Wednesday, May 4, 2016

CONGRATULATIONS TO JONATHAN PRESS



Last night, Jon was awarded the Thomas Maligno Pro Bono Attorney of the Year Awardfrom the Nassau County Bar Association.

From an earlier press release:

"The Nassau County Bar Association, the source for legal information and education on Long Island, is marking 50 years since the landmark Miranda Rights legislation was enacted, as well as awarding three outstanding advocates for service to the legal profession and the community, at the annual Law Day Awards Dinner on May 3, 5:30-8 p.m. at NCBA in Mineola.
 
Keynote speakers Nassau County District Attorney Madeleine Singas and Honorable Stephen P. Scaring, Scaring & Carman, Garden City, together will share their experiences of life before Miranda, the procedural protections afforded to all of us by the U.S. Constitution, how these rights are safeguarded by the courts, and why the preservation of these principles is essential to our liberty.
 
Each year on Law Day, NCBA recognizes three outstanding examples of service.  The Liberty Bell Award will be presented to Robert Bernstein, a teacher who has served as a Mock Trial Coach for his high school team since 1997 and volunteers as a court advocate for The Safe Center LI. 
 
Jonathan Press, a long-time dedicated volunteer attorney at NCBA's Mortgage Foreclosure Legal Consultation Clinics and mandated court settlement conferences, will be honored with The Thomas Maligno Pro Bono Attorney of the Year. Finally, the Peter T. Affatato Court Employees of the Year Award will be presented to Lisa Porteus, Chief Court Reporter for Supreme Court in Mineola.
 
Fifty years ago, the landmark U.S. Supreme Court case, Miranda v. Arizona  resulted in the Miranda Rights statement that must be made by police to inform a person in police custody or under interrogation of his Fifth Amendment right against compelled self-incrimination. The Miranda warning has become one of the most recognizable phrases in law enforcement, repeated countless times in films and on television."

Tuesday, May 3, 2016

CAN OVERPAYMENT OF CHILD SUPPORT PAYMENTS BE RECOUPED?



In limited circumstances, yes. Weidner v. Weidner, 2016 NY Slip Op 1102 - NY: Appellate Div., 4th Dept. 2016:

".....we further agree with defendant that she is entitled to recoupment of her child support overpayments, and we remit the matter to Supreme Court to determine the amount of recoupment that plaintiff owes to defendant. Although there is a strong public policy against recoupment of child support overpayments (see Johnson v Chapin, 12 NY3d 461, 466, rearg denied 13 NY3d 888), we conclude that recoupment is appropriate under the limited circumstances of this case. Here, the record establishes that defendant's income was below the poverty level, and that plaintiff held a high-income job. Moreover, requiring plaintiff to repay the child support erroneously ordered by the court will not detract from plaintiff fulfilling the needs of the children while they are in his care and, indeed, will restore needed funds to defendant that will assist her in maintaining a suitable household for the children and in meeting their reasonable needs during visitation (cf. Smith v Smith, 116 AD3d 1139, 1143; see generally People ex rel. Breitstein v Aaronson, 3 AD3d 588, 589; Tuchrello v Tuchrello, 233 AD2d 917, 918)."

Monday, May 2, 2016

CHILD CUSTODY - ON DEALING WITH THE FORENSIC REPORT

 

 Straus v. Strauss, 2016 NY Slip Op 634 - NY: Appellate Div., 1st Dept. 2016:

The motion court properly denied plaintiff's motion to exclude the forensic report. Frye v United States (293 F 1013 [DC Cir 1923]) does not require that a forensic report cite specific professional literature in support of the report's analyses and opinions. As the motion court noted, plaintiff could cross-examine the forensic evaluator regarding the lack of citations, and such an omission is relevant to the weight to be accorded to the evaluator's opinion, not to its admissibility (Zito v Zabarsky, 28 AD3d 42, 46 [2d Dept 2006]).

The forensic report does not rely to a significant extent on hearsay statements. A review of the report reveals that the primary source of the report's conclusions are the forensic evaluator's firsthand interviews with the parties. In any event, defendant intends to call as witnesses at any future custody hearing anyone to whom the forensic evaluator spoke; thus, the declarants will be subject to cross-examination, rendering admissible any opinion evidence based on their statements (see Wagman v Bradshaw, 292 AD2d 84, 86-87 [2d Dept 2002]). To the extent that any hearsay declarants are not cross-examined, the motion court acknowledged that those portions of the report containing inadmissible hearsay should be stricken or not relied upon (see Lubit v Lubit, 65 AD3d 954, 956 [1st Dept 2009], lv denied 13 NY3d 716 [2010], cert denied 560 US 940 [2010]).

Although the forensic report briefly refers to the parties' initial negotiations regarding custody, those negotiations do not form the basis for any conclusions regarding parental fitness or custody. Nor did the forensic evaluator contravene a prior order of the motion court, which directed him to refrain from making an ultimate recommendation regarding custody. The report states that preschool-age children "usually tolerate well" a 65/35 custody split, and older children a range between 65/35 and 50/50, but it made no specific recommendation in this case. Nor did the report's findings that defendant was an adequate parent, despite plaintiff's safety concerns, usurp the motion court's fact-findings in prior orders. In a prior order, the motion court cited certain safety concerns for the child while in defendant's care, but the court noted that those concerns dissipated after it issued its order. The motion court also noted that it was free to reject opinions in the report (Zelnik v Zelnik, 196 AD2d 700, 700 [1st Dept 1993]).

There is a sound and substantial evidentiary basis for the motion court's modification of the visitation order (see Matter of Frank M. v Donna W., 44 AD3d 495, 495-496 [1st Dept 2007]; see also Eschbach v Eschbach, 56 NY2d 167, 173 [1982]). Among other things, defendant sufficiently explained, without contradiction, why he missed certain visits with the child, and his failure to explain all of the missed visits did not warrant denial of his cross motion, particularly where the attorney for the child supported the motion and noted that the child enjoyed spending time with his father. Plaintiff never requested a hearing before the motion court, and, in any event, a hearing was not necessary (see Skidelsky v Skidelsky, 279 AD2d 356, 356 [1st Dept 2001]).

 

Friday, April 29, 2016

UNDERGROUND OIL TANKS


This is what home owners and home buyers wish to avoid. For full story, see  http://www.nj.com/mercer/index.ssf/2009/10/tank_removal_project_leads_to.html

My view for best practice for home resales, the contract of sale should contain a clause regarding the existence of an underground tank and that it has been removed or abandoned legally. Here in Nassau County, all tank removals and abandonments are recorded on a county database and a record can be obtained through the Health Department by calling (516) 227-9691.

Thursday, April 28, 2016

WHY YOU SHOULD HAVE A WILL - A LESSON FROM PRINCE DID NOT


If you are a resident in New York, the small estate administration is still a procedure (especially if there is an issue with heirs) and is only available if:
  • If the decedent (the person who died) passed away between August 29, 1996 and December 31, 2008 AND had $20,000 or less in personal property (not land or buildings).
  • If the decedent passed away after January 1, 2009 AND had $30,000 or less in personal property.
  • If the decedent owned real property, he/she owned it jointly with someone else and you don’t plan to sell the real estate.
Otherwise, have a will. Here's one story on what Prince's family may be facing:

http://www.billboard.com/articles/business/7348424/prince-estate-will-lawsuits-tax-bills

Wednesday, April 27, 2016

IMPUTING INCOME IN CHILD SUPPORT


Compare these two cases:

Matter of Taylor v Benedict 2016 NY Slip Op 00803 Decided on February 5, 2016 Appellate Division, Fourth Department:

" At the hearing, the father testified that he was currently unemployed, but that he had worked for a company "off and on" for over five years, making $10 per hour, and that he did not have any medical disabilities preventing him from working. Family Court determined that the Support Magistrate imputed income to the father of $20,800 per year, and we conclude that the determination is supported by the record and was based on the relevant factors (see Lauzonis v Lauzonis, 105 AD3d 1351, 1351; Matter of Monroe County Support Collection Unit v Wills, 21 AD3d 1331, 1331, lv denied 6 NY3d 705). "

Balaj v Balaj 2016 NY Slip Op 00685 Decided on February 3, 2016 Appellate Division, Second Department:

"Income may be imputed to a party based on factors including his or her educational background, past earnings, and employment potential (see Zloof v Zloof, 104 AD3d 845; Cusumano v Cusumano, 96 AD3d 988, 990; Rand v Rand, 29 AD3d 976; Scammaca v Scamacca, 15 AD3d 382; Kalish v Kalish, 289 AD2d 202). Here, the Supreme Court properly imputed income to the plaintiff in the amount of only $150,000. Although his previous earnings were much higher than that amount, he provided credible evidence of a downturn in his field of employment."

Tuesday, April 26, 2016

GRANDPARENT RIGHTS TO VISITATION


Grandparent alienation is real but not every case is black and white. The facts in the following case sadly describes the complete deterioration of a family. In short, mother and father are not living together and both have terrible relationship with grandmother (who has engaged in some questionable conduct) but young child loves grandmother. To get a full picture of the facts, the case also refers to a prior matter involving grandmother and mother.

Matter of Kathleen LL. v Christopher I. 2016 NY Slip Op 00222 Decided on January 14, 2016 Appellate Division, Third Department:

"This toxic relationship between petitioner and respondents cannot be ignored; nevertheless, "an acrimonious relationship is generally not sufficient cause to deny visitation" by itself (Matter of E.S. v P.D., 8 NY3d at 157; see Matter of Stellone v Kelly, 45 AD3d 1202, 1204 [2007]). Petitioner testified that the child lived with and was raised by her until the child was over four years of age, and that the two had developed a "very close bond" as a result.

.....

We are mindful that Family Court is painfully aware of the prior history between the parties and may well have grounds to believe that the best interests of the child lie in suspending visitation with petitioner altogether. That being said, a sound and substantial basis in the record before us, which illustrates a positive relationship between petitioner and the child despite the toxic relationship between petitioner and respondents, does not exist for that finding (see e.g. Matter of Burton v Barrett, 104 AD3d at 1087; Matter of Johnson v Zides, 57 AD3d at 1320). Under the circumstances present here, we deem it prudent to leave the suspension of visitation in effect on a temporary basis and remit so that Family Court may further develop the record, ascertain the wishes of the child, and fashion an appropriate order (see Matter of Tamara FF. v John FF., 75 AD3d 688, 690 [2010])."

Monday, April 25, 2016

NEW YORK: NON RESIDENT NY ATTORNEYS MUST STILL MAINTAIN OFFICE IN NY



Section 470 of the Judiciary Law mandates that a nonresident attorney maintain an “office for the transaction of business” within the state of New York. Last week, in Schoenefeld v. Schneiderman, the Second Circuit denied the constitutional challenges and the full decision, with dissent, can be found at:

http://law.justia.com/cases/federal/appellate-courts/ca2/11-4283/11-4283-2016-04-22.html

Thursday, April 21, 2016

NO MAINTENANCE IN LONG TERM MARRIAGE



Yes that is from a real movie and this is from a real case. Even though the marriage lasted for almost 40 years, there are some circumstances where maintenance will not be awarded (here I would assume that the equitable distribution was large and that husband's income did not expect to be a significant amount):

Diwan v. Diwan, 2016 NY Slip Op 327 - NY: Appellate Div., 2nd Dept. 2016:

 "The parties were married in 1973 and, in 2011, the plaintiff commenced this action for a divorce and ancillary relief. On January 24, 2014, after a nonjury trial, the Supreme Court entered a judgment of divorce awarding the plaintiff one half of the marital assets and the sum of $60,000 in attorney's fees and costs. The Supreme Court declined to award the plaintiff maintenance....

......

In a matrimonial action, "the court may order maintenance in such amount as justice requires" (Domestic Relations Law § 236[6]). The amount and duration of spousal maintenance is committed to the sound discretion of the trial court, and each case is to be decided on its own unique facts (see Lamparillo v Lamparillo, 130 AD3d 580, 581; Heydt-Benjamin v Heydt-Benjamin, 127 AD3d 814, 815). Here, given that the plaintiff was already receiving Social Security retirement benefits and would receive a substantial distributive award, the Supreme Court did not improvidently exercise its discretion in declining to award the plaintiff maintenance (see Domestic Relations Law § 236[6]; Filippazzo v Filippazzo, 121 AD3d 835, 835-836; Signorile v Signorile, 102 AD3d 949, 951).

Wednesday, April 20, 2016

WHEN YOU ENTER INTO A STIPULATION OF SETTLEMENT



D'Iorio v D'Iorio 2016 NY Slip Op 00148 Decided on January 13, 2016 Appellate Division, Second Department:

"The court, however, properly declined to direct the plaintiff to maintain life insurance in the defendant's favor to secure her interest in the plaintiff's pensions, as all matters of equitable distribution were resolved by the partial stipulation of settlement. Judicial review of settlement stipulations should be exercised sparingly (see Sabowitz v Sabowitz, 123 AD3d 794, 795; Brennan-Duffy v Duffy, 22 AD3d 699, 699), and a stipulation that is fair on its face should be enforced unless there is proof of fraud, duress, overreaching, or unconscionability (see Sabowitz v Sabowitz, 123 AD3d at 795; Brennan-Duffy v Duffy, 22 AD3d at 699). Here, the defendant did not establish any basis to modify this provision of the partial stipulation of settlement."

Tuesday, April 19, 2016

THE OTHER SIDE OF REVERSE MORTGAGES





I had several consultations yesterday which demonstrated the down side of these types of loans. This article is from the Consumer Financial Protection Bureau:

http://www.consumerfinance.gov/blog/consumer-advisory-dont-be-misled-by-reverse-mortgage-advertising/

Thursday, April 14, 2016

NEW NOTICE IN DIVORCE ACTIONS


 
"By Administrative Order A/O/0004/16, New and Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective January 25, 2016. These form revisions are required by two legislative enactments last year: L. 2015 c. 269 (the Maintenance Guidelines Law which amended statutory provisions regarding temporary spousal maintenance, established formulae and procedures for setting post-divorce (final) maintenance) and L. 2015 c. 387 (the law as to treatment of maintenance in child support calculations). See http://www.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml"

Wednesday, April 13, 2016

CHILD CUSTODY - RELOCATION PERMITTED

 

In this case, I assume parents divorced while child was very young, Mother had remarried shortly thereafter and had half-sibling child, this was the household for child for some time but now new spouse had to move to Florida. I also assume, Father had the funds for liberal visitation schedule. And I also assume this litigation was somewhat difficult for the child.

Matter of Ceballos v Leon 2015 NY Slip Op 09278 Decided on December 16, 2015 Appellate Division, Second Department:
 
"When reviewing a custodial parent's request to relocate, each "request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child" (Matter of Tropea v Tropea, 87 NY2d 727, 739; see Matter of Rizvi v Shah, 126 AD3d [*2]984, 984; Matter of Estevez v Perez, 123 AD3d 707, 708). "The relevant factors include each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and both 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 Estevez v Perez, 123 AD3d at 708, quoting Matter of Hall v Hall, 118 AD3d 879, 880-881). In relocation proceedings, the authority of this Court is as broad as that of the hearing court, and a relocation determination will not stand if it is not supported by a sound and substantial basis in the record (see Matter of Doyle v Debe, 120 AD3d 676, 680; Matter of Caruso v Cruz, 114 AD3d 769, 771).

Here, the Family Court's determination that the child's best interests would not be served by the relocation to Florida is not supported by a sound and substantial basis in the record. Although both parties were loving parents, the mother had been the child's primary caretaker for all but one year of the child's life, and the child was 11 years old at the time of the hearing (see Matter of Hall v Hall, 118 AD3d at 883). The record indicates that the child has established a primary emotional attachment to the mother (see Matter of Fegadel v Anderson, 40 AD3d 1091, 1093), and that the child's emotional well-being suffered after she was removed from the mother's care. Furthermore, the child repeatedly expressed that she wished to relocate to Florida with her mother. While a child's preference is not determinative, it is some indication of what is in the child's best interests, particularly where, as here, the court's interviews with the child demonstrate the child's level of maturity and ability to articulate her preferences (see Matter of Hall v Hall, 118 AD3d at 882-883; Matter of Winston v Gates, 64 AD3d 815, 818-819). Moreover, the child's relationship with her half-sibling, who resides in Florida, will be disrupted if she remains in the father's care, and the record indicates that the child and her half-sibling have developed an emotional bond (see Matter of Shannon J. v Aaron P., 111 AD3d 829, 831; Matter of Fegadel v Anderson, 40 AD3d at 1093).

The record also supports a finding that the denial of the mother's petition to relocate and an award of sole residential custody to the father will have a potentially negative impact on the child's relationship with her mother. Although the mother's relocation will inevitably have an impact upon the father's ability to spend time with the child, a liberal visitation schedule, including extended visits during summer and school vacations, will allow for the continuation of a meaningful relationship between the father and the child (see Matter of Tropea v Tropea, 87 NY2d at 742; Matter of Tracy A.G. v Undine J., 105 AD3d 1046, 1048).

Upon weighing the relevant factors, we find that the mother established that the best interests of the subject child would be served by permitting the relocation. Accordingly, the Family Court should have granted the mother's petition to relocate with the child to Florida. Furthermore, the Family Court should have denied that branch of the father's cross petition which was for sole residential custody of the child. In light of our determination, we remit the matter to the Family Court, Nassau County, to establish an appropriate post-relocation visitation schedule for the father (see Matter of Hall v Hall, 118 AD3d at 883). As a final matter, we note that our determination is based on the current record before this Court. Should there be a change of circumstance in the future, either party may, at that point, petition to modify the custodial arrangement (see Matter of Hirtz v Hirtz, 108 AD3d 712, 715)."

Tuesday, April 12, 2016

FREE SENIOR LEGAL CLINIC TODAY AT NASSAU COUNTY BAR ASSOCIATION



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.

Friday, April 8, 2016

ON MORTGAGE SETTLEMENT CONFERENCES


From the Empire Justice Center:

"New Yorkers for Responsible Lending (NYRL) has released a report titled “Divergent Paths: The need for more uniform standards and practices in New York State’s residential foreclosure conference process” which exposes wide variations in the way foreclosure settlement conference rules are implemented, leaving tens of thousands of New Yorkers at heightened risk of losing their homes depending on how settlement conferences are being run where they live. 

When the outcome of your case – whether or not you get to stay in your home – depends on where you live, it becomes very clear that stronger enforcement and clarification of the rules is vital.

Almost 90,000 homeowners across New York State were still in foreclosure as of October 2015 - making settlement conferences just as important now as they were at the height of the foreclosure crisis."


Thursday, April 7, 2016

SEEKING A DOWNWARD MODIFICATION OF CHILD SUPPORT?




Another example as to why proof must be more than testimony but must include documentation.

Matter of Fantau v Fantau 2015 NY Slip Op 09682 Decided on December 30, 2015 Appellate Division, Second Department (emphasis supplied):


"In this child support proceeding pursuant to Family Court Act article 4, the father was directed to pay child support in an order dated May 25, 2012. In August 2014, the father sought downward modification of his child support obligation. A support magistrate dismissed the father's petition in an order dated December 22, 2014. In an order dated February 4, 2015, the Family Court denied the father's objections to the support magistrate's order. The father appeals.

A "party seeking modification of an order of child support has the burden of establishing the existence of a substantial change in circumstances warranting the modification" (Matter of Baumgardner v Baumgardner, 126 AD3d 895, 896-897; see Matter of Rubenstein v Rubenstein, 114 AD3d 798, 798; Matter of Suyunov v Tarashchansky, 98 AD3d 744, 745). "A reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience" (Raab v Raab, 129 AD3d 1050, 1050 [internal quotation marks omitted]). "The proper amount of support to be paid . . . is determined not by the parent's current economic situation, but by the parent's assets and earning capacity" (Matter of Muselevichus v Muselevichus, 40 AD3d 997, 998-999; see Matter of Baumgardner v Baumgardner, 126 AD3d at 897; Ashmore v Ashmore, 114 AD3d 712, 713; Matter of Solis v Marmolejos, 50 AD3d 691, 692).

Here, the Family Court properly denied the father's objections to the order dated December 22, 2014. The record supported the Family Court's determination that the father failed to establish that he used his best efforts to obtain employment which was commensurate with his qualifications and experience, or that his current income was commensurate with his earning capacity so as to warrant a downward modification of his child support obligation (see Raab v Raab, 129 AD3d 1050; Matter of Schlakman v Schlakman, 66 AD3d 786; Matter of Karrin v Gottesman, [*2]16 AD3d 587). We note that the father failed to submit evidence such as résumés that he had sent to potential employers, or proof that he had been on any interviews in search of employment commensurate with his education, ability, and experience (see Matter of Schlakman v Schlakman, 66 AD3d at 787; Matter of Davis v Davis, 197 AD2d 622, 623; cf. Ritchey v Ritchey, 82 AD3d 948, 949)."