Tuesday, November 21, 2017

THE MORTGAGE MODIFICATION SCAMS ARE STILL WAITING FOR YOU



Yesterday at the Mortgage Foreclosure Clinic at the Nassau County Bar Association, I consulted with a client who appeared to have been scammed. Several thousand dollars were paid to either an attorney or a company to seek a modification of the mortgage payments while a foreclosure action was commenced. Although this attorney or company prepared an answer for the homeowner: (1) the answer was a pro se answer and there was no attorney appearance (2) the homeowner was advised not to attend the settlement conference and (3) although a motion was thereafter made by the bank for summary judgment, the homeowner was assured that the modification papers were submitted and that no further papers need to be submitted - of course, the motion for summary judgment was granted. Although it appeared the client did not have any real defense and the real problem was home affordability, nevertheless, monies were paid to an apparent scam and the client was advised to file appropriate complaints.

ALERT:

1. If you are working with an attorney, make sure there is a written retainer agreement which outlines the duties and scope of representation.

2. Attend all scheduled court appearances.

3. Follow your case on New York State E Courts. You can sign up for an email track of the case.
eTrack is a case tracking service which enables you to track active Civil Supreme Court cases from all 62 counties of New York State, and cases from all currently available Local Civil and Criminal Courts.

For further information on such scams and what to do, see

http://www.preventloanscam.org/states/new-york#Long%20Island

Monday, November 20, 2017

ON NEW YORK'S NEW "SEALING RULE"



In today's Newsday, the main story discussed a new state law aimed at giving nonviolent offenders a clean slate. As of October 7, 2017, New York courts may expunge eligible offenses under Section 160.59 of the Criminal Procedure Law.

The Law Offices of Robert Briere, a ​New York City Criminal Defense Lawyer,  ​30 Wall Street, New York, NY 10005, had noted on their web site that CPL 160.05 was not the only statute dealing with the sealing of criminal records:

"Remember that CPL 160.59 requires a ten year waiting period before the conviction can be sealed. So, in the meantime, what records can be sealed in New York before the ten year period has run?

Prior to the ten year period running, a record of a criminal conviction, which is any misdemeanor or felony except a youthful offender adjudication, cannot be sealed and is considered a public record available to anyone through the OCA website for a $55 fee. It does not matter if the person had the charge reduced from a felony to a misdemeanor or only received probation. There are no exceptions to the rule.

In New York, the only records that get completely sealed outside of the provisions of CPL 160.59 (pursuant to CPL 160.50) are cases that result in complete dismissals including:

ACD's and other forms of dismissals and acquittals. whenever a case is fully dismissed either through an ACD an acquittal after trial or if the case is dismissal in the interests of justice for dismissed for facial insufficiency...whatever the reason for the dismissal... these get the full sealing treatment of CPL 160.50. On the other hand, charges that are reduced from a misdemeanor or felony to a violation or infraction get the partial seal treatment of CPL 160.55.

How does sealing of a New York Record differ between CPL 160.59 and CPL 160.50 and CPL 160.55?

A sealing under CPL 160.59 occurs upon application of a person with two or less criminal convictions and no more than one felony conviction (that are at least ten years old) pursuant to the process outlined above. A sealing under 160.50 occurs in New York when a criminal charge is dismissed completely, while a sealing under 160.55 occurs when a criminal charge is reduced from a misdemeanor or felony to a violation or infraction.

A sealing under CPL 160.50 is the most favorable of the three since the 160.50 sealing mandates destruction of the arrest record and the sealing of the court file. A sealing under 160.55 is not as comprehensive as the 160.50 sealing. The 160.55 sealing occurs when someone is arrested or charged with a criminal offense, but is ultimately convicted of a violation or infraction, the sealing of the arrest records is accomplished pursuant to CPL 160.55 (1) (c), which means that records of the arrest, such as mugshots, arrest reports and fingerprints are destroyed but the Court file stays open.

The CPL 160.59 is a hybrid of the 160.50 and the 160.55 as is allows for the court file to be sealed but the arrest records remain unsealed." ​

Friday, November 17, 2017

CAN A LANDLORD EXEMPT RENT REGULATION COVERAGE BY CONVERSION OF UNITS



U 31st ST., LLC v. Montalvo, 2017 NY Slip Op 51435 - NY: Appellate Term, 1st Dept. 2017:

"Landlord's possessory claim, based on allegations that tenant's unregulated lease agreement expired by its terms, is not susceptible to summary disposition. The record presents triable issues of fact as to whether the building in which tenant's apartment was located had at least six residential units on July 1, 1974, or thereafter, and, thus, was subject to rent stabilization (see Rent Stabilization Law [Administrative Code of City of NY] § 26-504[a]; Rent Stabilization Code [9 NYCRR] § 2520.11[d]; Matter of Loventhal Mgt. v New York State Div. of Hous. & Community Renewal, 183 AD2d 415 [1992];see generally Sharabi v Morales, 23 AD3d 544 [2005]).

Pertinent records on file with City agencies, including a 1926 certificate of occupancy and "I-Cards," show that the subject building consisted of six residential units. While landlord and the motion court relied heavily upon a "Maximum Base Rent Building Profile and Owner's Order," issued by the Office of Rent Control, indicating that the building contained five residential units as of January 1, 1972, we do not view this document as dispositive as a matter of law, especially given that an amended certificate of occupancy showing less than six residential units was not issued until 1982 and no alteration permit was filed prior to 1980. Thus, it is unclear if the reduction from six units to five, which occurred at some undetermined time between 1926 and 1972, was the result of a legal conversion (see Matter of Loventhal Mgt. v New York State Div. of Hous. & Community Renewal, 183 AD2d at 415 [illegal renovation cannot be used by landlord as a basis to exempt the premises from coverage under the Rent Stabilization Law]). In the circumstances, the issue of whether the building contained six residential units on or after July 1, 1974, must be resolved at trial."

Thursday, November 16, 2017

STUDENT MENTORS



This morning I will be a Student Mentor.

One of the Pro Bono & Volunteer Opportunities sponsored by the Nassau County Bar Association is the Student Mentor Program. Attorneys can provide valuable adult guidance and serve as a role model for at-risk middle school students in one-on-one sessions at a local middle school. The commitment is twice a month for less than an hour and Mentors are always in demand.

Contact Demi Tsiopelas at NCBA 516-747-4070 or dtsiopelas@nassaubar.org

Wednesday, November 15, 2017

WHEN LANDLORD DOES NOT GIVE A WRITTEN RENT RECEIPT



NY Real Prop L § 235-e imposes a duty  upon a landlord to provide tenant with a written receipt when a personal check is not used for payment:

"(a) Upon the receipt of rent for residential premises in the form of cash or any instrument other than the personal check of the tenant, it shall be the duty of the landlord to provide the payor with a written receipt containing the following:

1. The date;
2. The amount;
3. The identity of the premises and period for which paid; and
4. The signature and title of the person receiving the rent."

But what if a landlord fails or refuses to give a written receipt. The statute provides no penalty and this was addressed in Robinson v. Robles, 28 Misc. 3d 868 - NY: City Court 2010:

"The Attorney General considered the absence of "a specific penalty for a landlord's breach of the created duty" in the statute to be a defect, but urged that the problem be remedied later.[18] Unfortunately, after the passage of almost 30 years and two amendments expanding the scope of Real Property Law § 235-e,[19] we are still without statutory sanctions for a landlord's failure to provide a written receipt.[20] During that time, this statutory vacuum has been filled by court decisions imposing various judicial remedies.[21]

One court has held that failure to comply with the statute "may be considered in weighing the testimony of the landlord... and where the landlord has clearly violated Real Property Law § 235-e, the doubt should be resolved in favor of the tenant."[22] Another found that "where the only evidence before the court is the contradictory statements given under oath by the respective parties, and where the landlord has clearly violated section 235-e of the Real Property Law, the doubt should be resolved in favor of the tenant."[23] A third judge has ruled that a "rebuttable presumption in favor of the tenant as to payment of rent is an appropriate judicial response to a violation of Real Property Law Section 235-e by the landlord."[24] One judge awarded back rent finding there had been substantial compliance with the statute as the landlord gave the tenant monthly statements and the tenant did not deny owing rent or contradict the landlord's testimony.[25] Although none of these remedies have yet to be considered by an appellate court, the issue was recently briefed before the Appellate Division, First Department. The court seems to have implicitly acknowledged the statutory violation while the judges found it unnecessary to consider any remedy for the landlord's "misconduct"[26] due to the tenant's conflicting testimony.

........

The legislature should finally provide for a statutory remedy and insure consistency in application of its provisions statewide by establishing a six-month statute of limitations on actions for past-due rent in cases where the landlord has failed to provide appropriate written rent receipts[38] by adding the following language to Real Property Law § 235-e: "(c) Any action for residential rent under this or any other provision of law wherein the landlord has failed to provide the written receipts required above must be commenced within six months of the alleged default." This amendment would serve as an incentive to provide such proof of payment since landlords who fully comply with Real Property Law § 235-e would be able to avail themselves of the full six-year statute of limitations.[39]"

Tuesday, November 14, 2017

ESTABLISHING IMPROPER SERVICE WHEN SEEKING TO VACATE A DEFAULT JUDGMENT



U.S. Bank, N.A. v Cepeda, 2017 NY Slip Op 07767, Decided on November 8, 2017, Appellate Division, Second Department:

"The plaintiff commenced this action to foreclose a mortgage. The defendant Raymond Cepeda (hereinafter the homeowner) failed to appear or answer the complaint. A judgment of foreclosure and sale was subsequently entered upon his default in answering. The homeowner moved pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale for lack of personal jurisdiction. The homeowner asserted that the plaintiff did not exercise due diligence in attempting to make personal service on him before resorting to affix and mail service pursuant to CPLR 308(4). The Supreme Court granted the homeowner's motion, vacated the judgment of foreclosure and sale and, sua sponte, in effect, directed the dismissal of the complaint. We reverse.

Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with "due diligence" (CPLR 308[4]; see Deutsche Bank Natl. Trust Co. v White, 110 AD3d 759, 759-760; Estate of Waterman v Jones, 46 AD3d 63, 65). The term "due diligence," which is not defined by statute, has been interpreted and applied on a case-by-case basis (see Estate of Waterman v Jones, 46 AD3d at 66).

Here, the affidavit of the process server demonstrated that three visits were made to the homeowner's residence, each on different days and at different times of the day. The process server also described in detail his unsuccessful attempt to obtain an employment address for the [*2]homeowner, including interviewing a neighbor. Under these circumstances, the Supreme Court improperly concluded that the due diligence requirement was not satisfied (see Lasalle Bank N.A. v Hudson, 139 AD3d 811, 811; Wells Fargo Bank, NA v Besemer, 131 AD3d 1047, 1048; JP Morgan Chase Bank, N.A. v Baldi, 128 AD3d 777, 777-778; Wells Fargo Bank, N.A. v Cherot, 102 AD3d 768; JPMorgan Chase Bank, N.A. v Szajna, 72 AD3d 902; Lemberger v Khan, 18 AD3d 447, 447-448)."

Monday, November 13, 2017

A LONG JOURNEY TO COLLECT LEGAL FEES OWED



In November 2001, the defendant retained the plaintiff (actually predecessor in interest) for a matrimonial.  And 16 years later, the issue of collecting fees due is still at issue. Jones Morrison, LLP v Schloss, 2017 NY Slip Op 07712, Decided on November 8, 2017, Appellate Division, Second Department:

"This action arises out of the entry of a judgment in November 2004 (hereinafter the original judgment), in favor of the plaintiff and against the defendant for unpaid legal fees in the sum of $97,119.17 for services the plaintiff had performed on behalf of the defendant in a matrimonial action. This Court dismissed the defendant's appeal from the original judgment as untimely (see [*2]Jones Sledzik Garneau & Nardone, LLP v Schloss, 37 AD3d 417).

Subsequent to the dismissal of her appeal, the defendant commenced an action against the plaintiff seeking damages for, inter alia, fraud. In July 2008, the Supreme Court, Westchester County (Loehr, J.), granted dismissal of the action on the merits, and this Court affirmed that determination (see Schloss v Jones, 67 AD3d 770). In May 2014, the plaintiff commenced this action by summary judgment in lieu of complaint, seeking a renewal judgment for the unsatisfied portion of the original judgment. The defendant cross-moved, inter alia, to vacate the original judgment. The Supreme Court, Westchester County (Jamieson, J.), granted the plaintiff's motion and denied the defendant's cross motion, noting that the arguments raised by the defendant had been raised in the prior actions. These appeals ensued.

The Supreme Court properly granted the plaintiff's motion for summary judgment and entered a renewal judgment pursuant to CPLR 5014(1). The plaintiff established its prima facie entitlement to a renewal judgment as a matter of law by showing: (1) the existence of the original judgment; (2) that the defendant was the judgment debtor; (3) that the original judgment was docketed at least nine years prior to the commencement of this action; and (4) that the original judgment remains partially or completely unsatisfied (see Rose v Gulizia, 104 AD3d 757, 758; Premier Capital, LLC v Best Traders, Inc., 88 AD3d 677, 678; Schiff Food Prods. Co., Inc. v M & M Import Export, 84 AD3d 1346, 1348).

In opposition, the defendant failed to raise a triable issue of fact. Her arguments in opposition to the motion and in support of her cross motion were or could have been made in the prior actions, and are therefore barred by res judicata (see O'Brien v City of Syracuse, 54 NY2d 353, 357; Schloss v Jones, 67 AD3d at 770; Matter of City of New York v Schmitt, 50 AD3d 1032, 1033)."

Friday, November 10, 2017

VETERAN'S DAY


My father Albert -  eventually a Sargent. Pacific theater.

Thursday, November 9, 2017

WHEN NEIGHBORS FIGHT OVER A FENCE - AND CONTEMPT



This litigation is over a common driveway and the hindrance by one neighbor over the use of it via a fence. It was commenced in 2012 and then settled by stipulation in 2015 as to how the fence would be moved after a survey was done. However, one neighbor, despite the so ordered stipulation, failed to comply with the stipulation and unilaterally removed the fence prior to the survey. That neighbor claimed the other neighbor was stalling with the prerequisite survey and the removal was necessary for safety reasons. A motion for criminal and civil contempt was made.

Dreher v Martinez, 2017 NY Slip Op 07707, Decided on November 8, 2017, Appellate Division, Second Department:

"The imposition of punishment for criminal contempt requires a showing that the alleged contemnor knowingly, wilfully, and contumaciously violated a clear and unequivocal court mandate (see Judiciary Law § 750[A][3]; Wheels Am. N.Y., Ltd v Montalvo, 50 AD3d 1130, 1130-1131; City of Poughkeepsie v Hetey, 121 AD2d 496, 497; Matter of Holtzman v Beatty, 97 AD2d 79, 82). Here, the defendants failed to meet their burden of showing that plaintiff had knowingly, wilfully, and contumaciously violated a clear and unequivocal mandate in a stipulation of settlement, which was agreed to by the parties on August 31, 2015, and so-ordered by the Supreme Court on [*2]October 6, 2015 (hereinafter the settlement agreement) (see Wheels Am. N.Y., Ltd v Montalvo, 50 AD3d at 1130-1131; City of Poughkeepsie v Hetey, 121 AD2d at 497; Matter of Holtzman v Beatty, 97 AD2d at 82).

The defendants also failed to establish that the plaintiff refused or wilfully neglected to obey a clear and unequivocal mandate in the settlement agreement which could give rise to a finding of civil contempt pursuant to CPLR 5104 (see CPLR 5104; Matter of Lombardi v Habicht, 293 AD2d 476, 477). Likewise, the record does not support the defendants' contention that the plaintiff disobeyed a clear and unequivocal mandate in the settlement agreement which defeated, impaired, impeded, or prejudiced the rights of the defendants (see Judiciary Law § 753[A]; Chambers v Old Stone Hill Rd. Assoc., 66 AD3d 944, 946; Denaro v Rosalia, 50 AD3d 727; Hom v Weintraub, 6 AD3d 579, 580). In addition, the record does not indicate that there are any relevant factual issues warranting a hearing (see Jaffe v Jaffe, 44 AD3d 825, 826).

Accordingly, although the Supreme Court properly denied those branches of the defendants' motion which were to hold the plaintiff in criminal contempt pursuant to Judiciary Law § 750(A) and in civil contempt pursuant to CPLR 5104, the court also should have denied that branch of the motion which was to hold the plaintiff in civil contempt pursuant to Judiciary Law § 753."

Wednesday, November 8, 2017

SEEKING A DISMISSAL UNDER CPLR 3215 (c)



CPLR 3215 (c) provides:

"(c) Default not entered within one year.  If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.  A motion by the defendant under this subdivision does not constitute an appearance in the action."

But what if the Defendant makes a motion and files a notice of appearance. Bank of Am., N.A. v Rice, 2017 NY Slip Op 0758,1 Decided on November 1, 2017, Appellate Division, Second Department:

"CPLR 3215(c) provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed" (Wells Fargo Bank, N.A. v Bonanno, 146 AD3d 844, 845 [internal quotation marks omitted]; see Pipinias v J. Sackaris &  Sons, Inc., 116 AD3d 749, 750). "The language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts shall' dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned" (Giglio v NTIMP, Inc., 86 AD3d 301, 307-308; see HSBC Bank USA, N.A. v Grella, 145 AD3d 669, 671; Pipinias v J. Sackaris & Sons, Inc., 116 AD3d at 751).

"Failure to take proceedings for entry of judgment may be excused, however, upon a showing of sufficient cause," which requires the plaintiff to "demonstrate that it had a reasonable [*2]excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action" (Aurora Loan Servs., LLC v Hiyo, 130 AD3d 763, 764; see HSBC Bank USA, N.A. v Grella, 145 AD3d at 671; Pipinias v J. Sackaris Sons, Inc., 116 AD3d at 750). Moreover, "[t]he mere fact that the legislative intent underlying CPLR 3215(c) was to prevent the plaintiffs from unreasonably delaying the determination of an action, does not foreclose the possibility that a defendant may waive the right to seek a dismissal pursuant to the section by his or her conduct" (Myers v Slutsky, 139 AD2d 709, 710). A defendant may waive the right to seek dismissal pursuant to CPLR 3215(c) by serving an answer or taking "any other steps which may be viewed as a formal or informal appearance" (Myers v Slutsky, 139 AD2d at 711; see De Lourdes Torres v Jones, 26 NY3d 742, 772; HSBC Bank USA v Lugo, 127 AD3d 502, 503; Hodson v Vinnie's Farm Mkt., 103 AD3d 549).

Here, the defendant Gustavia Home, LLC, waived its right to seek dismissal of the complaint insofar as asserted against it pursuant to CPLR 3215(c) by filing a notice of appearance (see CPLR 320[a]; Meyers v Slutsky, 139 AD2d 709; cf. HSBC Bank USA, N.A. v Grella, 145 AD3d at 671). Accordingly, the Supreme Court properly denied that branch of its motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it as abandoned."

Monday, November 6, 2017

Friday, November 3, 2017

SOME PARENTING ADVICE FROM KINGS COUNTY SURROGATE


Some sound parenting advice which may also apply to parents of non-special needs adults, also from Matter of Michelle M., 2016 NY Slip Op 51114 - NY: Surrogate's Court, Kings 2016:

"It is evident that the petitioners deeply love and care for Michelle, wanting what they believe is best for her. But while parents' desire for peace of mind and natural instinct to protect their loved one may be assuaged by the appointment of a guardian, it is not, however, in the best interest of a person with the capacity to make independent decisions to have her decision making wholly removed through Article 17-A guardianship, no matter how well-intentioned the guardian. The appropriate legal standard is not whether the petitioners can make better decisions than Michelle, it is whether or not Michelle has the capacity to make decisions for herself, albeit with supportive services. See Matter of Raymond J.R., Sur Ct, Kings County, Dec. 9, 2011, L√≥pez Torres, S., File No. 2011-XXX. Upon the record presented, the credible evidence clearly demonstrates that Michelle is an adult who, despite cognitive limitations, has capacity to make decisions affecting the management of her own affairs with the support of her family and supportive services. Like the rest of us, Michelle makes decisions about her affairs — where to live, where to work, what to buy, whom to date — with the advice of those whom she chooses to consult. This does not render her in need of guardianship any more than it does an adult of typical intelligence and functioning who consults with trusted friends and family prior to making important decisions." 


Thursday, November 2, 2017

ARTICLE 17 A: NOT ALL SPECIAL NEEDS ADULTS REQUIRE A GUARDIAN



Matter of Michelle M., 2016 NY Slip Op 51114 - NY: Surrogate's Court, Kings 2016:

"Michelle has an inherent right and ability to make her own choices, with dignity, independence, and support. The long-standing view of plenary guardianship as the best and only mechanism available to meet the needs of every person with intellectual and developmental disabilities is challenged by the emerging recognition that persons with disabilities have varying degrees and areas of functional capacity and need, the availability of less restrictive alternatives to guardianship which provide targeted assistance and supported, instead of substituted, decision making, and the growing emphasis on empowering, integrating, and preserving the rights of persons with mental and physical disabilities. To allow Michelle to retain the legal right to make personal decisions about her own affairs, while providing her with any necessary assistance to make or communicate those decisions in a supported decision-making framework which she already has in place, is ultimately in her best interest.

For all the foregoing reasons, the court finds that petitioners have failed to meet their burden of showing that Michelle is in need of an Article 17-A guardianship. Accordingly, the petition is dismissed."

Wednesday, November 1, 2017

ACTION FOR DAMAGES FOR ILLEGAL APARTMENT



Mateo v. ANOKWURU, 2017 NY Slip Op 27330 - NY: Appellate Term, 1st Dept. 2017:

"Plaintiff-tenant leased a studio apartment in a house owned by defendant-owner. Defendant subsequently relocated plaintiff to a basement "apartment" in the house, which was not a legal residential unit. In March 2014, the New York City Department of Housing Preservation and Development's (HPD) issued a vacate order requiring plaintiff to vacate the basement unit within one day. This action arises from plaintiff's residence in that basement unit.

A fair interpretation of the evidence supports the trial court's conclusion that the conditions in the basement were "deplorable and disgusting." However, the court applied an incorrect measure of damages when it awarded tenant a refund of some 35 months of rent. Having received the benefit of shelter, plaintiff is not entitled to recover the rent paid (see Elkar Realty Corp. v Kamada, 6 AD2d 155 [1958]; Goho Equities v Weiss, 149 Misc 2d 628 [App Term, 1st Dept 1991]; Schotz-Powers Co., Inc. v Treidler, 128 Misc 466 [App Term, 1st Dept 1926]).

When the warranty of habitability is breached, a tenant may seek an abatement irrespective of whether the unit is a lawful dwelling. The correct measure of damages for breach of the warranty of habitability "is the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach" (Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 329 [1979], cert denied 444 US 992 [1979]). The matter is remanded for a new trial limited to the issue of damages."

Monday, October 30, 2017

HEARSAY AND MORTGAGE FORECLOSURE SUMMARY JUDGMENT

Bank of N.Y. Mellon v Cutler, 2017 NY Slip Op 07424, Decided on October 25, 2017, Appellate Division, Second Department:

"The plaintiff commenced this mortgage foreclosure action following the default of the defendants Gregg E. Cutler and Mirela S. Cutler, also known as Mirela Cutler (hereinafter together the defendants), on a note executed by them in the principal amount of $372,000 and issued in favor of Countrywide Home Loans, Inc., the plaintiff's predecessor in interest. The defendants asserted, inter alia, the defense of lack of standing in their answer. The parties engaged in pretrial disclosure, and the plaintiff subsequently moved, among other things, for summary judgment on the complaint insofar as asserted against the defendants and for the appointment of a referee to facilitate the sale of the property mortgaged by the defendants as security for the debt. The defendants [*2]opposed the motion, inter alia, on the ground that the plaintiff lacked standing to maintain the action, and cross-moved to compel further discovery. The Supreme Court granted those branches of the plaintiff's motion and, apparently in light of that determination, denied the defendants' cross motion. The defendants appeal.

Where, as here, a plaintiff's standing to commence a foreclosure action is placed in issue by the defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief (see Bank of N.Y. v Willis, 150 AD3d 652, 652; Citimortgage, Inc. v Klein, 140 AD3d 913, 914; Bank of N.Y. Mellon v Visconti, 136 AD3d 950, 950). A plaintiff has standing in a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 207-209; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" (U.S. Bank, N.A. v Collymore, 68 AD3d at 754; see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361-362).

Here, the plaintiff attempted to establish its standing by submitting the affidavit of Katherine Cacho, a vice president at Bank of America, N.A., which serviced the defendants' loan on behalf of the plaintiff. Cacho averred, in relevant part, that her affidavit was based upon her review of unspecified records indicating that the note was physically transferred to the plaintiff on August 16, 2007. The plaintiff failed to demonstrate that the records relied upon by Cacho were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]) because Cacho did not attest that she was personally familiar with the plaintiff's record-keeping practices and procedures (see Bank of N.Y. v Willis, 150 AD3d at 652; Arch Bay Holdings, LLC v Albanese, 146 AD3d 849; Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 685; Aurora Loan Servs., LLC v Mercius, 138 AD3d 650, 652).

Since the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on the issue of standing, we need not consider the sufficiency of the defendants' opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).

Inasmuch as the Supreme Court's denial of the defendants' cross motion to compel further discovery appears to have been premised on its granting of the plaintiff's motion for summary judgment, we remit the matter to that court for a new determination of the cross motion."

Friday, October 27, 2017

WHEN BUYER FAILS TO GET A MORTGAGE COMMITMENT BECAUSE BUYER CAN'T SELL THEIR CURRENT HOME



The standard form residential contract of sale (jointly Prepared by the Real Property Section of the New York State Bar Association, the New York State Land Title Association, the Committee on Real Property Law of the Association of the Bar of the City of New York and the Committee on Real Property Law of the New York County Lawyers' Association) has a clause (if the sale is conditioned on a mortgage) which states in part:

"To the extent a Commitment is conditioned on the sale of Purchaser's current home, payment of any outstanding debt, no material adverse change in Purchaser's financial condition or any other customary conditions, Purchaser accepts the risk that such conditions may not be met;"

That clause came into issue earlier this year in Gonzalez v. CHAR & HERZBERG, LLP, 2017 NY Slip Op 30473 - NY: City Court, Civil Court 2017:

"Plaintiffs received a Mortgage Loan Commitment from loanDepot.com, LLC dated August 29, 2016 (Ex 4). The document listed conditions that had to be met prior to closing and at closing, including that Plaintiffs had to have a contract of sale executed for their current home prior to the closing.

Plaintiffs submitted a "Statement of Credit Denial, Termination or Change" dated September 1, 2016 (Exs 3 & 5) which provided that Plaintiffs application was denied, because the institution did not" . . Grant Credit to Any Applicant on the terms and conditions . . ." requested and that Plaintiffs were unable to meet the condition for sale of their current residence prior to closing.

On September 2, 2016, Plaintiffs' counsel notified Defendant that Plaintiffs' mortgage application had been denied, and requested return of their security deposit (Ex 7). Defendant responded pursuant to a letter dated September 9, 2016, stating the cancellation provision was only contingent upon a commitment letter which had been issued, and advising that they intended to proceed with the scheduled closing on or about September 10, 2016 (Ex 1). Plaintiffs' counsel responded on September 9 that no "firm" commitment has ever been issued and the commitment that was issued had conditions which could not be met. Plaintiffs' counsel again requested return of the funds or stated legal action would be instituted against Defendant as escrow agent (Ex 8).

Further correspondence between counsel ensued. Defendant alleged that the conditions in the original commitment letter could have easily been met, and that Plaintiffs "bad faith" actions resulted in the denial (Ex 9). Defendant set a closing date pursuant to a Time Is of the Essence demand for October 21, 2016 (Ex 11) and stated that failure to close would result in retention of the down payment for breach of contract."

The court held:

"Where, as here, a mortgage commitment letter is revoked after issuance Plaintiffs' right to return of the escrowed down payment turns on whether the commitment revocation and consequent failure of the transaction was attributable to bad faith on the part of the Plaintiffs (Kapur v Stiefel 264 AD2d 602). There is no evidence of any bad faith on the part of Plaintiffs in the underlying record at inquest."

NOTE - an inquest was held. That is because the defendant in this action was the attorney for the seller who was also the escrow agent. The attorney refused service and defaulted. The court awarded a judgment for the down payment plus interest and costs.


Thursday, October 26, 2017

DIVORCE - COURT ORDERED HOLIDAY SCHEDULE



DD v. AD, 2017 NY Slip Op 50807 - NY: Supreme Court, Richmond 2017:

"The parties shall alternate all of the major holidays and school vacations as set forth below. Parenting time shall commence at 10:00 a.m. on the first day of the holiday or vacation period and shall conclude 9:00 p.m. on the final day of the visit unless otherwise specified below. If a conflict occurs between the normal parenting schedule and the holiday visitation schedule, the holiday visitation schedule will supersede normal parenting time. Holidays that fall on school days, such as Halloween, and the child's birthday, shall commence at school dismissal and end at 9:00 p.m.

Mother's Day shall always be with Mother and Father's Day shall always be with Father. Each parent shall have a total of two non-consecutive weeks of vacation with the child during the months of July and August. One week shall be in July; the other week shall be in August. Each party shall designate by email their vacation weeks by May first of each calendar year or be subject to the other parent's choice of designated weeks. Husband, as the non custodial parent, shall be granted first choice in the event that both parties seek the same weeks provided that he has timely designated his weeks in accordance herein.

At trial Wife testified at length that it would be her desire to have parenting time with the subject children every Christmas Eve. In return Wife suggested that Husband be granted every Fourth of July. Husband opposed Wife's proposed holiday schedule and argues that Christmas Eve is important to him also. Husband requests that each holiday simply be alternated. In regards to holiday visitation, the Court agrees with Husband. Accordingly, the following holidays shall be alternated:
Child's Birthday: even years: Mother/odd years: Father
Thanksgiving: even years: Mother/odd years: Father
Christmas Eve: even years: Father/odd years: Mother
Christmas Eve visit shall begin at 4 p.m. and end at 11 a.m. on Christmas Day.
Christmas Day: even years: Mother/odd years: Father
New Years Eve: even years: Mother/odd years: Father
>New Years Eve visit shall begin at 4:00 p.m. and end at 12:00 p.m. on New Year's Day.
New Years Day: even years: Father/odd years: Mother
Martin Luther King Day: even years: Mother/odd years: Father
President's Day: even years: Father/odd years: Mother
Good Friday: even years: Father/odd years: Mother
Easter: even years: Mother/odd years: Father
Memorial Day: even years: Father/odd years: Mother
Fourth of July: even years: Father/odd years: Mother
Labor Day: even years: Mother/odd years: Father
Halloween: even years: Mother/odd years: Father
Columbus Day: even years: Father/odd years: Mother
Veteran's Day: even years: Mother/odd years: Father
Midwinter Recess (February): the parent with the weekend directly preceding midwinter recess shall have parental access with the subject children until Wednesday of the vacation week at 3:00 p.m. The parent with the second weekend shall have the subject children from 3:00 p.m. Wednesday until Sunday at 9:00 p.m.

Spring Recess (April): the parent with the weekend directly preceding spring recess shall have the subject children until Wednesday of the vacation week at 3:00 p.m. The parent with the second weekend shall have the subject child from 3:00 p.m. Wednesday until Sunday at 9:00 p.m."

Wednesday, October 25, 2017

ANOTHER FAMILY EVICTION CASE


An interesting note in this case is that the landlord/owner discharged their counsel on the eve of trial. RINIS v. TOLIOU, 2017 NY Slip Op 50964 - NY: King County, Civil Court 2017:

"The premises at issue is the second-floor apartment in a building ("the property") with two apartments, one on the first floor and the other on the second floor. The property was owned by Haritini Rinis and John Rinis as tenants by the entirety; they lived in the first-floor apartment. Haritini Rinis died in 2008 and by operation of law John Rinis became the property's sole owner.

At some point in 2009 John Rinis rented the second floor apartment either to Eleni Toliou alone or to both Eleni Toliou and her adult daughter Sofia Toliou. A year or so later, John Rinis and Eleni Toliou entered into a prenuptial agreement dated September 2, 2010. They married each other later that year.

Five years later, by a deed dated October 14, 2015, John Rinis conveyed the property to his three adult children (Nikolaos Rinis, Anastasia Rinis, and Konstantina Rinis-Dibello), i.e., the instant petitioners, but he retained a life estate for himself. Five months later, by a summons and complaint dated March 15, 2016, John Rinis (under the name of Ioannis Rinis) sued in Supreme Court, Kings County, index number 51230/2016, for a divorce from Eleni Toliou. That action is still pending.

By counsel, petitioners served a 30-day predicate notice of termination dated November 19, 2015 purporting to terminate as of December 31, 2015 respondents' alleged month-to-month tenancy made pursuant to an oral agreement. Thereafter petitioners began this proceeding. Respondents joined issue and moved for, among other things, summary judgment. By a decision and order dated October 7, 2016 the court (Fitzpatrick, J.) denied that relief "because petitioner raises issues of fact as to whether the subject building is marital property and whether the subject unit was a marital domicile or not."

At the trial herein, petitioners insisted that the premises was neither the marital domicile nor part of the marital domicile. In support John Rinis testified that he never lived in the second floor apartment, that he never slept or ate meals there, and that he went there only on afternoons to drink coffee or tea with his wife. The foregoing may be true. However, the court notes that John Rinis and Eleni Toliou filed from the same address joint income tax returns in 2012 and 2013, and also that in a sworn statement bearing the dates of October 17, 2012 and October 26, 2012 and submitted to Federal immigration authorities, John Rinis certified that he lived at the property with his wife. In pertinent part, the statement provides: "The home is two floors and it is my ownership [sic]. I certify that my wife Eleni's [sic] Toliou daughter, Sofia Toliou lives with us with her husband Dennis Rodriguez at the address 1858 67th Street, Brooklyn, NY, 11204."

This court may not review the ruling dated October 7, 2016 by a judge of coordinate jurisdiction that there is a question of fact as to whether "the subject building is marital property and whether the subject unit was a marital domicile or not." However, this court holds that subject matter jurisdiction to decide that issue lies elsewhere. See, e.g., Rosenstiel v Rosenstiel, 20 AD2d 71, 73 (1st Dep't, 1963), where the court held that that a summary proceeding might not be maintained "to evict a wife whose rights as such have not been annulled or modified by any court decree or special agreement." Here, Eleni Toliou's rights as a wife have not been annulled or modified by any court decree or special agreement; the issue of whether the premises is part of the marital domicile may not be decided in the instant proceeding.

Petitioners argue that Rosenstiel and its progeny, e.g., Billips v Billips, 189 Misc 2d 144 (Civ Ct, NY Co, 2001) (Acosta, J.), are inapposite because those proceedings were between spouses while the instant proceeding is not between spouses but instead is between a stepmother and stepchildren who have no obligation to support one another. Especially in view of John Rinis' having retained a life interest in the property, the court holds that this argument exalts form over substance and that its acceptance here might permit John Rinis to evade responsibilities either undertaken in the prenuptial agreement or else imposed by law.

Finally, the court notes that Heckman v Heckman, 55 Misc 3d 86 (App Term, 9th & 10th Jud Dists, 2017) is not to the contrary. The ruling there, even read broadly, holds no more than that the housing part of the Civil Court has subject matter jurisdiction to entertain disputes between family members over the possession of real property as long as the family members are adults and the disputes do not include issues of support. Here there very well may be issues of support."