Friday, January 19, 2018

MORTGAGE FORECLOSURE - SUMMARY JUDGMENT DENIED FOR FAILURE TO FOLLOW EVIDENCE RULES



Bank of N.Y. Mellon v Zavolunov, 2018 NY Slip Op 00271, Decided on January 17, 2018, Appellate Division, Second Department:

"Here, the plaintiff failed to establish, prima facie, that it complied with the requirements of RPAPL 1304 (see M & T Bank v Joseph, 152 AD3d 579; CitiMortgage, Inc. v Pappas, 147 AD3d 900; Bank of N.Y. Mellon v Aquino, 131 AD3d 1186, 1186; Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 910). In moving for summary judgment, the plaintiff submitted the affidavit of Jason Ussery, a representative of its loan servicer, who stated that "[a]t least 90 days prior to the commencement of the action, notice was sent to Defendant by certified mail and first class mail to the last known address of the Defendant and, if different, to the residence that is the subject of the mortgage." Ussery annexed copies of the 90-day notices mailed to the defendant, all of which contained a bar code with a 20-digit number below it, but no language indicating that a mailing was done by first-class or certified mail, or even that a mailing was done by the U.S. Postal Service (see Wells Fargo Bank, N.A. v Trupia, 150 AD3d 1049). Moreover, Ussery did not make the requisite showing that he was familiar with the plaintiff's mailing practices and procedures, and therefore did not establish "proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed" (id. at 1050-1051; see Wells Fargo Bank, N.A. v Lewczuk, 153 AD3d 890; Citibank, N.A. v Wood, 150 AD3d 813; CitiMortgage, Inc. v Pappas, 147 AD3d at 901)."

Thursday, January 18, 2018

FREE SENIOR LAW CLINIC TODAY




The next Senior Clinic is scheduled for today 9:30-11am at the Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501.

I will be one of the volunteer lawyers.

Wednesday, January 17, 2018

CHILD SUPPORT - GOING OVER THE CAP



Arthur v. Arthur, 2017 NY Slip Op 1608 - NY: Appellate Div., 3rd Dept. 2017:

"Because the parties' combined incomes slightly exceeded the statutory cap of $141,000 (see Domestic Relations Law § 240 [1-b] [c] [3]), the court noted that it had considered the statutory factors in utilizing the combined parental income in excess of the statutory cap (see Domestic Relations Law § 240 [1-b] [c], [f]). Specific factors noted by the court included the children's entitlement to continue the standard of living they enjoyed prior to the parties' separation, their needs that must be addressed and the husband's resources that go beyond the income he attempted to have attributed to him. "The CSSA contains a rebuttable presumption that application of the guidelines will yield the correct amount of child support, thereby placing the burden on the party contesting the application of the statutory percentage to establish that the pro rata share of support is unjust or inappropriate" (Matter of Ryan v Ryan, 110 AD3d 1176, 1180 [2013] [citations omitted]). In exercising our independent review power, we find a lack of evidence in the record to support the husband's claim that shared parenting justifies a reduction of his child support obligation or that his proportional share of support "is unjust or inappropriate based on the application of the statutory factors" (Matter of Mitchell v Mitchell, 134 AD3d 1213, 1215 [2015])."

Tuesday, January 16, 2018

UNEMPLOYMENT INSURANCE - VOLUNTARY SEPARATION BECAUSE NEW YORK IS TOO EXPENSIVE



In this case, the reason for quitting turned out not to be just because "the rent is too high". Mailed and Filed: AUGUST 17, 2017, IN THE MATTER OF: Appeal Board No. 595502:

"FINDINGS OF FACT: The claimant worked for an advertising agency in Manhattan for more than seven years, ending in the position of manager of content and marketing. At the time of separation, the claimant was earning $73,500.00. To meet her living expenses, the claimant also had accrued approximately $8,000.00 in credit card debt, and she owed $6,000.00 to her parents.

In November 2016, the claimant's parents advised her that they would not lend her any more money. They did not set any deadline for her to repay the money they had already lent her. They offered to let her live with them rent-free while she paid off her debts. Her parents lived in California.

The claimant considered her financial situation and concluded that her debt was out of
control. She saw no way that she could meet her living expenses and pay off her debts living in New York. The claimant's take-home pay every two weeks was $1,936.99. She was paying $1,550.00 per month toward her share of the rent on an apartment she shared with a roommate in the Williamsburg section of Brooklyn. Her other expenses included: Groceries - $400 per month; Laundry - $60 to $100 per month; Uber, Lyft and taxicabs - $150 per month; Air travel - $2,025 per year; Utilities - $50 to $100 per month; Internet - $40 per month; Restaurants - $1,000.00 - $1,100.00 per month on average; Netflix - $9.99 per month; Gym memberships at two gyms - $230.00 + $187.00 = $417.00 per month. The claimant paid about $1,000.00 per month toward her credit card bills, and she incurred interest on the outstanding balance each month.

The claimant gave the employer notice by the end of November that she would be quitting in December. The claimant's last day of work was December 16, 2016. Continuing work was available.

OPINION: The credible evidence establishes that the claimant quit her job with the employer because she felt she could not afford to pay her living expenses and also pay off her debts while living in New York. In assessing whether the claimant was financially compelled to quit, we consider not only the amount but also the nature of the claimant's expenses. In this regard, we note that the claimant's monthly expenses included, on average, $1,567.00 to $1,667.00 per month in restaurant expenses, private car service, and memberships at two different gyms. She also was spending more than $2,000.00 per year on air fare. These circumstances establish that the claimant did not quit because she was financially compelled to leave New York. Rather, she quit because she wanted to live more affordably without lowering her standard of living. We further note that while the claimant's parents had advised her that they would lend her no further money, they had set no timetable for the claimant to repay the money they had already lent her. Thus, the claimant's debt to her parents did not add any urgency to her need to relocate.

The claimant's choice to live rent-free while paying off her debts may have been a wise financial choice, but it was also a discretionary one. "We have previously held that relocations motivated by a lower cost of living, more desirable housing, and proximity to family do not constitute good cause to quit for purposes of the Unemployment Insurance Law" (see Appeal Board No. 583065, citing Appeal Board No. 582656, Appeal Board No. 570678). Whereas the claimant could have continued to live and work in New York if she had made different choices, the claimant's decision to quit was not supported by good cause. Accordingly, we conclude that the initial determination was properly sustained, and the claimant is disqualified from receiving benefits."

Friday, January 12, 2018

GETTING BACK ENGAGEMENT RINGS - A BREAK UP STORY



So when there is a break up ad no marriage, many things can go awry. Here is an interesting case (although from 4 years ago is one of the more recent decisions) where the question was - is it an engagement ring or not. Torres v. Lopez, 2014 NY Slip Op 51494 - NY: Dist. Court, Nassau County, 1st Dist. 2014:

"In Lipton v. Lipton, 134 Misc 2d 1076, 514 NYS2d 158 (Sup Ct, NY Cty), the court stated that the intention of the parties whether an inter vivos gift is conditional or absolute is to be determined based from the express declaration of the parties or from the circumstances:

All the elements of an inter vivos gift were satisfied. (See In re Estate of Szabo, 10 NY2d 94, 98 217 NYS2d 593, 176 NE2d 395). The ring was delivered and accepted. Whether in a given instance the gift is conditional or absolute is an ordinary question of intention to be determined by an express declaration in the making of the gift or from the circumstances. 38 C.J.S Gifts § 61.

In Glachman v. Perlen, 159 AD2d 553, 552 NYS2d 418 (2nd Dept 1990), the Second Department held issues of fact existed on whether the gifts were in contemplation of marriage:

Although the plaintiff may maintain a cause of action to recover gifts he gave to the defendant solely in contemplation of their marriage (see, Civil Rights Law § 80-b, see also, Gaden v. Gaden, 29 NY2d 80, 323 NYS2d 955, 272 NE2d 471), the affidavits submitted by the parties regarding the circumstances under which the alleged gifts were given raise triable issues of fact precluding the awarding of summary judgment.

In DeFina v. Scott, 195 Misc 2d 75, 755 NYS2d 587 (Supt Ct, NY Cty 2003), the court states the applicable law in New York concerning the recovery of a ring:

The court starts with application of the traditional principle of New York law holding that an engagement ring is the property of the male donor when an engagement is terminated (see, Gagliardo v. Clemente, 180 AD2d 551, 580 NYS2d 278 [1st Dept 1992]; 11 NY Prac New York Law of Domestic Relations § 4:4, Courtship: Engagement Rings [2002], "Even prior to the enactment of the anti-heart balm legislation," cases held that "[t]he donee of the ring receives, at the time of the gift, only the right of possession. Firm ownership passes only upon the performance of the mar-riage").

This rule applies only to a ring given as an engagement ring (id., "If there were reasons other than a contemplated marriage why the gift was given, such as part of a birthday or holiday celebration, the ring may not be subject to return. Where there is a genuine dispute as to the circumstances under which the ring was given, a trial is necessary to determine the facts").

See also Poupis v. Brown, 90 AD3d 881, 935 NYS2d 127 (4th Dept 2009) holding issues of fact existed as to whether the ring and the transfer of the interest in the West Islip property were given solely in contemplation of marriage.

This court finds that while there is a very close issue of fact, the plaintiff failed to sustain his burden by preponderance of the evidence that the ring was solely given to defendant in contemplation of marriage.

Based upon a review of the trial transcript and evidence, this court holds that the ring was given as a gift and not in contemplation of marriage. The court credits the defendant's testimony that the ring was a gift for her giving the plaintiff a son and being a good mother. The invoice has no mention of the ring being an engagement ring. Plaintiff and defendant referred to each other as husband and wife prior to the ring being given as a gift. A domestic partnership already existed prior to the date the ring was given as a gift. The parties had a prior history of exchanging gifts with each other.

The court further credits defendant's testimony that she contributed $1,000 down for the diamond and gave $4,500 from her tax return.

The evidence further shows that no engagement announcement was sent out and no wedding venue had been booked.

Based upon the foregoing the plaintiff gave the ring to defendant as a gift and not in contemplation of marriage. Plaintiff is not entitled to recover a completed gift. Defendant is entitled to retain ownership of the ring."

Thursday, January 11, 2018

ON ELECTRONIC SIGNATURES



Here is an interesting situation involving the Electronic Signatures and Records Act.

SOLARTECH RENEWABLES, LLC v. Vitti, 2017 NY Slip Op 8574 - NY: Appellate Div., 3rd Dept. 2017:

"......
Defendant is the party to be charged, but she did not put pen to paper and physically sign any relevant document. Plaintiff contends that defendant's act of typing her name at the bottom of the proposed side letter constituted her signature and agreement to be bound. We disagree. While emails may comprise some of the documents that are read together to form a contract (see Brighton Inv., Ltd. v Har-Zvi, 88 AD3d at 1222), the question here is whether any of the relevant documents were signed by defendant.

Plaintiff cites to decisions from other Departments that have held that "[a]n e-mail sent by a party, under which the sending party's name is typed, can constitute a writing for purposes of the statute of frauds" (Newmark & Co. Real Estate Inc. v 2615 E. 17 St. Realty LLC, 80 AD3d 476, 477 [2011]; see Agosta v Fast Sys. Corp., 136 AD3d at 695; Williamson v Delsener, 59 AD3d 291, 291 [2009]; Naldi v Grunberg, 80 AD3d 1, 11-12 [2010], lv denied 16 NY3d 711 [2011]; Stevens v Publicis S.A., 50 AD3d 253, 255-256 [2008], lv dismissed 10 NY3d 930 [2008])[3]. Those holdings are consistent with the Electronic Signatures and Records Act (hereinafter ESRA), in which the Legislature provided that, "unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand" (State Technology Law § 304 [2]; see 9 NYCRR 540.4). An electronic signature is defined as "an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record" (State Technology Law § 302 [3]). "`Electronic record' shall mean information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities" (State Technology Law § 302 [2]).

Under ESRA, plaintiff would have a viable argument that defendant signed the emails she sent, as they are electronic records and she typed her name at the end of each. As confirmed at oral argument, however, plaintiff does not contend that the emails constituted signed documents forming the contract, but that defendant's typed name at the end of the proposed side letter constituted her signature. That document was separately typed and attached to emails for transmission. Although emails are electronic records, not every attachment to an email qualifies as an electronic record under ESRA. One of the purposes of ESRA is "to promote the use of electronic technology in the everyday lives and transactions" of government entities, businesses and average citizens (L 2002, ch 314, § 1, 2002 McKinney's Session Laws of NY, at 1034 [statement of legislative intent]; see Letter from William Pelgrin, Counsel of Office for Technology, Aug. 19, 1999, Bill Jacket, L 1999, ch 4 at 32-33). To fulfill this purpose, it was necessary for the Legislature to permit emails to be considered equivalent to signed writings when that was the sender's intent (see Naldi v Grunberg, 80 AD3d at 11-13), because it was not possible to place a handwritten signature on an email or similar electronic record that was being transmitted electronically.

The same logic does not apply to ordinary typed documents that are scanned and attached to emails, because a party could easily affix a handwritten signature to those documents. Indeed, defendant provided a signature line for plaintiff on the proposed side letter and requested that plaintiff's representative sign it to acknowledge acceptance of her conditions. The record demonstrates that plaintiff's representative must have printed a copy of the proposed side letter and endorsed it with his handwritten signature, then scanned and emailed the signed copy to defendant. That ordinary letter did not transform into an electronic record simply by virtue of its attachment to an electronic record (i.e., defendant's email), revert to a non-electronic record when printed and signed, then transform into an electronic record again when the signed copy was scanned and attached to a new email. In sum, the record does not demonstrate that the proposed side letter, itself, was an electronic record.

Defendant typed her name to the proposed side letter but did not sign it, although affixing her signature would have been easy and she requested that plaintiff affix an actual signature to it. Thus, even though that letter was attached to an email, we reject plaintiff's argument that defendant's typed name at the bottom of the letter constituted a signature. Because no document was signed by defendant, the alleged contract — assuming one was ever formed — did not satisfy the statute of frauds and is void. As the claims against defendant were based on the alleged contract, defendant was entitled to summary judgment dismissing the complaint against her."

Wednesday, January 10, 2018

UNEMPLOYMENT INSURANCE - TEACHERS AND ASSURANCE OF EMPLOYMENT




MATTER OF PAPAPIETRO v. ROCHESTER CITY SCHOOL DISTRICT, 2017 NY Slip Op 8596 - NY: Appellate Div., 3rd Dept. 2017:


"..."Pursuant to Labor Law § 590 (10), a claimant who is employed in an instructional capacity by an educational institution is precluded from receiving unemployment insurance benefits during `any week commencing during an established and customary vacation period or holiday recess, not between such academic terms or years, provided the claimant performed services for such institution immediately before such vacation period or holiday recess and there is a reasonable assurance that the claimant will perform any services . . . in the period immediately following such vacation period or holiday recess'" (Matter of Scott [Commissioner of Labor], 25 AD3d 939, 939-940 [2006]).

Initially, this Court has repeatedly held that the interpretation of plain language in Labor Law § 590 (10) is a matter for resolution by the courts, not subject to deference in regard to the Board's interpretation (see Matter of Scott [Commissioner of Labor], 25 AD3d at 940; Matter of Abramowitz [City Univ. of N.Y. — Hartnett], 156 AD2d at 839; Matter of Lintz [Roberts], 89 AD2d 1038, 1038 [1982]). This Court has well-established precedent interpreting the identical phrase in Labor Law § 590 (10), "reasonable assurance," regarding two successive academic years or terms to require "a representation by the employer" as to future employment (Matter of Rosenbaum [Borough of Manhattan Community Coll., City Univ. of N.Y. — Commissioner of Labor], 125 AD3d 1019, 1020 [2015] [internal quotation marks and citations omitted; emphasis added]; see Matter of Upham [Dutchess Community Coll. — Commissioner of Labor], 132 AD3d 1221, 1221 [2015]; Matter of Murphy [Copake-Taconic Cent. School Dist. — Commissioner of Labor], 17 AD3d 762, 763 [2005]). This representation often takes the form of a letter from an employer assuring a per diem substitute teacher of future employment opportunities (see e.g. Matter of Murphy [Commissioner of Labor], 85 AD3d 1478, 1479 [2011]; Matter of Schwartz [New York City Dept. of Educ. — Commissioner of Labor], 68 AD3d 1323, 1324 [2009]; Matter of Papapietro [Commissioner of Labor], 34 AD3d 956, 957 [2006]).

Here, it is uncontested that the employer never sent any letter to claimant or provided him with any other form of notice that made a representation regarding claimant's employment after the recess. Despite the fact that the Legislature required an assurance in this regard, the Board found that none was needed; it explained that it has "long held" that an employer need not give any notice to an employee regarding employment following a recess or a vacation.

Given that we have interpreted the word assurance to mean that an employer must make a representation to the employee, we find no reason to conclude, as the Board apparently did, that the Legislature intended the second use of the word assurance in Labor Law § 590 (10) to be superfluous. Accordingly, as the Board's conclusion that the employer need not make any representation or provide any notice to an employee regarding the provision of services immediately following a recess or vacation is inconsistent with the plain legislative requirement that the employer provide a reasonable assurance regarding such services, we reverse and remit for further proceedings (see Matter of Echevarria v DiNapoli, 145 AD3d 1310, 1311 [2016]; Matter of Abramowitz [City Univ. of N.Y. — Hartnett], 156 AD2d at 840).

Tuesday, January 9, 2018

COMMERCIAL FORECLOSURE - COMMERCIAL LEASE ENTERED AFTER NOTICE OF PENDENCY



BH 2628, LLC v. ZULLY'S BUBBLES LAUNDROMAT, INC., 2017 NY Slip Op 27319 - NY: Appellate Term, 2nd Dept. 2017:

"In this summary proceeding commenced pursuant to RPAPL 713 (5) by a purchaser in foreclosure, petitioner appeals from a final judgment which, after a nonjury trial, dismissed the petition. The Civil Court found that landlord had failed to prove its case, as occupant had a valid lease and had not been named in the foreclosure action. The court held, accordingly, that occupant was not bound by the judgment of foreclosure.

As the lease with the former owner upon which occupant's defense to this proceeding is based was signed several months after a notice of pendency had been filed in connection with the foreclosure action, occupant was, contrary to the Civil Court's holding, bound by the judgment of foreclosure (see CPLR 6501) and the lease was voidable by petitioner following its purchase in foreclosure (see id.; West 56th & 57th St. Corp. v Pearl, 242 AD2d 508 [1997]). Petitioner demonstrated that it had served a notice voiding the lease (see Matter of Fresh Meadows Jewish Ctr. [Gordon], 75 AD2d 814, 815 [1980]).

RPAPL 713 (5) allows for a special proceeding to be maintained after service of a 10-day notice to quit where "the property has been sold in foreclosure and either the deed delivered pursuant to such sale, or a copy of such deed, certified as provided in the civil practice law and rules, has been exhibited to" the respondent. Since, here, the lease was voided, not terminated, no landlord-tenant relationship ever existed between the parties. Thus, a proceeding pursuant to RPAPL 713 (5), not a holdover proceeding (RPAPL 711 [1]), was the appropriate proceeding for petitioner, a purchaser in foreclosure, to commence against occupant. As petitioner demonstrated that it had voided the lease; that it had exhibited the referee's deed to occupant's principal; that it had served a 10-day notice to quit; and that occupant had remained in possession of the subject property after the expiration of the 10-day period, petitioner is entitled to a final judgment of possession.

Accordingly, the final judgment is reversed and the matter is remitted to the Civil Court for the entry of a final judgment awarding possession to petitioner."

Monday, January 8, 2018

PRO BONO OPPORTUNITIES IN NASSAU COUNTY



There are many Pro Bono & volunteer opportunities available through the Nassau County Bar Association and I am thankful that I will be participating in two of them today: the Landlord/Tenant Volunteer Lawyers Project and the Mortgage Foreclosure Clinic.

For further details, go to https://www.nassaubar.org/For%20Our%20Members/Pro%20Bono.aspx

Friday, January 5, 2018

DIVORCE MONTH


For some time, January has unofficially been dubbed Divorce Month as the courts see a spike in divorce filings right after the new year.  While it is true that people don’t want to get divorced during the holidays and since January is a time for making resolutions and planning for the year ahead, I would suggest that anyone who is considering divorce should first seek out their own support group which will also include a mental health expert.

Thursday, January 4, 2018

CLOSED DUE TO SNOW



And for those cases scheduled to be heard before me today at 2pm Nassau County District Court, a new date will be scheduled.

Wednesday, January 3, 2018

ATTORNEYS AND ELDER ABUSE



Almost all of the last decisions of the 2nd Department in 2017 dealt with attorney discipline.

One stood out, however, was the case of the attorney, who after being appointed a successor guardian of an elderly man, engaged in a series of self-dealings including receiving commissions from the sale of property under a shell company, appointing his wife as geriatric care manager and naming himself as executor and trustee in a will at a time when the elderly man lacked testamentary capacity.

See Matter of D'Angelo, 2017 NY Slip Op 09277, Decided on December 29, 2017, Appellate Division, Second Department

Thursday, December 21, 2017

FORECLOSURE - FAILURE TO PROSECUTE



Deutsche Bank Natl. Trust Co. v Inga, 2017 NY Slip Op 08810, Decided on December 20, 2017 Appellate Division, Second Department:

"In March 2009, the plaintiff commenced this action to foreclose a mortgage against Manual Inga (hereinafter the defendant) and Maria Inga, among others. The defendant served an answer dated May 1, 2009. On October 10, 2014, the defendant served a 90-day demand to resume prosecution and, when the plaintiff failed to comply, moved pursuant to CPLR 3216 to dismiss the action insofar as asserted against him. In an order dated September 22, 2015, the Supreme Court granted the motion. The plaintiff appeals.

Where, as here, a plaintiff has been served with a 90-day demand pursuant to CPLR 3216(b)(3), that plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90-day period (see Belson v Dix Hills A.C., Inc., 119 AD3d 623, 623; Griffith v Wray, 109 AD3d 512, 513-514; Cope v Barakaat, 89 AD3d 670, 671). The plaintiff failed to do either within the 90-day period. Therefore, in order to excuse the default, the plaintiff was required to demonstrate a justifiable excuse for its failure to timely file the note of issue or move to either vacate the demand or extend the 90-day period, as well as a potentially meritorious cause of action (see Baczkowski v Collins Constr. Co., 89 NY2d 499, 503; Furrukh v Forest Hills Hosp., 107 AD3d 668; Jedraszak v County of Westchester, 102 AD3d 924). Nevertheless, it has been said that CPLR 3216 is "extremely forgiving" (Baczkowski v Collins Constr. Co., 89 NY2d at 503), "in that it never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed" (Davis v Goodsell, 6 AD3d 382, 383; see Di Simone v Good Samaritan Hosp., 100 NY2d 632, 633; Baczkowski v Collins Constr. Co., 89 NY2d at 504-505; Atterberry v Serlin & Serlin, 85 AD3d 949).

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the defendant's motion pursuant to CPLR 3216 to dismiss the action insofar [*2]as asserted against him. The plaintiff took no action whatsoever in the five years from the time the case was released from the foreclosure settlement part on October 15, 2009, until the defendant served his 90-day demand on October 10, 2014. Moreover, after failing to comply with the 90-day deadline, the plaintiff took no action for five months before belatedly filing a note of issue. The plaintiff failed to provide a justifiable excuse for its delay in filing a note of issue and failed to demonstrate a potentially meritorious cause of action. The plaintiff's further contention that dismissal was too harsh a sanction, and that a lesser sanction was more appropriate under the circumstances, is unavailing, given the plaintiff's "pattern[ ] of persistent neglect, a history of extensive delay, evidence of an intent to abandon prosecution and lack of any tenable excuse for such delay" (Schneider v Meltzer, 266 AD2d 801, 802)."

Wednesday, December 20, 2017

FAMILY COURT JURISDICTION - NO FAMILY OFFENSE BUT STILL A VIOLATION OF A TEMPORARY ORDER OF PROTECTION



No. 129, In the Matter of Lisa T., Respondent, v. King E. T., Appellant., Court of Appeals, December 19, 2017:

The facts as noted by the court:

"While the family offense proceeding remained pending, petitioner filed two violation petitions, later consolidated into a single petition, alleging that respondent had contacted her in contravention of the temporary orders of protection. Family Court held a combined hearing on the family offense and consolidated violation petitions. As relevant here, Family Court determined that petitioner had presented insufficient evidence to sustain the family offense petition, but that she had proven respondent's willful violations of two temporary orders through email communications unrelated to the child's visitation or any emergency. Accordingly, Family Court dismissed the family offense petition, but sustained the violation petition and issued a one-year final order of protection precluding respondent from, among other things, communicating with petitioner except as necessary to make arrangements for respondent's visitation with the child."

The arguments:

"Upon respondent's appeal, the Appellate Division affirmed, with one justice dissenting (147 AD3d 670 [1st Dept 129 2017]).  The dissenting justice would have held that Family Court lacked jurisdiction to issue a final order of protection because the family offense petition had been dismissed (147 AD3d at 675). Thereafter, the Appellate Division certified to this Court the question of whether its order was properly made."

The decision, in which there was also a dissent:

"To be sure, where the court concludes that the allegations of the petition charging respondent with a family offense are not established, it must dismiss the family offense petition (see Family Court Act § 841 [a]). However, this does not compel the conclusion that a pending petition alleging the violation of a [previously issued] temporary order of protection must also be dismissed. As noted, the family offense and violation petitions are authorized by different statutory provisions (see id. §§ 821, 846, 846-a). Once Family Court obtains jurisdiction over the parties by virtue of a petition facially alleging a family offense, the court may issue a temporary order of protection (see Family Court Act §§ 821-a [2] [a]; 828). A violation of that temporary order of protection is a separate matter over which sections 846 and 846-a give Family Court authority to act, including the authority to issue a final order of protection."

Tuesday, December 19, 2017

PRENUPTIAL AGREEMENT AND PENDENTE LITE MOTIONS



Kashman v. Kashman, 147 AD 3d 1034 - NY: Appellate Div., 2nd Dept. 2017:

"Although the prenuptial agreement contains a waiver of maintenance, equitable distribution, and an award of attorney's fees in the event of termination of the marriage, it does not bar temporary relief, including pendente lite maintenance and attorney's fees during the pendency of this litigation (see Davis v Davis, 144 AD3d 623 [2016]; McKenna v McKenna, 121 AD3d at 867; Abramson v Gavares, 109 AD3d 849, 850 [2013]). While the Supreme Court properly awarded the plaintiff interim attorney's fees, the court, without explanation, improvidently denied that branch of the plaintiff's motion which was for an award of pendente lite maintenance. Accordingly, we remit the matter to the Supreme Court, Nassau County, for a new determination of that branch of the plaintiff's motion (see McKenna v McKenna, 121 AD3d at 867)."

Monday, December 18, 2017

A BROKER IS ENTITLED TO A COMMISSION WHEN.....



REBENWURZEL v. SWIECA, 2016 NY Slip Op 50068 - NY: Supreme Court 2016:

"It is well established that "[i]If negotiations between parties brought together by a broker are unproductive and the parties, in good faith, withdraw and abandon the proposed purchase and sale, a subsequent renewal of negotiations, followed by a sale at a lesser price, does not entitle the broker to a commission as the broker was not the procuring cause of the sale" (11 NY Jur 2d, Brokers § 166; see also Leipham, Inc. v Grosodonia, 21 AD2d 847, 847 [4th Dept 1964]). "In the absence of fraud or bad faith on the part of the sellers, the broker is not entitled to [a] commission on a sale negotiated after the term of [its] employment, even though the sale is negotiated with a buyer introduced to the seller by the broker" (Bashant v Spinella, 67 AD2d 1100, 1100 [4th Dept 1979]).


A real estate broker who initially called the property to the attention of the ultimate purchaser "does not automatically and without more make out a case for commissions simply because [it] initially called the property to the attention of the ultimate purchaser" (Hentze-Dor Real Estate, Inc., 40 AD3d at 815, quoting Greene v Hellman, 51 NY2d 197, 205-206 [1980]). "Indeed, there must be a direct and proximate link, as distinguished from one that is indirect and remote, between the bare introduction and the consummation'" (Hentze-Dor Real Estate, Inc., 40 AD3d at 816 [internal quotation marks omitted]; see also SPRE Realty, Ltd. v Dienst, 119 AD3d 93, 98 [1st Dept 2014]).


It is true that "in order to qualify for a commission, a broker need not have been involved in the ensuing negotiations or in the completion of the sale (Hentze-Dor Real Estate, Inc., 40 AD3d at 816; see also Buck v Cimino, 243 AD2d 681, 684 [2d Dept 1997]). However, where, as here, "the broker is not involved in the negotiations leading up to the completion of the deal, the broker must establish that [it] created an amicable atmosphere in which negotiations proceeded or that [it] generated a chain of circumstances that proximately led to the sale'" (Hentze-Dor Real Estate, Inc., 40 AD3d at 816, quoting Dagar Group v Hannaford Bros. Co., 295 AD2d 554, 555 [2d Dept 2002]; see also Friedland Realty v Piazza, 273 AD2d 351, 351 [2d Dept 2000])."