Wednesday, December 24, 2014

XMAS & NEW YEARS GREETINGS, ETC.



Congratulations to the more than 6,000 Nassau homeowners hit hard by Superstorm Sandy who are now receiving property tax refund checks from Nassau County.

Enjoy this holiday week and I'll be back after the New Year.

Tuesday, December 23, 2014

RE-HOMING

I first heard about this a few weeks ago at a CLE at Hofstra on Surrogate Court practice.

Right now, it is marked as the "Most Read" article in the ABA Journal. To read about the "dark side" of adoptions:

http://www.abajournal.com/magazine/article/states_start_to_crack_down_on_parents_re_homing_their_adopted_kids?utm_source=internal&utm_medium=navigation&utm_campaign=most_read

Wednesday, December 17, 2014

VOLUNTEER LAWYERS PROJECT

Today I will be a volunteer lawyer with Nassau Suffolk Law Services at Landlord/Tenant court in Hempstead:
 
"Volunteer Lawyers Project
What is the Volunteer Lawyers
Project?
Attorneys are encouraged to volunteer to provide free legal assistance to the poor in Nassau County through the Volunteer Lawyers Project. NCBA partners with the Nassau/Suffolk Law Services Committee to support VLP, which helps maximize the quantity and quality of pro bono assistance provided for the county's low-income community.
 
What programs are part of the VLP?
Volunteer attorneys handle a wide array of cases including matrimonial matters, individual bankruptcy, personal injury and negligence defense, estate matters, release of accounts blocked by judgment creditors, and various other civil matters.
 
     • The Landlord/Tenant Project's Attorney of the Day Program assists thousands of men, women and children in court to prevent homelessness.
 
     • The Bankruptcy Clinics assist families either with advice or the filing for a Chapter 7 bankruptcy, when appropriate.
 
     • The Matrimonial Project assists hundreds of individuals in obtaining divorces, child support and custody.
 
How does it work?
An attorney based at VLP’s offices in Hempstead conducts client intake interviews and refers clients to appropriate volunteer attorneys. The VLP attorney also recruits and trains volunteer attorneys to handle cases."

Thursday, December 11, 2014

THE "GENETIC" CHILD

 New York state has adopted a new statute that a Surrogate's Court advisory group said better defines and preserves inheritance rights and financial interests of children conceived after the deaths of their biological parents.

The full text and summary of the bill follows:

http://assembly.state.ny.us/leg/?bn=A07461&term=&Summary=Y&Actions=Y&Votes=Y&Memo=Y&Text=Y

Wednesday, December 10, 2014

ON LIVING AND/OR REVOCABLE TRUSTS

Many of these are being promoted in breakfast/lunch seminars but of course "Trusts are a valuable tool, but they may not be for everyone. It pays to know the ins and outs before you put your trust in a trust."

http://www.kiplinger.com/article/retirement/T021-C000-S001-four-facts-of-living-trusts.html

Tuesday, December 9, 2014

NEW RULES FOR HOME BUYERS?

As reported:

"Fannie Mae (FNMA) and Freddie Mac have set terms for letting borrowers put down as little as 3 percent of a home’s cost to get mortgages, a step criticized by Republican lawmakers as a return to risky lending.

Starting on Dec. 13, Fannie Mae will allow the lower down payments for first-time homebuyers and permit refinancing borrowers to reduce equity to 3 percent to cover closing costs, the company said today in a statement. Freddie Mac will begin a program in March giving breaks to lower-income buyers and first-time borrowers who get housing counseling."

Monday, December 8, 2014

TODAY FREE FORECLOSURE/SANDY CLINIC

I will be volunteering today, Monday, December 8, at the Nassau County Bar Association's free clinic for Mortgage Foreclosure, Bankruptcy and Superstorm Sandy issues. 
 
For more information, contact Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501 at (516) 747-4070.

Friday, December 5, 2014

MORE ON SANDY AND ENGINEERING REPORTS

Reported that the plaintiff in the recent engineering report case and another Sandy victim recently filed a class action lawsuit against an insurance company and several associates, claiming they schemed to manipulate a Federal Emergency Management Agency (FEMA) program for profit. Same counsel team from LI case.

See http://www.washingtonexaminer.com/rico-class-action-alleges-post-sandy-scheme-to-manipulate-fema-program/article/feed/2175233

Thursday, December 4, 2014

NEW COURT RULE - CONFIDENTIAL PERSONAL INFORMATION (CPI)

The Uniform Civil Rules of the Supreme and County Courts were amended to require the omission or redaction of Confidential Personal Information from papers filed with the court. See 22 NYCRR 202.5(e), relating to the omission or redaction of confidential personal information, effective January 1, 2015. Compliance with this rule is voluntary from January 1 through February 28, 2015, and mandatory thereafter:

"(e) Omission or Redaction of Confidential Personal Information.

(1) Except in a matrimonial action, or a proceeding in surrogate's court, or a proceeding pursuant to article 81 of the mental hygiene law, or as otherwise provided by rule or law or court order, and whether or not a sealing order is or has been sought, the parties shall omit or redact confidential personal information in papers submitted to the court for filing.  For purposes of this rule, confidential personal information (“CPI”) means:

i.  the taxpayer identification number of an individual or an entity, including a social security number, an employer identification number, and an individual taxpayer identification number, except the last four digits thereof;
ii.  the date of an individual's birth, except the year thereof;
iii.  the full name of an individual known to be a minor, except the minor's initials;  and
iv.  a financial account number,  including a credit and/or debit card number, a bank account number, an investment account number, and/or an insurance account number, except the last four digits or letters thereof.

(2) The court sua sponte or on motion by any person may order a party to remove CPI from papers or to resubmit a paper with such information redacted; order the clerk to seal the papers or a portion thereof containing CPI in accordance with the requirement of 22NYCRR §216.1 that any sealing be no broader  than necessary to protect the CPI; for good cause permit the inclusion of CPI in papers; order a party to file an unredacted copy under seal for in camera review; or determine that information in a particular action is not confidential.  The court shall consider the pro se status of any party in granting relief pursuant to this provision.

(3)  Where a person submitting a paper to a court for filing believes in good faith that the inclusion of the full confidential personal information described in subparagraphs (i) to (iv) of paragraph (1) of this subdivision is material and necessary to the adjudication of the action or proceeding before the court, he or she may apply to the court for leave to serve and file together with a paper in which such information has been set forth in abbreviated form a confidential affidavit or affirmation setting forth the same information in unabbreviated form, appropriately referenced to the page or pages of the  paper at which the abbreviated form appears.

(4) The redaction requirement does not apply to the last four digits of the relevant account numbers, if any, in an action arising out of a consumer credit transaction, as defined in subdivision (f) of section one hundred five of the civil practice law and rules.  In the event the defendant appears in such an action and denies responsibility for the identified account, the plaintiff may without leave of court amend his or her pleading to add full account or CPI by (i) submitting such amended paper to the court on written notice to defendant for in camera review or (ii) filing such full account or other CPI under seal in accordance with rules promulgated by the chief administrator of the courts."

Wednesday, December 3, 2014

ON ADULT GUARDIANSHIPS

On April 21, 2014, the Uniform Adult Guardian Protective Proceedings Jurisdiction Act (UAGPPJA) took effect in New York as Mental Hygiene Law Article 83.

According to an earlier American Bar Association press release:

"In adult guardianship, state courts give one person or entity the duty and power to make personal and/or property decisions for another person who is determined to be incapacitated. Our increasingly mobile society creates complex jurisdictional issues concerning which state should have jurisdiction, how to transfer a guardianship to another state and whether a guardianship in one state will be recognized by another.  For example, what happens when an incapacitated person owns property in multiple states?  Or when family members, who may need to care for that person, are spread across the country?  Which state's laws govern the situation?  When conflict occurs, it often means a cumbersome and expensive loss of time and resources for family members, courts and lawyers.  Additionally, lack of clear rules of jurisdiction can foster “granny snatching” and other abusive actions.

Because of the myriad problems arising from multi-state guardianship cases, in 2007 the Uniform Law Commission approved the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act to provide a roadmap for addressing dilemmas in such cases."

Tuesday, December 2, 2014

CAREGIVER INFORMATION

The New York State Kinship Navigator is a program of Catholic Family Center located in Rochester, NY. Some helpful legal information and forms are available at their web site at:

http://www.nysnavigator.org/

Monday, December 1, 2014

LAWYERS AND DEPRESSION - FREE CLE

"Lawyers struggle with anxiety and depression at rates substantially higher than average, clear evidence that the law is a uniquely stressful profession that requires healthy coping skills and stress management techniques to guard against falling into personal crisis. This is especially true during the holidays, an enormously stressful and oftentimes emotionally challenging time in their own right. Please join Patrick R. Krill, Director of the Hazelden Betty Ford Foundation Legal Professionals Program, for an enlightening look at why the legal profession presents so many pitfalls for our mental health, as well as some useful strategies for avoiding those traps this holiday season."

http://www.hazelden.org/web/public/event.view?eventId=4347248

Wednesday, November 26, 2014

THANKSGIVING WISHES

And what is a legal holiday? According to 5 U.S. Code § 6103 - Holidays, with respect to federal government organizations and employees:

"(a) The following are legal public holidays:
 
New Year’s Day, January 1.
 
Birthday of Martin Luther King, Jr., the third Monday in January.
 
Washington’s Birthday, the third Monday in February.
 
Memorial Day, the last Monday in May.
 
Independence Day, July 4.
 
Labor Day, the first Monday in September.
 
Columbus Day, the second Monday in October.
 
Veterans Day, November 11.
 
Thanksgiving Day, the fourth Thursday in November.
 
Christmas Day, December 25."

Tuesday, November 25, 2014

ON HANDWRITTEN WILLS

This month's New York State Bar Association's BAR JOURNAL starts off with an article on "From Tractor Fenders to iPhones - Holographic Wills"

The definition of holograph is not just limited to issues relating to holography or holograms. but also refers to a document written wholly in the handwriting of the person whose signature it bears. But with respect to handwritten wills in New York, this can only be valid in very limited circumstances:

"Lay people often mistakenly believe that unwitnessed holographic wills are valid, especially if they grew up in countries where such wills were common. To many, the notion of taking charge and writing out their wishes simply, in their own words and in their own handwriting, may be appealing and may even be romanticized. Indeed, as explained above, a strong argument can be made that unwitnessed holographic wills should be valid when a person is lost or stranded, alone, and has no other choice. However, New York has steadfastly maintained that (except for those in the military or mariners at sea) all of the strict formalities of due will execution must be followed under all circumstances, even with handwritten wills."

Monday, November 24, 2014

MORE RE: SUPERSTORM SANDY

From today's Newsday: "Of 1,287 cases filed in the Eastern District from Long Island, Queens, Staten Island and Brooklyn, 1,075 were still open as of Thursday."

Friday, November 21, 2014

ON SANDY AND ENGINEERING REPORTS

As a follow up to last week's post re: the recent decision regarding discovery in Deborah Raimey and Larry Raisfeld vs. National Flood Insurance Co., 14 CV 461, part of In Re Hurricane Sandy Cases 14 MC 41:.

In today's Newsday, page A33, plaintiff's counsel, the Texas-based Mostyn Law, has a full page advertisement for assistance in their litigation. The advertisement also notes local counsel Denis G. Kelly, Esq.

Thursday, November 20, 2014

CREDIT HARM IN MATRIMONIAL ACTIONS

An email sent to me revealed that in California, the Family Law Act of 1970 allows awards for credit reputation harm. See https://creditdamageexpert.wordpress.com/2014/10/06/credit-harm-divorce-the-overlooked-recoverable-injury/

Compare that with the approach used in Stratton v. Stratton , 2013 NY Slip Op 50808(U)(Supreme Court, Sullivan County) found at this link:http://scholar.google.com/scholar_case?case=11969898743381898765&q=Stratton+v.+Stratton&hl=en&as_sdt=4,33

Wednesday, November 19, 2014

ELDER FINANCIAL ABUSE

Yesterday, at Suffolk County Courthouse in Central Islip, I attended a CLE on Financial Abuse of seniors.

The CLE noted the scope of people that engage in this - particularly scammers and family members. But according to National Adult Protective Services Association:

"Financial exploitation is a fast-growing form of abuse of seniors and adults with disabilities. Situations of financial exploitation commonly involve trusted persons in the life of the vulnerable adult, such as:
    • Caretakers
    • Family members
    • Neighbors
    • Friends and acquaintances
    • Attorneys
    • Bank employees
    • Pastor
    • Doctors or nurses"

Tuesday, November 18, 2014

Monday, November 17, 2014

TODAY FREE FORECLOSURE/SANDY CLINIC

I will be volunteering today, Monday, November 17, at the Nassau County Bar Association's free clinic for Mortgage Foreclosure, Bankruptcy and Superstorm Sandy issues. 
 
For more information, contact Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501 at (516) 747-4070.

Friday, November 14, 2014

ON SANDY AND ENGINEERING REPORTS

Many newspapers have front page stories on the recent decision regarding discovery in Deborah Raimey and Larry Raisfeld vs. National Flood Insurance Co., 14 CV 461, part of In Re Hurricane Sandy Cases 14 MC 41.

Interesting note: plaintiff's counsel was not a New York or Long Island attorney but J. Steve Mostyn, of Texas-based Mostyn Law.

Read more: http://www.newyorklawjournal.com/id=1202676256938/Judge-Fears-Manipulation-of-Claims-From-Sandy#ixzz3J2nJdrRd

Thursday, November 13, 2014

ELDER ABUSE?

Not an uncommon scenario - senior owns property and is unable to maintain it. Someone offers senior to help maintain property for a very low rent, gift, deed transfer, etc.

http://nypost.com/2014/11/08/landlord-brings-tenant-to-court-over-10-a-month-swindle/

Wednesday, November 12, 2014

DIAMOND RING - GIFT OR ENGAGEMENT?

It's interesting reading - Torres v Lopez 2014 NY Slip Op 51494(U) Decided on October 14, 2014 District Court Of Nassau County, First District Fairgrieve, J.

From the opinion:

"In DeFina v. Scott, 195 Misc 2d 75, 755 NYS2d 587 (Supt Ct, NY Cty 2003), the court states the applicable law in New York concerning the recovery of a ring:

The court starts with application of the traditional principle of New York law holding that an engagement ring is the property of the male donor when an engagement is terminated (see, Gagliardo v. Clemente, 180 AD2d 551, 580 NYS2d 278 [1st Dept 1992]; 11 NY Prac New York Law of Domestic Relations § 4:4, Courtship: Engagement Rings [2002], "Even prior to the enactment of the anti-heart balm legislation," cases held that "[t]he donee of the ring receives, at the time of the gift, only the right of possession. Firm ownership passes only upon the performance of the mar-riage").

This rule applies only to a ring given as an engagement ring (id., "If there were reasons other than a contemplated marriage why the gift was given, such as part of a birthday or holiday celebration, the ring may not be subject to return. Where there is a genuine dispute as to the circumstances under which the ring was given, a trial is necessary to determine the facts").
......

This court finds that while there is a very close issue of fact, the plaintiff failed to sustain his burden by preponderance of the evidence that the ring was solely given to defendant in contemplation of marriage."

Monday, November 10, 2014

ON CHILD ABDUCTION PREVENTION

"Parents may enroll their U.S. citizen children under the age of 18 in the Children’s Passport Issuance Alert Program (CPIAP), one of the Department of State’s most important tools for preventing international parental child abduction.  If a passport application is submitted for a child who is enrolled in CPIAP, the Department attempts to alert the parent or parents to verify whether the parents approve passport issuance."

See http://travel.state.gov/content/childabduction/english/preventing/passport-issuance-alert-program.html

Friday, November 7, 2014

FREE CLE - UNACCOMPANIED IMMIGRANT CHILDREN

On November 25 from PLI:

"The unprecedented number of unaccompanied immigrant children coming to the United States in recent years has created a great demand for competent pro bono attorneys to represent these children in Immigration Court. Attend PLI's Unaccompanied Immigrant Children — Effective Representation 2014 and learn important skills and information to provide the highest quality legal representation to children in need. Attorneys interested in taking on pro bono cases are strongly encouraged to attend."

See link below:

http://www.pli.edu/emktg/webversion/RHB4_8AEM1.html?t=RHB4_8AEM1&utm_source=8AEM1&utm_medium=EMAIL&utm_campaign=RHB4

Thursday, November 6, 2014

SENIOR CLINIC TODAY AT NASSAU COUNTY BAR ASSOCIATION

Senior Citizen Consultation Clinics 
Each month, attorneys provide 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 from 9:30 a.m. to 10:30 a.m. at the Nassau County Bar Association, 15th and West Streets, Mineola, NY. 

Wednesday, November 5, 2014

SETTLEMENT OFFER OF CREDIT CARD DEBT


This is what one looks like and at first it seems to look good - a 45% reduction of the debt is offered but note:

1. There is no agreement or representation regarding reporting the debt to Experion, etc. to help credit score.

2. If the amount of debt reduction exceeds $600, you will get a 1099 and it will be reportable income (technically, even if under $600, that would still be income as forgiveness of debt).

Tuesday, November 4, 2014

VOTE TODAY FOR THE PEOPLE WHO MAKE LAWS

Let us forget the national candidates for a minute and talk about local elections.

From a NY government website: "The job of the Senate is to work with the Assembly and the Governor to enact, amend or repeal statutes which make up the body of laws within which we live."

From a NY court website: "In New York State certain judgeships are filled by election, while others are filled by appointment."

These are the people you are voting for today - the people who make the laws and interpret them.

Monday, November 3, 2014

TODAY FREE FORECLOSURE/SANDY CLINIC

I will be volunteering today, Monday, November 3, at the Nassau County Bar Association's free clinic for Mortgage Foreclosure, Bankruptcy and Superstorm Sandy issues. 
 
For more information, contact Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501 at (516) 747-4070.

Wednesday, October 29, 2014

STUDENT MENTORING - NASSAU COUNTY

This is my first day of volunteering as a student mentor. This program is offered through the Nassau County Bar Association:

"Student Mentors
Provide valuable adult guidance and serve as a role model for at-risk middle school students in one-on-one sessions at a local middle school. The commitment is twice a month for less than an hour, but the rewards you receive are immeasurable. Mentors are always in demand.
→Contact Demi Tsiopelas at NCBA 516-747-4070 or dtsiopelas@nassaubar.org"

Tuesday, October 28, 2014

CHILD CUSTODY FORENSIC REPORTS

This has been reported in the NYLJ and others - JFD v. JD from Nassau Supreme Court Judge Goodstein:

"Accordingly, it is this Court’s belief that the forensic evaluator’s raw data, recordings, notes, tests, test results, and all material relied upon and created during the evaluation process are discoverable by both parties and by the Attorney for the Children. Likewise, this Court, while coming to this decision, shall, from this day forward, allow the parties themselves to read the report, as well as the raw material. However, the parties shall not be provided a copy of the report or the raw materials, but will be allowed to review the report and raw materials in their attorney’s office with an attorney present. They will be permitted to take notes, but will be precluded from taking photos and/or copies of the report and/or the raw data. This Court’s orders appointing forensic evaluators for custody purposes will address the evaluator’s responsibility to maintain and provide copies of all the raw data materials to the Court, which in turn, will provide same to counsel as set forth above with the signing of a Stipulation for Release and Use of Forensic Reports and Order as outlined above. Only in doing this can a party truly assist their counsel in preparing for an effective crossexamination."

Monday, October 27, 2014

MORTGAGE FORECLOSURE AND GOOD FAITH UNDER CPLR 3408 (f)

As I attend a mandatory settlement conference this morning, I am reminded that the Appellate Division, Second Department recently ruled that a mortgagee's conduct in evaluating a borrower's loan modification application should be judged using the "totality of the circumstances" standard to determine whether the mortgagee negotiated in good faith during mandatory foreclosure settlement conferences. Applying that standard in US Bank N.A. v. Sarmiento, 2014 NY Slip Op 05533 (2d Dep't July 30, 2014), the Appellate Division affirmed a lower court's holding that a foreclosing plaintiff failed to negotiate in good faith, stating in part:

"Therefore, we hold that the issue of whether a party failed to negotiate in "good faith" within the meaning of CPLR 3408(f) should be determined by considering whether the totality of the circumstances demonstrates that the party's conduct did not constitute a meaningful effort at reaching a resolution. We reject the plaintiff's contention that, in order to establish a party's lack of good faith pursuant to CPLR 3408(f), there must be a showing of gross disregard of, or conscious or knowing indifference to, another's rights. Such a determination would permit a party to obfuscate, delay, and prevent CPLR 3408 settlement negotiations by acting negligently, but just short of deliberately, e.g., by carelessly providing misinformation and contradictory responses to inquiries, and by losing documentation. Our determination is consistent with the purpose of the statute, which provides that parties must negotiate in "good faith" in an effort to resolve the action, and that such resolution could include, "if possible," a loan modification (CPLR 3408[f]; see Wells Fargo Bank, N.A. v Meyers, 108 AD3d at 11, 18, 20, 23; Wells Fargo Bank, N.A. v Van Dyke, 101 AD3d 638 [the defendants did not demonstrate that the plaintiff failed to act in good faith because nothing in CPLR 3408 requires a plaintiff to make the exact settlement offer desired by the defendants]; HSBC Bank USA v McKenna, 37 Misc 3d 885 [Sup Ct, Kings County] [the plaintiff failed to act in good faith based upon, inter alia, a referee's finding that the plaintiff rejected an all-cash short sale offer]).

Where a plaintiff fails to expeditiously review submitted financial information, sends inconsistent and contradictory communications, and denies requests for a loan modification without adequate grounds, or, conversely, where a defendant fails to provide requested financial information or provides incomplete or misleading financial information, such conduct could constitute the failure to negotiate in good faith to reach a mutually agreeable resolution."

Friday, October 24, 2014

UNDOCUMENTED CHILD AND SCHOOL

I had a consultation on this yesterday at the pro bono fair:

1. This is the problem:

http://www.nytimes.com/2014/10/22/nyregion/rules-and-paperwork-keep-long-islands-immigrant-children-from-classroom.html?_r=0

2: This is the current action the state education department and AG office is taking:

http://www.longislandpress.com/2014/10/23/ag-to-review-districts-undocumented-student-enrollment-policies/

But what should a parent do at the moment if the school does not accept the child due to lack of residency documentation? First, it is suggested for the parent to contact his/her church to see if they can range some temporary education. Next, documents can be created to establish residency, viz., affidavit of residency, to satisfy the school until this issue is resolved. If the school does not accept, appeal to the commissioner:'

http://www.counsel.nysed.gov/appeals

Thursday, October 23, 2014

NASSAU COUNTY PRO BONO FAIR TODAY

The Nassau County Bar Association’s Pro Bono Fair is today Thursday, October 23rd, 2014 from 3-7pm.  I have agreed to be one of many volunteers.

For information, etc., contact:

Nassau County Bar Association
15th and West Streets
Mineola, NY 11501
(516) 747-4070 x 203

Tuesday, October 21, 2014

ORDERS OF PROTECTION - CLE AT NASSAU COUNTY BAR ASSOCIATION

 A CLE presentation,  Orders of Protection,  begins at 5:30 PM at the Nassau County Bar Association.

Monday, October 20, 2014

NASSAU COUNTY PRO BONO FAIR OCTOBER 23

The Nassau County Bar Association’s Pro Bono Fair is going ahead as scheduled Thursday, October 23rd, 2014 from 3-7pm.  I have agreed to be one of many volunteers.

For information, etc., contact:

Nassau County Bar Association
15th and West Streets
Mineola, NY 11501
(516) 747-4070 x 203

Friday, October 17, 2014

BEING A PARENT AND AN ATTORNEY

The headline the other day read "Attorney denied hearing delay appears with baby" and here is a link to the full story:

http://news.yahoo.com/attorney-denied-baby-time-brings-infant-court-204048601.html?soc_src=mediacontentsharebuttons

A couple of times I had to bring my then elementary age school kids to court. One I remember was a conference at Supreme Court and another I remember for an administrative hearing.



Thursday, October 16, 2014

VOLUNTEER OPPORTUNITY

The Nassau County Bar Association sponsors various pro bono and volunteer opportunities, one of which I have volunteered for and starting the end of this month:

"Student Mentors
 
Provide valuable adult guidance and serve as a role model for at-risk middle school students in one-on-one sessions at a local middle school. The commitment is twice a month for less than an hour, but the rewards you receive are immeasurable. Mentors are always in demand."

Wednesday, October 15, 2014

MORE RE: SUPERSTORM SANDY

As I read in today's Newsday about many issues Sandy victims are still having, particularly with New York Rising, I pass along these links to a group I discovered during the last Sandy clinic at the Nassau County Bar Association - they may be able to assist homeowners to link up with architects who will prepare plans for reconstruction:

http://architectureforhumanity.org/content/hurricane-sandy-reconstruction

http://openarchitecturenetwork.org/projects/hurricane_sandy

Tuesday, October 14, 2014

FOR SENIORS - FREE LEGAL CLINIC TODAY

Senior Citizen Consultation Clinics

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 from 9:30 a.m. to 10:30 a.m. at the Nassau County Bar Association, 15th and West Streets, Mineola, NY.

There is a clinic today starting at 9:30 (I will attempt to be there after a court appearance). The next schedule clinic is on the NCBA Calendar.

Advance telephone registration is required. Please call NCBA: (516) 747-4070. Attorneys fluent in other languages are available upon request when registering.

Friday, October 10, 2014

FREE CONSULTATIONS TOMORROW

I will be exhibiting at the following Levittown Fall  Community Festival.

Thursday, October 9, 2014

WHAT IS DOCUMENTARY EVIDENCE UNDER CPLR 3211(a)(1)

Attias v Costiera, 2014 NY Slip Op 06163, Decided on September 17, 2014, Appellate Division, Second Department:

""On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff's allegations are accepted as true and accorded the benefit of every possible favorable inference" (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996; see Leon v Martinez, 84 NY2d 83, 87). A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the ground that a defense is founded on documentary evidence "may be [*2]appropriately granted only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Rodolico v Rubin & Licatesi, P.C., 114 AD3d 923, 924-925). "The evidence submitted in support of such motion must be documentary or the motion must be denied" (Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714 [internal quotation marks omitted]; see Fontanetta v John Doe 1, 73 AD3d 78, 84; see also David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C 3211:10, at 21-23).

In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as "documentary evidence," it must be "unambiguous, authentic, and undeniable" (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [internal quotation marks omitted]; see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case" (Fontanetta v John Doe 1, 73 AD3d at 84-85 [internal quotation marks omitted]; see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714). At the same time, "[n]either affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)" (Granada Condominium III Assn. v Palomino, 78 AD3d at 997 [internal quotation marks omitted]; see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714; Suchmacher v Manana Grocery, 73 AD3d 1017, 1017).

Here, the affidavits submitted by the defendants, their attorney's affirmation, and the correspondence that was submitted in support of the defendants' motion did not constitute documentary evidence within the meaning of CPLR 3211(a)(1), and should not have been relied upon by the Supreme Court in directing the dismissal of the complaint pursuant to CPLR 3211(a)(1) (see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714; Granada Condominium III Assn. v Palomino, 78 AD3d at 997; Fontanetta v John Doe 1, 73 AD3d at 84-85). The only documentary evidence submitted in support of the defendants' motion was the contract of sale and the rider to the contract of sale. However, these submissions did not "utterly refute" the plaintiff's allegations or "conclusively establish[ ] a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; see Rodolico v Rubin & Licatesi, P.C., 114 AD3d at 924-925; JP Morgan Chase Bank, N.A. v Balliraj, 113 AD3d 821, 821; Uzzle v Nunzie Ct. Homeowners Assn., Inc., 70 AD3d 928, 930). Accordingly, the Supreme Court erred in granting that branch of the defendants' motion which was to pursuant to CPLR 3211(a)(1) to dismiss the complaint."

Thanks to email from David Gabay, Law Offices of David A. Gabay, PC

Wednesday, October 8, 2014

ON "WELFARE MORTGAGES"

According to an email from Empire Justice Center:

"The 2014-15 New York State budget contains Article VII legislation that amends SSL 106 to clearly state that HEAP, child care and SNAP cannot be charged against welfare mortgages.  Although this was true before the law was amended, the rules appeared only in regulation and sub-regulatory materials resulting in errors in the calculation of these mortgages.  The errors have been particularly egregious since there is no right to a fair hearing to challenge erroneous liens. 18 NYCRR 358-3.1(f)(5).  Effective May 30, 2014, the bill requires a signed acknowledgement from all applicants who are asked to sign a welfare mortgage that  
  • HEAP, child care and food stamps cannot be charged against the mortgage;
  • Child support retained by the district, as well as any other payment (lottery winnings, etc.), must be applied to reduce the mortgage;
  • That a person can refuse to sign a mortgage and still get a grant for their children."
See:http://www.empirejustice.org/policy-advocacy/legislative-updates/new-law-makes-the-rules.html

Tuesday, October 7, 2014

VOLUNTEER LAWYERS PROJECT

Today I will be a volunteer lawyer with Nassau Suffolk Law Services at Landlord/Tenant court in Hempstead:
 
"Volunteer Lawyers Project
What is the Volunteer Lawyers
Project?
Attorneys are encouraged to volunteer to provide free legal assistance to the poor in Nassau County through the Volunteer Lawyers Project. NCBA partners with the Nassau/Suffolk Law Services Committee to support VLP, which helps maximize the quantity and quality of pro bono assistance provided for the county's low-income community.
 
What programs are part of the VLP?
Volunteer attorneys handle a wide array of cases including matrimonial matters, individual bankruptcy, personal injury and negligence defense, estate matters, release of accounts blocked by judgment creditors, and various other civil matters.
 
     • The Landlord/Tenant Project's Attorney of the Day Program assists thousands of men, women and children in court to prevent homelessness.
 
     • The Bankruptcy Clinics assist families either with advice or the filing for a Chapter 7 bankruptcy, when appropriate.
 
     • The Matrimonial Project assists hundreds of individuals in obtaining divorces, child support and custody.
 
How does it work?
An attorney based at VLP’s offices in Hempstead conducts client intake interviews and refers clients to appropriate volunteer attorneys. The VLP attorney also recruits and trains volunteer attorneys to handle cases."

Monday, October 6, 2014

HOME INSURANCE

From the Suffolk County Bar Association:


WHAT YOU NEED TO KNOW ABOUT HOME INSURANCE
Free Public Service Program from the Suffolk Academy of Law
 
On Monday, October 6, the Suffolk Academy of Law, in conjunction with the SCBA Real Property Committee, will present a FREE public service seminar on HOME INSURANCE. The program runs from 6:30 to 8:00 p.m. and will succinctly cover such topics as determining what kind of and how much insurance is needed, new legislation affecting flood insurance, procedures to follow after a loss, deductions, and calculating liability. PLEASE TELL YOUR CLIENTS, FRIENDS AND FAMILY MEMBERS about the program and invite them to attend.

Of course, attorneys - also home owners and renters - are invited to attend this free program as well.  And if you would like to earn 1.5 MCLE credits for the presentation, you may do so through the payment of a small tuition free ($35 for SCBA members; $50 for non-members).   

Access the publicity flier by clicking here: http://www.scba.org/post/homeinsurance.pdf 

Thursday, October 2, 2014

NEW YORK UNEMPLOYMENT INSURANCE BENEFITS INCREASE

As reported in Newsday, starting Monday the maximum amount increases from $405 to $420 a week and the minimum increases from $64 to0 $100 a week.

See http://www.newsday.com/business/nys-unemployment-benefits-rising-to-420-a-week-1.9455647

Wednesday, October 1, 2014

NEW YORK CHILD CUSTODY - SEEKING A HEARING ON MODIFYING A VISITATION ARRANGEMENT

Magee v Magee 2014 NY Slip Op 05163 Decided on July 9, 2014 Appellate Division, Second Department (emphasis supplied)

""Modification of an existing visitation arrangement is permissible only upon the showing of a material change of circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child" (Vaccaro v Vaccaro, 83 AD3d 691). "[O]ne who seeks a change in visitation is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing" (Matter of Collazo v Collazo, 78 AD3d 1177). Contrary to the father's contention, the Supreme Court properly denied, without a hearing, his motion to modify the provisions of the parties' stipulation of settlement regarding custody and visitation (see Matter of Sullivan v Moore, 95 AD3d 1223; Matter of Francois v Grimm, 84 AD3d 1082; Matter of Figueroa v Lewis, 81 AD3d 823; Matter of Mazurkiewicz v Pindor-Mazurkiewicz, 80 AD3d 615, 616). The father's assertions were unsubstantiated and conclusory or did not allege a material change in circumstances. Accordingly, he failed to make the requisite showing (see Matter of Palmiotti v Piscitelli, 100 AD3d 637, 638; Matter of Aronowich-Culhane v Forunier, 94 AD3d 1114, 1115)."

Tuesday, September 30, 2014

STAR EXEMPTIONS AND REAL ESTATE TRANSFER IN 2014

Case: Until this year, your Basic STAR exemption renewed automatically.  If you want your Basic STAR to renew for 2014, you would generally have to register for renewal before December 31, 2013.

Seller of House A has Basic STAR for 2013/June 30, 2014 but leaves House A in 2013 to retire and puts House A on market. Seller cannot apply for Basic STAR because House A is no longer primary residence.

Buyer of House A contracts for sale of House A in May 2014 and closes end of June 2014.

Buyer discovers there is no Basic STAR for 2014/2015 and must apply for Basic STAR to take effect for 2015/2016.

Tuesday, September 23, 2014

NEW YORK REAL ESTATE - TITLE AGENT LICENSING

As I read recently in the NYSBA State Bar News, title insurance agents in New York are now required to register with the state, meet qualification standards and undergo regular training as part of the state’s new licensing process.

See http://nyslta.org/advocacy/2013-2014-title-agent-licensing-bill

Monday, September 22, 2014

SANDY/FORECLOSURE CLINIC TODAY

Today is the Nassau County Bar Association Mortgage Foreclosure/Superstorm Sandy Recovery Consultation Clinics from 3 to 6 p.m. To register call 516-747-4070  

Friday, September 19, 2014

NEW YORK FAMILY LAW - FAMILY DISPUTES AND VISITATION

Yesterday, I reported on a case regarding what payor spouse may allege regarding spousal maintenance when recipient spouse moves in with parents.

Sometimes, a spouse returning to live with parents after divorce will raise issues. One perhaps extreme example is Matter of Matter of Christina KK. v Kathleen LL. 2014 NY Slip Op 04989 Decided on July 3, 2014 Appellate Division, Third Department which can be found at this link:

http://law.justia.com/cases/new-york/appellate-division-third-department/2014/516619.html

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"

Tuesday, September 9, 2014

ZOMBIE HOMES

Yesterday, I was one of several volunteer attorneys at the Nassau County Bar Association Mortgage Foreclosure Assistance clinics.

And yesterday, Associated Press had a story on "zombie homes" that was featured in various New York papers, defining "zombie homes" as homes which are "no longer under control of their owners with pending foreclosure, but not yet under control of a bank or lender."

Here's a link:

http://money.msn.com/business-news/article.aspx?feed=AP&date=20140907&id=17910861

Monday, September 8, 2014

WHEN TAX AUTHORITIES PIERCE THE CORPORATE VEIL

From an email from COHEN GREVE &; COMPANY CPA, P.C.:

Responsible Person: Payroll Taxes and Accountability

An employer is required to withhold Federal and State payroll taxes from employee wages and compensation, and then remit such taxes within specified time periods. The taxes withheld are often called “trust fund taxes” because the employer is holding the funds until such time they are remitted. These taxes usually include FICA, Medicare, Federal and State withholding taxes.

Internal Revenue Code Section 6672(a) provides that “any person required to collect, truthfully account for and pay over any tax imposed by the Internal Revenue Service who wilfully fails to do so, will, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax not collected or paid over.” Under this section, the use of the term “person” allows the IRS to pierce the corporate veil and go directly against any person who is responsible for the businesses’ failure to pay over trust fund taxes, thereby making that person personally liable for the employer’s unpaid payroll taxes.

Both the Internal Revenue Service and the courts broadly define a “responsible person.” The primary factor in determining “responsible person” status is whether a person has the statutorily imposed duty to make the tax payments. Other factors may be weighed in the determination of whether or not someone is a “responsible person,” but the IRS and courts focus on the relationship the individual has with the business and considers the following:

  1. Do you have the ability to compel or prohibit funds to be allocated?
  2. Do you have authority to sign checks?
  3. Do you have authority to make decisions for disbursement of funds and payment of creditors?
  4. Are you an officer and director of the company?
  5. Do you have control over company’s payroll?
  6. Do you prepare and sign payroll tax returns?
  7. Do you actively participate in day-to-day management?
  8. Do you have the authority to hire and fire employees?

It is not uncommon in business that company owners do not want to be bothered with accounting on tax matters, or for directors to rely on an employee to take care of payroll and payroll tax matters. It is important to note however, that delegation of authority does not relieve a person of responsibility to collect and pay taxes to the government. In many court rulings, the courts have determined that the same authority that permits control carries with it a non-delegable duty to ensure that withholding taxes be collected and remitted in accordance with the law.

Trust fund penalties can be assessed against any deemed “responsible person” who fails to pay withheld taxes when sufficient funds are available but are directed to pay other obligations instead.

The threat of being fired by management for paying the taxes will not make that individual less responsible. The courts have determined that an individual is not entitled to place their own interests concerning employment over and above that of the government’s right to collect payroll taxes.
The IRS considers “wilful failure” to be the failure to remit trust fund taxes wilfully if it is a voluntary, conscious and intentional act. It is considered “wilful failure” if an individual knew of any non-payments or disregard that the payments were made.

If it can be proven that an individual failed to assess and correct the payroll tax deficiencies immediately upon learning of their existence, directed to pay other creditors first, or neglected their duty to use all available funds to pay back taxes, that individual is deemed a “responsible person” and can be held personally liable for unpaid payroll taxes. 1000% of the trust fund penalty will be assessed against them personally. Failure to pay trust fund taxes can also lead to criminal charges punishable by up to a $10,000 fine or five years in prison or both.

If you are a business owner or a person whose responsibilities makes you a “responsible person” (see items 1 – 8 above), be certain that all payroll taxes are being properly withheld and remitted in a timely manner. Many individuals who are simply employees of companies may be deemed a responsible person and not even be aware of it.

Read more: http://www.cohengreve.com/responsible-person-payroll-taxes-and-accountability/#ixzz3Cih5TTPw"

Friday, September 5, 2014

INDICTMENT ON SUPERSTORM SANDY SCAM - UNLICENSED PLUMBER?

Some homeowners can only seek relief in civil litigation when dealing with issues with home improvement contractors. In this case dealing with a plumber and Sandy victims, the district attorney stepped in:

http://www.newsday.com/long-island/nassau/david-jensen-indicted-after-taking-money-from-superstorm-sandy-victims-without-doing-work-da-says-1.9228446

Plumbers and Electricians that operate in Nassau County, are licensed by the cities, towns and villages. For more information, contact the city, town or village directly.

Thursday, September 4, 2014

AND EVEN MORE RE: SUPERSTORM SANDY

From the Town of Hempstead website:

"Hempstead Town is waiving building department permit fees (building permit and plumbing permit fees) for “in-kind” reconstruction and replacement of homes damaged by Hurricane Sandy in unincorporated areas of the town through September 30, 2014. In addition, the town will waive permit fees through September 30, 2014 for storage pods, and/or private trailers placed on property of single and two-family dwellings being repaired or replaced due to the effects of Hurricane Sandy. Residents of incorporated areas should check requirements of their local villages."

Wednesday, September 3, 2014

MORE RE: SUPERSTORM SANDY

From the Town of Hempstead website:

"Now extended through September 30, 2014, the Hempstead Town Clerk’s Office is waiving fees for replacement birth, death and marriage certificates, as well as marriage transcripts lost in Superstorm Sandy. Residents must show a FEMA claim or homeowner’s/flood insurance claim in order to take advantage of the fee waiver. Nassau County residents who have lost records in the storm (deed and mortgage documents) can call the Nassau County Clerk at (516) 571-6377 to inquire about replacement records (New York State fees apply)."

Tuesday, September 2, 2014

EMAIL ISSUE RESOLVED

Recently, it was discovered that my jmpattorney.com email server was down resulting in duplicate emails being sent - the issue has been resolved and I apologize for any inconvenience.

Wednesday, August 27, 2014

THE SECOND DEPARTMENT AND RECENT RELOCATION REQUESTS

Compare Matter of Hall v Hall 2014 NY Slip Op 04487 Decided on June 18, 2014 Appellate Division, Second Department (Relocation with single child to Georgia allowed - mother had remarried and child blended into new family) with Matter of Haughton v Tsang 2014 NY Slip Op 04488 Decided on June 18, 2014 Appellate Division, Second Department (relocation of two children to Florida denied - limited facts).

Tuesday, August 26, 2014

HOPE LOAN PORT - MORTGAGE FORECLOSURE AND MODIFICATIONS

"Hope LoanPort® (HLP) is a neutral, national, and non-profit utility providing technology-based solutions that facilitate transparency, accessibility, consistency of treatment and a superior experience to consumers and their advocates in pursuit of foreclosure alternatives and affordable home loans in underserved markets. Use of HLP is free for the authorized HUD-approved nonprofit housing counselors working on behalf of the homeowner. For mortgage servicers, homeowners and their advocates, HLP is an established communication and processing platform dedicated to providing homeowners with a neutral assistance option. HLP is regularly updated to facilitate compliance with evolving Federal and Investor assistance programs and servicing guidelines. HLP's secured web-based portal includes real time messaging between counselors and servicers, status updates, and electronic document storage."

See https://www.hopeloanportal.org/

Monday, August 25, 2014

MORTGAGE MODIFICATION SCAMS

Earlier this month,  three defendants in New York were charged with engaging in a mortgage modification scheme that defrauded over 8,000 homeowners in all 50 states out of over $18.5 million, in what is believed to be the largest mortgage modification scheme ever charged.

For the story, see http://nationalmortgageprofessional.com/news50934/Loan-Mod-Scheme-Netting-18.5-Million-From-8%2C000-Plus-Victims-Taken-Down

Friday, August 22, 2014

BONA FIDE PURCHASER AND MORTGAGE FORECLOSURE

Supplementing an earlier post, in foreclosure actions, an issue may arise on the effect of possession of an occupant of real property by one other than the seller/vendor on a prospective purchaser's status as a bona fide purchaser. This appears to be a concern in certain foreclosure rescue scams.

The Home Equity Theft Reporter Cases & Articles has compiled a list of New York cases, from trial courts to Court of Appeals:

http://homeequitytheft-cases-articles.blogspot.com/2014/08/new-york-bona-fide-purchaserduty-to_2.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+TheHomeEquityTheftReporterCasesArticles+%28The+Home+Equity+Theft+Reporter+Cases+%26+Articles%29

Wednesday, August 20, 2014

NEW YORK MATRIMONIAL LAW - CHILD CUSTODY & BLENDED FAMILIES

We all know about the Brady Bunch and the perfect blended family - but that was TV and not real life. In the following case, it became one of the factors that led the court to determine that custody should be changed from mother to father:

Matter of Matter of Cheney v Cheney 2014 NY Slip Op 04372 Decided on June 13, 2014 Appellate Division, Fourth Department:

"The record also supports Family Court's determination that, although the child had been outgoing in nature with a sunny disposition, she became withdrawn, sad and subject to emotional outbursts after the mother moved in with her current boyfriend and his three children."

Tuesday, August 19, 2014

NEW YORK MATRIMONIAL LAW - MODIFICATIONS TO SETTLEMENTS

See Matter of Matter of Kristina P. (Joseph Q.) 2014 NY Slip Op 04109 Decided on June 5, 2014 Appellate Division, Third Department:

".....

The parties' oral stipulation and opting out agreement, which was incorporated but not merged into their 2007 judgment of divorce, obligated the father to pay child support to the mother in the amount of $485 per week, but was silent as to responsibility for the cost of the children's educational expenses. In October 2011, as a result of difficulties the child was experiencing in public school, the mother asked for the father's consent to enroll the child in a private Catholic school. The father ultimately agreed, on the condition that the mother take full responsibility for payment of the child's tuition, and the parties' agreement was memorialized in a written, notarized statement. The child was then enrolled in the private school and, at the end of that school year, the mother commenced this modification proceeding seeking to, among other things, require the father to pay his pro rata share of the child's educational expenses. After a hearing, a Support Magistrate determined, as relevant here, that the father was obligated to pay 71% of the child's private school tuition, beginning with the 2012-2013 academic year. Family Court subsequently denied the father's objections and this appeal by the father ensued.

We affirm. Initially, we conclude that the father's reliance on the parties' written agreement that the mother would bear the cost of the child's tuition is misplaced, as Family Court [*2]has no jurisdiction to enforce such independent contract (see Matter of Hirsch v Schwartz, 93 AD3d 1114, 1115 [2012]; Matter of Zamjohn v Zamjohn, 158 AD2d 895, 896 [1990]).
.......
"

Thursday, August 14, 2014

PROPOSED DISCOVERY RULE FOR COMMERCIAL CASES

From a press release from OCA in June (italics supplied):

"The Commercial Division Advisory Council has recommended adoption of a new Rule of
the Commercial Division that would establish a presumptive limit of 10 depositions for each side
and limit the duration of depositions to seven hours per witness
(Exh. A). The Advisory
Council's proposal follows up on the 2012 Report of the Chief Judge's Task Force on
Commercial Litigation in the 21' Century, which endorsed the limitations on depositions set
forth in the Federal Rules of Civil Procedure. The Advisory Council's proposed limit of 10
depositions per side is consistent with Fed. Rule Civ. P. 30(a)(2)(A)(i) and procedural rules of
other states. The seven hour durational limit is consistent with Fed. Rule Civ. P. 30(d)(1) and
would allow for reasonable breaks for lunch and other reasons. To ensure that litigants and
judges have flexibility to tailor the presumptive limitations to the circumstances of each case, the
parties would be able to extend or alter the presumptive limits by agreement. Absent such an
agreement, the party seeking a variance would be required to obtain an appropriate court order
upon a showing of good cause.
The Advisory Council believes that this proposal will improve
the efficiency of discovery and reduce the overall cost of litigation.
Persons wishing to comment on this proposal should e-mail their submissions to
rulecomments@nycourts.gov or write to: John W. McConnell, Esq., Counsel, Office of Court
Administration, 25 Beaver Street, 11th Fl., New York, New York 10004. Comments must be
received no later than August 19, 2014.
All public comments will be treated as available for disclosure under the Freedom of
Information Law and are subject to publication by the Office of Court Administration.
Issuance of a proposal for public comment should not be interpreted as an endorsement of
that proposal by the Unified Court System or the Office of Court Administration."

Wednesday, August 13, 2014

NEW YORK CHILD CUSTODY - ROLE OF ATTORNEY FOR CHILD

Attorneys, judges, etc. are human and we all have our opinions, bias, prejudices, etc. Many times I have heard complaints, from clients or opposing side in matrimonial matters, regarding the position taken by the attorney for the child.

This recent case came to my attention...Shaw v. Bice, --- A.D.3d ---, --- N.Y.S.2d --- (Fourth Dept. 2014)(2014 WL 1855552)(2014 N.Y. Slip Op. 03410)(May 09, 2014) and I believe it is important for litigants in custody matters to recognize this rule regarding the attorney for the child:

"The Rules of the Chief Judge provide that an attorney for the child 'must zealously advocate the child's position' and that, '[i]f the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child's best interests' (22 NYCRR 7.2[d][2]; see Matter of Swinson v. Dobson, 101 AD3d 1686, 1687, lv denied 20 NY3d 862). Nevertheless, '[w]hen the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child's wishes. In these circumstances, the attorney for the child must inform the court of the child's articulated wishes if the child wants the attorney to do so, notwithstanding the attorney's position' (22 NYCRR 7.2[d][3])."
 
Question: the court states "the attorney for the child must inform the court of the child's articulated wishes if the child wants the attorney to do so"...it would be my opinion that the attorney for the child must inform the child of this right. But what if the child is very young or otherwise is unable to understand this...should the attorney for the child inform the court of the child's wishes even if the child did not state to the attorney that the child wants the attorney to do so?

Tuesday, August 12, 2014

NEW YORK FORECLOSURE STATUS

Last month, RealtyTrac® (www.realtytrac.com), the leading online marketplace for real estate data, today released its Midyear 2014 U.S. Foreclosure Market Report which noted the following regarding New York foreclosures:

1. Lender repossessions ions up 49%

2. Foreclosure actions up 10%

3. The average time to foreclosure decreased 10% to 930 days.

See: http://www.realtytrac.com/content/foreclosure-market-report/june-and-midyear-2014-us-foreclosure-market-report-8111

Friday, August 8, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 14

In January of this year, the California law firm of Lozano Smith authored an article "New Risks in the New Year: Use Caution with "Agreement Not to Contest Unemployment Benefits" Clauses". Although dealing with California law, I am mindful that like New York, California had to conform its Unmeployment Insurance rules to conform with the same Unemployment Insurance Integrity Act  originally passed Congress in 2011 that took effect in late 2013.

In many respects, California UI is similar to New York's rules as the article notes:

"California law, enacted in response to the Act, allows for employers to lose credit for payments into their unemployment insurance account when "the employer or agent fails to respond timely or adequately in two instances relating to the individual claim for unemployment compensation benefits." (Unemp. Ins. Code §1026.1.) Further, under California law, if the employer "willfully makes a false statement of representation or willfully fails to report a material fact concerning termination," the employer and/or the employer's agent can be fined between two and ten times the weekly benefit amount (up to a maximum of $4,500). (Unemp. Ins. Code §1142, et. seq.)"

The article conludes with (note that the EDD is the California Employment Development Department similar to New York's Department of Labor Unemployment Insurance Division):

"Going forward, if you are considering a proposed separation agreement that contains a "do not contest" clause, you should:

Avoid blanket "Do Not Contest" clauses that do not comply with state and federal law.

Include language in the agreement clearly stating that you will not withhold or misstate any information in response to inquiries from the EDD"





Thursday, August 7, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 13

As noted in an earlier post, in April of this year, the law firm of Epstein Becker Green posted an article "Act Now Advisory: Changes to New York State's Unemployment Insurance Laws May Affect Employers' Severance Procedures and How Employers Respond to DOL Inquiries". The article concluded with the following \:

"What New York Employers Should Do Now
  • .......
  • In light of the potential ramifications of a "pattern of failing to respond," consider eliminating provisions from severance agreements whereby the company agrees not to contest applications for UI benefits. The DOL may, in connection with an assessment of UI eligibility, request a copy of the separation agreement, and nothing in that agreement should appear to demonstrate that you will take any unlawful, untruthful, or otherwise improper action in order for a former employee to receive UI benefits."

Wednesday, August 6, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 12

Continuing with the DOL notice "Important Notice to Employers - How to Keep Your Unemployment Insurance (UI) Costs Down" - the following has some items highlighted:

"4. Provide separation notices to employees.
You must give written notice to any employee who is terminated from employment. This notice
is required regardless of the reason for separation or whether it is a temporary or permanent
separation. You must provide this notice on a Record of Employment (IA 12.3) or a form
approved by the Department. It must include:

Employer’s name

New York State Employer Registration Number

The address to send the Notice of Potential Charges (LO 400)

A statement that tells the employee to have the form available when filing a claim for
benefits
You may print a supply of Record of Employment (IA 12.3) forms from our web site,
www.labor.ny.gov (follow the forms and publications link), or request approval of your own form
from the Liability and Determination Section. This form helps ensure that notices and requests
are mailed to you promptly and correctly and experience rating charges are accurate."

I had discussed this form earlier - it should be noted that it states:

"Employee: Keep this certificate. Have it with you if you apply for Unemployment Insurance (UI) benefits. This certificate shows that your job was insured. It does not necessarily mean you qualify for benefits. The UI Claims Center will make that determination if you apply."

Thus, this can be construed as a warning to employees that even if you were advised by your employer that they will consent to UI benefits, the DOL may make an adverse determination.

Tuesday, August 5, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 11

Continuing with the DOL notice "Important Notice to Employers - How to Keep Your Unemployment Insurance (UI) Costs Down" - the following has some items highlighted:

"2. Review notices of benefit entitlement or payment.

The Department will send you a Notice of Potential Charges (LO 400) when we determine that a former employee of yours is eligible to collect UI benefits. You can verify that UI benefits paid to former employees are correct based on the wage information. To ensure your account is completely credited, you must report any discrepancy in wage information or disqualifying information on the Notice of Potential Charges (LO 400) within 10 calendar days of the date on the notice. In most cases, this information will affect UI benefit payments from the date it is received.

The Department charges UI benefits paid to claimants to the account of the employers for whom the claimant worked. Every UI benefit payment charged to an employer’s experience rating account may increase their UI rate in future years. Employers are advised, via the Notice of Experience Rating Charges (IA 96), of all UI benefit payments to former employees that are charged to their accounts. This gives you the opportunity to report any UI benefit payments you believe were made incorrectly. If charges appear incorrect for any other reason, contact the Department’s UI Liability and Determination Section at the address in the letterhead.

Promptly contact the Department of Labor Telephone Claim Center at 1-888-890-5090 if you believe the claimant is currently working or otherwise not entitled to UI benefits. If you are in a position to re-employ the claimant, contact the claimant directly. You can find the claimant’s address on the Notice of Potential Charges (LO 400). In order to maximize savings to potential charges on your account, notify us as soon as possible if the claimant refuses rehire, fails to report to work, or if you are unable to contact them."


Monday, August 4, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 10

In October of 2013, as part of the new rules promulgated, the DOL issued a notice "Important Notice to Employers - How to Keep Your Unemployment Insurance (UI) Costs Down"

The notice begins:

"Several factors affect your UI costs. They are:

- UI benefits paid to former employees

- The overall condition of the UI Trust Fund

- Your reporting history

You can take steps to manage these factors and keep UI costs as low as possible. "
 

Friday, August 1, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 10

A note - and this does apply to this discussion - the DOL requires that Employers issue a Record of Employment (IA 12.3) and states:

"Give this completed form to separated employees to facilitate their application for UI benefits

http://labor.ny.gov/formsdocs/ui/IA12_3.pdf"

I have rarely seen this however furnished to an employee.

Thursday, July 31, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 9

It should be noted that on the DOL website FAQ for employers re "Employer UI Fraud", consenting to ineligible requests for benefits is not specifically mentioned:

"The State Labor Department has a 24-hour toll-free hotline for those who wish to report employer UI fraud. Examples of employer UI fraud are:
  • Paying “off the books” or “under the table” wages
  • Intentional misclassification of workers as independent contractors
  • State Unemployment Tax Act (SUTA) dumping – shifting workers between employer payrolls to improperly use a lower contribution rate"
So the question remains if the three items listed and later discussed are only examples, are there other examples, viz., consenting to ineligible requests for benefit.

Wednesday, July 30, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 8

Employers are also reminded to respond honestly to claim applications in the FAQ with respect to SIDES ( Developed through a strategic partnership between the U.S. Department of Labor and state Unemployment Insurance agencies, the State Information Data Exchange System (SIDES) and SIDES E-Response systems offer employers and third-party administrators (TPAs) – free of charge – a secure, electronic and nationally standardized format to respond to Unemployment Insurance information requests, reduce follow-up phone calls and streamline Unemployment Insurance response processes.):

"Q: What are the main causes of Unemployment Insurance overpayments?
A: The two largest causes of Unemployment Insurance overpayments are a lack of complete and accurate information when someone files a claim and people who work while collecting Unemployment Insurance benefits. Many Unemployment Insurance overpayments, which could be prevented by receiving timely and accurate information, negatively impact employers’ bottom lines.
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Q: Are SIDES and SIDES E-Response expected to reduce Unemployment Insurance overpayments?

A: Yes. Both options have the potential to reduce Unemployment Insurance overpayments while improving the Unemployment Insurance information exchange process."