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Brian Michael Higbie

Brian Higbie’s Answers

56 total


  • I received a supeona for contempt of court. However, I never received the original summons.

    The original summons has incorrect information on it such as wrong city, wrong county and wrong name of person who supposedly signed for it when delivered to my home. Is this legal?

    Brian’s Answer

    You ought to provide more facts because there is no contempt for failure to answer a civil summons (to my knowledge). There is contempt for failure to answer a subpoena or comply with a court order. You can and should appear on the date scheduled by the court for the contempt hearing. If you were not properly served, then that will be your defense. The penalty for contempt can include imprisonment, therefore you are strongly advised to hire an attorney to advise and represent you.

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  • I was given a Transit Adjudication Bureau Ticket for entering the subway without payment. I am a 1L in law school.

    Should I pay the fine, or dispute it? Will I have to report this when applying to the NY Bar?

    Brian’s Answer

    For a good answer, you really need to provide the facts and circumstances. Or, can I assume that since you left them out that they do not help you? In any event, there can be a criminal penalty for this type of offense. But, even if there is not a criminal penalty, the act can be viewed as a theft, reflecting upon honesty and integrity, which could do more to harm your chances with the bar than a more serious crime not involving honesty and integrity. You should hire a lawyer to represent you on the ticket.

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  • Can a new Board rescind a policy that was in effect previously by a prior Board,namely a grandfather policy about parking space

    We have lived in this apt for 42 years and bought it when it went coop. We have had a 2nd space prior to the conversion and still have the 2nd spot. July 11, 2011 the Board added a surcharge of $40 for the second spot. The policy stated those who ...

    Brian’s Answer

    I am an attorney in Yonkers who practices condominium, co-op, and HOA law. Policies ought to be part of the Declaration, By-Laws, and Rules and Regulations. If your parking space policy is, then those documents should say how they can be changed. In some buildings, the process is quite formal and requires the vote of 2/3rds of the homeowners. In others, the Board can change them by a majority vote of the Board members. If the Board followed the rules, then there would need to be other facts to challenge their decision. If this is important to you, you should hire an attorney to advise you. If this is important to your neighbors as well, you can all gather together and share the expense of an attorney. Finally, I commonly counsel that while there are laws that protect you, the solution is usually political. Your Board is like a small group of government officials. If you don't like their policies, then vote them out. A Board member should only consider what is best for your building, not best for themselves? Which was the case here?

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  • In New York State (Westchester County) is there such a thing as a Deed Effective Upon Death?

    I am listed solely on single family residence deed and would like to protect my wife, in case of my death, by making it easy for her to have the house which we jointly occupy.

    Brian’s Answer

    Wise of you to consider this question. My estate planning law practice helps people every day to face the kinds of issues that may arise upon someone's passing. Addressing your concern, there are many options available to you that will allow you to transfer your family home to your wife. There is only one way that I know of that will protect that home from creditors. Call my office if you want to explore a concrete plan. Unlike most other firms, we offer flat fee billing and a lifetime relationship with your lawyer.

    Law Office of Brian M. Higbie
    (914) 613-9250

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  • What does it take to be removed as a guarantor on a lease ? The lease was signed in 2004. The lease term was from 2004-2006.

    My sister lives in a rent stabilized building unit. I never lived with her and up to 2007 she paid her rent on time. In 2007, they sent me papers involving me in court proceedings that usually ended up getting worked out between my sister and them...

    Brian’s Answer

    The wording of the guarantee is where to begin. If you wish me to review and analyze the guarantee agreement and provide you with guidance, you'll need to hire me. If interested in doing so, provide me with your contact information.
    Regards,
    Brian Higbie, Esq.

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  • Can my landlord sue because he did not fix a leak that I reported to him?

    My landlord recently hired a service to determine where he had a leak. They came to my apartment and discovered it was my toilet. My landlord was unhappy that I had not told him, but at least twice during my two+ yrs here I have reported the issue...

    Brian’s Answer

    I would not expect the landlord to sue you so long as you inform the landlord that you can provide documents that show that you notified the landlord about the leak. Frankly, even if you did not notify the landlord, a lawsuit against you might still lose, but your defense would be stronger and victory more assured if you can document the notification.

    Disclaimer: This post is for informational purposes only. It is not legal advice, does not create an attorney-client relationship, and is not intended to be relied upon as legal advice.

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  • NYC owned condominium - Can a lean be put on the house without telling all 3 owners about it?

    I own a condominium house with my 2 brothers in NYC. In 1998, there were 3 owners, one passed away in 2002. In 1998, the Welfare Dept put a lean on this house for $150,000.00. One of my brothers was on public assistance for many years, until he ...

    Brian’s Answer

    A complete answer will require a thorough review of the facts as well as some legal research. Short of that, it is my general opinion that the lien cannot encumber anything beyond your brother's interest in the condominium unit. A lien can be foreclosed, which would mean that the apartment would be sold at auction, and everything beyond your brother's one third interest would have to be paid to the owners of the 2/3rds interest. I cannot tell from your facts whether you would have any defenses or recourse.

    I am accepting new clients and my contact information is on my AVVO page.

    Disclaimer: This post is for informational purposes only. It is not legal advice, does not create an attorney-client relationship, and is not intended to be relied upon as legal advice.

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  • Can I break a lease if the landlord wont answer my phone calls about people smoking in the hallway.

    our nextdoor neighbors smoke in the hallway and it sent me to the hospital. We tried to contact the landlord about this issue but he wont answer the phone.

    Brian’s Answer

    If the conditions are as you say and you can prove hospital visits and that smoking is a hazard to your health, you may be within your rights to move out under a constructive eviction. I cannot speak with more certainty because i know of know case with similar facts. You can start a lawsuit asking for a declaratory judgment from a court that the smoking in the hallway is a breach of the warranty of habitability. Short of a lawsuit, what I often do is try to get the landlord to sign a termination agreement, and simply agree to let you out of the lease early.

    If you wish to consult further with an attorney, you can call me for legal advice if you compensate me for my time.

    Disclaimer: This post is for informational purposes only. It is not legal advice, does not create an attorney-client relationship, and is not intended to be relied upon as legal advice.

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  • How do I evict someone for non payment

    My Tennant did pay first month rent on time I told them if there late again to move they didnt pay the next month I have been telling them fir 15 days to leave they haven't

    Brian’s Answer

    If you are the landlord, then to evict a tenant you must start a landlord/tenant proceeding for eviction and to collect unpaid rent. If and when you obtain a judgment and a warrant of eviction, a local sheriff will enforce the warrant of eviction, and you can take steps to enforce the judgment. This can include garnishing wages. Also, the judgment is a public record and should automatically appear on the tenant's credit report but you could contact the major credit reporting agencies and provide them with a copy of the judgment to ensure that the negative information is reported.

    Disclaimer: This post is for informational purposes only. It is not legal advice, does not create an attorney-client relationship, and is not intended to be relied upon as legal advice.

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  • How do I evict tenant in room share?

    The tenant firstly has not signed the new lease for September because of rent increase. She did not even pay August rent because she said she had no money and was going to live off security. She says she is no longer working and I can take her...

    Brian’s Answer

    If you are the landlord, then to evict a tenant you must start a landlord/tenant proceeding for eviction and to collect unpaid rent. If and when you obtain a judgment and a warrant of eviction, then you can take steps to enforce the judgment. This can include garnishing wages. Also, the judgment is a public record and should automatically appear on the tenant's credit report but you could contact the major credit reporting agencies and provide them with a copy of the judgment to ensure that the negative information is reported.

    FYI. I take clients in Brooklyn.

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