Monday, June 18, 2018

MORTGAGE FORECLOSURE - VACATING DEFAULT



U.S. Bank N.A. v Grubb 2018, NY Slip Op 04373, Decided on June 13, 2018, Appellate Division, Second Department:

'The plaintiff commenced this residential mortgage foreclosure action against the defendant Amanda M. Grubb (hereinafter the defendant), among others, in January 2014. On or about October 16, 2014, the defendant filed a verified answer to the complaint. However, the plaintiff rejected the answer as untimely. Thereafter, the plaintiff moved, inter alia, for an order of reference. The defendant opposed the motion and cross-moved, in effect, to vacate her default in answering the complaint and to compel acceptance of a late answer. The Supreme Court signed an order of reference dated June 24, 2015, in which it granted the plaintiff's motion, denied the defendant's cross motion, and appointed a referee to, inter alia, ascertain and compute the amount due to the plaintiff. In an order and judgment of foreclosure and sale entered December 22, 2015, the Supreme Court granted the plaintiff's motion to confirm a referee's report and directed the foreclosure sale of the subject property. The defendant appeals.

"An applicant for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear" (HSBC Bank USA, N.A. v Clayton, 146 AD3d 942, 944 [internal quotation marks omitted]; see CPLR 3215[f]; Citimortgage, Inc. v Chow Ming Tung, 126 AD3d 841, 843; U.S. Bank, N.A. v Razon, 115 AD3d 739, 740). Here, the plaintiff satisfied these requirements (see Bank of Am., N.A. v Agarwal, 150 AD3d 651; U.S. Bank, N.A. v Razon, 115 AD3d at 740).

"A defendant seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an untimely answer must show both a reasonable excuse for the default and the existence of a potentially meritorious defense" (Citimortgage, Inc. v Stover, 124 AD3d 575, 576; see US Bank, N.A. v Samuel, 138 AD3d at 1106; Gershman v Ahmad, 131 AD3d 1104, 1105). " The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court'" (HSBC Bank USA, N.A. v Lafazan, 115 AD3d 647, 648, quoting Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 889, 890).

Here, the Supreme Court providently exercised its discretion in determining that the defendant failed to demonstrate a reasonable excuse for her default in timely answering the complaint (see Wells Fargo Bank, N.A. v Singh, 153 AD3d 893; US Bank, N.A. v Samuel, 138 AD3d at 1106-1107; Wells Fargo Bank, NA v Besemer, 131 AD3d 1047, 1049; HSBC Bank USA, N.A. v Rotimi, 121 AD3d 855, 855; Mannino Dev., Inc. v Linares, 117 AD3d 995, 995; Chase Home Fin., LLC v Minott, 115 AD3d 634, 634; U.S. Bank N.A. v Slavinski, 78 AD3d 1167, 1167-1168). The absence of a reasonable excuse for the defendant's default in answering renders it unnecessary to determine whether she demonstrated the existence of a potentially meritorious defense (see US Bank, N.A. v Samuel, 138 AD3d at 1107; U.S. Bank N.A. v Ahmed, 137 AD3d 1106, 1109; Citimortgage, Inc. v Stover, 124 AD3d at 576).'

Friday, June 15, 2018

FATHER'S DAY GREETINGS





Thursday, June 14, 2018

MORTGAGE FORECLOSURE - RPAPL 1304 AND SUMMARY JUDGMENT



US Bank N.A. v Sims, 2018 NY Slip Op 04374, Decided on June 13, 2018, Appellate Division, Second Department:

"On February 13, 2006, the defendant Janice Sims (hereinafter the defendant) executed a note in the sum of $410,000 in favor of EquiFirst Corporation, which was secured by a mortgage on property she owned in Plainview. In October 2009, the mortgage was assigned to the plaintiff. After the defendant allegedly defaulted on her mortgage payments, the plaintiff commenced this action to foreclose the mortgage by summons and complaint dated December 31, 2009, against, among others, the defendant. The complaint alleged that the plaintiff complied with RPAPL 1304. In her answer, the defendant asserted several affirmative defenses, including that the plaintiff failed to comply with RPAPL 1303 and RPAPL 1304.

The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference. In an order dated July 8, 2015, and entered July 13, 2015, the Supreme Court granted the plaintiff's motion. The court issued a second order, also dated July 8, 2015, and entered July 17, 2015, granting the same relief and referring the matter to a referee to compute the amount due to the plaintiff.

"RPAPL 1303 requires that a notice titled Help for Homeowners in Foreclosure' be delivered with the summons and complaint in residential foreclosure actions involving owner- occupied, one-to-four family dwellings" (Onewest Bank, N.A. v Mahoney, 154 AD3d 770, 771; see Prompt Mtge. Providers of N. Am., LLC v Singh, 132 AD3d 833). "Proper service of an RPAPL 1303 notice is a condition precedent to the commencement of a foreclosure action, and noncompliance mandates dismissal of the complaint" (Onewest Bank, N.A. v Mahoney, 154 AD3d [*2]at 771; see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 98). Here, contrary to the defendant's contention, the plaintiff established, prima facie, that it provided notice in compliance with RPAPL 1303 by submitting the process server's affidavit of service on the defendant, in which the process server stated that he served the summons and complaint together with "the Notice required by RPAPL Section 1303, which Notice, as served, was printed on blue paper, the title of the Notice appeared to be in bold 20-point type, and the text appeared to be in bold, 14-point type" (see HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822, 827-828; Onewest Bank, N.A. v Mahoney, 154 AD3d at 772). In opposition, the defendant failed to raise a triable issue of fact.

However, the plaintiff failed to establish, prima facie, that it strictly complied with RPAPL 1304. "[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 106; see Flagstar Bank, FSB v Damaro, 145 AD3d 858, 860). Here, contrary to the plaintiff's contention, the "affidavit of mailing" of a vice president for loan documentation of its loan servicer was insufficient to establish that the notice was sent to the defendant in the manner required by RPAPL 1304, as the loan servicer did not provide proof of a standard office mailing procedure and provided no independent proof of the actual mailing (see J.P. Morgan Mtge. Acquisition Corp v Kagan, 157 AD3d 875, 876; U.S. Bank N.A. v Henry, 157 AD3d 839, 841-842; Wells Fargo Bank, N.A. v Lewczuk, 153 AD3d 890, 892; Citibank, N.A. v Wood, 150 AD3d 813, 814). Accordingly, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference, without regard to the sufficiency of the defendant's opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324)."

Wednesday, June 13, 2018

A HELOC DEFAULT



This type of action can proceed to judgment quickly, unlike a mortgage foreclosure.

M & T Bank v DelVecchio, 2018 NY Slip Op 03971, Decided on June 6, 2018, Appellate Division, Second Department:

"In September 2005, the plaintiff and the defendant entered into a home equity line of credit agreement (hereinafter the agreement) whereby the plaintiff agreed to extend to the defendant a line of credit in the amount of $100,000, and the defendant agreed to make monthly payments. In January 2008, the line of credit was increased from $100,000 to $168,300. The agreement provided that the defendant would be in default if he failed to meet any of its repayment terms for a period of 30 days and that, in the event of a default, the plaintiff could demand that the defendant "pay the outstanding balance on this Account in one payment." In January 2014, the defendant failed to tender payment for that month and for successive months. In a letter dated April 18, 2014, the plaintiff informed the defendant that his account was past due, he was in "serious default," and he needed to pay $1,824.08 within five days to bring the account up to date. In a letter to the defendant dated June 8, 2015, the plaintiff, by its attorneys, demanded payment within 30 days of the outstanding principal in the amount of $158,444.05.

In July 2015 the plaintiff commenced this action alleging breach of contract and unjust enrichment. Issue was joined in December 2015 and, in May 2016, the plaintiff moved for summary judgment, in effect, on the breach of contract cause of action to recover the outstanding principal balance of $158,444.05, plus interest, costs, disbursements, late fees, and counsel fees. The motion was supported, inter alia, by the affidavit of a banking officer employed by the plaintiff who attested that she had personal knowledge of the matter and was familiar with all of the corporate records, files, and documents related thereto, including those evidencing the defendant's default and the plaintiff's efforts to recover payment. The defendant opposed the motion, arguing that on or about July 30, 2014, the plaintiff wrongfully rejected his offer to tender payment of the sum of [*2]$5,000. The Supreme Court denied the motion, and the plaintiff appeals.

The plaintiff made a prima facie showing of its entitlement to judgment as a matter of law by submitting, inter alia, a copy of the agreement and the affidavit of the banking officer evidencing the defendant's obligations under the agreement and his failure to make payment in accordance with its terms (see J.P. Morgan Chase Bank, N.A. v Lanar Sys., Inc., 120 AD3d 764; New York Community Bank v Fessler, 88 AD3d 667). In opposition, the defendant failed to raise a triable issue of fact as to any bona fide defense (see Bank of Am., N.A. v DeNardo, 151 AD3d 1008, 1010), as his contentions were unsubstantiated and speculative (see Bank of Am., N.A. v J.P.T. Automotive, Inc., 52 AD3d 553, 555; First Natl. Bank of Hudson Val. v Schantz, 253 AD2d 735, 736).

Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment, in effect, on the cause of action alleging breach of the agreement and seeking to recover the outstanding principal balance of $158,444.05, plus interest, costs, disbursements, late fees, and counsel fees."

Tuesday, June 12, 2018

WHEN CAN AN EMPLOYER RECOVER ATTORNEY FEES WHEN A WHISTLEBLOWER CASE IS DISMISSED



Berde v North Shore- Long Is. Jewish Health Sys., Inc., 2018 NY Slip Op 03955, Decided on June 6, 2018, Appellate Division, Second Department:

"The plaintiff commenced this action to recover damages for unlawful termination of employment in violation of Labor Law § 740. After years of discovery and motion practice, including two appeals in which this Court vindicated the plaintiff's right to proceed with this action (see Berde v North Shore-Long Is. Jewish Health Sys., Inc., 98 AD3d 932, 932-933; Berde v North Shore-Long Is. Jewish Health Sys., Inc., 50 AD3d 834, 835-836), the Supreme Court, following a nonjury trial, decided in favor of the defendant in a decision dated July 25, 2014. In an order dated October 21, 2014, the court awarded the defendant attorneys' fees and costs pursuant to Labor Law § 740(6) in the sum of $591,071.70. The court entered a judgment dated March 20, 2015, upon the decision and the order. In an order dated September 8, 2015, the court granted the plaintiff's motion [*2]for leave to reargue the award of attorneys' fees and costs, but upon reargument, adhered to its original determination. The plaintiff appeals from the judgment and the order dated September 8, 2015.

Although the decision of the trial court upon which the judgment was based did not state the essential facts (see CPLR 4213[b]), this Court has before it the complete trial record, which is sufficient to conduct an independent review of the evidence so as to make the requisite findings of fact (see Park E. Constr. Corp. v East Coast Mech. Servs., Inc., 133 AD3d 581, 582; Hugh O'Kane Elec. Co., LLC. v MasTec N. Am., Inc., 45 AD3d 413, 414; Atlantic Contr. Corp. v Hartford Acc. & Indem. Co., 155 AD2d 571, 572). " In reviewing a determination rendered after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts'" (Galbraith v Westchester County Health Care Corp., 140 AD3d 696, 697, quoting Furino v O'Sullivan, 137 AD3d 1208, 1209-1210). Upon our independent review, we conclude that the determination to dismiss the complaint was warranted by the facts presented at trial (see Hookman v Lenox Hill Hosp., 241 AD2d 333, 333). In particular, the weight of the evidence established that the defendant had a nonretaliatory justification for dismissing the plaintiff, as she had numerous conflicts with other hospital staff and failed to improve in that respect despite opportunities to do so.

Labor Law § 740(6) provides that a court, in its discretion, may award an employer attorneys' fees and costs if it determines that the employee's action is " without basis in law or in fact'" (Tomo v Episcopal Health Servs., Inc., 85 AD3d 766, 768-769, quoting Labor Law § 740[6]). Here, the trial record included testimonial and documentary evidence of the plaintiff's numerous complaints about ongoing sterility problems in the operating room, which problems arguably constituted a violation of applicable regulations and posed a present, substantial, and specific danger to patient health. The plaintiff and other witnesses testified that these issues arose hundreds of times over the relevant time period and were not seriously addressed until after the plaintiff finally complained to her supervisor's supervisor. The plaintiff's annual performance evaluations demonstrate that she met or exceeded expectations throughout her tenure as a nurse manager and, despite identifying areas for improvement, did not indicate a risk of dismissal until after she complained to upper management. While ultimately unpersuasive in light of the defendant's evidence, the plaintiff's action "cannot reasonably be characterized as being without basis in law or in fact'" (Lukose v Long Is. Med. Diagnostic Imaging, P.C., 120 AD3d 1312, 1313-1314, quoting Labor Law § 740[6]). The Supreme Court therefore improvidently exercised its discretion in awarding the defendant attorneys' fees and costs pursuant to Labor Law § 740(6)."

Monday, June 11, 2018

VOLUNTEER LAWYERS PROJECT



Today I will be a volunteer lawyer with Nassau Suffolk Law Services at Landlord/Tenant court in Hempstead:

"Volunteer Lawyers Project

What is the Volunteer Lawyers
Project?
Attorneys are encouraged to volunteer to provide free legal assistance to the poor in Nassau County through the Volunteer Lawyers Project. NCBA partners with the Nassau/Suffolk Law Services Committee to support VLP, which helps maximize the quantity and quality of pro bono assistance provided for the county's low-income community.

What programs are part of the VLP?
Volunteer attorneys handle a wide array of cases including matrimonial matters, individual bankruptcy, personal injury and negligence defense, estate matters, release of accounts blocked by judgment creditors, and various other civil matters.

     • The Landlord/Tenant Project's Attorney of the Day Program assists thousands of men, women and children in court to prevent homelessness.

     • The Bankruptcy Clinics assist families either with advice or the filing for a Chapter 7 bankruptcy, when appropriate.

     • The Matrimonial Project assists hundreds of individuals in obtaining divorces, child support and custody.

How does it work?
An attorney based at VLP’s offices in Hempstead conducts client intake interviews and refers clients to appropriate volunteer attorneys. The VLP attorney also recruits and trains volunteer attorneys to handle cases."

Friday, June 8, 2018

DIVORCE - REQUEST TO ALLOCATE FUTURE COLLEGE EXPENSES

Weidman v Weidman, 2018 NY Slip Op 04027, Decided on June 6, 2018, Appellate Division, Second Department:

"The court, however, should have denied, as premature, the defendant's request to allocate between the parties responsibility for the future college expenses of the parties' then 13-year-old child (see Marin v Marin, 148 AD3d 1132, 1136; Repetti v Repetti, 147 AD3d 1094, 1097; Dochter v Dochter, 118 AD3d 665, 666; Bogannam v Bogannam, 60 AD3d 985, 986)."

Thursday, June 7, 2018

DEFAMATION BY FACEBOOK?



Stolatis v Hernandez, 2018 NY Slip Op 03868, Decided on May 30, 2018, Appellate Division, Second Department:

"Whether a particular statement constitutes an opinion or an objective fact is a question of law (see Mann v Abel, 10 NY3d 271, 276; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 381).

Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation (see Mann v Abel, 10 NY3d at 276; Crescendo Designs, Ltd. v Reses, 151 AD3d 1015).

We turn first to the portion of the complaint predicated upon the statements set forth in paragraphs 22 through 25 of the complaint. The defendant established that these statements, which referred to the plaintiff's actions in causing the demolition of the building as a "crime" and referred to the plaintiff as a "vampire," constituted nonactionable opinion or rhetorical hyperbole (see Greenbelt Cooperative Publishing Assn., Inc. v Bresler, 398 US 6, 14; Gross v New York Times Co., 82 NY2d 146, 155; 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130, 144-145; see also LeBlanc v Skinner, 103 AD3d 202, 213; Melius v Glacken, 94 AD3d 959, 960; Sandals Resorts Intl. Ltd. v Google, Inc., 86 AD3d 32, 43-44). In opposition to this showing, the plaintiff and Plateau failed to raise a triable issue of fact. For the same reason, the Supreme Court properly denied that branch of the motion of the plaintiff and Plateau which was for summary judgment in favor of the plaintiff on the issue of liability on so much of the complaint as was predicated on the statements set forth in paragraphs 22 through 25.

We further agree with the Supreme Court's determination to award summary judgment dismissing the remaining portion of the complaint, which was predicated on the statement set forth in paragraph 26. In this statement, the defendant asserted that the plaintiff had originally said that he would keep the building's historic facade and gut the interior to convert the building into apartments. The defendant further stated that the plaintiff's statement was "a lie" and that "[a]ll along he planned a big condo and he removed part of the metal roof and punched holes in it and failed to repair it so the elements would get in and slowly but surely destroy the building. This is known as demolition by intentional neglect.'"

The statement complained of was one of numerous posts made during the course of April 14, 2015, and thereafter, regarding the controversy on Facebook pages about Ossining. Another post asserted that the building had been damaged in Hurricane Sandy in 2012 and the developer "threw in the towel" on restoration. Another post, by someone else, stated that the property was an "eye sore and dangerous," while a third poster stated that the building had been vacant for 30 years. The third poster later added that he "used to go there for dumpster fires" between 1988 to 1994.

In distinguishing between statements of opinion and fact, the factors to be considered are: (1) whether the specific language at issue has a precise, readily understood meaning, (2) whether the statements are capable of being proven true or false, and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers that what is stated is likely to be opinion, not fact (see Mann v Abel, 10 NY3d at 276; Brian v Richardson, 87 NY2d 46, 51). Even apparent statements of fact may assume the character of opinion when made in public debate where the audience may anticipate the use of rhetoric or hyperbole (see Steinhilber v Alphonse, 68 NY2d 283, 294). The question is not whether there is an isolated assertion of fact; rather, it is necessary to consider the writing as a whole, including its tone and apparent purpose, as well as the overall context of the publication, to determine whether the reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff (see Mann v Abel, 10 NY3d at 276; Brian v Richardson, 87 NY2d at 51; Crescendo Designs, Ltd. v Reses, 151 AD3d at 1015; Sandals Resorts Intl. Ltd. v Google, Inc., 86 AD3d at 42).

Here, given the context in which the statements set forth in paragraph 26 of the complaint were made, and viewing the content of the post as a whole, as well as the content of the other contemporaneous posts on the same Facebook pages, a reasonable reader would have believed that the defendant was communicating his opinion as to whether plaintiff and his company intended from the outset to preserve or replace the building. Although one could sift through the series of posts, including the challenged one, and argue that the author made false factual assertions, viewing the entire series of posts as a whole, as we must, we conclude that the posts constituted an expression of protected opinion and, therefore, summary judgment was properly awarded to the defendant (see Mann v Abel, 10 NY3d at 277)."

Wednesday, June 6, 2018

MEDICAID APPLICATION - WHEN YOU CANNOT GET ALL THE DOCUMENTATION



Matter of Medford Multicare Ctr. v Zucker, 2018 NY Slip Op 03837, Decided on May 30, 2018, Appellate Division, Second Department:

"In 2012, Louise Wick, a 91-year-old person with a guardian, was admitted to long-term care at the petitioner nursing home. Wick's guardian authorized the petitioner's Medicaid coordinator to represent Wick during the Medicaid eligibility process. On or about July 28, 2014, Wick's representative submitted a Medicaid application to the Suffolk County Department of Social Services (hereinafter DSS) on Wick's behalf, seeking coverage from April 1, 2014. DSS requested certain documentation by August 11, 2014, including statements from specified bank accounts held at Citibank and Chase. Wick's representative submitted some, but not all, of the requested documentation, and secured two extensions of time. The last extension of time request cited difficulty the representative was having in obtaining the Chase account statements. DSS extended the time for production of the documents until September 11, 2014. Prior to that date, Wick's representative submitted the Chase account statements and certain other documents. She did not submit the Citibank account statements, request another extension of time, or seek DSS's aid in obtaining the documents. In a determination dated September 24, 2014, DSS denied the application for failure to submit required documentation. Following a fair hearing, in a determination dated December 30, 2014, the New York State Department of Health (hereinafter DOH) affirmed DSS's determination.
The petitioner commenced this proceeding pursuant to CPLR article 78 to review [*2]DOH's determination. The proceeding was transferred to this Court pursuant to CPLR 7804(g).

In reviewing a Medicaid eligibility determination made after a fair hearing, the court must review the record, as a whole, to determine if the agency's decisions are supported by substantial evidence (see Matter of Sandoval v Shah, 131 AD3d 1254, 1255). Substantial evidence "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180). The petitioner bears the burden of demonstrating eligibility (see Matter of Bosco v McGuire, 111 AD3d 931, 932; Matter of Loiacono v Demarzo, 72 AD3d 969, 969-970).

Here, the determination of DOH that Wick's representative failed, without good cause, to provide in a timely manner documents necessary for the processing of her application is supported by substantial evidence (see 18 NYCRR 351.8[a][2][ii]; Matter of Pagnani v Suffolk County Dept. of Social Servs., 152 AD3d 696, 696; Matter of Bosco v McGuire, 111 AD3d 931, 932; Matter of Frohlinger v DeBuono, 278 AD2d 323, 324; cf. 18 NYCRR 351.26[a][2], [3]; Matter of Eichna v Demarzo, 52 AD3d 513). Accordingly, the determination must be confirmed."

Tuesday, June 5, 2018

POST ADOPTION CONTRACTS



Matter of Yasmine T. (Aeisha G.--Keisha G.), 2018 NY Slip Op 03848, Decided on May 30, 2018, Appellate Division, Second Department:

"The biological mother executed separate conditional judicial surrenders for the two subject children, Yasmine and Daneisha, with post-surrender/post-adoption contact agreements allowing her four supervised visits per year and twice yearly mailings of photographs until each child turned 14. Once each child turned 14, those contacts were to occur only upon the consent of that child. The children were subsequently adopted by their aunt in July 2013, and the relevant provisions of the post-adoption contact agreements were included within the orders that granted and approved the instruments of surrender, terminated the mother's parental rights, and transferred the guardianship and custody rights of the children to the adoptive parent.

In December 2016, the mother filed separate petitions alleging that the adoptive parent had failed to schedule the necessary number of visitations or provide the mother photographs of each of the children. After a hearing, the Family Court, in effect, denied the petitions.

Issues concerning the child Daneisha are academic, as she is now 19 years old (see [*2]Matter of Heidi E. [Tresea F.—Phyllis G.], 68 AD3d 1174).

Regarding the child Yasmine, the post-adoption contact provisions of a judicial surrender contained within an order of adoption will be enforced only where the court determines that enforcement is in the child's best interests (see Domestic Relations Law § 112-b[4]; Social Services Law § 383-c[2][b]; Matter of Jayden A. [Jennifer A.], 123 AD3d 816, 818-819; Matter of Rebecca O., 46 AD3d 687, 688). Inasmuch as the Family Court's determination with respect to the best interests of a child or children depends to a great extent upon its assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parties, deference is accorded to its findings, and such findings will not be disturbed unless they lack a sound and substantial basis in the record (see Matter of Jayden M.A.-M. [Jennifer A.—Gregory M.], 156 AD3d 878, 878-879).

The record reflects that Yasmine had chosen not to contact the mother. Under the terms of the post-adoption contact provisions of the judicial surrender, this was Yasmine's prerogative because she was 14 years old. Accordingly, there is a sound and substantial basis in the record for the Family Court's determination."

Monday, June 4, 2018

CHILD CUSTODY - POST BROOKE S. B.



Matter of Renee P.-F. v Frank G. ,2018 NY Slip Op 03839, Decided on May 30, 2018, Appellate Division, Second Department:

Joseph P. (hereinafter Joseph) and Frank G. (hereinafter Frank) were domestic partners who began living together in 2009. As they desired to have children genetically related to both of them, they asked Joseph's sister, Renee P.-F. (hereinafter Renee), to act as a surrogate. Renee had previously promised her brother that she would carry a child for him after he met his life partner. Renee executed a surrogacy contract in which she agreed to be impregnated with Frank's sperm and to terminate her parental rights in order for Joseph to adopt the child or children. In February 2010, Renee gave birth to fraternal twins, Giavonna and Lucciano (hereinafter together the children).

During the first four years of the children's lives, Joseph and Frank equally shared the rights and responsibilities of parenthood, although Joseph did not legally adopt the children. The children regarded both Joseph and Frank as their parents. During that period, Renee frequently saw the children. In early 2014, Joseph and Frank separated, and the children continued to reside with Frank. Even so, Joseph, acting in a parental role, visited and cared for the children on a daily basis.

However, in May 2014, Frank suddenly refused to allow Joseph or Renee to have any access to the children. In December 2014, Frank moved to Florida with the children without informing Joseph or Renee, or commencing a proceeding for custody of the children.

Thereafter, Renee petitioned for custody of the children, and Joseph petitioned to be appointed guardian of the children. In March 2015, Frank petitioned for custody of the children and for permission to relocate with the children to Florida. In an order dated April 8, 2015, the Family Court denied that branch of Frank's motion which was for permission to relocate with the children to Florida. In June 2015, Joseph withdrew his guardianship petition and filed a petition for custody of the children. Frank then moved, in effect, to dismiss Joseph's custody petition on the ground, inter alia, that Joseph lacked standing under Domestic Relations Law § 70. In an order dated August 21, 2015, the court, after a hearing, denied Frank's motion to dismiss and determined that Joseph had standing to seek custody of or physical access with the children. Frank appealed from the orders dated April 8, 2015, and August 21, 2015.

While Frank's appeals were pending before this Court, the Court of Appeals, in Matter of Brooke S.B. v Elizabeth A.C.C. (28 NY3d 1), overruled Matter of Alison D. v Virginia M. (77 NY2d 651). In Matter of Brooke S.B., the Court of Appeals held that, where a partner to a biological parent "shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70" (Matter of Brooke S.B. v Elizabeth A.C.C., 28 NY3d at 13). Based upon the evidence adduced at the hearing before the Family Court and in light of Matter of Brooke S.B., this Court determined that Joseph established standing to seek custody or physical access and remitted the matter to the Family Court, Orange County, for a full hearing on the custody petitions (see Matter of Giavonna F.P.-G. [Frank G.—Renee P.-F.], 142 AD3d 931; Matter of Frank G. v Renee P.-F., 142 AD3d 928).

On remittitur, the Family Court, after a hearing, issued an order dated February 14, 2017, upon a decision also dated February 14, 2017, inter alia, granting Joseph's petition for custody of the children and denying Frank's petition for custody of the children and for permission to relocate with the children to Florida. In an order dated May 10, 2017, the court granted that branch of Joseph's motion which was for an award of an attorney's fee to the extent of directing Frank to pay [*3]an attorney's fee in the sum of $25,000, and granted that branch of Renee's motion which was for an award of an attorney's fee to the extent of directing Frank to pay an attorney's fee in the sum of $15,000. In an order dated August 2, 2017, the court dismissed, without a hearing, Frank's petition to modify the order dated February 14, 2017, so as to, inter alia, award him custody of the children. Frank appeals from the decision and the orders.

Frank argues that the Family Court improperly determined that Joseph had standing to seek custody of the children pursuant to Matter of Brooke S.B. (28 NY3d 1). However, as stated above, on Frank's prior appeal from the order dated August 21, 2015, this Court determined that Joseph established standing to seek custody or physical access pursuant to the standard set forth in Matter of Brooke S.B. and remitted the matter to the Family Court, Orange County, for a full hearing on Joseph's petition for custody or visitation with the children (see Matter of Frank G. v Renee P.-F., 142 AD3d at 930-931). "The law of the case doctrine forecloses re-examination of issues decided on a prior appeal in the same action, absent a showing of new evidence or a change in the law" (New York Cent. Lines, LLC v State of New York, 141 AD3d 703, 705; see Clinkscale v Sampson, 104 AD3d 722, 723; Wells Fargo Bank Minn., N.A. v Perez, 70 AD3d 817, 817). Here, Frank had a full and fair opportunity before the Family Court and on the prior appeal to contest the issue of Joseph's standing. Frank has neither presented new evidence that would change the determination in the prior appeal nor demonstrated that there has been a subsequent change in the law. Under these circumstances, Frank is barred from raising the same argument again on these appeals.

"The paramount concern in any custody or visitation determination is the best interests of the child, under the totality of the circumstances" (Matter of Boggio v Boggio, 96 AD3d 834, 835; see Matter of Wilson v McGlinchey, 2 NY3d 375, 380-381; Eschbach v Eschbach, 56 NY2d 167, 171). As this matter concerns an initial custody determination, the strict application of the factors relevant to relocation petitions (see Matter of Tropea v Tropea, 87 NY2d 727, 741) is not required (see Matter of McDonald v Thomas, 154 AD3d 763, 764; Matter of Wood v Rago, 135 AD3d 949, 950). Frank's relocation to Florida was one factor for the Family Court to consider in determining what was in the children's best interests (see Matter of Wood v Rago, 135 AD3d at 950; Matter of Santano v Cezair, 106 AD3d 1097, 1098). "[O]ne of the primary responsibilities of a custodial parent is to assure meaningful contact between the children and the noncustodial parent, and the willingness of a parent to assure such meaningful contact between the children and the other parent is a factor to be considered in making a custody determination" (Matter of Vasquez v Ortiz, 77 AD3d 962, 962; see Matter of Dezil v Garlick, 114 AD3d 773, 773-774; Matter of Honeywell v Honeywell, 39 AD3d 857, 858).

Here, the Family Court's determination that the best interests of the children would be served by an award of custody to Joseph has a sound and substantial basis in the record and will not be disturbed. Frank's refusal to allow Joseph any contact with the children as of May 2014 and relocation with the children to Florida, without informing Joseph, constitutes willful interference with the relationship between the children and Joseph. Such conduct " is so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent'" (Matter of Khan-Soleil v Rashad, 111 AD3d 728, 730, quoting Matter of Ross v Ross, 68 AD3d 878, 878; see Matter of Lawlor v Eder, 106 AD3d 739, 740; Matter of Purse v Crocker, 95 AD3d 1216, 1217). Although Frank attempted to excuse his conduct based upon his allegations that Joseph was engaging in risky sexual behavior, thereby endangering the children, the court concluded that Frank's allegations were not supported by credible evidence. As a result, the court properly discounted that explanation (see Matter of Khan-Soleil v Rashad, 111 AD3d at 730; Matter of Jones v Pagan, 96 AD3d 1058, 1058). In contrast, the record supported the court's finding that Joseph was willing to assure meaningful contact between the children and Frank.

Contrary to Frank's contentions, the awards of an attorney's fee to Joseph and Renee were not an improvident exercise of discretion in light of the parties' financial circumstances and the circumstances of this case (see Matter of Zaydenverg v Zaydenverg, 151 AD3d 871, 872; Matter of Feng Lucy Luo v Yang, 104 AD3d 852, 852; Matter of Tuglu v Crowley, 96 AD3d 862, 863).

Moreover, Frank's petition to modify the custody order was properly dismissed [*4]without a hearing. A parent seeking a change of custody is not automatically entitled to a hearing, but must make an evidentiary showing of a change in circumstances demonstrating a need for a change in custody in order to protect the child's best interests (see Matter of Scott v Powell, 146 AD3d 964, 965; Matter of Paulino v Thompson, 145 AD3d 726, 726-727; Matter of Ali v Hines, 125 AD3d 851, 851; Magee v Magee, 119 AD3d 658, 659). Here, Frank failed to make an evidentiary showing that there had been a sufficient change of circumstances between the issuance of the custody order dated February 14, 2017, and the filing of the modification petition. The unsubstantiated and conclusory allegations in his modification petition were insufficient to warrant a hearing (see Matter of Paulino v Thompson, 145 AD3d at 726-727; Matter of Ali v Hines, 125 AD3d at 851)."

Friday, June 1, 2018

CHILD CUSTODY - RELOCATION WITH CHILDREN ALLOWED



Matter of Matsen v Matsen, 2018 NY Slip Op 03836, Decided on May 30, 2018, Appellate Division, Second Department:

"The mother and the father are the parents of two children, who are now seven and five years old, respectively. The parties were divorced by judgment entered June 3, 2016, which incorporated, but did not merge, a stipulation of settlement entered into by the parties in May 2016. The stipulation provided, in relevant part, that the parties would share joint legal custody of the children, with physical custody of the children to the mother and frequent physical access to the father, and that the party with whom the children did not have physical access would have daily private, uninterrupted telephone, FaceTime, or Skype calls with the children. The parties also agreed that they would not move more than 40 miles away from each other's residence in Millbrook, New [*2]York.
In October 2016, the father filed a petition to modify the judgment of divorce so as to award him sole legal and physical custody of the children on the grounds that the mother notified him that she intended to relocate with the children the following June to Ridgefield, Connecticut, to live with her fiancé. The proposed relocation exceeded the 40-mile limitation to which the parties had agreed and would make compliance with the existing physical access schedule impossible. Thereafter, the mother filed a petition for permission to relocate with the children to Ridgefield and a separate petition alleging that the father had violated the custody arrangement by interfering with her calls with the children.

Following a hearing on the petitions, the Family Court denied the mother's petitions and granted the father's petition to the extent of directing, inter alia, that sole custody of the children would be transferred to the father in the event the mother relocated to Ridgefield or any other location which made the current physical access schedule impracticable. The mother appeals.

"A parent seeking leave to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child's best interests" (Matter of Caruso v Cruz, 114 AD3d 769, 771; see Matter of Tropea v Tropea, 87 NY2d 727, 741; Matter of DeCillis v DeCillis, 128 AD3d 818, 819; Matter of Doyle v Debe, 120 AD3d 676, 680). The court must consider factors that include, but are not limited to, each parent's reasons for seeking or opposing the move, the quality of the relationships between the children and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the children's future contact with the noncustodial parent, the degree to which the custodial parent's and children's lives may be enhanced economically, emotionally, and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and children through suitable physical access arrangements (see Matter of Tropea v Tropea, 87 NY2d at 740-741; Matter of Boyd v Ivory, _____ AD3d _____, 2018 NY Slip Op 02457 [2d Dept 2018]; Matter of DeCillis v DeCillis, 128 AD3d at 820; Matter of Doyle v Debe, 120 AD3d at 679-680; Matter of Caruso v Cruz, 114 AD3d at 771). While an agreement of the parties is a factor for consideration, "[n]o agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child's best interest" (Friederwitzer v Friederwitzer, 55 NY2d 89, 95; see Matter of Gravel v Makrianes, 120 AD3d 815, 816-817; Matter of Shannon J. v Aaron P., 111 AD3d 829, 830; Rheingold v Rheingold, 4 AD3d 406).

The court must consider a relocation request on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the children. While the respective rights of the custodial and noncustodial parents are unquestionably significant factors that must be considered, it is the rights and needs of the children that must be accorded the greatest weight (see Matter of Tropea v Tropea, 87 NY2d at 739; Matter of Caruso v Cruz, 114 AD3d at 771; Matter of Abbott v Abbott, 96 AD3d 887, 888; Matter of McBryde v Bodden, 91 AD3d 781, 781-782). The Family Court's credibility determinations are entitled to deference, but "this Court's authority is as broad as that of the hearing court, and a relocation determination will not be permitted to stand unless it is supported by a sound and substantial basis in the record" (Matter of DeCillis v DeCillis, 128 AD3d at 820 [internal quotation marks omitted]; see Matter of Doyle v Debe, 120 AD3d at 680; Matter of Caruso v Cruz, 114 AD3d at 771-772).

Here, the Family Court's determination that the children's best interests would not be served by relocating with the mother to Ridgefield is not supported by a sound and substantial basis in the record. Contrary to the court's conclusion, the mother's testimony did not show that her sole motivation for the relocation was to ease her fiancé's commute. Rather, the evidence demonstrated that the mother also considered the educational and social opportunities for the children, her fiancé's inability to move the businesses he ran in Norwalk, Connecticut, and the feasibility of frequent physical access with the father following the relocation.

The evidence demonstrated that both parents have a good relationship with the [*3]children and were involved in their educational and recreational activities. The father did not dispute that the children's educational and social opportunities would be greatly enhanced by the move to Ridgefield. Although the parties agree that the distance of the relocation would impact the father's current physical access schedule, the father's work schedule is flexible, which should afford him the opportunity to participate in the children's activities. Further, the mother planned to work, at most, part time after the move, while she had been working full time in Millbrook. Her increased availability would allow her to better facilitate the children's physical access with the father. In addition, the father will continue to have daily telephone, FaceTime, or Skype calls with the children during the times that the father does not have physical access. A liberal physical access schedule will allow for the continuation of a meaningful relationship between the father and the children (see Matter of Clarke v Boertlein, 82 AD3d 976, 978).

Accordingly, the Family Court should have granted the mother's petition for permission to relocate with the children to Ridgefield (see Matter of Tropea v Tropea, 87 NY2d 727; Matter of DeCillis v DeCillis, 128 AD3d at 820-821; Matter of Caruso v Cruz, 114 AD3d at 772) and denied the father's petition to modify the judgment of divorce so as to award him sole legal and physical custody of the children in its entirety.

We agree with the Family Court's determination denying the mother's petition alleging that the father violated the parties' stipulation of settlement as incorporated into the judgment of divorce. Contrary to the mother's contention, she failed to establish that the father willfully violated a clear and unequivocal mandate of the court pertaining to her calls with the children (see Matter of Wright v McIntosh, 125 AD3d 679, 680; Matter of Terry v Oliver, 63 AD3d 1079, 1080)."

Thursday, May 31, 2018

CHILD CUSTODY - WHO PAYS FOR ATTORNEY FOR CHILD



Matter of Young v Young, 2018 NY Slip Op 03850, Decided on May 30, 2018, Appellate Division, Second Department:

"Courts are authorized to direct that " a parent who has sufficient financial means to do so pay some or all of the [attorney for the child's] fees'" (Pascazi v Pascazi, 65 AD3d 1202, 1203, quoting Matter of Plovnick v Klinger, 10 AD3d 84, 89; see 22 NYCRR 36.4; Judiciary Law § 35[3]; Rupp-Elmasri v Elmasri, 8 AD3d 464; Jain v Garg, 303 AD2d 985, 986; Pascarelli v Pascarelli, 283 AD2d 472). Further, the mere fact that the attorney for the child adopted positions that were not favorable to the father does not demonstrate that the attorney for the child was biased against the father (see Matter of Luizzi v Collins, 60 AD3d 1062, 1063). In custody proceedings, the role of the attorney for the child is to "zealously advocate the child's position," not the positions of the parents (22 NYCRR 7.2[d]). Under the circumstances of this case, we agree with the Family Court's determination to direct the father to pay half of the total amount of counsel fees awarded to the attorney for the child (see Pascazi v Pascazi, 65 AD3d at 1203; Pedreira v Pedreira, 34 AD3d 225; Matter of Plovnick v Klinger, 10 AD3d at 91)."

Wednesday, May 30, 2018

MORTGAGE FORECLOSURE - STANDING NOT A REAL DEFENSE



I note this case because summary judgment was granted in November 2015: this appeal gave the homeowner at least an additional 2.5 years in the home, if not more. The action was commenced in 2013.

CitiMortgage, Inc. v McKenzie, 2018 NY Slip Op 03659, Decided on May 23, 2018, Appellate Division, Second Department:

"To establish prima facie entitlement to judgment as a matter of law in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default (see Deutsche Bank Natl. Trust Co. v Abdan, 131 AD3d 1001; HSBC Bank, USA v Hagerman, 130 AD3d 683, 683-684; Plaza Equities, LLC v Lamberti, 118 AD3d 688, 689). In addition, "[w]here, as here, a plaintiff's standing to commence a foreclosure action is placed in issue by [a] defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief" (Wells Fargo Bank, N.A. v Arias, 121 AD3d 973, 973-974 [internal quotation marks omitted]; see Security Lending, Ltd. v New Realty Corp., 142 AD3d 986, 987; Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 684; Deutsche Bank Natl. Trust Co. v Cunningham, 142 AD3d 634, 635). "A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was [*2]commenced, it was either the holder or assignee of the underlying note" (Dyer Trust 2012-1 v Global World Realty, Inc., 140 AD3d 827, 828; see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362; Flagstar Bank, FSB v Mendoza, 139 AD3d 898). "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" (Dyer Trust 2012-1 v Global World Realty, Inc., 140 AD3d at 828; see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361-362).

Here, attached to the plaintiff's complaint was a copy of the underlying note, to which was annexed an allonge dated August 8, 2010. The allonge, which made the note payable to the plaintiff, also bore a separate blank endorsement by the plaintiff making the note payable to bearer. Thus, the plaintiff established, prima facie, that it had standing to commence this action by demonstrating that it was the holder of the note when the action was commenced (see Nationstar Mtge., LLC v Catizone, 127 AD3d 1151, 1152; see also Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d 725, 726). Additionally, the plaintiff made a prima facie showing of entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of default (see Deutsche Bank Natl. Trust Co. v Leigh, 137 AD3d 841, 842). Further, the plaintiff established, prima facie, that it strictly complied with the requirements of RPAPL 1304 (see Citimortgage, Inc. v Banks, 155 AD3d 936; Flagstar Bank, FSB v Mendoza, 139 AD3d at 900).

In opposition, the defendants failed to raise a triable issue of fact (see Onewest Bank, N.A. v Mahoney, 154 AD3d 770, 772)."

Tuesday, May 29, 2018

MORTGAGE FORECLOSURE - LOST NOTE



Deutsche Bank Natl. Trust Co. v Anderson, 2018 NY Slip Op 03661, Decided on May 23, 2018, Appellate Division, Second Department:

"On July 26, 2006, Floyd Bailey executed a promissory note in the principal sum of $470,250 in favor of IMPAC Funding Corporation, doing business as IMPAC Lending Group (hereinafter IMPAC), which was secured by a mortgage on residential property located in South Ozone Park. Bailey defaulted on the loan by failing to make the monthly installment payment due on December 1, 2007. Thereafter, Bailey died and, by a decree of the Surrogate's Court dated August 23, 2012, the defendant Sandra Anderson was appointed as executrix of his estate. On November 21, 2013, the plaintiff commenced this action to foreclose the mortgage against, among others, Anderson, as executrix of Bailey's estate. After issue was joined, the plaintiff moved, inter alia, for summary judgment on the complaint and for leave to appoint a referee. In support of the motion, the plaintiff asserted, inter alia, that the note had been lost or destroyed and it would seek to prove the promissory note using a lost note affidavit along with a copy of the original note. Anderson opposed the motion. The Supreme Court denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against Anderson and for leave to appoint a referee. The plaintiff appeals.

"Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default" (Deutsche Bank Natl. Trust Co. v Abdan, 131 AD3d 1001, 1001; see Hudson City Sav. Bank v Genuth, 148 AD3d 687). Pursuant to UCC 3-804, which is intended to provide a method of recovery on instruments that are lost, destroyed, or stolen, a plaintiff is required to submit "due proof of [the plaintiff's] ownership, the facts which prevent [its] production of [the note,] and its terms" (UCC 3-804; see Weiss v Phillips, 157 AD3d 1; US Bank N.A. v Richards, 153 [*2]AD3d 522).

Here, the Supreme Court properly concluded that, although the plaintiff was unable to produce the note, a copy of the note submitted by the plaintiff provided sufficient evidence of its terms (see NY Community Bank v Jennings, 2015 NY Slip Op 31591[U], *4 [Sup Ct, NY County]). However, the lost note affidavit of Michael Matz and the affidavit of Debra Lee Wojciechowski, both officers of Bank of America, N.A., the purported servicer of the subject loan, are inconsistent with each other and contain vague and conclusory statements. Matz's affidavit states that the loan servicer "or its predecessor (as servicer or by merger) or the custodian" acquired possession of the note on or before August 4, 2006, and the loss of the note was not due to transfer or seizure. Wojciechowski's affidavit claimed that the loan servicer acquired possession of the lost note affidavit on or before December 28, 2012, and maintained continuous physical possession of the note until the loss occurred. It was not clear when the loan servicer or its agent acquired possession of the note, or whether the loan servicer or an agent of the loan servicer acquired the note. Moreover, Matz's affidavit fails to provide sufficient facts as to when the search for the note occurred, who conducted the search, the steps taken in the search for the note, or when or how the note was lost (see US Bank N.A. v Richards, 155 AD3d 522; Ventricelli v DeGennaro, 221 AD2d 231, 232; Marrazzo v Piccolo, 163 AD2d 369; cf. Citibank, N.A. v Benedict, 2000 WL 322785, 2000 US Dist LEXIS 3815 [SD NY, Mar. 28, 2000, No. 95-CIV-9541(AGS)]). Thus, the affidavits failed to sufficiently establish the plaintiff's ownership of the note."

Thursday, May 24, 2018

MORE ON DEATH OF A PARTY



Wells Fargo Bank, NA v Emma, 2018 NY Slip Op 03728, Decided on May 23, 2018, Appellate Division, Second Department:

"On August 23, 2002, Mary Emma, now deceased (hereinafter the decedent), executed a consolidated note and mortgage on real property located in Staten Island (hereinafter the property) in favor of nonparty Washington Mutual Bank, FA. In January 2006, the decedent transferred title to the property to her son, the defendant Leonard Emma (hereinafter the defendant). On February 18, 2007, the decedent passed away. On December 24, 2013, the plaintiff commenced this action to foreclose the consolidated mortgage against, among others, the defendant, alleging that the plaintiff was the holder of the consolidated note and mortgage. Thereafter, the plaintiff moved to vacate a stay, which was imposed by the Supreme Court due to the death of the decedent, and for leave to enter a default judgment and an order of reference. In an order dated September 3, 2015, the court denied the plaintiff's motion. The plaintiff appeals from the order.

Pursuant to CPLR 1015(a), "[i]f a party dies and the claim for or against him [or her] is not thereby extinguished the court shall order substitution of the proper parties" (emphasis added). "Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent" (Neuman v Neumann, 85 AD3d 1138, 1139). Here, the decedent's death did not divest the court of jurisdiction and warrant the imposition of a stay, since the decedent is not a party in this action (see Sample v Temkin, 87 AD3d 686, 687-688). Moreover, since the decedent made an absolute conveyance of all her interest in the property to the defendant and the plaintiff elected not to seek a deficiency judgment against the decedent's estate, the decedent was not a necessary party to the action (see Wells Fargo Bank, N.A. v Bachmann, 145 AD3d 712, 714; HSBC Bank USA v Ungar Family Realty Corp., 111 AD3d 673). Accordingly, the Supreme Court should have granted that [*2]branch of the plaintiff's motion which was to vacate the stay."

Wednesday, May 23, 2018

FREE FORECLOSURE CLINIC TODAY



Nassau residents caught in the growing mortgage foreclosure crisis can have their questions answered by attorneys at a free clinic at the Nassau County Bar Association at the NCBA headquarters, 15th and West Streets, Mineola, NY funded in part through the NYS Attorney General Homeownership Protection Program. Attorneys have volunteered to provide one-on-one guidance, advice and direction to any Nassau County homeowner who is concerned about foreclosure matters or is already in the foreclosure process involving property in Nassau County.

The Clinic is from 3pm to 6pm. Reservations are required by calling the Bar Association at 516-747-4070. Please bring your mortgage documents. Attorneys fluent in other languages are available upon request when reserving.

I will be one of the volunteer attorneys.

Tuesday, May 22, 2018

DIVORCE - AWARDING COUNSEL AND EXPERT FEES



Greco v Greco, 2018 NY Slip Op 03509, Decided on May 16, 2018, Appellate Division, Second Department:

"The parties were married in 1999 and have two children together. In May 2010, the plaintiff commenced this action for a divorce and ancillary relief. Following a custody trial, the plaintiff was awarded full custody of the children. Thereafter, a trial was held on the financial issues, and the Supreme Court issued a judgment of divorce. Following the conclusion of the trial on financial issues, the defendant moved for awards of counsel fees and expert witness fees. The court granted those branches of the motion which were for awards of counsel fees in the sums of $70,000 payable to Lawrence J. Glynn and $37,500 payable to John A. Gemelli, and for an award of expert witness fees in the sum of $12,700 payable to the defendant. The plaintiff appeals.

In a matrimonial action, an award of counsel fees is a matter committed to the sound discretion of the trial court (see Montoya v Montoya, 143 AD3d 865, 865; Vitale v Vitale, 112 AD3d 614, 614-615). However, court rules impose certain requirements upon attorneys who represent clients in domestic relations matters (see 22 NYCRR part 1400). These rules were designed to [*2]address abuses in the practice of matrimonial law and to protect the public, and the failure to substantially comply with the rules will preclude an attorney's recovery of a fee from his or her client (see Montoya v Montoya, 143 AD3d at 865; Hovanec v Hovanec, 79 AD3d 816, 817; Pillai v Pillai, 15 AD3d 466; Bishop v Bishop, 295 AD2d 382) or from the adversary spouse (see Rosado v Rosado, 100 AD3d 856; Wagman v Wagman, 8 AD3d 263). A showing of substantial compliance must be made on a prima facie basis as part of the moving party's papers (see Montoya v Montoya, 143 AD3d at 866; Gottlieb v Gottlieb, 101 AD3d 678, 679).

Here, the evidence proffered by the defendant in support of that branch of her motion which was for an award of counsel fees for work performed by Glynn demonstrates that Glynn failed to substantially comply with the rules requiring periodic billing statements at least every 60 days (see 22 NYCRR 1400.2, 1400.3[9]; Montoya v Montoya, 143 AD3d at 866; Rosado v Rosado, 100 AD3d at 856; Gahagan v Gahagan, 51 AD3d 863). Accordingly, the Supreme Court erred in granting that branch of the defendant's motion which pertains to Glynn's counsel's fees. However, the evidence before the court showed that Gemelli substantially complied with the rules (see Matter of Felix v Felix, 110 AD3d 805, 806). Accordingly, we agree with the court's determination to grant that branch of the defendant's motion which pertains to Gemelli's counsel fees.

"The award of expert witness fees in a matrimonial action is left to the sound discretion of the trial court, and should be made upon a detailed showing of the services to be rendered and the estimated time involved" (Vistocco v Jardine, 116 AD3d 842, 844). "Absent affidavits from the expert witnesses at issue, the Supreme Court lacks a sufficient basis to grant a motion for the award of such fees" (Avello v Avello, 72 AD3d 850, 852; see Corrao v Corrao, 209 AD2d 573, 574; Ahern v Ahern, 94 AD2d 53, 58). Here, the defendant failed to submit such expert affidavits. Thus, the Supreme Court improvidently exercised its discretion in awarding the defendant expert witness fees."

Monday, May 21, 2018

CHILD CUSTODY - A CHANGE IN CIRCUMSTANCES



Matter of Edwards v Edwards, 2018 NY Slip Op 03524, Decided on May 16, 2018, Appellate Division, Second Department:

"Where modification of an existing custody arrangement is sought, the petitioner must make a showing that there has been a change in circumstances such that modification is necessary to protect the best interests of the child (see Matter of Nixon v Ferrone, 153 AD3d 625, 626; Matter of Scott v Powell, 146 AD3d 964, 965; Matter of Zall v Theiss, 144 AD3d 831, 832). In determining whether such a change has occurred, the court should consider the totality of the circumstances (see Matter of Moore v Gonzalez, 134 AD3d 718, 719; Matter of Connolly v Walsh, 126 AD3d 691, 693; Matter of Miedema v Miedema, 125 AD3d 971, 971).

As custody determinations largely depend upon the Family Court's assessments of [*2]the credibility, character, temperament, and sincerity of the parties, the Family Court's findings should be accorded great weight and its determination not disturbed unless it lacks a sound and substantial basis in the record (see Eschbach v Eschbach, 56 NY2d 167, 173; Matter of Harrison v McClellan, 151 AD3d 723, 723; Matter of Lao v Gonzales, 130 AD3d 624, 625).

Here, the father established a change in circumstances such that modification of the existing custody arrangement between the parties was necessary to protect the interests of the children. The Family Court's determination to award sole custody of the children to the father is supported by a sound and substantial basis in the record (see Matter of Feliccia v Spahn, 108 AD3d 702, 703; Matter of DeViteri v Saldana, 95 AD3d 1221, 1222). The record demonstrates that the mother interfered in the relationship between the father and the children in a manner inconsistent with the best interests of the children, and also demonstrates that the father is more likely than the mother to foster a relationship between the children and the noncustodial parent (see Musachio v Musachio, 137 AD3d 881, 883; Matter of Feliccia v Spahn, 108 AD3d at 703)."