Friday, November 26, 2021

MEDIATION & ARBITRATION


 

Wednesday, November 24, 2021

BE THANKFUL THIS HOLIDAY - IT'S THE LAW


 

Tuesday, November 23, 2021

THE EFFECT OF A FAILURE TO RECORD A SATISFACTION OF MORTGAGE AND SEEKING CLASS ACTION RELIEF


New York State Real Property Actions and Proceedings Law (“RPAPL”) § 1921 and New York Real Property Law (“RPL”) § 275. RPAPL § 1921 and RPL § 275 both require a mortgagee to execute a satisfaction of mortgage and arrange to have the satisfaction recorded within 30 days. Failure of the mortgagee to do so entitles the borrower to a penalty based on when the satisfaction was recorded.

The penalty was sought to be enforced in a class action. Maddox v. BANK OF NY MELLON TR. CO., NA, Court of Appeals, 2nd Circuit 2021:

"The Bank of New York Mellon Trust Company ("BNY Mellon" or "the Bank") appeals from an order of the United States District Court for the Western District of New York (Arcara, J.) denying its motion for judgment on the pleadings. The district court held that plaintiffs Sandra Maddox and Tometta Maddox Holley (the "Maddoxes") have Article III standing to seek statutory damages from the Bank for its violation of New York's mortgage-satisfaction-recording statutes (the "statutes"). N.Y. Real P. Law ("R.P.L.") § 275; N.Y. Real P. Actions & Proc. L. ("R.P.A.P.L.") § 1921. These statutes require mortgage lenders to record satisfactions of mortgage (also known as "certificates of discharge") within thirty days of the borrower's repayment; a failure to record renders the lender "liable to the mortgagor" for escalating statutory damages in amounts dependent on the delay in the ultimate filing. Here, the Bank did not record the satisfaction of the Maddoxes' mortgage, in an amount of over $50,000, until almost one year after full payment was received—nearly eleven months later than the law allows. For the filing of a satisfaction over ninety days after discharge, the lender becomes liable to the mortgagor for $1,500. R.P.L. § 275(1); R.P.A.P.L. § 1921(1). The Maddoxes sued to collect that penalty and to represent a putative class of similarly wronged borrowers.

The district court certified for interlocutory appeal the question whether the Maddoxes have Article III standing to sue the Bank for the statutory damages and other relief. Our initial opinion on this appeal, Maddox v. Bank of N.Y. Mellon Tr. Co., N.A., 997 F.3d 436 (2d Cir. 2021), was the subject of a motion for rehearing in light of the intervening authority of TransUnion LLC v. Ramirez, — U.S. —, 141 S. Ct. 2190 (2021). After briefing on the impact of TransUnion, we grant the motion for rehearing and issue the instant opinion.

We now hold that the Maddoxes' allegations fail to support Article III standing, and that they may not pursue their claims for the statutory penalties imposed by the New York Legislature in federal court.

Accordingly, we vacate the district court's order denying BNY Mellon's motion for judgment on the pleadings and remand with instructions that the case be dismissed.

BACKGROUND

I. The complaint's allegations.

The Maddoxes' complaint alleges the following facts, which we accept as true for purposes of this appeal. See Lynch v. City of New York, 952 F.3d 67, 74-75 (2d Cir. 2020).

On October 6, 2000, sisters Sandra Maddox and Tometta Maddox Holley entered into a mortgage loan with Aegis Mortgage Corporation (the "Loan"). The mortgage and assignment were recorded with the Erie County Clerk's Office. The mortgage encumbered the Maddoxes' property at 149 Hampshire Street, Buffalo, New York 14213 (the "Property"). The Loan was later assigned to BNY Mellon. In September 2014, the Maddoxes sold the Property to individuals who are not parties to this suit.

On or about October 5, 2014, the Loan was fully paid and the debt discharged. However, BNY Mellon failed to file a satisfaction of mortgage with the Erie County Clerk's Office until nearly one year later on September 22, 2015.

BNY Mellon's failure to record the discharge within thirty days of payment violated New York's mortgage-satisfaction-recording statutes, which require that the mortgage lender present a certificate of discharge to the county clerk for filing within thirty days of the full repayment of the debt. See R.P.L. § 275(1) (requiring timely presentation of certificate and imposing monetary penalties for noncompliance); R.P.A.P.L. § 1921(1) (same).

II. Procedural history.

On December 15, 2015, approximately three months after BNY Mellon had recorded the satisfaction, the Maddoxes brought a class action suit against BNY Mellon for violation of New York's mortgage-satisfaction-recording statutes.

In late 2016, after the Supreme Court issued its decision Spokeo, Inc. v. Robins, 578 U.S. 330 (2016), BNY Mellon moved to dismiss on the pleadings for lack of standing. It argued—among other things—that the Maddoxes lack Article III standing because they "suffered no actual damages in relation to the alleged failure to record the satisfaction" and therefore "failed to plead a concrete harm" under Spokeo. Maddox v. Bank of N.Y. Mellon Tr. Co., No. 15-cv-01053, 2017 WL 449962, at *2 (W.D.N.Y. Jan. 30, 2017) (Report and Recommendation ("R&R")) (quoting Bank's Memorandum). The Bank did not dispute that the discharge was untimely filed.[1]

The Maddoxes countered that the Bank's eleven months of noncompliance impaired access to accurate financial information about them in the interval and created a false impression adverse to their credit status. The Maddoxes argued that the right to be free of these harms was recognized by the state legislature, that the harms bear a strong relationship to harms traditionally actionable at common law, and that the violations caused substantive harms and otherwise created concrete injuries that endow them with standing to seek remedies in federal court. The Maddoxes further argued that the Bank's period of noncompliance subjected them to a sufficiently real risk of other concrete and particularized harms—failure to obtain financing for other properties and damage to personal credit, for example—and that those risks also gave rise to an injury in fact supporting their Article III standing to sue. Finally, in conjunction with their opposition to the Bank's motion, the Maddoxes submitted an affidavit made by Tometta Maddox Holley attesting to her loss of time, her legal expenses, and her emotional trauma occasioned by the belated filing, which she learned about some time before the satisfaction was finally filed. Her attestations were not alleged in the complaint.

A magistrate judge issued a Report and Recommendation suggesting that the district court deny the motion to dismiss. R&R, 2017 WL 449962, at *4. The district court accepted the recommendation and denied BNY Mellon's motion for judgment on the pleadings. Maddox v. Bank of N.Y. Mellon Tr. Co., No. 15-cv-01053, 2018 WL 3544943, at *2 (W.D.N.Y. July 24, 2018). It held that the Bank's violation was a "procedural violation" that satisfied the injury-in-fact requirement for Article III standing because the Bank's violation of the statutes created a "material risk of harm" to them. Id. (internal quotation marks omitted). The district court reasoned that failure to timely record a mortgage satisfaction could cloud title to real property, inhibit sale of the property, and affect a mortgagor's credit.

At the same time, the district court took note of the Eleventh Circuit's contrary decision in Nicklaw v. Citimortgage, Inc., 839 F.3d 998 (11th Cir. 2016), reh'g en banc denied, 855 F.3d 1265 (2017), and a footnote in our decision in Strubel v. Comenity Bank, 842 F.3d 181, 194 n.15 (2d Cir. 2016), which cites Nicklaw with apparent approval. It accordingly identified the question as a close one and on that basis certified the question for interlocutory appeal. We accepted the certification and addressed that question, which has indeed proved close.

As a threshold issue, we decided that a state legislature, like Congress, has the power to create legal interests whose violation can satisfy Article III standing. See Maddox, 997 F.3d at 443-44 (2d Cir. 2021). We then affirmed the district court's holding on alternative grounds. First, we held that the statutes are "substantive" provisions and that therefore "the Maddoxes need allege no harm greater than that their discharge was untimely recorded . . . to establish a concrete, intangible injury of the sort that gives them Article III standing." Id. at 447. Second, we held that even if the statutes were "procedural" in nature, the Maddoxes still would have established an injury in fact, since the Bank's violation of the statutes exposed them to a "material risk of [concrete] harm," including the risk of not being able to borrow during the period of delay. Id. at 447-48 (alteration in original) (quoting Spokeo, 578 U.S. at 342).

After our initial disposition, BNY Mellon filed a petition for panel rehearing or rehearing en banc (the "Petition"), and the United States Supreme Court decided TransUnion LLC v. Ramirez, ___ U.S. ___, 141 S. Ct. 2190 (2021), which expanded upon the standing principles raised by this case. The parties submitted supplemental letter briefs discussing the impact, if any, of TransUnion on our previous decision. Because TransUnion bears directly on our analysis, we hereby grant the Petition, withdraw our opinion of May 10, 2021, and issue this amended opinion in its place. Additional oral argument is unnecessary.

DISCUSSION

We review a district court's decision regarding judgment on the pleadings de novo. See Lanning v. City of Glens Falls, 908 F.3d 19, 24 (2d Cir. 2018).

Article III standing requires plaintiffs to show (1) an "injury in fact," (2) a "causal connection" between that injury and the conduct at issue, and (3) a likelihood "that the injury will be redressed by a favorable decision." Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks omitted). The central question on appeal is whether the Maddoxes have met the injury-in-fact requirement.

"To demonstrate injury in fact, a plaintiff must show the invasion of a [1] legally protected interest that is [2] concrete and [3] particularized and [4] actual or imminent, not conjectural or hypothetical." Strubel, 842 F.3d at 188 (internal quotation marks omitted). BNY Mellon argues that, although the New York State Legislature may have implicitly recognized that delayed recording can create harms such as a cloud on title and an adverse affect on a mortgagor's credit, the Maddoxes have not alleged, and cannot allege, that they suffered these harms. Therefore, BNY Mellon asks us to conclude that the Maddoxes have failed to show that the injury alleged was either "concrete" or "particularized" enough to amount to an injury in fact for purposes of Article III standing. The Maddoxes argue to the contrary, that where the Legislature has recognized a legal interest or interests and a plaintiff has suffered a harm or risk of real harm to those interests, Article III is satisfied. According to the Maddoxes, the harms that the Legislature aimed to preclude need not have come to fruition for a plaintiff to have suffered a material risk of real harm sufficient to seek the statutory remedy afforded by the Legislature. We discuss these arguments below.

I. Plaintiffs must suffer a concrete harm to establish standing.

"No concrete harm; no standing." TransUnion, 141 S. Ct. at 2200. This equation, which opens the Supreme Court's TransUnion decision, leaves little room for interpretation and may be sufficient to resolve the issue before us. Still, the facts in TransUnion bear a strong enough resemblance to those in this case that the Supreme Court's treatment of them proves highly instructive.

A class of 8,185 individuals sued TransUnion, a credit reporting agency, alleging two violations of the Fair Credit Reporting Act ("FCRA"). Id. First, the plaintiffs alleged that TransUnion's failure to use reasonable procedures led to an inaccuracy in their credit files—namely, that the class member was a "potential match" to an individual on a Treasury Department list of national security threats (the "OFAC list"). Id. 2202. Second, the plaintiffs claimed that TransUnion failed to adhere to FCRA formatting requirements in the mailings used to inform members about the potential match. Id. The class succeeded at trial, but standing became the primary issue on appeal. Id.

Before addressing the specific allegations, the Supreme Court considered the characteristics that make a harm "concrete" for the purposes of Article III. Id. at 2204. The Court explained that whether a harm qualifies as "concrete" hinges on "whether the alleged injury to the plaintiff has a `close relationship' to a harm `traditionally' recognized as providing a basis for a lawsuit in American courts." Id. (quoting Spokeo, 578 U.S. at 341). The Court recognized that physical and monetary harms, along with other traditional tangible harms, readily qualify as concrete, and that certain intangible harms, such as reputational harm, qualify as well. Id. The Court also allowed that Congress's views may be "instructive" in determining whether a harm is sufficiently concrete, id. (quoting Spokeo, 578 U.S. at 341), although "an injury in law is not an injury in fact," id. at 2205.

With that, the Supreme Court turned to the plaintiffs' claim that TransUnion's failure to use reasonable procedures led to inaccuracy in their credit files. The Court divided the class into two groups: those members whose credit reports were disseminated to third-party businesses; and those whose credit reports never left TransUnion's internal files. Id. at 2200. The Court ruled that the first group "suffered a harm with a `close relationship' to the harm associated with the tort of defamation," and, therefore, "suffered a concrete harm that qualifies as an injury in fact." Id. at 2209. The second group, however, suffered no concrete harm because "[p]ublication is `essential to liability' in a suit for defamation," and their credit files were never published. Id. (quoting Restatement of Torts § 577 cmt. a, p. 192 (1938)). As the Court explained, "there is no historical or common-law analog where the mere existence of inaccurate information, absent dissemination, amounts to concrete injury." Id. (internal quotation marks omitted).

The Court further concluded that these class members could not premise standing on a risk of future harm—that is, the risk that TransUnion would eventually disseminate the misleading information to third-party businesses. While Spokeo stated that "the risk of real harm" can sometimes "satisfy the requirement of concreteness," id. at 2210 (quoting Spokeo, 578 U.S. at 341-42), that observation (the Court explained) applied only to "suit[s] for injunctive relief," id. In suits for damages, "the mere risk of future harm, standing alone, cannot qualify as a concrete harm—at least unless the exposure to the risk of future harm itself causes a separate concrete harm." Id. at 2210-11. Because these class members presented no evidence "that they suffered some other injury (such as an emotional injury) from the mere risk that their credit reports would be provided to third-party businesses," they were unable to establish standing. Id. at 2211.

Regarding the claim that TransUnion failed to adhere to FCRA formatting requirements, the Supreme Court held that the class members (other than the named plaintiff) had failed to demonstrate that they suffered any concrete harm—or "any harm at all"—from such violations, as they presented no evidence that they "so much as opened" the relevant mailings. Id. at 2213. Plaintiffs' distinct argument that TransUnion's formatting violations created a risk of future harm—i.e., the risk that consumers would not learn of, and remedy, the OFAC report in their credit files—failed because "the risk of future harm on its own does not support Article III standing for the plaintiffs' damages claim." Id.

In sum, TransUnion established that in suits for damages plaintiffs cannot establish Article III standing by relying entirely on a statutory violation or risk of future harm: "No concrete harm; no standing." Id. at 2214.

II. The Maddoxes have not suffered a "concrete" harm.

The only allegations that matter are few: the Maddoxes paid off their mortgage when they sold their house; the bank filed the mortgage satisfaction nearly one year afterward. By statute, New York creates a private right to collect an escalating cash penalty if the satisfaction is filed more than thirty days after the mortgage is paid off, up to $1,500 for delay exceeding ninety days.

We need not decide whether state legislatures have the same power Congress enjoys to recognize or create legally protectible interests whose invasion gives rise to Article III standing; TransUnion determined that Congress itself enjoys no such power. 141 S. Ct. at 2205 ("Congress may enact legal prohibitions and obligations. . . . But under Article III, an injury in law is not an injury in fact."). Nor need we decide whether the statutes are "substantive" or "procedural"; TransUnion eliminated the significance of such classifications, which had been a preoccupation.[2] On this appeal, the determinative standing issue is whether the Maddoxes suffered a concrete harm due to the Bank's violation. It is clear that they have not.

First: for the ordinary borrower, delayed recording of a discharge of mortgage may create and sustain an actionable cloud on title to the property securing the discharged mortgage debt. Long-delayed filings can result in the borrower having to pay a duplicative filing fee for the discharge: once at closing and once when the discharge is actually filed. The Maddoxes did not allege such harms, however, or allege that they were at risk for such harms. This is unsurprising because conveyance of their property was completed several weeks before the mortgage satisfaction occurred. In short, the Maddoxes had no title on which a cloud could settle.[3]

Second: a mortgage recorded with the county clerk may convey to those viewing the record that the borrower owes a debt secured by a property. Correspondingly, a lender's delay in recording a mortgage satisfaction risks creating the false appearance that the borrower has not paid the underlying debt and is thus more indebted and less creditworthy. This type of reputational harm—i.e., one that flows from the publication of false information—is well established as actionable at common law. See Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 61-62 (2d Cir. 1993) (discussing elements to establish prima facie claim of slander); see also Spokeo, 578 U.S. at 341-42 (noting libel and slander per se as being actionable).

However, the Maddoxes do not allege that they suffered any reputational harm due to the Bank's violation. The misleading record may have been public and available to all; but, so far as is known, it was read by no one. The public nature of the record is not analogous to the dissemination of the credit reports in TransUnion. There could be no doubt that the third-party businesses viewed those credit reports, which they had specifically requested and paid for.

This distinction from TransUnion is critical, as it is self-evident that "unless the defamatory matter is communicated to a third person there has been no loss of reputation." Restatement of Torts § 577 cmt. b; see also Albert v. Loksen, 239 F.3d 256, 269 (2d Cir. 2001) ("A defamatory writing is not published if it is read by no one but the one defamed.'" (quoting Ostrowe v. Lee, 256 N.Y. 36, 38 (1931) (Cardozo, C.J.))). True, the Maddoxes may have suffered a nebulous risk of future harm during the period of delayed recordation—i.e., a risk that someone (a creditor, in all likelihood) might access the record and act upon it—but that risk, which was not alleged to have materialized, cannot not form the basis of Article III standing.

Third: the Maddoxes contend that the Bank's delay adversely affected their credit during that time, making it difficult to obtain financing had they needed it in an emergency or for a new home. But it is not alleged that this purported risk materialized; so it is similarly incapable of giving rise to Article III standing.

Fourth: Tometta Maddox Holley attested (in her affidavit opposing BNY Mellon's motion for judgment on the pleadings) that the Bank's failure to timely record the satisfaction after she sold the Property caused her "great stress, mental anguish, anxiety, and distress, which compelled [her] to expend substantial time attempting to determine the status of the recording of the satisfaction of mortgage document, and seeking out legal counsel to assist [her] in having the satisfaction of mortgage recorded." App'x at 88 ¶ 8. These purported harms are of the sort that TransUnion contemplated might form the basis for Article III standing. See TransUnion, 141 S. Ct. at 2211 n.7 ("[A] plaintiff's knowledge that he or she is exposed to a risk of future physical, monetary, or reputational harm could cause its own current emotional or psychological harm."); see also Denney v. Deutsche Bank AG, 443 F.3d 253, 265 (2d Cir. 2006) ("The risk of future harm may also entail economic costs . . . but aesthetic, emotional or psychological harms also suffice for standing purposes.").

However, the Maddoxes must "plead enough facts to make it plausible that they did indeed suffer the sort of injury that would entitle them to relief." Harry v. Total Gas & Power N. Am., Inc., 889 F.3d 104, 110 (2d Cir. 2018). Although "[i]t is well established in principle that the pleading standard for constitutional standing is lower than the standard for a substantive cause of action," id., the attestations in Tometta Maddox Holley's affidavit were not the subject of allegations in the complaint and, in any event, are implausible.

Holley demands opportunity costs because she "expend[ed] substantial time attempting to determine the status of the recording of the satisfaction of mortgage document." App'x at 88 ¶ 8. But if she had, she would have found out that the satisfaction was recorded three months before the filing of a complaint that nevertheless alleges that the satisfaction was unrecorded at the time this litigation began. As to her emotional distress, she offers no reason why the delayed recordation would cause "great stress, mental anguish, anxiety, and distress." Id. A perfunctory allegation of emotional distress, especially one wholly incommensurate with the stimulant, is insufficient to plausibly allege constitutional standing. Even if it were sufficient, "it is extremely unlikely that such an allegation would be typical of the class." R&R, 2017 WL 449962, at *3 n.5.

In any event, the Maddoxes need not show a cloud, reputational harm, or any other injury. The Maddoxes have an easy way to collect their reward for reporting the Bank's delay in recording the mortgage satisfaction: they may recover the statutory penalty in state court.[4] This is a small claim, in a fixed amount, amenable to a recovery without dispute—and probably without counsel or fees. It is hard to imagine that a bank would press the issue to litigation.

Of course, state court remains an option for all absent class members as well. To the extent that such members (or their lawyers) prefer to form a class and bring their claims in federal court, they must come prepared to prove that they suffered concrete harm due to the Bank's violation of the relevant statutes.

CONCLUSION

For the foregoing reasons, we vacate the district court's order denying BNY Mellon's motion for judgment on the pleadings and remand with instructions that the case be dismissed.

[1] It did argue, however, that it was associated with the Maddoxes' mortgage only as a trustee and therefore had no liability. The district court rejected that argument, and the issue is not part of the question certified for interlocutory appeal. See Maddox v. Bank of N.Y. Mellon Tr. Co., No. 15-cv-01053, 2018 WL 3544943, at *5 (W.D.N.Y. July 24, 2018).

[2] Our original opinion observed that a statutory right is considered "substantive" if it protects against a harm that has a close relationship to a harm traditionally regarded as providing a basis for a lawsuit in American courts. The violation of a substantive right, the opinion explained, constitutes a concrete injury in fact sufficient to establish Article III standing without any additional showing. TransUnion clarified, however, that the type of harm that a statute protects against is of little (or no) import; what matters is "whether the alleged injury to the plaintiff has a `close relationship' to a harm `traditionally' recognized as providing a basis for a lawsuit in American courts." 141 S. Ct. at 2204 (emphasis added) (quoting Spokeo, 578 U.S. at 341). In other words, plaintiffs must show that the statutory violation caused them a concrete harm, regardless of whether the statutory rights violated were substantive or procedural.

[3] True, it may be said that during the period of BNY Mellon's delayed recordation the two nonparty homebuyers ran a risk that if they had flipped the Property the title insurer would flag a vestigial lien. But the Maddoxes, who had already sold the Property, did not suffer a detriment and never ran the risk of one.

[4] "[S]tate courts are not bound to adhere to federal standing requirements. . . ." ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989)."

Monday, November 22, 2021

GOOD CAUSE EVICTION RULES IN NEW YORK


Recently, Poughkeepsie became the latest New York municipality to pass good cause eviction, a measure that affords renters robust eviction protections and limits rent increases. Similar measures have passed in recent months at three other localities along the New York State Thruway: Newburgh, Hudson and Albany.

A bill has been proposed for the entire state. See Proposed NYS Good Cause Eviction Bill

Friday, November 19, 2021

SEEKING AN ORDER OF PROTECTION POST DIVORCE


Supreme Court, Monroe County Judge Dollinger always writes an interesting decision.

JF v. DF, 2021 NY Slip Op 51046 - NY: Supreme Court, Monroe 2021:

"It has been said that sticks and stones may break my bones, but words can never hurt me.[1] That adage ignores the true power that words can wield, particularly when they threaten harm or are otherwise designed to cause trauma. The question here is whether the words spoken — or, in actuality, for the most part, typed in emails — by Defendant Father in this case rise to the level of criminal harassment, justifying curtailment of his fundamental liberty interest through issuance of an order of protection. The court concludes that they do not.

The parties were divorced in November 2013, and, pursuant to the Judgment of divorce and separation agreement, shared joint custody and equal residency of their three children, ages 19, 17 and 11. The relationship between the parents has been rocky, with numerous applications being made over the years for modification of custody, orders of protection, and the like. This latest dispute has its roots in the COVID pandemic, with Father initially filing an application in October 2020 alleging that Plaintiff Mother was not following State mandated COVID protocols with respect to the children. Further applications have followed, with the Mother's initial cross-motion, filed in November 2020, containing a request for an Order of Protection. That request is supported by the Mother's affidavit, pointing primarily to emails sent by the father, many of which accuse her of violating COVID protocols regarding out of state travel and quarantine. Her Affidavit contains upwards of 50 pages of email exchanges between the couple, which the Mother contends demonstrate harassment sufficient to support an order of protection. Father has now moved to dismiss this application, insofar as it seeks an order of protection.

At the outset, the parties disagree as to the proper authority under which the order of protection is sought. Father contends that the application is brought pursuant to section 812 of the Family Court Act, which requires a finding of a qualifying family offense in order for an order of protection to be issued. Mother contends that the application is made pursuant to DRL § 240 (3), the text of which does not require the finding of a family offense. The Court disagrees with Father's contention that section 240 (3) is inapplicable because that section applies only to matrimonial actions, and there is no matrimonial action pending at this point. That suggested reading of Section 240 is far too narrow. Section 240 can support an award of a protective order "during the pendency of the action, in the final judgment, and even after the final judgment" (Scheinkman, Practice Commentaries, McKinney's Cons. Laws of NY, Book 14, Domestic Relations Law C240:30 [emphasis supplied]). Thus a post-judgment application such as this, seeking a change in custody/visitation, constitutes a matrimonial action within the meaning of section 240. The case cited by father — Xiaokang Xu v Xiaoling Shirley He (147 AD3d 1223 [3d Dept 2017]) is inapposite. There, the proceeding was not a post-judgment application in the matrimonial proceeding, but a separate action for various intentional torts — which clearly did not constitute a matrimonial action.

In the end, though, the fact that the application for a protective order may be brought pursuant to DRL § 240 (3), as opposed to section 812 of the Family Court Act, is a distinction without a difference. While section 240 does not, on its face, limit the court's ability to issue orders of protection to situations where a family offense is pled and proven, the Appellate Division has specifically grafted that limitation onto the statute. In Jennifer JJ. v Scott KK (117 AD3d 1158 [3d Dept 2014]), the court held that

"[a]s Domestic Relations Law § 240 does not delineate the precise standards or procedures governing the issuance of such an order, it is appropriate to look to Family Ct. Act article 8 for guidance. In this regard, the party seeking an order of protection bears the burden of establishing — `by a fair preponderance of the evidence' — that the offending party committed one of certain enumerated family offenses"

(id. at 1159 [internal citations omitted]; see also Scheinkman, Practice Commentaries, McKinney's Cons. Laws of NY, Book 14, Domestic Relations Law C240:30 ["The statute does not expressly provide standards to be employed in granting orders of protection. It would appear that the substantive law to be applied is that supplied by Article 8 of the Family Court Act"]). Indeed, because orders of protection implicate a person's fundamental due process rights, the statute must be read to include "explicit standards" for their issuance (People v Freeman, 2001 NY Slip Op 40329(U) [NY City Ct Nov. 2, 2001], quoting Grayned v City of Rockford, 408 US 104, 108-109 [1972]); leaving such decisions to the court's arbitrary discretion would likely violate due process (see generally People v Forman, 145 Misc 2d 115, 130 [Crim Ct 1989]).

Anticipating the need to prove a qualifying family offense, Mother argues that her petition contains sufficient allegations of conduct amounting to the qualifying offense of harassment in the second degree (Penal Law § 240.26). As relevant here, that statute provides:

"A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person:
. . .
3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose."

The Mother points to a long series of emails from Father concerning necessary quarantine measures and other proscriptions and requirements with respect to COVID 19. In particular, the Father sent numerous emails to Mother saying that she was required to quarantine following a trip to Illinois, after that State was added to the restricted state list then in effect. Mother contends — and it appears beyond dispute — that father's information was largely, if not entirely, incorrect. Nevertheless, he persisted in maintaining that she and the children needed to quarantine, and apparently reported them to health department authorities. He also demanded make-up time with the children after their (unnecessary) quarantine period.

There is no doubt in this Court's mind that the Father's persistent — again, there are upwards of 50 pages worth of texts back and forth — insistence that Mother needed to take COVID precautions which, in fact, were not necessary would "seriously annoy" almost anyone. And, inasmuch as this is a motion to dismiss, and the Court must draw every reasonable inference in favor of the Mother as the non-moving party (see Alden Glob. Value Recovery Master Fund, L.P. v KeyBank N.A., 159 AD3d 618, 621 [1st Dept 2018]), the Court accepts that it may even have been the Father's intent, at least at some point, to "harass" or "annoy" the Mother. However, because of the Constitutional protection afforded by the First Amendment, speech can not be punished simply because it causes annoyance. A "conversation may well be `abusive' and intended to `annoy'; so, too, may be light-hearted banter or the earnest expression of personal opinion or emotion. But unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized" (People v Dietze, 75 NY2d 47, 51 [1989] [emphasis supplied]). In Dietze, the Court declared a prior version of the harassment statute, which forbade "abusive" speech intended to "annoy," unconstitutional as substantially overbroad. Similarly, in People v Golb (23 NY3d 455, 466-67 [2014]), the Court of Appeals struck down as vague and overbroad the section of the aggravated harassment statute that provided that a person was guilty when "with intent to harass, annoy, threaten or alarm another person, he or she. . . communicates with a person. . . in a manner likely to cause annoyance or alarm." As with the statute at issue in Dietze, this section impermissibly "criminalize[d], in broad strokes, any communication that has the intent to annoy," which is impermissible (Golb, 23 NY3d at 467).

The current version of the statute has withstood overbreadth challenges, in part because it is aimed at conduct, not simply speech, and because, to the extent that speech is proscribed, it "prohibits only speech that lacks a `legitimate purpose'" (People v Perez, 51 Misc 3d 1215(A) [Crim Ct 2016]). That "no legitimate purpose" language must be read to incorporate the Constitutional limitations on prohibiting speech — i.e. only "words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence or other breach of the peace" may be proscribed (Dietze, 75 NY2d at 52).

Read under that prism, there is simply no way to conclude that the Father's texts were sent with "no legitimate purpose." Even assuming they were misguided and in some cases, flat out wrong, they were aimed at a legitimate subject of debate — the appropriate measures of COVID prevention protocols, something any parent certainly has a "legitimate" interest in. There are no "`threats []or intimidating or coercive utterances' "in these emails that would place them "outside the pale of the First Amendment" (People v Graziano, 11 Misc 3d 137(A) [App Term 2006], quoting People v Shack, 86 NY2d 529, 538 [1995]). Nor can it be said that only Father's conduct in sending the texts, rather than the substance of the texts themselves, is at issue (c.f. People v Seitz, 44 Misc 3d 1226(A) [Crim Ct 2014]), inasmuch as the substance of the emails — i.e. their veracity, or more to the point, inaccuracy — makes up a large portion of the Mother's argument.

To the extent that Mother relies on Father's alleged placing of, or attempting to place, a GPS device on her car, the Court agrees with the argument of counsel for the Father that this conduct can support an order of protection only if it amounts to stalking, which applies only where an offender continues conduct "after being told to stop" (People v Stuart, 100 NY2d 412, 427 [2003]; see Penal Law § 120.45[2]). That was not the case here.

Accordingly, the motion to dismiss the application for an Order of Protection is GRANTED.

SUBMIT ORDER ON NOTICE 22 NYCRR 202.48.

[1] This Court previously cited this aphorism in another dispute in which words — in that case, vulgar and insulting — were used by a child against a parent and resulted in a finding of abandonment by the child of the parent. Cornell v Cornell, 47 Misc 3d 605 (Sup.Ct. Monroe Cty 2015). But the adage is apropos here because, as this opinion notes, the issue of when words — alone — violate a statute is a different kettle of fish. The later — "kettle of fish" — adage has never been used in the New York courts but is popular elsewhere. Holbrook v. Holbrook, 2021 Ky. App. Unpub. LEXIS 592 at 10 (Ct. App. Kentucky 2021); Enoksen v. Squires, 2021 U.S. Dist. LEXIS 65359, n.8 (E.D.NY 2021)."

Thursday, November 18, 2021

A NEGLECT PROCEEDING


MATTER OF BRANDON IJ v. DAISY D., 2021 NY Slip Op 5206 - NY: Appellate Div., 4th Dept. 2021:

"In this proceeding pursuant to Social Services Law § 384-b, respondent mother appeals from an order that, inter alia, terminated her parental rights with respect to the subject child on the ground of permanent neglect.

We reject the mother's contention that Family Court abused its discretion in denying the requests of the mother's attorney for adjournments of the fact-finding and dispositional hearings when the mother failed to appear. The record supports the court's conclusion that the mother was fully aware of the court dates, and no excuse was offered for her absences (see Matter of Evelyn R. [Franklin R.], 117 AD3d 957, 957-958 [2d Dept 2014]; Matter of Sophia M.G.-K. [Tracy G.-K.], 84 AD3d 1746, 1747 [4th Dept 2011]; see generally Matter of Tyler W. [Stacey S.], 121 AD3d 1572, 1573 [4th Dept 2014]).

Contrary to the mother's contention, the court properly determined that petitioner demonstrated by clear and convincing evidence that it made the requisite diligent efforts—i.e., "reasonable attempts . . . to assist, develop and encourage a meaningful relationship between the parent and child" (Social Services Law § 384-b [7][f])—to reunite the mother with the child (see § 384-b[7][a]; Matter of Sheila G., 61 NY2d 368, 380-381 [1984]; Matter of Jerikkoh W. [Rebecca W.], 134 AD3d 1550, 1550 [4th Dept 2015], lv denied 27 NY3d 903 [2016]). Petitioner coordinated regular visitation with the child, provided the mother with transportation assistance to those visits, encouraged the mother to obtain the required substance abuse and mental health treatment, referred her to agencies that assisted with people suffering from a traumatic brain injury, encouraged her to maintain employment and housing, and offered her budget counseling. We reject the mother's further contention that petitioner failed to establish by clear and convincing evidence that she permanently neglected the child. The evidence established that, among other things, the mother failed to complete mental health and substance abuse treatment and failed to obtain adequate and safe housing during the relevant time period (see Matter of Eden S. [Joshua S.], 170 AD3d 1580, 1582-1583 [4th Dept 2019], lv denied 33 NY3d 909 [2019]; Matter of Miguel Angel S. [Wendy Carolina S.], 155 AD3d 587, 588 [1st Dept 2017]; Matter of Peter D., 262 AD2d 998, 998-999 [4th Dept 1999]).

Contrary to the mother's contention, the court did not abuse its discretion in refusing to issue a suspended judgment. A suspended judgment "is a brief grace period designed to prepare the parent to be reunited with the child" (Matter of Michael B., 80 NY2d 299, 311 [1992]; see Family Ct Act § 633) and may be warranted where the parent has made sufficient progress in addressing the issues that led to the child's removal from custody (see Matter of James P. [Tiffany H.], 148 AD3d 1526, 1527 [4th Dept 2017], lv denied 29 NY3d 908 [2017]; Matter of Sapphire A.J. [Angelica J.], 122 AD3d 1296, 1297 [4th Dept 2014], lv denied 24 NY3d 916 [2015]). Here, the evidence at the dispositional hearing established that the child had been removed from the mother's care when he was approximately eight months old and had been in foster care ever since, that the child had been with the same foster mother for almost 2½ years, and that the foster mother was willing to adopt the child. In addition, the evidence established that the mother had made no progress in addressing the issues that led to the removal of the child and still had only supervised visits with the child. We therefore conclude that the court properly determined that a suspended judgment was unwarranted.

The mother contends that she was deprived of her right to the assistance of counsel or to effective assistance of counsel at the dispositional hearing. We reject that contention. At the start of the dispositional hearing, the mother failed to appear, and her counsel elected not to participate. The court heard the testimony of petitioner's caseworker and, after a lunch break, the mother appeared in court and her counsel resumed participating. We conclude that counsel's decision not to participate when the mother was absent was tactical and did not deprive the mother of representation or meaningful representation (see Matter of Thaiheed O.H., 162 AD3d 477, 478 [1st Dept 2018]; see generally People v Diggins, 11 NY3d 518, 525 [2008])."

Wednesday, November 17, 2021

BRINGING AN ACTION ANONYMOUSLY IN FEDERAL COURT

 


Doe v. FREYDIN, Dist. Court, SD New York 2021:

"NAOMI REICE BUCHWALD, District Judge.

Plaintiff Jane Doe brings this action against her former employers, Arthur Freydin, his wife Sarah McLoughlin, and their companies Basic Creative, LLC and Tandem Marketing, Inc. (collectively, "defendants"), asserting various claims under New York State and City law for alleged sexual assault, sexual harassment, and surreptitious recording. Before the Court is plaintiff's motion to proceed anonymously under the pseudonym Jane Doe and for a protective order mandating that defendants keep plaintiff's identity confidential. For the following reasons, plaintiff's motion is denied.

I. BACKGROUND

Plaintiff is a recent college graduate who began working for defendants in February 2021, first as a babysitter for McLoughlin and shortly thereafter as an assistant for Freydin at Basic Creative, LLC and Tandem Marketing, Inc., entities owned and operated by Freydin and McLoughlin. Compl. ¶¶ 38-39 (ECF No. 7). Plaintiff alleges that as a condition of her employment, defendants required plaintiff to live in their apartment 4-to-5 nights per week and that plaintiff began doing so on or around August 28, 2021. Id. ¶ 40.

Plaintiff's claims against defendants center on the following allegations. First, plaintiff alleges that while she was working as an assistant, Freydin required plaintiff to pose for photographs in a state of undress while Freydin applied kinesiology tape to her neck and back, purportedly to demonstrate the application of the tape as part of the company's marketing efforts. Compl. ¶¶ 42-43. Second, plaintiff alleges that Freydin and McLoughlin placed hidden cameras in the bedroom and bathroom designated for her use when she was living at their residence and secretly recorded her. Id. ¶¶ 46-48. Plaintiff also alleges that defendants sexually harassed her and subjected her to a controlling work environment. Id. ¶¶ 44-45, 88.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 10(a), which requires that the title of a complaint name all the parties to a litigation, "serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly." Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 188-89 (2d Cir. 2008). Nonetheless, in limited circumstances, courts may grant an exception to this rule and allow a plaintiff to proceed under a pseudonym when the plaintiff's "interest in anonymity" outweighs "both the public interest in disclosure and any prejudice to the defendant." Id. at 189. In Sealed Plaintiff, the Second Circuit articulated a non-exhaustive list of ten factors for courts to consider when conducting this balancing test. Id.[1] However, the district court need not "list each of the factors or use any particular formulation as long as it is clear that the court balanced the interests at stake in reaching its conclusion." Id. at 191 n.4.

III. DISCUSSION

Plaintiff argues that the first factor weighs in her favor because her claims involve "sexual assault, sexual harassment and unlawful, surreptitious recording of Plaintiff in areas demanding the utmost privacy — the bedroom and bathroom[,]" Pl's Mem. at 5 (ECF No. 10), and thus are "highly sensitive and of a personal nature." Sealed Plaintiff, 537 F.3d at 190. "[W]hile this factor supports granting Plaintiff's motion . . . the nature of Plaintiff's allegations alone does not suffice to permit her to proceed anonymously." Doe v. Gong Xi Fa Cai, Inc., No. 19 Civ. 2678 (RA), 2019 WL 3034793, at *1 (S.D.N.Y. July 10, 2019); see also Doe v. Skyline Automobiles Inc., 375 F. Supp. 3d 401, 406 (S.D.N.Y. 2019) (concluding the first Sealed Plaintiff factor is not dispositive). Indeed, courts in this District have denied motions to proceed anonymously in numerous cases involving allegations of sexual harassment and sexual assault. See, e.g., Rapp v. Fowler, No. 20 Civ. 9586 (LAK), 2021 WL 1738349, at *1 (S.D.N.Y. May 3, 2021) (denying motion to proceed anonymously in case involving statutory rape); Doe v. Townes, No. 19 Civ. 8034 (ALC) (OTW), 2020 WL 2395159, at *1 (S.D.N.Y. May 12, 2020) (denying same motion in case involving sexual assault); Doe v. Weinstein, 484 F. Supp. 3d 90, 98 (S.D.N.Y. 2020) (same); Skyline Automobiles, 375 F. Supp. 3d at 404 (denying same motion in case where plaintiff was "drugged and brutally raped").

Although plaintiff argues otherwise, the second and third factors, which consider the risk of harm to plaintiff if her identity is disclosed, do not favor her.[2] To start, plaintiff argues that there is "great risk" of defendants retaliating against her by, for example, providing negative references to her prospective employers, and that such retaliation would deter potential witnesses from coming forward. Pl's Mem. at 5-6. This argument has no purchase where, as here, the defendants already know the plaintiff's identity. See Doe v. United States, No. 16 Civ. 7256 (JGK), 2017 WL 2389701, at *3 (S.D.N.Y. June 1, 2017) (explaining that allowing plaintiff to proceed anonymously "would do nothing to protect him" from retaliation since defendant knows plaintiff's identity) (citations omitted).

In this regard, to justify the exceptional relief of proceeding anonymously, plaintiff must establish with sufficient specificity the incremental injury that would result from disclosure of her identity. See Gong Xi Fa Cai, 2019 WL 3034793, at *2 (finding anonymity was not warranted "absent more direct evidence linking disclosure of [plaintiff's] name to a specific physical or mental injury"); Fowler, 2021 WL 1738349, at *5 (explaining that at issue on a motion to proceed anonymously is whether public disclosure would cause unique harm above and beyond any harm caused by the underlying events); see also Skyline Automobiles, 375 F. Supp. 3d at 406 ("Courts in this District have held that speculative claims of physical or mental harms are insufficient to bolster a request for anonymity.") (citation omitted); Abdel-Razeq v. Alvarez & Marsal, Inc., No. 14 Civ. 5601 (HBP), 2015 WL 7017431, at *3 (S.D.N.Y. Nov. 12, 2015) ("[T]he potential for embarrassment or public humiliation does not, without more, justify a request for anonymity.").

The single case plaintiff cites in support of her claim of psychological injury, Doe v. Smith, cuts against plaintiff, who, unlike the plaintiff in Smith, has not submitted any corroborating medical testimony. See 105 F. Supp. 2d 40, 43-44 (E.D.N.Y. 1999). In Smith, the court concluded that the plaintiff satisfied her burden of demonstrating harm only after she submitted "specific evidence predicting that revelation of her identity will likely cause psychological and emotional pain so intense that it would threaten her stability, her safety, and even her life." Id. (citing affidavit submitted by plaintiff's doctor); see also Doe No. 2. v. Kolko, 242 F.R.D. 193, 196 (E.D.N.Y. 2006) (concluding plaintiff's submissions, which included psychiatrist's declaration, "are sufficiently particularized and specific to establish a serious risk of harm to plaintiff's mental health"). As such, plaintiff's bald assertion that disclosure of her identity would subject her to "further mental harm, harassment, ridicule and personal embarrassment," Doe Aff. ¶ 4 (ECF No. 9 Ex. 1), supported only by her own affidavit, is insufficient.

Furthermore, it is not lost on the Court that plaintiff has chosen to inflict upon others the precise harm she now seeks to avoid: "having her name publicly tied to [defendants'] heinous acts." Pl's Mem. at 9-10. Specifically, plaintiff's Complaint needlessly exposes identifying information about numerous non-parties, including defendants' ten-year-old son and his grandmother, another family member, and an ex-colleague, in total disregard of their privacy interests. See, e.g., Compl. ¶¶ 39, 50, Ex. A.

Short of total anonymity, "there are [] alternative mechanisms for protecting the confidentiality of the plaintiff," Sealed Plaintiff, 537 F.3d at 190 (tenth factor), that can mitigate the potential harms of disclosure, such as "sealing and redacting certain documents containing sensitive information. . . ." Gong Xi Fa Cai, 2019 WL 3034793, at *3 (internal quotation marks, citations, and alteration omitted). Plaintiff thus fails to establish that disclosure of her identity presents a severe risk of harm.

"In considering the sixth factor," which evaluates the prejudice to defendants absent disclosure, "courts have examined difficulties in conducting discovery, the reputational damage to defendants, and the fundamental fairness of proceeding anonymously." Fowler, 2021 WL 1738349, at *6 (internal quotation marks and citations omitted). Although defendants know who plaintiff is, concealment of plaintiff's identity from the public can still hamper defendants' ability to conduct discovery. See id. at *7. In addition, plaintiff levies serious, reputation-threatening accusations against defendants that have already garnered significant media attention.[3] "[C]ourts have found that defending against such allegations publicly, while a plaintiff is permitted to make her `accusations from behind a cloak of anonymity,' is prejudicial." Gong Xi Fa Cai, 2019 WL 3034793, at *2 (quoting Doe v. Shakur, 164 F.R.D. 359, 361 (S.D.N.Y. 1996)). As such, the sixth factor also weighs against plaintiff.[4]

With respect to the seventh factor, which asks whether plaintiff's identity has thus far been kept confidential, plaintiff asserts that although there has been press coverage about her case, she has been identified only as Jane Doe and remains anonymous to the general public. Pl's Mem. at 7. Assuming, arguendo, that plaintiff's representation is accurate, this factor weighs in her favor even though defendants know who she is. See Gong Xi Fa Cai, 2019 WL 3034793, at *2 (finding seventh factor favors plaintiff where only defendants knew plaintiff's identity). Ultimately, however, the seventh factor is not significant enough to tip the scales. See Weinstein, 484 F. Supp. 3d at 97.

By contrast, factors eight and nine, which consider the public interests at stake, strongly weigh against permitting plaintiff to https://nypost.com/2021/10/11/married-nyc-businessman-secretly-recorded-live-in-assistant-in-bathroom-lawsuit-claims/. proceed anonymously. Plaintiff argues, without support, that the issues in this case are legal in nature, such that "there is an atypically weak public interest in knowing litigants' identities." Sealed Plaintiff, 537 F.3d at 190 (ninth factor). To the contrary, this is precisely the type of case involving "particular actions and incidents," where open proceedings would "benefit the public as well as the parties and also serve the judicial interest in accurate fact-finding and fair adjudication." Weinstein, 484 F. Supp. 3d at 97-98 (internal quotation marks and citation omitted). Indeed, in cases such as this one, "[w]hen the allegations involve workplace harassment, courts more commonly find that the public interest counsels against anonymity." Gong Xi Fa Cai, 2019 WL 3034793, at *2. Finally, as this court explained in Fowler:

"Though . . . the public generally has an interest in protecting those who make sexual assault allegations so that they are not deterred from vindicating their rights, it does not follow that the public has an interest in maintaining the anonymity of every person who alleges sexual assault or other misconduct of a highly personal nature."

2021 WL 1738349, at *8 (emphasis in original).

Plaintiff seeks to rely on New York Civil Rights Law § 50-b to bolster her argument that the public interest disfavors disclosure. Pl's Mem. at 8. New York Civil Rights Law § 50-b provides that "[t]he identity of any victim of a sex offense as defined [in the relevant statutes] . . . shall be confidential." However, plaintiff provides no authority supporting the application of this state law in a federal case. In any event, it is far from clear that plaintiff's allegations rise to the level of a "sex offense" such that she would be entitled to relief under § 50-b.[5]

IV. CONCLUSION

As the foregoing demonstrates, plaintiff has not met her burden of demonstrating that her "interest in anonymity" outweighs the prejudice to defendants and "the customary and constitutionally-embedded presumption of openness in judicial proceedings." Sealed Plaintiff, 537 F.3d at 189 (quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685 (11th Cir. 2001)). Accordingly, plaintiff's motion to proceed anonymously and for a protective order mandating that defendants keep plaintiff's identity confidential is denied. Given the sensitivity of the allegations at issue, the Court stays this Order for seven days to enable plaintiff and her counsel to consider this ruling.

SO ORDERED.

[1] The Sealed Plaintiff factors are: "(1) whether the litigation involves matters that are highly sensitive and of a personal nature; (2) whether identification poses a risk of retaliatory physical or mental harm to the . . . party seeking to proceed anonymously . . .; (3) whether identification presents other harms and the likely severity of those harms . . .; (4) whether the plaintiff is particularly vulnerable to the possible harms of disclosure . . . particularly in light of [her] age; (5) whether the suit is challenging the actions of the government or that of private parties; (6) whether the defendant is prejudiced by allowing the plaintiff to press [her] claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court; (7) whether the plaintiff's identity has thus far been kept confidential; (8) whether the public's interest in the litigation is furthered by requiring the plaintiff to disclose [her] identity; (9) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants' identities; and (10) whether there are any alternative mechanisms for protecting the confidentiality of the plaintiff. . . ." 537 F.3d at 189-90(internal quotation marks and citations omitted).

[2] The related fourth factor does not weigh in plaintiff's favor, either. As an adult, plaintiff cannot, and does not, contend that she is "particularly vulnerable to the possible harms of disclosure . . . in light of [her] age." Sealed Plaintiff, 537 F.3d at 190.

[3] See, e.g., Rebecca Rosenberg, "Married NYC businessman secretly recorded live-in assistant in bathroom, lawsuit claims," N.Y. Post (Oct. 11, 2021),

[4] Plaintiff does not address the related fifth factor, which distinguishes between suits against private parties and suits against the government. Courts are more reluctant to permit anonymity where, as here, a suit involves private individuals, because allegations of misconduct "`may cause damage to their good names and reputations,' among other things." Skyline Automobiles, 375 F. Supp. 3d at 406 (quoting North Jersey Media Group, Inc. v. Doe Nos. 1-5, No. 12 Civ. 6152 (VM) (KNF), 2012 WL 5899331, at *7 (S.D.N.Y. Nov. 26, 2012)).

[5] Since all of plaintiff's claims are brought under New York State and New York City statutes and common law, there would appear to be no barrier to plaintiff discontinuing this lawsuit and re-filing in New York state court in a direct effort to rely on § 50-b, should plaintiff disagree with this Court's reading of the provision."

Tuesday, November 16, 2021

CHILD SUPPORT: THE CONSTRUCTIVE EMANCIPATION OF A COLLEGE STUDENT


Matter of Jenulis v. Ting; Date filed: 2021-09-07; Court: Family Court, Suffolk; Judge: Support Magistrate Darlene Jorif-Mangane; Case Number: F-01252-21/21A&B:

"COMBINED FINDINGS OF FACT Darlene Jorif-Mangane, being the Support Magistrate before whom the issues of support in the above-entitled proceeding were assigned for determination, makes the following findings of fact: Arlene Ting, Petitioner, filed a petition on February 5, 2021 and Stephen Jenulis, Respondent, filed a petition on March 16, 202, both seeking to modify a Judgment of Divorce dated June 20, 2016 and entered on July 1, 2016 which provided for the support of the following children:

Name Date of Birth

Allison Jenulis      June 4, 1999

Kyle Jenulis  August 16, 2000

Arlene Ting and Stephen Jenulis were married on September 5, 1998, and were divorced on June 20, 2016. The following child resides with Arlene Ting: Kyle Jenulis. Both parties appeared with counsel and the court conducted a hearing. The court received the following evidence on the consent of both parties:

Court Exhibit 1     Judgment of Divorce dated June 20, 2016 and entered on July 1, 2016 and a Stipulation of Settlement dated September 17, 2015.

Court Exhibit Arlene Ting’s financial disclosure affidavit and 2020 income tax return.

Court Exhibit 3     Stephen Jenulis’ financial disclosure affidavit, 2020 income tax return and pay stub.

Petitioner submitted copies of text messages between Respondent and Kyle as Petitioner’s Exhibit 2.

Petitioner testified that Respondent is her ex-husband and that the parties were divorced in 2016. She stated that they have 2 children, Allison and Kyle. Petitioner reported that Allison was in her last semester of college at SUNY Stony Brook and would graduate in May of 2021. She stated that Allison will turn 22 in June of 2021. Petitioner testified that Allison majored in chemistry and chemical engineering and has attended college continuously for 4 years. She stated that Allison is taking 2 classes for a total of 7 credits in her final semester because she took classes in the summer of 2020 for a total of 6 credits. Petitioner acknowledged that Allison did not attend college on a full time basis for the Spring 2021 semester.

Petitioner testified that the child Kyle is attending Suffolk Community College on a full-time basis. She stated that Kyle graduated from high school in 2018 and then attended SUNY Albany for 1.5 years through the Fall of 2019. Petitioner testified that Kyle was dismissed from SUNY Albany for academic reasons and he then enrolled at Suffolk Community College for the Spring of 2020. She stated that Kyle took 11 credits for the Fall of 2020 and 12 credits for the Spring of 2020. Petitioner reported that Kyle graduated with an Associates degree at the end of the Spring 2021 semester.

Petitioner testified that at the time that the parties signed the Stipulation of Settlement, they were sharing parenting time 50/50 with the children living with the parties full time on alternating weeks. She stated that the parties’ Stipulation of Settlement provided that neither party would pay child support to the other. The parties agreed that Petitioner would be responsible for Allison’s expenses and Respondent would be responsible for Kyle’s expenses. It was further agreed that the parties would share Kyle’s expenses when Allison was emancipated. Petitioner acknowledged that one of the definitions of emancipation in the Stipulation of Settlement is reaching the age of 21 years or 22 years if the child is attending college on a full-time and continuous basis in a program leading to a four year degree.

Petitioner reported that Allison went to college and lived on campus so the parties were sharing parenting time on a 50/50 basis for Kyle. She stated that Alliston stopped living on campus in early December of 2020 and began living with Petitioner on a full time basis in January of 2021. She stated that Kyle lived on campus when he attended SUNY Albany but that the parties would share parenting time on a 50/50 basis during school breaks except for the summer of 2020. Petitioner testified that Kyle resided with her on a full time basis during the summer of 2019 before returning to SUNY Albany. She stated that as of January of 2020 Kyle has been living with her on a full time basis.

Petitioner testified that the children follow the house rules and that they go to school, to work and to the gym. She stated that she pays for all of Allison’s expenses including, food, clothing, toiletries, hair cuts, car insurance and cell phone. She reported that she pays for all of Kyle’s expenses except for his cell phone. Petitioner testified that Respondent carries the health, dental and vision insurance for the children and that she is responsible for all of the co-pays. She reported that Respondent has not contributed to the children’s living expenses except for Kyle’s cell phone. Petitioner testified that she has asked Respondent to contribute to the children’s living expenses. She stated that Respondent contributes his 40 percent share of the children’s college expenses. Petitioner testified that both children have cars and work part-time but she was unaware of how much they earn. She reported that both children are in therapy. Allison has been attending for 2 years and Kyle just started approximately 1.5 months ago. Petitioner testified that she pays the co-payments for both children. She stated that she and Respondent recommended and encouraged the children to participate in therapy and that Respondent made participation a rule for his household.

Petitioner testified that she is employed as a chemist at Estee Lauder and earned $131,000.00 in 2020.

Petitioner testified that she does not have a relationship with Respondent and that they only communicate via email. She stated that she has encouraged the relationship between Respondent and the children since the parties divorced. Petitioner reported that Kyle and Respondent had arguments in the summer of 2019 and that she encouraged them to work things out. She stated that she has conversations with Kyle in which she encourages him to see Respondent and respond to Respondent’s text messages. She reported that Kyle has seen Respondent at holiday events such as going to his grandmother’s home on Easter. Petitioner testified that Allison also encourages Kyle to spend time with Respondent

Allison testified that she is 22 years old. She stated that she graduated from SUNY Stony Brook in May of 2021 with a degree in chemistry and chemical engineering. She reported that she took 2 classes in the Spring of 2021 for a total of 7 credits. Allison testified that she informed Respondent that she was only taking 2 classes and that Respondent was fine with it. She stated that she took 2 classes in the summer of 2020 for a total of 6 credits because she needed those classes for her degree. She stated that those classes were not offered every semester. Allison acknowledged that 7 credits is not a full time course load.

Kyle testified that he was 20 years old on his first day of testimony. He stated that he just graduated with an associates degree from Suffolk Community College with a 3.4 grade point average. He reported that he attended University of Albany for 3 semesters but had to leave after he was academically disqualified because of his low grades. Kyle testified that he enrolled full time at Suffolk Community College in January of 2020. He stated that he was one credit below full time in the Fall of 2020 but returned to full time in the Spring of 2021. He stated that he dropped a class toward the end of the Fall 2020 semester because his grade was not good and he did not want it on his transcript. Kyle reported that he applied to Hofstra University, SUNY Old Westbury and Farmingdale State College to obtain a bachelor degree. Kyle testified that he was accepted by Farmingdale State College and will attend full time for the Fall of 2021 and major in business management. He testified that he is projected to graduate in the Spring of 2023.

Kyle testified that he has been living with Petitioner since he left University of Albany. He stated that prior to that he split his time between Petitioner’s and Respondent’s homes. Kyle reported that he speaks to Respondent “here and there”. He did not recall telling Respondent that he did not want to speak to Respondent.

Kyle testified that he wanted to join a fraternity when he was at University of Albany and that Respondent disagreed with him joining. Kyle stated that he joined anyway. He reported that he lived with fraternity brothers while he was at school. He testified that he visited the University of Albany after he left against his father’s wishes. He stated that he went back because he was still paying rent and that he needed to get his belongings in case he found someone to take over the lease. Kyle reported that Respondent helped him to speak to a counselor at Suffolk Community College to get enrolled. He stated that he told Respondent about his Spring 2021 grades.

Kyle testified that he works at a restaurant 25 to 30 hours per week when he is not in school and approximately 12 hours per week when he is attending school.

Kyle testified that he has not spent time alone with his father in the past year. He stated that he saw Respondent at his grandmother’s home for Easter and his grandmother’s birthday.

Kyle testified that Respondent last gave him cash years ago. He stated that Respondent pays his phone bill and part of his car insurance. Kyle reported that Respondent attended Allison’s graduation. He stated that he informed Respondent that he graduated from Suffolk Community College but that Respondent did not offer to celebrate with him and did not give him a gift. Kyle testified that his step-brother, Justin, had a graduation celebration that Allison was invited to but not him. He stated that it did not feel good to not be invited but he understood that Justin “might have had some feelings about me not coming”. Kyle reported that Respondent encouraged him to apply for a summer job at Adventure Park in 2020 and that he got the job. He stated that Respondent planned a family gathering that he thought was a dinner but it was a lunch and he was unable to attend because he had to work. Kyle testified that Respondent told him in a text that he wanted to emancipate Kyle approximately 1 year ago. He stated that he found out that Respondent had filed a petition to emancipate him in February or March of this year when Petitioner showed him the petition. He reported that he reviewed the petition and the documents submitted to the court because Petitioner informed him that he might have to testify in court. He stated that Petitioner did not share her petition for child support. Kyle testified that is important to him for Respondent to be proud of me but that Respondent has not shown any support for me in a while. He stated that he would love to have a relationship with Respondent but that it is confusing to have Respondent see him at family gatherings where Respondent wants to talk to him and hug him but also wants to emancipate him.

Kyle acknowledged that Respondent has sent him over 400 communications over the past 18 months. He stated that he has not invited Respondent to spend time with him or volunteered to spend time with Respondent. He testified that he has not given Respondent a birthday or Father’s Day card for the past 2 to 3 years. Kyle testified that Respondent has never gone months without contacting him. He reported that most of Respondent’s texts are invitations to family dinners and activities.

Kyle testified that he does not pay rent to Petitioner. He stated that his family pays for tuition. He reported that he pays for his own gas, personal luxuries, clothes and haircuts. He stated that Petitioner likes to help him pay for his work clothes and haircuts. Kyle stated that he is 21 years old and is an adult.

Respondent testified that he filed the instant petition to have Kyle deemed to be constructively emancipated. He stated that Kyle was 14 years old when the parties got divorced. Respondent reported that he was a part of the process that resulted in Kyle attending University of Albany and that he was supportive of Kyle attending. He stated that Kyle wanted to travel to Canada with friends during his freshman year. Respondent stated that he had reservations about the timing of the trips which was 2 weeks before finals. He also had concerns about the cost and the different drinking laws in Canada. Respondent testified that he did not give Kyle permission to go on the trip but Petitioner allowed Kyle to go and helped him pay for the trip. Respondent testified that in the Spring of 2019 he had reservations about Kyle’s participation in an unsanctioned fraternity that was not approved by the university. He stated that Petitioner was concerned about how his participation would impact his grades but she “did not push back on his decision making”. He stated that he conveyed his reservations to Kyle but that Kyle continued to participate. He reported that Kyle texted him on Thanksgiving vacation to warn Respondent that he had bruises that he got while on campus and the severity of the bruises. Respondent said that he observed Kyle with bruises on his face, hands and elbows. Respondent testified that Kyle was academically dismissed at the end of the Fall 2019 semester. Respondent testified that he supported Kyle’s decision to enroll in Suffolk County Community college and the he assisted Kyle in making a schedule with an advisor.

Respondent testified that he objected to Kyle drinking and using drugs during his freshman year and when he returned home. He stated that his household rules include doing chores, having sit down dinners, working, not coming home very late and no vaping in the home. When Kyle returned home, Respondent stated that he informed Petitioner that Kyle was vaping and that he had found a vaping device in Kyle’s room. Respondent testified that Petitioner informed him that she had been aware that Kyle was vaping since January of 2019. He reported that Petitioner had never previously informed him that she was aware that Kyle was vaping. Respondent reported that he suspected that Kyle was drinking in 2019 because Kyle would take alcohol at family parties or come home looking like he was under the influence. He stated that there were times when he was concerned that Kyle was asking for money for gas and using it to purchase alcohol.

Respondent testified that Kyle wanted to go to University of Albany on the Friday before he was supposed to start classes at Suffolk Community College in 2020. He stated that he was concerned that Kyle was going backward when he was supposed to be starting over at Suffolk Community College. Respondent reported that he advised Petitioner that he was concerned about Kyle’s mental health and that Petitioner felt that it would make matters worse if they stopped Kyle from going to visit University of Albany. He stated that Petitioner allowed Kyle to go on the visit.

Respondent testified that another household rule was that Kyle would participate in therapy. He stated that he asked that Kyle see a therapist when he returned from Albany and while he was attending Suffolk Community College. He reported that he discussed therapy with Petitioner via email and she agreed that therapy would be a good idea. He testified that Kyle did not start attending therapy until a couple of weeks before the trial began.

Respondent testified that he asked Kyle to follow a parenting scheduled when he was home from school and asked Petitioner to have Kyle follow the schedule. He reported that Kyle has refused to follow the parenting schedule. Respondent testified that he invited Kyle to many family events and dinners at his home but Kyle would either decline or not respond at all. He stated that he had scheduled parenting time with Allison but Kyle would not make a schedule. Respondent reported that both children drive and can get to a parent’s home when they want to. He stated that he attended Allison’s graduation and invited Allison and Kyle to a dinner celebration but Kyle declined. He reported that he did not attend Kyle’s graduation from Suffolk Community College because he did not find out about the graduation until the trial. Respondent acknowledged that his step-son had a graduation celebration that Allison was invited to but not Kyle. He stated that Kyle informed him via text that he would be attending Farmingdale State College. Respondent testified that he has seen Kyle 3 times in the last year. Once was at his father’s funeral in August of 2020. The second time was in January of this year when Kyle came to Respondent’s home to pick up his ski clothes and Christmas gifts. The third time was at Easter of this year at his mother’s home but Kyle did not speak to him.

Respondent testified that he has always been there for Kyle. Respondent testified that he is proud that Kyle is getting back on track, that he obtained academic scholarships, that he works and that he interacts eloquently with peers and adults. He stated that Kyle should be emancipated because he wants to make his own decision without input from Respondent and without any parental intervention.

The parties’ Stipulation of Settlement provides that there would not be an order of support based on the fact that the parties’ would equally share custody of the two children. The parties further agreed that Petitioner would be responsible for Allison’s expenses and Respondent would be responsible for Kyle’s expenses. Upon Allison’s emancipation, the parties would equally share Kyle’s expenses.

ALLISON

Petitioner seeks an order of support for the child Allison on the grounds that Allison has been residing with Petitioner on a full-time basis since December of 2020. Article XXIX (Termination Events) of the Stipulation of Settlement provides that any child support obligation established under the agreement shall continue with respect to each child until a child attains the age of 21 years, or 22 years if attending college on a full time basis.

In Ayers v. Ayers, 92 A.D.3d 623, 624-625 (App. Div. 2d Dept. 2012) the court held that

a stipulation of settlement entered into by parties to a divorce proceeding constitutes a contract between them subject to the principles of contract interpretation (see Rainbow v. Swisher, 72 N.Y.2d 106 (1988); De Luca v. De Luca, 300 A.D.2d 342 (App.Div. 2d Dept. 2002); Girardin v. Girardin, 281 A.D.2d 457(App. Div. 2d Dept. 2001). Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used (see Slatt v. Slatt, 64 N.Y.2d 966 (1985); see also De Luca v. De Luca, 300 A.D.2d at 342). A court may not write into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms, and it may not construe the language in such a way as would distort the apparent meaning (see Cohen-Davidson v. Davidson, 291 A.D.2d 474, (App. Div. 2d Dept. 2002).

The child Allison turned 21 years of age on June 4, 2020. Petitioner filed the instant petition on February 5, 2021. At that time, Allison was attending SUNY Stony Brook for the Spring 2021 semester and carrying 7 credits. Both Petitioner and Allison acknowledged that carrying 7 credits is not a full time course load. The Stipulation of Settlement is clear that any support obligation terminates after 21 years of age if a child is not attending college on a full time basis. Given that Allison had turned 21 years of age and was no longer attending college on a full time basis, Respondent’s support obligation was terminated and Petitioner is not entitled to an order of support.

KYLE

Petitioner seeks an order of support for the child Kyle on the grounds that he has resided with her on a full-time basis since December of 2019. Petitioner filed the instant petition on February 5, 2021. Respondent filed a petition on March 16, 2021seeking to have the child Kyle declared emancipated based on Kyle’s refusal to maintain a relationship with Respondent.

Family Court Act §413(1)(a) mandates that a parent is obligated to support a child until the child is 21 years of age unless the child is emancipated prior to reaching that age. Emancipation events include joining the military, getting married, becoming self-supporting and economically independent, and abandoning the parent. Matter of Roe v. Doe, 29 N.Y.2d 188 (1971); Matter of Parker v. Stage, 43 N.Y.2d 128 (1977); Matter of Thomas B. v. Lydia D., 69 A.D.3d 24 (App. Div. 1st Dept. 2009); Matter of Donnelly v. Donnelly, 14 A.D.3d 811 ( App. Div. 3d Dept. 2005); Matter of Columbia County Dept. of Social Servs. v. Richard O., 262 A.D. 3d 913 App. Div. 3d Dept. 1999. Upon the child’s emancipation, the support obligation is suspended or terminated. Matter of Commissioner of Social Servs. v. Jones-Gamble, 227 AD2d 618 (App. Div. 2d Dept.1996). In addition, the courts have held that a child of employable age will be deemed to be emancipated when s/he abandons the parent’s home, without the parent’s consent, for the purpose of avoiding parental control. Under these circumstances the child forfeits the right to support. Matter Roe v. Doe 29 N.Y.2d 188 (1971); Parker v. Stage 43 N.Y.2d 128 (1977); Alice C. v. Bernard G.C. 193 A.D.2d 97 (App. Div. 2d Dept. 1993); Bailey v. Bailey 15 A.D.3d 577 (App. Div. 2d Dept. 2005)

In Matter of Jurgielewicz v. Johnston, 114 A.D.3d 945 (App. Div. 2d Dept. 2014), the court held that [u]nder the doctrine of constructive emancipation, a child of employable age who actively abandons [***2] the noncustodial parent by refusing all contact and visitation may forfeit any entitlement to support. A child’s mere reluctance to see a parent is not abandonment” (Matter of Barlow v. Barlow, 112 AD3d at 818; see Matter of Grucci v. Villanti, 108 AD3d 626, 626-627, 969 NYS2d 493 [2013]; Schulman v. Schulman, 101 AD3d at 1099; Matter of Glen L.S. v. Deborah A.S., 89 AD3d at 857; Matter of Turnow v. Stabile, 84 AD3d 1385, 1386, 924 NYS2d 292 [2011]). ” ‘[W]here it is the parent who causes a breakdown in communication with his [or her] child, or has made no serious effort to contact the child and exercise his [or her] visitation rights, the child will not be deemed to have abandoned the parent’ ” (Matter of Glen L.S. v. Deborah A.S., 89 AD3d at 857, quoting Matter of Alice C. v. Bernard G.C., 193 AD2d 97, 109, 602 NYS2d 623 [1993]; see Matter of Barlow v. Barlow, 112 AD3d 817, 976 NYS2d 573 [2013]; Schulman v. Schulman, 101 AD3d at 1099; Matter of Dewitt v. Giampietro, 66 AD3d 773, 774, [**735] 887 NYS2d 210 [2009]). Such a breakdown in communication between a parent and a child may result from the parent’s “malfeasance, misconduct, neglect, or abuse” (Matter of Barlow v. Barlow, 112 AD3d at 818, citing Matter of Wiegert v. Wiegert, 267 AD2d 620, 699 NYS2d 597 [1999]). Where a child justifiably refuses to continue a relationship with [***3] a parent due to such parental conduct, the child will not be deemed to be self-emancipated (see Matter of Barlow v. Barlow, 112 AD3d 817, 976 NYS2d 573 [2013]; Labanowski v. Labanowski, 49 AD3d 1051, 857 NYS2d 737 [2008]). “The burden of proof as to emancipation is on the party asserting it” (Schneider v. Schneider, 116 AD2d 714, 715, 498 NYS2d 23 [1986]; see Matter [****2] of [*946] Barlow v. Barlow, 112 AD3d 817, 976 NYS2d 573 [2013]; Schulman v. Schulman, 101 AD3d at 1099; Matter of Glen L.S. v. Deborah A.S., 89 AD3d at 857; Matter of Turnow v. Stabile, 84 AD3d at 1386).

In Matter of Roe v. Dow, 29 N.Y.2d 188 (1971) the 20-year-old daughter disobeyed her father by taking up residence with a female classmate in an off-campus apartment. Upon learning of his daughter’s actions, the father cut off all further support and instructed her to return to New York. Ignoring her father’s demands, the daughter sold her automobile, and elected to finish out the school year, living off the proceeds realized from the sale. Upon her return to New York, she chose to reside with the parents of a classmate on Long Island. Under these circumstances, the Court of Appeals concluded that the daughter was no longer entitled to support, holding that “where, as in the case at bar, a minor of employable age and in full possession of her faculties, voluntarily and without cause, abandons the parent’s home, against the will of the parent and for the purpose of avoiding parental control she forfeits her right to demand support.

Kyle was 20 years old when the instant petition was filed. He turned 21 years of age on August 16, 2021. It is clear that Kyle and Respondent have had a strained relationship since Kyle was dismissed from University of Albany. Both Petitioner and Respondent testified that Respondent disagreed with Kyle’s decision to join a fraternity and return to University of Albany for a visit after he was dismissed. Both Kyle and Respondent testified that Respondent helped Kyle secure admission to Suffolk County Community College. Thereafter, Respondent continued to try to have a relationship with Kyle by texting him and inviting him to family dinners and events. Respondent created a parenting schedule that Kyle did not adhere to. Both Kyle and Respondent testified that Kyle has not spent time with Respondent except for seeing him at events at other family member’s homes or events. Respondent testified that he has only seen Kyle in the last year at family events outside of his home and one time in January of 2021 when Kyle came to his home to pick up his ski equipment. Kyle did not inform Respondent that he was graduating from Suffolk Community College and did not invite Respondent to the graduation. Petitioner testified that she has encouraged Kyle to work on his relationship with Respondent.

Both Kyle and Respondent testified that Respondent told Kyle that he was emancipated approximately one year ago and the text messages in evidence substantiate that testimony. The court notes that Respondent’s statement regarding emancipation came after Respondent made numerous attempts to connect with Kyle that went ignored. The court also notes that it was not an appropriate response but it was an understandable response. The text messages also demonstrate that Respondent continued to reach out to Kyle and make arrangements to spend time together. Kyle continued to make himself unavailable to spend time with Respondent.

Kyle testified that he was accepted to Farmingdale State College during the pendency of this case and that he informed Respondent. He stated that he is enrolled full time. Petitioner did not submit any evidence to substantiate that Kyle is enrolled as a full time student.

Although Kyle has not refused all contact with Respondent, his contact with Respondent immediately prior to the filing of Petitioner’s petition and since the filing of Respondent’s petition has been minimal at best. Moreover, he has refused all meaningful visitation despite Respondent’s efforts.

In light of Kyle’s abandonment of his relationship with Respondent and the failure of Petitioner to submit evidence that Kyle is enrolled in college on a full time basis, the court finds the Kyle is emancipated and Petitioner is not entitled to an award of support.

Petitioner has not demonstrated sufficient change in circumstances to warrant the relief requested in that: both children are deemed emancipated as detailed above. Accordingly, the petition seeking an order of support for the 2 children is dismissed with prejudice.

Respondent has demonstrated sufficient change in circumstances to warrant the relief requested in that: both children are deemed emancipated and Respondent is not obligated to pay child support."