Friday, October 21, 2016
INWOOD VENTURA ASSOC., LLC v. BONOMME, 2016 NY Slip Op 30743 - NY: City Court, Civil Court 2016:
"CPLR § 1201 provides that a person shall appear by a guardian ad litem if she ". . . is an adult incapable of adequately prosecuting or defending his rights."
CPLR § 1203 provides that no default judgment may be entered against an adult incapable of adequately protecting her rights, where a GAL has been appointed until twenty days after such appointment.
In the practice commentaries to CPLR § 1203 Vincent Alexander states ". . . if it is demonstrated upon a motion to vacate a default judgment in an action that the defendant was not adequately capable of defending, the judgment must be vacated if such defendant had no guardian ad litem at the time of the default."
However, the cases cited by Mr. Alexander in support of this proposition have an added factor not present in the case at bar, namely that a party knew or had reason to know of the incapacity at the time the default was entered [Fischer v Fischer 21 AD3d 554, 2nd Dept. 2005 (denial of motion to vacate default reversed where it was undisputed that adverse party was on notice of mental disability); Barone v Cox 51 AD2d 115, 4th Dept., 1976 (holding error to deny motion to vacate default against a party who suffered from mental deterioration where plaintiff knew or had reason to know of defendant's condition); Sarfaty v Sarfaty 83 AD2d 748 4th Dept., 1981 (error to deny motion to vacate default judgment where husband and his attorney knew wife had been under psychiatric care and was a patient in a mental health center of a general hospital); Oneida National Bank and Trust Co. Of Central New York v Unczure 37 AD2d 480, 4th Dept., 1971 (failure of plaintiff to bring defendant's mental disability to court's attention required that default judgment be vacated); see also State v Kama 267 AD2d 225, 2nd Dept., 1999 (where state was on notice of patient's mental disability, default judgment would be vacated)
While the above referenced cases all concern situations where a party knew of the disability prior to the entry of the default, the language cited from the cases is more absolute. In its holding in, Oneida National Bank and Trust Co. Of Central New York v Unczure (supra) the Appellate Division, Fourth Department stated in reference to CPLR § 1201 and CPLR § 1203:
The two quoted statutory provisions are to be read together and interpreted as requiring the appointment of a guardian ad litem in every case where the defendant is an adult incapable of adequately protecting his rights, before a default judgment may be entered against him. With respect to infant defendants for whom no guardian ad litem has been appointed, the courts have long held that no jurisdiction was acquired and that judgments obtained in such actions are void. The same rule should apply to an adult incompetent.
While this language is seemingly absolute and has been cited without reservation by other courts, the quote continues by stating:
This places the burden upon a plaintiff who has notice that a defendant in an action is under mental disability, to bring that fact to the court's attention and permit the court to determine whether a guardian ad litem should be appointed to protect such defendants interest. For failure of the Bank to employ such procedure to safeguard the interests of its mentally ill debtor, we hold that Special Term properly vacated the default judgment . . . (Oneida, supra at 483 citations omitted, emphasis added).
The proposition that default judgments against persons unable to adequately defend their rights prior to the appointment of a GAL are not void as a matter of law is further supported by other cases where courts did not grant such relief. For example, in Shad v Shad (167 AD2d 532, 2nd Dept., 1990) the husband obtained a default judgment against his wife who was mentally ill and under long term psychiatric care. The relief obtained on default included the sale of the marital residence and a warrant of eviction to remove the wife from the marital residence. The Appellate Division held that a hearing was required to determine whether a guardian ad litem should be appointed for the wife, and further held ". . . if the appointment of a guardian ad litem is deemed necessary, the wife is granted a stay of the eviction for 60 days following the appointment . . . (Id at 532)." There was no finding that the underlying judgment should be vacated."
Thursday, October 20, 2016
In NYC, there a variety of government agencies and nonprofit organizations that provide support to those who have fallen behind on rent.
Tuesday, October 18, 2016
An act to amend domestic relations law section 245, in relation to providing
additional enforcement mechanisms for collection of spousal or child support became
a law September 29, 2016, with the approval of the Governor. Here is the text of
"An act to amend the domestic relations law, in relation to providing additional enforcement mechanisms for collection of spousal or child support This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of his Matrimoni- al Practice Advisory and Rules Committee. This measure would amend D.R.L. § 245 to eliminate the requirement that other enforcement remedies be exhausted before contempt can be sought against a person who fails to pay child support, spousal support or combined child and spousal support pursuant to a court order in a matri- monial proceeding. Even though Family Court and Supreme Court often have concurrent juris- diction over support, the Family Court Act does not require a party to exhaust remedies before asking for contempt for failure to pay support. In contrast, D.R.L. § 245 expressly prohibits a party from seeking contempt without first exhausting other remedies. To exhaust a remedy can take months or even longer. For example, if a money judgment is obtained for the amount due, it may take some months to enforce the judgment. To exhaust every remedy could mean delay after delay for the families who need the support for their immediate needs. This ability to delay the case in Supreme Court works to the detriment of the non-monied spouse, the custodial parent, and children while a divorce proceeding is ongoing unless the Supreme Court refers the case to Family Court where the exhaustion of remedies requirements do not apply or unless a party seeks post-judgment relief in Family Court and not Supreme Court. It allows parties who owe support to delay further, knowing that contempt remedies for enforcement are a last resort. Incarceration will continue to be a remedy of last resort. This measure would not alter the court's current ability to utilize all remedies of enforcement including setting a purge amount, income execution, money judgment, requiring posting an undertaking and making an order of sequestration, after a finding of contempt. Inability to pay will continue to be a defense to a finding of contempt. Furthermore, as required under existing law, indigent obligors defending claims of contempt and possible imprisonment would continue to be enti- tled to assigned counsel. Such a measure was introduced in 2009-10 (A. 5979 (Weinstein), S. 2977 (Sampson)), which would have amended D.R.L. § 245 to delete the require- ment for exhaustion of remedies and also amended D.R.L. § 243 to allow the court to require posting of security to ensure payment of equitable distribution awards as well as child and spouse support (see http://www.assembly.state.nv.us/leg/?bn=AO5979&term=2009). Although we support the change to D.R.L. § 243 as well, we believe the amendment to D.R.L. § 245 is of great significance. While we recognize that the contempt remedy is not always effective, contempt is a powerful tool, and there is no reason why the Supreme Court should not have the same resources at its disposal as the Family Court. This measure, which would have no fiscal impact upon the State, would take effect immediately and apply to all actions whenever commenced as well as all judgments or orders previously entered."
Monday, October 17, 2016
Friday, October 14, 2016
Thursday, October 13, 2016
Monday, October 10, 2016
36 U.S.C. § 107 provides:
"The President is requested to issue each year a proclamation -
(1) designating the second Monday in October as Columbus Day;
(2) calling on United States Government officials to display the flag of the United States on all Government buildings on Columbus Day; and
(3) inviting the people of the United States to observe Columbus Day, in schools and churches, or other suitable places, with appropriate ceremonies that express the public sentiment befitting the anniversary of the discovery of America."
Posted by Jon Michael Probstein at 9:05 AM
Friday, October 7, 2016
This year, New York enacted Part Q of Chapter 73 of the Laws of 2016, Real Property Actions and Proceedings Law (“RPAPL”) in which Section 1308 requires certain holders of first lien mortgages to inspect, secure, and maintain vacant and abandoned one to four family residential real property. In addition, Section 1310 establishes a statewide vacant and abandoned property registry in the form of an electronic database to be maintained by the Department of Financial Services.
RPAPL Sections 1308(12) and 1310(4) authorize the Superintendent of Financial Services to issue the rules and regulations necessary to implement RPAPL Sections 1308 and 1310.
The regulations go into effect December 20, 2016 and can be viewed at this link:
Thursday, October 6, 2016
On October 3, the Consumer Financial Protection Bureau announced new regulations that will strengthen consumer protections for prepaid accounts and cards. Basically, the regulations provide users with consumer protections that are akin those offered to checking account holders.
The new rules are effective as of October 1, 2017.
To read the 1689 page announcement and rule, see http://files.consumerfinance.gov/f/documents/20161005_cfpb_Final_Rule_Prepaid_Accounts.pdf
Wednesday, October 5, 2016
Recently, Newsday has reported on the sealing of court records in civil cases. The rule, from the Administrative Rules of the Unified Court System & Uniform Rules of the Trial Courts, is set forth herein:
"Section 216.1 Sealing of court records.
(a) Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties. Where it appears necessary or desirable, the court may prescribe appropriate notice and opportunity to be heard.
(b) For purposes of this rule, "court records" shall include all documents and records of any nature filed with the clerk in connection with the action. Documents obtained through disclosure and not filed with the clerk shall remain subject to protective orders as set forth in CPLR 3103(a).
Sec. filed Feb. 28, 1991 eff. March 1, 1991.
Sec. filed Feb. 28, 1991 eff. March 1, 1991.
Friday, September 30, 2016
The new rules are listed here (http://www.courts.state.ny.us/ad3/COPS/22_NYCRR_Part_1240.pdf) and I just note the following which recognizes the role of alcohol and substance abuse:
"§ 1240.11 Diversion to a Monitoring Program
(a) When in defense or as a mitigating factor in an investigation or formal disciplinary charges, the respondent raises a claim of impairment based on alcohol or substance abuse, or other mental or physical health issues, the Court, upon application of any person or on its own motion, may stay the investigation or proceeding and direct the respondent to complete an appropriate treatment and monitoring program approved by the Court. In making such a determination, the Court shall consider:
(1) the nature of the alleged misconduct;
(2) whether the alleged misconduct occurred during a time period when the respondent suffered from the claimed impairment; and
(3) whether diverting the respondent to a monitoring program is in the public interest."
Thursday, September 29, 2016
Roberta P. v Vanessa J.P. 2016 NY Slip Op 04356 Decided on June 7, 2016 Appellate Division, First Department:
"Family Court properly found that the grandmother petitioner demonstrated the requisite extraordinary circumstances to seek custody of the child (see Matter of Suarez v Williams, 26 NY3d 440, 448 ; Matter of Bennett v Jeffreys, 40 NY2d 543, 544 ; Domestic Relations Law (DRL) § 72[a]). Contrary to the father's argument, the evidence supports the determination that petitioner, not the parents, cared for the child on a daily basis for a prolonged period of time of over 24 months, and that the child resided in her home during that period, and for almost all of his life. When the mother became unable by reason of mental illness to care for the child, the grandmother sought legal custody. By contrast, the father has not cared for the child, on a daily basis, for any length of time, has had sporadic contact, and has not provided financial support for the child's care (see Matter of Jerrina P. [June H.-Shondell N.P.], 126 AD3d 980 [2d Dept 2015]; Matter of Carton v Grimm, 51 AD3d 1111, 1113 [3d Dept 2008]).
The father did not challenge petitioner's standing to seek custody as a grandmother under DRL § 72, or raise any constitutional arguments at trial, and those arguments are unpreserved for appellate review (see Matter of Gracie C. v Nelson C., 118 AD3d 417 [1st Dept 2014]; Matter of Rayshawn F., 36 AD3d 429, 430 [1st Dept 2007]). With respect to petitioner's standing to seek custody, since she adopted the mother, she is the child's grandmother for purposes of DRL § 72 (see DRL § 117 [c]; Matter of Emanuel S. v Joseph E., 78 NY2d 178, 180 ; cf. Matter of Chifrine v Bekker, 97 AD3d 574, 575 [2d Dept 2012], lv denied 19 NY3d 814 ).
The father's due process arguments are unavailing, as the court made clear that the grant of temporary custody to petitioner was merely to preserve the status quo, confirming that petitioner, and not the father, was, at the time of the petition, raising the child. The court properly exercised its discretion in adjourning the proceeding to allow for the forensic evaluation to take place (see Matter of James Joseph M. v Rosana R., 32 AD3d 725, 727 [1st Dept 2006], lv denied 7 NY3d 717 ), and the father did not object (see Matter of Skyla Lanie B. [Jonathan Miranda B.], 116 AD3d 589, 590 [1st Dept 2014]).
There is no basis to disturb Family Court's determination that it is in the child's best interests to remain with petitioner (see Melissa C.D. v Rene I.D., 117 AD3d 407, 407-408 [1st [*2]Dept 2014]). Family Court properly considered all relevant factors in making that determination, and the evidence that petitioner had provided the child with a loving and stable home, as well as that the child wished to remain with her, supported the determination. On the other hand, the father had never provided for the child's care on a daily basis, and intended to uproot the child from his home, to move across the country, to be cared for by the father's fiancé, whom the child never met, without regard to the child's well-being or emotional needs (see Matter of Michaellica Lee W., 106 AD3d 639, 640 [1st Dept 2013]). Finally, the father's arguments regarding the court's visitation provision are unfounded. Since no home study was provided to the court concerning the father's new home in California, visitation was rationally restricted to New York City. To the extent the father refers to new information regarding his current marital status, living arrangements and employment, which was not before the trial court, such information is not part of the record on this appeal (see Mendoza v Plaza Homes, LLC, 55 AD3d 692 [2d Dept 2008]), but may be raised in a modification petition."
Wednesday, September 28, 2016
The bill (S.4771E / A.7610E), increases the minimum time before cards are charged a user fee, places additional restrictions on those fees, and expands the expiration dates of gift cards in order to protect consumers.
Under the new law:
1. The time period in which fees can be charged to unused gift card balances has been increased from 13 to 25 months and any monthly service fees that are applied after this time must be waived if the consumer uses the gift card within three years of the issue date.
2. The gift card's terms and conditions must describe exactly what the procedure is to replace a missing card.
3. No gift card may have an expiration date of earlier than five years from the date of issuance.
The bill was signed on September 26 and takes effect within 90 days thereafter. The amendment is to General Business Law Section 396-i
Tuesday, September 27, 2016
The headlines read " YOU CAN NOW BE BURIED WITH YOUR PET". But only in limited circumstances. S2582/A2647 was signed yesterday by the Governor and provides:
"Section 1. Section 1502 of the not-for-profit corporation law is amended by adding a new paragraph (q) to read as follows:
(Q) THE TERM "PET CREMATED REMAINS" MEANS ASHES AND/OR OTHER RESIDUE RECOVERED AFTER THE COMPLETION OF CREMATION OF ANY DOMESTIC ANIMAL THAT HAS BEEN ADAPTED OR TAMED TO LIVE IN INTIMATE ASSOCIATION WITH PEOPLE WHERE SUCH CREMATION HAS OCCURRED AT A PET CREMATORIUM AS DEFINED IN SECTION SEVEN HUNDRED FIFTY-A OF THE GENERAL BUSINESS LAW.
S 2. Section 1510 of the not-for-profit corporation law is amended by adding a new paragraph (n) to read as follows:
(N) INTERMENT OF PET CREMATED REMAINS. THE INTERMENT OF PET CREMATED REMAINS IN A CEMETERY CORPORATION SHALL BE AVAILABLE TO A LOT OWNER ONLY IN THOSE CIRCUMSTANCES WHERE THE INTERMENT IS INCIDENTAL TO THE BURIAL OF HUMAN REMAINS AND WHERE AUTHORIZATION HAS BEEN PROVIDED IN A WRITTEN STATEMENT FROM THE CEMETERY CORPORATION. THE CEMETERY CORPORATION SHALL PROVIDE A LIST OF APPROVED CHARGES FOR THE INTERMENT OF SUCH REMAINS. ALL PAYMENTS RECEIVED FOR INTERMENT OF SUCH REMAINS SHALL BE DEPOSITED IN THE CEMETERY CORPORATION'S PERMANENT MAINTENANCE FUND. PET CREMATED REMAINS MUST BE DISPOSED OF BY PLACING THEM IN A GRAVE, CRYPT, OR NICHE. NOTHING IN THIS SECTION SHALL OBLIGATE A CEMETERY CORPORATION TO ALLOW INTERMENT OF SUCH CREMATED PET REMAINS WHERE PRIOR APPROVAL AT THE TIME OF SALE OR IN ADVANCE OF NEED HAS NOT BEEN RECEIVED. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO AN INCORPORATED OR UNINCORPORATED CEME- TERY OPERATED, SUPERVISED OR CONTROLLED BY A RELIGIOUS CORPORATION OR A LOT, PLOT OR PART THEREOF WHOSE RECORD OWNER IS AN INCORPORATED OR UNIN- CORPORATED RELIGIOUS ASSOCIATION OR SOCIETY.
S 3. This act shall take effect immediately."
The summary explains it better:
"Section 1 of the bill amends Section 1502 of Article 15 of the Not-for-Profit Corporation Law to add a new definition of pet cremated remains.
Section 2 of the bill amends Section 1510 of Article 15 of the Not-for-Profit Corporation Law to add a new subdivision to provide the option for the interment of pet cremated remains in a cemetery corporation only in those instances where the interment is incidental to the burial of human remains and where authorization has been provided in a written statement from the cemetery corporation.
The provisions of this section make it clear that this bill does not apply to an incorporated or unincorporated cemetery operated, supervised or controlled by a religious corporation or a lot, plot or part thereof whose record owner is an incorporated or unincorporated religious association or society. Under the provisions of this section, a cemetery is not obligated to allow for such interments, however, the legislation provides a regulated option for such disposition.
Section 3 of the bill states that this legislation shall take effect immediately."
Monday, September 26, 2016
In this case, the names mentioned are an attorney who had himself named as power of attorney and an attorney who prepared the papers. This case is interesting as it describes some potential ethical issues when counsel is asked to prepare these documents.
Matter of Mitchell 2016 NY Slip Op 50853(U) Decided on June 3, 2016 Supreme Court, Kings County Pesce, J.:
"Respondent argues in his post trial memorandum, that this Court should find that the $122,000 in gifts to Mr. Shadoian were proper, because: 1) it is movant's burden to show that the IP was suffering from mental infirmity at the time the gifts were made and that movant had offered no proof as to the IP's debilitated mental status on the specific dates the checks were issued ( See Lee v. Bank of NY, 294 AD2d [2d Dept 2002]; Gala v. Magarinos, 245 AD2d [2d Dept 1997]) and 2) despite the fact that the gifts were made to a fiduciary, there is nothing in the record to indicate that the gifts resulted form undue influence or that they were based on anything other than gratitude, affection and esteem. (See Matter of Hedges, 100 AD2d 586, [2d Dept 1984]).
Movant concedes that, typically, the burden of proving undue influence rests upon the party alleging it. (See Allen v. La Vand , 213 NY 322, 323 ). Movant, however, advances [*6]the convincing and well established argument that if the donee of a transaction has a fiduciary or confidential relationship with the donor, the burden of proof shifts to the party receiving the benefit to prove by clear and convincing evidence that the transaction was fair and free of undue influence. (See Matter of Connelly, 193 AD2d 602 [2d Dept 1993]). Movant cites that this axiom was just reiterated by the Court of Appeals in Matter of Aoki, 27 NY3d 32 (2016) , where the court shifted the burden to the grantee that held a fiduciary relationship with the grantor.
However, an exception to that general rule provides that where a fiduciary relationship exists between the parties, the law of constructive fraud will operate to shift the burden to the party seeking to uphold the transaction to demonstrate the absence of fraud (see Matter of Aoki, supra, 39 citing Matter of Greiff, 92 NY2d 341, 345 ).
It is uncontroverted that at the times of the gifts, to wit: January 23, 2012, April 24, 2012, June 15, 2012 and September 19, 2012, Mr. Shadoian was in two fiduciary relationships with the IP. He was the IP's attorney-in-fact and her health care proxy, and therefore it is Mr. Shadoian's obligation to prove that the IP freely and voluntarily gifted $122,000.00 to him. Under New York law, it is Mr. Shadoian's burden to prove that the IP made $122,000.00 of cash gifts to him knowingly and voluntarily, without the taint of undue influence.
To prove that the IP freely and knowingly made these gifts, Mr. Shadoian called Mr. Gagliardi to testify. Mr. Gagliardi's testimony did nothing to prove that the gifts were voluntary. He spoke to the IP briefly over the phone and met her one time for 30 minutes while the IP was in the company of Mr. Shadoian. Additionally, when Mr. Gagliardi telephoned the IP and she answered the phone and the two spoke, we do not know if Mr. Shadoian was present and influencing the IP. Mr. Gagliardi's testimony was too threadbare to carry much weight. He spent so little time with the IP that his impression cannot be given much weight, especially in light of the fact that Mr. Gagliardi was never informed that APS had intervened in the IP's life, that the IP had been prescribed Alzheimer medication, that she had been hospitalized on several occasions due to her own and Mr. Shadoian's neglect.
Moreover, Mr. Gagliardi failed to make even elementary inquiries as to the actual size of the IP's estate, her medical condition, her social and familial history. Contrary to usual practice, he allowed an unrelated person, designated as beneficiary, to orchestrate the completion and execution of the Will. As to the validity of the Will, it will have to be decided on another day in another court, if the Will ever arrives back in the United States from its sojourn in Iran.Also as Mr. Shadoian's case, two letters, purportedly from medical personnel, placed into evidence by Mr. Shadoian, stating the IP was fine are likewise given little to no weight. These providers were unaware of IP's hospitalizations or history with APS, and their statements are devoid of any medical basis for their declarations."
Friday, September 23, 2016
Matter of Gonzalez v Ross 2016 NY Slip Op 04413 Decided on June 8, 2016 Appellate Division, Second Department:
The mother and the father are the parents of two children. In March 2013, following a breakdown of the parties' relationship as a result of the father's admitted drug use and his threatening behavior, the mother petitioned for sole custody of the parties' children and obtained a temporary order of protection against the father. The father cross-petitioned for custody or visitation. Prior to the commencement of a hearing on the parties' petitions, the mother relocated to Florida with the children and thereafter moved for temporary sole custody of the children and permission to relocate to Florida. The Family Court denied the mother's motion, but the court subsequently granted the motion of the attorney for the children to stay so enforcement of much of its order as required the mother to return the children to New York.
During the hearing, the attorney for the children moved to suspend the father's supervised visitation with the children based upon his erratic in-court behavior during the mother's testimony. The Family Court granted the motion, suspending all visitation between the father and the children until the father submitted to random drug and alcohol screens, tested negative, and underwent a comprehensive mental health evaluation. Following the conclusion of the hearing, the Family Court granted the mother's petition for sole custody of the children and her motion for permission to relocate with them to Florida. As relevant here, the court denied that branch of the father's cross petition which was for visitation with the children and directed him to submit to random drug and alcohol screens, test negative, and undergo a comprehensive mental health evaluation as conditions of future visitation. The father appeals.
The Family Court's determination, made after a hearing, to grant the mother permission to relocate to Florida with the parties' children is supported by a sound and substantial basis in the record (see Matter of Tropea v Tropea, 87 NY2d 727, 740; Matter of Bathjer v McCrae, 136 AD3d 688; Matter of Davis v Ogden, 109 AD3d 539; Matter of Eddington v McCabe, 98 AD3d 613).
However, the Family Court's determination to deny the father visitation with the parties' children is not supported by a sound and substantial basis in the record. " [V]isitation is a joint right of the noncustodial parent and of the child'" (Zafran v Zafran, 28 AD3d 753, 755, quoting Weiss v Weiss, 52 NY2d 170, 175). "As a general rule, some form of visitation by the noncustodial parent is always appropriate, absent exceptional circumstances, such as those in which it would be inimical to the welfare of the child or where a parent in some manner has forfeited his or her right to such access'" (Zafran v Zafran, 28 AD3d at 755, quoting Weiss v Weiss, 52 NY2d at 175; see Matter of Rambali v Rambali, 102 AD3d 797, 799; Matter of Giannoulakis v Kounalis, 97 AD3d 748; Matter of Balgley v Cohen, 73 AD3d 1038).
Here, the Family Court improperly based its determination to deny the father parental access upon the father's in-court demeanor (see Janousek v Janousek, 108 AD2d 782, 784-785), including his inability "to control his temper in open Court" and an instance in which he called the mother "a liar" as she testified. However, no correlation was made between the father's in-court demeanor and any detrimental effect on the children (see id. at 784-785). According to the supervised visitation reports prepared in connection with the father's therapeutic supervised visitation, the children appeared happy to see the father during each visit and were at ease with him throughout their time together. While the father did make some inappropriate comments to the children during the first visit regarding his desire for the family to remain together, the most recent report indicated that the father was "largely appropriate" with the children. Under the circumstances, the Family Court should have awarded the father supervised visitation with the children.
The Family Court also erred in directing the father to submit to random drug and alcohol screens, test negative, and undergo a comprehensive mental health evaluation as conditions of future visitation. "A court hearing a pending proceeding or action involving issues of custody or visitation may properly order a mental health evaluation of a parent, if warranted, prior to making a custody or visitation determination" (Lajqi v Lajqi, 130 AD3d 687, 688; see Family Ct Act § 251[a]). A court may also "direct a party to submit to counseling or treatment as a component of a visitation or custody order" (Lajqi v Lajqi, 130 AD3d at 688). A court may not, however, " order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights'" (Welch v Taylor, 115 AD3d 754, 756, quoting Matter of Smith v Dawn F.B., 88 AD3d 729, 730; see Matter of Torres v Ojeda, 108 AD3d 570, 571; Matter of Lane v Lane, 68 AD3d 995, 995; Zafran v Zafran, 28 AD3d at 756). Thus, the court improperly directed the father to submit to random drug and alcohol screens, test negative, and undergo a comprehensive mental health evaluation as conditions of future visitation."