Wednesday, November 25, 2015


Tuesday, November 24, 2015


Once again, today I will be a volunteer lawyer with Nassau Suffolk Law Services at Landlord/Tenant court in Hempstead:

"Volunteer Lawyers Project
What is the Volunteer Lawyers
Attorneys are encouraged to volunteer to provide free legal assistance to the poor in Nassau County through the Volunteer Lawyers Project. NCBA partners with the Nassau/Suffolk Law Services Committee to support VLP, which helps maximize the quantity and quality of pro bono assistance provided for the county's low-income community.
What programs are part of the VLP?
Volunteer attorneys handle a wide array of cases including matrimonial matters, individual bankruptcy, personal injury and negligence defense, estate matters, release of accounts blocked by judgment creditors, and various other civil matters.
     • The Landlord/Tenant Project's Attorney of the Day Program assists thousands of men, women and children in court to prevent homelessness.
     • The Bankruptcy Clinics assist families either with advice or the filing for a Chapter 7 bankruptcy, when appropriate.
     • The Matrimonial Project assists hundreds of individuals in obtaining divorces, child support and custody.
How does it work?
An attorney based at VLP’s offices in Hempstead conducts client intake interviews and refers clients to appropriate volunteer attorneys. The VLP attorney also recruits and trains volunteer attorneys to handle cases."

Monday, November 23, 2015


I will be volunteering today, Monday November 23, at the Nassau County Bar Association's free clinic for Mortgage Foreclosure, Bankruptcy and Superstorm Sandy issues from 3pm to 6pm.
For more information, contact Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501 at (516) 747-4070

Friday, November 20, 2015


The next Senior Clinic is scheduled for today 9:30-11am at the Nassau County Bar Association, 15th & West Streets, Mineola, NY 11501.

I will be one of the volunteer lawyers.

Thursday, November 19, 2015


Hofstra University Law School sponsors Veterans clinics at least once a year.

Tuesday, November 17, 2015


Bennett v St. John's Home, 128 AD3d 1428 (4th Dept. 2015) - sometimes the most interesting part of a decision is the dissent:

"Whalen, J. (dissenting). I respectfully dissent because I disagree with the majority's conclusion that plaintiff waived his contention that defendants' motion for summary judgment should have been denied as untimely. I would therefore reverse the order and judgment, deny defendants' motion, and reinstate the complaint.
Where, as here, Supreme Court does not schedule a deadline for filing motions for summary judgment, "such motion shall be made no later than one hundred and twenty days after the filing of the note of issue, except with leave of court on good cause shown" (CPLR 3212 [a]; see O'Brien v Bainbridge, 109 AD3d 1206, 1208 [2013]; Jones v Town of Le Ray, 28 AD3d 1177, 1178 [2006]). The moving party has the burden of demonstrating good cause, and "[n]o excuse at all, or a perfunctory excuse, cannot be 'good cause' " (Brill v City of New York, 2 NY3d 648, 652 [2004]; see LoGrasso v Myer, 16 AD3d 1089, 1089-1090 [2005]). In that context, CPLR 3212 (a) "requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy" (Brill, 2 NY3d at 652; see O'Brien, 109 AD3d at 1208).
The Court of Appeals has explained that requiring the movant to show good cause serves "the purpose of the amendment, [i.e.,] to end the practice of eleventh-hour summary judgment motions" (Brill, 2 NY3d at 652), and that "statutory time frames . . . are not options, they are requirements, to be taken seriously by the parties. Too many pages of the Reports, and hours of the courts, are taken up with deadlines that are simply ignored" (Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727 [2004]).
Here, the court did not set a deadline for motions, and the note of issue was filed on April 20, 2012, which meant that all summary judgment motions were to be filed within 120 days and no later than August 18, 2012 (see CPLR 3212 [a]). The motion for summary judgment was not filed until June 28, 2013, which is just over 10 months beyond the 120-day limit (see O'Brien, 109 AD3d at 1208). Defendants' moving papers did not include any explanation for the delay, and the reason set forth by the court during proceedings on May 13, 2013 was simply that defendants may have a meritorious motion and, thus, that determining the motion might simplify the issues at trial, which is the same excuse that was rejected by the Court of Appeals in Miceli and Brill (see Miceli, 3 NY3d at 727; Brill, 2 NY3d at 652-653). I therefore conclude that the motion should not have been entertained by the court.
In my view, the fact that the parties entered a stipulation to allow defendants to make a late motion for summary judgment does not alter the above analysis inasmuch as "[the] parties' stipulation is insufficient to excuse [a] delay" (Coty v County of Clinton, 42 AD3d 612, 614 [2007]). "Unless public policy is violated, the parties are free to chart their own procedural course, and may fashion the basis upon which a particular controversy will be resolved" (Loretto-Utica Props. Corp. v Douglas Co., 226 AD2d 1058, 1059 [1996] [internal quotation marks omitted]; see Mitchell v New York Hosp., 61 NY2d 208, 214 [1984]). However, as articulated by the legislature and the Court of Appeals, it is public policy to strictly enforce the 120-day limit for summary judgment motions in the absence of leave of court on good cause shown. CPLR 3212 (a) was amended by the legislature with "the purpose . . . to end the practice of eleventh-hour summary judgment motions" (Brill, 2 NY3d at 652), which the Court of Appeals described as a "sloppy practice threatening the integrity of our judicial system" (id. at 653). "[T]he Court of Appeals [has] clearly indicated that the 120-day statutory time frame contained in CPLR 3212 (a) is a strict requirement 'to be taken seriously by the parties' " (Coty, 42 AD3d at 614, quoting Miceli, 3 NY3d at 726) and "must be 'applied as written and intended' " (id., quoting Brill, 2 NY3d at 653). Although parties may stipulate away some statutory rights (see Mitchell, 61 NY2d at 214), under CPLR 3212 (a) and the decisions of the Court of Appeals in Brill and Miceli, "the court has the exclusive authority to extend the statutory deadline; mutual agreement of the parties without court approval will not suffice" (Coty, 42 AD3d at 614), and the court may not approve of the delayed motion without a showing of good cause (see CPLR 3212 [a]; Brill, 2 NY3d at 652). Thus, contrary to the majority's position, litigants cannot waive the statutory requirement that good cause be shown in order to permit the late filing of a motion pursuant to CPLR 3212, and the statute does not permit courts to accept a stipulation of the parties "in advance of the [*3]motion" where there is no showing of good cause. I therefore conclude that, while a court may accept a late motion for summary judgment "pursuant to both a stipulation and the court's own order, upon a showing of 'good cause' " (Jim Beam Brands Co. v Tequila Cuervo La Rojena, S.A. De C.V., 85 AD3d 556, 556-557 [2011] [emphasis added]), a stipulation alone is not sufficient to extend the deadline imposed by the statute (see Coty, 42 AD3d at 614).
As discussed above, the parties' stipulation in the present case was accompanied by acquiescence of the court, but without any showing of good cause for the delay. In my view, "[i]f this practice is tolerated and condoned, the ameliorative statute is, for all intents and purposes, obliterated" (Brill, 2 NY3d at 653). The courts should heed the admonition of the Court of Appeals and not countenance such statutory violations (see id.)"

Monday, November 16, 2015


The American Academy of Matrimonial Lawyers is co-distributing the Telly Award winning custody film, TALK TO STRANGERS"

"The 25-minute dramatic film tells the story of a sister and her younger brother struggling to navigate the child custody evaluation process typically used in American family courts. It is being used by divorce professionals throughout the country to remind parents and counsel of the consequences for children when parents give up on cooperative parenting."


Friday, November 13, 2015


This came up in an email discussion - and reminded me of the movie Poltergeist. What is the Seller's duty to disclose the fact that, for example, there was a murder in the home, a contagious disease....or that the house is build on a burial ground and ghosts appear?

In 1995, New York State passed Section 443-a of the Real Property Law which makes the failure to disclose disease-type and crime/death-type impacts not a material defect.  Disease-type impacts protected under the statute are the AIDS or HIV status of a prior occupant, or any other disease not transmitted through occupancy of a dwelling. The crime/death-type impacts under the statute are "a homicide, suicide, or other death by accidental or natural causes, or any crime punishable by a felony."' It also prohibits causes of action against owners, occupants, and their agents for failing to disclose psychological impacts. Real estate agents and brokers are also immune from disciplinary action.

However, there is a procedure for buyers to make a written inquiry if psychological impacts are important to their decision to buy. The buyer or buyer's agent must provide the written inquiry to the seller or the seller's agent. The seller may choose whether or not to respond. If the seller chooses to respond, the seller or seller's agent must provide the response to the buyer or the buyer's agent.

So when representing a buyer - make the inquiry pursuant to RPL Section 443-a. But I don't think it covers it is in its entirety:

"1. Notwithstanding any other provision of law, it is not a material defect or fact relating to property offered for sale or lease, including residential property regardless of the number of units contained therein, that: (a) an owner or occupant of the property is, or was at any time suspected to be, infected with human immunodeficiency virus or diagnosed with acquired immune deficiency syndrome or any other disease which has been determined by medical evidence to be highly unlikely to be transmitted through occupancy of a dwelling place; or (b) the property is, or is suspected to have been, the site of a homicide, suicide or other death by accidental or natural causes, or any crime punishable as a felony. 2. (a) No cause of action shall arise against an owner or occupant of real property, or the agent of such owner or occupant, or the agent of a seller or buyer of real property, for failure to disclose in any real estate transaction a fact or suspicion contained in subdivision one of this section. (b) Failure to disclose a fact contained in subdivision one of this section to a transferee shall not be grounds for a disciplinary action against a real estate agent or broker licensed pursuant to this article. (c) As used in this section, the terms "agent", "buyer" and "seller" shall have the same meanings as such terms are defined in section four hundred forty-three of this article. 3. Notwithstanding the fact that this information is not a material defect or fact, if such information is important to the decision of the buyer to purchase or lease the property, the buyer may, when negotiating or making a bona fide offer, submit a written inquiry for such information. The buyer or the agent of the buyer shall provide the written request to the seller's agent or to the seller if there is no seller's agent. The seller may choose whether or not to respond to the inquiry. The seller's agent, with the consent of the seller and subject to applicable laws regarding privacy, shall report any response and information to the buyer's agent or to the buyer if there is no buyer's agent. If there is no seller's agent, the seller shall inform the buyer's agent, or the buyer if there is no buyer's agent, whether or not the seller chooses to provide a response. 4. This section shall preempt any local law inconsistent with the provisions of this section."

Thursday, November 12, 2015


On October 28, Gov. Cuomo signed into law a bill designed to clear up confusion that has developed over how spousal maintenance is treated when calculating child support. The bill, provides that spousal maintenance that is actually paid must be added to the recipient spouse's income, provided that the order contains an adjustment to take effect if the maintenance order is terminated. The new law contains a provision that where spousal maintenance is deducted from a payor's income, the order must have a provision automatically adjusting the payor's child support amount when maintenance payments end.

Prior court rulings have held that durational spousal maintenance payments should not be deducted from the payor's income unless the order specifies a mechanism for an adjustment if maintenance stops.

The new bill takes effect in 90 days and reflects that state and federal tax laws allows payor spouses to deduct maintenance payments from their taxes in recognition that the maintenance is income to the recipient and not money that is available any longer for use by the payor.

Wednesday, November 11, 2015


My father Albert Probstein served in the Pacific in WW2. This Saturday, I will serve as a volunteer lawyer at a free Veterans Legal Clinic:

"The Maurice A. Deane School of Law will host a free Veterans Legal Clinic on Saturday, November 14, 2015. The clinic is open to all veterans and offers a free consultation with attorneys who specialize in VA benefits and claims, family law, social security disability, employment, USERRA, housing, bankruptcy, debtor/creditor matters, landlord-tenant disputes, elder law, tax, wills, estates, Medicare and Medicaid, and more. Appointments are required.

The clinic is organized by the Hofstra Veterans Legal Assistance Project. For more information or to schedule a free consultation, contact the Hofstra Veterans Legal Assistance Project at or call 516-463-7302.

This is the fifth one-day clinic hosted by the Veterans Legal Assistance Project. To date, VLAP has provided more than 200 military veterans with free legal services.

TIME: 10 a.m.-4 p.m.

LOCATION: 2nd-Floor Atrium, Hofstra Law, South Campus, Hempstead, NY 11549"

Tuesday, November 10, 2015


This is from an email I received from Shenwick & Associates:

Many of our debtor clients ask the question: if I owe the IRS taxes and I'm collecting Social Security benefits or going to collect Social Security benefits in the future, can the IRS levy my Social Security payments? Unfortunately for delinquent taxpayers, through the Federal Payment Levy Program (FPLP), 15% of a taxpayer's Social Security benefits may be levied to pay delinquent tax debt. However, certain other federal benefits, such as lump sum death benefits, Supplemental Security Income (SSI) and benefits paid to children are excluded from the FPLP levy.

What about student loans? If a debtor defaults in the payment of federally guaranteed student loans, then the IRS may levy on the debtor's tax refunds and apply those monies to the balance of the student loans. Additionally, if a debtor defaults on federally insured outstanding student loans, the government can take some federal benefit payments (including Social Security retirement and disability benefits, but not SSI) as reimbursement for student loans, but not the full amount (see below).

With respect to student loan defaults, the government cannot take any amount that would leave you with benefits less than $9,000 per year or $750 per month. And it cannot take more than 15% of your total benefits for either student loan defaults or delinquent taxes.

If you have questions about the federal government's powers to seize your benefits for the payment of delinquent taxes or publicly guaranteed student loans, please contact Jim Shenwick.

My LinkedIn profile • Shenwick & Associates

Monday, November 9, 2015


Lajqi v. Lajqi, 130 A.D.3d 687, 11 N.Y.S.3d 860 (Second Dept. 2015):

"The Supreme Court properly denied that branch of the defendant's motion which was to direct the plaintiff to undergo a psychiatric evaluation as a condition of continued visitation with the parties' child. A court hearing a pending proceeding or action involving issues of custody or visitation may properly order a mental health evaluation of a parent, if warranted, prior to making a custody or visitation determination (see Family Ct Act § 251[a]; Zafran v. Zafran, 28 AD3d 753, 756; see also Bibas v. Bibas, 62 AD3d 924). In addition, a court may properly direct a party to submit to counseling or treatment as a component of a visitation or custody order (see Matter of Smith v. Dawn F.B., 88 AD3d 729, 730; Matter of Lane v. Lane, 68 AD3d 995, 997–998; Matter of Thompson v. Yu–Thompson, 41 AD3d 487, 488; Matter of Grassi v. Grassi, 28 AD3d 482, 483; Jordan v. Jordan, 8 AD3d 444, 445; Matter of Williams v. O'Toole, 4 AD3d 371, 372).

However, "a court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights" (Matter of Smith v. Dawn F.B., 88 AD3d 729, 730; see Matter of Welch v. Taylor, 115 AD3d 754, 756; Matter of Torres v. Ojeda, 108 AD3d 570, 571; Matter of Grassi v. Grassi, 28 AD3d 482, 483). The rationale underlying this rule is that "a court may not properly delegate to mental health professionals the ultimate determination of whether a parent will be awarded visitation rights," a determination that is properly made by the court (Zafran v. Zafran, 28 AD3d at 757). Therefore, the Supreme Court properly denied that branch of the defendant's motion which was to direct the plaintiff to undergo a psychiatric evaluation as a condition of continued visitation with the parties' child."

Friday, November 6, 2015

Thursday, November 5, 2015


I was just one of dozens of volunteer attorneys that day.  It was a wonderful experience.

Wednesday, November 4, 2015


McIntosh v. Clary, 129 A.D.3d 1392, 12 N.Y.S.3d 356 (Third Dept. 2015):

"The parties are the parents of four children, born in 2005, 2006, 2008 and 2009. Since 2010, petitioner (hereinafter the mother) has had sole custody of the children pursuant to an order that permitted respondent (hereinafter the father), who was incarcerated, to have telephonic contact with the children. In 2012, after a fact-finding and Lincoln hearing, Family Court determined that the telephone calls were emotionally distressing to the children and granted the mother's petition to modify the order by limiting the father's contact to monthly, monitored written communication with the two oldest children.FN1 Ten months later, the father commenced this proceeding to modify the 2012 order, seeking prison visitation and reinstating telephonic contact with the two oldest children. Family Court granted the mother's motion to dismiss the petition for failure to allege a change in circumstances. The father now appeals .FN2

We affirm. As the party seeking to modify a recent, existing visitation order, "the father was required to provide sufficient evidence in support of the petition to show that there had been a change in circumstances demonstrating a real need for a change to ensure the children's best interests" (Matter of Hall v. Hall, 61 AD3d 1284, 1285 [2009]; see Matter of Ruple v. Cullen, 115 AD3d 1123, 1123 [2014]). The only changes in circumstances alleged in the father's petition were that he had received a certificate for attending substance abuse meetings and positive inmate progress reports and completed vocational training, and that his request for the children to participate in a prison program had been denied. Even accepting these allegations as true, they do not set forth a change in circumstances that would warrant the relief sought (see Matter of Januszka v. Januszka, 90 AD3d 1253, 1254 [2011]). The bare fact that the father had availed himself of prison services did not require a reexamination of the childrens' best interests, particularly where the changes alleged do not address their emotional reaction to telephonic communication from the father, which was the reason for limiting contact in the 2012 order. Moreover, although the father was allowed monthly communication with the two oldest children, he had written to them on only two occasions in the 10 months that had elapsed between the 2012 order and this proceeding. Given the circumstances, Family Court did not err in dismissing the petition without an evidentiary hearing (see Matter of Marquis v. Washington, 86 AD3d 753, 754 [2011]; Matter of Heater v. Heater, 81 AD3d 1017, 1017 [2011]).

FN1. We subsequently affirmed this order (Matter of Clary v. McIntosh, 117 AD3d 1285, 1286 [2014]).

FN2. Inasmuch as the father has been released to parole supervision, his request for visitation at the prison is moot (see Matter of Samantha WW. v. Gerald XX., 107 AD3d 1313, 1315 [2013])."

Monday, November 2, 2015


In this month's ABA Journal, there is an article on the 1936 trial of Lucky Luciano. Moses Polakoff, Luciano’s longtime attorney, worked on the case along with criminal counsel George Morton Levy.

In the early 1979-1980, I was an associate to Berman & Zivyak and next door to my office was Moses Polakoff. One of my duties as an associate, was to assist Mr. Polakoff on various matters.

And that's the extent of my connection to organized crime and Lucky Luciano. By the way, Mr. Polakoff would never discuss his representation of Luciano and, of course, I was forbidden to ask.

Friday, October 30, 2015


Terasaka v. Terasaka, 130 A.D.3d 1474, 13 N.Y.S.3d 740 (Fourth Dept. 2015):

"We reject defendant's contention that Supreme Court erred in determining that the disputed trust account, funded with plaintiff's premarital property and property acquired by gift or inheritance, was plaintiff's separate property. It is well settled that separate property that is " ‘commingled with marital property or is subsequently titled in the joint names of the spouses is presumed to be marital property’ " (Gately v. Gately, 113 AD3d 1093, 1094, lv dismissed 23 NY3d 1048), and that "[t]he party seeking a finding of separate property has the burden of rebutting that presumption" (id.). Here, the uncontroverted evidence at trial "trace[d] the source of the [commingled] funds ... with sufficient particularity to rebut the presumption that they were marital property" (id. at 1903 [internal quotation marks omitted]). Defendant stipulated to the introduction in evidence of the forensic accounting report prepared by plaintiff's accountant "subject to whatever legal arguments either party may advance" regarding certain aspects of the report. Furthermore, plaintiff's accountant was the only expert witness who testified regarding the report and the ability to distinguish plaintiff's separate property from the parties' marital property even after they were commingled. Plaintiff also rebutted the presumption that the commingled separate property is now marital property by establishing that her transfer of her separate funds into a marital checking account for 95 days was merely a convenient means of transferring her separate funds into her trust account (see Noble v. Noble, 78 AD3d 1386, 1389). Furthermore, the marital checking account in which the funds at issue were commingled was held only in plaintiff's name (see Chamberlain v. Chamberlain, 24 AD3d 589, 593)."

Thursday, October 29, 2015


At the Nassau County Bar Association, today, October 29. 3-7 p.m.

Volunteer attorneys (like myself) to meet one-on-one with a Nassau resident to provide legal information and referral.

Please call Gale Berg 516-747-4070.