Tuesday, August 20, 2019

EXPOSING CHILD TO DOMESTIC VIOLENCE


The ending here is different than HBO's courtroom scene finale in Big Little Lies.

Matter of Jayce J. v. Jaquana J., Date filed: 2019-07-29, Court: Family Court, Bronx, Judge: Judge Michael Milsap, Case Number: NN-34471-2/18:

"….It is clear there is a history of domestic violence between Mr. M. and Ms. J. and that such violence has occurred in the presence of the children. In fact, respondent has filed two recent family offense petitions seeking an order of protection on behalf of herself and the children. (Docket O-XXXX/XX filed on 5/7/19 was dismissed for failure to prosecute and Docket O-XXXXX/XX filed on 6/25/19 is currently pending). The petitions allege Mr. M. has threatened Ms. J. with harm, including a threat with the use of a gun.

Pursuant to FCA §1012(f)(i)(B), a neglected child is defined as one “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his/her parent…to exercise a minimum degree of care…in providing the child with proper supervision or guardianship, by inflicting harm , or a substantial risk thereof”.

This court entered an order of protection on 5/10/17 that required John M. to stay away from Jaquana J. and the children Avianna M. and Jayce J. except for ACS arranged visits. That order continued beyond that date and was in place when respondent Ms. J. appeared and submitted to the court’s jurisdiction. Ms. J. with counsel present was aware that the order was thereafter continued and therefore was in place on 6/4/18. Respondent acknowledged knowing that the full stay away order was in place when she initiated a meeting with Mr. M. and on that date she was assaulted by Mr. M. on the street with the children being present. It is well established that acts of domestic violence may be a basis of a neglect finding due to the children being at risk of physical or emotional harm. See In Re Mohammed J., 121 A.D.3rd 994, 995 N.Y.S.2d 126 (2nd Dept. 2014); In Re Jordan E., 57 A.D.3d 539, 869 N.Y.S.2d 162 (2nd Dept. 2008). Additionally, a neglect finding may be based on a parent’s failure to protect a child from continued exposure to domestic violence. Katherine GG v. Kenneth II, 254 A.D.2d 538, 678 N.Y.S.2d 689 (3rd Dept. 1998). Respondent Ms. J. has shown flawed parental judgment by continuing to have contact with Mr. M. with the children being present knowing of his assaultive behavior and thus knowingly exposing the children to violence with a risk of physical and/or emotional harm.

Therefore, this court enters a finding of neglect against respondent Ms. J. due to her inadequate supervision and guardianship by allowing the children to be exposed to domestic violence despite an order of protection that was in place to protect the children from further exposure to such."

Monday, August 19, 2019

MORTGAGE FORECLOSURE - NECESSARY EVIDENCE FOR SUMMARY JUDGMENT



The rules of evidence do apply to summary judgment motions.

U.S. Bank N.A. v Cope, 2019 NY Slip Op 06111, Decided on August 7, 2019, Appellate Division, Second Department:

""Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default'" (Hudson City Sav. Bank v Genuth, 148 AD3d 687, 688-689, quoting Deutsche Bank Natl. Trust Co. v Abdan, 131 AD3d 1001, 1002). Pursuant to UCC 3-804, the owner of a lost note may maintain an action "upon due proof of [1] his [or her] ownership, [2] the facts which prevent his [or her] production of the instrument and [3] its terms" (UCC 3-804). The party seeking to enforce a lost instrument is required to "account for its absence" (UCC 3-804, Official Comment).

Here, although the plaintiff came forward with evidence establishing that the note was assigned to it and establishing the note's terms, the affidavit of lost note submitted in support of its motion failed to establish the facts that prevent the production of the original note (see UCC 3-804; Deutsche Bank Natl. Trust Co. v Anderson, 161 AD3d 1043, 1044-1045; US Bank N.A. v Richards, 155 AD3d 522, 524; Marrazzo v Piccolo, 163 AD2d 369; see also New York Community Bank v Jennings, 2015 NY Slip Op 31591[U], *4-5 [Sup Ct, Queens County]). Additionally, we note that Riley's out-of-state affidavit lacked a certificate of conformity as required by CPLR 2309(c), although such defect by itself would not be fatal to the plaintiff's motion (see Bank of N.Y. Mellon v Vytalingam, 144 AD3d 1070, 1071).

Further, the evidence submitted in support of the plaintiff's motion failed to establish, prima facie, that the plaintiff strictly complied with RPAPL 1304. Proper service of the RPAPL 1304 notice containing the statutorily mandated content is a condition precedent to the commencement of a foreclosure action (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 103). The plaintiff failed to submit an affidavit of service or any proof of mailing by the post office [*2]demonstrating that it properly served the defendant pursuant to the terms of the statute (see U.S. Bank N.A. v Henry, 157 AD3d 839; Investors Sav. Bank v Salas, 152 AD3d 752; Citibank, N.A. v Wood, 150 AD3d 813; cf. Citimortgage, Inc. v Banks, 155 AD3d 936). Contrary to the plaintiff's contention, the affidavit of a representative of its loan servicer was insufficient to establish that the notice was sent to the defendant in the manner required by RPAPL 1304, as the representative did not provide evidence of a standard office mailing procedure and provided no independent evidence of the actual mailing (see Wells Fargo Bank, NA v Mandrin, 160 AD3d 1014; Bank of Am., N.A. v Wheatley, 158 AD3d 736; U.S. Bank N.A. v Henry, 157 AD3d at 842; Investors Sav. Bank v Salas, 152 AD3d at 754; Citibank, N.A. v Wood, 150 AD3d at 814; cf. Flagstar Bank, FSB v Mendoza, 139 AD3d 898).

Likewise, the plaintiff failed to establish, prima facie, that it complied with the condition precedent contained in the mortgage requiring it to give notice of default prior to demanding payment in full (see Emigrant Bank v Myers, 147 AD3d 1027). The affidavit of a representative of the plaintiff's loan servicer claiming that notice of default was sent to the defendant on November 7, 2012, was conclusory and unsubstantiated, and even when considered together with a copy of the notice of default, was insufficient to prove that the notice was sent in accordance with the terms of the mortgage (see id.; GMAC Mtge., LLC v Bell, 128 AD3d 772; Wells Fargo Bank, N.A. v Eisler, 118 AD3d 982).

Accordingly, since the plaintiff failed to meet its prima facie burden, those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference should have been denied without regard to the sufficiency of the defendant's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). In light of the foregoing, we need not reach the defendant's contention that the plaintiff failed to establish that it had standing to commence the action."

Friday, August 16, 2019

ERRONEOUS DISCHARGE OF MORTGAGE



Recently, I conferred with a client, who was in foreclosure, and they had discovered a satisfaction of mortgage was filed - yet admitted that they did not pay off the mortgage. So this situation is not unique.

Beltway Capital, LLC v Soleil, 2019 NY Slip Op 06057, Decided on August 7, 2019, Appellate Division, Second Department:

"The underlying facts and procedural history of this case can be found in our decision and order on a prior appeal in this action (see Beltway Capital, LLC v Soleil, 104 AD3d 628). On that prior appeal, this Court reversed an order of the Supreme Court, Kings County, dated January 7, 2011, and concluded that, while the discharge of a mortgage held by Beltway Capital, LLC [*2](hereinafter Beltway), on the subject property (hereinafter the Soleil mortgage), was accomplished by the fraud and misrepresentation of the defendant Andre Soleil, whether Beltway was entitled to reinstatement of the Soleil mortgage turned on the question of whether the defendant Deborah Hughes, a subsequent purchaser of the subject property, was a bona fide purchaser for value. On the record before us, and with only limited discovery having been conducted, this Court concluded that the Supreme Court erred in determining conclusively that Hughes was a bona fide purchaser for value. As such, we reversed the order insofar as appealed from, reinstated the Soleil mortgage, and, effectively, remitted the matter for further discovery (see id. at 631-632).

Upon the completion of that discovery, Hughes and Sperry Associates Federal Credit Union (hereinafter Sperry), an alleged subsequent encumbrancer, separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. Hughes also moved for summary judgment declaring her a bona fide purchaser for value and discharging the mortgage as to her, and Sperry also moved for summary judgment declaring it a bona fide encumbrancer with first priority of lien on the property, and discharging the Soleil mortgage as to it. In an order dated February 9, 2016, the Supreme Court granted the motions. Judgment was thereafter entered on May 17, 2016, in Hughes's and Sperry's favor. Beltway appeals from both the order and the judgment.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

"A mortgagee may have an erroneous discharge of mortgage, without concomitant satisfaction of the underlying mortgage debt, set aside, and have the mortgage reinstated where there has not been detrimental reliance on the erroneous recording" (New York Community Bank v Vermonty, 68 AD3d 1074, 1076; see Bank of Am. N.A. v Snyder, 154 AD3d 671; Deutsche Bank Trust Co., Ams. v Stathakis, 90 AD3d 983, 984). Only bona fide purchasers and lenders for value are entitled to protection from an erroneous discharge based upon their detrimental reliance thereon (see Bank of Am., N.A. v Snyder, 154 AD3d at 672; Beltway Capital, LLC v Soleil, 104 AD3d at 631).

Here, Hughes and Sperry each met their prima facie burden of establishing their status as bona fide purchaser and encumbrancer for value, respectively.

Hughes demonstrated that, at the time she purchased the subject property for value from Soleil, an order of the Supreme Court dated July 18, 2008, which, inter alia, cancelled and discharged the Soleil mortgage (hereinafter the 2008 order) had been duly recorded and that she was entitled to rely upon that order without conducting any further inquiry. Her deed was recorded on October 14, 2008, well before Beltway moved, in February 2009, inter alia, to vacate the 2008 order discharging the Soleil mortgage. Thus, Hughes was not on notice at the time of the purchase of any prior lien against the property which would lead a reasonably prudent purchaser to make inquiry, and there was nothing on the face of the 2008 order that would have alerted Hughes to Beltway's claim. Contrary to Beltway's contention, Hughes had no duty to conduct any further inquiry into the propriety of the discharge of the Soleil mortgage by the Supreme Court (see DLJ Mtge. Capital, Inc. v Windsor, 78 AD3d 645, 647; Baron Assoc. v Latorre, 74 AD3d 714, 716; Regions Bank v Campbell, 291 AD2d 437, 438).

Similarly, Sperry met its prima facie burden by demonstrating that, at the time it granted a mortgage to, among others, Hughes, secured against the subject property, the 2008 order had been duly recorded, that a title search did not reveal the prior lien, and that it was entitled to rely upon the title search and 2008 order without conducting any further inquiry into the propriety of the recorded order (see Andy Assoc. v Bankers Trust Co., 49 NY2d 13, 22-23; Maiorano v Garson, 65 AD3d 1300, 1302; Emerson Hills Realty v Mirabella, 220 AD2d 717)."

Thursday, August 15, 2019

USURY DEFENSE NOT AVAILABLE TO CORPORATION



Is a corporation a person? Not when it comes to the defense of usury.

Principis Capital LLC v FNI Healthcare, Inc., 2019 NY Slip Op 51202(U), Decided on July 18, 2019, Supreme Court, New York County, Reed, J. :

"In opposition, defendants failed to raise a triable issue of fact. They do not contest that they owe money to plaintiff pursuant to the agreements. The only legal stance in opposition to the motion is that the contract is usurious (see NYSCEF Doc No. 23). However, a "corporation ... is prohibited from asserting the defense of usury" (Schneider v Phelps, 41 NY2d 238, 242 [1977]). "Likewise, an individual guarantor of a corporate obligation is also precluded from asserting such a defense" (id.). Defendants' defense of usury must therefore be stricken pursuant to CPLR 3211(b) (dismissing a defense where it has no merit). Likewise, their counterclaim for usury must be dismissed (see Intima-Eighteen, Inc. v A.H. Schreiber Co., Inc., 172 AD2d 456, 457 [1st Dept 1991])."

This is codified in General Obligations Law 5-521:

"1. No corporation shall hereafter interpose the defense of usury in any action. The term corporation, as used in this section, shall be construed to include all associations, and joint-stock companies having any of the powers and privileges of corporations not possessed by individuals or partnerships.

2. The provisions of subdivision one of this section shall not apply to a corporation, the principal asset of which shall be the ownership of a one or two family dwelling, where it appears either that the said corporation was organized and created, or that the controlling interest therein was acquired, within a period of six months prior to the execution, by said corporation of a bond or note evidencing indebtedness, and a mortgage creating a lien for said indebtedness on the said one or two family dwelling; provided, that as to any such bond, note or mortgage executed by such a corporation and effective prior to April sixth, nineteen hundred fifty-six, the defense of usury may be interposed only in an action or proceeding instituted for the collection, enforcement or foreclosure of such note, bond or mortgage.

Any provision of any contract, or any separate written instrument executed prior to, simultaneously with or within sixty days after the delivery of any moneys to any borrower in connection with such indebtedness, whereby the defense of usury is waived or any such corporation is estopped from asserting it, is hereby declared to be contrary to public policy and absolutely void.

3. The provisions of subdivision one of this section shall not apply to any action in which a corporation interposes a defense of criminal usury as described in section 190.40 of the penal law."

Wednesday, August 14, 2019

PRE-ACTION DISCLOSURE



One of the disclosure devices is CPLR 3102 (c) which provides: "Before action commenced.  Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order.  The court may appoint a referee to take testimony."

Matter of Weitzman v Long Beach City Sch. Dist., 2019 NY Slip Op 06092, Decided on August 7, 2019, Appellate Division, Second Department:

"On September 7, 2016, the petitioners commenced this proceeding pursuant to CPLR 3102(c) to obtain pre-action disclosure to ascertain the identity of the individuals who had drafted and distributed an alleged defamatory letter regarding the petitioners, so that those individuals could be named as defendants in a prospective action to recover damages for defamation. While this proceeding was pending, the petitioners commenced a defamation action on September 30, 2016, against, among others, John Doe and Jane Doe, representing the individuals who drafted and distributed the letter. In an order entered December 21, 2016, the Supreme Court, inter alia, denied the petition and dismissed the proceeding to obtain pre-action disclosure on the ground that such disclosure was unavailable because an action had been commenced. The petitioners appeal.

CPLR 3102(c) provides in relevant part that, "[b]efore an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order." " [D]isclosure to aid in bringing an action (CPLR 3102[c]) authorizes discovery to allow a plaintiff to frame a complaint and to obtain the identity of the [*2]prospective defendants'" (Matter of Leff v Our Lady of Mercy Academy, 150 AD3d 1239, 1240, quoting Matter of Stewart v New York City Tr. Auth., 112 AD2d 939, 940 [internal quotation marks omitted]; see East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3d 122, 129 affd 16 NY3d 775). However, pre-action disclosure pursuant to CPLR 3102(c) to identify prospective defendants ordinarily is not available to a petitioner once the action for which the identities are sought has been commenced (see Page v Niagara Falls Mem. Med. Ctr., 167 AD3d 1428, 1432; Matter of Johnson v Union Bank of Switzerland, AG, 150 AD3d 436).

Here, the petitioners commenced the defamation action while their proceeding pursuant to CPLR 3102(c) was pending. Thus, the Supreme Court providently exercised its discretion in denying the petition for pre-action disclosure (see CPLR 3102[c]; Matter of Johnson v Union Bank of Switzerland, AG, 150 AD3d at 436). As the court noted in the order appealed from, the identities of the individuals who drafted and distributed the subject letter may be obtained through discovery in the related defamation action (see CPLR 3101[a]; see generally Bumpus v New York City Tr. Auth., 66 AD3d 26, 33-35)."

Tuesday, August 13, 2019

NEW WORKPLACE PROTECTIONS SIGNED INTO LAW


Governor Andrew M. Cuomo yesterday signed legislation (S.6577/A.8421) to enact sweeping new workplace harassment protections. The following is from the Senate Bill: 

"PURPOSE OR GENERAL IDEA OF BILL:

This bill increases protections to employees of all protected classes

who have been subject to discriminatory harassment in the workplace.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1: provides that the Human Rights Law covers all employers in
the state, including the state and all political subdivisions thereof

Section 1-a: This section further defines "private employer"

Section 2: Extends protections against all forms of discriminatory
harassment based on all protected categories; eliminates the "severe or
pervasive" standard; combats the Faragher/Ellerth defense

Section 3: Expands protections to domestic workers

Section 4: Expands protections to independent contractors

Section 5: Allows punitive damages and attorney's fees in employment
discrimination cases

Section 6: Expands the construction clause to require courts to inter-
pret Human Rights Law liberally

Section 7: Prohibits non-disclosure agreements from prohibiting the
disclosure of the underlying facts and circumstances to the claim or
action unless the condition of confidentiality is in the plaintiff's
preference in all discrimination cases

Section 8: Prohibits mandatory arbitration to resolve cases of sexual
harassment

Section 9: Expands the prohibition on non-disclosure agreements regard-
ing discriminatory harassment

Section 10: Expands the powers of the Attorney General to enforce the
Human Rights Law

Section 11: Requires employers to provide employees with notice in
English and in the employee's primary language containing the employer's
sexual harassment prevention policy

Section 12: Requires a study on expanding harassment policies to all
types of discrimination

Section 13: Expands the statute of limitations for Human Rights
complaints

Section 14: Requires quadrennial review of sexual harassment policies

Section 15: Established a severability clause

Section 16: Sets forth the effective date

 
JUSTIFICATION:

Despite our reputation as a leader in progressive reform, New York State
is behind the rest of the country when it comes to its statutes regard-
ing discrimination in the workplace, including, but not limited to,
sexual harassment.

Working individuals in the State who have experienced egregious and
debilitating forms of harassment must overcome significant and unwar-
ranted legal barriers before they can seek justice for the wrongdoing
they have been subjected to. One such example is the requirement that an
employee alleging harassment must prove the harassment was severe or
pervasive to prevail on a claim. The legal disparities surrounding
discrimination in the workplace addressed in this particular bill give
workers in the State the impression that the law, as it is currently
written, exists to protect institutions, not it's millions of vulnerable
employees.

In conjunction with the newly enacted legislation coming out of the
Women's Equality Agenda budget items introduced in 2018, the passage and
signage of this bill will bring the State up to speed with widely
accepted reforms. Vital to this bill are the protections against all
forms of discriminatory harassment, not just sexual harassment.  Addi-
tional key aspects of the legislation include, but are not limited to:
the elimination of the aforementioned "severe or pervasive" standard,
which currently allows for significant levels of discriminatory harass-
ment to be endured before an individual's case would be deemed actiona-
ble; it combats the Faragher/Ellerth defense, which enables an employer
to avoid liability; it extends the Human Rights Law to cover all employ-
ers of the state; it allows for punitive damages and attorney's fees in
employment discrimination cases, and prohibits non-disclosure agreements
from preventing the claimant's disclosure of the underlying facts and
circumstances surrounding their discrimination case to certain parties.

It is time for New York State law to recognize and serve all victims of
discrimination, not just protect the powerful."

Monday, August 12, 2019

MORTGAGE FORECLOSURE - DELAY IN SEEKING DEFAULT JUDGMENT



Justice delayed through one's own actions may mean justice denied.

Bank of Am., N.A. v Santos, 2019 NY Slip Op 06056, Decided on August 7, 2019, Appellate Division, Second Department:

"In October 2009, the plaintiff commenced this action against, among others, the defendant Cristy Santos (hereinafter the defendant) to foreclose a mortgage on residential property. The defendant failed to appear or answer the complaint. In August 2010, the plaintiff filed a request for judicial intervention. The action was sent to the foreclosure settlement conference part on December 23, 2010, and was released from that part on February 9, 2011. The action was marked inactive in December 2013. In December 2015, the plaintiff moved, inter alia, to restore the action to the court's active calendar, for leave to enter a default judgment against the defendant, and for an order of reference. The defendant opposed the motion and cross-moved pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against her as abandoned. The Supreme Court denied the plaintiff's motion, and granted the defendant's cross motion. The plaintiff appeals.

"CPLR 3215(c) generally provides that [i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion'" (BAC Home Loans Servicing, LP v Broskie, 166 AD3d 842, 843, quoting CPLR 3215). "The failure to timely seek a default may be excused if sufficient cause is shown why the complaint should not be dismissed, which requires the plaintiff to proffer a reasonable excuse for the delay in timely moving for a default judgment and to demonstrate that the cause of action is potentially meritorious" (HSBC Bank USA, N.A. v Grella, 145 AD3d 669, 671 [citation and internal quotation marks omitted]; see Ibrahim v Nablus Sweets Corp., 161 AD3d 961, 963; JBBNY, LLC v Begum, 156 AD3d 769, 771). " The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court'" (HSBC Bank USA, N.A. v Seidner, 159 AD3d 1035, 1036, quoting Giglio v NTIMP, Inc., 86 AD3d 301, 308; see Ibrahim v Nablus Sweets Corp., 161 AD3d at 963).

Here, the plaintiff's vague, conclusory, and unsubstantiated assertions that unspecified periods of delay were attributable to changes in loan servicer and counsel, and compliance with a then newly adopted administrative order, were insufficient to excuse the lengthy delay in moving for a default judgment (see BAC Home Loans Servicing, LP v Broskie, 166 AD3d at 843; Wells Fargo Bank N.A. v Cafasso, 158 AD3d 848, 849-850). Since the plaintiff failed to proffer a reasonable excuse, this Court need not consider whether it had a potentially meritorious cause of action (see BAC Home Loans Servicing, LP v Broskie, 166 AD3d at 843)."

Friday, August 9, 2019

ECONOMIC ABUSE AS DOMESTIC VIOLENCE - NEW YORK STATE BILL



Governor Andrew M. Cuomo yesterday signed three pieces of legislation expanding protections for victims of domestic violence. One of these measures broaden the definition of the crime of domestic violence to include forms of economic abuse such as identity theft, grand larceny and coercion (S.2625/ A.5608).

Economic abuse has a broad definition but in the new legislation it is limited to just three types (indicated below in bold) and is subject to the additional limitations in subparagraphs (i) and (ii). Thus, subdivision 1 of section 459-a of the social services law, as amended by chapter 11 of the laws of 2011, is amended to read as follows:

"1. "Victim of domestic violence" means any person over the age of sixteen, any married person or any parent accompanied by his or her minor child or children in situations in which such person or such person's child is a victim of an act which would constitute a violation of the penal law, including, but not limited to acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, [or] strangulation, IDENTITY THEFT, GRAND LARCENY OR COERCION; and

(i) such act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical or emotional harm to such person or such person's child; and

(ii) such act or acts are or are alleged to have been committed by a family or household member."

Thursday, August 8, 2019

DIVORCE, PENSIONS, CARRYING CHARGES, IMPUTED INCOME



Burke v Burke, 2019 NY Slip Op 06060, Decided on August 7, 2019, Appellate Division, Second Department:

"The parties were married in 1992. They have four children, born between 1992 and 1998. The plaintiff was a homemaker for many years before obtaining employment at a dental office in 2006 or 2007. Between 1984 and 1988, the defendant worked part-time as a school janitor. On or about April 30, 1991, approximately 15 months before the parties married, the defendant became a New York City police officer, and he retired at age 44 in October 2013, with the rank of Sergeant.

The plaintiff commenced this action for a divorce and ancillary relief in February 2014. After a nonjury trial, the Supreme Court rendered a decision, and subsequently issued a judgment of divorce dated May 12, 2016. The defendant appeals from so much of the judgment of divorce as awarded the plaintiff 50% of his total retirement assets and benefits; exclusive use and occupancy of the marital residence pending its sale, with the defendant to pay the carrying charges until such sale; counsel fees in the sum of $30,000; and child support based on the imputation of an annual income of $80,000 to the defendant. We modify the judgment.

Domestic Relations Law § 236(B)(1)(c) defines marital property, in part, as "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action." Section 236(B)(1)(d)(1) defines separate property, in part, as "property acquired before marriage." "[M]arital property consists of a wide range of intangible interests which in other contexts might not be recognized as divisible property at all'" (DeLuca v DeLuca, 97 NY2d 139, 144, quoting DeJesus v DeJesus, 90 NY2d 643, 647). The term marital property should be "construed broadly in order to give effect to the economic partnership' concept of the marriage relationship" (Price v Price, 69 NY2d 8, 15). "[P]ension rights earned during a marriage, prior to a separation agreement or matrimonial action, are properly considered marital property subject to equitable distribution" (Olivo v Olivo, 82 NY2d 202, 207; see Majauskas v Majauskas, 61 NY2d 481, 491-492). Post-divorce benefits are marital property to the extent that they constitute compensation for past services rendered during the marriage (see DeLuca v DeLuca, 97 NY2d at 145-146).

Contrary to the defendant's contention, the inclusion in the plaintiff's distributive award of a portion of certain pension credits the defendant "bought back" for his part-time employment as a school janitor was proper. The purchase of the pension credits, which was realized during the marriage and effected with the use of marital funds, resulted in an enhanced pension benefit, as the defendant acknowledged at trial. Inasmuch as this occurred during the marriage and through the use of marital funds, it constituted marital property subject to equitable distribution (see Whalen v Whalen, 177 Misc 2d 39, 41 [Sup Ct, Rockland County]).

The vast majority of the defendant's retirement assets, which encompassed his pension, his interest in the Sergeants Benevolent Association Annuity Fund, his Deferred Compensation Plan account, and his benefits from the Police Superior Officers' Variable Supplement Fund, constituted marital property (see DeLuca v DeLuca, 97 NY2d at 145-146; Olivo v Olivo, 82 NY2d at 207; Majauskas v Majauskas, 61 NY2d at 491-492). Furthermore, the trial court has broad discretion in making an equitable distribution of marital property and, absent an improvident exercise of that discretion, its determination should not be disturbed (see Michaelessi v Michaelessi, 59 AD3d 688, 689). Here, upon consideration of all of the attendant circumstances, we discern no basis upon which to disturb the Supreme Court's distribution to the plaintiff of a 50% interest in the marital portion of the defendant's retirement assets and benefits.

However, in equitably distributing the defendant's retirement benefits, the Supreme Court should not have included that portion of those benefits attributable to the defendant's employment as a police officer for approximately 15 months before the parties married. Since that period of employment predated the marriage, any value that those 15 months of service may have added to the defendant's various retirement assets constituted his separate property and was not subject to equitable distribution (see Majauskas v Majauskas, 61 NY2d 481). Accordingly, we remit the matter to the Supreme Court, Westchester County, for a recalculation of the plaintiff's distributive award of retirement benefits after subtracting the value attributable to the defendant's 15 months of premarital employment from the marital property subject to distribution.

We agree with the Supreme Court's determination awarding exclusive use and occupancy of the marital residence to the plaintiff, so that she and the parties' children could continue to reside there pending the contemplated sale of the residence and division of the proceeds (see generally Greisman v Greisman, 98 AD3d 1079, 1080). The court did not improvidently exercise its discretion in directing the defendant to continue to pay the carrying charges on the residence until it was sold, since the evidence established that he possessed the financial ability to meet these expenses, and the payments provided an incentive for him to cooperate in facilitating the sale.

The court may impute income to a party based on his or her employment history, future earning capacity, and educational background (see Matter of Rohme v Burns, 92 AD3d 946, 947; Duffy v Duffy, 84 AD3d 1151, 1152), and "[w]here a party's account is not believable, the court may impute a true or potential income higher than alleged" (Wesche v Wesche, 77 AD3d 921, 923). Here, the Supreme Court providently exercised its discretion in imputing to the defendant an annual [*2]income of $80,000, based on, among other things, his share of retirement benefits as well as certain rental income and his earning potential.

The Supreme Court's award of counsel fees to the plaintiff in the amount of $30,000 did not constitute an improvident exercise of discretion under the circumstances presented (see Domestic Relations Law § 237[a]; see e.g. Gulotta v Gulotta, 215 AD2d 724, 726)."

Wednesday, August 7, 2019

FORECLOSURE FAILS DUE TO ABANDONMENT



A failure to secure a default judgment within one year has consequences under CPLR 3215 (c).

HSBC Bank USA, N.A. v Slone, 2019 NY Slip Op 05963, Decided on July 31, 2019. Appellate Division, Second Department:

"In October 2012, a prior action to foreclose the same mortgage that is at issue in this action was dismissed as abandoned. In March 2015, the plaintiff commenced this action against the defendants Robert Slone and Mary Slone (hereinafter together the appellants), among others, to foreclose the mortgage. The appellants failed to timely appear or answer the complaint. On July 1, 2015, the plaintiff and the appellants attended the first of several mandatory foreclosure settlement conferences pursuant to CPLR 3408. When no settlement was reached, on July 7, 2016, this action was released from the residential foreclosure conference part, and the plaintiff was permitted to proceed with this action.

On October 23, 2017, the appellants moved pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned. The Supreme Court denied the motion, and this appeal ensued.

As an initial matter, contrary to the Supreme Court's determination, the appellants' failure to move to vacate their default in answering the complaint or appearing in this action did not operate as a waiver of their right to seek dismissal of the complaint pursuant to CPLR 3215(c). "A defendant may waive the right to seek a dismissal pursuant to CPLR 3215(c) by serving an answer or taking any other steps which may be viewed as a formal or informal appearance'" (Private Capital Group, LLC v Hosseinipour, 170 AD3d 909, 910, quoting Myers v Slutsky, 139 AD2d 709, 711; see HSBC Bank USA, N.A. v Grella, 145 AD3d 669, 671). Here, the appellants did not appear either formally or informally, since they did not actively litigate the action before the Supreme Court [*2]or participate in the action on the merits (see Private Capital Group, LLC v Hosseinipour, 170 AD3d at 910). Accordingly, the appellants did not waive their right to seek dismissal of the complaint pursuant to CPLR 3215(c).

CPLR 3215(c) provides, in part, that if the plaintiff fails to take proceedings for the entry of judgment within one year after the defendant's default, "the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion" (CPLR 3215[c]; see HSBC Bank USA, N.A. v Jean, 165 AD3d 632, 633; Myoung Ja Kim v Wilson, 150 AD3d 1019, 1020). "The language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts shall' dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned" (Giglio v NTIMP, Inc., 86 AD3d 301, 307-308; see Ibrahim v Nablus Sweets Corp., 161 AD3d 961, 963; HSBC Bank USA, N.A. v Grella, 145 AD3d at 671). However, the failure to timely seek a default judgment may be excused if "sufficient cause is shown why the complaint should not be dismissed" (CPLR 3215[c]). To establish sufficient cause as required by CPLR 3215(c), a plaintiff must proffer a reasonable excuse for the delay in timely moving for a default judgment and demonstrate that it has a potentially meritorious cause of action (see HSBC Bank USA, N.A. v Grella, 145 AD3d at 671; Aurora Loan Servs., LLC v Hiyo, 130 AD3d 763, 764; Pipinias v J. Sackaris & Sons, Inc., 116 AD3d 749, 751; Giglio v NTIMP, Inc., 86 AD3d at 308).

Here, after this action was released from the mandatory foreclosure settlement conference part in July 2016, the plaintiff was authorized to proceed with the prosecution of this action. However, despite the fact that the appellants failed to answer or otherwise appear in the action after being served with process, the plaintiff took no steps to initiate proceedings for the entry of a default judgment against the appellants. The plaintiff's participation in the mandatory foreclosure settlement part conferences did not constitute the initiation of proceedings for the entry of a default judgment. Moreover, more than one year passed from the time that the plaintiff was authorized to resume prosecution of this action prior to the appellants moving in October 2017 to dismiss the complaint as abandoned (see HSBC Bank USA, N.A. v Grella, 145 AD3d 669; U.S. Bank, N.A. v Dorvelus, 140 AD3d 850, 852). In light of the plaintiff's failure to meet its burden to show sufficient cause why the complaint should not be dismissed as abandoned, it is not necessary to address the issue of whether the plaintiff demonstrated that it had a potentially meritorious cause of action (see U.S. Bank, N.A. v Dorvelus, 140 AD3d at 852)."

Tuesday, August 6, 2019

FOR LONG ISLAND CHAMBERS OF COMMERCE



On August 2, I was one of the guests on an episode of the radio show Chamber Chatter. Chamber Chatter  is a monthly round table discussion with today's Long Island business leaders, hosted by Mark Snider. A production of LIU Public Radio.

To listen o the episode, or any other prior episode, go to Chamber Chatter LIU Studios

Monday, August 5, 2019

TOO MANY CONTRACTS CAN SPOIL THE BROTH



Here there were so many contracts between the parties that had inconsistent language: another type of battle of the forms

County of Nassau v Technology Ins. Co., Inc., 2019 NY Slip Op 05954, Decided on July 31, 2019, Appellate Division, Second Department"

"The plaintiffs, County of Nassau and Nassau County Department of Public Works, commenced this action against Technology Insurance Co., Inc. (hereinafter TIC), and Looks Great Services, Inc. (hereinafter LGS). The plaintiffs alleged that LGS performed work for the plaintiffs and was required to maintain general liability insurance naming the plaintiffs as additional insureds. LGS's work for the plaintiffs included performing emergency debris removal services following a hurricane. The plaintiffs further alleged that LGS, through its agents, employees, subcontractors, or sub-subcontractors, was involved in a motor vehicle collision while operating a tractor trailer on an expressway. Allegedly, the plaintiffs had received multiple claims and had been named in two underlying actions related to the collision. LGS produced evidence that it was insured under a certain general liability insurance policy issued by TIC. According to that insurance policy, the plaintiffs were additional insureds as "required by written contract." TIC, however, had refused to defend or indemnify the plaintiffs in the claims related to the collision. The plaintiffs sought a judgment declaring that TIC is obligated to defend and indemnify the plaintiffs under the TIC policy. The plaintiffs also sought, inter alia, to recover damages from TIC for breach of the insurance policy and from LGS for breach of contract.

The plaintiffs moved for summary judgment declaring that TIC is obligated to defend [*2]and indemnify the plaintiffs, and on the issue of liability on the second and third causes of action, which alleged breach of contract against TIC and LGS, respectively. In an order entered October 28, 2016, the Supreme Court, inter alia, denied the plaintiffs' motion. The plaintiffs appeal.

"When determining whether a third party is an additional insured under an insurance policy, a court must ascertain the intention of the parties to the policy, as determined from within the four corners of the policy itself" (Superior Ice Rink, Inc. v Nescon Contr. Corp., 52 AD3d 688, 691). Here, the subject insurance policy provides that the plaintiffs were additional insureds as "required by written contract." Consequently, the plaintiffs' entitlement to defense and indemnification under the insurance policy depends on whether LGS was contractually required to maintain general liability insurance naming the plaintiffs as insureds.

The question of whether LGS was contractually required to maintain general liability insurance naming the plaintiffs as insureds cannot be resolved on the record before us. "The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent. The best evidence of what parties to a written agreement intend is what they say in their writing. Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield v Philles Records, 98 NY2d 562, 569 [citations and internal quotation marks omitted]). "While the meaning of a contract is ordinarily a question of law, when a term or clause is ambiguous and the determination of the parties' intent depends upon the credibility of extrinsic evidence or a choice among inferences to be drawn from extrinsic evidence, then the issue is one of fact" (Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880).

The record includes multiple agreements between the plaintiffs and LGS. A "Blanket Purchase Order" (hereinafter BPO), awarded under a formal sealed bid proposal and relating to tree pruning and stump removal, included provisions requiring LGS to procure liability insurance naming the plaintiffs as insureds and to defend and indemnify the plaintiffs. A "Debris Management Agreement" (hereinafter DMA), relating to "such professional services as may be required to effect disaster response and recovery," did not include these provisions. Four "Supplemental Agreement[s]" each provide, in part, that "[t]his Supplemental Agreement is entered into pursuant to the provisions of the original [DMA] . . . entered into in 2011 under the existing [BPO]." Under these circumstances, triable issues of fact exist regarding whether the occurrences were covered by the DMA or the BPO, and thus the plaintiffs were not entitled to summary judgment on the cause of action seeking a declaration that TIC was obligated to defend and indemnify the plaintiffs.

Similarly, the plaintiffs failed to demonstrate their prima facie entitlement to judgment as a matter of law on the second and third causes of action, alleging breach of contract. Given the triable issue of fact as to whether the plaintiffs are covered under the insurance policy, the plaintiffs have not shown, prima facie, that TIC breached the insurance policy by, inter alia, failing to defend or indemnify the plaintiffs. Additionally, the plaintiffs failed to establish, prima facie, that a binding indemnification agreement between LGS and the plaintiffs was in effect at time of the collision, and, moreover, failed to eliminate all triable issues of fact as to whether the plaintiffs were free from negligence in connection with the collision (see Poalacin v Mall Props., Inc., 155 AD3d 900, 910).

Since the plaintiffs did not demonstrate their prima facie entitlement to summary judgment declaring that TIC is obligated to defend and indemnify the plaintiffs, and on the issue of liability on the second and third causes of action, alleging breach of contract, we agree with the Supreme Court's denial of their motion, without regard to the sufficiency of the defendants' opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Friday, August 2, 2019

BASIC CONTRACT INTERPRETATION RULES



"The shorter and the plainer the better." ~ Beatrix Potter

Atlantic Shores Bldrs. & Devs., Inc. v Federico, 2019 NY Slip Op 05950, Decided on July 31, 2019, Appellate Division, Second Department:

"" In reviewing a determination made after a nonjury trial, this Court's power is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing and hearing the witnesses'" (Quadrozzi v Estate of Quadrozzi, 99 AD3d 688, 691, quoting BRK Props., Inc. v Wagner Ziv Plumbing & Heating Corp., 89 AD3d 883, 884; see Yarom v Poliform S.P.A., 153 AD3d 760, 761). " The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court, as is the inquiry of whether the writing is ambiguous in the first instance. If the language is free from ambiguity, its meaning may be determined as a matter of law on the basis of the writing alone without resort to extrinsic evidence'" (Palombo Group v Poughkeepsie City Sch. Dist., 125 AD3d 620, 621, quoting Law Offs. of J. Stewart Moore, P.C. v Trent, 124 AD3d 603, 603 [citations omitted]; see Yarom v Poliform S.P.A., 153 AD3d at 761). Accordingly, "[w]hen the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties' reasonable expectations" (Patsis v Nicolia, 120 AD3d 1326, 1327)."

Thursday, August 1, 2019

PROBATE DISPUTES AND IN TERROREM CLAUSE



Not all blended families work out like they do on TV - as this probate proceeding demonstrates.

Matter of Sochurek, 2019 NY Slip Op 05987, Decided on July 31, 2019, Appellate Division, Second Department:

"The decedent, Robert W. Sochurek, died in February 2014. He was survived by his wife, Anna Marie T. Sochurek (hereinafter Anna Marie), and two daughters from a previous marriage, Lynn Ammirato and Lisa Birch (hereinafter together the daughters). At the time of his death, the decedent owned a 50% interest in a self-storage company, nonparty Brady Avenue Associates LLC (hereinafter Brady Avenue). The decedent's will named Anna Marie as executor of his estate, and bequeathed to her a life estate in the decedent's 50% interest in Brady Avenue, including "all the duties and responsibilities for the operation of said Limited Liability Company as if she was the owner and member thereof." The will also granted Anna Marie, as executor, the power to "sell, exchange, or otherwise dispose of any or all of my property, real or personal," and the power to "run, manage and direct any business of which I may die possessed, temporarily or permanently, or to sell or otherwise dispose of such business and all the assets thereof upon any terms which [Anna Marie] deem[s] advisable." The will provided that, upon the death of Anna Marie, her life estate would terminate and the decedent's interest in Brady Avenue would pass to the daughters, in equal shares.

The will included an in terrorem clause which provided for the revocation of the interest of any beneficiary who "institute[s] . . . any proceedings to set aside, interfere with, or make null any provision of this Will, . . . or shall in any manner, directly or indirectly, contest the probate [*2]thereof." The will left the "rest, residue, and remainder" of the decedent's estate to Anna Marie, absolutely, "to the exclusion of any children of mine."

After letters testamentary were issued and the will probated, Anna Marie entered into a contract to sell all of the assets of Brady Avenue to a nonparty for the sum of $7.5 million, the net proceeds of which were to be divided between Anna Marie and the holder of the other 50% interest in Brady Avenue. The daughters entered into a Standstill Agreement with Anna Marie whereby Anna Marie agreed to hold the proceeds from the sale in a segregated bank account while Anna Marie and the daughters determined the daughters' interests in the liquidated assets of Brady Avenue as remainder beneficiaries of Anna Marie's life estate. The daughters subsequently commenced an action in the Supreme Court against Anna Marie to recover damages, inter alia, for breach of the Standstill Agreement and breach of fiduciary duty, and for the imposition of a constructive trust. The complaint alleged, in sum, that Anna Marie had breached her fiduciary duty to the daughters as remainder beneficiaries, and demanded an accounting of the assets of Brady Avenue.

Anna Marie then petitioned pursuant to SCPA 1420 to construe the in terrorem clause of the decedent's will. The petition alleged that the decedent's will granted Anna Marie the absolute and sole discretion to dispose of any and all of the assets of the estate, including the assets of Brady Avenue, that the daughters had interfered with Anna Marie's administration of the decedent's estate by commencing the Supreme Court action, and that such interference violated the in terrorem clause of the decedent's will. In a decision dated June 30, 2016, the Surrogate's Court determined, among other things, that the will granted to Anna Marie, as executor, broad powers to dispose of all estate property, and that the daughters had interfered with those powers by commencing the Supreme Court action. By decree entered August 11, 2016, the Surrogate's Court determined that the daughters had violated the in terrorem clause of the will, and by doing so, had forfeited their legacies under the will. The daughters appeal.

Initially, contrary to the daughters' contention, the Surrogate's Court acted within its jurisdiction in construing the in terrorem clause of the decedent's will (see SCPA 201). In addition, the Supreme Court action did not effect a bar to this proceeding under the doctrine of law of the case (see J.A. Preston Corp. v Fabrication Enters., 68 NY2d 397, 402; Pollack v Pollack, 290 AD2d 548).

"The paramount consideration in will construction proceedings is the testator's intent" (Matter of Singer, 13 NY3d 447, 451; see Matter of Carmer, 71 NY2d 781, 785; Matter of Levine, 136 AD3d 920, 921). The testator's intent must be ascertained "not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed" (Matter of Bieley, 91 NY2d 520, 525 [emphasis and internal quotation marks omitted]; see Matter of Bernstein, 40 AD3d 1086, 1087; Williams v Williams, 36 AD3d 693, 694). "[W]hile in terrorem clauses are enforceable, they are not favored and [must be] strictly construed'" (Matter of Singer, 13 NY3d at 451, quoting Matter of Fairbairn, 46 AD3d 973, 974; see Matter of Ellis, 252 AD2d 118, 127).

Here, the daughters alleged in the Supreme Court action that Anna Marie breached her fiduciary duty as executor and holder of the life estate in the decedent's interest in Brady Avenue by taking possession of the entire proceeds of the sale to the exclusion and detriment of the daughters as remainder beneficiaries. The daughters have not lodged any contest to the validity of the will, or otherwise interfered with its provisions granting Anna Marie discretion to dispose of estate assets in her capacity as executor. Moreover, the claim that Anna Marie violated the standstill agreement did not implicate any challenge to the will. Thus, we disagree with the determination of the Surrogate's Court that the daughters violated the in terrorem clause of the will and forfeited their legacies under the will (see Matter of Prevratil, 121 AD3d 137, 146)."

Tuesday, July 30, 2019

CONGRATULATIONS



My retired law partner, Gerald B. Weiner, and his wife Dana who got married on July 26

Monday, July 29, 2019

DIVORCE - THE MARITAL RESIDENCE AND THE MORTGAGE

This case illustrates a common problem when one spouse agrees to relinquish their interest in the marital residence to the other spouse but the house is subject to a mortgage.

Lainez v Orellana, 2019 NY Slip Op 05769, Decided on July 24, 2019, Appellate Division, Second Department:

"The parties were married in 2000 and separated in 2011. In a 2011 settlement agreement, the defendant agreed to transfer his interest in the marital residence to the plaintiff, and the plaintiff agreed to hold the defendant harmless with respect to all mortgage payments and do everything in her power to remove his name from the mortgage. The parties were divorced in October 2012, and the judgment of divorce incorporated, but did not merge, the 2011 settlement agreement.

The plaintiff continued to live in the marital residence, neither party performed his or her obligations under the provisions of the 2011 settlement agreement relating to the marital residence, and the defendant made the monthly mortgage payments. In April 2016, the parties entered into a stipulation (hereinafter the 2016 stipulation) in an attempt to resolve the problems arising from their failure to perform under the 2011 settlement agreement. Under the terms of the 2016 stipulation, the plaintiff was obligated to pay the defendant the sum of $20,424.90 to reimburse him for the mortgage payments he had made since the 2011 settlement agreement, the defendant was obligated to execute all documents necessary to transfer his interest in the property to the plaintiff within 30 days, and the plaintiff was obligated to remove the defendant's name from the mortgage on the property within four months. The 2016 stipulation further provided that if the plaintiff, after receiving notice that she was in default, remained in default on any provision in the stipulation for more than 10 days, then she would transfer her interest in the property to the defendant, who would become the sole owner of the property.

Several months later, the defendant moved, inter alia, to compel the plaintiff to [*2]transfer her interest in the marital residence to the defendant on the ground that the plaintiff had not fulfilled her obligations under the parties' agreements. In an order dated September 12, 2016, the Supreme Court denied the motion, finding, among other things, that the defendant had failed to fulfill his obligation under the agreements to transfer his interest in the marital residence to the plaintiff, and, without that transfer, the plaintiff was in no position to refinance the mortgage. The defendant subsequently sent a deed, transfer documents, and contract of sale to the plaintiff's attorney to be held in escrow pending the reimbursement of mortgage payments to the defendant, as agreed to in the 2016 stipulation.

In May 2017, the defendant moved, inter alia, to compel the plaintiff to transfer her interest in the marital residence to the defendant pursuant to the 2016 stipulation. In support of the motion, the defendant submitted evidence that the plaintiff had failed to pay him as required under the 2016 stipulation; he sent the plaintiff notice of her default, which notice was received on April 19, 2017; and the plaintiff had not cured her default. The plaintiff opposed the motion, arguing that the defendant had not complied with his obligations under the parties' agreements inasmuch as the deed he executed transferring the property to the plaintiff was not notarized and, therefore, could not be recorded, thus preventing the plaintiff from fulfilling her obligation under the 2011 settlement agreement to refinance the property and remove the defendant's name from the mortgage. In an order dated December 13, 2017, the Supreme Court denied the defendant's motion. As relevant to this appeal, the court found that the defendant had failed to transfer his interest in the marital residence to the plaintiff inasmuch as the deed presented by the defendant was undated and not notarized. The court also found that the plaintiff had failed to reimburse the defendant for the mortgage payments he had made prior to the 2016 stipulation, but the court would not penalize the plaintiff when the defendant had failed to fulfill his obligations under the same agreement. The defendant appeals from so much of the December 13, 2017, order as denied that branch of his motion which was to compel the plaintiff to transfer her interest in the martial residence to him.

The 2011 separation agreement, which survived the judgment of divorce, and the 2016 stipulation, are contracts subject to principles of contract construction and interpretation, the terms of which are binding on the parties (see Matter of Meccico v Meccico, 76 NY2d 822, 823-824; Rainbow v Swisher, 72 NY2d 106, 109; Scheriff v Scheriff, 152 AD3d 724, 725). As with any contract, since the terms of the 2016 stipulation are clear and unambiguous, the court should give effect to the parties' intent based upon the plain meaning of the words used by the parties (see Matter of Meccico v Meccico, 76 NY2d at 824; McSherry v McSherry, 163 AD3d 650, 651; Margolis v Cohen, 153 AD3d 1390, 1392).

The 2016 stipulation provides that the plaintiff shall transfer her interest in the marital residence to the defendant if she defaults on any provision of that agreement and does not cure the default within 10 days of receiving notice of her default. The defendant submitted evidence that the plaintiff failed to reimburse him for the mortgage payments he made prior to the 2016 stipulation as required by the stipulation; the defendant gave notice of the default to the plaintiff; more than 10 days had passed since the plaintiff's receipt of notice; and the plaintiff had not cured the default. The plaintiff does not dispute that she defaulted on her agreement to reimburse the defendant. Thus, the defendant established that under the plain terms of the 2016 stipulation, the plaintiff was obligated to deed the marital residence to the defendant.

Contrary to the plaintiff's contention, neither of the parties' agreements made her performance contingent upon the defendant's performance under the agreements. To the extent that the plaintiff argues that she could not perform under the agreements until the defendant transferred his interest in the marital residence to her, the defendant's failure to timely transfer title to the plaintiff was a foreseeable event and a provision could have been made for its occurrence (see Freedman v Hason, 155 AD3d 831, 833; Matter of Rebell v Trask, 220 AD2d 594, 598), but was not. Moreover, the defendant's purported deficiencies in performance under the agreements did not prevent the plaintiff from performing her obligation to reimburse him for the mortgage payments he made prior to the 2016 stipulation.

Accordingly, the Supreme Court should have granted that branch of the defendant's [*3]motion which was to compel the plaintiff to transfer her interest in the marital residence to him."

Friday, July 26, 2019

ON EMPLOYMENT DISCRIMINATION



Concha v. Purchase College State University of New York et al, No. 7:2017cv08501 - Document 55 (S.D.N.Y. 2019):

A.    Discrimination under Title VII, § 1983 and NYSHRL

Title VII makes it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise discriminate with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The NYSHRL covers analogous discriminatory acts by employers, see N.Y. Exec. Law § 296(1)(a), and “[e]mployment discrimination claims brought under the NYSHRL are analyzed identically to claims under . . .Title VII.” Cooper v. N.Y. State Dep’t of Labor, 819 F.3d 678, 680 n.3 (2d Cir. 2016). Additionally, “[i]n order to establish individual liability under § 1983, a plaintiff must show (a) that the defendant is a ‘person’ acting ‘under the color of state law,’ and (b) that the defendant caused the plaintiff to be deprived of a federal right.” Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004) (citation omitted). Plaintiff’s § 1983 discrimination claim “parallels his Title VII claim” where, as here, the color of law requirement is met.16 Vega v. Hempstead Union Free School District,





15 Moreover, Defendants’ arguments seeking dismissal of these claims were meritorious and grounded in well settled case law in this Circuit. See, e.g., Def. Br. at 21 (correctly noting that individual defendants cannot be sued under Title VII) (citing Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 608 n.8 (2d Cir. 2006)).

16 There is no dispute that the individual defendants were acting under color of state law. See Vega, 801 F.3d at 88 (“A state employee acting in his official capacity is acting ‘under color of state law.’”); Hayut v. State Univ. of N.Y., 352 F.3d 733, 744 (2d Cir. 2003) (“As a general rule, state employment is ... sufficient to render the defendant a state actor.”) (internal quotation marks and citation omitted).


801 F.3d 72, 88 (2d Cir. 2015). Thus, the three-part burden-shifting test laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), applies to Plaintiff’s discrimination claim under all three statutes.
Plaintiff bears the initial burden of establishing a prima facie case of discrimination. To do this, Plaintiff must show: “(1) that he belonged to a protected class; (2) that he was qualified for the position he held; (3) that he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008). “Once a plaintiff has established a prima facie case . . . [the] burden then shifts to the employer to ‘articulate some legitimate, nondiscriminatory reason’ for the disparate treatment.” Vega, 801 F.3d at 83 (quoting McDonnell Douglas, 411 U.S. at 802). “If the employer articulates such a reason for its actions, the burden shifts back to the plaintiff to prove that the employer’s reason ‘was in fact pretext’ for discrimination.” Id.
i.    Prima Facie Case

Defendants do not contest that Plaintiff has met the first three elements of a prima facie case: (i) he belonged to a protected class; (ii) he was qualified for the position he held within the Grounds Department; and (iii) he suffered an adverse employment action when he was terminated. Defendants, however, argue that Plaintiff cannot show any facts giving rise to an inference of discrimination. (Def. Br. at 26).
To satisfy the fourth element of a prima facie case, Plaintiff must present evidence that gives rise to an inference of discrimination. “A plaintiff can support such an inference by (a) demonstrating that similarly situated employees of a different race or national origin were treated more favorably, (b) showing that there were remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus, or (c) proving that there were other circumstances giving rise to an inference of discrimination on the basis of [the] plaintiff’s race or national origin.” Nguyen v. Dep’t of Corr. & Cmty. Servs., 169 F. Supp. 3d 375, 388 (S.D.N.Y. 2016) (internal quotation marks and citation omitted). “Conclusory and speculative allegations will not suffice to demonstrate discriminatory intent. Rather, a plaintiff must point to facts that suggest that the adverse employment action was motivated, at least in part, by discriminatory animus.” Id. (internal quotation marks and citation omitted). Although, “Plaintiff’s burden in establishing a prima facie case is de minimis . . . a party’s bald assertions, without more, are insufficient to overcome a motion for summary judgment.” Hill v. Rayboy-Brauestein, 467 F. Supp. 2d 336, 350 (S.D.N.Y. 2006) (internal quotation marks and citation omitted).
Plaintiff alleges race and national origin discrimination based on disparate treatment between Hispanic and non-Hispanic Grounds Department employees. (Docket No. 1 at 10). To establish this claim, Plaintiff relies on: (i) his own testimony regarding his experience as a Hispanic employee; (ii) the investigation of the anonymous complaint against Halliday; and (iii) the claim that Esposito was subject to disciplinary proceedings concerning the use of a racial slur. (Pl. Br. at 11–12). At the outset, the Court notes that Esposito’s alleged racial slur is not probative of racial animus because there is nothing in the record that suggests that Esposito, who was a Senior Grounds Worker, was a decisionmaker involved in Plaintiff’s termination. See Quinby v. WestLB AG, No. 04–CV–7406, 2007 WL 3047111, at *1 (S.D.N.Y. Oct.18, 2007) (“Generally speaking, comments by nondecisionmakers cannot be used to establish discriminatory animus.”). Moreover, Plaintiff fails to both identify the nature of the alleged slur and demonstrate whether it reflected a discriminatory animus. See id. (“comments by decisionmakers that do not bear on the decisionmaking process itself, are not pro[b]ative of discriminatory animus.”).

However, Plaintiff’s remaining contentions satisfy the de minimis burden of proof needed to demonstrate a prima facie discrimination claim. “A showing of disparate treatment—that is, a showing that an employer treated plaintiff ‘less favorably than a similarly situated employee outside his protected group’—is a recognized method of raising an inference of discrimination for the purposes of making out a prima facie case.” Mandell v. Cty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). Here, Plaintiff provides examples of favoritism and disparate treatment between the Hispanic and non-Hispanic employees within the Grounds Department. (Pl. 56.1 at ¶¶ 5–12); see Village of Freeport v. Barrella, 814 F.3d 594, 613 (2d Cir. 2016) (holding that Title VII does not “forbid[ ] favoritism, nepotism, or cronyism, so long as it is not premised on animus against a protected class.”) (emphasis added).  Plaintiff testified that Hispanic employees received harder work assignments and inferior tools than the non-Hispanic employees. (Pl. 56.1 at ¶¶ 5– 12). In addition, Plaintiff claimed that Halliday did not reprimand the non-Hispanic employees for arriving late and fostered a work environment where Hispanic employees were not afforded the same opportunities as the non-Hispanic employees. (Id.).
SUNY Purchase’s investigation of the anonymous complaint corroborates Plaintiff’s allegations. Aure’s report noted that the Hispanic employees in the Grounds Department felt segregated from the non-Hispanic employees. (Docket No. 41-22). Furthermore, the report concluded that Halliday favored certain employees over others. (Id.); Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999) (“A plaintiff may support an inference of race discrimination by demonstrating that similarly situated employees of a different race were treated more favorably.”). Thus, viewing the record in a light favorable to Plaintiff, the Court concludes that Plaintiff has met his burden of “establishing a prima facie [case of discrimination by] showing that he was terminated under circumstances that create an inference of discrimination.” Baguer, 2010 WL 2813632 at *7.

ii.    Legitimate, Non-Discriminatory Reason for Plaintiff’s Termination


The Court next considers whether Defendants have proffered a legitimate, nondiscriminatory reason for Plaintiff’s termination. Under the second step of the McDonnell Douglas analysis, it is the “employer’s burden [] to ‘clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.’” Nguyen, 169 F. Supp. 3d at 392 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)). “This ‘burden of showing a legitimate[,] non-discriminatory reason for its actions is not a particularly steep hurdle.’” Id. (quoting Brierly v. Deer Park Union Free Sch. Dist., 359 F. Supp. 2d 275, 291 (E.D.N.Y. 2005)) (alteration in original).
Defendants have met their burden of articulating a legitimate, non-discriminatory basis for terminating Plaintiff. Defendants put forward sufficient evidence showing that Plaintiff’s termination was motivated by complaints about his unsatisfactory work performance. See O’Kane v. Lew, No. 10-CV-5325(PKC), 2013 WL 6096775, at *10 (E.D.N.Y. Nov. 20, 2013) (“Poor work performance is well-established as a legitimate, nondiscriminatory reason for firing an employee.”). At least three of Plaintiff’s colleagues complained to Halliday regarding Plaintiff’s work performance prior to Plaintiff’s termination. Santiago Linares told Halliday that: (i) Plaintiff was a bad worker; (ii) he complained about his co-workers; and (iii) he was unwilling to perform the typical tasks that Grounds Department employees performed. (Linares Dec. at ¶¶ 3–5). Linares further stated that Plaintiff did not want to report back to the Grounds Department after completing tasks. (Id.). Michael Koran testified that Plaintiff shouted expletives and threw a leaf blower at him while working. (Def. 56.1 at ¶ 22). Koran disclosed this incident to Halliday and Espinales well before Halliday recommended terminating Plaintiff. Esposito also informed Halliday that Plaintiff’s performance was deficient and that he did not want to work. (Halliday Dep. at 86–87). Complaints of this nature provide a legitimate, non- discriminatory basis for terminating Plaintiff’s probationary employment. See Johnson v. Schmid, 750 F. App’x 12, 17 (2d Cir. 2018) (holding that poor job performance is a legitimate, non-discriminatory reason for firing an employee); Yu v. N.Y.C. Hous. Dev. Corp., 494 Fed. Appx. 122, 126 (2d Cir. 2012) (summary order) (holding that defendants proffered legitimate, non-discriminatory reasons for plaintiff’s termination, including that “he spoke to his coworkers and his supervisor in an unprofessional manner;” “he did not work well with others, particularly on team projects;” and “he failed to follow instructions and often deviated from assigned tasks and questioned the work of others, while failing to complete his own.”); Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir. 1985) (citing “profound inability to get along with her co-workers” as a legitimate non-discriminatory reason for discharge); Bogdan v. N.Y. City Transit Auth., No. 02 Civ. 09587(GEL), 2005 WL 1161812, at *8, (S.D.N.Y. May 17, 2005) (multiple complaints of poor job performance were legitimate, non-retaliatory reasons for employee’s termination). Accordingly, Defendants have satisfied their burden of establishing a legitimate, non- discriminatory reason for Plaintiff’s termination.

iii.    Evidence of Pretext


Since Defendants have set forth legitimate, non-discriminatory reasons for their actions, the burden shifts back to Plaintiff to establish that Defendants’ grounds for terminating Plaintiff are “mere pretext for actual discrimination.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). This burden is higher than the burden to establish a prima facie case. Nguyen, 169 F. Supp. 3d at 393 (quoting Geoghan v. Long Is. R.R., No. 06–CV–1435, 2009 WL 982451, at *21 (E.D.N.Y. Apr. 9, 2009)).“‘[P]laintiff must produce not simply ‘some’ evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action.’” Id. at 394 (quoting Weinstock, 224 F.3d at 42).
Plaintiff’s subjective disagreement with his co-workers’ characterization of his job performance does not create a material issue of fact as to whether Defendants’ asserted reasons for Plaintiff’s termination were pretextual. See Baguer v. Spanish Broad. Sys., Inc., No. 04 Civ. 8393 (RJS), 2010 WL 2813632, at *8 (S.D.N.Y. July 12, 2010), aff’d, 423 F. App’x 102 (2d Cir. 2011) (holding that plaintiff’s argument that he, in fact, “performed his job well does not create a material question of fact as to whether [Defendant’s] asserted reasons for his termination were pretextual.”); Soderberg v. Gunther Int’l, Inc., 124 F. App’x 30, 32 (2d Cir. 2005) (“‘it is not the function of a fact-finder to second-guess business decisions’ regarding what constitutes satisfactory work performance.”) (quoting Dister v. Cont’l Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988)). Where, as here, “plaintiff’s own testimony is the only basis for contesting otherwise strong evidence of valid, non-discriminatory reasons for termination, the evidence of ‘pretext’ cannot alone support a reasonable inference of prohibited discrimination.” Rodriguez v. Am. Friends of Hebrew Univ., Inc., No. 96 Civ. 0240(GEL), 2000 WL 1877061, at *5 (S.D.N.Y. Dec. 26, 2000).
In addition, the record establishes that Halliday recommended Plaintiff’s termination based on Plaintiff’s poor work performance and issues with his co-workers. Plaintiff received an “Unsatisfactory” score in almost every category in his Evaluation Report, including “Attitude Toward Job,” “Quality of Work,” and “Relations with Other[s].” (Docket No. 41-15). Halliday’s draft of the Evaluation Report specifically referenced reports of Plaintiff’s disruptive and abusive behavior towards his co-workers. (Docket No. 41-14). This language was removed from the

final Evaluation Report at the request of the Human Resources Department because the level of detail provided was not required to terminate a probationary employee under state law. (Def. 56.1 at ¶ 33); (Pl. 56.1 at ¶ 48). While Plaintiff refutes the accuracy of the Evaluation Report, his self-serving statements are not “the concrete evidence necessary to give rise to a reasonable inference that poor performance evaluations were suspect.” Mattera v. JPMorgan Chase Corp., 740 F. Supp. 2d 561, 577 (S.D.N.Y. 2010). Moreover, Plaintiff’s denials “[do] not alter this analysis because ‘[i]n a discrimination case . . . we are decidedly not interested in the truth of the allegations against plaintiff. We are interested in what ‘motivated the employer;’ the factual validity of the underlying imputation against the employee is not at issue.’” Dasrath v. Stony Brook Univ. Med. Ctr., No. 12-CV-1484 SJF SIL, 2015 WL 1223797, at *13 (E.D.N.Y. Mar. 17, 2015) (quoting McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006)).
Plaintiff further identifies alleged inconsistencies in Defendants’ proffered reasons for his termination. (Pl. Br. at 13–16). Plaintiff argues that Defendants’ reliance on the leaf blower incident is problematic because there is a discrepancy between Koran’s testimony and his written report.  Koran testified that Plaintiff threw the leaf blower at him and told him to go fuck himself, (Def. 56.1 at ¶ 22), whereas his written statement states that Plaintiff “practically threw the blower on the ground and told me to go fuck myself,” (id. at ¶ 26). The Court disagrees that Koran’s characterizations of the incident are so inconsistent that they are “unworthy of credence.” Droutman v. New York Blood Ctr., Inc., No. 03-CV-5384(DRH/ARL), 2005 WL 1796120, at *8 (E.D.N.Y. July 27, 2005) (internal quotation marks and citation omitted). Even if Plaintiff did not throw the leaf blower or commit the other acts complained of by his co-workers, the record is devoid of any evidence that these grounds were pretextual. “An employer’s good faith belief that an employee engaged in misconduct is a legitimate reason for terminating [him], 

and the fact that the employer is actually wrong is insufficient to show that the alleged misconduct is a pretext for discrimination.” Id. at *9 (emphasis in original) (citing Agugliaro v. Brooks Bros., Inc., 927 F. Supp. 741, 747 & n. 5 (S.D.N.Y.1996)). Plaintiff also claims that Halliday’s recollection of Plaintiff’s performance record is too weak to be relied upon because he is unable to pinpoint when he received reports of Plaintiff’s poor work performance and whether he documented the complaints.  This argument is belied by the sworn testimony of the employees who confirmed that they relayed these reports to Halliday. (See Linares Dec. at ¶¶ 3– 5); (Koran Dep.17 at 19–21). Thus, Plaintiff has failed to show that Defendants’ proffered basis for Plaintiff’s termination was pretextual.
Accordingly, Plaintiff’s discrimination claims pursuant to Title VII, NYSHRL and § 1983 are dismissed.

B.    Retaliation Under § 1983


Plaintiff alleges that Defendants retaliated against him for cooperating with Aure’s investigation into the anonymous complaint against the Grounds Department’s supervisors. (Docket No. 1 at 13). Defendants seek dismissal of this claim on the grounds that the Equal Protection Clause does not support a claim for retaliation under § 1983. (Def. Br. at 26). Defendants ignore the Second Circuit’s authority on this issue. In Vega v. Hempstead Union Free School District, the Second Circuit settled the ambiguity in its case law with respect to the viability of § 1983 retaliation claims and held that “retaliation claims alleging an adverse action because of a complaint of discrimination are actionable under § 1983.” 801 F.3d 72, 82 (2d Cir. 2015). The Second Circuit recognized that “retaliation is a form of discrimination,” and when an employer “retaliates against an employee because he complained of discrimination, the





17 Refers to Michael Koran’s deposition transcript. (Docket No. 41-12).


retaliation constitutes intentional discrimination against him for purposes of the Equal Protection Clause.” Id.
Evaluating Plaintiff’s retaliation claim under the controlling case law, the Court finds that Plaintiff’s § 1983 retaliation claim fails. “[O]nce action under color of state law is established, ‘the elements of a retaliation claim based on an equal protection violation under § 1983 mirror [the elements of a retaliation claim] under Title VII.’” Anderson v. City of New York, Health & Hosp. Corp., No. 16-CV-01051(GBD)(KHP), 2017 WL 9538862, at *14 (S.D.N.Y. Jan. 19, 2017), report and recommendation adopted, 2017 WL 3251603 (S.D.N.Y. July 31, 2017) (quoting Vega, 801 F.3d at 91). Thus, retaliation claims are subject to the McDonnell Douglas burden shifting framework. See Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014). To establish a prima facie case of retaliation, Plaintiff must prove that “(1) he was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014) (citation and internal quotation marks omitted).
Here, the record fails to establish a prima facie case of retaliation. Plaintiff argues that he participated in a protected activity when Aure interviewed him as a part of his investigation into the anonymous complaint. (Docket No. 1 at ¶ 72). However, the record does not establish that any of the Defendants were aware of Plaintiff’s meeting with Aure. (See Def. Br. at 37–38). Aure testified that he did not discuss the investigation with anyone while it was pending, nor did he disclose the substance of Plaintiff’s interview until well after Plaintiff’s termination. (Def. 56.1 at ¶¶ 51, 61). Plaintiff’s conclusory allegation that Defendants were aware of his participation in the investigation is not supported by any evidence in the record. Thus, because Plaintiff failed to demonstrate that Defendants, except Aure, were made aware of the alleged protected activity, Plaintiff has failed to establish a prima facie case of retaliation against Defendants Halliday, Schwarz, Farrell, Espinales and Tighe. See Mendoza v. SSC & B Lintas, New York, 913 F. Supp. 295, 301 (S.D.N.Y.1996) (dismissing retaliation claim where supervisor was unaware of plaintiff’s complaint at the time the adverse employment action was taken). Moreover, because Defendants Halliday, Schwarz, Farrell, Espinales and Tighe were unaware of Plaintiff’s cooperation with the investigation, Plaintiff has not established a causal connection between the protected activity and his termination. See Uddin v. City of New York, 427 F. Supp. 2d 414, 433 (S.D.N.Y. 2006) (finding no causal connection where the defendant was not aware of the protected activity prior to the adverse action).
Although Defendant Aure knew about Plaintiff’s participation in a protected activity, there is no evidence that Aure had any involvement in Plaintiff’s termination. “[L]iability for an Equal Protection Clause violation under § 1983 requires personal involvement by a defendant, who must act with discriminatory purpose.” Reynolds v. Barrett, 685 F.3d 193, 204 (2d Cir. 2012). To hold an individual liable for retaliatory conduct under § 1983, there must be “‘some affirmative link to causally connect the actor with the discrimination action,’ such that the claim is ‘predicated on the actor’s personal involvement.’” Hagan v. City of New York, 39 F. Supp. 3d 481, 514 (S.D.N.Y. 2014) (quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000)). “Personal involvement includes not only direct participation but also ‘an official’s (1) failure to take corrective action after learning of a subordinate’s unlawful conduct, (2) creation of a policy or custom fostering the unlawful conduct, (3) gross negligence in supervising subordinates who commit unlawful acts, or (4) deliberate indifference to the rights of others by failing to act on information regarding the unlawful conduct of subordinates.’” Id. (quoting Hayut, 352 F.3d at 744). Here, the Complaint does not allege that Aure was involved in terminating Plaintiff’s probationary employment. Nor does the record suggest that Aure participated in Plaintiff’s termination proceedings, directly or indirectly. At the time, Aure was the Chief Diversity Officer, Title IX Coordinator, and Affirmative Action Officer at SUNY Purchase. (Def. 56.1 at ¶ 8). In that capacity, he was not responsible for recommending or reviewing Plaintiff’s employment status or termination. (See Aure Dep.18 at 7); (Aure Dec.19 at ¶ 6). Thus, Plaintiff’s retaliation claim against Aure must be dismissed for lack of personal involvement.

Accordingly, Plaintiff’s § 1983 retaliation claim against the individual defendants is dismissed.