Wednesday, September 30, 2009


Yesterday, while representing tenants in Landlord/Tenant court, two things of interest came up:

1. Tom Suozzi's office has produced a booklet on obtaining financial and other assistance for the elderly and home bound. Contact the Nassau County Department of Social Services, 60 Charles Lindbergh Blvd., Uniondale, NY 11553-3656 for a copy.

2. Landlords seem to be getting tougher, not only in negotiating settlements for non-payment, but also as to who they will rent to. Be wary of housing discrimination - if you feel you have been a victim, contact The Nassau County Commission on Human Rights, 240 Old Country Road, Suite 606, Mineola, New York 11501 (516) 571-3662. Remember, housing discrimination based on your race, color, national origin, religion, sex, family status, or disability is illegal by federal law. If you have been trying to buy or rent a home or apartment and you believe your rights have been violated, you can file a fair housing complaint. The Office of Fair Housing and Equal Opportunity, Department of Housing and Urban Development has an on-line form or call toll-free 1 (800) 669-9777.

Tuesday, September 29, 2009


So what happened in scenario 2? Another long expensive matrimonial. Husband and wife tried too save expenses by negotiating the terms of their agreement and giving it to the lawyers. What the lawyers drafted and what they gave to the parties, upon my review, were not what they thought was in it. Wife had established residency in ABC State and had separation agreement filed in ABC State. Husband moves to XYZ state but was of course forced to retain a lawyer from ABC State and continually travels from XYZ State to ABC State to have visitation. Sometimes Wife travels with children to XYZ State. Both parties are extremely unhappy and Husband has stated he intends to file for a divorce. But where?

Monday, September 28, 2009


So what happened in scenario 1? A long expensive divorce action. Wife had established residency in ABC State for divorce action and one day, while Husband was visiting Wife and children, was served with divorce papers. Jurisdiction was firmly established in ABC State. Husband was forced to retain a lawyer from ABC State and had to continually travel from New York to ABC State to have visitation and participate in the 7 year plus divorce.

Sunday, September 27, 2009


Here is scenario 2. Husband and wife and children live in New York. Husband and wife begin to have problems. Husband and wife enter into separation agreement in New York which permits wife, who has family in ABC State, to move to ABC State. Wife moves to ABC State. Husband moves to XYZ State. Now what?

Saturday, September 26, 2009


Here is scenario 1. Husband and wife and children live in New York. Husband and wife begin to have problems. Wife, who has family in ABC State, says to husband that the problem is she needs to be with family in ABC State. Wife & husband move to ABC State. Husband, however, can only reside in ABC State during weekends as husband works in New York and cannot transfer his business to New York. After residency time of ABC State is obtained, Wife sues Husband for divorce seeking custody, support, etc. Husband is in shock. How could this have been prevented?

Friday, September 25, 2009


Following yesterday's post - let us mention relocation - when one parent moves or wants to move. This becomes a custodial issue when the "custodial" parent wants to move away with a child, often out-of-state, which of course disrupts the parenting schedule now in place. If the "non-custodial" parent objects, there is an issue for the court. The jdge may permit this relocation based on what's best for the child. Sometimes of course, a parent will simply take a child and move to another state, or even another country, without the other parent's consent or court permission, and then a very heavy litigation will develop. I bring this issue up, in light of yesterday's discussion, and because of a blog which is worth repeating - and although it is talking about the situation in Philadelphia, I believe the situation is the same here in Nassau County:

"Wednesday, September 23, 2009
The New Economic Realities of Family Court

I have had a hiatus from The Legal Intelligencer blog, but I am now comfortably situated at Duane Morris and Eckert Seamans Cherin & Mellott is lucky to have my friend, Mike Meehan, and many of my former Wolf Block partners as members.

Thanks to Meehan, I recently spoke with Judge Margaret Murphy at Family Court in Philadelphia. Murphy explained to me that the economy has had a big impact on decisions in Family Court. Just as the economy has hit us all, parties in Family Court have suffered from layoffs, work hour reductions, changes in benefits and decreased retirement assets. Murphy said she isn’t necessarily seeing a change in the volume of cases, which always seems remarkably high. Rather, the economy has changed the types of the disputes that she hears relating to child and spousal support and equitable distribution.

It’s not just that support payments are being reduced because of income changes. Other aspects of support are also affected by economic circumstances. By way of example, an issue arising with frequency is school choice. Parents unable to agree on the school that a child will attend often seek judicial intervention. In the past, arguments focused on what type of private or parochial school would most benefit the child. With layoffs and changes in income, Murphy is seeing more parents financially unable to pay for any private school. In other settings, one parent may agree to provide support while a child attends college. More and more parents are unable to afford this form of agreed upon support. Sometimes it is a simple inability to pay because of a lost job. Other times, a lender may refuse to allow a parent to co-sign a student loan because of the parent’s decreased income or because real estate values are so depressed as to make the parent non-creditworthy.

The loss of medical coverage, either because of a lost job or because job benefits are cut, is occurring more frequently. For example, if a parent loses a job and thus loses health coverage, the cost of COBRA can be exorbitant, particularly when coupled with a loss of income. The loss of medical coverage affects not only well-care checkups of dependent children, but other types of treatment as well, such as orthodontic treatment. While Murphy routinely refers dependent children to the CHIP program, parents may have little choice but to go without health care or elective medical treatment for children.

According to Murphy, the economy also is changing the dynamics of equitable distribution calculations. Businesses that were at one time flourishing, or at least profitable, may be subject to significant reductions in value, thereby changing the equation for the division of marital property.

The same is true for depressed real estate values. In the past, refinancing was a method of choice to divide the marital home, allowing one spouse’s interest to be purchased by the other through refinancing. With decreased property values and less credit available, refinancing is not always an option. As a consequence, Murphy said she is seeing more marital homes being marketed for outright sale. The sale of the marital home in a depressed market brings on its own set of problems, as sales may be slow and at reduced sale prices. Some families may own vacation property, which replicates the problems in the division of the marital home. The vacation home market is challenging for the additional reason that the market is driven by buyers who can afford the luxury of a second home – a relative rarity in this economy. Families also have been hit hard by the expenses that come with second homes, such as increased taxes in some states and the costs of maintaining these properties.

All of us shuddered to watch our retirement accounts decline last year. Murphy calls these passive declines. Passive declines in IRAs and 401K plans have had a decided effect on equitable distribution. In the past, if one party to the marriage had established a sizeable retirement account, alimony could be reduced or the marital estate partitioned based on the assets in the account. Although few and far between, Murphy has seen parties claim that these declines were not passive, and that the accountholder should have foreseen the economic collapse and invested more conservatively.

In short, the economy is having a significant impact in the way in which issues are heard in Family Court. As the economy establishes its footing, no doubt these issues will be revisited under yet another set of changing economic circumstances.

Charlotte E. Thomas
Duane Morris LLP

Posted at 11:44 AM in Charlotte E. Thomas, Courts, Family Law |"
Copyright The Legal Intelligencer Post

Thursday, September 24, 2009


This problem has come up several times so let's begin slowly with the law. A New York judgment of divorce is obtained. One ex-spouse moves away to another state. What happens? Here first is a discussion from which accurately describes the issue of a sister state recognizing the divorce decree of another state:

"All states treat a divorce decree as valid as long as one spouse fulfilled the state law requirements in the state where that spouse filed for divorce. Usually that means that the spouse must have been a resident of the state for a certain period of time prior to filing for divorce. Sister states must recognize a divorce decree as valid when it is based on the Full Faith and Credit Clause, but they may also treat a decree as valid based on the legal principle of comity.

Full Faith and Credit
Under the Full Faith and Credit Clause of the United States Constitution, a state must recognize the public acts, records and judicial proceedings of every other state. It requires that any final judgment entered by the courts of a state acting consistent with state laws and with constitutional requirements, must be recognized and enforced in every other state.

Even if the Full Faith and Credit Clause does not apply to a divorce case, such as when it is proven that the spouse who filed for divorce had not met the residency requirements of the state where the divorce decree was granted, a sister state court may give recognition to the judgment of another state as a matter of comity. Comity is where a court recognizes a sister state court order, as a matter of courtesy, when it is not compelled to do so.

For example, divorce decrees entered in states allowing for jurisdiction on the basis of mere residence may be recognized elsewhere as a matter of comity. A decree given recognition as a matter of comity can have the same effect as one given full faith and credit."

Wednesday, September 23, 2009


Wednesday Sept. 23, 2009 - 12:00-2 p.m. at the Nassau County Bar Association

Just as they often go unshod... so, too, lawyers often neglect taking care of the very matters they zealously urge their clients to address. This lunchtime program will offer advice about health care proxies and an opportunity for you to execute one of your own. For judges, court personnel and NCBA member attorneys. Contact Mindy SantaMaria at 516-747-4070 x.210 or

Tuesday, September 22, 2009


I had a hearing the other day as to whether a legal paper was actually served. The attorney who was in charge of the mailing of the legal paper, on my cross-examination, testified that he kept no time records, no calendar, no book keeping records, all of which was admitted by the judge on the issue of credibility. Now the Appellate Division has held that to be afforded a presumption of mailing, the party must present proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed. Also, Rule 1.5 and Rule 1.15 of the Code of Professional Conduct require attorneys to keep accurate records. Also, if you carry malpractice insurance (which attorneys should and the attorney who testified did not), the carrier will require you to have a record keeping system. My advice to other counsel - keep records, even if you charge a flat fee. My advice to clients - make sure your counsel keeps accurate records!

Monday, September 21, 2009


This came up the other day and fits in with yesterday's discussion on willful misrepresentations and allegations of misconduct. Please keep copies of all job evaluations and warning notices you receive...sometimes, after you receive them, you may want to contact an attorney to see what the proper response should be. But, in any event, if you are later terminated and seek benefits, but are denied, your hearing will be delayed as your attorney will need to see these evaluations, etc. before the hearing. If they are not already in the file, they will have to be subpoenaed and this causes further delay.

Sunday, September 20, 2009


Section 594 of the Unemployment Insurance Law provides that "a claimant who has wilfully made a false statement or representation to obtain any benefit ... shall forfeit benefits for at least the first four but not more than the first eighty effective days following discovery of such offense ...". It further provides that the claimant shall be deemed to have received benefits for such forfeited effective days", and that "A claimant shall refund all moneys received because of such false statement ...". Yesterday, I received a favorable decision on a matter. A claimant was denied benefits due to misconduct and I was able to establish that the actions complained of were not misconduct; however, when the claimant first filed the claim, the claimant made a statement that employment was terminated due to the economy, despite the fact that it was clear that the claimant's employer was was not happy with the performance of the claimant. A determination and four day penalty of willful misrepresentation was also made by the Department of Labor and that determination was upheld by the Appeals Board. Now although the penalty only amounted to a few hundred dollars and the benefits the claimant will receive will be over $20,000, it is a reminder that in claiming benefits, the Department of Labor, after their investigation on a contested claim, may make a penalty determination for willful misrepresentation and 'willful' does not imply a criminal intent to defraud but means 'knowingly', 'intentionally', 'deliberately' to make a false statement. (Matter of Vick, 12 AD 2d 120). If you are discharged for an alleged misconduct, you may want to contact an attorney before you make your claim for unemployment benefits. An attorney can research the law, make sure your application is proper and avoid the risk of a determination of "willful misrepresentation". But in any case, be honest and truthful when filing your application and remember, just because your employer is unhappy with your work, there remain circumstances which would not justify the imposition of a disqualification for misconduct, including:

1. Mere inefficiency.

2. Inadequate performance as the result of inability or incapacity Inadvertence or ordinary negligence in isolated instances (not from gross negligence, indifference, or recurrent carelessness).

3. Good faith errors in judgment or discretion.

Saturday, September 19, 2009


I am awaiting a decision on a case on whether an individual quit or was fired. The Unemployment Insurance Law requires that a claimant voluntarily separated from employment be disqualified if the separation is "without good cause" (Section 593.1 (a)). The term "voluntary separation" as used in the statute means leaving employment of one’s own free will. Without going into details of the facts of the case, I point out that if you are an employee and are being discharged for any reason, you should never sign a document without it being reviewed by a lawyer as it might contain language that may hurt you in claiming benefits. If, after some meeting or altercation with your employer, you are unsure as to whether or not your employer has fired you, don't just pack and leave - check with your supervisor and perhaps one other so more than one individual has made it clear that you were fired. I have seen situation, now several times, where, after an altercation, employers have given unclear signals which the employee interprets as being fired; later the employer will state that the employer was not fired but quit.

Friday, September 18, 2009


LIPA is offering a $200 bill credit! Applicants must meet the following guidelines and show proof:

- Age 62 or older
- LIPA account customer of record
- Income eligibility based on 2008/09 HEAP income guidelines

Customers can apply in company offices where a designated LIPA representative will handle applications. Or call 800 490-0025 for an application. It is not required that the customer have arrears, but the credit is limited. The credit will take about 6-8 weeks to process. A link to the LIPA website explaining the program can be found in the title above.

Thursday, September 17, 2009


This recently came up and is a lesson to always read everything. If you had a hearing contesting the detrmination of the Department of Labor and lost and now wish to go the extra step and appeal to the Appeals Board, go to the NYS UI Appeals Board FAQ, it will state:


What can I do if I don’t agree with the judge’s decision?

If you were at the hearing and lost all or part of the case, you may file an appeal to the Appeal Board. The decision will contain instructions explaining how to file an appeal. You can appeal in writing, either by letter sent to the Appeal Board at PO Box 15126, Albany, NY 12212-5126, or by fax to 402-6208. Your letter must include the ALJ Case Number (which is listed on the decision above the claimant’s name).

An appeal must be postmarked or faxed no later than 20 days after the date printed or stamped on the front of the ALJ decision. The 20-day time period includes all weekends and holidays."

BUT - what the FAQ does not state is that the letter requesting the appeal must include a reason for the appeal, which although not contained in the FAQ, is clearly stated on the instructions contained on the reverse side of the ALJ decision.

Wednesday, September 16, 2009


I have a hearing on this issue this morning. Here is the law as stated in my most recent research in Wilfred Hernandez, Plaintiff, v. Merchants Mutual Insurance Company, et al. , 25912/02, Supreme Court of the State of New York, Bronx County (December 6, 2006):

"It is settled law that a properly addressed and stamped envelope placed in a U.S. mailbox is presumed to have been received by the addressee. (See generally Nassau Ins. Co v. Murray, [1978]; Morrison Cohen Singer & Weinstein, LLP v. Brophy,[1st Dept. 2005]). To be afforded such a presumption, however, a party must present either "proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed." (Residential Holding Corp. v. Scottsdale Ins. Co., [2nd Dept. 2001]; see also Murray, supra, 46 NY2d at 829). The Appellate Division recently held that testimony which included a description of a mailing procedure such as a certificate of mailing, and a mail ledger signed, dated, and stamped by a U.S. postal worker, sufficiently described office procedures designed to ensure that mailings are done properly creating a presumption of mailing. (Residential Holding Corp., supra, ). On the other hand, where a defendant insurance company submitted an affidavit by its employee who merely stated that the insurer "wrote directly to the insured," unsupported by either a proof of mailing or proof of standard office practice, the Court found that plaintiff's denial of receipt "raise[d] questions of fact about the effectiveness of defendant's purported notice of cancellation that must await determination at trial." (Tracy v. William Penn Life Ins. Co., 3rd Dept. 1996]).

Tuesday, September 15, 2009


It is well settled that as "long as the purchasers exert a genuine good faith effort to secure the mortgage financing and act in good faith, they are entitled to rely on the contract and may recover their down payment if the mortgage is not, in fact, approved" ( Cone v Daus , 120 AD2d 788, 790 [citation omitted]). It is also well settled that good faith performance may be satisfied as a matter of law by a buyer's mortgage application to one bank if that is all that the contract requires ( see, Ruggeri v Brenner , 186 AD2d 441, lv denied , [good faith found with one mortgage application when contract required buyer to apply to a lending institution of "plaintiff's choice"]; Macho Assets v Spring Corp ., 128 AD2d 680, lv denied , 69 NY2d 609 [good faith found with one mortgage application when contract required buyer to apply to a lending institution which was selected by purchaser]; Glassman v Gerstein , 10 AD2d 875 [good faith found with one mortgage application when contract required buyer to apply to "a lending institution"]. Thus, if your mortgage is not approved due to a lack of proper building permits, all should be well, unless of course the buyer is the cause of the lack of building permits. See MAXWELL v. DONALDSON, 0022343/2006 (6-18-2007) (Queens County.) ("In this regard, defendant cannot assert the failure of plaintiffs to perform if defendant has frustrated or prevented the performance (See, Steven Strong Development Corp. v Washington Medical Associates,303 AD2d 878; A-1 General Contracting Inc. v River Market Commodities Inc., 212 AD2d 897; Hidden Meadows Development Co. v Parmelee's Forest Products Inc., 289 AD2d 642; Young v Whitney, 111 AD2d 1013). Moreover, where the delay in the completion of a contract is caused by a party, that party will not be allowed to assert to its advantage the other party's failure to perform in a timely manner (See, Staten Island Supply Co., Inc. v Beverly-Glenwood Richmond Corp., 96 AD2d 553; Janowitz Bros. Venture v 25-30 120th Street Queens Corp., 75 AD2d 203). In the case at bar, plaintiffs have successfully raised issues of fact concerning whether, under all of the circumstances of this case, the actions of the defendant, especially in allegedly improperly altering the premises,prevented the plaintiffs from obtaining a firm mortgage commitment in a timely manner.")

This is from the Town of Homestead's website:


1. A completed Building Permit application form.
2. Three (3) recent complete (unaltered) surveys by a licensed land surveyor, showing the plot and all existing buildings and structures.
3. One (1) photostat of a recent tax bill, showing Section, Block, and Lot.
4. Two photostats of a Plot Plan. (See Instructions).
5. If case is destined for the Board of Zoning Appeals, nine plot plans will be required with all dimensions shown (house, side, front and rear yards).
6. Plumbing Permit application or affidavit of no plumbing and electrical.
7. Two (2) sets of CONSTRUCTION DRAWINGS. (See Below).
Certificate of Worker's Compensation.
8. If the application is destined to go before the Board of Zoning Appeals, a recent record search sheet is required.
9. In the case of a Board of Zoning Appeals application, four photographs showing all four sides of the dwelling and any/all structures on site are required.

The applicant shall carefully follow all instructions on the application form and answer every applicable question thereon. Applications that are illegible or that contain erasures or scratched out words will not be accepted.

The applicant shall indicate on the "Plot Plan", the average front yard setback of the existing buildings within 200' of the subject premises on the same side of the street, and within the same block. If there are no buildings on the same side of the street, the average setback of the existing buildings on the opposite side of the street shall be indicated. Proposed additions and leftover dimensions must be drawn on the Plot plan. The Plot Plan should then be photostatted in duplicate and submitted to this office.

No person shall be permitted to alter any application except the applicant.

THE APPLICATION is a sworn statement. Anyone knowingly entering false information thereon may be guilty of a criminal offense.

Construction Drawings

The application shall be accompanied by structural drawings, prepared in a standard architectural manner to scale of not less than one quarter of an inch to one foot.

Blue or Black Line Ozalid Type Prints made from original tracings are required.

The drawings shall include a foundation plan, floor plan, cross sections, elevations, and necessary details to the following items must be submitted:

1. Completely describe the proposed work.
2. All symbols used on drawings to describe methods or materials etc. are to be standard architectural symbols.
I3. n case where the proposed work exceeds the limits described in Sec. 7302 of the Education Law of the State of New York, the Seal and Signature of a Licensed Architect or Professional Engineer will be required on the drawings.
Foundation Plans

Foundation plans shall include the following minimum information:

1. Size of footing.
2. Size and material of foundation walls.
3. Size and location of column or pier footings.
4. Size, material and spacing of columns or piers.
5. Size and material of girders.
6. Size, spacing and direction of joists above.
7. Size and spacing of anchor bolts.
8. Access to, and ventilation for, crawl spaces or cellars.
9. Thickness of concrete floor slabs.

In the case of one story frame structures where the first floor is a concrete slab on earth, and the floor slab is pored monolithically with the foundation walls, trench footings will be permitted.

In cases where a crawl space or cellar is provided, a "tee" or spread footing will be required.

In all cases, footing sizes must be proportioned to uniformly distribute the imposed loads.

In areas where unusual soil conditions are suspected, a test boring may be required to justify the proposed foundation design.

Floor Plans

Floor plans shall include the following:

1. Size and use of all rooms.
2. Size and location of all openings in exterior walls so that available light and ventilation can be determined.
3. In the case of additions to existing dwellings, indicate method for supplying light and ventilation to existing rooms that may be cut of by the proposed addition.
4. Size and swing of all doors.
5. Size and material of all headers and lintels.
6. Size, spacing and direction of joists above.
7. Indicate load bearing partitions.
8. Section cut lines.

Sections and Details

The drawings shall include the necessary cross or longitudinal sections and details to fully illustrate the proposed construction.

The sections shall indicate the following:

1. Size and material of all members shown.
2. Floor to ceiling height, depth of crawl spaces, and depth of footings below finished grade.
3. Roof pitch, expressed as a proportion of rise to run.
4. Location and type of bridging.
5. The line along which the section was taken shall be indicated on the floor plan.

Unusual framing methods are to be illustrated by details drawings.

Laminated or compound structural members are to be fully detailed.

Trusses or trussed rafters shall be accompanied by a stress diagram and computations.

Fireplace chimney details shall include a plan, section, and elevation. The area of the flue must be proportioned to the hearth opening in accordance with generally accepted standards. A minimum of 8" of masonry is required between the flue and wood frame. No framing will be permitted to bear on the masonry of the chimney.

Second Story Additions

Where a second story, full double dormer or full single dormer are to be erected above an existing dwelling, the plans shall include a first floor layout and cellar plan of the existing building, in addition to the drawings of the proposed construction. The plans of the existing conditions may be prepared at 1/8"- 1'-0" scale and shall indicate the location of bearing partitions, size of girders, and the location, size and spacing of existing columns or piers. A full double dormer and a full single dormer, for the purpose of this section shall be defined as, in excess of 50% of the existing roof line.

General Notes

Notes on the drawings shall include information on the following:

1. Assumed soil bearing capacity.
2. Maximum permitted fibre stresses for all structural materials used.
3. Any information that will aid in interpretation of the drawing.

The information contained in these sheets has been complied in order to assist persons interested in filing for Building Permits.

These requirements represent the minimum standards for filing and any additional information supplied will certainly expedite the issuance of a permit.

These sheets will be revised from time to time as conditions demand.

PLEASE NOTE, that if work performed under this Building Permit produces solid waste in any form as a consequence of such work, that it shall be the responsibility of the Permitee, to dispose of such solid waste as part of the construction or reconstruction project. Department of Sanitation regulations preclude the collection of the residual of construction or construction renovation materials. Disposal facilities for such materials generated are available for this purpose, for use by the contractor or permit-holder.

It is the policy of this department to abandon and destroy, without notification, any application that has been left dormant by the owner or agent thereof for 90 days. All fees paid in relation to such an application will be non-refundable and non-transferable."

Monday, September 14, 2009


This is for everyone in Long Island and the show is not that complicated (although lawyers can also use it for Continuing Legal Education credits): 90.3 FM: The Voice of Nassau Community College – WHPC is proud to provide quality programming for Nassau Community College and to its broad audience in the community it serves and that includes the program "Law You Should Know" on Monday 4pm, Tuesday 12pm & Sunday 7am in which Attorney Ken Landau shows you how to protect yourself against the loss of your liberty or property, how to seek compensation when you have been wronged and other legal issues. Be informed!

Sunday, September 13, 2009


You've been denied unemployment insurance benefits because your employer alleged misconduct, voluntary separation, or some other reason. You plan to appeal. But to protect your rights for benefits, you must appeal and also continue to claim weekly benefits for any week in which you are unemployed. Otherwise, when you appeal, and you win, you may forfeit payment of those weeks you did not file after you received your adverse Notice of determination. Claim your weekly unemployment benefits online using WEB-SERVICE. You may also use a touch-tone telephone or a telephone with a pulse/tone switch by calling TEL-SERVICE at 1-888-581-5812 for New York State residents or 1-888-864-9920 for out of state residents. Requirements for the filing of original and additional claims, reporting and certifying to unemployment at the local insurance office, and reporting to the employment service, are contained in the Unemployment Insurance Law, Section 596, and in the Commissioner of Labor's Regulations 40, 41, 42and 43. Although terminology in the Law and regulations varies, the filing of an original or additional claim is customarily referred to as compliance with registration requirements; reporting to the local insurance office (in person or by mail) to certify to a period of unemployment, and to the employment service as directed, are customarily referred to as compliance with reporting requirements.
Failure to comply with registration or reporting requirements may be excused by the Commissioner of Labor if good cause is shown. But my quick review of the Appeals Board cases show that rarely due they excuse a failure to claim weeklybenefits.

Saturday, September 12, 2009


Today, health care and medical insurance coverage are heated topics. And for those going through divorce, medical coverage has always been an issue. Effective September 21, 2009, the loss of health insurance benefits will be one of the enumerated factors to be considered in determining maintenance and equitable distribution. The other factors contained in Domestic Relations Law 236 Part B include:
a) the income and property of the respective parties including marital property distributed;
b) the duration of the marriage and the age and health of both parties;
c) the present and future earning capacity of both parties;
d) the ability of the party seeking maintenance to become self supporting and, if applicable, the period of time and training necessary therefor;
e) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
f) the presence of children of the marriage in the respective homes of the parties;
g) the tax consequences to each party;
h) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
i) the wasteful dissipation of marital property by either spouse;
j) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
k) any other factor which the Court shall expressly find to be just and proper.
Even though the consideration of the cost or loss of medical insurance was not expressly provided for in the Domestic Relations Law, courts were always empowered to consider it under the catch-all "any other factor . . . the Court found to be proper" contained DRL 236. The new law, however, makes consideration of the cost of health insurance mandatory.

Friday, September 11, 2009


This is an issue I would like to here from people who have had this experience. An individual contacted me. This individual was determined to have received several thousand dollars in overpayments and stated that the Department of Labor sent a collection letter for repayment, threatening lawsuit, etc. I have not heard of this type of action being taken by the Department of Labor before and I did not see the letter but this is the information I obtained from the Department of Labor website on repayments of overpayments or penalties:

"Failure to repay an overpayment may result in additional charges for interest."

"In addition, arrangements have been made with other state agencies that enable the Department to intercept payments due you to repay amounts owed to the Department."

"If the Administrative Law Judge does not rule in your favor, you will be informed of whether you are required to repay any unemployment benefits that were issued to you and/or whether your rights to future benefits will be reduced due to a forfeit penalty."

"If you have been disqualified or suspended and file a new claim for benefits, you may be able to receive benefits after the suspension or disqualification ends, if, at that time, you can meet all of the tests for filing a new valid claim. If you are determined eligible for benefits on a new claim and have an outstanding overpayment or forfeit penalty, your rights to those benefits will be offset by the number of forfeit penalty days outstanding, up until the penalty expiration date. Once the forfeit penalty is satisfied, any benefits you are entitled to will be applied to offset an existing overpayment. When the overpayment has been repaid, you may receive weekly benefits under the same eligibility criteria as any other claimant."

"If you do not file a new claim, but are required to repay unemployment benefits issued to you, you may send a check or money order payable to Unemployment Insurance Division and mail it to Unemployment Insurance Division, NYS Department of Labor, P.O. Box 4320, Binghamton, NY 13902-4320. Be sure to write your Social Security number on each check or money order. For payment arrangements, call the Overpayment Unit."

Thursday, September 10, 2009


On one hand, it shouldn't hurt to be a child and Child Protective Services is responsible to investigate all allegations of Child Abuse and Neglect received.
On the other hand, Child Protective Service has acted improperly resulting in the devastation of many families in America. I have seen Child Protective Services abused by divorcing parents, quarrelling neighbors and overzealous and discriminatory investigators. I have attached two links regarding both sides, one for Nassau Child Protective Services and one for a national group opposed to certain aspects of Child Protective Services. If you feel your family is being wrongfully confronted with an investigation or any other issue with Child Protective Services, no matter how minor you believe it to be, you should consult an attorney.

Wednesday, September 9, 2009


I have now seen several cases where employees who are discharged are asked to sign a piece of paper. Some of these papers are entitled "Exit Interview", "Exit Receipt" or whatever. In some circumstances, after an employee is fired or downsized, many companies have the employee sign an acknowledgment of wrongful conduct or a letter of resignation - this will adversely affect your claim for unemployment benefits. In other circumstances, after an employee is fired or downsized, many companies have the employee sign a waiver giving up the right to sue for wrongful termination in exchange for a severance package. Whether these documents are enforceable is not always clear and will depend on the specific circumstances of each case. To be unenforceable, the employee will usually have to show that the document was signed under duress or as a result of some other wrongful action by the employer. If you have been terminated and asked to sign any document, you should speak to a lawyer before doing so. If you have already signed such a document, a lawyer can determine whether it is enforceable. A lawyer can also represent you in court.

Tuesday, September 8, 2009


As many times a first marriage will unfortunately end in divorce, so it goes for the second marriage: of course, in a second marriage, there are some additional issues, like how do you maintain a relationship with step-children you have formed a bond with. But also in a second marriage, usually one of the spouses has been using the marital assets of the second marriage to pay support, child or spousal, or other debts from the first marriage. And then the second marriage falls apart. And then one spouse says to the other: "You wasted all our money paying support and everything else from your first marriage...I WANT THAT MONEY BACK!" Previously, the Appellate Division held that the husband’s maintenance obligation to his first wife and other first marriage debts constituted a debt incurred by him prior to the parties’ marriage and were solely his responsibility. Accordingly, the wife was granted a credit for one half of the payments made. BUT NOT ANY MORE. Recently, the Court of Appeals issued its decision in Mahoney-Buntzman v. Mahoney, __ N.Y.2d __, 2009 N.Y. Slip. Op. 03629 (2009), and held that marital property used to pay maintenance and child support to the husband’s wife from a previous marriage should not be recouped to the marital estate. Specifically, the Court of Appeals held that: "[D]uring the life of any marriage, many payments are made, whether of debts old or new, or simply current expenses. If courts were to consider financial activities that occur and end during the course of a marriage, the result would be parties to a marriage seeking review of every debit and credit incurred. As a general rule, where the payments are made before either party is anticipating the end of the marriage, and there is no fraud or concealment, courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets. Nor should courts attempt to adjust for the fact that payments out of separate property may have benefited both parties, or even the non-titled spouse exclusively. The parties’ choice of how to spend funds during the course of the marriage should ordinarily be respected. Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end. Expenditures made during the life of the marriage towards maintenance to a former spouse, as well as payments made pursuant to a child support order, are obligations that do not enure solely to the benefit of one spouse. Payments made to a former spouse and/or children of an earlier marriage, even if made pursuant to court order, are not the type of liabilities entitled to recoupment. This is not to say that every expenditure of marital funds during the course of the marriage may not be considered in an equitable distribution calculation. Domestic Relations Law § 236(B)(5)(d)(13) expressly and broadly authorizes the trial court to take into account “any other factor which the court shall expressly find to be just and proper” in determining an equitable distribution of marital property. There may be circumstances where equity requires a credit to one spouse for marital property used to pay off the separate debt of one spouse or add to the value of one spouse’s separate property (see e.g. Micha v Micha, 213 AD2d 956, 957-958 [3d Dept 1995]; Carney v Carney, 202 AD2d 907[3d Dept 1994]). Further, to the extent that expenditures are truly excessive, the ability of one party to claim that the other has accomplished a “wasteful dissipation of assets” (DRL 236 [B][5][d][11]) by his or her expenditures provides protection. The payment of maintenance to a former spouse, however, does not fall under either of these categories."

Monday, September 7, 2009


Domestic Relations Law [section]236B (2) has been amended to add a paragraph "b" to require that: "The plaintiff shall cause to be served upon the defendant, simultaneous with the service of the summons, a copy of the automatic orders set forth in this paragraph. The automatic orders shall be binding upon the plaintiff in a matrimonial action immediately upon the filing of the summons, or summons and complaint, and upon the defendant immediately upon the service of the automatic orders with the summons. The automatic orders shall remain in full force and effect during the pendency of the action, unless terminated, modified or amended by further order of the court upon motion of either of the parties or upon written agreement between the parties duly executed and acknowledged." The text of the orders (e.g., restraining transfer of propertys, maintaining health insurance and life insurance)can be found online at New York State Senate or Assembly Web sites. The effective date for this requirement is Sept. 1. Matrimonial actions commencing on or after Sept. 1 must have the automatic orders attached to the summons. In addition, Domestic Relations Law [section]177, passed in 2007, which required notification to the parties that a spouse would likely lose health insurance coverage from the other spouse upon the entry of a divorce, has been repealed [section]177 and a new section, [section]255, provides that prior to signing a judgment of divorce or other matrimonial dissolution papers, a court must "ensure that": "1. Both parties have been notified, at such time and by such means as the court shall determine, that once the judgment is signed, a party may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan. Provided, however, service upon the defendant, simultaneous with the service of the summons, of a notice indicating that once the judgment is signed, a party thereto may or may not be eligible to be covered on the other party's health insurance plan, depending on the terms of the plan, shall be deemed sufficient notice to a defaulting party." Part 2 of the law provides that a "stipulation of settlement/ agreement" entered into between the parties must contain a provision "relating to the health care coverage of each party." This provision must also either "provide for the future coverage of a party or state that each party is aware that he or she will no longer by covered by the other party's health insurance plan" and give notice that the COBRA option may be available. The statute further provides that neither party nor counsel may waive this requirement, and that if "it is not complied with, the court shall require compliance and may grant a thirty-day continuance" to give a party a chance to get his or her own heath insurance. This statute becomes effective Oct. 1, and applies to all actions in which a judgment has not been entered as of that date.

Sunday, September 6, 2009


Recently, I was asked to handle a case pro bono where an individual wanted to challenge the decision of a zoning board. That individual also claimed to have the support of the community. Unfortunately, I had to decline because the costs of such a litigation can be extremely high but I suggested to the individual to form an association and, together, fight the zoning board. I also suggested that they contact the press and any local politician to gain support. Well that was just what happened with a group of residents in Merrick, Seaford and Wantagh in their fight against companies that have been installing wireless antenna systems on utility poles in front of their homes. The press constantly reported it. Finally, two individuals and a homeowners group instituted an action against the Town of Hempstead and for their attorney, they obtained a Democrat running for the county legislature. Sometimes, when private legal representation is unavailable, a little "grass roots movement" can accomplish a lot.

Saturday, September 5, 2009


And of course, the same rules apply on the federal level: Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
(a) Signature.
Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name - or by a party personally if the party is unrepresented. The paper must state the signer's address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.
(b) Representations to the Court.
By presenting to the court a pleading, written motion, or other paper -
whether by signing, filing, submitting, or later advocating it - an attorney or unrepresented party certifies that to the best of the person's knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of
(c) Sanctions.
(1) In General.
If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.
(2) Motion for Sanctions.
A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.
(3) On the Court's Initiative.
On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).
(4) Nature of a Sanction.
A sanction imposed under this rule must be limited to what suffices to deter
repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.
(5) Limitations on Monetary Sanctions.
The court must not impose a monetary sanction:
(A) against a represented party for violating Rule 11(b)(2); or
(B) on its own, unless it issued the show-cause order under Rule 11(c)(3)before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.
(6) Requirements for an Order.
An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.
(d) Inapplicability to Discovery.
This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37.

Friday, September 4, 2009


When I take on a case, I make sure it is not frivolous. Webster's defines frivolous as "1 a : of little weight or importance b : having no sound basis (as in fact or law) (a frivolous lawsuit) 2 a : lacking in seriousness b : marked by unbecoming levity." There is a law barring litigants and their attorneys taking frivolus actions in a litigation: The Official Compilation of Codes, Rules and Regulations of the State of New York, 22 N.Y.C.R.R. §130-1.1, provides, in pertinent part:
"(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs, in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct, as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-13 of this Subpart. This Part shall not apply to town or village courts, to proceedings in a small claims part of any court, or to proceedings in the Family Court commenced under article 3, 7 or 8 of the Family Court Act.
(b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either on attorney or a party to the litigation or against both. Where the award or sanction is against an attorney, it may be against the attorney personally or upon a Partnership, firm, corporation, government agency, prosecutor's office, legal aid society or public defender's office with which the attorney is associated and that has appeared as attorney of record. The award or sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or
corporation with which the attorney is associated.
(c) For purposes of this Part, conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.
Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.
(d) An award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court's own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case."

Thursday, September 3, 2009


This came to me yesterday so let me discuss it in a general way since it appears many renters think that if they are late on rent, they will be locked out the next day and all their belongings on the street. Not true. It's a hard economy: you are a renter. Perhaps you lost your job, are being denied unemployment insurance benefits, ex-spouse is not paying support, are late in rent. Advise the landlord immediately. Perhaps you can work out some reduction. If you can't work out a deal: you will not be thrown out right away or locked out. A tenant can be legally evicted only after the landlord has brought a court proceeding and has obtained a judgment of possession. A tenant should never ignore legal papers; an eviction notice can still be sent if a tenant did not appear in court to answer court papers (petition) sent by the landlord. Only a sheriff, marshal or constable can carry out a court-ordered warrant to evict a tenant. Landlords may not take the law into their own hands and evict a tenant by use of force or unlawful means. For example, a landlord cannot use threats of violence, remove a tenant’s possessions, lock the tenant out of the apartment, or willfully discontinue essential services such as water or heat. When a tenant is evicted, the landlord may not retain the tenant’s personal belongings or furniture. The landlord must give the tenant a reasonable amount of time to remove all belongings. RPAPL §749; Real Property Law § 235. A tenant who is evicted from an apartment in a forcible or unlawful manner is entitled to recover triple damages in a legal action against the landlord. So delay the process as best you may even have a valid defense for non-payment. When served with eviction proceeding papers (which will set a court date usually at District Court in Hempstead), appear, wait for the role call, and when you are called, ask for an attorney. They will refer you to Volunteer Lawyers Project of the Nassau/Suffolk Law Services, Inc. which is right near the courtroom. If you qualify, they will provide legal assistance to low income persons with housing problems, including eviction proceedings and other landlord-tenant problems, Section 8 subsidy and public housing issues and foreclosures. The unit is funded in part by the Homelessness Intervention Project of Nassau County DSS. If you want to try and contact them in advance, or ask for further instructions, contact the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc., One Helen Keller Way - 5th Floor, Hempstead, New York 11550, 516-292-8100. Naturally, if you can afford an attorney, get one.

Wednesday, September 2, 2009


Recently, I came across a case which may soon become common in Long Island as more people begin to rent homes or apartments in homes which have been converted. I know the economy is hard and we try to save money, but this case could have been avoided if the individual had renter's insurance. Here is a discussion of it from The Money Alert website:

"Renter's insurance assures you that you're protected against the damage or loss of personal property when you rent an apartment or house. Your landlord may have insurance that protects the physical building in which you reside, but this insurance will not cover your personal property. In fact, it's not at all
uncommon for landlords to require the purchase of renters insurance prior to renting or leasing. This is prudent for both the renter and the landlord, protecting both from the possibility of lawsuit by alleviating each other's respective liability.

In determining whether or not you need renters insurance, the questions you need to ask yourself are: How much would it cost to replace my belongings if they were damaged or stolen? And can I afford to replace them? Depending on your answer, renters insurance may be an easy choice, providing you with the protection you need. Either way, it's reassuring to have the peace of mind that comes from being

Things to consider before purchasing rental insurance:

How Much Coverage? – The amount of renters insurance you choose will have the biggest impact on price of coverage. It is important to insure against all of your property. Remember, you're not just insuring against theft. In the case of a fire, for example, you could lose everything.

Deductible – The amount of the deductible premium that you're willing to pay will have a major impact on the premium costs. The higher the deductible, the lower the cost of home renters insurance.

Actual Cash Value (ACV) – Type of coverage that will pay for what the item was actually worth at the time of loss. This basic coverage payout is determined by the cost to replace, minus depreciation.

Replacement Cost – Type of coverage that will provide for the actual replacement value of the item with no deduction for depreciation. Although replacement cost coverage comes at an additional premium, it's usuallyworth the relatively small increase in cost.

Here are a few ways to save on renters insurance. Many insurers will offer discounts, if you have some of the following:

- Monitored fire or burglar alarms

- Fire extinguishers

- Sprinkler systems

- Dead bolts on all exterior doors

- Auto insurance with that provider

If you own a dog, however, it may add to your premium. Due to liability issues, some insurers won't even offer insurance if certain dog breeds are owned. This discrimination is exclusive to certain larger working dog breeds. It's unfortunate because many of these breeds are good-natured and provide a great deterrent to theft. Yet, in the eye of the insurer, they're a risk. The insurance companies that do offer coverage for these breeds, will often do so at a premium.

Flood and Earthquake protection is not commonly included on rental insurance policies. If you live in an area where these natural disasters are more common, you may want to purchase an additional rider.

Liability coverage is most often a standard feature with renters insurance. This can prove invaluable in case of an accident, such as a slip or fall by a guest. It provides protection against legal claims that you may be obligated to pay, such as injury, sickness and death. It is, however, limited to the amount of liability coverage provided by your policy.

In order to avoid any disputes with your insurance company, it's recommended that you take an inventory of your personal items before purchasing rental insurance. This can be done by video taping or photographing each room of your house. It is important to keep all receipts for any major purchases, as well. The above should be kept offsite, in a fireproof safe or safety deposit box.

Fortunately, renters insurance is relatively inexpensive. If you're looking for cheap renters insurance, it is not uncommon to see policies with premiums that are less than $20 a month. And, thanks to the internet, you can get a competitive online renters insurance quote with relative ease. Always make sure to go with a reputable renters insurance company when choosing a policy. This eliminates any surprises should the unfortunate need arise.

Copyright © 2007 The Money All rights reserved."

Tuesday, September 1, 2009

New York Insurance Coverage Disputes

This is an issue that was presented to me recently: perhaps storm damage to your home or car leaves you and your family at a huge loss. Just when you thought "thank goodness we were insured", comes bad news......the insurance company denies all or part of your claim for the loss. There can be other similar situations. You are a property owner or general contractor and someone is injured on your property or construction site and sues you for their damages. Just when you thought "thank goodness we were insured", comes bad news......the insurance company denies your request for defense and indemnification against their personal injury claim. Unfortunately, in this economy, this happens frequently and it is reported that the denial of valid insurance claims is increasing as insurance companies try to protect their bottom line in today’s tough economy. THIS IS THE TIME TO READ YOUR POLICY AND CONSULT WITH AN ATTORNEY. Often times an insurance company may deny or disclaim coverage because of its own erroneous application of the insurance policy provisions and exclusions. A good attorney will listen to your concerns, review your policy and the law, provide you with an objective and knowledgeable assessment of your legal options, and formulate a plan for the successful resolution of your insurance dispute.