serve as precautionary actions to decrease the risk of getting sued. For more information about your landlord rights, contact Warren S. Dank for a landlord tenant attorney consultation.

November 26, 2019November 26, 2019

Legal Contracts: What You Need to Know Before Signing on the Line

Signing any legal contract means that you are agreeing to the outlined terms. Failing to adhere to the duties and obligations detailed in the contract can result in legal issues.

Therefore, it is crucial to know exactly what you’re agreeing to before adding your signature on that dotted line. Because once you do, you have no choice but to uphold your end of the bargain as long as they uphold theirs. You would be safest signing a contract reviewed and/or drafted by your civil litigation attorney.

Also, keep in mind that not all contracts require signatures, but legal contracts do. In some instances, verbal contracts are also legally binding.

What it Means to Add Your Signature to a Legal Document

The minute you put your signature on the dotted line…

you’re attesting to having read the contract
acknowledging that you agree with the terms and conditions stipulated
accepting that you’re legally authorized to sign the contract
and that you are mentally competent to sign it.

This is why legal contracts require you to fill in all the blank lines to prove that you fully comprehend the terms detailed on the contract. Hence, we recommend that you avoid signing contracts that have unfilled blank spaces, like a date, dollar amount, or other item. Don’t sign a contract if you feel threatened to sign it, if you don’t understand what is in the contract, or if you’d like to review it with your civil litigation attorney first.

Before Signing a Contract

Make sure you are familiar with all the protocols pertaining to the contract signing to make sure the contract is executed promptly. These protocols include:

Final Draft – a properly executed contract must have the final version
Signatories – signatory is the representative who is authorized to enter into an agreement or terminate the legally binding contract
Copies – both parties should make copies with the original signatures on the contract.
Executions – this is the final protocol, both parties have to sign the contract before it’s executed.

Before signing any contract, we recommend having Warren S. Dank present with you to alert you of any loopholes and provide you with sound legal advice.

October 9, 2019October 9, 2019

Everything You Need to Know About the “Pay-if-Paid” Clause

When it comes to legal disputes, it is not uncommon for a construction litigation attorney to deal with contracts with a pay-if-paid clause. This clause includes payment provisions often used between two or more parties, usually in the construction sector. A pay-if-paid clause determines which party will bear the financial risk of the project.

These Clauses are Risk-Shifting Systems

Pay-if-paid clauses are specifically designed to shift financial risk down the chain. A pay-if-paid clause allows a general contractor the freedom to pay subcontractors only after receiving payment from the property owner. This excuses the obligation of payment from the primary contractor and shifts the burden of non-payment to the subcontractors.

State Legislation Against Pay-if-Paid Clauses

Over the past two decades, pay-if-paid clauses have become more sophisticated, especially after the housing fiasco and recession hit in 2008. Property developers and general contractors have used this clause to shift the financial risk of a project down the contracting chain, and abused it in order to withhold payments.

As a result, this has initiated many disputes that required the aid of a professional litigation attorney to resolve. Many contractors and subcontractors have strongly vocalized their disdain for the pay-if-paid clause, which prompted some states to legislate against it.

The legislatures of these states have completely banned pay-if-paid clauses directly in statutory language. Several states have followed suit and adopted some version of a “prompt payment” statute – a mandatory payment to a subcontractor by the party with whom he contracted, provided the work was performed. This approach seems to be gaining favor and currently, the pay-if-paid clause is already outlawed in the following states: California, Kansas, Illinois, Indiana, Nevada, Montana, Ohio, North Carolina, New York, South Carolina, Utah, and Wisconsin.

Despite the movement toward removing pay-if-paid clauses, there are some situations in which one may still be valid. It is important for contractors and suppliers, to be cautious when a contract includes this provision. It is crucial to include specific contractual language to state that both parties understand that the risk should be shifted. These contracts are best reviewed by a construction litigation attorney. Contact Warren S. Dank for more information about how you can protect yourself and your business.

September 30, 2019September 30, 2019

Leasing Commercial Property? Here Are a Few Things You Should Know

Congratulations! You have launched a new business and are ready to lease a commercial space. While you may have leased an apartment in the past, there are a few unique considerations when leasing commercially. Here are a few things that can help you to avoid lease-related civil litigation in NYC.

Common Area Maintenance and Other Fees

In addition to your monthly lease, you will likely be required to pay a percentage of the common area maintenance (CAM) fees and property taxes. The types of maintenance CAM covers and the cap on how much can be charged should be clearly outlined in your lease. You must also ensure you understand what portion of ongoing repairs, maintenance, and essential renovations you are required to pay. You will likely be responsible for the cost of renovations required to meet your business needs, but you must clearly outline in your lease what general and ongoing fees you are responsible for. An attorney can help you to determine and negotiate these fees.

The Right to Sublease or Transfer Your Lease

While it may not be your original plan, you may want to sublease your space to a secondary tenant. If you have a portion of your space that you don’t use regularly, you may decide to sublet the space to another company. Without a provision allowing for subleasing, you may not be able to reap the benefits of this coworking arrangement. Or, let’s say that you sign a multi-year lease—but your business booms and you outgrow your space. Many landlords will want to terminate the lease, which can be costly, so ask for a provision to transfer the remainder of your lease to a new tenant.

Finally, to ensure you understand all lease provisions, it is best to have an attorney negotiate on your behalf—with or without you present. Your attorney understands the common risk factors and can guide you on the most proactive approach for your business. As a civil litigation attorney in NYC, Warren S. Dank is here to assist. We have worked closely with both commercial real estate and landlord/tenant cases and will negotiate and arbitrate on your behalf.

August 1, 2019August 7, 2019

4 Common Causes for Employee-Employer Litigation

In this current age, lawsuits against businesses are occurring at a more frequent pace. Hiring civil litigation attorneys can guard against or entirely defuse legal woes with employees. An attorney can help you navigate state federal laws and avoid legal action. Below we discuss the four most common causes for employee/employer disputes.

The most common causes of litigation

Harassment Lawsuit

Harassment can come from a boss, a supervisor, or even a co-worker. Harassment lawsuits can be sexual or non-sexual. One form of non-sexual harassment is bullying or the display of active hostility toward one or more employees. In a harassment lawsuit, the business can be held fully liable or at least partially liable for the damages caused.

To avoid these types of lawsuits, enterprises must have an existing and up-to-date harassment policy that every employee is made aware of. Enterprises can consult with civil litigation attorneys to assist in drafting the policy.

Wrongful Termination

Wrongful termination lawsuits are generally filed when an employee views his or her termination as inappropriate and lacking reason. To avoid such a lawsuit, employers must prove the termination was necessary. Enterprises can do so by keeping accurate records. These should include copies of signed contractual agreements, employee performance reports, and copies of any sort of punitive measures taken against the employee. Businesses can use these documents to prove the reason for the termination was appropriate. Commercial civil litigation attorneys can assist throughout this process.

Wage Law Violations

Many lawsuits by former employees are based on allegations that the employer violated federal labor laws. Wage and hour lawsuits are often based on claims that the employer failed to pay either the minimum wage or overtime pay. To prevent these types of lawsuits, make sure to implement systems and processes to accurately monitor hours worked by employees.

Discrimination

Discrimination lawsuits are filed as a result of unfair treatment based on race, sex, national origin, color, religion, age, or disability. Businesses can avoid these types of lawsuits by simply not discriminating – intentionally or unintentionally. Businesses must consistently treat all employees equally and not arbitrary. Understand the laws and write policies and protocols with protected classes in mind.

With numerous laws in place offering protection to employees, businesses are more sensitive to lawsuits today than ever before. Enterprises can best circumvent the most common causes of employee litigation by incorporating the help of civil litigation attorneys.

July 1, 2019August 7, 2019

3 Tips for Mitigating Business Partnership Disputes

Business partnership disputes can cost the involved parties a pretty penny. Not only are there lawyer consultation fees, but the time that should be used running operations is instead wasted on solving the dispute. Here are three tips that will help business partners avoid a messy partnership dispute down the road.

1. Involved parties should hire a civil litigation attorney to help draft a partnership agreement.

When two or more people go into business together, all parties feel like they can trust one another. This trust leads to the skipping of important preventative measures like drafting a formal partnership agreement. They’ll instead shake hands and go the verbal agreement route. The problem is that when a dispute arises between the parties, this verbal agreement is no longer a good idea. What may have been said between the parties changed over the process, or each of the parties remembers the agreement differently.

Therefore, a business partnership should work with an experienced attorney to craft a formal, written partnership agreement. It will ensure each party has their proverbial I’s dotted and T’s crossed. It helps to make clear the business’ structure and what each party expects in the partnership. It also helps to make any disputes that arise easier to handle because there are contractual steps that each party will take to resolve the issue(s). Each of the parties is advised to consult their separate attorneys so they can review the partnership agreement to make sure that it is fair and balanced for everyone involved.

2. Review the partnership agreement’s dispute resolution process with all involved parties (including shareholders).

As much as we want to assume that we’ve made a sound decision in choosing our business partner(s), it’s best to ere on the side of caution. Therefore, you want to review the agreements before a dispute arises. Be open with the discussion. Consider the steps that the involved parties will take to resolve different types of potential disputes. We recommend that all parties remind each other that first and foremost, this is a business arrangement. That means that personal feelings should be left out of the dispute. The focus should be solely on the business. It’s also helpful to keep in mind that different disputes will require different types of resolutions. Informal communication can help resolve a small dispute, for example. A bigger dispute, in comparison, may need the help of a neutral third-party mediator to help quell tension. If worst comes to worst, all involved parties should understand the buyout options and what could happen if a resistant partner isn’t willing to leave the business voluntarily.

3. Assume that the business will grow and expand and discuss how workloads will be divided early on.

Businesses and those involved in them should expect that things will continue to change for various reasons. Change can be exciting, but it can also be problematic. One of the things that will change is the amount of work the parties involved in the business will have to take on. If the workload feels uneven between the different parties, resentment will begin to grow. “Why am I left doing all this and the others aren’t doing much of anything,” one of the people involved may ask. In order to avoid these types of situations, we advise that all involved parties lay out their respective expectations of who will do what as the business picks up. Consider creating a plan that outlines the distribution of work among the parties in a fair way, and leaves room for flexibility as things change. This will also prevent the parties from assuming that one of the other partners isn’t doing enough work, especially when there is a written division of tasks to refer to. Consulting a civil litigation attorney early on (and keeping them around so that they can answer any lingering questions) will help to reduce any business disputes that may arise in the future. Warren S. Dank has experience with all types of civil litigation and can help your partners and yourself come to an agreement.

June 17, 2019June 17, 2019

Is Franchising Right for You?

The moment you decide to go to a drive-thru and pick up something to eat, chances are, you’re supporting a franchise. From fast-food to fitness gyms, franchising has made it easier than ever for anyone to start a business. It’s a huge part of the economy and directs many of our daily routines.

What is franchising?

In short, franchising starts when a company decides that it’s doing well and wants to expand. Expansion is important for growing your business, but it can be a pain to try and run all these new locations. Rather than running all these locations themselves, businesses will essentially lease their business model and name to someone based in the new location. The person on the other side of the coin is called the franchisee. They dream of starting a business, understand the local market, and has access to capital to start a business or can be approved for a loan. Many of these people also may be new to the industry, thus lacking intimate knowledge of it. In other words, a franchisee may not want to risk going into the business world by themselves, without a proven product or system.

Franchising allows these individuals to make a deal with a company that is recognizable to consumers and already has a proven track record. The franchise supplies the franchisee with the tools necessary to set up an extension of their business, and in return, the franchisee takes a training course, pays an initial franchise fee, and come to an agreement. This agreement, especially when franchising with a food chain such as McDonald’s, usually has strict guidelines the franchisee must follow. Sometimes even as stringent as determining what type of toilet paper must be used in the bathroom. There’s also a royalty fee that the franchisee pays, which is usually about five to ten percent of the profits. Always have a franchise lawyer NYC review your agreement before you sign any agreement or contract with a franchise.

So, is franchising for you?

The answer is complicated. If you’re an entrepreneur who is new to the business world and want to learn from some of the most successful companies in the world, franchising may be for you. A franchise, however, doesn’t guarantee success. But if you’re risk adverse and don’t want to spend the time and money creating a business from scratch, franchising may be a good option. But in the end, you don’t own the business and you have to adhere to the company’s stipulations. If you do decide that franchising is right for you, be sure to hire a franchise lawyer NYC to help you understand what’s in your agreement and how it will impact your bottom line.

May 1, 2019April 26, 2019

4 Questions to Ask Your Commercial Real Estate Attorney

Investing in real estate can be complicated. Commercial real estate lawyers NYC are the perfect partners to help you navigate this complex environment, in order to protect your investment. They have expert knowledge in real estate law, advisory services, and contract negotiation. However, simply hiring a real estate attorney should not be done without asking some important questions. The questions below are focused on hiring an attorney that is the perfect fit for you.

Question #1: Do they have relevant experience?

Every attorney is different. Just because someone has a law degree, doesn’t mean they have in-depth knowledge and understanding of real estate law. Additionally, some real estate attorneys specialize in certain areas. By looking into their experience and background, you can see what type of deals they have helped make in the past, what investments they have coordinated, and anything else you find important.

Question #2: How skilled is their staff?

When dealing with an attorney, you are often dealing with their staff as well. It’s important to see what the procedure is for communicating with additional staff members in case the commercial real estate agent falls ill, goes on vacation, or anything other unforeseen problems arise. In these circumstances, it’s important to see how skilled their other staff members are.

Question #3: What are their rates?

This may seem obvious, but it is probably the most important question for a commercial real estate attorney to answer. By seeing how much they charge, you can create a budget. Although, be wary of rates that seem too good to be true. Lower rates can also mean less experience, which may not be the best choice for long-term savings.

Question #4: Where are they licensed?

Each state has different real estate laws, so having a commercial real estate attorney who understands your state’s laws is absolutely critical to success. Be sure to ask where real estate lawyers NYC received their licenses to make sure they can complete your job upon hiring.

April 2, 2019April 2, 2019

Housing Discrimination: FAQs for Landlords

If you’re a landlord, it’s important to know exactly what housing discrimination is and the answers to the questions most commonly asked of your landlord-tenant lawyer NYC. Housing discrimination effects every single landlord and tenant, as it forbids landlords from choosing (or excluding) certain tenants based on certain criteria. These criteria including not discriminating based on:

1. A tenant’s nationality

2. A tenant’s religious beliefs

3. A tenant’s sexual orientation

4. A tenant’s race or color

5. A tenant’s sex

6. A tenant’s disability

7. A tenant’s familial status such as being married, single, or cohabitating.

Armed with this knowledge, we can look at some of the most common questions that come to mind for landlords regarding discrimination.

Question 1: Can A Tenant Sue a Landlord for Discrimination in Federal or State Court?

It is possible for a tenant to file a lawsuit against a landlord within two years of the alleged violation. The result of this lawsuit may ensure that a tenant receives damages, including damages for emotional distress, punitive damages, and attorney fees.

Question 2: What are the approved, legal reasons that a landlord can refuse a tenant?

There are a number of reasons that are perfectly legal for a landlord to reject a tenant. These are not grounds for discrimination and can be used as grounds to refusing a tenant or terminate a lease. Before signing the lease, a tenant may fail a screening process that a landlord might pose to the tenant. The following are all criteria that would give a landlord just grounds for refusing a tenant:

1. Poor credit history

2. Insufficient income

3. A previous history of not paying rent

4. History of bankruptcy

5. No previous references

6. A criminal conviction

7. Having pets

Question 3: How Would a Tenant Lodge a Discrimination Complaint?

A tenant who believes they have been wrongly discriminated against can register a complaint with the U.S. Department of Housing and Urban Development. This can be done if they believe their rights under the Fair Housing Act has been violated. Tenants must lodge the complaint within one year of the alleged discrimination. The Department of Housing and Urban Development will then investigate the complaint to see if “conciliation” can be achieved between the two parties. If this process is unsuccessful, an administrative hearing can be held preceded by a judge to determine if discrimination had genuinely occurred.

If your organization is being sued for discrimination, contact your landlord-tenant lawyer NYC for more information about your options. Warren S. Dank has worked on similar cases for large commercial organizations and can help you win your case.