Friday, February 17, 2017

CHILD CUSTODY - TEENAGER'S PREFERENCE NOT CONTROLLING



MATTER OF MANELL v. MANELL, 2017 NY Slip Op 224 - NY: Appellate Div., 3rd Dept. 2017, where the child in question was the parties' 14/15 year old son:

"The father asserts that the child wishes to live primarily with him and have weekend parenting time with the mother. The attorney for the child concurs with the father's position, and further argues that, significantly, the child's wishes have not changed in the period since the trial determination. Although the child's desires are considered as part of the best interests analysis, they are "but one factor to be considered . . . [and] should not be considered determinative," and "the potential for influence having been exerted on the child" must also be considered (Eschbach v Eschbach, 56 NY2d 167, 173 [1982]; see Matter of Benjamin v Lemasters, 125 AD3d 1144, 1147 [2015]). Here, we note that the father's testimony reveals that he spoke to the child on at least four separate occasions regarding with whom he wanted to live. Contrary to the father's argument, we find that Family Court's decision reveals that it considered the child's wishes as part of its best interests analysis, although the request was not granted (see Matter of Rivera v LaSalle, 84 AD3d 1436, 1438 [2011]; Matter of Rutland v O'Brien, 143 AD3d 1060, 1062 [2016]).

Family Court found both parties to be fit and loving parents who are able to provide stable homes and cooperate regarding visitation and the child's needs and activities. The teenage child resides with the mother in his childhood home and continues to attend the same school that he has attended since pre-kindergarten. The child has regular contact with certain members of the mother's family who are her immediate neighbors. The father resides with the child's paternal grandparents, who have indicated that the father and the child may live at their residence as long as is necessary. The mother works part time and provides for someone else to be present for the child when necessary. The father works full time, but does not work on the weekends during his parenting time, and the child's grandparents are otherwise available to watch the child. Assistance with schoolwork and facilitation of the child's extracurricular activities are provided by both parents.

Family Court acknowledged the mother's history of alcoholism and found the mother's undisputed sobriety since November 2012 to be a laudable achievement. Regarding the mother's allegations of domestic violence, the court credited certain testimony by the father in concluding that the incidents did not result in any basis for finding him unfit for providing adequate moral guidance, and further found that these incidents had occurred solely in the past, prior to the parties' separation. In the absence of further altercations after the parties' separation, the record supports the finding that these incidents do not currently affect the best interests of the child.

Family Court found, and the record supports, that "the best interests of [the] child[] are served by a continuing relationship with both parents" (Matter of Bennett v Bennett, 208 AD2d 1042, 1042 [1994]; see Weiss v Weiss, 52 NY2d 170, 175 [1981]). In rendering the determination, the court specifically found that the mother has been "extremely cooperative" with the father, and "has not refused any requests for him to spend additional time with" the child. The testimony of both parties indicates that the mother has been the child's primary caretaker, whereas the father frequently participates in hunting and other outdoor activities with the child — activities which Family Court found to be an "integral part of [the child's] identity." The mother testified that she only occasionally participates in outdoor activities with the child. In light of the parties' distinct roles in their child's life, we cannot find that the determination failed to balance the time shared with the two parents in an appropriate manner. Family Court's order acknowledged the child's history of outdoor activities with the father, while also recognizing a need to "ensure that the mother's relationship with the child will be promoted and preserved." Under these circumstances, we find the award of primary weekday custody to the mother with substantial weekend parenting time to the father to be supported by a sound and substantial basis in the record, and we will not disturb it (see Matter of Lawton v Lawton, 136 AD3d at 1169; Matter of Holland v Klingbeil, 118 AD3d 1077, 1079 [2014]; Matter of Gordon v Richards, 103 AD3d 929, 931 [2013])."

Thursday, February 16, 2017

PREPARING FOR AN UNEMPLOYMENT INSURANCE HEARING



The New York State Unemployment Insurance Appeal Board has released a video: "Preparing for Your Unemployment Insurance Hearing"

See http://uiappeals.ny.gov/ui-appeal-board-frequently-asked-questions.shtm?direct-link=video-preparing-for-unemployment-insurance-hearing

Wednesday, February 15, 2017

ON THE COMMERCIAL DIVISION OF NEW YORK STATE SUPREME COURT

video

"A Forum for Business Disputes:  The Commercial Division of the Supreme Court of the State of New York" - Chief Judge DiFiore and a number of other Judges, lawyers and General Counsel of major corporations comment ont the Commercial Division of the New York State Supreme Court.

Tuesday, February 14, 2017

A DISCUSSION ON THE RIGHT OF PARTITION


ZARBIS v. TRIADES, 2015 NY Slip Op 30317 - NY: Supreme Court 2015:

"The ancient remedies of actual partition, and of partition and sale are premised in equity and are now codified in Article 9 of the Real Property Actions and Proceedings Law (see Chang v Chang, 137 AD2d 371, 529 NYS2d 294 [1st Dept 1988]; Worthing v Cossar, 93 AD2d 515, 462 NYS2d 920 [4th Dept 1983]; Grody v Silverman, 222 AD 526, 226 NY 468 [1928]). Under RPAPL § 901, "a person holding and in possession of real property as a joint tenant or tenant in common, in which he [or she] has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners" (RPAPL § 901[1]; Tsoukas v Tsoukas, 107 AD3d 879, 968 NYS2d 109 [2d Dept 2013]). Accordingly, one owning an interest in real property with a right of possession such as a tenant, joint tenant or a tenant in common may seek physical partition of the property, or, a partition and sale thereof, if it appears that physical partition alone would greatly prejudice the owners of the premises (see Cadle Co. v Calcador, 85 AD3d 700, 926 NYS2d 106 [2d Dept 2011]; Bufogle v Greek, 152 AD2d 527, 528, 543 NYS2d 152 [2d Dept 1989]; see also Arata v Behling, 57 AD3d 925, 870 NYS2d 450 [2d Dept 2008]; Wilbur v Wilbur, 266 AD2d 535, 699 NYS2d 103 [2d Dept 1999]). While an accounting is a necessary incident of a partition action and should be had as a matter of right before entry of an interlocutory or final judgment and before any division of money between the parties is adjudicated (see Sampson v Delane, 34 AD3d 349, 824 NYS2d 277 [1st Dept]; Donlon v. Diamico, 33 AD3d 841, 823 NYS2d 483 [2d Dept 2006]; McVicker v Sarma, 163 AD2d 721, 558 NYS2d 997 [2d Dept 1990]; Worthing v Cossar, 93 AD2d 515, 462 NYS2d 920 [2d Dept [1983]), a sale without an accounting is permissible in cases wherein no accounting is demanded nor any claims for an adjustment of the rights of any party due to receipt by one party of more than his or her proper proportion of the rents, profits or share interest in the premises are asserted (see Robert McCormick v Pickert, 51 AD3d 1109, 856 NYS2d 306 [2d Dept 2008]).

In the absence of an agreement against partition, a partition of real property owned by joint tenants or tenants in common is a matter of right whenever one or more of them do not wish to hold and use the property under their tenancies (see Smith v. Smith, 116 AD2d 810, 497 NYS2d 19 [3d Dept 1986]; Gasko v Del Ventura, 96 AD2d 896, 466 NYS2d 64 [2d Dept 1983]; Chew v Sheldon, 214 NY 344, 108 NY 522 [1915]). This right to the remedy of partition has been long recognized as a "valuable part of such interest in that it affords the owner a means of disposing of his interest which cannot be defeated by his co-owners" (Rosen v Rosen, 78 AD2d 911, 912, 432 NYS2d 921 [3d Dept 1989]). The right to partition is not absolute, however, and while a tenant in common or joint teneant has the right to maintain an action for partition pursuant to RPAPL 901, the remedy is always subject to the equities between the parties (see Tsoukas v Tsoukas, 107 AD3d 879, supra; Pando v Tapia, 79 AD3d 993, 995, 914 NYS2d 226 [2d Dept 2010]; Arata v Behling, 57 AD3d 925, 926, 870 NYS2d 450 [2d Dept 2008]; Graffeo v Paciello, 46 AD3d 613, 614, 848 NYS2d 264 [2d Dept 2007]).

Before a partition or sale may be directed, a determination must be made as to the rights, shares, or interests of the parties and, in those cases wherein a sale is demanded rather than an actual physical partition, whether the property or any part thereof is so circumstanced that a partition thereof cannot be made without great prejudice to the owners (see RPAPL § 915). Such determinations must be included in the interlocutory judgment contemplated by RPAPL § 915 along with either a direction to sell at public auction or a direction to physically partit on the premises (see RPAPL § 911; § 915; Hales Ross, 89 AD3d 1261, 932 NYS2d 263 [2d Dept 2011]; see also Lauriello v Gallotta, 70 AD3d 1009, 895 NYS2d 495 [2d Dept 2010]; Wolfe v Wolfe, 187 AD2d 628, 590 NYS2d 504 [2d Dept 1992]). Determinations of the rights and shares of the parties must be made by declaration of the court directly or after a reference to take proof and report (see RPAPL § 911; § 907; Mary George, D.M.D. & Ralph Epstein, D.D.S., P.C. v J. William, 113 AD2d 869, 493 NYS2d 794 [2d Dept 1985]; see also Colley v Romas, 50 AD3d 1338, supra). Inquiry and ascertainment by the court or by reference into the existence of creditors having liens or other interest in the premises is also required and, if there be any such creditors, proceedings thereon must be held as required by RPAPL § 913. While the court may accept proof of the absence of the existence of any such creditor and dispense with the reference and the proceedings required thereon, a finding to that effect should issue.

The law is clear that in order to maintain an action for partition the plaintiff or other claimant must be the owner of an interest in real property and have legal title thereto or to a part thereof (see Sealy v Clifton, LLC, 68 AD3d 846, 890 NYS2d 598 [2d Dept 2009]; Mohamed v Defrin, 45 AD3d 252, 844 NYS2d 265 [1st Dept 2007]; Garland v Raunheim, 29 AD2d 383, 288 NYS2d 417 [1st Dept 1968]; Gifford v Whittemore, 4 AD2d 379, 165 NYS2d 201 [3d Dept 1957]; Harvey v Metz, 271 AD 788, 65 NYS2d 85 [2d Dept 1946]; O'Connor v O'Connor, 249 AD 515, 293 NYS 64 [2d Dept 1937]; McGillivray v Brundage, 36 Misc.2d 106, 231 NYS2d 870 [Sup. Ct. Monroe Cty. 1962]; Fraser v Bowerman, 104 Misc. 260, 171 NYS 835 [Sup Ct. Niagra Cty. 1918), aff'd. 187 AD 926, 174 NYS 903 [4th Dept 1919]). It is equally clear that a person who is possessed of an enforceable right to a conveyance of an interest in real property, but who is without legal title to such property, has no cognizable claim for partition (see Side v Brenneman, 7 AD 273, 40 NYS 3 [1st Dept 1896]).

Viable claims for partition and sale must thus rest upon allegations of a joint or common ownership in real property with attendant rights to possession and that the equities favor the claimant and, where a sale rather than an actual partition is demanded, proof that a physical partition of the premises cannot be made without great prejudice to the parties is also required (see Galitskaya v Presman, 92 AD3d 637, 937 NYS2d 878 [2d Dept 2012]; Cadle Co. v Calcador, 85 AD3d 700, supra; James v James, 52 AD3d 474, 859 NYS2d 479 [2d Dept 2008]). An award of summary judgment on a claim for partition is established only where the movant demonstrates its ownership interest and a right to possession under a deed or other instrument of conveyance, favorable equities and that a physical partition cannot be made without great prejudice in cases wherein a sale is demanded (see Tsoukas v Tsoukas, 107 AD3d 879, supra, Arata v Behling, 57 AD3d 925, 870 NYS2d 450 [2d Dept 2008])."

Monday, February 13, 2017

TENANTS LIVING IN PREMISES THAT ARE BEING FORECLOSED



This is from the New York Courts website:

"When the plaintiff starts a foreclosure case against the owner of your home, the law says that the plaintiff must tell the tenants within 10 days. You may find out about the case by seeing a notice posted on the door to your building or the plaintiff may give you a copy of the foreclosure Summons and Complaint. Do not worry if your name is on the papers. This does not mean that you have to move out. Many things can happen:

 •The owner may settle the case and keep the property

 •The bank may not be able to prove its case

•The case may take a very long time, often even a year, and you may move before it is over

•The new owner may want to keep you as a tenant

•You may have the right to stay anyway

The point is, you don’t have to do anything right now.

During the foreclosure case, the owner is still in charge of keeping your home or apartment in livable condition and still collects rent and can start a case in Court against you. But, you can’t be evicted without a court order.

Whoever buys the building at a foreclosure sale can’t make you move out right away. The law says that the new owner (or the bank if the bank still owns the building) has rules to follow if the new owner wants to evict you. Whether the new owner wants to evict you or not, you should get a notice from the new owner. After the sale, you have to pay your rent to the new owner."

For more help or information, see  https://www.nycourts.gov/courthelp/Homes/foreclosureTenants.shtml

Friday, February 10, 2017

LAW - SOME HISTORY



In February 1840, former President John Quincy Adams began his oral arguments in front of the U.S. Supreme Court in United States v. Amistad.

Adams spoke to the court highlighting that it was a part of the judicial branch and not part of the executive. He introduced copies of correspondence between the Spanish government and the Secretary of State and criticized President Martin Van Buren for his assumption of unconstitutional powers in the case: 

"This review of all the proceedings of the Executive I have made with utmost pain, because it was necessary to bring it fully before your Honors, to show that the course of that department had been dictated, throughout, not by justice but by sympathy – and a sympathy the most partial and injust. And this sympathy prevailed to such a degree, among all the persons concerned in this business, as to have perverted their minds with regard to all the most sacred principles of law and right, on which the liberties of the United States are founded; and a course was pursued, from the beginning to the end, which was not only an outrage upon the persons whose lives and liberties were at stake, but hostile to the power and independence of the judiciary itself"

Wednesday, February 8, 2017

ACTIONS AGAINST UNLICENSED CONTRACTORS



The rules differ somewhat in the First and Second Department. This was discussed recently in MATTER OF MacNAMARA v. Edwards, 2016 NY Slip Op 32199 - NY: Supreme Court 2016:

"The established law of the Second Department is clear that a home improvement contractor who is unlicensed at the time of the performance of the work for which he or she seeks compensation forfeits the right to recover damages based on either breach of contract or quantum meruit (Flax v. Hommel, 40 AD3d 809, 810, 835 NYS2d 735, 736 [2d Dept. 2007]; accord Emergency Restoration Servs. Corp. v. Corrado, 109 AD3d 576, 577, 970 NYS2d 806, 807 [2d Dept. 2013][applying Suffolk County Code regulating unlicensed home improvement]; Racwell Const., LLC v. Manfredi, 61 AD3d 731, 732-33, 878 NYS2d 369, 371 [2d Dept. 2009][Westchester County]). Pursuant to CPLR 3015(e), a complaint that seeks to recover damages for breach of a home improvement contract or to recover in quantum meruit for home improvement services is subject to dismissal . . . if it does not allege compliance with the licensing requirement" (CMC Quality Concrete III, LLC v. Indriolo, 95 AD3d 924, 925-26, 944 NYS2d 253, 254-55 [2d Dept. 2012]).

Generally speaking the law of this department recognizes that a homeowner may seek restitution for payments actually made for work which was not performed or for defective work (Brite-N-Up, Inc. v. Reno, 7 AD3d 656, 657, 776 NYS2d 839, 840 [2d Dept. 2004]; Goldstein v. Gerbano, 158 A.D.2d 671, 552 N.Y.S.2d 44, 45 [2d Dept. 1990] [plaintiffs were entitled to rescind the contracts and to recover the amounts designated in the judgment as a result of the defendant's failure to perform]; Segrete v. Zimmerman, 67 AD2d 999, 1000, 413 NYS2d 732, 733 [2d Dept. 1979]; compare with Sutton v. Ohrbach, 198 AD2d 144, 144, 603 NYS2d 857, 857 [1st Dept. 1993][plaintiff may not use the statute as a sword to recoup monies already paid in exchange for the purportedly unlicensed services])."

Tuesday, February 7, 2017

WHEN DIVORCED PARENTS DO NOT AGREE ON ADHD TREATMENT



A few years ago the New York Times reported that "the zeal to find and treat every A.D.H.D. child has led to too many people with scant symptoms receiving the diagnosis and medication. The disorder is now the second most frequent long-term diagnosis made in children, narrowly trailing asthma, according to a New York Times analysis of C.D.C. data." Certainly, the question of "to medicate or not" can be an issue with divorced parents. Such was the case in MATTER OF ANDREA C. v. David B., 2017 NY Slip Op 223 - NY: Appellate Div., 3rd Dept. 2017:

"Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the divorced parents of a daughter (born in 2005). In June 2007, the parties stipulated to an order granting them joint legal custody of the child with primary physical placement to the mother and specified visitation to the father[1]. Although the parties thereafter expanded the father's visitation schedule on their own accord and, together with the father's new wife, often shared family dinners together, a growing disagreement began brewing between the mother and the father with respect to, among other things, day care arrangements for the child, her participation in various summer or holiday camps and the individualized services that were provided to her[2]. The parties' differences came to a head in 2013 when the mother had the child evaluated for attention deficit hyperactivity disorder (hereinafter ADHD) and a recommendation was made that the child receive a combination of medication and counseling; the mother "was very interested in doing a trial of medication" while the father "was totally against doing any medication."

Insofar as is relevant here, the mother commenced the first of these proceedings in September 2014 seeking sole custody of the child — citing, among other things, the father's lack of cooperation and interference with the child's service providers. The father cross-petitioned for sole custody — asserting, among other things, that the mother lacked the ability to effectively manage the child's behavioral issues and placed the child on ADHD medication without his consent — and also filed a violation petition alleging that the mother failed to adhere to the visitation schedule set forth in the June 2007 order. A lengthy fact-finding hearing ensued, during the course of which testimony was received from, among others, numerous service providers, counselors and school officials. Following a Lincoln hearing, Family Court issued a comprehensive and well-reasoned decision detailing, among other things, the parties' respective parental strengths and shortcomings, their level of acknowledgment of and philosophical differences regarding the appropriate treatment governing their daughter's disabilities, their respective abilities to engage and work in a cooperative fashion with the child's service providers, the quality of their respective home environments and their individual abilities to provide for their child's intellectual and emotional development. Upon due consideration thereof, Family Court awarded the mother sole legal and physical custody of the child with significant visitation to the father. This appeal by the father ensued.[3]

Initially, the father does not dispute that the marked deterioration in the parties' relationship and their corresponding inability and/or unwillingness to work with one another in a cooperative fashion for the sake of their child constitutes a change in circumstances for purposes of satisfying the mother's initial burden on her modification petition (see Matter of Rockhill v Kunzman, 141 AD3d 783, 784 [2016]). For those same reasons, there also is no question that joint legal custody no longer is feasible (see Matter of Zahuranec v Zahuranec, 132 AD3d 1175, 1176 [2015]). Hence, Family Court was tasked with fashioning a custodial arrangement that would best serve the child's interests. Upon reviewing the record as a whole and giving due consideration to all of the relevant factors, including "each parent's ability to furnish and maintain a suitable and stable home environment for the child, past performance, relative fitness, ability to guide and provide for the child's overall well-being and willingness to foster a positive relationship between the child and the other parent" (Matter of Bailey v Blair, 127 AD3d 1274, 1276 [2015] [internal quotation marks, brackets and citations omitted]; see Matter of Coleman v Millington, 140 AD3d 1245, 1247 [2016]), as well as the transcript of the Lincoln hearing (see Matter of Shokralla v Banks, 130 AD3d 1263, 1265 [2015]), we are satisfied that Family Court's decision to award sole legal and physical custody of the child to the mother and expansive visitation to the father is supported by a sound and substantial basis in the record.

Here, Family Court was faced with the difficult task of choosing between two loving but very different (and often obstinate) parents — each of whom possesses largely irreconcilable parenting philosophies (particularly with respect to their appreciation of and willingness to seek outside help with respect to their child's particular needs). According to the father, the mother lacks the intellectual capacity and coping skills to properly manage and resolve the child's behavioral issues, has effectively delegated her parental decision making to various third-party service providers and has demonstrated impaired parental judgment by excluding him from important decisions regarding the child's care and treatment. The mother, on the other hand, contends that the father refuses to accept the child's disabilities, does not support the recommended treatment for the child's diagnosed ADHD, is opposed to the child's enrollment in special education classes (preferring instead that she "act like a regular child") and has effectively abdicated his parental role by, among other things, failing to pursue needed services for the child — believing instead that he alone is capable of meeting her needs. Family Court, drawing upon its "superior vantage point of observing the demeanor of the witnesses who testified before it" (Matter of Ryan v Lewis, 135 AD3d 1135, 1137 [2016] [internal quotation marks and citation omitted]), largely credited the testimony of the mother — finding that the mother was "more aware of and involved with" the child's teachers and service providers, had made "thoughtful, rational[] decisions" with respect to the child's welfare and, on balance, was capable of providing "a greater continuity of care" for the child than the father (see Matter of Blagg v Downey, 132 AD3d 1078, 1080 [2015]). The court's findings in this regard are fully supported by the testimony of numerous service providers, who generally attested to the father's lack of involvement in, opposition to and/or disruptive behavior regarding their efforts to provide services to the child (see Matter of Virginia C. v Donald C., 114 AD3d 1032, 1034 [2014]). Although Family Court recognized the "important role" that the father played in the child's life, including providing necessary structure and discipline, it was, in the final analysis, the father's attitude, demeanor and parenting style that prompted Family Court to award sole legal and physical custody to the mother — taking care to ensure that the father had frequent and meaningful access to the child and, further, that he was kept apprised of the child's medical and service providers and received appropriate notices and updates from the child's school. Given that Family Court had the opportunity to observe the parties and their respective witnesses firsthand over the course of the lengthy fact-finding hearing, and inasmuch as the court's findings are supported by a sound and substantial basis in the record, we discern no basis upon which to disturb the custodial arrangement fashioned by Family Court. The father's remaining contentions are either unpreserved for our review or have been examined and found to be lacking in merit.


[1] The June 2007 order apparently was incorporated but not merged into the parties' 2009 judgment of divorce.
[2] The child, who has certain learning disabilities and developmental delays, began receiving early intervention services as an infant and, as of the time of the hearing, had an individualized education plan.
[3] During the pendency of this appeal, the parties filed competing modification petitions, in addition to certain enforcement and violation petitions. By order entered August 17, 2016, Family Court, among other things, dismissed the respective modification petitions, declining to alter the custodial arrangement set forth in its September 2015 order. Accordingly, this appeal is not moot."




Monday, February 6, 2017

MORTGAGE FORECLOSURE CLINIC TODAY



Today, Newsday reports: "A network of housing agencies and legal groups that has helped more than 20,000 Long Islanders facing foreclosure is pushing to get funding for its work included in next year’s state budget.The groups — including 15 Long Island organizations — are due to lose funding in September if they do not receive state support..."

One these groups is the Nassau County Bar Association.  I will be volunteering today, Monday February 6, 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

Friday, February 3, 2017

DOMESTIC VIOLENCE - NEW TOOL IN SUFFOLK COUNTY



 Newsday reports:

"Victims of domestic violence seeking temporary orders of protection in Suffolk can submit requests electronically and speak to judges via video conference under a new program, officials said Thursday. With the help of advocates and attorneys, individuals who suffer from domestic abuse can ask for orders of protection from remote sites, including shelters, hospitals, senior centers, and the First Precinct in West Babylon."

Thursday, February 2, 2017

SMALL CLAIMS COURT NOT AVAILABLE DUE TO FEDERAL ARBITRATION LAW



Johnson v. ACE HOME INSPECTIONS OF UPSTATE NEW YORK, 2017 NY Slip Op 50075 - NY: City Court 2017:


"This matter arises out of the Court's small claims jurisdiction (Uniform City Court Act § 1802). On August 7, 2015, Johnson entered into a home inspection agreement with Ace Home Inspections of Upstate New York. Johnson alleged that Ace failed to notice a defect in her roof that later manifested itself by leaking water into her home. She seeks damages in the amount of $600. At the commencement of the trial, Ace moved the Court to compel arbitration under the auspices of the Inspection Agreement (exhibit A). Under the heading of dispute resolution, the agreement contains the following clause: "In matters of dispute, the `client' agrees to submit to binding arbitration by mutually agreed upon party(s) [sic]" (id.).

Both state and federal law place mandates upon a court to compel arbitration under the appropriate circumstances. Initially the Court turns to New York law. CPLR 7503[1] provides:
A written agreement to submit any controversy thereafter arising or any existing controversy to arbitration is enforceable without regard to the justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award.
The Court finds CPLR 7503 inapplicable. Small claims jurisdiction provides an affordable forum for litigants to resolve claims based upon substantial justice (see Carlo v Koch-Matthews, 53 Misc 3d 466, 470 [City Ct 2016]). The Legislature granted unique access to the courthouse and once a statute so opens the courthouse door, it is not easily closed by contract. In Licitra v Gateway, Inc., 189 Misc 2d 721, 728 [City Ct 2001], the court held "the defendant cannot by `contract' deny access to small claims court without a specific and agreed-to written waiver by the consumer." In others words, for an arbitration clause to eradicate small claims jurisdiction, the parties must explicitly waive the right to proceed in small claims court. That did not happen here — the clause has no effect — at least under New York law.

While precedent neatly resolves the state issue, the federal issue is not so effortlessly disposed of (see generally David D. Siegel, McKinney's Cons Law of NY, Book 29A, UCCA §1801,2002 Practice Commentary [while noting that small claims jurisdiction is not superseded by state law, the federal issue is not addressed]). The Federal Arbitration Act ("FAA") (9 U.S.C. § 2) provides:
A written provision in any contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
To begin with, the Court cannot simply conclude that small claims matters trump the FAA. In a brigade of cases, the Supreme Court has made it unrelentingly clear that when state law prohibits outright the arbitration of a particular type of claim (like small claims), the analysis is straightforward: The conflicting rule is displaced by the FAA (AT & T Mobility LLC v. Concepcion, 563 U.S. 333 [2011]; Marmet Health Care Ctr., Inc. v. Brown, ___ U.S. ___ 132 S. Ct. 1201 [2012]; CompuCredit Corp. v. Greenwood, ___ U.S. ___ 132 S. Ct. 665 [2012]; Am. Exp. Co. v. Italian Colors Rest., ___ U.S. ___, 133 S. Ct. 2304 [2013]; Nitro-Lift Techs., L.L.C. v. Howard, ___ U.S. ___, 133 S. Ct. 500 [2012]; DIRECTV, Inc. v. Imburgia, ___ U.S. ___, 136 S. Ct. 463 [2015]).

The FAA, by its terms, applies only to transactions involving commerce. Consequently, the Court is left to inquire whether a home inspection involves interstate commerce. Congress' regulatory power extends to "those activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce" (United States v. Lopez, 514 U.S. 549, 558-559 [1995]). The Supreme Court has held that activities that "substantially affect" commerce may be regulated so long as they substantially affect interstate commerce in the aggregate, even if their individual impact on interstate commerce is minimal (see Wickard v. Filburn, 317 U.S. 111, 125 [1942] [holding that "even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce"]). Here the inspection facilitates the home's purchase and without a doubt such activity affects commerce.

Although, the FAA creates no exceptions for small claims,[1] under the particular circumstances of this case to enforce arbitration is to enforce absurdity. The cost of arbitration is prohibitive in relationship to the amount of Johnson's claim. Johnson must spend thousands of dollars to recover hundreds — she cannot win. Where the fee to arbitrate exceeds the maximum possible recovery, such clauses perpetrate an irreconcilable injustice — compelling arbitration in this case does not seem fair.

Nevertheless, while this Court may express its disagreement with an Act of Congress or a decision of the United States Supreme Court, it may not dissociate itself from federal law. The FAA is the law of the United States and must be faithfully adhered to (U.S. Const., Art. VI, cl. 2 ["The Judges in every State shall be bound" by "the Laws of the United States"]). It is the Court's hope, however, that the Congress will see fit to exempt small claims actions from the inflexible reins of the FAA. Until then however, the FAA controls. Arbitration will be compelled.

[1] There is a doctrine, the effective vindication doctrine, which is designed "to prevent [the] prospective waiver of a party's right to pursue statutory remedies," Italian Colors Rest., ___ U.S. at ___, 133 S Ct at 2310 (internal quotations and citations omitted). Johnson can find no relief under this doctrine. First, Johnson does not seek the invocation of a right created by statute; this is a common law contract case. Rather she seeks to invoke a forum, albeit one created by statute. The opening of a forum equates not with a substantive statutory right. Second, doctrine cannot be employed simply because it is not "economically feasible" for a plaintiff to enforce a statutory right individually (Id. at 2311 n. 4 [emphasis omitted]). Indeed, the Supreme Court has noted that "the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy" (Id. at 2311) (emphasis in the original)."

Wednesday, February 1, 2017

PROTECTING THE RIGHT TO COMPLAIN



On December 14, 2016, President Obama signed into effect the “Consumer Review Fairness Act of 2016” (the “Act”), making it more difficult for businesses to bring lawsuits over negative reviews.

From the House Report:

"This bill makes a provision of a form contract void from the inception if it: (1) prohibits or restricts an individual who is a party to such a contract from engaging in written, oral, or pictorial reviews, or other similar performance assessments or analyses of, including by electronic means, the goods, services, or conduct of a person that is also a party to the contract; (2) imposes penalties or fees against individuals who engage in such communications; or (3) transfers or requires the individual to transfer intellectual property rights in review or feedback content (with the exception of a nonexclusive license to use the content) in any otherwise lawful communications about such person or the goods or services provided by such person.

A "form contract" is a contract with standardized terms: (1) used by a person in the course of selling or leasing the person's goods or services, and (2) imposed on an individual without a meaningful opportunity to negotiate the standardized terms. The definition excludes an employer-employee or independent contractor contract.

The standards under which provisions of a form contract are considered void under this bill shall not be construed to affect:
  • legal duties of confidentiality;
  • civil actions for defamation, libel, or slander; or
  • a party's right to establish terms and conditions for the creation of photographs or video of such party's property when those photographs or video are created by an employee or independent contractor of a commercial entity and are solely intended to be used for commercial purposes by that entity.
Such standards also shall not be construed to affect any party's right to remove or refuse to display publicly on an Internet website or webpage owned, operated, or controlled by such party content that: (1) contains the personal information or likeness of another person or is libelous, harassing, abusive, obscene, vulgar, sexually explicit, inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic; (2) is unrelated to the goods or services offered by or available at such party's website; or (3) is clearly false or misleading.

A provision shall not be considered void under this bill to the extent that it prohibits disclosure or submission of, or reserves the right of a person or business that hosts online consumer reviews or comments to remove, certain: (1) trade secrets or commercial or financial information; (2) personnel and medical files; (3) law enforcement records; (4) content that is unlawful or that a party has a right to remove or refuse to display; or (5) computer viruses or other potentially damaging computer code, processes, applications, or files.

A person is prohibited from offering form contracts containing a provision that is considered void under this bill."

Tuesday, January 31, 2017

ON USED CARS - NEW YORK STATE RULES



As a general rule, New York's Used Car Lemon Law provides a legal remedy for buyers or lessees of used cars that turn out to be lemons. The law requires dealers to give you a written warranty. Under this warranty, a dealer must repair, free of charge, any defects in covered parts or, at the dealer's option, reimburse you for the reasonable costs of such repairs. If the dealer is unable to repair the car after a reasonable number of attempts, you are entitled to a full refund of the purchase price. No used car covered by this law can be sold by a dealer "as is."

The consumer bill of rights can be found at this link: https://ag.ny.gov/sites/default/files/pdfs/bureaus/consumer_fraud/usedcar_lemon_bill_rights.pdf

Monday, January 30, 2017

ON USED CARS - THE FEDERAL RULES



The Used Car Rule, formally known as the Used Motor Vehicle Trade Regulation Rule, has been in effect since 1985. It requires car dealers to display a window sticker, known as a Buyers Guide, on the used cars they offer for sale. The Buyers Guide discloses whether the dealer offers a warranty and, if so, its terms and conditions, including the duration of the coverage, the percentage of total repair costs the dealer will pay, and which vehicle systems the warranty covers. In states that do not permit sales of used cars “as is,” or without warranties, dealers must display an alternative version of the Buyers Guide.

For more information, see https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/used-car-rule

Friday, January 27, 2017

LENGTH OF MARRIAGE OR LENGTH OF RELATIONSHIP - POST DIVORCE MAINTENANCE



Under DRL 236-B, the duration of post-divorce maintenance can be determined by an advisory durational formula directly linked to the "length of marriage" which is defined as running from the date of marriage until the date of commencement of the divorce action. But what if the couple have been living jointly for a considerable length of time but only married for several years? That issue was somewhat faced in KAPROV v. STALINSKY, 2016 NY Slip Op 8509 - NY: Appellate Div., 2nd Dept. 2016 where the couple were married in 1998 but have lived together prior thereto for around 14 years:


"A party's maintenance obligation is retroactive to the date the application for maintenance was first made (see Domestic Relations Law § 236 [B][6][a]). However, the party is also entitled to a credit for any amount of temporary maintenance . . . already paid" (Huffman v Huffman, 84 AD3d 875, 876). Here, in arguing that the maintenance award is out of proportion to the duration of the marriage, the husband fails to recognize that, pursuant to the version of Domestic Relations Law § 236(B)(6)(a) in effect at the time of the commencement of this action, one of the factors a court should take into account in deciding the amount and duration of a maintenance award is "the existence and duration of a pre-marital joint household" (Domestic Relations Law § 236 [B][6][a][6]). The wife testified that the couple lived together from 1984 to 2010, approximately 26 years. Thus, an 11-year award of maintenance is not out of proportion with the duration of the joint household. "The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting'" (Groesbeck v Groesbeck, 51 AD3d 722, quoting Sirgant v Sirgant, 43 AD3d 1034, 1035). "The amount and duration of maintenance is committed to the sound discretion of the trial court, and each case is to be decided on its own unique facts" (Divan v Divan, 135 AD3d 807, 809; see Lamparillo v Lamparillo, 130 AD3d 580, 581; Heydt-Benjamin v Heydt-Benjamin, 127 AD3d 814, 815). The maintenance award was appropriate for the wife to become self-supporting given the factors involved, including the duration of the pre-marital joint household, as well as the wife's age, absence from the workforce, reduced earning capacity, and limited education (see Domestic Relations Law § 236[B][6][a])."

NOTE - Even under the new guidelines, DRL 236 (B) (g) (e) provides: "(1) The court shall order the post-divorce maintenance guideline obligation up to the income cap in accordance with paragraph c of this subdivision, unless the court finds that the post-divorce maintenance guideline obligation is unjust or inappropriate, which finding shall be based upon consideration of any one or more of the following factors, and adjusts the post-divorce maintenance guideline obligation accordingly based upon such consideration:... (f) the existence and duration of a pre-marital joint household or a pre-divorce separate household;"

Thursday, January 26, 2017

MENTAL HEALTH AND ATTORNEYS



Around this time last year, an article was published in the Journal of Addiction Medicine regarding a study designed "to measure the prevalence of substance use and mental health concerns among licensed attorneys, their awareness and utilization of treatment services, and what, if any, barriers exist between them and the services they may need."

See http://journals.lww.com/journaladdictionmedicine/Fulltext/2016/02000/The_Prevalence_of_Substance_Use_and_Other_Mental.8.aspx

Wednesday, January 25, 2017

ILLEGAL COMMERCIAL LEASES



JACK KELLY PARTNERS LLC v. ZEGELSTEIN, 2014 NY Slip Op 33673 - NY: Supreme Court 2014:

"It is well settled that a mere lack of certificate of occupancy for the use contemplated by a lease agreement does not absolve a tenant from its obligation to pay rent and justify abandonment of the demised premises, nor does the lack of conforming certificate of occupancy alone cause the lease to be void for illegality or result in a failure of consideration (see 56-70 58th St. Holding Corp. v Fedders-Quigan Corp., 5 NY2d 557 [1959]; Jordache Enters. v Gettinger Assoc., 176 AD2d 616 [1st Dept 1991]; see also Silver v Moe's Pizza, 121 AD2d 376 [2d Dept 1986]; Cutler-Hammer, Inc. v One Lincoln Assoc., 79 AD2d 512 [1st Dept 1980]; Shawkat v Malak, 38 Misc 3d 52, 54 [NY App Term 2013]). The cases are also legion in which the courts held that even if the certificate of occupancy and zoning regulations preclude the tenant from using the premises for the purpose specified in the lease, this does not absolve the tenant of its obligation to pay rent for the period of time when the tenant has occupied the premises, including where the landlord made no representation concerning the certificate of occupancy for the intended use under the lease (see e.g. Phillips & Huyler Assoc. v Flynn, 225 AD2d 475 [1st Dept 1996]; Only Props., LLC v Cavlak, 30 Misc 3d 129[A], 2010 NY Slip Op 52300[U] [NY Sup App Term 2010]; All Metro Corp. v Fit Laundromat, 13 Misc 3d 131[A], 2006 NY Slip Op 51858[U] [NY Sup Ct App Term 2006]). Therefore, the Court finds that plaintiff's argument that the lease is illegal for want of a conforming certificate of occupancy must fail. Plaintiff's argument regarding the failure of consideration is also unavailing for the reasons stated below.

Plaintiff asserts that there exists no support in the documentary evidence submitted which placed on plaintiff the obligation to take affirmative steps to revise or alter the certificate of occupancy. In response, defendants point out to paragraph 57(D) of the lease and the 2009 Order. In the 2009 Order, the Court already determined[1] that paragraph 57(D)[2] places the responsibility on plaintiff to seek a change of the certificate of occupancy for the demised premises, which is part of the certificate of occupancy for the entire building (Sava Affirm., exhibit J).

Notwithstanding the foregoing, plaintiff avers that nowhere in the lease is an affirmative obligation placed on plaintiff to procure a certificate of occupancy. Plaintiff argues further that to the extent that any ambiguity as to the meaning of the lease provisions can be found, such ambiguity must be resolved against the landlord, who drafted the lease. These arguments are defeated by the plain language of paragraph 65 of the lease agreement, which provides that "[the] Lease shall be deemed to have been jointly prepared by both the Landlord and Tenant and any ambiguities or uncertainties herein shall not be construed for or against either of them" (Sava Affirm., exhibit R, at page 18 of 21) (see also Madison Ave. Leasehold, LLC v Madison Bentley Assoc. LLC, 8 NY3d 59, 66 [2006] [a commercial lease should be enforced according to its terms when parties set down their agreement in a clear, complete document and extrinsic and parol evidence is not admissible to create an ambiguity]; Farrell Lines v City of New York, 30 NY2d 76, 165 [1972] ["(a)n agreement of lease possesses no peculiar sancity requiring the application of rules of construction different from those applicable to an ordinary contract"] [internal quotes omitted]).

Furthermore, defendants made no covenant in the lease agreement to procure a conforming certificate of occupancy, or obtain a zoning variance, and plaintiff enjoyed undisturbed right to possession of the demised premises (see Silver, 121 AD2d at 377-378, citing 56-70 58th St. Holding Corp. v Fedders-Quigan Corp., 5 NY2d 557 [1959]; cf. Multiple Dwelling Law § 302[1][b]; Kosher Konvenience, Inc. v Ferguson Realty Corp., 171 AD2d 650 [2d Dept 1991]). Moreover, the terms of the lease do not condition plaintiff's promise to pay the rent on either explicit or implied covenant that defendants have a proper certificate of occupancy for the demised premises (see Raner v Godberg, 244 NY 438 [1927]). In the 2009 Order, this Court held that the lease clearly delivered the premises in "as is" condition and paragraph 57(C) of the lease, should have placed plaintiff on notice to check the certificate of occupancy, and applicable laws, codes, and zoning regulations (Sava Affirm., exhibit J, at page 3).

Paragraph 57(C) provides that:
Landlord makes no representations that the use to be made of the Demised Premises, as specified herein, is consistent with permitted uses under the existing certificate of occupancy issue[d] for the Building. In the event that such use is inconsistent with said certificate of occupancy and further, that the Department of Buildings or other governmental agency having jurisdiction, issues a violation based on such inconsistent use, this Lease, shall be terminable by Landlord in accordance with the provisions for notice set forth herein, on thirty (30) days' prior written notice to Tenant (Sava Affirm., exhibit R, at page 12 of 21).
As defendants correctly contend, paragraph 57(C) of the lease contains disclaimer of warranty that the contracted for use of the premises, as strictly specified in the lease, is consistent with the permitted uses under the existing certificate of occupancy for the demised premises (see Sava Affirm., exhibit R, at page 12 of 21). Based on this language of the lease, defendants argue, that plaintiff's claim of fraud and misrepresentation is deficient and cannot sustain the cause of action for rescission. Once again, in the 2009 Order, this Court found that the documentary evidence conclusively established a defense, as a matter of law, to plaintiff's claim that the landlord breached an alleged promise that the premises may be legally used and occupied as a commercial space, and to plaintiff's claim that defendants falsely represented that the premises could be used for commercial purpose (Sava Affirm., exhibit R, at page 3). "Such a specific disclaimer destroys the allegations in plaintiff's complaint that the agreement was executed in reliance upon these contrary oral representations" (Danann Realty Corp. v Harris, 5 NY2d 317, 320-321 [1951]).

Monday, January 23, 2017

MORTGAGE FORECLOSURE CLINIC



I will be volunteering today, Monday January 23, 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