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.

Monday, September 29, 2014

SUPERSTORM SANDY: NEW YORK RISING AND LONG ISLAND

See: NEWSDAY - NY Rising OKs deals on 155 LI storm-hit homes for $59.5 million

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.