Thursday, August 31, 2017


MATTER OF BROWNE v. BOCES, 2017 NY Slip Op 6126 - NY: Appellate Div., 3rd Dept. 2017:

" "[A] case may be reopened following a default upon a showing of good cause if such request is made within a reasonable time" (Matter of Bowe [Southern Tier Home Bldrs. Assn.—Commissioner of Labor], 121 AD3d 1150, 1151 [2014]; see Matter of Hughes [Commissioner of Labor], 136 AD3d 1085, 1086 [2016]). "The decision as to whether to grant an application to reopen a claim will not be disturbed absent abuse of the Board's sound discretion" (Matter of Knott [Commissioner of Labor], 121 AD3d 1154, 1154 [2014]; see Matter of Barto [Commissioner of Labor], 110 AD3d 1418, 1419 [2013]). The record reflects that claimant waited 15 months to apply to reopen her claim. Although she testified that she received the May 2, 2014 default decisions that advised her that she may apply to reopen the decisions within a reasonable time, she admitted that she did not adhere to the portion of the decisions that explained how to apply to reopen the claim. Rather, claimant testified that she spent months contacting the wrong entities seeking information on how to reopen her claim. In our view, the Board did not abuse its discretion in finding that claimant, by waiting 15 months under these circumstances, had not applied to reopen her claim within a reasonable time (see Matter of Hughes [Commissioner of Labor], 136 AD3d at 1086; Matter of Knott [Commissioner of Labor], 121 AD3d at 1154). Accordingly, its decisions will not be disturbed."

Wednesday, August 30, 2017


US Bank N.A. v Ramos, 2017 NY Slip Op 06315, Decided on August 23, 2017, Appellate Division, Second Department:

""Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" (Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589; see Washington Mut. Bank v Huggins, 140 AD3d 858, 859). "Although bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing" (U.S. Bank, N.A. v Tauber, 140 AD3d 1154, 1155 [citation omitted]; see Bank of Am., N.A. v Tobing, 145 AD3d 941, 942; Machovec v Svoboda, 120 AD3d 772, 773).

Here, the affidavits of the plaintiff's process server constituted prima facie evidence that the defendants were properly served pursuant to CPLR 308(2) (see Central Mtge. Co. v Ward, 127 AD3d 803, 803; Roberts v Anka, 45 AD3d 752, 753-754). Contrary to the defendants' contention, their submissions failed to rebut the presumption of proper service arising from the process server's affidavit as to service upon Ramos. While the defendants and a neighbor, in sworn affidavits, denied knowledge of a person named "Alicea Ramos," and asserted that the defendants were the only adults living at the subject property, they did not rebut the sworn allegation of the process server that a person fitting the physical description of "Alicea Ramos" was present at the subject property at the time and accepted service on behalf of Ramos (see Washington Mut. Bank v Huggins, 140 AD3d at 859; Bank of N.Y. v Espejo, 92 AD3d 707, 708; Wells Fargo Bank, N.A. v Christie, 83 AD3d 824, 825; cf. Wachovia Bank, N.A. v Greenberg, 138 AD3d 984, 985). Thus, a hearing to determine the validity of service of process upon Ramos was not warranted.

Medrano, however, demonstrated her entitlement to a hearing on the issue of service. Medrano's sworn denial that she resided at the premises in New Hyde Park where service upon her allegedly was made, combined with evidence supporting such claim, was sufficient to rebut the presumption of proper service (see U.S. Bank, N.A. v Tauber, 140 AD3d at 1155; Central Mtge. Co. v Ward, 127 AD3d at 803-804; Lazarre v Davis, 109 AD3d 968, 969; Goralski v Nadzan, 89 AD3d 801, 801). Inasmuch as neither the evidence submitted by the defendants nor the evidence relied upon by the plaintiff is dispositive on the issue of whether service on Medrano at the address in New Hyde Park was proper under CPLR 308(2), a hearing is warranted. Thus, we remit the matter to the Supreme Court, Nassau County, for a hearing to determine whether Medrano was properly served and, thereafter, for a new determination of those branches of the defendants' motion which were to vacate her default and to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction (see U.S. Bank, N.A. v Tauber, 140 AD3d at 1156; Goralski v Nadzan, 89 AD3d at 802), and, if warranted, a determination of that branch of the plaintiff's cross motion which was pursuant to CPLR 306-b to extend its time to serve Medrano."

Tuesday, August 29, 2017


People v. Gray, 2017 NY Slip Op 27204 - NY: Village Justice Court 2017:

"In addition, the court now holds in a second point of first impression that when a building inspector has made a determination to charge a defendant, that they must provide the defendants with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966) warnings. We are a Local Criminal Court and therefore, the protections provided for individual defendants under our Constitution must apply here.

Police will often withhold the giving of Miranda, supra warnings during the course of an "investigation." Here the People have averred in their supporting papers that evidence outside of the search such as what they obtained online, supra, caused them to conclude that the defendant had violated at least eight Code provisions. Knowing that before going to the home gave them probable cause but it also mandated that they advise the defendant of his rights before recording statements from him.

Today this Village Court provides for two new provisions in the law which will henceforth apply in this Court and hopefully others that may choose to follow this holding. The first part of these new procedures which the Court is deciding for the first time only because they have not presented themselves previously to the best of its knowledge, is that compliance with C.P.L. § 710.30 shall be required as a prerquisite for the admission of any statements by a defendant. Second, when a Building Inspector, finds that he or she is going to issue violations they must give the prospective defendant Miranda, supra, warnings.

Since the People have stated at oral argument that they do not intend to offer any statements of the defendant at trial, except for his consent, these issues as referred to herein are dicta and meant to provide notice that this Court is a Local Criminal Court and as such endeavors to comply with the Criminal Procedure Law of New York as well as the federal and New York State Constitutions."

Monday, August 28, 2017


Volkerick v Volkerick 2017 NY Slip Op 06316 Decided on August 23, 2017 Appellate Division, Second Department:

"The defendant's contention that the Supreme Court erred by imputing an income to him of $130,000 when it calculated the maintenance and child support awards is without merit. " [A] parent's child support obligation is not necessarily determined by his or her current financial condition, but rather by his or her ability to provide support'" (Matter of Solis v Marmolejos, 50 [*2]AD3d 691, 692, quoting Matter of Davis v Davis, 13 AD3d 623, 624). "The court is not bound by a party's actual reported income in applying the basic child support obligation, and instead could use that party's actual earning capacity or impute an amount onto the gross income reported by the party" (Matter of Solis v Marmolejos, 50 AD3d at 692). Here, the record demonstrated that the plaintiff is a high school graduate who has worked part-time as a cashier since 1998, earning $10,000 to $15,000 annually. The defendant is a college graduate who has had many years of experience working as an estimator for various construction companies. From 2005 until 2009, the defendant's annual salary was approximately $130,000. Although the defendant was unemployed for part of 2010, he earned approximately $47,000, which was supplemented by unemployment compensation and withdrawals from retirement accounts, raising his total income for 2010 to $186,582. The defendant worked for most of 2011 and had a yearly income of $130,000 from a combination of earnings and unemployment compensation. The defendant's contention that the amount of income imputed to him should be limited to his earnings from employment as reported on his 2010 tax return is without merit (see Domestic Relations Law § 240[1-b][b][5]). We conclude that the Supreme Court was within its discretion in considering the defendant's employment history and earning capacity and properly imputed an income of $130,000 to the defendant in determining an award of child support (see Fruchter v Fruchter, 29 AD3d 942, 943; Bittner v Bittner, 296 AD2d 516, 517).

Under the circumstances of this case, the Supreme Court also providently exercised its discretion in awarding spousal maintenance to the plaintiff in the sum of $1,500 per month for a period of 4 years. The court limited the duration of the award to a reasonable time to allow the plaintiff to obtain any necessary schooling and training to enable her to be self-supporting and regain self-sufficiency (see O'Brien v O'Brien, 66 NY2d 576, 585; Bains v Bains, 308 AD2d 557, 559). The defendant has failed to establish that the amount or duration of the spousal maintenance award was excessive and, as such, the court's determination will not be disturbed."

Friday, August 25, 2017


On August 21, Governor Cuomo signed into law S2058, an act to amend Subdivision (c) of Rule 4518 of the Civil Practice Law and Rules to simplify the procedures by which hospital records located outside of New York State may be admitted into evidence in civil actions.

According to the bill's sponsors:

"In many kinds of litigation hospital records provide crucial evidence,
either of the harm suffered by the plaintiff or of the events in
dispute. Under existing law, hospital records are admissible into
evidence if either the custodian of the records testifies in court as
to certain specific foundational facts indicating the records'
authenticity and reliability, or if the custodian provides a written
certification setting forth the same foundational requirements.

For a custodian of hospital records located outside of New York,
providing oral testimony can be difficult or impossible. Parties to
litigation therefore rely on written certification to allow records to
be brought into evidence. However, obtaining a written certification
that meets New York's specific procedural requirements can be
problematic, particularly if a custodian of those records is
unfamiliar with New York rules.

This bill will ease these procedural difficulties for all parties to
litigation by allowing hospital records located outside New York to be
certified in accordance with either the existing New York rules, or
the rules of the jurisdiction where the records are located and that a
custodian of records is likely to understand and comply with

Existing New York Statutes, including but not limited to CPLR 4543,
3122 and 3122-a provide an instructive framework for these procedures."

Thursday, August 24, 2017


In Weisberger v Weisberger, 2017 NY Slip Op 06212, Decided on August 16, 2017, Appellate Division, Second Department, the parties divorced after Father was told by Mother that she was gay. There were three children and parties agreed to joint legal custody with Mother having primary residential custody. The stipulation also provided that the  "Parties agree to give the children a Hasidic upbringing in all details, in home or outside of home, compatible with that of their families'. Father shall decide which school the children attend. Mother to insure that the children arrive in school in a timely manner and have all their needs provided." However, after the divorce, Father moved to modify alleging "that the mother had radically changed her lifestyle in a way that conflicted with the parties' religious upbringing clause. Although the father acknowledged that at the time he entered into the stipulation of settlement he expected the mother's future intimate relationships would be with women, he expected her to keep the fact that she was gay a secret and to keep any relationship she had with a woman secret from the children. The father alleged that since the parties had entered into the stipulation of settlement the mother had, among other things, come out publicly as a lesbian, disparaged the basic tenets of Hasidic Judaism in front of the children, allowed the children to wear non-Hasidic clothes, permitted them to violate the Sabbath and kosher dietary laws, and referred to them by names that were not traditionally used in the Hasidic community. The father further alleged that the mother had dressed immodestly, dyed her hair, and permitted a transgender man to reside in her home with the children." The Supreme Court granted Father's motion and Mother appealed.

The Second Department held:

"" Modification of an existing court-sanctioned custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child[ren]'" (Matter of Spencer v Killoran, 147 AD3d 862, 863, quoting Matter of O'Shea v Parker, 116 AD3d 1051, 1051; see Matter of Bodre v Stimatz, 150 AD3d 1228, 1229). "The best interests of the child[ren] must be determined by a review of the totality of the circumstances" (Matter of Preciado v Ireland, 125 AD3d 662, 662; see Eschbach v Eschbach, 56 NY2d 167, 171-172; Matter of Boggio v Boggio, 96 AD3d 834, 835). "Factors to be considered include the quality of the home environment and the parental guidance the custodial parent provides for the child[ren], the ability of each parent to provide for the child[ren]'s emotional and intellectual development, the financial status and ability of each parent to provide for the child[ren], the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child[ren]'s relationship with the other parent" (Mohen v Mohen, 53 AD3d 471, 473 [internal quotation marks omitted]; see Matter of Moran v Cortez, 85 AD3d 795, 796). Additionally, to the extent the mother's sexual orientation was raised at the hearing, we note that courts must remain neutral toward such matters, such that the focus remains on the continued best interests and welfare of the children (see In re Marriage of Black, 188 Wash 2d 114, 130, 392 P3d 1041, 1049-1050; see also Matter of Paul C. v Tracy C., 209 AD2d 955, 956; Anonymous v Anonymous, 120 AD2d 983, 983-984; Guinan v Guinan, 102 AD2d 963, 964; Di Stefano v Di Stefano, 60 AD2d 976, 977).

Since weighing the factors relevant to any custody determination "depends to a very great extent upon the hearing court's assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties, its findings are generally accorded great respect and will not be disturbed unless they lack a sound and substantial basis in the record, or are contrary to the weight of the evidence" (Trinagel v Boyar, 70 AD3d 816; see Matter of Selliah v Penamente, 107 AD3d 1004, 1004; Matter of Jackson v Coleman, 94 AD3d 762, 763). Nonetheless, this Court's [*5]authority in custody and visitation matters is as broad as that of the hearing court, "and while we are mindful that the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, we would be seriously remiss if, simply in deference to the finding of a Trial Judge,' we allowed a custody determination to stand where it lacks a sound and substantial basis in the record" (Matter of Caruso v Cruz, 114 AD3d 769, 772, quoting Matter of Gloria S. v Richard B., 80 AD2d 72, 76; see Matter of James A.-S. v Cassandra A.-S., 107 AD3d 703, 706; Matter of Moran v Cortez, 85 AD3d 795, 796-797).

Here, both parties contend that there has been a change in circumstances warranting modification of the stipulation of settlement. We conclude that the record supports the Supreme Court's determination that a change of circumstances has occurred, such that a modification of the stipulation of settlement is necessary to ensure the continued best interests and welfare of the children (see Matter of Pagan v Gray, 148 AD3d 811, 812; Matter of Oyefeso v Sully, 148 AD3d 710, 712).

However, the Supreme Court's determination to modify the stipulation of settlement so as to award the father sole legal and residential custody of the children, as well as final decision-making authority over medical and dental issues, and issues of mental health, with supervised therapeutic visitation to the mother, lacked a sound and substantial basis in the record (see Matter of Caruso v Cruz, 114 AD3d at 773; Matter of James A.-S. v Cassandra A.-S., 107 AD3d at 706). In pertinent part, the court gave undue weight to the parties' religious upbringing clause, finding it to be a "paramount factor" in its custody determination. "When presented as an issue, religion may be considered as one of the factors in determining the best interest of a child, although it alone may not be the determinative factor" (Aldous v Aldous, 99 AD2d 197, 199). "New York courts will consider religion in a custody dispute when a child has developed actual religious ties to a specific religion and those needs can be served better by one parent than the other" (id. at 199; see Matter of Gribeluk v Gribeluk, 120 AD3d 579, 579). However, clauses in custody agreements that provide for a specific religious upbringing for the children will only be enforced so long as the agreement is in the best interests of the children (see Karetny v Karetny, 283 AD2d 250; Spring v Glawon, 89 AD2d 980, 981; Gruber v Gruber, 87 AD2d 246, 250; Garvar v Faltings, 54 AD2d 971). "No agreement of the parties can bind the court to a disposition other than that which a weighing of all of the factors involved shows to be in the child[ren]'s best interest" (Friederwitzer v Friederwitzer, 55 NY2d 89, 95; see Eschbach v Eschbach, 56 NY2d at 171).

Considering all of the facts and circumstances of this case, the father failed to demonstrate that it is in the children's best interests to award him sole legal and residential custody of the children, as well as final decision-making authority over medical and dental issues, and issues of mental health. The mother has been the children's primary caretaker since birth, and their emotional and intellectual development is closely tied to their relationship with her. The record overwhelmingly demonstrates that the mother took care of the children's physical and emotional needs both during and after the marriage, while it is undisputed that the father consistently failed to fully exercise his visitation rights or fulfill his most basic financial obligations to the children after the parties' separation. Indeed, aside from objecting to her decision to expose the children to views to which he personally objects, the father expressed no doubts whatsoever about the mother's ability to care and provide for the children. The weight of the evidence established that awarding the father full legal and residential custody of the children with limited visitation to the mother would be harmful to the children's relationship with her (see Bliss v Ach, 56 NY2d 995, 998). Furthermore, "[s]upervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child[ren]" (Matter of Gainza v Gainza, 24 AD3d 551). Here, there was no showing that unsupervised visitation was detrimental to the children and, as discussed more fully below, it was wholly inappropriate to use supervised visitation as a tool to compel the mother to comport herself in a particular religious manner.

Furthermore, the Supreme Court improperly directed that enforcement of the parties' stipulation of settlement required the mother to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children's schools. Although the court accepted the father's argument that the religious upbringing clause "forb[ids] [the mother from] living a secular way of life in front of the children or while at their schools," the plain language of the parties' agreement was "to give the children a Hasidic upbringing" (emphasis added). The parties' agreement does not require the mother to practice any type of religion, to dress in any particular way, or to hide her views [*6]or identity from the children. Nor may the courts compel any person to adopt any particular religious lifestyle (see Lee v Weisman, 505 US 577, 587; see also Lemon v Kurtzman, 403 US 602, 612-613). To the contrary, "[i]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise" (Lee v Weisman, 505 US at 587). Thus, a religious upbringing clause should not, and cannot, be enforced to the extent that it violates a parent's legitimate due process right to express oneself and live freely (see Lawrence v Texas, 539 US 558, 574 [ "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life'" (quoting Planned Parenthood of Southeastern Pa. v Casey, 505 US 833, 851)]; see also Obergefell v Hodges, __ US __, 135 Sup Ct 2584). Indeed, the parties themselves agreed in the stipulation of settlement that they "shall [each] be free from interference, authority and control, direct or indirect, by the other" (emphasis added). While we respect the parties' right to agree to raise their children in a chosen religion and to seek judicial relief to enforce that right, given the change in circumstances here, the weight of the evidence does not support the conclusion that it is in the children's best interests to have their mother categorically conceal the true nature of her feelings and beliefs from them at all times and in all respects, or to otherwise force her to adhere to practices and beliefs that she no longer shares. There is no indication or allegation that the mother's feelings and beliefs are not sincerely held, or that they were adopted for the purpose of subverting the religious upbringing clause, and there has been no showing that they are inherently harmful to the children's well-being.

This is not to say that it would be in the children's best interests to become completely unmoored from the faith into which they were born and raised. Indeed, we conclude that the children's best interests would be better served by a more limited modification of the religious upbringing clause than that proposed by the mother. The evidence at the hearing established that the children have spent their entire lives in the Hasidic community, they attend Hasidic schools, and their extended families are Hasidic. "[T]he maintenance of the status quo is a positive value which, while not decisive in and of itself, is entitled to great weight" (Matter of Moorehead v Moorehead, 197 AD2d 517, 519). Contrary to the mother's contention, the weight of the evidence demonstrates that it is in the children's best interests to continue to permit the father to exercise final decision-making authority over the children's education and to continue to permit him to require the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy while they are in his custody, or in the custody of a school that requires adherence to such practices. To this end, the children's interests will be best served if their parents work together to surmount the challenges the children will face as they continue on their current educational path. As such, we deem it appropriate to direct the mother to make all reasonable efforts to ensure that the children's appearance and conduct comply with the Hasidic religious requirements of the father and of the children's schools while the children are in the physical custody of their father or their respective schools. Further, in light of the mother's proposal, made in both her motion papers and her testimony, to keep a kosher home and to provide the children exclusively with kosher food, we find that it would be in their best interests for her to do so, and in a manner consistent with Hasidic practices. Except for these specified matters, we otherwise modify the religious upbringing clause to allow each parent to exercise his or her discretion while the children are in his or her care or custody.

We find that an increased visitation schedule with the father would be in the children's best interests. The parties' original custody agreement provided the father with, inter alia, one overnight visit with the children, every other week. In light of the change in circumstances, we conclude that the stipulation of settlement does not adequately provide the father with meaningful time with the children (see Chamberlain v Chamberlain, 24 AD3d 589, 593). Accordingly, that branch of the father's motion which was to modify the stipulation of settlement is granted only to the extent of modifying the stipulation of settlement so as to award the father visitation every other weekend from Thursday after school until Sunday at 11:00 a.m. On alternating weeks, the father shall have (as the parties provided in their stipulation of settlement) visitation from Friday after school and return them one hour after Shabbos ends during winter and two hours after Shabbos ends during summer.

Further, we find the mother's proposal to allow the father to have physical custody of the children during Jewish holidays and for the mother to have physical custody of the children during non-religious school vacations would be in the children's best interests. Accordingly, we grant that branch of the mother's motion which was to modify the vacation and holiday schedule [*7]contained in the stipulation of settlement so as to award the father visitation during all Jewish holidays and for two weeks during summer vacation, and to award the mother visitation during all non-religious school vacations, with the exception of the two weeks each summer to be spent with the father. All other provisions for visitation in the stipulation of settlement remain unchanged.

We acknowledge that both parents are sincere in their devotion to the children and, with the exception of occasional lapses in good judgment, neither parent has engaged in conduct that is contrary to the best interests of the children. And yet, the parties' religious, moral, and ethical beliefs and values with respect to raising their children, while once compatible, have now become incompatible in many important respects. While the arrangement set forth here may not fully satisfy both sides of this dispute, courts do not always have the perfect solution for all of the complexities and contradictions that life may bring—the parties must forge a way forward as parents despite their differences. We are confident that both parties will exercise their best judgment in these matters in a manner that furthers the best interests of their children.

Finally, the parties' stipulation provided, inter alia, that the parties shall "encourage the child[ren] to honor, respect and love the other party," shall not "attempt to alienate or destroy the affection of the child[ren] for the other party," and shall not "speak idly about the other party in front of the children." This provision applies equally to both parties and, therefore, neither party may, directly or indirectly, denigrate the other to or before the children for any reason, including their disagreement with the other party's identity or beliefs."

Tuesday, August 22, 2017


From Governor Cuomo's press release:

"Governor Andrew M. Cuomo today announced a first-in-the-nation partnership between a state and a coalition of legal organizations to expand New York's pro bono clemency program.

This partnership with the National Association of Criminal Defense Lawyers, with support from the Foundation for Criminal Justice, Families Against Mandatory Minimums, and other organizations is modeled after a successful federal program that has been discontinued since the Trump administration. This new partnership greatly expands the Governor's clemency initiative founded in 2015 that provided pro bono clemency petition services to individuals with criminal records or incarcerated in state prison.

"These nationally recognized organizations have already proven successful in helping incarcerated individuals get access to the resources they need to apply for clemency, make the case for their rehabilitation and have the opportunity to contribute to and re-enter society," Governor Cuomo said. "I'm proud to partner with them to expand the work of this administration and its partners and take one more step toward a more just, more fair and more compassionate New York for all."

By engaging more pro bono lawyers, this partnership will provide a steady supply of high-quality clemency applications for the Governor's Counsel's Office to review. The NACDL will work with the Executive Clemency Bureau to identify those deserving of a second chance, and make clemency a more accessible and tangible reality in New York."

Monday, August 21, 2017


Section 1308 of the Real Property Actions and Proceedings Law imposes a duty to inspect, secure and maintain vacant and abandoned properties on mortgagees or their servicing agents.

The New York State Department of Financial Services has created a web site page to advise and inform on the proper rules for these properties entitled "Zombie Property Maintenance Home Page"


Friday, August 18, 2017


On August 16, 2017, Governor Andrew M. Cuomo signed legislation to crack down on the unauthorized invasion of privacy by video surveillance. Following reports of cameras being installed to unlawfully videotape neighboring private property, this bill (S.870A/A.861A) establishes a private right of action for damages for an unlawful invasion of privacy in an individual's backyard pursuant to an amendment to the Civil Rights Law adding section 52-a.

According to the Assembly report:

"In 2003, Stephanie's Law was signed into law. This bill seeks to close a
gap in that law. Stephanie's Law was named after Stephanie Fuller, a
woman who discovered that she was being secretly videotaped in her
bedroom by her landlord. This law sought to expand protections of priva-
cy to include incidents where voyeurs used new types of technology.

Stephanie discovered that she was being videotaped by her landlord when
her boyfriend noticed strange wires coming out of the smoke alarm in her
bedroom. Because her landlord used a video camera that was not filming
Stephanie through her window, he could not be charged with violating New
York's "Peeping Tom" laws.

Under Stephanie's Law, unlawful Surveillance is now a Class E felony,
punishable by up to four years imprisonment for first time offenders,
and up to seven years for repeat offenders (N.Y. Crim. Pen. L. 250.5).

Several other states have also enacted their own versions of Stephanie's
Law, including: Washington, Tennessee, Wisconsin, Virginia, California,
and Illinois. All of these anti-voyeurism laws focus their protection of
privacy on the physical location where the incident occurred rather than
on the individual privacy invasion committed.

Currently, New York contains no restrictions to control videotaping
which monitors a neighbor's back yard. Penal Law Sections 250.40 et seq.
only establishes criminal penalties for unlawful video surveillance when
the videotaping occurs in a setting with a "reasonable expectation of
privacy" (i.e. a bathroom or changing room), or if a perpetrator had to
trespass on property to videotape or install a camera.

In at least one instance, a family has been subject to undue stress and
concern for their young children's safety when they were subject to
constant camera surveillance while swimming or sunbathing in their own
backyard by an adjoining neighbor who is a registered sex offender.
However, because New York State law provides no protection from unwar-
ranted and potentially dangerous video observation and recording, there
is little that can be done to prevent this unnerving intrusion.

This legislation would help to ensure that the rights of adjoining land-
owners are subordinate to the rights of individuals who wish to enjoy
backyard recreational activities with a certain expectation of privacy,
without being subject to annoying or harassing behavior.  Owners who do
not care about their neighbor's video imaging can authorize such obser-
vation via written consent. No right of privacy is afforded when the
imaging is done by a law enforcement officer in the course of their
official duties."

Wednesday, August 16, 2017


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


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


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


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


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



"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


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


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

Other New York cities and counties offer domestic partnership registries:

For Albany, see

For Westchester, see

For Suffolk, see

For Town of North Hempstead, see

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


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:

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


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

Wednesday, August 2, 2017


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


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)."