Wednesday, January 27, 2021

DEALING WITH A PROBLEM TENANT


400 W. 59th ST. PARTNERS LLC v. OYOLESI, 2020 NY Slip Op 34334 - NY: Supreme Court December 31, 2020:

"Plaintiff 400 West 59th Street Partners LLC is the owner and landlord of premises located at 1 Columbus Place (the building) in Manhattan and moves for a preliminary injunction: 1) directing Defendant Tobi Oyolesi to grant access to his apartment S30C in the building so that plaintiff can inspect and repair a water leak; 2) enjoining and restraining defendant Travis Lilley from entering the building; 3) enjoining and restraining Lilley from assaulting, harassing, menacing, recklessly endangering, intimidating, or threatening building residents and occupants; and 4) enjoining and restraining Lilley from creating unreasonable health or safety risks to residents and occupants of the building. Oyolesi is a tenant in the building and Lilley is his invitee.

BACKGROUND

In support of its order to show cause, plaintiff submits, inter alia, the affidavit of Genie Wright, property manager for the building. According to Wright after receiving reports of a water leak from Oyolesi's apartment in July, 2020, plaintiff attempted to investigate and repair the leak but Oyolesi refused to provide access to his apartment (NYSCEF Doc No 4 ¶¶ 4-14). Attached to Wright's affidavit is a copy Oyolesi's lease and renewal lease (NYSEF Doc No 5). Paragraph 15 of the lease allows plaintiff access to Oyolesi's apartment during reasonable hours with reasonable notice to perform inspections and repairs.

Concerning Lilley, Wright states that an investigation, including interviews with building staff showed that Lilley threatened and/or verbally abused building personnel on multiple occasions, in the months of April, May and June 2020. Wright also quotes from an email received by plaintiff from another tenant in the building concerning Lilley's conduct. Wright does not attest that he personally witnessed any of Lilley's conduct detailed in his affidavit (NYSCEF Doc No 4 ¶¶ 15-29).

DISCUSSSION

A preliminary injunction will only be issued if plaintiff demonstrates, with convincing evidentiary support, a likelihood of success on the merits, irreparable injury absent granting of a preliminary injunction, and that a balancing of equities favors its position. CPLR 6301; Nobu Next Door, LLC v. Fina Arts Housing, Inc., 4 N.Y.3d 839, 840 (2005); LAIG v. Medanito S.A., 130 A.D.3d 466 (1st Dep't 2015). And "a mandatory preliminary injunction (one mandating specific conduct), by which the movant would receive some form of the ultimate relief sought as a final judgment, is granted only in `unusual' situations, where the granting of the relief is essential to maintain the status quo pending trial of the action" (Jones v Park Front Apts. LLC, 73 AD3d 612 [1st Dept 2010]).

Access to inspect and repair

Plaintiff has shown a likelihood of success on its claim of breach of its contractual and statutory right of access to Oyelesi's apartment to inspect and repair the water leak through the affidavit of Wright. Oyelesi's affidavit in opposition is insufficient to rebut plaintiff's showing of a likelihood of success on the merits since he merely states that he discontinued using the air-conditioner that caused the water leak. Merely discontinuing use of the air-conditioner does not resolve the problem and under the terms of the lease, plaintiff has the right to repair the air conditioner to ensure that the leak does not reoccur. Moreover, as plaintiff correctly points out, Housing Maintenance Code § 27-2008 grants plaintiff the right to access Oyolesi's apartment to make repairs. Likewise, plaintiff has established irreparable injury and a balancing of the equities in its favor on its right to access claim, since plaintiff may be found to have breached its obligations to other tenants if the leak and any damage caused by the leak are not repaired.

Accordingly, that portion of plaintiff's motion seeking access to Oyolesi's apartment to inspect and repair the leak must be granted.

Enjoining Lilley's conduct

Plaintiff has not demonstrated with convincing evidence a likelihood of success on its nuisance claim concerning Lilley's conduct. In the residential landlord-tenant context nuisance is defined as "a condition that threatens the comfort and safety of others in the building" and is evidenced by "a pattern of continuity or recurrence of objectionable conduct" (Frank v Park Summit Rlty. Corp., 175 AD2d 33, 35 [1st Dept], mod on other grnds 79 NY2d 789 [1991]). While plaintiff may ultimately establish its nuisance claim based on Lilley's conduct there has been an insufficient showing of a likelihood of success on the merits because the sole affidavit offered in support of the motion is from Wright, the property manager, who does not state that he personally witnessed any of Lilley's conduct. Instead, Wright bases his allegations against Lilley on interviews with building staff and an email received from another tenant in the building. Such hearsay offered for the truth is insufficient to establish a likelihood of success on a nuisance claim (cf Water Quality Ins. Syndicate v Safe Harbor Pollution Ins., LLC, 2014 NY Slip Op 30003(U), 2014 NY Misc LEXIS 33 *12 [SC NY Co 2014] [holding "the court cannot grant the extreme remedy of a preliminary injunction based on such hearsay"]; Brownstone Agency Inc. v Distinguished Programs Grp., 2008 NY Slip Op 32131(U), 2008 NY Misc LEXIS 8992 *1 [NY Co 2008] [holding proof offered in support of a motion for a preliminary injunction "is insufficient because it consists primarily of hearsay, conjecture and/or conclusory allegations"]).

However, plaintiff very well may suffer irreparable injury in the absence of an order enjoining Lilley's conduct and a balancing of the equities are in plaintiff's favor. Lilley did not submit an affidavit in opposition and Oyolesi in his affidavit, apologizes on behalf of Lilley. Accordingly, continuation of the order imposed against Lilley enjoining him from assaulting, harassing, menacing, recklessly endangering, intimidating, threatening building staff, tenants and occupants of the building and requiring him to wear a mask in the building is warranted. This injunction provides "some security to the building personnel (and others) ... while merely restraining (Lilley) from continuing any unlawful or wrongful activities" (Park S. Assoc. v Blackmer, 171 AD2d 468, 469-470 [1st Dept 1991]).

CONCLUSION

Based on the foregoing it is

ORDERED that the motion is granted to the extent that defendant Oyolesi shall grant access to his apartment to plaintiff and its workers to inspect and repair the water leak and until such time as the repairs are complete; and it is further

ORDERED that the motion is granted to the extent that defendant Lilley is enjoined from assaulting, harassing, menacing, recklessly endangering, intimidating, threatening building staff, tenants and occupants of the building and must comply with the building's rules requiring wearing a mask; and it is further

ORDERED that the motion is otherwise denied."

Tuesday, January 26, 2021

NO PRIVATE CAUSE OF ACTION FOR CIVIL PENALTY UNDER RPAPL 768


Avignone v. VALIGORSKI, 2020 NY Slip Op 20336 - City Court of Cohoes, December 12, 2020:

".....Pursuant to Real Property Law § 235-b, every residential lease contains an implied warranty of habitability which is limited by its terms to three covenants: (1) that the premises are fit for human habitation, (2) that the premises are fit for the uses reasonably intended by the parties, and (3) that the occupants will not be subjected to conditions that are dangerous, hazardous or detrimental to their life, health or safety. Despite the expansive language of the statute, the Court of Appeals has 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 and held that the implied warranty protects only against conditions that materially affect the health and safety of tenants or deficiencies that "in the eyes of a reasonable person ... deprive the tenant of those essential functions which a residence is expected to provide" (Solow v. Wellner, 86 NY2d 582, 588 [1995] [internal citations and quotations omitted; emphasis in the original]).

Usually, RPL § 235-b is raised as a defense to a non-payment proceeding—that is, the tenant claims that she is justified in not paying her rent due to the breach of warranty of habitability. Here, Avignone uses the statute as a sword rather than a shield. While the statute does not explicitly provide tenants with a private cause of action, RPL § 235-b(1), makes its protections part of every lease. A breach of the law, therefore, is a breach of the lease and creates a cause of action in contract. Thus, the tenant is "entitled to assert their claim of breach of the warranty of habitability either by way of action or counterclaim, and their right to assert [of such a] claim was not dependent on [a] claim by landlord for rent arrears" (R & O Mgmt. Corp. v. Ahmad, 12 Misc 3d 85, 86 [App Term 2d Dept 2006]).

When a landlord fails to provide hot water, they violate RPL § 235-b (Pantalis v. Archer, 87 Misc 2d 205, 209 [Suffolk Dist Ct 1976]). The failure to provide adequate water pressure violates the statute as well. (H & R Bernstein v. Barrett, 101 Misc 2d 611 [Civil Ct., 1979]). This latter breach becomes more compelling during a pandemic. In this case, plaintiff's lack of water pressure translated directly to the inability to wash her clothes. Keeping clothes clean helps prevent the transmission of the virus. Moreover, since the low water pressure forced plaintiff to go to a public laundromat to wash her clothing, she was subjected to an increased risk of getting sick. Thus, because defendants breached the implied warranty of habitability, they breached the lease and are liable to plaintiff.

Having determined a breach of the lease, the court must determine damages—which tends to be uncomfortably amorphous in warranty of habitability cases. This is because such "damages are not susceptible to precise determination" (Park W. Mgmt. Corp. v. Mitchell, 47 NY2d 316, 329 (1979]). The proper measure of damages is "the difference between the [rent] and the value of the premises during the period of the breach" (id ). Moreover, "[i]n ascertaining damages, the finder of fact must weigh the severity of the violation and the 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). Based upon the totality of the credible evidence and implementing the calculus described by the Court of Appeals, the court awards Avignone $300 for the month of July and $600 for the month of August as damages under RPL § 235-b.

Up to this point in the case, the court has dealt with the mundane—everyday courts deal with cases involving living conditions, rent and the warranty of habitability. Plaintiff, however, invokes RPAPL § 768 and asks the court to award her a civil penalty for the violation. RPAPL § 768 is of recent vintage, enacted by the legislature in 2019 as part of the Housing Stability and Tenant Protection Act (L 2019, Ch 36).

A violation of RPAPL § 768 subjects the violator to both civil and criminal penalties. RPAPL § 768 provides in pertinent part; "It shall be unlawful for any person to attempt to evict an occupant of a dwelling unit by: engaging in a course of conduct which interferes with or is intended to interfere with or disturb the comfort, repose, peace or quiet of such occupant to induce the occupant to vacate the dwelling unit [by] the interruption or discontinuance of essential services" (RPAP § 786[1][a] & [a][ii]).Such person shall also be subject to a civil penalty of not less than one thousand nor more than ten thousand dollars for each violation. Each such violation shall be a separate and distinct offense (RPAPL § 768[2][b]).

Two statutory questions must be addressed. The initial question is whether defendants violated RPAPL § 768. Here, in the court's opinion, is what happened. The defendants were frustrated by the tenant's phantom complaints along with her nonpayment of rent. Initially, they sought to resolve this grievance properly—defendants filed a non-payment proceeding to evict Avignone (RPAPL § 711[2]). However, pursuant to a flood of ever changing Executive and Administrative Orders that constantly altered eviction proceedings, the pro se defendants were not able to adjudicate their case.[2] Without a prompt judicial remedy, defendants became understandably frustrated. So, they resorted to tactics that made residing in the apartment unpleasurable for Avignone in an effort to get her to leave.[3] Thus, based upon the evidence and the reasonable inferences drawn therefrom, the court concludes that defendants intended to interfere with plaintiff's enjoyment of her apartment to induce her to vacate it by tampering with the water, an essential service in violation of RPAPL § 768[1][a].

The next statutory question, and the one upon which this case hinges, is whether a court, in a private civil action, may award the plaintiff a civil penalty under RPAPL § 768[2][b]. Normally, "[t]he words of the statute and what those words convey, in context, is what the statute means" (Morning Light Realty, LLC v. Brown, 62 Misc 3d 274, 280 [Cohoes City Ct, 2018]). But here, the statutory language is oddly silent. It is not just that the legislature never mentioned whether RPAPL § 768's civil penalty may be enforced via a private lawsuit; rather, it failed to identify any entity which has civil enforcement power. In the face of this silence, the court must take a cautious approach neither to be too restrictive nor too liberal in its statutory interpretation. To do this, the court will look at three factors: the law involving implied private causes of action, the purpose of a statutory penalty and the separation of powers doctrine.

Initially, to unravel the issue, it is helpful to reason by analogy from the law regarding the creation of a private cause of action. To start with, "[a] statute's mere prohibition of a certain act does not imply creation of a private right of action for its violation" (Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts § 51, p 313 [1st ed 2012]). A private cause of action exists only if the legislature intended to create one. And "courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute" (Alexander v. Sandoval, 532 US 275, 286-87 [2001]). Considering the statutory silence, the court doubts that RPAPL § 768 creates a private cause of action. Moreover, where a statute creates criminal liability, as RPAPL § 768[2][a] does, then, generally, no private cause of action may be implied (Sheehy v. Big Flats Cmty. Day, Inc., 73 NY2d 629, 634-35 [1989]). Thus, if the legislature did not create a private cause of action under RPAPL § 768, it seems unlikely that the legislature intended to allow a private party to enforce a civil penalty provision.

Additionally, a private statutory cause of action is designed to compensate while a statutory penalty is designed to punish. Imposition of a penalty is a powerful tool. A court should hesitate before allowing it to be wielded by those who are focused upon their private interests and not the public's. Indeed, "[t]he availability of civil penalties [which are] vastly disproportionate to the individual injury [as is the case here] gives citizen plaintiffs massive bargaining power," by allowing public fines to be leveraged for their private interest (Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 US 167, 209-10 [2000] [Thomas, J dissenting]). Without an express statutory transfer of governmental power from democratically accountable officials to private parties, the court should not infer one.

Finally, and perhaps most importantly, even if the court were to construe RPAPL § 768 to mean that the legislature delegated to a private party the power to punish a landlord, such a construction would raise a separation of powers issue. This is because no function cuts more to the heart of the executive's constitutional power than its discretion to seek the imposition of penalties. Thus, while the legislature has the power to define a penalty and the court possesses the judgment over the severity of the penalty, neither branch may compel the executive to enforce a penalty nor delegate that authority to another (Soares v. Carter, 25 NY3d 1011, 1013 (2015); see also Morrison v. Olson, 487 US 654, 708-11 [1988] [Scalia, J dissenting]). Simply put, the legislature may not transfer enforcement power belonging to executive to a private party. Therefore, the court should interpret the statute to avoid rendering it unconstitutional (National Federation of Independent Business v Sebelius, 567 US 519, 562 [2012]).

In light of the law governing implied private causes of action, the purpose a civil penalty and constitutional concerns, the court holds that while defendants violated RPAPL § 768, plaintiff may not, in the context of a private civil action, seek to enforce the statute's civil penalty provision under RPAPL § 768[2][b].

This brings the case to defendants counterclaimed for unpaid rent. Plaintiff has admitted not paying rent from July through November. Five months' rent at $975 a month amounts to $4,875. The amount of rent owed is reduced by the award to plaintiff for the breach of the warranty of habitability of $900. Therefore, the courts awards judgment to defendants on their counterclaim in the amount of $3,975.

.....

[2] Not only did the multitude of orders complicate eviction proceedings during the pandemic, but the RPAPL is a special proceeding with all the rigors associated therewith (Cat Hollow Estates, Inc. v. Savoia, 46 AD3d 1293, 1294 [3d Dept 2007]). If defendants had retained counsel, there were several actions that could have been taken (and can be taken) to alleviate frustration.

[3] Unreasonable delays and denial in the administration of justice breeds contempt for the law. Indeed, it was the delay occasioned in common law ejection proceedings that birth the summary proceedings (L 1820, ch 194). An ejectment action was "an expensive and dilatory proceeding which in many instances amounted to a denial of justice" (Reich v Cochran, 201 NY 450, 453-454 [1911]). Significantly, delays in the evicting tenants caused social breakdowns by "prompt[ing] landlords to short circuit the judicial process by resort to self-help" (Velazquez v Thompson, 451 F2d 202, 204 [2d Cir 1971]). Thus, what happen in this case was not entirely unpredictable (see George Santayana, Reason in Common Sense p 284 [Charles Scribner's Sons 1905] [coining the aphorism "those who cannot remember the past are condemned to repeat it"]).



Friday, January 22, 2021

DIVORCE - IT'S NOT BUSINESS IT'S STRICTLY PERSONAL



A divorce is personal... it can't be commenced, etc. by a guardian or agent, only by the spouse. Although one wonders why the wife in this case wanted to set aside the stipulation, only the parties to a divorce, not an agent, can make decisions, etc. 

Schneider v. Schneider, NYLJ January 22, 2021,  Date filed: 2021-01-19 , Court: Supreme Court, Nassau, Judge: Justice Jeffrey Goodstein,     Case Number: 201612/2018:

"PRELIMINARY STATEMENT Plaintiff (“Wife”) brings this Order to Show Cause seeking an Order vacating the Stipulation of Settlement dated March 17, 2020 (“Stipulation”), Attorney fees and costs and disbursements. The Defendant (“Husband”) opposes the motion in its entirety. BACKGROUND
This action was commenced by the Wife in 2018 but a Preliminary Conference was not held until January 2020. The Wife explains that the Defendant (“Husband”) lost his job and they were unable to meet their mortgage payments with Bethpage Federal Credit Union (“BFCU”). BFCU brought a foreclosure action entitled: Bethpage Federal Credit Union v. Schneider, Index Number 603660/2018. Wife explains that the foreclosure was almost completed as there was a sale/auction scheduled for March 31, 2020. Wife contends that her father, Christian Matthiessen, provided the parties a loan in the sum of $74,771.66 to bring the mortgage current.

The Stipulation acknowledged the loan to her father, but also set forth that the Husband was giving her a portion of his interest in the marital residence in exchange for an offset of child support. The Husband did not sign the Stipulation, but the Husband’s mother, using a Power of Attorney (“POA”), executed same on his behalf. Wife now requests that the Stipulation of Settlement be deemed void and she be awarded counsel fees and costs for having to bring this motion.

The Stipulation sets forth, in pertinent part as follows:

Eric Schneider has designated his mother, Diane Schneider, as his Agent with Power of Attorney which will be utilized to execute this Stipulation and the Note and Mortgage attached hereto. Said Power of Attorney is attached herewith as Exhibit “B”. Notwithstanding the utilization of the Power of Attorney, it is represented that Eric J. Schneider, the Husband, has had an opportunity to review and has approved the terms of this agreement.
(ARTICLE II, paragraph 8)

DISCUSSION
Wife argues that the POA itself is invalid and therefore, anything acted thereupon is void. Wife contends that the POA states that there are to be other agents aside from the Husband’s mother, but no other agents are designated. The POA also indicates that there shall be successor agents, as indicated by the Husband’s initials, but none were ever designated. Wife further contends that although the Husband signed the POA, his mother did not which invalidates it under the New York State General Obligations Law Sec. 5-1501B(1)(c). In addition, it was the Husband who signed the page entitled Acceptance of Agent, when it should have been his mother.

Wife further argues that the POA was being used because the Husband was entering, or had already entered, into an alcohol treatment program. She contends that the Husband was not restrained, unconscious, mentally incompetent in any other way and entered the treatment voluntarily.

As a general matter stipulations entered into between parties are upheld by the courts. In McClorey v. McClorey, 153 AD3d 1252 (2D Dept. 2017), the Appellate Division held:

Stipulations of settlement are favored by the courts and not lightly cast aside (Hallock v. State of New York, 64 NY2d 224 [1984]; see Matter of Galasso, 35 NY 319 [1974]. This is all the more so in the case of “open court” stipulations (Matter of Dolgin Eldert Corp., 31 NY2d 1 [1975] pursuant to CPLR 2104, where strict enforcement “not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process” (Hallock v. State of New York, 64 NY2d at 230). “Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” (id, see Libert v. Libert, 78 AD3d 290 [2010].

But the Wife argues that the instant action and Stipulation do not fit into this general standard because this is a matrimonial action and because the POA was invalid.

In Matter of Weschler, 3 AD3d 424 (2004), the Appellate Division was presented with the issue of whether a guardian over a party can bring and maintain a divorce proceeding against the spouse of the incompetent individual. Id. The Court held, in pertinent part, as follows:

This matter is governed by the decision in Mohrmann v. Kob (291 NY 181 [1943] [construing Civ Prac Act Sec 1377]), which is wholly dispositive of the issue of whether “an action for absolute divorce [may] be maintained by the [guardian] of an insane husband against the latter’s wife.” The Court noted that whether to pursue divorce proceedings is a personal decision in which the element of volition is implicit (id. at 188), and that the husband lacked the capacity to make a competent decision. As to the powers of the guardian to maintain proceedings, it observed that “the use of the word ‘any’ did not include an action for divorce which the Legislature has always treated separately and completely” (id at 189). The Court held that absent statutory authority permitting a guardian to commence a divorce action on behalf of a ward, the courts may not assume to grant such power (id. At 190; see also, Matter of Babushkin, 176 Misc 911 [1941].

While the Court in Matter of Wechsler was dealing with a Guardianship situation, Wife argues that the POA must be treated the same way. She argues that the POA was a standardized Durable Power Of Attorney that did not become valid upon condition precedent. Wife points out the Husband’s arguments that the POA was used for a stipulation that was unrelated to the divorce proceeding and therefore enforceable as it focused on the foreclosure issues with the Marital Residence. However, the Stipulation bears the caption and the index number of the matrimonial action; the Stipulation refers to the property as the Marital Residence; the Stipulation identifies the parties throughout as Husband and Wife; the Stipulation specifically states and mentions that the Marital Residence will be distributed in accordance with the agreement and in lieu of the provision of the Domestic Relations Law; Paragraph 16 specifically states that “Wife shall be entitled to a prepaid Child Support offset made by the Husband to the Wife…which will satisfy the Husband’s child support obligation for the period of 24 months” from the date of the signing of the Stipulation; Article 2 of the Stipulation talks about the child support offset mentioned in paragraph 16 of the Stipulation.

Wife therefore argues that the Stipulation was meant for the matrimonial action. The Appellate Court in Mallory v. Mallory, 113 Misc 2d 912 (Sp. Term. 1982) held that a Power of Attorney is not valid in matrimonial actions. Specifically, the Court held that

[moveant is not one of the parties to the matrimonial action and in fact, she seeks to dissolve the parties’ married state. The public policy of New York does not permit such interference in the marital state by a third party. The fact that the movant possesses a power of attorney is of no assistance to her. It appears that on this motion…is relying on that portion of the power which give the donee the power to act in “all other matters”. This, however, does not give the donee carte blanche authority because of the statutory construction imposed by Sec. 5-1502L of the General Obligations Law, which states in pertinent part”

‘The language***’all other matters,’ must be construed to mean that the principal authorizes the agent to act as an alter ego of the principal with respect to any and all possible matters and affairs which are not enumerated in section 5-1501A to 5-1502K, inclusive *** and which the principal can do through an agent.’

While a principal might very well be bound by the acts of his agent if the agent were to purchase a car on behalf of the principal, or if the agent were to sell certain goods on behalf of the principal, such is not the case where an agent seeks to obtain a divorce for the principal. In such a situation, you are not dealing with commonplace affairs of the marketplace, but rather in an area of extremely personal concern and one over which there will be strict surveillance by our courts. (Christian v. Christian, 42 NY2d 63.) To read section 5-1501L of the General Obligations Law so as to authorize this agent to obtain a divorce on behalf of her principal would be ludicrous. The only logical application of this statute to these facts would be to exclude the obtaining of a divorce by an agent on behalf of a principal.
See also, In re Alan G.W., 51 Misc.3d 998 (Supr Ct. 2016). Wife therefore argues that even had the POA in this instant case been valid it could not be used in this matrimonial action.

As set forth above, the Husband failed to submit an affidavit with personal knowledge of the situation revolving around the signing of the Stipulation with the POA. Through an affirmation of his counsel, Husband contends that the Stipulation does not pertain to the matrimonial action and only revolves around the prevention of the foreclosure action. He further contends that if the Wife wants certain clauses to be invalidated, a motion can be made for that, but that should not affect the portion of the agreement which saved the Marital Residence. Husband further argues that Wife was represented by counsel and signed an agreement which provided her what she wanted.

The Stipulation clearly saves the Marital Residence from foreclosure with the loan from the Wife’s father, and also provides a child support offset. Further, the Wife admits that she knowingly, based upon advice from counsel, entered into the Stipulation. Her affidavit completely fails to set forth any reasoning for her request to vacate the Stipulation. She does not claim fraud, duress or unconscionability.

There is no doubt that the Stipulation is one regarding this divorce action. It is titled with this case, addresses child support in depth and specifically deals with the distribution of the Marital Residence. Accordingly, based upon the case law set forth above which delineates the clear precedent with regard to the use of a Power of Attorney in a matrimonial action, it is hereby

ORDERED, that the Stipulation is hereby VACATED in its entirety."

Thursday, January 21, 2021

UNEMPLOYMENT BENEFITS - WHEN YOU HAVE TWO JOBS


If you hold several jobs (or have one job and side gigs) and you’re laid off from one, you may qualify for partial unemployment (MATTER OF VARGAS, 185 AD 3d 1339 - NY: Appellate Div., 3rd Dept. July 23, 2020) if you lost that job through no fault of your own. Some states award partial unemployment benefits based on your hours worked. However, some, like New York, base your benefit amount on the number of days worked during the week. 

But not any more. The NY DOL issued the following email yesterday:

Dear New Yorker:

At Governor Cuomo’s direction, NYS DOL has changed the way partial unemployment benefits are determined for those who are working part-time. With the new regulation, partial unemployment insurance (UI) and Pandemic Unemployment Assistance (PUA) benefits will now be based on the number of hours you work in a week instead of the number of days you work.

This update will go into effect for work completed during the benefit week of Monday, January 18, 2021 to Sunday, January 24, 2021 – and all benefit weeks going forward. The first time you certify under this new system will be on or after Sunday, January 24, 2021.

Under the new approach, you can work up to 30 hours in a week and still receive some unemployment benefits if you earn $504 or less in gross pay. Instead of having your benefits reduced by 25% for each day you engage in part-time work, reductions will be based on hours worked.

NYS DOL's certification system will still ask for the number of days you worked — you should use this chart to convert the hours you worked into the number of “days” to report.

partialuichart

When totaling hours for each week, you should only count up to 10 hours per day. That means if you worked 12 hours in one day, you will only count 10 of those hours in your weekly total for that day.

For more information and FAQs, go to on.ny.gov/partialui.

Again, this certification change will go into effect starting on Sunday, January 24, 2021.

Please screenshot and bookmark this page so that you can refer back each week when you certify.

Thank you.

Click here to opt-in to additional updates from the NYS Department of Labor.


Wednesday, January 20, 2021

LANDLORD'S REFUSAL TO PROVIDE ESSENTIAL SERVICES


A landlord's refusal or failure to make essential repairs may constitute harassment.

Madera v. 76-66 Austin Owners Corp., NYLJ January 15, 2021, Date filed: 2021-01-11, Court: Civil Court, Queens, Judge: Judge Enedina Pilar Sanchez, Case Number: 6338/19:

"Decision/Order After Trial This HP proceeding commenced in October 2019 seeking an order directing the correction of violations, a finding of harassment and a restraining order. The subject premises are located at 76-66 Austin Street, Apartment 2N, Forest Hills, NY 11375. Respondents-owners filed an Affirmation in Opposition. DHPD does not take a position on this harassment claim. Due to the COVID19 pandemic, the matter was adjourned several times. On August 7, 2020, the parties appeared via Skype teleconferencing pursuant to the protocols established by the Administrative Orders. On August 14, 2020, the Court granted petitioner’s order to show cause and the matter was scheduled for pre-trail conference and a trial.

At the pre-trial conference, the Court was advised that the parties reached a settlement. The attorneys were supposed to submit a stipulation of settlement. The settlement fell through and the case was rescheduled for a trial. The trial ensued via Microsoft Teams video conference.

Petitioner’s Testimony

Petitioner was provided with a Spanish Interpreter and sworn in. Petitioner was. Petitioner testified that she moved into the apartment 45 years ago with her spouse and daughter. Petitioner testified that she is a rent stabilized tenant and although the building was converted to a “co-op” she remains a rent stabilized tenant.

The Court was asked to take judicial notice of the DHPD website. The Court took judicial notice of the inspection report found on the DHPD website, www.nyc.gov/hpd. The inspection report confirms that conditions in the apartment are in violation of the Housing Maintenance Code (HMC).

Petitioner described the premises. Petitioner testified that Hugo Barrio, the manager of the building, gave her oral permission to replace the kitchen cabinets. Petitioner referred to Mr. Barrio as Hugo throughout her testimony. Petitioner testified that she asked Hugo for permission to change the kitchen cabinets because the cabinets were falling apart. The doors, the drawers, the handles were damaged — she could not open a drawer without it falling out and she could not open the cabinet doors. She testified that Hugo told her that she can change the cabinets but not the bathroom tub. Petitioner testified that this conversation took place sometime during the first week of February 2019. Petitioner testified that sometime on or about March 18, 2019, the superintendent named Alex, came to her apartment and removed the stove from the kitchen. Petitioner believes that the stove was placed in the basement. Petitioner offered into evidence photographs of the kitchen space without the cabinets or a stove.

She testified that after the work in the kitchen commenced, Hugo told her that she needed to stop the work and speak to the “legal department.” Thereafter, in November 2019, a “TenDay Notice to Cure” was issued by the landlord. The notice was admitted into evidence. The Notice to Cure alleged “you have completely removed the kitchen cabinets, and installed new cabinets.” The Notice refers then to Paragraph 5 of the lease. Petitioner testified that contrary to the Notice to Cure, no one came to her apartment on October 2, 2019. She was home all day and waited for someone to arrive.

During cross-examination, petitioner testified that she was not asked to present plans or explain what materials or workers that would be used to replace the kitchen cabinets. Petitioner testified that she usually does not ask the management for repairs except when the bathroom ceiling fell. When questioned, petitioner testified that she called Hugo on the telephone. She knows his voice, so she knows it was Hugo that gave her permission over the telephone.

Petitioner testified that on March 28, 2019, Hugo “stopped the work.” After he stopped the work, he would not take her calls. Petitioner testified that she had spoken to Hugo about the stove back in January 2019 when her stove broke. She was given a replacement stove. The replacement stove lasted one month, and this was another time that petitioner spoke to Hugo. The next conversation she had with Hugo was her conversation about the kitchen cabinets.

Petitioner stated that she has been without a stove since March 2019. On or about November 21, 2019, DHPD issued violations for missing kitchen cabinets, sink, uncapped gas supply line, plaster and paint bathroom ceiling, kitchen ceiling and walls, missing floor tiles and electrical outlet. Petitioner testified that no work has been done in the kitchen since the violations issued. She continues to live without kitchen cabinets, a sink or a stove.

Francia Madera, petitioner’s daughter, was called as a witness and was sworn in. She testified that she lives in the apartment with her mother. She testified that Alex, the superintendent, removed the stove in order for the cabinets to be removed. Respondent did not cross-examine this witness.

Respondent’s Testimony

Respondent-owners called petitioner as its first witness. Petitioner was asked to identify her lease. Petitioner identified the lease and stated that she has lived in the apartment for the last 45 years. The lease dated March 23, 1977 was admitted into evidence. No further questions were asked of the petitioner regarding the lease.

Respondent-owners called Hugo Barrio as its second witness. Mr. Barrio was sworn in and testified that he is employed by United Management and they are the owners of the apartment. They take care of the apartment for the company. Mr. Barrio testified that “petitioner called many times about cabinets.” He stated that he went to the apartment, looked at the cabinets, “believe [sic]them to be ok” and did not believe that they had to be changed. Mr. Barrio testified that he did not give permission to replace the cabinets. Mr. Barrio testified that he did not know about the superintendent removing the stove.1

On cross-examination, Mr. Barrio testified that he is not always notified when the superintendent does work because Almir “does many things in the building.” Mr. Barrio does not remember what repairs the superintendent has done in petitioner’s apartment in the past.

Discussion:

I. Correction of Violations

The violations issued by DHPD have not been corrected. Since November 2019, respondent has been on notice that petitioner is without a kitchen sink, kitchen cabinets and a stove. No steps have been taken by the respondents to correct the violations. No steps have been taken to allow petitioner to correct the conditions. This impasse cannot possibly benefit either side. On the one hand, the respondent is subject to civil penalties that may exceed the cost of doing the repairs. On the other hand, petitioner is denied a basic service required under the Housing Maintenance Code (HMC) and pursuant to her rent stabilized lease.

The violations of record must be corrected. Failure to correct the violations may result in the imposition of civil fines and penalties.

The Court finds that petitioner’s testimony was credible. Her account of what happened was clear and believable. Petitioner contacted the building manager and asked for permission to replace the kitchen cabinets. Once she was given verbal permission, petitioner proceeded to have the kitchen cabinets removed so that they can be replaced. After the cabinets were removed, Mr. Barrio informed petitioner that she had to contact the legal department before she continues the work. Petitioner attempted to follow the directives, but she was ignored. The situation was just allowed to fester. No sink, no stove, no kitchen cabinets, no usable kitchen.

Petitioner wanted to replace the kitchen cabinets at her own expense. There was no explanation or reason as to why the permission to replace the cabinets could not be given. There was no testimony that the cabinets were antique, special or that they could not be replaced. Nor was there any testimony as to the value of the cabinets. Mr. Barrio testified that he examined the cabinets, however, there were no notes or pictures showing the condition of the cabinets. Mr. Barrio simply stated that the cabinets were “good.” The apartment owner may have benefited by the replacement of the kitchen cabinets at petitioner’s expense.

The testimony offered by Mr. Barrio was not credible. He could not remember how many times or when he visited the apartment. He did not have any notes, work orders or any other business record as to the apartment and its condition. There was no testimony about alternations that would change the layout of the apartment. There was no testimony that replacing the kitchen cabinets would impose an economic hardship on the owner. Indeed, the petitioner was ready to foot the bill for replacing the kitchen cabinets and the stove. There was no testimony that replacing the kitchen cabinets would disrupt the functioning of the building, or the daily activities of other tenants or render the apartment unmarketable or uninhabitable.

II. Harassment

Respondents’ actions rise to the level of harassment and demonstrate acts that could and would have the effect to cause petitioner, a long-term tenant, to pack up and move out, or worse to be evicted. This is a novel issue, where the petitioner undertakes the cost of repairs and replacement and turns into a harassment claim.

Why would there be such a refusal to address and correct a condition which the petitioner was willing to pay for out of her own pocket? Could better kitchen cabinets make living in the apartment more comfortable and less likely for petitioner to want to move out? Petitioner has a 45-year tenancy. Her adult daughter lives with her, and petitioner may want to stay longer with an improved kitchen. The downside for the owner maybe that this rent stabilized tenant may be more comfortable with working kitchen cabinets. Being more comfortable in the apartment is reason to continue residing in the rent stabilized apartment. While the apartment is rendered habitable at the expense of the rent stabilized tenant. The apartment may not be as attractive in the real estate market because it is occupied. This scenario is unusual to the extent that instead of seeking repairs, petitioner offered to cover the cost to get the job.

This case was commenced before the COVID-19 pandemic. The continuing COVID-19 pandemic makes the necessity of having a working kitchen even more pressing. The ability to stay inside and cook meals at home is more important than ever to prevent COVID-19 exposure. Despite the pandemic and despite the open DHPD violations, no steps have been taken to restore the kitchen. Instead, respondent now seeks to evict the petitioner in a holdover case.

Section 27-2005 of the NYC Admin Code states that “[t]he owner of a dwelling shall not harass any tenants or persons lawfully entitled to occupancy of such dwelling.” Harassment is defined as “any act or omission by or on behalf of an owner that causes or is intended to cause any person lawfully entitled to occupancy of a dwelling unit to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy” (NYC Admin Code §27-2004 [a][48]). Harassment includes “repeated interruptions or discontinuances of essential services, or an interruption or discontinuance of an essential service for an extended duration or of such significance as to substantially impair the habitability of such dwelling unit” NYC Admin Code §27-2004 [a][48][2][b], and “an interruption or discontinuance of an essential service that (i) affects such dwelling unit and (ii) occurs in a building where repeated interruptions or discontinuances of essential services have occurred “NYC Admin Code §27-2004 [a][48][2][b-1]. Upon a finding of harassment, tenants may seek an order from a court restraining an owner from engaging in such conduct, and to impose civil penalties of not less than $2,000.00 and not more than $10,000.00 NYC Admin Code §27-2115 [m][2].

Petitioner does not need to establish intent. NYC Admin Code §27-2004(a)(48)(ii) states that the term harassment “includes one or more of the following acts or omissions, provided that there shall be a rebuttable presumption that such acts or omissions were intended to cause such a person to vacate such dwelling unit or to surrender or waive any rights.”

In Cartagena v. Rhodes 2 LLC, 2020 NY Slip Op 30290(U); 2020 NY Misc. Lexis 458, in an analysis of a harassment claim, the Court examined the “repeated interruptions of gas, heat, running water, and hot water. Such interruptions of essential services fit squarely into the definition of harassment.” See, Dani Lake LLC v. Torres, 64 Misc.3d 1231(A) (NYC Civ. 2019); Butler v. Thomas, 200 NY Slip Op 20230 (NYC Civ. August 2020).

Petitioner has established a prima facie case of harassment. Harassment is not always blatantly manifested; they become evident as insidiously intertwined and tangled with other events. Repairs, lack of repairs or interruption of essential services are a form of harassment. This harassment finding could have been avoided by doing repairs or providing essential services. While petitioner arranged for the removal of the stove and the kitchen cabinets, she did so with the verbal consent and knowledge of the managing agent. Petitioner’s testimony that she was given permission to replace the kitchen cabinets was credible and dispositive. The testimony that consent was not given, is not credible.

Respondent is directed to correct the violations and restore the kitchen forthwith. In the alternative, respondent must allow petitioner to proceed with the plan to replace the kitchen cabinets at her expense. All work must follow the NYC Building Code, House Rules and all other applicable rules including COVID-19 safety protocols.

This Court finds that petitioner was granted verbal approval to replace the kitchen cabinets. Rescinding said approval after the cabinets were removed, and the apparent refusal to take any steps to correct the situation, constitutes harassment under the law.

The Court is mindful that during this pandemic all sides have been affected and impacted in ways that we may not fully be able to assess at this time. The complete disregard, however, for essential services recognized under the Housing Maintenance Code cannot be denied. Petitioner has been without a kitchen since March 2019. As such, the Court is required to impose a civil penalty under the harassment law. The law requires a minimum penalty of $2,000. The penalty of $2,000 is imposed against the respondent 76-66 Austin Owners Corp.



Tuesday, January 19, 2021

NEW RULES EFFECTIVE FEBRUARY 1?


In a recent email, the NYS Academy of Trial Lawyers has advised attorneys that pursuant to Administrative Order 270/20, many Commercial Division Rules will now be incorporated into the Uniform Rules for the Supreme Court and County Court. As of today, this order is not listed on http://nycourts.gov/latest-AO.shtml but the NYS Academy of Trial Lawyers has summarized some important changes as follows:

"- Appearance Counsel MUST have knowledge and authority of the case (Exhibit A)

- Interrogatories LIMITED to 25 in number (Exhibit G)

- LIMIT on number of depositions and number of hours per deponent (Exhibit J)

- Sanctions PERMITTED for non-compliance with a discovery schedule (Exhibit M)

 - Prior to submission of a discovery motion, the attorney MUST attempt to resolve discovery issues. In the event a motion is the only means to resolve the issue, the attorney affirmation MUST include attempts at resolution as set forth in rule 14 (Exhibit N)

 - Adjournments of conferences will only be granted UPON A SHOWING OF GOOD CAUSE (Exhibit P)

 - Parties may appear by electronic means when requested and the Court is encouraged to grant such requests (Exhibit P)

 - LIMIT as to the length of motion papers (submitted in Rule 17) (Exhibit R)

 - SIGNIFICANT CHANGES to how motions for summary judgment are prepared (eg. now movant is required to annex a short concise statement to demonstrate no issue of fact) (Exhibit U)

 - Important CHANGES TO TRIAL PRACTICE and Procedure regarding exhibits, witnesses, trial memoranda and testimony (Exhibit X through BB)

 - STAGGERED COURT APPEARANCES - in order to increase efficiency, courts will schedule each appearance at a set time interval of time. To ensure all parties receive notice of the appearance, counsel on every matter is required to exchange email addresses and notify each other of notices of court appearances. (Exhibit CC)"



 

Thursday, January 14, 2021

DRUG ADDICTION AND PARENTING


Matter of D.J., NYLJ January 04, 2021, Date filed: 2020-09-30, Court: Family Court, Bronx, Judge: Judge Ronna Gordon-Galchus, Case Number: NN-06164-65/20 (italics supplied):

"....In the case at bar, the extensive documentary evidence, coupled with the in-court testimony requires continued removal of the subject children, as they would be at “imminent risk” if returned to RM’s care. RM has a long, protracted history with child protection services in Florida, an extensive history of using flakka and cocaine, and her two older, though very young, children have been adopted by her mother who resides in Florida. RM tested positive for cocaine and marijuana, as did SC F.J. at the time of her birth in February of 2020 and RM admitted using cocaine during her pregnancy with F.J. during her testimony. The child D.J. is 16 months old and F.J. is 7 months old, and thus particularly vulnerable.

In evaluating and assessing RM’s testimony, it is apparent that she yearns to have her children return to her care. However, she lacks insight as to the level of care, monitoring, and long-term planning required to address her drug addiction. Although she submitted to drug testing through her out-patient program, such testing was not random, as she knew what days screenings would occur. A review of the lab results submitted by Respondent as Exhibit C show that the screening was done nearly exclusively on Tuesdays and Thursdays. It was not until a time in August 2020 that she began to comply with random testing by the Agency. The evidence shows that she failed to submit to testing by the Agency for the entire month of July as well as August 11 and 13. Her reasons for not being compliant, such as she may have been out of town, had doctor appointments or school were not persuasive and were self-serving. Her testimony that she went to Atlantic City to celebrate her birthday with RF and therefore was not available for screening demonstrates an example of her failed insight and ability to fully appreciate her addiction. Although “laudable” that she completed the outpatient program at Samaritan Village, “that participation does not successfully overcome her prior inclinations and behavior patterns, despite what may be the best intentions.” In re Kimberly H., 242 A.D.2d 35, 39 (1st Dept. 1998); Matter of Nyasia J. v. Francesca J., 41 A.D.3d 478, 479 (2nd Dept., 2007). The Florida child protective history documents are alarming. RM abandoned her older children for periods of time without communication as to her whereabouts. The entries state RM “has a history of leaving the children for long periods. Every time the mother leaves, she gives different explanations.” She required hospitalization when she was six months pregnant with her second child for testing positive for cocaine. This also discredits her affidavit which states: “F.J. was my 10th pregnancy. Right before D.J. I had two miscarriages. I did not use any drugs during the pregnancies of any of my other kids.” When trying to explain this inconsistency, she stated that she “figured my two older kids aren’t part of this case. That’s why I put that in the affidavit.” During her testimony, she referred to the positive toxicology in February of 2020 as a “hiccup,” and her reason for using cocaine in January and February of 2020 was a source of self — medication since she was in pain during her pregnancy. She denied using drugs past 2016, but had a positive test for cocaine in January 2017, as reflected in the reports from Florida. RM’s 2018 psychiatric evaluation reports that “she claims to be sober since April 2017.” RM was in two prior inpatient drug rehabilitation programs in Florida during 2016, 2017 and 2018. She testified that she was court-ordered by “her criminal judge” and thus did not enter of her own volition. Her affidavit specifically states that she was told to either go into an inpatient program or face criminal charges. Although the evidence indicates she was recommended for an inpatient program during her CASAC evaluation, she denied that. She states in her affidavit, “I did not need inpatient.”

This Court had ordered that RF and RM visit the children separately. However, there were times when the two visited the children together. Case planner O. states in her affidavit that when RF was told the visit had to be separate, he replied, “No. We are not doing that.” Although reasons offered for this violation of the court order were that they shared one car, RM also testified that the car is in her mother’s name and belongs to her. Caseplanner O testified that case planner C notified her that during a visit he smelled marijuana emanating from the car and RF D.J.’s “eyes seemed bloodshot.” RF has not complied with agency’s referrals and most recently tested positive for marijuana on July 27 and marijuana and cocaine on August 6, 2020. RF denied using cocaine when he testified on September 14th. Both RM and RF testified that RF travels often and now resides most of the time in Connecticut. However, both he and RM are the lease holders of their current residence, a lease which RM stated expires on September 29, 2020. Both left Florida in 2019 and came together to New York. The child protective documents from Florida state that RM was not interested in reunifying with her older children by moving into her mother’s home where the children lived. Rather, when she was discharged from the halfway house in June of 2018 and “chose to move in with her boyfriend rather than moving in with the MGM.” RM was reported as saying, “I do not want to choose between my children and the man I am about to marry.” At the hearing she denied making that statement and testified. “No, I never told them that. Not to my knowledge.” She testified that she and her older daughter A (not a subject child) visited RF at a halfway house and that he had recently been released from jail, but stated that she could not recall why he had been in jail. RF testified that he was at the halfway house because he violated his probation, and that he was on probation for delivery of cocaine which he admitted was selling cocaine. This Court does not credit RM’s testimony that she could not recall this information. She also denied telling Florida authorities that RF was a drug user, though the Florida documents state, “she reported that her boyfriend whom they call ‘D.J’ is also a drug user.” This Court does not credit RM’s testimony that she cannot recall this information about RF. Though not legally married, both RF and RM refer to each other as husband and wife. RM introduced an August 2018 Florida Court order (Exhibit H) to show that she had unsupervised visits with her older children and there was no prohibition about having RF present. However, the Florida child protective documents include entries that RM was told by the judge that her boyfriend (RF) was not to be present during visits. RM denied this. A new abuse case was called in October 2018 because RM took her daughter, A, to the halfway house to visit RF. A disclosed to her teacher that while she was at her mother’s boyfriend’s home, her mother told her to “put the pillow over my head so I couldn’t see anything.” It should also be noted that Exhibit H has a handwritten entry which states, “the caregiver does not believe the mother has gained insight,” and that the “caregiver believes mother has deserted the family.”

In the past RM has been prescribed various psychotropic medication such as Seroquel, Lexapro, Zoloft, Wellbutrin, and Prozac. She had a psychiatric evaluation in October 2018 where it was reported that RM had a history of being diagnosed with depression, anxiety, and PTSD. It was recommended that she see a psychiatrist monthly to monitor her mood and determine her need for medication. RM did not recall having this evaluation. The report also indicates that RM stated, “I was on medications. I stopped them last April. I do not want to be on meds. I want to see if I can handle it on my own. My depression comes and goes.” In evidence as Respondent’s A is a letter dated August 12, 2020 from RM’s therapist Luiz Lopez. Mr. Lopez did not testify. His letter states that RM had an initial intake appointment with him on June 24, 2020 and attended four sessions and requested that two be rescheduled. The letter indicated that he discusses coping skills and managing stress. She is engaged and asks questions. No other details were provided. This letter was extremely limited in nature. When questioned about taking medication, RM testified:” Me, personally, I don’t believe in medication and I don’t want to take no type of medication.” She also testified that when her therapist asked if she wanted to be referred to a “psych doctor” because I let him know how I’m always in my head” she told him “I don’t need so (sic) psych doctor.” When questioned about her therapy and asked how long she will continue with therapy, she stated, “I am going to do that for a while. I mean, not a long period, but I’m going to continue with it.”

Although the attorney for the child now supports the 1028 application, she had opposed overnight visitation a few months ago and requested that the ICPC process begin so the children can reside with the maternal grandmother in Florida.

The agency’s concerns that RM’s ability to enforce an order preventing RF from being present is only one consideration in this matter. RM’s long standing drug addiction, her failure to address her true needs and the reason for the removal, as well as her failure to report for random tests puts the children at imminent risk. See Matter of Audrey L., 147 A.D.3d 838 (2nd Dept. 2017). RM’s compliance in attending a short outpatient program and her limited engagement in therapy does not negate imminent risk. Her testimony clearly indicates that she wants to dictate the course of services as opposed to getting what she needs for long term recovery. When confronted with questions which are uncomfortable, she denies or does not recall. When RM’s attorney asked if she was willing to participate in additional referrals if asked by ACS, her initial response was, “I mean if I have to. I mean if it’s — yes. I’ll say yes. Yes.” This response also reflects RM’s reluctance at this time. RM often attempted to make excuses for herself and her response to answers were indicative that she lacks insight to the severity of her addiction. Her denial or lack of knowledge of RF’s behavior, her belief that he will not violate any court orders, and her statement in 2018 statement about having to choose between RF and her children further emphasize her inability to be ready to care for her children.

Unlike the situation in In re Gavin S., 52 Misc. 3d 1221(a) (Kings County Family Court 2016), which counsel for respondent referred to in summation, RM in the case at bar lacks “insight” into her “treatment needs.” Similarly, counsel’s reliance on Matter of David G., 29 Misc.3d 1178, 1186 (Kings Family Court 2010) and Matter of Baby Boy D., 127 A.D.3d 1079 (2nd Dept. 2015) is not comparable, as removal in the instant case is not “based on assumptions, guesswork and unsupported predictions of future behavior” but rather after assessing the documentary and testimonial evidence including RM’s credibility, behavior and lack of insight.

The road to recovery and rehabilitation is a long journey. RM has begun that process. It is paramount that she continues to take steps forward, toward the goal of reunification. She has struggled and continues to struggle with her drug addiction. Each relapse and reluctance to participate in a full scope of services and monitoring is a step backwards. This Court does not believe that RM has the current protective capacity to care for F.J. and D.J.. RM must be open to participate in intensive drug counseling, a mental health evaluation which includes any recommendations for medication management, and long-term therapy to address her drug and mental health issues. However, in order to be successful, she must participate in these services because she wants to, not because of an order. She left Florida and came to New York, but now wishes to return to Florida. Her own stability must be addressed before she can care for her own children. F.J. and D.J. are infants and do not have the protective capacity to ensure their own safety in their mother’s care. See Matter of Novelise M., 54 Misc.3d 1202(A) (Bronx Family Court, 2016). RM has made some steps on the road to reunification, but this journey is very much still in process.

This Court finds that continued removal of the children from RM is necessary to avoid imminent risk to their life or health. This decision is made after a thorough evaluation of the documentary and testimonial evidence and counsels’ arguments. At this time, orders cannot be put in place to mitigate that risk. However, the Court does take notice both of RM’s engagement with some services, her recent compliance with random testing, and the importance of the bonding process which is critical for these very young children. Therefore, some sandwich unsupervised community visits will be permitted under the following conditions."



Wednesday, January 13, 2021

PARENTING TIME DURING COVID


J.R. v. S.R., NYLJ January 04, 2021, Date filed: 2020-11-18, Court: Family Court, Nassau, Judge: Judge Linda Mejias:

"....The issues regarding the Petitioner’s missed parenting time arose during earlier part of the course of the Covid-19 Pandemic, and specifically at or around the time that transmission was at its peak and information was still being gathered at the highest levels. During that time, and even so now, there was much confusion and uncertainty. Parents in non-intact families were forced to weigh the safety and health of their household members against releasing children so as not to impinge upon the rights of both parents and children to have time with each other. The correspondence submitted by both parties demonstrates the parties’ uncertainty as to the best course of action with respect to the Petitioner effectuating his parenting time with their son. Strict adherence to the parenting time schedule was difficult at that time, if not impossible. The Court is not convinced that the Respondent maliciously withheld their son, but rather the parties both chose to modify the Petitioner’s access based upon the restrictions and reality of the pandemic. Therefore, the Court does not find that she violated Stipulation of Settlement of the Judgment.

Accordingly, branch “1″ of the Petitioner’s motion is hereby DENIED.

Branch “2″ of the Petitioner’s motion seeking and order granting the Petitioner the right to exercise his parenting time with the parties’ children in accordance with the parties’ Stipulation of Settlement, and Judgment of Divorce is hereby GRANTED, and the parties shall endeavor to abide by both the Stipulation of Settlement and Judgment of Divorce as strictly as possible given the rise in infection rates of COVID-19 at this time, and they shall communicate with each other with as much as advance notice as possible if modifications need to be made to ensure the health and safety of the Children, their respective household members, as well as the community at-large.

Branch “3″ of the Petitioner’s motion seeking an order granting the Petitioner reasonable make up parenting time is hereby GRANTED, and the parties are directed to determine the dates and times for such “make-up” parenting through counsel.

...."



Tuesday, January 12, 2021

UNLICENSED CONTRACTORS CAN RECOVER IF IT'S A NEW HOME?


Caveat emptor when you build a new home on your existing land. 

BREAD OVER BREAD CORP. v. TARDIEU, 2020 NY Slip Op 51537 - NY: Supreme Court December 22, 2020:

"......plaintiff contends, among other things, that the provisions of the General Business Law and the Suffolk County Code upon which defendant relies — GBL Article 36-A ("Home Improvement Contracts") and Suffolk County Code Chapter 563 ("Licensed Occupations") — are inapplicable because the claimed contract involved the construction of a new house, for investment purposes and which defendants did not intend to occupy, and not the construction of a "custom home" — see GBL 770(7) — or a residential "home improvement" — id., 770(3).

.....

Failure to comply with GBL Article 36-A and Suffolk County Code Chapter 563. If, as claimed by defendants, the alleged contract and its subject matter is governed by Article 36-A of the General Business Law and plaintiff was required to hold a home improvement license pursuant to Suffolk County Code Chapter 563, then plaintiff is precluded from recovering payment from defendants, whether under the claimed contract or for quantum meruit (see Durao Concrete v. Jonas, 287 AD2d 481, 731 NYS2d 203 [2d Dept 2001]; citing B & F Bldg. Corp. v. Liebig, 76 NY2d 689, 563 NYS2d 40 [1990]; Richards Conditioning Corp. v. Oleet, 21 NYS2d 895, 289 NYS2d 411 [1968]; Todisco v. Econopouly, 155 AD2d 441, 547 NYS2d 103 [2d Dept 1989]; see also Enko Const. Corp. v. Aronshtein, 89 AD3d 676, 932 NYS2d 501 [2d Dept 2011]). In that event, defendants will have made a sufficient prima facie showing of entitlement to judgment as a matter of law on the issue of whether plaintiff can recover on a putative home improvement contract when it is not a licensed contractor[2]. Further, because the claimed contract does not contain the elements required in a home improvement contract (see GBL § 771[a]-[h]), it would be unenforceable for that reason, as well (see generally Consigliere v Grandolfo, 30 Misc 3d 1207(A) [NY City Ct 2011] ("The statute's plain purpose is to protect homeowners from unscrupulous, venal home improvement contractors. It protects them by, among other things, requiring a written contract containing specific language and items to be included, including granting certain rights to the homeowner. . . ."); compare Johnson v Robertson, 131 AD3d 670, 672 [2d Dept 2015]). Whether plaintiff's claim is precluded by the provisions of GBL Article 36-A and Chapter 563 of the Suffolk County Code presents issues of fact that cannot be fully resolved on the current record; as was stated by the Appellate Division in Enko Const. Corp. v. Aronshtein, supra, which involved a similar provision of the Nassau County Administrative Code:

Although the licensing requirement does not apply to the construction of a new home, interpreting a functionally equivalent local law, this Court concluded that "[t]he statutory exemption for `construction of a new home' is limited to the creation of a structure, where none previously existed... Even if a dwelling is stripped to the frame and rebuilt, the work constitutes the renovation of an existing home, not the erection of a new one" (J.M. Bldrs. & Assoc., Inc. v. Lindner, 67 AD3d at 740, 889 N.Y.S.2d 60 [some internal quotation marks omitted] 89 AD3d at 678; see also Blake Elec. Contr. Co., Inc. v Paschall, 222 AD2d 264, 265 [1st Dept 1995] (same as to the exemption in New York City Administrative Code § 20-386(2) for "construction of a new home").

......."



Friday, January 8, 2021

NEW RULES - MORTGAGE FORECLOSURE


Signed into law on December 23, 2020, paragraph (c) of section 1305 of the Real Property and Procedures Law is amended by expanding the definition of tenants entitled to notice of rights from those who were lawful tenants at the time the foreclosure was commenced to those who are lawful tenants during the pendency of the foreclosure action; and because it provides "for an effective date on the first of January following the date on which the proposal becomes law with the terms of the act to apply to actions commenced on or after such date.", it is applicable now.
"JUSTIFICATION:

In 2009, via chapter 507, New York State enacted the New York State Governor's proposal into law that included various provisions relating to foreclosure. One of the provisions of that law added section 1305 of the Real Property Act and Proceedings Law (RPAPL). This provision provides that tenants residing in properties under foreclosure have the right, as long as they continue to pay rent, to remain in the property for the greater of 90 days after the foreclosure sale, or the remainder of their lease, unless the buyer intends to occupy the property. 

RPAPL 1305, however, defines a tenant as someone who was lawfully residing in the home under foreclosure at the time the foreclosure was commenced. Therefore, lawfully residing tenants who enter into leases with landlords after the commencement of a foreclosure action and during the pendency of the foreclosure, who were not tenants at the time the foreclosure was commenced, are not covered by the notice requirement of RPAPL 1305. This was an oversight.

RPAPL section 1305 was intended to establish protections for tenants in foreclosed homes. The written notice of rights under this section was intended for all lawfully residing tenants during the pendency of the foreclosure. Since foreclosure proceedings often take longer than a year to complete, tenants who enter into leases while the foreclosure is pending do not know of their rights, and find themselves without the benefit of the notice provision intended for them under RPAPL 1305.
This measure would remedy this oversight to fulfill the intent of the original law."

Thursday, January 7, 2021

LIQUIDATED DAMAGES OR PENALTY - THE DISSENT



TRUSTEES OF COLUMBIA UNIV. IN CITY OF NY v. D'AGOSTINO SUPERMARKETS, INC., 2020 NY Slip Op 6937 - NY: Court of Appeals November 24, 2020:

"DiFIORE, Chief Judge (dissenting).

After D'Agostino Supermarkets, Inc., the lessee of property owned by Columbia University, breached the lease by failing to pay rent for more than seven months, the parties settled their dispute by entering into a Surrender Agreement which contained certain conditions. If D'Agostino made timely installment payments totaling about $262,000, representing the rent it already owed but had failed to pay, it would be relieved of certain other obligations stemming from its breach of the lease. However, if it failed to timely make the payments, D'Agostino would not "be released and relieved from" the claims Columbia possessed as a result of the breach of the lease, particularly the right (as described in the Surrender Agreement) to collect "the aggregate amount of all Fixed Rent, additional rent or other sums and charges due" during the remainder of the lease term (about two years). It is undisputed that, after entering the Surrender Agreement, D'Agostino again failed to uphold its end of the bargain, breaching the condition to timely make the back-rent installment payments. Yet the majority concludes, as a matter of law, that D'Agostino—a well-counseled, sophisticated party who freely negotiated the terms of the settlement—should be relieved of its obligation to accept the consequences of that second breach. This result is incompatible with our freedom of contract precedent and the strong public policy favoring enforcement of settlement agreements. Worse yet, I fear it will chill future efforts to resolve lease disputes without litigation—to the detriment of distressed tenants. Therefore, I respectfully dissent.

As this Court recently reaffirmed in 159 MP Corp. v Redbridge Bedford, LLC, "`[f]reedom of contract prevails in an arm's length transaction between sophisticated parties . . ., and in the absence of countervailing public policy concerns there is no reason to relieve them of the consequences of their bargain'" (33 NY3d 353, 359 [2019], quoting Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 695 [1995]). The public policy underlying freedom of contract is twofold: "[b]y disfavoring judicial upending of the balance struck at the conclusion of the parties' negotiations" it "both promotes certainty and predictability and respects the autonomy of commercial parties in ordering their own business arrangements" (159 MP Corp., 33 NY3d at 359-360). Accordingly, "`when parties set down their agreement in a clear, complete document, their writing should . . . be enforced according to its terms'" (159 MP Corp., 33 NY3d at 358, quoting Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]). This principle of New York contract law has "special import" in real property transactions where, as here, "commercial certainty is a paramount concern" (159 MP Corp., 33 NY3d at 359, quoting Vermont Teddy Bear, 1 NY3d at 475).

The public policy favoring freedom of contract applies with particular force to the Surrender Agreement—which is a settlement agreement crafted by the parties to resolve their dispute without litigation. Settlement agreements "are judicially favored and may not be lightly set aside" (IDT Corp. v Tyco Group, S.A.R.L., 13 NY3d 209, 213 [2009] [citation omitted]). Strict enforcement of settlement agreements serves multiple important purposes, consistent with those underlying freedom of contract. There is a "societal benefit in recognizing the autonomy of parties to shape their own solution to a controversy" and assurance that their agreements will be honored provides them "finality and repose upon which [to] order their affairs" (Denburg v Parker Chapin Flattau & Klimpl, 82 NY2d 375, 383 [1993]). Moreover, settlement agreements are favored because they also promote "efficient dispute resolution" (IDT Corp., 13 NY3d at 213), "avoid[ing] potentially costly, time-consuming litigation and preserv[ing] scarce judicial resources" as "courts could not function if every dispute devolved into a lawsuit" (Denburg, 82 NY2d at 383; see also IDT Corp., 13 NY3d at 213). As Columbia has consistently argued throughout this litigation, these policies, and the significant interests they protect, should guide the resolution of this dispute between two sophisticated, counseled commercial entities.

The majority casts these principles aside, failing to acknowledge that the Surrender Agreement constituted a settlement of the claims Columbia possessed upon D'Agostino's breach of the lease, which included a right to collect—not only unpaid back rent—but also future rent owed until the conclusion of the lease term, even if D'Agostino vacated the premises (Columbia had no obligation under the lease to relet the property). Columbia agreed to settle under terms that significantly discounted the amount it would collect on account of D'Agostino's breach of the lease, but did so only on the condition that D'Agostino timely make eleven installment payments representing the back rent D'Agostino already owed at the time the parties entered the Surrender Agreement. Because that rent was several months overdue, it is no surprise that Columbia required the inclusion of a clause that "TIME SHALL BE OF THE ESSENCE with respect to the [due] dates" for those installment payments. The parties' agreement could not be clearer that Columbia waived certain claims it possessed arising from D'Agostino's breach of the lease only if this condition—timely payment of the installments—was met. Under the plain language of the agreement, upon D'Agostino's default or failure to timely cure upon notice, two things would occur: D'Agostino would immediately be obligated to pay the future rent due under the lease (among other associated payments) and it would "no longer be entitled to be released and relieved from and against any Released Claims." Of course, it is undisputed that D'Agostino breached yet again.

Notwithstanding the context of the Surrender Agreement and its plain language, the majority mistakenly concludes that the Surrender Agreement should be interpreted without reference to the prior breach of the lease and that D'Agostino was relieved of all obligations under the lease even if it failed to timely make the installment payments. Although the Surrender Agreement "terminated the lease," it most certainly did not unconditionally release the tenant of all obligations flowing from its breach of that prior agreement, and the majority's assertion that Columbia seeks to "enforce a non-existent lease under the guise of damages for a breach of a separate contract" (majority op at 8) misses the mark. Columbia does not attempt to enforce the lease—instead, it seeks to enforce the contingent remedy the parties adopted in the Surrender Agreement in the event D'Agostino failed to timely make the Surrender Payments.

The practical result of the majority's holding is that Columbia University received nothing in exchange for its agreement (1) to give the tenant additional time to make back rent payments that were already overdue, provided those payments were timely made, and (2) to forfeit its right to collect future rent from D'Agostino for its breach of the lease. Under the majority's analysis, the carefully negotiated consequence of D'Agostino's continued failure to pay the back rent is unenforceable; indeed, there is no consequence for D'Agostino's breach of the Surrender Agreement and D'Agostino is rewarded for serial breaches of valid and binding contracts. The majority accomplishes this result through a strained application of this Court's precedent related to liquidated damages clauses, reasoning that the provision reinstating D'Agostino's obligation to pay future rent in the event of a second breach operates as an unenforceable penalty because the damages D'Agostino would be obligated to pay upon breach of the Surrender Agreement were substantially greater than the discounted damages Columbia agreed to accept in the form of promptly tendered installment payments. This remedy provision in the contract is best understood as a component of a settlement after a breach—not a liquidated damages clause crafted at the beginning of a contractual relationship. Nonetheless, even viewing the contingent language as a liquidated damages clause, when properly interpreted in the context of the entire agreement, it is not an unenforceable penalty justifying a deviation from application of our bedrock freedom of contract principles.

As we have recognized, the public policy favoring freedom of contract can be "overridden by another weighty and countervailing public policy" (159 MP Corp., 33 NY3d at 360). The majority concludes that such a countervailing public policy is at play here, viewing the contingent remedy as an unenforceable liquidated damages clause. But "[a]s a general matter parties are free to agree to a liquidated damages clause `provided that the clause is neither unconscionable nor contrary to public policy'" (172 Van Duzer Realty Corp. v Globe Alumni Student Assistance Assn., Inc., 24 NY3d 528, 536 [2014], quoting Truck Rent-A-Ctr. v Puritan Farms 2nd, 41 NY2d 420, 424 [1977]). Liquidated damages provisions serve an important purpose because they allow parties to estimate—in advance of a default—the extent of the injury resulting from the breach of the agreement and are, therefore, particularly useful "where it would be difficult, if not actually impossible, to calculate the amount of actual damage" (Truck Rent-A-Ctr., 41 NY2d at 424). Nevertheless, "public policy is firmly set against the imposition of penalties or forfeitures for which there is no statutory authority" (id.)—and thus, a liquidated damages clause that operates as a penalty will not be enforced. A liquidated damages clause operates as an impermissible penalty only when it provides for damages "plainly or grossly disproportionate to the probable loss," as such a penalty "is not intended to provide fair compensation" (id. at 425). By comparison, it is enforceable when "the amount liquidated bears a reasonable proportion to the probable loss" (id.).

In this case, although the parties referred to the contingent remedy as a "liquidated damages clause," the label is ill-fitting. The public policy underlying our liquidated damages jurisprudence is simply not implicated in circumstances where, as in this case, there is no need to estimate the damages that might result in the event of a future breach because the breach has already occurred and the parties are crafting a settlement agreement. But even viewing the contingent remedy as a liquidated damages clause, the majority's conclusion that the provision reinstating D'Agostino's obligation to pay future rent is an unenforceable penalty because it provides for damages "exponentially disproportionate" to D'Agostino's outstanding Surrender Payments (approximately $1 million versus $176,000) adopts an overly simplistic view of the Surrender Agreement and fails to "giv[e] due consideration to the nature of the contract and the circumstances" in which it was entered, as our precedent requires (172 Van Duzer Realty Corp., 24 NY3d at 536)[6] . It is evident from the Surrender Agreement that the parties understood that D'Agostino's liability for breach of the lease was much greater than the value of the Surrender Payments. The obligations triggered if those payments were not timely made were not included merely as compensation for breach of the Surrender Agreement but were also intended to compensate Columbia for D'Agostino's earlier breach of the lease. Thus, an analysis of whether the damages set forth in the Surrender Agreement are grossly disproportionate to Columbia's probable losses requires consideration not only of the value of the Surrender Payments that D'Agostino failed to make, but also of the probable damages already set in motion by D'Agostino's prior breach of the lease, viewed from the time the Surrender Agreement was executed and not the date of the breach (see Truck Rent-A-Ctr., 41 NY2d at 425).

When the agreement was executed, Columbia possessed a right to pursue the full value of future rent payments until the conclusion of the lease term. At that time, there was no assurance that Columbia would sign a new tenant (and what costs might be incurred in that process), nor did the parties know the amount of rent Columbia might be able to negotiate or whether a new tenant would timely pay during the remainder of the original lease term. Thus, the remedy negotiated by the parties in the Surrender Agreement was directly premised on Columbia's rights under the lease, bears a "reasonable relation" to Columbia's probable actual harm, and was intended to fairly compensate Columbia for that breach (see generally Truck Rent-A-Ctr., 41 NY2d 420). Measured in a way that adequately recognizes the nature of the bargain struck in the Surrender Agreement, D'Agostino has not met its burden to show that the damages set forth in that agreement are so disproportionate as to operate as an unenforceable penalty (see generally JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 380, 385 [2005]).

It is irrelevant that Columbia's actual damages here may ultimately be different than the amount D'Agostino agreed to pay in the contingent remedy provision of the Surrender Agreement. The enforceability of a liquidated damages clause does not turn on whether the remedy that the parties contemplated before the breach occurred is identical to the damages actually suffered. To impose such a requirement would obviate the entire purpose of such provisions, which is to reasonably estimate the damages that might result, permitting the parties to avoid the costs and uncertainty of litigating damages in the event of a future breach. For this reason, the rough relationship between the remedy in the contract and the damages flowing from a breach must be assessed based on the terms of the agreement and the information the parties possessed at the time it was executed—not with the benefit of hindsight based on post hoc proof of damages actually incurred.

Refusing to enforce the contingent remedy that the parties contracted for in their settlement agreement injects uncertainty into commercial tenancy agreements and the settlement of disputes thereunder, increasing the parties' transaction costs. It also rewards a sophisticated, represented party for breaching its validly-entered agreements. This will discourage commercial landlords from agreeing to settlements of this nature, to the detriment of defaulting tenants like D'Agostino; limiting the damages recoverable when such settlements are breached to the discounted amount provided for in the restructured contract, even in the event of a new breach, removes any incentive for landlords to agree to settle by permitting tenants who have already defaulted to default again without recourse.

Because there was nothing unfair about the settlement crafted by these well-counseled sophisticated parties, public policy affords no basis to alter their contract. Since the back rent payments were already substantially overdue, Columbia reasonably sought assurance that D'Agostino would uphold its end of the bargain under the Surrender Agreement (something it failed to do under the lease). As reflected in the plain language of the agreement, Columbia was willing to forego pursuit of its then-existing right to collect both unpaid back rent and future rent only if D'Agostino timely made the back rent installment payments (the owner gave up its right to receive more money overall but would be assured of prompt payment of a discounted amount on a regular schedule, without the need for litigation). Of course, that is not what happened. By eliminating the element that induced the owner to give up its rights, the majority creates a distorted, one-sided settlement in which—despite its default—D'Agostino was able to enjoy the full benefit of the bargain. Because freedom of contract should "prevail[] in [this] arm's length transaction between sophisticated parties" (159 MP Corp., 33 NY3d at 359) and there is no countervailing public policy basis that would justify relieving D'Agostino of the bargain it struck in the Surrender Agreement, I respectfully dissent.

Order affirmed, with costs.

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[6] The majority reasons that the circumstances here are like that in 172 Van Duzer—but it then fails to grant the relief provided in that case, which did not declare the provision unenforceable but, rather, remitted for a hearing to explore whether the damages were "grossly disproportionate." In fact, 172 Van Duzer does not stand for the proposition that a provision is unenforceable merely because it required immediate payment of all future rent due under a lease. There, the acceleration clause was negotiated in advance of any breach, the default occurred early in the course of a long-term lease and, as the Court observed, strict enforcement of the provision would have resulted in a lump sum payment of eight years of future rent, not discounted to present value (24 NY3d at 536). Even then we did not void the clause but directed further litigation of the issue—a remedy Columbia seeks in the alternative here. The majority inexplicably fails to explain why the hearing deemed necessary in 172 Van Duzer is not afforded here, where the purported liquidated damages clause was negotiated after the tenant's initial breach with only about two years remaining on the lease.