Thursday, October 19, 2017

DISCRIMINATION FOR "PERCEIVED ALCOHOLISM"



The New York City Human Rights Law (NYCHRL) is a civil rights law that is embodied in Title 8 of the Administrative Code of the City of New York. It prohibits discrimination in employment, housing, and public accommodations based on race, color, creed, age, national origin, alienage or citizenship status, gender (including gender identity and sexual harassment), sexual orientation, disability, marital status, and partnership status.

Recently in No. 104, Kathleen Makinen et al., Respondents, v. City of New York, et al., Appellants, October 17, 2017, New York Court of Appeals:

"The United States Court of Appeals for the Second Circuit has certified and we have accepted for review (29 NY3d 1019 [2017]) the question whether "sections 8 102 (16) (c) and 8 107 (1) (a) of the New York City Administrative Code preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?" (Makinen v City of New York, 857 F3d 491, 493 [2d Cir 2017]). We conclude that those sections of the Administrative Code plainly preclude a disability discrimination claim based solely on a perception of untreated alcoholism, and we therefore answer the certified question in the affirmative."

According to the dissent (J. Garcia):

Plaintiffs, two female police officers, were wrongfully diagnosed as alcoholics based on allegations made by their respective former partners from past relationships. As a result, plaintiffs' employer -- the New York City Police Department (NYPD) -- compelled them to undergo unwarranted treatment. Plaintiffs brought suit, contending, among other things, that defendants' discriminatory conduct violated City, State, and federal civil rights laws. The jury entered verdicts in favor of plaintiffs under the New York City Human Rights Law (the Human Rights Law).

Defendants appealed, contending that the relevant provisions of the Human Rights Law "preclude a plaintiff from bringing a discrimination claim based solely on a perception of untreated alcoholism" (Makinen v City of New York, 857 F3d 491, 497 [2d Cir 2017]). The Second Circuit determined that certification on this issue was warranted, and we accepted the certified question. Defendants advance a plausible reading of the Human Rights Law that would prohibit plaintiffs from recovering. Specifically, defendants contend that, according to the clear statutory language, the Human Rights Law applies only to "recovering" or "recovered" alcoholics, and therefore does not extend protection to an employee who is -- or, like plaintiffs, is perceived to be -- an untreated alcoholic, even if that employee is not, in fact, an alcoholic at all. The majority adopts this admittedly "narrow[]" reading of the Human Rights Law, concluding that the plain text of the statute "does not consider a mistaken perception of alcoholism to be a disability" (majority op at 6, 11).

But we are required to construe the Human Rights Law "broadly in favor of discrimination plaintiffs" wherever such a construction is "reasonably possible" (Albunio v City of New York, 16 NY3d 472, 477-478 [2011]). Here, plaintiffs have advanced a logical interpretation of the statute that aligns with its text, that better serves its express remedial purpose, and that is consistent with its legislative history. Accordingly, I believe plaintiffs have asserted a valid discrimination claim under the Human Rights Law, and I dissent."

Wednesday, October 18, 2017

UNEMPLOYMENT INSURANCE - JOB DISSATISFACTION



MATTER OF McCLAMMY v. STCR BUSINESS SYSTEMS, INC., 2017 NY Slip Op 6704 - NY: Appellate Div., 3rd Dept. 2017:

"Claimant was employed as a technical account manager, a position that required regular travel to the employer's business customers. Claimant informed his supervisor that he no longer wanted to travel and unsuccessfully sought a position in the company that would not require it. Claimant then met with his supervisor and the employer's controller, reiterating that he no longer wished to travel; he was advised in return that there were no such positions available and none would be created. The controller assured claimant that he was not being discharged, concluded their meeting by stating "we're done" and returned to his office. Claimant then packed up his personal belongings at his desk and told his supervisor, who was on the way to his own desk nearby, that "unfortunately it's not gonna work out." Claimant left the building, did not return and applied for unemployment insurance benefits. The Unemployment Insurance Appeal Board ultimately ruled that claimant was disqualified from receiving benefits because he voluntarily left his employment without good cause. Claimant appeals.

We affirm. In our view, substantial evidence supports the Board's factual determination that claimant voluntarily left his employment without good cause while continuing work was available (see Matter of Skura [Commissioner of Labor], 116 AD3d 1330, 1331 [2014]; Matter of Roth [Commissioner of Labor], 108 AD3d 906, 907 [2013]). Dissatisfaction with work schedules, job responsibilities and terms of employment does not constitute good cause for leaving one's employment (see Matter of Davis [Commissioner of Labor], 148 AD3d 1367, 1368 [2017]; Matter of Flint-Jones [Federal Reserve Bank of N.Y-Commissioner of Labor], 144 AD3d 1288, 1289 [2016]; Matter of Tineo [Commissioner of Labor], 117 AD3d 1307, 1308 [2014]). The conflicting testimony over the circumstances leading to claimant's departure and the inferences to be drawn therefrom created a credibility issue for the Board to resolve (see Matter of Maldonado [Commissioner of Labor], 150 AD3d 1512, 1513 [2017]; Matter of Roberson [Commissioner of Labor], 142 AD3d 1259, 1261 [2016]). Claimant's remaining contentions, to the extent that they are preserved for our review, lack merit."

Tuesday, October 17, 2017

COMMERCIAL LEASE ACCELERATION CLAUSE



172 VAN DUZER v. GLOBE ALUMNI, 24 NY 3d 528 - NY: Court of Appeals 2014:

"To the extent defendants suggest that a landowner should be subject to a duty to mitigate, we previously rejected this argument in Holy Props. v Cole Prods. (87 NY2d 130 [1995]). In that case the Court stated that once a tenant abandons the property prior to expiration of the lease, a "landlord [is] within its rights under New York law to do nothing and collect the full rent due under the lease" (id. at 134, citing Becar v Flues, 64 NY 518 [1876], Underhill v Collins, 132 NY 269 [1892], and Matter of Hevenor, 144 NY 271 [1895]). The Court adhered to this established approach, and stated that parties in business transactions depend on the certainty of settled rules, "in real property more than any other area of the law, where established precedents are not lightly to be set aside" (Holy Props., 87 NY2d at 134). We see no reason to reverse course in defendants' case, in particular where, as in Holy Props., the parties here freely agreed to bind defendants to pay rent after termination of the landlord-tenant relationship (id. at 134, citing International Publs. v Matchabelli, 260 NY 451, 454 [1933], Mann v Munch Brewery, 225 NY 189, 194 [1919], and Hall v Gould, 13 NY 127, 133-134 [1855]).

Defendants argue, in the alternative, that the liquidated damages as future rent provided for under the acceleration clause are grossly disproportionate to Van Duzer's actual losses, and therefore constitute an unenforceable penalty. Defendants are correct that an acceleration clause is subject to judicial scrutiny based on a challenge that it is nothing more than a means by which to exact a penalty otherwise proscribed by the law.

As a general matter parties are free to agree to a liquidated damages clause "provided that the clause is neither unconscionable nor contrary to public policy" (Truck Rent-A-Ctr. v Puritan Farms 2nd, 41 NY2d 420, 424 [1977], citing Mosler Safe Co. v Maiden Lane Safe Deposit Co., 199 NY 479, 485 [1910]). Liquidated damages that constitute a penalty, however, violate public policy, and are unenforceable (Truck Rent-A-Ctr., 41 NY2d at 424, citing City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470, 472-473 [1974]). A provision which requires damages "grossly disproportionate to the amount of actual damages provides for [a] penalty and is unenforceable" (Truck Rent-A-Ctr., 41 NY2d at 424).
Whether a provision in an agreement is "an enforceable liquidation of damages or an unenforceable penalty is a question of law, giving due consideration to the nature of the contract and the circumstances" (JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 379 [2005], citing Mosler Safe Co., 199 NY at 485; Leasing Serv. Corp. v Justice, 673 F2d 70, 74 [2d Cir 1982]). "The burden is on the party seeking to avoid liquidated damages . . . to show that the stated liquidated damages are, in fact, a penalty" (JMD Holding Corp., 4 NY3d at 380, citing P. J. Carlin Constr. Co. v City of New York, 59 AD2d 847 [1st Dept 1977]; Wechsler v Hunt Health Sys., Ltd., 330 F Supp 2d 383, 413 [SD NY 2004]). Where a party establishes a penalty, the proper recovery is the amount of actual damages established by the party (JMD Holding Corp., 4 NY3d at 380 ["`If the (liquidated damages) clause is rejected as being a penalty, the recovery is limited to actual damages proven'"], quoting Brecher v Laikin, 430 F Supp 103, 106 [SD NY 1977]).

Defendants claim that because the acceleration clause permits Van Duzer to hold possession and immediately collect all rent due, the damages are grossly disproportionate to the landowner's actual damages. They contend this is a windfall that allows Van Duzer to double dip—get the full rent now and hold the property. On its face this argument is compelling because arguably the ability to obtain all future rent due in one lump sum, undiscounted to present-day value, and also enjoy uninterrupted possession of the property provides the landowner with more than the compensation attendant to the losses flowing from the breach—even though such compensation is the recognized purpose of a liquidated damages provision (Truck Rent-A-Ctr., 41 NY2d at 423; see JMD Holding Corp., 4 NY3d at 382; Benderson v Poss, 142 AD2d 937, 938 [4th Dept 1988]; Gotlieb v Taco Bell Corp., 871 F Supp 147, 155 [ED NY 1994]). Although the acceleration clause in Fifty States was held enforceable, that case is distinguishable from the instant case because there the landlord did not get to keep the property."

Monday, October 16, 2017

RECENT FORECLOSURE CASE



Wells Fargo Bank, N.A. v Lilley, 2017 NY Slip Op 07157, Decided on October 11, 2017, Appellate Division, Second Department:

"In April 2013, the plaintiff commenced this action to foreclose a mortgage secured by real property owned by the defendants Linda M. Lilley and Willie Lilley (hereinafter together the defendants), alleging that they had defaulted on their payment obligations. The defendants failed to appear or answer the complaint. In January 2014, within one year of the defendants' default, the plaintiff moved, ex parte, for an order of reference, to deem all the defendants who failed to appear or answer in default, and to amend the caption. The defendants neither opposed the motion nor cross-moved for relief. In December 2014, the Supreme Court denied, without prejudice, those branches of the motion which were for an order of reference and to deem all the defendants who failed to appear or answer in default, and granted that branch of the motion which was to amend the caption.

In July 2015, the plaintiff again moved for an order of reference and to deem all the defendants who failed to appear or answer in default. The defendants neither opposed the motion nor cross-moved for relief. In the order appealed from, the Supreme Court denied the plaintiff's motion "because of delay in making their motion pursuant to CPLR 3215(c) without sufficient excuse." The plaintiff appeals.

CPLR 3215(c) states, in pertinent part: "If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed" (see State of N.Y. Mtge. Agency v Linkenberg, 150 AD3d 1035, 1036). To avoid dismissal pursuant to CPLR 3215(c), it is not necessary for a plaintiff to actually obtain a default judgment within one year of the default (see State of N.Y. Mtge. Agency v Linkenberg, 150 AD3d at 1036; HSBC Bank USA, N.A. v Traore, 139 [*2]AD3d 1009, 1010; Aurora Loan Servs. LLC v Gross, 139 AD3d 772, 773). As long as "proceedings" are being taken, and those proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be dismissed (see State of N.Y. Mtge. Agency v Linkenberg, 150 AD3d at 1037; HSBC Bank USA, N.A. v Traore, 139 AD3d at 1010-1011; Aurora Loan Servs. LLC v Gross, 139 AD3d at 773). Taking the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference within one year of the defendant's default is sufficient to timely initiate proceedings for entry of judgment pursuant to CPLR 3215(c) (see State of N.Y. Mtge. Agency v Linkenberg, 150 AD3d at 1037; HSBC Bank USA, N.A. v Traore, 139 AD3d at 1010; Aurora Loan Servs. LLC v Gross, 139 AD3d at 773). Here, the plaintiff timely moved for an order of reference within one year of the defendants' default.

Furthermore, the plaintiff established, prima facie, its entitlement to an order of reference and to deem all defendants who failed to appear or answer in default by submitting the mortgage, the unpaid note, an affidavit of merit of its vice president of loan documentation, the complaint, and evidence that the defendants defaulted on their payment obligations and failed to appear or answer the complaint in the time allowed (see RPAPL 1321; Flagstar Bank, FSB v Jambelli, 140 AD3d 829, 830; U.S. Bank N.A. v Gulley, 137 AD3d 1008, 1009; U.S. Bank N.A. v Norgriff, 131 AD3d 527, 528; Wells Fargo Bank, NA v Ambrosov, 120 AD3d 1225, 1226).

Accordingly, the Supreme Court erred in denying the plaintiff's unopposed motion for an order of reference and to deem all the defendants who failed to appear or answer in default."

Friday, October 13, 2017

DIVORCE - AWARDING COUNSEL FEES WHEN THERE IS A CAP



SM v. MR, 2017 NY Slip Op 51071 - NY: Supreme Court, Richmond 2017:

"Accordingly, When Wife testified that she was obligated to pay her attorney the sum of $42,281, she was at best mistaken. Pursuant to the clear terms of their agreed upon retainer, Wife owes her attorney no more than $10,000, of which she has already paid $7,500. Notably, there is no language in the retainer that would indicate that Wife's attorney "reserves the right" to seek any balance of counsel fees from Husband. Moreover, the retainer does include language indicating that Wife has "not relied on any oral statement "and that the agreement can only be "modified in writing . . . signed by both of the parties hereto." (See Pl. Ex. 16).

However, the question remains as to whether the clause capping counsel fees, which was negotiated between Wife and her attorney, inures to the benefit of Husband. Husband argues that he is akin to a "third party beneficiary" to Wife's retainer agreement as he is being asked to pay the hourly amount indicated therein, to the attorney who drafted the agreement. Wife argues that the retainer was drafted for her benefit, and therefore cannot be used to protect Husband.

While this appears to be a matter offirst impression, the Court does not find itself without guidance. Matrimonial retainers are highly regulated, and thus are often the subject of scrutiny at trial. These regulations, which were "designed to address abuses in the practice of matrimonial law and to protect the public" are contained in 22 NYCRR 1400. See Hovanec v. Hovanec, 79 AD3d 816 (2d Dept. 2010). A failure to abide by these regulations, such as a failure to provide a written bill every 60 days, or the failure to provide a written retainer agreement, or a "statement of client's rights" may preclude an attorney from recovering a legal fee from his or her client. See Matter of Grald v. Grald, 33 AD3d 922 (2d Dept. 2006).

In the First, Third and Fourth Judicial Departments, the Appellate Courts have held that the protections of 22 NYCRR 1400, which must be set forth in a written retainer agreement, are protections that only run between attorney and client, as signatories to the retainer contract. For example, the First Department has held that "it is the right of the client, not the adversary spouse, to be billed every 60 days, and the client may waive that right." See Rivacoba v. Aceves, 110 AD3d 495 (1st Dept. 2013); See also Harrington v. Harrington, 93 AD3d 1092 (3rd Dept. 2012); Petosa v. Petosa, 56 AD3d 1296 (4th Dept. 2008).

However, this Court sits in the Second Judicial Department, which has taken a markedly different view as to the applicability of the provisions set forth in a retainer agreement to the adversarial spouse. In the Second Department, the failure to substantially comply with the retainer requirements set forth in 22 NYCRR 1400 will preclude an attorney's recovery of a legal fee from his or her client, "or from the adversary spouse." See Montoya v. Montoya, 143 AD3d 865 (2d Dept. 2016); See also, Wagman v. Wagman, 8 AD3d 263 (2d Dept. 2004); Vitale v. Vitale, 112 AD3d 614 (2d Dept. 2013). The Appellate Division has explained the reasoning behind thisruling by holding that "since the plaintiff's counsel was precluded from seeking unpaid fees from the plaintiff, the plaintiff's spouse may not be required to pay such fees." See Rosado v. Rosado, 100 AD3d 856 (2d Dept. 2012). This Court finds that while the facts of the cases cited above are different, the reasoning is equally applicable to the issue presently before this Court.

Husband has not argued that Wife's counsel is not in compliance with the rules required for a matrimonial retainer. However, following the Rosado logic, Husband argues that since plaintiff's counsel is precluded from ever seeking more than $10,000 from Wife, that he cannot be required to pay more than that amount, as the protections of the retainer apply equally to him in the Second Department. This Court agrees and finds that clauses of Wife's retainer agreement apply to Husband, so long as Husband is being asked to contribute to the counsel fees owed under that retainer.

Wife's attorney argues in the alternative, that the Court should grant legal fees to Wife under the spirt of DRL §237 because of "public policy concerns." Wife's attorney argues that non-monied matrimonial litigants would be somehow hindered in acquiring representation if they could not seek counsel fees from the monied spouse in a matrimonial proceeding. (Tr. 9/29/16 pgs. 10-11). While this argument effectively sets forth part of the reasoning behind DRL §237, it is not persuasive in the unique circumstance before this Court. Husband is not arguing that he cannot be compelled to pay Wife's counsel fees. In fact, he has already paid $11,500 to Wife's attorney. Husband simply argues that he cannot be forced to pay a fee in excess of what Wife would ever have to pay under the retainer. Therefore, a ruling agreeing with Husband does affect the reasoning behind, or purpose of, DRL §237.

It is well settled law that the main purpose behind DRL §237 is to level the playing field between the monied spouse and the non-monied spouse. See Kaufman v. Kaufman, 131 AD3d 939 (2d Dept. 2015). "The courts are to see to it that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigants wallet." Saunders v. Guberman, 130 AD3d 510 (1st Dept. 2015).

Contrary to Wife's counsel's public policy argument, Wife effectively leveled the playing field the minute she signed the retainer agreement. Wife obtained a competent trial attorney for the sum of $10,000, no matter how difficult, or lengthy the litigation became. Husband, on the other hand, has been required to pay his attorney an hourly rate during the course of this proceeding, without the benefit of a cap. Thus, if anyone was at a financial disadvantage when it came to the issue of counsel fees, it was Husband, not Wife.
Moreover, the Court finds thatpublic policy also favors "predictably and clarity" in regard to contracts, especially matrimonial retainers. See Sport Rock Int'l v. Am. Cas. Co. of Reading, 65 AD3d 12 (1st Dept. 2009); See also, Moran v. Erk, 11 NY3d 452 (2008). Here, Husband was entitled to rely upon a fair and usual reading of Wife's retainer agreement. Upon reading that agreement it would be fair for him to conclude that since his Wife was not required to pay more than $10,000, and since the retainer did not contain a provision authorizing Wife's attorney to seek fees in excess of the cap (from either spouse), that he would not have to pay any more than $10,000.

For the reasons set forth above, and after careful consideration of the arguments raised by Wife and Husband, the Court finds that Husband was entitled to rely upon the aspect of Wife's retainer that limited her counsel fee exposure in this matter. As Wife could not be charged more than $10,000, it would be inequitable to require Husband to pay her attorney more than thatcontracted for sum. See Mulcahy v. Mulcahy, 285 AD2d 587 (2d Dept. 2001); See also, Wagman v. Wagman, 8 AD3d 263 (2d Dept. 2004); Bentz v. Bentz, 71 AD3d 931 (2d Dept. 2010). As it is undisputed that Husband has already paid the sum of $11,500 to Wife's counsel, Wife's application for a final award of counsel fees is hereby denied."

Thursday, October 12, 2017

Wednesday, October 11, 2017

SETTING ASIDE A STIPULATION - A MUTUAL MISTAKE?



Although this case involves the setting aside of a stipulation in a matrimonial setting, the rules will apply to all litigations in which a stipulation is entered into and perhaps to all contracts. McClorey v McClorey, 2017 NY Slip Op 06438, Decided on September 13, 2017, Appellate Division, Second Department:

"The parties were divorced by a judgment dated December 5, 2013, which incorporated the terms of a separation agreement between the parties (hereinafter the separation agreement). The plaintiff subsequently commenced this action, inter alia, to recover damages for the defendant's alleged breach of the agreement. The parties thereafter appeared in open court, and the defendant offered to transfer to the plaintiff a life insurance policy in full settlement of the action. When asked by the court, the defendant unequivocally stated that the cash surrender value of the policy was the sum of $78,000. The plaintiff accepted the offer, and the parties placed a stipulation of settlement on the record in open court, during which the plaintiff indicated that she would settle all her claims and discontinue the action in reliance upon her receipt of the insurance policy with a cash surrender value of at least $78,000, as represented by the defendant. The parties and their counsel confirmed their acceptance of the terms of the stipulation before the court, and a judgment dated February 22, 2016, was entered upon the stipulation. The judgment recited that the defendant was obligated to transfer the policy, which "shall have a cash surrender balance of at least $78,000," in settlement of the action.

Thereafter, the defendant moved to vacate the stipulation and to amend or vacate the judgment entered thereon, claiming that they were the product of mistake since the cash surrender value of the policy was actually only $39,000, rather than $78,000. The plaintiff cross-moved to enforce the terms of the stipulation and judgment, and to direct the defendant to pay her any difference between the policy's actual cash surrender value and the cash surrender value represented by the defendant at the time of the stipulation. The Supreme Court denied the defendant's motion and granted the plaintiff's cross motion.
"Stipulations of settlement are favored by the courts and not lightly cast aside" (Hallock v State of New York, 64 NY2d 224, 230; see Matter of Galasso, 35 NY2d 319, 321). This is all the more so in the case of "open court" stipulations (Matter of Dolgin Eldert Corp., 31 NY2d 1, 10) pursuant to CPLR 2104, where strict enforcement "not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process" (Hallock v State of New York, 64 NY2d at 230). "Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation" (id.; see Libert v Libert, 78 AD3d 790, 791; Matter of Marquez, 299 AD2d 551, 552; Gage v Jay Bee Photographers, 222 AD2d 648).

Here, the defendant failed to come forward with record evidence to support his alternative assertions that the clear and unambiguous stipulation was the product of mutual mistake (see Yakobowicz v Yakobowicz, 142 AD3d 996, 997-998; Book v Book, 58 AD3d 781, 783; Hannigan v Hannigan, 50 AD3d 957, 958; Vermilyea v Vermilyea, 224 AD2d 759, 760-761), or of a unilateral mistake induced by a fraudulent misrepresentation by the plaintiff (see Yakobowicz v Yakobowicz, 142 AD3d at 997-998; Rosin v Weinberg, 107 AD3d 682, 683-684; Matter of Toledano v Eliyahu, 102 AD3d 879, 880; Portnoy v Allstate Indem. Co., 82 AD3d 1196, 1198; Matter of Marquez, 299 AD2d at 552)."

Tuesday, October 10, 2017

UNEMPLOYMENT INSURANCE - BROKER, INDEPENDENT CONTRACTOR, EMPLOYEE



MATTER OF CUSHMAN & WAKEFIELD, INC. v. Commissioner of Labor, 2017 NY Slip Op 7022 - NY: Appellate Div., 3rd Dept. 2017:

...."With regard to the Board's finding that an employment relationship existed between Cushman & Wakefield and its licensed real estate brokers, "[w]hether an employee-employer relationship exists is a factual question to be resolved by the Board and we will not disturb its determination when it is supported by substantial evidence in the record" (Matter of Jennings [American Delivery Solution, Inc.-Commissioner of Labor], 125 AD3d 1152, 1152 [2015] [internal quotation marks and citations omitted]; accord Matter of Williams [Summit Health, Inc.-Commissioner of Labor], 146 AD3d 1210, 1210 [2017]). In the context of an unemployment insurance appeal, "substantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably — probatively and logically" (Matter of Yoga Vida NYC, Inc. [Commissioner of Labor], 28 NY3d 1013, 1015 [2016] [internal quotation marks and citation omitted]; see Matter of Mitchell [The Nation Co. Ltd. Partners-Commissioner of Labor], 145 AD3d 1404, 1406 [2016]). "Although no single factor is determinative, the relevant inquiry is whether the purported employer exercised control over the results produced or the means used to achieve those results, with control over the latter being the more important factor" (Matter of Dwyer [Nassau Regional Off-Track Corp.-Commissioner of Labor], 138 AD3d 1369, 1370 [2016]; accord Matter of Burgess [Attack! Mktg., LLC-Commissioner of Labor], 145 AD3d 1282, 1283 [2016]).

Cushman & Wakefield recruits experienced real estate brokers to provide real estate services to its clients, and, prior to retaining those brokers, it conducts a criminal background check. Cushman & Wakefield requires the brokers that it retains to then execute a written broker-salesperson agreement, which governs their relationship[1]. Pursuant to the agreement, Cushman & Wakefield provided its brokers with an office, various equipment — including a desk, telephone, stationary and business cards bearing the company's name — and secretarial and other support services deemed by Cushman & Wakefield to facilitate the brokers' transactional work. The agreement also specified that Cushman & Wakefield would furnish the brokers with advice, information and assistance that it deemed necessary for the brokers' assigned real estate activities and required the brokers to follow its written policies and procedures. Cushman & Wakefield also provided its brokers with fringe medical and dental benefits and reported these benefits as taxable income for the brokers and retained the right, at any time and in its sole discretion, to modify these benefits.

The agreement required brokers to faithfully devote their full business time and best efforts to aid and assist Cushman & Wakefield with the transaction of its business and, through the performance of their services, to promote the business and reputation of Cushman & Wakefield. To this end, Cushman & Wakefield reserved the right to direct the methods, techniques and procedures employed by the brokers. Significantly, the agreement prohibited the brokers from collecting or receiving any independent compensation for real estate services not performed in their capacity as a Cushman & Wakefield broker. Nor were the brokers permitted, without prior written consent from Cushman & Wakefield, to serve as a broker for any real estate transaction not related to Cushman & Wakefield's business. With regard to the brokers' compensation, which included the right to draw on commissions, the brokers were paid a commission according to a schedule of compensation established by Cushman & Wakefield and subject to modification in its sole discretion. Cushman & Wakefield agreed to provide the broker with a "guaranteed draw" of $35,000 per annum, payable semimonthly in equal installments, in the event that the brokers' commissions were less than that guaranteed draw amount.

In addition, Cushman & Wakefield had the sole discretion to determine the commission or fee charged to a client when a real estate transaction was completed, and the brokers were required to use only real estate forms approved by Cushman & Wakefield. Cushman & Wakefield reimbursed brokers for certain travel costs and professional expenses, including their real estate brokers' license application and renewal fees as well as half of any membership dues in a local real estate board for brokers. The agreement also contained a noncompete clause prohibiting the brokers from soliciting Cushman & Wakefield's clients for one year after their employment with Cushman & Wakefield came to an end. In view of the foregoing, and although there is evidence in the record that would support a contrary conclusion, we find that the Board's decision that Cushman & Wakefield exercised sufficient control over its licensed real estate brokers and those similarly situated so as to establish an employment relationship is supported by substantial evidence, and it will not be disturbed (see Matter of Link [Cantor & Pecorella, Inc.-Commissioner of Labor], 153 AD3d 1061, 1063 [2017]; Matter of Atac [Fashion Realty Group-Commissioner of Labor], 265 AD2d 777, 777 [1999]; Matter of Feldstein [Feathered Nest-Commissioner of Labor], 253 AD2d 992, 993 [1998]; compare Matter of 12 Cornelia St. [Ross], 56 NY2d 895, 897-898 [1982]; Matter of Spielberger [Commissioner of Labor], 122 AD3d 998, 999-1000 [2014])."

Thursday, October 5, 2017

NASSAU COUNTY MATRIMONIAL MOTION FEES



According to an email received today:

"Please be advised that, effective immediately, the Clerk at the Matrimonial Center can no longer accept payment of any kind, including for motion fees.  All fees need to be paid at the county clerk. 


Jennifer Rosenkrantz
Chair, Matrimonial Law Committee NCBA"

Wednesday, October 4, 2017

WHEN ATTORNEYS COMMIT FELONIES



Disbarment will occur on the date of conviction or plea. Matter of Butcher, Supreme Court, Appellate Division Third Judicial Department Decided and Entered: August 31, 2017,  D-169-17:

"Respondent was automatically disbarred and ceased to be an attorney by operation of law in April 2017 when he entered his guilty plea to a felony, which, for attorney discipline purposes, served as the equivalent of a conviction (see Judiciary Law § 90 [4]; Matter of Tendler, 131 AD3d 1301, 1302 [2015]; Matter of Montague, 130 AD3d 1297, 1298 [2015]; Matter of Sanderson, 119 AD3d 1318, 1318 [2014]).  Accordingly, the motion by AGC to strike respondent's name from the roll of attorneys is a formality that merely confirms respondent's disbarment (see Matter of Tendler, 131 AD3d at 1302; Matter of Brunet, 106 AD3d 1443, 1443 [2013]).  Given these circumstances, we grant AGC's motion and strike respondent's name from the roll of attorneys nunc pro tunc to April 3, 2017."

Tuesday, October 3, 2017

REAL ESTATE CONTRACTS - SPECIFIC PERFORMANCE ACTION



Many times, a purchaser in a contract of sale will ask, or insist, that it be entitled to bring an action to specifically enforce the contract should the seller fail to close.

Grunbaum v Nicole Brittany, Ltd., 2017 NY Slip Op 06638, Decided on September 27, 2017, Appellate Division, Second Department:

"In a contract dated December 30, 2003, the defendant, Nicole Brittany, Ltd. (hereinafter NBL), agreed to sell real property located in Brooklyn to the plaintiff. The closing did not occur pursuant to the terms of the contract. In August 2007, the plaintiff commenced this action against NBL for specific performance of the contract of sale. Subsequently, NBL moved to dismiss the complaint, and the plaintiff cross-moved for summary judgment on the complaint in January 2015. In an order dated July 30, 2015, upon a decision dated April 17, 2015, the Supreme Court denied NBL's motions to dismiss the complaint and granted the plaintiff's cross motion for summary judgment on the complaint. NBL appeals from so much of the order as granted the plaintiff's cross motion for summary judgment on the complaint.

"To prevail on a cause of action for specific performance of a contract for the sale of real property, a plaintiff purchaser must establish that it substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations, that the vendor was able to convey the property, and that there was no adequate remedy at law" (1107 Putnam, LLC v Beulah Church of God in Christ Jesus of the Apostolic Faith, Inc., 152 AD3d 474; see ADC Orange, Inc. v Coyote Acres, Inc., 7 NY3d 484; Cipriano v Glen Cove Lodge #1458, B.P.O.E., 1 NY3d 53; E & D Group, LLC v Vialet, 134 AD3d 981; Johnson v Phelan, 281 AD2d 394, 395). In moving for summary judgment on a complaint seeking specific performance of a contract, the plaintiff purchaser must submit evidence demonstrating financial ability to purchase the property in order to demonstrate that it was ready, willing, and able to purchase such property (see Kaygreen Realty Co., LLC v IG Second Generation Partners, L.P., 78 AD3d 1010, 1015). In the absence of such evidence, a plaintiff purchaser's motion for summary judgment in its favor on a cause of action for specific performance should be denied due to the plaintiff purchaser's failure to meet its initial burden (see id. at 1015; Ferrone v Tupper, 304 AD2d 524, 525; Goller Place Corp. v Cacase, 251 AD2d 287, 288; cf. Madison Equities, LLC v MZ Mgt. Corp., 17 AD3d 639, 640). "When a purchaser submits no documentation or other proof to substantiate that it had the funds necessary to purchase the property, it cannot prove, as a matter of law, that it was ready, willing, and able to close" (Fridman v Kucher, 34 AD3d 726, 728; see Internet Homes, Inc. v Vitulli, 8 AD3d 438, 439; Johnson v Phelan, 281 AD2d at 395).

Here, the plaintiff failed to establish, prima facie, that he was ready, willing, and able to purchase the subject property, since he did not submit any evidence demonstrating his financial ability to close the transaction (see New York Tile Wholesale Corp. v Thomas Fatato Realty Corp., 115 AD3d 829, 832; Kaygreen Realty Co., LLC v IG Second Generation Partners, L.P., 78 AD3d at 1015; Dixon v Malouf, 70 AD3d 763, 764). Contrary to the plaintiff's contention, the issue of whether he demonstrated, through the submission of financial evidence, that he was ready, willing, and able to purchase the property is properly before this Court, as the plaintiff was required to submit such proof to meet his initial burden of establishing his prima facie entitlement to summary judgment directing specific performance of the contract of sale (see Kaygreen Realty Co., LLC v IG Second Generation Partners, L.P., 78 AD3d at 1015; Fridman v Kucher, 34 AD3d at 728; see generally Zuckerman v City of New York, 49 NY2d 557, 562; Fairlane Fin. Corp. v Longspaugh, 144 AD3d 858, 859).

Accordingly, the Supreme Court should have denied the plaintiff's cross motion for summary judgment on the complaint, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Dixon v Malouf, 70 AD3d at 764)."

Monday, October 2, 2017

DIVORCE - AWARDING ATTORNEY FEES IN SIMPLE DIVORCE WITH NIO REAL LEGAL ISSUES



DC v. PC, 2017 NY Slip Op 50278 - NY: Supreme Court 2017:

" ........

Plaintiff seeks payment of her attorney fees. Defendant opposes Plaintiff's application.

DRL § 237 provides that in an action for a divorce the court may award counsel fees "to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and the respective parties." See, Prichep v Prichep, 52 AD3d 61 [2d Dept 2008]. Indigence is not a prerequisite to an award of counsel fees pursuant to DRL § 237. See, DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987].In considering an application for an award of counsel fees, the court shall consider the "equities and circumstances" of the case before it (Basile v Basile, 122 AD2d 759 [2d Dept 1986]).

Plaintiff testified that she is employed by the New York City Board of Education. As part of her employment, Plaintiff is a member of DC37 Union Legal Service and is eligible to receive legal representation from the Union. However, Plaintiff testified that she sought outside counsel because she understood that her spouse would pay her legal fees since he created the reason for her filing this action. Plaintiff has not shown that she was denied representation from her Union. Distressing is Plaintiff's attorney summation wherein she accused Attorneys who work for Union Legal Services as providing a time cap representation for clients. Plaintiff's Attorney assertion is an insult to the hard-working attorneys who work for Union employees. Plaintiff's attorney had cited no fact, law or statute to support this brazen discrediting accusation. In this basic garden variety matrimonial case, Plaintiff's Attorney bill is more than $31,848.67 as of the date of trial.

In a pendente lite order, Plaintiff's application for attorney fees was granted in the sum of $10,000.00 in the Order dated May 9, 2014. Since that Order, Defendant had to take out a loan to pay Plaintiff's attorneys' fee and his attorneys' fee. Given his limited financial circumstances, Defendant was unable to continue with his attorney and proceeded to trial unrepresented. Now, Plaintiff has incurred an additional $21,848.67 in attorney fees as of the date of trial.

There is no reasonable logic for incurring these astronomical attorney fees for this garden variety case. The only unresolved issue is Plaintiff's application for maintenance. Both parties are W2 wage earners. Plaintiff's attorney proceeded on a witch hunt for documents that Defendant was not disputing or seeking reimbursement, such as credit card statements, unnecessary subpoenas for bank statements and discovery demands. Assuming Plaintiff was entitled to attorney fees as the less monied spouse, the award of $10,000.00 was more than sufficient for this moderate middle class family with no significant legal issues.

Plaintiff had an ability to have legal representation through her employment Union but chose not to avail that benefit. DRL § 237 provides a remedy to level the playing field of a spouse that has no ability to obtain legal representation to defend themselves in a matrimonial action. It does not give an option to seek an attorney for the sole purpose to sanction a miscreant spouse as Plaintiff believes or was incorrectly advised.

Based on all of the above and circumstances in this case, the award of $10,000.00 is reallocated to Defendant which shall be deducted from Plaintiff's proceeds from the marital residence.Plaintiff's application for additional attorneys' fees is denied in its entirety."

Thursday, September 28, 2017

SPOUSAL MAINTENANCE INCLUDED IN INCOME FOR CHILD SUPPORT PURPOSES



Was this a drafting error or the actual intention of the parties? Note that the remand appears to require a hearing on the intention of the parties as the Supreme Court's determination was "as a matter of law".

Toscano v Toscano, 2017 NY Slip Op 06674, Decided on September 27, 2017, Appellate Division, Second Department:

"The parties, who have two children together, entered into a separation agreement dated September 9, 2011, which was incorporated, but not merged, into their subsequent judgment of divorce. In relevant part, the agreement provided that the plaintiff (hereinafter the mother) would pay the defendant (hereinafter the father) $4,000 per month in spousal support for 36 months, at which point the mother's spousal support obligation would decrease to $2,083.33 per month for 24 months, and then cease altogether.

The agreement also provided that, given the father's lack of any income in the year preceding separation, his child support obligation would be set at $25 per month. However, the agreement further provided that, upon the happening of any "adjustment circumstances" outlined in the agreement, the amount of the father's child support obligation would be adjusted using the statutory formula set forth in the Child Support Standards Act. Those circumstances were defined as: "(i) December 31st of any year in which the Father's earned income exceeds $25,000; (ii) December 31st of any year in which the Father's gross income from all sources exceeds $45,000; (iii) The date on which each child becomes emancipated." The agreement noted, however, that a court could modify any order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of (i) a substantial change of circumstances; (ii) three years having passed since the order was entered, last modified, or adjusted; or (iii) a change in either party's gross income by 15% or more since the order was entered, last modified, or adjusted.

By an order to show cause dated January 13, 2015, the mother moved, inter alia, to modify the father's child support obligation. In her supporting affidavit, the mother averred that, during the 2012 calendar year, she paid $48,000 in spousal support to the father, and thus, for that year, the father's "gross income from all sources" exceeded $45,000, triggering a mandatory adjustment of the father's basic child support obligation. The father, in opposition, contended that there was no indication in the agreement that the spousal support paid to him was intended to be included in the calculation of his child support obligation and that it was illogical that he would accept spousal support from the mother, only to immediately pay her back with her own money.

The Supreme Court concluded that the parties' agreement did not intend for child support to be paid back to the mother by the father from the spousal support she paid to him. The court stated that, if such was the parties' intention, the agreement would have clearly so stated, but that the court could not now construe the agreement as providing that the spousal support was to be considered income for child support purposes. In light of this determination, the court denied that branch of the mother's motion which was to modify the father's child support obligation. The mother appeals from so much of the order as denied that branch of her motion. We reverse the order insofar as appealed from.

A stipulation of settlement entered into by parties to a divorce proceeding constitutes a contract between them subject to the principles of contract interpretation (see Matter of Miller v Fitzpatrick, 147 AD3d 845; Ayers v Ayers, 92 AD3d 623, 624; De Luca v De Luca, 300 AD2d 342). Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used (see Slatt v Slatt, 64 NY2d 966, 967; Matter of Miller v Fitzpatrick, 147 AD3d at 847; Ayers v Ayers, 92 AD3d at 624). "A court may not write into a contract conditions the parties did not insert by adding or excising terms under the guise of construction, and it may not construe the language in such a way as would distort the contract's apparent meaning" (Cohen-Davidson v Davidson, 291 AD2d 474, 475; see Matter of Scalabrini v Scalabrini, 242 AD2d 725, 726).

The Supreme Court erred in concluding that the parties did not intend to include the spousal support paid by the mother to the father as part of the father's gross income from all sources used to determine whether his child support obligation should be modified. The use of the terms "gross income from all sources," each of which have a clear and plain meaning in and of themselves, coupled with the fact that the agreement distinguished between "earned income" and "gross income from all sources," established that the parties contemplated a clear distinction between income the father earned and monies the father obtained from any sources, including spousal support, to support himself. Moreover, by concluding as it did, the court failed to acknowledge that the agreement specifically stated that the father would be required to report the spousal support as income on his tax returns, which, in fact, he did. The Child Support Standards Act requires the court to establish the parties' basic child support obligation as a function of the "gross (total) income" that is, or should have been, reflected on the most recently filed income tax return (Family Ct Act § 413[1][b][5][i]; see Matter of Krukenkamp v Krukenkamp, 54 AD3d 345; Miller v Miller, 18 AD3d 629, 631; Bains v Bains, 308 AD2d 557, 559; McNally v McNally, 251 AD2d 302, 303). Thus, the parties knew or should have known that the spousal support would be considered income to the father by any court called upon to modify his child support obligation. Ultimately, given the precise language utilized in the agreement, the court erred in concluding that the parties did not intend to include the father's spousal support in his gross income from all sources as a matter of law.

Accordingly, the order must reversed insofar as appealed from and the matter remitted to the Supreme Court, Suffolk County, for a new determination of that branch of the mother's motion which was to modify the father's child support obligation that includes spousal support received by the father in the calculation of his gross income from all sources."

Wednesday, September 27, 2017

HOME IMPROVEMENT CONTRACTORS - NO SIGNED WRITTEN AGREEMENT



HOME CONSTRUCTION CORP. v. BEAURY, 2017 NY Slip Op 2628 - NY: Appellate Div., 2nd Dept. 2017 where plaintiff claimed the total cost of the project, including additions and credits, was $1,068,720, of which $219,850 remained unpaid:

"General Business Law § 771 sets forth a number of requirements for home improvement contracts, including that the contract be evidenced by a writing signed by all the parties to the contract (see General Business Law § 771; Johnson v Robertson, 131 AD3d 670, 672; Evans-Freke v Showcase Contr. Corp., 85 AD3d 961, 962). Generally, the absence of an enforceable written agreement between the parties precludes a contractor from recovering for breach of a home improvement contract (see F & M Gen. Contr. v Oncel, 132 AD3d 946, 948; Johnson v Robertson, 131 AD3d at 672; Frank v Feiss, 266 AD2d 825, 826; Mindich Devs. v Milstein, 227 AD2d 536, 536-537).

Although a contractor cannot enforce a contract that fails to comply with General Business Law § 771, a contractor may seek to recover based on the equitable theory of quantum meruit (see Johnson v Robertson, 131 AD3d at 672; Evans-Freke v Showcase Contr. Corp., 85 AD3d at 962; Frank v Feiss, 266 AD2d at 826; Mindich Devs. v Milstein, 227 AD2d at 537). "The elements of a cause of action sounding in quantum meruit are (1) performance of services in good faith, (2) acceptance of services by the person to whom they are rendered, (3) expectation of compensation therefor, and (4) reasonable value of the services rendered" (Evans-Freke v Showcase Contr. Corp., 85 AD3d at 962; see Johnson v Robertson, 131 AD3d at 672).

Although an unenforceable writing may provide evidence of the value of services rendered in quantum meruit (see Frank v Feiss, 266 AD2d at 826; Taylor & Jennings v Bellino Bros. Constr. Co., 106 AD2d 779, 780; see also Evans-Freke v Showcase Contr. Corp., 85 AD3d at 963), here, the record is devoid of evidence which would establish the reasonable value of the services Home Construction may have provided to the defendants (see Michaels v Byung Keun Song, 138 AD3d at 1075; see also Crown Constr. Bldrs. & Project Mgrs. Corp. v Chavez, 130 AD3d 969, 971-972; Geraldi v Melamid, 212 AD2d 575, 576). Neither the unsigned written proposal nor the testimony of Malo established the value of any services undertaken by Home Construction, or that the value of such services exceeded the amounts paid by the defendants. Accordingly, the Supreme Court properly dismissed Home Construction's cause of action to recover in quantum meruit for lack of proof (see Michaels v Byung Keun Song, 138 AD3d at 1075).

In contrast, the defendants, on their counterclaim, offered the testimony of experts regarding the cost they expended in completing or repairing roofing, flooring, brickwork, and other aspects of the project as set forth in the architectural plans. The Supreme Court properly concluded that the defendants were entitled to be compensated for the cost of completion of the construction work and the correction of defects in Home Construction's work, and the proper measure of damages is the fair and reasonable market price for correcting the defective installation or completing the construction (see Bellizzi v Huntley Estates, 3 NY2d 112, 115; Hodges v Cusanno, 94 AD3d 1168, 1169; Kaufman v Le Curt Constr. Corp., 196 AD2d 577, 578)."

Tuesday, September 19, 2017

SALARY HISTORY AND JOB APPLICATIONS IN NYC



Effective November 1, Section 8-107 of the administrative code of the city of New York is amended by adding a new subdivision 25 prohibiting employers from inquiring about or relying on a prospective employee's salary history. This amendment is designed to prohibit employers from inquiring about a prospective employee’s salary history during all stages of the employment process. In the event that an employer is already aware of a prospective employee’s salary history, this amendment would prohibit reliance on that information in the determination of salary. According to the sponsors of this legislation, when employers rely on salary histories to determine compensation, they perpetuate the gender wage gap. It is hoped that adopting measures like this amendment will reduce the likelihood that women will be prejudiced by prior salary levels and help break the cycle of gender pay inequity.

The new law can be found here http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2813507&GUID=938399E5-6608-42F5-9C83-9D2665D9496F

Monday, September 18, 2017

PRO BONO WORK IN LONG ISLAND



This morning, I will be a pro bono volunteer in landlord/tenant court in Nassau County. 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.

For more information, see http://nslawservices.org/wp/?page_id=392

Friday, September 15, 2017

NEW RULES - ACCESS TO HEALTH RECORDS



On September 13, Governor Cuomo signed into law legislation amending the public health law and mental hygiene law to prohibit a charge from being imposed for providing, releasing, or delivering medical records that are used to support the application of a government benefit or program.

As per the Senate  Bill:

"JUSTIFICATION : State law guarantees access to medical records for inspection or copying and provides a fee waiver for patients who cannot afford to pay. All too often, in practice, this does not occur. Complicated process for establishing eligibility and the outsourcing of copying services means that eligible low income New Yorkers are often required to pay for access to their own medical records in contravention of the law. Individuals applying for Social Security disability benefits (including Supplemental Security Income or SSI) need medical records to document their claims. These claimants cannot afford to pay the statutory rate of seventy five cents per page for these records, which often number in the 100s of pages. As a result, low income disabled individuals' ability to access federal disability benefits is consistently undermined. Current law does provide free access; however, the fee waiver is routinely ignored and is poorly enforced. Patients are denied free access for reasons such as medical providers do not tell patients that the fee may be waived, provider forms for requesting copies do not include fee waiver sections, complicated processes for determining patient indegence, and outsourcing of copying to companies that do not understand or enforce fee waiver protections."

S6078 - Details

See Assembly Version of this Bill:
A7842
Law Section:
Public Health Law
Laws Affected:
Amd §§17 & 18, Pub Health L; amd §33.16, Ment Hyg L

Thursday, September 14, 2017

UNEMPLOYMENT INSURANCE - A DOCILE EMPLOYEE?




Mailed and Filed: AUGUST 22, 2017, IN THE MATTER OF: Appeal Board No. 596410:

"The claimant worked for a hospital for over 18 years, ending in the position of unit receptionist in the Emergency Room. She worked overnight, from 11:00 PM to 7:00 AM. On March 18, 2016, the claimant was suspended for five days based on an incident in which, according to the "Employee Warning - Disciplinary Notice," the claimant yelled at a coworker over the phone and subsequently stormed into the coworker's area with a pen in her hand which the claimant kept moving in and out of the coworker's face as the claimant yelled at her, all of which was observable by at least one patient. The Employee Warning - Disciplinary Notice stated, "Any repeat will result in progressive discipline up to termination."

On January 8, 2017, the phone at the Emergency Room desk rang after the end of the
claimant's shift. The head nurse for the incoming shift asked the claimant why the claimant was not answering the phone. The claimant answered that she had given report already. In the hospital context, the claimant's answer meant that she had reported all updates to the incoming unit receptionist and she was now off duty. The head nurse then said, "then where are my URs?" A UR is a unit receptionist. Irritated by what she perceived as the head nurse's angry tone, the claimant responded, "I don't know and I don't care." Based on this final incident, the employer discharged the claimant for disruptive behavior after a prior warning. Her last day of work was January 31, 2017.

OPINION: The credible evidence establishes that the claimant was discharged based on the claimant's response of "I don't know and I don't care" after the claimant was spoken to-after the end of her shift-in a manner she perceived as rude. While the claimant's response may not have been entirely appropriate, a worker is not required always to be docile (see Matter of Raven, 40 AD2d 128 [3rd Dept 1972]). Further, the final incident is not comparable to the incident over which the claimant was warned. On January 8, 2017, the claimant did not "storm" anywhere, invade anyone's personal space, or raise her voice, nor is there any allegation that the claimant's single inappropriate comment was overheard by any patient. These facts establish that the claimant's statement does not rise to the level of misconduct for purposes of the Unemployment Insurance Law. The cases cited by the employer on appeal do not compel a different result. The claimant's comment was only minimally detrimental to the employer's interests, and the warning that the employer relies upon is distinguishable from the final incident."

Friday, September 8, 2017

NO "AID-IN-DYING" IN NEW YORK



Sara Myers et al. v. Eric Schneiderman et al., NYS Court of Appeals, Opinion 77, September 7, 2017:

"Plaintiffs ask us to declare a constitutional right to "aid-in-dying," which they define (and we refer to herein) as the right of a mentally competent and terminally ill person to obtain a prescription for a lethal dosage of drugs from a physician, to be taken at some point to cause death.  Although New York has long recognized a competent adult's right to forgo life-saving medical care, we reject plaintiffs' argument that an individual has a fundamental constitutional right to aid-in-dying as they define it.  We also reject plaintiffs' assertion that the State's prohibition on assisted suicide is not rationally related to legitimate state interests."

The full decision can be found here: http://www.nycourts.gov/ctapps/Decisions/2017/Sep17/77opn17-Decision.pdf

Thursday, September 7, 2017

NYSBA V. AVVO



The New York State Bar Association, Committee on Professional Ethics, issued Opinion 1132 on August 8, 2017 stating that a lawyer may not pay the current marketing fee to participate in Avvo Legal Services, because the fee includes an improper payment for a recommendation in violation of Rule 7.2(a) of the Rules of Professional Conduct.

The full opinion can be found here: http://www.nysba.org/EthicsOpinion1132/

Avvo's response of August 15 , 2017 can be found here:

http://lawyernomics.avvo.com/avvo-news/avvos-response-new-york-state-bar-associations-advisory-opinion.html

Wednesday, September 6, 2017

CAN AN INHERITANCE CHANGE A MAINTENANCE ORDER?



Schwartz v Schwartz 2017 NY Slip Op 06392 Decided on August 30, 2017 Appellate Division, Second Department:

"The parties divorced in 2008. Pursuant to the judgment of divorce, the defendant was required to pay to the plaintiff maintenance in the sum of $7,500 per month for the first 60 months, and $3,000 per month thereafter, until the death of either party or until the plaintiff remarried or held herself out as remarried. The defendant was further required to procure and maintain $750,000 of life insurance, naming the plaintiff as the sole and irrevocable beneficiary thereof.

In January 2015, the defendant moved to terminate his maintenance and life insurance obligations on the basis that the plaintiff's father had recently died, that the plaintiff was the only beneficiary of his estate, and that the late father's estate and assets were worth $15 to $20 million. The defendant contended that the plaintiff's large inheritance constituted a substantial change in circumstances which made her self-supporting. .....

........

"Upon application by either party, the court may annul or modify any prior order or judgment made after trial as to maintenance, . . . upon a showing of a substantial change in circumstances" (Domestic Relations Law § 236[B][9][b][1]). "The party seeking the modification of a maintenance award has the burden of establishing the existence of the change in circumstances that warrants the modification" (Noren v Babus, 144 AD3d 762, 764 [internal quotation marks omitted]; see Donnelly v Donnelly, 199 AD2d 237, 237). The inheritance of significant funds can constitute a substantial change of circumstances supporting a request to modify a party's maintenance obligation (see Matter of Greco v Greco, 251 AD2d 977, 978; see generally Dowdle v Dowdle, 114 AD2d 699, 700). "On a motion for downward modification of child support and maintenance obligations, an evidentiary hearing is necessary only where the proof submitted by the movant is sufficient to show the existence of a genuine issue of fact" (Reback v Reback, 93 AD3d 652, 652-653; see Ritchey v Ritchey, 82 AD3d 948, 949; David v David, 54 AD3d 714, 715; [*2]D'Alesio v D'Alesio, 300 AD2d 340, 341; Mishrick v Mishrick, 251 AD2d 558, 558; Senzer v Senzer, 132 AD2d 694, 694-695; Nordhauser v Nordhauser, 130 AD2d 561, 562-563).

........"

Tuesday, September 5, 2017

ARE ATTORNEY FEES EXPENSES UNDER CPLR 3220



Saul v Cahan 2017 NY Slip Op 06391 Decided on August 30, 2017 Appellate Division, Second Department:

"...The plaintiff asserted causes of action alleging breach of fiduciary duty, breach of contract, and fraud, among others. In May 2014, Cahan moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against him. Shortly thereafter, on June 20, 2014, Cahan served an offer to liquidate damages pursuant to CPLR 3220. The plaintiff did not accept the offer. By order dated November 7, 2014, the Supreme Court granted Cahan's motion to dismiss the amended complaint insofar as asserted against him. Cahan then moved for an award of attorney's fees and costs pursuant to CPLR 3220. By order dated March 9, 2016, the court granted Cahan's motion to the extent of determining that [*2]Cahan was entitled to attorney's fees in the sum of $15,557.37, plus interest. A money judgment dated March 28, 2016, was entered in favor of Cahan and against Saul in the total sum of $16,697.14. The plaintiff appeals, and we reverse.

In matters of statutory interpretation, the primary consideration is to discern and give effect to the Legislature's intention (see Yatauro v Mangano, 17 NY3d 420, 426; Roberts v Tishman Speyer Props., L.P., 13 NY3d 270, 285-286; Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660). "[T]he text of a provision is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning'" (Matter of Albany Law School v New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 120, quoting Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d at 660; see Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583). An examination of the legislative history is proper "where the language is ambiguous or where a literal construction would lead to absurd or unreasonable consequences that are contrary to the purpose of the enactment" (Matter of Auerbach v Board of Educ. of City School Dist. of City of N.Y., 86 NY2d 198, 204; see New York State Psychiatric Assn., Inc. v New York State Dept. of Health, 19 NY3d 17, 25-26).

Moreover, "under the American Rule as applied to statutory entitlement to attorneys' fees, the [United States] Supreme Court has held that we follow a general practice of not awarding fees to a prevailing party absent explicit statutory authority" (Baker v Health Mgmt. Sys., 98 NY2d 80, 88 [internal quotation marks omitted]; see 214 Wall St. Assoc., LLC v Medical Arts-Huntington Realty, 99 AD3d 988, 990). " New York public policy disfavors any award of attorneys' fees to the prevailing party in a litigation'" (Pickett v 992 Gates Ave. Corp., 114 AD3d 740, 740, quoting Horwitz v 1025 Fifth Ave., Inc., 34 AD3d 248, 249). " Statutes authorizing an award of costs and sanctions are in derogation of common law and, therefore must be strictly construed'" (State Farm Fire & Cas. v Parking Sys. Valet Serv., 85 AD3d 761, 764, quoting Saastomoinen v Pagano, 278 AD2d 218, 218).

CPLR 3220 states:

"At any time not later than ten days before trial, any party against whom a cause of action based upon contract, express or implied, is asserted may serve upon the claimant a written offer to allow judgment to be taken against him for a sum therein specified, with costs then accrued, if the party against whom the claim is asserted fails in his defense. If within ten days thereafter the claimant serves a written notice that he accepts the offer, and damages are awarded to him on the trial, they shall be assessed in the sum specified in the offer. If the offer is not so accepted and the claimant fails to obtain a more favorable judgment, he shall pay the expenses necessarily incurred by the party against whom the claim is asserted, for trying the issue of damages from the time of the offer. The expenses shall be ascertained by the judge or referee before whom the case is tried. An offer under this rule shall not be made known to the jury."


The relevant phrase of CPLR 3220 stating that the claimant "shall pay the expenses necessarily incurred by the party against whom the claim is asserted, for trying the issue of damages from the time of the offer" demonstrates the Legislature's intent that, where the claimant has not accepted the offer, the commencement of a trial is a condition precedent to imposing liability upon the claimant for the opposing party's expenses. This phrase also defines the recoverable expenses as those "necessarily" expended "for trying the issue of damages." CPLR 3220 further provides that those expenses should be determined by the judge "before whom the case is tried." Accordingly, the plain language of CPLR 3220 does not explicitly authorize an award of attorney's fees and costs to a party, such as Cahan, who merely prevailed in seeking dismissal of a cause of action alleging breach of contract. Even if CPLR 3220 could arguably support an implied right to the attorney's fees and costs sought by Cahan, the public policy of the American Rule militates against adoption of that interpretation (see Baker v Health Mgt. Sys., 98 NY2d at 88; 214 Wall St. Assoc., LLC v Medical Arts-Huntington Realty, 99 AD3d at 990)."