Wednesday, February 10, 2016


Matter of Gelfarb v Gelfarb 2015 NY Slip Op 07973 Decided on November 4, 2015 Appellate Division, Second Department:

"To modify an existing custody or visitation order, there must be a showing that there has been a change in circumstances such that modification is required to protect the best interests of the child (see Matter of Preciado v Ireland, 125 AD3d 662; Matter of Holmes v Holmes, 116 AD3d 955). The best interests of the child must be determined by a review of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 171-172). "Since weighing the factors relevant to any custody [or visitation] determination requires an evaluation of the credibility and sincerity of the parties involved, the hearing court's findings are accorded deference, and will not be disturbed unless they lack a sound and substantial basis in the record" (Matter of Jackson v Coleman, 94 AD3d 762, 763; see Matter of Preciado v Ireland, 125 AD3d 662).

Here, the mother had been awarded custody of the subject child in the parties' 2007 judgment of divorce. In 2011, the father filed a petition to modify that custody provision to award him sole custody. At a hearing, the parties testified that, since 2009, the child had been staying at the father's apartment three nights per week and every other weekend so that he could attend school several blocks away. The father established a change in circumstances since the time of the parties' judgment of divorce such that modification of the custody provision was in the best interests of the child. Accordingly, the Family Court providently exercised its discretion in awarding sole custody to the father (see Matter of Diaz v Diaz, 224 AD2d 614, 615; Matter of Moorehead v Moorehead, 197 AD2d 517, 519)."

Here it would appear that by simple math, the father had primary residential custody: 3 nights a week times 52 weeks is 156 nights. Add 2 nights a week for 26 weeks is 52. Thus, each year, the child is with father for 208 nights or 58% of the year.

Tuesday, February 9, 2016


 Shamp v. Shamp, 2015 NY Slip Op 8255 - NY: Appellate Div., 4th Dept. 2015:

"We agree with the husband, however, that the court erred in providing in the judgment that "primary physical residence of [the subject child] is awarded to the mother, with visitation to the father." Pursuant to a prior stipulation, the parties agreed to shared custody with approximately an even distribution of parenting time, and the court accepted that stipulation by ordering that the stipulation be incorporated in, but not merged into, the judgment of divorce. That stipulation, as the court noted in its decision, "reveals a truly 50-50 shared parenting plan." "[T]hus, neither [parent] is the primary physical custodian" (Matter of Disidoro v Disidoro, 81 AD3d 1228, 1229, lv denied 17 NY3d 705; see generally Eberhardt-Davis v Davis, 71 AD3d 1487, 1487-1488). Consequently, the court erred in awarding primary physical residence to the mother. We therefore modify the judgment accordingly."



Monday, February 8, 2016


I will be volunteering today, Monday February 8, 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, February 5, 2016


Yes it can happen. I attended a terrific CLE yesterday at the Suffolk County Bar Association. The fact is that the interests of a bankruptcy court, the trustee appointed, the creditors of the debtor, etc. may conflict with the interests of one or both parties in a matrimonial action.

For those in a matrimonial cases, whether resolved by settlement or action, some financial aspects of the divorce may be disrupted or, at least further litigated, when one of the spouses file for bankruptcy - and different rules apply for Chapter 7 liquidations and Chapter 13 reorganizations.

As I have said before, if marriage is supposed to be for life...divorce can be eternal.

Thursday, February 4, 2016


In "Easy Rider", it was funny for a while. In real life, it is not.

A small minority of lawyers openly acknowledge prior or existing substance or mental health conditions, problem drinking and mental health concerns. But according to a recent and comprehensive landmark study of U.S. lawyers, called “The Prevalence of Substance Use and Other Mental Health Concerns among American Attorneys,”many lawyers are not seeking the help they need.


Wednesday, February 3, 2016


G.M. v M.M., 2015 NY Slip Op 25422 , Decided on December 17, 2015, Supreme Court, Westchester County:

"It is well established that equitable distribution of marital property does not necessarily mean equal distribution. Duffy v. Duffy, 84 AD3d 1151 [2d Dept 2011]; Michaelessi v. Michaelessi, 59 AD3d 688 [2d Dept 2009]. The equitable distribution must be based on the circumstances of the particular case and the consideration of a number of statutory factors. DRL § 236[B][5][d]. The court has substantial discretion in fashioning an award of equitable distribution. Stated another way, "the trial court has substantial flexibility in fashioning an appropriate decree based on what it views to be fair and equitable under the circumstances," Mahoney-Buntzman v. Buntzman, 12 NY3d 415, 420 [2009].

In determining an equitable disposition of property the court must consider, inter alia, the wasteful dissipation of assets by either party. DRL 236[B][5][d][12]. Renck v. Renck, 131 AD3d 1146 [2d Dept 2015]. Further, it has been repeatedly held that economic misconduct may properly be considered by the trial court. Contino v. Contino, 140 AD2d 662 [2d Dept 1988]; DiBella v. DiBella, 140 AD2d 292 [2d Dept 1988]; Langdon v. Langdon, 138 AD2d 358 [2d Dept 1988]; Mahon v. Mahon, 129 AD2d 684 [2d Dept 1987]. The courts have long recognized that economic fault, which consists of dissipation or secreting of assets, or other conduct which unfairly prevents the court from making an equitable distribution of marital property, has generally been considered relevant to the distribution. Owens v. Owens, 107 AD3d 1171 [3d Dept 2013]; Blickstein v. Blickstein, 99 AD2d 287 [2d Dept 1984].

A spouse who alleges that the other engaged in waste and dissipation of marital assets bears the burden of establishing that conduct by a preponderance of the evidence. Heymann v. Heymann, 102 AD3d 832, 834 [2d Dept 2013]; Epstein v. Messner, 73 AD3d 843, 846 [2d Dept 2010]; Raynor v. Raynor, 68 AD3d 835, 838 [2d Dept 2009].

Here, plaintiff has met her burden of proving, by a preponderance of the evidence, that the defendant committed wasteful dissipation of marital assets with regard to his financial support of a second family, and this constituted financial misconduct as related to marital assets. There can be no dispute that income received by a spouse during the marriage is marital property. DRL, § 236[B][1][c]. In fact, defendant concedes that marital funds were used to support his second family. Plaintiff introduced into evidence examples of defendant's diversions of marital income, from the parties' joint checking account, for A.S's rent, cable television bill, and other expenses. Although not easily quantified, the court believes that defendant's conduct in dissipating marital funds for so many years during this long-term marriage justifies a finding that there should be a disproportionate distribution of the equity in the marital residence. Kerley v. Kerley, 131 AD3d 1124 [2d Dept 2015]. Clearly, the record supports that defendant's conduct meets the test of Factors 12 and 14 of DRL §236 [B][5]b], respectively: i.e. the wasteful dissipation of marital property [Factor12]; and any other factor which the court shall expressly find to be just and proper, i.e., the so called "wild card" factor [Factor 14]. In this regard, the court finds Factors 12 and 14 are significant factors applicable to the disposition of the marital residence.

The court finds that it is fair and reasonable that plaintiff be awarded sole and exclusive title and possession to the marital residence located in XXX, with her entitlement to one hundred (100%) of the equity. Henery v. Henery, 105 AD3d 903 [2d Dept 2013]. This is justified by the wasteful dissipation of marital assets by defendant, and the unilateral placing of his own interests above those of his rightful dependants.

To implement this distribution, defendant's counsel shall include a provision in the Judgment of Divorce providing for the transfer of title to the marital premises from plaintiff and defendant, to plaintiff alone. This shall be accomplished by defendant executing a bargain and sale deed with covenant against grantor's acts, and the ancillary documents required to be filed together with the recording of the deed. Defendant's attorney shall prepare the transfer documents required to effectuate the conveyance of the marital residence, and defendant shall incur any and all expenses relative to the conveyance and the recording of the deed. In the event defendant fails to sign the deed within 30 days of the Judgment of Divorce being served upon him with notice of entry, the court directs the Westchester County Clerk to sign the deed in his stead upon presentation by plaintiff without further application to the court."

Tuesday, February 2, 2016


We all know the issue of affordable housing in New York. I know of so many people and/or their children who find an apartment and then take in a roommate - and some who take in more than one.

But not every one has the right to a roommate - or for that matter two. From the Metropolitan Council on Housing:

Monday, February 1, 2016


It was an honor to be a Presiding Judge and Evaluator this Saturday at the New York Regional competition hosted by St. John's University School of Law at the Queens County Supreme Court House.

The students were well prepared and quite impressive.My best wishes to all

Friday, January 29, 2016



Friday, January 29

12:15 pm - 1:45 pm

“A Guide to Small Claims Court.” Attorney Jon M. Probstein will explain small court procedure and discuss how to start your case, file a claim and collect a judgment. Sponsored by the Nassau County Bar Association.

Thursday, January 28, 2016


From the Levittown Tribune, on the installation and of officers and directors of the chamber. You can see me hidden in the back.

Wednesday, January 27, 2016


Matter of Joshua AA. v Jessica BB. 2015 NY Slip Op 07718 Decided on October 22, 2015 Appellate Division, Third Department:

"In June 2013, two days after the birth of respondent's child, petitioner and respondent executed an acknowledgment of paternity naming petitioner as the child's father. In January 2014, both parties filed separate petitions requesting custody of the child. However, in March 2014, petitioner commenced the instant proceeding to vacate the acknowledgment of paternity. After the issue of equitable estoppel was raised in a hearing before a Support Magistrate, the matter was referred to Family Court (see Family Ct Act § 439 [b]). Without holding a hearing, Family Court sua sponte dismissed the petition on the basis that the pleadings alone demonstrated that petitioner was equitably estopped from denying paternity. Petitioner now appeals.

"Once 60 days have elapsed following the execution of an acknowledgment of paternity, the mother or acknowledged father may challenge that document in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the party challenging the voluntary acknowledgment" (Matter of Wimberly v Diabo, 42 A.D.3d 599, 599 [2007] [internal quotation marks omitted]; see Family Ct Act § 516-a [b] [iv]; Matter of Jeannette GG. v Lamont HH., 77 A.D.3d 1076, 1077 [2010]). To establish material mistake of fact, a party must demonstrate that such mistake "was truly material — i.e., substantial and fundamental to the nature of the [acknowledgment] — so as to entitle a party to void that document" (Matter of Wimberly v Diabo, 42 AD3d at 600). To establish fraud, a petitioner must show that he or she justifiably relied on the respondent's fraudulent statements or representations at the time the acknowledgment of paternity was signed (see Matter of Demetrius H. v Mikhaila C.M., 35 A.D.3d 1215, 1216 [2006]).

Here, in his petition to vacate the acknowledgment of paternity, petitioner alleged that his signature was procured either by material mistake of fact or fraud based upon respondent's history of infidelity. However, the petition also explained that petitioner put his name on the birth certificate of the child "despite all parties acknowledging that it was [another man's] child." Because petitioner's claim that he knew that he was not the father of the child negates a finding of fraud or material mistake of fact, as such findings are necessarily predicated on a lack of knowledge (see Matter of Felton R. v Gloria P., 63 A.D.3d 515, 515 [2009]), petitioner failed to plead sufficient facts constituting fraud or material mistake of fact (see Matter of Wimberly v Diabo, 42 AD3d at 601). Therefore, Family Court properly sua sponte dismissed petitioner's petition because, even "[a]ssuming the truth of the allegations in the petition, and according the petitioner the benefit of every favorable inference, the facts alleged do not fit into any of the grounds for vacatur of an acknowledgment of paternity" (Matter of Ronnyeh R. v Gwendolyn M., 99 A.D.3d 717, 717 [2012] [internal citation omitted]; see Matter of Panzer v Wood, 100 A.D.3d 1119, 1119-1120 [2012], lv dismissed 20 N.Y.3d 1001 [2013]; compare Matter of Siearra L. [Deborah L.], 130 A.D.3d 1184, 1186 [2015])."

NOTE: Even if a party meets his burden of establishing fraud, duress, or material mistake of fact, the Family Court is then required to conduct a hearing regarding the best interests of the child before ordering a GMT - a genetic marker test. See WESTCHESTER DSS v. ROBERT WR, 25 AD 3d 62 - NY: Appellate Div., 2nd Dept. 2005:

"The doctrine of equitable estoppel may be invoked to preclude a father, such as the respondent herein, from denying paternity to avoid support obligations where the invocation of the doctrine is in the best interests of the child (see Matter of Charles v Charles, 296 AD2d 547, 549 [2002]; Ocasio v Ocasio, 276 AD2d 680 [2000]; Brian B. v Dionne B., 267 AD2d 188 [1999]). Here, there was evidence before the Family Court that the child, nearly five years of age at the time of the subject challenge, recognized the respondent as her father and that the child enjoyed a relationship with him and members of his family."

Tuesday, January 26, 2016


From the firm of  Plaine & Katz, LLP, 80-02 Kew Gardens Rd., Suite # 1050, Kew Gardens, NY 11415 718-268-0279:


Monday, January 25, 2016


I will be volunteering today, Monday January 25, 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, January 22, 2016


Creek v. Dietz, 132 A.D.3d 128, 316 N.Y.S.3d 888 (Fourth Dept. 2015) (italics supplied):

"Respondent father appeals from an order modifying the existing custody and visitation order by, inter alia, directing that he have supervised visitation with the parties' child. Based on the record before us, we conclude that the Referee properly determined that petitioner mother established a sufficient change in circumstances that reflects a genuine need for the modification so as to ensure the best interests of the child (Matter of Rice v. Cole, 125 A.D.3d 1466, 1467 [internal quotation marks omitted]; see Matter of Vieira v. Huff, 83 A.D.3d 1520, 1521, 922 N.Y.S.2d 684). The mother established that the father, who had a long history of substance abuse problems, was again using various illegal drugs, including cocaine, heroin and marihuana (see Matter of Laware v. Baldwin, 42 A.D.3d 696, 696, 839 N.Y.S.2d 618; Matter of Brady v. Schermerhorn, 25 A.D.3d 1037, 1038, 810 N.Y.S.2d 230). Indeed, the father admitted that he had used illegal drugs only a few weeks before the hearing on the mother's petition (see Matter of LaFountain v. Gabay, 69 A.D.3d 994, 995, 891 N.Y.S.2d 728). The mother also established that the father had demonstrated behavioral changes consistent with his behavior during prior periods of time in which he had been using illegal substances, such as missing visitation with the child for extended periods of time.

It is well settled that a determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record, i.e., is not supported by a sound and substantial basis in the record (Matter of Rulinsky v. West, 107 A.D.3d 1507, 1509, 969 N.Y.S.2d 268 [internal quotation marks omitted]; see Matter of Van Court v. Wadsworth, 122 A.D.3d 1339, 1340, 996 N.Y.S.2d 448, lv denied 24 N.Y.3d 916). Here, the Referee made specific findings concerning the potential harm the child faced if the father were to have unsupervised visitation (cf. Laware, 42 AD3d at 697), and we conclude that the Referee's determination to impose supervised visitation is supported by the requisite sound and substantial basis in the record (Rice, 125 A.D.3d at 1467 [internal quotation marks omitted])."

Thursday, January 21, 2016


"“A Guide to Small Claims Court.” Attorney Jon M. Probstein will explain small court procedure and discuss how to start your case, file a claim and collect a judgment. Sponsored by the Nassau County Bar Association."


Wednesday, January 20, 2016


Matter of Procopio v. Procopio, 2015 NY Slip Op 7073 - NY: Appellate Div., 4th Dept. 2015

Here, the mother appealed from an order which modified the custody/parenting provisions by directing that her visitation be supervised. The appeal was denied.

The mother was found to be struggling "with substance abuse and various mental health issues, including bipolar disorder, had difficulty controlling her reactive behavior, which largely consisted of verbal abuse and inappropriate text messages and included some physical abuse."

The court noted:

"Finally, we reject the mother's contention that the court erred in ordering her to refrain from sending text messages to the children. "[T]he evidence in the record supports a determination that . . . [prohibiting text messaging] contact with the [mother] would be in the children's best interests" (Matter of Fletcher v Fletcher, 29 AD3d 908, 909; see Matter of Shockome v Shockome, 53 AD3d 618, 619, lv denied 11 NY3d 712), and she was not precluded from communicating with the children in any other manner (cf. Posporelis v Posporelis, 41 AD3d 986, 991)."

Tuesday, January 19, 2016


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.

Friday, January 15, 2016


Compare these cases:

Britton v. Yazicioglu, 189 AD 2d 734 - NY: Appellate Div., 1st Dept. 1993:

"We agree that respondent's removal and replacement of the cabinets and refrigerator without petitioner's permission when neither was so defective as to warrant such unilateral action was a substantial violation of the "no alteration" clause of the petitioner's lease (Freehold Invs. v Richstone, 72 Misc 2d 624, revg 69 Misc 2d 1010, revd 42 AD2d 696, revd 34 N.Y.2d 612). Nevertheless, issuance of the warrant of eviction should again be stayed on condition that respondent reinstall the original cabinets within 10 days after they are made available to him by petitioner. Should petitioner fail to make the cabinets available to respondent within 20 days after service of a copy of this order with notice of entry, the judgment is vacated.

Kupferman, J., dissents in a memorandum as follows:

To replace an old refrigerator with a new one and to substitute wooden kitchen cabinets for metal ones for aesthetic reasons is an unsubstantial deviation from the obligations of tenancy (see, Rumiche Corp. v Eisenreich, 40 N.Y.2d 174).

To bottom a warrant of eviction on such flimsy grounds is to denigrate landlord and tenant law."

BENJAMIN SCOTT CORP. v. Lydia, 2007 NY Slip Op 50406 - NY: City Court, Civil Court 2007:

"Respondents argue in the alternative that if the court finds that they installed their kitchen cabinets recently, they should not have to effect a cure by taking them down and replacing them with the original or similar cabinets. Respondents contend under Rumiche Corp. v. Eisenreich (40 NY2d 174 [1976]) that installing new kitchen cabinets does not constitute waste or show that they "inflict[ed] serious and substantial injury upon the landlord." But Rumiche did not involve kitchen cabinets. And this court noted just the other week, albeit in a lease-violation proceeding unlike this one and albeit in dictum, that installing new kitchen cabinets is a substantial alteration, not a cosmetic change. (See 259 W. 12th, LLC v. Grossberg, 2007 WL 586598, at *3, 2007 NY Slip Op 50304[U], at *4 (Hous Part, Civ Ct, NY County, Feb 20, 2007] [citing Freehold Investments v. Richstone, 34 NY2d 612 [1974, mem], revg 42 AD2d 696 [1st Dept 1973, mem], revg 72 Misc 2d 624, 626 [App Term, 1st Dept 1973, per curiam] [finding, although under lease clause that does not exist in this case, that tenant made substantial alterations by, among other things, installing new kitchen cabinets]; accord Britton v. Yazicioglu, 189 AD2d 734, 735 [1st Dept 1993, mem] [citing Freehold Investments].)"

Rumiche Corp. v. Eisenreich, 40 NY 2d 174 (1976) is the leading case on this:

"In this perspective, it becomes apparent that in the case before us there was insufficient proof of any repair or alteration which could be characterized as one causing permanent or lasting injury to the premises. The apartment in issue remains a one-room studio. Its four walls are intact and remain in place. The closet and windowframe built by the tenant are merely nailed to and not built into the walls; there was no showing that either cannot be taken down and removed at minimal, if any, expense or damage. They are clearly consistent with the tenant's use of the apartment as a residence. The ceiling light fixture is a straight replacement of the old and unworkable one by a new and functioning equivalent; the addition of a modern wall switch could hardly have been more de minimis. The replacement for the defective ceiling itself, though, according to the parties' stipulation, not as thick as that required by the fire code, was of the required composition and, interestingly, no violation because of it had ever been issued by the city. More pointedly, the landlord made no showing whatsoever, whether by stipulation or otherwise, that the thickness of the falling ceiling which it replaced was any greater than the one of which it complained in this proceeding."

But the dissent stated:

"Applying these rules, in the absence of an agreement to the contrary, it is obvious that the removal of the ceiling and its reconstruction with sheetrock of insufficient thickness to satisfy the fire code constituted waste and, therefore, that the tenant breached an obligation of the tenancy. Equally clear is the fact that the actions of the tenant in making the alterations were the result of willful conduct, that is "intentional and deliberate" (Matter of Old Republic Life Ins. Co. v Thacher, 12 N.Y.2d 48, 56). The only question remaining is whether the waste inflicted "substantial injury" upon the landlord. Alterations of a ceiling that leave the apartment in violation of the fire code could prohibit the landlord from leasing the apartment unless he bears the expense of installing an entirely new one. Resolution of whether this amounted to substantial injury raised a question of fact within the province of the trial court. The finding in favor of the landlord, having been affirmed on appeal, is beyond our power to review in the absence of legal error (Plaza Hotel Assoc. v Wellington Assoc., 37 N.Y.2d 273; Ginsberg v Yeshiva of Far Rockaway, 36 N.Y.2d 706). We observe no error of such gravity and, consequently, the order of the Appellate Division must, of necessity, be affirmed."


Often cited in these cases is Freehold Invs. v Richstone, 72 Misc 2d 624, revg 69 Misc 2d 1010, revd 42 AD2d 696, revd 34 N.Y.2d 612 in which the Appellate Term decision, which also had a dissent, was upheld in which the "tenant removed, and replaced with substitutes, a series of wall cabinets in the kitchen which were so physically annexed and affixed as to have long been accessory to and part and parcel of the realty. Besides installing metallic wall-covering material in the living room and bedroom, the tenant annexed to the freehold for use in connection with it, so that they cannot be removed without injury to the freehold, extensive and substantially imbedded ceiling and wall reconstructions and lighting arrangements."

Thursday, January 14, 2016


Recently, the NYSBA Journal had an article on the "Right To Be Forgotten" which translates into a users’ right to choose whether or not to be tracked by third-party websites.

Although California has enacted a law effective last year dealing with minors, the following bills have been introduced on the federal level but never enacted:

Do Not Track Me Online Act of 2011

Consumer Privacy Protection Act of 2011

Commercial Privacy Bill of Rights

Do Not Track Online Act of 2011

Consumer Privacy Bill of Rights