Friday, December 9, 2016

WHAT KIND OF COUNTERCLAIMS CAN A TENANT ASSERT IN A HOLDOVER PROCEEDING



537 Greenwich LLC v Chista, Inc., 19 Misc 3d 1133(A) (2008 - Civil Court Of The City Of New York, New York County):

”CPLR § 407 authorizes a court at any time to sever a counterclaim in a special or summary proceeding to continue as a plenary action. Where a tenant's counterclaim in a holdover proceeding is not inextricably intertwined with the landlord's main claim for possession, it should be severed from the summary proceeding as it may inordinately delay the summary nature of the special proceeding. Sutton Fifty-Six Co. v Fridecky, 93 AD2d 720 (1st Dept 1983). "Where the counterclaim has nothing whatsoever to do with the issue of whether the landlord is entitled to possession of his property, the counterclaim ought not be considered. Under such circumstances, the court should sever the counterclaim from the proceeding. Summary proceedings are special proceedings and under CPLR 407, the court may at any time order a severance." 3 Rasch, New York Landlord and Tenant §43:43 (4th ed. 1992)....In this case, this Court exercises its discretion to sever respondent's ....Counterclaims as they are not inextricably intertwined with petitioner's main claim for possession and would inordinately delay this summary proceeding.”

Thursday, December 8, 2016

NEW YORK RESIDENT FORECLOSURE BILL OF RIGHTS



Governor Andrew M. Cuomo yesterday announced the Department of Financial Services has published a Consumer Bill of Rights for New Yorkers facing foreclosure. Additionally, DFS has also finalized a regulation protecting communities from the blight of “zombie properties” by requiring banks and mortgage servicers to report and maintain vacant and abandoned properties.

Residential Foreclosure Actions Consumer Bill of Rights

This Consumer Bill of Rights provides guidance to homeowners facing foreclosure in New York. A foreclosure is a lawsuit, and homeowners should seek assistance from an attorney or housing counselor in exploring potential legal defenses to the suit. Homeowners should also know their general rights and obligations highlighted below.

Throughout the Foreclosure Process

You have the right to stay in your home and the duty to maintain your property unless and until a court orders you to vacate. If you abandon your home, the plaintiff (bank or mortgage servicer) may be able to foreclose on your property through an expedited process in court. To prevent this outcome, stay in your home and carefully review and respond to documents you receive from the plaintiff or the court in your foreclosure case. A failure to respond or appear in court when required to do so could make it easier for the plaintiff to show that your property is vacant and abandoned, which could put you at risk of an expedited foreclosure.
You have a right to be represented by an attorney andmay be eligible for free legal or housing counseling services. For free legal services available in your area, visit “Consumers, Mortgage and Foreclosure” on the New York State Department of Financial Services website at www.dfs.ny.gov.

You have a right to be free from harassment or foreclosure scams. Strongly consider consulting with an attorney or housing counselor, if available, before signing any papers. If you are the target of harassment or fraud, contact the New York State Department of Financial Services either online or by calling the Consumer Hotline at (800) 342-3736.
You have a right to avoid foreclosure if you repay your loan in full at any time prior to the sale of your home, or if you negotiate a settlement with the plaintiff.

Before a Foreclosure Action Begins in Court

You have a right to be notified at least 90 days before a foreclosure suit is filed informing you that you are in default and at risk of foreclosure.

You have the right to explore “loss mitigation” options that may allow you to keep your home and avoid litigation. The bank or mortgage servicer is required to help you understand your loss mitigation options.

If you have submitted a completed loss mitigation application, your bank or mortgage servicer must finish its review of your application before proceeding with the foreclosure suit.

Once a Foreclosure Action Begins

You have the right to receive a copy of the legal papers in the foreclosure lawsuit when it begins. This is known as “service” of the Summons and Complaint.

You must respond to the Summons and Complaint with an “Answer” within 20 days after you have been personally served, and within 30 days if served on you by other means. The Answer is your opportunity to state your defenses. You should consult with an attorney or housing counselor for help in this process.

You have a right to participate in all court proceedings related to your case, including the mandatory settlement conference, which is required by New York law. For information about the mandatory settlement conference, visit the “Mandatory Settlement Conference” section of the New York State Department of Financial Services website located at www.dfs.ny.gov.
You have an obligation to appear at all scheduled court appearances. If you fail to appear, you risk losing important rights, which could lead to the loss of the case and your home.
You have a right to request court permission to proceed without paying court costs.

At the Mandatory Settlement Conference

You have a right to an explanation of the nature of the foreclosure action against you.

Both parties have an obligation to bring all necessary documents to the settlement conference. For a general list of required documents, visit the “Mandatory Settlement Conference” section of the New York State Department of Financial Services website located at www.dfs.ny.gov.

Both parties must negotiate in “good faith”, which means honestly and fairly. If you fail to do so, you may lose the opportunity to pursue a court-supervised settlement. If the bank or mortgage servicer fails to do so, the court may impose similarly significant penalties. Negotiating in good faith does not require either party to settle.

If you previously failed to submit an Answer, you will be given an extra 30 days to do so at the settlement conference.

After Settlement Agreement or Fully Executed Loss Mitigation Agreement

Within 90 days of finalizing a settlement, the lis pendens designation on your property, which warns people that title to your property is in dispute, must be lifted.

You may be responsible for additional taxes if you reach a settlement that includes debt forgiveness. Seek advice from a tax professional about any resulting tax consequences.

After Judgment of Foreclosure & Sale

Upon a judgment of foreclosure and sale, the new owner can seek to evict you from the property.

If the home is resold for more than what you owe, you have a right to file an application with the court for the surplus funds, subject to certain deadlines. It is important to seek help from a legal service provider if you believe you are owed a surplus.

If the home is sold for less than what you owe, the lender may file an application for a judgment against you for the difference, known as a deficiency judgment. You may have the right to contest the amount of any deficiency judgment, including interest and penalties.

Wednesday, December 7, 2016

SELF HELP EVICTIONS



RPAPL § 711 provides that an individual who has resided at a premises for thirty consecutive days or longer may not be removed from the premises without a special proceeding, warrant of eviction or court order. Thus, an individual who does not fall under that protection can be evicted by a peaceful self-help. See TANTARO v. COMMON GROUND COMMUNITY HOUS. DEV. FUND, INC., 2015 NY Slip Op 31379 - NY: Supreme Court 2015:

"Plaintiff was no more than a "licensee," who was properly restricted from the building pursuant to Common Ground's Visitor Policy. See generally Korelis v Fass, 26 Misc.3d 133(A) (App. Term 1st Dep't 2010) (judgment after trial dismissing petition seeking restoration to an apartment affirmed, as petitioner "was only a licensee — and therefore had no independent right to possession of the apartment"). Notably, plaintiff takes no issue with Common Ground's Visitor Policy; her apparent claim is that the policy did not apply to her. Plaintiff's argument that the Court misapprehended controlling law in concluding that Common Ground could engage in peaceful self-help to evict plaintiff, a residential "licensee," because it relied on cases involving self-help eviction of commercial licensees, is unavailing. Indeed, appellate authority cited by plaintiff herself makes clear that the common-law remedy of peaceful self-help in evicting non-tenants, who have not established that they are lawful occupants or permanent tenants, applies equally to residential and commercial landlords alike. See Almonte v City of New York, 166 Misc.2d 376-377 (App. Term, 2nd Dep't 1995); see also P&A Bros. v City of N.Y. Dept. of Parks & Recreation, 184 AD2d 267, 268-269 (1st Dep't 1992) ("non-tenants may be removed summarily so long as it is done without violence"). And plaintiff cites no legal authority to support her apparent claim that the self-help remedy is only available for "squatters," such as those in Paulino v Wright, 210 AD2d 171 (1st Dep't 1994), and not "licensees.""

If an individual does fall within RPAPL 711 protection, can that protection be waived? In McCormick v Resurrection Homes 2012 NY Slip Op 22384 Decided on December 19, 2012 Civil Court Of The City Of New York, Kings County Scheckowitz, J:

"The court finds that provision in the resident agreement permitting self-help is unenforceable and that petitioner was illegally evicted from the premises without due process of law. RPAPL § 711 and NYC Administrative Code § 26-521 are clear that any individual who resided at a premises from more than thirty days is entitled to due process of law prior to eviction. Here, respondent admittedly engaged in self-help without seeking a court order or the assistance of a New York City marshal or sheriff prior to removing petitioner from the premises. Respondent does not cite any authority that indicates that their particular housing accommodation is a special class of housing that is exempt from following these laws. Ms. Jackson also testified that respondent commenced a companion non-payment proceeding against petitioner, Resurrection Homes v. Ebony McCormick, under L & T Index Number 86787/12. By filing the proceeding against Ms. McCormick respondent recognized her rights as a tenant at the premises.

The court also finds that the resident agreement is an unconscionable contract of adhesion; a contract drafted by a party with superior bargaining power and is offered to a party who does not have the option of negotiating the terms. See Finkel and Ross v. A.G. Becker, 622 F. Supp. 1505 (S.D.N.Y 1985). Recently, this court was presented with a similar issue in Davidson v. House of Hope, L & T 19600/12; NYLJ 11/28/12, 1202579307267 (Civ. Ct. Kings Co.). In Davidson, petitioner had signed a "Waiver of Tenant Rights" with respondent, a purported transitional support residence for men with mental impairment and substance abuse issues. The agreement provided that petitioner wa s not a tenant and did not have the right to stay at the property if asked to leave. This court found that the agreement was unenforceable because it ostensibly waived petitioner's right to receive due process of law prior to being evicted. This court also rejected the respondent's argument that as a transitional facility it had the right to evict petitioner without commencing a summary holdover proceeding because a typical landlord-tenant relationship had never been created.

The same determination was made by the court in Wright v. Lewis 21 Misc 3d 1120(A) (Sup. Ct. Kings Co. 2008). In Wright a residency agreement, in a two family house in this county, provided that residents were not tenants of a room but were clients of a sober recovery residence and could be evicted without court process. The court found that the agreement was an unenforceable contract of adhesion because it contained terms that were unfair and arose from a disparity of bargaining power or oppressive tactics and waived the residents' statutory tenancy rights. Wright v. Lewis, 21 Misc 3d 1120(A) (Sup. Ct. Kings Co. 2008) quoting Love M/Sheltering, Inc. v. County of Suffolk, 33 AD3d 923, 924 (2nd Dept. 2006); See also Rock v. Klepper, 23 Misc 3d 1103(A) (Plattsburg City Ct. 2009);"

Tuesday, December 6, 2016

NEW TELEMARKETING PROVISIONS



This past week, new telemarketing restrictions were enacted by amending section 399-z and section 399-pp of the general business law with, in part,the following provisions:

"IT SHALL BE UNLAWFUL FOR ANY TELEMARKETER OR SELLER TO CAUSE ANY CALLER IDENTIFICATION SERVICE TO KNOWINGLY TRANSMIT MISLEADING, INACCURATE, OR FALSE CALLER IDENTIFICATION INFORMATION, PROVIDED THAT IT SHALL NOT BE A VIOLATION TO SUBSTITUTE (FOR THE NAME AND PHONE NUMBER USED IN, OR BILLED FOR, MAKING THE CALL) THE NAME OR TELEPHONE NUMBER OF THE PERSON OR SELLER ON BEHALF OF WHICH A TELEMARKETING CALL IS PLACED."

However, how is this to be enforced? The Givernor's press release of December 1, 2016 states:

"The Division of Consumer Protection staff will be deployed across the State to educate New Yorkers, help them place their phone numbers on the National Do Not Call Registry, and facilitate same-day consumer complaint filing in the face of deceptive new telemarketing tactics. Recently, telemarketers have repeatedly called consumers from the same phone number without leaving voicemail, giving the impression the call is from someone the consumer may know. When the consumer returns the call, they receive an unwanted sales pitch. The Division has already warned telemarketers that the this type of practice still constitutes a violation of the Do Not Call law if the repeated calls are being made to a phone number enlisted on the Do Not Call Registry.

The Division reminds consumers to report each and every unwanted call. Here are guidelines to place your phone number on the Do Not Call Registry and to file a complaint:
  • File a Do Not Call complaint. If you receive an unsolicited telemarketing call after your number has been on the Do Not Call Registry for more than 31 days, you can file a Do Not Call complaint with the Federal Trade Commission online at https://www.donotcall.gov or by calling 1-888-382-1222 (TTY 1-866-290-4236).
  • File a complaint for each unwanted call. If your number is registered, you can and should file a complaint for every unsolicited telemarketing call you receive. Violators of the Do Not Call Law are subject to an $11,000 fine for every call  they make to your phone.
  • Register for Do Not Call online or by phone. If you are not registered, you can place your home landline or mobile phone number on the Do Not Call Registry online at https://www.donotcall.gov or by calling 1-888-382-1222 (TTY 1-866-290-4236). Once you register your phone number, telemarketers not exempt from the Do Not Call Registry have up to 31 days from the date you register to stop calling you. Exemptions from the Do Not Call Law include calls from or on behalf of political organizations, charities, and telephone surveyors. Companies with which you have an existing business relationship may still call you for up to 18 months (unless you ask them to place your number on their own do-not-call list).
  • For information about a Do Not Call outreach location near you, visit http://www.dos.ny.gov/consumerprotection/informing/donotcalloutreachlocations.htm."

Monday, December 5, 2016

WHEN BUYING A HOME



Consider, in addition to your regular pre-contract inspection, a C. L. U. E. report.

From Bankrate.com


"A home's CLUE loss history report provides insurance company names and policy numbers and any claim numbers. The report lists the dates of any claims, the loss types and amounts paid for losses, and it will tell if a claim was denied.

Weather-related losses, fires, theft, vandalism and water damage are some of the types of claims listed, says Passmore. But the report doesn't indicate what part of the property or home was affected. You'd need to ask the homeowner for those details.
 

A report might be blank, for two reasons:

  • The homeowner did not make any claims in the past seven years.
  • The home was covered by an insurance company that doesn't participate in CLUE.
"Claims for the property under a different owner also won't be included either, and therefore not considered when rated for insurance," says Jeffrey Ill, a vice president for homeowners insurance at Esurance in San Francisco.

How to get a CLUE

A free CLUE report can be obtained once a year from database giant LexisNexis. Requests can be made online or by calling (866) 312-8076.

Here's the catch for a homebuyer: Only the owner of a property may access its CLUE report.

"You must request the report from the owner of the home you're considering buying," says Karl Newman, president of the NW Insurance Council in Seattle.

Newman says a savvy seller should obtain a CLUE report before showing the home, make several copies and have those available for potential buyers.

Even a homeowner who's not in the market to sell may want to get a CLUE report -- to check for any inaccuracies.

"Since the CLUE report is one of many pieces of information that an insurer might look at, what is in the report can influence your premiums positively or negatively," says Passmore. "So if there are any inaccuracies, it's important to get them corrected, just as it would be for your credit report."

Friday, December 2, 2016

A MOST UNUSUAL CUSTODY CASE



In this matter, the court stated:

"This case is unlike even the most horrendous cases of abuse and neglect that Family Court Judges must preside over. In most of these cases, the parent's behavior is either negligent or performed during extreme rage. Attempting to kill one's own child in a calculated, cold-blooded manner is a rarity...."

The case was reported by the New York Post in September (http://nypost.com/2016/09/20/perfect-suburban-family-torn-apart-by-moms-dark-secrets/)

The full decision can be found here: MC v. DC, 2016 NY Slip Op 51255 - NY: Supreme Court 2016

NOTE: This matter started in 2014. Both parents appeared to have had counsel, about 9 motions were made prior to trial, but it appears both parties proceeded pro se by the time of the trial.

Thursday, December 1, 2016

ALERT TO NEW YORK ATTORNEYS RE: SCAM



From the New York State Attorney General's Office:


NEW YORK — Attorney General Eric T. Schneiderman today issued a consumer alert following recent reports that hackers are targeting attorneys in New York pretending to be representatives of his office.  Attorneys are receiving email claiming that their business was subject of a complaint for which they have 10 days to respond.  The email includes a hyperlink to the “complaint” but in reality it links to a website that installs malicious software on the person’s computer.

An example of the email is below. If you receive this email, do not click on the link and delete it immediately.    

---------- Forwarded message ----------
From: The Office of The State Attorney <com.department@outlook.com>Date: Wed, Nov 30, 2016 at 10:37 AMSubject: The Office of The State Attorney ComplaintTo: Bar Member
Dear Bar Member:
A complaint has been filed against your Business.
Enclosed is a copy of the complaint which requires your response. You have 10 days to file a rebuttal if you so desire.
You may view the complaint at the link below.
complaint88947.pdf 
Rebuttals should not exceed 15 pages and may refer to any additional documents or exhibits that are available on request.
The Office of The State Attorney cannot render legal advice nor can The Office of The State Attorney represent individuals or intervene on their behalf in any civil or criminal matter.
Please review the enclosed complaint. If filing a rebuttal please do so during the specified time frame.
Sincerely,
The Office of The State Attorney

Attorney General Schneiderman issues the following additional tips when handling suspicious email:   
  1. Use Caution When Opening Email: It is better to err on the side of caution and not open any email, and in particular clicking on a hyperlink in the email, that you do not recognize. Unless you are confident that a particular message is legitimate, assume it is not. You should never provide personal information via email to anyone and you should not reply directly to the email in question.
  1. Call the Sender: Instead of opening the suspicious email, you may simply delete the email and call the sender. Call the purported senders customer service number and explain what the email stated to verify its authenticity.
  1. Use the latest Anti-Virus software: You should have the latest anti-virus software updated with the latest virus definitions running on your computer at all times. Additionally, the latest generation web browsers have additional protections including against phishing attacks. These browsers will analyze web sites and compare them against known or suspected phishing sites and warn you if the site you are visiting may be malicious or illegitimate. 
  1. Report Suspicious Activity: If you receive emails that are part of a phishing scam or even seem suspicious you should report them. Report suspicious e-mails to your ISP, well-known spam filters and the Federal Trade Commission (FTC) at www.ftc.gov."

Wednesday, November 30, 2016

WHAT IS BAD FAITH IN FORECLOSURE SETTLEMENT CONFERENCES



M&T BANK v. ARCATE, 2016 NY Slip Op 32201 - NY: Supreme Court 2016:

"CPLR 3408 mandates that the court hold a settlement conference in a residential foreclosure action. The statute requires that the parties to a foreclosure action must "negotiate in good faith to reach a mutually agreeable resolution including a loan modification, if possible." A determination of whether a party breached the duty to negotiate in good faith must be based on the totality of the circumstances taking into account that CPLR 3408 is a remedial statute (Citibank, N.A. v. Barclay, 124 AD3d 174, 176, 999 NYS2d 375, 377 (1st Dept., 2014); U.S. Bank, N.A. v. Sarmiento, 121 AD3d 187, 991 NYS2d 68 (2nd Dept., 2014)). The test for determining whether a party participated in good faith in the CPLR 3408 process is clearly one of reasonableness taking into considerations the actions taken by the parties engaging in the settlement conference.

.......

 With respect to the issue of "bad faith" there is insufficient proof that the bank acted in "bad faith" during the negotiating process at the mandatory court settlement conferences. Court records indicate that settlement conferences were conducted on August 1, 2013; September 19, 2013; November 25, 2013, December 9, 2013 and March 7, 2014 when the action was marked "not settled". There is no indication that the court attorneys/referees responsible for conducting the conferences considered the conduct of either party as acting in bad faith. While there is evidence of confusion between the parties concerning the amounts due under proposed modification plans offered during the course of negotiations, the record does not show that the bank representatives acted in "bad faith" during negotiations, or for the reason that the bank was unwilling to consent to the terms the defendant claimed she could afford. Under these circumstances no valid basis exists sufficient to warrant imposition of sanctions, or to reschedule additional settlement conferences as the defendant was afforded multiple opportunities to modify the loan which were not acceptable to her."

Tuesday, November 29, 2016

FAMILY LAW - MENTAL ILLNESS AND REMOVAL OF CHILD



MATTER OF GAVIN S., 2016 NY Slip Op 51234 - NY: Family Court 2016:

"FCA §1027 provides that if, after a hearing, "the court finds that removal is necessary to avoid imminent risk to the child's life or health, it shall remove or continue the removal of the child." FCA § 1028, provides that, upon the application of a parent for the return of his or her child who has been removed from his or her care, and following a hearing, "the court shall grant the application unless it finds that the return presents an imminent risk to the child's life or health." In either case, the court must determine if the child's "life or health" would be at "imminent risk" of harm in the respondent's custody and, additionally, whether remaining in or returning to the home would be contrary to the child's best interests (FCA§1027(a)(I); FCA§1028(b); Nicholson v. Scoppetta, 3 NY3d 357, 377 [2004]).

"In order to justify a finding of imminent risk to life or health ... an agency need not prove that the child has suffered actual injury. Rather, a court engages in a fact-intensive inquiry to determine whether the child's [physical or] emotional health is at risk" (Nicholson, 3 NY3d at 377). In reaching its determination, the "court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal; [i]t must balance [the risk to the child's life or health] against the harm removal might bring; and it must determine factually which course is in the child's best interests" (id. at 378); see also Matter of DeAndre S. (Latoya F. S.), 92 AD3d 888 [2d Dept. 2012]). The language and legislative history of the statute establish that "a blanket presumption favoring removal was never intended" (Nicholson, 3 NY3d at 378; see also Matter of Jesse J. v. Joann K., 64 AD3d 598, 599 [2d Dept 2009]). The Legislature placed "increased emphasis on preventive services designed to maintain family relationships rather than responding to children and families in trouble only by removing the child from the family" (Mark G. v Sabol, 93 NY2d 710, 719 [1999]; see also Nicholson, 3 NY3d at 374).

A mental illness that causes a parent to act in a way that presents an imminent risk to his or her child's life or health may support a removal of the child from the parent's care under FCA §1027, just as a finding of neglect under FCA §1012 may be predicated "upon proof that a child's physical, mental, or emotional condition was impaired or was placed in imminent danger of becoming impaired as a result of a parent's mental illness" (see, e.g., Matter of Soma H., 306 AD2d 531[ 2d Dept 2003]). However, just as "proof of mental illness alone will not support a finding of neglect" (Matter of Joseph A. [Fausat O.], 91 AD3d 638, 640, [2d Dept 2012]), neither will it support a removal of the child from the parent's care in the absence of evidence that the parent's illness creates an imminent risk to the child's life or health. As the Court of Appeals cautioned in Nicholson, "[t]he plain language of [FCA§1027] and the legislative history supporting it establish that a blanket presumption favoring removal was never intended. The court must do more than identify the existence of a risk of serious harm." (3 NY3d at 378 [emphasis in original]). There must be proof of an identifiable, specific, serious and imminent risk to the life or health of the child (see Nicholson, 3 NY3d at 377 [the court must engage "in a fact-intensive inquiry" to determine whether the child's life or health is at risk]) caused by the parent's mental illness. In determining whether removal is necessary to avoid imminent risk to the child's life or health, the statute also requires the court to consider "whether continuation in the child's home would be contrary to the best interests of the child and where appropriate, whether reasonable efforts were made ... to prevent or eliminate the need for removal...." (FCA§1027(b)(ii)). In sum, if the court determines that an imminent risk to the child's life or health exists, it "must weigh, in the factual setting before it, whether the ... risk to the child can be mitigated by reasonable efforts to avoid removal, ... balance that risk against the harm removal might bring, and ... determine factually which course is in the child's best interests" (Nicholson, 3 NY3d at 378; see also Matter of Baby Boy D. (Adanna C.), 127 AD3d 1079 [2d Dept. 2015]).The Court in Nicholson also stressed that "imminent" means "near or impending, not merely possible" (3 NY3d at 369; see also Baby Boy D., 127 AD3d at 1080 ("imminent" risk must be shown to justify removal).

......

As previously noted, a parent's mental illness, standing alone, is not a basis for a neglect finding (Matter of Joseph A., supra, 91 AD3d at 640). A fortiori, it does not justify removal of a child from his parent's care in the absence of evidence that the child's life or health is in imminent risk of harm as a result of that illness (cf. Nicholson, 3 NY3d at 375 (exposure of a child to domestic violence is not presumptively neglectful, so "a fortiori, [it] is not presumptively ground for removal, and in many instances removal may do more harm to the child than good"). Where no such imminent risk has been shown, a removed child must be returned to the parent (see, e.g., In the Matter of Jeremiah L., 45 AD3d 771 [2d Dept. 2007]; FCA§1028(a) ("court shall grant the application [for return of a child], unless it finds that the return presents an imminent risk to the child's life or health") [emphasis added]). ACS's speculative concern that Ms. S might have be hospitalized again for her mental illness cannot serve as a basis for a finding of "imminent risk" (see Baby Boy D., 127 AD3d at 1080 [speculation that the mother might not enforce an order of protection against the father could not support a finding of imminent risk to the child's life or health]), particularly when she has been consistent with all aspects of her mental health treatment and has cooperated with the services that were put in place for her and Gavin.

As ACS failed to establish that Gavin's life or health were ever placed in imminent risk as a result of Ms. S's mental illness, ACS's application under FCA§1027 must be denied, and Gavin must be returned to his mother....."

Monday, November 28, 2016

DIVORCE - VACATING A DEFAULT



This can arise in various situations in a matrimonial matter e.g. failure to file an answer or a motion. The policy of the courts has been recently set forth in FLORESTAL v. COLEMAN-FLORESTAL, 2016 NY Slip Op 5789 - NY: Appellate Div., 2nd Dept. 2016:

" "While a party attempting to vacate a default must establish both a reasonable excuse for the default and a potentially meritorious cause of action, defense, or opposition to a motion, this Court has adopted a liberal policy with respect to vacating defaults in matrimonial matters because the State's interest in the marital res and related issues favors dispositions on the merits" (Backhaus v Backhaus, 128 AD3d 872, 872-873; see Alam v Alam, 123 AD3d 1066, 1067)."

Wednesday, November 23, 2016

HAPPY THANKSGIVING




From the National Archives:

"On September 28, 1789, just before leaving for recess, the first Federal Congress passed a resolution asking that the President of the United States recommend to the nation a day of thanksgiving. A few days later, President George Washington issued a proclamation naming Thursday, November 26, 1789 as a "Day of Publick Thanksgivin" - the first time Thanksgiving was celebrated under the new Constitution. Subsequent presidents issued Thanksgiving Proclamations, but the dates and even months of the celebrations varied. It wasn't until President Abraham Lincoln's 1863 Proclamation that Thanksgiving was regularly commemorated each year on the last Thursday of November.

In 1939, however, the last Thursday in November fell on the last day of the month. Concerned that the shortened Christmas shopping season might dampen the economic recovery, President Franklin D. Roosevelt issued a Presidential Proclamation moving Thanksgiving to the second to last Thursday of November. As a result of the proclamation, 32 states issued similar proclamations while 16 states refused to accept the change and proclaimed Thanksgiving to be the last Thursday in November. For two years two days were celebrated as Thanksgiving - the President and part of the nation celebrated it on the second to last Thursday in November, while the rest of the country celebrated it the following week.
To end the confusion, Congress decided to set a fixed-date for the holiday. On October 6, 1941, the House passed a joint resolution declaring the last Thursday in November to be the legal Thanksgiving Day. The Senate, however, amended the resolution establishing the holiday as the fourth Thursday, which would take into account those years when November has five Thursdays. The House agreed to the amendment, and President Roosevelt signed the resolution on December 26, 1941, thus establishing the fourth Thursday in November as the Federal Thanksgiving Day holiday."

Tuesday, November 22, 2016

COLLECTING RENT ON AN ILLEGAL APARTMENT



LISPENARD STUDIO CORP. v. Loeb, 2016 NY Slip Op 30945 - NY: City Court, Civil Court 2016:

"A substantial body of law supports the proposition that MDL §302 rent forfeiture provisions do not apply if the tenant was complicit in the existence and maintenance of an illegal apartment, Zane v. Kellner, 240 A.D.2d 208, 209 (1st Dept. 1997), 58 E. 130th St. LLC v. Mouton, 25 Misc. 3d 509, 511 (Civ. Ct. N.Y. Co. 2009), citing, Zafra v. Sawchuk, N.Y.L.J., Jan. 9, 1995, at 27:2 (App. Term 1st Dept), if the tenants knew that their occupancy was illegal, Zane, supra, 240 A.D.2d at 209, Eli Haddad Corp. v. Cal Redmond Studio, 102 A.D.2d 730 (1st Dept. 1984), Lipkis v. Pikus, 99 Misc.2d 518, 520 (App. Term 1st Dept. 1979), aff'd, 72 A.D.2d 697 (1st Dept 1979), appeal dismissed, 51 N.Y.2d 874 (1980), Dodds v. 1926 Third Ave. Realty Corp., 2011 N.Y. Misc. LEXIS 3921 (S. Ct. N.Y. Co. 2011), if the tenants somehow prevented the legalization, Chatsworth 72nd Street Corp. v. Rigai, 71 Misc. 2d 647, 651 (Civ. Ct. N.Y. Co. 1972), aff'd, 74 Misc.2d 298 (App. Term 1st Dept.), aff'd, 43 A.D.2d 685 (1st Dept. 1973), aff'd on the opinion of the Civil Court of the City of New York, 35 N.Y.2d 984, 895 (1975), First Edition Composite, Inc. v. Wilkson, 177 A.D.2d 297, 299 (1st Dept. 1991), Hornfeld v. Gaare, 130 A.D.2d 398, 400 (1st Dept. 1987), Amdar v. Armenti, N.Y.L.J. June 23, 1994 at 28:4 (App. Term 1st Dept.), or if the subject premises do not pose a threat to the tenant's health and safety. Zane, supra, 240 A.D.2d at 209, Dogwood Residential, LLC v. Stable 49, Ltd., 2016 N.Y. Misc. LEXIS 1362 (S. Ct. N.Y. Co. 2016), citing Beneficial Cap. Corp. v. Richardson, No. 92 Civ. 3785, 1995 US Dist LEXIS 7354 (S.D.N.Y. 1995).

This authority relies upon an "abandon[ment of] a literal application of MDL §302 in favor of allowing equity to control in order to avoid a tenant's unjust enrichment," as one Court put it. B.S.L. One Owners Corp. v. Rubenstein, 159 Misc.2d 903, 908 (Civ. Ct. Richmond Co. 1994). However, a recent Court of Appeals case rejects the abandonment of a literal application of MDL §302. Chazon, LLC v. Maugenest, 19 N.Y.3d 410, 415-16 (2012)("[i]n the absence of compliance, the law's command is quite clear . . . [judicially-carved-out exceptions to MDL §302] may make sense from a practical point of view. But we find nothing . . . to explain how they can be reconciled with the text of the statute. They simply cannot. . . . If that is an undesirable result, the problem is one to be addressed by the Legislature"). The Court's strict application of MDL §302 appears to render the rest of the authority standing for a different result without effect. Accord, 742 Realty LLC v. Zimmer, 46 Misc.3d 1204(A) (Civ. Ct. N.Y. Co. 2014), citing Caldwell v. American Package Company, Inc., 57 AD3d 15, 26, 866 N.Y.S.2d 275 (2nd Dept. 2008).

Petitioner argues that Phillips & Huyler Assocs. v. Flynn, 225 A.D.2d 475 (1st Dept. 1996) compels a different result, insofar as it holds that application of MDL §302 could unjustly enrich a tenant. However, not only does this ruling pre-date Chazon, LLC, supra, 19 N.Y.3d at 410, not only does this ruling come from a Court lower than the Court in Chazon, LLC, supra, 19 N.Y.3d at 410, but this ruling favors the position of a commercial landlord, not a residential landlord. MDL §302 evinces a limited application to residential tenants. 455 Second Ave. LLC v. NY Sch. of Dog Grooming, Inc., 37 Misc.3d 933, 936 (Civ. Ct. N.Y. Co. 2012).

Another argument against application of MDL §302 to this proceeding is that the parties have contracted that Respondents were the parties responsible for legalizing their occupancy of the subject premises. Contracts between cooperatives and shareholders valid, Kenneth D. Laub & Co. v. Bear Stearns Cos., 262 A.D.2d 36 (1st Dept. 1999), and indeed, include elements of self-determination not found in leases for apartments in privately-owned buildings, as shareholders devise by policy themselves through a board of directors elected by them. 930 Fifth Corp. v. King, 71 Misc.2d 359, 364 (App. Term 1st 1972).[3] However, the default proposition is that a cooperative, rather than an individual shareholder, bears responsibility for obtaining a residential certificate of occupancy. O'Flaherty v. Schwimmer, 158 Misc.2d 420, 424-425 (S. Ct. N.Y. Co. 1993)(Tom, J.), unanimously affirmed for the reasons stated, 208 A.D.2d 425 (1st Dept. 1994). The proposition that the parties can shift this responsibility rests upon the premise that a tenant's rights as defined by MDL §302 are waivable when, in fact, authority holds that they are not waivable. Dawkins v. Ruff, 10 Misc.3d 88, 89 (App. Term 2nd Dept. 2005), BFN Realty Assocs. v. Cora, 8 Misc.3d 139(A) (App. Term 2nd Dept. 2005), Willoughby Assocs. v. Dance-Lonesome, 2003 N.Y. Misc. LEXIS 822 (App. Term 2nd Dept. 2003).

Petitioner argues that Respondents' hands are "unclean" such as to preclude the relief Respondents seek, relief that Petitioner characterizes as equitable. Petitioner's reasoning is backwards. It is Petitioner that is seeking an equitable relief from the dictates of MDL §302. See B.S.L. One Owners Corp., supra, 159 Misc.2d at 903. The Court of Appeals rejected an "equitable" approach to MDL §302 insofar as it found the statute inconsistent with concerns of unjust enrichment. Chazon, LLC, supra, 19 N.Y.3d at 416.

Chazon, LLC, supra, 19 N.Y.3d at 410, applies MDL §302 to a landlord who has not complied with the legalization schedules set pursuant to MDL §281 et seq., commonly known as the Loft Law. A broad remedial purpose of the Loft Law was to confer rent-stabilized status on legalized interim multiple dwellings. Tan Holding Corp. v. Wallace, 187 Misc.2d 687, 688 (App. Term 1st Dept. 2001), Walsh v. Salva Realty Corp., 2009 N.Y. Misc. LEXIS 6056, 7-8 (S. Ct. N.Y. Co. 2009). As cooperatives cannot be subject to the Rent Stabilization Law, 9 N.Y.C.R.R. §2520.11(1), Loft Law coverage does not apply to owner-occupied cooperatives such as the subject premises, Tri-Land Properties, Inc. v. 115 West 28th St. Corp., 267 A.D.2d 142 (1st Dept. 1999), raising a question about the factual distinction between this matter and the facts of Chazon, LLC, supra, 19 N.Y.3d at 410. However, the Court in Chazon, LLC, supra, 19 N.Y.3d at 410 interpreted MDL §302 on its plain language, employing a canon of interpretation that does not depend on the particular facts of the case. Nothing in the text of MDL §302 restricts such an interpretation solely to a landlord of a property subject to the Loft Law and, indeed, MDL §302 pre-dates the Loft Law."

Monday, November 21, 2016

IS CUSTODY SHARED OR NOT





MATTER OF MITCHELL v. Mitchell, 134 AD 3d 1213 - NY: Appellate Div., 3rd Dept. 2015:

"Initially, we reject the father's argument that Family Court should have determined that he was the child's custodial parent. Generally, the custodial parent for purposes of child support is the parent who has physical custody of a child for the majority of the time "based upon the reality of the situation" (Riemersma v Riemersma, 84 AD3d 1474, 1476 [2011] [internal quotation marks and citation omitted]). If the parenting time is shared equally, then the parent with greater income is deemed to be the noncustodial parent for purposes of calculating child support (see Smith v Smith, 97 AD3d 923, 924 [2012]).

Here, no party disputes the Support Magistrate's conclusion that, during the school year, the child spends an equal number of overnights at each party's home and, during the summer months, the child is with the mother eight nights and the father six nights. Consequently, Family Court determined that because the parents' have "close to equally shared physical custody," the father, as the more monied spouse, was the noncustodial parent. The father contends that he has physical custody of the child a majority of the time because, pursuant to the 2007 order, the child was with him eight full days, six nights and two half days during any 14-day period in the summer months, and, therefore, he should be deemed the custodial parent.[1] The flaw in this argument is that "shared" custody need not be "equal" (Smith v Smith, 97 AD3d at 924). Here, with the exception of the days during the summer weeks when the mother was unavailable and the father was available to exercise parenting time, the custodial schedule was unchanged, and we decline to accord greater weight to the custodial days as compared to the overnight custodial periods (see Matter of Somerville v Somerville, 5 AD3d 878, 880 [2004]). Based on the "reality of the situation" (Riemersma v Riemersma, 84 AD3d at 1476 [internal quotation marks and citation omitted]), as demonstrated by the record, we discern no error in Family Court's determination that the parties shared "close to equally shared physical custody of the child.""

Friday, November 18, 2016

IS CUSTODY SHARED OR NOT




MATTER OF TM v. JK, 2016 NY Slip Op 26315 - NY: Family Court 2016:

"......Respondent's basic visitation schedule consisted of three weekends per month, one night during the week (as agreed), and holidays and vacations (as agreed). For the 2015 calendar year, the evidence (particularly, respondent's exhibit A) showed that the child spent about 33.74 percent of all hours with the father, and thus the child spent about 66.26 percent of all hours with the mother. Respondent's exhibit A also showed that the child spent "40.27 % of all days" with the father, but this percentage is skewed because some of the "days" were not overnights. Courts have declined to accord greater weight to the custodial days as compared to the overnight custodial periods (see, Somerville, id. at 880, and Matter of Mitchell v. Mitchell, 134 AD3d 1213, 1215 [3d Dept 2015]). Clearly, the petitioner is the party with primary physical residence of the child."

Thursday, November 17, 2016

MODIFICATION OF CUSTODY WHEN SIBLINGS ARE INVOLVED



In Cook v. Cook, 2016 NY Slip Op 5743 - NY: Appellate Div., 2nd Dept. 2016, the children were around 12 and 9 at the time of the hearing:


"A party seeking the modification of an existing court-ordered child custody arrangement has the burden of demonstrating that circumstances have changed since the initial custody determination" such that modification is necessary to ensure the children's best interests (Musachio v Musachio, 137 AD3d 881, 882-883; see Matter of Klotz v O'Connor, 124 AD3d 662, 662-663). "In determining whether a custody agreement that was incorporated into a judgment of divorce should be modified, the paramount issue before the court is whether, under the totality of the circumstances, a modification of custody is in the best interests of the [children]" (Matter of Honeywell v Honeywell, 39 AD3d 857, 858; see Anonymous 2011-1 v Anonymous 2011-2, 102 AD3d 640, 641). To determine whether modification of a custody arrangement is in the best interests of the children, the court must weigh several factors of varying degrees of importance, including, inter alia, (1) the original placement of the children, (2) the length of that placement, (3) the children's desires, (4) the relative fitness of the parents, (5) the quality of the home environment, (6) the parental guidance given to the children, (7) the parents' relative financial status, (8) the parents' relative ability to provide for the children's emotional and intellectual development, and (9) the willingness of each parent to assure meaningful contact between the children and the other parent (see Anonymous 2011-1 v Anonymous 2011-2, 136 AD3d 946, 948; Cuccurullo v Cuccurullo, 21 AD3d 983, 984).

Here, the father demonstrated a sufficient change in circumstances to warrant modification of the custody provisions of the settlement agreement so as to award him residential custody of Jonathan. The record supports the Supreme Court's determination that Jonathan's relationship with the mother has deteriorated since the prior custody arrangement was agreed to (see Matter of Burke v Cogan, 122 AD3d 625, 626; Matter of Filippelli v Chant, 40 AD3d 1221, 1222; Matter of Maute v Maute, 228 AD2d 444), and that the father exhibits a greater sensitivity to his emotional and psychological needs, particularly with respect to the environment in Jonathan's new school (see Matter of Dorsa v Dorsa, 90 AD3d 1046, 1047). We discern no reason to disturb the court's determination that the father's testimony was more credible than the mother's testimony. Additionally, the attorney for the children advocated for residential custody to be awarded to the father, since Jonathan, who was 12 years old when the father's petition was filed, communicated a preference to reside with him. While the express wishes of a child are not controlling (see Matter of Ross v Ross, 86 AD3d 615; Matter of Bond v MacLeod, 83 AD3d 1304), the child's wishes should be considered and are entitled to great weight, where, as here, the child's age and maturity would make his input particularly meaningful (see Matter of Coull v Rottman, 131 AD3d 964; Matter of Rosenblatt v Rosenblatt, 129 AD3d 1091; Koppenhoefer v Koppenhoefer, 159 AD2d 113). Accordingly, the court's determination to modify the custody provisions of the settlement agreement so as to award the father residential custody of Jonathan has a sound and substantial basis in the record.

However, the Supreme Court's determination that the evidence did not demonstrate a sufficient change in circumstances warranting modification of the custody provisions of the settlement agreement so as to award the father residential custody of the parties' child Madison is not supported by a sound and substantial basis in the record. It "has long [been] recognized that it is often in the child's best interests to continue to live with his [or her] siblings" (Eschbach v Eschbach, 56 NY2d 167, 173), and "the courts will not disrupt sibling relationships unless there is an overwhelming need to do so" (Matter of Lao v Gonzales, 130 AD3d 624, 625; see Matter of Shannon J. v Aaron P., 111 AD3d 829, 831). It is undisputed that Jonathan and Madison have a close relationship, and, based upon the recommendations of the children's therapist that they should not be separated, the position of the attorney for the children that they should remain with the same custodial parent, and evidence that the father demonstrated more of an ability and willingness to assure meaningful contact between the children and the mother, and to foster a healthier relationship between the children and the mother, than the mother would have fostered between the children and the father, the court should have awarded residential custody of Madison to the father (see Eschbach v Eschbach, 56 NY2d at 173-174; Matter of Shannon J. v Aaron P., 111 AD3d at 831; Matter of Pappas v Kells, 77 AD3d 952; Matter of Tori v Tori, 67 AD3d 1021)."

Wednesday, November 16, 2016

PLEASE EXCUSE MAIL DELAY

Server issues exist for next two day but I can also be reached at jmpattorney@gmail.com

Tuesday, November 15, 2016

THE ELEMENTS OF CIVIL CONTEMPT



Dotzler v. Buono, 2016 NY Slip Op 7433 - NY: Appellate Div., 4th Dept. 2016:

"A finding of civil contempt must be supported by four elements: (1) "a lawful order of the court, clearly expressing an unequivocal mandate, was in effect"; (2) "[i]t must appear, with reasonable certainty, that the order has been disobeyed"; (3) "the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party"; and (4) "prejudice to the right of a party to the litigation must be demonstrated" (Matter of McCormick v Axelrod, 59 NY2d 574, 583, order amended 60 NY2d 652). The party seeking an order of contempt has the burden of establishing those four elements by clear and convincing evidence (see El-Dehdan v El-Dehdan, 26 NY3d 19, 29; Belkhir v Amrane-Belkhir, 128 AD3d 1382, 1382).

Here, we agree with defendant that plaintiff failed to establish by the requisite clear and convincing evidence that defendant had actual knowledge of the TRO at the time ........ (see Puro v Puro, 39 AD2d 873, 873, affd 33 NY2d 805). We reject plaintiff's contention that defendant's actual knowledge of the TRO is not necessary here because she served the TRO upon defendant's attorney (see CPLR 2103 [b]). "Actual knowledge of a judgment or order is an indispensable element of a contempt proceeding" (Orchard Park Cent. Sch. Dist. v Orchard Park Teachers Assn., 50 AD2d 462, 468, appeal dismissed 38 NY2d 911; see Matter of Howell v Lovell, 103 AD3d 1229, 1230), and the record establishes that defendant did not receive the TRO before ........"

Monday, November 14, 2016

ADOPTED CHILD (UNDER 21) CAN SUE ADOPTIVE PARENT FOR CHILD SUPPORT



A few years back, news was made when a Lincoln Park, N.J, high school student filed a lawsuit against her parents seeking living expenses and tuition for private high school and college.

In MATTER OF SUPPORT PROCEEDING JM v. RM, 2016 NY Slip Op 51136 - NY: Family Court 2016, the 20 year old Petitioner filed for support against Respondent, his adoptive mother:

"Pursuant to DRL § 110 and DRL § 117(1)(a), adoptive parents are liable for support of their adopted children and the natural parents are relieved of all responsibility for support. See also, Harvey-Cook v. Neill, 118 AD2d 109, 504 N.Y.S.2d 434 (2d Dep't 1986). The Family Court Act sets forth the "fundamental public policy in New York" that parents of minor children are responsible for their children's support until age twenty-one. See, FCA §413 (1) (a). In the instant case, Petitioner is the adoptive son and Respondent is the adoptive mother. Respondent, as the adoptive mother, is legally responsible to support Petitioner until he turns twenty-one years old."

Wednesday, November 9, 2016

BASIC STANDARDS IN CHILD CUSTODY



MATTER OF SCHULTHEIS v. Schultheis, 2016 NY Slip Op 5648 - NY: Appellate Div., 2nd Dept. 2016:

"The parties were married in 1996 and have two children. The family lived together until December 2014, when the mother left the marital residence and petitioned the Family Court for sole residential custody of the children. After a hearing, the Family Court awarded residential custody to the mother with liberal visitation to the father. The father appeals.

There is "no prima facie right to the custody of the child in either parent" (Domestic Relations Law §§ 70[a]; 240[1][a]; see Friederwitzer v Friederwitzer, 55 NY2d 89, 93; Matter of Riccio v Riccio, 21 AD3d 1107). The essential consideration in making an award of custody is the best interests of the children (see Eschbach v Eschbach, 56 NY2d 167, 171; Friederwitzer v Friederwitzer, 55 NY2d 89; Matter of McIver-Heyward v Heyward, 25 AD3d 556), which are determined by a review of the totality of the circumstances (see Matter of Garcia v Fountain, 82 AD3d 979, 980). In making a determination as to what custody arrangement is in the children's best interests, the court should consider the quality of the home environment and the parental guidance the custodial parent provides for the children, the ability of each parent to provide for the children's emotional and intellectual development, the financial status and ability of each parent to provide for the children, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the children's relationship with the other parent (see Matter of Hutchinson v Johnson, 134 AD3d 1115, 1116; Mohen v Mohen, 53 AD3d 471, 472-473; Miller v Pipia, 297 AD2d 362, 364 ). The court should also consider the children's wishes, weighed in light of their ages and maturity (see Eschbach v Eschbach, 56 NY2d at 173; Matter of Langlaise v Sookhan, 48 AD3d 685, 686). "As a custody determination depends to a great extent upon an assessment of the character and credibility of the parties and witnesses, the findings of the Family Court will not be disturbed unless they lack a sound and substantial basis in the record" (Matter of Tercjak v Tercjak, 49 AD3d 772, 772; see Matter of Gilmartin v Abbas, 60 AD3d 1058).

We see no reason to disturb the Family Court's well-reasoned determination to award residential custody to the mother. The record shows that both parents love the subject children, but that the father is unable to provide for the children's well-being and promote their relationship with the mother. Accordingly, the Family Court's determination is supported by a sound and substantial basis in the record.