Thursday, August 17, 2017

LEGALITIES OF SPREADING STDS




I was interviewed on the issue of legalities of informing partners.

See http://www.digitaljournal.com/pr/3450223 and/or http://www.releasewire.com/press-releases/positivesingles-consults-with-attorney-over-legalities-of-spreading-stds-on-dates-847916.htm

Wednesday, August 16, 2017

RETAINING A LAW FIRM PARTNER AS COUNSEL TO RECEIVER



Dupree v Voorhees 2017 NY Slip Op 06062 Decided on August 9, 2017 Appellate Division, Second Department:

"The plaintiff commenced this action, inter alia, to recover damages for violation of Judiciary Law § 487 against, among others, Karyn A. Villar and Villar's law partner, Dorothy A. Courten (hereinafter together the defendants). The plaintiff alleged that in an underlying divorce action, in which Villar represented the plaintiff's former husband, Villar made misrepresentations in applying for a receivership order and that she intended to deceive the court in connection with that application. The plaintiff alleged that because the defendants were partners of the same law firm, Courten was vicariously liable for the damages she sustained as a result of Villar's actions. After a nonjury trial, the Supreme Court determined, among other things, that the plaintiff failed to establish that Villar violated Judiciary Law § 487 and that the action should be dismissed.

"In reviewing a determination made after a nonjury trial, this Court's power to review the evidence is as broad as that of the trial court, and this Court may render a judgment it finds warranted by the facts, bearing in mind that due regard must be given to the trial court, which was in a position to assess the evidence and the credibility of the witnesses" (L'Aquila Realty, LLC v Jalyng Food Corp., 148 AD3d 1004, 1005; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; Broderson v Parsons, 106 AD3d 677, 679).

Judiciary Law § 487(1) provides that "[a]n attorney or counselor who . . . [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . . [i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by [*2]the penal law, he [or she] forfeits to the party injured treble damages, to be recovered in a civil action." "A violation of Judiciary Law § 487 requires an intent to deceive" (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108; see Judiciary Law § 487[1]; Ginsburg Dev. Cos., LLC v Carbone, 134 AD3d 890, 893; Dupree v Voorhees, 102 AD3d 912, 913). Here, the evidence adduced at trial, including the testimony of Villar, supports the trial court's determination that Villar did not act with the requisite "intent to deceive the court or any party" in applying for the receivership (Judiciary Law § 487[1]).

In any event, to succeed on a cause of action to recover damages under Judiciary Law § 487, the plaintiff must demonstrate that he or she "suffered . . . damages which were proximately caused by the deceit allegedly perpetrated on him [or her] or on the court" (O'Connor v Dime Sav. Bank of N.Y., 265 AD2d 313, 314; see Manna v Ades, 237 AD2d 264, 265; Di Prima v Di Prima, 111 AD2d 901, 902). The evidence adduced at trial also supports the trial court's conclusion that the plaintiff failed to establish that she suffered pecuniary damages as a result of the alleged deceit. Therefore, we decline to disturb the trial court's determination."

The NYSBA addressed a similar issue in NEW YORK STATE BAR ASSOCIATION Committee on Professional Ethics Opinion #471 - 6/9/77 (58-77). See also Fiduciary Appointments in New York A Report to Chief Judge Judith S. Kaye and Chief Administrative Judge Jonathan Lippman, March 9, 2000.

Tuesday, August 15, 2017

IN MEMORY OF ANTHONY NAPOLITANO



My first law partner Anthony Napolitano (October 8, 1951 - August 7, 2017).

Probstein & Napoltano was founded in 1983. First located at 345 Park Avenue, here we are in our offices at 150 East 58th Street and we later moved to 230 Park Avenue.

Monday, August 14, 2017

ON GOVERNOR CUOMO'S ANNOUNCEMENT TO PURCHASE NOTES ON 398 HOMES



Governor Andrew M. Cuomo on August 11announced that the state's new $7.6 million Community Restoration Fund has purchased the mortgages/notes for 398 homes in a strategic effort to bring owners in targeted communities out of foreclosure and keep the homes from abandonment through renovation and resale where necessary.

203 of these homes are based in Long Island.

The relief will take the following form:

"To keep the original owners affordably in their homes, the CRF program works in ways that public and private servicers cannot, including engaging a network of locally based nonprofit housing counselling organizations that provide one-on-one counselling with the owner and direct outreach to the lender to modify the loan, and making possible necessary repairs and addressing deferred maintenance.

In cases where a mortgage modification is not possible and the homeowner cannot financially support a reduced mortgage or no longer wants to own a home, HCR and its nonprofit partners can offer resources and support to help the owner get a fresh start, while ensuring that the property is not abandoned, and is quickly repaired and resold as affordable housing to a qualified buyer."

NOTE: If you are facing foreclosure and your mortgage was not one of those purchased by the CRF, there is still help available!  The links below can provide you with information on other sources of foreclosure support as well as contacts that can potentially assist you.

HomeSmartNY Foreclosure Counseling
– Foreclosure Prevention Counseling

Homeowner Protection Program Counselors
         – HomeOwners Protection Program

Help for Homeowners Facing Foreclosure
– Department of Financial Services

New York State Mortgage Assistance Program
– Mortgage Assistance Program

SONYMA Borrowers:  Call (800) 382-4663

Friday, August 11, 2017

ON SPOLIATION OF EVIDENCE



Aponte v Clove Lakes Health Care & Rehabilitation Ctr., Inc. 2017 NY Slip Op 06056 Decided on August 9, 2017 Appellate Division, Second Department:

""A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547 [internal quotation marks omitted]; see Golan v North Shore-Long Is. Jewish Health Sys. Inc., 147 AD3d 1031, 1032). "[I]n the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices" (Bill's Feed Serv., LLC v Adams, 132 AD3d 1400, 1401 [internal quotation marks omitted]; see Golan v North Shore Long Is. Jewish Health Sys., Inc., 147 AD3d at 1033-1034; Iannucci v Rose, 8 AD3d 437, 438; cf. Biniachvili v Yeshivat Shaare Torah, Inc., 120 AD3d 605, 606-607).

Here, the plaintiffs alleged that on July 13, 2013, the plaintiff Blanche Aponte was injured at the defendant's facility when a bed upon which she was lying collapsed. Approximately two years later, on March 17, 2015, the plaintiffs commenced the instant action by filing a summons and complaint. Sometime after the action was commenced, the plaintiffs demanded an inspection of the bed. However, the defendant claimed that, long before the instant action was commenced, the bed was examined by the defendant's maintenance worker, found to be fit, and reinserted into use at the defendant's facility, thereby rendering it unidentifiable. There is nothing in the record before this Court which demonstrates that the defendant had notice of the plaintiffs' claim prior to the commencement of the litigation, which was approximately two years after the accident. The plaintiffs therefore failed to establish that the defendant intentionally or negligently failed to preserve crucial evidence after being placed on notice that the evidence might be needed for future litigation (see Biniachvili v Yeshivat Shaare Torah, Inc., 120 AD3d at 606; Samaroo v Bogopa Serv. Corp., 106 AD3d 713, 714; Leevson v Bay Condos, LLC, 67 AD3d 972, 973; Jenkins v Proto Prop. Servs., LLC, 54 AD3d 726, 727; Sloane v Costco Wholesale Corp., 49 AD3d 522, 523; Lovell v United Skates of Am., Inc., 28 AD3d 721, 721; cf. Rokach v Taback, 148 AD3d 1195, 1196)."

Thursday, August 10, 2017

WHAT IS HOME IMPROVEMENT FOR PURPOSES OF CONSUMER AFFAIRS LICENSE



TPE VENTURES, INC. v. NASSAU COUNTY OFF. OF CONSUMER AFFAIRS, 2017 NY Slip Op 50839 - NY: Supreme Court 2017:

"........The NCAC provides that the definition of home improvement "means repair, maintenance, replacement remodeling, alteration, conversion, modernization, or addition to any land or building, or that portion thereof, which is used as a private residence or dwelling place for not more than three families, and other improvements to structures or upon land which is adjacent to a dwelling and shall include, but not be limited to gardening/landscaping."

In its Verified Petition, the Petitioner admits that "core aeration involves perforating the soil with small holes to allow air, water and nutrients to penetrate the grass roots. This helps the roots grow deeply and produce stronger, more vigorous lawn." In similar fashion, the Hearing Officer determined that core aeration "involves alteration of the earth".

The cornerstone of this Court's review of the County's determination is one of rationality. The Hearing Officer's conclusion that the act of core aeration alters the land of the Petitioner's customers and thus requires a home improvement license issued by Nassau County is supported by a rational basis and is reasonable. Judicial function is exhausted when there is found to be a rational basis for conclusions approved by an administrative body."

Wednesday, August 9, 2017

DEADLOCK DISPUTES IN CLOSE CORPORATIONS



MATTER OF GREATER CAPITAL REGION ASSOCIATION OF REALTORS, INC., 2015 NY Slip Op 51857 - NY: Supreme Court, Albany:

"Judicial dissolution of a business corporation is authorized where "the directors are so divided respecting the management of the corporation's affairs that the votes required for action by the board cannot be obtained" (Business Corporation Law § 1104 [a] [1]). Dissolution also is available where "there is internal dissension and two or more factions of shareholders are so divided that dissolution would be beneficial to the shareholders" (Business Corporation Law § 1104 [a] [3]).

The dissension, disagreement and division within the corporation must "pose[] an irreconcilable barrier to [its] continued functioning and prosperity" (Matter of Dream Weaver Realty, Inc. [Poritzky-DeName], 70 AD3d 941, 942 [2d Dept 2010] [internal quotation marks omitted]; see also Matter of Clever Innovations, Inc. [Dooley], 94 AD3d 1174, 1176 [3d Dept 2012]). But "the underlying reason for the dissension is of no moment, nor is it at all relevant to ascribe fault to either party. Rather, the critical consideration is the fact that dissension exists and has resulted in a deadlock precluding the successful and profitable conduct of the corporation's affairs" (Matter of Goodman v Lovett, 200 AD2d 670, 670-671 [2d Dept 1994] [citations omitted]). In determining whether to grant dissolution, "the benefit to the shareholders . . . is of paramount importance" (Business Corporation Law § 1111 [b] [2]), and "dissolution is not to be denied merely because it is found that the corporate business has been or could be conducted at a profit" (id. [b] [3]).

Applying the foregoing principles of law to the credible testimony and documentary evidence adduced at trial, the Court finds and determines that dissolution is warranted under both Business Corporation Law § 1104 (a) (1) and (3).

.......

The paralysis of the CRMLS Board is a direct outgrowth of the extreme division and dissension that has developed over a long period of time between the two shareholders, each of which owns one-half of the stock in the MLS joint venture. ......"


Tuesday, August 8, 2017

SHAREHOLDER DISPUTES IN FAMILY CLOSE CORPORATIONS



Matter of Twin Bay Vil., Inc. v Kasian 2017 NY Slip Op 06024 Decided on August 3, 2017 Appellate Division, Third Department:

"In 1957, the Chomiak family began operating Twin Bay Village, a seasonal summer resort on the shores of Lake George. In 1970, the family formed Twin Bay Village, Inc., a closely-held corporation, for the purpose of operating the resort. At its inception, 100 shares of corporate stock were issued, and those shares were split among Stephan Chomiak and Eleonora Chomiak and their two sons, Leo Chomiak and petitioner Vladimir Chomiak. Over the ensuing years, the division of the corporate shares changed and, by 2004, Valdimir Chomiak's son and daughter, petitioners Leon Chomiak and Leonora Chomiak, were the beneficial owners of a combined 48 shares, and Leo Chomiak and his two daughters, [*2]respondents Tatiana Chomiak Kasian and Tamara Chomiak, owned the remaining 52 shares. In addition to these changes in ownership, the level of involvement of petitioners in operating the resort and managing the corporation changed over the years. Although petitioners were initially involved in helping to run the resort in the 1980s, their involvement thereafter declined, leaving the responsibility for operating the resort and managing the corporation entirely to respondents. In 2009, after years of running the corporation without petitioners' involvement, respondents attempted to force petitioners to sell their shares back to the corporation. After petitioners refused, they commenced this proceeding pursuant to Business Corporation Law § 1104-a seeking judicial dissolution of the corporation."

The court upheld the lower court's finding that the business should be dissolved:

"Business Corporation Law § 1104-a permits a court to dissolve a closely-held corporation where, as is relevant here, those in control of the corporation have engaged in "oppressive actions toward the complaining shareholders" or have "looted, wasted, or diverted" corporate assets for noncorporate purposes (Business Corporation Law § 1104-a [a] [1], [2]; see Matter of Penepent Corp., 96 NY2d 186, 191 [2001]; Matter of Clever Innovations, Inc.[Dooley], 94 AD3d 1174, 1176 [2012]; Matter of Quail Aero Serv., 300 AD2d 800, 802 [2002]). "Although the term 'oppressive actions' is not statutorily defined, the Court of Appeals has held that 'oppression should be deemed to arise . . . when the majority conduct substantially defeats expectations that, objectively viewed, were both reasonable under the circumstances and were central to the petitioner[s'] decision to join the venture'" (Matter of Upstate Med. Assoc., 292 AD2d 732, 733 [2002], quoting Matter of Kemp & Beatley [Gardstein], 64 NY2d 63, 73 [1984]; accord Matter of Gould Erectors & Rigging, Inc., 146 AD3d at 1129). Contrary to respondents' [*4]contention, this standard is equally applicable to passive shareholders, such as petitioners, inasmuch as the standard is not focused on the complaining shareholders' level of involvement with the corporation but, rather, their reasonable expectations and whether those expectations were defeated (see Matter of Kemp & Beatley [Gardstein], 64 NY2d at 72-73; Matter of Parveen, 259 AD2d 389, 391 [1999])."

Monday, August 7, 2017

THE RIGHTS OF DOMESTIC PARTNERS IN NYC



A domestic partnership is a legal arrangement that commits two people to one another. New York City allows both same sex and traditional couples to register for domestic partnerships. Since July 2011, New York state has also allowed same sex marriages. However, domestic partnerships do not acquire all of the same rights and benefits as married couples.

For information on NYC rules, see http://www.cityclerk.nyc.gov/html/marriage/domestic_partnership_reg.shtml

Other New York cities and counties offer domestic partnership registries:

For Albany, see http://ecode360.com/7683425

For Westchester, see http://www.westchesterclerk.com/index.php?option=com_content&view=article&id=17&Itemid=212

For Suffolk, see http://www.suffolkcountyny.gov/Departments/CountyClerk/DomesticRegistry.aspx

For Town of North Hempstead, see http://www.northhempsteadny.gov/content/16253/16898/16907/default.aspx

Note that only certain localities within Nassau County allow for domestic partnerships. As the NY Times reported in April 2006: "After a heated debate between gay rights advocates and critics espousing traditional families, the Nassau County Legislature unexpectedly defeated a proposal on Monday to create a registry for unmarried couples to record domestic partnerships."

However in New York City, Rockland County and Suffolk County, one partner may be an employee of the city/county at the time of registration instead of being a resident. Also, in Albany, Ithaca, and Rochester you do not have to be residents to file.[


Friday, August 4, 2017

NEW BINGO RULES



Charitable gaming occurs in the form of bingo, bell jar sales, the conduct of Las Vegas nights, and operation of raffles in each of the 62 counties of New York. For Bingo, the following changes are effective July 9, 2017:

"Bingo
Prizes maximums: The maximum single prize for bingo will increase from $1,000 to $5,000. The maximum prize per occasion will increase from $3,000 to $15,000. (General Municipal Law sections 479(5) and 479(6))
Minimum age to play: Consistent with other forms gambling in the state, the minimum age to play bingo is 18 years of age. Minors under the age of 18 are still permitted to attend, but are not be permitted to play bingo. Persons 16 years of age or older may continue to perform ancillary non-gaming activities conducted in conjunction with licensed bingo, such as assisting at any food concession, cleaning, maintenance and site preparation. (General Municipal Law sections 476(13) and 486)
Advertising: The options for bingo advertisement platforms will be expanded to include television and the internet – pending adoption of applicable Commission rules. Such bingo advertisements will be permitted to include descriptions of the prizes offered. (General Municipal Law section 490)" 

Thursday, August 3, 2017

FEDERAL BENEFITS AND GARNISHMENT

Generally debt collectors can’t take your Social Security or VA benefits directly out of your bank account or prepaid card.

For further review, see https://www.consumerfinance.gov/ask-cfpb/can-a-debt-collector-take-my-social-security-or-va-benefits-en-1157/

Wednesday, August 2, 2017

UNEMPLOYMENT INSURANCE - MISCLASSIFICATION



A recent case from the 3rd Department. MATTER OF TAUSCHER CRONACHER PE PC v. Commissioner of Labor, 2017 NY Slip Op 2488 - NY: Appellate Div., 3rd Dept. 2017:

" "Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence" (Matter of Singhal [Brody—Commissioner of Labor], 128 AD3d 1308, 1308 [2015] [internal quotation marks and citations omitted]; see Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010]). "Where the provision of professional services' is involved, the relevant inquiry becomes whether the purported employer retains overall control of `important aspects of the services performed'" (Matter of Kliman [Genesee Region Home Care Assn., Inc.—Commissioner of Labor], 141 AD3d 1049, 1049-1050 [2016], quoting Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]; see Matter of Eray Inc. [Commissioner of Labor], 136 AD3d 1129, 1130 [2016]).

Here, although the inspectors signed a standard agreement identifying them as independent contractors, the agreement contained a noncompete clause prohibiting the inspectors from working directly or indirectly with competing engineering firms within Tauscher's geographic region, including 100 miles from the Empire State Building in New York City. The agreement further provided that the inspectors perform their inspections in accordance with industry and professional standards and that their post-inspection reports be drafted on forms provided by Tauscher and submitted to Tauscher within a limited time frame. The inspectors were also required to participate in Tauscher's self-insurance fund, as well as pay for professional liability insurance obtained by Tauscher, and to share in the costs of any litigation arising out of the inspections. Tauscher scheduled the time of the inspections, which were not subject to modification by the inspectors, and would seek a replacement inspector if the original inspector was unavailable. Tauscher also provided the inspectors with business cards bearing Tauscher's name to provide to its clients.

With regard to compensation, Tauscher established the fees that clients were required to pay for the inspections and also unilaterally set the percentage of the fees that constituted payment for the inspectors. In order for the inspectors to receive payment, they were required to submit invoices to Tauscher, which in turn would pay the inspectors directly. In addition, Tauscher managed the billing of, and collection from, clients. Notwithstanding the proof in the record that could support a contrary result, the foregoing evidence demonstrates that Tauscher retained overall control over important aspects of the services performed by the inspectors, and we therefore find that substantial evidence supports the determination of the Board assessing Tauscher additional unemployment insurance contributions for remuneration paid to the inspectors (see Matter of Jaeger [Vendor Control Serv., Inc.—Commissioner of Labor], 106 AD3d 1360, 1360-1361 [2013]; Matter of Wells [Madison Consulting, Inc.—Commissioner of Labor], 77 AD3d 993, 995 [2010]; Matter of Perdue [Environmental Compliance, Inc.—Commissioner of Labor], 47 AD3d 1139, 1140-1141 [2008]). Contrary to Tauscher's contention that the Board's resolution of this case was unreasonably delayed, we do not find any reason on the record before us, including prejudice shown, to disturb the determination of the Board (see Matter of Koenig [Commissioner of Labor], 45 AD3d 1147, 1148 [2007]; Matter of Reifer [D'Angelo—Commissioner of Labor], 253 AD2d 949, 949 [1998])."

Tuesday, August 1, 2017

22 YEAR MARRIAGE, 5 YEAR DIVORCE, 6 MORE YEARS OF MAINTENANCE



Galanopoulos v Galanopoulos, 2017 NY Slip Op 05807, Decided on July 26, 2017,Appellate Division, Second Department:

"The parties were married on May 6, 1990, and are the parents of two emancipated children. During the marriage, the plaintiff was the primary caregiver for the children and a homemaker. The defendant owned a restaurant in Manhattan. In 2012, after 22 years of marriage, the plaintiff commenced this action for a divorce and ancillary relief. A nonjury trial was held on the issues of equitable distribution of the marital property and maintenance. The Supreme Court issued a decision after trial, and subsequently a judgment, inter alia, awarding the plaintiff the marital residence, with a credit to the defendant in the amount of $315,000, and maintenance in the amount of $5,000 per month from December 1, 2014, until November 1, 2017, then $4,000 per month until November 1, 2020, and then $3,000 per month until October 31, 2023. The plaintiff was also awarded the total sum of $514,564, representing her equitable share of numerous real estate investment properties located in New Jersey, including the sum of $83,500, representing one-half of the value of funds the defendant had withdrawn from an account in his name with Eurobank. The defendant appeals, as limited by his notice of appeal, from stated portions of the judgment of divorce.

"[T]he amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts" (Repetti v Repetti, 147 AD3d 1094, 1096 [internal quotation marks omitted]; see Kaprov v Stalinsky, 145 AD3d 869, 874). "The factors to consider 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'" (Horn v Horn, 145 AD3d 666, 668, quoting Kret v Kret, 222 AD2d 412, 412). "The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting" (Sansone v Sansone, 144 AD3d 885, 886 [internal quotation marks omitted]). Considering the relevant factors, in this case, the amount and duration of the maintenance award was a provident exercise of discretion (see Ralis v Ralis, 146 AD3d 831, 833; Bogenschultz v Green, 144 AD3d 958, 959; Maddaloni v Maddaloni, 142 AD3d 646, 654; Perdios v Perdios, 135 AD3d 840, 842)."

Monday, July 31, 2017

COMMERCIAL LITIGATION - ACCOUNT STATED



Caring Professionals, Inc. v Landa, 2017 NY Slip Op 05803, Decided on July 26, 2017 Appellate Division, Second Department:

"An account stated is an agreement, express or implied, between the parties to an account based upon prior transactions between them with respect to the correctness of account items and a specific balance due on them which is independent of the original obligation (see Clean Earth of N. Jersey, Inc. v Northcoast Maintenance Corp., 142 AD3d 1032, 1035; Citibank [S.D.], N.A. v Brown-Serulovic, 97 AD3d 522, 523). An essential element of an account stated is that the parties came to an agreement with respect to the amount due (see Episcopal Health Servs., Inc. v POM Recoveries, Inc., 138 AD3d 917, 919; Cameron Eng'g & Assoc., LLP v JMS Architect & Planner, P.C., 75 AD3d 488, 489).

Upon reargument, the Supreme Court properly determined that the plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law on the cause of action to recover on an account stated. The plaintiff's evidentiary submissions did not establish that the parties came to an agreement with respect to the amount of the balance due (see Raytone Plumbing Specialties, Inc. v Sano Constr. Corp., 92 AD3d 855, 856)."

Friday, July 28, 2017

SNOW REMOVAL LIABILITY



Yes, it's summer but winter is coming. In this recent Appellate Division Second Department case on legal malpractice, the court discusses the general rules on liability for snow removal. Balan v Rooney, 2017 NY Slip Op 05801, Decided on July 26, 2017, Appellate Division, Second Department:

""[A] landowner generally cannot be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter'" (Weller v Paul, 91 AD3d 945, 947, quoting Mazzella v City of New York, 72 AD3d 755, 756; see Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d 1177; Salvanti v Sunset Indus. Park Assoc., 27 AD3d 546). "However, once a landowner elects to engage in snow removal activities, it is required to act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm" (Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d at 1177; see Salvanti v Sunset Indus. Park Assoc., 27 AD3d at 546; Chaudhry v East Buffet & Rest., 24 AD3d 493).

Here, the defendant failed to demonstrate his prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for legal malpractice on the ground that the plaintiff could not have prevailed in an action against the property owner. While the defendant demonstrated, prima facie, through certified meteorological data and the plaintiff's deposition testimony, that the accident occurred less than one hour after the snowstorm ceased, he did not eliminate triable issues of fact as to whether the property owner created or exacerbated a hazardous condition through negligent snow removal efforts (see Anderson v Landmark at Eastview, Inc., 129 AD3d 750, 751; Salvanti v Sunset Indus. Park Assoc., 27 AD3d at 546-547; Chaudhry v East Buffet & Rest., 24 AD3d at 494). In particular, in light of the plaintiff's deposition testimony, a triable issue of fact exists as to whether the property owner, upon clearing snow from a small portion of the premises, had left a pile of snow that the plaintiff had to "lift [her] leg" to "cross" over, causing her to slip and fall. Accordingly, that branch of the defendant's motion which was for summary judgment dismissing the legal malpractice cause of action should have been denied."

Thursday, July 27, 2017

CUSTODY/VISITATION NOT AN ISSUE WHEN CHILDREN REACH MAJORITY



MATTER OF DE OLIVEIRA v. De Oliveira, 2017 NY Slip Op 5223 - NY: Appellate Div., 2nd Dept. 2017:

"The father's appeal from the order denying his petition for visitation with the parties' daughters must be dismissed as academic, since their daughters are now more than 18 years of age (see Matter of Julian B. v Williams, 97 AD3d 670, 670-671; Matter of Bartley v Pringle, 90 AD3d 653)."

There are many approaches, counseling, etc. available for parents with estranged children. For example, see http://www.rejectedparents.net/

Monday, July 24, 2017

NYC CRACKDOWN ON PET SITTERS



Recent news stories have come out NYC's crackdown on pet sitters. The law in question is Article 161 of the NYC Health Code and specifically:

"§161.15 Keeping of small animals for sale, boarding, grooming, or training.

(a) No animals shall be sold or held for sale, or boarded, groomed or trained in a room in which a person lives. No aquatic animals, as defined in Article 81 of this Code, except live food fish species from a source authorized by applicable law to supply such fish or live fish in an ornamental aquarium, shall be sold or held for sale or kept in the same place where food or drink is sold for human consumption.

(b) The holder of a permit issued pursuant to §161.09 or the person in charge of the place for which the permit is issued, shall provide any individual seeking to purchase, adopt, groom, train, or board a dog, showing no evidence of licensure, with a dog license application, furnished by the Department, which shall be completed by the individual. The holder of a permit to operate a pet shop or shelter or person in charge thereof, shall not transfer possession, title, ownership, control or custody of any dog to a prospective purchaser or adopter without first requiring the purchaser or adopter to submit a completed application for a dog license and to pay all required license fees unless such purchaser or adopter shall execute and submit to such permittee a written statement that the dog to be purchased or adopted is to be harbored outside the City. The operator of a shelter issued a permit by the 14 Department shall not release an unlicensed dog to any person unless the person shall complete an application for a license and tender the license fees required by law. Such holder of a permit or person in charge shall forward such completed application and license fees to the Department in such manner as may be specified by the Department, consistent with the New York City Dog License Law enacted by the State legislature (Chapter 115 of the Laws of 1894, as amended). The license shall be issued by the Department.

(c) A holder of a permit to keep small animals for sale or for boarding, grooming or training, or to shelter homeless animals, shall maintain and keep for one year a record of purchases and sales and/or a record of boarding, grooming, training, providing shelter for homeless animals, or adoption services rendered. When a dog or cat is purchased, sold, adopted or kept, the permittee shall make an entry in the record which shall contain the name and address of the person from whom it was purchased and of the person to whom it was sold or given for adoption or of the person who ordered boarding, grooming, or training services for such animals, and a complete description of the animal, including its age, sex and breed. The permittee shall on at least a monthly basis report to the Department on a form furnished by the Department all licensed and unlicensed dogs which have been sold, adopted, groomed, trained, boarded, sheltered, or otherwise served. Such form shall include the name and address of the dog owner and license number of all licensed dogs as well as any other descriptive information regarding such dog as may be required by the Department.

(d) A holder of a permit to keep small animals for sale, boarding, grooming or training shall not sell or hold for sale, boarding, grooming or training a dog or cat which is affected with or which has been exposed to a disease which is communicable among such animals, and shall not keep such animals unless it is under the care of a licensed veterinarian.

(e) Proof of vaccinations required. (1) Proof of rabies vaccination. Holders of permits to operate animal boarding kennels, grooming parlors, training establishments and pet shops providing boarding, grooming and/or training services must obtain proof from the owner of each dog, cat or other animal that is provided services that the animal is currently vaccinated for rabies, provided that there is a USDA approved rabies vaccine for such animal, or that the animal has a medical condition for which rabies vaccination is contraindicated. A copy of a rabies vaccination certificate or signed letter from a veterinarian verifying the animal’s vaccination status or exemption from vaccination will constitute such proof. Such proof must be maintained on the premises and provided to the Department upon request. (2) Other vaccinations for dogs. (A) Boarding kennels and training establishments. Holders of permits to operate animal boarding kennels, training establishments and pet shops providing boarding, grooming and/or training services must obtain proof from the owner of each dog provided services that such dog is currently actively vaccinated against distemper, adenovirus, parainfluenza, parvovirus and Bordetella, or a letter from a veterinarian that the animal has a medical condition for which vaccination is contraindicated. Such proof may include, but is not limited to, (i) a receipt from a veterinary office for vaccines provided, (ii) a summary of a veterinary visit prepared by the veterinary office indicating such vaccines were administered, or (iii) a copy of a signed letter from a veterinarian stating that the dog has been so vaccinated or that the dog has a medical condition for which vaccination is contraindicated. The accepted proof must 15 be maintained on the premises for a period of not less than one year and provided to the Department upon request. (B) Grooming parlors. A holder of a permit to operate a grooming parlor where only grooming services are provided must obtain from the owner of each dog that is provided services either (i) a sworn statement of the owner that the dog is currently actively vaccinated against distemper, adenovirus, parainfluenza, parvovirus and Bordetella, or (ii) a receipt from a veterinary office for vaccines provided, (iii) a summary of a veterinary visit prepared by the veterinary office indicating such vaccines were administered, or (iv) a copy of a signed letter from a veterinarian stating that the dog has been so vaccinated or that the dog has a medical condition for which vaccination is contraindicated. An owner’s sworn statement must include the name and contact information of the veterinarian who administered the vaccinations. The accepted proof must be maintained on the premises for a period of not less than one year, and provided to the Department upon request.

(f) Cage or box dryers prohibited. Facilities that care for or provide services to small animals shall not dry any such animal using a cage or box dryer or any other dryer that is equipped with a heating element that is not handheld."

Friday, July 21, 2017

CAN RENT BE COLLECTED FOR AN ILLEGAL APARTMENT?



Madden v. Juillet, 2015 NY Slip Op 50214 - NY: Appellate Term, 2nd Dept. 2015

"....Defendant cross-appeals from the judgment, arguing that she does not owe the $800 which was awarded to plaintiff for April 2012 rent because the premises was an illegal basement apartment and because plaintiff breached the warranty of habitability.

.......

Contrary to defendant's contention, the absence of a certificate of occupancy for the lower-level apartment does not bar the recovery of rent (see Sinclair v Ramnarace, 36 Misc 3d 150[A], 2012 NY Slip Op 51671[U] [App Term, 9th & 10th Jud Dists 2012]; Pickering v Chappe, 29 Misc 3d 6 [App Term, 2d, 11th & 13th Jud Dists 2010]; Schweighofer v Straub, 23 Misc 3d 132[A], 2009 NY Slip Op 50730[U] [App Term, 9th & 10th Jud Dists 2009]; Corbin v Briley, 192 Misc 2d 503 [App Term, 9th & 10th Jud Dists 2002]; Tuzel v Reilert, NYLJ, Dec. 3, 1996 [App Term, 9th & 10th Jud Dists])."

Thursday, July 20, 2017

IS THERE A DEFENSE TO NO FAULT DIVORCE?



This question arose when an individual consulted me on Avvo. They were advised that their "friend" could not get a no fault divorce because the court stated they have to first attempt counseling before they could establish an irretrievable breakdown.

That would be an interesting defense but would conflict with the purpose of the no fault rule. As noted in LAB v. BM, 2014 NY Slip Op 51069 - NY: Supreme Court 2014:

"Plaintiff's complaint seeks a divorce based on "no-fault" grounds, the irretrievable breakdown in the parties' relationship for at least six months pursuant to DRL § 170(7). Defendant has not cross claimed for divorce on different grounds. Although Referee Ratner's report indicates that the grounds for divorce are not resolved, this Court agrees with the case law which holds that there is no defense to a party seeking a divorce based on irretrievable breakdown in the parties' relationship and "a plaintiff's self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on the ground that it is irretrievably broken down." D.R.C. v A.C., 32 Misc 3d 293, 306 [Sup. Ct. Nassau County 2011]; Vahey v Vahey, 35 Misc 3d 691, 694 [Sup. Ct. Nassau County 2012]."


Tuesday, July 18, 2017

BRINGING BACK PREFERENTIAL RENT RIGHTS IN NYC?



As reported recently in The Village Voice:

"Before June 2003, landlords who gave tenants preferential rents had to continue them as long as the current tenant stayed in the apartment, with any increases based on the discounted rent rather than the legal maximum. But on the last night of that year’s legislative session, the Republican-dominated state senate amended the state’s about-to-expire rent-stabilization law to let owners raise preferential rents when the tenant renewed his lease, unless the lease explicitly forbade it. The senate then adjourned, leaving the Democratic-controlled assembly with the choice of accepting its changes or letting rent stabilization itself die."

Senator Liz Kruger has introduced Senate Bill S3712 2017-2018 Legislative Session, to amend the emergency tenant protection act of nineteen seventy-four and the administrative code of the city of New York, in relation to the regulation of rents and which will prohibit an owner from adjusting the amount of preferential rent upon the renewal of a lease. The bill is currently in committee. The Senator notes:

"As housing costs increase across the City of New York, the displacement of working families and middle class residents from rent regulated apartments has resulted in a housing crisis. The displacement of rent regulated tenants has been aggravated by a landlord's ability to abandon a preferential rent upon the renewal of a lease.

Prior to a change in law, a preferential rent was permanent for the duration of a tenancy and could only be increased upon vacancy. However, as a result of amendments to the law in 2003, landlords are now permitted to abandon a discounted, preferential rent and impose the statutory rent upon vacancy or renewal of a lease. Pursuant to this provision, tenants throughout New York City have faced sudden and unanticipated rent increases upon lease renewal. As a result, many tenants cannot pay new rental payments and have been forced out of their rent-regulated apartments.

Equally problematic is that there is no "clean hands" requirement that a landlord conduct him/herself responsibly when abandoning a preferential rent and imposing the maximum rent upon vacancy. If a tenant leaves an apartment that is uninhabitable due unsanitary conditions, lack of heat, hot water, electricity, repairs, etc., a landlord can precipitously increase rent upon the vacancy of an apartment. As such, the law encourages bad actors to deprive tenants of a habitable apartment in order to benefit from the ability to abandon a preferential rent.

In order to stem the displacement crisis in New York City and preserve the affordable housing stock available to working families and moderate-income residents, the rent regulation laws are in need of reform. This proposed amendment of the preferential rent provisions is an important step in that direction."

Friday, July 14, 2017

ON AVVO


Thursday, July 13, 2017

NEW RULES FOR NY ATTORNEYS - CLE REQUIREMENTS



Part 1500, Title 22 of the Official Compilations of Codes, Rules and Regulations of the State of New York - recent change

"CLE PROGRAM RULE §1500.22 Minimum Requirements

(a) Credit Hours.  Each attorney shall complete a minimum of 24 credit hours of accredited continuing legal education each biennial reporting cycle in ethics and professionalism, skills, law practice management, areas of professional practice, or diversity, inclusion and elimination of bias, at least four (4) credit hours of which shall be in ethics and professionalism and at least one (1) credit hour of which shall be in diversity, inclusion and elimination of bias.  Ethics and professionalism, skills, law practice management, areas of professional practice, and diversity, inclusion and elimination of bias are defined in §1500.2. The ethics and professionalism and diversity, inclusion and elimination of bias components may be intertwined with other courses. [effective July 1, 2018]

Attorneys due to re-register on or after July 1, 2018 must meet this requirement"

Wednesday, July 12, 2017

RENTAL PERMITS AND THE TOWN OF HUNTINGTON


As reported in Newsday, a federal court dismissed an action against the Town of Huntington filed by a coalition of landlords.  The plaintiff's objected to a rental permit law adopted by the town requiring non-owner-occupied landlords to obtain a permit for the rental property every two years. The permit certifies that the home has been examined by an independent state-certified inspector, a Town of Huntington public-safety inspector or a licensed engineer. According to the town's website:

"Rental permits are not required when:
  • The owner lives on the premises
  • The owner's immediate family lives on the premises
  • There is a homeowner's association on site
  • There is a property management office on site" 
The objections were primarily based on constitutional grounds and a full copy of the decision can be viewed at  http://www.huntingtonny.gov/filestorage/13753/13757/17478/17524/Rental_Registration_Decision.pdf

SEVERANCE PAY AND UNEMPLOYMENT INSURANCE



From the DOL website:

"Q: How will dismissal or severance pay affect my Unemployment Insurance Benefits?

A: You may eligible to collect benefits under the following conditions: The weekly amount of dismissal/severance pay is less than the maximum weekly benefit rate


OR


The initial severance payment is made more than 30 days after the last day of your employment 


OR


The dismissal/severance pay is stopped


AND


You have enough earnings in the base period to establish a claim.


You must notify the TCC if you receive or will receive dismissal severance pay.  Failure to do so could result in an overpayment of benefits and other penalties. "

For more information, see https://labor.ny.gov/formsdocs/factsheets/pdfs/p825.pdf

Monday, July 10, 2017

NEW RULES - DIVORCE JUDGMENTS



Effective August 1, 22NYCRR §202.50(b) is amended to add a new section 202.50(b)(3) requiring that every Uncontested and Contested Judgment of Divorce contain certain decretal paragraphs, including one concerning the venue where post judgment applications for modification or enforcement in Supreme Court should be brought. 

See http://www.nycourts.gov/divorce/pdfs/PDF%20A%20AO-100-17-Judgments.pdf

Friday, July 7, 2017

NEW RULES - PENDENTE LITE MOTIONS


Effective July 1, new rules govern pendent lite motions regarding, among other things, the size of papers, form, etc.

See https://www.nycourts.gov/divorce/pdfs/PDF%20B%20AO-99-17-Applications.pdf

Thursday, July 6, 2017

DOMESTIC VIOLENCE AND MEDIATION



The general school of thought is that domestic violence victims, when seeking divorce, should not attempt mediation as the mediation can be used as a further tool of abuse and control by the abuser. This was illustrated in the recent decision in Massari v. Massari, 2017 NY Slip Op 50412 - NY: Supreme Court 2017.

A reading of the facts indicated that a serious incident of physical violence led to a separation in which the defendant husband insisted that a mediator referred by his attorney be used. The agreements entered into appear fair on its face in that marital assets were split evenly, however, the agreements provided that maintenance would be waived. The court held:

"While marital assets were distributed equitably, Defendant remains in a position to significantly improve his comfortable standard of living. The Court concludes there is a manifest unfairness in enabling Defendant to maintain a comfortable standard of living, while relegating Plaintiff to a poverty level lifestyle. Christian v. Christian, supra. Accordingly, the Court awards maintenance to the Plaintiff in the amount of $1,000.00 per month, commencing on the entry of Judgment herein and continuing until Defendant reaches the age of 66 and he is eligible for full Social Security benefits, at which time Plaintiff will be eligible for her full Social Security benefits based on her contributions, and her marriage to Defendant. Consequently, Defendant shall continue to maintain his life insurance as set forth in Article XIII of the Agreement."

Wednesday, July 5, 2017

PROMISSORY ESTOPPEL AND THE STATUTE OF FRAUDS


Matter of Hennel 2017 NY Slip Op 05266 Decided on June 29, 2017 Court of Appeals Fahey, J. :

"Petitioners concede that the statute of frauds would generally bar reliance on their oral bargain with decedent. As the Appellate Division acknowledged, wills are ambulatory in nature, and decedent was free to revoke or alter his 2006 will until his death (see Matter of American Comm. for Weizmann Inst. of Science v Dunn, 10 NY3d 82, 92 [2008]). Petitioners do not allege that decedent promised never to revoke or alter his 2006 will. In any event, Estates, Powers and Trusts Law § 13-2.1 (a) (2) requires every agreement or promise to make a "testamentary provision of any kind" to be in writing. General Obligations Law § 5-701 (a) (1) further requires any agreement or promise that "[b]y its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime" to be in writing. The Appellate Division therefore correctly held that "petitioners were obliged to bring this case within an exception to the statute of frauds" (Hennel, 133 AD3d at 1122).

Petitioners attempted to do so by relying on the doctrine of promissory estoppel. Although respondent agrees that the statute of frauds will not apply if petitioners can establish the elements of promissory estoppel and that they would otherwise suffer unconscionable injury, [*5]this Court has not yet expressly recognized this principle. We adopt it now, for several reasons.

The Restatement (Second) of Contracts endorses the principle that a promise inducing reasonable reliance "is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise" (Restatement [Second] of Contracts § 139 [1]; see also 10 Richard A. Lord, Williston on Contracts §§ 27:14-27:15, at 185-206 [4th ed 2011]; 4 Corbin on Contracts § 12:8, at 38-44 [1997]). This Court has previously cited section 139 of the Restatement with approval (see Farash v Sykes Datatronics, 59 NY2d 500, 504-505 [1983]).

This Court has also recognized that the related doctrines of equitable estoppel and part performance may preclude application of the statute of frauds under certain circumstances (see e.g. American Bartenders School v 105 Madison Co., 59 NY2d 716, 718 [1983], affg 91 AD2d 901 [1st Dept 1983]; Anostario v Vicinanzo, 59 NY2d 662, 663-664 [1983]; Woolley v Stewart, 222 NY 347, 350-351 [1918]; cf. Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 234 n 1 [1999])[FN2]. Furthermore, the Appellate Division departments have unanimously recognized that promissory estoppel may preclude enforcement of the statute of frauds if application of the statute would result in unconscionability (see e.g. Carvel Corp. v Nicolini, 144 AD2d 611, 612-613 [2d Dept 1988]; Bernard v Langan Porsche Audi, 143 AD2d 495, 496 [3d Dept 1988]; American Bartenders School, 91 AD2d at 902; Buddman Distribs. v Labatt Importers, 91 AD2d 838, 839 [4th Dept 1982]; Swerdloff v Mobil Oil Corp., 74 AD2d 258, 261-264 [2d Dept 1980], lv denied 50 NY2d 803, 913 [1980]).

Finally, this equitable doctrine is grounded in sound principles of fairness. As this Court has stated in a different context,

"The Statute of Frauds was designed to guard against the peril of perjury; to prevent the enforcement of unfounded fraudulent claims. But, as Professor Williston observed: 'The Statute of Frauds was not enacted to afford persons a means of evading just obligations; nor was it intended to supply a cloak of immunity to hedging litigants lacking integrity; nor was it adopted to enable defendants to interpose the Statute as a bar to a contract fairly, and admittedly, made'" (Morris Cohon & Co. v Russell, 23 NY2d 569, 574 [1969], quoting 4 Williston on Contracts § 567A, at 19-20 [3d ed 1961]).

In other words, equity "will not permit the statute of frauds to be used as an instrument of fraud" (Wood v Rabe, 96 NY 414, 425 [1884]).

We hold that where the elements of promissory estoppel are established, and the injury to the party who acted in reliance on the oral promise is so great that enforcement of the [*6]statute of frauds would be unconscionable, the promisor should be estopped from reliance on the statute of frauds.[FN3]"

Thursday, June 29, 2017

NEW YORK V. CALIFORNIA (AND OTHER STATES) - DECEASED RIGHT OF PUBLICITY (CONTINUED PART 3)

Talent versus "the suits" is quite common in the entertainment industry. So while SAG-AFTRA, representing the talent, is quite vocal in its support, "the suits" may have another view.

The NYC Bar reports on it's website:

"The Communications and Media Law Committee (Charles S. Sims, Chair) and Art Law Committee (Steven R. Schindler, Chair) issued a report opposing legislation which would provide for a post mortem “right of publicity” for 40 years after the death of an individual, allowing successors in interest to provide notice of such interest through a public registration and posting maintained by the New York Secretary of State. A “right of publicity” describes the “right” of individuals to control the use of their name and likenesses for commercial and other valuable purposes. A similar bill was opposed by the City Bar in 2010 and the Committees believe the present bill raises even further concerns, for both procedural and substantive reasons.  New York Civil Rights Law §§ 50 and 51 (which the bill seeks to amend) have always been strictly construed in New York, favoring the right to freely publish images of persons based on First Amendment principles and only restricting the publication in clear cases where the use of the personality’s image or likeness is for purposes of advertising or trade. The Committees believe that any amendments to this law should be made only for the most compelling reasons, which are not present in the pending legislation."

The full report can be viewed here: http://s3.amazonaws.com/documents.nycbar.org/files/2017170-RightToPublicity.pdf


Wednesday, June 28, 2017

NEW YORK V. CALIFORNIA (AND OTHER STATES) - DECEASED RIGHT OF PUBLICITY (CONTINUED PART 2)



SAG-AFTRA position on the Right of Publicity Bill:

'Pending New York Post-Mortem Right of Publicity Legislation

SAG-AFTRA strongly supports S 5857-A (Savino) / A 8155-A (Morelle), which will revive the New York post-mortem right of publicity under Civil Rights Law sections 50, 51.

SAG-AFTRA represents 30,000+ New York actors, singers, dancers, stunt performers and recording artists who derive part or all of their income from professional performance services, merchandise royalties, and product endorsement. It is for this reason, the United States Supreme Court and other state statutes have long recognized that a performer’s name, image, and likeness is an intellectual property right. These laws recognize the valuable contribution performers make to our nation’s cultural exchange, creative economy, and consumer experience. In sum, S 5857-A / A 8155-A protects the very careers, livelihoods, pensions, and healthcare coverage of SAG-AFTRA’s membership, and encourages professional performers, in both film and music, to invest in the development of their talents, goodwill and legacy.

As you've seen in recent movies and video games, content creators can now create new photo-realistic performances of even deceased performers. Without the right of publicity, a state-based intellectual property right recognized throughout the country, performers and their heirs have no law on the books to protect them.

Mythbusters

The Right of Publicity is Unconstitutional – FALSE

The United States Supreme Court and appellate courts across the country have clearly stated that a state can protect its performers without running afoul the Constitution. Other creators, including writers and journalists, are fully protected by the broad rights of the First Amendment to comment on, report on, or poke fun at public and private figures. In fact, A 8155-A (Morelle) / S 5857-A (Savino) gives creators even more statutory protections beyond what is required by the First Amendment.

23 other states, including California, already have a post-mortem right of publicity. New York state, the media capital of the world, lags behind.

A 8587-A / A 8155-A is Attempting to Prevent Unauthorized Biographical Films - FALSE

SAG-AFTRA fully supports the creation of unauthorized audiovisual works about real people and newsworthy events; works that employ many of our members and add to our film history. Another reason why we are supporting the inclusion of statutory exemptions, which again, go beyond what is required of the Constitution.

SAG-AFTRA believes the Supreme Court got it right when it said the right of publicity is more about protecting the economic value of an entertainer’s career than hurt feelings and reputation. This legislation seeks to clarify that the digital insertion of living or deceased performers into audiovisual works (video game, movie, TV show) to play a fictional character without permission is still arguably a violation of individuals’ right of publicity. In other words, in the event of this kind of theft, a judge, in a court of law, would be able to make a factual and legal determination. Content creators would still have the broad protections of the First Amendment and copyright preemption case law at their disposal. The clarification we advocated for is in response to ever-evolving new technologies, so that performers can have their day in court when their image is stolen in this way."

Tuesday, June 27, 2017

NEW YORK V. CALIFORNIA (AND OTHER STATES) - DECEASED RIGHT OF PUBLICITY (CONTINUED PART 1)



S.6857-A / A.8155-A was proposed this year to amend the civil rights law, in relation to the right of publicity and to amend the civil practice law and rules, in relation to the timeliness of commencement of an action for violation of the right of publicity.

According to the bill's sponsors:

"The term "Right of Publicity" originated in the United States Court of Appeals for the Second Circuit in 1953 in Haelan Laboratories v. Topps Chewing Gum to describe the right of individuals to control the use of their name and likenesses for commercial and other valuable purposes. Since then, more than half of the states have granted rights of publicity to individuals through either the common law or by statute.

The Right of Publicity refers to every individual's inherent right to control the commercial use of his or her personal characteristics, which can include name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, or mannerisms. The most critical function of the Right of Publicity is control. The Right of Publicity, even though it is a property right, is not merely a property asset, like a painting or real estate, for estate tax purposes. The Right of Publicity ensures that if a person, or that person's successor in interest, does not seek to commercialize the right, they are not compelled to do so.

This bill provides for a post mortem right of publicity for forty years after the death of an individual, allowing successors in interest to provide notice of such interest through a public registration and posting maintained by the New York Secretary of State. Along with providing for a post mortem right of publicity the bill also has exclusions consistent with constitutionally protected freedom of speech.

Finally, the Right of Publicity created through this legislation applies to acts that occur within New York State regardless of the deceased individual's domicile, residence, or citizenship. This way we are able to prevent anomalous results in the application of the law to individuals who do not have a Right of Publicity in their domicile or country.

In conclusion, this bill is balanced in protecting essential first amendment rights consistent with current law while still providing protections for an individual's right of publicity during life and for forty years after death."

Monday, June 26, 2017

NEW YORK V. CALIFORNIA (AND OTHER STATES) - DECEASED RIGHT OF PUBLICITY



Under Cal. Civ. Code § 3344.1, post-mortem publicity rights are available for seventy (70) years after death. The statue provides a cause of action for the unauthorized use of a “deceased personality’s” “name, voice, signature, photograph, or likeness” on products or merchandise, or for the purposes of advertising or promotion of such items.


This statute was enacted in part in response to Lugosi v. Universal Pictures, 603 P.2d 425 (Cal. 1979. The heirs of Béla Lugosi sued Universal Studios in 1966 for using his personality rights without the heirs' permission. The trial court ruled in favor of the Lugosi heirs, but Universal Studios won the case in an appeal. The court determined that a dead person had no right to his likeness, and any rights that existed did not pass to his heirs.

Friday, June 23, 2017

RESTORED TO POSSESSION AFTER EVICTION



224-232 ATLANTIC AVENUE INVESTORS, LLC v. Gonzalez, 2017 NY Slip Op 50525 - NY: City Court, Civil Court 2017:

"The Court of Appeals has found that in appropriate circumstances the Civil Court may vacate the warrant of eviction and restore the tenant to possession even after the warrant has been executed. Matter of Brusco v Braun, 84 NY2d 674 (1994). The Court of Appeals in Matter of Brusco v Braun, supra cited Solack Estates v Goodman, for this proposition. Solack Estates v Goodman, 78 AD2d 512 (1st Dep't 1980). Solack Estates supra involved a non-payment proceeding where the elderly, long term tenant was vacationing in Florida and defaulted. The landlord obtained a default judgment against her, and she was subsequently evicted. The Appellate Division, First Department found that the Civil Court properly vacated the warrant of eviction and restored her to possession. Additionally, other factors considered by Courts to determine whether good cause exists to vacate the warrant of eviction and restore a tenant to possession are the length of the tenancy, rent regulatory status of the premises, health circumstances and age of the tenant. Parkchester Apts. Co. v Scott, 271 AD2d 273 (1st Dep't 2000).

Here, some of the facts of Solack Estates supra are analogous to the respondent who is eighty-one years old and has resided at the premises for forty-one years. She defaulted as a result of her hospitalization and medical condition. Subsequently, she was evicted and is seeking restoration on the basis of an excusable default, meritorious defense and good cause. First, she was never notified of the proceeding because she was in the hospital. Second, the meritorious defense is the petitioner's failure to comply with the Williams Consent Decree. Third, respondent is a long term, elderly, medically fragile, rent stabilized tenant. These are key factors Courts consider as good cause to vacate the warrant of eviction and restore a tenant to possession. Parkchester Apts. Co. v Scott, supra.
Moreover, respondent has made a greater showing beyond good cause for vacatur of the judgment and warrant based on petitioner's failure to comply with the Williams Consent Decree. Regardless of the circumstances, petitioner would not have been able to proceed with this non-payment because it failed to obtain certification from NYCHA before commencing the proceeding. Therefore, the judgment and warrant could not have been issued.

Based on the foregoing case law and respondent's ability to satisfy CPLR 5015 for vacatur of the default judgment standards, and factual circumstances, respondent has shown good cause to vacate the warrant of eviction and restore her to possession.

Accordingly, the respondent's post eviction order to show cause to be restored to the subject premises, vacate her default and dismiss the petition is granted. Respondent is awarded a judgment of possession as against petitioner and shall be restored to possession within two weeks of the date of this decision. This time frame will allow petitioner an opportunity to restore the subject premises to a habitable condition including the restoration of the kitchen cabinets, bathroom and kitchen fixtures. NYCCCA §110 (c). Upon such restoration, respondent shall be made whole. Since this was not a proper eviction, petitioner to remove respondent's possessions from the storage facility and return it to the subject premises forthwith at petitioner's expense."

Thursday, June 22, 2017

NEW YORK RISING EXTENSION



From the City of Long Beach website:

"The City of Long Beach is pleased to announce that NY Rising has modified the Housing Recovery Program's September 1st deadline, allowing for extra time if certain conditions are met.

On June 8th, the Long Beach City Council and City Manager sent a letter to Kaii Torrence, Director of Intergovernmental Affairs, Office of Storm Recovery, requesting that the September 1st deadline for homes to be raised be postponed due to the number of residents who were still in various stages of the NY Rising process, awaiting building permits, and/or trying to find a suitable temporary rental while their home is undergoing construction, and will not be able to elevate their homes before that date.

In response, if a homeowner believes that there is chance their home will not be able to pass an interim inspection (i.e., in the process of being raised) by the September 1st deadline, NY Rising will postpone the deadline until June 1, 2018 if the homeowner can provide the following documentation no later than June 30, 2017:
  • A permit from the local building department to commence elevation
  • A receipt from the local building department documenting an application for an elevation permit; or
  • The most recent correspondence from the local building department showing that an elevation permit was submitted"

Wednesday, June 21, 2017

NEW RULES - DIVORCE



Effective August 1, 2017, 22NYCRR §202.50(b) is amended to add a new section 202.50(b)(3) requiring that every Uncontested and Contested Judgment of Divorce contain certain decretal paragraphs, including one concerning the venue where post judgment applications for modification or enforcement in Supreme Court should be brought, viz., in the county where one of the parties resides or if there are minor children, in the county where one of the parties or the child resides.

Tuesday, June 20, 2017

ORDER OF PROTECTION AND HARASSMENT



DORIS F. v. ARI T., 2017 NY Slip Op 4883 - NY: Appellate Div., 1st Dept. 2017:

"A fair preponderance of the evidence does not support a finding of harassment in the second degree against Ari (see Family Ct Act § 832). Doris's petition was based solely on one letter Ari sent to Doris on or about November 17, 2014, a month after a previous order of protection against Ari and in favor of Doris had expired. This letter sought to apologize for Ari's behavior during and after the parties' relationship, which he attributed to his health and medical problems. Included with the letter was a recent article from the New York Post about Ari's lawsuit against a physician for misdiagnosis and treatment of Ari's condition that left him, in Ari's words, a "drugged-out mess." Although Family Court inferred that Ari intended to harass, annoy or alarm Doris by sending the letter, such finding does not have a sound and substantial basis in the record (see Matter of Melind M. v Joseph P., 95 AD3d 553, 555 [1st Dept 2012]). While Ari testified at the fact-finding hearing that he suspected Doris was conspiring with others to stalk and defame him, the letter itself made no mention of these allegations, contained no threats, and was written in an objectively apologetic and loving tone. Moreover, the fact that Ari sent the letter days after the New York Post article came out further supports a finding that he did not intend to harass, annoy, or alarm Doris (see Penal Law § 240.26). While it is understandable that Doris may have been scared by Ari's renewed contact via the letter, "her reaction is immaterial in establishing [Ari]'s intent" (Matter of Shephard v Ray, 137 AD3d 1715, 1716 [4th Dept 2016] [internal quotation marks omitted]).

A fair preponderance of the evidence also failed to establish that Doris had committed the family offense of harassment in the second degree. Ari's petition alleged, among other things, that Doris chased after and grabbed Ari, and also repeatedly jumped on Ari's back while he was lying face down in the bed, making it difficult to breathe. At the fact-finding hearing, Doris testified that in March 2012 she chased after Ari and attempted to restrain him because she believed he was suicidal. By Ari's own account, Doris jumped on his back in a playful manner because she wanted him to show her a press release for a conference they were organizing together. Neither of these actions support a finding that Doris committed the family offense of harassment in the second degree, as the evidence does not support an inference that Doris intended to harass, annoy, or alarm Ari (see Penal Law § 240.26; see also People v Bartkow, 96 NY2d 770, 772 [2001])."