Wednesday, July 18, 2018

MORTGAGE FORECLOSURE - HOMEOWNER COULD NOT VACATE DEFAULT



HSBC Bank USA, N.A. v Daniels, 2018 NY Slip Op 05145, Decided on July 11, 2018, Appellate Division, Second Department:

"On June 17, 2015, the defendants moved, inter alia, pursuant to CPLR 5015(a)(1) and (4) to vacate the order and judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction and for failure to comply with RPAPL 1304 or, in the alternative, for leave to serve a late answer. Among other things, the defendants argued that the Supreme Court lacked personal jurisdiction over them because Daniels was not properly served with the summons and complaint. In an order dated October 29, 2015, the court denied the motion without a hearing. The defendants appeal.

Where, as here, a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), and seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), a court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1) (see Wachovia Bank, N.A. v Greenberg, 138 AD3d 984, 985; HSBC Bank USA, N.A. v Dalessio, 137 AD3d 860, 862-863; Wells Fargo Bank, NA v Besemer, 131 AD3d 1047; Roberts v Anka, 45 AD3d 752, 753).

Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308 (see Washington Mut. Bank v Murphy, 127 AD3d 1167, 1174; Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 896-897). "[T]he failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void" (McMullen v Arnone, 79 AD2d 496, 499; see Feinstein v Bergner, 48 NY2d 234, 241; Krisilas v Mount Sinai Hosp., 63 AD3d 887, 889).

Ordinarily, the affidavit of a process server constitutes a prima facie showing of proper service (see Citimortgage, Inc. v Baser, 137 AD3d 735, 736; American Home Mtge. Servicing, Inc. v Gbede, 127 AD3d 1004, 1005; Velez v Forcelli, 125 AD3d 643, 644). "However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server's affidavit, and necessitates an evidentiary hearing" (Deutsche Bank Natl. Trust Co. v DaCosta, 97 AD3d 630, 631; see Wells Fargo Bank, N.A. v Christie, 83 AD3d 824, 825).

Here, the process server's affidavit of service established, prima facie, that Daniels was served with the summons and complaint pursuant to CPLR 308(4) (see Wells Fargo Bank, NA v Besemer, 131 AD3d at 1048; HSBC Bank USA v Desrouilleres, 128 AD3d 1013, 1014; JP Morgan Chase Bank, N.A. v Baldi, 128 AD3d 777, 777-778). Contrary to the defendants' contention, Daniels' conclusory denial of service was insufficient to rebut the presumption of proper service established by the affidavit of service (see HSBC Bank USA, N.A. v Dalessio, 137 AD3d at 863; HSBC Bank USA v Desrouilleres, 128 AD3d at 1014; U.S. Bank N.A. v Hasan, 126 AD3d 683, 684). Verwayne did not submit any sworn denial of service. Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was pursuant to CPLR 5015(a)(4).

To the extent that the motion sought vacatur pursuant to CPLR 5015(a)(1), the defendants were not entitled to such relief since they failed to set forth a reasonable excuse for their default, and it is, therefore, unnecessary to consider whether they sufficiently demonstrated a potentially meritorious defense, including the plaintiff's alleged failure to satisfy the requirements of RPAPL 1304 (see Bank of Am., N.A. v Agarwal, 150 AD3d 651, 652)."

Tuesday, July 17, 2018

MORTGAGE FORECLOSURE - BANK DID NOT FAIL TO TAKE ACTION



Bank of Am., N.A. v Lucido, 2018 NY Slip Op 05130, Decided on July 11, 2018, Appellate Division, Second Department:

"The plaintiff commenced this mortgage foreclosure action in January 2009 against, among others, the defendants Galina Lucido and John A. Lucido (hereinafter together the defendants). In December 2009, following the defendants' failure to answer the complaint, the Supreme Court granted the plaintiff's unopposed motion for an order of reference. The plaintiff thereafter moved for a judgment of foreclosure of sale, but then withdrew the motion on April 12, 2011. In a judgment dated April 16, 2012, the Supreme Court sanctioned the plaintiff for failing to negotiate in good faith during mandatory foreclosure settlement conferences (see CPLR 3408). On the plaintiff's appeal, in a decision and order dated February 13, 2014, this Court reversed the judgment (see Bank of Am., N.A. v Lucido, 114 AD3d 714). Subsequently, the plaintiff moved, inter alia, for a judgment of foreclosure and sale. In an order dated May 10, 2016, the Supreme Court, sua sponte, directed dismissal of the complaint pursuant to CPLR 3215(c) and cancellation of the notice of pendency, and, in effect, denied the plaintiff's motion as academic. The plaintiff appeals. We reverse.

CPLR 3215(c) provides that "[i]f the plaintiff fails to take proceedings for the entry [*2]of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c) (see HSBC Bank USA, N.A. v Roldan, 155 AD3d 942, 944; Aurora Loan Servs., LLC v Gross, 139 AD3d 772, 773; US Bank N.A. v Dorestant, 131 AD3d 467, 469). So long as the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint pursuant to CPLR 3215(c) (see HSBC Bank USA, N.A. v Roldan, 155 AD3d at 944; HSBC Bank USA N.A. v Traore, 139 AD3d 1009, 1010; Wells Fargo Bank, N.A. v Combs, 128 AD3d 812, 813). Here, the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference (see RPAPL 1321[1]) within one year of the defendants' default (see HSBC Bank USA, N.A. v Roldan, 155 AD3d at 944; Aurora Loan Servs., LLC v Gross, 139 AD3d at 774; Klein v St. Cyprian Props., Inc., 100 AD3d 711, 712). There was no evidence that the plaintiff intended to abandon the action. Accordingly, the Supreme Court improvidently exercised its discretion in sua sponte directing dismissal of the complaint pursuant to CPLR 3215(c) and cancellation of the notice of pendency (see Aurora Loan Servs., LLC v Gross, 139 AD3d at 774; Citimortgage, Inc. v Espinal, 136 AD3d 857, 859)."

Monday, July 16, 2018

DIVORCE - INTRODUCING TAPED PHONE CALL



Perlman v Perlman, 2018 NY Slip Op 05212, Decided on July 11, 2018, Appellate Division, Second Department:

"We agree with the Supreme Court's determination denying that branch of the defendant's motion which was to preclude the plaintiff from offering a tape recording of a telephone call into evidence at trial. Generally, "[t]he contents of any overheard or recorded communication, conversation or discussion, or evidence derived therefrom, which has been obtained by conduct constituting the crime of eavesdropping, as defined by section 250.05 of the penal law, may not be received in evidence in any trial, hearing or proceeding before any court or grand jury" (CPLR 4506 [1]). "A person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication" (Penal Law § 250.05). Here, the plaintiff's actions in recording a telephone call, which apparently took place between the defendant and the children after the defendant requested that the children place the call on speaker so that the plaintiff could hear what he had to say, did not constitute the crime of eavesdropping. The plaintiff's actions did not amount to "mechanical overhearing of a conversation[,]" as she was present at, and a party to, the conversation at issue (Penal Law § 250.00 [2]; cf. People v Badalamenti, 27 NY3d 423, 432). Thus, we agree with the court's determination that the recordings of that conversation were admissible pursuant to CPLR 4506(1) (see CPLR 4506[1]; Penal Law §§ 250.05, 250.00 [1], [2])."

Friday, July 13, 2018

MORTGAGE FORECLOSURE - RPAPL 1304 DEFENSE UPHELD



U.S. Bank N.A. v Henderson, 2018 NY Slip Op 05071, Decided on July 5, 2018, Appellate Division, Second Department:

"Furthermore, in a residential foreclosure action, a plaintiff moving for summary judgment must tender "sufficient evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 1304" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106). RPAPL 1304(1), which applies to home loans, provides that "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." The statute sets forth the requirements for the content of such notice (see id.), and provides that such notice must be sent by registered or certified mail and by first-class mail to the last known address of the borrower and to the subject residence (see RPAPL 1304[2]). "[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 106; see Citibank, N.A. v Wood, 150 AD3d 813, 814; Flagstar Bank, FSB v Damaro, 145 AD3d 858, 860).

Here, the plaintiff failed to establish, prima facie, that it complied with the requirements of RPAPL 1304 (see M & T Bank v Joseph, 152 AD3d 579; CitiMortgage, Inc. v Pappas, 147 AD3d 900; Bank of N.Y. Mellon v Aquino, 131 AD3d 1186, 1186; Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 910). In moving for summary judgment, the plaintiff submitted the affidavit of Timeka J. Motlow, a representative of its loan servicer, who stated that "[t]he records I have reviewed indicate that the attached 90-day pre-foreclosure notice was mailed to [the defendant] at the property address of the real estate at issue herein and to the last know address of the borrower(s)." However, Motlow did not have personal knowledge of the purported mailing and failed to make the requisite showing that she was familiar with the plaintiff's mailing practices and procedures, and therefore did not establish "proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed" (Wells Fargo Bank, N.A. v Trupia, 150 AD3d 1049, 1050-1051; see Wells Fargo Bank, N.A. v Lewczuk, 153 AD3d 890; Citibank, N.A. v Wood, 150 AD3d 813; CitiMortgage, Inc. v Pappas, 147 AD3d at 901)."

Thursday, July 12, 2018

CHILD CUSTODY - RELOCATION LEADS TO CHANGE OF CUSTODY



Matter of Lyons v Sepe, 2018 NY Slip Op 05042, Decided on July 5, 2018, Appellate Division, Second Department:

"Jessica Lyons (hereinafter the mother) and Nicholas Sepe (hereinafter the father), who never married each other, have one child together, born in 2007. In an order dated January 16, 2014, the Family Court, Suffolk County, awarded the parties joint legal custody of the child and the mother was awarded residential custody, while the father was awarded parental access with the child. In addition, the order prohibited the mother from relocating beyond a 20-mile radius from her Kings Park residence without the written consent of the father or a court order.

In or about March 2017, the father refused to consent to the mother relocating with the child to the Rochester area. In April 2017, the mother filed a petition to modify the January 16, 2014, order so as to permit her to relocate with the child to the Rochester area. The mother alleged, inter alia, that relocation would be in the child's best interests given an increase in the mother's household income and reduced costs of living, and the child's bond with his half-siblings. In May 2017, the father filed his own petition to modify the January 16, 2014, order so as to award him residential custody of the child, alleging, inter alia, that the proposed relocation of the child would have a detrimental impact on his parental access with the child.

The mother relocated to Pittsford on July 1, 2017. After a hearing held in August 2017, the Family Court denied the mother's petition, granted the father's petition, and set forth a parental access schedule. The mother appeals.

" A parent seeking leave to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child's best interests'" (Matter of Teel v Minus, 152 AD3d 705, 705, quoting Matter of Caruso v Cruz, 114 AD3d 769, 771; see Matter of Detwiler v Detwiler, 145 AD3d 778, 779). In determining whether relocation is in the best interests of the child, courts are "free to consider and give appropriate weight to all of the factors that may be relevant to the determination" (Matter of Tropea v Tropea, 87 NY2d 727, 740; see Matter of Teel v Minus, 152 AD3d at 705). These factors include, but are not limited to, "each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements" (Matter of Tropea v Tropea, 87 NY2d at 740-741). "[N]o single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome" (id. at 738). However, the impact of the move on the relationship between the child and the noncustodial parent remains a central concern (see id. at 741; Matter of Francis-Miller v Miller, 111 AD3d 632, 635).

"In relocation proceedings, this Court's authority is as broad as that of the hearing court" (Matter of Caruso v Cruz, 114 AD3d at 771). However, the Family Court's assessment of the witnesses' demeanor and credibility is accorded considerable deference and a relocation determination will be upheld if supported by a sound and substantial basis in the record (see Matter of Detwiler v Detwiler, 145 AD3d at 780; Matter of Ventura v Huggins, 141 AD3d 600, 601).

Here, contrary to the mother's contentions, the record demonstrates that the Family Court, which was familiar with the parties from prior proceedings, appropriately considered and gave suitable weight to all of the relevant factors (see Matter of Tropea v Tropea, 87 NY2d at 740; Matter of Lopez v Chasquetti, 148 AD3d 1151, 1152; Matter of Detwiler v Detwiler, 145 AD3d at 780; Matter of Gravel v Makrianes, 120 AD3d 815, 816). Although the mother proved that the child's life would be enhanced economically, the mother failed to prove by a preponderance of the evidence that the child's life would also be enhanced emotionally and educationally by the move (see Matter of Teel v Minus, 152 AD3d at 706; Matter of Gravel v Makrianes, 120 AD3d at 817). The mother also failed to show that relocation "would not have a negative impact on the quantity and quality of the child's future contact with the father," who had exercised most of his parental access rights and indicated that he desired to continue participating in the child's life (Matter of Lopez v Chasquetti, 148 AD3d at 1153; see Matter of Teel v Minus, 152 AD3d at 706; Matter of Gravel v Makrianes, 120 AD3d at 817; Matter of Karen H. v Maurice G., 101 AD3d 1005, 1007; Matter of McBryde v Bodden, 91 AD3d 781, 782).

In light of the mother's acceptance of a job promotion and relocation to Pittsford, and the adverse impact of the move with respect to the father's parental access with the child, the father demonstrated that there was a sufficient change in circumstances since the initial custody determination such that modification so as to award him residential custody was in the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 173-173; Matter of Coon v Sanabria, 158 AD3d 756, 757; Matter of Lopez v Chasquetti, 148 AD3d at 1153; Matter of Detwiler v Detwiler, 145 AD3d at 781; Matter of Cornejo v Salas, 110 AD3d 1068, 1070). While not determinative, this conclusion is consistent also with the position advanced by the attorney for the child both at the hearing and on appeal (see Matter of Cisse v Graham, 120 AD3d 801, 806, affd 26 NY3d 1103; Matter of Kozlowski v Mangialino, 36 AD3d 916, 917).

Moreover, contrary to the mother's contention, the Family Court providently exercised its discretion in crafting the parental access schedule, which was in the best interests of the child and was supported by a sound and substantial basis in the record (see Matter of Morris v Morris, 156 AD3d 702, 704; Chamberlain v Chamberlain, 24 AD3d 589, 592). In addition, the record "demonstrates that the parties are not so antagonistic, embattled, and unable to set aside their differences that they cannot" agree on additional parental access time that would be in the best interests of the child (Matter of Retamozzo v Moyer, 91 AD3d 957, 959)."

Wednesday, July 11, 2018

CHILD SUPPORT - PROVING PARENT DID NOT WILLFULLY VIOLATE ORDER



Matter of Pacheco v Pacheco, 2018 NY Slip Op 05048, Decided on July 5, 2018, Appellate Division, Second Department:

"The parties were divorced in 2008 and are the parents of one child, born in 2005. By order dated November 14, 2014, the father's previous child support obligation was increased from the sum of $1,570 per month to the sum of $2,430 per month upon the consent of the parties. On April 21, 2015, the mother filed a petition alleging that the father violated the order dated November 14, 2014, and sought payment of retroactive child support arrears and an award of counsel fees. On May 17, 2016, the Support Magistrate set retroactive arrears and scheduled a hearing on the issues of willfulness and counsel fees. In an order dated April 4, 2017, the Support Magistrate found, after the hearing, that the father did not willfully violate the order dated November 14, 2014, and thereupon denied the mother's motion for an award of counsel fees. In an order dated June 7, 2017, the Family Court denied the mother's objections to the order dated April 4, 2017. The mother appeals.

The Family Court may allow the payment of counsel fees to the attorney representing the petitioner at any stage of a proceeding to modify or enforce an order (see Family Ct Act § 438[a]; Matter of Heintzman v Heintzman, 157 AD3d 682, 692; Matter of Nieves-Ford v Gordon, 47 AD3d 936, 937). Absent a finding that nonpayment was willful, an award of counsel fees is a matter left to the sound discretion of the Family Court (see Matter of Westergaard v Westergaard, 106 AD3d 926; Matter of Nieves-Ford v Gordon, 47 AD3d at 937). As with an award of counsel fees made pursuant to Domestic Relations Law § 237(b), the court must base its decision primarily upon both parties' ability to pay, the nature and extent of the services required to deal with the support dispute, and the reasonableness of their performance under the circumstances (see Matter of Heintzman v Heintzman, 157 AD3d at 693; Matter of Nieves-Ford v Gordon, 47 AD3d at 937; Matter of Barnes [*2]v Barnes, 54 AD2d 963). Great deference should be given to the credibility determinations of the Support Magistrate, who was in the best position to assess the credibility of the witnesses (see Matter of Julianska v Majewski, 78 AD3d 1182, 1183; Matter of Kennedy v Ventimiglia, 73 AD3d 1066, 1067; Matter of Musarra v Musarra, 28 AD3d 668, 669).

Here, the father demonstrated that he did not willfully violate the order dated November 14, 2014. The father's testimony at the hearing and other evidence submitted by the father showed that there had been a decline in his income as well as an inability to pay for financial obligations such as the mortgage on his residence and outstanding bills. The Support Magistrate's findings regarding the father's income were based on credibility determinations and were supported by the record (see Matter of Julianska v Majewski, 78 AD3d at 1183). Therefore, the Support Magistrate providently exercised her discretion in declining to award counsel fees to the mother (see Matter of Heintzman v Heintzman, 157 AD3d at 692; O'Brien v O'Brien, 115 AD3d 720, 724; Matter of Nieves-Ford v Gordon, 47 AD3d at 937; cf. Matter of Wiener v Salamy, 142 AD3d 1179)."

Tuesday, July 10, 2018

DIVORCE - EQUITABLE NOT EQUAL



McCormack v McCormack, 2018 NY Slip Op 05032, Decided on July 5, 2018, Appellate Division, Second Department:

"Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in awarding the plaintiff a 65% distributive share of the defendant's tax-deferred annuity. " The trial court is vested with broad discretion in making an equitable distribution of marital property . . . and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed'" (Halley-Boyce v Boyce, 108 AD3d 503, 504, quoting Safi v Safi, 94 AD3d 737, 737). " Equitable distribution does not necessarily mean equal distribution'" (Halley-Boyce v Boyce, 108 AD3d at 504, quoting Michaelessi v Michaelessi, 59 AD3d 688, 689). The court properly took into consideration its finding that the defendant was deliberately evasive in his testimony (see Kerley v Kerley, 131 AD3d 1124), and that he diverted marital assets to support a second family for almost 10 years (see Renck v Renck, 131 AD3d 1146Sotnik v Zavilyansky, 101 AD3d 1102Altieri v Altieri, 35 AD3d 1093Coleman v Coleman, 284 AD2d 426; Southwick v Southwick, 202 AD2d 996)."

Monday, July 9, 2018

Friday, July 6, 2018

JOINT CUSTODY - WHEN PARTIES CANNOT AGREE ON EDUCATION



Hudson v Hudson, 2018 NY Slip Op 05025, Decided on July 5, 2018, Appellate Division, Second Department:

"The parties are the divorced parents of one child. They entered into a stipulation of settlement, which was incorporated, but not merged, into their June 10, 2014, judgment of divorce. The judgment of divorce awarded joint legal custody to both parents, with primary physical custody to the mother, the plaintiff. The parties' stipulation provided that the child "shall go to school within the jurisdiction of the [plaintiff's] residence based on physical custody, provided that she complies with the mileage conditions [established in the stipulation]." It is not disputed that the plaintiff has complied with the mileage conditions of the stipulation.

The child attended a pre-kindergarten program at a private school in Warwick, New York. However, the parties disagreed with respect to where the child would attend kindergarten. The plaintiff wanted the child to attend a public school in Vernon, New Jersey, within the township where she lives. The defendant wanted the child to continue to attend the school in Warwick. The parties were unable to resolve this disagreement, and as a result, the child attended kindergarten at both schools for a period of time.

In September 2016, the plaintiff moved, inter alia, to enforce the terms of the stipulation of settlement, and to direct that the child attend kindergarten at the Vernon school. The defendant opposed the plaintiff's motion, and cross-moved, inter alia, to modify the joint custody provision of the parties' judgment of divorce so as to award him sole physical and legal custody. [*2]In the order appealed from, the Supreme Court, inter alia, granted the plaintiff's motion and denied that branch of the defendant's cross motion which was to modify custody. The court found that the provision of the stipulation concerning the child's education was clear and unambiguous, and was in the plaintiff's favor. The defendant appeals.

"As with other contracts, when the terms of a separation agreement are clear and unambiguous, the general rule is that the intent of the parties is to be found within the four corners of the agreement" (Surlak v Surlak, 95 AD2d 371, 375; see Matter of Meccico v Meccico, 76 NY2d 822, 823-824; Rainbow v Swisher, 72 NY2d 106, 109; Nichols v Nichols, 306 NY 490, 496). "Whether an agreement is ambiguous is a question of law for the courts" (Kass v Kass, 91 NY2d 554, 566; see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162).

Contrary to the Supreme Court's finding, there is an ambiguity in the parties' stipulation of settlement concerning where the child would attend school, and it does not clearly evidence the parties' intent that she attend the local public school (see generally Nappy v Nappy, 40 AD3d 825, 826; Matter of Mahoney v Goggins, 12 AD3d 447, 448). Moreover, while priority will be accorded to a clause in a stipulation of settlement concerning education, the paramount concern is always the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171; Matter of Nehra v Uhlar, 43 NY2d 242, 251; Weisberger v Weisberger, 154 AD3d 41, 51; Matter of Awan v Awan, 63 AD3d 733, 734). In deciding the plaintiff's motion to enforce the education provision of the parties' stipulation, the Supreme Court should have rendered its determination based upon the child's best interests.

Furthermore, the Supreme Court erred in denying, without a hearing, that branch of the defendant's cross motion which was to modify the joint custody provision of the judgment of divorce. A joint custody arrangement can only work where there is harmony and cooperation between the parents; it should not be continued where the parties are unable to cooperate with each other with respect to their parental obligations such that joint custody is more harmful than beneficial to the child (see Braiman v Braiman, 44 NY2d 584, 587; Franco v Franco, 127 AD3d 810, 811; Robinson v Robinson, 111 AD2d 316, 318). Here, there was sufficient evidence to warrant a hearing to determine whether it was in the child's best interests to continue joint legal custody (see Franco v Franco, 127 AD3d at 811).

Thursday, July 5, 2018

UNEMPLOYMENT INSURANCE - QUITTING WHEN SUPERVISOR IS ABUSIVE



State of New York , Appellate Division Third Judicial Department, Decided and Entered: June 28, 2018,  # 525878, In the Matter of the Claim of NIEAMA BAXTER, Appellant:

""Whether a claimant has voluntarily left employment for good cause is a factual determination to be made by the Board, and its decision will not be disturbed if supported by substantial evidence" (Matter of Sheldon [Commissioner of Labor], 153 AD3d 1480, 1480 [2017] [internal quotation marks and citation omitted]; see Labor Law § 593 [1] [a]). The record reflects that, notwithstanding claimant's allegations of verbal abuse, claimant's supervisor, on at least two occasions, issued a corrective action to claimant regarding incomplete work. Claimant, in turn, spoke to an assistant human resources manager on at least one occasion about the allegedly unprofessional manner in which her supervisor addressed her. In response to her expressed concerns, claimant was repeatedly advised by human resources about how to file a formal internal complaint concerning her supervisor's alleged treatment of her; however, claimant acknowledged that she never filed a complaint, did not call the employee hotline that was also available to her to lodge a complaint, and failed to request an internal transfer. Moreover, the differing versions of what claimant told the assistant human resources manager presented a credibility issue that the Board was free to resolve in the employer's favor (see Matter of Baez [Commissioner of Labor], 126 AD3d 1211, 1212 [2015]). Furthermore, although the record demonstrates that claimant obtained treatment from a clinical social worker, who opined that claimant was suffering from job-related anxiety and depression, that therapist never advised claimant to quit her employment (see Matter of Bielak [Commissioner of Labor], 105 AD3d 1226, 1226 [2013]; Matter of Spaulding [Commissioner of Labor], 264 AD2d 881, 882 [1999]; Matter of Ikoli [Commissioner of Labor], 249 AD2d 673, 673 [1998]). Under the circumstances presented here, the Board's decision that claimant voluntarily left her employment without good cause is supported by substantial evidence, and it will not be disturbed."

Tuesday, July 3, 2018

TRANSFER OF PROPERTY TO AVOID CREDITORS - DANGER

Flores v Guambana, 2018 NY Slip Op 04699, Decided on June 27, 2018, Appellate Division, Second Department:

"A person who transfers property to another to be held in trust for the purpose of hindering, delaying, or defrauding creditors has unclean hands, and equity will not afford relief when he or she seeks the reconveyance of the property (see Pattison v Pattison, 301 NY 65, 74). Stated differently, "the fraudulent grantor cannot undo, for his [or her] own benefit, the transfer he [or she] has made" (Ford v Harrington, 16 NY 285, 287). Such agreements are not enforced "as a matter of public policy to protect the integrity of the court" (Festinger v Edrich, 32 AD3d 412, 414), and the court "will leave the parties where it finds them" (Pattison v Pattison, 301 NY at 74).

Here, we agree with the Supreme Court's determination, based on the allegations in the complaint, that the plaintiffs' alleged conveyance of real property to the defendant Moises M. Guambana was for the purpose of frustrating their creditors and, therefore, the alleged oral agreement for the reconveyance of the property was unenforceable (see Dolny v Borck, 61 AD3d 817, 818; Festinger v Edrich, 32 AD3d at 414; Moo Wei Wong v Shirley Wong, 293 AD2d 387, 387; Walker [*2]v Walker, 289 AD2d 225, 226). Accordingly, we agree with the court's determination to grant Guambana's motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him and to cancel the notice of pendency filed against the subject property."

Friday, June 29, 2018

SPEAKING TOMORROW




Society of Saint Vincent de Paul, St. Bernard's R.C. Church, 3100 Hempstead Tpke. Levittown, NY 11756 at 10am on free legal services offered by Nassau County Bar Association and other groups in Nassau County.

Thursday, June 28, 2018

EQUITABLE ESTOPPEL TO ESTABLISH STANDING FOR NON-BIOLOGICAL PARENT



Matter of K.G. v C.H., 2018 NY Slip Op 04683, Decided on June 26, 2018, Appellate Division, First Department, Gische J.:

"Although prior to Brooke the doctrine of equitable estoppel was not available to establish standing on behalf of nonbiological, nonadoptive parents, it has been relied upon by New York courts in resolving many family disputes involving children. For instance, the legal doctrine has been applied to prevent an adult from denying paternity where a child has justifiably relied upon the representations of a man that he is the father and a parent-child relationship has developed (Matter of Shondel J. v Mark D, 7 NY3d 320, 326 [2006]). It has been applied to prevent a mother from challenging her husband's paternity (Matter of Sharon GG. v Duane HH., 63 NY2d 859 [1984], affg 95 AD2d 466 [3d Dept 1983]). It has also been applied to prevent a biological father from asserting paternity when he has acquiesced in the establishment of a strong parent-child bond between the child and another man (Matter of Cecil R. v Rachel A., 102 AD3d 545, 546 [1st Dept 2013]). Recently, it was successfully invoked to prevent a sperm donor from asserting paternity to a child born in an intact marriage (Matter of Joseph O. v Danielle B., 158 AD3d 767 [2d Dept 2018]). A unifying characteristic of these cases is the protection of " the status interests of a child in an already recognized and operative parent-child relationship'" (Shondel, 7 NY3d at 327, quoting Matter of Baby Boy C., 84 NY2d 91, 102n [1994]). Equitable estoppel requires careful scrutiny of the child's relationship with the relevant adult and is ultimately based upon the best interest of the child (see Shondel at 326; see also Family Court Act § 418). Likewise, in the context of standing under Domestic Relations Law § 70, equitable estoppel concerns whether a child has a bonded and de facto parental relationship with a nonbiological, nonadoptive adult. The focus is and must be on the child (Brooke, 28 NY3d at 27). It is for this reason that the child's point of view is crucial whenever equitable estoppel is raised.[FN7]

…...

In view of our conclusion that the record is incomplete, we do not reach CH's argument that because CH did not consent to holding KG out as a parent, KG cannot prove equitable estoppel. While some courts in other jurisdictions consider consent of the biological/adoptive parent an outcome determinative factor in equitable estoppel cases (see e.g. Pitts v Moore, 90 A3d 1169, 1179 [Me Sup Jud Ct 2014]; Matter of Parentage of LB, 155 Wash 2d 679, 708, 122 P3d 161, 176 [2005], cert denied 516 US 975 [1995]; In re Custody of H.S.H.-K., 193 Wis 2d 649, 694-695, 533 NW2d 419, 435-436 [1995], cert denied 516 US 975 1995]), New York has not yet formulated any dispositive test. Judge Kaye, in her dissent in Alison D., generally posited that the test for someone claiming standing on the basis of loco parentis should require that the relationship with the child came into being with the consent of the biological or legal parent (77 NY2d at 661-662). Notwithstanding that Judge Kaye favored consent as a factor in determining issues of de facto parenthood, she also would have remanded the matter to the trial court to devise an actual test. Brooke, although liberally citing Judge Kaye's dissent, did not reach this issue all.

We recognize that not every loving relationship that a child has with an adult will confer standing under Domestic Relations Law § 70, no matter how close or committed. It requires a relationship that demonstrates the relevant adult's permanent, unequivocal, committed and responsible parental role in the child's life. The underpinning of an equitable estoppel inquiry is whether the actual relationship between the child and relevant adult rises to the level of parenthood. Anything less would interfere with the biological or adoptive parent's right to decide with whom his or her child may associate (Troxel v Granville, 530 US 57 [2000]; Brooke at 26 [recognizing that any expansion of the definition of parent must be appropriately narrow to account for the fundamental liberty rights of biological and adoptive parents]). Consent, whether express or implied, is an important consideration that bears upon the issue. It may be that in this case the issue of CH's consent becomes a predominant consideration in the ultimate determination of whether equitable estoppel can be established. We only hold that the record developed at trial does not permit us to make the full consideration necessary to finally determine the issue of equitable estoppel at this point."

Wednesday, June 27, 2018

AN ACTION FOR LEGAL FEES

Holtzman v Griffith, 2018 NY Slip Op 04540, Decided on June 20, 2018, Appellate Division, Second Department:

"In January 2009, the defendant retained the plaintiff to represent him in a divorce action commenced against him by his former wife. The divorce action culminated in a settlement. The plaintiff represented the defendant from January 2009 through June 2011, and periodically sent invoices to the defendant for legal services rendered in accordance with a retainer agreement executed by the defendant. The defendant received the invoices and made payments with respect thereto through October 22, 2010. Thereafter, he made no further payments to the plaintiff. When the defendant discharged the plaintiff in June 2011, there were outstanding invoices in the total sum of $18,581.50. The plaintiff commenced this action, inter alia, to recover on an account stated. The defendant answered and interposed counterclaims alleging legal malpractice against the plaintiff. The plaintiff moved for summary judgment on the cause of action for an account stated and dismissing the defendant's counterclaims. The Supreme Court granted the motion, and the defendant appeals.

"An account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness of the account items and the specific balance due'" (Bashian & Farber, LLP v Syms, 147 AD3d 714, 715, quoting Citibank [South Dakota], N.A. v Abraham, 138 AD3d 1053, 1056). "Although an account stated may be based on an express [*2]agreement between the parties as to the amount due, an agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account" (Citibank [South Dakota], N.A. v Abraham, 138 AD3d at 1056; see Fleetwood Agency, Inc. v Verde Elec. Corp., 85 AD3d 850). The "agreement" at the core of an account stated is independent of the underlying obligation between the parties (see Citibank [South Dakota], N.A. v Abraham, 138 AD3d at 1056; Citibank [S.D.] N.A. v Cutler, 112 AD3d 573).

Here, the plaintiff demonstrated her prima facie entitlement to judgment as a matter of law on the cause of action to recover legal fees on an account stated in the amount of $18,581.50, with interest from July 11, 2011 (see Bashian & Farber, LLP v Syms, 147 AD3d at 715). In opposition, the defendant failed to raise a triable issue of fact (see Langione, Catterson & Lofrumento, LLP v Schael, 148 AD3d 797). The plaintiff also demonstrated her prima facie entitlement to judgment as a matter of law dismissing the defendant's counterclaims. The plaintiff's submissions demonstrated that in representing the defendant, who was also the defendant in the divorce action, she exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the stipulation of settlement executed by the defendant in the divorce action was not the product of any mistakes by the plaintiff (see Schiff v Sallah Law Firm, P.C., 128 AD3d 668, 669). The stipulation of settlement recited, among other things, that the defendant reviewed and understood its terms, had an opportunity to consult with counsel and have the legal and practical effect of the stipulation fully explained to him, executed the stipulation voluntarily, without coercion or pressure of any kind, and believed the stipulation to be fair and reasonable (see Chamberlain, D'Amanda, Oppenheimer & Greenfield, LLP v Wilson, 136 AD3d 1326, 1328; Schiff v Sallah Law Firm, P.C., 128 AD3d at 669). In opposition, the defendant failed to raise a triable issue of fact."

Tuesday, June 26, 2018

MORTGAGE FORECLOSURE - BANK MUST GIVE NOTICE TO DEFAULTING HOMEOWNER WHEN IT DELAYS



Citimortgage, Inc. v Reese, 2018 NY Slip Op 04527, Decided on June 20, 2018, Appellate Division, Second Department:

"In November 2009, the plaintiff commenced this action against Karen Reese (hereinafter the defendant), among others, to foreclose a mortgage on property located in Nassau County. The defendant failed to appear or answer the complaint. By order entered January 6, 2014, the Supreme Court granted the plaintiff's motion for an order of reference and referred the matter to a referee to ascertain and compute the amount due on the mortgage loan. The court subsequently, upon the plaintiff's motion, entered a judgment of foreclosure and sale on May 11, 2015.

By order to show cause dated August 17, 2015, the defendant moved, inter alia, to vacate the order of reference and the judgment of foreclosure and sale. The defendant alleged, among other things, that the plaintiff failed to serve her with the papers in support of its motions for an order of reference and for a judgment of foreclosure and sale. The plaintiff opposed the defendant's motion. By order entered November 4, 2015, the Supreme Court, inter alia, denied those branches of the defendant's motion which were to vacate the order of reference and the judgment of foreclosure and sale. The defendant appeals, and we reverse the order insofar as appealed from.

The defendant was entitled to notice of the plaintiff's motions for an order of reference and for a judgment of foreclosure and sale pursuant to CPLR 3215(g)(1), which provides, [*2]in relevant part, that such notice to a defendant who has not appeared is required "if more than one year has elapsed since the default." Here, the defendant defaulted in November 2009, and the plaintiff moved for an order of reference in March 2013, more than three years later. Contrary to the plaintiff's contention, the issue of its failure to comply with CPLR 3215(g)(1) may be raised for the first time on appeal (see Editorial Photocolor Archives v Granger Collection, 61 NY2d 517, 523; VNB N.Y., LLC v Y.M. Intercontinental Gem Corp., 154 AD3d 903, 906). The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void (see Wells Fargo Bank, N.A. v Whitelock, 154 AD3d 906, 907; Paulus v Christopher Vacirca, Inc., 128 AD3d 116, 117).

Accordingly, since the Supreme Court lacked jurisdiction to entertain the plaintiff's motions, it should have granted those branches of the defendant's motion which were to vacate the order of reference and the judgment of foreclosure and sale (see Paulus v Christopher Vacirca, Inc., 128 AD3d at 126)."

Monday, June 25, 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

Friday, June 22, 2018

WHEN SEEKING AN ORDER OF PRECLUSION - CPLR 3216 (3)



As noted in an earlier publication: "The CPLR 3126(3) motion to strike a pleading is premised upon establishing a willful failure to disclose; obviously, a movant’s regular and documented efforts to coax compliance must found the motion. Opposition to a CPLR 3126 motion is often premised upon a misunderstanding regarding disclosure obligations, arguing that violation of an order to disclose, or violation of a conditional order of preclusion, must serve as a predicate for a 3126 motion."

These issues were raised in Cannon v 111 Fulton St. Condominium, Inc., 2018 NY Slip Op 04523, Decided on June 20, 2018 Appellate Division, Second Department:

"When a litigant fails to comply with the terms of a conditional order of preclusion, the terms of that order become absolute (see Lee v Arellano, 18 AD3d 620, 621). However, the burden of establishing noncompliance rests with the party seeking preclusion (see Goodman, Rackower & Agiato v Lieberman, 260 AD2d 599, 600; see also Deer Park Assoc. v Town of Babylon, 121 AD3d 738, 740). Because the remedy of preclusion is the functional equivalent of striking a party's pleading (see Goodman, Rackower & Agiato v Lieberman, 260 AD2d at 600), it may not be granted where the party can demonstrate a justifiable excuse and a potentially meritorious cause of action or defense (see Vera v New York El. & Elec. Corp., 150 AD3d 927, 928).

Here, the so-ordered stipulation did not set a time, date, or place for the plaintiff's deposition, instead stating merely that the plaintiff's deposition was to be held "on or before" March 16, 2015, "at a time and location to be agreed upon." In light of this, the defendants' minimal assertion that the plaintiff failed to appear, which relied on the hearsay assertion of an unnamed employee of defense counsel, was insufficient to demonstrate that the plaintiff willfully and contumaciously violated the so-ordered stipulation (see Yong Soon Oh v Hua Jin, 124 AD3d 639, 641; Deer Park Assoc. v Town of Babylon, 121 AD3d at 740; Vaccaro v Weinstein, 117 AD3d 1033, 1034; Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923). Similarly, the defendants did not allege in [*3]their motion that the plaintiff had failed to provide the outstanding written discovery that was included in the so-ordered stipulation. Therefore, since the defendants failed to demonstrate that the plaintiff knew when and where to appear for her deposition, there was no evidence of ongoing willful or contumacious conduct (see PNC Bank, N.A. v Campbell, 142 AD3d 1148, 1149). Accordingly, we disagree with the Supreme Court's determination to grant that branch of the defendant's motion which was to preclude the plaintiff from offering evidence at trial."


Thursday, June 21, 2018

VACATING DEFAULT UNDER CPLR 317



Benchmark Farm, Inc. v Red Horse Farm, LLC, 2018 NY Slip Op 04522, Decided on June 20, 2018, Appellate Division, Second Department:

"A defendant who has been served with a summons other than by personal delivery may be allowed to defend the action within one year after he or she obtains knowledge of entry of the judgment upon a finding of the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense (see CPLR 317; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141-142; Dalton v Noah Constr. & Bldrs., Inc., 136 AD3d 730, 731).

Here, the defendant submitted the sworn affidavit of its principal, who stated that the defendant did not learn of the action or the judgment until August 2016, and that approximately one month thereafter it moved to vacate the judgment. The affidavit indicated that in 2003 the [*2]defendant's principal had moved his residence from the address on file with the Secretary of State and that neither the defendant nor its principal had received mail at that address since 2004. The affidavit also provided that the defendant's address had not been updated with the Secretary of State. There is no evidence in the record that the defendant or its agent received actual notice of the summons, which was delivered to the Secretary of State, in time to defend this action (see Dalton v Noah Constr. & Bldrs., Inc., 136 AD3d at 731; Schacker Real Estate Corp. v 553 Burnside Ave., LLC, 133 AD3d 586, 587; Gershman v Midtown Moving & Stor., Inc., 123 AD3d 974, 975). Although the defendant did not explain why it failed to update its address with the Secretary of State, "there is no necessity for a defendant moving pursuant to CPLR 317 to show a reasonable excuse' for its delay" (Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 141; see Gershman v Midtown Moving & Stor., Inc., 123 AD3d at 975), and there is no basis in the record to conclude that the defendant deliberately attempted to avoid service, especially since the plaintiff had knowledge of the defendant's actual business address and had written to the defendant at that address regarding the dispute that gave rise to the plaintiff's complaint (see Dalton v Noah Constr. & Bldrs., Inc., 136 AD3d at 731; Schacker Real Estate Corp. v 553 Burnside Ave., LLC, 133 AD3d at 587; Gershman v Midtown Moving & Stor., Inc., 123 AD3d at 975)."