Thursday, June 30, 2016
In December 1993, a murder took place in Louisville, Kentucky that forever changed the way crime victims are notified when an offender is released from jail. It was Mary Byron's 21st birthday. She was leaving her job, after dark, and she did not know her former boyfriend had been released from jail earlier that day. He was facing trial on charges of kidnapping and raping Byron. He waited in the parking lot and as she got in her car, he shot her six times at point blank range. Byron had no way of knowing she was ever in danger. Because of the efforts of Mary Byron's family and others, the first-ever automated system to notify victims of a criminal's status - now known as VINE - was created.
The below link is to New York VINE, an online portal to VINE, "America’s number one victim notification network. VINE has been providing victims and concerned citizens with the power of information for decades, allowing these individuals to have the sense of security that they deserve. VINELink can be accessed 24 hours a day, seven days a week, to provide the most reliable information for custody status changes and criminal case information. The VINE service provides information by phone, email, TTY, and text message where available." It is also available in Spanish.
See https://vinelink.com/#/home/site/33004 or http://www.doccs.ny.gov/vine.html
Posted by Jon Michael Probstein at 10:33 AM
Wednesday, June 29, 2016
Last year, a new law went into effect that protects consumers from surprise bills when services are performed by a non-participating (out-of-network) doctor at a participating hospital or ambulatory surgical center in your HMO or insurer's network or when a participating doctor refers an insured to a non-participating provider. The new law also protects all consumers from bills for emergency services.
For more information, see http://www.dfs.ny.gov/consumer/hprotection.htm
Tuesday, June 28, 2016
National foreclosure activity figures were recently reported by RealtyTrac and showed New York with an increase of 17 percent.
Monday, June 27, 2016
Friday, June 24, 2016
Thursday, June 23, 2016
We are having an Open House from 3-6. Meet one - on - one with a volunteer attorney. Bring all documents.
Divorce & Family
Labor & Employment
Senior Citizen Issues
For more information, see https://www.nassaubar.org/UserFiles/Open_House_June_2016.pdf
Wednesday, June 22, 2016
And the court should not help the pro se litigants. See MATTER OF WASHINGTON v. Edwards, 2016 NY Slip Op 1706 - NY: Appellate Div., 3rd Dept. 2016:
"The parties are the parents of two children (born in 2004 and 2008). Pursuant to a 2010 order of support, respondent (hereinafter the father) was required to pay $185 biweekly in child support. In 2014, petitioner (hereinafter the mother) commenced this proceeding alleging that the father had violated the 2010 support order. A Support Magistrate determined that the father had violated the order, but that the violation was not willful, and established arrears in the amount of $17,726. The father filed written objections, arguing that the Support Magistrate acted inappropriately by actively participating in the hearing. Family Court denied the objections, and the father now appeals.
"[T]he [S]upport [M]agistrate shall conduct the hearing in the same manner as a court trying an issue without a jury in conformance with the procedures set forth in the [CPLR]" (22 NYCRR 205.35 [a]; see Family Ct Act § 439 [d]). Here, although the mother, appearing pro se, testified that the father had only paid approximately $100 a year in support since the 2010 order, she informed the Support Magistrate that she did not have any documentary evidence to support her allegation. At the conclusion of her testimony, the Support Magistrate again questioned the mother as to whether she had any further evidence in regard to her petition. After the mother answered in the negative, the Support Magistrate provided her with a copy of the Broome County Office of Child Support Enforcement Support Obligation Summary, which summarized the amounts owed and the payment history regarding the 2010 order and indicated that the father was in arrears. Over the father's objection, the Support Magistrate then questioned the mother regarding the contents of the summary. At the conclusion of the case, the Support Magistrate repeated his question to the mother as to whether she had any documents that she would like to enter into evidence. After she again answered in the negative, the Support Magistrate inquired whether the mother was requesting that the summary report be admitted into evidence, at which point she answered affirmatively and, over the father's continued objections, the document was admitted into evidence. The Support Magistrate thereafter used the contents of the summary report as the basis for his calculation of the amount that the father was in arrears.
Certainly, a Support Magistrate "may properly question witnesses to insure that a proper foundation is made for the admission of evidence and question a witness in an effort to clarify confusing testimony as well as to facilitate the orderly and expeditious progress of the hearing" (Matter of Eshale O., 260 AD2d 964, 964  [internal quotation marks, brackets, ellipses and citations omitted]; see Matter of Cadle v Hill, 23 AD3d 652, 653 ; cf. Matter of Smith v O'Donnell, 107 AD3d 1311, 1313 ). In our view, however, the Support Magistrate exceeded his authority here. By actually providing the evidence to the mother during the hearing and using his questions to ensure that she introduced that evidence, we cannot say that the Support Magistrate was merely ensuring that a proper foundation was set for the admission of the evidence or facilitating the expeditious progress of the hearing. Accordingly, Family Court erred in denying the father's objections to the order of the Support Magistrate."
Tuesday, June 21, 2016
Not yet signed by the Governor:
"BILL NUMBER: S7053
TITLE OF BILL : An act to amend the multiple dwelling law, in
relation to the short term rental of dwelling units through internet
based residential rental websites
PURPOSE OR GENERAL IDEA OF BILL :
An act to amend the multiple dwelling law, in relation to the short
term rental of dwelling units through internet based residential
SUMMARY OF SPECIFIC PROVISIONS :
Section 1 of the bill amends the Multiple Dwelling Law by adding two
new subdivisions 15-a and 15-b, which define "short term rental unit"
and "internet based residential rental website."
Section 2 amends the Multiple Dwelling Law by adding a new Section 15
which mandates that tenants and subtenants are liable for violations
of the Multiple Dwelling Law pertaining to the illegal short term
rental of Class A dwellings, when the legal tenant or subtenant of
such premises rents their unit through an internet based residential
rental service without the knowledge and consent of the property
owner. The new Section 15 further mandates that when a tenant or legal
subtenant has abandoned the unit in question, the property owner shall
provide all information it possesses regarding the whereabouts of the
tenant or legal subtenant to enforcement authorities.
Section 3 sets forth the effective date of the law.
While the regulatory debate over the legality of AirBnB and other
Internet-based residential rental platforms continues in New York
State, it remains the case that the rental of units in a Class A
multiple dwelling (many apartment buildings, condominiums, etc.) for
less than thirty days is illegal. As such, enforcement authorities
have the ability to levy fines of up to $2,500 per day for violations
of the Multiple Dwelling Law and currently, landlords - who are often
unaware that their tenant or a legal subtenant is illegally renting
their unit through these platforms - are hit with this civil penalty.
As an issue of fairness, and until a regulatory framework is put in
place to address this and larger issues pertaining to Internet-based
residential rental platforms, it is only just that the tenant or legal
subtenant soliciting and providing travelers with an illegal
short-term rental is responsible for these fines.
PRIOR LEGISLATIVE HISTORY :
None. New bill.
FISCAL IMPLICATIONS :
None apparent to the State. The ability to levy fines for violations
of the Multiple Dwelling Law is not changed, except that the liable
party differs from that under current law.
EFFECTIVE DATE :
This act shall take effect immediately."
Monday, June 20, 2016
As now reported in many state newspapers, new state legislation, passed in the early hours of Saturday morning, has to do with homes that have become so-called zombie properties – empty houses stuck in sometimes-lengthy foreclosure and prone to falling into disrepair.
In a press release issued by the Assembly on June 17:
" The legislation addressing zombie properties, an effort spearheaded by Assemblymember Helene Weinstein, would avoid the cancerous blight of vacant and abandoned properties by facilitating earlier detection and maintenance of these properties as well as:
- impose a statewide duty of a mortgage lender or bank owner, or their agent, to maintain vacant one to four family residential real property, even while a foreclosure action is pending;
- require periodic inspections to determine whether properties have been abandoned;
- create penalties against mortgage lenders of up to $500 per property per day for failure to maintain these "Zombie" properties;
- authorize municipalities to enforce the maintenance provisions of the law;
- create a statewide registry for abandoned residential property under the supervision of the state Department of Financial Services, and a toll-free hotline for community residents to report the presence of such properties;
- make available to public officials of local governments the information in the zombie property registry, in order to help them better evaluate and remedy blight in their neighborhoods; and
- require the court to give homeowners in foreclosures a consumer bill of rights that the department of financial services would publish in consultation with all stakeholders."
Friday, June 17, 2016
Press release from yesterday June 16, 2016:
"Long Island Man Pleads Guilty To Defrauding Homeowners In Multi-Million Dollar Loan Modification Scheme
David Gotterup Admitted to Causing More Than $3.5 Million in LossesEarlier today, David Gotterup pleaded guilty at the federal courthouse in Brooklyn, New York, to conspiracy to commit wire fraud by defrauding distressed homeowners in a loan modification scheme. When sentenced, Gotterup faces up to 30 years in prison, as well as restitution, criminal forfeiture, and a fine.
The guilty plea was announced by Robert L. Capers, United States Attorney for the Eastern District of New York; Diego Rodriguez, Assistant Director-in-Charge, Federal Bureau of Investigation, New York Field Office (FBI); Christina Scaringi, Special Agent-in-Charge, U.S. Department of Housing and Urban Development, Office of Inspector General (HUD/OIG); and Christy Goldsmith Romero, Special Inspector General for the Troubled Asset Relief Program (SIGTARP).
According to court filings and facts presented at the guilty plea proceeding, from 2008 to 2012, Gotterup and his co-conspirators made a series of false promises to convince more than a thousand distressed homeowners seeking relief through government mortgage modification programs to pay thousands of dollars each in advance fees to numerous companies owned or controlled by Gotterup, including Express Modifications, Express Home Solutions, True Credit Empire, LLC, Green Group Today, Inc., The Green Law Group, Inc., and JG Group. Among other things, Gotterup directed telemarketers and salespeople to lie to distressed homeowner victims by telling them that they were preapproved for loan modifications and that they were retaining a law firm and an attorney who would complete their mortgage relief applications and negotiate with the banks to modify the terms of their mortgages. Contrary to these representations, Gotterup and his co-conspirators did little or no work in connection with these fraudulently induced advanced fees. Gotterup was arrested in October 2015 and remains incarcerated.
In announcing the guilty plea, Mr. Capers extended his appreciation to the agencies that led the government’s investigation and thanked the U.S. Small Business Administration and the Staten Island District Attorney’s Office for their assistance.
Today’s guilty plea took place before United States District Judge Nicholas G. Garaufis.
The government’s case is being prosecuted by the Office’s Business and Securities Fraud Section. Assistant United States Attorneys Sylvia Shweder and Bonni Perlin are in charge of the prosecution.
* * *
This prosecution was the result of efforts by President Obama’s Financial Fraud Enforcement Task Force (FFETF) which was created in November 2009 to wage an aggressive, coordinated, and proactive effort to investigate and prosecute financial crimes. With more than 20 federal agencies, 94 U.S. Attorneys’ Offices, and state and local partners, it’s the broadest coalition of law enforcement, investigatory, and regulatory agencies ever assembled to combat fraud. Since its formation, the task force has made great strides in facilitating increased investigation and prosecution of financial crimes; enhancing coordination and cooperation among federal, state’ and local authorities; addressing discrimination in the lending and financial markets; and conducting outreach to the public, victims, financial institutions and other organizations. Since fiscal year 2009, the Justice Department has filed over 18,000 financial fraud cases against more than 25,000 defendants. For more information on the task force, visit http://www.StopFraud.gov."
Thursday, June 16, 2016
As I read the various opinions, news stories, etc. on airbnb legislation - is it good, should it be banned, etc., the question that came to my minds was: what happens if the airbnb "guest "does not leave?
Here's one story out of California but is relevant to New York too:
Wednesday, June 15, 2016
In a child custody/support case, support is paid to the parent who has primary residential custody and the courts, at least those which follow the First Department, usually determine that based solely on the actual amount of overnights that the child spends with each party. See e.g. Joseph M. v. LAUREN J., 2014 NY Slip Op 51536 - NY: Supreme Court 2014
So will a different test apply with respect to statutes that have different purposes? In YANIVETH R. v. LTD Realty Co., 2016 NY Slip Op 2550 - NY: Court of Appeals 2016 the court was faced with the following question:
"New York City adopted lead abatement legislation in 1982 that imposes a duty on landlords to remove lead-based paint in any dwelling unit in which a child six years of age and under resides (see Administrative Code of the City of NY former § 27-2013[h] ["Local Law 1"]). The issue in this case is whether a child "reside[s]" in an apartment containing lead-based paint, thereby triggering a landlord's duty under Local Law 1, when the child does not live in the apartment but spends approximately 50 hours per week there with a caregiver."
The court said clearly the child is not a resident of the caregiver but Judge Fahey in dissent noted:
"The intent of Local Law 1 is obvious: its enactors sought to shield young children, that is, those who cannot protect themselves, from the dangers of lead-based paint poisoning. The will of a legislative body is discernable from its diction (see Bryant v New York City Health & Hosps. Corp., 93 NY2d 592, 602 ), and the use of the word "reside" in Local Law 1 signals a desire to protect young children who may be exposed to lead-based paint in more than one location. To conclude otherwise would be to say that a child — any person, in fact — may reside in only one place. The majority opinion eliminates the distinction between "residence" and "domicile" established in Newcomb (192 NY at 250). It effectively means that a child may have only one "residence."
The impact of today's decision transcends this case.
It threatens the ability of those young children who are covered by Local Law 1 and who were subject to either a joint custody agreement or a comparable shared living arrangement at the time of their exposure to lead-based paint to recover damages for their resultant injuries. It threatens the ability of children who are covered by the successor to Local Law 1 (see Administrative Code § 27-2056.1 et seq.) and who are subject to similar living arrangements to recover damages for the same harm. It also beseeches a legislative response."
Tuesday, June 14, 2016
In Expressions Hair Design et al v. Schneiderman et al, 808 F.3d 11 (2d Cir. 2015), the court revived a New York state law banning surcharges on credit card purchases.
General Business Law §518 states that no seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means. Any seller who violates the provisions of this section shall be guilty of a misdemeanor punishable by a fine not to exceed $500 or a term of imprisonment up to one year, or both. Confusingly, the law does not prevent retailers from charging different prices to customers paying with cards vis-à-vis those paying with cash—the law only prevents surcharges. Retailers will still be allowed to provide cash-paying customers with discounts off the full price. So, while a hair salon like the one in this case cannot advertise $20 haircuts and charge credit card users $22, it can advertise $20 cuts and charge cash payers $18.
A petition for a writ of certiorari filed was filed on April 5, 2016 and a response is now due August 1, 2016. Brief amicus curiae of Marion B. Brechner First Amendment Project was filed on June 7, 2016.
Monday, June 13, 2016
Today at Nassau County Bar Association. I will be one of the volunteer attorneys.
For more information, see https://www.nassaubar.org/UserFiles/June_English_2016.pdf
Friday, June 10, 2016
The Nassau County Bar Association has a web page set up to inform owners of the basic stages of the foreclosure process and what can be done at each stage.
Thursday, June 9, 2016
In April of this year, in People v Badalamenti 2016 NY Slip Op 2556 - NY: Court of Appeals, 2016, a deeply divided Court of Appeals recognized a new exception to the state's illegal eavesdropping statute ruling that parents can surreptitiously record conversations involving their minor children if it is in the children's best interests.
At many CLE's on matrimonial law, I have heard discussions of the potential use of this in custody disputes. The court’s decision may lead to many more parents recording conversations.
Wednesday, June 8, 2016
To review the full decision on yesterday's ruling from New York's highest court that people who deliberately refuse to pay court-ordered child support can go to jail for consecutive six-month sentences for repeat violations (In the Matter of Columbia County Support Collection Unit v. Joshua A. Risley):
Tuesday, June 7, 2016
Matter of Argueta v Baker 2016 NY Slip Op 01838 Decided on March 16, 2016 Appellate Division, Second Department:
"Interference with visitation rights can be the basis for suspension of child support, but such relief is warranted only where the custodial parent's actions rise to the level of " deliberate frustration'" or " active interference'" with the noncustodial parent's visitation rights (Ledgin v Ledgin, 36 AD3d 669, 670, quoting Weinreich v Weinreich, 184 AD2d 505, 506). Here, the father demonstrated that the mother actively interfered with and deliberately frustrated his visitation with the child by, inter alia, failing to provide him with the child's Florida address, preventing him from seeing the child when he was in Florida, and failing to notify him when the child was in New York. Therefore, the Family Court should have granted that branch of the petition which was to suspend the father's child support obligation."
Monday, June 6, 2016
MATTER OF BRINSKELLE v. Widman, 2016 NY Slip Op 1840 - NY: Appellate Div., 2nd Dept. 2016:
"Under the doctrine of constructive emancipation, where "a minor of employable age and in full possession of [his or] her faculties, voluntarily and without cause, abandons the parent's home, against the will of the parent and for the purpose of avoiding parental control, [he or] she forfeits [his or] her right to demand support" (Matter of Roe v Doe, 29 NY2d 188, 192; see Matter of Barlow v Barlow, 112 AD3d 817, 818). However, "where it is the parent who causes a breakdown in communication with his [or her] child, or has made no serious effort to contact the child and exercise his [or her] visitation rights, the child will not be deemed to have abandoned the parent" (Matter of Alice C. v Bernard G.C., 193 AD2d 97, 109; see Matter of Barlow v Barlow, 112 AD3d at 818; Matter of Glen L.S. v Deborah A.S., 89 AD3d 856, 857). The burden of proof is on the party asserting emancipation (see Matter of French v Gordon, 103 AD3d 722; Matter of Gold v Fisher, 59 AD3d at 444).
Here, even accepting the father's testimony that the parties' daughter, who was 14 years old at the time of the hearing, had voluntarily and without cause rejected his efforts to maintain a relationship with her in an attempt to avoid his parental control, the daughter was not "of employable age," and thus, the father, as a matter of law, could not establish the daughter's constructive emancipation (see Matter of McCarthy v McCarthy, 129 AD3d 970, 971; Matter of Dobies v Brefka, 83 AD3d 1148, 1152-1153; Foster v Daigle, 25 AD3d 1002, 1004; see also Rodman v Friedman, 112 AD3d 537, 538)."
Friday, June 3, 2016
In Ader v Guzman 2016 NY Slip Op 00137 Decided on January 13, 2016 Appellate Division, Second Department, the Town Code provided (1) "no owner shall cause, permit or allow the occupancy or use of a dwelling unit as a rental property without a valid rental permit."; (2) "an application for a rental permit shall be filed with the enforcement authority before the term of the rental is to commence."; (3) a valid rental permit shall be a condition precedent to the collection of rent;and (4) the penalties for violating this code include monetary fines or imprisonment.
Under such a fact pattern, the court held:
"....the lease was rendered illegal and unenforceable as a result of his violation of Town Code § 270. "The violation of a statute which is merely malum prohibitum will not necessarily render a contract illegal and unenforceable if that statute does not expressly provide that its violation will deprive the parties of their right to sue under the contract, and the denial of relief is wholly out of proportion to the requirements of public policy" (R.A.C. Group, Inc. v Bd. of Educ., 21 AD3d 243, 248; see Benjamin v Koeppel, 85 NY2d 549, 553; Lloyd Capital Corp. v Pat Henchar, Inc., 80 NY2d 124, 127; Simaee v Levi, 22 AD3d 559, 562). Furthermore, "forfeitures by operation of law are disfavored, particularly where a defaulting party seeks to raise illegality as a sword for personal gain rather than a shield for the public good' . . . Allowing parties to avoid their contractual obligation is especially inappropriate where there are regulatory sanctions and statutory penalties in place to redress violations of the law" (Simaee v Levi, 22 AD3d at 562, quoting Lloyd Capital Corp. v Pat Henchar, Inc., 80 NY2d at 128). The Court of Appeals has observed that, "[w]here the procuring of a license is merely for the purpose of raising revenue it would seem that acts performed without securing a license would be valid. But where the statute looks beyond the question of revenue and has for its purpose the protection of public health or morals or the prevention of fraud, a non-compliance with its terms would affect the legality of the business" (Benjamin v Koeppel, 85 NY2d at 553 [internal quotations marks omitted]; see Village Taxi Corp. v Beltre, 91 AD3d 92, 99-100).
Here, as noted above, although Town Code § 270 is, in part, revenue raising, the overriding concern of the statute is to protect the safety and well-being of occupants of rental properties in the Town of Southampton. Accordingly, under the circumstances of this case, it would be against public policy to permit Guzman to retain the plaintiffs' rental payments and to profit from his wrongdoing (see R.A.C. Group, Inc. v Board of Educ. of City of N.Y., 21 AD3d at 248; Schwartz v Torrenzano, 49 Misc 3d 943, 950-951)."
Thursday, June 2, 2016
Step 1: ANONYMOUS 2011-1 v. ANONYMOUS 2011-2, 102 AD 3d 640 - NY: Appellate Div., 2nd Dept. 2013:
Here we are dealing with two children, 13 and 14 years old. The court notes:
""An order ... modifying custody[ ] must be addressed solely to the infant's best interests" (Kresnicka v Kresnicka, 48 AD2d 929, 929 ; see Matter of Sullivan v Moore, 95 AD3d 1223 ; Matter of Leichter-Kessler v Kessler, 71 AD3d 1148 ; Hizme v Hizme, 212 AD2d 580 ). Where parents enter into an agreement concerning custody, "it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the children" (Matter of Gaudette v Gaudette, 262 AD2d 804, 805 ; see Matter of Joseph F. v Patricia F., 32 AD3d 938, 939 ; Smoczkiewicz v Smoczkiewicz, 2 AD3d 705, 706 ; see also Kollmar v Kollmar, 100 AD3d 712 ). When making such determinations, a court "must consider the totality of the circumstances" (Matter of Chery v Richardson, 88 AD3d 788, 788  [internal quotation marks omitted]; see Eschbach v Eschbach, 56 NY2d 167 ; Matter of Solovay v Solovay, 94 AD3d 898, 899 ). A party seeking a change in custody is entitled to a hearing where the movant has made an evidentiary showing of "a sufficient change in circumstances demonstrating a real need for a change of custody in order to insure the [children's] best interests" (Matter of Nava v Kinsler, 85 AD3d 1186, 1186 ; see Sirabella v Sirabella, 95 AD3d 1296 ; Matter of Dorsa v Dorsa, 90 AD3d 1046, 1046 )."
The sufficient change of circumstances were: 1) specific allegations concerning the father's repeated violations of the custody provisions of the agreement; 2) the full-time employment of the children's therapist, the person designated in the agreement as a neutral third-party "arbitrator" of custodial disputes, by the father; and 3) a "[c]ontinued deterioration in the [parties'] relationship".
STEP 2: ANONYMOUS 2011-1 v. ANONYMOUS 2011-2, 136 AD 3d 946 - NY: Appellate Div., 2nd Dept. 2016
The hearing was held and the children are now 15 and 16. The court notes:
"In determining whether a custody agreement that was incorporated into a judgment of divorce should be modified, the paramount issue before the court is whether, under the totality of the circumstances, a modification of custody is in the best interests of the child (see Matter of Honeywell v Honeywell, 39 AD3d 857, 858 ; Cuccurullo v Cuccurullo, 21 AD3d 983, 984 ).
To determine whether modification of a custody arrangement is in the best interests of the child, the court must weigh several factors of varying degrees of importance, including, inter alia, (1) the original placement of the child, (2) the length of that placement, (3) the child's desires, (4) the relative fitness of the parents, (5) the quality of the home environment, (6) the parental guidance given to the child, (7) the parent's financial status, (8) his or her ability to provide for the child's emotional and intellectual development, and (9) the willingness of the parent to assure meaningful contact between the child and the other parent (see McAvoy v Hannigan, 107 AD3d 960, 962-963 ; Matter of Mingo v Belgrave, 69 AD3d 859, 859-860 ; Cuccurullo v Cuccurullo, 21 AD3d at 984)."
The best interests of the child were: "Particularly relevant in this case are the clearly stated preferences of the children, especially considering their age and maturity, and the quality of the home environment provided by the mother."
Wednesday, June 1, 2016
May 26, at the Nassau County Bar Association, was the annual Student Mentoring Program luncheon.
In this program, sponsored by the Bar Association, attorneys act as mentors to middle school students selected by guidance counselors, meeting with them on school premises twice monthly for 45 minutes during the school year. The one-on-one program permits mentor and student to develop a rapport, and motivates students to set and work towards positive goals.
Here is a picture of myself and my mentee at the luncheon - he honored me with a short speech thanking me for always talking about history and politics with him.