Tuesday, January 24, 2017
Monday, January 23, 2017
I will be volunteering today, Monday January 23, at the Nassau County Bar Association's free clinic for Mortgage Foreclosure, Bankruptcy and Superstorm Sandy issues, from 3pm to 6pm.
For more information, contact Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501 at (516) 747-4070
Friday, January 20, 2017
The Defense Manpower Data Center's (DMDC) Military Verification service can be used to verify if someone is currently serving in the military.
Information needed includes the Social Security Number and other personal information and the service will indicate that the Department either does not possess information regarding the individual or that the individual is in the military (in a signed printable letter format containing the Department of Defense seal).
Thursday, January 19, 2017
QAZA v. HAZZA ALSHALABI, 2016 NY Slip Op 26402 - NY: Supreme Court 2016:
"It is well established the CPLR 308(5) vests a court with the discretion to direct an alternative method of service of process when it has determined that the methods set forth in CPLR 308(1), (2) and (4) are impracticable (see State Street Bank and Trust Company v. Coakley, 16 AD3d 403, 790 NYS2d 412 [2 Dept.,2005]; see also CPLR 308). Although the impracticability standard "is not capable of easy definition" (Markoff v. South Nassau Community Hosp., 91 AD2d 1064, 1065, 458 N.Y.S.2d 672, affd. 61 NY2d 283, 473 N.Y.S.2d 766, 461 N.E.2d 1253), it does not require the applicant to satisfy the more stringent standard of due diligence under CPLR 308(4), or to make a showing that actual prior attempts to serve a party under each and every method provided in the statute have been undertaken (see Astrologo v. Serra, 240 AD2d 606, 659 N.Y.S.2d 481 [2 Dept.,1997]).
In Dobkin v. Chapman, the Court of Appeals noted that "[d]ue process is not, however, a mechanical formula or a rigid set of rules" and that "in modern jurisprudence, the term has come to represent a realistic and reasonable evaluation of the respective interests of plaintiffs, defendants and the state under the circumstances of the particular case" (21 NYS2d 490, 502, 236 NE2d 451 ). The Court of Appeals continued in Dobkin that "[o]ur law has long been comfortable with many situations in which it was evident, as a practical matter, that parties to whom notice was ostensibly addressed would never in fact receive it" such may occur in some situations where service by publication is permitted (id. at 502) and that the determination must be made upon the facts and circumstances before the court because "what might be inadequate notice in one kind of situation will amount to due process in another" (id. at 503).
The facts and circumstances before this Court are distinguishable from the facts before the Court in the case of Safadjou v. Mohammadi relied upon by plaintiff's counsel (105 AD3d 1423, 964 NYS2d 801 [4 Dept.,2013]). In Safadjou v. Mohammadi the Court permitted service by e-mail pursuant to CPLR 308(5); however, in that case, the record established that the plaintiff and defendant had been communicating by e-mail and, therefore, the Court found that "plaintiff made the requisite showing that service by e-mail was `reasonably calculated to apprise defendant of the pending lawsuit and thus satisfie[d] due process'" (Safadjou v. Mohammadi, 105 AD3d 1423, 1425, 964 NYS2d 801 [4 Dept.,2013], citing Harkness v. Doe, 261 AD2d 846, 847 [4th Dept.,1999]). Unlike the facts and circumstances presented in Safadjou, in the application before this Court plaintiff has failed to sufficiently authenticate the Facebook profile as being that of defendant and has not shows that, assuming arguendo that it is defendant's Facebook profile, that defendant actually uses this Facebook page for communicating. As such, plaintiff has not demonstrated that, under the facts presented here, service by Facebook is reasonably calculated to apprise defendant of the matrimonial action.
The act for divorce has a multitude of ancillary affects on the rights and liabilities of parties. The Court must be scrupulous in allowing service by a methodology most likely to give notice not only are one's economic responsibilities and rights to pay and receive maintenance and child support but rights to property, inheritance and most importantly the Constitutional right to custody and visitation [see generally Troxel v. Granville, 530 US 57, 120 S.Ct. 2054 . If the standard for review of an agreement in any matrimonial action is higher than that in a plenary action certainly the Court must be satisfied that there is some semblance of due process notice (see generally Kessler v. Kessler, 33 AD3d 42, 818 NYS2d 571 [2 Dept.,2006]).
Upon careful review of the profile pages annexed by plaintiff, which she purports to be defendant's profile, indicates that the profile has not been updated since April 27, 2014. The Court further notes that while plaintiff's counsel contends that plaintiff has communicated with defendant through Facebook the plaintiff's affidavit is entirely silent regarding any alleged communication with defendant through Facebook including any representation regarding dates when she communicated with defendant or that she communicated with defendant through this Facebook page. The Court notes that plaintiff did not annex copies of any of the alleged Facebook correspondence with defendant that she contends link him to this Facebook profile. Contrary to plaintiff's assertions she has not demonstrated that this profile is maintained by defendant and, therefore, while substituted service by publication may be appropriate under the facts and circumstances presented in the case at bar plaintiff has failed to establish that service of the summons by Facebook to this profile account would, under the facts as alleged here, be "reasonably calculated" to put defendant on notice. Furthermore, assuming arguendo that plaintiff had demonstrated this to be defendant's Facebook profile she has not demonstrated that defendant continues to use this profile currently since there is no indication that the profile has been used since April 2014. The Court notes that there is no sworn statement by plaintiff that she communicated with defendant through this Facebook profile nor are copies of any such correspondence which may support plaintiff's claim that the profile is maintained by defendant nor is there any representation made regarding when any alleged communication through Facebook took place. The only representation included in the application is plaintiff's counsel's affirmation that plaintiff told him that she communicates with defendant through this Facebook account.
Before the Court could consider allowing service by Facebook pursuant to CPLR 308(5) the record must contain evidence that the Facebook profile was one that defendant actually uses for receipt of messages. The Court notes that anyone can create a Facebook profile using accurate, false or incomplete information and there is no way, under the application currently pending, for the Court to confirm whether the profile proffered by plaintiff is in fact the defendant's profile and that he accesses it (see Fortunato v. Chase Bank USA, N.A., No. 11 Civ 6608 (JFK), 2012 WL 2086950 [S.D.NY, June 7, 2012]). Granting this application for service by Facebook under the facts presented by plaintiff would be akin to the Court permitting service by nail and mail to a building that no longer exists. For all of the foregoing reasons, plaintiff's application for permission to serve the summons upon defendant by Facebook is denied without prejudice.
This shall constitute the decision and order of the Court.
 While certainly not dispositive the Court notes that the only information listed on the profile is the name "Abdullah Alshalabi"; location of "Riyadh, Saudi Arabia"; seven (7) friends; and a profile picture of a geographic location not of an individual. The Court notes that plaintiff does not allege that she knows any of the "friends" to be family or friends of the defendant."
Wednesday, January 18, 2017
Tuesday, January 17, 2017
The Americans with Disabilities Act (ADA) provides guidelines for what is necessary for organizations to provide accommodation to individuals with disabilities. While private clubs,religious entities and governments must comply with portions of the ADA, they are exempt from the ADA as it relates to public accommodation.
From Americans with Disabilities Act Title III Regulations, Part 36 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities (as amended by the final rule published on August 11, 2016):
"§ 36.102 Application.
(e) Exemptions and exclusions. This part does not apply to any private club (except to the extent that the facilities of the private club are made available to customers or patrons of a place of public accommodation), or to any religious entity or public entity."
Friday, January 13, 2017
The Appeal Board decision posted yesterday was reversed by the 3rd Department. MATTER OF GILL, 2016 NY Slip Op 8140 - NY: Appellate Div., 3rd Dept. 2016:
"Claimant initially worked for the employer as a welder. Following an injury resulting in his extended absence from work, the employer terminated claimant's employment in April 2013 for staffing reasons. Shortly thereafter, in June 2013, claimant was rehired by the employer as a boiler mechanic. He subsequently filed several grievances contesting, among other things, the denial of a pay increase and vacation leave. In addition, between February 2014 and April 2014, claimant made several requests for leaves of absence for differing reasons. The employer initially denied these requests, but ultimately granted claimant an indefinite leave of absence on April 28, 2014. Following an arbitration hearing, claimant signed a settlement agreement under which he received a payment of $10,000 from the employer and agreed to resign from his position effective May 1, 2014.
Thereafter, claimant filed an application for unemployment insurance benefits. His application was initially denied on the ground that he was disqualified from receiving benefits because he voluntarily left his employment without good cause. Claimant requested a hearing and, at its conclusion, an Administrative Law Judge sustained the initial determination. The Unemployment Insurance Appeal Board, however, reversed this decision and ruled that claimant was entitled to receive benefits. The employer now appeals.
Under the circumstances presented, claimant's resignation and acceptance of the $10,000 payment in settlement of outstanding grievances and other claims constitutes a voluntary separation from employment disqualifying him from receiving unemployment insurance benefits (see Matter of Livingston [Hudacs], 210 AD2d 721, 722 ; Matter of Mathison [County of Dutchess—Hudacs], 203 AD2d 832, 832-833 , lv denied 83 NY2d 760 ). There is no indication that claimant was forced to accept the settlement agreement or that he was subject to disciplinary action if he did not. Consequently, the Board's decision finding claimant eligible to receive benefits is not supported by substantial evidence and must be reversed. Although the employer maintains that claimant is subject to a forfeiture of benefits based upon his willful misrepresentation, this issue was not before the Board and is not properly before this Court."
Thursday, January 12, 2017
Mailed and Filed: APRIL 01, 2015IN THE MATTER OF: Appeal Board No. 584131:
OPINION: The credible evidence establishes that the claimant was separated from his employment on April 28, 2014. The evidence fails to establish, however, that such separation was voluntary. The claimant was not granted his previously requested and denied three weeks of leave on April 28, 2014, nor had he asked to go on three weeks' leave starting on that date. Rather, the claimant was involuntarily placed on an indefinite leave without pay on April 28, 2014. He was not allowed to work on Tuesday, April 29, 2014, or thereafter, and his inquiries as to why he was then being placed on leave and about returning to work went unanswered by the employer. This was an involuntary separation for unemployment insurance purposes, and accordingly, the determination of voluntary separation without good cause must be overruled. The claimant's signature on the settlement agreement dated June 10, 2014, in which he purportedly resigned effective May 1, 2014, and whatever he may have indicated to the Department of Labor about the reason for his separation when and after he filed his claim are immaterial - as he had already been separated involuntarily for unemployment insurance purposes on April 28, 2014.
Wednesday, January 11, 2017
The Appeal Board case posted yesterday was reversed. MATTER OF TMR SECURITY CONSULTANTS, INC. v. Commissioner of Labor, 2016 NY Slip Op 8922 - NY: Appellate Div., 3rd Dept. 2016 - and note the footnote was to the test utilized:
"Whether there exists an employment relationship is a factual issue for resolution by the Board and its decision will not be disturbed when supported by substantial evidence" (Matter of Greystoke Indus. LLC [Commissioner of Labor], 142 AD3d 746, 746  [internal quotation marks and citations omitted]; see Matter of Eray Inc. [Commissioner of Labor], 136 AD3d 1129, 1130 ). "Although no single factor is determinative, the relevant inquiry is whether the purported employer exercised control over the results produced or the means used to achieve those results, with control over the latter being the more important factor" (Matter of Davis [Niagara Falls Hous. Auth.— Commissioner of Labor], 142 AD3d 1269, 1270  [internal quotation marks, brackets and citations omitted]; accord Matter of Dwyer [Nassau Regional Off-Track Corp.—Commissioner of Labor], 138 AD3d 1369, 1370 ; see Matter of Duno [Anthony Stone Investigative & Sec. Servs., Inc.—Commissioner of Labor], 120 AD3d 1512, 1513 ).
The record evidence reveals that TMR posted security-related jobs on a secure website for its clients, who dictated the hours to be worked, as well as the scope of services that were needed. The security officers, after browsing through these postings, would request to work on any particular job, which TMR ultimately awarded on a "first come, first serve" basis. The security officers were free to select a job that they wanted and were not prohibited from seeking jobs from TMR's competitors. TMR did not provide the security officers with training or equipment nor did TMR pay the security officers a set hourly rate. Furthermore, once TMR placed the security officer with a client, TMR did not enter into a contract with the security officer. While a security officer could be in the middle of a continuing job for a client, he or she was nonetheless free to leave at any point and work elsewhere. In addition, if an issue arose with the security officer's performance, the client dealt with the security officer directly, and TMR would be notified if it needed to provide a substitute security officer. Inasmuch as the proof of incidental control relied upon by the Board does not support the conclusion that the security officers were employees (see Matter of Yoga Vida NYC, Inc. [Commissioner of Labor], 28 NY3d 1013, 1016 ), under the circumstances of this case, the Board's decision must be reversed (see Matter of Chan [Market Force Info.—Commissioner of Labor], 128 AD3d 1146, 1146-1147 ; Matter of Lee [Encore Nationwide Inc.—Commissioner of Labor], 127 AD3d 1399, 1399-1400 ; Matter of Jennings [American Delivery Solution, Inc.— Commissioner of Labor], 125 AD3d 1152, 1153 ; Matter of John Lack Assoc., LLC [Commissioner of Labor], 112 AD3d 1042, 1043-1044 ; Matter of Best [Lusignan—Commissioner of Labor], 95 AD3d 1536, 1537-1538 ).
Egan Jr., J.P., Lynch, Rose and Clark, JJ., concur.
ORDERED that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court's decision.
 To the extent that we have applied the overall control test to determine whether an employer-employee relationship exists in unemployment insurance cases involving individuals providing security services (see Matter of Lobban [Precinct Sec. & Investigations, Inc.—Commissioner of Labor], 131 AD3d 1294, 1294 ; Matter of Klotz [Blue Perimeter, Inc.—Commissioner of Labor], 127 AD3d 1459, 1460 ; Matter of Ray Catena Corp. [Commissioner of Labor], 274 AD2d 819, 820 ), such cases should no longer be followed for that proposition."
Tuesday, January 10, 2017
Mailed and Filed: DECEMBER 23, 2016 IN THE MATTER OF: Appeal Board No. 585930:
OPINION: The credible evidence establishes that the company herein exercised sufficient direction, supervision and control over the claimant to demonstrate an employment relationship. In Matter of Concourse Ophthalmology Associates, PC, 60 NY2d 734 (1983), the Court held that whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact; that no one factor was determinative; and that an employment relationship could be found even if other evidence in the record would have supported a contrary conclusion. In the case at hand, the written agreement subjected him and any helpers or drivers he might use to drug and alcohol testing; barred him from disclosing confidential information regarding the company or its customers; and prohibited him competing with the company for 12 months following termination of services. He was provided with company identification and was required to use communications equipment that was compatible with the company's system. His work was subject to deadlines. The company handled customer complaints. Moreover, if customers did not pay the company, the claimant still got paid (See Matter of Voisin, 134 AD3d 1186 [3d Dept 2015]; see also Matter of Garbowski, 136 AD3d 1079 [3d Dept 2016]). The fact that the claimant used his own vehicle and signed a written agreement designating him an independent contractor is not dispositive (See e.g. Matter of Kelly, 28 AD3d 1044 [3d Dept 2006]; Matter of CDK Delivery Service, Inc., 151 AD2d 932 [3d Dept 1989]).
The employer's reliance on Matter of Jennings, 125 AD3d 1152 [3d Dept 2015] is misplaced. In that case, the claimant paid all of his expenses including tolls, whereas in the case at hand, the claimant was reimbursed for some tolls. Moreover, in Jennings, the employer did not impose any conditions on the way that claimant performed his work, whereas in the case at hand, the written agreement provided conditions. Additionally, deadlines were imposed for deliveries. Finally, in the case at hand, the company restricted the claimant from competing with it.
As to the company's contention that its control over the couriers was mandated by government regulations, e.g., the Department of Transportation regulations concerning background checks and drug testing, the employer exercised or reserved the right to exercise sufficient amount of supervision, direction or control above and beyond such regulations (Compare Matter of Choto, 82 AD3d 1369 [3d Dept 2011]; Matter of Leazard, 74 AD3d 1414 [3d Dept 2010]; and Matter of Wannen, 57 AD3d 1029 [3d Dept 2008]). As the company exercised sufficient supervision, direction and control over the claimant's services to establish his status as an employee of the company, we conclude that the company should be held liable for additional contributions.
DECISION: The decision of the Administrative Law Judge is reversed. The employer's objection, that the claimant and all other persons similarly situated were independent contractors, is overruled.
Monday, January 9, 2017
Friday, January 6, 2017
DEUTSCHE BANK NATL. v. Oliver, 24 Misc. 3d 838 - NY: Dist. Court, Nassau County, 1st Dist. 2009:
"The court must reject the petitioner's contentions. CPLR 2201 broadly empowers the court to grant a stay of proceedings "in a proper case, upon such terms as may be just." The propriety of granting a stay in any given case is limited only by "the Court's own sense of discretion, prudence, and justice" (Matter of Joseph v Cheeseboro, 42 Misc 2d 917, 919 [1964, Greenfield, J.], revd on other grounds 43 Misc 2d 702 ).
Contrary to petitioner's contention, the RPAPL does not constrain the court. Indeed, the provisions cited by petitioner (RPAPL 753) on their face apply only to proceedings "to recover the possession of premises in the city of New York" (RPAPL 753 ). A different section (RPAPL 751) once incorporated provisions relating to discretionary stays "outside the city of New York" (RPAPL 751  [a]). The latter provisions, however, were effective "only until September first, nineteen hundred sixty-seven" (RPAPL 751 [e]). In any event, the provisions of section 751, like the provisions of section 753, literally apply only to stay applications "before a warrant is issued" (RPAPL 751; see Errigo v Diomede, 14 Misc 3d 988, 991 ; New York City Hous. Auth. v Witherspoon, 12 Misc 3d 899, 905 ).
Postwarrant stay applications accordingly are governed by the more general provisions of CPLR 2201 and traditional equitable principles (Canigiani v Deptula, 59 Misc 2d 401 [1969, Niehoff, J.]). This is not to suggest that there are no limits upon the exercise of the court's discretion. Both within and outside the City of New York, judges are cognizant that "there must be some limitations on their discretion to stay issuance and/or execution of a warrant" (see New York City Hous. Auth. v Witherspoon at 906). But it is equally well established that judges retain the equitable power to "mold ... relief to accord with the exigencies of the case" (see Newman v Sherbar Dev. Co., 47 AD2d 648 [2d Dept 1975], discussed in New York City Hous. Auth. v Witherspoon at 908).
Accordingly, the court rejects petitioner's contention that the court's authority is limited by the RPAPL. To the contrary, the court's power to act is firmly grounded in CPLR 2201 as made applicable under section 212 of the Uniform District Court Act (see Canigiani v Deptula, supra).
Thursday, January 5, 2017
MATTER OF TROMBLEY v. Payne, 2016 NY Slip Op 7475 - NY: Appellate Div., 4th Dept. 2016:
"The court properly denied the mother's objection to the reappointment of the Attorney for the Children (AFC) (see Matter of Mills v Rieman, 128 AD3d 1486, 1487; Matter of Leichter-Kessler v Kessler, 71 AD3d 1148, 1149; Matter of Petkovsek v Snyder [appeal No. 6], 251 AD2d 1087, 1087-1088, lv dismissed in part and denied in part 92 NY2d 942). In making an appointment of an AFC, "the court shall, to the extent practicable and appropriate, appoint the same attorney who has previously represented the child" (Family Ct Act § 249 [b]). Inasmuch as there is no support in the record for the mother's contention that the AFC was biased against her, there was no reason for the court to appoint a new AFC (see generally Matter of Kristi L.T. v Andrew R.V., 48 AD3d 1202, 1206, lv denied 10 NY3d 716)."
Wednesday, January 4, 2017
MATTER OF ROY v. Commissioner of Labor, 2016 NY Slip Op 2885 - NY: Appellate Div., 3rd Dept. 2016:
"Substantial evidence supports the Unemployment Insurance Board's determination that claimant was discharged from his position as a food service worker in a nursing home due to disqualifying misconduct. Claimant was obligated "even during his off-duty hours, to honor the standards of behavior which his employer has a right to expect of him and . . . he may be denied unemployment benefits as a result of misconduct in connection with his work if he fails to live up to this obligation" (Matter of Markowitz [New York City Human Resources Admin.—Roberts], 94 AD2d 155, 156 ; see Matter of Punter [Ross], 43 NY2d 743, 744 ; Matter of Moniz [Nucor Steel Auburn, Inc.—Commissioner of Labor], 126 AD3d 1251, 1252 ). Here, the record contains evidence that claimant created violent and sexually explicit videos using "LEGO" characters, including characters depicting the executive director of the nursing home, claimant's department head and two female coworkers, and posted the videos online. Although claimant testified that he was depicting celebrities and fictional characters in his movies, and not his coworkers, this presented a credibility issue for the Board to resolve (see Matter of Manieson [Commissioner of Labor], 119 AD3d 1312, 1313 ; Matter of Portis [Commissioner of Labor], 118 AD3d 1195, 1196 ). Under these circumstances, we perceive no basis to disturb the Board's determination that claimant engaged in disqualifying misconduct."
Tuesday, January 3, 2017
Paragraph (a) of subdivision 3 of section 441 of the Real Property Law is now amended, in the hope of promoting consumer protection, by requiring real estate licensees to, upon the licensee’s initial renewal, have two hours of instruction particularly relating to the law of agency. Thereafter, such license renewal would require at least one hour of instruction in the law of agency, providing real estate professionals with continuing education to help ensure a full understanding by the consumer of the roles agency relationships play in real estate transactions.
" (a) No renewal license shall be issued any licensee under this article for any license period commencing November first, nineteen hundred ninety-five unless such licensee shall have within the two year period immediately preceding such renewal attended at least twenty-two and one-half hours which shall include at least three hours of instruction pertaining to fair housing and/or discrimination in the sale or rental of real property or an interest in real property, AT LEAST ONE HOUR OF INSTRUCTION PERTAINING TO THE LAW OF AGENCY EXCEPT IN THE CASE OF THE INITIAL TWO-YEAR LICENSING TERM FOR REAL ESTATE SALESPERSONS, TWO HOURS OF AGENCY RELATED INSTRUCTION MUST BE COMPLETED, and successfully completed a continuing education real estate course or courses approved by the secretary of state as to method, content and supervision, which approval may be withdrawn if in the opinion of the secretary of state such course or courses are not being conducted properly as to method, content and supervision. For those individuals licensed pursuant to subdivision six of section four hundred forty-two-g of this article, in the individual's initial license term, at least eleven hours of the required twenty-two and one-half hours of continuing education shall be completed during the first year of the term. Of those eleven hours, three hours shall pertain to applicable New York state statutes and regulations governing the practice of real estate brokers and salespersons. To establish compliance with the continuing education requirements imposed by this section, licensees shall provide an affidavit, in a form acceptable to the department of state, establishing the nature of the continuing education
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted."
Monday, January 2, 2017
From the DMV:
"Effective January 1st 2017, examination of tinted or shaded windows will be required during motor vehicle inspections.
Section 375 (12-a) of the NYS Vehicle and Traffic Law does not allow a windshield or front side windows that are dark.
- The windshield and front side windows cannot block more than 30% of the light.
- Seventy percent or more of the light from the outside must pass through the window.
- This law also applies to the rear window unless the vehicle has outside rear-view mirrors on both sides.
- The mirrors must give the driver a full and clear view behind the vehicle.
- Rear side windows must also allow at least seventy percent of light from the outside to pass through the window if the vehicle is classified as a
- station wagon
It is illegal to sell, offer for sale, or install glass that does not comply with this law. It is illegal to operate a vehicle with glass that does not comply with this law.
NYS Health department regulations specify that only the following medical conditions may be used to justify an exemption from the limits on light transmittance. If you have one of the medical conditions below that require you to have tinted vehicle windows, you may request an exemption from the law using the Application for Tinted Window Exemption (MV-80W).
- Xeroderma Pigmentosa
- Severe Drug Photo-Sensitivity"
Friday, December 23, 2016
Thursday, December 22, 2016
"On January 7, 2014, the parties entered into a stipulation of settlement on the record in open court that was incorporated, but not merged, into a judgment of divorce entered April 30, 2014 (hereinafter the stipulation). In relevant part, the stipulation provided that a condominium apartment located in Israel (hereinafter the apartment), held in trust by the plaintiff, be transferred to the defendant as part of her distributive award. Since the value of the apartment was unknown at the time the parties entered into the stipulation, they agreed to have it appraised. The stipulation also provided that the sum of $175,000 being held in escrow (hereinafter the escrow fund) be transferred to the defendant. The stipulation further provided that if the total of the appraised value of the apartment, plus the escrow fund, equaled less than $1,200,000, the plaintiff was to pay the difference to the defendant.
In December 2014, the plaintiff commenced the instant action seeking reformation of the stipulation. In his complaint, the plaintiff alleged that the parties intended by their stipulation to provide an option for the plaintiff to either convey the escrow fund and his interest in the apartment to the defendant and credit the apartment's value against the $1,200,000 distributive award or obtain sole title to the apartment and escrow fund and pay the $1,200,000 distributive award to the defendant in cash. The plaintiff alleged that he agreed to the stipulation "in the mistaken belief" that it included the aforementioned "option," and that he would not have consented to the terms of the stipulation in open court had he known that the option was not incorporated therein. Thus, the plaintiff contended that the stipulation was inequitable and unfair and did not reflect the intent of the parties.
After issue was joined, the defendant moved pursuant to CPLR 3211(a) to dismiss the complaint, contending that the stipulation was binding. The court gave proper notice to the parties pursuant to CPLR 3211(c) and converted the motion to dismiss to a motion for summary judgment. The court then granted the defendant's motion. The plaintiff appeals.
"A stipulation is an independent contract which is subject to the principles of contract law. A court should construe a stipulation made in [writing or] open court in accordance with the intent of the parties and the purpose of the stipulation by examining the record as a whole. A court should not, under the guise of interpretation, make a new contract for the parties" (Simmons v Simmons, 305 AD2d 661, 661 [citations omitted]; see Pellino v Pellino, 308 AD2d 522). "A party seeking reformation of a contract by reason of mistake must establish, with clear and convincing evidence, that the contract was executed under mutual mistake or a unilateral mistake induced by the other party's fraudulent misrepresentation" (Yu Han Young v Chiu, 49 AD3d 535, 536; see Moshe v Town of Ramapo, 54 AD3d 1030, 1031; Lieberman v Greens at Half Hollow, LLC, 54 AD3d 908, 909; Yu Han Young v Chiu, 49 AD3d at 536; Kadish Pharm. v Blue Cross & Blue Shield of Greater N.Y., 114 AD2d 439, 439). For a party to be entitled to reformation on the ground of mutual mistake, the mistake must be material (see Janowitz Bros. Venture v 25-30 120th Street Queens Corp., 75 AD2d 203, 214), and the party must "demonstrate that the mistake existed at the time the stipulation was entered into and that it was so substantial that the stipulation failed to represent a true meeting of the parties' minds" (Mahon v New York City Health & Hosps. Corp., 303 AD2d 725, 725; see Kadish Pharm. v Blue Cross & Blue Shield of Greater N.Y., 114 AD2d 439).
The defendant made a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). In support of her motion, the defendant submitted proof that the parties entered into the stipulation in open court, that each party was fully allocuted, and that the stipulation was submitted, without objection, and incorporated into the judgment of divorce (see Shockome v Shockome, 53 AD3d 610; Balkin v Balkin, 43 AD3d 967, 968). In her affidavit, the defendant averred that there was no mutual mistake of fact and that she made no representation upon which a claim of fraud could be premised. The defendant denied the existence of the "option" and pointed to the terms of the stipulation as proof of the parties' intent. In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff presented no evidence that the stipulation was the result of a mutual mistake or a unilateral mistake induced by fraud (see Leacock v Leacock, 132 AD3d 818; Shockome v Shockome, 53 AD3d 610; Alexander v Alexander, 112 AD2d 121, 122)."
Wednesday, December 21, 2016
DLJ MTGE. CAPITAL, INC. v. Grant, 2016 NY Slip Op 26070 - NY: Dist. Court, Nassau County, 1st Dist. 2016:
"Petitioner commenced this holdover proceeding against respondents under RPAPL §713, to recover possession of the premises located at 840 Southern Parkway, Uniondale, NY 11553. Petitioner acquired title to the subject premises pursuant to a Referee's Deed, dated November 18, 2014, after bringing a foreclosure action in the Nassau County Supreme Court. Respondents now move to dismiss the petition pursuant to RPAPL§§ 713(5), 1305, and CPLR 3211(7). Respondents argue that the ten-day notice to quit required to commence this proceeding was improperly executed and served upon respondents by a third party, Selene Finance LP ("Selene Finance"), thereby rendering the notices legally void, and the petition ripe for dismissal. Petitioner opposes dismissal, based upon a Limited Power of Attorney executed prior to the foreclosure action, which, it alleges, grants Selene Finance the authority to initiate this holdover proceeding. The motion is decided as follows.
New York Real Property Actions and Proceedings Law ("RPAPL") Section 713, allows for the commencement of a special proceeding to obtain possession of property where no landlord-tenant relationship exists. In order to initiate such a proceeding, petitioner, as successor in interest, must serve respondent with a ten-day notice to quit (RPAPL§§ 713; 1305[b]). A respondent who is a "tenant" within the meaning of RPAPL §1305 (c), however, is entitled to, inter alia, a 90-day notice to quit (RPAPL §1305). Where, as here, petitioner executes a power of attorney granting a third party authority to commence a proceeding on its behalf, the power of attorney must be annexed to the applicable notices to quit (Deutsche Bank Natl. Trust Co. v Resnik, 24 Misc 3d 1238[A][Nassau Dist Ct 2009]; Siegel v Kentucky Fried Chicken of Long Island, 108 AD2d 218 [2nd Dept 1985]).
In this matter, petitioner served both a ten and 90-day notice to quit upon each respondent on September 23, 2014. Attached to the notices, was a Limited Power of Attorney signed on February 16, 2012, by vice president of DLJ Mortgage Capital, Inc., David Neugebauer, in Harris County, Texas. The Limited Power of Attorney was made in connection with a Servicing Agreement between petitioner and Selene Finance.
Respondents, in support of their motion to dismiss, argue that the notices to quit are defective, as they are signed by a representative of Selene Finance, which is only authorized to act on petitioner's behalf regarding the servicing of mortgages in certain "enumerated transactions." Respondents further argue that none of these transactions include matters relating to holdover proceedings, tenancy, or possession. This court agrees.
Initially, this court determines that petitioner's Limited Power of Attorney is enforceable in New York, as it was validly executed in Texas (see General Obligations Law § 5-1512; Tex. Estates Code § 752.004). Turning to the substance of this document, petitioner appointed Selene Finance as its attorney-in-fact,
"with full power and authority to sign, execute, acknowledge, deliver, file or record, any instrument on its behalf and to perform such other act or acts as may be customarily and reasonably necessary and appropriate to effectuate the following enumerated transactions in respect of any mortgages or deeds of trust (the "Mortgages") and promissory notes secured thereby (the "Mortgage Notes") for which the Servicer [Selene Finance] is acting as Servicer under the Servicing Agreement (see Respondents' Exhibit A)."The document then goes on to limit the appointment to nine types of transactions. Petitioner argues that the fourth "enumerated transaction" listed in the Limited Power of Attorney, which states, "the closing of the title to the property to be acquired as real estate owned, or conveyance of title to or on real estate owned," gives Selene Finance the power to start eviction proceedings. Petitioner's argument, however, is without merit, as petitioner already holds title to the subject premises in the form of a Referee's Deed. Moreover, it is clear from a review of the Limited Power of Attorney, that Selene Finance's powers as petitioner's attorney-in-fact are restricted to mortgage servicing and foreclosure matters. Nowhere in this document does petitioner authorize Selene Finance to commence eviction proceedings or otherwise involve itself in matters relating to possession. As a result, all of the Notices to Quit signed by Dan Shimmim, Senior Vice President of Selene Finance, and served upon respondents, are jurisdictionally defective."