WHO IS RESPONSIBLE FOR THE ADOPTED CHILD'S "EMANCIPATION"

 

MATTER OF JERNIGAN-LEYSATH v. LEYSATH, 2022 NY Slip Op 50396 - NY: Family Court 2022:

"HASA A. KINGO, J.

On April 18, 2022, petitioner Edward Jernigan-Leysath ("Petitioner") timely filed an objection to an order entered by Support Magistrate Kevin Mahoney (the "Support Magistrate") on March 22, 2022 (the "March 22, 2022 Order"). Petitioner submitted proof of service of the objection upon the respondents Rhonda Leysath ("Rhonda") and Robbie Leysath ("Robbie") (collectively "Respondents"), who are unrepresented by counsel, with his objection papers. No rebuttal was submitted. Upon reviewing the record, including Petitioner's objection and exhibits thereto, the orders of dismissal and findings of fact issued by the Support Magistrate in both dockets, and the recordings of the hearing held on September 8, 2021, November 22, 2021, and March 22, the court finds that there is insufficient evidence to support the Support Magistrate's finding that Respondents met their burden of establishing constructive emancipation and the objection is granted and the matter is remanded to the Support Magistrate for additional fact finding.

Background

Petitioner was a foster child in Respondents' home and was subsequently adopted by them in 2016, at the age of fourteen or fifteen.^[1] On March 4, 2020, Petitioner filed the instant petition seeking to establish support for himself (Docket No. F-02506-20 & F-09264-20).^[2] Specifically, petitioner alleges that he no longer resides with Respondents, who "currently receive an adoption subsidy for [his] care since [he] was adopted at age 14 though I no longer reside with them." Petitioner cites to Barbara T. v. Acquinetta M., 164 AD3d 1 [1st Dept 2018]) in support of his request for an order of support directing Respondents to pay fair and reasonable support in the amount of the adoption subsidy that they receive and that they be required to exercise the option of additional coverage for health insurance in Petitioner's favor.

A hearing was held on September 8, 2021, November 22, 2021, and March 22, 2022 on the question of whether Petitioner had constructively emancipated himself. Petitioner was represented by counsel at the hearing and both Respondents waived their right to counsel and proceeded pro se. Petitioner testified and was cross-examined by each Respondent, and Robbie briefly testified regarding Petitioner's relationship with his counsel and various social workers during and after the adoption proceeding. Rhonda declined to testify on her own behalf. The Support Magistrate thereafter issued findings of fact and orders of dismissal on March 22, 2022.^[3] The findings of fact indicate that "the basis of Petitioner's request for support is his claim that he had no other choice but to leave the Leysath's home when he was 18 years old, and is thus entitled to a support order paid directly to him by Respondent." The Support Magistrate determined the following:

The testimony of both parties made it clear to the Court that the Petitioner was being raised in a home as a teenager which required him to act accordingly and contribute in an age appropriate way through chores and other household responsibilities. The Court did not find Petitioner credible in his claim that he never felt truly loved by his adoptive family. The Court also notes that there has been no allegation of physical abuse of Petitioner made in this case.

Similarly, Petitioner's complaints of nothing being "fair" in Respondent's home as far as he was concerned, as well as a claim that Respondent did not cook "anything" are found by the Court to be typical responses from a teenager faced with age appropriate discipline. The Court notes that no other witnesses were called by Petitioner to confirm any alleged "mistreatment" of Petitioner by Respondent, and there was no evidence that Petitioner had alerted any social workers of any issues within the home, despite the fact that he had contact with several.

(Lew affirmation, exhibit A, Docket F-02506-20). The findings of fact for Robbie reiterate these points, with the addition that Petitioner's claim that Robbie's "didn't give him a chance to speak," was found to be a typical response from a teenager faced with age-appropriate discipline (Lew affirmation, exhibit A, Docket F-09264-20).

Upon these findings of fact, the Support Magistrate determined that Petitioner had constructively emancipated himself from the household and both petitions were dismissed for failure to state a cause of action. Petitioner thereafter filed his objections.

Standard of Review

Family Court Act § 439(a) empowers Support Magistrates "to hear, determine and grant any relief within the powers of the Court," in proceedings properly before them. FCA § 439(e) provides that the Support Magistrate's determination "shall include findings of fact and. .. a final order." The parties are permitted by statute to submit "specific written objection," to the order for "review" by a Family Court judge. The review of the Support Magistrate's order is essentially equivalent to an appellate review of such an order (see Matter of Cherrez v Lazo, 102 AD3d 781, 782 [2d Dept 2013]). The scope of that review, however, is narrow, and confined to whether the Support Magistrate, as the trier of fact, has made the necessary findings of fact and whether, upon review of the record, the findings of fact present a reasonable basis for that order. The determination of the Support Magistrate should not be disturbed unless no fair interpretation of the evidence can support the findings (see Matter of Stone v Stone, 236 AD2d 615, 615 [2d Dept 1997]; Matter of Reed v Reed, 240 AD2d 951, 952 [3d Dept 1997]). In applying these legal principles, the scope of the Family Court judge's review consists primarily of an inquiry as to whether the Support Magistrate has made the necessary findings of fact and conclusions of law, and whether upon review of the record, there was a reasonable basis for the Support Magistrate's order. In reviewing an objection to a decision of a Support Magistrate, the Court may remand one or more issues of fact to the Support Magistrate, make its own findings of fact and its own order, with or without an additional hearing, or deny the objection altogether (FCA § 439 [e]).

Discussion

Petitioner argues that the Support Magistrate "incorrectly and wrongly focused on whether the Petitioner emancipated himself by leaving the adoptive home when he turned 18 years old" (Lew affirmation ¶¶ 6-8). Instead, Petitioner relies on Matter of Barbara T. v Acquinetta M., 164 AD3d 1 [1st Dept 2018]), and argues that any adoption subsidy received by Respondents attaches to the adoptive child, and he is therefore entitled to receive any subsidy received by Respondents from the time Petitioner left the home or, failing that, from the time he filed the petition for support. Petitioner also argues that, in any event, the evidence presented demonstrates that Petitioner was "kicked out" of the adoptive home by his adoptive parents and did not willingly abandon the home (Lew affirmation ¶¶ 6-8).

It is a fundamental public policy in the State of New York that a parent is obligated to support his or her child until that child reaches the age of twenty-one (FCA § 413 [1][a]; Matter of Roe v Doe, 29 NY2d 188, 192-193 [1971]). When a child is adopted, the natural parents are relieved of this responsibility and the adoptive parents become liable for the child's support (DRL § 110; DRL § 117 [1][a]; see also Barbara T., 164 AD3d at 2 ["Adoptive parents, just like biological parents, remain legally responsible for the support of their children until they are 21"]). Nevertheless, emancipation suspends the parent's support obligation (Roe v Doe, 29 NY2d at 192-193). "Children are emancipated if they become economically independent of their parents through employment, entry into military service, or marriage, and may also be deemed constructively emancipated if, without cause, they withdraw from parental control and supervision" (Matter of Alice C. v Bernard G.C., 193 AD2d 97, 105 [2d Dept 1993]).

The burden of proving emancipation is on the party asserting it (O'Sullivan v Katz, 81 AD3d 480, 480 [1st Dept 2011]). "A child of employable age and in full possession of their faculties who voluntarily and without cause abandon their home, against the will of their parents and for the purpose of avoiding parental control, forfeit their right to demand support even if they are not financially self-sufficient" (Matter of Bailey v Bailey, 15 AD3d 577 [2d Dept 2005]; Roe, 9 NY2d at 192-193; Alice C., 193 AD2d at 105). However, where the parent causes the breakdown in communication with the child, contributes to the deterioration of the relationship, or has made no genuine effort to contact the child, the child will not be deemed to have abandoned the parent (Jose R. v Yvette-Ortiz M., 123 AD3d 412, 413; [1st Dept 2014]; Matter of Gansky v Gansky, 103 AD3d 894, 895 [2d Dept 2013]; Matter of Dewitt v Giampietro, 66 AD3d 773, 774 [2d Dept 2009]; Alice C., 193 AD2d at 109; Lipsky v Lipsky, 115 AD2d 361, 361 [1st Dept 1986]). Furthermore, if the parent-child relationship deteriorates in whole or in part due to the parent's actions, they must actively try to repair the relationship (Jose R., 123 AD3d at 413; Matter of Chamberlin v Chamberlin, 240 AD2d 908, 910 [3d Dept 1997]). Reluctance on the child's part to contact the parent does not constitute abandonment which would relieve the parent of their support obligation (O'Sullivan, 81 AD3d at 480; Dewitt, 66 AD3d at 775).

Notwithstanding the deference this court gives to the findings of the Support Magistrate, who is in the best position to assess the credibility of the witnesses, the court finds that even if believed, Respondents have failed to meet their burden of establishing constructive emancipation. Petitioner testified at the hearing that he left Respondents' home in November 2018, shortly after his eighteenth birthday. Without objection from either Respondent, Petitioner submitted a text message into evidence that Robbie sent to Petitioner on September 26, 2018 in which Robbie stated, "U just fucked yourself and ya don't even kno it u remind me of a couple of other idiots I kicked to the fucking curb u never kno how good u had it until ya lose it [laughing emoji]," and "Nobody breathes for free" (Lew affirmation, exhibit B). Petitioner testified that the text exchange took place after he cleaned the kitchen in the home and Robbie was unhappy with the job he did, and that he left the home a few weeks after this exchange and was told by Respondents he could never come back and was not welcome in the home. Petitioner also testified that he returned to the home in either February or March of 2019 to retrieve some of his sneakers and other belongings. When Petitioner entered the home by the garage, Robbie confronted him and again told him he was not welcome in the home, and threatened to call the police to charge him with trespassing.

The September 26, 2018, text message and Petitioner's testimony that he was told he could never return to the home indicate that either Robbie or both Respondent's actions contributed to the deterioration of the relationship with Petitioner. Nevertheless, there was no testimony elicited by Respondents on this issue, and the Support Magistrate made no findings of fact regarding whether either Respondent made any effort to maintain a relationship with Petitioner or attempted to repair the relationship with Petitioner after he left the home (see Jose R., 123 AD3d at 413; Gansky, 103 AD3d at 895; Dewitt, 66 AD3d at 774; Alice C., 193 AD2d at 109; Lipsky, 115 AD2d at 361; Chamberlin, 240 AD2d at 910). Indeed, Respondents did not proffer any evidence of attempts to maintain contact with Petitioner, offers for him to return to the home, or any attempts to repair the relationship between them. Additional fact finding is, therefore, needed on these issues (see Melgar v. Melgar, 132 AD3d 1293, 1294 [4th Dept 2015] [Further hearing needed where the cause of the breakdown in communication has not been established]).

Petitioner also argued in his petition, at the hearing, and in his objection that Respondents receive an adoption subsidy for Petitioner's care, which he contends should be awarded to Petitioner. "New York has offered an adoption subsidy in some form since 1977 in order to `eliminate, or at the very least substantially reduce, unnecessary and inappropriate long-term foster care situations,' which are both costly to the state and contrary to the best interests of children who are difficult to place due to physical or mental disabilities, age, or for other reasons" (Barbara T., 164 AD3d 1, 9, citing Social Services Law § 450). "In 1980, Congress passed the Adoption Assistance and Child Welfare Act (42 USC §§ 670-676) `to encourage greater efforts to find permanent homes for children' by, inter alia, subsidizing the adoption of special needs children. New York's adoption subsidy program comports with the federal requirements, and is administered in New York City by ACS" (id. at 9).

Payment of the adoption subsidy is regulated by 18 NYCRR 421.24. Although the statute does not provide for payment of the subsidy directly to the child, or anyone other than the adoptive parent, New York courts have acknowledged that the subsidy is a resource of the child and is paid for the care and maintenance of the child (Barbara T., 164 AD3d at 8 ["For the reasons discussed below, we find that Family Court properly determined that an adoption subsidy should be considered as a resource of the child when determining child support[.]; A.E. v J.I.E., 179 Misc 2d 663, 665-666 [Sup Ct Bronx County 1999] ["[S]uch payments are treated as resources of the child, to be considered in determining whether the parent's support obligation is unjust or inappropriate.. . DSS pays this subsidy for the care and maintenance of the child[.]; Comm'r of Soc. Servs. ex rel. Smith v Smith, 75 AD3d 802, 802 [3d Dept 2010] [Appellate court declined to vacate order directing non-custodial adoptive mother to turn over monthly adoption subsidy to Commissioner of Social Services for reimbursement of the cost of the child's care]).

In order to receive the adoption subsidy, foster parents must apply for the subsidy prior to adoption (18 NYCRR 421.24 [b] [1]), and sign a contract with ACS (18 NYCRR 421.24 [b] [2]). The minimum provisions of such contracts are set by regulation (18 NYCRR 421.24 [c] [3]; see also New York State Office of Children and Family Services, Adoption Subsidy and Non-Recurring Adoption Expenses Agreement, available at https://www.ocfs.ny.gov/main/Forms/adoption/LDSS-4623A%20Adoption%C20Subsidy%C20and%20Non-Recurring%20Adoption%C20Expenses%C20Agreement%20-%20Initial%20Application.pdf, cached at http://www.nycourts.gov/reporter/webdocs/LDSS-4623A-Adoption-Subsidy-Non-Recurring-Adoption-Expenses-Agreement-Initial-Application.pdf). The applicable regulations further provide the following:

The written agreement authorizing monthly payments will remain in effect until the child's 21st birthday. No payments may be made if the social services official determines that the adoptive parents are no longer legally responsible for the support of the child or the child is no longer receiving any support from such parents. Such written agreement must state that it will be the responsibility of the adoptive parent(s) to inform the appropriate State or local official when they are no longer legally responsible for the child or no longer providing any support to the child.

(18 NYCRR 421.24 [c] [5] [emphasis added]). The statute further provides:

The social services official on an annual basis in a written notification must remind the adoptive parents of their obligation to support the adopted child and to notify the social services official if the adoptive parents are no longer providing any support or are no longer legally responsible for the support of the child. Where the adopted child is school age under the laws of the state in which the child resides, such notification must include a requirement that the adoptive parents must certify that the adopted child is a full-time elementary or secondary student or has completed secondary education.

(18 NYCRR 421.24 [c] [19] [emphasis added]).

Petitioner testified at the hearing that he did not receive any financial support from Respondents after he left the home in November 2018 and stated that he lived in a shelter for a period of time after leaving the home. Respondents, therefore, had a contractual and statutory obligation to inform ACS at that time that they were no longer providing any support to Petitioner (id.). It would be inappropriate, if not illegal, for Respondents to continue receiving a subsidy if they were no longer providing care to Petitioner. Therefore, if Respondents continued to receive the adoption subsidy after Petitioner left the home, in contradiction with their agreement with the social services official and in violation of 18 NYCRR 421.24 [c] [5], this suggests that Petitioner was not emancipated and that Respondents had a continuing obligation to provide support to him (see J.M. v. R.M., 52 Misc 3d 1212 [A] [NY Fam Ct 2016] [Family Court weighed non-custodial mother's continued receipt of adoption subsidy as a factor in determining whether child was constructively emancipated]). The record is devoid of information regarding the amount of any subsidy received and dates of receipt of same.

Pursuant to Family Court Act Section 439(e), a support magistrate is required to set forth detailed "findings of fact" and in the absence of such findings, the matter shall be remitted (see Vizcaino v Butler, 248 AD2d 478 [2d Dept 1998]). The support magistrate must consider the evidence presented to make the necessary findings of fact and must state the reasons therefor (see Parietti-Fogarty v Fogarty, 141 AD3d 512 [2d Dept 2016]). "Appropriate findings of fact. .. should be made on each issue" (Manning v Manning, 115 AD2d 318 [4th Dept 1985]), and the failure of a support magistrate to make specific findings of fact on each issue makes intelligent judicial review impossible, requiring remittitur (see Hamilton v Irlbacher, 96 AD2d 726 [4th Dept 1983]). In the instant matter, the Support Magistrate failed to issue specific findings of fact as to what contribution Respondents made to the deterioration of the parent-child relationship, what efforts they made to repair the relationship, the amount of any adoption subsidy received by Respondents in connection with their adoption of Petitioner, and the dates of receipt of the subsidy. Therefore, the objection is granted and the matter is remanded to the Support Magistrate for additional fact finding on these issues.

This constitutes the decision and order of the court.

Notify parties.

Notify Support Magistrate Mahoney.

[1] The record is unclear regarding the precise date of adoption.

[2] The March 4, 2020 petition named both Respondents, but only one docket was assigned for both Respondents. A second docket number was assigned on April 12, 2021 (F-09264-20).

[3] The orders of dismissal and findings of fact issued in each docket are largely identical. Therefore, they will be addressed together for the purposes of this Decision and Order, except where otherwise noted."

WHICH TOLLING STATUTES GOVERN IN FORECLOSURE

Batavia Townhouses, Ltd. v. Council of Churches Hous. Dev. Fund Co., Inc., 2022 NY Slip Op 3361 - NY: Court of Appeals 2022:

".....

In May 2019, the limited partners brought this derivative action, on behalf of the Partnership, against Council seeking a declaration that the wraparound mortgage was unenforceable because the six-year limitations period for foreclosure had expired in March 2018. Council responded that the statute of limitations had been tolled under General Obligations Law §§ 17-101 or 17-105 because the Partnership's annual financial statements and tax returns for 2012 to 2018 listed the mortgage as an outstanding liability. Section 17-101 provides that an "acknowledgment" of a contractual debt is "competent evidence of a new or continuing contract" that tolls the limitations period for commencing actions "other than an action for the recovery of real property." Section 17-105(1) states, "A waiver of the expiration of the time limited for commencement of an action to foreclose a mortgage of real property . . . or a promise to pay the mortgage debt . . . by the express terms of a writing signed by the party to be charged is effective . . . to make the time limited for commencement of the action run from the date of the waiver or promise." Supreme Court, among other things, granted plaintiffs' motion for summary judgment seeking to cancel and discharge the wraparound mortgage. As is pertinent, the court ruled that the action to foreclose on the mortgage was time barred pursuant to CPLR 213 (4) and the six-year statute of limitations was not tolled or revived under General Obligations Law § 17-105.

The Appellate Division modified the Supreme Court order insofar as appealed from by remitting the matter to Supreme Court for the grant of an appropriate judgment declaring the rights of the parties and otherwise affirmed. The court agreed with Supreme Court that only General Obligations Law § 17-105(1) "applies to the type of action brought here under RPAPL § 1501(4), which requires the party bringing such an action to establish that the limitations period for the commencement of a mortgage foreclosure action has expired" (189 AD3d 20, 25 [2021]). The Court reached that conclusion based on the "plain language" and legislative history of sections 17-101 and 17-105 (id. at 25-26). The Court explained that, although section 17-101 allows a "mere `acknowledgment'" to extend the statute of limitations for "contractual debts," section 17-105(1) "was enacted specifically to address the waiver of the statute of limitations applicable to mortgage debt and . . . provided that an express promise to pay such debt . . . would be sufficient to revive the otherwise expired statute of limitations" (id.). As a result, the Appellate Division unanimously concluded that the Partnership's financial statements and tax returns could not revive the limitations period because they "do not constitute an express promise to pay the mortgage debt" (id. at 28). We granted leave to appeal (36 NY3d 906 [2021]), and we now affirm.

In pertinent part, RPAPL § 1501(4) provides as follows:

"Where the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage, or to enforce a vendor's lien, has expired, any person having an estate or interest in the real property subject to such encumbrance may maintain an action against any other person or persons, known or unknown, including one under disability as hereinafter specified, to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom" (RPAPL § 1501[4] [emphasis added]).

Thus, a party seeking to cancel or discharge a mortgage must first establish that the limitations period for enforcement by way of foreclosure has already expired. Here, it is undisputed that the six-year statute of limitations to foreclose on Birchwood expired on March 2, 2018, pursuant to CPLR 213(4), unless it was extended or revived by one of the means set forth in either General Obligations Law §§ 17-101 or 17-105. The question we must answer is whether both or only one of those sections of the General Obligations Law applies here.

Despite what Council contends, General Obligations Law § 17-105, by its express terms, is the sole statute governing the tolling or revival of the statute of limitations for an action to foreclose a mortgage. Section 17-105(1) states that, among other things, a "promise to pay the mortgage debt, if made after the accrual of a right of action to foreclose the mortgage . . . by the express terms of a writing signed by the party to be charged is effective . . . to make the time limited for commencement of the action run from the date of the . . . promise" (emphasis added). The statute further states that "[e]xcept as provided in subdivision five, no acknowledgment, waiver or promise has any effect to extend the time limited for commencement of an action to foreclose [a] mortgage for any greater time or in any other manner than that provided in this section, nor unless it is made as provided in this section" (§ 17-105[4] [emphasis added]). Moreover, section 17-101 excludes itself—and by implication its allowance for a mere acknowledgment to toll or revive the statute of limitations—because it indicates that it does not apply to "actions for the recovery of real property."

Council further argues that General Obligations Law §§ 17-101 and 17-105 both apply to mortgage foreclosure actions based on this Court's precedent in Petito v Piffath (85 NY2d 1 [1994]), in which we considered both statutes in concluding that a time-barred foreclosure had not been revived. However, Petito is distinguishable from the present case because the record in that case reveals that, unlike the present case, the parties did not present this Court with the threshold question of which section of the General Obligations Law applied in a mortgage foreclosure action.

Under General Obligations Law § 17-105(1), the Partnership's actions in this case could only toll or revive the statute of limitations for the Council to bring a foreclosure action if the Partnership made an "express" "promise to pay the mortgage debt." Accordingly, the Appellate Division correctly concluded that the Partnership's delivery of its financial statements and tax returns to Council did not meet the requirements of section 17-105(1) because they were not express promises to pay the mortgage debt (189 AD3d at 28).^[1]

Council seeks, however, to draw a distinction between an "express promise" and General Obligations Law § 17-105(1)'s requirement of a "promise . . . made . . . by the express terms of a writing." According to Council, a mere acknowledgment meets that requirement. Section 17-105(1), however, does not use the word "acknowledgement," and it instead refers to a "promise" or "waiver" made "by the express terms of a writing." The logical reading is that, whereas section 17-101 allows for a written and signed "acknowledgement [of] or promise" to pay a contractual obligation to toll or revive the statute of limitations, section 17-105(1) requires the mortgage debtor to make an "express" "promise to pay the mortgage debt." To instead construe the word "promise" to refer both to an "acknowledgement" and a "promise" would render meaningless the distinction between an "acknowledgment or a promise" made in section 17-101. Treating an "acknowledgment" as being something different than a "promise" abides by the rule of statutory construction that "[w]hen different terms are used in various parts of a statute or rule, it is reasonable to assume that a distinction between them is intended" (Matter of Albano v Kirby, 36 NY2d 526, 530 [1975]). Additionally, section 17-105(4)'s statement that outside of the provisions of that section "no acknowledgment, waiver or promise has any effect to extend the time" indicates that the legislature didn't intend for a mere acknowledgment to revive or toll the statute of limitations for a foreclosure action.

The legislative history further demonstrates that the purpose behind General Obligations Law section 17-105 was to require more express actions by a mortgage debtor to toll or revive the statute of limitations so as to prevent "[s]erious impairment of titles to land and hindrance of real property financing" (1961 Law Rev Commn., Acts, Recommendation and Study Relating to Transaction Affecting the Time Limited for an Action to Foreclose a Mortgage of Real Property at 112). It would conflict with that legislative intent to allow an acknowledgment (i.e., an implied promise), as opposed to an express promise, to toll or revive the statute of limitations for a mortgage foreclosure action. Council's remaining arguments are lacking in merit.^[2]

Accordingly, the order of the Appellate Division should be affirmed, with costs.

[1] Because we conclude that General Obligations Law § 17-105(1) governs the tolling or revival of the statute of limitations for an action pursuant to RPAPL § 1501(4), we have no occasion to decide whether the Partnership's delivery of its financial statements and tax returns to Council constituted "acknowledgment[s]" under General Obligations Law § 17-101.

[2] The partial dissent's analysis addresses arguments that were neither preserved for review by any party nor raised in this Court (see Misicki v Caradonna, 12 NY3d 511, 518-520 [2009]). Although the parties dispute which tolling provisions apply (and what they require), there is no suggestion that the note and mortgage could or should be treated separately for tolling purposes. Indeed, in its brief, Council repeatedly suggests just the opposite, directing its tolling arguments to the enforceability of "the WrapAround Note and Mortgage," also referred to as the "mortgage obligation" (App Br at 11, 26, 29). Council does not contend that a triable issue of fact precluded summary judgment but, to the contrary, noted that the parties "agreed that the matter is appropriate for resolution by summary judgment" (App Br at 11)."

ERPO

New York's Red Flag Law, also known as the Extreme Risk Protection Order (ERPO) law, is effective in New York State as of August 24, 2019. The law prevents individuals who show signs of being a threat to themselves or others from purchasing or possessing any kind of firearm. And Governor Hochul signed an Executive Order 19 on May 18, 2022 to require State Police to file for an ERPO whenever they have probable cause to believe that an individual is a threat to themselves or others. 

ANONYMOUS DETECTIVE v. AA, 71 Misc. 3d 810 - West. Co. Supreme Court 2021:

"ROBERT DIBELLA, J.

Respondent A.A. moves to declare New York's extreme risk protection order act (herein referred to as ERPO statute or the Red Flag Law) set forth in CPLR 6340-6347 unconstitutional and unenforceable due to violations of both the United States Constitution and the New York State Constitution. Petitioner opposes the motion. For the reasons set forth herein, the motion to declare the Red Flag Law unconstitutional and unenforceable is denied. The portion of the motion to seal the papers and proceedings until the final hearing and determination is also denied at this juncture.

In early July 2020, respondent was being treated at Putnam Hospital allegedly due to suicidal thoughts. It is alleged that respondent falsely denied having a firearm to the hospital staff, whereby they asked respondent's mother to check and confirm. Upon her finding a rifle in respondent's home, the hospital indicated that it would not release respondent until they received confirmation that the rifle had been removed and secured. On July 3, 2020, a Westchester County Police Department (WCPD) officer was directed to respondent's residence identified as XXXXX, Cortlandt, New York, to assist with the surrendering of a firearm. The rifle identified as a Hi-Point 9 millimeter rifle, model number 995TS with serial number 813*813 F56720, was transported to the WCPD headquarters property unit for safekeeping. Respondent was subsequently released from the hospital. It is alleged that respondent's mother also informed the detective that respondent was a threat to himself and had also threatened her in the past.

On July 13, 2020, respondent met with WCPD detectives at headquarters to discuss the rifle. Respondent indicated that he purchased the rifle on January 30, 2015, and did not make any modifications to it. Respondent was then informed of his Miranda rights and respondent agreed to continue speaking with the detectives. Respondent acknowledged that he owned the rifle, had purchased it legally, and did not modify it except to put a flashlight on it. He also stated he tried to purchase another firearm in May 2020, but was denied due to the results of a National Instant Criminal Background Check. He further stated he had magazines and ammunition at his residence. Respondent was arrested for criminal possession of a weapon in the third degree, pursuant to Penal Law § 265.02(7), and criminal possession of a rapid fire modification device, pursuant to Penal Law § 265.01-c.

On or about July 13, 2020, a WCPD detective filed an application in New York Supreme Court, Westchester County for an ERPO pursuant to CPLR 6341 and sought a temporary extreme risk protection order (TERPO). This court issued a TERPO on July 13, 2020, pursuant to CPLR 6342, finding "probable cause to believe that respondent is likely to engage in conduct that would result in serious harm to self or others as defined in MHL § 9.39(a)." In granting said order, the court prohibited the respondent from "purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun" and ordered him to "immediately surrender any and all" such items. A search order was also made, allowing for the search of the respondent and his premises, to be made within the hours of 6:00 a.m. and 9:00 p.m. The matter was set down for a hearing for a final ERPO to be held on July 20, 2020. Motions were subsequently made by both parties, and the hearing was adjourned for determination of the motions. The TERPO has also been extended to the hearing date.

In this motion, respondent seeks an order declaring the ERPO statute set forth in CPLR 6340-6347 unconstitutional and unenforceable. Specifically, respondent argues that the ERPO statute is unconstitutional due to vagueness, that it violates probable cause search and seizure provisions, that it 814*814 violates the right against self-incrimination, that it violates the right to counsel provision and that it violates the right to bear arms provision of the Second Amendment of the United States Constitution. A similar motion was recently determined by this court (Davidson, J.) in Matter of Ruiz v McDowell (index No. 511/2019).

New York, like many other states, has recently enacted what is commonly referred to as a "Red Flag Law" in an attempt to prevent tragedies that have resulted from gun violence at the hands of individuals who exhibited warning signs that they posed a risk of harm to themselves or others. Many jurisdictions have suffered shootings in schools, workplaces, movie theaters and public events that took the lives of innocent individuals. Incidents of mass shootings have been steadily increasing. In the last 10 years, the frequency of mass shootings has tripled. (See Coleman Gay, Note, "Red Flag" Laws: How Law Enforcement's Controversial New Tool to Reduce Mass Shootings Fits Within Current Second Amendment Jurisprudence, 61 BC L Rev 1491, 1494 [Apr. 2020] [and citations therein].)

New York's Red Flag Law, or ERPO statute, became effective on August 24, 2019. New York's Red Flag Law allows a petitioner, who may be any law enforcement official, family member or school administrator, to file a civil proceeding in Supreme Court seeking a final order prohibiting a respondent from purchasing, possessing or attempting to purchase or possess a firearm for a specified time.^[1] In conjunction with the application for an ERPO, a petitioner may seek an ex parte temporary order immediately prohibiting a respondent from purchasing, possessing or attempting to purchase or possess a firearm, if certain criteria are met. Pursuant to CPLR 6342(1), a court may grant a TERPO only upon a finding that there is probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself or others, as defined in paragraph (1) or (2) of subdivision (a) of section 9.39 of the Mental Hygiene Law. Mental Hygiene Law § 9.39(a) defines "likelihood to result in serious harm" as:

"1. substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating 815*815 that he is dangerous to himself, or

"2. a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm."

As a starting point in this court's analysis of the respondent's arguments, it is well established that "[l]egislative enactments enjoy a strong presumption of constitutionality." (LaValle v Hayden, 98 NY2d 155, 161 [2002].) Although not irrefutable, a party seeking to challenge a duly enacted statute bears the initial burden of demonstrating beyond a reasonable doubt that the statute is invalid. (See id.) Further, "courts must avoid, if possible, interpreting a presumptively valid statute in a way that will needlessly render it unconstitutional." (Id., citing Alliance of Am. Insurers v Chu, 77 NY2d 573, 585 [1991].)

First, respondent argues that the Red Flag Law is unconstitutionally vague. In addressing a vagueness challenge, a court must enlist a two-part test to determine whether: (1) the statute is sufficiently definite to give a person of ordinary intelligence fair notice of forbidden conduct under the statute and (2) the enactment provides officials with clear standards of enforcement. (People v Stuart, 100 NY2d 412, 420-421 [2003].) Further, "[t]he degree of vagueness that the Constitution tolerates... depends in part on the nature of the enactment.... The Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe." (Hoffman Estates v Flipside, Hoffman Estates, Inc., 455 US 489, 498-499 [1982].) Moreover, if, as applied to the respondent, the statute is not impermissibly vague, the inquiry ends there and the court will not strain to imagine situations where the application may not be so clear. (See People v Stuart, 100 NY2d at 422.)

Respondent argues that the Red Flag Law is unconstitutionally vague because it fails to provide a person of ordinary intelligence notice of the exact nature of the conduct which would give rise to a TERPO or ERPO after hearing. Respondent argues that the statute is not adequately defined because it requires a finding (by probable cause for a TERPO and clear and convincing evidence for an ERPO) of a likelihood that something will happen in the future, rather than something more concrete. Further, respondent challenges the incorporation 816*816 of the Mental Hygiene Law definition of "likelihood to result in serious harm" without any further incorporation of Mental Hygiene Law principles or due process protections preventing wide interpretations.

These arguments are unavailing. Relevant factors are enumerated in CPLR 6342(2) for the court to consider in determining whether grounds exist to issue a TERPO including, but not limited to,

"(a) a threat or act of violence or use of physical force directed toward self, the petitioner, or another person;

"(b) a violation or alleged violation of an order of protection;

"(c) any pending charge or conviction for an offense involving the use of a weapon;

"(d) the reckless use, display or brandishing of a firearm, rifle or shotgun;

"(e) any history of a violation of an extreme risk protection order;

"(f) evidence of recent or ongoing abuse of controlled substances or alcohol; or

"(g) evidence of recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor."

The plain reading of the statute is not vague but is, in fact, very clear. In order for a TERPO to issue, there must be probable cause to believe that a substantial risk of harm to self or others exists as manifested by violent, harmful, threatening suicidal or homicidal behavior. These considerations clearly provide notice of the "forbidden conduct sufficient to inform a person of ordinary intelligence." In the instant matter, respondent is alleged to have made threats of violence towards others and threats of harm regarding himself, and was brought to the hospital for suicidal ideations. This conduct falls within the seven factors enumerated in the statute and provided respondent with sufficient notice of grounds for the issuance of a TERPO.

As to the second prong of the test, the court disagrees with respondent's argument that the statute permits and encourages arbitrary and discriminatory enforcement by failing to provide minimal guidelines to govern how law enforcement will conduct this search. CPLR 6342(8) states in relevant part that an officer serving a TERPO shall

817*817 "[t]ake possession of all firearms, rifles and shotguns that are surrendered, that are in plain sight, or that are discovered pursuant to a lawful search. As part of the order, the court may also direct a police officer to search for firearms, rifles and shotguns in the respondent's possession in a manner consistent with the procedures of article six hundred ninety of the criminal procedure law."

The ERPO statute sets forth a standard by which law enforcement may commence an ERPO proceeding and conduct a court-ordered search, thereby avoiding any arbitrary and discriminatory enforcement. The statute allows law enforcement officers to take possession of weapons found in plain sight and by valid and lawful searches as already exist in the law, as well as searches pursuant to the warrant requirements of article 690 of the Criminal Procedure Law.

The court finds that the statute comports with the standards set by the relevant case law and that the statute is not vague. Therefore, respondent's motion to dismiss for vagueness of the statute is denied.

Second, respondent argues that the Red Flag Law violates the Fourth Amendment of the United States Constitution and the related article of the New York Constitution by allowing for unreasonable searches and seizures. Respondent contends that the ERPO statute circumvents the protections of the Fourth Amendment by permitting the invasion of an individual's person, property and home without the prerequisite of probable cause that an illegality actually exists or that respondent actually is in possession of a weapon.

"[T]he Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. What is unreasonable, of course, depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." (Skinner v Railway Labor Executives' Assn., 489 US 602, 619 [1989] [internal quotation marks and citations omitted].) A balancing test is used to judge an intrusion on an individual's Fourth Amendment rights against the promotion of a legitimate governmental interest. (Id.) Exceptions have been made to the warrant requirement when "special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." (Id., quoting Griffin v Wisconsin, 483 US 868, 873 [1987] [internal quotation marks and citation omitted].)

818*818 This court finds that the search conducted herein pursuant to the ERPO statute was reasonable. Contrary to respondent's assertion, the petitioner provided a sworn statement as to the basis for his belief that respondent was recently hospitalized in a psychiatric hospital for expressing suicidal ideations. Respondent falsely denied having any firearms; however, he did own and possess a firearm and had recently attempted to purchase another firearm. These sworn statements, considered along with all the pleadings, supporting papers, and evidence submitted, were sufficient to establish probable cause for the issuance of the search warrant. Furthermore, in circumstances where an individual is deemed to pose an extreme risk due to likelihood of substantial harm to self or others, a special needs exception also exists to promote a governmental interest of regulating conduct and access to firearms of these individuals. Thus, respondent's argument that the ERPO statute violates the Fourth Amendment also fails.

Respondent also contends that the ERPO statute violates his right against self-incrimination because it requires a respondent to admit to law enforcement that he has weapons, to physically turn over those weapons and to complete a form listing certain items which may lead to further criminal charges. The Fifth Amendment privilege under the United States Constitution provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." (US Const Amend V.) The protections have been expanded to include any other proceeding whether civil or criminal where the answers might incriminate the defendant in future criminal proceedings. (See Baxter v Palmigiano, 425 US 308, 316 [1976].) The Fifth Amendment, however, is a "fundamental trial right of criminal defendants." (Chavez v Martinez, 538 US 760, 767 [2003] [internal quotation marks, citations and emphasis omitted].) Although conduct that occurs by law enforcement prior to trial may impair a defendant's constitutional right under the Fifth Amendment, it is only at trial when such statements or evidence are sought to be used that there is a violation of the Fifth Amendment. (See id. at 767.) Since respondent's challenge did not arise as a violation of his Fifth Amendment right at a criminal trial, the motion to dismiss based on this ground is deemed without merit and denied.

Respondent also challenges the constitutionality of the ERPO statute based upon alleged violations of respondent's right to counsel. Respondent argues that no right to counsel protections 819*819 exist in the ERPO statute "despite the possibility that the basis for the action itself may be a pending criminal matter or that the ERPO matter may result in a criminal case being brought against the respondent." (Respondent mem of law at 14.) The possibility that evidence brought to light in the context of a civil proceeding may be the basis of criminal charges is neither new nor unique to this statute.

However, the ERPO statute is civil in nature, not criminal. Respondent has provided no case law in support of his conclusory assertion of entitlement to a right to counsel in a civil proceeding such as this one. Respondent was afforded the protections of the Sixth Amendment in the criminal proceedings, but this civil statute does not extend that right to representation in this special proceeding at which the only possible penalty is a restriction in his ability to possess firearms for a certain period not to exceed one year. Further, respondent has in fact not been deprived of the benefits of counsel even in this civil proceeding, as he has been represented by counsel up to this point. Thus, respondent's argument is without merit and the motion to dismiss for violations of his Sixth Amendment right is denied.

Lastly, respondent argues that the ERPO statute is unconstitutional in that it deprives respondent of his right to keep and bear arms and unjustifiably burdens his right to acquire and possess weapons for self-defense in his own home in violation of the Second Amendment.

The Second Amendment provides that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." (US Const Amend II.) In 2008, the Supreme Court of the United States expressly held and stated in District of Columbia v Heller that the Second Amendment confers an individual right to keep and bear arms for lawful purposes, such as for self-defense in the home. (See District of Columbia v Heller, 554 US 570 [2008].) This right was determined to be fully applicable to the states in McDonald v Chicago (561 US 742 [2010]).

However, "the right to keep and bear arms, like other Constitutional rights, is limited in scope and subject to some regulation." (United States v Chester, 628 F3d 673, 676 [4th Cir 2010].) In Heller, the United States Supreme Court expressly recognized that "the right secured by the Second Amendment is not unlimited" and, further, it has never been understood as allowing one "to keep and carry any weapon whatsoever in any 820*820 manner whatsoever and for whatever purpose." (Heller, 554 US at 626.) Regulatory measures, such as prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding carrying of firearms in sensitive places such as schools and government buildings, and laws imposing conditions on the commercial sale of arms, were provided by the Supreme Court as examples of presumptively lawful restrictions. (See id. at 626-627.)

In reviewing challenges to laws placing restrictions on an individual's Second Amendment rights, courts have developed a two-step analytical framework in which they first determine whether the challenged legislation implicates or infringes upon conduct or individuals protected by the Second Amendment and, if so, then determine the appropriate level of scrutiny with which to evaluate the constitutionality of that law. (See People v Tucker, 181 AD3d 103, 107-108 [4th Dept 2020]; United States v Jimenez, 895 F3d 228, 232 [2d Cir 2018].)

Beginning with the first prong of the analysis, this court must determine whether an individual for whom there is probable cause or clear and convincing evidence^[2] that respondent is likely to engage in conduct that would result in serious harm to himself or others has a right to keep and bear arms protected by the Second Amendment. "The individual right that Heller found in the Second Amendment protects only the sorts of weapons that are (1) in common use and (2) typically possessed by law-abiding citizens for lawful purposes." (Jimenez, 895 F3d at 233 [citations and internal quotation marks omitted].) Some circuit courts have found that individuals who do not abide the law or are "unvirtuous" as that word was understood by the political elite of the Founding generation are not entitled to Second Amendment protections. (See id.) Criminals and "those who, like children or the mentally unbalanced, are deemed incapable of virtue" fall within that category. (Id., quoting United States v Bena, 664 F3d 1180, 1183 [8th Cir 2011].)

Some argue that individuals who pose a threat of serious harm to themselves or others are not "virtuous or responsible citizens" and, therefore, are not entitled to the protections of the Second Amendment. Others contend that

821*821 "the lack of clear historical evidence showing the existence of laws categorically prohibiting [e.g., the mentally unbalanced] from possessing firearms should cut in favor of the notion that these individuals do have Second Amendment rights ... and that any law infringing upon that right must withstand some type of means-end scrutiny." ("Red Flag" Laws: How Law Enforcement's Controversial New Tool to Reduce Mass Shootings Fits Within Current Second Amendment Jurisprudence, 61 BC L Rev at 1529.)

In view of the lack of controlling appellate authority on point, this court holds that these individuals have a right to keep and bear arms protected by the Second Amendment and any statute which substantially interferes with this right must pass the appropriate level of scrutiny.

"Laws that place substantial burdens on core rights are examined using strict scrutiny ... [b]ut laws that place either insubstantial burdens on conduct at the core of the Second Amendment or substantial burdens on conduct outside the core of the Second Amendment (but nevertheless implicated by it) can be examined using intermediate scrutiny." (Jimenez, 895 F3d at 234.)

New York's Red Flag Law at issue herein does not place a substantial burden on a core right of the Second Amendment. A limited-in-time restriction of an individual's right to own or possess a firearm weapon when there is probable cause/clear and convincing evidence to believe that he poses a substantial risk of harm to himself or others does not implicate the core of the Second Amendment's protection, that is, the right of law abiding citizens to keep firearms for self-defense in the home. This court finds that the appropriate level of scrutiny to be applied is intermediate scrutiny, and a review of the law must be undertaken to determine whether the restriction "bears a substantial relationship to the achievement of an important governmental objective." (Tucker, 181 AD3d at 110.)

"[I]t is beyond dispute that New York has substantial, indeed compelling, governmental interests in public safety and crime prevention." (Id. [citations and internal quotation marks omitted].) The ERPO law allows a court to restrict an individual's right to own or possess firearms for up to a term of one year, upon a showing of probable cause/clear and convincing evidence that he is likely to engage in serious harm to himself or 822*822 others as manifested by recent threats of or attempts at suicide or serious bodily harm or by homicidal or other violent behavior. This law and its restrictions indeed bear a substantial relationship to the government's responsibility of protecting the public at large and preventing crime and serious injury to others from individuals who, by their conduct, raise serious concerns that, at that moment and for a limited time in the future, they should not be entrusted with a dangerous instrument. This court finds that the ERPO law at issue herein withstands this level of scrutiny and the constitutional challenge to it based upon Second Amendment rights is denied.

All of the bases set forth by respondent to dismiss the petition are denied. Any arguments not specifically mentioned have been considered and deemed without merit.

With regard to respondent's application to seal the records pending hearing and determination of the final hearing, respondent argues that the underlying facts and outcome of his criminal case are critical to his ability to contest the constitutionality of the ERPO statute and he should not be forced to surrender his right to keep those facts and details secret as the records were sealed in the criminal court. This court notes that no real detail of facts from the criminal case separate and apart from the underlying facts that brought rise to this proceeding have been divulged by respondent. Moreover, respondent has not demonstrated good cause pursuant to 22 NYCRR 216.1 after balancing the interests of the public versus that of the parties. No confidential or other protected information is at risk. The application may be more properly made at a later time. As set forth in CPLR 6346(1), upon expiration of an ERPO order, all records in the proceeding shall be sealed except as to certain listed individuals.

Further, respondent also requests sealing the records due to the potential medical records for which there is an outstanding subpoena that may become part of the record. A motion to quash that subpoena has also been made by respondent. By separate decision, the motion to quash was granted. Thus, these sensitive medical records will not be part of the record in this case.

Upon disposition of this motion, a final hearing for an extreme risk protection order is scheduled for March 2, 2021, at 9:30 a.m. to be held via Microsoft Teams platform.

[1] Pursuant to CPLR 6343, subdivision (3)(c) limits any period of suspension of these rights to one year, which runs from the date of the first order (temporary or final) enjoining the exercise of those rights.

[2] CPLR 6342 provides for a standard of probable cause that a respondent is likely to engage in conduct that would result in serious harm to himself or others for the granting of a TERPO and the more stringent standard of clear and convincing evidence for the granting of a final ERPO under CPLR 6343."

JUDICIAL REVIEW VOIDS ATTORNEY STIPULATION

88 AVE. REALTY DE LLC v. Castro, 2022 NY Slip Op 22168 - NY: City Court, Civil Court 2022:

"Judicial discretion to decline to approve a stipulation is within the fundamental powers of the judiciary.^[2] A stipulation cannot go beyond the subject matter jurisdiction of the Housing Court as provided in New York City Civil Court Act §110.

When a "two attorney stipulation" is presented to the Housing Court is that the end of the inquiry? Does it mean that the Housing Court must approve a stipulation because it's a "two attorney stipulation?" Is the Housing Court expected to act as a rubber stamp? Should the Housing Court accept and approve an admission of a penal law without regard to the rights of the accused under the Constitution of the United States and the laws of the State of New York? If it did so, does that mean that a respondent can now be treated as a defendant and the Housing Court should engage in allocution of a guilty plea? What does a guilty plea or admission of the penal law mean when accomplished through the Housing Court? Can such a guilty plea result in the eventual sentence and incarceration of the respondent? Does this mean that Housing Court is a place where litigators can bypass the protocol of entering a guilty plea under the penal law?

Courts are aware that protocols must be followed upon entering a guilty plea. A plea agreement under the penal law must be approved by the court. People v. Harris, 61 NY2d 9 (1983); People v Pellegrino, 26 NY3d 1063 (2015). The trial judge accepting a guilty plea has the vital responsibility to make sure that the accused has full understanding of what the plea means and its consequences. Waiver of a guilty plea allocution would be contrary to public policy. Most recently on April 20, 2022, in People v. Mothersell, 2022 NY Slip Op 02661, the Appellate Division wrote, "A trial court is constitutionally required to ensure that a defendant, before entering a guilty plea, has a full understanding of what the plea entails and its consequences" citing (People v Belliard, 20 NY3d 381, [2013]; People v Streber, 145 AD3d 1531, 1532, [4th Dept 2016]). See also, Riverside Syndicate, Inc. v. Munroe, 10 NY3d 18 (2008), finding that a stipulation waiving Rent Stabilization cannot be enforced as it is contrary to public policy.

As the stipulation contains paragraphs and admissions which are potentially incompatible with the Constitution of the United States and the State of New York, the Court declines to approve the stipulation. The stipulation that was filed cannot be accepted by the Court. Nor can the Court deconstruct the stipulation and parse out parts that are proper or improper.

The Housing Court is not authorized to hear allegations under the penal law that would require proof beyond a reasonable doubt. This allegation is simply beyond the jurisdictional mandates of the Housing Court.

-----

[2] Both in the Federal and State Courts, judicial review to disallow agreements which are not authorized by law has been affirmed and approved by the appellate courts. See, In re Purdue Pharma, L.P., 635 B.R. 26 (U.S.D.C., Southern District Dec. 16, 2021) appeal pending U.S. Court of Appeals 2nd Circuit; Wright v. Brockett, 150 Misc 2d 1031 (Sup. Ct 1991); See also, Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (U.S.C. A. 2nd Circuit August 7, 2015.)"

GRIEVING FAMILY ACT AWAITING GOVERNOR SIGNATURE

June 3 saw the passing in both house of the bill which would permit the New York families of wrongful death victims to recover compensation for their emotional anguish.

See https://www.nysenate.gov/legislation/bills/2021/S74

WHEN LANDLORD FAILS TO GIVE PROPER NOTICE OF RENT INCREASE

The 2019 changes to the rent laws passed in 2019 require that landlords give market-rate tenants who have resided for more than one year at least 60 days notice if they intend to raise the rent by at least five percen and must give tenants who have resided more than two years 90 days notice. But the law does not stipulate what to do when a landlord fails to give the required notice and there is no clear remedy other than RPL 226-c (a) statement that "If the landlord fails to provide timely notice, the occupant's lawful tenancy shall continue under the existing terms of the tenancy from the date on which the landlord gave actual written notice until the notice period has expired, notwithstanding any provision of a lease or other tenancy agreement to the contrary."

1641 PARK AVE. ASSOC. v. Parker, 2022 NY Slip Op 30519 - NY: Supreme Court 2022:

"The plaintiff has not established that it is entitled to relief on its second cause of action, which seeks ejectment, a judgment of possession referable to the subject premises, and the issuance of a writ of assistance. The 2019 Housing Security and Tenant Protection Act (HSTPA) provides, in pertinent part, that

"[w]henever a ... landlord does not intend to renew the tenancy, the landlord shall provide written notice as required in subdivision two of this section. If the landlord fails to provide timely notice, the occupant's lawful tenancy shall continue under the existing terms of the tenancy from the date on which the landlord gave actual written notice until the notice period has expired, notwithstanding any provision of a lease or other tenancy agreement to the contrary"

(L 2019, ch 36, Part M, § 3; RPL 226-c[1] [emphasis added]). Where, as here, "the tenant has occupied the unit for more than two years ... the landlord shall provide at least ninety days' notice" (RPL 226-c[2][c]).

This court concludes that RPL 226-c applies to all tenancies, and is applicable to both common-law ejectment actions and RPAPL holdover proceedings. There is nothing in this mandatory directive, or in any part of the HSTPA, that suggests that its application is somehow limited only to landlords who elect to commence special proceedings pursuant to RPAPL (cf. Armstrong Realty, Inc. v Roche, 2021 NY Slip Op 30640[U], 2021 NY Misc LEXIS 867 [Sup Ct, Kings County, Mar. 3, 2021] [holding that the recently enacted RPL 226-c did not apply to common-law ejectment actions]; Paz Rentals, LLC v Bryer, 2021 NY Slip Op 30916[U], 2021 NY Misc LEXIS 1276 [Sup Ct, Kings County, Mar. 22, 2021] [same]). In any event, although "[t]he common law does not require a notice to terminate a tenancy of a definite term, ... it does require a notice to quit to remove a tenant of an indefinite term by an ejectment action" (id., 2021 NY Slip Op 30916[U], *3, 2021 NY Misc LEXIS 1276, *4]; see Gerolemou v Soliz, 184 Misc 2d 579 [App Term, 2d Dept, 2d, 11th, & 13th Jud Dists 2000]; Hsiu v Trujillo, 192 Misc 2d 147 [Sup Ct, Bronx County 2002]).

Initially, the statutory notice required here was not a notice of termination, but a notice of nonrenewal. Consequently, the above rule dispensing with the requirement for notices of termination in common-law actions is inapplicable. Moreover, the plaintiff here not only failed to give the defendant notice that it intended not to renew his one-year lease, but failed to give him notice, even after the expiration of his lease, when his alleged "tenancy" became indefinite, that his tenancy was being terminated. In fact, the first formal notice that the defendant received that his tenancy was being terminated was on November 13, 2020, when the plaintiff served him with the summons and complaint in this action, along with papers in support of its motion for a preliminary injunction. That date was more than three months after the term of the defendant's lease had expired.

Hence, the plaintiff has not established, through its moving papers, that it provided the defendant with the required statutory notice, or any notice whatsoever. As such, the branch of the plaintiff's motion which is for summary judgment on its second cause of action, seeking ejectment, a judgment of possession, and the issuance of a writ of assistance, must be denied, regardless of the sufficiency of any opposition papers. Moreover, "it is well settled that the Supreme Court has the authority to search the record and grant summary judgment to a nonmoving party with respect to an issue that was the subject of a motion before the court" (Schwartz v Town of Ramapo, 197 AD3d 753, 756 [2d Dept 2021], quoting Zhigue v Lexington Landmark Props., LLC, 183 AD3d 854, 856 [2d Dept 2020]). inasmuch as the court concludes that the provision and service of that 90-day notice of nonrenewal was a condition precedent to the commencement of a holdover proceeding pursuant to RPAPL or a common-law action for ejectment, that the plaintiff was required to submit such notice a condition to obtaining relief, and that the parties' submissions do not suggest that notice was actually provided, the court further concludes that no notice was, in fact, provided. The court thus searches the record and awards summary judgment to the defendant dismissing the second cause of action.

The dismissal of the second cause of action is, however, without prejudice to the plaintiff's commencement, in the Civil Court, of a proper holdover proceeding or proceeding to recover possession pursuant to the RPAPL after providing the defendant with the proper 90-day notice of nonrenewal pursuant to RPL 226-c. "Civil Court has jurisdiction of landlord tenant disputes ... and when it can decide the dispute, as in this case, it is desirable that it do so" (Post v 120 E. End Ave. Corp., 62 NY2d 19, 28 [1984]; Lexington Ave. Assocs. v Kandell, 283 AD2d 379, 379 [1st Dept 2001])."

TODAY

 Nassau County Bar Association Mortgage Foreclosure Assistance Project 

THE DE FACTO CORPORATION

Ocean Park Acquisition L.P. v. R All Mgmt. Svcs. Inc., Date filed: 2022-05-26, Court: Supreme Court, Queens, Judge: Justice Sally Unger, Case Number: 715695/20:

"Management seems to believe it can escape liability in this action because of the corporate dissolution in 2003. However, generally, where a corporation’s term of existence has expired but the corporation carries on its business affairs and exercises its corporate powers as it did prior to the dissolution, it is a de facto corporation (see, Garzo v. Maid of Mist Steamboat Co., 303 N.Y. 516, 104 N.E.2d 882 (1952). "A corporation continues to exist as a legal entity after dissolution, at least for purposes of actions and proceedings." Independent Investor Protective League v. Time, Inc., 50 NY2d 259, 428 NYS2d 671 (1980). To allow the corporate defendant to be shielded from responsibility based upon its own underlying malfeasance, i.e., failure to pay franchise taxes, would make a mockery of our system of justice.

In the case at bar, Management continued to operate and held itself out as a viable corporate entity despite its corporate dissolution, by entering into the Lease approximately seven years thereafter. “A corporation may be held liable on a cause of action that accrues after dissolution if the corporation continued its operations, operated its premises, and held itself out as a de facto corporation, notwithstanding its dissolution.” (Emphasis added) Bruce Supply Corp. v. New Wave Mechanical, Inc., 4 AD3d 444 (2nd Dept 2004), citing Ludlum Corp. Pension Plan Trust v. Matty's Superservice, Inc., 156 AD3d 339, 548 NYS2d 292 (2nd Dept 1989). Therefore, Management is most certainly liable to the plaintiff for rent at least until its surrender of the subject premises."

DIVORCE AND ORAL STIPULATIONS AND PENSIONS AND ANNUITIES

An annuity is not a pension but both are retirement assets so the proper language should first refer to both (and any other retirement plan or accounts) as "Retirement Assets".

DJ v. CR, 2022 NY Slip Op 50420 - NY: Nass. Co. Supreme Court 2022: 

"JOSEPH H. LORINTZ, J.

The Plaintiff moves by Notice of Motion (Mot. Seq. 07) seeking an Order:

A. Rejecting the Domestic Relations Order submitted by the Defendant to effectuate distribution of the Plaintiff's Retirement Annuity with prejudice;

B. Sanctioning the Defendant's counsel for her repeated failed attempts to set aside the parties' Stipulation of Settlement after the parties' divorce action was settled, the parties were allocuted on the record, and the Findings of Fact and Conclusions of Law and Judgment of Divorce were signed by this Court;

C. Awarding the Plaintiff counsel fees in the amount of $5,000.00; and

D. For such other and further relief as this Court deems just and proper.

The Defendant cross moves by Notice of Cross Motion (Mot. Seq. 08) seeking an Order:

A. Modifying the parties' Stipulation of Settlement dated January 25, 2019 by declaring that the word "pension" refers to all retirement accounts owned by the parties, or, in the alternative, declaring that the word "pension" refers to the parties' four retirement accounts which were evaluated and exchanged during the divorce proceedings;

B. Awarding the Defendant reasonable attorney's fees and the costs for bringing this motion; and

C. Granting such other and further relief as this Court may deem just and proper.

BACKGROUND

The Plaintiff and the Defendant (the "parties") were married on June 4, 2002. There are no children born of the marriage. During the marriage the parties accrued the following four retirement assets: (1) the Plaintiff's Voluntary Retirement Savings Plan c/o XXXXX (the "Plaintiff's Annuity"); (2) the Plaintiff's pension plan with XXXXX (the "Plaintiff's Pension"); (3) the Defendant's Union Annuity Trust Fund (the "Defendant's Annuity"); and (4) the Defendant's Union Pension (the Defendant's Pension"). The Plaintiff commenced an action for divorce on XXX, XX, 2015.

Pursuant to a So-Ordered Stipulation to Refer Case dated October 2, 2018 (Lorintz, J.), the trial of this matter was referred to the Supervising Judge of the Matrimonial Parts, Nassau County, New York, for referral to a Judicial Hearing Officer or Court Attorney Referee. The trial of this matrimonial matter commenced before Referee Marie McCormack in XXXXX, 2018. On February 26, 2019, the parties entered into an oral stipulation resolving all ancillary issues, the terms of which were spread on the record (the "Stipulation"). Therein, the parties agreed that their "pension shall be split equally pursuant to the Majauskas formula and each party will be responsible for 50 percent of the costs." They further agreed that each party "shall be [the] sole owner of all bank accounts currently in their name, be it personal or business." The parties further agreed, inter alia, that the Plaintiff would purchase the Defendant's ownership interest in the marital residence for $250,000.00. During their allocution, Referee McCormack asked each party to affirm their understanding that the Stipulation was a "full and final settlement of this matter resolving all issues in this matrimonial action." Both parties affirmed, and the court held that they entered into the Stipulation "freely and voluntarily."

In or about July 2019, the Plaintiff's counsel filed on notice to the Defendant's counsel, a Proposed Findings of Fact and Conclusions of Law and Proposed Judgment of Divorce, together with other papers necessary to effectuate the parties' divorce. The "Fifteenth" Paragraph of said Proposed Findings of Fact stated, "the wife's pension and Defendant's pension shall both be split in accordance with the Majauskas formula and each party shall be responsible for half the cost." The fifth ordered paragraph in the Proposed Judgment of Divorce further stated that "the Party's pensions shall be split equally pursuant to the Majauskas formula and each party shall be responsible for 50% of the costs."

On or about August 16, 2019, the Defendant filed an Order to Show Cause (Mot Seq. 05) seeking, inter alia, an Order restoring this matter to the Court's Calendar "so that all assets that have not been equitably distributed can be equitably distributed", holding the Plaintiff in contempt for violating the automatic orders, sanctioning the Plaintiff and her counsel, and awarding the Defendant counsel fees. This Court declined to sign Motion Seq. 05 on August 16, 2019. On or about August 27, 2019, the Defendant's counsel filed on notice to the Plaintiff's counsel, a Counter Proposed Judgment of Divorce, together with other papers necessary to effectuate the parties' divorce. The third ordered paragraph of the Counter Proposed Judgment provided for the distribution of both parties' annuities and pensions.

The parties were divorced by a Judgment of Divorce dated August 30, 2019 (McCormack, Referee). Referee McCormack signed the Judgement of Divorce submitted by the Plaintiff's counsel. The "phrase "Pursuant to Stipulation" was inserted at the beginning of the Fifteenth Ordered Paragraph. On or about July 21, 2021, the Defendant's counsel filed a Proposed Qualified Domestic Relations Order to distribute the Plaintiff's Annuity (the "QDRO"). The Plaintiff's counsel filed two Affirmations objecting to the QDRO before filing the instant Notice of Motion (Mot. Seq, 07) on December 24, 2021. The Defendant cross moved by Notice of Cross-Motion (Mot. Seq. 08) on January 21, 2022. The Plaintiff filed responsive papers on or about February 23, 2022, and the Defendant filed a Reply on March 20, 2022. Motion Seqs. 07 and 08 were fully submitted on May 9, 2022.

DISCUSSION

The merit of both parties' applications hinge on whether the parties' retirement annuities must be distributed pursuant to the Stipulation and, if the answer is no, whether the Stipulation must be modified or vacated for not explicitly addressing the same.

"Open court stipulations of settlement are judicially favored and should not lightly be set aside." Hannigan v Hannigan, 50 AD3d 957 (2d Dept 2008). Parties are free to enter into agreements "that not only bind them, but which the courts are bound to enforce." Etzion v Etzion, 84 AD3d 1015 (2nd Dept. 2011) (quoting Greve v Aetna Live-Stock Ins. Co., 30 NYS 668, 670 [1894]). An oral stipulation of settlement spread on the record is "binding and strictly enforceable and shall not be disturbed absent a showing of one of the traditional grounds for vacatur, e.g., fraud, duress, mistake or overreaching." M.P. v L.P., 2006 NY Misc. LEXIS 4017 (Sup Ct, Queens County Mar. 10, 2006) (citing Harrington v Harrington, 103 AD2d 356 [2d Dept 1984]); see also CPLR § 2104. Such stipulations are contracts which are subject to the principles of contract law. Petrovovich v Obradovic, 40 AD3d 1063 (2d Dept 2007); Simmons v Simmons, 305 AD2d 661 (2d Dept 2003).

Where an agreement is clear and unambiguous on its face, the parties' intent must be construed within the four corners of the agreement and not from extrinsic evidence." Khorshad v Khorshad, 121 AD3d 857 (2nd Dept. 2014). "Courts should construe stipulations made in open court in accordance with the purpose of the agreement and the parties' intent by examining the entire record as a whole. Hannigan v Hannigan, 50 AD3d 957 (2d Dept 2008). "However, a court should not, under the guise of interpretation, make a new contract for the parties." Sklerov v Sklerov, 231 AD2d 622 (2d Dept 1996). A court cannot enforce a contract unless it can determine what the parties have agreed to. 166 Mamaroneck Ave. Corp. v. 151 East Post Rd. Corp., 78 NY2d 88 (1991). If an agreement is not reasonably certain in its terms, there can be no legally enforceable contract. Id citing Joseph Martin, Jr., supra.

Here, the Plaintiff argues that the QDRO submitted to the court by the Defendant's counsel should be rejected, as the parties waived distribution of their annuities, and agreed that only their pensions would be divided. She claims their agreement is evidenced by the clear language in the Stipulation, wherein they explicitly stated that their pensions would be distributed by a QDRO pursuant to the Majauskas formula, and by the absence of a similar clause in reference to their annuities. The Defendant claims that the parties negotiated and agreed to distribute all their retirement assets and, in entering into the Stipulation, he believed the term "pension" included all four of their accounts. He further claims that the Plaintiff and her attorney shared his understanding. The Defendant argues that the parties never contemplated waiving their interest in each other's retirement assets, as evidenced by the absence of an explicit waiver in the Stipulation. The Defendant's counsel further argues that "[i]t is well settled law in New York that waivers are legally insufficient to enforce a waiver upon a retirement account, in the context of a divorce stipulation, and New York routinely requires waivers of non-defined benefit plans such as 401k, to be specific, and the plan must be identified." In support of this purported legal principle, the Defendant cites to three cases: Eredics v Chase Manhattan Bank, N.A., 100 NY2d 106 (2003); Smith v Pathmark Stores, Inc., 57 AD3d 759 (2d Dept 2008); and Matter of Christie, 152 AD3d 765 (2d Dept 2017).

In Eredics v Chase Manhattan Bank, N.A., supra, the court held that a separation agreement did not constitute a waiver of an ex-spouse's beneficiary interest in Totten Trust accounts owned by her deceased ex-husband. The court reasoned that the language cited by the movant was not sufficiently explicit to constitute a waiver pursuant to EPTL § 7-1.9, the Totten Trusts were not specifically referenced in the agreement, and the parties agreed that accounts not specifically mentioned in the agreement were already "distributed equitably and to the mutual satisfaction of the parties, prior to the execution of this agreement." Similarly, in Smith v Pathmark Stores, Inc., supra, the court held that a former spouse had not waived his beneficiary interest in his decedent-wife's 401k, as the stipulation executed by the parties did not specifically reference the account, and the general release language contained therein did not constitute a valid waiver.

Both cases are clearly distinguishable from the instant matter, as they were actions in surrogate's court wherein surviving ex-spouses, who were still listed as beneficiaries of their deceased ex-spouse's retirement accounts, sought to collect a beneficiary interest. The relevant issue in both cases was whether agreements executed by the parties constituted valid waivers of their beneficiary interests. Though the Defendant argues otherwise, neither court held that the same specificity was required to waive distribution of a retirement asset in the context of a divorce proceeding.

The Defendant further cites to Matter of Christie, supra, wherein the court held that a stipulation of settlement that was incorporated into a judgment of divorce, wherein one party agreed to accept $60,000.00 in exchange for her interest in the other party's "retirement/pension and/or bank accounts", constituted a valid waiver of the surviving ex-spouse's beneficiary interest in the decedent's pension plan. Even if the facts of this case were analogous to those of the instant matter, which they are clearly not, the court's ruling would still belie, or at least qualify, the legal principle argued by the Defendant.

The parties, and this Court, need not attempt to glean precedential wisdom from cases with dissimilar facts, as there are several published decisions which directly address the issues herein. Indeed, the facts in Hannigan v. Hannigan, 50 AD3d 957 (2d Dept 2008) and W.T, v. E.T., 28 N.Y.S.3d 651 (Sup. Ct. Cayuga Cty. 2016) are strikingly similar to the instant matter.

In Hannigan, the parties resolved their matrimonial action by an oral stipulation of settlement in open court. While spreading the terms of the parties' agreement on the record, the parties' counsel failed to address the Defendant's 401-k or pension plan. However, the parties' Judgment of Divorce included a decretal paragraph distributing both retirement assets. On appeal, the Second Department, Appellate Division vacated the Judgment and held that the Plaintiff was not entitled to distribution of the Defendant's retirement assets. The court reasoned, in part, that both parties were represented by counsel, the terms of the stipulation were clear and unambiguous, and, therefore, the absence of a provision distributing retirement assets evinced the parties' intent not to distribute them. The court held that such intent was confirmed by the Plaintiff's counsel's representation that there was nothing left to place on the record and by the subsequent voir dire of the parties.

In W.T. v. E.T., supra, in spreading the terms of the parties' oral stipulation of settlement on the record, the wife's attorney stated that the husband had "a pension, a true pension with his primary employer" and that he would provide information necessary for the wife to obtain a QDRO. No agreement regarding the husband's second pension was placed on the record. The parties agreed that their oral stipulation resolved all contested issues and would be incorporated into a divorce judgment. Eighteen months after the Judgment of Divorce was entered, the wife's attorney indicated her intent to file a QDRO to distribute the second pension. The court held that since both parties and their attorneys knew the husband had two pensions for at least six months before the case was settled, their failure to mention the second pension while spreading the terms of their agreement on the record precluded distribution thereof. Similarly, in Dykstra v Dykstra, 211 AD2d 745 (2d Dept 1995) the court declined to reopen a stipulation of settlement based upon one parties' claim that distribution of an annuity was inadvertently omitted.

Here, as in W.T. v. E.T., supra and Hannigan, supra, both parties were represented by counsel, all retirement assets were disclosed and valued well before the settlement was entered into, and the parties were allocuted on the record. Crucially, both parties affirmed that the Stipulation was a "full and final settlement of this matter resolving all issues in this matrimonial action." While the Defendant argues that there was a mutual mistake of fact as to the definition of the term "pension", he offers nothing more than conclusory allegations to support his claim that the Plaintiff shared his understanding. See, for e.g., McClorey v McClorey, 153 AD3d 1252 (2d Dept 2017) (denying a motion to vacate a stipulation for the movant's failure to support allegations of mutual mistake with "record evidence"). Even if the Defendant and his attorney believed the word "pension" meant something other than its colloquial definition, such error was at best a unilateral mistake. To obtain reformation based on a unilateral mistake, a movant must show that the mistake was induced by the other party's fraudulent representation. See Kadish Pharm., Inc. v Blue Cross & Blue Shield, Inc., 114 AD2d 439 (2d Dept 1985). Here, the Defendant failed to establish that his and his attorney's misunderstanding of the term "pension" was induced by the Plaintiff's fraudulent conduct.

"In the context of a matrimonial action, the Court of Appeals has recognized that a final judgment of divorce settles the parties' rights pertaining not only to those issues that were actually litigated, but also to those that could have been litigated." Spencer v Spencer, 159 AD3d 174 (2d Dept 2018) (citing Nicodemus v. Nicodemus, 124 AD3d 849, 851, 3 NYS3d 64 [2015]). Here, the parties agreed that the Stipulation was a "full and final settlement" and resolved all issues. The terms of their agreement were clear and unambiguous, both parties were represented by counsel, and, during their allocutions, the parties indicated that they were satisfied with their representation. The Defendant has failed to prove the existence of fraud, duress, unconscionability, or mutual mistake, and has failed to establish that any unilateral mistake was induced by the Plaintiff's fraudulent representations. Considering all the facts and circumstances discussed herein, the Defendant's conclusory allegations are insufficient to overcome this State's strong public policy of ensuring finality in divorce proceedings.

Accordingly, all branches of the Defendant's application (Mot. Seq. 08) are DENIED. The branch of the Plaintiff's application (Mot. Seq. 07) seeking an Order rejecting the QDRO filed by the Defendant seeking to distribute her Annuity is GRANTED; and it is hereby

ORDERED, that the Proposed Domestic Relations Order submitted by the Defendant to effectuate distribution of the Plaintiff's Annuity is dismissed with prejudice.

The Plaintiff seeks an Order directing the Defendant to pay her $5,000.00 as and for the counsel fees she incurred during the instant motion practice. She further seeks an Order sanctioning the Defendant's counsel pursuant to 22 NYCRR 130-1.1. The Plaintiff, and her counsel, claim that the Defendant previously sought the same relief requested herein in post-settlement discussions with Referee McCormack, a previously filed Order to Show Cause, and a proposed QDRO which was obtained ex parte and filed without notice of settlement. She argues that, though they were unsuccessful in all prior attempts and knew, or should have known, that this motion would not succeed, the Defendant and her counsel chose to file Motion Seq. 08, and ought to pay the legal fees she incurred as a result. In opposition to the Plaintiff's prayer for counsel fees and sanctions, the Defendant appears to rest on the merits of his application (Mot. Seq. 08).

Conduct during litigation is frivolous and subject to sanctions and/or counsel fee awards when it is completely without merit in law or fact and cannot be supported by a reasonable argument for the extension, modification, or reversal of existing law; it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another, or it asserts material factual statements that are false Wecker v. D'Ambrosio, 6 AD3d 452 (2nd Dep't 2004) citing 22 NYCRR 130-1.1. At the very least, the movant must have a good faith basis to assert their claim. Id citing Kamruddin v. Desmond, 293 AD2d 714 (2nd Dep't 2002).

Here, the Defendant offers nothing more than conclusory allegations in support of his claim of mutual mistake, and he fails to establish that his claimed unilateral mistake was induced by the Plaintiff's fraudulent conduct. Furthermore, the Defendant's counsel persistently and incorrectly argues that parties cannot waive equitable distribution of retirement assets unless the waiver is in writing and explicitly identifies each asset being waived. Though not entirely clear, it seems that the Defendant's counsel is misapplying the rules governing waivers of survivor benefits, pursuant to ERISA. See, for e.g., Edmonds v Edmonds, 184 Misc 2d 928 (Sup Ct, Onondaga County 2000). Thus, this Court agrees that the Defendant's application was without merit in law or fact and, therefore, the Plaintiff is entitled to a counsel fee award. On the other hand, the Plaintiff failed to establish, to this Court's satisfaction, that the Defendant and his counsel were operating in bad faith, and, though an explicit waiver was not required with respect to the parties' retirement assets, given the length and nature of the parties' matrimonial litigation and that less-valuable assets were specifically addressed in the Stipulation, failing to specifically address the parties' annuities was imprudent and, therefore, both parties are partially responsible for the instant motion practice.

Accordingly, the branch of the Plaintiff's application seeking sanctions is DENIED. The branch of her application seeking an Order directing the Defendant to pay counsel fees pursuant to 22 NYCRR 130.1 is GRANTED to the extent that it is hereby

ORDERED, that the Defendant shall pay to the Plaintiff $2,500.00 within thirty (30) days of the service of this Decision and Order with notice of entry; and it is further

ORDERED, that if the Defendant fails to pay the counsel fees awarded herein within the time directed above, the Plaintiff is awarded a money judgment in said amount, with a credit for any partial payment made by the Defendant. Upon such non-compliance, the Plaintiff may file an affidavit of non-compliance with the Nassau County Clerk, along with a copy of this Decision and Order, and may then enter judgment without further proceedings.

Any relief sought herein and not specifically ruled upon is denied.

This constitutes the Decision and Order of this Court."