Wednesday, August 23, 2017

FULL INTERVIEW ON SPREADING STDS




The full interview with PostiveSingles can be found here:

https://www.positivesingles.com/herpes-dating-support-blog/consulting-with-attorney-over-legalities-of-spreading-stds-on-dates-500

Tuesday, August 22, 2017

NYS PRO BONO CLEMENCY INITIATIVE



From Governor Cuomo's press release:

"Governor Andrew M. Cuomo today announced a first-in-the-nation partnership between a state and a coalition of legal organizations to expand New York's pro bono clemency program.

This partnership with the National Association of Criminal Defense Lawyers, with support from the Foundation for Criminal Justice, Families Against Mandatory Minimums, and other organizations is modeled after a successful federal program that has been discontinued since the Trump administration. This new partnership greatly expands the Governor's clemency initiative founded in 2015 that provided pro bono clemency petition services to individuals with criminal records or incarcerated in state prison.

"These nationally recognized organizations have already proven successful in helping incarcerated individuals get access to the resources they need to apply for clemency, make the case for their rehabilitation and have the opportunity to contribute to and re-enter society," Governor Cuomo said. "I'm proud to partner with them to expand the work of this administration and its partners and take one more step toward a more just, more fair and more compassionate New York for all."

By engaging more pro bono lawyers, this partnership will provide a steady supply of high-quality clemency applications for the Governor's Counsel's Office to review. The NACDL will work with the Executive Clemency Bureau to identify those deserving of a second chance, and make clemency a more accessible and tangible reality in New York."

Monday, August 21, 2017

ON ZOMBIE HOMES



Section 1308 of the Real Property Actions and Proceedings Law imposes a duty to inspect, secure and maintain vacant and abandoned properties on mortgagees or their servicing agents.

The New York State Department of Financial Services has created a web site page to advise and inform on the proper rules for these properties entitled "Zombie Property Maintenance Home Page"

See http://www.dfs.ny.gov/banking/zombie_prop_maintenance.htm

Friday, August 18, 2017

NEW PRIVACY LAW

On August 16, 2017, Governor Andrew M. Cuomo signed legislation to crack down on the unauthorized invasion of privacy by video surveillance. Following reports of cameras being installed to unlawfully videotape neighboring private property, this bill (S.870A/A.861A) establishes a private right of action for damages for an unlawful invasion of privacy in an individual's backyard pursuant to an amendment to the Civil Rights Law adding section 52-a.

According to the Assembly report:

"In 2003, Stephanie's Law was signed into law. This bill seeks to close a
gap in that law. Stephanie's Law was named after Stephanie Fuller, a
woman who discovered that she was being secretly videotaped in her
bedroom by her landlord. This law sought to expand protections of priva-
cy to include incidents where voyeurs used new types of technology.

Stephanie discovered that she was being videotaped by her landlord when
her boyfriend noticed strange wires coming out of the smoke alarm in her
bedroom. Because her landlord used a video camera that was not filming
Stephanie through her window, he could not be charged with violating New
York's "Peeping Tom" laws.

Under Stephanie's Law, unlawful Surveillance is now a Class E felony,
punishable by up to four years imprisonment for first time offenders,
and up to seven years for repeat offenders (N.Y. Crim. Pen. L. 250.5).

Several other states have also enacted their own versions of Stephanie's
Law, including: Washington, Tennessee, Wisconsin, Virginia, California,
and Illinois. All of these anti-voyeurism laws focus their protection of
privacy on the physical location where the incident occurred rather than
on the individual privacy invasion committed.

Currently, New York contains no restrictions to control videotaping
which monitors a neighbor's back yard. Penal Law Sections 250.40 et seq.
only establishes criminal penalties for unlawful video surveillance when
the videotaping occurs in a setting with a "reasonable expectation of
privacy" (i.e. a bathroom or changing room), or if a perpetrator had to
trespass on property to videotape or install a camera.

In at least one instance, a family has been subject to undue stress and
concern for their young children's safety when they were subject to
constant camera surveillance while swimming or sunbathing in their own
backyard by an adjoining neighbor who is a registered sex offender.
However, because New York State law provides no protection from unwar-
ranted and potentially dangerous video observation and recording, there
is little that can be done to prevent this unnerving intrusion.

This legislation would help to ensure that the rights of adjoining land-
owners are subordinate to the rights of individuals who wish to enjoy
backyard recreational activities with a certain expectation of privacy,
without being subject to annoying or harassing behavior.  Owners who do
not care about their neighbor's video imaging can authorize such obser-
vation via written consent. No right of privacy is afforded when the
imaging is done by a law enforcement officer in the course of their
official duties."


Wednesday, August 16, 2017

RETAINING A LAW FIRM PARTNER AS COUNSEL TO RECEIVER



Dupree v Voorhees 2017 NY Slip Op 06062 Decided on August 9, 2017 Appellate Division, Second Department:

"The plaintiff commenced this action, inter alia, to recover damages for violation of Judiciary Law § 487 against, among others, Karyn A. Villar and Villar's law partner, Dorothy A. Courten (hereinafter together the defendants). The plaintiff alleged that in an underlying divorce action, in which Villar represented the plaintiff's former husband, Villar made misrepresentations in applying for a receivership order and that she intended to deceive the court in connection with that application. The plaintiff alleged that because the defendants were partners of the same law firm, Courten was vicariously liable for the damages she sustained as a result of Villar's actions. After a nonjury trial, the Supreme Court determined, among other things, that the plaintiff failed to establish that Villar violated Judiciary Law § 487 and that the action should be dismissed.

"In reviewing a determination made after a nonjury trial, this Court's power to review the evidence is as broad as that of the trial court, and this Court may render a judgment it finds warranted by the facts, bearing in mind that due regard must be given to the trial court, which was in a position to assess the evidence and the credibility of the witnesses" (L'Aquila Realty, LLC v Jalyng Food Corp., 148 AD3d 1004, 1005; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; Broderson v Parsons, 106 AD3d 677, 679).

Judiciary Law § 487(1) provides that "[a]n attorney or counselor who . . . [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . . [i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by [*2]the penal law, he [or she] forfeits to the party injured treble damages, to be recovered in a civil action." "A violation of Judiciary Law § 487 requires an intent to deceive" (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108; see Judiciary Law § 487[1]; Ginsburg Dev. Cos., LLC v Carbone, 134 AD3d 890, 893; Dupree v Voorhees, 102 AD3d 912, 913). Here, the evidence adduced at trial, including the testimony of Villar, supports the trial court's determination that Villar did not act with the requisite "intent to deceive the court or any party" in applying for the receivership (Judiciary Law § 487[1]).

In any event, to succeed on a cause of action to recover damages under Judiciary Law § 487, the plaintiff must demonstrate that he or she "suffered . . . damages which were proximately caused by the deceit allegedly perpetrated on him [or her] or on the court" (O'Connor v Dime Sav. Bank of N.Y., 265 AD2d 313, 314; see Manna v Ades, 237 AD2d 264, 265; Di Prima v Di Prima, 111 AD2d 901, 902). The evidence adduced at trial also supports the trial court's conclusion that the plaintiff failed to establish that she suffered pecuniary damages as a result of the alleged deceit. Therefore, we decline to disturb the trial court's determination."

The NYSBA addressed a similar issue in NEW YORK STATE BAR ASSOCIATION Committee on Professional Ethics Opinion #471 - 6/9/77 (58-77). See also Fiduciary Appointments in New York A Report to Chief Judge Judith S. Kaye and Chief Administrative Judge Jonathan Lippman, March 9, 2000.

Tuesday, August 15, 2017

IN MEMORY OF ANTHONY NAPOLITANO



My first law partner Anthony Napolitano (October 8, 1951 - August 7, 2017).

Probstein & Napoltano was founded in 1983. First located at 345 Park Avenue, here we are in our offices at 150 East 58th Street and we later moved to 230 Park Avenue.

Monday, August 14, 2017

ON GOVERNOR CUOMO'S ANNOUNCEMENT TO PURCHASE NOTES ON 398 HOMES



Governor Andrew M. Cuomo on August 11announced that the state's new $7.6 million Community Restoration Fund has purchased the mortgages/notes for 398 homes in a strategic effort to bring owners in targeted communities out of foreclosure and keep the homes from abandonment through renovation and resale where necessary.

203 of these homes are based in Long Island.

The relief will take the following form:

"To keep the original owners affordably in their homes, the CRF program works in ways that public and private servicers cannot, including engaging a network of locally based nonprofit housing counselling organizations that provide one-on-one counselling with the owner and direct outreach to the lender to modify the loan, and making possible necessary repairs and addressing deferred maintenance.

In cases where a mortgage modification is not possible and the homeowner cannot financially support a reduced mortgage or no longer wants to own a home, HCR and its nonprofit partners can offer resources and support to help the owner get a fresh start, while ensuring that the property is not abandoned, and is quickly repaired and resold as affordable housing to a qualified buyer."

NOTE: If you are facing foreclosure and your mortgage was not one of those purchased by the CRF, there is still help available!  The links below can provide you with information on other sources of foreclosure support as well as contacts that can potentially assist you.

HomeSmartNY Foreclosure Counseling
– Foreclosure Prevention Counseling

Homeowner Protection Program Counselors
         – HomeOwners Protection Program

Help for Homeowners Facing Foreclosure
– Department of Financial Services

New York State Mortgage Assistance Program
– Mortgage Assistance Program

SONYMA Borrowers:  Call (800) 382-4663

Friday, August 11, 2017

ON SPOLIATION OF EVIDENCE



Aponte v Clove Lakes Health Care & Rehabilitation Ctr., Inc. 2017 NY Slip Op 06056 Decided on August 9, 2017 Appellate Division, Second Department:

""A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547 [internal quotation marks omitted]; see Golan v North Shore-Long Is. Jewish Health Sys. Inc., 147 AD3d 1031, 1032). "[I]n the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices" (Bill's Feed Serv., LLC v Adams, 132 AD3d 1400, 1401 [internal quotation marks omitted]; see Golan v North Shore Long Is. Jewish Health Sys., Inc., 147 AD3d at 1033-1034; Iannucci v Rose, 8 AD3d 437, 438; cf. Biniachvili v Yeshivat Shaare Torah, Inc., 120 AD3d 605, 606-607).

Here, the plaintiffs alleged that on July 13, 2013, the plaintiff Blanche Aponte was injured at the defendant's facility when a bed upon which she was lying collapsed. Approximately two years later, on March 17, 2015, the plaintiffs commenced the instant action by filing a summons and complaint. Sometime after the action was commenced, the plaintiffs demanded an inspection of the bed. However, the defendant claimed that, long before the instant action was commenced, the bed was examined by the defendant's maintenance worker, found to be fit, and reinserted into use at the defendant's facility, thereby rendering it unidentifiable. There is nothing in the record before this Court which demonstrates that the defendant had notice of the plaintiffs' claim prior to the commencement of the litigation, which was approximately two years after the accident. The plaintiffs therefore failed to establish that the defendant intentionally or negligently failed to preserve crucial evidence after being placed on notice that the evidence might be needed for future litigation (see Biniachvili v Yeshivat Shaare Torah, Inc., 120 AD3d at 606; Samaroo v Bogopa Serv. Corp., 106 AD3d 713, 714; Leevson v Bay Condos, LLC, 67 AD3d 972, 973; Jenkins v Proto Prop. Servs., LLC, 54 AD3d 726, 727; Sloane v Costco Wholesale Corp., 49 AD3d 522, 523; Lovell v United Skates of Am., Inc., 28 AD3d 721, 721; cf. Rokach v Taback, 148 AD3d 1195, 1196)."

Thursday, August 10, 2017

WHAT IS HOME IMPROVEMENT FOR PURPOSES OF CONSUMER AFFAIRS LICENSE



TPE VENTURES, INC. v. NASSAU COUNTY OFF. OF CONSUMER AFFAIRS, 2017 NY Slip Op 50839 - NY: Supreme Court 2017:

"........The NCAC provides that the definition of home improvement "means repair, maintenance, replacement remodeling, alteration, conversion, modernization, or addition to any land or building, or that portion thereof, which is used as a private residence or dwelling place for not more than three families, and other improvements to structures or upon land which is adjacent to a dwelling and shall include, but not be limited to gardening/landscaping."

In its Verified Petition, the Petitioner admits that "core aeration involves perforating the soil with small holes to allow air, water and nutrients to penetrate the grass roots. This helps the roots grow deeply and produce stronger, more vigorous lawn." In similar fashion, the Hearing Officer determined that core aeration "involves alteration of the earth".

The cornerstone of this Court's review of the County's determination is one of rationality. The Hearing Officer's conclusion that the act of core aeration alters the land of the Petitioner's customers and thus requires a home improvement license issued by Nassau County is supported by a rational basis and is reasonable. Judicial function is exhausted when there is found to be a rational basis for conclusions approved by an administrative body."

Wednesday, August 9, 2017

DEADLOCK DISPUTES IN CLOSE CORPORATIONS



MATTER OF GREATER CAPITAL REGION ASSOCIATION OF REALTORS, INC., 2015 NY Slip Op 51857 - NY: Supreme Court, Albany:

"Judicial dissolution of a business corporation is authorized where "the directors are so divided respecting the management of the corporation's affairs that the votes required for action by the board cannot be obtained" (Business Corporation Law § 1104 [a] [1]). Dissolution also is available where "there is internal dissension and two or more factions of shareholders are so divided that dissolution would be beneficial to the shareholders" (Business Corporation Law § 1104 [a] [3]).

The dissension, disagreement and division within the corporation must "pose[] an irreconcilable barrier to [its] continued functioning and prosperity" (Matter of Dream Weaver Realty, Inc. [Poritzky-DeName], 70 AD3d 941, 942 [2d Dept 2010] [internal quotation marks omitted]; see also Matter of Clever Innovations, Inc. [Dooley], 94 AD3d 1174, 1176 [3d Dept 2012]). But "the underlying reason for the dissension is of no moment, nor is it at all relevant to ascribe fault to either party. Rather, the critical consideration is the fact that dissension exists and has resulted in a deadlock precluding the successful and profitable conduct of the corporation's affairs" (Matter of Goodman v Lovett, 200 AD2d 670, 670-671 [2d Dept 1994] [citations omitted]). In determining whether to grant dissolution, "the benefit to the shareholders . . . is of paramount importance" (Business Corporation Law § 1111 [b] [2]), and "dissolution is not to be denied merely because it is found that the corporate business has been or could be conducted at a profit" (id. [b] [3]).

Applying the foregoing principles of law to the credible testimony and documentary evidence adduced at trial, the Court finds and determines that dissolution is warranted under both Business Corporation Law § 1104 (a) (1) and (3).

.......

The paralysis of the CRMLS Board is a direct outgrowth of the extreme division and dissension that has developed over a long period of time between the two shareholders, each of which owns one-half of the stock in the MLS joint venture. ......"


Tuesday, August 8, 2017

SHAREHOLDER DISPUTES IN FAMILY CLOSE CORPORATIONS



Matter of Twin Bay Vil., Inc. v Kasian 2017 NY Slip Op 06024 Decided on August 3, 2017 Appellate Division, Third Department:

"In 1957, the Chomiak family began operating Twin Bay Village, a seasonal summer resort on the shores of Lake George. In 1970, the family formed Twin Bay Village, Inc., a closely-held corporation, for the purpose of operating the resort. At its inception, 100 shares of corporate stock were issued, and those shares were split among Stephan Chomiak and Eleonora Chomiak and their two sons, Leo Chomiak and petitioner Vladimir Chomiak. Over the ensuing years, the division of the corporate shares changed and, by 2004, Valdimir Chomiak's son and daughter, petitioners Leon Chomiak and Leonora Chomiak, were the beneficial owners of a combined 48 shares, and Leo Chomiak and his two daughters, [*2]respondents Tatiana Chomiak Kasian and Tamara Chomiak, owned the remaining 52 shares. In addition to these changes in ownership, the level of involvement of petitioners in operating the resort and managing the corporation changed over the years. Although petitioners were initially involved in helping to run the resort in the 1980s, their involvement thereafter declined, leaving the responsibility for operating the resort and managing the corporation entirely to respondents. In 2009, after years of running the corporation without petitioners' involvement, respondents attempted to force petitioners to sell their shares back to the corporation. After petitioners refused, they commenced this proceeding pursuant to Business Corporation Law § 1104-a seeking judicial dissolution of the corporation."

The court upheld the lower court's finding that the business should be dissolved:

"Business Corporation Law § 1104-a permits a court to dissolve a closely-held corporation where, as is relevant here, those in control of the corporation have engaged in "oppressive actions toward the complaining shareholders" or have "looted, wasted, or diverted" corporate assets for noncorporate purposes (Business Corporation Law § 1104-a [a] [1], [2]; see Matter of Penepent Corp., 96 NY2d 186, 191 [2001]; Matter of Clever Innovations, Inc.[Dooley], 94 AD3d 1174, 1176 [2012]; Matter of Quail Aero Serv., 300 AD2d 800, 802 [2002]). "Although the term 'oppressive actions' is not statutorily defined, the Court of Appeals has held that 'oppression should be deemed to arise . . . when the majority conduct substantially defeats expectations that, objectively viewed, were both reasonable under the circumstances and were central to the petitioner[s'] decision to join the venture'" (Matter of Upstate Med. Assoc., 292 AD2d 732, 733 [2002], quoting Matter of Kemp & Beatley [Gardstein], 64 NY2d 63, 73 [1984]; accord Matter of Gould Erectors & Rigging, Inc., 146 AD3d at 1129). Contrary to respondents' [*4]contention, this standard is equally applicable to passive shareholders, such as petitioners, inasmuch as the standard is not focused on the complaining shareholders' level of involvement with the corporation but, rather, their reasonable expectations and whether those expectations were defeated (see Matter of Kemp & Beatley [Gardstein], 64 NY2d at 72-73; Matter of Parveen, 259 AD2d 389, 391 [1999])."

Monday, August 7, 2017

THE RIGHTS OF DOMESTIC PARTNERS IN NYC



A domestic partnership is a legal arrangement that commits two people to one another. New York City allows both same sex and traditional couples to register for domestic partnerships. Since July 2011, New York state has also allowed same sex marriages. However, domestic partnerships do not acquire all of the same rights and benefits as married couples.

For information on NYC rules, see http://www.cityclerk.nyc.gov/html/marriage/domestic_partnership_reg.shtml

Other New York cities and counties offer domestic partnership registries:

For Albany, see http://ecode360.com/7683425

For Westchester, see http://www.westchesterclerk.com/index.php?option=com_content&view=article&id=17&Itemid=212

For Suffolk, see http://www.suffolkcountyny.gov/Departments/CountyClerk/DomesticRegistry.aspx

For Town of North Hempstead, see http://www.northhempsteadny.gov/content/16253/16898/16907/default.aspx

Note that only certain localities within Nassau County allow for domestic partnerships. As the NY Times reported in April 2006: "After a heated debate between gay rights advocates and critics espousing traditional families, the Nassau County Legislature unexpectedly defeated a proposal on Monday to create a registry for unmarried couples to record domestic partnerships."

However in New York City, Rockland County and Suffolk County, one partner may be an employee of the city/county at the time of registration instead of being a resident. Also, in Albany, Ithaca, and Rochester you do not have to be residents to file.[


Friday, August 4, 2017

NEW BINGO RULES



Charitable gaming occurs in the form of bingo, bell jar sales, the conduct of Las Vegas nights, and operation of raffles in each of the 62 counties of New York. For Bingo, the following changes are effective July 9, 2017:

"Bingo
Prizes maximums: The maximum single prize for bingo will increase from $1,000 to $5,000. The maximum prize per occasion will increase from $3,000 to $15,000. (General Municipal Law sections 479(5) and 479(6))
Minimum age to play: Consistent with other forms gambling in the state, the minimum age to play bingo is 18 years of age. Minors under the age of 18 are still permitted to attend, but are not be permitted to play bingo. Persons 16 years of age or older may continue to perform ancillary non-gaming activities conducted in conjunction with licensed bingo, such as assisting at any food concession, cleaning, maintenance and site preparation. (General Municipal Law sections 476(13) and 486)
Advertising: The options for bingo advertisement platforms will be expanded to include television and the internet – pending adoption of applicable Commission rules. Such bingo advertisements will be permitted to include descriptions of the prizes offered. (General Municipal Law section 490)" 

Thursday, August 3, 2017

FEDERAL BENEFITS AND GARNISHMENT

Generally debt collectors can’t take your Social Security or VA benefits directly out of your bank account or prepaid card.

For further review, see https://www.consumerfinance.gov/ask-cfpb/can-a-debt-collector-take-my-social-security-or-va-benefits-en-1157/

Wednesday, August 2, 2017

UNEMPLOYMENT INSURANCE - MISCLASSIFICATION



A recent case from the 3rd Department. MATTER OF TAUSCHER CRONACHER PE PC v. Commissioner of Labor, 2017 NY Slip Op 2488 - NY: Appellate Div., 3rd Dept. 2017:

" "Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence" (Matter of Singhal [Brody—Commissioner of Labor], 128 AD3d 1308, 1308 [2015] [internal quotation marks and citations omitted]; see Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010]). "Where the provision of professional services' is involved, the relevant inquiry becomes whether the purported employer retains overall control of `important aspects of the services performed'" (Matter of Kliman [Genesee Region Home Care Assn., Inc.—Commissioner of Labor], 141 AD3d 1049, 1049-1050 [2016], quoting Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]; see Matter of Eray Inc. [Commissioner of Labor], 136 AD3d 1129, 1130 [2016]).

Here, although the inspectors signed a standard agreement identifying them as independent contractors, the agreement contained a noncompete clause prohibiting the inspectors from working directly or indirectly with competing engineering firms within Tauscher's geographic region, including 100 miles from the Empire State Building in New York City. The agreement further provided that the inspectors perform their inspections in accordance with industry and professional standards and that their post-inspection reports be drafted on forms provided by Tauscher and submitted to Tauscher within a limited time frame. The inspectors were also required to participate in Tauscher's self-insurance fund, as well as pay for professional liability insurance obtained by Tauscher, and to share in the costs of any litigation arising out of the inspections. Tauscher scheduled the time of the inspections, which were not subject to modification by the inspectors, and would seek a replacement inspector if the original inspector was unavailable. Tauscher also provided the inspectors with business cards bearing Tauscher's name to provide to its clients.

With regard to compensation, Tauscher established the fees that clients were required to pay for the inspections and also unilaterally set the percentage of the fees that constituted payment for the inspectors. In order for the inspectors to receive payment, they were required to submit invoices to Tauscher, which in turn would pay the inspectors directly. In addition, Tauscher managed the billing of, and collection from, clients. Notwithstanding the proof in the record that could support a contrary result, the foregoing evidence demonstrates that Tauscher retained overall control over important aspects of the services performed by the inspectors, and we therefore find that substantial evidence supports the determination of the Board assessing Tauscher additional unemployment insurance contributions for remuneration paid to the inspectors (see Matter of Jaeger [Vendor Control Serv., Inc.—Commissioner of Labor], 106 AD3d 1360, 1360-1361 [2013]; Matter of Wells [Madison Consulting, Inc.—Commissioner of Labor], 77 AD3d 993, 995 [2010]; Matter of Perdue [Environmental Compliance, Inc.—Commissioner of Labor], 47 AD3d 1139, 1140-1141 [2008]). Contrary to Tauscher's contention that the Board's resolution of this case was unreasonably delayed, we do not find any reason on the record before us, including prejudice shown, to disturb the determination of the Board (see Matter of Koenig [Commissioner of Labor], 45 AD3d 1147, 1148 [2007]; Matter of Reifer [D'Angelo—Commissioner of Labor], 253 AD2d 949, 949 [1998])."

Tuesday, August 1, 2017

22 YEAR MARRIAGE, 5 YEAR DIVORCE, 6 MORE YEARS OF MAINTENANCE



Galanopoulos v Galanopoulos, 2017 NY Slip Op 05807, Decided on July 26, 2017,Appellate Division, Second Department:

"The parties were married on May 6, 1990, and are the parents of two emancipated children. During the marriage, the plaintiff was the primary caregiver for the children and a homemaker. The defendant owned a restaurant in Manhattan. In 2012, after 22 years of marriage, the plaintiff commenced this action for a divorce and ancillary relief. A nonjury trial was held on the issues of equitable distribution of the marital property and maintenance. The Supreme Court issued a decision after trial, and subsequently a judgment, inter alia, awarding the plaintiff the marital residence, with a credit to the defendant in the amount of $315,000, and maintenance in the amount of $5,000 per month from December 1, 2014, until November 1, 2017, then $4,000 per month until November 1, 2020, and then $3,000 per month until October 31, 2023. The plaintiff was also awarded the total sum of $514,564, representing her equitable share of numerous real estate investment properties located in New Jersey, including the sum of $83,500, representing one-half of the value of funds the defendant had withdrawn from an account in his name with Eurobank. The defendant appeals, as limited by his notice of appeal, from stated portions of the judgment of divorce.

"[T]he amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts" (Repetti v Repetti, 147 AD3d 1094, 1096 [internal quotation marks omitted]; see Kaprov v Stalinsky, 145 AD3d 869, 874). "The factors to consider in awarding maintenance include the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance'" (Horn v Horn, 145 AD3d 666, 668, quoting Kret v Kret, 222 AD2d 412, 412). "The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting" (Sansone v Sansone, 144 AD3d 885, 886 [internal quotation marks omitted]). Considering the relevant factors, in this case, the amount and duration of the maintenance award was a provident exercise of discretion (see Ralis v Ralis, 146 AD3d 831, 833; Bogenschultz v Green, 144 AD3d 958, 959; Maddaloni v Maddaloni, 142 AD3d 646, 654; Perdios v Perdios, 135 AD3d 840, 842)."

Monday, July 31, 2017

COMMERCIAL LITIGATION - ACCOUNT STATED



Caring Professionals, Inc. v Landa, 2017 NY Slip Op 05803, Decided on July 26, 2017 Appellate Division, Second Department:

"An account stated is an agreement, express or implied, between the parties to an account based upon prior transactions between them with respect to the correctness of account items and a specific balance due on them which is independent of the original obligation (see Clean Earth of N. Jersey, Inc. v Northcoast Maintenance Corp., 142 AD3d 1032, 1035; Citibank [S.D.], N.A. v Brown-Serulovic, 97 AD3d 522, 523). An essential element of an account stated is that the parties came to an agreement with respect to the amount due (see Episcopal Health Servs., Inc. v POM Recoveries, Inc., 138 AD3d 917, 919; Cameron Eng'g & Assoc., LLP v JMS Architect & Planner, P.C., 75 AD3d 488, 489).

Upon reargument, the Supreme Court properly determined that the plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law on the cause of action to recover on an account stated. The plaintiff's evidentiary submissions did not establish that the parties came to an agreement with respect to the amount of the balance due (see Raytone Plumbing Specialties, Inc. v Sano Constr. Corp., 92 AD3d 855, 856)."

Friday, July 28, 2017

SNOW REMOVAL LIABILITY



Yes, it's summer but winter is coming. In this recent Appellate Division Second Department case on legal malpractice, the court discusses the general rules on liability for snow removal. Balan v Rooney, 2017 NY Slip Op 05801, Decided on July 26, 2017, Appellate Division, Second Department:

""[A] landowner generally cannot be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter'" (Weller v Paul, 91 AD3d 945, 947, quoting Mazzella v City of New York, 72 AD3d 755, 756; see Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d 1177; Salvanti v Sunset Indus. Park Assoc., 27 AD3d 546). "However, once a landowner elects to engage in snow removal activities, it is required to act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm" (Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d at 1177; see Salvanti v Sunset Indus. Park Assoc., 27 AD3d at 546; Chaudhry v East Buffet & Rest., 24 AD3d 493).

Here, the defendant failed to demonstrate his prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for legal malpractice on the ground that the plaintiff could not have prevailed in an action against the property owner. While the defendant demonstrated, prima facie, through certified meteorological data and the plaintiff's deposition testimony, that the accident occurred less than one hour after the snowstorm ceased, he did not eliminate triable issues of fact as to whether the property owner created or exacerbated a hazardous condition through negligent snow removal efforts (see Anderson v Landmark at Eastview, Inc., 129 AD3d 750, 751; Salvanti v Sunset Indus. Park Assoc., 27 AD3d at 546-547; Chaudhry v East Buffet & Rest., 24 AD3d at 494). In particular, in light of the plaintiff's deposition testimony, a triable issue of fact exists as to whether the property owner, upon clearing snow from a small portion of the premises, had left a pile of snow that the plaintiff had to "lift [her] leg" to "cross" over, causing her to slip and fall. Accordingly, that branch of the defendant's motion which was for summary judgment dismissing the legal malpractice cause of action should have been denied."

Thursday, July 27, 2017

CUSTODY/VISITATION NOT AN ISSUE WHEN CHILDREN REACH MAJORITY



MATTER OF DE OLIVEIRA v. De Oliveira, 2017 NY Slip Op 5223 - NY: Appellate Div., 2nd Dept. 2017:

"The father's appeal from the order denying his petition for visitation with the parties' daughters must be dismissed as academic, since their daughters are now more than 18 years of age (see Matter of Julian B. v Williams, 97 AD3d 670, 670-671; Matter of Bartley v Pringle, 90 AD3d 653)."

There are many approaches, counseling, etc. available for parents with estranged children. For example, see http://www.rejectedparents.net/