SEALING THE FILES UNDER RPAPL 757

New York RPAPL 757 provides:

"In the event that a lessee is removed from real property pursuant to this article, and the leased real property was the subject of a foreclosure proceeding pursuant to this chapter or the subject of a tax foreclosure proceeding, the court records relating to any such lessee shall be sealed and be deemed confidential. No disclosure or use of such information relating to any such lessee shall be authorized, and the use of such information shall be prohibited."

And its applicability was addressed in this case. LNV Corp. v. Amin, NYLJ July 08, 2020, Date filed: 2020-07-01, Court: Civil Court, Judge: Judge David Bryan, Case Number: 032975/19:

"This matter was brought as a residential holdover case by Notice of Petition and Petition. The petitioner alleges service of a 90-day Notice to Vacate dated December 28, 2018 upon Luis Estrada, Maria Estrada, Zucely Estrada, and “Tenants”. The notice indicated in part that the property located at 508 Morris Park Avenue, Bronx, NY 10460 has been sold at a foreclosure sale and is now owned by LNV Corporation. The matter appeared on the Court’s calendar on August 22, 2019 to October 2, 2019 and the matter was adjourned for Zucely Estrada to seek counsel. On October 2, 2019 the matter was adjourned to October 29, 2019 for settlement or trial. On October 29, 2019 Zucely Estrada reached a settlement by stipulation with petitioner for a final judgment of possession with execution of the warrant stayed to January 31, 2020 so respondent might vacate. On October 29, 2019 the matter was adjourned to December 4, 2019 for an inquest against all non-appearing parties. Inquests were adjourned on December 4, 2019 and December 16, 2019 and postcards were sent to respondents on both occasions.

On January 27, 2020 an inquest was held against Amin as well as John and Jane Doe. During the inquest petitioner presented a referee’s deed pursuant to LNV Corporation v. Mohammad R. Amin a/k/a Mohammad R. Ramin et. al., Index 35447/2013 E conveying the premises to petitioner and away from Amin a/k/a Ramin. The Court was able to determine that John and Jane Doe were tenants of the former owner and that Luis, Maria and Zucely Estrada were tenants as well. The Court asked petitioner’s counsel what steps had been taken to comply with RPAPL §757′s requirement that the court’s file must be sealed when a holdover is brought against the former tenants of the foreclosed owner. Counsel was unable to answer other than to state that inasmuch as John and Jane Doe were named, no one’s privacy was compromised. The Court noted that the Estradas were also tenants and their names remained in the public domain. After submission, the Court reserved decision as to the judgment of possession after inquest. Upon further consideration, the Court finds that petitioner has satisfied its prima facie burden in this holdover and may apply for a judgment of possession when appropriate given the coronavirus pandemic.

Discussion
The Court begins its analysis of RPAPL §757 by noting it is contained within the larger body of newly enacted laws encompassed within the “Housing Stabilization and Tenant Protection Act of 2019″ (HSTPA). The Court analyzes the provisions of the HSTPA considering the legislative intent of the Act to be the protection of tenants and the preservation and maintenance of affordable housing stock. RPAPL §757 protects tenants remaining in foreclosed homes during summary holdover proceedings brought against them by the new owners. RPAPL §757 requires that summary holdover proceedings against tenants of the foreclosed owner be sealed so that those tenant’s identities are protected. This decision will discuss the factors encountered by the Court on inquest in the application of and enforcement of RPAPL §757.

Given that the HSTPA and RPAPL §757 are only a few months old, the Court has found no current authority showing the application of RPAPL §757. Inasmuch as RPAPL §757 is a statute focused on protecting the financial reputation and credit score of tenants¹, the Court makes an analogy to RPL §227 F, a similar statute² that follows a long struggle to remove the impact of tenant screening companies (TSC) on prospective tenants because of prior landlord and tenant proceedings commenced pursuant to Article 7 of the RPAPL.

TSC’s are utilized by landlords to advise them as to their decisions to accept the applications of prospective tenants. The advice provided is customized by landlords setting their own criteria for acceptance or exclusion. A landlord may determine that any litigation against a tenant excludes them from a prospective tenancy. Another landlord may determine that a certain number of cases or type of litigation (e.g. a nuisance holdover) would exclude a prospective tenant all together. Courts have found that being placed on what is effectively a tenant blacklist as a result of the commencement of a housing court proceeding makes obtaining another rental or cooperative apartment nearly impossible. This result has been held to constitute irreparable harm. Even if a tenant were to prevail in part or in whole in any such housing court proceeding, they remain subject to blacklisting due to the practice of TSCs disseminating incomplete information regarding the outcome of these housing court proceedings. See, Nieborak v. W54-7 LLC, 2016 NY Slip Op 31040[U] [Sup Ct, NY County 2016]; See also, Pultz v. Economakis, 8 Misc 3d 1022[A], 2005 NY Slip Op 51238[U] [Sup Ct, NY County 2005]. Tenant advocates have long sought to have these “blacklisting” companies deprived of the necessary data to report on tenants involved in New York City Housing Court proceedings.
Some aspects of the TSC business model are illustrated in Wenning v. On-Site Mgr., Inc., 2016 US Dist LEXIS 81126, [SDNY June 22, 2016] In that case two individuals were denied apartments based upon a report generated by On-Site Manager, Inc. (On-Site) upon the request of prospective landlords. While that case concerns itself with inaccuracies and remedies under the Fair Debt Collections Practices Act (FDCPA), the business of gathering information regarding tenants is described.

Since 2009, On-Site has obtained data relating to New York City Housing Court proceedings from LexisNexis Risk Data Retrieval Services LLC and its successors (“Lexis”). Before that, On-Site purchased Housing Court data directly from the New York State Office of Court Administration (“OCA”). Lexis is an established and experienced vendor, and On-Site believed it a reputable source of accurate information concerning Housing Court Proceedings. Lexis obtains information directly from the paper files in the Housing Court clerk’s office, which it translates into a daily stream of data made available to companies like On-Site (emphasis added) (internal citations to the record omitted).
Wenning v. On-Site Mgr., Inc., 2016 US Dist LEXIS 81126, 18-19 [SDNY June 22, 2016].

In Wenning, one of the two tenants, Correa, was the subject of a negative report from On-Site indicating that he had a New York City Housing Court case and this report was used to deny him a new apartment. The lawsuit alleged that Correa had sublet an apartment from Scroczynski, another respondent. Correa rented an apartment allegedly believing that Scroczynski had the right to rent the apartment to him. The landlord disagreed and Scroczynski and Correa were the subject of a residential holdover case in Housing Court based upon an impermissible sublet. The landlord served a Notice of Termination and commenced a holdover against Correa and Scroczynski. Correa quickly executed a stipulation agreeing to a final judgment of possession with several months to vacate as long as use and occupancy was paid at the rent stabilized rate. Correa then vacated the apartment as agreed.

The Housing Court case against Correa is analogous to the position of a tenant after foreclosure. Correa was the sub-tenant of Alexander Scroczynski, the prime tenant and Correa contends that he believed that Scroczynski had the right to sublet the apartment. In short, Correa was named as a respondent so that he could be removed if the landlord prevailed against Scroczynski, not because of any fault of Correa. The analogy to the instant matter is that tenants in premises that have been sold as a consequence of foreclosure proceedings did not default on the mortgages and their eventual eviction is a consequence of the landlord’s default, not due to any fault of their own.

Correa’s cause of action against On-Site arose when he sought to obtain a new home. On-Site was used by two of the landlords that Correa submitted applications to for a new apartment. One of the two landlords required On-Site to use an algorithm to reject any prospective tenant with any housing court record. This landlord indicated that they might reconsider if a letter of explanation was provided by the petitioner in the prior case, but this request was rejected by the petitioner-landlord. The second prospective landlord also rejected Correa on the same basis of having a housing court record, but Correa’s request for a letter of explanation from the petitioner in the prior case was granted and provided to the prospective landlord.

The Court in Wenning identified a host of problems with the reporting by On-Site that may well be endemic to the industry. These problems include a lack of mitigating information (such as the fact that Correa was also victimized by Scroczynski and that he paid the use and occupancy required and exited as agreed), and a lack of understanding of housing court proceedings (the report described the holdover action as a “Forcible Entry/Detainer”³ with associated pejorative assessments).

The intent of the legislature in passing RPAPL §757 was that the tenants remaining in a property after a foreclosure sale will constitute a separate class of tenants. It is clear that the HSTPA intended that tenants in possession after foreclosure would not suffer a negative impact of their credit ratings⁴ or their ability to obtain new housing because of their involvement in a holdover after foreclosure brought against their landlord. It is notable that the remedy provided to this class of tenants was not only to prohibit the use of TSC reports to deprive tenants of housing but to remove their identities from the stream of commerce. The concerns of the legislature that credit and tenant reporting agencies would paint these tenants with an overly broad brush is echoed by Judge Kaplan in White v. First Am. Registry, Inc., 2007 US Dist LEXIS 18401 [SDNY Mar. 7, 2007].

This lawsuit arises by reason of the nature of defendants’ business, which consists of selling landlords the opportunity to consult a list of individuals who have been involved in landlord-tenant litigation. As defendants doubtless well understand, risk averse landlords are all too willing to use defendants’ product as a blacklist, refusing to rent to anyone whose name appears on it regardless of whether the existence of a litigation history in fact evidences characteristics that would make one an undesirable tenant. Thus, defendants have seized upon the ready and cheap availability of electronic records to create and market a product that can be, and probably is, used to victimize blameless individuals. The problem is compounded by the fact that the information available to defendants from the New York City Housing Court (“NYCHC”) is sketchy in the best of cases and inaccurate and incomplete in the worst. Any failure by defendants to ensure that the information they provide is complete, accurate, and fair heightens the concern — and there has been ample reason for heightened concern.
White v. First Am. Registry, Inc., 2007 US Dist LEXIS 18401, 3-4 [SDNY Mar. 7, 2007]
The Court has concerns regarding the instant matter due to the provisions of RPAPL §757 as modified under the HSTPA. It is clear that the legislature intended that tenants remaining in homes lost after judgments of foreclosure should not be the subject of a negative tenant profile or poor credit rating based upon the filing of a summary proceeding. Senator Kevin Parker’s sponsor memo makes it clear that the objective was “To seal court records regarding a tenant’s eviction due to foreclosure and to ensure that credit scores of lessees of foreclosed properties are not adversely affected.”⁵

The Court’s inquiries permits judicial notice that there appears to be no affirmative duty established on petitioner to identify the respondents as tenants after foreclosure. Often petitioner will establish standing or jurisdiction by a relevant document such as a referee’s deed after foreclosure or a 90-day predicate notice. However, there appears to be no expectation that the file will be identified as a tenant holdover after foreclosure sale against the original landlord. Despite the high propensity of one-and two-family homes lost to foreclosure in this county, this Court has never had a petitioner on inquest or through stipulation of settlement prepared to address compliance with RPAPL §757. While foreclosures have diminished in the public’s perception, New York City’s “outer boroughs” are still being impacted on a large scale. Foreclosures in the past five years have increased 313 percent in Staten Island and have approximately doubled in Brooklyn and Queens. The Bronx has lost approximately 40 percent of its homeowners since 2008, and it is particularly notable that foreclosure auctions are rising, indicating no shortage of holdovers after foreclosure awaiting filing in Housing Court. Therefore, there will be an ongoing class of individuals for whom RPAPL §757 was intended to protect.⁶ This consequence is only exacerbated by the unprecedented amount of vast and sudden unemployment resulting from the coronavirus pandemic of 2020.

If a methodology that would identify cases subject to RPAPL §757′s requirements could be implemented, the operation of the judgments obtained would also require modification. Practically speaking, most residential holdovers of tenants after foreclosure will require a judgment of possession. The landlord will need a method to compel the tenant to leave even if a stipulated agreement is reached for the tenant to vacate. The “stick” of the judgment and warrant of eviction is often required to assist the landlord in obtaining possession with or without the intervention of the Marshall or Sheriff. However, absent some other remedy a residential judgment of possession must be obtained against an entity, not an anonymous person. To achieve RPAPL §757 objectives there must be a method to maintain the anonymity of the tenant after foreclosure while maintaining the effectiveness of the judgment of possession.

As previously stated, a tenant’s identity is captured at the start when case is filed in the clerk’s office. If the Court seals the matter on its own motion or on petitioner’s motion, the tenant’s identity has already entered the stream of commerce with the consequent damage to their credit rating and ability to obtain housing. If a remedy is to be found, it must come by having an affirmative duty put upon the petitioner to identify the case as a post foreclosure case and a method must be implemented at the point in time of filing by the clerk to safeguard the tenant’s identity.⁷

Conclusion
Although the inquest reveals that this holdover is not in compliance with RPAPL §757, the inquest is GRANTED. Petitioner has satisfied its prima facie burden in this holdover and may apply for a judgment of possession when appropriate given the coronavirus pandemic. As noted above, the Court is without a clear method to enforce the statute and sealing the file would be moot at this stage as the respondent’s identities are already known and in the Court’s computer system. This Court will not seek to lock the barn door after the horse has left.

Footnotes

1. See, S4084A (ACTIVE) --- Sponsor Memo at https://www.nysenate.gov/legislation/bills/2019/S4084.
2. See, RPL §227 F --- Denial on the basis of involvement in prior disputes prohibited: No landlord of a residential premises shall refuse to rent or offer a lease to a potential tenant on the basis that the potential tenant was involved in a past or pending landlord-tenant action or summary proceeding under article seven of the real property actions and proceedings law. There shall be a rebuttable presumption that a person is in violation of this section if it is established that the person requested information from a tenant screening bureau relating to a potential tenant or otherwise inspected court records relating to a potential tenant and the person subsequently refuses to rent or offer a lease to the potential tenant.
3. The Court notes On-Site changed its terminology; in lieu of "Forcible Entry/Detainer," it now uses the term "Civil Action for Possession." See, Wenning v. On-Site Mgr., Inc., 2016 US Dist LEXIS 81126, 19-20 [SDNY June 22, 2016].
4. The inclusion of judgments in the calculation of credit scores was repealed by the National Consumer Assistance Plan in 2017. While not explicitly included in the credit scoring, the information is available to potential lenders or others seeking to assess whether to extend credit. For more information regarding the National Consumer Assistance Plan see http://www.nationalconsumerassistanceplan.com. See also Removal of public records has little effect on consumers' credit scores by Jasper Clarksberg and Michelle Kambara https://www.consumerfinance.gov/about-us/blog/removal-public-records-has-little-effect-consumers-credit-scores/.
5. Sponsor Memo at https://www.nysenate.gov/legislation/bills/2019/S4084.
6. ¨See: Aftermath: Affordable Homeownership in New York City, by John Baker, Leo Goldberg, Caroline Nagy and Ivy Perez. Published by Center for New York City Neighborhoods. https://s28299.pcdn.co/wpcontent/ uploads/2018/10/CNY002-AH-Summit-Report_v7_FINAL_online.pdf See also: 2019 Annual Foreclosure Report: NYC Foreclosures Dip 6 percent Y-o-Y https://www.propertyshark.com/Real-Estate-Reports/NYC-Foreclosure-Report
7. It should be noted that there is no penalty in the HSTPA for failure to comply with §757."

NYC FREELANCE ISN'T FREE ACT

Prior to this pandemic, New York City addressed the magnitude of the "gig economy" and on May 15, 2017, Local Law 140 of 2016 took effect. The law establishes and enhances protections for freelance workers, specifically the right to a written contract, timely and full payment and protection from retaliation.

Turner v Sheppard Grain Enters., LLC 2020 NY Slip Op 20139 Decided on June 23, 2020 Supreme Court, New York County Bluth, J.:

"Background Plaintiff seeks purportedly unpaid consulting fees under a consulting agreement he had with defendant, an agricultural products processor and distributor. He insists his fees were withheld in bad faith based on a non-existent pretextual termination for cause and he is owed over $150,000 in fees plus double damages under New York City's Freelance Isn't Free Act ("FIFA").

Defendant moves to dismiss the third and fourth causes of action on the ground that the Freelance Isn't Free Act does not apply to this case because plaintiff did not perform the work in New York City. Defendant acknowledges that the law is ambiguous on this point and that there are few cases on the scope of the statute but insists that plaintiff has no standing to bring these types of claims. It stresses that defendant only maintains a New York office for notice purposes, plaintiff did not sign the contract in New York City and that plaintiff is not a freelance worker.

In opposition, plaintiff emphasizes that defendant is an LLC with its principal office on Seventh Avenue in New York City. He contends that the agreement was signed by Mr. Song (manager of defendant) in New York City and details work that he performed for defendant relating to tasks based in New York City. Plaintiff acknowledges that defendant does not "mash soybeans" in New York City but argues it is the place where much of defendant's work is done.

Plaintiff adds that defendant is owned, controlled and run by a private equity firm based in New York City. He argues that a person's residency is not determinative under FIFA and the law is remedial, meaning it should be interpreted broadly to support its purpose. Plaintiff asks the Court to consider how work is performed in the digital age and not to limit the scope of FIFA to a person who is physically in New York City.

In reply, defendant stresses that plaintiff did little to no work in New York City and defendant has little to no operations here. It argues that plaintiff identified two meetings over a three-year period in New York City and that the New York office is only used to receive mail. Defendant argues its "nerve center" is in Phelps, New York, hundreds of miles from the city.

Discussion FIFA defines a freelance worker as "any natural person or any organization composed of no more than one natural person, whether or not incorporated or employing a trade name, that is hired or retained as an independent contractor by a hiring party to provide services in exchange for compensation"(FIFA § 20-927). A review of the consulting agreement reveals that this was an agreement where plaintiff would provide his operations management expertise to defendant in exchange for compensation (NYSCEF Doc. No. 32). Clearly, plaintiff qualifies as an independent contractor based on this agreement and falls within FIFA's definition of a freelance worker.

FIFA was passed largely to protect freelance workers who were denied compensation by inter alia imposing double damages on companies that breached agreements (Caitlin M. Baranowski, Freelance Isn't Free: The High Cost of New York City's Freelance Isn't Free Act on Hiring Parties, 12 Brooklyn J Corp Fin & Com L 439, 443 [2018]). However, FIFA does not provide any guidance or definitions as to its scope or applicability. The statute is completely silent on how to assess scenarios such as the one present here: a freelancer based out of state and doing work remotely from out of state for a company whose address (in the agreement) is in New York City but whose business is physically conducted outside the city.

"FIFA does not clarify whether individuals must have physical locations in N.Y.C., mailing addresses in N.Y.C., or simply conduct business regularly in N.Y.C., in order to meet FIFA's definition of freelance workers or hiring parties. FIFA may apply to work performed outside N.Y.C. depending on the particular circumstance, including whether some of the work is performed in N.Y.C, whether the freelance worker was hired or retained in N.Y.C, and whether the hiring party's operations are within N.Y.C." (id. at 456).

In fact, the NYC Department of Consumer Affairs posits (on its FAQ page) that "The Freelance Isn't Free Act is a New York City law. While judges will decide how the Law applies in each case, the Law does apply to work performed inside New York City and may apply to work performed outside New York City depending on the overall circumstances. For example, whether the Law applies may depend on whether some, but not all of the work is performed in New York City, the freelance worker is hired or retained in New York City, or the hiring party has significant operations in New York City" (NYC Consumer Affairs, Freelance Isn't Free Act: Frequently Asked Questions, http://wwwl.nyc.gov/assets/dca/downloads/pdf/workers/FAQs-Freelance.pdf).

Because the law provides no guidance on how to assess the application of FIFA, the Court must consider the purpose and intent of the law in light of the present circumstances. When considering another city law, the New York City Human Rights Law ("NYCHRL"), the Court of Appeals adopted the impact requirement, which holds that "the nonresident plaintiff [*2]must demonstrate that the alleged discriminatory conduct had an 'impact' within the city" (Hoffman v Parade Publs., 15 NY3d 285, 290, 907 NYS2d 145 [2010]).

The Court observes that the NYCHRL contains an entire section (8-101) about the policy of the NYCHRL and it specifically mentions the city's inhabitants. No such language is included in FIFA. But the Court sees no reason to depart from this standard when evaluating whether a non-resident (plaintiff lives in Connecticut and does his work remotely there) should be afforded the protections of FIFA.

Under the impact standard, the Court finds that plaintiff is not entitled to the protections of FIFA because he is not a New York City resident and he performed the vast majority of his work from Connecticut. In fact, the termination letter is addressed to plaintiff at a location in Darien, Connecticut (NYSCEF Doc. No. 33). While plaintiff attempts to document that he went to a few meetings in New York City (NYSCEF Doc. No. 31, ¶ 10), that does not sufficiently establish that he is entitled to the protections of a New York City provision.

Under somewhat analogous circumstances, a federal court found that a housekeeper at an estate in Southampton, New York could not state a claim under the NYCHRL because she could not establish a sufficient connection to New York City (Amaya v Ballyshear LLC, 340 F Supp 3d 215, 221 [ED NY 2018]). The Court found that the termination of plaintiff (a non-NYC resident who did not work in New York City) did not satisfy the impact requirement (id. at 221-22). The Court also concluded that plaintiff's attendance at a few meetings in New York City did not save her claim under the NYCHRL (id. at 222). Also rejected was plaintiff's argument that her discussions and interactions with supervisors based in New York City permitted her to seek the protection of the NYCHRL (id.). The Court stressed that "To accept the Plaintiff's argument that mere interactions with a non-resident plaintiff are sufficient would expand the scope of the NYCHRL to cover all decisions of New York City-based employers regardless of the location of their employees. . . .The NYCHRL's reach is not so expansive" (id.). The Court concluded that the impact of the alleged discriminatory conduct towards plaintiff was felt solely on Long Island (id. at 223).

The Amaya case is instructive here. The fact that plaintiff had a few meetings in New York City, had interactions with supervisors in New York City and that he was fired by an employee (Mr. Chong) based in New York City is not enough to satisfy the impact requirement. Rather, the Court finds that the impact was felt in Connecticut, where plaintiff both lived and worked.

In order to permit plaintiff the protections of FIFA, the Court would have to ignore both his residency status and the work requirements of the job. That would expand the scope of FIFA substantially. Consider if plaintiff lived in California or in London rather than in Connecticut; under his theory, he would be entitled to the protection of FIFA in either location solely because defendant was based in New York City.[FN1] That expansive reading of a New York City-specific provision cannot be embraced. It lacks common sense, rationality and has no bearing on the purpose of this statute. Plaintiff argues that FIFA's purpose was to apply to businesses with any connection to New York City and benefit freelance workers no matter where they did their work; this Court disagrees.

The press release announcing the passage of FIFA mentions "protecting New York City's [*3]gig economy" and cited examples of a film producer and a pattern-maker from the Bronx both of whom didn't get paid after performing freelance work (Mayor Bill de Blasio Signs Legislation Strengthening Protections for Freelance Workers, available at https://ww1.nyc.gov/office-of-the-mayor/news/243-18/mayor-bill-de-blasio-signs-legisation-strengthening-protections-for-freelance-workers [November 16, 2016]). The intention is clear: FIFA was passed to ensure that people working in the city are afforded protection in an economy where workers are increasingly hired for discrete or short-term tasks rather than for full-time employment.

Summary Of course, there may be situations in which non-residents can seek redress under FIFA. The clearest example is when a non-resident is hired to perform work in New York City (see Eelco Van Den Berg v Clinton Hall Holdings, LLC, 2019 NY Slip Op. 32036[U] [Sup Ct, New York County 2019] [involving a resident of the Netherlands bringing a claim under FIFA for unpaid work relating to a mural at a bar in South Street Seaport]). Certainly, if a New York City company hires a non-resident to do freelance work within New York City, then that freelancer can seek protection under FIFA.

Under those circumstances, the impact of the non-payment is felt in New York City because that is where the work took place. But that is not the case here, where plaintiff worked in another state and his only connection to New York City is that at least one employee of defendant was based there.
The Court recognizes that FIFA is not exactly the same as the NYCHRL, a human rights statute that alludes to the city's inhabitants. However, the Court sees no reason to depart from the analysis used to determine the applicability of the NYCHRL when considering the scope of FIFA. In its most basic example, FIFA was passed to help the photographer hired for a photoshoot in Manhattan who was never paid. Its drafters did not think to contemplate that an out of state resident working remotely while out of state would seek its protection and, consequently, FIFA is completely silent about its scope.

There is no doubt that any analysis of FIFA must consider the fact that many freelancers complete tasks remotely, especially given the current pandemic. Interpretation of FIFA must strike a balance that protects New York City residents and those who come to this city to do work without expanding its scope exponentially to cover every person hired to do freelance work for a New York City company regardless of where this work is performed. Because there is no indication that FIFA's drafters sought to include plaintiffs like the one here, the Court grants the motion."

NEW RULES - RESIDENTIAL LANDLORD & TENANT - SAFE HARBOR ACT

Signed on June 30, the purpose of the Tenant Safe Harbor Act is to help keep residential tenants in their homes following the COVID-19 pandemic by allowing only money judgments, and not evictions, for unpaid rent that comes due while restrictions are in place due to COVID-19 on businesses, public accommodations, and nonessential gatherings. Thus, the act, during the COVID-19 covered period,: (1) prohibits courts from issuing a warrant of eviction or judgment of possession against a residential tenant or other lawful occupant that suffered financial hardship during the COVID-19 covered period for the nonpayment of rent that accrues or becomes due during the COVID-19 covered period, (2) allows tenants to raise financial hardship as an affirmative defense and provides factors a court may examine in determining hardship, and (3) allows courts to award a judgment for the rent due and owing to a landlord in a summary proceeding under Article 7 of the Real Property Actions and Proceedings Law.

TO ESTABLISH TORTIOUS INTERFERENCE

Astro Kings, LLC v Scannapieco, 2020 NY Slip Op 03637, Decided on July 1, 2020. Appellate Division, Second Department:

"The plaintiff, the owner of certain commercial real property located in Rockville Centre, commenced this action against, among others, the defendants Silvio Sports, Inc., and Dennison Silvio (hereinafter together the Silvio defendants), alleging that the Silvio defendants tortiously interfered with a lease between the plaintiff and its tenant, Rockville Centre Spa Corp., and tortiously interfered with the plaintiff's prospective business relations. The Supreme Court, inter alia, granted that branch of the Silvio defendants' motion which was for summary judgment dismissing the amended complaint insofar as asserted against them. The plaintiff appeals.

We agree with the Supreme Court's determination that the Silvio defendants were entitled to summary judgment dismissing the cause of action to recover damages for tortious interference with contract asserted against them. The elements of a cause of action to recover damages for tortious interference with a contract are: "(1) the existence of a contract between plaintiff and a third party; (2) defendant's knowledge of the contract; (3) defendant's intentional inducement of the third party to breach or otherwise render performance impossible; and (4) damages to plaintiff" (Kronos, Inc. v AVX Corp., 81 NY2d 90, 94; see Oxford Health Plans [NY], Inc. v Biomed Pharms., Inc., 181 AD3d 808; Kimso Apts., LLC v Rivera, 180 AD3d 1033; Nero v Fiore, 165 AD3d 823, 825). The plaintiff must also establish that the defendant intentionally procured the breach of contract "without justification" (Lama Holding Co. v Smith Barney, 88 NY2d 413, 424; see Oxford Health Plans [NY], Inc. v Biomed Pharms., Inc., 181 AD3d at 808). Here, the Silvio defendants established, prima facie, that they did not intentionally induce or procure any breach of the lease. In opposition, the plaintiff failed to raise a triable issue of fact (see generally [*2]Alvarez v Prospect Hosp., 68 NY2d 320, 324).


Moreover, we agree with the Supreme Court's determination that the Silvio defendants were entitled to summary judgment dismissing the cause of action to recover damages for tortious interference with prospective business relations asserted against them. To succeed on this cause of action, a plaintiff must demonstrate, inter alia, that the defendant's interference was accomplished by "wrongful means" or that the defendant acted "for the sole purpose of harming" the plaintiff (Law Offs. of Ira H. Leibowitz v Landmark Ventures, Inc., 131 AD3d 583, 585; see Carvel Corp. v Noonan, 3 NY3d 182, 190; NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d 614, 621; Caprer v Nussbaum, 36 AD3d 176, 204). "Wrongful means include physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure" (Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, 191 [internal quotation marks omitted]; see Law Offs. of Ira H. Leibowitz v Landmark Ventures, Inc., 131 AD3d at 586). Here, the Silvio defendants established, prima facie, that to the extent that any of their conduct may have interfered with the plaintiff's prospective business relations, there were no "wrongful means" employed by them, nor did they act for the sole purpose of harming the plaintiff (see Carvel Corp. v Noonan, 3 NY3d at 190; MVB Collision, Inc. v Progressive Ins. Co., 129 AD3d 1040; Pink v Half Moon Coop. Apts., S., Inc., 68 AD3d 739, 741). In opposition, the plaintiff failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d at 324)."

MEET THE ONE YEAR DEADLINE FOR DEFAULT JUDGMENTS

Deadlines are sacred.

16501 Jamaica Ave., LLC v Hara, 2020 NY Slip Op 03635, Decided on July 1, 2020, Appellate Division, Second Department:

In March 2016, the plaintiff commenced this action, inter alia, to recover on a personal guaranty. The defendant failed to timely appear or answer the complaint. In October 2018, the plaintiff moved for leave to amend the complaint. Thereafter, the defendant cross-moved pursuant to CPLR 3215(c) to dismiss the complaint as abandoned. In an order entered March 21, 2019, the Supreme Court granted the plaintiff's motion and denied the defendant's cross motion. The defendant appeals.

CPLR 3215(c) provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed" (see HSBC Bank USA, N.A. v Slone, 174 AD3d 866, 867; Ixis Real Estate Capital, Inc. v Herbst, 170 AD3d 691, 691-692; Myoung Ja Kim v Wilson, 150 AD3d 1019, 1020). "The language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts shall' dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned" (Giglio v NTIMP, Inc., 86 AD3d 301, 307-308; see HSBC Bank USA, N.A. v Slone, 174 AD3d at 867; Myoung Ja Kim v Wilson, 150 AD3d at 1020). "Failure to take proceedings for entry of judgment may be excused, however, upon a showing of sufficient cause," which requires the plaintiff to "demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action" (Aurora Loan Servs., LLC v Hiyo, 130 AD3d 763, 764; see Myoung Ja Kim v Wilson, 150 AD3d at 1020).


Here, the plaintiff failed to offer a reasonable excuse as to why it did not seek leave to enter a default judgment within one year following the defendant's default (see Myoung Ja Kim v Wilson, 150 AD3d at 1020). Accordingly, the Supreme Court should have granted the defendant's cross motion pursuant to CPLR 3215(c) to dismiss the complaint as abandoned and denied the plaintiff's motion for leave to amend the complaint.

BE SAFE THIS HOLIDAY WEEKEND

LITIGATION - MOTION FOR LEAVE TO RENEW

Wells Fargo Bank, N.A. v Mone, 2020 NY Slip Op 03688, Decided on July 1, 2020, Appellate Division, Second Department:

"The defendant appeals, principally arguing that the plaintiff failed to meet its burden of establishing its entitlement to leave to renew inasmuch as the plaintiff did not set forth a reasonable justification for failing to submit the purported new fact contained in Flannigan's affidavit on the prior motion. Although this argument is raised for the first time on appeal, we reach the argument because it presents a question of law which appears on the face of the record and "which could not have been avoided if raised at the proper juncture" (Coscia v Jamal, 156 AD3d 861, 864 [internal quotation marks omitted]; see Bank of Am., N.A. v Sebrow, 180 AD3d 982; Rivera v Rochester Gen. Health Sys., 173 AD3d 1758, 1758-1759; Matter of Sagres 9, LLC v State of New York, 164 AD3d 903, 905; Shahid v City of New York, 144 AD3d 1127, 1129).

Pursuant to CPLR 2221, a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][3]; see Deutsche Bank Natl. Trust Co. v Wilkins, 97 AD3d 527, 528; Bank of N.Y. Mellon v Izmirligil, 88 AD3d 930, 932). " The new or additional facts either must have not been known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion'" (Wells Fargo Bank, N.A. v Rooney, 132 AD3d 980, 982, quoting Deutsche Bank Trust Co. v Ghaness, 100 AD3d 585, 586). " However, in either instance, a reasonable justification for the failure to present such facts on the original motion must be presented'" (Cioffi v S.M. Foods, Inc., 129 AD3d 888, 891, quoting Deutsche Bank Trust Co. v Ghaness, 100 AD3d at 586). "A motion to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation'" (Sobin v Tylutki, 59 AD3d 701, 702, quoting Renna v Gullo, 19 AD3d 472, 473 [*3][internal quotation marks omitted]).

Here, the plaintiff failed to demonstrate that the purported new fact contained in Flannigan's affidavit was not available to it at the time of the prior motion and otherwise failed to offer any excuse, let alone a reasonable justification, for failing to submit it on the prior motion (see CPLR 2221[e][3]). Contrary to the plaintiff's contention, the Supreme Court, by its determination of the prior motion, did not "invite[ ] a second motion." "[T]o accept this proposition would mean that any time the court found a motion for summary judgment to lack a prima facie foundation, the unsuccessful party could simply try again" (Deutsche Bank Natl. Trust Co. v Elshiekh, 179 AD3d 1017, 1020). "As the Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion" (Carmike Holding I, LLC v Smith, 180 AD3d 744, 747; see HSBC Bank USA, N.A. v Nemorin, 167 AD3d 855), the court should have denied the plaintiff's motion for leave to renew that branch of its prior motion which was for summary judgment declaring that the subject mortgage is a first priority lien on the subject property and that a copy of the mortgage may be recorded."

FAMILY COURT - SUMMARY JUDGMENT FOR DERIVATIVE NEGLECT

Derivative neglect means that if you are a danger to one child, then you are a danger to all children. It is basically an accusation that you are a bad parent and should not have any children in your care.

Matter of Elijah G. (Chastity G.), 2020 NY Slip Op 03511, Decided on June 24, 2020, Appellate Division, Second Department:

"As is relevant to these appeals, in 2012, the Administration for Children's Services (hereinafter ACS) filed a petition pursuant to article 10 of the Family Court Act against the mother and the father, alleging that they neglected their child—their only child at that time—based on, inter alia, their failure to follow up on mental health treatment and the extreme unsanitary conditions in the home. Thereafter, findings of neglect, on consent, were entered as to the mother and the father [*2]with respect to that child. Subsequent petitions were filed against the mother and the father shortly after the birth of each of two additional children (hereinafter, collectively with the oldest child, the three oldest children), based on allegations, inter alia, that the mother and the father were not compliant with therapy and mental health treatment. Findings of neglect as to the mother and the father with respect to the two additional children were entered on consent, and the fact-finding order pursuant to which the findings were entered specified that the neglect findings were entered as to all allegations in the petitions.

Thereafter, ACS filed additional petitions, in 2016 and 2018, respectively (hereinafter the 2016 and 2018 petitions), against the mother and the father, alleging that they derivatively neglected their two youngest children. The three oldest children had been and remained in foster care at the time the 2016 and 2018 petitions were filed and, by January 2017, ACS had filed petitions to terminate the parental rights of the mother and the father as to each of the three oldest children.

In September 2018, ACS moved for summary judgment on the 2016 and 2018 petitions alleging that the mother and the father derivatively neglected the two youngest children. ACS asserted that the conduct that formed the basis of the findings of neglect as to the three oldest children was so proximate in time to these derivative proceedings that it could reasonably be concluded that the condition still existed. The Family Court granted the motion for summary judgment, and the mother and the father separately appeal.

Although there is no express provision for a summary judgment procedure in a Family Court Act article 10 proceeding, summary judgment pursuant to CPLR 3212 may be granted in such a proceeding when there is no triable issue of fact outstanding (see Family Ct Act § 165[a]; Matter of Jaylhon C. [Candace C.], 170 AD3d 999, 1000-1001).

We agree with the Family Court's determination that ACS established its entitlement to judgment as a matter of law on the issue of whether the mother and the father derivatively neglected the two youngest children (see Family Ct Act § 1012[f][i]). In support of its motion, ACS submitted several prior orders of the court finding that the mother and the father neglected the three oldest children and that both the mother and the father suffered from mental health issues and continually failed to comply with recommended mental health services (see Matter of Jaylhon C. [Candace C.], 170 AD3d at 1001; Matter of Shay-Nah FF. [Theresa GG.], 106 AD3d 1398, 1400). The orders submitted demonstrated that the none of the three oldest children were returned to the care of the mother and the father, and that the conditions that resulted in the removal of those children continued to exist at the time ACS filed its motion for summary judgment (see Matter of A'Nyia P.G. [Qubilah C.T.G.], 176 AD3d 495, 496). This evidence of neglect indicates a fundamental defect in the mother's and the father's understanding of the duties of parenthood, warranting a finding of derivative neglect as to the two youngest children (see Family Ct Act § 1046[a][i]; Matter of Jaylhon C. [Candace C.], 170 AD3d at 1001; Matter of Hope P. [Stephanie B.], 149 AD3d 947, 947). The prior conduct was so proximate in time to the derivative neglect proceedings that it can reasonably be concluded that the conditions still exist (see Matter of Jaylhon C. [Candace C.], 170 AD3d at 1001; Matter of Dayyan J.L. [Autumn M.], 131 AD3d 1243, 1244-1245).


Accordingly, ACS established, prima facie, that the mother and the father derivatively neglected the two youngest children through their failure to resolve the same issues that were the basis for the prior findings of neglect as to the three oldest children (see Matter of Jaylhon C. [Candace C.], 170 AD3d at 1001; Matter of Annalise L. [Jalise P.], 170 AD3d 835, 837). In response to ACS's prima facie showing of entitlement to judgment as a matter of law, the mother and the father failed to raise a triable issue of fact."

CHILD SUPPORT AND INCARCERATION

There are limits to the court's power.

Matter of Augliera v Araujo, 2020 NY Slip Op 03510, Decided on June 24, 2020 ,Appellate Division, Second Department:

"We agree with the Family Court's determination in an order of disposition dated May 31, 2019 (hereinafter the May 2019 order), after a hearing on May 8, 2019, that the father willfully violated an order of child support dated December 21, 2015. At the hearing, the mother demonstrated that the father willfully violated his support obligations set forth in the child support order (see Family Ct Act § 454[3][a]; Matter of Martinez v Martinez, 44 AD3d 945, 946). In opposition, the father failed to show an inability to pay the support owed (see Matter of Martinez v Martinez, 44 AD3d at 946).

We disagree, however, with the Family Court's imposition of a sentence of incarceration upon its finding of willfulness since the parties agreed at the hearing that the father had paid the full amount due and owing. Although the court is empowered to impose a sentence of incarceration of up to six months for willful failure to comply with a support order (see Family Ct Act § 454[3][a]; Matter of Cox v Cox, 133 AD2d 828), such incarceration may only continue until the offender complies with the support order (see Judiciary Law § 774[1]; Hymowitz v Hymowitz, 149 AD2d 568, 568-569). Here, the court sentenced the father to a period of incarceration of 40 days, to be suspended under certain conditions, after the parties already had agreed that the father had paid all that was due and owing at that time. Under such circumstances, no period of incarceration should have been imposed (see Judiciary Law § 774[1]; Hymowitz v Hymowitz, 149 AD2d at 568-569). Accordingly, since the court imposed a sentence of incarceration in contravention of Judiciary Law § 774(1), that provision of the May 2019 order must be deleted."

MORTGAGE FORECLOSURE: RPAPL1304 AND SUMMARY JUDGMENT

RPAPL 1304 must be proved by proper evidence in any foreclosure action and here the homeowner succeeded in defeating a summary judgment motion but the bank may be able to establish compliance at trial.

Ventures Trust 2013-I-H-R by MCM Capital Partners, LLC v Williams, 2020 NY Slip Op 03561, Decided on June 24, 2020, Appellate Division, Second Department:

".....However, the plaintiff failed to establish its entitlement to judgment as a matter of law with respect to compliance with the notice requirement of RPAPL 1304. Proper service of RPAPL 1304 notice containing the statutorily mandated content is a condition precedent to the commencement of the foreclosure action, and failure of a plaintiff to make this showing requires denial of its motion for summary judgment (see Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 911). The lender must submit proof of mailing (such as an affidavit of service or domestic return receipts with attendant signatures) or an affidavit either from the individual who performed the actual mailing or an individual with personal knowledge of the lender's standard office mailing procedure (see JPMorgan Chase Bank, N.A. v Grennan, 175 AD3d 1513; Citibank, N.A. v Wood, 150 AD3d 813, 814). Here, the unsubstantiated and conclusory statement of the plaintiff's attorney in an affidavit submitted in support of the motion that RPAPL 1304 notice was properly mailed to the defendant is insufficient to establish compliance with the statute as a matter of law (see Central Mtge. Co. v Abraham, 150 AD3d 961, 962; Citibank, N.A. v Wood, 150 AD3d at 814)."

BACK TO NORMAL WITH FORECLOSURES?

New York State Chief Administrative Judge Lawrence K. Marks on June 23 issued new guidance for residential and commercial foreclosures in the state. The memorandum allows for the filing of new cases starting June 24.

Similar to the guidance issued recently with respect to evictions, highlights of the memorandum include:

-Commencement documents must be filed by NYSECF or by mail.

-A form affirmation must be filed with the commencement documents that the attorney for petitioner has reviewed the various state and federal restrictions on foreclosure proceedings and has a good faith belief that the proceeding is consistent with those restrictions.

-A form notice in English and Spanish must be provided to respondents informing them that they might be eligible for an extension of time to respond due to the restrictions.

-Whether or not a timely answer is filed, further hearing of the case will be stayed due to Governor Cuomo's executive orders.

For the full text, see http://www.nycourts.gov/LegacyPDFS/admin/opp/Foreclosure-Proceedings.pdf

DIVORCE - STATUTE OF LIMITATIONS TO ENFORCE PRE OR POST NUPTIAL AGREEMENT

Washiradusit v Athonvarangkul, 2020 NY Slip Op 03562, Decided on June 24, 2020, Appellate Division, Second Department:

"The parties were married in February 2001 and subsequently purchased certain real property in Woodside (hereinafter the property). Prior to the closing, the parties entered into a "Property Agreement" dated November 18, 2002 (hereinafter the postnuptial agreement). The postnuptial agreement required the parties to put the property up for sale "no later than 90 days after filing by either party for divorce or separation," and provided that the parties would split 50/50 any proceeds remaining after satisfaction of the mortgage and other costs.

In November 2011, the plaintiff commenced this action for a divorce and ancillary relief. The defendant answered the complaint, seeking spousal maintenance and counsel fees. No claims were asserted in the pleadings regarding the postnuptial agreement. In October 2016, the defendant moved, inter alia, to enforce the postnuptial agreement. In opposition, the plaintiff asserted that the defendant's claim to enforce the postnuptial agreement was time-barred pursuant to Domestic Relations Law § 250. Alternatively, the plaintiff cross-moved, among other things, in effect, to set aside the postnuptial agreement as unconscionable. The Supreme Court granted that branch of the defendant's motion which was to enforce the postnuptial agreement, and denied that branch of the plaintiff's cross motion which was, in effect, to set aside the postnuptial agreement as unconscionable. The plaintiff appeals.

Contrary to the Supreme Court's determination, the six-year statute of limitations that pertains to breach of contract causes of action (see CPLR 213[2]) is not applicable. Rather, the [*2]applicable statute of limitations is provided for in Domestic Relations Law § 250. Pursuant to Domestic Relations Law § 250, the statute of limitations for claims arising from prenuptial and postnuptial agreements is three years and that period is tolled, as relevant here, until process has been served in a matrimonial action. The language of the statute makes it broadly applicable to claims arising from prenuptial and postnuptial agreements, such that it applies equally where a party seeks to invalidate the agreement and where a party seeks to enforce it (see Domestic Relations Law § 250[1]; Alan D. Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Domestic Relations Law C250).

Here, the defendant did not assert his claim to enforce the postnuptial agreement until more than 4½ years after he was served with process in the matrimonial action. Accordingly, the defendant's claim is untimely, and should have been rejected.


Further, since the defendant is no longer entitled to enforce the postnuptial agreement, that branch of the plaintiff's cross motion which was, in effect, to set aside the agreement as unconscionable should have been denied as academic."

A DISSENT ON ISSUE OF PRESERVING DOMESTIC VIOLENCE CLAIM IN CHILD CUSTODY HEARING

Did the Mother preserve her claim for appeal purposes that the court failed to consider the effects of domestic violence on the best interests of the parties two young children in granting father primary physical custody, as required by Domestic Relations Law § 240 (1) (a)?

See the dissent in Jesse Cole v. Samantha Cole, Appellant. No. 67 SSM 8, New York State, Court of Appeals, Decided: June 23, 2020:

https://www.nycourts.gov/ctapps/Decisions/2020/Jun20/SSM8mem20-Decision.pdf.

NEW RULES - ATTORNEY ADVERTISING

The New York court system’s administrative board has lifted the ban on law firms advertising their services under trade or domain names but still bans names that are false, deceptive or misleading.

The press release can be found at this link:

 https://www.nycourts.gov/LegacyPDFS/press/pdfs/AV20_08.pdf

THE RING WAS A GIFT IN CONTEMPLATION OF MARRIAGE

Rambod v Tazeh, 2020 NY Slip Op 03382, Decided on June 17, 2020 ,Appellate Division, Second Department;

"The plaintiff purchased a diamond ring for the defendant soon after they became engaged. Thereafter, the parties terminated their relationship and cancelled the wedding. They then had a number of conversations about various sums of monies expended with regard to the wedding as well as the return of various pieces of personal property, including the diamond engagement ring. Ultimately, the plaintiff commenced this action seeking, inter alia, the return of the ring. The defendant counterclaimed, seeking a determination that she was entitled to retain the ring as an irrevocable inter vivos gift, as well as an award of money damages for unjust enrichment and unreimbursed expenses paid in contemplation of marriage.

The plaintiff moved, inter alia, for summary judgment on the cause of action for the return of the ring, arguing that the ring was given solely in contemplation of marriage. The defendant opposed the motion and cross-moved, among other things, for summary judgment on her counterclaims or, in the alternative, to compel the plaintiff to comply with outstanding discovery demands. The Supreme Court granted that branch of the plaintiff's motion and denied both parties' remaining requests. The defendant appeals.

As a general matter, a party not under any impediment to marry may maintain an action to recover property, such as an engagement ring, given in contemplation of marriage where the contemplated marriage does not come to pass (see Civil Rights Law § 80-b; see also Gaden v Gaden, 29 NY2d 80, 85; Lipschutz v Kiderman, 76 AD3d 178, 183). Here, the plaintiff established his prima facie entitlement to summary judgment on the cause of action for the return of the ring by establishing that he gave the ring to the defendant in contemplation of their marriage, and thus, he [*2]was entitled to its return at the time of the termination of their engagement (see Becker v Mix, 279 AD2d 773, 774).

In opposition, the defendant failed to raise a triable issue of fact. Although the defendant maintained that the plaintiff made an inter vivos gift of the ring to her after the termination of their engagement, the evidence she submitted failed to support this assertion. A valid inter vivos gift requires proof, by clear and convincing evidence, of "the intent on the part of the donor to make a present transfer; delivery of the gift, either actual or constructive to the donee; and acceptance by the donee" (Gruen v Gruen, 68 NY2d 48, 53). Here, the text messages upon which the defendant relied did not clearly demonstrate a donative intent on the part of the plaintiff with respect to the ring, nor did they establish an acceptance of the ring as a gift by the defendant. Accordingly, we agree with the Supreme Court's determination directing the return of the ring to the plaintiff."

BACK TO NORMAL WITH EVICTIONS?

New York State Chief Administrative Judge Lawrence K. Marks on Thursday issued new guidance for residential and commercial eviction proceedings in the state, delaying hearings in new cases as well as the service of eviction warrants at least until July 7. The memorandum allows for the filing of new cases starting Monday, corresponding with the expiration of Gov. Andrew Cuomo's blanket eviction moratorium.

Highlights of the memorandum include:

-Commencement documents must be filed by NYSECF or by mail.

-A form affirmation must be filed with the commencement documents that the attorney for petitioner has reviewed the various state and federal restrictions on eviction proceedings and has a good faith belief that the proceeding is consistent with those restrictions.

-A form notice in English and Spanish must be provided to respondents informing them that they might be eligible for an extension of time to respond due to the restrictions.

-Whether or not a timely answer is filed, further hearing of the case will be stayed due to Governor Cuomo's executive orders, except cases where all parties are represented by counsel are eligible for virtual settlement conferences.

For the full text, see http://www.nycourts.gov/whatsnew/pdf/2020_06_18_15_16_44.pdf

WHEN A RELATIONSHIP ENDS AND A FAMILY OFFENSE BEGINS

One of the hardest things to let go of following the end of a relationship is anger. But that can have consequences as this case illustrates.

Matter of Richardson v Hawker, 2020 NY Slip Op 03392, Decided on June 17, 2020 ,Appellate Division, Second Department:

"The petitioner filed a family offense petition seeking an order of protection against the appellant, her former boyfriend. During the fact-finding hearing, the petitioner testified that the appellant showed up at her home and place of employment and shouted names at her. In addition, the appellant called her cell phone incessantly. The Family Court found that the appellant committed the family offenses of disorderly conduct and harassment in the first degree and directed him to comply with the terms set forth in an order of protection for a period not to exceed two years. The order of protection, inter alia, directed the appellant to stay away from the petitioner until and including September 9, 2021.

In a family offense proceeding, the petitioner has the burden of establishing the offense by a fair preponderance of the evidence (see Family Ct Act § 832; Matter of Estime v Civil, 168 AD3d 936, 937). Here, the evidence adduced at the hearing failed to establish, by a fair preponderance of the evidence, that the appellant's conduct put the petitioner "in reasonable fear of physical injury" (Penal Law § 240.25). Accordingly, we exercise our factual review power to vacate [*2]the finding of harassment in the first degree (see Matter of Tyrone T. v Katherine M., 78 AD3d 545).


However, there is no basis to disturb the order of protection, as the petitioner established by a fair preponderance of the evidence that the appellant committed the family offenses of disorderly conduct and harassment in the second degree (see Family Ct Act §§ 812[1]; 832; Penal Law §§ 240.20, 240.26; Matter of Melissa N. v Jeffrey B., 176 AD3d 519; Matter of Shields v Brown, 107 AD3d 1005, 1006)."

FIGHTING OVER DECISION MAKING

Some non-custodial parents push for joint legal custody/decision making when their real motive is to use it as a veto power. When parties cannot get along and cooperate, one parent should be deemed the sole legal custodial parent and decision maker.

Matter of Lett v Green, 2020 NY Slip Op 03229, Decided on June 10, 2020, Appellate Division, Second Department:

"The mother and the father, who were never married to each other, are the parents of the subject child, born in June 2015. In September 2015, the mother filed a petition pursuant to Family Court Act article 6, seeking sole legal and physical custody of the child. After a hearing, at which the father requested, among other things, joint physical custody and sole decision-making authority with respect to certain issues, the Family Court granted the mother's petition for sole legal and physical custody of the child and set forth a parental access schedule for the father. The father appeals.

The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child (see Domestic Relations Law § 70[a]; Eschbach v Eschbach, 56 NY2d 167, 171; Friederwitzer v Friederwitzer, 55 NY2d 89, 95). "Although joint custody is encouraged as a voluntary alternative, it is appropriate only in cases where the parties involved are relatively stable, amicable parents who can behave in a mature, civilized fashion. It is inappropriate, however, where the parties are antagonistic towards each other and have demonstrated an inability to cooperate on matters concerning the child" (Matter of Timothy M. v Laura A.K., 204 AD2d 325, 326 [citations and internal quotation marks omitted]; see Matter of Turcios v Cordero, 173 AD3d 1048, 1049; Matter of Pitkanen v Huscher, 167 AD3d 901, 901; Matter of Toro v Williams, 167 AD3d 634, 636; Matter of Pena v Cordero, 152 AD3d 697, 698). Inasmuch as a court's custody determination is dependent in large part upon its assessment of the witnesses' credibility and upon the character, temperament, and sincerity of the parents, the court's exercise of its discretion will not be disturbed if supported by a sound and substantial basis in the record (see Matter of Turcios v Cordero, 173 AD3d at 1049; Matter of Pitkanen v Huscher, 167 AD3d at 901; Matter of Pena v Cordero, 152 AD3d at 698). Here, the Family Court's determination [*2]that the child's best interests would be served by awarding sole legal and physical custody to the mother has a sound and substantial basis in the record and will not be disturbed."

THE RIGHT OF SEPULCHER

It would appear that the two co-guardians did not get along while the ward was alive and the dispute continued after the ward's death. Although the court talks about a several hour delay in locating and transporting the ward's remains, the facts below indicate that it may have been a one day delay as the ward died at about 6am on July 20 and the correct funeral home had the remains on July 21.

Hanna v. Fenton, NYLJ June 15, 2020, Date filed: 2020-06-04,     Court: Supreme Court, New York,  Judge: Justice James d'Auguste, Case Number: 161610/2018:

"...On the morning of July 20, 2017, at approximately 5:40 a.m., Kathleen R. Hanna (“Ms. Hanna” or “decedent”) passed away in her home. At approximately 6:00 a.m., her home health aide informed defendant Valerie Paulino (“Paulino”), one of Ms. Hanna’s Court-appointed Co-Personal Needs Guardians,¹ who in turn informed defendant Michael Fenton (“Fenton”), one of Ms. Hanna’s Co-Property Management Guardians. Defendant James Puccio (“Puccio”), the licensed funeral director of defendant Glascott Funeral Home (“Glascott”), allegedly picked up Ms. Hanna’s remains under the verbal authorization of Paulino and Fenton, without informing plaintiff James R. Hanna, Ms. Hanna’s brother and the Co-Personal Needs and Property Management Guardian, with the knowledge that he was appointed as agent in Ms. Hanna’s Dispositional Appointment.² Fenton and Paulino represented to Puccio that they had the authority to control the disposition of Ms. Hanna’s body.

At approximately 8:54 a.m., James Hanna emailed Fenton to report Ms. Hanna’s death, unaware that Fenton had already been informed of the same by Paulino because she allegedly waited over two hours after Ms. Hanna’s demise to inform James Hanna of the same. At approximately 9:10 a.m., Fenton emailed James Hanna to inform him that the decedent’s remains were transferred to Reddens Funeral Home (“Reddens”), even though her remains were in transit to, or had already arrived at, Glascott. At approximately 10:00 a.m., James Hanna called Reddens and Reddens informed him that they had no record of any such transfer. James Hanna could not reach Fenton at that time. Late in the afternoon of the same day, Puccio, from Glascott, informed James Hanna that the remains were located at Glascott. James Hanna insisted that the remains be transferred to Reddens, which Puccio agreed to do for free, after initially asking to charge a fee. On July 21, 2020, decedent’s remains were transferred by Puccio and Glascott to Reddens. On July 26, 2017, a service was held for Ms. Hanna at Reddens.

Plaintiffs assert two causes of action against Fenton: the right of sepulcher and fraud. Fenton moves for an order (1), pursuant to CPLR 3211(a)(7), dismissing the Amended Verified Complaint; or, (2) alternatively, pursuant to CPLR 3211(a)(3), dismissing the causes of action asserted in the Amended Verified Complaint to the extent they are asserted on behalf of plaintiff Charles Jeffrey Hanna, who lacks standing to assert the claims therein; (3) alternatively, pursuant to CPLR 8501, directing plaintiffs to give security for costs; (4) alternatively, dismissing the demands for punitive damages; and (5), pursuant to 22 NYCRR 130-1.1, awarding costs, including attorneys’ fees, and sanctions for plaintiffs’ frivolous conduct.

Plaintiffs’ first cause of action alleging a right to sepulcher must be dismissed. The common law right of sepulcher originates from the absolute right of a decedent’s surviving next of kin to immediately possess the body for preservation and burial.³ See Melfi v. Mount Sinai Hosp., 64 A.D.3d 26, 31 (1st Dep’t 2009). As the First Department reflected, “the right of sepulcher is less a quasi-property right and more the legal right of the surviving next of kin to find ‘solace and comfort’ in the ritual of burial.” Id. at 32. Further, “a cause of action does not accrue until interference with the right directly impacts on the ‘solace and comfort’ of the next of kin — that is, until interference causes mental anguish for the next of kin.” Id. In general, the following scenarios constitute actionable interference: performance of an unauthorized procedure on the body (such as an unauthorized autopsy), inadvertent disposal of the remains, or defendant’s failure to notify the next of kin of the death. Id. at 36-39.

Plaintiffs do not allege that Fenton performed an unauthorized procedure on the body, inadvertently disposed of the remains, or failed to notify the next of kin of the death. Although Fenton initially conveyed the wrong funeral home information to plaintiffs, the decedent’s remains were located and transported to the funeral home of plaintiffs’ choice on the day of decedent’s demise without any mishandling of the remains. Additionally, because plaintiffs are residents of Pennsylvania and could not take immediate possession of the body, the several hour delay in locating and transporting Ms. Hanna’s remains to Reddens is not the type of deprivation of “solace and comfort” of burial as contemplated by a claim sounding in a right of sepulcher, especially in light of the fact that a service was held for the decedent five days later. Accordingly, plaintiffs’ cause of action sounding in the right of sepulcher is dismissed as against Fenton.

.....

1. The guardianship appointments were made in a related proceeding, captioned In re Kathleen R. Hanna, Index No. 500150/2016.
2. Fenton has denied under oath the knowledge of James Hanna's appointment at the time of Ms. Hanna's death.
3. At the outset, this Court finds that contrary to Fenton's assertion that "individuals with different degrees of kinship cannot both be a decedent's surviving next of kin" (NYSCEF Doc. No. 50, at 15), Ms. Hanna's brother, James Hanna, and her nephew, Charles Jeffrey Hanna, are both decedent's next of kin. See In re Starrett, 53 A.D.2d 846, 846 (1st Dep't 1976) (explaining that a decedent's next of kin are two half-brothers and two nephews). As such, Charles Jeffrey Hanna has capacity to sue in this matter for the causes of action brought herein."

ANOTHER COVID AND CHILD CUSTODY MATTER

Reading between the lines here, there is a pending motion to relocate and if granted, the non-custodial parent with supervised visitation will have significant parenting time concerns.

A.S. v. H.R., NYLJ June 12, 2020, Date filed: 2020-06-05,  Court: Supreme Court, New York, Judge: Justice Matthew Cooper, Case Number: 306655/2011:

"Following a custody trial in this high-conflict almost ten-year divorce case, the court awarded full custody of the parties’ child to the plaintiff-father and granted the defendant-mother supervised access. The decision was recently affirmed by the Appellate Division in S.A. v. R.H., 181 AD3d 520 [1st Dept 2020]. Pending now before the court is a motion by plaintiff to relocate permanently with the child to California and a motion by defendant to modify the custody and access order. In connection with these applications, the court appointed a forensic psychiatrist to conduct a forensic evaluation. The evaluation has yet to be completed.

By an order dated March 24, 2020, the court granted plaintiff permission to travel with the child to California on a temporary basis so that the child could visit with his paternal grandparents and observe the Passover holiday. In light of the COVID-19 pandemic and concerns of exposure to the virus and domestic travel, the order directed plaintiff to take certain precautions, including the use of a private airplane, and to return the child to New Jersey on or before April 12, 2020, with the possibility of an extension of the temporary relocation upon a “showing of good cause.”

The court subsequently issued two additional orders: 1) an order dated April 10, 2020, extending the return date to May 4, 2020; and 2) an order dated May 1, 2020, permitting plaintiff to make a motion, no later than May 7, 2020, to extend the child’s time in California. On May 6, 2020, plaintiff, by Order to Show Cause, moved to further extend the time during which the child could remain in California. Plaintiff’s motion is supported by the Attorney for the Child but vigorously opposed by defendant. At this time, the child remains in California.

The Attorney for the Child submitted an Affidavit in Support of plaintiff’s Order to Show Cause on May 11, 2020. It is his contention, amongst others, that defendant’s supervised access was already very limited and that returning the child to the Tri-state area would expose the child to unnecessary risks.

It is well-settled that “modification of custody or visitation, even on a temporary basis, requires a hearing, absent a showing of an emergency” (Shoshanah B. v. Lela G., 140 A.D3d 603, 603 [1st Dept 2016]). A temporary custody determination shall only be made when exigent circumstances exist (Acquard v. Acquard, 244 AD2d 1010, 1010 [4th Dept 1997]; affd Joseph M. v. Lauren J., 3 NYS3d 285, 285 [Sup Ct, NY County 2014]).

Here, a hearing was held via telephonic conference on May 13, 2020. Counsel for both parties as well as the Attorney for the Child were present on the call and took the opportunity to argue orally. There are numerous exigent circumstances present, some of which are unique to this case. Primarily, the Tri-state area remains the epicenter of the nation’s COVID-19 crisis while California remains less affected. Moreover, the New York City and New Jersey stay-at-home orders have rendered it impossible, at present, for defendant to exercise her limited access because the supervisor assigned to the case is not able or willing to expose herself to the possibility of contracting the virus.

Conversely, the court is cognizant of the fact that plaintiff packed up most of the child’s belongings when he initially traveled to California. This, coupled with other facts about plaintiff’ conduct, suggest that it was never his intention to return with the child to where he now lives in New Jersey but, instead, that he was exploiting the current COVID-19 situation and using the temporary order as a guise under which to accomplish his desire for permanent relocation.

While the court is hesitant to reward plaintiff for his apparent deception and less than forthright behavior, plaintiff’s intention is not the primary factor to be considered. As in all such matters, it is the child’s best interests that come first and foremost (S.A. v. R.H., 181 AD3d at 520).

In weighing the risks against the benefits of requiring plaintiff to return with the child to New Jersey, the court must conclude, on this particular set of facts, that protecting the child’s health outweighs any concerns about any possible interference with defendant’s access with the child. Considering that defendant’s minimal, supervised visitation is currently impracticable, with the supervisor being unable to conduct face-to-face parental access sessions, it cannot be said that defendant’s access is being impeded by the child’s continued presence in California. This is especially so inasmuch as defendant is having almost daily virtual parental access while the child remains in California. If the child were to return to New Jersey now, defendant’s access under current circumstances would continue to be virtual.

The good news concerning the COVID-19 health emergency is that situation has improved in the Tri-state region to the point that restrictions are now beginning to be lifted. It is. of course, not the place of a court to evaluate the level of danger posed by a virus, that is best done by the executive branch guided by expert medical advice. The court, in turn, will be guided by those executive decisions. The governors of both New York and New Jersey either have or are poised to issue directives that will greatly ease the restrictions placed on travel and activities. The court will therefore assume that by July 8, 2020, which is one full month from the date of this decision, neither New York City not New Jersey will be subject to strict stay-at-home orders. Unser this scenario, the reduction of risk will be sufficiently reduced so as to require plaintiff to return the child to New Jersey and thereby allow defendant to resume in-person supervised access in New York City."