Tuesday, May 23, 2017


Masri v. Masri, 2017 NY Slip Op 27007 - NY: Supreme Court, Orange 2017:

"In view of the foregoing, this court holds that in the circumstances presented here, increasing the amount or the duration of Defendant's post-divorce spousal maintenance obligation pursuant to DRL §236B(6)(o) by reason of his refusal to give Plaintiff a Jewish religious divorce or "Get" would violate the First and Fourteenth Amendments to the United States Constitution. There is no evidence that the Defendant has withheld a Get to extract concessions from Plaintiff in matrimonial litigation or for other wrongful purposes. The religious and social consequences of which Plaintiff complains flow not from any impropriety in Defendant's withholding a "Get", but from religious beliefs to which Plaintiff no less than Defendant subscribes. To apply coercive financial pressure because of the perceived unfairness of Jewish religious divorce doctrines to induce Defendant to perform a religious act would plainly interfere with the free exercise of his (and her) religion and violate the First Amendment. The court accordingly declines Plaintiff's invitation to apply DRL §236B(6)(o) in determining Defendant's maintenance obligation."

A footnote in the decision notes: "On November 29, 2016, this Court gave notice to the Attorney General of the State of New York pursuant to CPLR §1012(b) and Executive Law §71 that the constitutionality of DRL §236B(6)(o), and of DRL §253(6) as incorporated therein, is at issue in this action. By letter dated December 27, 2016, the Attorney General responded that he does not intend to intervene in this action pursuant to CPLR §1012(b)."

Monday, May 22, 2017


I will be volunteering today, Monday May 22, 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, May 19, 2017


Bose v. THINK CONSTR. LLC, 2017 NY Slip Op 30944 - NY: Supreme Court 2017:

"The court next turns to that portion of the moving defendants' motion to dismiss plaintiff's unjust enrichment claim pursuant to CPLR § 3211(a)(7) on the ground that it fails to state a claim. On a motion addressed to the sufficiency of the complaint, the facts pleaded are assumed to be true and accorded every favorable inference. Morone v. Morone, 50 N.Y.2d 481 (1980). Moreover, "a complaint should not be dismissed on a pleading motion so long as, when plaintiff's allegations are given the benefit of every possible inference, a cause of action exists." Rosen v. Raum, 164 A.D.2d 809 (1st Dept. 1990). "Where a pleading is attacked for alleged inadequacy in its statements, [the] inquiry should be limited to `whether it states in some recognizable form any cause of action known to our law.'" Foley v. D'Agostino, 21 A.D.2d 60, 64-65 (1st Dept 1977) (quoting Dulberg v. Mock, 1 N.Y.2d 54, 56 (1956)). However, "conclusory allegations — claims consisting of bare legal conclusions with no factual specificity — are insufficient to survive a motion to dismiss." Godfrey v. Spano, 13 N.Y.3d 358, 373 (2009).

To state a cause of action for unjust enrichment, a plaintiff must allege "that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit the other party to retain that is sought to be recovered." Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182 (2011). However, it is well-settled that "a plaintiff cannot succeed on an unjust enrichment claim unless it has a sufficiently close relationship with the other party." Georgia Malone & Co., Inc. v. Rieder, 19 N.Y.3d 511, 516 (2012). "[A]lthough the plaintiff [is] not required to allege privity, it [has] to assert a connection between the parties that [is] not too attenuated." Id. at 517. The "relationship between the parties" must be one "that could have caused reliance or inducement." Mandarin Trading Ltd., 16 N.Y.3d at 182-183. "[M]ere knowledge" of the other party is insufficient to support a claim for unjust enrichment when the parties "had no dealings with each other" or when the parties had no contact "regarding the purchase transaction." Georgia Malone & Co., Inc., 19 N.Y.3d at 517-518.

In the instant action, the moving defendants' motion to dismiss plaintiffs' unjust enrichment claim is granted on the ground that plaintiffs' relationship with the moving defendants is too attenuated to support a claim for unjust enrichment. It is undisputed that plaintiffs hired MAD as the architect on the Project and that it was MAD, and not plaintiff, which hired and contracted with the moving defendants for their work on the Project. It is also undisputed that plaintiff paid MAD for the architectural work performed on the Project and that it was MAD, and not plaintiff, which paid the moving defendants for their work on the Project. Plaintiffs do not allege that they had any dealings or relationship with the moving defendants whatsoever or that they ever had any contact with them. Mere awareness on the part of the moving defendants that the plaintiffs existed and were the owners of the plaintiffs' property is insufficient to support a claim for unjust enrichment."

Thursday, May 18, 2017


MIDLAND FUNDING, LLC v. JOHNSON, No. 16–348, US SUPREME COURT, Decided May 15, 2017



First, the majority contends, structural features of the bankruptcy process reduce the risk that a stale debt will go unnoticed and thus be allowed. Ante, at 6–7. But there is virtually no evidence that the majority’s theory holds true in practice. The majority relies heavily on the presence of a bankruptcy trustee, appointed to act on the debtor’s behalf and empowered to (among other things) object to claims that he believes lack merit. See 11 U. S. C. §§704(a)(5), 1302(b). In the majority’s view, the trustee’s gatekeeping role makes it “considerably more likely that an effort to collect upon a stale claim in bankruptcy will be met with resistance, objection, and disallowance.” Ante, at 7. The problem with the majority’s ipse dixit is that everyone with actual experience in the matter insists that it is false. The Government, which oversees bankruptcy trustees, tells us that trustees “cannot realistically be expected to identify every time-barred . . . claim filed in every bankruptcy.” Brief for United States as Amicus Curiae 25–26; see also Resurgent Complaint ¶43 (“Filing objections to all of [one collector]’s unenforceable claims would clog the docket of this Court and other courts with objections to frivolous claims”). The trustees themselves (appearing here as amici curiae) agree, describing the practice as “wasteful” and “exploit[ative].” Brief for National Association of Chapter Thirteen Trustees as Amicus Curiae 12. And courts across the country recognize that Chapter 13 trustees are struggling under a “deluge” of stale debt. Crawford, 758 F. 3d, at 1256.

Second, the other features of the bankruptcy process that the majority believes will serve as a backstop against frivolous claims are even less likely to do so in practice. The majority implies that a person who files for bankruptcy is more sophisticated than the average consumer debtor because the initiation of bankruptcy is a choice made by a debtor. Ante, at 6. But a person who has filed for bankruptcy will rarely be in such a superior position; he has, after all, just declared that he is unable to meet his financial obligations and in need of the assistance of the courts. It is odd to speculate that such a person is better situated to monitor court filings and lodge objections than an ordinary consumer. The majority also suggests that the rules of bankruptcy help “guide the evaluation of claims.” Ibid. But the rules of bankruptcy in fact facilitate the allowance of claims: Claims are automatically allowed and made part of a plan unless an objection is made. See 11 U. S. C. §502(a). A debtor is arguably more vulnerable in bankruptcy—not less—to the oversights that the debt buyers know will occur.

Finally, the majority suggests, in some cases a consumer will actually benefit if a claim for an untimely debt is filed. Ante, at 7–8. If such a claim is filed but disallowed, the majority explains, the debt will eventually be discharged, and the creditor will be barred from collecting it. See §1328(a). Here, too, practice refutes the majority’s rosy portrait of these proceedings. A debtor whose trustee does not spot and object to a stale debt will find no comfort in the knowledge that other consumers with more attentive trustees may have their debts disallowed and discharged. Moreover, given the high rate at which debtors are unable to fully pay off their debts in Chapter 13 proceedings, see Porter, The Pretend Solution: An Empirical Study of Bankruptcy Outcomes, 90 Texas L. Rev. 103, 111–112 (2011), most debtors who fail to object to a stale claim will end up worse off than had they never entered bankruptcy at all: They will make payments on the stale debts, thereby resuscitating them, see supra, at 6–7, and may thus walk out of bankruptcy court owing more to their creditors than they did when they entered it. There is no benefit to anyone in such a proceeding—except the debt collectors.


Wednesday, May 17, 2017


Today, I will be one of the speakers at a CLE at Nassau County Bar Association: "Because Everyone Knows Someone: Legal and Ethical Implications of Attorney Impairment Start"

Tuesday, May 16, 2017



"Whether Midland’s assertion of an obviously timebarred claim is “unfair” or “unconscionable” (within the terms of the Fair Debt Collection Practices Act) presents a closer question. First, Johnson points out that several lower courts have found or indicated that, in the context of an ordinary civil action to collect a debt, a debt collector’s assertion of a claim known to be time barred is “unfair.” See, e.g., Phillips v. Asset Acceptance, LLC, 736 F. 3d 1076, 1079 (CA7 2013) (holding as much); Kimber v. Federal Financial Corp., 668 F. Supp. 1480, 1487 (MD Ala. 1987) (same); Huertas v. Galaxy Asset Management, 641 F. 3d 28, 32–33 (CA3 2011) (indicating as much); Castro v. Collecto, Inc., 634 F. 3d 779, 783 (CA5 2011) (same); Freyermuth v. Credit Bureau Servs., Inc., 248 F. 3d 767, 771 (CA8 2001) (same).

We are not convinced, however, by this precedent. It considers a debt collector’s assertion in a civil suit of a claim known to be stale. We assume, for argument’s sake, that the precedent is correct in that context (a matter this Court itself has not decided and does not now decide). But the context of a civil suit differs significantly from the present context, that of a Chapter 13 bankruptcy proceeding. The lower courts rested their conclusions upon their concern that a consumer might unwittingly repay a timebarred debt. Thus the Seventh Circuit pointed out that “‘few unsophisticated consumers would be aware that a statute of limitations could be used to defend against lawsuits based on stale debts.’” Phillips, supra, at 1079 (quoting Kimber, supra, at 1487). The “‘passage of time,’” the Circuit wrote, “‘dulls the consumer’s memory of the circumstances and validity of the debt’” and the consumer may no longer have “‘personal records.’” 736 F. 3d, at 1079 (quoting Kimber, supra, at 1487). Moreover, a consumer might pay a stale debt simply to avoid the cost and embarrassment of suit. 736 F. 3d, at 1079.

These considerations have significantly diminished force in the context of a Chapter 13 bankruptcy. The consumer initiates such a proceeding, see 11 U. S. C. §§301, 303(a), and consequently the consumer is not likely to pay a stale claim just to avoid going to court. A knowledgeable trustee is available. See §1302(a). Procedural bankruptcy rules more directly guide the evaluation of claims. See Fed. Rule Bkrtcy. Proc. 3001(c)(3)(A); Advisory Committee’s Notes on Rule 3001–2011 Amdt., 11 U. S. C. App., p. 678. And, as the Eighth Circuit Bankruptcy Appellate Panel put it, the claims resolution process is “generally a more streamlined and less unnerving prospect for a debtor than facing a collection lawsuit.” In re Gatewood, 533 B. R. 905, 909 (2015); see also, e.g., 11 U. S. C. §502 (outlining generally the claims resolution process). These features of a Chapter 13 bankruptcy proceeding make it considerably more likely that an effort to collect upon a stale claim in bankruptcy will be met with resistance, objection, and disallowance."

Monday, May 15, 2017


In February of 2015 End of Life Choices New York filed a lawsuit, Myers v. Schneiderman, to establish aid in dying as a right under current law or under the New York State Constitution. The lawsuit was dismissed by a lower court, an appeal to the Appellate Division, First Department. affirmed the lower court ruling in May 2016. In September of 2016, the Court of Appeals ruled to hear the appeal and oral arguments are scheduled for May 30, 2017.

Many organizations have requested to file briefs or appear amici curiae - most recently on May 13, news correspondent and author Betty Rollin, who has been active in the Death with Dignity movement, was granted leave to file a brief. Myers v. Schneiderman, 2017 NY Slip Op 72536 - NY: Court of Appeals May 4, 2017. Motion No. 2017-477.

Friday, May 12, 2017

Thursday, May 11, 2017


Effective January 16, 2017, Public Health Law (PHL) Article 34 created an additional section 3444 to allow certain types of food and/or beverages to be served to consumers attending vistitation hours and funeral services in funeral establishments.

The NYS Department of Health on their website has a "Dear Funeral Directors Letter Re Food in Funeral Homes"

See https://www.health.ny.gov/professionals/funeral_director/2017-01-11_guidance_letter.htm

Wednesday, May 10, 2017


HERVIAS, MARCELINO vs. CITY OF NEW YORK, 154059/2017, New York Civil Supreme, is an Article 78 proceeding filed on May 2. As reported by the NY Daily News, the plaintiffs, two medallion taxi drivers, "claim that e-mail apps create 'unfair competition' and  financial woes for taxi medallion owners". They also note that the value of a medallion has been reduced in some cases by over 50%.

The Article 78 petition can be viewed online on e courts.

Tuesday, May 9, 2017


Today I will be a volunteer lawyer with Nassau Suffolk Law Services at Landlord/Tenant court in Hempstead. From the Nassau/Suffolk Law Services website:

"The Volunteer Lawyers Project (Nassau) and The Pro Bono Project (Suffolk)
Nassau/Suffolk Law Services operates a nationally lauded pro bono program with the Bar Association of Nassau County and the Suffolk County Bar Association. Established in 1981, the program provides legal representation in civil cases for individuals meeting low income guidelines.
Volunteer Lawyers Project and Pro Bono Project:
The Projects strive to supplement the funded civil legal services provided by Law Services’ staff with the generous volunteer assistance of the private bar. The Project staff refers a variety of legal matters to private volunteer attorneys, usually in the areas of matrimonial, bankruptcy and landlord-tenant law. The demand for pro bono services is great and may involve a waiting list, as in the case of divorce matters.  However, we maintain an active outreach and recruitment program in an effort to meet the challenge. The Projects also screen prospective clients for the Modest Means Panel, private attorneys who have agreed to accept divorce cases at a reduced fee. The Volunteer Lawyers and Pro Bono Projects are supported in part by The Nassau Bar Association, the We Care Fund, and The Suffolk County Bar Association, the Suffolk County Bar Pro Bono Foundation, as well as by The Legal Services Corporation. For information in Nassau County call 516-292-8299 and in Suffolk County 631-232-2400. HOW MANY LAWYERS  DOES  IT  TAKE TO CHANGE. . . The World ? It’s a simple idea. Use your powers for good. When you represent the poor and disabled, you also represent the best of our profession. A profession full of caring, committed people who firmly believe a just world is possible. Our clients don’t pay.  But the rewards —-that’s another story entirely. Once you’ve made a difference in the life of another , it can’t but help make a difference in yours. You’ve been given a gift, a powerful skill –you can put it to no better use than to help the powerless. You can help.  The only question is: will you? The Collateral Rewards:
  • Free CLE credits
  • Free pass to a CLE course
  • Access to expert consultation and mentoring
  • Eligibility for Pro Bono Attorney of the Month award and Pro Bono Recognition Reception
  • Free professional liability insurance
  • Networking with attorney colleagues and judges
  • Expand your knowledge and experience in various disciplines of law
How can you help?
  • Provide direct client representation
  • Be a mentor to other volunteer attorneys
  • Assist Project staff with intake, case analysis, referral and recruitment of volunteer attorneys
  • Volunteer to work alongside Nassau Suffolk Law Services staff in landlord/tenant court, assist in disability, access to health care, Social Security advocacy, etc
Help is especially needed in the following areas:
  • Matrimonial and Family Law
  • Bankruptcy
  • Guardianships (Article 17A)
  • Foreclosure
  • Consumer Issues
  • Access to Medical Care and Public Benefits
  • Wills, Trusts, and Estates
Take the challenge! You can make a difference. Call Maria Dosso for more information about volunteering. 631 232-2400 x 3369 Each month Nassau Suffolk Law Services celebrates the labors of individual attorneys who have demonstrated an outstanding commitment to the Pro Bono effort and who serve as a role model for the legal profession and its commitment to pro bono work."

Monday, May 8, 2017


I will be volunteering today, Monday May 8, 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, May 5, 2017


If there is no operating agreement which covers disputes among members, it is Section 702 of the Limited Liability Company Law which governs. Matter of 47th Rd. LLC, 2017 NY Slip Op 30607 - NY: Supreme Court 2017:

"Section 702 of the LLCL provides for dissolution of a limited liability corporation under the following circumstances:
On application by or for a member, the Supreme Court in the judicial district in which the office of the limited liability company is located may decree dissolution of a limited liability company whenever it is not reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement. A certified copy of the order of dissolution shall be filed by the applicant with the Department of State within 30 days of issuance. . .
Under Section 702 of the Limited Liability Company Law ("LLCL"), the Supreme Court in the judicial district in which the office of the company is located may, on application by or for a member, decree dissolution of the company "whenever it is not reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement." LLCL $702.

The Operating Agreement, in Article II, states only that the company is formed for "any lawful business purpose." The standard operating agreement, in Article 6, provides that the company shall be dissolved and its affairs wound up upon the first to occur of the following: a the latest date on which this company is to dissolve, if any, as set forth in the articles of organization, or by a judicial decree pursuant to section 702 of the New York limited liability company law.
In determining applications for a judicial dissolution of a limited liability company, the court must first look to such company's operating agreement to determine "whether it is or is not reasonably practicable for the limited liability company to continue to carry on its business in conformity with the operating agreement" (Matter of 1545 Ocean Avenue, LLC v Crown Royal Ventures, LLC, 72 AD3d 121 [2d Dept 2010]; see LLCL § 702). Considered a statutory "default provision" for judicial dissolution (see Man Choi Chiu v Chiu, 71 AD3d 646 [2d Dept 2010]), LLCL § 702 is available whenever the court finds that it is not reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement. Appellate case authorities have instructed that the court's initial analysis is one that is contract-based because the statute mandates an examination of the articles and operating agreement to determine the reasonable practicability of carrying on the business in conformity with these governing documents (see Matter of 1545 Ocean Avenue, LLC v Crown Royal Ventures, LLC, supra; see also Matter of Shure v S&S Eatery LLC, 35 Misc.3d 1218(A), 2012 WL 1521915 (Sup. Ct., Nassau Co., 2012); Matter of Spires v Lighthouse Solutions, LLC, 4 Misc.3d 428, 436 [Sup. Ct., Monroe Co., 2004]).

Here, the general nature of the stated purpose in the Operating Agreement is vague; hence, it does not assist in determining the reasonable practicability of continuing the business. Normally, the LLCL would operate to fill in the voids (see Flax v Shirian, 44 Misc. 3d 1222(A), 3 N.Y.S.3d 284, 2014 N.Y. Misc. LEXIS 3679, 2014 NY Slip Op 51229(U), 2014 WL 4056810 [Sup. Ct. Suffolk Co. 2014]). However, the evidence adduced at the hearing makes it clear that the purpose of the company is to operate an eight-unit residential apartment building in an up and coming area of Queens County.

To successfully petition for the dissolution of a limited liability company under the "not reasonably practicable" standard imposed by LLCL § 702, the petitioning member must demonstrate, in the context of the terms of the articles of incorporation of the operating agreement, the following: 1) the management of the entity is unable or unwilling to reasonably permit or promote the stated purpose of the entity to be realized or achieved; or 2) continuing the entity is financially unfeasible (see Matter of 1545 Ocean Avenue, LLC., v Crown Royal Ventures, LLC, supra; see also Doyle v Icon, LLC, 103 AD3d 440 [1st Dept 2013]). Disputes between members are alone not sufficient to warrant the exercise of judicial discretion to dissolve an LLC that is operates in a manner within the contemplation of it purposes and objectives as defined in its articles of organization and/or operating agreement (see eg. Matter of Natanel v Cohen, 43 Misc.3d 1217(A), 2013 NY Misc Lexis 2900 *12-13 [Sup. Ct. Kings Co. 2014]). It is only where discord and disputes by and among the members are shown to be inimical to achieving the purpose of the LLC will dissolution under the "not reasonably practicable" standard imposed by LLCL § 702 be considered by the court to be an available remedy to the petitioner (see Matter of 1545 Ocean, supra at 130-132; see also Matter of Sieni v Jamsfab, LLC, 2013 WL 3713604 *5, 2013 NY Misc Lexis 2900 *12-13, 2013 NY Slip Op 31473[U] *5 [Sup Ct, Suffolk County 2013]; Goldsein v Pikus, 2015 N.Y. Misc. LEXIS 2849, *1, 2015 NY Slip Op 31455(U), 1 [Sup. Ct. NY Co. 2015])."

Thursday, May 4, 2017


Connaughton v Chipotle Mexican Grill, Inc. 2017 NY Slip Op 03445 Decided on May 2, 2017 Court of Appeals:

To allege a cause of action based on fraud, plaintiff must assert "a representation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission and injury" (Lama Holding Co. v Smith Barney Inc., 88 NY2d 413, 421 [1996] [internal citation omitted]). Critically, "[a] false representation does not, without more, give rise to a right of action, either at law or in equity, in favor of the person to whom it is addressed. To give rise, under any circumstances, to a cause of action, either in law or equity, reliance on the false representation must result in injury . . . . If the fraud causes no loss, then the plaintiff has suffered no damages" (Sager v Friedman, 270 NY 472, 480-481 [1936]).

In New York, as in multiple other states, "'[t]he true measure of damage is indemnity for the actual pecuniary loss sustained as the direct result of the wrong' or what is known as the 'out-of-pocket' rule" (Lama Holding, 88 NY2d at 421, quoting Reno v Bull, 226 NY 546, 553 [1919]). Under that rule, "[d]amages are to be calculated to compensate plaintiffs for what they lost because of the fraud, not to compensate them for what they might have gained . . . . [T]here can be no recovery of profits which would have been realized in the absence of fraud" (id. at 421, citing Foster v Di Paolo, 236 NY 132 [1923], AFA Protective Sys. v American Tel. & Tel. Co., 57 NY2d 912 [1982], and Cayuga Harvester, Inc. v Allis-Chalmers Corp., 95 AD2d 5 [4th Dept 1983]). Moreover, this Court has "consistent[ly] refus[ed] to allow damages for fraud based on the loss of a contractual bargain, the extent, and indeed . . . the very existence of which is completely undeterminable and speculative" (Dress Shirt Sales v Hotel Martinique Assocs., 12 NY2d 339, 344 [1963]).

Here, plaintiff's pleading is fatally deficient because he did not assert compensable [*5]damages resulting from defendants' alleged fraud. The complaint alleges that in reliance on defendants' fraudulent omissions, plaintiff stopped soliciting potential buyers. However, the complaint fails to allege that, in doing so, he rejected another prospective buyer's offer to purchase the concept. Instead, plaintiff avers that once Ells showed an interest in his ramen restaurant idea, plaintiff turned to selling the concept to Chipotle. These are factual assertions of the quintessential lost opportunity, which are not a recoverable out-of-pocket loss (see Lama Holding, 88 NY2d at 422). As this Court has repeatedly stated, such damage is "disallowed as too speculative a recovery" (Dress Shirt Sales, 12 NY2d at 344; see also Lama Holding, 88 NY2d at 422).

Similarly inadequate to satisfy his pleading burden are plaintiff's allegations that he might incur litigation expenses and potential loss of reputation if named in a civil action by the other chef. These are not claims of actual out-of-pocket loss but speculative claims of possible future damages, and fare no better than his lost profits claim. There are also no facts alleged in the complaint to support allegations of reputational harm. For example, plaintiff did not assert or provide facts from which it could be inferred that he lost standing within the restaurant industry, or that he is unemployable as a result of his association with Chipotle.

Nor is plaintiff entitled to nominal damages under this Court's holding in Kronos, Inc. v AVX Corp. (81 NY2d 90, 95 [1993]). In that case, the Court explained that while nominal damages are typically available in a contracts case to vindicate a party's contractual rights, nominal damages are only available in tort actions to "protect an important technical right" (id. at 96, quoting Note, Damages Recoverable in an Action for Inducing Breach of Contract, 30 Colum L Rev 232, 238 [1930] [internal quotation marks omitted]). Nominal damages are not available when actual harm is an element of the tort (Restatement [Second] of Torts § 907; accord 16 NY Practice Series, NY Law of Torts §§ 1:74, 21:2 [2016]). Conversely, nominal damages may be available in an intentional tort case where the plaintiff need not allege harm to maintain an action against defendant (see Kronos, 81 NY2d at 95 [explaining that nominal damages are available for trespass, which does not require a showing of harm]). Since actual harm is an element of fraudulent inducement (see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]), and there is no compelling reason to carve out an exception for such cause of action, as a general matter or specifically in this case, plaintiff is not entitled to nominal damages.[FN2]



Footnote 1: Plaintiff also alleged a cause of action for unjust enrichment against Chipotle for its failure to compensate him for his restaurant concept. Plaintiff does not challenge the dismissal of this cause of action on appeal to our Court.

Footnote 2: Based on our conclusion that the cause of action was properly dismissed because plaintiff failed to plead compensable damages, we have no reason to address defendants' alternative argument that plaintiff's at-will status bars his action for fraudulent inducement against his former employer."

Wednesday, May 3, 2017


This case is a year old but a warning to those in home improvement to go through the licensing procedure. HOLISTIC HOMES, LLC v. Greenfield, 138 AD 3d 689 - NY: Appellate Div., 2nd Dept. 2016:

"`An unlicensed contractor may neither enforce a home improvement contract against an owner nor seek recovery in quantum meruit'" (J.M. Bldrs. & Assoc., Inc. v Lindner, 67 AD3d 738, 741 [2009], quoting Blake Elec. Contr. Co. v Paschall, 222 AD2d 264, 266 [1995]; see ENKO Constr. Corp. v Aronshtein, 89 AD3d 676, 677 [2011]). "Pursuant to CPLR 3015 (e), a complaint that seeks to recover damages for breach of a home improvement contract or to recover in quantum meruit for home improvement services is subject to dismissal under CPLR 3211 (a) (7) if it does not allege compliance with the licensing requirement" (ENKO Constr. Corp. v Aronshtein, 89 AD3d at 677; see Westchester Stone, Sand & Gravel v Marcella, 262 AD2d 403, 404 [1999]).

Here, the complaint did not allege that the plaintiff was duly licensed in Nassau County at the time of the services rendered (see Nassau County Administrative Code § 21-11.2). Moreover, in opposition to the motion of the defendant Alan B. Greenfield (hereinafter the defendant), the plaintiff conceded that it did not possess the necessary license. Therefore, the plaintiff was not entitled to enforce its contract against the defendant or to recover in quantum meruit (see ENKO Constr. Corp. v Aronshtein, 89 AD3d at 677; Flax v Hommel, 40 AD3d 809, 810 [2007]; cf. Ozkurt v Hyatt Realty, LLC, 117 AD3d 926, 926 [2014])."

Tuesday, May 2, 2017


An interesting fact pattern and a Solomon like decision in DAWN M. v. Michael M., 2017 NY Slip Op 27073 - NY: Supreme Court 2017

"Plaintiff and defendant were married on July 9, 1994. After being unsuccessful at attempts to have a child, the parties went to a fertility doctor. The plaintiff was artificially inseminated with defendant's sperm and conceived a child. Unfortunately, that child was miscarried at ten weeks gestation.

In April of 2001, plaintiff met Audria G. (hereinafter referred to as "Audria") and they became close friends. Audria and her boyfriend moved into an apartment downstairs from plaintiff and defendant. When Audria's boyfriend moved out, Audria moved upstairs with plaintiff and defendant. Sometime in 2004, the relationship between plaintiff, defendant and Audria changed and the three began to engage in intimate relations.

As time went on, Audria, plaintiff and defendant began to consider themselves a "family" and decided to have a child together. The parties and Audria went to the fertility doctor previously utilized by plaintiff and defendant with the hope that Audria could be artificially inseminated with defendant's sperm. The fertility doctor, however, refused to artificially inseminate Audria because she was not married to defendant. Thereafter, the parties and Audria decided they would try to conceive a child naturally by defendant and Audria engaging in unprotected sexual relations. The credible evidence establishes that it was agreed, before a child was conceived, that plaintiff, Audria and defendant would all raise the child together as parents.
Audria became pregnant and J.M. was born on January 25, 2007. The evidence establishes that plaintiff's medical insurance was used to cover Audria's pregnancy and delivery, and that plaintiff accompanied Audria to most of her doctor appointments. For more than eighteen months after J.M.'s birth, defendant, plaintiff and Audria continued to live together. Audria and plaintiff shared duties as J.M.'s mother including taking turns getting up during the night to feed J.M. and taking him to doctor visits.

As time went on, however, the relationship between defendant and plaintiff became strained. In October of 2008, Audria and plaintiff moved out of the marital residence with J.M. A divorce action was commenced by plaintiff against defendant in 2011. Plaintiff testified credibly that after the divorce action was commenced, defendant no longer considered her to be J.M.'s parent. Prior to this divorce, a custody case was commenced by defendant against Audria. Defendant and Audria settled their custody proceeding by agreeing to joint custody; residential custody with Audria and liberal visitation accorded to defendant.[3] The plaintiff still resides with Audria and J.M., and sees J.M. on a daily basis. She testified that she brought this action to assure continued visitation and to secure custody rights for J.M. because she fears that without court-ordered visitation and shared custody, her ability to remain in J.M.'s life would be solely dependent upon obtaining the consent of either Audria or the defendant.

The Court finds plaintiff's love for J.M. evident from her actions, testimony and demeanor on the stand. Indeed, during her testimony, plaintiff beamed whenever she spoke of J.M., including her earliest involvement in his life during Audria's pregnancy. The court finds credible the testimony of Audria and plaintiff that J.M. was raised with two mothers and that he continues to the present day to call both "mommy." The court does not find credible defendant's claim that he called plaintiff by her first name and never referred to her as "mommy" in front of J.M. The court finds that in all respects, during the first eighteen months of J.M.'s life when defendant, plaintiff and Audria all lived together, and thereafter, plaintiff acted as a joint mother with Audria and that they all taught the child that he has two mothers. In fact, the credible evidence establishes that when J.M. had an ear operation at age two, the defendant told the nurse that both plaintiff and Audria were J.M.'s mother so that both could be with him in the recovery room.

Moreover, the in camera interview conducted by the court with J.M. clearly establishes that J.M. considers both plaintiff and Audria his mothers. When asked to distinguish them, he refers to Audria as "mommy with the orange truck" and to plaintiff as "mommy with the grey truck."[4] He makes no distinction based on biology. J.M. is a well adjusted ten-year-old boy who loves his father and his two mothers. He knows nothing about this action. He has no idea that his father opposes tri-custody and court-ordered visitation with plaintiff.[5] The in camera with J.M. leaves no doubt that J.M. considers both plaintiff and Audria to be equal "mommies" and that he would be devastated if he were not able to see plaintiff. The interview with J.M. also clearly shows that he enjoys his present living situation and would not want it altered in any way.

Although not a biological parent or an adoptive parent, plaintiff argues that she has been allowed to act as J.M.'s mother by both Audria and defendant. She has always lived with J.M. and J.M. has known plaintiff as his mom since his birth. Plaintiff asserts that the best interest of J.M. dictates that she be given shared legal custody of J.M. and visitation with him. J.M.'s biological mother Audria strongly agrees. Plaintiff argues, along with the child's attorney, that defendant should be estopped from opposing this application because he has created and fostered this situation by voluntarily agreeing, before the child was conceived, to raise him with three parents. And, further, that the defendant has acted consistent with this agreement by allowing the child to understand that he has two mothers.

Pursuant to DRL § 70, a parent may apply to the court for custody based solely upon what is for the best interest of the child, and what will promote his welfare and happiness. DRL § 240 also requires that in any proceeding for divorce, the court "shall enter a custody order having regard to the circumstances of the case and of the respective parties and to the best interests of the child. . . ." The Court of Appeals in Brooke S.B. stressed that its decision only addressed the ability of a person who was not a biological or adoptive parent to establish standing as a parent to petition for custody and visitation, and that the ultimate determination of whether to grant those rights rests in the sound discretion of trial courts in determining the best interests of the child (28 NY3d at 28).[6]

Similarly, in determining shared legal custody, J.M.'s best interests control (see Braiman v. Braiman, 44 NY2d 584, 589 [1978]). Such an arrangement "reposes in both parents a shared responsibility for and control of a child's upbringing" (id.). As the Court in Braiman noted "children are entitled to the love, companionship, and concern of both parents . . . [and] a joint award affords the otherwise noncustodial parent psychological support which can be translated into a healthy environment for the child" (id.). Joint custody is usually encouraged primarily as a voluntary alternative when the parents are amicable (Braiman, 44 NY2d at 589). When it is a court-ordered arrangement upon embittered parents, it only promotes familial chaos (id. at 590). That is not the case here. Here, the evidence establishes that the plaintiff acts as a defacto joint custodial parent with defendant and Audria and shares in making all major decisions in J.M.'s life.

Based on the evidence adduced at trial, including the demeanor and credibility of all three witnesses, the in camera interview and the factual findings made by this court, it is clear that the best interests of J.M. will be served by granting plaintiff's application for shared legal custody with defendant. Plaintiff and defendant have raised J.M. in a loving environment as evidenced by the fact that he does not know that the defendant opposes custody and court-ordered visitation with plaintiff. They clearly do not present as so embattled and embittered that they will not work together to put J.M.'s needs first. J.M. needs a continuing relationship with the plaintiff as his mother and that relationship cannot be left to depend on the consent or whim of either his biological mother or father. Anything less will promote great hardship and suffering for J.M. This Court concludes based on the evidence that plaintiff, defendant and Audria can and will get along as they have in the past, to maintain J.M.'s psychological stability and to act in his best interest, and that they will be able to cooperate in making major decisions in J.M.'s life such as health, education and welfare as they have done for his entire life.
Such joint legal custody will actually be a tri-custodial arrangement as Audria and defendant already share joint legal custody. As it appears from Audria's testimony that she whole-heartedly supports such an arrangement, this Court finds no issue with regards to Audria's rights in granting this relief. Indeed, tri-custody is the logical evolution of the Court of Appeals' decision in Brooke S.B., and the passage of the Marriage Equality Act and DRL § 10-a which permits same-sex couples to marry in New York.

Regarding visitation, plaintiff requests that she be given one weekend a month and that such weekend can be carved out of defendant's time with J.M. (he presently sees J.M. from Saturday afternoon to Sunday late afternoon, three times a month). To grant plaintiff's request at defendant's expense, however, would be inappropriate as plaintiff presently lives with J.M. and sees him regularly when defendant does not have visitation. Additionally, J.M. enjoys his time with his father. Taking one of defendant's three weekends each month would significantly limit J.M.'s visitation with defendant and could have a detrimental impact on his relationship with his father. The Court does recognize plaintiff's need and right to time alone with J.M. and, accordingly, will grant plaintiff Wednesday night visitation with J.M. for dinner pursuant to a schedule to be established by plaintiff with input from Audria whose time with J.M. will be impacted by this court-ordered visitation. Lastly, plaintiff also requests one week-long school recess visitation each year and two weeks of visitation each summer. The court grants this relief and directs that all parties cooperate to determine which school recess and which two weeks out of the summer will belong to plaintiff.

In sum, plaintiff, defendant and Audria created this unconventional family dynamic by agreeing to have a child together and by raising J.M. with two mothers. The Court therefore finds that J.M.'s best interests cry out for an assurance that he will be allowed a continued relationship with plaintiff. No one told these three people to create this unique relationship. Nor did anyone tell defendant to conceive a child with his wife's best friend or to raise that child knowing two women as his mother. Defendant's assertion that plaintiff should not have legal visitation with J.M. is unconscionable given J.M.'s bond with plaintiff and defendant's role in creating this bond. A person simply is responsible for the natural and foreseeable consequences of his or her actions especially when the best interest of a child is involved. Reason and justice dictate that defendant should be estopped from arguing that this woman, whom he has fostered and orchestrated to be his child's mother, be denied legal visitation and custody. As a result of the choices made by all three parents, this ten-year-old child to this day considers both plaintiff and Audria his mothers. To order anything other than joint custody could potentially facilitate plaintiff's removal from J.M.'s life and that would have a devastating consequence to this child. Accordingly, plaintiff is granted shared legal tri-custody and visitation as outlined above.

[1] This decision determines only plaintiff's custody and parenting time. All other issues including child support have been settled by stipulation between the parties dated June 15, 2015.
[2] Defendant contended that Alison D. v Virginia M. (77 NY2d 651 [1991]), required this court to deny plaintiff's requested relief for custody and visitation based on her lack of standing. Prior to the Court of Appeals' decision in Brooke S.B. v Elizabeth A.C.C. (28 NY3d 1 [2016]), this court denied defendant's motion for summary judgment based upon the Marriage Equality Act and the Court's analysis of Vermont Law in Debra H. v Janice R. (14NY3d 576 [2010]), and found plaintiff had standing as a parent.
[3] There is no written parenting schedule.
[4] Referring to the color of the vehicle each mother drives.
[5] To this extent the parties are to be complimented.
[6] Under Brooke S.B. v Elizabeth A.C.C. (28 NY3d 1), relying heavily on the dissent written by Chief Judge Judith Kaye in Allison D. (77 NY2d 651, 657[1991]), the law states "where a partner shows by clear & convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive parent has standing to seek visitation and custody under DRL 70." This case represents the logical next step."

Monday, May 1, 2017


President Dwight Eisenhower established the first Law Day in 1958 to mark the nation's commitment to the rule of law. In 1961, Congress issued a joint resolution designating May 1 as the official date for celebrating Law Day, which is subsequently codified (U.S. Code, Title 36, Section 113). Every president since then has issued a Law Day proclamation on May 1 to celebrate the nation's commitment to the rule of law.

Friday, April 28, 2017


And this case did not involve custody issues as the children were adult.

The parties were married in 1967. Forty years later in 2007, an action for divorce is commenced. Six years later in 2013, the trial court issues a decision and the wife appealed from so much of the judgment which failed to award her maintenance and expert fees, and awarded her counsel fees only to the extent of awarding her the sum of $87,000. Four years later, in March 2017, the Second Department issues its decision in OSTROWER v. OSTROWER, 2017 NY Slip Op 1705 - NY: Appellate Div., 2nd Dept. 2017:

"The amount and duration of maintenance is a matter committed to the sound discretion of the trial court and each case must be determined on its unique facts (see Carr-Harris v Carr-Harris, 98 AD3d 548, 551; Mazzone v Mazzone, 290 AD2d 495, 496). The factors to be considered in awarding maintenance include "the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance" (Kret v Kret, 222 AD2d 412, 412; see Domestic Relations Law § 236[B][6][a]; Heymann v Heymann, 102 AD3d 832, 834; Meccariello v Meccariello, 46 AD3d 640, 641-642). In light of the substantial distributive share of the marital property that the plaintiff was awarded pursuant to the parties' stipulation, and the age and health of the parties, we decline to disturb the Supreme Court's determination denying the plaintiff spousal maintenance (see Heymann v Heymann, 102 AD3d at 834; Carr-Harris v Carr-Harris, 98 AD3d at 551-552; Haagen-Islami v Islami, 96 AD3d 1004, 1004-1005; Scher v Scher, 91 AD3d 842, 848). Furthermore, in light of the plaintiff's substantial distributive award, the court providently exercised its discretion in denying her application for expert fees (see Cooper v Cooper, 84 AD3d 854, 858; Grumet v Grumet, 37 AD3d 534, 536-537).

The determination of what constitutes reasonable counsel fees is within the Supreme Court's discretion (see Domestic Relations Law § 237[a]; DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881; Duffy v Duffy, 84 AD3d 1151, 1152; Kaplan v Kaplan, 51 AD3d 635, 637). In exercising its discretion, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions (see DeCabrera v Cabrera-Rosete, 70 NY2d at 881). Under the circumstances of this case, including the substantial distributive award which the plaintiff received pursuant to the parties' stipulation, and the fact that the bulk of both the plaintiff's and the defendant's counsel fees were paid from marital funds, the court providently exercised its discretion in limiting the plaintiff's counsel fee award to the balance owed to her attorneys, which was the sum of $87,000 (see Cotter v Cotter, 139 AD3d 995, 996; Matter of Brink v Brink, 55 AD3d 601, 602; Grumet v Grumet, 37 AD3d at 536-537; cf. Baron v Baron, 71 AD3d 807, 810-811)."

Thursday, April 27, 2017


Zhu v. Pan, 2017 NY Slip Op 50468 - NY: Supreme Court 2017:

"The presumption that a child born during marriage is the biological product of the union is "one of the strongest and most persuasive known to the law" (Matter of Findlay, 253 NY 1, 7 [1930]; see Walker v Covington, 287 AD2d 572 [2d Dept 2001]; Fung v Fung, 238 AD2d 375, 375-376 [2d Dept 1997]). Nevertheless "the presumption does not consecrate as truth the extravagantly improbable" (id. at 8). In other words, the presumption is not "intended to suppress the truth and perpetuate a falsehood" (Constance G v Lewis L, 119 AD2d 209, 211 [2d Dept 1986] [internal citations omitted]). Rather, the presumption yields to "the sway of reason" and may be rebutted (Findlay, 253 NY at 7). Hence, the presumption prevails "unless common sense and reason are outraged by a holding it abides" (id.; see Constance G, 119 AD2d at 211). Clear and convincing evidence which excludes the husband as the father or otherwise tends to disprove the legitimacy of the child rebuts the presumption of legitimacy (see Walker, 287 AD2d at 572; Fung, 238 AD2d at 375-376). Where the presumption is rebutted, the court has authority to order a paternity test (see id. at 572-573; Fung, 238 AD2d at 376). Regardless, a party may invoke equitable estoppel as a defense to preclude the test (see id.; Fung, 238 AD2d at 376).

Equitable estoppel prohibits a person from asserting a claim that would prejudice another where he has led that other person to reasonably believe that he would not do so (see Juanita A v Kenneth Mark N, 15 NY3d 1, 5 [2010], citing Shondel J v Mark D, 7 NY3d 320, 326 [2006]). The law imposes equitable estoppel as a matter of fairness (see id.). Thus, where a man represents himself to be a child's father and it serves the child's best interests, equitable estoppel prevents him from denying paternity (see id., citing Shondel J, 7 NY3d at 326; see also Derrick H v Martha J, 82 AD3d 1236, 1238 [2d Dept 2011]). Equitable estoppel thereby protects "the status interests of a child in an already recognized and operative parent child relationship" (Shondel J, 7 NY3d at 327). The paramount concern is the best interests of the child (see Derrick H, 82 AD3d at 1238; Walker, 287 AD2d at 572-573; Fung, 238 AD2d 376).
A husband must overcome the presumption of legitimacy as well as equitable estoppel to obtain a paternity test of a child born during marriage. Mere proof that the wife engaged in adultery is insufficient to rebut the presumption (see Constance G, 119 AD2d at 211). Indeed, where "husband and wife are living together in the conjugal relation, legitimacy will be presumed, though the wife has harbored an adulterer" (Findlay, 253 NY at 8). Proof of the wife's adultery in conjunction with conclusive proof of the husband's nonaccess (see Family Ct Act § 531), however, will suffice to rebut the presumption (see Constance G, 119 AD2d at 211 [evidence of "recurrent acts of intercourse" between the wife and another man coupled with "corroborated and unshaken proof negating access" by the husband refuted the presumption]).

Where the husband rebuts the presumption of legitimacy and has no relationship with the child, equitable estoppel will not preclude a paternity test (see Michaleas v Michaleas, 136 AD3d 616 [2d Dept 2016]). For example, where uncontroverted evidence established that the wife had been in a sexual relationship with another man during the time that the three-year-old child was conceived; that the wife told the husband he was not the father; and that the husband had no relationship with the child, equitable estoppel did not bar genetic testing (id.). Similarly, where the husband filed for divorce shortly after learning of his pregnant wife's adulterous affairs and immediately disavowed paternity of the child, equitable estoppel should not have prevented a blood test (Murtagh v Murtagh, 217 AD2d 538, 539 [2d Dept 1995]).

On the other hand, the husband's unsubstantiated claims that his wife had committed adultery and repeatedly told him that he was not the child's father failed to rebut the presumption of legitimacy (Fung, 238 AD2d at 376). Moreover, because the husband was listed on the birth certificate, "consistently held himself out as the child's father," and waited almost a year and a half before challenging paternity[2], he was equitably estopped from doing so (id.). Indeed, it was not in the child's best interests to order a blood test which "would have the potential to brand the child illegitimate without settling the issue of paternity" (id.). Comparably, in light of the presumption of legitimacy, and where the husband's surname was on the child's birth certificate; the child was registered in school under that name; and the husband waited four years to contest paternity, his paternity petition was properly dismissed under equitable estoppel (David L v Cindy Pearl L, 208 AD2d 502, 504 [2d Dept 1994]).

Here, Defendant presented no evidence that Plaintiff engaged in sexual intercourse with anyone other than himself during the time that L.P. was conceived. Moreover, Defendant consistently presented himself as L.P.'s father in a myriad of ways. L.P.'s birth certificate identifies Defendant as his father. Defendant declared L.P. as his dependent on his federal income tax returns. Defendant refers to L.P. as the "most beautiful son in the world" on his affidavit in support of Plaintiff's application for lawful permanent residency. Defendant identifies L.P. as his child on his net worth statement. Defendant lived with Plaintiff and L.P. as a family for almost two years before L.P. went to live in China. During that time, they went on outings, took vacation and posed for family pictures. Moreover, most recently, Defendant moved the court to order Plaintiff to have L.P. returned to New York and to allow Defendant to visit with him.
Consequently, Defendant has failed to rebut the presumption that L.P. is his legitimate child. In any event, he is equitably estopped from denying paternity. Regardless of whether or why it was interrupted, Defendant established a parent-child relationship with L.P., which is in the child's best interests to protect. Specifically, it would not benefit L.P. to order a genetic test which could brand him as illegitimate without resolving his paternity (see Fung, 238 AD2d at 476). Accordingly, Defendant's motion for a paternity test is denied.

Wednesday, April 26, 2017


New York Real Property Law § 227-a provides for the right to terminate a residential lease by senior citizens moving to a residence of a family member or entering certain health care facilities, adult care facilities or housing projects. Thus if the senior citizen is relocating to senior citizen housing, an adult care facility or a residential health care facility such as a nursing home, upon proper notice to the landlord, the landlord must release the senior from any liability to pay rent through the balance of the lease term. The same is true if the senior citizen is relocating to subsidized low income housing in order to save money or to the home of a relative. If the senior prepaid his rent, the landlord is obligated to credit back to the senior any rent payments covering the period of time after the effective date of the notice of termination.

In addition, senior citizen rental facilities must also provide the following notice:


         Who is eligible? Any lessee or tenant who is age sixty-two years or older, or who will attain such age during the term of the lease or rental agreement, or a spouse of such person residing with him or her.
         What kind of facilities does this law apply to? This law will apply if the senior citizen is relocating to: A. An adult care facility; B. A residential health care facility; C. Subsidized low income housing; D. Senior citizen housing;  or E. A residence of a family member.
          What are the responsibilities of the rental property owner? When the tenant gives notice of his or her opportunity to move into one of the above facilities the landlord must allow: A. for the termination of the lease or rental agreement, and B. the release of the tenant from any liability to pay rent or other payments in lieu of rent from the termination of the lease in accordance with section 227-a of the real property law, to the time of the original termination date, and C. to adjust any payments made in advance or payments which have accrued by the terms of such lease or rental agreement.
            How do you terminate the lease? If the tenant can move into one of the specified facilities, he or she must terminate the lease or agreement in writing no earlier than thirty days after the date on which the next rental payment (after the notice is delivered) is due and payable.  The notice is deemed delivered five days after being mailed.  The written notice must include documentation of admission or pending admission to one of the above mentioned facilities. For example:  Mail the notice:  May 5th Notice received:  May 10th Next rental payment due:  June 1st Termination effective:  July 1st
             Will the landlord face penalties if he or she does not comply? Yes, according to section 227-a of the real property law, if anyone interferes with the removal of your property from the premises they will be guilty of a misdemeanor and will be either imprisoned for up to one year or fined up to $1000.00 or both."

Tuesday, April 25, 2017


N.Y. Labor Law § 191(c) requires that agreements with commissioned sales workers be in writing and signed by the employer and the employee.

The statute provides:

"c. Commission salespersons.--A commission salesperson shall be paid the wages, salary, drawing account, commissions and all other monies earned or payable in accordance with the agreed terms of employment, but not less frequently than once in each month and not later than the last day of the month following the month in which they are earned;  provided, however, that if monthly or more frequent payment of wages, salary, drawing accounts or commissions are substantial, then additional compensation earned, including but not limited to extra or incentive earnings, bonuses and special payments, may be paid less frequently than once in each month, but in no event later than the time provided in the employment agreement or compensation plan.  The employer shall furnish a commission salesperson, upon written request, a statement of earnings paid or due and unpaid.  The agreed terms of employment shall be reduced to writing, signed by both the employer and the commission salesperson, kept on file by the employer for a period not less than three years and made available to the commissioner upon request.  Such writing shall include a description of how wages, salary, drawing account, commissions and all other monies earned and payable shall be calculated.  Where the writing provides for a recoverable draw, the frequency of reconciliation shall be included.  Such writing shall also provide details pertinent to payment of wages, salary, drawing account, commissions and all other monies earned and payable in the case of termination of employment by either party.  The failure of an employer to produce such written terms of employment, upon request of the commissioner, shall give rise to a presumption that the terms of employment that the commissioned salesperson has presented are the agreed terms of employment."

Also note for sales representatives who are not employees there is Labor Law 191-b:

"1. When a principal contracts with a sales representative to solicit wholesale orders within this state, the contract shall be in writing and shall set forth the method by which the commission is to be computed and paid.

2. The principal shall provide each sales representative with a signed copy of the contract.  The principal shall obtain a signed receipt for the contract from each sales representative.

3. A sales representative during the course of the contract, shall be paid the earned commission and all other monies earned or payable in accordance with the agreed terms of the contract, but not later than five business days after the commission has become earned."

Of course, the status of a sales representative as an independent contractor is a complex matter that depends on a number of factors.

See https://labor.ny.gov/legal/counsel/pdf/payment-of-commissions-frequently-asked-questions.pdf

Monday, April 24, 2017


Of course, not all litigation is frivolous. Some, such as court action to protect a child or prosecute a crime, is completely just and proper. However when legal arguments are not supported by the applicable laws, or are based on false testimony, or have been commenced simply to cause distress, harm or fear to the other party, the litigation is effectively a form of abuse attempted via the legal system. Small claims court is the "people's court" allowing litigants to bring an action without the need for counsel. But sometimes, counsel should be consulted to at least consider the merits of bring an action and maybe to tell the client that the proceeding might be considered frivolous.

This case was decided on April 14 - OMWATHATH v. MOOTOOSAMMY, 2017 NY Slip Op 50500 - NY: Appellate Term, 2nd Dept. 2017:

"Plaintiff commenced a Civil Court action against defendant, his former tenant, to recover unpaid use and occupancy, and defendant interposed a counterclaim for harassment. Plaintiff also commenced a separate small claims action to recover for damage that was allegedly done to the door of his apartment by defendant. The actions were consolidated by the Civil Court. At a nonjury trial, defendant testified that any rent arrears had been waived by plaintiff in a so-ordered stipulation in a proceeding brought in the Housing Part, and introduced into evidence a copy of the stipulation and a receipt stating that defendant had moved out of the apartment, "giving it back in good condition," and was returning the keys. Insofar as is relevant to this appeal by plaintiff, following the trial, the Civil Court dismissed the complaint and the cause of action that had been asserted in the small claims action.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

The Civil Court's determination is supported by the proof at trial. Plaintiff did not deny that he had signed the receipt proffered at trial stating that defendant vacated the premises and that the premises was in "good condition." Moreover, a review of the record establishes that plaintiff did not even allege that defendant damaged his door, much less establish the damages he allegedly sustained for the door's damage. In addition, the Civil Court could credit defendant's testimony that he timely vacated but was unable to contact plaintiff to return the keys until two days later."

Friday, April 21, 2017


MATTER OF BURDICK v. Boehm, 2017 NY Slip Op 2107 - NY: Appellate Div., 3rd Dept. 2017:

"Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a son (born in 2006), born in New York. In 2014, Family Court issued an order, on the parties' consent, granting the father's petition to modify a prior custody and visitation order, and awarded the parties joint custody of the child with placement with the mother effective June 25, 2014. The 2014 order granted the father visitation with the child during summer vacations and school breaks of three consecutive days or more and as the parties mutually agree. The father apparently remained in New York while the mother and child have lived in Illinois and then Wisconsin with various relatives[1]. In May 2016, the father commenced this modification proceeding seeking sole custody of the child, alleging that, among other things, the mother lacks stable housing and is a substance abuser, and that the child has been living with either his maternal grandmother or great-grandmother since March 2016. Prior to a response by the mother, Family Court sua sponte dismissed the petition, finding that New York does not have continuing exclusive jurisdiction over the child's custody pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (see Domestic Relations Law art 5-A). The father appeals.[2]

We reverse. A New York court that has previously made a child custody determination "has exclusive, continuing jurisdiction over the determination until . . . a court of this state determines that neither the child [nor] the child and one parent . . . have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships" (Domestic Relations Law § 76 — a [1] [a]; see Matter of Wengenroth v McGuire, 127 AD3d 1278, 1280 [2015], lv denied 25 NY3d 913 [2015]). In dismissing the petition, Family Court relied upon the fact that the child and the mother had not resided in New York for over two years and that the "events which [the father] asserts in support of his petition occurred in Wisconsin." However, the father, who shares joint custody of the child pursuant to the 2014 order and has apparently lived continuously in New York since before the 2014 custody order was issued, alleges in an affidavit in support of his petition that the child spent the prior summer — from June 22, 2015 to August 22, 2015 — with him in New York pursuant to the 2014 order[3] (see Matter of Belcher v Lawrence, 98 AD3d 197, 200-201 [2012]; compare Matter of Wengenroth, 127 AD3d at 1280; Matter of Zippo v Zippo, 41 AD3d 915, 916 [2007]). The allegations in the petition, while somewhat confusing, further suggest that the child lived in New York from his birth until June 2014 and for a period of several months in early 2016, and that the child has a half sibling living with the father with whom he is bonded. According to the father, the child has his own room, a bank account, a YMCA membership and many familial and social relationships in New York.

Family Court "should have given the parties an opportunity to present evidence as to whether the child[ ] has maintained a significant connection with New York, and whether substantial evidence is available in New York concerning the child['s] `care, protection, training, and personal relationships'" (Pyronneau v Pyronneau, 130 AD3d 707, 708 [2015], quoting Domestic Relations Law § 76 — a [1] [a]). Given due process concerns, sua sponte dismissal of pleadings is to be used sparingly in the absence of extraordinary circumstances (see Wells Fargo Bank, N.A. v Pabon, 138 AD3d 1217, 1219 [2016]; Maynard v Maynard, 138 AD3d 794, 794 [2016]). Crediting the father's factual allegations at this early juncture,[4] as we must, we find that the child continues to have significant connections to New York (see Matter of Seminara v Seminara, 111 AD3d 949, 950-951 [2013]; Matter of Mercado v Frye, 104 AD3d 1340, 1341 [2013], lv denied 21 NY3d 859 [2013]; Matter of Belcher v Lawrence, 98 AD3d at 200-201; Matter of Hissam v Mancini, 80 AD3d 802, 803 [2011], lv dismissed and denied 16 NY3d 870 [2011]; Matter of Sutton v Sutton, 74 AD3d 1838, 1839 [2010]; see also Vernon v Vernon, 100 NY2d 960, 972 [2003]). That is, while significant evidence concerning the child's current "care, protection, training, and personal relationships" (Domestic Relations Law § 76-a [1] [a]) may be in Wisconsin, the same may ultimately be said about New York, which retains significant connections with the father and the child. Family Court, which presided over the 2014 proceedings involving this child, is presumably more familiar with the parties than Wisconsin courts would be (see Matter of Snow v Elmer, 143 AD3d 1217, 1219 [2016]), and the testimony of the mother, grandmother and other relevant Wisconsin witnesses could be presented "by telephone, audiovisual means, or other electronic means" (Domestic Relations Law § 75-j [2]; see Matter of Snow v Elmer, 143 AD3d at 1219). Thus, we find that Family Court erred in summarily concluding that it was divested of its exclusive, continuing jurisdiction to determine custody pursuant to Domestic Relations Law § 76-a (1) (a), and it should not have dismissed the petition on this ground at this early stage and on this limited record.

[1] The record does not reflect whether the mother obtained a court order authorizing her move out of state with the child.
[2] The mother has not submitted a brief or letter on appeal although contacted and requested to do so.
[3] The father's brief on appeal represents that the child also spent the summer of 2016 with him in New York.
[4] On a motion to dismiss pursuant to CPLR 3211 (a), the facts as alleged in the petition are accepted as true (see Matter of Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Likewise here, where the petition was dismissed without a motion, sua sponte, Family Court was bound to credit the father's allegations in his petition."