Monday, March 31, 2014

HOMELESS IN NASSAU

Some information I found from various websites when I recently counseled a tenant who was not only facing eviction but lacked any financial means to obtain new premises. This list is not meant to be all inclusive but for those faced with eviction and in need of immediate housing assistance, please note the following:

1. "If a person is experiencing a housing crisis in Nassau County, he or she should go to the Nassau County Department of Social Services (DSS), at 60 Charles Lindbergh Blvd. in Uniondale, Monday thru Friday, between the hours of 8:00 am – 4:00 pm. A DSS emergency services unit worker will assess the individual’s needs. The person may have to wait some time before they receive their referral for an emergency housing placement. Shelter placements and assistance with emergency housing needs are provided at the Department of Social Services (DSS) under the auspices of the Nassau County Office of Housing and Community Development (OHCD). Eligible individuals and families can, on an emergency, temporary basis be assisted with shelter and other items of need to help them meet their emergency and move as quickly as possible to a stable self-sufficient role in the community. If a family or individual is threatened with eviction or foreclosure, assistance may be available to save the current housing. These programs are: Emergency Assistance to Families, Emergency Assistance to Adults and Emergency Safety Net Assistance. These programs were designed to meet one-time non-recurrent emergency situations. These benefits do have specific eligibility requirements, and each case receives the attention of a worker with specialized knowledge in this area. Applications for eligibility should be made as soon as the potential problem becomes known. Following approval of eligibility by DSS, OHCD will proceed with providing for emergency housing assistance."

2. "The INN’s emergency shelters provide housing and supportive services for guests experiencing the trauma of homelessness. The INN has three emergency shelters in Nassau County—two family shelters and one shelter for single men. The INN shelters are open all year long and staffed 24 hours a day, 7 days a week. Additional services provided to the shelters include educational workshops for the guests on activities of daily living, parenting, employment, nutrition, etc. The INN also has a housing specialist to assists families in locating and securing appropriate and affordable housing. For further information please contact The INN's main office, at (516) 486-8506"

3. "Bethany House provides safe, supportive, emergency housing for women and their dependent children, and a comprehensive range of additional programs and resources. Each shelter has a social worker to assist guests with crisis intervention and prevention, goal identification and achievement, and overcoming barriers that led to homelessness. The social worker also assists the guests in identifying and developing support systems and services to prevent the future of homelessness. Support staff helps guests to adjust to communal living; ensure a safe, stable, dignified environment; and provide information and referrals. Bethany House, 102 Whitehouse Avenue, Roosevelt, NY 11575 (516) 868-6866"

4. "Other programs that provide a temporary place to stay (usually three days to two weeks), generally in dormitory-style facilities with very little privacy, for people who have no permanent housing. Also included are programs that provide motel vouchers for people who are homeless.

See http://211longisland.communityos.org/taxonomy/taxonomy_overview.taf?taxonomy_id=525848"

Friday, March 28, 2014

CLE TODAY

I will be attending an all day CLE re: Article 81 Guardianships at the Nassau County Bar Association.

Thursday, March 27, 2014

FOR BUSINESS OWNERS

The following was from an email sent by COHEN GREVE & COMPANY CPA, P.C., Certified Public Accountants

"Forensic accounting is regular accounting's smarter younger sister. CPAs who undergo the extensive additional training and education to become credentialed in forensics and fraud investigation provide clients with complex technical skills that can uncover costly and sometimes criminal acts. According to the 2012 Report to the Nations from the Association of Certified Fraud Examiners, the typical organization loses 5% of its revenues every year to fraud. The median cost to the organizations: $140,000, with one fifth of fraud costing losses of at least $1 million.

Cohen Greve & Company engages in a considerable amount of forensic work, mostly but not limited to the matrimonial and shareholder dispute area. The matrimonial disputes include spouses hiding assets, income and doing whatever they can to maximize their "exit package."

The business side holds just as many dramatic personal stories, with partners and trusted bookkeepers shocking their partners and colleagues. To prevent your business from becoming a fraud statistic in 2014, here are some suggestions, based on our decades of experience as forensic accountants:

Have proper fiscal controls in place. Small businesses may find it burdensome, but monthly reports, monthly financial meetings and reviewing bank statements on a regular basis are necessary to catch problems upstream. Failure to do so will be far more costly in the long run.

Know what is going on in your business. We see this scenario very often. One partner doesn't like crunching numbers, and prefers closing deals and servicing clients. The other partner is in charge of everything financial: books, payroll, taxes and financial reporting. The potential for misunderstandings and mismanagement is enormous. When the business is successful, the outside partner doesn't want to know about the details. But if the business hits a rough patch, or the money starts getting funny, all of a sudden suspicions and accusations arise. That often results in hiring a forensic accountant.

Should you trust the trusted bookkeeper? Short answer: maybe not. Longer answer: fraud, fiscal abuse and outright embezzlement often arises when a long-standing employee - a bookkeeper, administrative assistant - has complete, unchecked access to bank accounts, signatory rights and the cash drawer. It doesn't matter how well paid the employee is either - an employee who feels that he or she deserves to enjoy the profits of the company for their years of service is just as likely to steal from the company as one who simply takes advantage of lax controls. An alarm should go off in an owner's head when the $40,000 bookkeeper shows up to work in a luxury car, wearing a Rolex or is taking luxurious vacations.

Set up a fraud-prevention system with a professional and follow the instructions. An experienced forensic accountant can help a business set up systems that will keep key partners informed, track normal flow of money and goods/services and set off alerts when something goes awry, regardless of the cause. Reminder: setting up the system is step one. Using it - and not ignoring the warning signs - will be critical to preventing fraud and losses to your business.

Forecasting to clarify expectations and measure progress. At the end of the fiscal year or at the least at the start of the New Year, create some parameters, some expectations for the coming year. Forecasting gives you a data set to compare performance, measure progress and establish hard numbers that can be used as a touchstone over the course of the year. Any wide variation in numbers should immediately be investigated.

Set the tone at the top. The business owner, senior officials and upper management are responsible for setting the tone for procedures and policies, what will be tolerated and what won't. This sends a clear message of what the business will stand for and what it won't. Best practices, adherence to high standards and accuracy and expectations of oversight can and will trickle down.

If you have questions or concerns about fraud in your business or in your client's business, call our office at 516-877-1900 and ask to speak with a partner."

Wednesday, March 26, 2014

APRIL 16 - NATIONAL HEALTHCARE DECISIONS DAY

National Healthcare Decisions Day exists to inspire, educate & empower the public & providers about the importance of advance care planning. National Healthcare Decisions Day is an initiative to encourage patients to express their wishes regarding healthcare and for providers and facilities to respect those wishes, whatever they may be.

National Healthcare Decisions Day

Monday, March 24, 2014

MORTGAGE FORECLOSURE NEW YORK - HOMEOWNERS MUST TIMELY FILE ANSWERS - PART 2

Chase Home Fin., LLC v Minott, 2014 NY Slip Op 01427, Decided on March 5, 2014, Appellate Division, Second Department (emphasis supplied):


"The plaintiff commenced this foreclosure action in December 2007 against Karon A. Minott, among others. Minott does not dispute that she was served with process and received the summons and complaint in late 2007 or early 2008. The plaintiff also served Minott with an order of reference in 2009. Nevertheless, Minott did not interpose an answer or otherwise appear in the action for more than four years after she was served with the summons and complaint. By order to show cause dated July 5, 2012, Minott moved for leave to interpose a late answer and, in effect, to vacate her default in appearing or answering. The Supreme Court granted the motion, concluding that Minott "ha[d] set forth a reasonable excuse and a potentially meritorious defense to the action." A defendant seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an untimely answer as timely must show both a reasonable excuse for the default and the existence of a potentially meritorious defense (see Community Preserv. Corp. v Bridgewater Condominiums, LLC, 89 AD3d 784; Taddeo-Amendola v 970 Assets, LLC, 72 AD3d 677; Perfect Care, Inc. v Ultracare Supplies, Inc., 71 AD3d 752, 753).
Here, Minott's claims that she "did not know that [she] needed to submit an answer," and that she relied on the advice of her real estate broker instead of consulting an attorney, do not constitute a reasonable excuse for her default (see U.S. Bank N.A. v Slavinski, 78 AD3d 1167, 1168; Yao Ping Tang v Grand Estate, LLC, 77 AD3d 822, 823; Dorrer v Berry, 37 AD3d 519, 520). This is especially so in view of the fact that the summons which was served upon Minott contained the specific language mandated by RPAPL 1320 warning her that she should "[s]peak to an attorney or go to the court," and that she "must respond by serving a copy of the answer" or risk the loss of her [*2]home (see HSBC Bank USA, N.A. v Lafazan, AD3d [decided herewith]). Moreover, although Minott alleges that she responded to the court notices to attend foreclosure settlement conferences in 2012, this does not excuse her preceding multi-year failure to answer the complaint. In addition, she has not demonstrated that the invocation of a court's inherent power to vacate a judgment in the interest of substantial justice is warranted in this case (see Woodson v Mendon Leasing Corp., 100 NY2d 62; Katz v Marra, 74 AD3d 888). "

Friday, March 21, 2014

MORTGAGE FORECLOSURE NEW YORK - HOMEOWNERS MUST TIMELY FILE ANSWERS - PART 1

HSBC Bank USA v. Lafazan: 2014 NY Slip Op 01436, Second Department, March 5, 2014 )emphasis supplied):

"In an action to foreclose a mortgage, the defendants Jeffrey Lafazan and Sandra Lafazan appeal from an order of the Supreme Court, Nassau County (Adams, J.), entered August 24, 2012, which denied their motion pursuant to CPLR 2004 and 3012(d) to compel the plaintiff to accept their late answer. .......... "To compel the plaintiff to accept an untimely answer as timely, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action" (Ryan v Breezy Point Coop., Inc., 76 AD3d 523, 524; see Community Preserv. Corp. v Bridgewater Condominiums, LLC, 89 AD3d 784, 785). "The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court" (Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 889, 890; see Star Indus., Inc. v Innovative Beverages, Inc., 55 AD3d 903, 904; Antoine v Bee, 26 AD3d 306, 306).  Here, the appellants' appearance and participation, along with their counsel, at settlement conferences required for certain residential mortgage foreclosure actions (see 22 NYCRR 202.12-a) evinced a desire to save their home. However, such appearances do not provide a reasonable excuse for their delay in answering. At the time the first conference was held, approximately 261 days had passed since the appellants' time to answer the complaint had expired (see CPLR 3012[a]). Under the circumstances of this case, the appellants' purported reliance on settlement discussions and their contention, in effect, that the plaintiff's counsel should have advised them that they were in default, do not constitute a reasonable excuse (see Community Preserv. Corp. v Bridgewater Condominiums, LLC, 89 AD3d at 785; see also Onewest Bank FSB v Berry, 25 Misc 3d 1218[A], 2009 NY Slip Op 52171[U] [Sup Ct, Suffolk County]). Moreover, these assertions are belied by the content and warning contained in the specialized summons served in this action to foreclose a residential mortgage (see RPAPL 1320). Since the appellants failed to offer a reasonable [*2]excuse, it is unnecessary to consider whether they sufficiently demonstrated the existence of a potentially meritorious defense (see U.S. Bank N.A. v Stewart, 97 AD3d 740).  Accordingly, the Supreme Court properly denied the appellants' motion pursuant to CPLR 2004 and 3012(d) to compel the plaintiff to accept their answer as timely."

Thursday, March 20, 2014

NEW YORK DIVORCE - FINANCIAL ISSUES TO BE CONSIDERED

Currently attending several matrimonial CLE's at Suffolk County Bar Association, and meeting up with one of the CLE sponsors Mark S. Gottlieb CPA, P.C., I forward this article from his offices:

Financial Issues to Consider During and After a Divorce

Wednesday, March 19, 2014

MORE RE: SUPERSTORM SANDY

Tragedy begets more tragedy. In addition to the issues below, homeowners are still struggling with the lack of funds to make repairs and for those lucky enough to have made repairs, disputes with contractors who may have been involved in price gouging, etc.

NEWSDAY - Displaced by Sandy, LI renters long for home

Monday, March 17, 2014

MORTGAGE FORECLOSURE - THE CURRENT DOWNSIDE OF A SHORT SALE AND LOAN MODIFICATION REDUCTION

A reminder that the federal Mortgage Forgiveness Debt Relief Act of 2007 was allowed to expire December 31, 2013 and the effect on short sales and loan modifications that involve reductions:

NY TIMES - Welcome Relief for Homeowners, Until the Tax Bill Arrives

Friday, March 14, 2014

THE RISKS OF DIVORCE LITIGATION

Some cases are made troublesome by other counsel and some are made troublesome by the litigants. This case was sent to me from several matrimonial listservs and can be summed as as follows:

"This case highlights the difficulties that arise when one party uses their self-represented status as both a sword and a shield in an attempt to gain undue advantage and behaves in a manner that the court would never tolerate from an attorney. The manner in which the defendant presented his minimal evidence, fueled by his own emotional agenda, lacked direction, reason and oftentimes was totally devoid of probative value. As a result of the defendant's lack of clarity in his presentation of evidence and the rambling nature of his post trial memorandum, the court was required to order numerous days of trial testimony in an effort to search the record for any evidence supporting the defendant's amorphous positions, thereby delaying this decision."

See G.T. v A.T., 2014 NY Slip Op 24035, Decided on February 10, 2014 , Supreme Court, Suffolk County

Thursday, March 13, 2014

TAX TIP - HOME OFFICE DEDUCTIONS

I am one of those attorneys who is office home based and this article comes from COHEN GREVE & COMPANY CPA, P.C., Certified Public Accountants:

"Electing Safe Harbor Method for Home Office Deduction

Many small business owners take a deduction for the qualified business use of their home under IRS Section 280(A). Before 2013, eligible taxpayers determined the deduction by calculating, allocating and substantiating actual home expenses related to a qualified business use. For many, the administration, record-keeping and compliance was a burden.

Beginning in 2013, comes a new Safe Harbor method for determining the home office deduction. This new provision simplified the calculation, but it does not change the need to satisfy all of the eligibility requirements. It may also reduce the audit risk, since the deduction has a maximum deduction amount of $1,500.

Most taxpayers eligible for home expense deductions for a qualified business use under IRS Section280 are eligible for the optional Safe Harbor method. This allows individual taxpayers who use their homes for qualified business use, storage of inventory or day care services, subject to other limitations under the tax code. We advise taxpayers to review the provisions under IRS Section 280A as well as subsections 280A,(c)(1),(2),(3),(4),(5), as well as Rev. Proc 2013-13 for the Safe Harbor election.

The use of the Safe Harbor method does have drawbacks. Since it is an alternative to calculating actual expenses, some costs relating to qualified business use will no longer be deductible on Schedule C in the tax year elected. In addition, any carryover deductions from prior years are deferred into a year when the election is not made.

We advise taxpayers to evaluate the restrictions before making the decision to elect the Safe Harbor method. Since the safe harbor is an irreversible election for that tax year, be sure of your decision. An amended return cannot be filed to change your determination.

If you have any questions about the Safe Harbor method, please call our office at 516-877-1900. We look forward to hearing from you."

Wednesday, March 12, 2014

MORE ON HOME AFFORDABILITY AND FORECLOSURE

So why do people default on their mortgage - whether due to divorce, illness, unexpected expenses, loss of employment, etc. - the answer is the same: the house is unaffordable.

Yesterday, MSN had the following post:

"What you must earn to buy a home in 25 cities in 2014
By Tim Manni of HSH.com

How much salary do you need to earn to afford the principal and interest
payments on a median-price home in your metro area?

To find out, HSH.com took the National Association of Realtors'
fourth-quarter data for median home prices and HSH.com's fourth-quarter
average interest rate for 30-year, fixed-rate mortgages to determine how
much of your salary it would take to afford the base cost of owning a
home -- the principal and interest -- in 25 metro areas.

We used standard 28 percent "front-end" debt ratios and a 20 percent down
payment subtracted from the NAR's median-home-price data to arrive at our
figures. There is no doubt that your income will need to be much higher to
cover taxes, insurances and other expenses to live in the home, plus any
other debts you might have.

While the NAR continues to report strong year-over-year price growth, home
prices and mortgage rates retreated from the third to fourth quarter in
2013. While homeowners continue to praise home-price growth as it adds to
their equity positions, some homebuyers have actually been stymied by the
rapid growth as home prices have been rising faster than incomes."

And this was the result for New York - these figures do not cover taxes and other expenses to live in the home which are quite high in Nassau and can add that monthly figure to almost another $1000 a month and the required income figure to almost $90,000 a year.:

"What you must earn to buy a home in 25 cities in 2014
New York: $66,167.27
Mortgage rate: 4.38 percent

Quarterly change: -0.22 percent
Home price: $386,300

Quarterly change: -4.71 percent
YOY change: +2.8 percent
Monthly payment: $1,543.90

Salary: $66,167.27

Quarterly change: -$5,088
If you're on the cusp of affordability in the Big Apple, you must "buy on
the dips." The fourth quarter of 2013 would have been your time to pounce.
Lower mortgage rates and a $19,000 drop in home prices improved salary
conditions by $5,000."


Tuesday, March 11, 2014

FOR HOME OWNERS ON LONG ISLAND

As I was a volunteer lawyer yesterday at the Nassau County Bar Association's Foreclosure/Sandy clinic, the truth for almost all in foreclosure is that the reason a homeowner does not make mortgage payments is that the homeowner cannot afford to make mortgage payments - for a myriad of reasons.

Basically, the issue is home affordability and to emphasize this issue, a link to another article that is front page in today's Newsday:

NEWSDAY - Report: 44% of LI homeowners pay more for housing than they can afford

Monday, March 10, 2014

FOR HOME RENTERS IN LONG ISLAND

This article in today's Newsday certainly highlights some issues - there are others:

NEWSDAY - RENTERS BEWARE: READ ALL FINE PRINT

One important issue not mentioned is can lease be renewed and on what terms - a term most renters should be concerned about if they do not want to move every year or so: moist landlords only give one year terms on house rentals.

Friday, March 7, 2014

NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - FIGHTING ON THE JOB - PART 3


"A-750-1947

Index 1175-5

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

December 12, 1983

Interpretation Service - Benefit Claims
MISCONDUCT
Relations with Fellow Employees

FIGHTING ON THE JOB

Fighting on the job in violation of an employer rule is misconduct regardless of who initiates the fight, if the claimant has an opportunity to withdraw from the dispute but does not do so.

A.B. 339,308; A.B. 334,700

FINDINGS OF FACT: Claimant R.R., was employed as a security guard for approximately two years. Claimant J.M., was employed as a security guard for approximately three and one-half years. The claimants were scheduled to be on duty the evening of March 19, 1983 in the employer's museum. Prior to going on duty, R.R. spoke with his sergeant and conveyed misgivings about working with J.M. that night. As a result of this, the sergeant spoke to the claimants and informed them of the employer's rule against fighting. He told them that any violation of the rule would result in their discharge. Shortly thereafter, while in the dining room, the claimants became involved in a verbal discussion which resulted in yelling and harsh words being exchanged. The argument continued as they proceeded to the computer room. During the yelling and screaming in the computer room, each claimant spat at one another. This led to a physical altercation with both combatants throwing punches. As a result of this incident, the claimants were discharged effective May 19, 1982.

OPINION: The credible evidence now before the Board establishes that both claimants violated the employer's rule forbidding fighting on the premises, of which they were aware. Each significantly participated in the verbal argument and escalation thereof. It is significant that the altercation began in the dining room and continued down the hallway into the computer room. At any time, either claimant had the opportunity to discontinue the argument but chose not to do so. Under these circumstances, we reject each claimant's contention that he acted solely out of self-defense and we find that their actions constitute misconduct under the Law.

DECISION: The initial determination of the local office holding claimant R.R., eligible to receive benefits effective March 22, 1982 without any disqualifying conditions is overruled. The employer's objection is sustained. Claimant R.R. is disqualified from receiving benefits effective March 19, 1982 because he lost his employment through misconduct in connection therewith. No unemployment insurance benefits can be paid to claimant R.R. until he has subsequently worked for an employer not less than three days in each of four weeks or earned remuneration of at least $200. Self-employment and earnings therefrom will not count.

The decision of the administrative law judge filed August 12, 1962 (A.L.J. 82-90739) is reversed.

The initial determination of the local office disqualifying claimant J.M. from receiving benefits effective March 20" 1982, because he lost his employment through misconduct in connection therewith, is modified to be effective March 19, 1982, and as so modified, is sustained.

The decision of the administrative law judge filed April 27, 1982, (A.L.J. 82-10589) is reversed."

Thursday, March 6, 2014

VOLUNTEER LAWYERS PROJECT

Today, I will be a volunteer lawyer at Landlord/Tenant District Court as part of the Volunteer Lawyers Project of Nassau County Bar Association.

"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. 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."

Wednesday, March 5, 2014

NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - FIGHTING ON THE JOB - PART 2

The position of the DOL appears to be set forth in the Interpretation Service - Benefit Claims - MISCONDUCT - Relations with Fellow Employees - A-750-1947:


COMMENTS

  1. It is well established that a claimant who initiates a physical altercation with a co-worker, a supervisor or a customer in violation of an employer rule forbidding fighting, commits misconduct.
  2. On occasion a claimant may be drawn into a fight involuntarily. Under such circumstances, the claimant has an obligation to withdraw from the fight at the first opportunity. The Appeal Board has previously held that it is immaterial who strikes the first blow if, once the fight commences, neither employee is willing to abandon it. (A.B. 319,018)
  3. Escalating an argument is inappropriate behavior for the workplace. When a verbal dispute threatens to become physical" one means of avoiding physical confrontation is to seek assistance from a supervisor. Failure to do so, thus allowing a fight to ensue, is misconduct. (A.B. 345,987)
  4. Not all physical fights allow a person to retreat. A claimant will not be subject to disqualification if (s)he fights solely out of self-defense. (A.B. 320,635) The claimant acts in self defense when (s)he
    1. neither initiates nor provokes the physical altercation,
    2. has no available retreat once it begins,
    3. reasonably believes returning blows is necessary to avoid suffering additional, serious harm, and
    4. responds to the attack with no more than the minimal degree of force necessary to disengage from the fight.

Tuesday, March 4, 2014

NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT - FIGHTING ON THE JOB

Fighting with fellow employees can be verbal, can be physical, can be a mixture - and inevitably can lead to serious concerns with employers.

In this discussion, I am going to limit the instance where both employees are involved in a physical altercation. Thus, there is a general rule with the Department of Labor that "A fight with fellow employee in which claimant acted in self-defense did not constitute misconduct. (Ref. Dec. M11-7-38R; B-6-38; similarly A.B. 33,250-52)" However, there is a caveat: "Fighting on the job in violation of an employer rule is misconduct regardless of who initiates the fight, if the claimant has an opportunity to withdraw from the dispute but does not do so."

Monday, March 3, 2014

NASSAU COUNTY SUPREME COURT - CENTRALIZED MOTION PART

The Nassau County Supreme Court will begin the implementation of its Centralized Motion Part (CMP). CMP will handle all motions with the exception of Commercial, Guardian, and Matrimonial Motion. You may review the rules online at CMP Implementation