Thursday, March 31, 2016



"The New York State Court System has established a Statewide Fee Dispute Resolution Program (FDRP) to resolve attorney-client disputes over legal fees through arbitration (and in some cases mediation).

In general, a lawyer may not sue a client in court over a fee dispute unless he or she first provided the client with notice of the right to utilize the FDRP. Once the client has received this notice, he or she has 30 days to decide whether to use the FDRP. If the client doesn’t choose to participate in the FDRP within 30 days, the lawyer is free to pursue the matter in court."

Wednesday, March 30, 2016


A recent article from CNBC ( notes:

"But before you rush to take out a reverse mortgage and savor your good fortune, make sure you understand the downsides and potential risks.....As a result, when the owner moves permanently or dies, the equity in the home will have been reduced or even used up. If your heirs are not aware that you are taking out a reverse mortgage and are banking on inheriting the property, it can be a nasty surprise."

And here's the story of one such "nasty surprise":

Tuesday, March 29, 2016


The story can be found here:

The lesson: probably could have been quicker if the landlord did not illegally lock them out during the eviction process. For more information on illegal lock outs in NYC, see:

Friday, March 25, 2016


Mancuso v Mancuso 2015 NY Slip Op 09478 Decided on December 23, 2015 Appellate Division, Fourth Department (emphasis supplied):
""Among the factors to be considered in determining whether there has been a change in circumstances warranting an upward modification of support are the increased needs of the children, the increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent, and the current and prior lifestyles of the children" (Matter of DiGiorgi v Buda, 26 AD3d 434, 434 [internal quotation marks omitted]; see Shedd v Shedd, 277 AD2d 917, 917-918, lv dismissed 96 NY2d 754). " While an increase in the noncustodial parent's income is a factor which may be considered in deciding whether to grant an upward modification of child support, this factor alone is not determinative' " (DiGiorgi, 26 AD3d at 434).

Here, the record establishes that defendant's income had decreased since the judgment was entered, and therefore the termination of his maintenance obligation would result in only a small increase in his income. Although plaintiff contends that the termination of maintenance resulted in a substantial change in her income, she failed to show that she would be unable to replace that lost income through employment. Indeed, in recalculating defendant's child support obligation, the court imputed income to plaintiff in the amount she had been receiving in [*2]maintenance (see Belkhir v Amrane-Belkhir, 118 AD3d 1396, 1397-1398; Irene v Irene [appeal No. 2], 41 AD3d 1179, 1180-1181). Plaintiff failed to demonstrate any other factors in support of an upward modification in child support inasmuch as she did not introduce any evidence of increased needs of the children, a loss of assets, or a change in the current and prior lifestyles of the children (see Matter of Rosenthal v Buck, 281 AD2d 909, 909-910; Matter of Faery v Piedmont, 181 AD2d 1014, 1014)."

Thursday, March 24, 2016


Quinn v Quinn 2015 NY Slip Op 08818 Decided on December 2, 2015 Appellate Division, Second Department:

"In May 2013, the plaintiff (hereinafter the mother) and the defendant (hereinafter the father) entered into a stipulation of settlement in this matrimonial action. The parties have two children. The parties agreed to joint custody, with the mother to have residential custody of the children, subject to a schedule of joint parenting. That schedule gave the father visitation from 4:00 p.m. to 6:00 p.m. on Mondays, Tuesdays, and Thursdays, from 4:00 p.m. to 7:30 p.m. on Wednesdays, and on alternate weekends.

By order to show cause dated September 3, 2013, the father moved to enjoin the mother from relocating with the children from East Hampton to Westhampton Beach, New York.
The father testified at the ensuing hearing that he normally works from 8:00 a.m. until 4:00 p.m. on weekdays. He testified that it usually took him about five minutes after finishing work to drive to the former marital residence in East Hampton to pick up the children for visitation. He further testified that, on the night of August 24, 2013, he received an email from the mother stating that she and the children had moved from East Hampton to Westhampton Beach—a distance of about 32 miles. He testified that it takes him 50 minutes to drive from his home in East Hampton to the mother's new home in Westhampton Beach.

The mother testified that she moved because she had voluntarily changed jobs from a bank located in Bridgehampton to a bank located in Medford, and that the move cut 30 minutes off her new commute in each direction. She testified that her total compensation at the new job was comparable to her total compensation at her old job. She further testified that she moved to be closer to her parents in Riverhead. She testified that the children saw her parents about twice a month when they lived in the former marital residence in East Hampton, and about once a week after the move [*2]to Westhampton Beach.

In the order appealed from, the Supreme Court, inter alia, granted the father's motion to enjoin the mother's relocation. The mother appeals.

A parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child's best interests (see Matter of Francis-Miller v Miller, 111 AD3d 632, 635; Matter of Hirtz v Hirtz, 108 AD3d 712, 713; Rubio v Rubio, 71 AD3d 862, 863). The factors to be considered "include, but are certainly not limited to each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements" (Matter of Tropea v Tropea, 87 NY2d 727, 740-741).

Here, the mother's move from East Hampton to Westhampton Beach significantly limited the father's contact with the children. By lengthening the father's commute from a few minutes to almost an hour, the move effectively cut the father's weekday visitation in half. The mother also failed to demonstrate, by a preponderance of the evidence, that the children's lives would be enhanced economically, emotionally, or educationally by the move (see id. at 740-741). Thus, the Supreme Court properly granted the father's motion to enjoin the mother from relocating to Westhampton Beach (see Schwartz v Schwartz, 70 AD3d 923, 925; Petroski v Petroski, 24 AD3d 1295, 1296; cf. Matter of DeCillis v DeCillis, 128 AD3d 818, 820)."

In this case, by doing the math, the mother wanted to save 5 hours a week in commuting time by cutting the father's visitation by 4 hours a week.

Tuesday, March 22, 2016


I have an opinion based upon several consultations and cases I have handled.

Marital residences are divided in most divorces. Recently I saw several separation agreements and/or stipulations of settlement that just list the property and state which party gets the home. But if the home is to be transferred, a deed should be prepared, signed and filed simultaneously with the agreement, since the separation agreement clause, standing alone, will not be effective to transfer title.

And while it is true that when the home is mortgaged, an "assumption clause" would be used, making one of the parties responsible for the mortgage (and perhaps binding him/her to hold harmless and indemnify the other in regard to the mortgage debt as such transfers generally do not trigger the "due on sale" clause contained in most mortgages under the Garn – St. Germain Depository Institutions Act of 1982, 12 U.S.C. 1701j-3) may not be the best approach.

Assume the following: the agreement provides that the the departing spouse, the transferor, agrees that the house will be transferred to the remaining spouse, the transferee, but the departing spouse will be responsible for the mortgage. A deed may or may not have been signed and filed. Later, departing spouse, for whatever reasons stops payment. Foreclosure action begins.

Assume the following: the agreement provides that the the departing spouse, the transferor, agrees that the house will be transferred to the remaining spouse, the transferee, who will be responsible for the mortgage. After the agreement and judgment, a deed is prepared, signed and filed but there was no discharge from the bank to the departing spouse. Later, remaining spouse, for whatever reasons stops payment. Foreclosure action begins.

A best practice would be for the home to be transferred with the transferee refinancing the original debt thereby discharging the transferor spouse. Under this view, the departing spouse, the transferor, is paid its equitable share and is gone. The transferee, the remaining spouse, is responsible for the mortgage. However, financial circumstances may not allow this and each party should be made aware of the potential risks involved.

Monday, March 21, 2016


I will be volunteering today, Monday March 21, at the Nassau County Bar Association's free clinic for Mortgage Foreclosure, Bankruptcy and Superstorm Sandy issues, from 3pm to 6pm.

For more information, contact Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501 at (516) 747-4070

Friday, March 18, 2016


Palumbo v Palumbo 2015 NY Slip Op 09481 Decided on December 23, 2015 Appellate Division, Fourth Department:

".....we reject plaintiff's contention that Supreme Court erred in allocating debt incurred from three separate loans all to him rather than to him and defendant, jointly. "A trial court . . . has broad discretion in deciding what is equitable under all of the circumstances" (Mahoney-Buntzman v Buntzman, 12 NY3d 415, 420). Here, the court found that the debts "were not predominantly . . .marital' " (Dietz v Dietz, 203 AD2d 879, 882). The money from the loans was used to further plaintiff's business interests, and defendant was not given any interest in those business interests in the court's equitable distribution of property (cf. Markel v Markel, 197 AD2d 934, 935). We see no reason to disturb the court's determination (see Rivera v Rivera, 126 AD3d 1355, 1356)."

Wednesday, March 16, 2016



Jolin v. Rosario, 2012 NY Slip Op 51317 - NY: Dist. Court, Nassau County, 1st Dist. 2012:

"In the case at bar, the Petitioner and the Respondent were married on January 14, 2009 in the Dominican Republic where the Respondent and her son, Alexander Cespedes Hernandez resided. In or about April 2010, the Petitioner moved the Respondent and her son to the United States and he moved them into his house where they have resided ever since. Then, in or about September 2011, the Petitioner obtained an ex parte divorce from the Dominican Republic without the knowledge or consent of the Respondent. The Respondent alleges that she first learned of the divorce when she discovered divorce documents taped to their home computer.

In Arnoff v. Arnoff, the Second Department Appellate Division held that in order for a foreign divorce to be recognized in New York, the foreign court must have had in personam jurisdiction over both spouses. Aranoff v. Aranoff, 226 AD2d 657,658, 642 N.Y.S.2d 49, 50 (NY App. Div. 2d Dep't 1996). More recently, the Second Department held that it will not recognize an ex parte divorce attained by a spouse who is present but not domiciled in the foreign country if the other nonresident spouse does not appear and is not served with process. Farag v. Farag, 4 AD3d 502, 504, 772 N.Y.S.2d 368, 371(NY App. Div. 2d Dep't 2004).

This court will not recognize Petitioner's divorce from Respondent because the divorce was obtained ex parte without proper notice to Respondent."

Tuesday, March 15, 2016


The next Senior Clinic is scheduled for today 9:30-11am at the Nassau County Bar Association, 15th & West Streets, Mineola, NY 11501.

I will be one of the volunteer lawyers.

Monday, March 14, 2016


And see for some very helpful tips on language in stipulations when tenant is brought into court like:

Upon payment:

1. Judgment will be vacated.

2. Action is withdrawn and discontinued with prejudice.

3. Landlord agrees to expunge proceeding from tenant screening services.

The NYSBA also suggests making sure stipulations are "so ordered".

However, getting the landlord counsel to agree to such terms may be an issue. And also, additional legal work mat be required by tenant. For example, tenant may have to bring a motion to vacate judgment after payment if landlord does not take such action.

Friday, March 11, 2016


This case has an extensive discussion of "family" members or "licensees" with respect to eviction proceedings in Landlord Tenant Court:

Clemente v. Liberato, 2015 NY Slip Op 31396 - NY: County Court, Civil Court 2015:

"The petitioner commenced this licensee holdover proceeding in March 2015. At the time he was unrepresented. The respondent retained counsel and filed an answer on April 27, 2015, and made a motion to dismiss with a return date of April 30, 2015. The motion was adjourned several times in order for the petitioner to retain counsel. Counsel appeared for the petitioner on June 17, 2015, and submitted opposition to the respondent's motion.

The respondent based her motion on a failure to state a cause of action and lack of subject matter jurisdiction. The respondent argued that the familial nature of the relationship between the two parties precluded her from being considered a licensee subject to eviction under the RPAPL § 713(7), therefore automatically relegating the petitioner to a more expensive, complicated, and time-consuming action in the State Supreme Court or the Family Court, should he wish to continue to pursue a resolution to this dispute. This court denied the motion to dismiss by short form order on June 18, 2015, holding that "the relationship between the parties is not familial in nature to deprive the court of jurisdiction in this matter." The court scheduled a trial for June 26, 2015.

On June 26, 2015, the parties were sent to a trial part and the matter was adjourned for trial until July 9, 2015. The respondent now moves to reargue this court's decision of June 18, 2015. The respondent contends that this court misapprehended or overlooked certain facts in its consideration of the respondent's motion to dismiss. The motion to reargue is granted as this court's original holding was ambiguous, giving the appearance that the court had made a factual determination about the nature of the relationship between the parties. Now, upon re-argument, this court recalls its earlier decision on the respondent's motion to dismiss, and, upon reargument, hereby denies the motion to dismiss for the reasons given below.

The petitioner is the sole leaseholder for the subject premises. The respondent and her son moved in at some point, or points, in time, although the parties differ considerably as to when they each moved into the apartment. They are not listed on the lease. Also in dispute is the nature of the relations between the petitioner and the respondent. He says that any romantic involvement was of very brief duration and that theirs was not a family-style relationship. She states the contrary. Likewise the parties do not agree over the extent of the petitioner's manifestation of affection for the respondent's minor son. The petitioner and the respondent are not, nor were they ever, married. The respondent's child is not the offspring of the petitioner and no one has claimed that the petitioner held himself out to be the father of the child. There are no claims that the petitioner has financial obligations to the respondent or to her son.

Asserting that the law regarding this issue is well-settled, the respondent argues that the legal conception of "family" has changed to be more inclusive, with the result that jurisdiction over the parties to this dispute automatically divests from the Housing Court and shifts to the Family Court or the Supreme Court because the facts in this case describe a "familial" relationship that by its very nature immunize the respondent from being made subject to this summary licensee holdover proceeding in the Housing Court. Affirmation in Support dated April 28, 2015, as contained in Notice of Motion dated April 28, 2015, ¶¶ 14-23. This court does not agree.

The respondent referred to two appellate-level decisions as supporting her argument. They are Braschi v. Stahl, 74 N.Y.2d 201 (1989) and Rosensteil v. Rosensteil, 20 A.D.2d 71 (First Dept. 1963). In examining the Rent Control Law, the Braschi court concluded that the legislature intended to extend succession protections, upon the death of a named tenant, to a non-traditional family member who resided with and shared emotional and financial commitments with the deceased.[1] It bears emphasis that Braschi addressed a succession issue. Perhaps more importantly, the outcome resulted from the court's analysis of legislative intent; it was not the imposition of a new rule that the court had come to view as being more consistent with changed societal mores.

Unlike the parties in this present case, those in Rosensteil v. Rosensteil, 20 A.D.2d 71 (First Dept. 1963), were married. Today Rosensteil seems almost quaint in its chivalric notions of the duties of husbands to their wives. It involved a husband's attempt to evict his wife as a licensee. The court reversed the Special Term, which had upheld the use of a special proceeding to oust a spouse from possession. Significantly, the Rosensteil court grounded its determination that a wife does not derive the right to occupy the marital home by permission from the husband, but rather from the husband's legal duty to support his wife. In other words, the court held that a legal duty that arose from the actual state of marriage cancelled out the wife's status as a licensee. The court also noted that the status was not immutable. It can be qualified by a court order or an agreement between the parties to the effect that a spouse could be ousted as a licensee in a special proceeding. Id. At 73.

Aside from the two appellate cases, the respondent finds support in seven trial level cases — six from the Civil Court of the City of New York, and one from the Nassau County District Court. While a number of the seven cases cited by the respondent eloquently addressed the evolution of the concept of family, most nonetheless found that, at least potentially, the facts in each case suggested the existence of one or more additional legal obligations that, as in Rosensteil, served to remove the respondent from the status of mere licensee or prevent the controversy from being fully resolved within the limited confines of the Housing Court.

In Landry v. Harris, 12 Misc.3d 1123(A) (Civ.Ct. NY Co.2008), the petitioner, as sole proprietor and lessee of a cooperative apartment, attempted under RPAPL 713(7) to evict his girlfriend, as well as their minor child, and the respondent's child by another relationship. The court specifically held that it had subject-matter jurisdiction and declined to dismiss the proceeding against the respondent girlfriend and her minor son from another marriage, dismissing only against his own biological child due to the petitioner's legal obligation to support and to house the child.

DeJesus v. Rodriguez, 196 Misc.2d 88 (Civ. Ct. Richmond Co.2003) involved the rights of the petitioner's two, minor biological children and potential ownership rights of their mother. In DeJesus, the petitioner, whose name was on the deed as sole owner of the home, and who lived in the house with his girlfriend and their two minor children, sought to evict the girlfriend as a licensee. They had moved into the house together at the time of its purchase. The respondent claimed she paid half the down payment and contributed toward the mortgage. There was also a pending petition for a family offense as well as a child support proceeding in the Family Court. With respect to the minor children, the DeJesus court pointed out, "[i]nherent to child support is the obligation to provide shelter. . . . Petitioner should not be permitted to circumvent or ignore this obligation by evicting his children in this proceeding." Id. At 885-86. Thus, a tangle of issues required adjudication elsewhere.

Minors v. Tyler, 137 Misc.2d 380 (Civ. Ct Bronx Co. 1987), was another case where a claim of ownership served to remove the dispute from the jurisdiction of the court. In Minors, the petitioner sought, as titleholder to the one-family home, to evict his former "paramour" as a licensee. The respondent claimed constructive trust that gave her an equitable interest in the property and that precluded the petitioner from treating her as a licensee. The court rejected the notion that the respondent was a licensee, finding her to be a co-occupant with a claim of ownership. The court transferred the case to the Supreme Court where there could be a global resolution of all issues.[2]

Three others of the seven trial-level cases cited by the respondent, unlike the case presently before this court, involved, either directly or indirectly, legal obligations derived from marriage, while some contained issues pertaining to the rights of biological children. In Nagle v. DiPaola, 134 Mic.2d 761 (Dist. Ct. Nassau Co. 1987), the petitioner, who was the pre-marital owner of the home, sought to evict his wife's two minor children from a previous marriage on the ground that they were licensees. Citing Rosensteil v. Rosensteil, 20 A.D.2d 71 (First Dept. 1963), the court ruled that it lacked subject-matter jurisdiction because the respondent-stepchildren did not derive their right to occupy the premises from a license but rather from the marital relationship of the husband and wife.

In Sirota v. Sirota, 164 Misc.2d 966 (Civ. Court, Kings Co. 1995) the petitioner sought to evict his and his deceased wife's two, adult, biological children. Citing Rosensteil v. Rosensteil, 20 A.D.2d 71 (First Dept. 1963), and alluding to an implied privilege derived from the use of the marital residence, as well as an issue of fraud that had been raised by the respondents, the court transferred the case to the Supreme Court, which had jurisdiction to determine all issues "in one fell swoop." Id. at 968.

Billips v. Billips, 189 Misc.2d 144 (Civ. Ct. NY Co.2001) was an illegal lockout proceeding rather than a licensee holdover proceeding that was brought by a husband against his wife. Also, there were minor, biological children involved, with divorce and separation issues pending resolution. Basing its decision on cases that held one spouse may not evict the other, the Billips court surprisingly held that it did not have jurisdiction to restore a spouse to possession when he had been ousted by a spouse who had illegally used self-help to evict him.

Williams v. Williams, 13 Misc.3d 395 (Civ.Ct.NY Co.2006) is the only cited trial-level case that relied exclusively on the relationship of the parties to justify the outcome, although the parties to the proceeding — a grandmother and her two adult grandsons — were related by blood. In Williams, the court held that the grandmother could not evict her two adult grandsons by summary proceeding under the RPAPL § 713(7). The court explained that family members cannot be licensees. Therefore the Williams court relegated the grandmother to initiating an ejectment action or a Family Court proceeding, although the court did not specify the particular kind of Family Court proceeding that would be appropriate.[3] Although the case involved a dispute between blood-relations, more significantly the court did not enunciate a mutual legal obligation or privilege created by the relationship that served to preserve the respondents from licensee status, thus forcing the grandmother to pursue her goal of evicting her grandsons so that she could transfer to a smaller, more affordable apartment by means of a longer, more complicated, and more expensive proceeding. This court respectfully declines to follow Williams.

There are trial-level cases that reject the claim that a familial relationship, in and of itself, removes a person from having licensee status. See e.g. Drost v. Hookey, 25 Misc.3d 219 (Dist. Ct. Suffolk Co. 2009); see also Landry v. Harris, 12 Misc.3d 1123(A) (Civ. Ct. NY Co.2008) (discussed above). The point of this analysis is not to engage in a caselaw duel, but simply to point out that the issue is not at all well settled. This court sees no inherent reason why a family member could not simultaneously have licensee status. A licensee relationship, by its very nature, implies, and often involves, a relationship that is based on personal, rather than financial, considerations. Without an additional legal basis to supercede a party's status as a licensee, or a mandate from an appellate level court or from the legislature directing the lower courts to exclude those in family-type relationships from being subject to a licensee proceeding under RPAPL § 713(7), this court declines to follow a rule that says a familial relationship, in and of itself, precludes a summary proceeding under the RPAPL § 713(7). In any event, the widely disparate factual claims of the parties concerning the nature of their relationship also militates against dismissal.

Accordingly, the motion to dismiss for failure to state a cause of action and for lack of subject matter jurisdiction is denied. The case is adjourned for trial to July 22, 2015, at 9:30 a.m., in Part C, Room 390. This constitutes the decision and order of this court.

[1] It is noteworthy that when Braschi was decided, persons of the same gender were not permitted to marry. After the difficult struggles of so many have finally and recently achieved the ability of those previously denied to partake of the rights and obligations of marriage, there are some who might reject the notion that a marital relationship and a "familial-type" relationship are nothing more than a distinction without a difference.

[2] In DeJesus v. Rodriguez, 196 Misc.2d 881, 885 (Civ. Ct. Richmond Co. 2003), the court erroneously reported that the Minors court "dismissed" that proceeding.

[3] On the same day as one of the recent appearance dates for this present case, a conference was held in the courtroom with the parties to a dispute who raised issues similar to those in Williams, wherein the mother of an adult son sought to remove him from her apartment. When it was suggested to the petitioner-mother that she might do well, as an alternative, to commence a case in the Family Court against her adult son, she informed the court that she had tried to do so but was told bring her claim in the Housing Court."



Thursday, March 10, 2016


If you are single and in NYC, you may have a roommate and there may be a time when you both do not get along. Assuming you are the only party on the lease, a roommate holdover case is brought to make a roommate leave the apartment or house that you share. You cannot lock your roommate out of the home you share without a court order.

For more information, see

Wednesday, March 9, 2016


With all the talk about Medicaid planning, irrevocable trusts, revocable trusts, powers of attorney, living wills, etc., AARP has discovered what many attorneys like myself have discovered. Perhaps one of the most important estate planning tools is letting your heirs know in advance what your testamentary plans are to avoid future estate litigation.


Tuesday, March 8, 2016


There is some case law with respect to tenants and of course, it would be interesting to see a case with respect to homeowners (condo/co-op as well as free standing). In any event, here is a guide from SmokeFreeHousing -NY:

Monday, March 7, 2016


"Under Florida Statute 702.015 the lender must produce the “original note” or “promissory note” not a copy.

While banks will fight and appeal that strategy for years those consumers willing to endure the emotional  toll could end up like Sterling living in the place she’s called home for the last 10 years with no monthly mortgage and no debt collectors at her door."


Friday, March 4, 2016


"A custody evaluation can have significant impact on the outcome of a case. Yet, evaluations are often flawed by bias, methodological deficiency, or both. While many evaluators strive to present reliable expertise, incompetent or unethical evaluators are hardly strangers to the courts. Those evaluators who disregard their ethical obligations or prevailing practice standards drop their jargon-laced opinions in the courtroom and then move on to their next court assignment."

For full article, see:

Thursday, March 3, 2016



As we read about the recent custody battle between Madonna and Guy Ritchie, I note that quite often, in determining custody or a change of custody, a court will defer to the wishes of a teenager. For example, in MATTER OF SOLOMON v. MELLION, 2016 NY Slip Op 1190 - NY: Appellate Div., 2nd Dept. February 17 2016:

"Here, considering the totality of the circumstances, including the express wishes of the child, who was 15 years old when the Family Court conducted an in camera interview of him, there is a sound and substantial basis in the record for the determination that it was in the child's best interests to grant the father's petition to modify the provisions of a judgment of divorce so as to award him sole custody of the child (see Matter of McVey v Barnett, 107 AD3d 808, 809)."

Wednesday, March 2, 2016


In several unemployment insurance hearings in which I represented the claimant, the question arose as to whether a specific word, which could have several meanings, could be used in the workplace.

But in Florida, the F word was allowed in a debt collection case. From December 2015:

Tuesday, March 1, 2016


Matter of Ippoliti v Ippoliti 2015 NY Slip Op 09107 Decided on December 9, 2015 Appellate Division, Second Department -  here the court does not set forth specific facts but does set forth certain guidelines:

"A party seeking to modify an order of child support has the burden of establishing the existence of a substantial change in circumstances warranting the modification (see Matter of Baumgardner v Baumgardner, 126 AD3d 895, 896-897; Matter of Rubenstein v Rubenstein, 114 AD3d 798, 798; Matter of Suyunov v Tarashchansky, 98 AD3d 744, 745). A party's loss of employment may constitute a substantial change in circumstances (see Matter of Rubenstein v Rubenstein, 114 AD3d at 798; Matter of Suyunov v Tarashchansky, 98 AD3d at 745; Matter of Ceballos v Castillo, 85 AD3d 1161, 1162). A party seeking downward modification of a child support obligation based on a loss of employment must submit competent proof that the loss of employment occurred through no fault of the party and the party has diligently sought re-employment commensurate with his or her earning capacity (see Matter of Rubenstein v Rubenstein, 114 AD3d at 798; Ashmore v Ashmore, 114 AD3d 712, 713; Matter of Nenninger v Tonnessen, 113 AD3d 619, 619).

Here, the record supports the Support Magistrate's determination that the father failed to demonstrate a substantial change in circumstances warranting a downward modification of his child support obligation. The father failed to establish that the termination of his employment did not involve his own fault (see Ashmore v Ashmore, 114 AD3d at 713). In any event, the father failed to adduce sufficient evidence to satisfy his burden of establishing that he diligently sought employment commensurate with his qualifications and experience (see Matter of Rolko v Intini, 128 AD3d 705, 706; Matter of Riendeau v Riendeau, 95 AD3d 891, 892; Matter of Peterson v Peterson, 75 AD3d 512, 513; Matter of Gedacht v Agulnek, 67 AD3d 1013, 1013). Thus, the Family Court properly denied the father's objections to the Support Magistrate's order denying his petition for a downward modification of his child support obligation."