Monday, October 31, 2016

VACATING A WARRANT OF EVICTION - PART 2



MATTER OF LAFAYETTE BOYNTON HSG. CORP. v. Pickett, 135 AD 3d 518 - NY: Appellate Div., 1st Dept. 2016:

Saxe, J., concurs in a memorandum as follows:

Previous case law supports and justifies the majority's affirmance of the order on appeal, which restored the evicted tenant to possession upon full payment of all overdue arrears. However, I write separately to express two concerns. First, the way in which the case law has developed with regard to vacating warrants of eviction after those warrants have already been executed, prompts me to question the underpinnings and validity of recent case law on the subject. My other concern focuses on how the law, unfairly, forces landlords to serve as de facto no-interest lenders to low-income tenants who rely on the slow process of obtaining grants and supplemental payments to help cover their rent.

The tenant in this case, who is disabled, has resided at the subject apartment for more than 30 years, and the source of his income is Supplemental Security Income from the Social Security Administration. The landlord commenced this nonpayment proceeding on October 5, 2011, and the proceeding was not ultimately resolved until two years later, after the tenant had already been evicted, when the tenant's rental arrears were finally paid up in October 2013 and the tenant restored to possession.

The litigation process during much of those two years was typical. Although nonpayment proceedings are contemplated as summary proceedings, created "to afford landlords an expeditious means of recovering real property from tenants who refused to remit rent after a demand" (Daniel Finkelstein & Lucas A. Ferrara, Landlord and Tenant Practice in New York § 14.1 at 132 [West's NY Prac Series, vol G, 2014] [emphasis added]), in cases such as this, litigation can extend for months. If the tenant agrees that rent arrears are due and owing, and that he or she lacks a viable defense to the nonpayment proceeding, that tenant often enters into a stipulation acknowledging the rent arrears and creating a payment schedule (id. at § 14:418 at 331), as well as "provid[ing] for the entry of a money judgment and a final judgment of possession in the landlord's favor, with the issuance of a warrant of eviction `forthwith,' and its execution stayed pending the tenant's compliance with the agreement's terms" (id. at § 14:425 at 333). Under the stipulation, if the tenant fails to make the agreed-on payments, the money judgment and judgment of possession will become enforceable based on the expiration of the stay, and the warrant of eviction may be turned over to the City Marshall to be executed after 72 hours' notice is given to the tenant (id. at 14:471 at 358-359; see RPAPL 749).

What often happens thereafter is that the tenant finds that the agreed-upon schedule did not provide sufficient time to obtain the necessary funds. When elderly or disabled low-income tenants have difficulty covering their expenses with their income, they may seek to obtain charitable grants, supplemental payments by the New York State Department of Social Services (DSS), "one shot deals"[*] from the New York City Human Resources Administration (HRA) and the like. However, the process by which such funds are applied for and obtained is sometimes slow and laborious. The tenant therefore applies to the court for an extension of the stay.

Here, the tenant entered into a stipulation of settlement agreeing to the issuance of a warrant of eviction, to be stayed for a period of time to allow him time to pay the rent arrears, which were initially $5,250.60. Thereafter the tenant brought seven motions seeking stays of the warrant of eviction and additional time to pay the ever-accumulating arrears. The tenant was repeatedly granted extensions and stays of eviction on condition that he pay the arrears by a new set date, each extension based on showings that charitable grants, payments by the DSS or "one shot deals" from the HRA had been approved for payment. However, by the time those promised payments were eventually made, new arrears had accrued, so the landlord was still not made whole by those eventual payments, and the cycle of extensions and only partial payments continued.

The aspect of this case that concerns me is what occurred after the court denied any further stays on August 15, 2013 and allowed execution of the warrant of eviction, explaining that the tenant had "utterly failed to show any ability to pay the longstanding arrears which now amount to $12,370.00" and "merely rehashes all arguments and provides stale evidence of payments long credited." The eviction took place on September 13, 2013. Then, although the court denied the tenant's first two post-eviction motions to stay the landlord from re-letting the apartment, it later granted yet another post-eviction motion by the tenant to stay the landlord from re-letting, upon the tenant's tender of $7,539 in open court. The tenant was restored to possession upon his tender of an additional $7,515.21 before October 23, 2013, which constituted a final payment of all sums then owed to the landlord.
Appellate Term affirmed, holding that the Civil Court had not abused its discretion in vacating the warrant of eviction and conditionally restoring the tenant to possession of the apartment upon his payment of all rent arrears, eviction costs, and attorneys' fees then due. Appellate Term observed that the record established good cause for the relief, because the tenant had tendered a substantial portion of the rent arrears and demonstrated that various agencies had committed funds. Appellate Term also remarked that the landlord had contributed to some of the delays in resolving the rent claim, by losing the checks tendered by DSS on tenant's behalf, which then had to be reissued. Lastly, Appellate Term explained that the protracted nature of the proceedings did not warrant forfeiture of the tenancy, given tenant's good faith and ultimately successful efforts to make landlord whole by securing emergency rental assistance and tendering the rent arrears and landlord's litigation costs, including attorneys' fees. This Court affirms.

In its appeal to this Court, the landlord correctly points out that while RPAPL 749 (3) authorizes the vacatur of warrants of eviction "for good cause shown" before the warrant is executed, the statute does not authorize the post eviction vacatur of warrants of eviction that have already been 522*522 executed. However, while RPAPL 749 (3) does not provide for any post-eviction remedies for an eviction, the Court of Appeals has affirmatively stated that courts may grant such relief, even after a warrant of eviction has been executed. In Matter of Brusco v Braun (84 NY2d 674 [1994]), it said, "the Civil Court may, in appropriate circumstances, vacate the warrant of eviction and restore the tenant to possession even after the warrant has been executed" (id. at 682). So, while the statute may not give the Civil Court the authority to vacate an already-executed warrant of eviction, case law provides that authority.

However, Brusco did not address what "appropriate circumstances" might entail. Notably, Brusco did not involve an evicted tenant restored to possession. The decision's acknowledgment that a tenant may be restored to possession after a warrant of eviction has been executed was simply one item in a list of ways that the law protects tenants against unjust or erroneous eviction. Its sole citation in support of that proposition was Solack Estates v Goodman (78 AD2d 512 [1st Dept 1980]). In Solack Estates, an elderly tenant was evicted pursuant to a default judgment obtained while she was on vacation in Florida; she was restored to possession when it was established that she had timely sent her rent checks, albeit to an outdated address. That decision concluded that "[u]nder the circumstances, the Civil Court was correct in vacating the warrant of eviction and restoring the tenant to her apartment" (id. at 513). More recently, this Court echoed Brusco's pronouncement of the "appropriate circumstances" test, in a case that did not involve a post-eviction situation (see Harvey 1390 LLC v Bodenheim, 96 AD3d 664, 665 [1st Dept 2012]). The legal standard these cases provide regarding whether to restore a tenant to possession after an eviction is that of "appropriate circumstances."

Because the statutory standard of proof to vacate a warrant of eviction before the warrant is executed is "for good cause shown" (RPAPL 749 [3]), one might expect that a more exacting standard should be employed where a tenant seeks to be restored to possession after eviction, since the landlord-tenant relationship had already been terminated at that point, eliminating the tenant's rights to reside in the leased premises. Yet, a number of cases of this Court have imported the "good cause" standard that RPAPL 749 (3) provides for vacating unexecuted warrants of eviction, and have applied it to already executed warrants of eviction so as to restore tenants to possession; some cases have also adopted an "abuse of discretion" standard of review of such trial court decisions. For example, in 102-116 Eighth Ave. Assoc. v Oyola (299 AD2d 296 [1st Dept 2002]), we affirmed an order restoring a tenant to possession upon payment of all rent arrears. Without describing the facts of the case, we said that "[u]nder the particular facts and circumstances ... Civil Court properly exercised its discretion and for good cause vacated the warrant of eviction so as to restore respondent to possession of the subject premises" (id. at 296).

Similarly, in Parkchester Apts. Co. v Scott (271 AD2d 273 [1st Dept 2000]), this Court upheld the grant of a tenant's post-eviction application to be restored to possession, observing that the tenant's motion had been accompanied by proof of payment of the balance due on the judgment against him, plus additional accrued rent. In the remaining brief discussion, the decision imports to this post-eviction situation the "good cause" standard of RPAPL 749 (3): "good cause to support the Civil Court's vacatur of the warrant of eviction was demonstrated through proof from the 63-year-old tenant that, notwithstanding recent illness, he made appreciable payments towards the judgment and, while a tenant for 20 years, had apparently had no prior delinquency record and, prospectively, had arranged for automatic withdrawal of monthly rent from his bank account" (id. at 273-274).

To sum up: the initial case law that allowed already-evicted tenants to be restored to their tenancy applied a standard of "appropriate circumstances," while subsequent cases permit a tenant's restoration after eviction for "good cause shown," which standard is satisfied by good faith and eventually successful efforts by a long-term tenant to satisfy his or her rent obligation, despite hardships. In addition, some recent cases suggest that on appeal the trial court's decision must be given the substantial latitude of an abuse of discretion standard of review.

Appellate Term here, like this Court in 102-116 Eighth Ave. Assoc. v Oyola (299 AD2d at 296) and like Appellate Term in Three In One Equities LLC v Santos (43 Misc 3d 142[A], 2014 NY Slip Op 50847[u] [App Term, 1st Dept 2014]), seems to have cited all of the foregoing standards.

I submit that we should reconsider the standard of proof necessary to vacate an already-executed warrant of eviction.

When the posture of the litigation is that a warrant of eviction was issued based on conceded rent arrears, but was stayed to give the tenant time to obtain the overdue funds from any available sources, the "good cause" standard of RPAPL 749 (3) makes perfect sense. This Court has observed, "[t]he policies 524*524 underlying the rent stabilization laws are generally better served by holding out to a tenant the opportunity usually afforded in a nonpayment proceeding to cure the breach of his rent obligations" (2246 Holding Corp. v Nolasco, 52 AD3d 377, 378 [1st Dept 2008]). Focusing on the facts of 2246 Holding, this Court explained that "[r]espondent's multiple defaults were largely the result of a delay in payment by HRA. Petitioner was aware, at the time of the settlement, that a portion of the amount due was to be paid by HRA. An indigent tenant who resides in an apartment for many years should not be evicted where she has made diligent efforts to comply with the terms of the settlement agreement, only to be stymied by events beyond her control" (52 AD3d at 378).

Facts such as these constitute sufficient and appropriate grounds for staying and vacating warrants of eviction that have not yet been executed. But since a completed eviction ordinarily terminates the tenant's interest in the property and entitles the landlord to treat the previously-rented premises as its own, a court should not undo that eviction, unless the tenant makes a showing of something more than the type of "good cause" that justifies vacating an unexecuted warrant.

For an example of the type of greater showing that should be required, we must return to the case Brusco relied on for the proposition that an executed warrant of eviction may be vacated, Solack Estates. The showing in Solack Estates justified reversing an already-executed warrant of eviction and restoring the evicted tenant to possession, because the evicted tenant there showed that the basis for the landlord's underlying claim—nonpayment of rent—was incorrect (although neither fraudulent nor based on perjury) (78 AD2d at 513). Instead, her rent payments had been sent, as she had done previously, to an address that had been superseded (id.). The finding of an error in the allegations supporting the issuance of a warrant of eviction certainly justified vacating that warrant and restoring the tenant to possession.

In contrast, a showing that after he was evicted, the evicted tenant has, at long last, succeeded in pulling together funds from enough sources to pay off arrears that accumulated over a two-year period, does nothing to show that the factual premise for the eviction was incorrect. It comports with recent case law, but it should not be enough.
I submit that to undo an eviction, the tenant should be required to satisfy more stringent criteria than the type of "good cause" that justifies vacating an unexecuted warrant. Rather, the tenant's showing should be of the type of circumstances contemplated in Brusco and Solack Estates; that is, that incorrect assumptions or findings were made in issuing the warrant of eviction that undermines the basis for its issuance in the first place. And, the appellate standard of review of such an order should be stricter than the broad abuse of discretion standard.

Finally, I feel compelled to recognize the involuntary and unacknowledged burden cases such as this place on landlords. While the tenant's rent arrears are eventually paid, and the landlord reimbursed for its legal costs for the underlying proceeding, the landlord is not made whole. Since it has no choice but to wait however long it takes for the rent to be fully paid—here, the landlord waited two years—without any interest being paid on the unpaid rent, it is in effect forced to underwrite the tenancy.

Important public policy considerations necessitate ensuring that elderly and disabled low-income tenants are not made homeless because of the normal delays in the issuance of funds from social service agencies that these tenants regularly rely on to help make up shortfalls in their ability to keep up with their monthly rent. It is shameful, however, that we are relying on the private property owners who happen to rent apartments to such tenants, requiring them to cover the shortfall for months, or even years, rather than, as a society, making sure that elderly and disabled low-income tenants have access to the necessary funds in a timely manner so they can stay current on their rent.

[*] The New York City Human Resources Administration offers a "One Shot Deal" emergency assistance program to help people who "cannot meet an expense due to an unexpected situation or event" (see One Shot Deal Short Term Emergency Assistance, http://www1.nyc.gov/nyc-resources/service/1205/one-shot-deal-short-term-emergency-assistance [accessed Dec. 11, 2015]).

Friday, October 28, 2016

VACATING A WARRANT OF EVICTION - PART 1



MATTER OF LAFAYETTE BOYNTON HSG. CORP. v. Pickett, 135 AD 3d 518 - NY: Appellate Div., 1st Dept. 2016:

"We reject the landlord's contention, premised on RPAPL 749 (3), that the Civil Court lacked the authority to grant the tenant's post-eviction motion (see Matter of Brusco v Braun, 84 NY2d 674, 682 [1994]; see also Parkchester Apts. Co. v Scott, 271 AD2d 273, 273 [1st Dept 2000]). "[T]he Civil Court may, in appropriate circumstances, vacate the warrant of eviction and restore the tenant to possession even after the warrant has been executed" (Brusco, 84 NY2d at 682; see also Harvey 1390 LLC v Bodenheim, 96 AD3d 664, 664 [1st Dept 2012]). Here, the Civil Court providently exercised its discretion, as the record shows that the long-term, disabled tenant "did not sit idly by[,]" but instead made appreciable payments towards his rental arrears and "engaged in good faith efforts to secure emergency rental assistance to cover the arrears" (Harvey, 96 AD3d at 665; see also Parkchester, 271 AD2d at 273-274). Moreover, the tenant has paid the rental arrears for the unit and the landlord's costs for the underlying proceeding (see Parkchester, 271 AD2d at 273), and the record shows that the delays in payment were, to a certain extent, attributable to others, including the landlord (see 2246 Holding Corp. v Nolasco, 52 AD3d 377, 378 [1st Dept 2008])."

Thursday, October 27, 2016

APPLY FOR HEAP



Come mid-November, low-income New Yorkers can begin applying for heating assistance under the Home Energy Assistance Program.

See http://www.ny.gov/services/apply-heap

Wednesday, October 26, 2016

THE NEW AIRNBNB LAW



Here is the sponsor memo on the new Airbnb law signed  October 21, 2016:

 
BILL NUMBER:  S6340A

 TITLE OF BILL :  An act to amend the multiple dwelling law and the
administrative code of the city of New York, in relation to
prohibiting advertising that promotes the use of dwelling units in a
class A multiple dwelling for other than permanent residence purposes

 PURPOSE :

To make unlawful advertising for the use or occupancy of dwelling
units in class A multiple dwellings for purposes other than permanent
residence, to create civil penalties for violations of this
prohibition, and to define the term "advertise" in such context.

 SUMMARY OF PROVISIONS :

Section one amends the Multiple Dwelling Law by adding a new section
121. It makes unlawful to advertise the occupancy or use of dwelling
units in a class A multiple dwelling for purposes other than permanent
residence. It also contains civil penalty of not more than $1,000 for
the first violation, $5,000 for the second violation, and $7,500 for
the third and subsequent violations. Section 1 also defines the term
"advertise" as any form of communication for marketing that is used to
encourage, persuade or manipulate viewers, readers or listeners into
contracting for goods and/or services as may be viewed through various
media including but not limited to newspapers, magazines, flyers,
handbills, television commercials, radio, signage, direct mail,
websites, and text messages.

Section two amends subchapter three of chapter one of title twenty
seven of the Administrative Code of the City of New York by adding a
new Article 18. This section makes it unlawful to advertise the
occupancy or use of dwelling units in a class A multiple dwelling for
other than permanent residence, creates civil penalties based on the
number of violations of this prohibition, and defines the term
"advertise".

Section three contains the effective date.

 JUSTIFICATION :

It is illegal in New York City to occupy a class A multiple dwelling
unit for fewer than 30 days. The legal prohibition against transient
occupancy in these dwellings was instituted to ensure that all
buildings comply with fire, building and other safety codes relative
to their class. Safety codes for class A multiple dwelling are
different than for buildings allowing transient occupancy to ensure
that specific classes of occupants are best protected.

In 2010, in the face of an explosion of illegal hotel operators in
single room occupancy buildings in New York City, New York State
clarified and strengthened the laws regarding transient occupancy in
class A multiple dwellings. Now, with the proliferation of online home
sharing platforms that allow users to advertise their apartments for
use that directly violates New York State's "illegal hotels" law, the
purpose of the "illegal hotels" law is at risk of being undone.

While it is already illegal to occupy a class A multiple dwelling for
less than 30 days, this legislation would clarify that it also illegal
to advertise units for occupancy that would violate New York law.
However, online home sharing platforms still contain advertisements
for use of units that would violate New York law. It rests with the
city and state to protect communities and existing affordable housing
stock by prohibiting advertisements that violate the law, creating a
civil penalty structure for those who violate the prohibition, and
clarifying activities that constitute advertising.
 
 LEGISLATIVE HISTORY :

New bill.

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE : 
 
This act shall take effect immediately.

Tuesday, October 25, 2016

THE SUNY CAP



Friedman v Friedman 2016 NY Slip Op 06469 Decided on October 5, 2016 Appellate Division, Second Department:

"Contrary to the defendant's contention, the Supreme Court properly concluded that he did not establish any basis to modify the stipulation or the judgment of divorce (see generally Matter of Brescia v Fitts, 56 NY2d 132). Further, we find no reason to disturb the court's determination that the plaintiff sufficiently complied with the terms of the stipulation requiring the parties to "meet and jointly discuss the selection of college for each child and, with input from the child, agree on the selection of a college for each child" (see Gretz v Gretz, 109 AD3d 788, 789; Matter of Sebastiani v Locatelli, 11 AD3d 701, 701; Regan v Regan, 254 AD2d 402, 403; cf. Halligan v Wesdorp, 264 AD2d 466, 467).

Contrary to the defendant's contention, the Supreme Court did not err in rejecting his request to impose a SUNY cap on his obligation because neither the stipulation nor the judgment of divorce made reference to a SUNY cap (cf. Balk v Rosoff, 280 AD2d 568, 569; Halligan v Wesdorp, 264 AD2d at 467; see generally Matter of Heinlein v Kuzemka, 49 AD3d 996, 998).

Additionally, the Supreme Court properly denied that branch of the defendant's motion which was, in the alternative, for a determination that his pro rata share of the college expenses was 78% and the plaintiff's share was 22%, and granted that branch of the plaintiff's cross motion which was, in effect, for a determination that the defendant's pro rata share was 100%. A separation agreement that is incorporated, but not merged, into a judgment of divorce is a legally binding independent contract between the parties which must be interpreted so as to give effect to the parties' intentions (see Matter of Gravlin v Ruppert, 98 NY2d 1, 5). Here, the parties' stipulation specifically provided, in pertinent part: "[T]he parties agree that the children's college education expenses . . . shall be financed by the custodial accounts currently maintained for their benefit, as well as any future accounts that may be established for their benefit. . . . If the children's college education costs exceed the amount of the respective custodial accounts, the parties shall contribute to the remaining cost of the children's education on a pro rata basis based upon their respective incomes" (emphasis added). Thus, pursuant to the express terms of the stipulation, after the amounts available in the custodial accounts were extinguished, the parties were required to contribute to the children's additional college costs on a pro rata basis (see generally Matter of Heinlein v Kuzemka, 49 AD3d at 998). Morever, as the stipulation did not include operative language as to whether the parties would maintain employment and there was no dispute that the plaintiff was unemployed, the court did not err in concluding that the plaintiff's pro rata share of the additional college costs was 0%."

For a discussion of steps on drafting SUNY cap language, see  http://nydailyrecord.com/2014/01/24/commentary-a-practitioners-15-step-primer-on-the-suny%E2%80%88cap/

Monday, October 24, 2016

JUDICIAL MISCONDUCT


 
Matter of Simon 2016 NY Slip Op 06855 Decided on October 20, 2016 Court of Appeala:


"The misconduct giving rise to that concession "qualifies as 'truly egregious'" (Restaino, 10 NY3d at 590). The record reflects that, among other things, petitioner used a sanction — a tool meant to "shield" from frivolous conduct — as a "sword" to punish a legal services organization for a perceived slight in an inexcusable and patently improper way (see 22 NYCRR 130-1.1 [a] [authorizing the imposition of sanctions, but precluding town and village courts from applying such penalties]). The record is also replete with instances in which petitioner used his office and standing as a platform from which to bully and to intimidate. To that end, it is undisputed that petitioner engaged in ethnic smearing and name-calling and repeatedly displayed poor temperament — perhaps most significantly, by engaging in a physical altercation with a student worker.

Those actions are representative of an even more serious problem. Petitioner — in what allegedly was a grossly misguided attempt to motivate — repeatedly threatened to hold various officials and employees of the Village of Spring Valley in contempt without cause or process. Those threats "exceeded all measure of acceptable judicial conduct" (Matter of [*4]Blackburne [State Commn. on Jud. Conduct], 7 NY3d 213, 221 [2006]), and we are particularly troubled by the testimony of one court officer, who suggested that petitioner's threats were so common that they became "a joke." The matter may have been a laughing one to that officer, but it was not to others.

Significantly, too, petitioner's hectoring extended beyond the courthouse. In what ostensibly was an attempt to undermine a former co-Judge and an apparent political adversary, petitioner willfully injected himself into the political process involving the election of an office other than his own. All of the foregoing actions reflect a pattern of calculated misconduct that militates against petitioner's assertion that the misbehavior complained of will not be repeated if he is allowed to remain on the bench [FN1]. Petitioner's misconduct apparently was tempered only by the intervention of the Commission, and at the hearing held with respect to this matter he appeared unrepentant and evasive, testifying falsely on at least two occasions in an attempt to minimize his misconduct — all of which renders suspect his guarantees of better behavior."

Friday, October 21, 2016

APPOINTING A GAL IN SUMMARY PROCEEDINGS



INWOOD VENTURA ASSOC., LLC v. BONOMME, 2016 NY Slip Op 30743 - NY: City Court, Civil Court 2016:

"CPLR § 1201 provides that a person shall appear by a guardian ad litem if she ". . . is an adult incapable of adequately prosecuting or defending his rights."

CPLR § 1203 provides that no default judgment may be entered against an adult incapable of adequately protecting her rights, where a GAL has been appointed until twenty days after such appointment.

In the practice commentaries to CPLR § 1203 Vincent Alexander states ". . . if it is demonstrated upon a motion to vacate a default judgment in an action that the defendant was not adequately capable of defending, the judgment must be vacated if such defendant had no guardian ad litem at the time of the default."

However, the cases cited by Mr. Alexander in support of this proposition have an added factor not present in the case at bar, namely that a party knew or had reason to know of the incapacity at the time the default was entered [Fischer v Fischer 21 AD3d 554, 2nd Dept. 2005 (denial of motion to vacate default reversed where it was undisputed that adverse party was on notice of mental disability); Barone v Cox 51 AD2d 115, 4th Dept., 1976 (holding error to deny motion to vacate default against a party who suffered from mental deterioration where plaintiff knew or had reason to know of defendant's condition); Sarfaty v Sarfaty 83 AD2d 748 4th Dept., 1981 (error to deny motion to vacate default judgment where husband and his attorney knew wife had been under psychiatric care and was a patient in a mental health center of a general hospital); Oneida National Bank and Trust Co. Of Central New York v Unczure 37 AD2d 480, 4th Dept., 1971 (failure of plaintiff to bring defendant's mental disability to court's attention required that default judgment be vacated); see also State v Kama 267 AD2d 225, 2nd Dept., 1999 (where state was on notice of patient's mental disability, default judgment would be vacated)

While the above referenced cases all concern situations where a party knew of the disability prior to the entry of the default, the language cited from the cases is more absolute. In its holding in, Oneida National Bank and Trust Co. Of Central New York v Unczure (supra) the Appellate Division, Fourth Department stated in reference to CPLR § 1201 and CPLR § 1203:

The two quoted statutory provisions are to be read together and interpreted as requiring the appointment of a guardian ad litem in every case where the defendant is an adult incapable of adequately protecting his rights, before a default judgment may be entered against him. With respect to infant defendants for whom no guardian ad litem has been appointed, the courts have long held that no jurisdiction was acquired and that judgments obtained in such actions are void. The same rule should apply to an adult incompetent.

While this language is seemingly absolute and has been cited without reservation by other courts, the quote continues by stating:

This places the burden upon a plaintiff who has notice that a defendant in an action is under mental disability, to bring that fact to the court's attention and permit the court to determine whether a guardian ad litem should be appointed to protect such defendants interest. For failure of the Bank to employ such procedure to safeguard the interests of its mentally ill debtor, we hold that Special Term properly vacated the default judgment . . . (Oneida, supra at 483 citations omitted, emphasis added).

The proposition that default judgments against persons unable to adequately defend their rights prior to the appointment of a GAL are not void as a matter of law is further supported by other cases where courts did not grant such relief. For example, in Shad v Shad (167 AD2d 532, 2nd Dept., 1990) the husband obtained a default judgment against his wife who was mentally ill and under long term psychiatric care. The relief obtained on default included the sale of the marital residence and a warrant of eviction to remove the wife from the marital residence. The Appellate Division held that a hearing was required to determine whether a guardian ad litem should be appointed for the wife, and further held ". . . if the appointment of a guardian ad litem is deemed necessary, the wife is granted a stay of the eviction for 60 days following the appointment . . . (Id at 532)." There was no finding that the underlying judgment should be vacated."

Thursday, October 20, 2016

WHEN YOU HAVE FALLEN BEHIND ON RENT



In NYC, there a variety of government agencies and nonprofit organizations that provide support to those who have fallen behind on rent.

See https://www1.nyc.gov/site/dhs/prevention/rent-issues.page

Tuesday, October 18, 2016

ENFORCEMENT OF SUPPORT ORDERS AMENDMENT

 
An act to amend domestic relations law section 245, in relation to providing 
additional enforcement mechanisms for collection of spousal or child support became
a law September 29, 2016, with the approval of the Governor. Here is the text of
the summary: 
 
"An act to amend the domestic relations law, in relation to providing
additional enforcement mechanisms for collection of spousal or child
support
 
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Matrimoni-
al Practice Advisory and Rules Committee.
 
This measure would amend D.R.L. § 245 to eliminate the requirement that
other enforcement remedies be exhausted before contempt can be sought
against a person who fails to pay child support, spousal support or
combined child and spousal support pursuant to a court order in a matri-
monial proceeding.
 
Even though Family Court and Supreme Court often have concurrent juris-
diction over support, the Family Court Act does not require a party to
exhaust remedies before asking for contempt for failure to pay support.
In contrast, D.R.L. § 245 expressly prohibits a party from seeking
contempt without first exhausting other remedies. To exhaust a remedy
can take months or even longer. For example, if a money judgment is
obtained for the amount due, it may take some months to enforce the
judgment. To exhaust every remedy could mean delay after delay for the
families who need the support for their immediate needs. This ability to
delay the case in Supreme Court works to the detriment of the non-monied
spouse, the custodial parent, and  children while a divorce proceeding
is ongoing unless the Supreme Court refers the case to Family Court
where the exhaustion of remedies requirements do not apply or unless a
party seeks post-judgment relief in Family Court and not Supreme Court.
It allows parties who owe support to delay further, knowing that
contempt remedies for enforcement are a last resort.
 
Incarceration will continue to be a remedy of last resort. This measure
would not alter the court's current ability to utilize all remedies of
enforcement including setting a purge amount, income execution, money
judgment, requiring posting an undertaking and making an order of
sequestration, after a finding of contempt.
 
Inability to pay will continue to be a defense to a finding of contempt.
Furthermore, as required under existing law, indigent obligors defending
claims of contempt and possible imprisonment would continue to be enti-
tled to assigned counsel.
 
Such a measure was introduced in 2009-10 (A. 5979 (Weinstein), S. 2977
(Sampson)), which would have amended D.R.L. § 245 to delete the require-
ment for exhaustion of remedies and also amended D.R.L. § 243 to allow
the court to require posting of security to ensure payment of equitable
distribution awards as well as child and spouse support (see
http://www.assembly.state.nv.us/leg/?bn=AO5979&term=2009).  Although we
support the change to D.R.L. § 243 as well, we believe the amendment to
D.R.L. § 245 is of great significance. While we recognize that the
contempt remedy is not always effective, contempt is a powerful tool,
and there is no reason why the Supreme Court should not have the same
resources at its disposal as the Family Court.
 
This measure, which would have no fiscal impact upon the State, would
take effect immediately and apply to all actions whenever commenced as
well as all judgments or orders previously entered."

Friday, October 14, 2016

FREE 15 MINUTE CONSULTATIONS THIS SATURDAY



From 11am to 3pm, I will be attending the fair and offering free 15 minute consultations. To reserve a time space, email me at jmp@jmpattorney.com

Thursday, October 13, 2016

FREE CONSULTATIONS


From 11am to 3pm, I will be attending the fair and offering free 15 minute consultations. To reserve a time space, email me at jmp@jmpattorney.com

Monday, October 10, 2016

COLUMBUS DAY

 


36 U.S.C. § 107 provides:

"The President is requested to issue each year a proclamation -

(1) designating the second Monday in October as Columbus Day; 

(2) calling on United States Government officials to display the flag of the United States on all Government buildings on Columbus Day; and 

(3) inviting the people of the United States to observe Columbus Day, in schools and churches, or other suitable places, with appropriate ceremonies that express the public sentiment befitting the anniversary of the discovery of America."

Friday, October 7, 2016

ZOMBIE HOME REGULATIONS



This year, New York enacted Part Q of Chapter 73 of the Laws of 2016, Real Property Actions and Proceedings Law (“RPAPL”) in which Section 1308 requires certain holders of first lien mortgages to inspect, secure, and maintain vacant and abandoned one to four family residential real property. In addition, Section 1310 establishes a statewide vacant and abandoned property registry in the form of an electronic database to be maintained by the Department of Financial Services.

RPAPL Sections 1308(12) and 1310(4) authorize the Superintendent of Financial Services  to issue the rules and regulations necessary to implement RPAPL Sections 1308 and 1310.

The regulations go into effect December 20, 2016 and can be viewed at this link:

http://www.dfs.ny.gov/legal/regulations/proposed/rp422t.pdf

Thursday, October 6, 2016

PREPAID CARDS



On October 3, the Consumer Financial Protection Bureau announced new regulations that will strengthen consumer protections for prepaid accounts and cards. Basically, the regulations provide users with consumer protections that are akin those offered to checking account holders.

The new rules are effective as of October 1, 2017.

To read the 1689 page announcement and rule, see http://files.consumerfinance.gov/f/documents/20161005_cfpb_Final_Rule_Prepaid_Accounts.pdf

Wednesday, October 5, 2016

SEALING COURT RECORDS



Recently, Newsday has reported on the sealing of court records in civil cases. The rule, from the Administrative Rules of the Unified Court System & Uniform Rules of the Trial Courts, is set forth herein:

"Section 216.1 Sealing of court records.

(a) Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties. Where it appears necessary or desirable, the court may prescribe appropriate notice and opportunity to be heard.

(b) For purposes of this rule, "court records" shall include all documents and records of any nature filed with the clerk in connection with the action. Documents obtained through disclosure and not filed with the clerk shall remain subject to protective orders as set forth in CPLR 3103(a).

Historical Note
Sec. filed Feb. 28, 1991 eff. March 1, 1991.

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