Monday, March 19, 2018


Marra v. Nazzaro, 2018 NY Slip Op 50004 - NY: City Court 2018:

"Plaintiff Johanna Marra ("Johanna") demanded that Defendant Eric Nazzaro ("Eric") pay her thousands of dollars for expenditures that she made during their romantic relationship. Eric refused, so Johanna sued him. The Court held a trial on November 13, 2017 to resolve the matter. Although much of the testimony conflicted, the court finds the facts as follows.[1]

The relationship between Johanna and Eric began in October 2013. The previous July, Eric had purchased a duplex in Cohoes, which he described as "a fixer upper." Eric rented the upstairs and he and Johanna moved in downstairs. Over the course of the next four plus years, the two lived as a committed and intimate couple, but never solemnized their relationship by taking marital vows.

As noted, the house needed repairs. Eric and his friend (who labored for free) worked to upgrade the home and Johanna paid for tools and supplies. For one room, the bathroom, the couple had different visions. Johanna wanted a "fancy bathroom;" Eric wanted a low-cost one. He told Johanna that if she desired a fancy bathroom she would have to use her money to pay for it — which she did in the approximate amount of $6,900. Additionally, Johanna did not like two trees that fronted the property so she paid $2,500 to have them removed.

There was no expectation that Eric would repay Johanna, rather the expectation was an enduring relationship. She happily paid for the house's improvement; her hope was that someday the sale of the house would provide the money for her and Eric to move to Florida. She was in love and so much so that she never saw the end coming — but it came.

One day in the beginning of May 2017, Eric told Johanna he was going fishing, but he wasn't — he was leaving her for another woman. When Johanna returned home that evening, she found a note explaining that the relationship was over. Several days later a mutual friend of Johanna and Eric called an armistice and convened a meeting of the three of them. At that meeting, Eric told Johanna that she could stay at the house until November 1, 2017 and that he would pay her several thousand dollars for the money that she spent to improve the house.

After the meeting, things did not go so well. Johanna wanted Eric to reduce his pledge to writing, acknowledging that he would repay her $7,000. Eric's want of alacrity (or plain unwillingness) to formalize an agreement triggered Johanna to pester him constantly with texts and calls. By August, Eric sought and received an order of protection from the Albany County Family Court. The order, in practical effect, evicted Johanna from Eric's house.

Johanna wants to recover the money she spent on the bathroom, the money she spent removing the trees and the money she spent on general expenses. These expenses were provided to the court with fine detail (exhibit 1). This type of question regularly haunts the court and is fraught with all sorts of misconceptions by the parties who demand economic redress for a failed relationship. The court will analyze what, if anything, Eric owes Johanna.

This case arises under the small claims statute where the Legislature has instructed the courts to do substantial justice (Uniform City Court Act §1804). Substantial justice does not grant the court some type of roving jurisdiction to do what in its eyes seems just and fair. Rather, "substantial justice means that the Court should explore all appropriate legal theories that could potentially afford plaintiff[] relief "(Carlo v. Koch-Matthews, 53 Misc 3d 466, 470 [2016]).

To begin with, the court will not arrange a financial distribution between the parties based upon who paid for what stuff. The court is precluded — "by virtue of the lack of a marriage contract, the parties are not eligible for the benefits and protections of New York's equitable distribution law, as embodied in Domestic Relations Law § 236(B)(5) and its paragraphs" (Dee v. Rakower, 112 AD3d 204, 217 [2nd Dept 2013]).

The court, however, will consider contract law as a theory for recovery. If the parties, during or subsequent to their relationship, made a binding contract, the court will enforce that contract (see Morone v. Morone, 50 NY2d 481, 489 [1980] [holding that expressed contracts between cohabitants are enforceable]). The court believes and accepts as true that the parties hoped someday to sell the house and move to Florida together. However, such dreams do not make an express contract. The essence of a contract is mutual assent — a meeting of the minds as to the nature of the agreement — and without it, no contract can exist (see generally Restatement of Contracts Second §17[1]). Here, Johanna testified that neither her nor Eric contemplated, let alone agreed to, repayment of the bathroom renovations (or any other expenses) incurred by Johanna should the relationship go bad. Thus, the parties had no express contract; hence, no recovery may be had under this theory.

Nor is the court convinced that there was an implied contract; the implied contract being that Eric had to reimburse Johanna for her expenditures if Eric breached fidelity.[2] The problem here is the financial dealings between Eric and Johanna were inseparably intertwined with their romantic relationship. The things done for affection and transactions made in the course of and as a natural consequence of living together in a romantic relationship do not translate well into contract law. Unsurprisingly, the Court of Appeals has held "an implied contract between an unmarried couple living together is contrary to both New York decisional law and the implication arising from our Legislature's abolition of common-law marriage" (Morone, 50 NY2d at 489). Thus, while Eric was a cad, his conduct does not and cannot give rise to a breach of an implied contract.

While nothing during the course of their relationship created a contract, after the break-up, Eric made some promises to Johanna. The court will examine whether these promises established a contractual obligation. In particular, the evidence established that Eric promised to pay Johanna "several thousand dollars" for investments that she made to improve the house. To create a binding contract, the terms thereof must be definite. Accordingly, "a court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to" (Matter of 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 NY2d 88, 91 [1991]). Here the material term of performance — the payment of "several thousand dollars"— is too vague to be enforced (see e.g. Glanzer v. Keilin & Bloom LLC, 281 AD2d 371, 372 [1st Dept 2001] [holding that promise to pay employee a "substantial income" is too indefinite to permit enforcement]; Freedman v. Pearlman, 271 AD2d 301, 303 [1st Dept 2000] [holding that promise to equitably divide monies was too indefinite to be enforced]). Thus, Eric incurred no liability based upon his promise to pay an indefinite sum of money.

This conclusion does not end the matter. Recovery may be had under the doctrine of quasi-contracts. A quasi-contract rests upon the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another (Clark—Fitzpatrick v. Long Island R.R. Co., 70 NY2d 382 [1987]).

The common law courts invented quasi-contracts as a legal fiction. In truth, they are not contracts at all. Rather, it is an obligation which the law creates, in the absence of any agreement, when and because the acts of the parties have placed in the possession of one party the other's property, under such circumstances that in equity and good conscience he ought not to retain it. Thus, even though the parties had never consented to a contract, a quasi-contract produces obligations in the same manner as an actual contract between the parties (see generally Restatement of Contracts Second §4 [comment b] [providing underpinnings of the quasi-contracts]).[3]

The quasi-contract doctrine available here to Johanna is unjust enrichment. The elements of an unjust enrichment claim are "(1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered" (Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 182 [2011] [internal quotation and citations omitted]).

Applying this test to the renovations, the court begins by noting that Eric wanted no part of the bathroom upgrade. As Eric's testimony elucidates, Johanna brought the bathroom upgrade by herself for herself.[4] Yet Eric has retained the property (the sink, the vanity etc.) and this property has increased the value of his house. So, Eric has been enriched at Johanna's expense. There is no reason why Eric should retain her property. It was Eric's secret affair that caused the relationship's dissolution. In the May meeting, Eric acknowledged, although not in terms of a contract, that he should pay Johanna thousands of dollars for her investment in the house. Thus, even Eric conceded that in fairness, he should compensate Johanna something. The court concurs.

Under these circumstances, the court finds that "that it is against equity and good conscience to permit [Eric] to retain what is sought to be recovered [by Johanna]" (Mandarin Trading Ltd., 16 NY3d at 182). The court believes that Johanna is entitled to the value of the physical items that Johanna brought for herself because they are impractical to remove from the house. The court awards the cost of the bathroom fixtures, fans, vanity, faucets, door, television mount, light fixtures, toilet and blinds; this totals $1,737.00 (exhibit 1).

Finally, the court will address Eric's promise that Johanna could live at his house rent free until November 2017. Eric testified that he made this promise, but he didn't keep it. He leveraged the order of protection that Family Court granted him to have Johanna removed from his house. Okay, but he did not condition his promise of rent free living on that Johanna leave him alone. Moreover, removing Johanna from the house was not essential to enforce the order of protection. If Johanna did not cease communication or her other illicit conduct required by the order, she would have been in contempt of court which carries with it significant criminal penalties (Penal Law §215.50). All this to say that it was unnecessary to remove Johanna from his house to make the harassment stop.

Johanna could recover 2½ months' rent under a theory of promissory estoppel. Promissory estoppel binds a party to a promise made (even without consideration), if the promise (1) is clear and unambiguous; (2) induces a reasonable and foreseeable reliance by the party to whom the promise is made; and (3) causes injury as a result of the party's reliance (Clifford R. Gray, Inc. v. LeChase Const. Services, LLC, 31 AD3d 983, 986 [3d Dept.2006]).[5]

The court finds that Eric's promise to Johanna that she could live in his house rent free until November, clear, unambiguous and unconditional. Further, the court finds that Johanna's reliance on the promise was reasonable and that she was forced to leave the home on August 22 — depriving her of 2½ months of rent free living. Eric charged his upstairs tenant $600 a month rent for a smaller space. Eric testified that he demanded that Johanna pay $500 of rent when they first began cohabitating in 2013. The court deems $550 a month a fair rent for Eric's house in 2017. Therefore, Johanna is entitled to $1,237.50 in damages because Eric had removed her from his house prematurely.

Therefore, it is

ORDERED that Defendant Eric Nazzaro pay Plaintiff Johanna Marra $2,974.50 together with filing fees of $20.00.

The foregoing constitutes the Decision and Order of the Court.

[1] The court resolved conflicting versions of the facts by observing the tenor and the demeanor of the witnesses and the parties' reaction during the testimony of their adversary. Further, the court found the testimony of Tammy Baldwin highly credible in many respects because she, in the court's estimation, lacked motive to shade her testimony. Based upon these factors, the totality of the evidence and testimony and fair inferences made therefrom, the court arrived at its factual findings.

[2] The difference between expressed and implied contracts involves the kind of evidence offered to prove the contract. Express contracts are established by presenting evidence of the language used to articulate the terms. Implied contracts are established where a court can fairly imply terms and assent thereto by the conduct of the parties (including silence) viewed in the light of surrounding circumstances (see generally Restatement of Contracts Second §4 [Comment a]).

[3] See also NY Pattern Jury Instr.—Civil 4:1: "Contracts implied in fact must be distinguished from contracts implied-in-law (quasi contracts), which are not contracts at all but obligations imposed by law through the legal fiction of a contract."

[4] Significantly, although Eric's friend had provided free labor for his work on the rest of Eric's house, he charged Johanna over a $1,000 for his labor on the bathroom project. In other words, Eric contributed nothing — not even free labor.

[5] Although the court believes it could make an award based upon wrongful eviction, the doctrine of promissory estoppel is a better theoretical fit for this case."

Friday, March 16, 2018


Matter of Jackson v Wylie-Tunstall, 2018 NY Slip Op 01605, Decided on March 14, 2018, Appellate Division, Second Department:

"The father, who is incarcerated, petitioned for visitation with the parties' child. After a hearing on the father's amended petition for visitation, the Family Court granted the amended petition only to the extent of awarding the father visitation by means of written letters sent to the mother's address. The father appeals.

The paramount concern when making a visitation determination is the best interests of the child under the totality of the circumstances (see Matter of LaChere v Maliszweski, _____ AD3d _____, 2018 NY Slip Op 00147 [2d Dept 2018]; Matter of Torres v Pascuzzi-Corniel, 125 AD3d 675). Since visitation determinations necessarily depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the Family Court's findings, which should not be set aside unless they lack a sound and substantial basis in the record (see Matter of Clarke v Wiltshire, 145 AD3d 776, 777; Matter of Pierre v Dal, 142 AD3d 1021, 1023).

Here, the child, who was 13 years old at the time of the hearing, had not seen the father since she was an infant and did not want any contact with him. The father did not seek visitation when a custody order was entered on his consent, and the record does not evince any substantial efforts on his part to form a relationship with the child. Moreover, the father's family arranged a telephone call between the child and the father, with whom the child had not spoken since she was three or four years old, without the mother's knowledge or consent, and the father wrote the child letters in which he made inappropriate comments about the child's stepfather, with whom the child has a good relationship. Under these circumstances, the Family Court's determination to grant [*2]the amended petition only to the extent of awarding the father visitation by means of written letters sent to the mother's address had a sound and substantial basis in the record.:

Thursday, March 15, 2018


Caiola v Fenestra Am., LLC, 2018 NY Slip Op 01592, Decided on March 14, 2018, Appellate Division, Second Department:

"On August 22, 2005, the plaintiff and the defendant entered into a contract under which the defendant agreed to manufacture and deliver a number of custom-made wooden doors to the plaintiff's home in Hampton Bays. The defendant did not install the doors. Sometime in 2006, the plaintiff noticed that water was leaking into his home through the doors. In 2012, following multiple conversations and exchanges of correspondence with the plaintiff, the defendant sent the plaintiff a letter criticizing the manner in which the doors had been installed and offering to, among other things, replace "the ocean-facing door units on the second floor" so that they could be re-installed in a different manner.

In 2013, approximately seven years after the defect was discovered, the plaintiff commenced this action to recover damages for breach of contract and breach of warranty. The defendant subsequently moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. In the order appealed from, the Supreme Court granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired" (Coleman v Wells Fargo & Co., 125 AD3d 716, 716; see Beizer v Hirsch, 116 AD3d 725, 725). If the moving defendant does so, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period (see Celestin v Simpson, 153 AD3d 656, 657; Coleman v Wells Fargo & Co., 125 AD3d at 716). The applicable limitations period in this case is four years after the causes of action accrued [*2](see UCC 82-725[1]; New York Methodist Hosp. v Carrier Corp., 68 AD3d 830).

Here, the defendant established, prima facie, that the plaintiff commenced this action more than four years after the causes of action accrued (see UCC 2-725[1], [2]; see also Schwatka v Super Millwork, Inc., 106 AD3d 897, 898). In opposition, the plaintiff failed to raise a question of fact as to whether General Obligations Law § 17-101 applied to renew the limitations period (see Romanelli v Disilvio, 76 AD3d 553, 554-555; see also Boone Assoc., L.P. v Leibovitz, 13 AD3d 267, 267; Sitkiewicz v County of Sullivan, 256 AD2d 884, 886). Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred."

Wednesday, March 14, 2018


Town of N. E. v Vitiello, 2018 NY Slip Op 01497, Decided on March 7, 2018, Appellate Division, Second Department:

"The defendants constructed a residence on property they owned in the Town of North East. Following the denial of an application for a certificate of occupancy, the defendants applied to the Town of North East Zoning Board of Appeals (hereinafter the ZBA) for a variance to allow the issuance of a certificate of occupancy for the residence without meeting certain requirements regarding direct access to, or road frontage on, a public street. By decision dated April 28, 2005, the ZBA granted the variance subject to specified conditions. The defendants did not challenge that decision. Thereafter the plaintiff commenced this action to enjoin the defendants from occupying or otherwise using the residence until such time as a certificate of occupancy was issued. The Supreme Court, inter alia, granted judgment in favor of the plaintiff, and the defendants appeal.

Where a town seeks to enforce its building and zoning laws, it is entitled to a permanent injunction upon demonstrating that the party sought to be enjoined is acting in violation of the applicable provisions of local law (see Town Law §§ 135, 268; Hasson v S.B.J. Assoc., LLC, 117 AD3d 904, 905; Town of Brookhaven v Mascia, 38 AD3d 758, 759). Here, the plaintiff established its entitlement to a permanent injunction, where the evidence at trial demonstrated that the ZBA granted the defendants a variance to allow the issuance of a certificate of occupancy subject to specified conditions, and that the defendants failed to satisfy those conditions. In particular, a certificate of occupancy had not been issued, and the defendants were occupying the residence in [*2]violation of sections of the Town Code of the Town of North East which required the issuance of a certificate of occupancy before any building or structure may be used or occupied (see Town Code of the Town of North East former §§ 38-10, 98-60)."

Tuesday, March 13, 2018


Matter of Joseph I. N. (Amy S. R.), 2018 NY Slip Op 01469, Decided on March 7, 2018, Appellate Division, Second Department:

"The petitioner filed petitions to terminate the mother's and father's parental rights to the three subject children on the ground of permanent neglect. After a fact-finding hearing, the Family Court dismissed the petitions. The petitioner appeals.

"In proceedings to terminate parental rights based on permanent neglect, the agency must establish as a threshold matter that it made diligent efforts to encourage and strengthen the parental relationship" (Matter of Daria S.H.-A. [Yolanda H.], 154 AD3d 669, 670; see Social Services Law § 384-b[7][a]). Here, the petitioner established by clear and convincing evidence that it exercised diligent efforts to encourage and strengthen the mother's and father's relationship with the children (see Matter of Daria S.H.-A., 154 AD3d at 670; Matter of Hector V.P., 146 AD3d 889, 890). These efforts included, among other things, the development of a service plan that required the parents to complete a drug treatment program, a parenting skills program, and a mental health evaluation. The plan also required the parents to obtain suitable housing and to participate in family visits with the petitioner. In addition, the petitioner provided the parents with numerous referrals to drug treatment programs, scheduled supervised visitation, and consistently advised the parents that completion of the service plan was necessary for reunification with the children (see Matter of Hector V.P., 146 AD3d at 890; Matter of Chanel C. [Vanessa N.], 118 AD3d 826, 827).

The petitioner also met its burden by establishing by clear and convincing evidence that the mother and father permanently neglected the children by failing to plan for the future of the children, in that, over the course of more than two years, they failed to complete a drug treatment program (see Social Service Law § 384-b[4][d]; [7][a]; Matter of Chanel C. [Vanessa N.], 118 AD3d at 827-828; Matter of Dustin H. [Patricia B.], 68 AD3d 1112, 1113). The parents' longtime abuse of marijuana was a significant obstacle to their reunification with their children, and neither parent completed a drug treatment program, despite the agency's diligent efforts, including multiple referrals to drug treatment programs (see Matter of Dustin H. [Patricia B.], 68 AD3d at 1113; Matter of Ebony Starr B., 14 AD3d 507, 508). Significantly, one or more of the children have been in foster care at various times since 2009, and the parents have been unsuccessful in completing a drug treatment program during this time. The children are entitled to permanency after the passage of such an extended period of time, during which the parents have failed to complete the programs required for them to be reunified with the children (see Family Ct Act § 1086). Thus, upon a finding of permanent neglect, we remit the matter to the Family Court, Kings County, for a dispositional hearing to be conducted as expeditiously as possible, to determine the best interests of the children (see Family Ct Act §§ 623, 625[a], 631; Matter of Ebony Starr B., 14 AD3d at 508)."

Monday, March 12, 2018


By appointment only, we are located at 1225 Franklin Avenue, Suite 325, Garden City, NY 11530. All mail and service should be sent to 21 Turn Lane, Levittown, NY 11756

Friday, March 9, 2018


Hogan v Hogan, 2018 NY Slip Op 01454, Decided on March 7, 2018, Appellate Division, Second Department:

"In making a custody determination, the primary concern is the best interests of the child. In determining the child's best interests, the court must consider the totality of the circumstances. Factors to be considered include the relative fitness of the parents, the quality of the home environment, the parents' financial status, the parental guidance given to the child, the ability of each parent to provide for the child's emotional and intellectual development, and the effect an award of custody to one parent might have on the child's relationship with the other parent (see Eschbach v Eschbach, 56 NY2d 167, 171-173; Matter of Sahadath v Andaverde, 145 AD3d 731, 732; Matter of Tejada v Tejada, 126 AD3d 985, 985; Cuccurullo v Cuccurullo, 21 AD3d 983, 984). A custody determination depends to a great extent upon an assessment of the character and credibility of the parties and witnesses. Since the hearing court is able to observe witnesses and evaluate evidence firsthand, its determination is generally accorded deference on appeal and will not be disturbed unless it lacks a sound and substantial basis in the record (see Eschbach v Eschbach, 56 NY2d at 173; Matter of Sahadath v Andaverde, 145 AD3d at 732; Matter of Monasterska v Burns, 121 AD3d 903; Matter of Perez v Martinez, 52 AD3d 518, 519). Furthermore, in determining custody, while the express wishes of a child are not controlling, they are entitled to great weight, especially here, where the child's age and maturity make her input particularly meaningful (see Matter of Cannella v Anthony, 127 AD3d 745, 746).

There is a sound and substantial basis in the record for the Supreme Court's award of sole legal and physical custody of the child to the father. There was evidence in the record that the mother's theft of the PTA funds, her poor decision-making about her failing business, certain postings on her blog and Flickr account, and unstable housing circumstances demonstrated poor caretaking ability and parental judgment. Additionally, the relationship between the mother and the then 14-year-old child had drastically deteriorated after the mother's arrest and later incarceration. The mother's unwise decision to seek election to the position of second vice president of the PTA at the child's new school, and her subsequent election to that position, rekindled the negative publicity about her earlier theft of funds from the PTA at the child's former school. The unfavorable news articles prompted the mother to resign her position and further cemented the rift between the child and the mother. Additionally, the court-appointed forensic psychologist recommended that the father have sole legal and physical custody of the child. The attorney for the child supported that position (see Matter of Wosu v Nettles-Wosu, 132 AD3d 688, 689) and informed the court that the child wished to reside with the father."

Thursday, March 8, 2018


U.S. Bank, N.A. v Kess, 2018 NY Slip Op 01498, Decided on March 7, 2018, Appellate Division, Second Department:

"The plaintiff commenced this mortgage foreclosure action on February 2, 2015, against, among others, the defendant Philip Kess, individually and on behalf of the estate of Winifred Kess. Kess moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him, individually and in his representative capacity, on the ground that the six-year statute of limitations had run. In support of the motion, he submitted, among other things, the complaint in a prior action commenced by the plaintiff in May 2008 to foreclose the same mortgage (hereinafter the 2008 foreclosure action), in which the plaintiff elected to call due the entire amount secured by the mortgage, and proof that the 2008 foreclosure action was voluntarily discontinued by the plaintiff in October 2014. The plaintiff opposed the motion, arguing that the statute of limitations was tolled for 18 months pursuant to CPLR 210(b) by the June 4, 2013 death of Kess's wife, who was named as a defendant in the 2008 foreclosure action. In the order appealed from, the Supreme Court denied that branch of Kess's motion, finding that the death of Kess's wife tolled the statute of limitations for 18 months, thereby making the instant action timely.

In support of his motion, Kess demonstrated that the six-year statute of limitations (see CPLR 213[4]) began to run on May 6, 2008, when the plaintiff accelerated the mortgage debt and commenced the 2008 foreclosure action (see Albertina Realty Co. v Rosbro Realty Corp., 258 NY 472, 476; Deutsche Bank Natl. Trust Co. v Gambino, 153 AD3d 1232, 1233; U.S. Bank N.A. v Martin, 144 AD3d 891, 892; EMC Mtge. Corp. v Smith, 18 AD3d 602, 603). Since the plaintiff did not commence the instant foreclosure action until more than six years later, Kess sustained his initial burden of demonstrating, prima facie, that this action was untimely (see U.S. Bank N.A. v Martin, 144 AD3d at 892; Lessoff v 26 Ct. St. Assoc., LLC, 58 AD3d 610, 611). The burden then shifted to the plaintiff to present admissible evidence establishing that the action was timely or to raise a [*2]question of fact as to whether the action was timely (see U.S. Bank N.A. v Martin, 144 AD3d at 892; Lessoff v 26 Ct. St. Assoc., LLC, 58 AD3d at 611).

Contrary to the Supreme Court's determination, the plaintiff failed to establish that the action was timely or to raise a question of fact with respect thereto. CPLR 210(b) provides that "[t]he period of eighteen months after the death . . . of a person against whom a cause of action exists is not a part of the time within which the action must be commenced against his [or her] executor or administrator." The statute plainly is limited in scope to the executor or administrator of the decedent's estate and does not extend to other defendants in the same action (see Laurenti v Teatom, 210 AD2d 300, 301; Anselmo v Copertino 134 Misc 2d 956 [Sup Ct, Suffolk County]). Consequently, CPLR 210(b) could not extend the statute of limitations period as to Kess individually. Furthermore, the plaintiff failed to establish that Kess was the administrator or executor of his deceased wife's estate, a point which Kess denied in reply to the plaintiff's opposition. Thus, the Supreme Court erred in finding that the action was timely pursuant to CPLR 210(b).

In addition, the purported loan modification application submitted by the plaintiff in opposition to the motion was not an acknowledgment of the debt and an unconditional promise to repay the debt sufficient to reset the running of the statute of limitations (see Sichol v Crocker, 177 AD2d 842, 843; see also National Loan Invs., L.P. v Piscitello, 21 AD3d 537, 538; Albin v Dallacqua, 254 AD2d 444, 445; see generally Petito v Piffath, 85 NY2d 1, 8)."

Wednesday, March 7, 2018


Spencer v Spencer, 2018 NY Slip Op 01348, Decided on February 28, 2018, Appellate Division, Second Department:

"Turning to the issue of whether these automatic orders constitute unequivocal mandates of the court during the pendency of a matrimonial action, although neither the Court of Appeals nor any appellate court has yet addressed this issue, the legislative history of Domestic Relations Law § 236(B)(2)(b) supports the conclusion that the automatic orders constitute unequivocal mandates of the court (see Mem in Support of 2009 NY Assembly Bill A2574, Bill Jacket, L 2009, ch 72; Sponsor's Mem in Support, 2009 NY Senate Bill S2970). There can be no real dispute that the Legislature intended that a violation of the automatic orders "would be redressed by the same remedies available for violations of any order signed by a judge" (P.S. v R.O., 31 Misc 3d 373, 376 [Sup Ct, NY County]). Indeed, the introductory language of 22 NYCRR 202.16-a expressly provides that a charge of contempt is available as a remedy for a party's violation of the automatic orders during the pendency of a matrimonial action:
"The notice shall state legibly on its face that automatic orders have been entered against the parties named in the summons or in the summons and complaint pursuant to this rule, and that failure to comply with these orders may be deemed a contempt of court. The automatic orders shall be binding upon the plaintiff immediately upon filing of the summons, or summons and complaint, and upon the defendant immediately upon service of the automatic orders with the summons. These orders shall remain in full force and effect during the pendency of the action unless terminated, modified or amended by further order of the court or upon written agreement between the parties" (22 NYCRR 202.16-a[b] [emphasis added]).
As noted in the Assembly's Memorandum in Support of Legislation, the automatic orders are needed at the very commencement of and during the pendency of a matrimonial action "to prevent both parties from dissipating assets, incurring unreasonable debts, or removing a party or the children from health or life insurance policies" (Mem in Support of 2009 NY Assembly Bill A2574, Bill Jacket, L 2009, ch 72 at 6; see Sponsor's Mem in Support, 2009 NY Senate Bill S2970). Public policy concerns compel our conclusion that the automatic orders are unequivocal mandates that, upon proper proof, can be enforced through resort to the remedy of contempt of court. Such determination gives teeth to both Domestic Relations Law § 236(B)(2)(b) and 22 NYCRR 202.16-a, as the spectre of being held in contempt can be a powerful deterrent to misconduct by the parties, as well as a valuable tool to induce compliance with and enforcement of the terms of the automatic orders during the pendency of the matrimonial action.
Certain Supreme Court cases that have dealt with civil contempt motions that have been made during the pendency of a matrimonial action also have concluded that the automatic orders constitute unequivocal mandates of the court for the purposes of seeking a remedy of civil [*3]contempt (see Westreich v Westreich, 44 Misc 3d 1217[A], 2014 NY Slip Op 51170[U], *16-17 [Sup Ct, Nassau County]; Sykes v Sykes, 35 Misc 3d 591, 595 [Sup Ct, NY County]; P.S. v R.O., 31 Misc 3d at 376). For example, in P.S. v R.O. (31 Misc 3d at 376), the court reasoned that 22 NYCRR 202.16-a, which has language identical to that set forth in Domestic Relations Law § 236(B)(2)(b), is a lawful mandate of the court. In concluding that the court rule constitutes an unequivocal mandate of the court, the court observed that
"[t]he court rules are promulgated by the Chief Administrator of the Courts on behalf of the Chief Judge of the Court of Appeals under the authority vested in them by Judiciary Law § 211(1)(b) and 212(2)(b), and by article VI, § 30 of the New York State Constitution, to adopt rules to regulate practice and procedure in the courts. Thus, the court rules constitute lawful mandates of the court" (P.S. v R.O., 31 Misc 3d at 376).
The defendant's contention that Domestic Relations Law § 236(B)(2)(b) constitutes a legislative, not a court, mandate (see e.g. Buoniello v Buoniello, 2010 NY Misc. LEXIS 6641 [Fam Ct, Suffolk County]), precluding civil contempt as a remedy for a violation of that section, ignores the existence of 22 NYCRR 202.16-a. A party cannot violate Domestic Relations Law § 236(B)(2)(b) without also violating 22 NYCRR 202.16-a; the two provisions essentially mirror each other. Indeed, we note that, as a matter of course, that section of the Domestic Relations Law and 22 NYCRR 202.16-a each are referred to as "the automatic orders" and are treated in tandem with each other. And, as noted herein, the defendant's contention that the automatic orders are not unequivocal mandates subjecting him to civil contempt, but rather constitute administrative rules, is contrary to the express language of 22 NYCRR 202.16-a, against public policy, and without merit."