Monday, September 25, 2017

FREE CLINIC ON FORECLOSURE TODAY


Wednesday, September 20, 2017


Tuesday, September 19, 2017

SALARY HISTORY AND JOB APPLICATIONS IN NYC



Effective November 1, Section 8-107 of the administrative code of the city of New York is amended by adding a new subdivision 25 prohibiting employers from inquiring about or relying on a prospective employee's salary history. This amendment is designed to prohibit employers from inquiring about a prospective employee’s salary history during all stages of the employment process. In the event that an employer is already aware of a prospective employee’s salary history, this amendment would prohibit reliance on that information in the determination of salary. According to the sponsors of this legislation, when employers rely on salary histories to determine compensation, they perpetuate the gender wage gap. It is hoped that adopting measures like this amendment will reduce the likelihood that women will be prejudiced by prior salary levels and help break the cycle of gender pay inequity.

The new law can be found here http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2813507&GUID=938399E5-6608-42F5-9C83-9D2665D9496F

Monday, September 18, 2017

PRO BONO WORK IN LONG ISLAND



This morning, I will be a pro bono volunteer in landlord/tenant court in Nassau County. Nassau/Suffolk Law Services operates a nationally lauded pro bono program with the Bar Association of Nassau County and the Suffolk County Bar Association. Established in 1981, the program provides legal representation in civil cases for individuals meeting low income guidelines.

For more information, see http://nslawservices.org/wp/?page_id=392

Friday, September 15, 2017

NEW RULES - ACCESS TO HEALTH RECORDS



On September 13, Governor Cuomo signed into law legislation amending the public health law and mental hygiene law to prohibit a charge from being imposed for providing, releasing, or delivering medical records that are used to support the application of a government benefit or program.

As per the Senate  Bill:

"JUSTIFICATION : State law guarantees access to medical records for inspection or copying and provides a fee waiver for patients who cannot afford to pay. All too often, in practice, this does not occur. Complicated process for establishing eligibility and the outsourcing of copying services means that eligible low income New Yorkers are often required to pay for access to their own medical records in contravention of the law. Individuals applying for Social Security disability benefits (including Supplemental Security Income or SSI) need medical records to document their claims. These claimants cannot afford to pay the statutory rate of seventy five cents per page for these records, which often number in the 100s of pages. As a result, low income disabled individuals' ability to access federal disability benefits is consistently undermined. Current law does provide free access; however, the fee waiver is routinely ignored and is poorly enforced. Patients are denied free access for reasons such as medical providers do not tell patients that the fee may be waived, provider forms for requesting copies do not include fee waiver sections, complicated processes for determining patient indegence, and outsourcing of copying to companies that do not understand or enforce fee waiver protections."

S6078 - Details

See Assembly Version of this Bill:
A7842
Law Section:
Public Health Law
Laws Affected:
Amd §§17 & 18, Pub Health L; amd §33.16, Ment Hyg L

Thursday, September 14, 2017

UNEMPLOYMENT INSURANCE - A DOCILE EMPLOYEE?




Mailed and Filed: AUGUST 22, 2017, IN THE MATTER OF: Appeal Board No. 596410:

"The claimant worked for a hospital for over 18 years, ending in the position of unit receptionist in the Emergency Room. She worked overnight, from 11:00 PM to 7:00 AM. On March 18, 2016, the claimant was suspended for five days based on an incident in which, according to the "Employee Warning - Disciplinary Notice," the claimant yelled at a coworker over the phone and subsequently stormed into the coworker's area with a pen in her hand which the claimant kept moving in and out of the coworker's face as the claimant yelled at her, all of which was observable by at least one patient. The Employee Warning - Disciplinary Notice stated, "Any repeat will result in progressive discipline up to termination."

On January 8, 2017, the phone at the Emergency Room desk rang after the end of the
claimant's shift. The head nurse for the incoming shift asked the claimant why the claimant was not answering the phone. The claimant answered that she had given report already. In the hospital context, the claimant's answer meant that she had reported all updates to the incoming unit receptionist and she was now off duty. The head nurse then said, "then where are my URs?" A UR is a unit receptionist. Irritated by what she perceived as the head nurse's angry tone, the claimant responded, "I don't know and I don't care." Based on this final incident, the employer discharged the claimant for disruptive behavior after a prior warning. Her last day of work was January 31, 2017.

OPINION: The credible evidence establishes that the claimant was discharged based on the claimant's response of "I don't know and I don't care" after the claimant was spoken to-after the end of her shift-in a manner she perceived as rude. While the claimant's response may not have been entirely appropriate, a worker is not required always to be docile (see Matter of Raven, 40 AD2d 128 [3rd Dept 1972]). Further, the final incident is not comparable to the incident over which the claimant was warned. On January 8, 2017, the claimant did not "storm" anywhere, invade anyone's personal space, or raise her voice, nor is there any allegation that the claimant's single inappropriate comment was overheard by any patient. These facts establish that the claimant's statement does not rise to the level of misconduct for purposes of the Unemployment Insurance Law. The cases cited by the employer on appeal do not compel a different result. The claimant's comment was only minimally detrimental to the employer's interests, and the warning that the employer relies upon is distinguishable from the final incident."

Friday, September 8, 2017

NO "AID-IN-DYING" IN NEW YORK



Sara Myers et al. v. Eric Schneiderman et al., NYS Court of Appeals, Opinion 77, September 7, 2017:

"Plaintiffs ask us to declare a constitutional right to "aid-in-dying," which they define (and we refer to herein) as the right of a mentally competent and terminally ill person to obtain a prescription for a lethal dosage of drugs from a physician, to be taken at some point to cause death.  Although New York has long recognized a competent adult's right to forgo life-saving medical care, we reject plaintiffs' argument that an individual has a fundamental constitutional right to aid-in-dying as they define it.  We also reject plaintiffs' assertion that the State's prohibition on assisted suicide is not rationally related to legitimate state interests."

The full decision can be found here: http://www.nycourts.gov/ctapps/Decisions/2017/Sep17/77opn17-Decision.pdf

Thursday, September 7, 2017

NYSBA V. AVVO



The New York State Bar Association, Committee on Professional Ethics, issued Opinion 1132 on August 8, 2017 stating that a lawyer may not pay the current marketing fee to participate in Avvo Legal Services, because the fee includes an improper payment for a recommendation in violation of Rule 7.2(a) of the Rules of Professional Conduct.

The full opinion can be found here: http://www.nysba.org/EthicsOpinion1132/

Avvo's response of August 15 , 2017 can be found here:

http://lawyernomics.avvo.com/avvo-news/avvos-response-new-york-state-bar-associations-advisory-opinion.html

Wednesday, September 6, 2017

CAN AN INHERITANCE CHANGE A MAINTENANCE ORDER?



Schwartz v Schwartz 2017 NY Slip Op 06392 Decided on August 30, 2017 Appellate Division, Second Department:

"The parties divorced in 2008. Pursuant to the judgment of divorce, the defendant was required to pay to the plaintiff maintenance in the sum of $7,500 per month for the first 60 months, and $3,000 per month thereafter, until the death of either party or until the plaintiff remarried or held herself out as remarried. The defendant was further required to procure and maintain $750,000 of life insurance, naming the plaintiff as the sole and irrevocable beneficiary thereof.

In January 2015, the defendant moved to terminate his maintenance and life insurance obligations on the basis that the plaintiff's father had recently died, that the plaintiff was the only beneficiary of his estate, and that the late father's estate and assets were worth $15 to $20 million. The defendant contended that the plaintiff's large inheritance constituted a substantial change in circumstances which made her self-supporting. .....

........

"Upon application by either party, the court may annul or modify any prior order or judgment made after trial as to maintenance, . . . upon a showing of a substantial change in circumstances" (Domestic Relations Law § 236[B][9][b][1]). "The party seeking the modification of a maintenance award has the burden of establishing the existence of the change in circumstances that warrants the modification" (Noren v Babus, 144 AD3d 762, 764 [internal quotation marks omitted]; see Donnelly v Donnelly, 199 AD2d 237, 237). The inheritance of significant funds can constitute a substantial change of circumstances supporting a request to modify a party's maintenance obligation (see Matter of Greco v Greco, 251 AD2d 977, 978; see generally Dowdle v Dowdle, 114 AD2d 699, 700). "On a motion for downward modification of child support and maintenance obligations, an evidentiary hearing is necessary only where the proof submitted by the movant is sufficient to show the existence of a genuine issue of fact" (Reback v Reback, 93 AD3d 652, 652-653; see Ritchey v Ritchey, 82 AD3d 948, 949; David v David, 54 AD3d 714, 715; [*2]D'Alesio v D'Alesio, 300 AD2d 340, 341; Mishrick v Mishrick, 251 AD2d 558, 558; Senzer v Senzer, 132 AD2d 694, 694-695; Nordhauser v Nordhauser, 130 AD2d 561, 562-563).

........"

Tuesday, September 5, 2017

ARE ATTORNEY FEES EXPENSES UNDER CPLR 3220



Saul v Cahan 2017 NY Slip Op 06391 Decided on August 30, 2017 Appellate Division, Second Department:

"...The plaintiff asserted causes of action alleging breach of fiduciary duty, breach of contract, and fraud, among others. In May 2014, Cahan moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against him. Shortly thereafter, on June 20, 2014, Cahan served an offer to liquidate damages pursuant to CPLR 3220. The plaintiff did not accept the offer. By order dated November 7, 2014, the Supreme Court granted Cahan's motion to dismiss the amended complaint insofar as asserted against him. Cahan then moved for an award of attorney's fees and costs pursuant to CPLR 3220. By order dated March 9, 2016, the court granted Cahan's motion to the extent of determining that [*2]Cahan was entitled to attorney's fees in the sum of $15,557.37, plus interest. A money judgment dated March 28, 2016, was entered in favor of Cahan and against Saul in the total sum of $16,697.14. The plaintiff appeals, and we reverse.

In matters of statutory interpretation, the primary consideration is to discern and give effect to the Legislature's intention (see Yatauro v Mangano, 17 NY3d 420, 426; Roberts v Tishman Speyer Props., L.P., 13 NY3d 270, 285-286; Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660). "[T]he text of a provision is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning'" (Matter of Albany Law School v New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 120, quoting Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d at 660; see Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583). An examination of the legislative history is proper "where the language is ambiguous or where a literal construction would lead to absurd or unreasonable consequences that are contrary to the purpose of the enactment" (Matter of Auerbach v Board of Educ. of City School Dist. of City of N.Y., 86 NY2d 198, 204; see New York State Psychiatric Assn., Inc. v New York State Dept. of Health, 19 NY3d 17, 25-26).

Moreover, "under the American Rule as applied to statutory entitlement to attorneys' fees, the [United States] Supreme Court has held that we follow a general practice of not awarding fees to a prevailing party absent explicit statutory authority" (Baker v Health Mgmt. Sys., 98 NY2d 80, 88 [internal quotation marks omitted]; see 214 Wall St. Assoc., LLC v Medical Arts-Huntington Realty, 99 AD3d 988, 990). " New York public policy disfavors any award of attorneys' fees to the prevailing party in a litigation'" (Pickett v 992 Gates Ave. Corp., 114 AD3d 740, 740, quoting Horwitz v 1025 Fifth Ave., Inc., 34 AD3d 248, 249). " Statutes authorizing an award of costs and sanctions are in derogation of common law and, therefore must be strictly construed'" (State Farm Fire & Cas. v Parking Sys. Valet Serv., 85 AD3d 761, 764, quoting Saastomoinen v Pagano, 278 AD2d 218, 218).

CPLR 3220 states:

"At any time not later than ten days before trial, any party against whom a cause of action based upon contract, express or implied, is asserted may serve upon the claimant a written offer to allow judgment to be taken against him for a sum therein specified, with costs then accrued, if the party against whom the claim is asserted fails in his defense. If within ten days thereafter the claimant serves a written notice that he accepts the offer, and damages are awarded to him on the trial, they shall be assessed in the sum specified in the offer. If the offer is not so accepted and the claimant fails to obtain a more favorable judgment, he shall pay the expenses necessarily incurred by the party against whom the claim is asserted, for trying the issue of damages from the time of the offer. The expenses shall be ascertained by the judge or referee before whom the case is tried. An offer under this rule shall not be made known to the jury."


The relevant phrase of CPLR 3220 stating that the claimant "shall pay the expenses necessarily incurred by the party against whom the claim is asserted, for trying the issue of damages from the time of the offer" demonstrates the Legislature's intent that, where the claimant has not accepted the offer, the commencement of a trial is a condition precedent to imposing liability upon the claimant for the opposing party's expenses. This phrase also defines the recoverable expenses as those "necessarily" expended "for trying the issue of damages." CPLR 3220 further provides that those expenses should be determined by the judge "before whom the case is tried." Accordingly, the plain language of CPLR 3220 does not explicitly authorize an award of attorney's fees and costs to a party, such as Cahan, who merely prevailed in seeking dismissal of a cause of action alleging breach of contract. Even if CPLR 3220 could arguably support an implied right to the attorney's fees and costs sought by Cahan, the public policy of the American Rule militates against adoption of that interpretation (see Baker v Health Mgt. Sys., 98 NY2d at 88; 214 Wall St. Assoc., LLC v Medical Arts-Huntington Realty, 99 AD3d at 990)."

Thursday, August 31, 2017

OPENING DEFAULT- UNEMPLOYMENT INSURANCE APPEAL



MATTER OF BROWNE v. BOCES, 2017 NY Slip Op 6126 - NY: Appellate Div., 3rd Dept. 2017:

" "[A] case may be reopened following a default upon a showing of good cause if such request is made within a reasonable time" (Matter of Bowe [Southern Tier Home Bldrs. Assn.—Commissioner of Labor], 121 AD3d 1150, 1151 [2014]; see Matter of Hughes [Commissioner of Labor], 136 AD3d 1085, 1086 [2016]). "The decision as to whether to grant an application to reopen a claim will not be disturbed absent abuse of the Board's sound discretion" (Matter of Knott [Commissioner of Labor], 121 AD3d 1154, 1154 [2014]; see Matter of Barto [Commissioner of Labor], 110 AD3d 1418, 1419 [2013]). The record reflects that claimant waited 15 months to apply to reopen her claim. Although she testified that she received the May 2, 2014 default decisions that advised her that she may apply to reopen the decisions within a reasonable time, she admitted that she did not adhere to the portion of the decisions that explained how to apply to reopen the claim. Rather, claimant testified that she spent months contacting the wrong entities seeking information on how to reopen her claim. In our view, the Board did not abuse its discretion in finding that claimant, by waiting 15 months under these circumstances, had not applied to reopen her claim within a reasonable time (see Matter of Hughes [Commissioner of Labor], 136 AD3d at 1086; Matter of Knott [Commissioner of Labor], 121 AD3d at 1154). Accordingly, its decisions will not be disturbed."

Wednesday, August 30, 2017

OPENING DEFAULT FOR LACK OF SERVICE



US Bank N.A. v Ramos, 2017 NY Slip Op 06315, Decided on August 23, 2017, Appellate Division, Second Department:

""Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" (Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589; see Washington Mut. Bank v Huggins, 140 AD3d 858, 859). "Although bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing" (U.S. Bank, N.A. v Tauber, 140 AD3d 1154, 1155 [citation omitted]; see Bank of Am., N.A. v Tobing, 145 AD3d 941, 942; Machovec v Svoboda, 120 AD3d 772, 773).

Here, the affidavits of the plaintiff's process server constituted prima facie evidence that the defendants were properly served pursuant to CPLR 308(2) (see Central Mtge. Co. v Ward, 127 AD3d 803, 803; Roberts v Anka, 45 AD3d 752, 753-754). Contrary to the defendants' contention, their submissions failed to rebut the presumption of proper service arising from the process server's affidavit as to service upon Ramos. While the defendants and a neighbor, in sworn affidavits, denied knowledge of a person named "Alicea Ramos," and asserted that the defendants were the only adults living at the subject property, they did not rebut the sworn allegation of the process server that a person fitting the physical description of "Alicea Ramos" was present at the subject property at the time and accepted service on behalf of Ramos (see Washington Mut. Bank v Huggins, 140 AD3d at 859; Bank of N.Y. v Espejo, 92 AD3d 707, 708; Wells Fargo Bank, N.A. v Christie, 83 AD3d 824, 825; cf. Wachovia Bank, N.A. v Greenberg, 138 AD3d 984, 985). Thus, a hearing to determine the validity of service of process upon Ramos was not warranted.

Medrano, however, demonstrated her entitlement to a hearing on the issue of service. Medrano's sworn denial that she resided at the premises in New Hyde Park where service upon her allegedly was made, combined with evidence supporting such claim, was sufficient to rebut the presumption of proper service (see U.S. Bank, N.A. v Tauber, 140 AD3d at 1155; Central Mtge. Co. v Ward, 127 AD3d at 803-804; Lazarre v Davis, 109 AD3d 968, 969; Goralski v Nadzan, 89 AD3d 801, 801). Inasmuch as neither the evidence submitted by the defendants nor the evidence relied upon by the plaintiff is dispositive on the issue of whether service on Medrano at the address in New Hyde Park was proper under CPLR 308(2), a hearing is warranted. Thus, we remit the matter to the Supreme Court, Nassau County, for a hearing to determine whether Medrano was properly served and, thereafter, for a new determination of those branches of the defendants' motion which were to vacate her default and to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction (see U.S. Bank, N.A. v Tauber, 140 AD3d at 1156; Goralski v Nadzan, 89 AD3d at 802), and, if warranted, a determination of that branch of the plaintiff's cross motion which was pursuant to CPLR 306-b to extend its time to serve Medrano."

Tuesday, August 29, 2017

MIRANDA WARNINGS IN BUILDING VIOLATIONS



People v. Gray, 2017 NY Slip Op 27204 - NY: Village Justice Court 2017:

"In addition, the court now holds in a second point of first impression that when a building inspector has made a determination to charge a defendant, that they must provide the defendants with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966) warnings. We are a Local Criminal Court and therefore, the protections provided for individual defendants under our Constitution must apply here.

Police will often withhold the giving of Miranda, supra warnings during the course of an "investigation." Here the People have averred in their supporting papers that evidence outside of the search such as what they obtained online, supra, caused them to conclude that the defendant had violated at least eight Code provisions. Knowing that before going to the home gave them probable cause but it also mandated that they advise the defendant of his rights before recording statements from him.

Today this Village Court provides for two new provisions in the law which will henceforth apply in this Court and hopefully others that may choose to follow this holding. The first part of these new procedures which the Court is deciding for the first time only because they have not presented themselves previously to the best of its knowledge, is that compliance with C.P.L. § 710.30 shall be required as a prerquisite for the admission of any statements by a defendant. Second, when a Building Inspector, finds that he or she is going to issue violations they must give the prospective defendant Miranda, supra, warnings.

Since the People have stated at oral argument that they do not intend to offer any statements of the defendant at trial, except for his consent, these issues as referred to herein are dicta and meant to provide notice that this Court is a Local Criminal Court and as such endeavors to comply with the Criminal Procedure Law of New York as well as the federal and New York State Constitutions."

Monday, August 28, 2017

DETERMINING INCOME IN DIVORCE - ACTUAL FINANCIAL CONDITION VERSUS ABILITY TO EARN


Volkerick v Volkerick 2017 NY Slip Op 06316 Decided on August 23, 2017 Appellate Division, Second Department:

"The defendant's contention that the Supreme Court erred by imputing an income to him of $130,000 when it calculated the maintenance and child support awards is without merit. " [A] parent's child support obligation is not necessarily determined by his or her current financial condition, but rather by his or her ability to provide support'" (Matter of Solis v Marmolejos, 50 [*2]AD3d 691, 692, quoting Matter of Davis v Davis, 13 AD3d 623, 624). "The court is not bound by a party's actual reported income in applying the basic child support obligation, and instead could use that party's actual earning capacity or impute an amount onto the gross income reported by the party" (Matter of Solis v Marmolejos, 50 AD3d at 692). Here, the record demonstrated that the plaintiff is a high school graduate who has worked part-time as a cashier since 1998, earning $10,000 to $15,000 annually. The defendant is a college graduate who has had many years of experience working as an estimator for various construction companies. From 2005 until 2009, the defendant's annual salary was approximately $130,000. Although the defendant was unemployed for part of 2010, he earned approximately $47,000, which was supplemented by unemployment compensation and withdrawals from retirement accounts, raising his total income for 2010 to $186,582. The defendant worked for most of 2011 and had a yearly income of $130,000 from a combination of earnings and unemployment compensation. The defendant's contention that the amount of income imputed to him should be limited to his earnings from employment as reported on his 2010 tax return is without merit (see Domestic Relations Law § 240[1-b][b][5]). We conclude that the Supreme Court was within its discretion in considering the defendant's employment history and earning capacity and properly imputed an income of $130,000 to the defendant in determining an award of child support (see Fruchter v Fruchter, 29 AD3d 942, 943; Bittner v Bittner, 296 AD2d 516, 517).

Under the circumstances of this case, the Supreme Court also providently exercised its discretion in awarding spousal maintenance to the plaintiff in the sum of $1,500 per month for a period of 4 years. The court limited the duration of the award to a reasonable time to allow the plaintiff to obtain any necessary schooling and training to enable her to be self-supporting and regain self-sufficiency (see O'Brien v O'Brien, 66 NY2d 576, 585; Bains v Bains, 308 AD2d 557, 559). The defendant has failed to establish that the amount or duration of the spousal maintenance award was excessive and, as such, the court's determination will not be disturbed."

Friday, August 25, 2017

OUT OF STATE HOSPITAL RECORDS



On August 21, Governor Cuomo signed into law S2058, an act to amend Subdivision (c) of Rule 4518 of the Civil Practice Law and Rules to simplify the procedures by which hospital records located outside of New York State may be admitted into evidence in civil actions.

According to the bill's sponsors:

"In many kinds of litigation hospital records provide crucial evidence,
either of the harm suffered by the plaintiff or of the events in
dispute. Under existing law, hospital records are admissible into
evidence if either the custodian of the records testifies in court as
to certain specific foundational facts indicating the records'
authenticity and reliability, or if the custodian provides a written
certification setting forth the same foundational requirements.

For a custodian of hospital records located outside of New York,
providing oral testimony can be difficult or impossible. Parties to
litigation therefore rely on written certification to allow records to
be brought into evidence. However, obtaining a written certification
that meets New York's specific procedural requirements can be
problematic, particularly if a custodian of those records is
unfamiliar with New York rules.

This bill will ease these procedural difficulties for all parties to
litigation by allowing hospital records located outside New York to be
certified in accordance with either the existing New York rules, or
the rules of the jurisdiction where the records are located and that a
custodian of records is likely to understand and comply with
routinely.

Existing New York Statutes, including but not limited to CPLR 4543,
3122 and 3122-a provide an instructive framework for these procedures."

Thursday, August 24, 2017

CHILD CUSTODY - GAY LIFESTYLE VERSUS RELIGION CLAUSE IN STIPULATION



In Weisberger v Weisberger, 2017 NY Slip Op 06212, Decided on August 16, 2017, Appellate Division, Second Department, the parties divorced after Father was told by Mother that she was gay. There were three children and parties agreed to joint legal custody with Mother having primary residential custody. The stipulation also provided that the  "Parties agree to give the children a Hasidic upbringing in all details, in home or outside of home, compatible with that of their families'. Father shall decide which school the children attend. Mother to insure that the children arrive in school in a timely manner and have all their needs provided." However, after the divorce, Father moved to modify alleging "that the mother had radically changed her lifestyle in a way that conflicted with the parties' religious upbringing clause. Although the father acknowledged that at the time he entered into the stipulation of settlement he expected the mother's future intimate relationships would be with women, he expected her to keep the fact that she was gay a secret and to keep any relationship she had with a woman secret from the children. The father alleged that since the parties had entered into the stipulation of settlement the mother had, among other things, come out publicly as a lesbian, disparaged the basic tenets of Hasidic Judaism in front of the children, allowed the children to wear non-Hasidic clothes, permitted them to violate the Sabbath and kosher dietary laws, and referred to them by names that were not traditionally used in the Hasidic community. The father further alleged that the mother had dressed immodestly, dyed her hair, and permitted a transgender man to reside in her home with the children." The Supreme Court granted Father's motion and Mother appealed.

The Second Department held:

"" Modification of an existing court-sanctioned custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child[ren]'" (Matter of Spencer v Killoran, 147 AD3d 862, 863, quoting Matter of O'Shea v Parker, 116 AD3d 1051, 1051; see Matter of Bodre v Stimatz, 150 AD3d 1228, 1229). "The best interests of the child[ren] must be determined by a review of the totality of the circumstances" (Matter of Preciado v Ireland, 125 AD3d 662, 662; see Eschbach v Eschbach, 56 NY2d 167, 171-172; Matter of Boggio v Boggio, 96 AD3d 834, 835). "Factors to be considered include the quality of the home environment and the parental guidance the custodial parent provides for the child[ren], the ability of each parent to provide for the child[ren]'s emotional and intellectual development, the financial status and ability of each parent to provide for the child[ren], the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child[ren]'s relationship with the other parent" (Mohen v Mohen, 53 AD3d 471, 473 [internal quotation marks omitted]; see Matter of Moran v Cortez, 85 AD3d 795, 796). Additionally, to the extent the mother's sexual orientation was raised at the hearing, we note that courts must remain neutral toward such matters, such that the focus remains on the continued best interests and welfare of the children (see In re Marriage of Black, 188 Wash 2d 114, 130, 392 P3d 1041, 1049-1050; see also Matter of Paul C. v Tracy C., 209 AD2d 955, 956; Anonymous v Anonymous, 120 AD2d 983, 983-984; Guinan v Guinan, 102 AD2d 963, 964; Di Stefano v Di Stefano, 60 AD2d 976, 977).

Since weighing the factors relevant to any custody determination "depends to a very great extent upon the hearing court's assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties, its findings are generally accorded great respect and will not be disturbed unless they lack a sound and substantial basis in the record, or are contrary to the weight of the evidence" (Trinagel v Boyar, 70 AD3d 816; see Matter of Selliah v Penamente, 107 AD3d 1004, 1004; Matter of Jackson v Coleman, 94 AD3d 762, 763). Nonetheless, this Court's [*5]authority in custody and visitation matters is as broad as that of the hearing court, "and while we are mindful that the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, we would be seriously remiss if, simply in deference to the finding of a Trial Judge,' we allowed a custody determination to stand where it lacks a sound and substantial basis in the record" (Matter of Caruso v Cruz, 114 AD3d 769, 772, quoting Matter of Gloria S. v Richard B., 80 AD2d 72, 76; see Matter of James A.-S. v Cassandra A.-S., 107 AD3d 703, 706; Matter of Moran v Cortez, 85 AD3d 795, 796-797).

Here, both parties contend that there has been a change in circumstances warranting modification of the stipulation of settlement. We conclude that the record supports the Supreme Court's determination that a change of circumstances has occurred, such that a modification of the stipulation of settlement is necessary to ensure the continued best interests and welfare of the children (see Matter of Pagan v Gray, 148 AD3d 811, 812; Matter of Oyefeso v Sully, 148 AD3d 710, 712).

However, the Supreme Court's determination to modify the stipulation of settlement so as to award the father sole legal and residential custody of the children, as well as final decision-making authority over medical and dental issues, and issues of mental health, with supervised therapeutic visitation to the mother, lacked a sound and substantial basis in the record (see Matter of Caruso v Cruz, 114 AD3d at 773; Matter of James A.-S. v Cassandra A.-S., 107 AD3d at 706). In pertinent part, the court gave undue weight to the parties' religious upbringing clause, finding it to be a "paramount factor" in its custody determination. "When presented as an issue, religion may be considered as one of the factors in determining the best interest of a child, although it alone may not be the determinative factor" (Aldous v Aldous, 99 AD2d 197, 199). "New York courts will consider religion in a custody dispute when a child has developed actual religious ties to a specific religion and those needs can be served better by one parent than the other" (id. at 199; see Matter of Gribeluk v Gribeluk, 120 AD3d 579, 579). However, clauses in custody agreements that provide for a specific religious upbringing for the children will only be enforced so long as the agreement is in the best interests of the children (see Karetny v Karetny, 283 AD2d 250; Spring v Glawon, 89 AD2d 980, 981; Gruber v Gruber, 87 AD2d 246, 250; Garvar v Faltings, 54 AD2d 971). "No agreement of the parties can bind the court to a disposition other than that which a weighing of all of the factors involved shows to be in the child[ren]'s best interest" (Friederwitzer v Friederwitzer, 55 NY2d 89, 95; see Eschbach v Eschbach, 56 NY2d at 171).

Considering all of the facts and circumstances of this case, the father failed to demonstrate that it is in the children's best interests to award him sole legal and residential custody of the children, as well as final decision-making authority over medical and dental issues, and issues of mental health. The mother has been the children's primary caretaker since birth, and their emotional and intellectual development is closely tied to their relationship with her. The record overwhelmingly demonstrates that the mother took care of the children's physical and emotional needs both during and after the marriage, while it is undisputed that the father consistently failed to fully exercise his visitation rights or fulfill his most basic financial obligations to the children after the parties' separation. Indeed, aside from objecting to her decision to expose the children to views to which he personally objects, the father expressed no doubts whatsoever about the mother's ability to care and provide for the children. The weight of the evidence established that awarding the father full legal and residential custody of the children with limited visitation to the mother would be harmful to the children's relationship with her (see Bliss v Ach, 56 NY2d 995, 998). Furthermore, "[s]upervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child[ren]" (Matter of Gainza v Gainza, 24 AD3d 551). Here, there was no showing that unsupervised visitation was detrimental to the children and, as discussed more fully below, it was wholly inappropriate to use supervised visitation as a tool to compel the mother to comport herself in a particular religious manner.

Furthermore, the Supreme Court improperly directed that enforcement of the parties' stipulation of settlement required the mother to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children's schools. Although the court accepted the father's argument that the religious upbringing clause "forb[ids] [the mother from] living a secular way of life in front of the children or while at their schools," the plain language of the parties' agreement was "to give the children a Hasidic upbringing" (emphasis added). The parties' agreement does not require the mother to practice any type of religion, to dress in any particular way, or to hide her views [*6]or identity from the children. Nor may the courts compel any person to adopt any particular religious lifestyle (see Lee v Weisman, 505 US 577, 587; see also Lemon v Kurtzman, 403 US 602, 612-613). To the contrary, "[i]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise" (Lee v Weisman, 505 US at 587). Thus, a religious upbringing clause should not, and cannot, be enforced to the extent that it violates a parent's legitimate due process right to express oneself and live freely (see Lawrence v Texas, 539 US 558, 574 [ "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life'" (quoting Planned Parenthood of Southeastern Pa. v Casey, 505 US 833, 851)]; see also Obergefell v Hodges, __ US __, 135 Sup Ct 2584). Indeed, the parties themselves agreed in the stipulation of settlement that they "shall [each] be free from interference, authority and control, direct or indirect, by the other" (emphasis added). While we respect the parties' right to agree to raise their children in a chosen religion and to seek judicial relief to enforce that right, given the change in circumstances here, the weight of the evidence does not support the conclusion that it is in the children's best interests to have their mother categorically conceal the true nature of her feelings and beliefs from them at all times and in all respects, or to otherwise force her to adhere to practices and beliefs that she no longer shares. There is no indication or allegation that the mother's feelings and beliefs are not sincerely held, or that they were adopted for the purpose of subverting the religious upbringing clause, and there has been no showing that they are inherently harmful to the children's well-being.

This is not to say that it would be in the children's best interests to become completely unmoored from the faith into which they were born and raised. Indeed, we conclude that the children's best interests would be better served by a more limited modification of the religious upbringing clause than that proposed by the mother. The evidence at the hearing established that the children have spent their entire lives in the Hasidic community, they attend Hasidic schools, and their extended families are Hasidic. "[T]he maintenance of the status quo is a positive value which, while not decisive in and of itself, is entitled to great weight" (Matter of Moorehead v Moorehead, 197 AD2d 517, 519). Contrary to the mother's contention, the weight of the evidence demonstrates that it is in the children's best interests to continue to permit the father to exercise final decision-making authority over the children's education and to continue to permit him to require the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy while they are in his custody, or in the custody of a school that requires adherence to such practices. To this end, the children's interests will be best served if their parents work together to surmount the challenges the children will face as they continue on their current educational path. As such, we deem it appropriate to direct the mother to make all reasonable efforts to ensure that the children's appearance and conduct comply with the Hasidic religious requirements of the father and of the children's schools while the children are in the physical custody of their father or their respective schools. Further, in light of the mother's proposal, made in both her motion papers and her testimony, to keep a kosher home and to provide the children exclusively with kosher food, we find that it would be in their best interests for her to do so, and in a manner consistent with Hasidic practices. Except for these specified matters, we otherwise modify the religious upbringing clause to allow each parent to exercise his or her discretion while the children are in his or her care or custody.

We find that an increased visitation schedule with the father would be in the children's best interests. The parties' original custody agreement provided the father with, inter alia, one overnight visit with the children, every other week. In light of the change in circumstances, we conclude that the stipulation of settlement does not adequately provide the father with meaningful time with the children (see Chamberlain v Chamberlain, 24 AD3d 589, 593). Accordingly, that branch of the father's motion which was to modify the stipulation of settlement is granted only to the extent of modifying the stipulation of settlement so as to award the father visitation every other weekend from Thursday after school until Sunday at 11:00 a.m. On alternating weeks, the father shall have (as the parties provided in their stipulation of settlement) visitation from Friday after school and return them one hour after Shabbos ends during winter and two hours after Shabbos ends during summer.

Further, we find the mother's proposal to allow the father to have physical custody of the children during Jewish holidays and for the mother to have physical custody of the children during non-religious school vacations would be in the children's best interests. Accordingly, we grant that branch of the mother's motion which was to modify the vacation and holiday schedule [*7]contained in the stipulation of settlement so as to award the father visitation during all Jewish holidays and for two weeks during summer vacation, and to award the mother visitation during all non-religious school vacations, with the exception of the two weeks each summer to be spent with the father. All other provisions for visitation in the stipulation of settlement remain unchanged.

We acknowledge that both parents are sincere in their devotion to the children and, with the exception of occasional lapses in good judgment, neither parent has engaged in conduct that is contrary to the best interests of the children. And yet, the parties' religious, moral, and ethical beliefs and values with respect to raising their children, while once compatible, have now become incompatible in many important respects. While the arrangement set forth here may not fully satisfy both sides of this dispute, courts do not always have the perfect solution for all of the complexities and contradictions that life may bring—the parties must forge a way forward as parents despite their differences. We are confident that both parties will exercise their best judgment in these matters in a manner that furthers the best interests of their children.

Finally, the parties' stipulation provided, inter alia, that the parties shall "encourage the child[ren] to honor, respect and love the other party," shall not "attempt to alienate or destroy the affection of the child[ren] for the other party," and shall not "speak idly about the other party in front of the children." This provision applies equally to both parties and, therefore, neither party may, directly or indirectly, denigrate the other to or before the children for any reason, including their disagreement with the other party's identity or beliefs."