Friday, February 16, 2018

LITIGATION: FISHING WITHIN FACEBOOK?



Kelly Forman v. Mark Henkin, February 13, 2018, No.1, New York State Court of Appeals:

"Plaintiff suggests that disclosure of social media materials necessarily constitutes an unjustified invasion of privacy. We assume for purposes of resolving the narrow issue before us that some materials on a Facebook account may fairly be characterized as private. But even private materials may be subject to discovery if they are relevant. For example, medical records enjoy protection in many contexts under the physician-patient privilege (see CPLR 4504). But when a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records – including the physician-patient privilege – are waived (see Arons v Jutkowitz, 9 NY3d 393, 409 [2007]; Dillenbeck v Hess, 73 NY2d 278, 287 [1989]). For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.

Applying these principles here, the Appellate Division erred in modifying Supreme Court’s order to further restrict disclosure of plaintiff’s Facebook account, limiting discovery to only those photographs plaintiff intended to introduce at trial.  With respect to the items Supreme Court ordered to be disclosed (the only portion of the discovery request we may consider), defendant more than met his threshold burden of showing that plaintiff’s Facebook account was reasonably likely to yield relevant evidence. At her deposition, plaintiff indicated that, during the period prior to the accident, she posted “a lot” of photographs showing her active lifestyle. Likewise, given plaintiff’s acknowledged tendency to post photographs representative of her activities on Facebook, there was a basis to infer that photographs she posted after the accident might be reflective of her post accident activities and/or limitations. The request for these photographs was reasonably calculated to yield evidence relevant to plaintiff’s assertion that she could no longer engage in the activities she enjoyed before the accident and that she had become reclusive. It happens in this case that the order was naturally limited in temporal scope because plaintiff deactivated her Facebook account six months after the accident and Supreme Court further exercised its discretion to exclude photographs showing nudity or romantic encounters, if any, presumably to avoid undue embarrassment or invasion of privacy.

In addition, it was reasonably likely that the data revealing the timing and number of characters in posted messages would be relevant to plaintiffs’ claim that she suffered cognitive injuries that caused her to have difficulty writing and using the computer, particularly her claim that she is painstakingly slow in crafting messages. Because Supreme Court provided defendant no access to the content of any messages on the Facebook account (an aspect of the order we cannot review given defendant’s failure to appeal to the Appellate Division), we have no occasion to further address whether defendant made a showing sufficient to obtain disclosure of such content and, if so, how the order could have been tailored, in light of the facts and circumstances of this case, to avoid discovery of nonrelevant materials."

Thursday, February 15, 2018

A TESTAMENT TO OUR HIGH SCHOOL STUDENTS

Last night, I was honored to be one of the judges at Nassau Supreme Court for the 2018 New York Statewide High School Mock Trial Program. It was a privilege to see how accomplished some of our high school students are today.

Wednesday, February 14, 2018

FOR VALENTINE'S DAY


"...I will say, that [law] is a jealous mistress, and requires a long and constant courtship. It is not to be won by trifling favours, but by a lavish homage.
  • A Discourse Pronounced upon the Inauguration of the Author, as Dane Professor of Law in Harvard University on the Twenty-fifth Day of August, 1829 (1829), p. 29 - by  Justice Joseph Story

Tuesday, February 13, 2018

DISQUALIFICATION OF COUNSEL



Deerin v Ocean Rich Foods, LLC, 2018 NY Slip Op 00820, Decided on February 7, 2018, Appellate Division, Second Department:

""A party seeking disqualification of its adversary's counsel based on counsel's purported prior representation of that party must establish (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse" (Gjoni v Swan Club, Inc., 134 AD3d 896, 897 [internal quotation marks omitted]; see Tekni-Plex, Inc. v Meyer & Landis, 89 NY2d 123, 131; Sharifi-Nistanak v Coccia, 119 AD3d 765). "A party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted" (Kelleher v Adams, 148 AD3d 692, 692 [internal quotation marks omitted]; see Matter of Rovner v Rantzer, 145 AD3d 1016; Lipschitz v Stein, 65 AD3d 573, 576; Gulino v Gulino, 35 AD3d 812). "The party seeking to disqualify a law firm or an attorney bears the burden to show sufficient proof to warrant such a determination" (Kelleher v Adams, 148 AD3d at 692-693 [internal quotation marks omitted]; see Matter of Rovner v Rantzer, 145 AD3d at 1016; Lipschitz v Stein, 65 AD3d at 576; Gulino v Gulino, 35 AD3d at 812). However, doubts as to the existence of a conflict of interest are resolved in favor of disqualification in order to avoid even the appearance of impropriety (see Gjoni v Swan Club, Inc., 134 AD3d at 897; Matter of Fleet v Pulsar Constr. Corp., 143 AD2d 187, 188).

"One who has served as attorney for a corporation may not represent an individual shareholder in a case in which his interests are adverse to other shareholders'" (Morris v Morris, 306 AD2d 449, 452, quoting Matter of Greenberg [Madison Cabinet & Interiors], 206 AD2d 963, 965; see Gordon v Ifeanyichukwu Chuba Orakwue Obiakor, 117 AD3d 681, 683). Here, the plaintiff alleged in an affidavit that the defendants' counsel was involved in the formation of Ocean Rich, and the defendants' counsel admitted that he had represented Ocean Rich in "various past matters." Counsel's prior representation of Ocean Rich "was in fact represent[ation of] its [three] shareholders," whose competing interests are at issue in this action (Matter of Fleet v Pulsar Constr. [*3]Corp., 143 AD2d at 189). Likewise, counsel's involvement in the formation of Ocean Rich and his representation of it against third parties was "substantially related" to the present action (Gjoni v Swan Club, Inc., 134 AD3d at 897 [internal quotation marks omitted]; see Tekni-Plex, Inc. v Meyer & Landis, 89 NY2d at 131; Sharifi-Nistanak v Coccia, 119 AD3d at 765). Since the defendants' counsel was "in a position to receive relevant confidences" from the decedent, whose estate's interests "are now adverse to the defendant[s'] interests," the Supreme Court should have granted that branch of the plaintiff's cross motion which was to disqualify the defendants' counsel (Gordon v Ifeanyichukwu Chuba Orakwue Obiakor, 117 AD3d at 683; see Tekni-Plex, Inc. v Meyer & Landis, 89 NY2d at 131; Gjoni v Swan Club, Inc., 134 AD3d at 897; Sharifi-Nistanak v Coccia, 119 AD3d at 765)."

Monday, February 12, 2018

THE LONG ROAD OF MORTGAGE FORECLOSURE


This case has a history as set forth in e courts. A foreclosure action was first commenced in 2009 and resolved by a modification. This subsequent foreclosure by the same bank was commenced in 2012. Further research indicates the homeowners currently have the property listed for sale.

Bank of N.Y. Mellon v Hoshmand, 2018 NY Slip Op 00818, Decided on February 7, 2018, Appellate Division, Second Department"

"The defendants Gila Hoshmand and Samuel Hoshmand (hereinafter together the appellants) defaulted on their consolidated mortgage loan. The plaintiff, the holder of the consolidated mortgage and consolidated note, commenced this action to foreclose the consolidated mortgage against, among others, the appellants. The appellants did not appear in the action or answer the complaint. On November 18, 2014, the Supreme Court granted the plaintiff's motion for an order of reference and denied the appellants' cross motion to vacate their default. Subsequently, the plaintiff moved, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale, and the appellants opposed the motion. In the order appealed from, the Supreme Court, inter alia, granted those branches of the plaintiff's motion.

Contrary to the appellants' contention, the Supreme Court properly considered a renewed power of attorney submitted by the plaintiff in reply to the appellants' opposition to its motion. "The function of reply papers is to address arguments made in opposition to the position taken by the movant" (Central Mtge. Co. v Jahnsen, 150 AD3d 661, 664 [internal quotation marks omitted]; see OneWest Bank, FSB v Simpson, 148 AD3d 920, 923). Here, the renewed power of attorney submitted by the plaintiff was offered in response to the appellants' argument made in opposition that the plaintiff's affidavit of merit, signed by the assistant vice president of its servicing agent, was invalid because it was signed after the original power of attorney submitted by the plaintiff had expired. The renewed power of attorney merely clarified that the plaintiff's servicing agent continued to have the authority to act on behalf of the plaintiff at the time the affidavit was signed (see Central Mtge. Co. v Jahnsen, 150 AD3d at 664; OneWest Bank, FSB v Simpson, 148 AD3d at 923).

The Supreme Court properly confirmed the referee's report. Contrary to the appellants' contention, under the circumstances of this case, the referee was not required to conduct a hearing before issuing her report (see Deutsche Bank Natl. Trust Co. v Williams, 134 AD3d 981; Wachovia Mtge. Corp. v Lopa, 129 AD3d 830, 831; Capital One, N.A. v Knollwood Props. II, LLC, 98 AD3d 707, 708; Dune Deck Owners Corp. v J.J. & P. Assoc. Corp., 85 AD3d 1091; Deutsche Bank Natl. Trust Co. v Zlotoff, 77 AD3d 702; Deutsche Bank Natl. Trust Co. v Jackson, 68 AD3d 805)."

Friday, February 9, 2018

BREACH OF ESCROW AGREEMENT AND THE RULES OF EVIDENCE



Atlantic Fin., LLC v Xinlei Lin, 2018 NY Slip Op 00817, Decided on February 7, 2018, Appellate Division, Second Department:

"The plaintiff entered into a contract of sale with the defendants Xinlei Lin and Shengguo Lin (hereinafter the defendants), whereby the plaintiff agreed to sell, and the defendants agreed to purchase, premises located in Jamaica, Queens, for the sum of $540,000. The contract contained a provision that required the plaintiff to deliver the premises free of violations and liens. The defendants' title search revealed numerous violations and civil penalties issued against the premises by the City of New York Department of Housing Preservation and Development (hereinafter HPD), Department of Buildings (hereinafter DOB), and Environmental Control Board (hereinafter ECB). The plaintiff and the defendants then executed an escrow agreement, whereby the parties agreed that the plaintiff's attorney would hold the sum of $100,000 in escrow to ensure the removal of the violations and civil penalties from the premises.

After a dispute arose as to whether the terms of the escrow agreement had been complied with, the plaintiff commenced this action against, among others, the defendants, inter alia, to recover damages for breach of the escrow agreement. After issue was joined, the plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against the defendants, and the Supreme Court denied that branch of the plaintiff's motion. The plaintiff appeals.

The plaintiff's submissions failed to eliminate all triable issues of fact as to whether the defendants breached the escrow agreement by unjustifiably refusing to permit the escrow funds to be released to it. Certain documentary evidence submitted by the plaintiff in support of its motion was not in admissible form. Specifically, none of the records from ECB, DOB, and HPD were certified, and therefore, these records constituted inadmissible hearsay. Additionally, an unsworn letter from an ECB attorney and uncertified records of the title insurance company also constituted [*2]inadmissible hearsay (see Greater Bright Light Home Care Servs., Inc. v Jeffries-El, 151 AD3d 818, 821; Pandey v Parikh, 57 AD3d 634). Without this evidence, the plaintiff's contention that it complied with the escrow agreement by removing all violations from the premises was conclusory and unsupported. Furthermore, the plaintiff's submissions raised a triable issue of fact as to its compliance with the terms of the escrow agreement and whether it failed to pay the civil penalties associated with the ECB violations. Accordingly, since the plaintiff's evidence failed to eliminate all triable issues of fact, the Supreme Court properly denied that branch of its motion which was for summary judgment on the complaint insofar as asserted against the defendants, without regard to the sufficiency of the opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; 32nd Ave., LLC v Angelo Holding Corp., 88 AD3d 986, 987)."

Thursday, February 8, 2018

DIVORCE: 2018 INCOME MAINTENANCE CAP




Effective January 31, the income cap the income cap for the maintenance calculations has been adjusted to $184,000. The cap for income for child support remains at $143,000 and will not be adjusted until next year.

The courts have a new form for guidelines worksheet for maintenance:

http://www.nycourts.gov/divorce/childsupport/UD-8-2-MaintenanceGuidelinesWorksheet.pdf

Wednesday, February 7, 2018

PRE-NUP: BE SPECIFIC IN YOUR SCHEDULES



The exhibits and schedules that are attached to an agreement are part of the agreement and may override the intent of the general terms of the agreement. That was the lesson in Foley v. Foley, 2017 NY Slip Op 8435 - NY: Appellate Div., 3rd Dept. 2017:


"The husband argues that, under the plain meaning of the terms of the agreement, his pension and deferred compensation accounts were separate property. We disagree. Exhibit A, though a "simple list," included nine categories of assets: "A" cash accounts; "B" securities; "C" brokers margin accounts; "D" loans to others and accounts receivable from others; "E" value of any business interests; "F" cash surrender value of life insurance; "G" vehicles; "H" real estate; and "I" vested interests in trusts. In the column after categories "A", "B" and "C" the parties wrote "NONE." The column at category "D" identified a mortgage. Column "F" was a specific life insurance policy, the parties identified three vehicles at column "G", and, for column "H," the parties identified 15 separate parcels of real property.


We discern no ambiguity in this prenuptial agreement. Though we are mindful that the general terms of the agreement provided that all property acquired by the parties prior to the marriage was separate property, "including any increases thereto," the husband had both a pension and a deferred compensation account prior to the marriage and these accounts could have been identified very easily and been included with the "simple combined list" attached to the agreement. Instead, the parties simply ignored the category altogether. By failing to reference these accounts in the more specific "A," we, like Supreme Court, find that the parties did not intend to include either as separate property (see Herr v Herr, 97 AD3d at 963)."

Tuesday, February 6, 2018

DIVORCE - DEGREE OF PROOF NEEDED TO PROVE SEPARATE PROPERTY CREDIT


Culen v Culen, 2018 NY Slip Op 00541, Decided on January 31, 2018, Appellate Division, Second Department:

"Furthermore, the defendant's contention that he was entitled to a separate property credit for his contributions to the down payment on the marital residence is without merit. The defendant's self-serving trial testimony that his aunt gave him a check in the sum of $50,000, that his uncle gave him the sum of $10,000, and that he used these funds toward the down payment, was unsupported by documentary evidence, and insufficient to establish his entitlement to a separate property credit (see Rosenberg v Rosenberg, 145 AD3d 1052, 1055; Horn v Horn, 145 AD3d 666, 667; Wasserman v Wasserman, 66 AD3d 880, 883). Additionally, the Supreme Court properly found that the defendant failed to present sufficient evidence tracing the source of any funds used to purchase the martial residence to the sale of certain stock, which was purportedly the defendant's separate property (see Maddaloni v Maddaloni, 142 AD3d 646, 652)."

Monday, February 5, 2018

WORKING WITH MY COMMUNITY



Levittown Chamber of Commerce , 57th Annual Installation of Officers & Directors

Friday, February 2, 2018

DIVORCE - DELAYING TACTICS CAN COST A LITIGANT



Culen v Culen, 2018 NY Slip Op 00542, Decided on January 31, 2018, Appellate Division, Second Department:

" Pursuant to Domestic Relations Law § 237(a), a court in a divorce action may award counsel fees to a spouse to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and the respective parties'" (Samimi v Samimi, 134 AD3d 1010, 1012, quoting Aloi v Simoni, 82 AD3d 683, 686). "The decision to award an attorney's fee in a matrimonial action lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court" (Black v Black, 140 AD3d 816, 816 [internal quotation marks omitted]; see O'Brien v O'Brien, 66 NY2d 576, 590). "In exercising that discretion, the court must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions, and whether either party has delayed the proceedings or engaged in unnecessary litigation" (Black v Black, 140 AD3d at 816-817 [internal quotation marks omitted]; see Guzzo v Guzzo, 110 AD3d 765, 766).

Here, the plaintiff was entitled to an award of an attorney's fee in the amount of $90,000 based upon, inter alia, the relative merits of the parties' positions and the defendant's obstructionist tactics, which unnecessarily prolonged the litigation (see Cohen-McLaughlin v McLaughlin, 132 AD3d 716, 717-718; Baron v Baron, 71 AD3d 807, 810; Curatola v Curatola, 43 AD3d 974, 976; Schek v Schek, 49 AD3d 625, 626). These tactics included, but were not limited to, the defendant's insistence that the parties proceed to a jury trial on the grounds for the divorce, despite the plaintiff having agreed either to settle on a ground other than cruel and inhuman treatment or to withdraw the case and re-file on the ground of irretrievable breakdown of the marital relationship, and the defendant's motion filed after trial on the issues of equitable distribution and maintenance to exclude the plaintiff from a tennis club where the parties were both previously members. The defendant unnecessarily prolonged the litigation by attempting to obstruct the plaintiff from obtaining discovery regarding an inheritance that the defendant was entitled to receive [*3]from his aunt's estate, even though it is well established that parties to a divorce action are entitled to liberal and broad discovery from one another, including with respect to separate property that is not subject to equitable distribution (see Owens v Owens, 107 AD3d 1171, 1174; Jaffe v Jaffe, 91 AD3d 551, 554; Dorsa v Dorsa, 50 AD3d 842, 843)

Thursday, February 1, 2018

SETTING ASIDE AN UNFAIR SEPARATION AGREEMENT



TUZZOLINO v. TUZZOLINO, 2017 NY Slip Op 8991 - NY: Appellate Div., 4th Dept. 2017:

"We agree with plaintiff that the agreements are unfair and unconscionable and should be set aside. Separation agreements are subject to closer judicial scrutiny than other contracts because of the fiduciary relationship between spouses (see Christian v Christian, 42 NY2d 63, 72 [1977]; Gibson v Gibson, 284 AD2d 908, 909 [4th Dept 2001]). A separation agreement should be set aside as unconscionable where it is "such as no person in his or her senses and not under delusion would make on the one hand, and as no honest and fair person would accept on the other . . ., the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense" (Christian, 42 NY2d at 71 [internal quotation marks and brackets omitted]; see Dawes v Dawes, 110 AD3d 1450, 1451 [4th Dept 2013]; Skotnicki v Skotnicki, 237 AD2d 974, 975 [4th Dept 1997]). We note that the unconscionability or inequality of a separation agreement may be the result of overreaching by one party to the detriment of another (see Tchorzewski v Tchorzewski, 278 AD2d 869, 870 [4th Dept 2000]).

Here, at the time the parties entered into the agreements, defendant wife was represented by counsel but plaintiff was not, which, while not dispositive, is a significant factor for us to consider (see Gibson, 284 AD2d at 909; Tchorzewski, 278 AD2d at 870; Skotnicki, 237 AD2d at 975). Another factor to consider is that the agreements did not make a full disclosure of the finances of the parties (see Tchorzewski, 278 AD2d at 870-871). In particular, defendant, who had a master's degree in business administration and was a professor at a SUNY college, would receive two pensions upon retirement, neither of which was valued. The separation agreement did not provide for any maintenance for plaintiff despite the gross disparity in incomes and the length of the marriage and, while the modification agreement provided maintenance for plaintiff, it also required plaintiff to transfer his interest in the marital residence to defendant. In opposition to the motion, defendant averred that the parties "wanted an agreement whereby [plaintiff] would keep his income and retirement assets and I would keep mine." As shown by their statements of net worth, which were prepared after the agreements were executed, plaintiff's assets totaled approximately $77,000 whereas defendant's assets, which included the marital residence, totaled approximately $740,000. Based on our consideration of all the factors, we conclude that the agreements here are unconscionable and were the product of overreaching by defendant and thus should be set aside (see Dawes, 110 AD3d at 1451; Gibson, 284 AD2d at 909; Tchorzewski, 278 AD2d at 871). We therefore reverse the judgment in appeal No. 1 insofar as appealed from, grant the motion, vacate the second and third decretal paragraphs, and we remit the matter to Supreme Court to determine the issues of equitable distribution and maintenance."

Wednesday, January 31, 2018

MAKING ALTERATIONS TO CONDO UNIT


Not all issues are resolved by summary judgment and a trial may be required. That is the lesson in
Forestal Condominium v Davydov, 2018 NY Slip Op 00410, Decided on January 24, 2018, Appellate Division, Second Department:

"The plaintiff, the owner of a condominium building located in Forest Hills, commenced this action against the defendant, an owner of one of the units in the building (hereinafter the subject apartment), for a judgment declaring that the defendant violated the plaintiff's by-laws by performing alterations to the subject apartment without the plaintiff's permission, to enjoin the defendant from conducting any further construction on the subject apartment in violation of the by-laws, and for costs and attorneys' fees incurred in commencing this action.

The plaintiff moved for summary judgment on the complaint, and the defendant cross-moved for summary judgment dismissing the complaint. The Supreme Court denied the motion and the cross motion. The plaintiff appeals from so much of the order as denied its motion.

"Condominium ownership is a hybrid form of real property ownership, created by statute" (Board of Mgrs. of Vil. View Condominium v Forman, 78 AD3d 627, 629; see Real Property Law art 9-B; Caprer v Nussbaum, 36 AD3d 176, 183). The administration of the condominium's affairs is governed principally by its by-laws, "which are, in essence, an agreement among all of the individual unit owners as to the manner in which the condominium will operate, and which set forth the respective rights and obligations of unit owners, both with respect to their own units and the condominium's common elements" (Schoninger v Yardarm Beach Homeowners' Assn., 134 AD2d 1, 6; see Real Property Law § 339-v; Board of Mgrs. of Vil. View Condominium v Forman, 78 AD3d at 629; Murphy v State of New York, 14 AD3d 127, 133).

Here, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law (see Village at Corbin Hill Condominium II v Ungaro, 74 AD3d 958; Board of Mgrs. [*2]of Stewart Place Condominium v Bragato, 15 AD3d 601, 602). While article VI, section 12, of the plaintiff's by-laws specified that a unit owner could not make any structural addition, alteration, or improvement to his or her unit without the prior written consent of the plaintiff's board of managers, it also provided that the plaintiff's board of managers had 30 days to answer any written request after receipt of such request, and that the failure to respond within that time frame would constitute consent to the proposed addition, alteration, or improvement. The plaintiff's submissions failed to eliminate all triable issues of fact as to what requests the defendant made of the plaintiff, and what responses, if any, were provided by the plaintiff (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853)."

Tuesday, January 30, 2018

ATTORNEY CLIENT PRIVILEGE NOT WAIVED BY THIRD-PARTY PRESENCE



Saint Annes Dev. Co. v Russ, 2018 NY Slip Op 00451, Decided on January 24, 2018, Appellate Division, Second Department:

"The plaintiff objected to certain of the defendants' discovery requests on the ground that the requested documents, which related to communications among the plaintiff, its attorney, and its assignors, were protected by the common-interest privilege. The defendants moved to compel the production of these documents, arguing that the common-interest privilege did not apply. Following an in camera review of the documents, the Supreme Court denied the defendants' motion.

The common-interest privilege is an exception to the traditional rule that the presence of a third party waives the attorney-client privilege (see Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d 186, 205; Aetna Cas. & Sur. Co. v Certain Underwriters at Lloyd's, London, 176 Misc 2d 605, 611 [Sup Ct, NY County], affd 263 AD2d 367; In re Quigley Co., 2009 WL 9034027, *2-3, 2009 Bankr LEXIS 1352, *7-8 [Bankr SD NY]). To fall within that exception, the privileged communication must be for the purpose of furthering a legal, as opposed to a commercial, interest common to the client and the third party (see Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d at 205; Delta Fin. Corp. v Morrison, 69 AD3d 669; U.S. Bank N.A. v APP Intl. Fin. Co., 33 AD3d 430, 431). "The legal interest that those parties have in common must be identical (or nearly identical), as opposed to merely similar" (Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d at 205; see United States v Doe, 429 F3d 450, 453 [3d Cir]; F.D.I.C. v Ogden Corp., 202 F3d 454, 461 [1st Cir]). Moreover, the communication must "relate to litigation, either pending or anticipated, in order for the exception to apply" (Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616, 620; see Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d at 205).

Here, the Supreme Court properly denied the defendants' motion to compel the production of the subject documents, as these documents were protected by the common-interest [*2]privilege."

Monday, January 29, 2018

MORTGAGE FORECLOSURE - STILL NEED PROPER PROOF



First Franklin Fin. Corp. v Alfau, 2018 NY Slip Op 00409 ,Decided on January 24, 2018, Appellate Division, Second Department:

"Nevertheless, the plaintiff failed to submit the requisite proof of the facts constituting the claim (see DLJ Mtge. Capital, Inc. v United Gen. Tit. Ins. Co., 128 AD3d at 762). "While a verified complaint may be used as the affidavit of the facts constituting the claim, it must contain evidentiary facts from one with personal knowledge" (id. [citation omitted]; see CPLR 3215[f]). " [A] pleading verified by an attorney pursuant to CPLR 3020 (d) (3)[, and not by someone with personal knowledge of the facts,] is insufficient to establish its merits'" (DLJ Mtge. Capital, Inc. v United Gen. Tit. Ins. Co., 128 AD3d at 762, quoting Triangle Props. #2, LLC v Narang, 73 AD3d 1030, 1032). On its motion, the plaintiff submitted the complaint, verified only by counsel, and an affirmation of counsel, with counsel having no personal knowledge of the facts. The plaintiff also submitted an affidavit of a representative of the loan servicer attesting to a default, but failing to address the relevant questions relating to the fact that the mortgagor did not own the subject property, whether the relevant documents should be reformed, or whether an equitable lien or mortgage should be imposed."

Friday, January 26, 2018

WAIVING IMPROPER SERVICE DEFENSE



Deutsche Bank Natl. Trust Co. v Acevedo, 2018 NY Slip Op 00407, Decided on January 24, 2018, Appellate Division, Second Department:

"[A]n objection that the summons and complaint . . . was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship" (CPLR 3211[e]). Here, the defendant failed to move for judgment on the ground of lack of personal jurisdiction based on improper service within 60 days after his answer was served. Additionally, he failed to made an adequate showing of undue hardship that prevented the making of the motion within the requisite statutory period. Although the plaintiff, appearing by its former attorneys, wrote to the defendant's attorney, stating that the verified answer with affirmative defenses and counterclaims was rejected, this Court has indicated that a "purported rejection of the defendants' answer did not extend the 60-day time limit" (Dimond v Verdon, 5 AD3d 718, 719). Further, less than one month after the defendant's verified answer with affirmative defenses and counterclaims was served, the plaintiff's responsive pleading was served. Under these circumstances, the defendant waived his objection to personal jurisdiction based on improper service (see id. at 719; see also Warsowe Acquisition Corp. v DeNoble, 116 AD3d 949, 950; Reyes v Albertson, 62 AD3d 855, 855)."


Thursday, January 25, 2018

FRAUD IN MORTGAGE REFINANCING?



Countrywide Home Loans, Inc. v Gibson, 2018 NY Slip Op 00404, Decided on January 24, 2018, Appellate Division, Second Department:

"In 2004, the defendant Brett Jones borrowed the sum of $337,455 from Option One Mortgage Corporation. The loan was secured by a mortgage on the subject property (hereinafter the Option One mortgage). Two years later, after defaulting on the Option One mortgage, Jones turned to MAI Management and Redemption, LLC (hereinafter MAI), for help in avoiding foreclosure. MAI located the defendant Kirk Gibson, who, for a fee, agreed to purchase the subject property from Jones and obtain a new mortgage to finance the purchase.
At the closing on November 13, 2006, a portion of the proceeds was used to pay off the Option One mortgage, and a satisfaction of mortgage discharging the Option One mortgage was issued. Gibson obtained two loans from the defendant Premium Capital Funding, LLC, doing business as TopDot Mortgage (hereinafter TopDot), in the amounts of $524,000 and $131,000, respectively. The larger loan was secured by a first mortgage on the subject property (hereinafter the TopDot mortgage), and the smaller loan was secured by a second mortgage.
Gibson subsequently defaulted on his mortgage payments, and the plaintiff, as successor-in-interest to TopDot, commenced this action in 2008 to foreclose the TopDot mortgage. Jones answered the complaint, asserting, inter alia, affirmative defenses that the plaintiff lacked standing, that the Option One mortgage was not paid off, and that the plaintiff was "perpetuating the fraud perpetrated upon [him]," as well as a counterclaim alleging that the deed by which Jones conveyed the subject property to Gibson was a forgery.
At a nonjury trial, the plaintiff offered the testimony of Nathan Musick, an assistant vice president of Bank of America National Association (hereinafter Bank of America). In relevant part, Musick testified that he is the authorized custodian of the original note relating to the TopDot mortgage, which has been kept in the regular course of Bank of America's business. Musick further confirmed, based on information contained in a database created by the plaintiff and transferred to Bank of America when the plaintiff was absorbed by merger into Bank of America's corporate structure, that the plaintiff took possession of the original note on November 28, 2006, before this action was commenced.
The plaintiff also offered the testimony of Steven Vasco, the notary public who witnessed the signatures of Jones and Gibson on the November 13, 2006, deed transferring the subject property to Gibson. Although Vasco had no independent recollection of the closing, he confirmed his signature and notary stamp on the deed, and explained the procedure he usually follows in verifying the identity of signatories.
Jones testified on his own behalf. In relevant part, he conceded that the grantor's signature appearing on the November 13, 2006, deed "look[ed] like" his, but maintained that he "would never sell [his] home" or "give [his] home away." He acknowledged receiving $56,675.82 from the 2006 refinancing transaction, and confirmed that, after the refinancing, he never again received another invoice or demand regarding the Option One mortgage.
At the close of evidence, the plaintiff moved pursuant to CPLR 4401 for judgment as a matter of law against Jones. The court granted the motion, and Jones appeals.
In reviewing a determination made after a nonjury trial, this Court's power is as broad at that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial court had the advantage of seeing and hearing the witnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; International Exterior Fabricators, LLC v Decoplast, Inc., 128 AD3d 1016, 1019).
"Any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue" (CPLR 4401). "A trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party" (Szczerbiak v Pilat, 90 NY2d 553, 556; see Geeta Temple-Ashram v Satyanandji, 142 AD3d 1132, 1134). In considering such a motion, the trial court must afford the nonmoving party every inference that may properly be drawn from the facts presented (see Szczerbiak v Pilat, 90 NY2d at 556; Geeta Temple-Ashram v Satyanandji, 142 AD3d at 1134).
On appeal, Jones no longer contends that the 2006 deed was forged. Insofar as Jones contends that he was fraudulently induced into entering into the 2006 refinancing based on misrepresentations that the Option One mortgage would be paid off, his contention is belied by the unchallenged documentary evidence, as well as Jones's own testimony, all of which support the conclusion that the Option One mortgage was, in fact, satisfied in 2006. Accordingly, even considering the evidence in the light most favorable to Jones, there was no rational process by which the court, as the trier of fact, could have found that the Option One mortgage was not satisfied (see Szczerbiak v Pilat, 90 NY2d at 556).
Moreover, insofar as Jones alleges fraud in the factum with respect to the 2006 deed, i.e., that he "was induced to sign something entirely different than what he thought he was signing" (First Natl. Bank of Odessa v Fazzari, 10 NY2d 394, 397), the trial evidence failed to substantiate his claim. "Generally, a cause of action alleging that the plaintiff was induced to sign something different from what he or she thought was being signed only arises if the signer is illiterate, blind, or not a speaker of the language in which the document is written" (Anderson v Dinkes & Schwitzer, [*2]P.C., 150 AD3d 805, 806). No such circumstances were shown in this case. Thus, upon the evidence presented at trial, there is no rational process by which the trier of fact could base a finding in favor of Jones on a theory of fraud in the factum (see Szczerbiak v Pilat, 90 NY2d at 556).
Contrary to Jones's contention, the plaintiff established its standing by showing that it took possession of the subject note, endorsed in blank, on November 28, 2006, well before this action was commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 362)."


Wednesday, January 24, 2018

NEW ONLINE FEATURES FOR PART 36 APPOINTEES



The Fiduciary Online system has been updated to allow Part 36 appointees to submit Online UCS-872 Notices of Appointment and Certifications of Compliance, replacing paper forms. This new feature permits Part 36 fiduciary appointees to receive email notifications from the court and accept or decline an Online UCS-872, Notice of Appointment. This new process is entirely paperless.


Tuesday, January 23, 2018

CHANGING ADDRESS ON YOUR DRIVERS LICENSE

New York Vehicle and Traffic Law § 505 (5) provides:

"Change of address.  It shall be the duty of every licensee to notify the commissioner in writing of any change of residence of such licensee within ten days after such change occurs and to make a notation of such change of residence on such license in the place provided by the commissioner."

Failure to comply has consequences in a civil action. When a process server attempts to make personal delivery and then relies upon substituted service, this is usually done by delivering the summons to a person of suitable age and discretion at the address which was on file at the State of New York Department of Motor Vehicles, and then mailing the summons to defendant at that same address. Now here is a real situation in which I consulted with the defendant. The defendant never changed the address on the drivers license, did not live at the address for several years, and only learned of the action after a default judgment was issued.

TARDUNGO v. ARIAN, 2016 NY Slip Op 50706 - NY: Appellate Term, 2nd Dept. 2016:

"In this action to recover rent arrears, defendant appeals from an order of the Civil Court which denied her motion to vacate a default judgment that had been entered against her in the principal sum of $7,700. Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion in denying defendant's motion. Since service was made upon a person of suitable age and discretion at the address which was on file for defendant at the State of New York Department of Motor Vehicles, and the summons was mailed to defendant at that same address (see CPLR 308 [2]), defendant was estopped from challenging personal jurisdiction on the ground that she was served at the wrong address (see Kandov v Gondal, 11 AD3d 516 [2004]; Burke v Zorba Diner, 213 AD2d 577 [1995]). Moreover, defendant's moving papers failed to demonstrate that she had a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986])."

Monday, January 22, 2018

FREE MORTGAGE FORECLOSURE CLINIC TODAY



I will be volunteering today at the Nassau County Bar Association's free clinic for Mortgage Foreclosure, Bankruptcy and Superstorm Sandy issues, from 3pm to 6pm.

For more information, contact Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501 at (516) 747-4070