Skip to main content
Gene R. Berardelli

Gene Berardelli’s Answers

15 total

  • If a lawyer is late to his deposition, can a deponent leave & not be sanctioned in NYC?

    Deponent just left lawyer's office after lawyer wasn't on time for a scheduled deposition. Since the deponent complied with the judge's order by being at the lawyer's office at the scheduled time for the deposition, can the deponent be sanctioned...

    Gene’s Answer

    I agree with all the answer given thus far, but wish to add a few points.

    1. The amount of delay is not mentioned here. I have attended many depositions where attorneys are late. As a courtesy, I usually wait 15 minutes before I have my office contact his/her attorney's office to see if he/she is on their way. If they are, I usually wait up to an hour after the scheduled time before "busting" the deposition. Scheduling conflicts, emergencies, subway / travel delays are part of the human condition - unfortunately they happen

    2. Sanctions are EXTREMELY hard to obtain in New York State Courts. If this is a Federal matter, you may have some more of a chance. The answer depends on the Court you are in.

    3. An attorney's failure to appear in a related matter will have little to no bearing on your matter.

    Best of luck.

    See question 
  • I am 2 months behind on my rent, and think that my landlord is going to try to evict me. What is the process?

    Lost job, and have medical issues. My roomate lost his job and moved out. Completely broke at the moment. Waiting on a settlement from a recent car accident. My rent is 3434.00 which is really high for the space. Because i signed a loft lease my l...

    Gene’s Answer

    Landlord-Tenant matters are handled very quickly, so remember that time is not on your side. Before all else, consult a Landlord-Tenant Attorney. But if you insist on handling matters yourself, Here's what you can do:

    First, consult your copy of the Lease and read about "Default". If you're not yet in default, contact your Landlord and see if you can come to some alternative arrangement for rent.

    The eviction process in NYC follows this process:

    (1) Upon default, you will receive a "Five Day Notice", which is a final demand for outstanding rent before going to court. If matters aren't resolved at this stage, the landlord may

    (2) file a Petition in Civil Court for non-payment. The Petition may not say much - just stating the reason for the Petition (in this case, non-payment) and a list of outstanding rent due. At this point, you will be required to

    (3) Answer the Petition. In Civil Court, you can (a) go to the Civil Court Clerk and answer verbally (b) go to the Civil Court Clerk and answer in writing on a form provided to you, or (c) consult an attorney, who will file an Answer on your behalf with the Court. A lot of people make the mistake of not answering the petition at all - ANSWER IT. If you don't, you expose yourself to a default judgment for eviction - even if you and the landlord are in negotiations. Upon filing an Answer, the Clerk will assign a Court date.

    (4) At the Court appearance, you will meet with the Landlord and/or his Attorney to negotiate a settlement. You may also meet with the Judge's Clerk and/or the Judge to see if something can be worked out between the parties. If no settlement is reached, both sides will come to an agreement for a trial date.

    (5) At the trial, both sides will present their cases to the Judge, and the Judge will render a decision. If the Judge rules for an eviction, a warrant will be ordered, and the Sherriff will send a notice to the premises stating when to expect them to enforce the eviction order.

    The whole process may only take a few weeks, but as you can see, there are numerous opportunities to contact the landlord - before the proceeding, in the courtroom, in between court appearances, etc. Take advantage of these moments and try to settle matters. The best recommendation I can give you is to consult an attorney that handles Landlord-Tenant matters.

    See question 
  • What laws do I need to be aware of that would allow me to successfully run against a nominating committee slate of officers?

    This Ohio based not-for-profit uses a nominating committee to produce a slate of officers for their elections -- hence, shareholders have only single candidates to vote on, and a fair and open election can not be assured. Their nominees receive m...

    Gene’s Answer

    When reading this answer, please note that I am an attorney licensed in NY, and advise you to consult an attorney licensed to practice in OH for a clearer answer regarding that state's laws.

    Typically, non-profit voting procedures are governed by their organizing documents (articles of incorporation, bylaws, etc.). In their organizing documents, you should be able to find specific answers t your questions. Some member organizations have a nominating committee nominate a slate, and then accept nominations "from the floor". Some restrict nominations from the floor to those who obtains a set amount of member signatures and present them timely to the Board of Directors in order to be included on the ballot. Each organization is diferent, so if you're a member, you can probably request a copy of their bylaws for clarification.

    State election laws usually only govern public elections, so they are most likely the wrong place to look. Check out the state's not-for-profit incorporation / organization law (in NY, it's the Not For Profit Corporation Law) for the "default" rules that apply to all not-for-profits.

    Finally, when discussing, not-for-profit status, be a little careful in clarifying what you mean. Do you mean tax-exempt status? That status is governed by the Internal revenue Code, and the Dept. of Treasury's rules and regulations. The company is set up as "not-for-profit" if the purpose of the company is not to make money, but to further some other purpose, and its setup is governed by state law. Think about it further and feel free to get back to all of us on Avvo with what you meant.

    See question 
  • Can a business use images of a minor in their advertisement without parental permission?

    A local business is using images of my daughter on their website, brochures and flyers. I have never given permission for her photos to be used. We are not associated with this business and I would like them to remove her photos. What recourse ...

    Gene’s Answer

    When considering my answer, please remember that I am not a attorney that is licensed to practice in your jurisdiction and that I highly recommend that you consult a licensed attorney in your jurisdiction.

    When a company wants to use a person's name and/or image for a commercial purpose, they typically have to get that person's permission. Typically, businesses have people sign general releases so they can use a person's name or image.

    When dealing with minors, getting their permission to use their name / image isn't enough - parents must agree as well.

    Oral releases are generally considered valid (though it's always best to get such things in writing!), so think back and try to remember if you ever gave anyone permission to take your child's photo for use by a business, or even for use by a photographer who sold the rights to the photo.

    If you still feel that a business is using your child's likeness without your permission, then let them know that you want them to stop. Send a letter to them yourself - and if that doesn't work, follow it up with a letter from an attorney. Then see how things progress, and consult an attorney.

    See question 
  • Want to stop zoning change next door for multi-family apartments.

    We just received a letter from the city that a proposed zoning change was in place for the 5 acres next to us and the 10 or so acres across the street. They want to build multi-family apartments right next to our house and we and all our neighbo...

    Gene’s Answer

    Let me start by saying that i am not licensed to practice law in your jurisdiction, and I highly recommend that you consult with a land use expert in your area.

    Be prepared for an uphill climb. I have advocated on behalf of zoning changes in my neighborhood in Brooklyn, NY ( I've been on both sides - arguing for a given plan, and against.), and from my experience, a certified plan for changing zoning is tough to fight. Typically, planners have taken a lot of time and effort to make the argument for changing an area's zoning. Look up the proposed zoning plan, and learn those arguments, so you can think of the appropriate counter-arguments.

    If you believe that the zoning change would be detrimental, compare it to existing areas where the zoning is the same, and see if the problems you are concerned about match your areas of concern. But stick to main arguments, not supporting ones. Supporting arguments about property value, the "character" of a given area, and quality of life are most likely not enough to change the minds of decision makers, but they do help to bolster main points. Main points would be things like the safety of the community, increased costs on current residents in the area, and strain on the area's infrastructure. Speaking of infrastructure (water delivery, sewers, utilities, public transportation, etc.) investigate as to whether your are can handle the expected increase in demand - and if not, what the jurisdiction intends to do to improve your infrastructure, and what costs you could expect. Find experts who know the area, and believes that the zoning would be detrimental to your community. Get them to put it in writing - create a paper trail of real concerns. You may also wish to consult the local representative for your area at the level of government where the action is being taken and lobby him/her.

    As I said at the start, consult land use experts in your area, and see what real concerns there are in this proposed zoning change. Good luck!

    See question 
  • Should I retain an Attorney?

    How do I sue someone when the dispute amount is over 5k? What is the process?Can I do this myself? or is an attorney the best option?

    Gene’s Answer

    Yes! No matter what you're talking about, having an expert on your side to guide you through matters is always the best option. That's why I call plumbers to fix my pipes, instead of fumbling around with a wrench and flooding my basement! Sure, you can do it yourself, but there are a lot of pitfalls that you need to avoid in filing a pursuing an action.

    Lawsuits are initiated by filing a Summons & Complaint with the Court. But there are lots of rules that you need to know in order to choose which court. Factors that determine where to sue include where you live, where the other party lives, the amount in controversy, and the type of action. Generally, the New York CPLR (Civil Procedure Laws & Rules) governs over the form of the Summons & Complaint, and how to serve them on the other party.

    A Lawyer would be able to ensure that your action would be filed in the right place, written up in the proper form, and served in the proper manner. So while you can do it yourself, I strongly suggest getting a lawyer to represent you. Good luck!

    See question 
  • Volunteer fire department association

    How to properly disband a volunteer fire department association

    Gene’s Answer

    Before you do anything, you should inform the municipality that you serve that you intend to disband. Maybe there are some special rules that apply - or maybe they will assist you in keeping it open. Most importantly, you don't want to dissolve with no notice to the community if there is no suitable replacement. So inform the head of your local government (town, village, etc.).

    In general, you would look to see how an organization was created in order to see how it disbands. if it's a not-for-profit entity, find out the law under which it was organized, and those rules should tell you how to dissolve it. If it was created by the municipality, you may need some kind of resolution from the municipality to disband.

    You should definitely hire a lawyer with knowledge of your local laws for a more definitive answer.

    See question 
  • My wife and I have been living seperated for 2 years in NYC . what do we need to do to finalize a divorce

    My wife and I have been living seperated for 2 years in NYC . what do we need to do to finalize a divorce?

    Gene’s Answer

    I just want to add that the NY Courts website has tremendous resources for people looking for answers regarding divorce. This is probably a good place to start.

    See question 
  • Short sale

    I am a home owner, trying to sell my house and relocate. It was in the market for 4 months and unable to sell. I am thinking of doing a 'short sale'. My credit score is good, I am prompt in my mortgage payments. Is it a good option and will this a...

    Gene’s Answer

    A "short sale" is not the answer for you.

    Typically the option of a "short sale" is only available for homeowners after they have defaulted on their mortgage. Even if you were able to do this, a "short sale" results in no monetary gain to the homeowner, and negatively impacts your credit, and you will not be able to qualify for another mortgage for some time thereafter. All in all, it's entirely NOT the way you want to go!

    These are tough times in the market for buying / selling a home, but if you work hard enough, you'll find a qualified buyer at your price. Cast a wider net, advertise outside of your area (like in NYC) to increase the pool of possible interested buyers. Look up different real estate agencies and see who is finding the buyers and is doing good business. If at all feasible, consider dropping the price as an enticement to get more people interested. Or, modify your plans and hold it for awhile if conditions are not favorable to you selling at this time.

    Good luck with whatever path you choose.

    See question 
  • Can Daughter Help Father- Sole Proprietor sick & unable to communicate, property in pre-foreclosure/New Business & Mortgage?

    My dad, a sole proprietor and property owner had a stroke leaving him unable to speak and fully communicate. Prior to the stroke he wasn't very open about his business! His property is in pre-foreclosure. There are other utilities and judgments ...

    Gene’s Answer

    First of all, I'm sorry to hear about your father.

    From the looks of things, you have multiple issues going on here, so let's see what can be addressed now, and what additional information would be needed.

    Regarding your father's debts, if there are debts assigned to collection agencies, contact them and arrangement to make a payment schedule. Explain the situation to them - they may be more willing to negotiate because otherwise the likelihood of collecting is small. Some debts, like the utilities need to be addressed immediately, or you will risk having them shut off. Do the same with them, but make addressing those debts a higher priority.

    Addressing debt take discipline on your part. The key is to prioritize, and keep your promises to pay as realistic as possible so you can stick to whatever schedule you both agree upon.

    Regarding any property matters, the benefits of different entities, and "protecting your investment", a lot of the answers depend on some unknown factors, (i.e.: the current ownership situation, how far down the mortgage is currently, where the property is located / how it is zoned, etc.), and a lot depends on some personal information that shouldn't be given out on the internet for all the world to see. Contact an attorney for a detailed, personal answer to your questions.

    See question