Thursday, July 2, 2020

LITIGATION - MOTION FOR LEAVE TO RENEW



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

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

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

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

Wednesday, July 1, 2020

FAMILY COURT - SUMMARY JUDGMENT FOR DERIVATIVE NEGLECT


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

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

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

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

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

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

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


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

Tuesday, June 30, 2020

CHILD SUPPORT AND INCARCERATION


There are limits to the court's power.

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

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

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

Monday, June 29, 2020

MORTGAGE FORECLOSURE: RPAPL1304 AND SUMMARY JUDGMENT


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

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

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

Friday, June 26, 2020

BACK TO NORMAL WITH FORECLOSURES?



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

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

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

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

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

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

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

Thursday, June 25, 2020

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


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

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

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

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

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


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

Wednesday, June 24, 2020

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



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

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

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

Tuesday, June 23, 2020

NEW RULES - ATTORNEY ADVERTISING



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

The press release can be found at this link:

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

Monday, June 22, 2020

THE RING WAS A GIFT IN CONTEMPLATION OF MARRIAGE



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

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

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

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

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

Friday, June 19, 2020

BACK TO NORMAL WITH EVICTIONS?



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

Highlights of the memorandum include:

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

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

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

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

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

Thursday, June 18, 2020

WHEN A RELATIONSHIP ENDS AND A FAMILY OFFENSE BEGINS



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

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

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

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


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

Wednesday, June 17, 2020

FIGHTING OVER DECISION MAKING



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

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

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

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

Tuesday, June 16, 2020

THE RIGHT OF SEPULCHER



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

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

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

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

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

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

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

.....

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

Monday, June 15, 2020

ANOTHER COVID AND CHILD CUSTODY MATTER



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

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

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

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

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

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

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

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

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

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

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

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

Friday, June 12, 2020

DOES A DISCONTINUANCE DE-ACCELERATE LOAN DEBT


An excellent discussion of the who, what, whys, etc. of acceleration and de-acceleration.

CHRISTIANA TRUST v. BARUA, 2020 NY Slip Op 3095 - NY: Appellate Div., 2nd Dept. 2020:

"II. The Effect of De-acceleration Upon the Statute of Limitations


The parties do not dispute that the controlling statute of limitations for breach of contract actions is six years (see CPLR 213[4]; Milone v US Bank N.A., 164 AD3d 145, 151; Wells Fargo Bank, N.A. v Eitani, 148 AD3d 193, 197; Kashipour v Wilmington Sav. Fund Socy., FSB, 144 AD3d 985, 986), and that the first action had the stated effect of accelerating the balance of the debt owed on the defendant's note, which triggered the limitations period (see Kashipour v Wilmington Sav. Fund Socy., FSB, 144 AD3d at 986; EMC Mtge. Corp. v Patella, 279 AD2d 604, 605). The plaintiff and the defendant differ about whether the 2009 debt acceleration was thereafter extinguished by the affirmative discontinuance of the first action on October 15, 2013.

Two years ago, this Court addressed similar issues in Milone v US Bank N.A. (164 AD3d 145). In Milone, a lender commenced an action to foreclose a mortgage upon residential property on January 13, 2009, as a result of the borrower's default in making monthly installment payments on the note. The acceleration of the full mortgage debt in that action had the effect of commencing the six-year statute of limitations set forth in CPLR 213(4). In an order of the Supreme Court dated February 29, 2012, the action was dismissed after more than three years had run against the statute of limitations. On October 21, 2014, approximately three months before the statute of limitations was to expire, the lender's servicer transmitted a letter to the borrower advising that the note, which had previously been accelerated, was de-accelerated, that any prior demand for full payment on the note was withdrawn, and that the debt was reinstituted as an installment loan (see Milone v US Bank N.A., 164 AD3d at 149).

On March 10, 2015, after the six-year statute of limitations had expired as measured from the initial debt acceleration, the borrower in Milone commenced an action pursuant to RPAPL 1501 to cancel and discharge the mortgage and note, arguing that no new foreclosure action had been commenced on the note within six years from its acceleration. The lender moved to dismiss the complaint in the RPAPL 1501 action on the ground that since a de-acceleration of the loan balance had occurred within six years of the acceleration, there was no violation of the statute of limitations and a new six-year limitations period would only begin to run if the full balance of the same note were to be accelerated at some time in the future (see Milone v US Bank N.A., 164 AD3d at 149-150). The borrower cross-moved for summary judgment on the complaint. The Supreme Court granted the lender's motion to dismiss the complaint with prejudice and denied the borrower's cross motion for summary judgment on the complaint. On appeal, this Court modified the order, concluding that the Supreme Court should have denied the lender's motion to dismiss the complaint because there was a question of fact as to the lender's standing to de-accelerate the loan debt.

This Court used the occasion in Milone to sort out the law and procedures governing the acceleration and de-acceleration of notes. We recognized well-established precedent that lenders may revoke the acceleration of full mortgage loan balances, so long as the revocation is accomplished by an affirmative act occurring within six years of the earlier acceleration (see id. at 154, citing Deutsche Bank Natl. Trust Co. v Adrian, 157 AD3d 934, 935, MSMJ Realty, LLC v DLJ Mtge. Capital, Inc., 157 AD3d 885, 887, NMNT Realty Corp. v Knoxville 2012 Trust, 151 AD3d 1068, 1069-1070, U.S. Bank N.A. v Barnett, 151 AD3d 791, 793, Kashipour v Wilmington Sav. Fund Socy., FSB, 144 AD3d at 987, UMLIC VP, LLC v Mellace, 19 AD3d 684, Clayton Natl. v Guldi, 307 AD2d 982, and EMC Mtge. Corp. v Patella, 279 AD2d at 606; see also HSBC Bank USA, N.A. v Gold, 171 AD3d 1029, 1030; Freedom Mtge. Corp. v Engel, 163 AD3d 631, 632, lv granted in part 33 NY3d 1039; Deutsche Bank Natl. Trust Co. v Adrian, 157 AD3d at 935). We then held for the first time that just as acceleration notices must be clear and unambiguous (see Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 867; Wells Fargo Bank, N.A. v Burke, 94 AD3d 980, 983; Sarva v Chakravorty, 34 AD3d 438, 439; see also J & JT Holding Corp. v Deutsche Bank Natl. Trust Co., 173 AD3d 704), the de-acceleration of note balances must also be clear and unambiguous to convey the fact that the previous demand for full payment of the note has been affirmatively revoked (see Milone v US Bank N.A., 164 AD3d at 153). We further held in Milone, for the first time, that just as standing is a prerequisite to a valid acceleration, a party must also have standing to effect a de-acceleration of the debt (see id. at 155). Moreover, recognizing that the foreclosure of mortgages encumbering residential properties involves elements of equity, we held in Milone that the declaration of a de-acceleration cannot be utilized as a mere pretext to avoid the onerous effect of the statute of limitations.
"[A] de-acceleration letter is not pretextual if . . . it contains an express demand for monthly payments on the note, or, in the absence of such express demand, it is accompanied by copies of monthly invoices transmitted to the homeowner for installment payments, or is supported by other forms of evidence demonstrating that the lender was truly seeking to de-accelerate and not attempting to achieve another purpose under the guise of de-acceleration" (id. at 154, citing Deutsche Bank Natl. Trust Co. Ams. v Bernal, 56 Misc 3d 915, 923-924 [Sup Ct, Westchester County, Scheinkman, J.]).
The Milone case involved a de-acceleration letter from a servicer that clearly and unambiguously demanded a resumption of monthly installment payments on the note. Here, by contrast, we are faced not with a letter of de-acceleration, but a discontinuance of the first action, which had sought full payment of the accelerated debt. Beyond Milone, this Court has repeatedly held that a lender's mere act of discontinuing an action, without more, does not constitute, in and of itself, an affirmative act revoking an earlier acceleration of the debt (see Bank of N.Y. Mellon v Yacoob, ___ AD3d ___, 2020 NY Slip Op 02451 [2d Dept]; HSBC Bank, N.A. v Vaswani, 174 AD3d 514, 515; Federal Natl. Mtge. Assn. v Schmitt, 172 AD3d 1324, 1326; Aquino v Ventures Trust 2013-I-H-R by MCM Capital Partners, 172 AD3d 663; Bank of N.Y. Mellon v Craig, 169 AD3d 627, 629; U.S. Bank Trust, N.A. v Aorta, 167 AD3d 807, 809; Freedom Mtge. Corp. v Engel, 163 AD3d at 633; Beneficial Homeowner Serv. Corp. v Tovar, 150 AD3d 657, 658)[1]. Various reported trial level decisions and orders holding to the contrary should no longer be followed.

The reason for requiring that a valid de-acceleration requires more than a bare discontinuance of a foreclosure action is that the full balance of a mortgage debt cannot be sought without an acceleration, whereas the voluntary discontinuance of a foreclosure action may be occasioned for any number of different reasons, including those that have nothing to do with an intent to revoke the acceleration. A bare discontinuance does not disclose its underlying reasons nor say anything about the discontinuing party's intent to de-accelerate the full debt.

There are sound legal and public policy reasons in requiring that a lender or servicer, upon de-accelerating a loan balance, demonstrate its good-faith and bona fide intentions in rescinding its demand for the full loan balance and in seeking a resumption of monthly installment payments. Once a mortgage debt is accelerated, the borrower's right and obligation to make monthly installments ceases and all sums and penalties become immediately due and payable (see Federal Natl. Mtge. Assn. v Mebane, 208 AD2d 892, 894). A borrower so circumstanced may typically, necessarily, and detrimentally rely upon the acceleration for not tendering further monthly payments on the note, knowing that monthly installments will no longer be accepted (see Deutsche Bank Natl. Trust Co. Ams. v Bernal, 56 Misc 3d at 923). While the borrower might have defaulted in the first instance as a result of a financial inability to pay monthly installments, it is entirely possible in some cases that a borrower may acquire, after the loan balance is accelerated, the ability to pay arrears and maintain current payments, though lacking the ability to pay off the entire accelerated debt (see id.). A de-acceleration of the full debt revives the borrower's right to make the monthly payments that became due between the time the loan was accelerated and the time the acceleration was revoked, together with the right to make future monthly installment payments. Since the borrower may continue to assume that its lender or servicer will not accept post-acceleration monthly payments, the lender, in order to effectively rescind the acceleration, should be required to notify the borrower that the right to make monthly payments is restored and that the lender will accept the tender of such payments (see id.). Indeed, for residential mortgage loans subject to the federal Real Estate Settlement Procedures Act (hereinafter RESPA), the rules promulgated by the Consumer Financial Protection Board pursuant to RESPA require the issuance of statements for each periodic billing period (see 12 USC § 2617; 12 CFR 1026.41[a][2]; [b], [d]).

Here, the plaintiff did not submit to the Supreme Court, and hence could not include in the appellate record (see CPLR 5526; Matter of Dondi, 63 NY2d 331, 339; Yauchler v Serth, 114 AD3d 1069; Singer v Board of Educ. of City of N.Y., 97 AD2d 507; Renelique v American Tr. Ins. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50482[U], * 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists]), a copy of the earlier motion papers that sought to discontinue the first action. The plaintiff also did not provide to the court, and could not include in the appellate record, the order dated October 15, 2013, that granted the motion to discontinue the first action, as it instead relied at all times upon a mere eCourts printout of the motion history of the first action. As a result, the plaintiff failed to demonstrate any language in the motion to discontinue, or in the order rendered thereon, that clearly and unambiguously repudiated the statement in Chase's verified complaint that Chase had elected to accelerate the full amount of the outstanding loan debt (see Bank of New York Mellon v Yacoob, ___ AD3d ___, 2020 NY Slip Op 02451; HSBC Bank, N.A. v Vaswani, 174 AD3d at 515; Federal Natl. Mtge. Assn. v Schmitt, 172 AD3d at 1326; Aquino v Ventures Trust 2013-I-H-R by MCM Capital Partners, 172 AD3d at 663; Bank of N.Y. Mellon v Craig, 169 AD3d at 629; U.S. Bank Trust, N.A. v Aorta, 167 AD3d at 809; Freedom Mtge. Corp. v Engel, 163 AD3d at 633; Deutsche Bank Natl. Trust Co. v Adrian, 157 AD3d at 935-936; cf. Beneficial Homeowner Serv. Corp. v Tovar, 150 AD3d at 658). The plaintiff also failed to establish that it ever demanded a resumption of monthly mortgage installment payments, invoiced the defendant for such payments, or offered any other evidence demonstrating that it was truly seeking to de-accelerate the debt in addition to its discontinuance of the action (see Milone v US Bank N.A., 164 AD3d at 155). Other evidence of a valid de-acceleration may include, but is not limited to, the voluntary vacatur of a lender's filed lis pendens (see CPLR 6514[d]), and a forbearance agreement evincing a clear intent to revoke a prior acceleration and reinstate the homeowner's right to repay the underlying debt in monthly installments (see U.S. Bank Trust, N.A. v Rudick, 172 AD3d 1430, 1431), but the record is devoid of evidence of those activities as well.

Our developed law that the discontinuance of residential mortgage foreclosure actions is not tantamount to an automatic de-acceleration of the full loan debt is further buttressed by the fact that these actions are not only creatures of contract law. Mortgage foreclosure actions are not purely contractual, but are a unique hybrid of contract (the note) and equity (foreclosure on the premises and eviction of the homeowner). "A foreclosure action is equitable in nature and triggers the equitable powers of the court'" (Onewest Bank, FSB v Kaur, 172 AD3d 1392, 1393-1394, quoting Rajic v Faust, 165 AD3d 716, 717). We are therefore not persuaded by our dissenting colleague that courts cannot examine the subjective intent of the discontinuing party in these instances. If residential mortgage foreclosure actions are flavored with a twist of equity, as they are, then the decisional authority that has developed in Milone and its progeny, and in Bernal, has a valid equitable basis, without representing any judicial drift on the part of our Court.

Moreover, the acceleration of a debt in a residential mortgage foreclosure action survives a simple discontinuance of the action, because the right to exercise an acceleration independently arises from the provisions of the note between the parties, and not from the existence of the potential judicial remedies of the court. In other words, the mere discontinuance of an action is not tantamount to a withdrawal of the acceleration itself, but merely withdraws the prayer that the court assist the lender in collecting the accelerated amount. The right to collect the full debt, once accelerated, exists under paragraph 7(c) of the parties' note independent of the lawsuit unless, as we have previously held, a de-acceleration is clearly and unambiguously communicated to the borrower as such. To the extent our dissenting colleague suggests that the discontinuance of an action withdraws all requests for relief, including any demand for recovering the accelerated debt, citing Loeb v Willis (100 NY 231) and Mahon v Remington (256 App Div 889), those cases are inapplicable, as an acceleration springs from the parties' note, and not from the collateral right to commence an action upon it.

Indeed, as noted by the Court of Appeals, "[t]he fact of election [to accelerate a mortgage debt] should not be confused with the notice or manifestation of such election" (Albertina Realty Co. v Rosbro Realty Corp., 258 NY 472, 476). An acceleration may be communicated in different forms—by a letter to the borrower clearly and unambiguously advising that because of a default in payment the full loan balance was being called due (see Nationstar Mtge., LLC v Weisblum, 143 AD3d at 867; Wells Fargo Bank, N.A. v Burke, 94 AD3d at 982-983; Sarva v Chakravorty, 34 AD3d at 439), by a self-executing balloon payment due at the end of the payback period (see Trustco Bank N.Y. v 37 Clark St., 157 Misc 2d 843, 844 [Sup Ct, Saratoga County]), or, as relevant here, by commencing an action where the complaint seeks to recover the full amount of the loan balance (see Albertina Realty Co. v Rosbro Realty Corp., 258 NY at 476; Wells Fargo Bank, N.A. v Lefkowitz, 171 AD3d 843, 844; Clayton Natl. v Guldi, 307 AD2d 982; City Sts. Realty Corp. v Jan Jay Constr. Enters. Corp., 88 AD2d 558, 559). Those activities are unilaterally initiated by the lender or servicer as a matter of right or, as in the case of a final balloon payment, by prior contractual agreement of the parties. A bare discontinuance of litigation does not nullify the fact that a contractual right to accelerate has been unilaterally exercised pursuant to the terms of a note. An acceleration of loan debt by the transmittal of a letter or by the commencement of an action in a court of law has legal implications, such as the financial penalties authorized under the note, the potential negative effect upon the borrower's credit rating, and reliance by the borrower that monthly payments will no longer be expected or accepted and thereby prevent any pay-down of the balance owed. To occur, none of these or other consequences of an acceleration require any permission, ruling, stipulation, decision, or order of a court, as they are independent of the litigation.

Here, since Chase accelerated the loan balance by commencing the first action on November 6, 2009, and the second action was not commenced until November 10, 2015, the defendant met his initial burden of demonstrating, prima facie, that the second action is time-barred by operation of CPLR 213(4) and 3211(a)(5) by four days (see HSBC Bank USA, N.A. v Gold, 171 AD3d at 1030; Bank of N.Y. Mellon v Dieudonne, 171 AD3d 34, 36; U.S. Bank N.A. v Joseph, 159 AD3d 968, 969; U.S. Bank N.A. v Gordon, 158 AD3d 832, 834; Campone v Panos, 142 AD3d 1126, 1127; Stewart v GDC Tower at Greystone, 138 AD3d 729, 730). In opposition, where the burden of going forward shifted, the plaintiff failed to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether it actually commenced the second action within the applicable limitations period (see HSBC Bank USA, N.A. v Gold, 171 AD3d at 1030; U.S. Bank N.A. v Joseph, 159 AD3d at 969; U.S. Bank N.A. v Gordon, 158 AD3d at 834; Stewart v GDC Tower at Greystone, 138 AD3d at 730; Barry v Cadman Towers, Inc., 136 AD3d 951, 952), as there is no evidence in the record that Chase or the plaintiff ever communicated a de-acceleration of the demand for payment of the full debt. Therefore, the Supreme Court should have granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint in the second action insofar as asserted against him as time-barred.

III. The Interplay of CPLR 204(a) and RPAPL 1304


The plaintiff argues that the second action is timely pursuant to CPLR 204(a) because the 90-day period required for mailing a statutory notice of default under RPAPL 1304 operates as a toll of the statute of limitations for that same period of time. Although the plaintiff's argument is raised for the first time on appeal, we are able to reach it since it is an issue of law which appears on the face of the record and could not have been avoided had it been raised before the Supreme Court (see Countrywide Bank, FSB v Singh, 173 AD3d 673, 675).


The notice period of RPAPL 1304 does not operate to toll the statute of limitations. CPLR 204(a) authorizes the tolling of a statute of limitations where the commencement of an action is stayed by a court order or by a statutory prohibition (see Torsoe Bros. Constr. Corp. v McKenzie, 271 AD2d 682, 682-683). There is a difference between a "statutory prohibition," on the one hand, which tolls the statute of limitations, and a "condition precedent" to suit, on the other, which does not generate a toll (see Barchet v New York City Tr. Auth., 20 NY2d 1, 6; HSBC Bank USA v Kirschenbaum, 159 AD3d 506, 506-507). RPAPL 1304 is not a statutory prohibition within the scope of CPLR 204(a), but is instead a condition precedent to the commencement of mortgage foreclosure actions (see Citibank, N.A. v Conti-Scheurer, 172 AD3d 17; Marchai Props., L.P. v Fu, 171 AD3d 722, 724-725; Wells Fargo Bank, N.A. v Trupia, 150 AD3d 1049, 1050; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106). As such, RPAPL 1304 does not trigger a toll of the applicable statute of limitations under CPLR 204(a) (see HSBC Bank USA v Kirschenbaum, 159 AD3d at 507; cf. Singh v New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. & Queens Hosp. Ctr.], 107 AD3d 780, 782; Pilgrim v New York City Tr. Auth., 235 AD2d 527, 527-528; Costa v Deutsche Bank Natl. Trust Co. for GSR Mtge. Loan Trust 2006-OA1, 247 F Supp 3d 329, 344-348 [SD NY]). CPLR 201 cautions that "[n]o court shall extend the time limited by law for the commencement of an action." Here, were it relevant, the plaintiff does not even detail how or in what manner its compliance with RPAPL 1304 caused its commencement of the second action to occur four days beyond the expiration of the six-year statute of limitations (see HSBC Bank USA v Kirschenbaum, 159 AD3d at 506-507; cf. Capital One, N.A. v Saglimbeni, 170 AD3d 508, 509)."

Thursday, June 11, 2020

MORTGAGE FORECLOSURE - THE BUSINESS RECORDS RULE



Rules of evidence apply in motions.

Ventures Trust 2013-1-H-R by MCM Capital Partners, LLC v Zaks, 2020 NY Slip Op 03262, Decided on June 10, 2020, Appellate Division, Second Department;

"On August 2, 2007, the defendant Aryeh Zaks (hereinafter the defendant) executed a note in favor of Sterling Empire Funding Associates, Ltd. The note was secured by a mortgage on residential property located in Monsey. On September 8, 2008, the mortgage was assigned to Countrywide Bank, FSB (hereinafter Countrywide).

On February 11, 2009, Countrywide commenced this action to foreclose the mortgage against, among others, the defendant. The defendant interposed an answer asserting various affirmative defenses, including lack of standing. On November 25, 2014, during the pendency of the action, the mortgage was assigned to Ventures Trust 2013-I-H-R by MCM Capital Partners, LLC (hereinafter the plaintiff). In June 2016, Countrywide moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, for an order of reference, and pursuant to CPLR 1018 to substitute the plaintiff in its place (hereinafter the June 2016 motion). In an order dated October 7, 2016 (hereinafter the October 2016 order), the Supreme Court granted Countrywide's motion.

Thereafter, the defendant moved, in effect, for leave to reargue his opposition to the June 2016 motion. In an order dated June 16, 2017, the Supreme Court granted leave to reargue and, upon reargument, among other things, vacated the October 2016 order and denied the June 2016 motion, determining that Countrywide had failed to establish its standing to commence the action.


We agree with the Supreme Court's determination, upon reargument, that Countrywide failed to establish, prima facie, that it had standing to commence this action, as it failed to establish that it had possession of the note at the time of commencement. In support of its motion, Countrywide submitted the affidavits of Paul Johannsson and Gloria Ann Beatty. Johannsson, an Assistant Vice President of BSI Financial Services (hereinafter BSI), servicer and attorney-in-fact for the plaintiff, attested that he had personal knowledge of BSI's record-keeping practices. Johannssen asserted that Countrywide was the holder of the note prior to and at the time of the commencement of the action, and based this statement on his reference to Beatty's affidavit. Beatty, an officer of Bank of America, N.A. (hereinafter BANA), asserted that BANA acquired Countrywide on April 27, 2009, which was after this action was commenced. She attested that she has personal knowledge of BANA's procedures for creating and maintaining the business records maintained in connection with the subject loan. Beatty averred that based upon her review of BANA's records, Countrywide received the original note on or about August 16, 2007. While Beatty attested that she had personal knowledge of BANA's record-keeping practices, she did not state that she had personal knowledge of Countrywide's record-keeping practices and procedures, or that Countrywide's records were provided to BANA and incorporated into BANA's own records, or that BANA routinely relied on such records in its business. Thus, she failed to lay the proper foundation for the admission of the records relied upon (see Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d 780, 782-783). Moreover, we note that Countrywide failed to submit evidence of its merger with BANA and Beatty did not aver that she had personal knowledge of said merger (see generally CitiMortgage, Inc. v Osorio, 174 AD3d 496, 499)."

Wednesday, June 10, 2020

AN ACTION AGAINST LANDLORD IN SMALL CLAIMS FOR COCKROACH INFESTATION


According to RPL 235-B Warranty of habitability:

"3. In determining the amount of damages sustained by a tenant as a result of a breach of the warranty set forth in the section, the court;

(a) need not require any expert testimony; and

(b) shall, to the extent the warranty is breached or cannot be cured by reason of a strike or other labor dispute which is not caused primarily by the individual landlord or lessor and such damages are attributable to such strike, exclude recovery to such extent, except to the extent of the net savings, if any, to the landlord or lessor by reason of such strike or labor dispute allocable to the tenant's premises, provided, however, that the landlord or lesser has made a good faith attempt, where practicable, to cure the breach.

(c) where the premises is subject to regulation pursuant to the local emergency housing rent control law, the emergency tenant protection act of nineteen seventy-four, the rent stabilization law of nineteen hundred sixty-nine or the city rent and rehabilitation law, reduce the amount awarded hereunder by the total amount of any rent reduction ordered by the state division of housing and community renewal pursuant to such laws or act, awarded to the tenant, from the effective date of such rent reduction order, that relates to one or more matters for which relief is awarded hereunder."

And according to the court, consequential damages are not recoverable, only a rent abatement.

Salgado v Cambridge Manor Apts II, Inc., 2020 NY Slip Op 50613(U), Decided on April 24, 2020, City Court Of Middletown, Orange County, Guertin, J:

"INTRODUCTION
This is a Small Claims action by Nicholas Salgado and Nicole Mnich (collectively, "the Claimants;" Nicholas Salgado is referred to as "Salgado," and Nicole Mnich is referred to as "Mnich") against Cambridge Manor Apts II, Inc. ("the Defendant") in which the Claimants are seeking from the Defendant the sum of $5,000.00 for damages to a sectional sofa, ottoman, child's toys, fish tank, and other furniture owned by the Claimants and used by them at their apartment known as Apt. 814, 38 Stoneridge Road, Middletown, New York 10941 (the Property").

The Claimants submitted their Application to File Small Claims on December 10, 2019. Trial was originally scheduled for February 7, 2020 but was adjourned at the Defendant's request to February 21, 2020. On February 21, 2020, Mnich appeared pro se and Fiona A. Foley, Esq. appeared on behalf of the Defendant, and the matter was further adjourned to March 6, 2020 at Mnich's request. The parties appeared in court on March 6, 202 for the trial; the Claimants appeared pro se, and the Defendant appeared by Fiona A. Foley, Esq. and Kathleen Sullivan ("Sullivan"), the Defendant's office manager. Salgado, Mnich, and Sullivan all testified under oath, and all three testified credibly. 

Each party also submitted documentary evidence for the Court's consideration. After trial, the Court reserved decision.


FINDINGS OF FACT The credible evidence at the trial showed the following:

In April 2018, the Claimants moved into the Property. Salgado signed a lease with the [*2]Defendant with an initial lease term from April 13, 2018 to March 31, 2019; the lease and the term was extended by a Lease Renewal Agreement to March 31, 2020 (the original lease and the Lease Renewal Agreement together are referred to as "the Lease"). Although Salgado signed the Lease, Paragraph 3 of the Lease indicated Mnich also would occupy the Property. A copy of the Lease was accepted into evidence as Defendant's Exhibit A.

Two provisions in the Lease addressed damage to the Claimants' personal property. Paragraph 5 of the Lease stated the Defendant would insure the apartment complex but also contained this provision: "Please note that your personal property is not insured by us [the Defendant] and you [the Claimants] must obtain renter's insurance in order to have coverage for your personal property." Paragraph 10 of the Lease contains a similar provision: "You [the Claimants] are urged to carry renter's insurance on your personal property as we [the Defendant] cannot and do not insure your personal property against loss."

The Claimants occupied the Property (apparently) without incident until the morning of July 13, 2019, when Salgado woke up and found roaches on the floor. On July 15, 2019, Salgado called Sullivan about the situation, and Sullivan hired Masters Termite & Pest Control ("the Exterminator") to exterminate the roaches. The Exterminator came to the Property on July 19, 2019 and treated for roaches, particularly in the kitchen area, as shown by Invoice No.175193 (Claimants' Exhibit 2, in evidence). The roach condition continued, Salgado called Sullivan again, and the Exterminator came to the Property again on July 26, 2019 and treated for roaches in the interior, living room, and kitchen, as shown by Invoice #A31850 (Claimants' Exhibit 3, in evidence). The Exterminator also treated the Property on August 20, 2019 and, on that day, examined Apartment 816, which may have been the source of the roaches. On August 23, 2019, the Exterminator treated Apartment 816 for roaches. Claimants' Exhibit 1, in evidence, contains the Exterminator's invoices for the treatments at the Property on August 20, 2019 and Apartment 816 on August 23, 2019.

Salgado testified he saw more roaches approximately a month later and called Sullivan to determine if there was another apartment available in the same complex. Sullivan did have one available at the complex, but the per month rental was higher, and there also would have been a $500.00 transfer fee. Salgado decided to remain at the Property but eventually moved out, on December 28, 2019.[FN1]
On cross-examination, Salgado admitted the Defendant was responsive and sent the Exterminator to the Property each time Salgado complained about the roaches. Salgado agreed he did not have to pay for the extermination services, and stated that after his last complaint in or around August or September, 2019, he made no further complaints to the Defendant about the roaches. He acknowledged he did not obtain renter's insurance (he stated renter's insurance didn't cover roach issues) and also acknowledged the Lease stated the Defendant was not responsible for damage to personal property.

Mnich testified that the roach issues required the Claimants to clean various items of property such as the dining room table, chairs, a couch, a television stand, bed drawers, two night [*3]stands, a cat tree, and a desk, and also required them to dispose of various items such as a microwave, coffee maker, air fryer, toaster, blender, dish rack, pots and pans, clothes, their child's toys, a fish tank stand, an ottoman, and bed sheets/linens (Claimants' Exhibit 6, in evidence). Accepted into evidence as Claimants' Exhibit 5 was an invoice dated March 15, 2016 from Bob's Discount Furniture when Salgado purchased various items of furniture such as a dresser, mirror, chest, night stands, headboard, storage drawers, sofa, chaise, ottoman, table, and stools. Salgado had that furniture put into storage at Prime Storage, Middletown, New York from October 2016 until the Claimants moved into the Property; the storage unit ledger history was accepted into evidence as Claimants' Exhibit 4, in evidence.

Other than the original purchase price of some furniture items as shown by the invoice dated March 15, 2016 from Bob's Discount Furniture (Claimants' Exhibit 5), the Claimants gave no estimates or paid receipts indicating the cost of cleaning the items listed in Claimants' Exhibit 6 or the value of the items listed in Exhibit 6 that the Claimants asserted they lost due to the roach issues.

DISCUSSION Residential leases in New York are governed by a warranty of habitability; that is (as set forth in NY Real Property Law § 235-b[1]), "[i]n every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented . . . are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety." The New York Court of Appeals, in Park West Management Corp. v Mitchell (47 NY2d 316, 325 [1979], cert denied 444 US 992 [1979]) analyzed RPL § 235-b as codifying existing case law and recognized that "[a] residential lease is now effectively deemed a sale of shelter and services by the landlord who impliedly warrants: first, that the premises are fit for human habitation; second, that the condition of the premises is in accord with the uses reasonably intended by the parties; and, third, that the tenants are not subjected to any conditions endangering or detrimental to their life, health or safety [footnote omitted]" (47 NY2d at 325). That three-part warranty by the landlord is so important and necessary that "[t]he obligation of the tenant to pay rent is dependent upon the landlord's satisfactory maintenance of the premises in a habitable condition" (id. at 327).

Although a residential landlord must satisfy the warranty of habitability, "a landlord is not required to ensure that the premises are in perfect or even aesthetically pleasing condition" (id. at 328). A residential landlord, however, warrants "that there are no conditions that materially affect the health and safety of tenants . . . [such as] insect or rodent infestation"; if there are such conditions, "in the eyes of a reasonable person . . . [then], a breach of the implied warrant of habitability has occurred" (id.) (accord Solow v Wellner, 86 NY2d 582, 588 [1995] [in Park West Management Corp. at 327, however, "(w)e specifically rejected the contention that the warranty was intended to make the landlord 'a guarantor of every amenity customarily rendered in the landlord-tenant relationship' . . . ."]).

Presence of roaches or other insects in a rental property could be considered a breach of the warranty of habitability (see, e.g., Gawad v Aviad, 37 Misc 3d 126[A], 2012 NY Slip Op 51851[U], *1 [App Term, 2d Dept, 11th & 13th Jud Dists 2012] [bedbugs]; Port Chester [*4]Housing Authority v Mobley, 6 Misc 3d 32, 34 [App Term, 2d Dept, 9th & 10th Jud Dists 2004] [insects and rodents]; Solow v Wellner, 154 Misc 2d 737, 743 [App Term, 1st Dept, 1992], affd as modified 205 AD2d 339 [1st Dept 1994], affd 86 NY2d 582 [1995] [roaches]). A bug infestation of any type would fall under the general classification of "vermin," which would include not just bugs but mice as well (Ludlow Properties, LLC v Young, 4 Misc 3d 515, 519 [Civ Ct, New York County 2004]). In a residential context, however, not all vermin are alike; "vermin such as mice and roaches which although offensive do not have the effect on one's life as bedbugs do, feeding upon one's blood in hoards nightly turning what is supposed to be bed rest or sleep into a hellish experience" (id.). Even if there is an insect infestation, "a landlord must be allowed a reasonable amount of time to correct [such] a condition" (Gawad at *1).

When there is a breach of the warranty of habitability by a residential landlord, the typical remedy is a rent abatement (Park West Management Corp. at 329). The amount of a rent abatement, if any, is determined by weighing "the severity of the violation and duration of the conditions giving rise to the breach as well as the effectiveness of steps taken by the landlord to abate those conditions (id.)." Expert testimony as to the amount of damages is not required (RPL § 235-b[3][a]), because "both sides will ordinarily be intimately familiar with the conditions of the premises both before and after the breach . . . [and] are competent to give their opinion as to the diminution in value occasioned by the breach" (Park West Management Corp. at 329-330) (accord Solow v Wellner, 205 AD2d 339, 340 [1st Dept 1994], affd 86 NY2d 582 [1995]; Mateo v Anokwuru, 57 Misc 3d 61, 62 [App Term, 1st Dept, 2017 per curiam]; Gramatan Realty Corp. at *2).

In this case, the Claimants are not seeking a rent abatement, and neither party even addressed the issue of a rent abatement. If anything, the testimony showed that when the Claimants complained to the Defendant about the roach issue, the Defendant took prompt steps to secure the services of an exterminator, and the Exterminator not only addressed the issue in the Property itself but also in a separate apartment that, apparently, was the source of the roaches. Even Salgado acknowledged the Defendant was responsive and sent the Exterminator to the Property each time Salgado complained about the roaches, and he stated that after his last complaint in or around August or September, 2019, he made no further complaints to the Defendant about the roaches. It is clear the Defendant acted in "a reasonable amount of time to correct [the] condition" involving the roaches (Gawad at *1).

While a tenant may be entitled to a rent abatement if the landlord breaches the warranty of habitability due to an insect infestation (and the Court is not finding such breach in this case), courts have emphatically stated that consequential damages, such as property damages, cannot be recovered for such a breach. For example, in Joseph v Apartment Management Associates, LLC (30 Misc 3d 142(A), 2011 NY Slip Op 50303(U) (App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2011), a tenant sued the landlord's managing agent to recover $5,000.00 for loss of personal property resulting from a bedbug infestation. After trial, the lower court awarded the tenant $3,342.83. On appeal, the Appellate Term noted that "in an action based upon a landlord's breach of the implied warranty of habitability, consequential damages, such as for property damage, are not recoverable [citations omitted]" (2011 NY Slip Op 50303[U] at *1) (accord Couri v Westchester Country Club, Inc., 186 AD2d 712, 715 [2d Dept 1992]; Butter-Warnett v [*5]782 East 32nd LLC, 21 Misc 3d 143[A], 2008 NY Slip Op 52459[U], *1 [App Term, 2d Dept, 2nd & 11th Jud Dists 2008]; 303 Beverly Group, L.L.C., 190 Misc 2d 69, 70-71 [App Term 2d Dept 2001]; see Ludlow Properties LLC, 4 Misc 3d at 520 [the court granted a 45% rent abatement for bedbugs but did not award the tenant any specific damages due to his having to throw out the couch, the armoire, books, towels, clothes, and other items]).

Even if the Court found, in this case, a breach of the warranty of habitability and could award consequential damages based on the Claimants' assertion that some of their property either was destroyed or had to be cleaned due to the presence of roaches, the Claimants failed to submit proof of such damages either by two written estimates or a bill marked paid showing the cost of remediating such damages, as required by Uniform City Court Act § 1804. The only proof offered by the Claimants was a paid invoice from Bob's Discount Furniture (Claimants' Exhibit 5) showing how much Salgado paid for various pieces of furniture as of March 15, 2016. Only one item on that list - the ottoman - was deemed "lost" due to the roaches (Claimants' Exhibit 6), but the Claimants failed to submit any proof of the value of such ottoman as of December 2019, approximately three and a half years after its purchase. The Claimants failed to submit anything indicating the value of the other "lost" items on Claimants' Exhibit 6, and they failed to submit anything indicating the cost of cleaning the other items listed on Claimants' Exhibit 6. As a result, the Claimants are not entitled to any payment from the Defendant.[FN2]

The Court, in this small claims action, must "do substantial justice between the parties" (Uniform City Court Act § 1804). Substantial justice requires the Court to deny, in its entirety, the Claimants' claim against the Defendant.

Footnotes

Footnote 1:Although the Lease provided for a term until March 31, 2020, neither party testified as to whether the Claimants incurred any penalty for moving out of the Property early, or even whether the Defendant consented to the early termination of the tenancy.

Footnote 2:The Lease is also clear, in Paragraphs 5 and 10, that the Defendant is not responsible for any loss regarding the Claimants' personal property. "