NY CHILD WELFARE CASE - NO REMOVAL OF CHILD NEEDED

In the Matter of C.F., Date filed: 2024-12-10, Court: Family Court, New York, Judge: Judge Yael Wilkofsky, Case Number: (redacted):

PLEASE TAKE NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.

DECISION AND ORDER On or about November 29, 2024, the petitioner, Administration for Children’s Services (“ACS”), filed Family Court Act (“FCA”) Article 10 neglect petitions on behalf of the subject children C.F. and M.L. against the respondent mother K.S. (“respondent mother” or “K.S.”). The petitions allege that the respondent mother fails to provide the subject children with proper supervision or guardianship by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment, on the subject child C.F. Specifically, the petitions allege that the respondent mother hit C.F. with a belt, which resulted in a bruise on C.F.’s shoulder, that C.F. was scared to go home to his mother, that the maternal grandmother heard C.F. yelling and screaming, saw the respondent mother hit C.F. with a belt, and that when the maternal grandmother tried to stop the respondent mother from hitting C.F. with the belt, the respondent mother told the maternal grandmother to “mind her fucking business.” The petitions also allege that based on such actions, the child M.L. is derivatively neglected. At intake on the neglect petitions, the petitioner made an application for the remand of the subject children pursuant to FCA §1027 based on the allegations in the petition. The respondent mother opposed the remand and requested a hearing. The Court commenced the FCA §1027 hearing at intake, temporarily removed the subject children from the respondent mother and directly placed them with the maternal grandmother during the pendency of the hearing. The Court also issued a full stay away temporary order of protection against the respondent mother on behalf of the subject children with a carve out for agency supervised in-person visitation and virtual visitation supervised by the maternal grandmother.

Pursuant to FCA §1027, after a hearing, the court may remove a subject child from the care of the respondent parent only if the petitioner can establish, by a preponderance of the evidence, that release of the subject child to the respondent parent’s care presents an imminent risk to the child’s life or health. As part of its assessment, “a court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal” (see Nicholson v. Scoppetta, 3 NY3d 357, 378 [2004]). “It must balance that risk against the harm removal might bring, and it must determine factually which course is in the child’s best interests” (Id.).

After a full hearing, the court denies the petitioner’s application pursuant to FCA §1027 as petitioner has not established, by a preponderance of the evidence, that releasing the subject children to the respondent mother presents an imminent risk to the subject children’s life or health that could not be mitigated with the issuance of certain court orders. In making its determination, the Court relies on the following documentary evidence offered at the hearing: photographs of the subject child C.F. showing bruises on his shoulder; an Oral Transmittal Report (“ORT”) dated November 20, 2024, which established that a report was called in to the State Central Register (“SCR”) on November 20, 2024 by a mandated reporter, alleging that the subject child was hit by the respondent mother and that he was scared to go home; a prior order of the Family Court, Bronx County, dated September 15, 2023, under docket numbers NN-xxxxx-23 and NN-xxxxx-23, releasing the subject children to the respondent mother, who was a non-respondent in that case, under ACS supervision; a prior order of fact-finding and disposition issued by the Family Court, Bronx County, dated February 14, 2024, under the same docket numbers, which entered a finding of neglect against B.L., the respondent in that matter, because he perpetrated acts of domestic violence against the respondent mother in the presence of the subject children and caused injury to C.F., and, inter alia, released the subject children to the custody of the respondent mother under six months of supervision, until August 14, 2024; and a Certificate of Completion from the National Alliance on Mental Illness (“NAMI”), stating that “[K.S.] has completed the NAMI Basics OnDemand Education Program — 15 hours.” Additionally, the Court relies on the testimony of an ACS Child Protective Specialist (“CPS”), the respondent mother and a Legal Aid Society Social Worker (“SW”).

CPS credibly testified as follows. The case was called in to the SCR on November 20, 2024 by C.F.’s school guidance counselor. As part of his child protective investigation, CPS first spoke to C.F.’s school guidance counselor, who reported that C.F.’s teacher said he was sleeping in class and when she asked if he was okay, C.F. said his shoulder hurt because the respondent mother hit him with a belt. C.F.’s school guidance counselor also reported that he spoke to C.F., who also told him that the respondent mother hit him with a belt and that he was scared to go home. C.F. was interviewed at the Child Advocacy Center and the interview was recorded. During the interview, C.F. stated that he got the bruise on his shoulder after he fell off his bunk bed. He also stated to the interviewer that he had something else to say but not while being recorded. Thereafter, C.F. was interviewed a second time and that interview was not recorded. At the second interview, C.F. stated that the respondent mother hit him with a belt and other objects, including a hanger, and that the maternal grandmother told him to lie about what happened. C.F. further stated that he wanted to be home with his mother and that he was not afraid of her. CPS also spoke with the maternal grandmother about C.F.’s injury. The maternal grandmother initially stated that C.F. fell off the bed and hit his shoulder. However, the maternal grandmother then told CPS that she heard C.F. yelling and screaming, that she went to his room and tried to intervene to stop the respondent mother from hitting C.F., and that the respondent mother told the maternal grandmother to “mind her fucking business.” CPS also spoke with the respondent mother, who reported that the school had called her because C.F. was falling asleep in class. She stated that she initially attempted to discipline C.F. for that behavior by taking away his electronic devices because she believed the electronic devices were playing a role in C.F. falling asleep in class. However, she admitted that she did hit C.F. with a belt, that she felt sorry for doing it, that it was the first time she had ever used a belt to discipline C.F. and that it would be the last time she would ever do so. The respondent mother also told CPS that she was willing to engage in services.

The respondent mother also credibly testified as follows. Prior to the filing of this case, she lived with the subject children and her mother, the maternal grandmother, and that since this case was filed, she has been staying at hotels and the homes of different family members and friends. C.F. has behavioral issues, both at home and at school, and with the help of her counsel, the respondent mother enrolled in, and completed, a 15-hour parenting course with NAMI. The parenting course is a program for parents who provide care for children who are experiencing mental health symptoms. The program helped respondent mother learn how to treat C.F. based on his own mental health issues and provides resources for both the respondent mother and C.F. The respondent mother learned a lot in the program about mental illness, medication and therapy, how to speak to a child with a mental illness, that it is okay for her to express herself with C.F. even if he is having a hard time and that instead of discipline, the respondent mother could use a reward-based system with C.F. where he feels like he is earning the things that he wants. The respondent mother stated that she is willing to engage in individual therapy to heal from the traumas she experienced in her own life and wants to enroll in family therapy for herself and C.F. ACS was involved with the family most recently as the summer of 2024 after a neglect case was filed against M.L.’s father based on allegations that he perpetrated acts of domestic violence against the respondent mother in the presence of the children. During the pendency of that case, ACS frequently visited the respondent mother’s home to check on the subject children and never saw any marks or bruises on the subject children or had any concerns about the respondent mother’s care of the subject children.

At the hearing, when asked whether she hit C.F. with a belt as a form of discipline, the respondent mother invoked her right against self-incrimination pursuant to the Fifth Amendment of the United States Constitution. However, the respondent mother credibly testified about how she would discipline C.F. in the future. She testified that she would not use corporal punishment, as she knows that it is wrong and illegal, that using corporal punishment is not fair to the child because “it does not solve anything,” that using corporal punishment makes an existing problem worse and that “it is not the right way to go about things.” She testified that instead, she would continue to discipline C.F. by taking away his electronics, including video games and his cell phone, by limiting sweets and providing C.F. with healthier snacks so that he has to earn the things he wants, and most importantly, she would speak with C.F. and explain that she is there to help him. She testified that she has learned from her parenting course that going forward, she must discipline C.F. in a way that keeps his feelings as the main focus so that C.F. knows she is trying her best. The respondent mother also testified that if she needs help or is feeling overwhelmed, she has resources and a support system she could reach out to, which includes the maternal grandmother, the subject children’s maternal grandfather, C.F.’s father and the respondent mother’s godmother. The respondent mother credibly testified that she would abide by court orders, including a limited temporary order of protection requiring her to refrain from using corporal punishment on the subject children, as well as ACS supervision. The respondent mother stressed the importance of being able to show the Court that she is a good mother and is willing to do whatever it takes to do that, including continuing in services to work on her own trauma and to learn other disciplinary strategies so that she can be a better mother. Finally, when asked whether she would have done anything differently during the alleged incident, the respondent mother testified that she would change ever making C.F. feel unsafe or that he did not want to come home, that she feels both remorse and regret, and that she does not want to make him feel that way ever again.

The subject children’s maternal grandmother also testified at the hearing, although she was not entirely credible. She testified that the respondent mother generally disciplines C.F. by taking away his electronics and that she never saw her discipline him with a belt. She also testified that she was unaware of the bruise on C.F.’s shoulder, that she only became aware of it when ACS became involved and that she had no idea how it happened. She testified that she never told C.F. to lie about the incident but rather asked him whether he got the bruise by falling off his bed. She also testified that she would enforce a temporary order of protection issued against the respondent mother on behalf of C.F. to protect C.F.’s safety and comply with court orders. However, she gave conflicting testimony which undermined her credibility. Indeed, at one point during the hearing, she testified that she was never informed about the allegations against the respondent mother or why she was asked to come to C.F.’s school to wait for ACS but at a later point in the hearing, she testified that she was informed of the allegations against the respondent mother, specifically, that ACS believed the respondent mother had hit C.F. with a belt which caused the bruise on his shoulder.

The Legal Aid Social Worker credibly testified at the hearing as follows. The Legal Aid Social Worker spoke with C.F.’s school guidance counselor and asked how C.F. has been doing in school since his separation from the respondent mother. C.F.’s school guidance counselor told the Legal Aid Social Worker that C.F. is doing okay but misses the respondent mother and wants to be reunited with her. C.F.’s school social guidance counselor further told the Legal Aid Social Worker that in his opinion, it would be good for C.F. to be reunited with the respondent mother if preventive services were in place and that C.F. would benefit from therapy to allow him to release his feelings and explore more effective ways of coping with life’s frustrations.

As required by the Court of Appeals in Nicholson, this Court has balanced the risk of harm from removal of the subject children from their mother against any risk of harm if they are returned. In considering such a balance, this Court finds that the harm of removal of the subject children from the respondent mother outweighs the risk of harm to the subject children if they were to be returned to the respondent mother’s care. Although the respondent mother declined to testify about whether she did indeed hit C.F. with a belt as the petition alleges, the testimony at the hearing, as well as the documentary evidence, established that any risk that exists in returning the subject children to the respondent mother could be mitigated with court orders in place. Indeed, the evidence established that the respondent mother loves her children and adequately provides for their needs, that she has insight into what kinds of discipline are appropriate and inappropriate and that she wants to learn how to more appropriately cope with frustration she might feel when interacting with C.F. The evidence also established that the respondent mother is a survivor of domestic violence, which was perpetrated against her in the presence of the subject children, and she testified that she wants to engage in services to address her own trauma and how that affects her interactions with her children. The evidence established that the respondent mother would engage in preventive services as she has already engaged in a parenting course, which has provided her with knowledge and guidance on how to interact with C.F. going forward. The evidence further established that the respondent mother would abide by court orders requiring her to refrain from using any corporal punishment on the subject children. Indeed, the respondent mother has been fully compliant with the full stay away temporary order of protection issued against her since the case was filed on November 29, 2024. Finally, the Court notes that the release of the subject children to the respondent mother was strongly supported by the attorney for the children, precisely because the harm of removal of the subject children from their mother’s care outweighs the harm of any risk to the subject children if they were released to their mother’s care and that there are orders that can be put in place to mitigate any such risk.

Therefore, it is hereby

ORDERED that the subject children are released to the respondent mother under the following conditions and orders:

The respondent mother is not to use corporal punishment of any kind on the subject children;

The respondent mother is to abide by a usual terms limited order of protection on behalf of the subject children;

The respondent mother is to comply with preventive services;

The respondent mother is to comply with ACS supervision, including announced and unannounced visits;

The respondent mother is to sign all HIPAAs for herself and the subject children;

The respondent mother is to comply with all reasonable referrals for herself and the subject children, on notice to counsel;

The respondent mother is to make the subject children available for interviews and meetings with their attorney; and

ACS is to make a minimum of one visit to the case address per week.

This constitutes the decision and order of the court.

Dated: December 10, 2024

NYC FAIR CHANCE FOR HOUSING ACT

From an email from the firm of Schwartz Sladkus Reich Greenberg Atlas LLP:

"The New York City Council recently enacted Local Law 24 of 2024 – The Fair Chance for Housing Act (the “Act”) - which makes it unlawful for an owner of real estate in New York City to refuse to rent, lease, to withhold approval for a sale or lease or otherwise to deny or withhold a housing accommodation to an individual based upon such individual’s criminal history other than in limited instances described in the Act. The purpose of the Act is to prevent housing discrimination against individuals who were previously convicted of a crime and the individuals who choose to live with them. The Act limits when a property owner may obtain a criminal background search on a prospective purchaser or tenant and what the search may be used for. The Act affects decisions made by cooperative and condominium boards (each of which are considered to be housing providers) and it goes into effect on January 1, 2025.

The Act prohibits a housing provider from conducting a criminal background search (or question an applicant about his or her criminal background) during the initial sale or leasing application process. It is only after the housing provider has completed its application review and made a preliminary decision on the application that the housing provider may conduct a limited scope criminal background search. We suggest that our clients memorialize, in writing, each step of the application review process and that they maintain these written records.

The scope of the permissible background search includes the following (which the Act refers to as “reviewable criminal history”):

• Convictions requiring registration with a sex offense registry

• Felony convictions that are no more than 5 years from the date of the individual’s release from incarceration or sentencing (if there was no incarceration)

• Misdemeanor convictions that are no more than 3 years from the date of the individual’s release from incarceration or sentencing (if there was no incarceration)

In making their decisions regarding housing applications, housing providers may not consider:

• Convictions that have been sealed, expunged or pardoned

• Pending cases

• Matters that have been dismissed

• Felony convictions that are more than 5 years from the date of the individual’s release from incarceration or sentencing (if there was no incarceration)

• Misdemeanor convictions that are more than 3 years from the date of the individual’s release from incarceration or sentencing (if there was no incarceration)

When ordering a criminal background search, in connection with an application for housing, the housing provider must take reasonable measures to ensure that the search is conducted in a manner consistent with the requirements of the Act. Any such order should be made in writing and direct that the search be performed in accordance with the Act.

A housing provider must provide the applicant with a copy of any criminal background search that it has relied upon for making an adverse decision on an application, and must allow the applicant at least five (5) days to review the search, identify any errors in it, or provide mitigating information.

If after providing the applicant with the information required by the Act and reviewing any related information provided by the applicant, the housing provider still wishes to deny the application, the housing provider must provide the applicant with a written statement specifying the documents that the housing provider relied upon in order to make its decision and an explanation as to how the decision advances a “legitimate business interest” of the housing provider.

It is important to note that the Act does not prohibit a housing provider from searching (or having searched) any sexual offense registry or considering convictions, of any vintage, for crimes against persons or property on the premises of the housing accommodation or acts that would adversely affect the health, safety of residents of the property."

THANKSGIVING DAY GREETINGS

 

WHEN DISPUTING THE RIGHT TO ENTER ADJOINING PROPERTY FAILS

WEST 125th DEV. LLC v. Song, 2024 NY Slip Op 33934 - NY Co. Supreme Court 2024:

"LOUIS L. NOCK, J.S.C.

The petition of West 125th Development LLC ("petitioner") for a license to enter adjoining property pursuant to RPAPL 881 is granted, for the reasons set forth in the petition and supplemental submissions (NYSCEF Doc. Nos. 1, 3-4, 52-54, 78-79) and the exhibits attached thereto, in which the court concurs, as summarized herein.

The following is, unless otherwise stated, undisputed. Petitioner is the owner and developer of the premises located at 35 West 125th Street, New York, New York, and 33 West 125th Street, New York, New York (the "property"), upon which it wishes to build a 21-story mixed-use commercial building. Respondents are owners of the surrounding premises. Specifically, respondent Jeemi Song owns the property located at 46 West 126th Street; respondent ECDO Houses Associates Limited Partnership ("ECDO") owns the property located at 44 West 126th Street; respondent 42 West 126th Realty Corp. ("42 West") owns the property located at that address; respondent W 126 Group LLC ("W 126") owns the property located at 40 West 126th Street; respondent 36 West 126th Street Realty LLC ("36 West") owns the property located at that address; respondent BVK 55 West 125th Street, LLC ("BVK") owns the property located at that address; and respondent Dul Dul Realty, LLC ("Dul Dul"), owns the properties located at 31 West 125th Street (the "125th Street property") and 34 West 126th Street (the "126th Street property") (verified petition, NYSCEF Doc. No. 1, ¶¶ 4-11). Petitioner's property abuts the properties owned by respondents, as well as the property located at 50 West 126th Street, whose owner is not a party to this proceeding (id., ¶ 12). Plaintiff has discontinued this proceeding against respondents Song and BVK (NYSCEF Doc. Nos. 83, 84), and has an agreement with the owner of 50 West 126th Street (Cusack reply affirmation, NYSCEF Doc. No. 52, ¶ 20). Respondents ECDO, 42 West, W 126, and 36 West have defaulted in answering the petition. Accordingly, the remaining dispute is between petitioner and Dul Dul. The parties have been negotiating the terms of a license since prior to the commencement of this special proceeding, and each side accuses the other of not negotiating in good faith.

At the outset, petitioner asserted that it needed access to respondents' properties in order to install "overhead protections, roof protections, and a construction fence," as well as to perform a preconstruction survey (verified petition, NYSCEF Doc. No. 1, ¶ 14; Menzak aff, NYSCEF Doc. No. 4, ¶¶ 13-17). Such protections are necessary under the New York City Building Code. Petitioner sought a license to install such protections to last 36 months, the expected length of the construction (verified petition, NYSCEF Doc. No. 1 at 6). According to Dul Dul's architect, Carl Bradley Cronk, however, additional plans for support of excavation work, tiebacks on the party wall between the properties, and significant underpinning of Dul Dul's properties were not submitted with the petition in this proceeding (Cronk aff., NYSCEF Doc. No. 45, ¶¶ 14-15). It is further asserted that the plans submitted with the petition in this proceeding were incomplete, and lacking certain protections required by the Building Code (id., 21-31).

In reply, petitioner asserts that, to the extent its plans are incomplete or not approved by the New York City Department of Buildings ("DOB"), Dul Dul's unwillingness to allow access for a preconstruction survey is a significant cause of the delay (Menzak reply aff, NYSCEF Doc. No. 53, ¶¶ 21-28). Underpinning, a substantial permanent encroachment on respondent's property, cannot be granted on this application, which petitioner acknowledges, and, indeed, petitioner's architect, Yuriy Menzak, states that petitioner did not include an underpinning request in its petition for that reason (id., ¶¶ 29-30). Petitioner also proposes that underpinning may not be necessary, and that tiebacks are minimally intrusive and necessary to secure the party wall (id, ¶¶ 31-37).

Prior to oral argument on this matter in May of this year, petitioner submitted a supplemental affidavit of its site safety contractor, in which Aaron Broyn, the contractor's president, avers that petitioner has reconfigured its design and construction plans so as to drastically reduce the amount of potential intrusion onto respondent's properties (Broyn aff., NYSCEF Doc. No. 79, ¶ 4). Specifically, petitioner now requests a 2-3 hour period to access the roof of the 125th Street property to install and then later dismantle an "engineered enclosure system" to provide protection for respondents' properties (id., ¶¶ 9-10). The roof of the 125th Street property will be protected by cantilevered netting suspended from petitioner's property (id.). This design change will forgo the need to install further window protections on the 125th Street property (id., ¶¶ 11). The revised plans have been approved by the DOB (id., ¶ 5; revised plans, NYSCEF Doc. No. 80).

As of now, the requested access to Dul Dul's properties is as follows: a pre-construction survey, temporary roof access to install and dismantle the engineered enclosure system, installation and monitoring of vibration and crack monitors, installation of weatherproofing on the exposed foundation and party walls, relocation of the 125th Street property's chimney, construction of a five foot scaffold in the rear yard of the 126th Street property, and any access necessary to maintain the protective netting suspended from the project above the 125th Street property once the project reaches the ninth floor (id., 15-17). Petitioner's planned actions are required by the Building Code to protect respondents' properties (id., ¶ 18; NY City Bldg Code [Administrative Code of City of NY, title 28, ch 7] §§ BC 3309.1, et seq.). As set forth above, only Dul Dul remains in opposition to the petition.

A petition for access is governed by RPAPL 881, which provides as follows:

When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.

"A proceeding pursuant to RPAPL 881 is addressed to the sound discretion of the court, which must apply a reasonableness standard in balancing the potential hardship to the applicant if the petition is not granted against the inconvenience to the adjoining owner if it is granted" (Queens Theater Owner, LLC v WR Universal, LLC, 192 AD3d 690, 690 [2d Dept 2021]). The court may consider "the nature and extent of the requested access, the duration of the access, the needed protections for the adjoining property, the lack of an alternative means to perform the work, the public interest in the completion of the project, and the measures in place to ensure the financial compensation of the adjoining owner for any damage or inconvenience resulting from the intrusion" (id. at 690-91). "[B]ecause the respondent to an 881 petition has not sought out the intrusion and does not derive any benefit from it[, e]quity requires that the owner compelled to grant access should not have to bear any costs resulting from the access" (Matter of Van Dorn Holdings, LLC v 152 W. 58th Owners Corp., 149 AD3d 518, 518-19 [1st Dept 2017]). "Damages and attorneys' fees are, therefore, appropriately considered in the context of an RPAPL 881 proceeding" (269-273 14th St N.Y. Corp. v Stein, 221 AD3d 807, 809 [2d Dept 2023]).

Here, as to Dul Dul, petitioner contacted Dul Dul's counsel in November 2022, at which time counsel refused to even discuss the matter further until petitioner had paid counsel $8,100 for his services related to the potential license agreement and escrowed a further $20,000 deposit (Cusack reply aff., NYSCEF Doc. No. 52, ¶¶ 6-8). Subsequently, Dul Dul's counsel continued to demand payment of attorneys' fees before discussing a license agreement (id., ¶¶ 8-9). Thus, petitioner has sufficiently sought a license that Dul Dul has refused, contrary to Dul Dul's position. Further, the inconvenience to respondents is mild, given the scope of the potential protections. Without the grant of a license, petitioner will not be able to construct its building, and petitioner has proposed to take several steps to protect respondents' properties (Matter of New York Pub. Lib. v Condominium Bd. of the Fifth Ave. Tower, 170 AD3d 544, 545 [1st Dept 2019]). The terms proposed by petitioner include the detailed protective measures described above, and petitioner has agreed to maintain an insurance policy covering respondents and their properties, to indemnify and hold harmless respondents from any liability or damages caused by the construction, and address any violations or mechanic's liens assessed against respondents' properties (proposed order, NYSCEF Doc. No. 62). Moreover, the protective measures petitioner will install are required by the Building Code (Matter of Queens Coll. Special Projects Fund, Inc. v Newman, 154 AD3d 943, 944 [2d Dept 2017]). Under such circumstances, the grant of a license is proper (e.g. Mindel v Phoenix Owners Corp., 210 AD2d 167, 167 [1st Dept 1994] ["We adopt a standard of reasonableness in concluding that defendant is prepared to do all that is feasible to avoid injuries resulting from its entry upon plaintiffs' properties, and that an RPAPL 881 license was therefore properly granted"]).

Dul Dul's arguments in opposition are unavailing. Tiebacks, the only permanent encroachment contemplated by petitioner, are a relatively insubstantial protective measure to ensure the stability of the party wall and a proper subject of a license (Tompkins 183 LLC v Frankel, 2019 WL 6654136 at *4 [Sup Ct NY County 2019] ["Although Respondent strongly objects to the party wall tie-backs, such protection is, in this Court's opinion, the most reasonable option for the parties under the circumstances and is virtually unavoidable"] [internal quotation marks and citation omitted]). The underpinning objected to by Dul Dul has been removed from petitioner's project plans, and the revised plans presented to the court have been approved by the DOB

Nor are all the terms proposed by respondent reasonable. Insurance coverage and indemnity are sufficient financial protection for respondents (Matter of Queens Coll. Special Projects Fund, Inc., 154 AD3d at 944 ["the appellant would be financially protected by the naming of the appellant as an additional insured on the relevant construction insurance policies and by the petitioner's promise to indemnify her for any loss"]). Dul Dul offers only speculation that an additional bond or escrow agreement would also be required. Dul Dul's suggestion that the term of the license should be six months, renewable for three month increments thereafter is also not necessary. Petitioner seeks a license for 36 months, and the courts have held that similar lengths of time are reasonable (id. at 944 [18-24 months; see also DDG Warren LLC v Assouline Ritz 1, LLC, 138 AD3d 539, 540 [1st Dept 2016] [30 months]). Dul Dul does not establish that a shorter term of the license is necessary. Certain other terms regarding notice of damages, petitioner's responsibilities related to mechanic's liens and DOB violations, and petitioner's prompt repair of damage to respondents' properties, have been incorporated into petitioner's proposed license terms. The court will adopt Dul Dul's request that respondents be allowed to repair damage to their own properties at petitioner's expense, provided that petitioner is afforded a reasonable period of time to conduct repairs first.

There remains the issue of financial compensation, in the form of a monthly license fee and compensation for Dul Dul's expenses. As to the license fee, as cited by Dul Dul, courts have frequently assessed a $2,000-$3,500/per month license fee for protections similar to those presently being proposed by petitioner for the length of time proposed by petitioner (e.g. Tompkins, supra; 115 St Developers LLC I. 1629 Realty Inc., 2017 WL 2909356 [Sup Ct NY County 2017]; Columbia Grammar & Preparatory Sch. v. IO W 93rd St. Hous. Dev. Fund Corp., 2015 NY Slip Op 31519[U] [Sup Ct NY County 2015]). Thus, neither petitioner's suggestion of $1,500/month nor Dul Dul's initial demand of $22,500/month are reasonable. Based on the fees awarded by other courts addressing the matter, the court finds a $2,500/month license fee to each respondent to be sufficient.

As to Dul Dul's expenses relating to the application: Dul Dul, pursuant to two supplemental affirmations submitted by counsel, seeks $70,127.25 in legal fees charged by counsel, and $16,400 in expert fees charged by Dul Dul's architect Cronk. Petitioner offers no meaningful objection to the fees incurred by Cronk. As to the attorneys' fees, however, petitioner states that it has already paid Dul Dul $18,100 in counsel fees. Petitioner challenges the reasonableness of Dul Dul accruing almost $40,000 of attorneys' fees in April and May 2023 alone, and asserts that none of the additional attorneys' fees were generated in an effort to progress the case. Petitioner asks the court to deny any further award of attorneys' fees.

"The determination of a reasonable attorney's fee is left to the sound discretion of the trial court" (RMP Capital Corp. v Victory Jet, LLC, 139 AD3d 836, 839-40 [2d Dept 2016]). It is the claimant's burden to demonstrate that the fees sought are reasonable (Matter of Karp, 145 AD2d 208, 216 [1st Dept 1989]). Upon review of the invoices, the court finds that Dul Dul is not entitled to recoup the entirety of its exorbitant fee demand. The invoices provided by counsel do not provide a "detailed breakdown ... of the time and labor expended" (id.), but instead engage in "block-billing" by grouping different tasks together by attorney in single entries, showing several different tasks without regard for the amount of time spent on each task. Moreover, Dul Dul fails to provide sufficient information regarding "the difficulty of the matter, the skill, time and labor required, [counsel's] experience, ability and reputation, and the customary fee for similar services" (Matter of Jeffrey, 214 AD2d 353, 353 [1st Dept 1995]). A 25% reduction for the use of block-billing has been found a provident exercise of discretion (RMP Capital Corp., 139 AD3d at 840). Further, in one of the cases cited by Dul Dul, the court awarded approximately one-third of the fees sought due to counsel's failure to provide sufficient information justifying the fee and use of block-billing (Tompkins, supra, at *5). In light of the nature of this case, the different sets of plans and course of negotiations requiring counsel's time and labor, the amount of fees already paid to Dul Dul, and the deficiencies noted above, the court finds that an award of $35,063.63, or approximately half of what Dul Dul seeks, is sufficient compensation.

Accordingly, it is hereby

ADJUDGED that the petition is granted, and petitioner is awarded a license to enter the adjoining properties of respondents ECDO Houses Associates Limited Partnership; 42 West 126th Realty Corp.; W 126 Group LLC; 36 West 126th Street Realty LLC; and Dul Dul Realty, LLC, to perform the work set forth in the supplemental affirmation of Aaron Broyn (NYSCEF Doc. No. 79) and the revised plans (NYSCEF Doc. No. 80) upon the following terms and conditions:

1. The license shall be for a period of 36 months, or whenever the exterior of petitioner's new building is complete, whichever is sooner;

2. Petitioner's workmen and contractors shall have access to respondents' properties only from Mondays through Fridays, between the hours of 8:30 am and 5:00 pm;

3. Petitioner's work on respondents' properties shall conform to petitioner's site safety plan, the Building Code of the City of New York, and all other applicable rules and regulations of the City of New York;

4. Petitioner shall maintain primary and non-contributory commercial general liability insurance, in the amount of $2,000,000 per occurrence and $4,000,000 general aggregate, covering respondents by name, and listing respondents' properties as part of the covered work-site, for any loss respondents may incur for property damage, personal injury, or wrongful death, including any liability under the New York State Labor Law, as a result of petitioners' work for the entire duration of this license;

5. Petitioner shall indemnify and hold respondents harmless for any liability, claims, damages or losses, including attorneys' fees respondents may incur as a result of petitioner's work, whether or not caused by the negligence of petitioner or its employees, agents, contractors or subcontractors;

6. Petitioner shall immediately report, in writing, to respondent any damage to respondents' premises caused by petitioner's work. If, following a reasonable period of time, petitioner fails to remediate the damage, the affected respondent may repair the damage at petitioner's expense;

7. Petitioner shall cure any violation placed against respondents' properties by any governmental or administrative agency as a result of petitioner's work. Petitioner shall reimburse respondents for any fines or penalties imposed as a result of such violations;

8. Petitioners shall take all steps necessary to remove any mechanic's lien, or other encumbrance against respondents' properties arising from petitioner's work;

9. Petitioners shall pay respondents each a license fee of $2,500 per month;

10. The term of this license shall commence the day after Petitioner has provided to Respondent a copy of the insurance policy and the license fee; and

11. If petitioner has reason to believe that the term of the license need be extended beyond the original term, petitioner shall, within 30 days of determining that an extension is necessary, so notify respondents and the court, and upon such notification, the court shall hold a hearing as to the necessity of the continuance of the license.

AND IT IS FURTHER ORDERED that this court retains jurisdiction over this matter to resolve any disputes over the interpretation, implementation, or enforcement of this license.

This constitutes the decision, order, and judgment of the court."

THE TRANSFER ON DEATH DEED.

As per their notice, Abstracts Incorporated has worked with the Nassau Clerk in obtaining language they deemed acceptable on the new transfer on death deed and were the first Title Company to record such a deed in Nassau.  For more information, contact Joseph A. Valerio at  jvalerio@AbstractsInc.com 

DIVORCE - CHANGING A SEPARATE PROPERTY PENSION INTO MARITAL PROPERTY

SZYPULA v. SZYPULA, 2024 NY Slip Op 5177 - NY: Court of Appeals 2024:

"WILSON, Chief Judge.

In this case, a couple used marital funds to augment the husband's Foreign Service pension so that it included credit for his pre-marriage military service. The issue is whether the portion of the pension related to the pre-marriage military service is separate or marital

property. We hold that the portion of the Foreign Service pension related to credit for that service is entirely marital property because marital funds were used to transform the credits into pension rights. We therefore reverse and remit to Supreme Court for further proceedings.

I

John Szypula joined the Navy in 1987, when he was 22. He and Meredith Szypula were married nine years later. Two years later, in 1998, Mr. Szypula left the Navy. In general, members of the armed services become entitled to retirement pay only after they complete twenty years of service. When Mr. Szypula left the Navy, he was not entitled to military retirement benefits.

From 1998 to 2012, Mr. Szypula worked in the private sector. In 2012, he joined the Foreign Service and enrolled in the Foreign Service Pension System (FSPS). Veterans who join the Foreign Service—like Mr. Szypula—may add their years of military service to their FSPS pensions by making additional contributions for the years they served in the military. Mr. and Ms. Szypula took advantage of this benefit. From 2012 to 2018, a portion of Mr. Szypula's earnings was withheld to enhance his Foreign Service pension by "buying back" his eleven years of Navy service, at a total cost of $9,158.00^[1] . As a result of those payments and his eleven years of Navy service, Mr. Szypula's FSPS pension will vest sooner and be worth more.

In 2019, the Szypulas filed for divorce. The parties settled some issues but could not resolve whether the portion of the FSPS pension attributable to Mr. Szypula's nine years of pre-marriage Navy service was separate or marital property^[2] .

Supreme Court held that the value of the FSPS pension related to Mr. Szypula's nine years of premarital Navy service was marital property subject to equitable distribution because the couple "used marital funds to buy back" the Navy credits during the course of their marriage. The Appellate Division reversed, holding that the Navy pension credits were Mr. Szypula's separate property because they were the product of his "sole labors" and were "not due in any way to [Ms. Szypula's] indirect contributions" (211 AD3d 156, 159 [3d Dept 2022]). The Appellate Division held, however, that the marital funds used to purchase the credits were subject to equitable distribution and remitted to Supreme Court to make the appropriate calculations (id.). On remittal, Supreme Court adjusted the award accordingly. Ms. Szypula now appeals.

II

Under Domestic Relations Law § 236, marital property includes "all property acquired by either or both spouses during the marriage" except separate property (id. § 236[B][1][c]). As relevant here, separate property includes "property acquired before marriage . . ." (id. § 236[B][1][d][1]) and "property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse" (id. § 236[B][1][d][3]).

Marital property "should be `construed broadly,'" and separate property "should be construed `narrowly'" (Fields v. Fields, 15 NY3d 158, 162-163 [2010], quoting Price v. Price, 69 NY2d 8, 15 [1986]). The Domestic Relations Law "creates a statutory presumption that `all property, unless clearly separate, is deemed marital property' and the burden rests with the titled spouse to rebut that presumption" (id. at 163, quoting DeJesus v. DeJesus, 90 NY2d 643, 652 [1997]). That presumption reflects the legislature's "unmistakable intent to provide each spouse with a fair share of things of value that each helped to create and expects to enjoy at a future date" (DeLuca v. DeLuca, 97 NY2d 139, 144 [2001], citing DeJesus, 90 NY2d 643).

In Majauskas v. Majauskas, we held that vested pension rights "are marital property to the extent that they were acquired between the date of the marriage and the commencement of a matrimonial action" (61 NY2d 481, 485-486 [1984]). We reasoned that a pension right is marital property because it is received "in lieu of higher compensation which would otherwise have enhanced either marital assets or the marital standard of living" (id. at 491-492), in other words, that a pension "is a form of deferred compensation" (Olivo v. Olivo, 82 NY2d 202, 207 [1993], citing Majauskas, 61 NY2d at 491-492). In the years since Majauskas, we have consistently held that pension rights attributable to work during marriage are marital property (id. at 210; Burns v. Burns, 84 NY2d 369, 376 [1994]; DeLuca, 97 NY2d at 145).

The pension rights at issue in this case differ from the benefits addressed in our prior caselaw. As we recognized in Majauskas, an employee's pension rights generally accrue incrementally over time (61 NY2d at 490). The accrual of those rights is tied to the employee's service but may also require a financial contribution from the employee. Usually, where that is the case, the employee works and pays into the plan at the same time.

Here, however, the parties made a financial contribution during the marriage to transform premarital service into pension rights. When Mr. Szypula left the Navy, the nine years of pension credits he accrued before marriage were his separate property, but they did not entitle him to any pension benefits. He had, instead, an opportunity to make a payment to acquire up to eleven years of pension rights, provided that he later took a job whose pension plan allowed for the credits to be used to augment its value.^[3]

Mr. and Ms. Szypula used marital funds to convert those eleven years of Navy service, including the nine years he worked prior to marriage, into additional value to Mr. Szypula's Foreign Service pension. The pension rights at issue in this case are therefore the product of both his pre-marriage service and the Szypulas' contribution of marital assets.

Separate property that is commingled with marital property presumptively becomes marital property (see Fields, 15 NY3d at 167; see also Weiss v. Nelson, 196 AD3d 722, 725 [2d Dept 2021] ["Separate property that is commingled with marital property loses its separate character, and here, the plaintiff failed to overcome the presumption that her commingled separate property was converted to marital property"]; Bailey v. Bailey, 48 AD3d 1123, 1124 [4th Dept 2008] [holding that the defendant failed "to rebut the presumption that (commingled funds) were marital property"]; Judson v. Judson, 255 AD2d 656, 657 [3d Dept 1998] ["(O)nce separate property is commingled with marital funds it becomes marital property"]; Pullman v. Pullman, 176 AD2d 113, 114 [1st Dept 1991] ["[T]here is a presumption that assets commingled with other property acquired during the course of the marriage are marital property"]).

Although Mr. Szypula's pre-marriage military service may have had some appreciable though contingent value as separate property, by combining it with marital funds the Szypulas transformed the pension credits from separate property into marital property. Mr. Szypula acquired the eleven years of pension rights only by entering qualifying federal employment and paying to incorporate his Navy pension credits into his new pension. Those credits are thus distinct from unvested pension credits that vest so long as an employee continues to work for the same employer (cf. Burns, 84 NY2d at 377). The use of marital funds to "buy back" Mr. Szypula's Naval service created the pension entitlement he has today, at least in part. The pension rights at issue here are therefore marital property.

Our decision recognizes that marriage is an economic partnership in which each spouse is entitled to share in "things of value arising out of the marital relationship" (O'Brien v. O'Brien, 66 NY2d 576, 583 [1985]). Had the Szypulas chosen to use their marital funds to invest in a home or a financial investment rather than to purchase pension rights, Ms. Szypula would be entitled to share in the asset, not just to recover half the purchase price. That Mr. and Ms. Szypula were entitled to invest in Mr. Szypula's pension only because of his prior military service does not change the outcome: the investment was an investment of marital property, and the resulting asset is marital.

III

Although courts may award a spouse credit for the value of separate property used to create a marital asset, the entirety of the asset is deemed marital (Fields, 15 NY3d at 166). In situations where a marital asset was acquired in part with separate property funds, "courts have usually given the spouse who made the separate property contribution a credit for such payment before determining how to equitably distribute the remaining value of the asset" (id. at 168; see also Traut v. Traut, 181 AD2d 671, 671 [2d Dept 1992]; Lolli-Ghetti v. Lolli-Ghetti, 165 AD2d 426, 432 [1st Dept 1991]). The burden is on the spouse claiming recapture of a separate property contribution to prove that contribution's value (see Kaufman v. Kaufman, 189 AD3d 31, 64 [2d Dept 2020]). The Foreign Service pension rights attributable to Mr. Szypula's nine years of premarital service are marital property in their entirety. Here, the record is not sufficient to determine the value of Mr. Szypula's inchoate Navy pension credits at the time he contributed them to create a marital asset. On remittal, Mr. Szypula may make a claim for the value of that separate property.

It also bears note that marital property need not be distributed 50/50 (see Fields, 15 NY3d at 170; see also Valitutto v. Valitutto, 137 AD3d 1526, 1528 [3d Dept 2016] [affirming a 70/30 distribution of a pension]; Auriemmo v. Auriemmo, 87 AD3d 1090, 1091 [2d Dept 2011] [affirming a 55/45 distribution of a pension]). In making an equitable distribution of marital property, the court must consider a wide range of factors (Domestic Relations Law § 236[B][5][d]). As we explained in DeLuca, "under the broad interpretation given marital property, formalized concepts such as `vesting' and `maturity' are not determinative," but "they do affect valuation and distribution" (97 NY2d at 144, 146).

It is the responsibility of the trial court to equitably distribute marital property in the first instance (Majauskas, 61 NY2d at 493). That fact intensive determination requires a detailed and wide-ranging understanding of the marriage and the situation of each individual spouse. Our decision, in contrast, is limited to addressing the legal question of whether the pension rights at issue here are marital property and therefore subject to equitable distribution on remittal, based on "the circumstances of the case and of the respective parties" (Domestic Relations Law § 236[B][5][c]).

IV

The pension credits at issue here became marital property when Mr. and Ms. Szypula used marital funds to transform them into pension rights, commingling separate property with marital property. Accordingly, the amended judgment appealed from and Appellate Division order brought up for review should be reversed, with costs, and the case remitted to Supreme Court for further proceedings in accordance with this opinion.

Amended judgment appealed from and Appellate Division order brought up for review reversed, with costs, and case remitted to Supreme Court, Tompkins County, for further proceedings in accordance with the opinion herein. Opinion by Chief Judge Wilson. Judges Rivera, Garcia, Singas, Cannataro, Troutman and Halligan concur.

[1] Mr. Szypula does not dispute that the portion of the pension attributable to his Navy service during the marriage (approximately two and a half years) is marital property. Supreme Court calculated that the total of the payments to "buy back" Mr. Szypula's premarital Navy service (approximately nine years) was $7049.46.

[2] The parties have not raised any issue relating to valuation of the portion of Mr. Szypula's pension based on his Foreign Service employment that postdated the commencement of divorce proceedings, and we express no opinion thereon.

[3] Mr. Szypula might also have become entitled to a Navy pension based on his service had he returned to the Navy, but he did not do so."

PARTITION AND THE NEW HEIRS ACT

What I find interesting is this note by the court at the conclusion of its analysis: "To the extent that <Plaintiff> may argue that its later, post-commencement, purchase of the Niece's interest removed the action from the Heirs Act's sphere, such a conclusion is in direct conflict with the express language of the law, and the express language will govern. "There is no mechanism within the Heirs Act for the release of an action from its procedures whenever, sometime post-commencement, a party sells his or her interest." (emphasis supplied)

GELINAS LLC v. Hayes, 2024 NY Slip Op 24273 - Bronx Supreme Court 2024:

"In accordance with CPLR 2219(a), the decision herein is made upon consideration of all of the papers filed by the parties in NYSCEF in connection with the motion of defendant JACQUELINE HAYES [Mot. Seq. 4], brought by Order to Show Cause, seeking an order pursuant to RPAPL § 993: 1) staying the partition sale of a property^[1] in the Bronx located at 1453 Teller Avenue ("the Residential Property"); enjoining plaintiff GELINAS, LLC. ("Gelinas") from selling, transferring or encumbering the Residential Property; 2) vacating plaintiff's partial summary judgment of partition and sale order; 3) determining the value of the Residential Property under the Heirs Act; 4) permitting Hayes as a co-tenant to exercise co-tenant's buyout option as set forth under the Heirs Act; and 5) such other and further relief as to the court may deem just, equitable and proper.

The central issue on the motion is whether this action for partition is governed by the traditional legal principles of partition or is subject to the special protections and procedures of the relatively new Uniform Partition Heirs Property Act ("the Heirs Act"). In order to categorize a partition action as a traditional or an heirs proceeding, the court must review the source of the title ownership of each owner. If a proceeding includes an owner that obtained title through inheritance, the property must be partitioned pursuant to the mandates of the Heirs Act.

Of import, the legal procedures, protections, and rights of the parties vary greatly depending upon whether the action is a traditional partition action or is subject to the Heirs Act. Under the traditional legal principles of partition, as set forth in RPAPL §§901-992, there are rigid procedures for determining the value of the property and whether a property is appropriately subject to partition, among other relief. Importantly, a traditional partition action often results in the property being sold at auction, sometimes at a significantly discounted price.

In contrast, the Heirs Act includes additional procedures and protections that are imposed in partition actions that involve individuals who acquired title through inheritance^[2]. These procedures are more stringent, grant the parties significant additional rights, and often provide for the sale of the partition property based on fair market value. Accordingly, in an action to partition a property like this one, the procedures and the rights of the parties differ dramatically based on whether or not the property is determined to be an heirs property.

Background/Procedural History

According to an affidavit, defendant Jacqueline Hayes (Hayes) met and became friends with decedent Charlesanna Adams (Adams) approximately sixty years ago in 1963. Over time, the friendship between Adams and Hayes developed into a romantic relationship.^[3]

In 1969, the women acquired the Residential Property as joint tenants, with each owing a 50% interest in the property.^[4] The couple lived together in the house for over thirty-five (35) years until Adams died in June 2005. After Adams passed, Hayes remained in the home and continues to live there today. Hayes is now over 80 years old.

In addition to owning part of the Residential Property, in 1992, Adams purchased a two-family house located on the same block as the Residential Property at 1437 Teller Avenue ("the Rental Property"). The title to this property was solely in Adams' name.

The court notes that, at the time that the women began to co-habituate, and in fact for their entire life together, the women were not entitled under New York State law, as a same sex couple, to marry. In fact, same sex marriage did not become legal in New York State until June 2011, well after Adams died in 2005.

When Adams died on June 23, 2005, she passed without a Will. Hayes alleges in this action that during their life together, Adams never mentioned any family members, no Adams family members ever visited the couple's home or the hospital, and no family members attended Adams' funeral.

After Adams passed in 2005, Hayes continued to live alone in the Residential Property and she still resides there to date. Hayes also allegedly maintained the Rental Property. Thirteen years after Adams' death, in June 2018, Hayes pro se filed a petition with the Bronx County Surrogate's Court wherein Hayes sought appointment as the administrator of Adams' estate

Hayes alleges that about this time she learned for the first time that Adams had two heirs at law, a niece named Valerie Galloway (the Niece) and a nephew named John V. Galloway, Jr. (the Nephew). It is undisputed that, by operation of law, as the sole distributes of Adams, the Niece and the Nephew each inherited 25% of the Residential Property, although it is not clear when the heirs became aware of that fact.

In an affidavit from the Niece, submitted in support of Gelinas' Motion #3, the Niece claims that she telephoned Adams at least ten times during the two years prior to Adams' death (from 2003-2005). The Niece alleges that she spoke to Hayes on several of those occasions. While averring that she called Adams when Adams was ill in 2005, the Niece claims that she was "shocked" to learn, after Hayes commenced a Surrogate's Court proceeding in 2018, that her aunt had died fourteen years earlier in 2005.

The Niece admits that she was notified of her aunt's death "through a company that monitors Surrogate filings", although she does not specify which company or attorneys contacted her. The Niece immediately challenged Hayes' standing in the proceeding and Hayes subsequently withdrew the petition in November 2019.^[5]

Fifteen years after the death of Adams, on May 15, 2020, plaintiff Gelinas bought the Nephew's 25% share of the Residential Property for $15,000. Gelinas is a limited liability company which is in the business of property development.

Almost immediately, about six months later, Gelinas commenced the instant action for the partition and sale of the Residential Property and filed a Notice of Pendency^[6] on January 11, 2021. It is undisputed that on the date of the filing of this litigation by Gelinas, Gelinas only owned a 25% interest in the property (which it acquired for $15,000), Hayes owned 50% (and had been living in the house for over 50 years), and the Niece, a named party, was an owner of a 25% interest in the property that she acquired through inheritance. It is also undisputed that, at the time, the Residential Property was worth approximately $800,000.

The Court takes judicial notice that around the same time in 2021, a second litigation (Bronx County Index No. 808237/2021e) was filed involving a similar attempt to transfer or claim title to real property, contrary to Hayes' alleged ownership, based entirely on the Niece's and the Nephew's inherited interests ("the Second Action"). Promptly after the commencement of this action, Seabiscuit Realty, LLC., a real estate developer, bought the Niece's and the Nephew's interest in the Rental Property and the right to collect the rent paid by tenants on May 5, 2021.

One month later, on June 16, 2021, Seabiscuit commenced the Second Action against Hayes claiming fraud, negligent misrepresentation, unjust enrichment, and General Business Law 349. Of note, Seabiscuit is represented in the Second Action by the same attorneys that represent Gelinas in this action.

In opposition to the developers' claims of ownership in the Second Action, Hayes alleges that she solely maintained, paid taxes on, and rented the Rental Property to tenants over the years from the time of Adams' illness until June 2021. Hayes therefore seeks a declaration that she holds full ownership of title to the Rental Property based on principles of adverse possession. The case remains in litigation^[7] before another justice, and accordingly Hayes is presently confronting two litigations regarding her interests in valuable real property that involve Adams' relatives and the laws of intestate.

In any event, in terms of this case, the original complaint filed by Gelinas named Hayes and the Niece as defendants. The pleading sets forth causes of action for: a declaration that it owns 25% of the property; a partition of sale of the property; and an accounting for rents, profits and sales proceeds. Gelinas seeks the forced the sale of the home and the pleading does not mention the Heirs Act, or its special procedures and protections. At the time of commencement, however, the Niece was indeed an heir as defined by the Act.

Hayes, represented by former counsel, filed an answer with counterclaims on March 18, 2021, denying the allegations, alleging affirmative defenses (lack of grounds for partition and right to first refusal to buy at fair market value), and asserting counterclaims (accounting of costs, maintenance and rental income, and right to purchase as majority owner). The right to purchase at fair market value, as opposed to auction, is a particular right under the Heirs Act. Gelinas filed a reply to the counterclaims on April 21, 2021, which included general denials of the allegations in the counterclaims.

Six days later, on April 27, 2021, which was only eleven months after Gelinas' purchase of the 25% interest in the Property, and one month after the joinder of issue, Gelinas moved for summary judgment [Mot. Seq. 1] ("the Motion for Summary Judgment of Partition"). In the notice of motion, Gelinas sought an order: granting summary judgment its favor; requiring Hayes to furnish Gelinas with an accounting of all rental income received with respect to the Residential Property; and, pursuant to traditional partition law RPAPL §911, appointing a Referee and directing the Referee to ascertain the rights, shares and interests of the parties in the property sought to be partitioned.

It is undisputed that on the date that the Motion for Summary Judgment for Partition was filed, the Niece, a named defendant, was an owner through inheritance, and therefore was an heir within the meaning of the Heirs Act.

Inexplicably, Hayes' attorney failed to oppose the motion.

On May 14, 2021, Gelinas acquired the Niece's share of the Property for $60,000.

By Decision and Order dated September 22, 2021, the Honorable Kenneth L Thompson, Jr. denied Gelinas' Motion for Summary Judgment of Partition [Mot. Seq. 1] on the grounds that Gelinas failed to submit proof of service of the motion upon Hayes. The decision also directed that Surrogate's Court proceedings be taken to identify the lawful heirs of Adams.

Rather than proceed to Surrogate's Court as directed, on October 7, 2021, Gelinas moved [Mot. Seq. 2] to renew and reargue the denial of the Motion for Summary Judgment for Partition ("the Renew and Reargue Motion"). Gelinas also sought to discontinue the action against the Niece after acquiring her share of the property. On the motion, Gelinas submitted new evidence in the form of an affidavit of service of the motion as well as a new affidavit by Hayes' brother stating that Hayes and Adams were not sisters. Gelinas also submitted a new affidavit from a genealogy expert opining that Hayes is not an heir of Adams.

Strikingly, Hayes' attorney did not submit opposition the motion [Mot. Seq. 2], which was marked submitted on November 21, 2021. This was the second time that the attorney failed to act to protect Hayes' rights and interests in the real property.

Hayes acquired new counsel in December, 2021.

On March 22, 2022, the Court issued a notice of a "Partition of Heirs Property Settlement Conference". This is a conference that is mandated by the Heirs Act. The Court scheduled the Partition of Heirs Property Settlement Conference for 10:00 a.m. on May 2, 2022.

On March 22, 2022, Gelinas' counsel filed a letter addressed to the referee with the Court. In the letter, Gelinas' counsel argued that a Partition of Heirs Property Settlement Conference was not required because neither Gelinas nor Hayes inherited title to the property from a relative. Gelinas maintained that, therefore, the Heirs Act is inapplicable and the proceeding should proceed as a standard partition action. Gelinas did not file a motion as to the issue.

Thirteen days later, and before a response to the letter was filed by Hayes, by Decision and Order dated April 4, 2022, the Honorable Kenneth L. Thompson, Jr., granted Gelinas' Renew and Reargue Motion [Mot. Seq. 2], which sought to renew and reargue Gelinas' denied Motion for Summary Judgment of Partition [Mot. Seq. 1]. Again, no opposition had been filed by Hayes' former attorney to the Renew and Reargue Motion and it was granted on default.

In its decision, the court determined, on default, that Hayes was not Adams' heir, and implicitly that the Heirs Act was inapplicable, and held that the previous court referral to Surrogate's Court was rendered moot. The court therefore granted Gelinas' underlying Motion for Summary Judgment for Partition [Mot. Seq.1] on default but did not dismiss Hayes' counterclaims. The matter was referred to a referee for a standard partition hearing^[8].

Consequently, the Partition of Heirs Property Settlement Conference scheduled for May 2, 2022, was cancelled.

On June 28, 2022, Referee Joyce Brown, Esq., issued a traditional partition report finding inter alia that Gelinas and Hayes each owned 50% of the property and directing that the house be sold as a whole unit ("the Referee's Partition Report"). Immediately, on July 15, 2022, Gelinas moved [Mot. Seq. 3] for an order confirming the Referee's Partition Report and issuing a judgment of partition and sale.

Hayes, by new counsel, cross-moved for an order vacating the referee's report. In the motion papers, Hayes' attorney argued that former defense counsel was ineffective as a matter of law and challenged the report.

On January 6, 2023, the Honorable Kenneth L. Thompson issued a Decision and Order granting Gelinas' motion [Mot. Seq. 3] to confirm the Referee's Partition Report and denying Hayes' cross-motion. The Court directed the parties to Settle Order.

On January 12, 2023, Gelinas submitted a proposed Judgment of Partition and Sale to the Court which was unopposed. A few days later, on January 27, 2023, the Court issued the Judgment of Partition and Sale. Eleven days later, on February 9, 2023, plaintiff served Notice of Entry of the Judgment.

By email correspondence with the court attorney referee, starting on April 6, 2023, Gelinas' counsel communicated directly with the court referee to schedule some form of court conference. In the thread of emails, plaintiff's counsel twice asks whether the referee agreed that the Residential Property was not an heirs property. While Hayes' attorney was included on the email chain, Hayes' attorney did not respond to or affirm the contents of the emails by email or in the record.

On April 10, 2023, it appears that a court conference was held. In the relevant part of the email chain, on April 12, 2023, the referee states that "I recommended that the property is not heirs property and the auction date be set". The parties do not claim that the required procedures and considerations of the Heirs Act were a part of this court conference.

After Justice Thompson retired, this Court was assigned the action in late April 2023.

Two months later, on June 16, 2023, Gelinas filed a Notice of Sale. The Residential Property was noticed to be sold at auction on July 10, 2023. Based on the appraisal submitted by defendant dated June 24, 2023, the Residential Property had an appraised value of $805,000.

Before the sale date, on July 6, 2023, Hayes brought the instant motion [Motion Seq. 4] by Order to Show Cause. In this motion, Hayes seeks an Order staying the sale and an order, pursuant to RPAPL § 993 (the Heirs Act): vacating the judgment of partition and sale on the grounds that the Court failed to conduct a Partition of Heirs Property Settlement Conference and to provide other statutory protections, as is required by law; determining the value of the property; and allowing Hayes to exercise her buyout options under the provisions of the Heirs Act. The motion also sought "such other and further relief as to the court may deem just, equitable and proper".

On July 6, 2023, this Court signed Hayes' Order to Show Cause and issued a temporary restraining order staying the sale of the Residential Property pending the outcome of the instant motion. Gelinas opposes the motion. The action was conferenced by the court several time prior to the final submission of the motion.

Analysis

At the heart of this case is the appropriate and fair disposition of the home of a same sex, unmarried couple that lived together in the house for almost 50 years. One challenging legal issue here is whether, based on the heirs relationship of an originally named party, the action falls within the special protections of the Heirs Act when, post-commencement, the originally named heir's interest was purchased by plaintiff.

As an initial matter, the Court finds that, although not explicitly labeled as such, the Notice of Motion and underlying motion papers [Mot. Seq. 4] give notice that Hayes seeks to vacate her former attorney's default on the Motion to Renew and Reargue [Mot. Seq. 2], and upon vacatur, seeks an order denying the motion.

Moreover, as the Notice of Motion and underlying papers include general prayers for relief, the motion is appropriately treated as such a motion to vacate. A court may grant relief not specifically requested in the notice of motion, pursuant to a general prayer for relief contained in the notice of motion or the papers, if the relief is warranted by the facts plainly appearing in the papers on both sides, and if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party (see generally, Robert v. Azoulay Realty Corp., 209 AD3d 781 [2d Dept 2022]; see Caesar v. Metropolitan Transportation Authority, 229 AD3d 601 [2d Dept 2024]).

As Hayes' moving papers contain a general prayer for relief, this Court will, in its discretion, treat the motion as a motion to vacate a default. All of the relevant issues generated by this motion, the Motion to Renew and Reargue, and the underlying Motion for Summary Judgment of Partition are extensively briefed by the parties and were addressed at oral argument. Under the circumstances, based on the extensive litigation of the facts and legal arguments by the parties, the relief to be granted is not dramatically unlike the articulated relief sought. Importantly, as Hayes' former attorney defaulted on the previous motions [Mot. Seq. 1 and Mot. Seq. 2], the strong public policy in favor of resolution of a motion on the merits was not served.

Motion to Vacate the Default on the Motion to Renew and Reargue

Generally, to obtain vacatur of a default judgment under CPLR 5015(a)(1), a party must demonstrate a reasonable excuse for the default and the existence of a potentially meritorious defense or claim (Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., 67 NY2d 138 [1986]; see Kolodziejski v. Jen-Mar Electric Service Corp., 2024 NY Slip Op. 04815 [1st Dept 2024]; Li Fen Li v. Cannon, Co., 155 AD3d 858 [2d Dept 2017]).

Of import, the grounds set forth in CPLR 5015 are not exclusive and courts retain inherent discretionary power to vacate their own judgments for sufficient reason and in the interests of substantial justice (Woodson v. Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; NYCTL 1998-2 Trust v. Bronx County Public Administrator, 213 AD3d 614 [1st Dept 2023]; Joyner v. City Carter Leasing Inc., 211 AD3d 406 [1st Dept 2022]; Inwald Enters., LLC. v. Aloha Energy, 153 AD3d 1008 [3d Dept 2017]; Gurin v. Pogge, 112 AD3d 1028 [3d Dept 2013]; see generally MTGLQ Investors, L.P. v. Vazquez, 2024 NY Slip Op. 05059 [1st Dept 2024]). This discretion is applicable in situations that involve "unique or unusual" circumstances that warrant such action (Matter of Cassini, 182 AD3d 13 [2d Dept 2020]; see NYCTL 1998-2 Trust v. Bronx County Public Administrator, supra; Joyner v. City Carter Leasing Inc., supra; Wade v. Village of Whitehall, 46 AD3d 1302 [3d Dept 2007]; Soldovieri v. Flack, 106 AD3d 717 [2d Dept 2013]; Soggs v. Crocco, 247 AD2d 887 [4th Dept 1998]; see also Go Sweat, LLC v. GRA Legal Title Trust 2013-1, U.S. Bank, National Association, 225 AD3d 486 [1st Dept 2024]; Cox v. Marshall, 161 AD3d 1140 [2d Dept 2018]).

The determination of whether to vacate a default judgment rests within the sound discretion of the Supreme Court, although a disposition on the merits is strongly favored (Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., supra; Woodson v. Mendon Leasing Corp., supra; SOS Capital v. Recycling Paper Partners of PA, LLC, 220 AD3d 25 [1st Dept 2023]; Gerdes v. Canales, 74 AD3d 1017 [2d Dept 2010]; Inwald Enterprises, LLC v. Aloha Energy, supra). Accordingly, a motion to vacate a prior judgment is addressed to the court's sound discretion subject to reversal only where there has been a clear abuse of discretion (Inwald Enterprises, LLC v. Aloha Energy, supra) and actions should be resolved on the merits when circumstances justify the same (see generally Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., supra; Gerdes v. Canales, supra).

CPLR 5015(a)

Initially, the court finds that under the facts presented, Hayes demonstrates a reasonable excuse for the default on the Motion to Renew and Reargue. Whether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits (Singh v. Sukhu, 180 AD3d 837 [2d Dept 2020]; Inwald Enterprises LLC v. Aloha Energy, supra).

Here, for reasons that cannot be explained, Hayes' former counsel failed to oppose two critical motions which resulted in depriving Hayes of significant real property rights on default. While there indeed may be instances where counsel's inaction or dilatory conduct may be imputed to the client (see e.g. Carillon Nursing & Rehabilitation Ctr., LLP v. Fox, 118 AD3d 933 [2d Dept 2014]; Gutman v. A to Z Holding Corp., 91 AD3d 718 [2d Dept 2012]), a review of the moving and opposition papers, together with the supporting documentation, reveals that Hayes never intended to abandon the defense to the case or her commitment to asserting her rights in this action (Singh v. Sukhu, supra; Inwald Enterprises, LLC v. Aloha Energy, supra; see e.g. Puchner v. Nastke, 91 AD3d 1262 [3d Dept 2012]). Rather, Hayes reasonably believed that her attorney was actively pursuing and properly defending her valuable and important real property interests in the context thereof (Singh v. Sukhu, supra; Inwald Enterprises, LLC v. Aloha Energy, supra; Gage v. Village of Catskill, 144 AD3d 1365 [3d Dept 2016]; see also Rekhtman v. Clarendon Holding Co., Inc., 165 AD3d 856 [2d Dept 2018]; Abel v. Estate of Collins, 73 AD3d 1423 [3d Dept 2010]).

In addition, while Gelinas has litigated this action at an aggressive pace, there is no showing that undue delay or prejudice will result from the vacatur of the default (see Zoom Tan, Inc. v. Monforte, 227 AD3d 1237 [3d Dept 2024]; DaimlerChrysler Ins. v. Seck, 82 AD3d 581 [1st Dept 2011]). In fact, there is no allegation of any prejudice to plaintiff and the strong public policy in favor of resolving cases on the merits is served by vacating the default (Singh v. Sukhu, supra; Inwald Enterprises LLC v. Aloha Energy, supra; Abel v. Estate of Collins, supra; Gross v. Johnson, 102 AD3d 921 [2d Dept 2013]).

As for the second element of a meritorious defense, it is noted that the quantum of proof required in support of a motion to vacate a default judgment is not as great as that which is required to oppose a motion for summary judgment (see Williams v. City of New York, 71 AD3d 605 [1st Dept 2010]; Zoom Tan, Inc. v. Monforte, supra). A movant need only show a potential meritorious defense (DaimlerChrysler Ins. Co. v. Seck, supra).

Here, the multiple affirmative defenses alleged in the proposed answer and the legal arguments in the papers with regards to the potential applicability of the Heirs Act generate numerous relevant issues that, if resolved in defendant's favor, would sustain the alleged defenses. Of import, the argument that the Residential Property is, as a matter of law, subject to the Heirs Act's procedures and protections has been consistently raised and argued and, if correct, serves as a defense to the traditional partitioning of the Residential Property granted on default. Hence, Hayes' motion to vacate the default on the Motion to Renew and Reargue is appropriately granted.

Interests of Substantial Justice

In any event, the court finds that, the under the constellation of circumstances presented in this case, this action involves "unique or usual" facts that warrant the vacatur of the default judgment in the interests of substantial justice (Matter of Cassini, supra; Woodson v. Mendon Leasing Corp., supra; NYCTL 1998-2 Trust v. Bronx County Public Administrator, supra; Joyner v. City Carter Leasing Inc., supra; Wade v. Village of Whitehall, supra; Soldovieri v. Flack, supra; Soggs v. Crocco, supra; Inwald Enters., LLC. v. Aloha Energy, supra; Gurin v. Pogge, supra). Specifically, Hayes, who is 80 years old, was served with two lawsuits filed by significant real estate development companies within one year regarding property that was maintained by her with her life partner for decades and which she managed on her own for years after her partner's death. It is undisputed that Hayes has lived in the couple's residential home for over 50 years and the property is her home.

Faced with the lawsuit by property developers to force the sale of her home, Hayes hired an attorney to protect her interests who undisputedly completely abandoned her defense. Furthermore, the intense pace of the litigation fostered by plaintiff limited the time in which Hayes could even learn of and understand her counsel's repeated defaults. At the same time, Hayes' interests in the Rental Property were being aggressively challenged in another litigation that is also in an expedited litigation posture. Finally, as the central issue here is the value of real property, an irreplaceable asset, justice requires a determination of rights based on the law, not an attorney's malpractice or a default. Accordingly, the court finds that the interests of substantial justice weigh heavily in favor of vacating the default on the motion (Matter of Cassini, supra).

Motion to Renew and Reargue [Mot. Seq.2]

At its essence, the motion [Mot. Seq. 2] that was granted on default was founded in renewal. On the renewal motion, Gelinas submitted new evidence as to Hayes' ancestry and argued that it established, as a matter of law, entitlement to summary judgment and the partition of the Residential Property under traditional, and not Heirs Act, partition procedures.

On this motion, Hayes once again argues that the Heirs Act governs and the existing order of partition violates that law. In opposition, Gelinas contends that the Heirs Act is inapplicable because, as of now, none of the parties are "heirs" within the meaning of that statute.

The Uniform Partition of Heirs Property Act and Traditional Partition

As stated, the central issue to be determined here is whether RPAPL § 993 requires that the Residential Property be treated as an heirs property which is subject to the special rules and procedures of the Heirs Act or whether the traditional principles of partition govern the parties' rights. A joint tenant or tenant-in-common to real property may maintain an action to partition of the property. The interest may be "an estate of inheritance, or for life, or for years." (Donlon v. Diamico, 33 AD3d 841 [2d Dept 2006]). Importantly, in all circumstances, the right to partition is not absolute and the remedy is always subject to the equities between the parties (Clarke v. Clarke, 227 AD3d 659 [2d Dept 2024]).

RPAPL §§991-992 outline the procedures for a traditional partition. As relevant here, a traditional partition permits the sale of the property at auction, includes a standard partition settlement conference, does not include a priority right to purchase others' interests, and does not require a fair market sale.

RPAPL § 993, known as "the Heirs Act", was passed in 2019 to amend these traditional partition proceedings. This new law was intended to protect individuals who hold real estate held as tenants-in-common from predatory real estate speculators (Senate Mem in Support, New York Bill Jacket, 2019 S.B. 4865 Ch 596). The legislature memorandum provides:

"In recent years, predatory real estate speculators have taken advantage of New York's laws governing partition actions by purchasing a stake in a residential property — usually after a number of family members have inherited the property — and then using that ownership stake to file a partition action to dispossess the family of the property through a forced sale, often for pennies on the dollar relative to the actual value of the property. Lower- and middle-class families are particularly susceptible to these types of schemes, as they often do not engage in the kind of sophisticated estate planning that could prevent predatory partitioning actions." (id.).

Hence, the Heirs Act is designed to protect family-held lands from speculators who acquire properties by leveraging minority interests to force a partition sale. The intent is to allow relatives holding fractional interests to acquire full ownership or receive full value of their interest in legacy real property through additional service requirements, court conferencing, and appraisal requirements. The Heirs Act permits partition by sale only after all of the heirs have an opportunity to purchase the interests of the selling co-tenants. Only then may the court direct commercially reasonable sale, which need not be by auction.

So, in furtherance of these public policy concerns, the Heirs Act, among other things, specifically imposes procedural safeguards to protect tenants-in-common of heirs property. The statute requires that: 1) the court shall determine, after notice and the right to be heard, whether the property is heirs property and if the property is heirs property it shall be partitioned in accordance with the Act; 2) within sixty days of the filing of the RJI, a mandatory partition settlement conference be held; 3) the co-owner requesting partition must give notice to all of the other co-owners; 4) the court must order an independent appraisal to determine the property's fair market value; 5) any co-owner may exercise a right of first refusal to buy out the interest of the co-owner seeking partition for a proportional share of the court-determined fair market value; 6) if no co-owner elects to buy out the co-owner seeking partition, the court must first consider ordering a partition-in-kind if the property can be physically divided; and 7) if a partition-in-kind would be inappropriate, and the court orders a partition-by-sale, the property must be offered for sale on the open market at a price no lower than the court-determined value for a reasonable period of time and in a commercially reasonable manner (RPAPL § 993). The law contains additional service (posting) requirements, and additional court conferencing (the Partition of Heirs Property Settlement Conference), akin to the settlement conferences in mortgage foreclosure actions (see CPLR 3408).

Importantly by its express terms, the Heirs Act does not apply in all cases where individuals own real estate as tenants-in-common. In relevant part, the Heirs Act only protects "Heirs property" as expressly defined by its provisions:

(e) "Heirs property" means real property held in tenancy in common which satisfies all of the following requirements as of the filing of a partition action:

(i) there is no agreement in a record binding all of the co-tenants which governs the partition of the property;

(ii) any of the co-tenants acquired title from a relative, whether living or deceased;

(iii) the property is used for residential or agricultural purposes; and

(iv) any of the following applies:

(A) twenty percent or more of the interests are held by co-tenants who are relatives;

(B) twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased;

(C) twenty percent or more of the co-tenants are relatives of each other; or

(D) any co-tenant who acquired title from a relative resides in the property.

(RPAPL § 993[2][e] [emphasis added]). In other words, the law applies to a limited class of partition actions where, on the date of commencement, a tenant-in-common has inherited his or her share of a property from a co-tenant that passed away.^[9]

Applying the express language of the Heirs Act to the facts presented here, it is clear that the Residential Property qualifies as heirs property under the Act because the Niece was an heir at the time of the commencement of the partition action. When presented with a question of statutory interpretation, a court's primary consideration is to ascertain and give effect to the intention of the Legislature. The text of the statute is the clearest indicator of legislative intent and the court should construe unambiguous language to give effect to its plain meaning (Nadkos, Inc. v. Preferred Contrs. Ins. Co. Risk Retention Group LLC, 34 NY3d 1, 7 [2019]; Smith as Trustee of Jay and Patricia Smith Irrevocable Trust v. Smith as Trustee of Theodore, PS, 217 AD3d 1484 [4th Dept 2023]). It is also a well-established rule that statutory language should be harmonized, giving effect to each component and avoiding a construction that treats a word or phrase as superfluous (Nadkos, Inc. v. Preferred Contrs. Ins. Co. Risk Retention Group, LLC, supra).

Here, the Heirs Act expressly defines the meaning of the term "Heirs property" to include "real property held in tenancy in common which satisfies all of the following requirements as of the filing of a partition action", and where "any of the co-tenants acquired title from a relative, whether living or deceased" and "twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased".

Thus, contrary to plaintiff's contention, a partition action falls within the Heirs Act if, on the date of commencement of the action, any of the co-tenants acquired title from a relative, whether living or deceased (RPAPL § 933[2][e] [iii]; Smith as Trustee of Jay and Patricia Smith Irrevocable Trust v. Smith as Trustee of Theodore, PS, 217 AD3d 1484 [4th Dept 2023]). By specific statutory language, the categorization of the relevant property to be partitioned as a "Heirs Property" is determined on the date of the filing of the partition petition.

Here, Gelinas acquired the Nephew's 25% stake in the property for $15,000 and then filed the instant action against Hayes and the Niece seeking to force the sale of the home by partition. Based on the express language of the statute, therefore, this action falls within the purview of the Heirs Act because, at the time that the partition action was commenced, the named defendant Niece was a heir with a 25% of the ownership interest in the property. Accordingly, the partition action was required to proceed under the procedures set forth in the Heirs Act and the failure to follow said procedures was a violation of the statute that must be remedied.

To the extent that Gelinas may argue that its later, post-commencement, purchase of the Niece's interest removed the action from the Heirs Act's sphere, such a conclusion is in direct conflict with the express language of the law, and the express language will govern. There is no mechanism within the Heirs Act for the release of an action from its procedures whenever, sometime post-commencement, a party sells his or her interest.

In addition, any argument that the April 2023 court conference somehow satisfied the Heirs Act is without merit. Among other deficiencies under the Act, the conference was held after the entry of judgment and well beyond 60 days from the filing of the RJI.

Importantly, this interpretation of the express language of the Heirs Act and the legal consequences thereof are consistent with the recent amendment to the statute. Although not applicable to this proceeding, in July 2024, the Heirs Act was amended to add additional protections for tenants-in-common of heirs property. Effective July 19, 2024, subd. 12 and 13 were added prohibiting the purchaser from a protected heir from commencing a partition action (subd. 12) and establishing a hierarchical right of first refusal against any purchase offer (subd. 13), giving heirs in possession as a residence first right. Practice Commentaries, NY RP Act & Pro 993 (July 19, 2024). The provisions make clear that, under the Heirs Act, a purchaser such as Gelinas lacks standing to even commence a partition proceeding because the property was owned by an heir, and Gelinas acquired its shares "by means other than inheritance".^[10]

Of note, this interpretation of the Heirs Act also serves the parties' interest in stability in litigation. To conclude the contrary would create uncertainty as to the procedures and the legal protections provided to the parties in an Heirs Act partition as the nature and governing law of the proceeding could be altered at any time during the ongoing litigation simply by a party's sale of its rights. Certainly, the application of the Heirs Act may affect the value of the property, the parties' decision to sell their interest, or even the decision to seek partition at all.

Accordingly, based on the express language of the Heirs Act, the court finds, after notice and the right to be heard was afforded to each party, that the Residential Property is heirs property subject to the procedures and protections of the Heirs Act. The property shall be therefore partitioned in accordance with guidelines and procedures set forth in the Act beginning with the prompt scheduling of a Partition of Heirs Property Settlement Conference.

Significantly, much of the narrative in this case resembles the type of unjust circumstances that the Heirs Act is designed to remedy. Hayes, lifetime partner to Adams, faces the forced sale of their family home due the purchase, at a nominal price, of distant relatives' interests in the home by a property developer. Gelinas, a real estate company, now seeks to use these relatively inexpensive purchased interests to force the property through a traditional partition proceeding to auction sale, a situation that is rife with the potential abuses specifically sought to be prevented by the Heirs Act. Hence, while Hayes is not strictly an heir under law, the application of the Heirs Act to the circumstances will not result in injustice, but will, in fact, serve the intention of the legislation.

In any event, the right to partition is not absolute and the partition remedy is always subject to the equities between the parties, and the court finds that the result reached herein serves equitable interests (Clarke v. Clarke, supra). As discussed herein, the facts of the case generate significant questions of equity and fairness. Hayes and Adams acquired a house and resided in it together for over 50 years as a couple until Adams passed away. Hayes, who is in her eighties, continued to live alone in the home for over a decade more. It is undisputed that Adams' relatives never visited the home, visited Adams in the hospital or attended the funeral, and inherited their aunt's share of the property without ever having seen it. The low price paid by Gelinas ($75,000) for the right to partition a property that is worth over a $800,000, combined with the expedited pace of litigation of the case by Gelinas, raise concerns of inequity and unfairness. This constellation of circumstances generates concerns of whether a fair price would be obtained and equity would be served by an immediate traditional auction. Hence, based on the unique facts presented, even if the proceeding were to proceed as a traditional partition, a balancing of equities would weigh in Hayes' favor and would warrant additional safeguards to ensure that the parties receive a proper share of the property and its benefits (see Conroy v. Conroy, 215 AD3d 630 [2d Dept 2023]; Lauriello v. Gallotta, 70 AD3d 1009 [2d Dept 2010]; Colley v. Romas, 50 AD3d 1338 [3d Dept 2008]; Haines v. Haines, 254 AD2d 516 [3d Dept 1998]; Stressler v. Stressler, 193 AD2d 728 [2d Dept 1993]; Ripp v. Ripp, 38 AD2d 65 [2d Dept 1971], aff'd, 32 NY2d 755 [1975]; see generally, Coston v. Greene, 188 AD3d 1147 [2d Dept 2020]; Tsoukas v. Tsoukas, 107 AD3d 879 [2d Dept 2013]; Arata v. Behling, 57 AD3d 925 [2d Dept 2008]).

The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any contention raised by the parties is not addressed by the Court, it is hereby rejected.

Accordingly, it is hereby

ORDERED that the part of the motion of defendant JACQUELINE HAYES [Mot. Seq. 4], brought by Order to Show Cause, that, in essence, seeks an order vacating the court's Decision and Order dated April 4, 2022 ("the Prior Decision") which granted, on default, plaintiff GELINIS LLC's Motion to Renew and Reargue [Mot. Seq. 2] is granted; and it is further

ORDERED that the Prior Decision is vacated; and it is further

ORDERED that, upon vacatur, the Motion to Renew and Reargue [Mot. Seq. 2] is denied to the extent that the court finds that this partition action is subject to the Heirs Act and its mandated legal procedures; and it is further

ORDERED that, in light of the court's finding that the action is subject to the Heirs Act, this partition action shall now proceed in accordance with the procedures outlined in the Heirs Act; and it is further

ORDERED that the Judgment of Partition and Sale dated January 27, 2023, is vacated and the Clerk shall mark the Judgment of Partition and Sale vacated in all court records; and it is further

ORDERED that this partition action shall promptly proceed to a Partition of Heirs Property Settlement Conference; and it is further

ORDERED that plaintiff shall serve a copy of this order with notice of entry on the Clerk managing Partition of Heirs Property Settlement Conferences by November 25, 2024, and upload an affidavit of service demonstrating said service by November 30, 2024, and said conference shall be promptly scheduled; and it is further

ORDERED that the court's Stay on the sale of the Residential Property pending the outcome of the instant motion shall be lifted upon the completion of the Partition of Heirs Property Settlement Conference; and it is further

ORDERED that defendant shall serve a copy of this order with notice of entry on the Judgment Clerk by November 25, 2024, and upload an affidavit of service by November 30, 2024; and it is further

ORDERED that the remaining part of the motion [Mot. Seq. 4] that seeks an order determining the value of the Residential Property under the Heirs Act and permitting a co-tenant to exercise co-tenant's buyout option as set forth under the Heirs Act and other relief is granted only to the extent that the action shall procced in accordance with the procedures of the Heirs Act; and it is further

ORDERED that the Clerk shall mark motion sequence 4 as decided in all court records.

The foregoing constitutes the Decision, Order Judgment of the court.

[1] Plaintiff's moving papers (Motion #1) describe the residence as a two-family house; however, the referee's report describes the property as a single-family residence.

[2] The Heirs Act supplements the general partition law (RPAPL §§901-992) and if a partition action is governed by the Act, the Act will replace the provision of the general partition statute that are inconsistent with the Act. RPAPL§§ 993(3)(a);(3)(b) and 993(3)(c).

[3] Hayes describes the relationship between the deceased and Hayes in an affidavit submitted in connection with Motion #2.

[4] Hayes describes the circumstances surrounding the purchase of the Residential Property in an affidavit submitted in support of the instant motion (Motion #4).

[5] In a decision dated September 16, 2021, Justice Thompson found that: "Hayes withdrew her petition in Surrogate's Court on the return date of a revocation proceeding. Plaintiff contends that Hayes' petition was fraudulent which led to the withdrawal. However, the order of Justice Nelida Malave-Gonzalez dated November 26, 2019, merely memorializes the withdrawal of the petition on the return date of a revocation proceeding. This Court cannot speculate as to the reason for the withdrawal of the petition and dismissal of Hayes' claim to being a distribute".

[6] The Notice of Pendency states that it is filed by "plaintiff Lightcap1, LLC.". There is no such party in this action.

[7] In the Second Action, third-party defendant YSLW Teller LLC, allegedly purchased the Rental Property from Seacrest taking out a 1.5 million-dollar mortgage and a 2.4 million dollar Building Loan Mortgage on the Rental Property, evidence that the rental property has significant value. As an alleged subsequent purchaser, YSLW is impleaded.

[8] On May 18, 2022, the court issued an amended Order to correct a typographical error in the April 4, 2022, decision.

[9] Effective July 19, 2024, subd. 12 and 13 were added to the Heirs Act prohibiting the purchaser from a protected heir from commencing a partition action (subd. 12) and establishing a hierarchical right of first refusal against any purchase offer (subd. 13), giving heirs in possession as a residence first right. Practice Commentaries, NY RP Act & Pro 993 (July 19, 2024).

[10] "12. Prohibition on initiation of a partition action. No partition action related to an heirs property may be initiated by a party that purchased or otherwise acquired their share or shares by means other than inheritance, and who did not inherit their share or shares directly from a person who was a co-tenant prior to the property becoming heirs property or from a co-tenant who was an heir thereto."