Thursday, September 18, 2014

NEW YORK DIVORCE - MAINTENANCE NOT TERMINATED WHEN SPOUSE RESIDES WITH PARENTS

I found this case interesting - Vega v. Papaleo, 119 A.D.3d 1139, --- N.Y.S.2d --- (Third Dept. 2014)(2014 WL 3360341)(2014 N.Y. Slip Op. 05237)(Jul. 10, 2014) - and a reminder that if a spouse is receiving maintenance, the agreement must specify in detail the events which terminate payments including but not limited to residing with a roommate or with parents - cohabit doesn't cover all living together relationships:

"Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were divorced in Albany County in August 2012 pursuant to a judgment that incorporated a September 2008 memorandum of understanding (hereinafter MOU). The MOU included a provision by which the husband would make maintenance payments, scheduled to terminate after a set period or upon certain occurrences, including the wife's remarriage or cohabitation with another individual. In October 2012, the husband moved to cease making these payments based upon the wife's alleged cohabitation with her mother and stepfather. The wife opposed the motion and cross-moved for sanctions; Supreme Court denied both motions. The husband appeals, and we affirm.

The MOU—which was incorporated, but not merged into the divorce judgment—remains "a separate contract subject to the rules of contract interpretation" (Momberger v. Momberger, 97 AD3d 945, 946 [2012] [internal quotation marks and citation omitted]; see Matter of Drake v. Drake, 114 AD3d 1119, 1120 [2014]). Our analysis of disputed terms is based upon their plain meaning, as well as " ‘consideration of whatever may be reasonably implied from that literal language’ " (Desautels v. Desautels, 80 AD3d 926, 928 [2011], quoting Hewlett v. Hewlett, 243 A.D.2d 964, 966 [1997], lvs dismissed 91 N.Y.2d 887 [1998], 95 N.Y.2d 778 [2000]). The subject agreement provides for maintenance payments in a specified sum until, as pertinent here, "[the wife] cohabits with an individual for any period in excess of 75 days within any 6–month period of time." As Supreme Court noted, the agreement fails to provide any definition of the term "cohabits." The husband contends that this provision unambiguously states the parties' intention, and that "cohabits" should be read in this context to mean merely that the wife reside with any other person for the requisite time period, with no showing of any sexual, romantic or economic relationship required. Supreme Court properly rejected this argument, finding that the term could not be fairly read to encompass the husband's broad interpretation.

Most notably, the parties entered into this agreement following Graev v. Graev (11 NY3d 262 [2008]), in which the Court of Appeals carefully reviewed several potential definitions of the term "cohabitation." The Court held that neither case law nor dictionary usage provided an authoritative or plain meaning. However, while no single factor—such as residing at the same address, functioning as a single economic unit, or involvement in a romantic or sexual relationship—is determinative, the Court found that a "common element" in the various dictionary definitions is that they refer to people living together "in a relationship or manner resembling or suggestive of marriage" (id. at 272). There is simply no authoritative definition or customary usage of the term that could include residing with a parent. The husband's assertion that the phrase "with an individual" informs the term "cohabits" in such a manner as to omit a requirement of any showing of an intimate or romantic relationship is wholly contrary to the governing precedent, and is unavailing (see id. at 271–274). As Supreme Court found, the husband has not alleged that the wife has lived with another individual in any relationship remotely resembling or suggestive of a marital bond, nor has he shown that anything in the MOU reveals an intention to define cohabitation as a shared address in the absence of such a bond."

Wednesday, September 17, 2014

SENIOR CLINIC TODAY AT NASSAU COUNTY BAR ASSOCIATION

Today I will be a volunteer lawyer at the NCBA Senior Citizen Consultation Clinic.

Each month, attorneys give free 30-minute private consultations to Nassau County residents 65 years of age and over. The consultation does not provide free legal service. The Clinics are held monthly from 9:30 a.m. to 10:30 a.m. at the Nassau County Bar Association, 15th and West Streets, Mineola, NY.

For the next schedule clinic, please call NCBA: (516) 747-4070 or email Demi Tsiopelas.

Attorneys fluent in other languages are available upon request when registering.

Monday, September 15, 2014

PUBLIC HOUSING AND FAMILY

See this article which has appeared in many of today's papers:

http://bigstory.ap.org/article/public-housing-safety-policy-can-hit-whole-family

The Housing Opportunity Program Extension ("HOPE") Act of 1996 was designed to strengthen the ability of federally subsidized housing projects to screen out and evict drug dealers and other criminals who prey on their law-abiding neighbors. Tenants in both public and private housing are subject to eviction for violations of appropriate lease terms, whether it is keeping an unlawful pet or violating any of the other reasonable terms of a lease.

In the private housing sector, it would be difficult to evict a tenant on the same grounds as set forth in the article.

Thursday, September 11, 2014

MORTGAGE MODIFICATION SCAMS

While looking into today's story of a Queens woman arrested for a mortgage foreclosure scam, I discovered this article from June which showed that since "2010, more than 40,000 homeowners have complained they were scammed by someone promising to offer foreclosure assistance or help them with a mortgage modification, according to an analysis of calls to the HOPE hotline, a resource for struggling borrowers....The most costly of these foreclosure rescue scams -- and now the most pervasive -- involve or are directed by attorney."

See http://www.huffingtonpost.com/2014/06/09/mortgage-scams_n_5438743.html

Wednesday, September 10, 2014

HOME REPAIR SCAMS

It was reported today that SBA loans will be available for flooding victims of this summer's storm.

On August 20, the governor's office issued the following warning in light of the flood damage regarding home repair scams but the warnings are "timeless":

"Dear Fellow New Yorker,

This week we issued a consumer alert warning to homeowners to protect themselves against home repair scams, which may arise in the wake of the recent flooding that occurred on Long Island. Unfortunately, unscrupulous home repair scam artists often come out of the woodwork in the aftermath of major storms and try to take advantage of their neighbors. There are a number of steps that homeowners can take to avoid these schemes and help ensure that you are engaging with reputable businesses.

Homeowners should beware of anyone who:
  • Comes to your home or calls you on the phone offering to make repairs. 
  • Tells you that you must make repairs immediately or offers discounts if you buy their services today. 
  • Pressures you to sign a contract immediately. 
  • Tells you that they are doing work in your neighborhood and that they have extra materials left from another job. 
  • Is not an established local business, but has come to the area from somewhere else to “help.”
Avoid unlicensed contractors in areas where a license is required, such as Nassau and Suffolk Counties. In addition, avoid contractors who:
  • Don't supply references or whose references can't be reached. 
  • Tell you there's no need for a written contract. By law, all contracts for $500 or more must be in writing, but it's a good idea to get a written contract even for smaller projects. 
  • Only have a P.O. Box address or a cell phone number. 
  • Cannot supply proof of insurance. 
  • Ask you to get required building permits. It could mean that the contractor is unlicensed or has a bad track record, and is therefore reluctant to deal with the local building inspector. However, you should verify with your local building department that all necessary permits have been obtained by the contractor. 
  • Ask for money to buy materials before starting a job. Reliable, established contractors can buy materials on credit. 
  • Demand payment in cash or want full payment up front, before work has begun. Instead, find a contractor who will agree to a payment schedule providing for an initial down payment and subsequent incremental payments until the work is completed.
If you believe you have been victimized by scams, consult a lawyer immediately. There are time deadlines to cancel sales and pursue legal claims. Homeowners can also contact New York State Department of Financial Services for insurance-related scams, or the offices of your county’s District Attorney or the state Attorney General.

Homeowners with disputes involving home improvement contractors can file complaints with the New York State Department of State or by calling 1-800-697-1220. Contact your insurance company, agent or broker to get answers to specific questions about insurance policies or claims. For further insurance-related help, feel free to contact the New York State Department of Financial Services’ Consumer Services Unit at 1-800-339-1759.

For more tips on safe ways to find a contractor to repair your home, visit governor.ny.gov.

Sincerely,

The Office of the Governor"