KMWB Partner Nativ Winiarsky’s Article on Fraud and the Default Rule Appears in New York Law Journal
KMWB Partner Nativ Winiarsky’s latest article to appear in the New York Law Journal focuses on the application of the default rule in the context of rent overcharge cases in the wake of Regina. Nativ begins the article reviewing the definition of fraud as set down by the landmark ruling in Regina (argued by Nativ at the Court of Appeals) and how it has been applied and misapplied by various appellate and trial courts. It is our hope that our judiciary will pay careful attention to this analysis and recognize that the recent application of the default rule by some courts has run afoul of the intention of the Court of Appeals and the necessity to place greater adherence to the language endorsed by our State’s highest Court.
“As seminal a case as Regina may have been, there has been a sharp divergence of opinions in regard to its application as seen by recent decisions issued from both the Appellate Division and trial court levels,” Nativ writes.
“If nothing else, one thing is unfortunately clear as concerning fraud and use of the default formula—that things are rather unclear. The Court of Appeals will soon get a chance to weigh in on these issues in an appeal of a decision, Casey v. Whitehouse Estates, 197 A.D.3d 401 (1st Dept. 2021). Inasmuch as these issues impact thousands of units, we all hope that further clarity and sound reasoning is provided in the very near future.”