Friday, June 23, 2017

RESTORED TO POSSESSION AFTER EVICTION



224-232 ATLANTIC AVENUE INVESTORS, LLC v. Gonzalez, 2017 NY Slip Op 50525 - NY: City Court, Civil Court 2017:

"The Court of Appeals has found that in appropriate circumstances the Civil Court may vacate the warrant of eviction and restore the tenant to possession even after the warrant has been executed. Matter of Brusco v Braun, 84 NY2d 674 (1994). The Court of Appeals in Matter of Brusco v Braun, supra cited Solack Estates v Goodman, for this proposition. Solack Estates v Goodman, 78 AD2d 512 (1st Dep't 1980). Solack Estates supra involved a non-payment proceeding where the elderly, long term tenant was vacationing in Florida and defaulted. The landlord obtained a default judgment against her, and she was subsequently evicted. The Appellate Division, First Department found that the Civil Court properly vacated the warrant of eviction and restored her to possession. Additionally, other factors considered by Courts to determine whether good cause exists to vacate the warrant of eviction and restore a tenant to possession are the length of the tenancy, rent regulatory status of the premises, health circumstances and age of the tenant. Parkchester Apts. Co. v Scott, 271 AD2d 273 (1st Dep't 2000).

Here, some of the facts of Solack Estates supra are analogous to the respondent who is eighty-one years old and has resided at the premises for forty-one years. She defaulted as a result of her hospitalization and medical condition. Subsequently, she was evicted and is seeking restoration on the basis of an excusable default, meritorious defense and good cause. First, she was never notified of the proceeding because she was in the hospital. Second, the meritorious defense is the petitioner's failure to comply with the Williams Consent Decree. Third, respondent is a long term, elderly, medically fragile, rent stabilized tenant. These are key factors Courts consider as good cause to vacate the warrant of eviction and restore a tenant to possession. Parkchester Apts. Co. v Scott, supra.
Moreover, respondent has made a greater showing beyond good cause for vacatur of the judgment and warrant based on petitioner's failure to comply with the Williams Consent Decree. Regardless of the circumstances, petitioner would not have been able to proceed with this non-payment because it failed to obtain certification from NYCHA before commencing the proceeding. Therefore, the judgment and warrant could not have been issued.

Based on the foregoing case law and respondent's ability to satisfy CPLR 5015 for vacatur of the default judgment standards, and factual circumstances, respondent has shown good cause to vacate the warrant of eviction and restore her to possession.

Accordingly, the respondent's post eviction order to show cause to be restored to the subject premises, vacate her default and dismiss the petition is granted. Respondent is awarded a judgment of possession as against petitioner and shall be restored to possession within two weeks of the date of this decision. This time frame will allow petitioner an opportunity to restore the subject premises to a habitable condition including the restoration of the kitchen cabinets, bathroom and kitchen fixtures. NYCCCA §110 (c). Upon such restoration, respondent shall be made whole. Since this was not a proper eviction, petitioner to remove respondent's possessions from the storage facility and return it to the subject premises forthwith at petitioner's expense."

Thursday, June 22, 2017

NEW YORK RISING EXTENSION



From the City of Long Beach website:

"The City of Long Beach is pleased to announce that NY Rising has modified the Housing Recovery Program's September 1st deadline, allowing for extra time if certain conditions are met.

On June 8th, the Long Beach City Council and City Manager sent a letter to Kaii Torrence, Director of Intergovernmental Affairs, Office of Storm Recovery, requesting that the September 1st deadline for homes to be raised be postponed due to the number of residents who were still in various stages of the NY Rising process, awaiting building permits, and/or trying to find a suitable temporary rental while their home is undergoing construction, and will not be able to elevate their homes before that date.

In response, if a homeowner believes that there is chance their home will not be able to pass an interim inspection (i.e., in the process of being raised) by the September 1st deadline, NY Rising will postpone the deadline until June 1, 2018 if the homeowner can provide the following documentation no later than June 30, 2017:
  • A permit from the local building department to commence elevation
  • A receipt from the local building department documenting an application for an elevation permit; or
  • The most recent correspondence from the local building department showing that an elevation permit was submitted"

Wednesday, June 21, 2017

NEW RULES - DIVORCE



Effective August 1, 2017, 22NYCRR §202.50(b) is amended to add a new section 202.50(b)(3) requiring that every Uncontested and Contested Judgment of Divorce contain certain decretal paragraphs, including one concerning the venue where post judgment applications for modification or enforcement in Supreme Court should be brought, viz., in the county where one of the parties resides or if there are minor children, in the county where one of the parties or the child resides.

Tuesday, June 20, 2017

ORDER OF PROTECTION AND HARASSMENT



DORIS F. v. ARI T., 2017 NY Slip Op 4883 - NY: Appellate Div., 1st Dept. 2017:

"A fair preponderance of the evidence does not support a finding of harassment in the second degree against Ari (see Family Ct Act § 832). Doris's petition was based solely on one letter Ari sent to Doris on or about November 17, 2014, a month after a previous order of protection against Ari and in favor of Doris had expired. This letter sought to apologize for Ari's behavior during and after the parties' relationship, which he attributed to his health and medical problems. Included with the letter was a recent article from the New York Post about Ari's lawsuit against a physician for misdiagnosis and treatment of Ari's condition that left him, in Ari's words, a "drugged-out mess." Although Family Court inferred that Ari intended to harass, annoy or alarm Doris by sending the letter, such finding does not have a sound and substantial basis in the record (see Matter of Melind M. v Joseph P., 95 AD3d 553, 555 [1st Dept 2012]). While Ari testified at the fact-finding hearing that he suspected Doris was conspiring with others to stalk and defame him, the letter itself made no mention of these allegations, contained no threats, and was written in an objectively apologetic and loving tone. Moreover, the fact that Ari sent the letter days after the New York Post article came out further supports a finding that he did not intend to harass, annoy, or alarm Doris (see Penal Law § 240.26). While it is understandable that Doris may have been scared by Ari's renewed contact via the letter, "her reaction is immaterial in establishing [Ari]'s intent" (Matter of Shephard v Ray, 137 AD3d 1715, 1716 [4th Dept 2016] [internal quotation marks omitted]).

A fair preponderance of the evidence also failed to establish that Doris had committed the family offense of harassment in the second degree. Ari's petition alleged, among other things, that Doris chased after and grabbed Ari, and also repeatedly jumped on Ari's back while he was lying face down in the bed, making it difficult to breathe. At the fact-finding hearing, Doris testified that in March 2012 she chased after Ari and attempted to restrain him because she believed he was suicidal. By Ari's own account, Doris jumped on his back in a playful manner because she wanted him to show her a press release for a conference they were organizing together. Neither of these actions support a finding that Doris committed the family offense of harassment in the second degree, as the evidence does not support an inference that Doris intended to harass, annoy, or alarm Ari (see Penal Law § 240.26; see also People v Bartkow, 96 NY2d 770, 772 [2001])."

Monday, June 19, 2017

A SELF HELP COMMERCIAL EVICTION SANCTIONED? - THE DISSENT



Martinez v. Ulloa, 50 Misc. 3d 45 - NY: Appellate Term, 2nd Dept. 2015:

"WESTON, J.P. (dissenting in part and voting to reverse the final judgment in the following memorandum).

While I agree that tenants' petition[*] should have been dismissed, I disagree with the majority's conclusion that landlord is not entitled to a judgment of possession on its counterclaim. In my opinion, there is no authority to support the proposition that a party cannot be awarded possession on a counterclaim during a summary proceeding.

After tenants were issued repeated violations, which exposed landlord to financial penalties, landlord, in accordance with the lease, served tenants with a notice to cure. When tenants failed to cure, a notice of termination was served, and landlord subsequently changed the locks on the door. Tenants acknowledged timely receipt of the notice of termination and admittedly knew of landlord's intent to change the locks. Nevertheless, tenants maintain that landlord had no authority to act. I strongly disagree.

While the instant proceeding was pending, and without waiting for a decision, tenants had the temerity to call the police to regain entry to the premises. Over a two-hour period, landlord was threatened with arrest by the police if he did not reopen the premises to tenants. Tenants do not dispute these facts, and the majority fails to reconcile their decision with the fact that when this proceeding was commenced, landlord had already regained lawful possession.

The purpose of a summary proceeding is to do speedy justice for all and eliminate great delay and expense. Summary proceedings quickly resolve certain finite issues, and while counterclaims are limited, they are not prohibited (see All 4 Sports & Fitness, Inc. v Hamilton, Kane, Martin Enters., Inc., 22 AD3d 512, 514 [2005]). "The ... exception is a counterclaim so `inextricably intertwined' with petitioner's claim that joint resolution of the claims will `expedite disposition of the entire controversy, avoid multiplicity of other lawsuits between the parties to accomplish the same result, do speedy justice for all and eliminate greater delay and expense'" (Ring v Arts Intl., Inc., 7 Misc 3d 869, 880 [Civ Ct, NY County 2004], quoting Haskell v Surita, 109 Misc 2d 409, 414 [Civ Ct, NY County 1981]). "Where the issues raised in the counterclaim bear directly upon the landlord's right to possession, they are said to be intertwined in the summary proceeding issues and should be disposed of in one proceeding" (Sutton Fifty-Six Co. v Garrison, 93 AD2d 720, 722 [1983], citing Great Park Corp. v Goldberger, 41 Misc 2d 988, 990 [Civ Ct, NY County 1964]).

Where a landlord has reserved its common-law right to peaceably reenter the commercial premises upon breach of a condition in the lease, the law permits the reentry if it can be effected peaceably (Matter of 110-45 Queens Blvd. Garage v Park Briar Owners, 265 AD2d 415 [1999]). Here, landlord lawfully reclaimed the premises, which is acknowledged by the majority, and landlord's "cross motion" was unopposed. Indeed, the exhibits annexed to the order to show cause support landlord's argument that the self-help eviction was peaceably effected. Tenants' only argument is the misguided presumption that in a commercial tenancy, a landlord is not permitted to avail himself of self-help. Under these circumstances, the determination of who has the right of possession is so intertwined that joint resolution of the issue is exactly what is contemplated by RPAPL 747. Pursuant to RPAPL 747, the court shall direct that a final judgment be entered determining the rights of the parties.

Nevertheless, the majority suggests that tenants became squatters when they illegally reentered the commercial premises and, as such, were entitled to notice. By suggesting that tenants were entitled to notice and attempting to frame the necessity for an alternative proceeding, the majority is not only compounding the error of the lower court, but is sanctioning tenants' improper conduct. The majority decision creates a chilling effect on any landlord using self-help by rendering the option ineffective. Here, landlord had the authority to use self-help, but the lower court improperly ruled that landlord could not, and restored these commercial tenants to possession. In my opinion, landlord's authority to use self-help had restored him to possession, making it unlawful for tenants to call the police in order to gain entry to premises to which they had no right. To suggest that tenants are entitled to notice is to reward them for their unlawful conduct. I, unlike the majority, refuse to sanction such conduct.
Accordingly, I would reverse the final judgment, dismiss tenants' proceeding, award a judgment of possession to landlord, and remit the matter to the Civil Court for a determination of the amount of use and occupancy to be awarded landlord.

[*] Tenants commenced this summary proceeding by order to show cause in lieu of a notice of petition and supporting affidavit (deemed a petition) seeking to be restored to possession pursuant to RPAPL 713 (10). Landlord submitted a "cross motion" for summary judgment, which is deemed an answer with counterclaims for possession and for use and occupancy."

Friday, June 16, 2017

A SELF HELP COMMERCIAL EVICTION SANCTIONED? - THE MAJORITY AND A WARNING



Martinez v. Ulloa, 50 Misc. 3d 45 - NY: Appellate Term, 2nd Dept. 2015:

"In this unlawful entry and detainer summary proceeding (see RPAPL 713 [10]) commenced by tenants by order to show cause (see CCA 400 [1]) and supporting affidavit (deemed a petition), the Civil Court awarded tenants possession of the subject commercial premises and denied landlord's "cross motion" for an award of possession and use and occupancy, based on its determination that it was not permissible for landlord to use self-help to regain possession thereof.

Contrary to the Civil Court's determination, "it is well established that a landlord may, under certain circumstances, utilize self-help to regain possession of demised commercial premises" (Sol De Ibiza, LLC v Panjo Realty, Inc., 29 Misc 3d 72, 75 [App Term, 1st Dept 2010]; see Bozewicz v Nash Metalware Co., 284 AD2d 288 [2001]; Matter of 110-45 Queens Blvd. Garage v Park Briar Owners, 265 AD2d 415 [1999]; Matter of Jovana Spaghetti House v Heritage Co. of Massena, 189 AD2d 1041 [1993]; see also Matter of Ga Young Lee v Charl-Ho Park, 16 AD3d 986 [2005]; North Main St. Bagel Corp. v Duncan, 6 AD3d 590 [2004]; 2 Dolan, Rasch's Landlord and Tenant — Summary Proceedings §§ 29:1, 29:11 [4th ed]). Here, the provisions of the lease reserved landlord's right to reenter and regain possession of the premises upon a breach of a condition of the lease, provided that landlord serve a five-day notice to cure and a three-day notice of termination. Tenants' pleadings fail to contain any allegations establishing that tenants were not in breach of a condition of the lease, that landlord had not complied with the lease provisions requiring notice, or that reentry by landlord was not accomplished peaceably (see Matter of 110-45 Queens Blvd. Garage v Park Briar Owners, 265 AD2d 415 [1999]; Sol De Ibiza, LLC v Panjo Realty, Inc., 29 Misc 3d 72 [2010]). Upon a review of all the papers submitted (see CPLR 409 [b]), we find that the petition must be dismissed based on these defects.

The branch of landlord's "cross motion" seeking a judgment of possession, based on a claim that tenants had, after commencing the proceeding, restored themselves to possession, was properly denied. While RPAPL 743 provides for the assertion of a legal counterclaim in a summary proceeding, it does not allow a respondent to circumvent the requirements of RPAPL article 7 for the maintenance of a summary proceeding to obtain a judgment of possession (RPAPL 747; compare the majority and dissenting opinions in Mazzella v Sarvis, 67 NYS2d 283 [App Term, 1st Dept 1946], revd on other grounds 48*48 272 App Div 381 [1947]; see also Ric-Mar Equity Ventures v Murrell, 184 Misc 2d 298 [App Term, 2d Dept, 2d & 11th Jud Dists 2000]). When tenants resumed possession, they did so, if landlord's position is accepted, as squatters, the lease having been terminated, and no 10-day notice was served as is required to obtain a final judgment pursuant to RPAPL 713 (3) (cf. Matter of Sweet v Sanella, 46 AD2d 688 [1974]). Moreover, landlord has not pleaded the elements of a civil court ejectment action (see CCA 203 [j]).

While the landlord may now be faced with additional litigation, this was brought about by landlord's resort to self-help. The court was available for landlord to seek an award of possession, but, having chosen to act on its own, landlord cannot now complain of being denied the opportunity to short-circuit the procedural requirements of a summary proceeding, by way of counterclaim.

We do not in any way wish to diminish or deny landlords the right to utilize self-help. Nor is the majority opinion meant as approval for tenants' conduct or that of the police in this particular instance. We note, however, that it would not be unusual or improper in appropriate circumstances for a tenant locked out of a premises to seek assistance from the police. There is an element of uncertainty associated with resort to self-help, and, in our opinion, we cannot simply disregard the pleading requirements of the statute in an effort to restore landlord to possession.

For these reasons, we sustain the denial of the branch of landlord's "cross motion" seeking an award of possession. The denial of the branch of landlord's "cross motion" seeking use and occupancy is likewise sustained, as, under the circumstances presented, landlord's claims for possession and use and occupancy should be heard together. We express no view as to the ultimate status of the parties and pass upon no other issue raised on appeal.

Accordingly, the final judgment is modified by providing that the petition is dismissed."

Thursday, June 15, 2017

FREE SENIOR LAW CLINIC TODAY



The next Senior Clinic is scheduled for today 9:30-11am at the Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501.

I will be one of the volunteer lawyers.

Wednesday, June 14, 2017

FAMILIAL RELATIONSHIP OR LICENSEE


Some "family members" can be evicted in landlord/tenant court. Heckman v. Heckman, 2017 NY Slip Op 27122 - NY: Appellate Term, 2nd Dept. 2017:

"Petitioner, the daughter of the deceased former owner of the subject premises and the trustee of a trust which the former owner had established and which is the current owner of the subject premises, brought this summary proceeding in her capacity as trustee, pursuant to, among other provisions, RPAPL 713 (7), alleging, insofar as relevant to this appeal, that occupant, the daughter-in-law of the deceased former owner, is a licensee whose license has been revoked. Following a nonjury trial, the District Court, finding that occupant is a licensee but that occupant had established the applicability of the so-called "familial exception" to eviction by summary proceeding, dismissed the petition.

A summary proceeding may be maintained only where authorized by statute (see Dulberg v Ebenhart, 68 AD2d 323, 328 [1979]). RPAPL 713 is the statutory source for summary proceedings where there is no landlord-tenant relationship between the parties (see Federal Natl. Mtge. Assn. v Simmons, 48 Misc 3d 24, 26 [App Term, 1st Dept 2015]). Insofar as is relevant here, RPAPL 713 (7) (b) permits the maintenance of a summary proceeding against persons who are in occupancy of real property pursuant to a license which has been revoked. Here, the District Court, while finding that occupant is a licensee, nevertheless refused to allow petitioner, in her capacity as trustee, to avail herself of this statutory remedy, invoking the so-called "familial exception." However, the relevant appellate case law provides no basis for a court, upon determining that an individual falls within a category of respondents that are subject to eviction pursuant to RPAPL 713 (or for that matter RPAPL 711), to dismiss the petition because of a "familial exception." Consequently, and for the reasons stated below, we reverse and grant a final judgment of possession to petitioner.

Analysis of this issue begins with Rosenstiel v Rosenstiel (20 AD2d 71, 76 [1963]), in which the Appellate Division held that a summary proceeding by a husband against a wife did not lie in a situation where "possession of the premises exists because of special rights incidental to the marriage contract and relationship," and not by virtue of a license or any other special arrangement with her husband. The court's determination that the respondent could not be found to be a licensee was based upon the existence of a support obligation (id. at 77), which obligation is recognized to extend to either spouse and to minor children (see generally Family Ct Act § 412). However, in situations in which such an obligation did not exist or had been fully satisfied, appellate courts have found the existence of a license and allowed the maintenance of summary proceedings by a husband against his wife (see Halaby v Halaby, 44 AD2d 495 [1974]; Tausik v Tausik, 11 AD2d 144 [1960], affd 9 NY2d 664 [1961]) and by a decedent's estate against the decedent's cohabitatant (see Young v Carruth, 89 AD2d 466 [1982]).

Despite these appellate cases, some lower courts began to rely on Rosenstiel, even in the absence of legal support obligations, to hold that a summary proceeding against an unmarried cohabitant did not lie because "unmarried occupants who reside together as husband and wife acquire some rights with respect to continued occupancy of the apartment they shared not unlike those acquired by a spouse" (Minors v Tyler, 137 Misc 2d 505, 507 [Civ Ct, Bronx County 1987]; but see Young, 89 AD2d at 469), thus creating what became known as the "familial exception" to the maintenance of a summary proceeding brought pursuant to RPAPL 713 (7).

In Braschi v Stahl Assoc. Co. (74 NY2d 201 [1989]), the Court of Appeals "interpreted a regulation [9 NYCRR 2204.6 (d)] prohibiting a landlord of a rent-controlled building from evicting a member of the deceased tenant's family' to include relationships which are not by blood or marriage" (Preferred Mut. Ins. Co. v Pine, 44 AD3d 636, 640 [2007]). Thereafter, some lower courts began to rely on Braschi to hold that individuals who fit within this expanded definition of "family" were protected, under Rosenstiel, from eviction by a "family" member via a summary proceeding (see e.g. Kakwani v Kakwani, 40 Misc 3d 627 [Nassau Dist Ct 2013]; Robinson v Holder, 24 Misc 3d 1232[A], 2009 NY Slip Op 51706[U] [Suffolk Dist Ct 2009]; Williams v Williams, 13 Misc 3d 395 [Civ Ct, NY County 2006]; DeJesus v Rodriguez, 196 Misc 2d 881 [Civ Ct, Richmond County 2003]; but see Piotrowski v Little, 30 Misc 3d 609 [Middletown City Ct 2010]; Drost v Hookey, 25 Misc 3d 210 [Suffolk Dist Ct 2009]; Lally v Fasano, 23 Misc 3d 938 [Nassau Dist Ct 2009]). However, since Rosenstiel does not provide a basis for the creation of a bar to the maintenance of summary proceedings in situations where there is no legal support obligation (see Young, 89 AD2d 466; Halaby, 44 AD2d 495; Tausik, 11 AD2d 144, affd 9 NY2d 664), there was no "familial exception" to expand pursuant to Braschi. In any event, Braschi merely expanded the statutory right to succeed to rent-controlled tenancies, which was already enjoyed by traditional family members, to individuals who were recognized as family members by society, and its holding has no bearing here (see Preferred Mut. Ins. Co., 44 AD3d at 640 ["The expansive definition of family set forth in Braschi. . . . has no bearing on interpreting different statutes with different statutory purposes" or on the interpretation of contractual provisions]).

In view of the foregoing, and in conformity with the decisions of the Appellate Term for the Second, Eleventh and Thirteenth Judicial Districts (see Pugliese v Pugliese, 51 Misc 3d 140[A], 2016 NY Slip Op 50614[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; see also Odekhiran v Pearce, 54 Misc 3d 126[A], 2016 NY Slip Op 51779[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]) and with this court's own prior decisions implicitly holding that there is no bar to the maintenance of a licensee proceeding in situations in which the occupant can properly be held to be a licensee (see DiStasio v Macaluso, 47 Misc 3d 144[A], 2015 NY Slip Op 50694[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Rodriguez v Greco, 31 Misc 3d 136[A], 2011 NY Slip Op 50696[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; cf. Sears v Okin, 6 Misc 3d 127[A], 2004 NY Slip Op 51691[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2004] [holding that a nonpayment proceeding was maintainable against a former domestic partner where the record supported the trial court's ruling that there was a landlord-tenant relationship between the petitioner and his former domestic partner]), while recognizing that there are familial relationships that will often prevent an occupant from fitting into a category of respondent subject to eviction pursuant to RPAPL 713 (or for that matter RPAPL 711), we explicitly hold that, where, as here, it is clear that an occupant does fit into one of the RPAPL 711 or 713 categories, there is no "familial exception" bar to the maintenance of a summary proceeding."

Tuesday, June 13, 2017

UNEMPLOYMENT INSURANCE - LEAVING EMPLOYMENT DUE TO PHYSICAL INJURY



If you decide to quit, make sure you have medical proof, have given your employer the chance to make accommodations and then medical proof that these accommodations were not satisfactory. MATTER OF BELLINGER, 104 AD 3d 1034 - NY: Appellate Div., 3rd Dept. 2013:

"Claimant reportedly injured her knee while working at a retail grocery store, of which she advised her manager at the end of her shift. The following day, she notified a member of the employer's safety committee of her injury and indicated that she would not be able to work her shift that day. She continued to stay out of work and, the following week, she told another manager that her knee was not improving and that she was going to see a doctor. Claimant obtained a form from the employer that her doctor completed indicating that claimant should stay off her leg for about two weeks after which she might be able to return to work on light duty. Claimant, however, continued to experience problems with her knee and later spoke with another manager who wanted claimant's doctor to complete a second form indicating when claimant could return to work. Claimant did not return to the doctor because she did not want to incur another copayment; she resigned from her position instead. She initially received unemployment insurance benefits, as well as emergency unemployment compensation benefits (see Pub L 110-252, tit IV, § 4001 et seq., 122 US Stat 2323) and federal additional compensation benefits (see 26 USC § 3304). However, the Unemployment Insurance Appeal Board subsequently ruled that claimant was disqualified from receiving benefits because she voluntarily left her employment without good cause, and it charged her with a recoverable overpayment as well as imposed a forfeiture penalty. Claimant now appeals.

We affirm. While claimant maintains that she left her job due to her knee injury, she failed to provide medical documentation establishing that she resigned on the advice of her physician nor did she provide the employer with an opportunity to accommodate her alleged medical limitations (see Matter of DePuy [Faith United Methodist Church — Commissioner of Labor], 80 AD3d 1050, 1051 [2011]; Matter of Cartarius-Macri [Commissioner of Labor], 39 AD3d 994, 995 [2007]; Matter of Kubiak [Commissioner of Labor], 23 AD3d 980, 981 [2005]). Inasmuch as substantial evidence supports the Board's finding that claimant left her job for personal and noncompelling reasons, we decline to disturb its decision."

Monday, June 12, 2017

A DENIED REQUEST TO RELOCATE DOES NOT REQUIRE A LOSS OF CUSTODY



A denied request to relocate does not mean that a parent automatically loses custody. MATTER OF LOPEZ v. CHASQUETTI, 2017 NY Slip Op 2424 - NY: Appellate Div., 2nd Dept. 2017:

"The parties, who were never married, lived together with the subject child in New Rochelle. The parties eventually separated, and the child continued to reside with the mother. In an order of custody and visitation dated November 16, 2012, the parties were awarded joint legal custody of the child and the mother was awarded primary physical custody, while the father was awarded a liberal visitation schedule. The father regularly and consistently exercised his visitation rights. In March 2014, the father filed a petition to modify the November 16, 2012, order of custody and visitation so as to award him sole legal and physical custody of the child. In his petition, the father alleged that the mother had gotten married, and that she expressed to him an intent to relocate to North Carolina with the child to live with her husband and his two children. Thereafter, the mother filed a petition seeking permission to relocate to North Carolina with the child. After a hearing, the Family Court denied the mother's petition and granted the father's petition. The mother appeals.

The Family Court properly determined that the mother failed to establish, by a preponderance of the evidence, that a proposed relocation to North Carolina would serve the child's best interests (see Matter of Tropea v Tropea, 87 NY2d 727, 741; cf. Matter of Davis v Ogden, 109 AD3d 539; Miller v Pipia, 297 AD2d 362). The court considered and gave appropriate weight to all of the relevant factors, including, but not limited to, each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and each parent, the impact of the move on the quantity and quality of the child's future contact with the father, the degree to which the mother's and child's lives might be enhanced economically, emotionally, and educationally by the move, and the feasability of preserving the relationship between the father and child through suitable visitation arrangements (see Matter of Tropea v Tropea, 87 NY2d at 740-741; Matter of Hirtz v Hirtz, 108 AD3d 712; Matter of McBryde v Bodden, 91 AD3d 781). The mother failed to prove that her life and the child's life would be enhanced economically, emotionally, and educationally by the move (cf. Matter of Yu Chan Tan v Hong Shan Kuang, 136 AD3d 933; see generally Matter of Perau v Ross, 106 AD3d 1013; Matter of Karen H. v Maurice G., 101 AD3d 1005). Furthermore, the evidence adduced at the hearing demonstrated that the father has faithfully exercised his visitation rights, and has fully participated in the child's life (see Matter of Radford v Propper, 190 AD2d 93). The impact of a move on the relationship between the child and the noncustodial parent is a central concern (see Matter of Carter v Carter, 111 AD3d 715; Matter of Hirtz v Hirtz, 108 AD3d at 713; Matter of Eddington v McCabe, 98 AD3d 613; Matter of Retamozzo v Moyer, 91 AD3d 957). The mother has failed to establish that the proposed move would not have a negative impact on the quantity and quality of the child's future contact with the father (see DeFilippis v DeFilippis, 146 AD3d 750).

A party seeking modification of an existing custody arrangement must show the existence of a change in circumstances such that modification is required to ensure the continued best interests of the child (see Matter of Sparacio v Fitzgerald, 73 AD3d 790; Matter of Russell v Russell, 72 AD3d 973; Trinagel v Boyar, 70 AD3d 816). Those best interests are determined by a review of all of the relevant circumstances (see Eschbach v Eschbach, 56 NY2d 167; Matter of Ross v Ross, 96 AD3d 856). The hearing court's determination will not be upheld where it lacks a sound and substantial basis in the record (see Moran v Cortez, 85 AD3d 795, 796-797; Matter of Sparacio v Fitzgerald, 73 AD3d at 791; Matter ofMatter of Marrero v Centeno, 71 AD3d 771, 773).

Here, the Family Court's determination awarding the father sole legal and physical custody of the child lacked a sound and substantial basis in the record (see Matter of Sidorowicz v Sidorowicz, 101 AD3d 737; Matter of Russell v Russell, 72 AD3d at 974-975). In particular, since the mother has not yet moved to North Carolina and the father failed to show that he has been denied access to the child at any time, the father failed to establish a change of circumstances since the initial custody determination (cf. Lodge v Lodge, 127 AD3d 1521; Matter of Dickinson v Dickinson, 309 AD2d 994). Furthermore, the court failed to give sufficient weight to the fact that the mother had been the child's primary caregiver for his entire life, and there was no evidence that the mother has been anything but a devoted mother (see Matter of Caruso v Cruz, 114 AD3d 769). Since the father failed to establish that circumstances had so changed since the initial custody determination that a modification of the existing custody arrangement was necessary to ensure the continued best interests of the child, his petition should have been denied (see Matter of Sidorowicz v Sidorowicz, 101 AD3d 737)."

Thursday, June 8, 2017

VOLUNTEER LAWYERS PROJECT


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

"The Volunteer Lawyers Project (Nassau) and The Pro Bono Project (Suffolk)
Nassau/Suffolk Law Services operates a nationally lauded pro bono program with the Bar Association of Nassau County and the Suffolk County Bar Association. Established in 1981, the program provides legal representation in civil cases for individuals meeting low income guidelines.

Volunteer Lawyers Project and Pro Bono Project:

The Projects strive to supplement the funded civil legal services provided by Law Services’ staff with the generous volunteer assistance of the private bar. The Project staff refers a variety of legal matters to private volunteer attorneys, usually in the areas of matrimonial, bankruptcy and landlord-tenant law. The demand for pro bono services is great and may involve a waiting list, as in the case of divorce matters.  However, we maintain an active outreach and recruitment program in an effort to meet the challenge. The Projects also screen prospective clients for the Modest Means Panel, private attorneys who have agreed to accept divorce cases at a reduced fee. The Volunteer Lawyers and Pro Bono Projects are supported in part by The Nassau Bar Association, the We Care Fund, and The Suffolk County Bar Association, the Suffolk County Bar Pro Bono Foundation, as well as by The Legal Services Corporation. For information in Nassau County call 516-292-8299 and in Suffolk County 631-232-2400. HOW MANY LAWYERS  DOES  IT  TAKE TO CHANGE. . . The World ? It’s a simple idea. Use your powers for good. When you represent the poor and disabled, you also represent the best of our profession. A profession full of caring, committed people who firmly believe a just world is possible. Our clients don’t pay.  But the rewards —-that’s another story entirely. Once you’ve made a difference in the life of another , it can’t but help make a difference in yours. You’ve been given a gift, a powerful skill –you can put it to no better use than to help the powerless. You can help.  The only question is: will you? The Collateral Rewards:
  • Free CLE credits
  • Free pass to a CLE course
  • Access to expert consultation and mentoring
  • Eligibility for Pro Bono Attorney of the Month award and Pro Bono Recognition Reception
  • Free professional liability insurance
  • Networking with attorney colleagues and judges
  • Expand your knowledge and experience in various disciplines of law
How can you help?
  • Provide direct client representation
  • Be a mentor to other volunteer attorneys
  • Assist Project staff with intake, case analysis, referral and recruitment of volunteer attorneys
  • Volunteer to work alongside Nassau Suffolk Law Services staff in landlord/tenant court, assist in disability, access to health care, Social Security advocacy, etc
Help is especially needed in the following areas:
  • Matrimonial and Family Law
  • Bankruptcy
  • Guardianships (Article 17A)
  • Foreclosure
  • Consumer Issues
  • Access to Medical Care and Public Benefits
  • Wills, Trusts, and Estates
Take the challenge! You can make a difference. Call Maria Dosso for more information about volunteering. 631 232-2400 x 3369 Each month Nassau Suffolk Law Services celebrates the labors of individual attorneys who have demonstrated an outstanding commitment to the Pro Bono effort and who serve as a role model for the legal profession and its commitment to pro bono work."

Wednesday, June 7, 2017

A FREE HOUSE?



BENEFICIAL HOMEOWNER SERV. CORP. v. Tovar, 2017 NY Slip Op 3471 - NY: Appellate Div., 2nd Dept. 2017:

T"he plaintiff commenced this mortgage foreclosure action in February 2014. The defendant Theresa A. Tovar, also known as Theresa Tovar (hereinafter the defendant homeowner), moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against her on the ground that the six-year statute of limitations had run. In support of the motion, she submitted, inter alia, the complaint in a foreclosure action commenced by the plaintiff in October 2007 (hereinafter the 2007 foreclosure action) to foreclose upon the same mortgage, in which the plaintiff elected to call due the entire amount secured by the mortgage. The defendant homeowner also submitted proof that the 2007 foreclosure action was dismissed as against her in 2010 for failure to effect personal service. In the order appealed from, the Supreme Court, inter alia, granted those branches of the defendant homeowner's motion which were to dismiss the complaint insofar as asserted against her as time-barred pursuant to CPLR 3211(a)(5) and CPLR 213(4) and to vacate the notice of pendency. The plaintiff appeals.

"[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt" (EMC Mtge. Corp. v Patella, 279 AD2d 604, 605; see Plaia v Safonte, 45 AD3d 747, 748; Koeppel v Carlandia Corp., 21 AD3d 884; Federal Natl. Mtge. Assn. v Mebane, 208 AD2d 892, 894). The filing of the summons and complaint and notice of pendency in the 2007 action constituted a valid election to accelerate the maturity of the debt (see Albertina Realty Co. v Rosbro Realty Corp., 258 NY 472, 476; Fannie Mae v. 133 Mgt., LLC, 126 AD3d 670; EMC Mtge. Corp. v Smith, 18 AD3d 602, 603; Clayton Natl. v Guldi, 307 AD2d 982; Arbisser v Gelbelman, 286 AD2d 693, 694).

Contrary to the plaintiff's contention, the fact that the 2007 action was dismissed as against the defendant homeowner for failure to effectuate personal service does not invalidate the plaintiff's election to exercise its right to accelerate the maturity of debt. "The fact of election should not be confused with the notice or manifestation of such election" (Albertina Realty Co. v Rosbro Realty Corp., 258 NY at 476). Nothing in the parties' agreement provides that the plaintiff's election is not valid until the defendant homeowner receives notice thereof. Consequently, the failure to properly serve the summons and complaint upon the defendant homeowner did not as a matter of law destroy the effect of the sworn statement that the plaintiff had elected to accelerate the maturity of the debt (see id.; Fannie Mae v 133 Mgt., LLC, 126 AD3d 670; City Sts. Realty Corp. v Jan Jay Constr. Enters. Corp., 88 AD2d 558; cf. EMC Mtge. Corp. v Smith, 18 AD3d 602, 603; Arbisser v Gelbelman, 86 AD2d at 694; Hirsch v Badler, 3 AD2d 921).

The plaintiff's reliance on Wells Fargo Bank, N.A. v Burke (94 AD3d 980), is misplaced inasmuch as in that case, the plaintiff in the prior foreclosure action had not been assigned the note or mortgage at the time the action was commenced and therefore was without authority to exercise the acceleration option in the agreement. Here, there is no dispute that the plaintiff was authorized to accelerate the debt when it filed the summons and complaint in 2007.
The plaintiff's contention that it revoked its election to accelerate the mortgage debt in 2012 by voluntarily discontinuing the action is impropely raised for the first time on appeal (see Costikyan v Keeffe, 54 AD2d 573). Contrary to the plaintiff's contention, this issue does not involve a question of law that appears on the face of the record and could not have been avoided if brought to the attention of the Supreme Court (see Vargas v Crown Container Co., Inc., 114 AD3d 762, 764-765; cf. Persky v Bank of Am. N.A., 261 NY 212, 218)."

Tuesday, June 6, 2017

RECOUPMENT OF CHILD SUPPORT OVERPAYMENTS?



A common question raised by noncustodial parents is whether credits can be given for overpayments of child support. MATTER OF McGOVERN v. McGovern, 2017 NY Slip Op 1862 - NY: Appellate Div., 2nd Dept. 2017:

""There is strong public policy in this state, which the [Child Support Standards Act] did not alter, against restitution or recoupment of the overpayment of child support" (Matter of Taddonio v Wasserman-Taddonio, 51 AD3d 935, 936 [internal quotation marks omitted]; see Johnson v Chapin, 12 NY3d 461, 466). "The reason for this policy is that . . . child support payments are deemed to have been devoted to that purpose, and no funds exist from which one may recoup moneys so expended' if the award is thereafter reversed or modified" (Rader v Rader, 54 AD3d 919, 920, quoting Coleman v Coleman, 61 AD2d 757, 758). Thus, recoupment of child support payments is only appropriate under "limited circumstances" (People ex rel. Breitstein v Aaronson, 3 AD3d 588, 589).

On this record, there is no basis for concluding that any exception to the strong public policy against restitution or recoupment of support overpayments exists. Consequently, the Family Court improvidently exercised its discretion in denying the mother's objection to the Support Magistrate's determination that the father was entitled to a credit against his child support obligation based on prior overpayments of child support (see Smulczeski v Smulczeski, 128 AD3d 670, 671; Coull v Rottman, 35 AD3d 198, 200; Matter of Maksimyadis v Maksimyadis, 275 AD2d 459, 461; cf. People ex rel. Breitstein v Aaronson, 3 AD3d at 589; Matter of Thomas v Commissioner of Social Servs., 287 AD2d 642, 642-643).

However, "[w]hile child support overpayments may not be recovered by reducing future support payments, public policy does not forbid offsetting add-on expenses against an overpayment'" (Matter of Goehringer v Vozza-Nicolosi, 139 AD3d 949, 949-950, quoting Coull v Rottman, 35 AD3d at 201 [citation omitted]). Thus, although the overpayments may not be applied to the father's child support obligation, he may use the overpayments to offset his share of the add-on expenses, such as the educational expenses (see Matter of Fitzgerald v Corps, 86 AD3d 611, 612)."

Monday, June 5, 2017

MORTGAGE FORECLOSURE CLINIC TODAY



I will be volunteering today, Monday June 5, 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 2, 2017

CREDIT CARD SURCHARGES - PART 4


With respect to attorneys and credit fees, the New York State Bar Association Committee on Professional Ethics, Opinion 1050 (3/25/15) stated:

"A lawyer may charge a client, as an administrative convenience, a nominally greater amount than the processing fees imposed on the lawyer’s account by a credit card company in connection with the client’s payment by credit card of the lawyer’s advance payment retainer, as long as (i) the client receives disclosure of the up-charge and consents to it before the lawyer imposes it, (ii) the amount of the up-charge is nominal, and (iii) total amount of the advance payment retainer and the processing fees (including the up-charge) are reasonable under the circumstances.        

Rules: 1.5(a) & (b)"

As a note, the full opinion makes no mention of General Business Law 518. See http://www.nysba.org/CustomTemplates/Content.aspx?id=55646

Thursday, June 1, 2017

CREDIT CARD SURCHARGES - PART 3


After the enactment of GBL 518, five New York merchants brought an action seeking the ability to tell their consumers that there is a surcharge for using credit.  One petitioner, Expressions Hair Design, had a sign that notified its consumers that it would charge 3% more for haircuts paid with a credit cards until it learned about the New York law. Expressions Hair Design now advertises two prices, a lower one for cash and a higher one for credit, and carefully avoids describing the price difference as a surcharge or an extra cost as a result of paying with a credit card. The other petitioners, Brooklyn Farmacy & Soda Fountain, Brite Buy Wines & Spirits, Five Points Academy, and Patio.com want to set one single price for their goods and services, impose an extra charge for credit card use, and to call the difference a credit “surcharge.”

In the Southern District Court of New York, the State argued that the statute is “an anti-fraud statute” that only bars additional hidden fees and does not prohibit surcharges. See Expressions Hair Design v. Schneiderman, 975 F. Supp. 2d 430, 442 (S.D.N.Y. 2013). The district court held that the law violated the First Amendment as it was impermissibly vague and regulated speech. The district court further concluded that the statute failed the Central Hudson test for commercial-speech restrictions.

On appeal, the court held that New York’s law “regulates conduct, not speech” and divided the First Amendment challenge based on two kinds of dual pricing: the first concerns posting a price on a label while notifying consumers of the surcharge through a separate sign, and the second concerns a merchant’s including two prices on the label and characterizing the price difference as a surcharge. The court declined to “reach the merits” on the latter question citing Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941), and held that the law was not unconstitutionally vague. Expressions Hair Design v. Schneiderman, 808 F. 3d 118 - Court of Appeals, 2nd Circuit 2015

Then the Supreme Court took the case. EXPRESSIONS HAIR DESIGN, ET AL., PETITIONERS v. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF NEW YORK, ET AL. , No. 15-1391, [March 29, 2017]

"Each time a customer pays for an item with a credit card, the merchant selling that item must pay a transaction fee to the credit card issuer. Some merchants balk at paying the fees and want to discourage the use of credit cards, or at least pass on the fees to customers who use them. One method of achieving those ends is through differential pricing—charging credit card users more than customers using cash. Merchants who wish to employ differential pricing may do so in two ways relevant here: impose a surcharge for the use of a credit card, or offer a discount for the use of cash. In N. Y. Gen. Bus. Law §518, New York has banned the former practice. The question presented is whether §518 regulates merchants’ speech and—if so—whether the statute violates the First Amendment. We conclude that §518 does regulate speech and remand for the Court of Appeals to determine in the first instance whether that regulation is unconstitutional."

Wednesday, May 31, 2017

CREDIT CARD SURCHARGES - PART 2



People v. Fulvio, 136 Misc. 2d 334 - NY: City Court, Criminal Court 1987:

"Nor, as the People here contend, is the statute saved by the semantic gyration of claiming that it contemplates the establishment of a "regular price" for a product, that a "discount for cash" from that "regular price" is permitted and that it is only the "surcharge", or additional charge, for use of a credit card, which is prohibited. The fact of the matter is that, at least for this product, there is at the "gas" pump, a legally permissible "cash price" and a legally permissible "credit price" — that fact is amply established by the position taken by the People and the evidence in this case, as well as by the authorities above cited. What is intolerable is that the gasoline station operator careful enough or sophisticated enough to always characterize the lower of these prices as a "discount for cash" may enter his automobile at the end of his business day and drive home a free man; however, if the same individual, or his colleague operating the station down the street, or his employee is careless enough to describe the higher price in terms which amount to the "credit price" having been derived from adding a charge to the lower price, he faces the prospect of criminal conviction and possible imprisonment.

Thus, what General Business Law § 518 permits is a price differential, in that so long as that differential is characterized as a discount for payment by cash, it is legally permissible; what General Business Law § 518 prohibits is a price differential, in that so long as that differential is characterized as an additional charge for payment by use of a credit card, it is legally impermissible. In each case the innocent and the criminal conduct is based upon the same factual configuration. General Business Law § 518 creates a distinction without a difference; it is not the act which is outlawed, but the word given that act. The Bard had the phrase (of course) for the defendant's best defense to the surcharge offense alleged here: "Oh, be some other name! What's in a name? That which we call a rose/By any other name would smell as sweet" (Shakespeare, Romeo and Juliet [2.2: 42-44]) or, in this case, as bad.

The motion to dismiss the charge of attempting to violate General Business Law § 518 is granted, the conviction thereon is set aside and dismissed and the defendant is discharged."

Tuesday, May 30, 2017

CREDIT CARD SURCHARGES - PART 1


New York Consolidated Laws, General Business Law § 518. Credit card surcharge prohibited:

" No seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means. Any seller who violates the provisions of this section shall be guilty of a misdemeanor punishable by a fine not to exceed five hundred dollars or a term of imprisonment up to one year, or both."