Wednesday, March 31, 2010


Now let's say the Claimant received a Notice of Adverse Determination on the grounds of Voluntary Separation Without Good Cause. Now in the statement to be prepared by the Claimant, the Claimant should be specific and in diary form give the following information:

1. Why did Claimant quit.

2. Describe the date, time, place, people present at the incidences that the Claimant feels gave them reason to quit,

3. Describe in detail each incident.

4. Describe in detail the steps Claimant made to resolve the issues before quitting (i.e. anything in writing, any complaint to union or to HR or to Supervisor) and what happened after those steps were made.

5. Describe in detail what the Claimant feels the employer was doing that was in violation of any state or federal law.

6. Describe in detail any changes in the terms and conditions of the Claimant's employment such as pay, work hours, work days, change in location, change in duties, etc.

7. Describe in detail any health issues that led to the Claimant quitting with appropriate medical documentation and whether and when that information was transmitted to the employer and, of course, describe in detail the steps Claimant made to resolve the issues before quitting (i.e. anything in writing, any complaint to union or to HR or to Supervisor) and what happened after those steps were made.

The attorney should of course research the Appeals Board and Appellate Division cases of voluntary separation and may have to seek out additional facts. An attorney should treat these type of hearings like any case: preparation is the key.

Tuesday, March 30, 2010


In the statement of facts that I referred to earlier, there are some basic facts that should of course be given by the Claimant:

1. Name of employer.

2. Nature of employer's business.

3. What date Claimant began employment.

4. How did Claimant obtain the employment.

5. What was Claimant employed as, viz job title.

6. What was Claimant's duties.

7. Was the job a union job.

8. Claimant's pay history.

9. The hours and days Claimant worked, viz., Claimant's regular schedule and actual schedule.

10. Whether Claimant received evaluations in writing or orally.

11. When was the last day of employment and what happened that day.

These questions, these facts, will be brought up at the hearing and may be determinative of the Claimant's case.

Monday, March 29, 2010


Documents - these are important: documents relating to the Claimant's employment, correspondence, emails, handbooks, evaluations, etc. as well as documents relating to the Claimant's application for benefits, questionnaire, notice of determinations, DOL correspondence, history of payments, etc. Many of these may turn up in the hearing file but in order to prepare, I feel an attorney should be reviewing this documentation well in advance.

Sunday, March 28, 2010


To prepare, I feel an attorney needs a complete narrative about the events leading up to and surrounding the lay-off, firing or quiting. I have found some Claimants do not want to do this work but it helps the Claimant to write this down (typewritten) as this refreshes their memory better than the Claimant sitting down and telling the attorney, either in person or over the phone, the long history of squabbles, disputes or other events in the workplace. Once the Claimant writes this down, the attorney then has a reference that will identify the Claimant's testimony and a reference for the attorney to identify the issues that are related to the firing/quitting/lay-off.

Saturday, March 27, 2010


I have written on this topic before but bring it up again as on several consultations it has been revealed that some Claimants, for whatever reason,have not been willing to provide counsel with a complete statement of facts and documents. Because of the nature of these hearings and the inability to obtain discovery, it is important for the Claimant to provide the attorney with a complete statement of facts and supporting documents. Some of the information can be classified as follows, to be furnished to the lawyer or representative in typewritten form:

1. Name

2. Addresses

3. Telephone numbers

4. Fax number

5. Email address

6. Employer

7. Occupation

8. Date of birth

9. Social security number

10. United States citizen? Immigration status:

11. What are the names of any other lawyers you have ever consulted regarding this case?

12. Describe and attach any papers you been served with concerning this case.

13. Describe any documents you have relating to this case.

14. Do you have access to your files or papers relating to this case?

15. Identify any witnesses or people with knowledge of the facts of this case.

16. Describe any statements you have made to anyone concerning this case.

17. MOST IMPORTANT - Describe in chronological order, a history of your relationship and issues concerning your employment. I will go more into this later.

Friday, March 26, 2010


From the CLE seminar held at the Nassau County Bar Association, courtesy of Empire Justice Center:

"Distressed Property Consultants

Upfront payment prohibited (adds Banking Law § 595-a(5)): Prohibits a “distressed property consultant” (defined in RPL § 265-b) from charging or accepting any payment for real property consulting services before the full completion of such service.

Attorneys, brokers and loan officers (amends RPL § 265-b): The 2008 Act created regulations for “distressed property consultants.” Attorneys were excluded from the definition of “distressed property consultants.” The definition is amended to exclude attorneys only “when the attorney is directly providing consulting services to a homeowner in the course of his or her regular legal practice.” 35 The 2008 Act also excluded mortgage brokers and loan services (as defined in Banking Law 12-D), however, the new law prohibits mortgage brokers and loan officers from taking any upfront fees in conjunction with activities constituting the business of a distressed property consultant. 36

Mortgage loan servicers (amends Banking Law § 590(2)(b) and (b-1))

A technical amendment is made, to comport with the 2008 Act, to include mortgage loan servicers in the list of entities that must be registered with the Banking Department. A provision also is added to allow the superintendent of the Banking Department to require registration and notifications to be made through Nationwide Mortgage Licensing System and Registry and describing how registration fees for mortgage loan servicers are to be collected and considered.

Residential Mortgage Fraud

Definition amended (amends Penal Law Article § 187.00): The 2008 Act codified “residential mortgage fraud.” The definition of “residential mortgage loan” is amended to include a loan modification (in addition to loan, agreement to extend credit and refinancing), and in the case of cooperative ownership, to include a proprietary lease from a corporation or partnership. Minor technical changes (wording) are made, as well.

Limitation on prosecution (adds Penal Law Article § 187.01): A new section is added to prohibit prosecution of anyone who applies for a residential mortgage loan who intends to occupy the residential property unless the individual acts as an accessory to the residential mortgage fraud. Minor technical amendments are made, as well.


35 Real Property Law § 265-b(2)(b)(1)(e)(i).
36 Real Property Law § 265-b(2)(b)(1)(e)(vii)."

Thursday, March 25, 2010


From the CLE seminar held at the Nassau County Bar Association, courtesy of Empire Justice Center:

"Duty to Maintain Foreclosed Properties (adds RPAPL § 1307)

Duty and rights: Effective April 14, 2010, a plaintiff who obtains a judgment of foreclosure and sale involving residential real property that is vacant, or becomes vacant post-judgment, or is abandoned by the mortgagor but occupied by a tenant, 27 must maintain the property until ownership is transferred (either through the closing of title in foreclosure, or otherwise) and the deed is recorded. “Maintain” means keeping the property in compliance with specified provisions of Chapter 3 of Property Maintenance Code of New York State, 28 and if occupied by a tenant, in a safe and habitable condition.

The prevailing plaintiff in the foreclosure has the right under this section to peaceably enter the property for the purposes of inspections, repairs and maintenance, or as otherwise provided by court. If a tenant occupies the property, the plaintiff must give the tenant seven days notice unless emergency repairs are needed.

The requirements do not apply if the mortgagor is in bankruptcy, unless an order lifting or removing the automatic stay of the foreclosure sale has been issued, or if a receiver of such property is serving. This section also does not apply to municipal and governmental agencies if they hold a mortgage subordinate to one or more mortgages on the property.

Remedies: The law specifically gives the municipality in which the property is located, a tenant lawfully in possession, and a condominium board of managers or homeowners association (if such premise is subject to rules and regulations of an association), a right of action to enforce this duty in court, after seven days notice to the plaintiff. Damages can include costs incurred to maintain the property. Nothing in this section extinguishes or diminishes in any way existing obligations to maintain, or liabilities for failure to do so, of the mortgagor, or a receiver of rents and profits appointed in an action to foreclose a mortgage, to maintain the property. 29


27 See footnote 25 for definition of “tenant.” RPAPL § 1305.
28 Specifically, the law requires the property be maintained pursuant to NY property maintenance Code Chapter 3, sections 301, 302 (excluding 302.2, 302.6 and 302.8), 304.1, 304.3, 304.7, 304.10, 304.12, 304.13, 304.15, 304.16, 307.1, and 308.1. RPAPL § 1307(5).
29 Id. at § 1307(3)."

Wednesday, March 24, 2010


From the CLE seminar held at the Nassau County Bar Association, courtesy of Empire Justice Center:

"Provisions to Help Tenants in Foreclosed Properties

Notice to tenants within 10 days of serving foreclosure on mortgagor (amends RPAPL §1303): Effective January 14, 2010, the foreclosing party must deliver a notice, prescribed by the law, to tenants within ten (10) days of the service of the summons and complaint to the mortgagor. 24 The notice must be on colored paper and on its own page, and informs the tenant that the building where their apartment is located is subject to a foreclosure proceeding, and that they may have the right to stay in occupancy for the remainder of their lease term, of if they have no written lease, for ninety days after they are informed of the name and contact information for the new owner by the person or entity who takes title (the “successor in interest”), and advised of their rights under the new RPAPL §1305. Tenants in 1 to 4 unit buildings must be sent the notice individually by first-class mail to the tenant’s address at the property if the tenant’s identity is known to the plaintiff, or to “occupant” if the identity is not known. For buildings with five or more dwelling units, the notice must be posted outside each exit and entrance.

Limited right of continued occupancy and notice thereof (adds RPAPL § 1305): Tenants 25 in properties in foreclosure are granted the right to remain in the property for ninety (90) days from the date they receive a notice from a successor in interest in the property, or until the end of their lease, whichever is greater. An exception exists that limits a tenant’s right of occupancy to ninety (90) days (for a single unit) if the successor in interest who acquires title intends to occupy a single unit as his or her primary residence and if the unit is not subject to a federal or state statutory system of subsidy or other federal or state statutory scheme. An owner of the residential real property is specifically excluded from the protections of this section. Tenancy continues under same terms and conditions of lease as were in effect at time of entry of judgment, or transfer of ownership including the obligation to pay “fair market rent,” defined as “rent for a unit of residential real property of similar size, location and condition.” 26

Any successor in interest must send a written notice to all tenants informing them of their rights, as well as the name and address of the new owner. Anyone who becomes a successor in interest subsequent to the sending of the 90 day notice must provide tenants with its name and address. The provision does not affect the successor’s right to evict a tenant, as provided for in law (after the greater of the expiration of the 90 day time period or at the end of the lease term), or earlier if the tenant does not pay rent pursuant to the lease.

The law specifically states that these rights are in addition to any other rights of a tenant under law, including rights of tenants not named in foreclosure actions, rights of tenants whose tenancy is subsidized by a government entity, or the rights of tenants whose tenancy is subject to rent control, rent stabilization or federal statutory schemes.

This section applies to actions in which the judgment of foreclosure and sale (under RPAPL §1351) is issued on or after January 14, 2009.


24 The notice is available on Empire Justice Center’s website at
25 “Tenant” is defined as any person who at the time the notice required by RPAPL § 1303(4) appears as a lessee on a lease of one or more dwelling units of a residential real property that is subordinate to the mortgage on such residential real property; or who at such time is a party to an oral or implied rental agreement with the mortgagor and obligated to pay rent to the mortgagor or such mortgagor’s representative, for the use or occupancy of one or more dwelling units of a residential real property. RPAPL § 1305(1)(c). The lease must also require payment of rent that is not substantially less than the fair market rent for the unit, unless the unit is subject to federal or state statutory system of subsidy or other federal or state statutory scheme. A tenant may not be the owner of the residential real property. RPAPL § 1305(2).
26 RPAPL § 1305(2)."

Tuesday, March 23, 2010


From the CLE seminar held at the Nassau County Bar Association, courtesy of Empire Justice Center:

"Mandatory Settlement Conferences

Conferences extended to all (amends CPLR 3408(a)): Effective February 13, 2010,13 the law extends the requirement for courts to hold a mandatory settlement conference to all borrowers with home loans 14 in which the defendant resides in the property (not just those with “high-cost,” “subprime” or “nontraditional” home loans as initially established in the 2008 Act). The conference must be held within 60 days from the date when proof of service is filed with the clerk, or on such adjourned date as agreed to by the parties.

Pending foreclosure actions: In pending foreclosure actions on home loans (that are not “high-cost,” or “subprime,” already subject to a mandatory settlement conference requirement) where the final order of judgment has not been rendered as of effective date of the conferences, the court shall notify the defendant that they have a right to request a settlement conference.

New requirements (adds CPLR 3408(d), (e), (f), (g), and (h)): Though the stated purpose of holding settlement discussions remains the same, 15 a requirement has been added that the parties “shall negotiate in good faith to reach a mutually agreeable resolution, including a loan modification, if possible.” 16 Another new provision prohibits either party from charging the other for any cost, including attorneys’ fees, for participation in the settlement conferences. 17 Plaintiffs are also newly required to file a notice of discontinuance and vacatur of lis pendens within 150 days after a settlement agreement or loan modification is executed. 18

Two additional requirements pertain to the courts. First, the court must “promptly” send a notice to both parties advising them of the time, place and purpose of the conference, and advising them of the documents they should bring. 19 The notice should be in a form prescribed by the Office of Court Administration (OCA), or by the administrative judge of the judicial district (at OCA’s discretion). Second, the court must send either a copy of the request for judicial intervention (RJI) or contact information for the defendant to housing counseling agencies designated by DHCR in the judicial district so that they may inform the homeowner of foreclosure prevention services and options available to them. 20

These provisions also are effective February 13, 2010.

OCA rulemaking and reporting: Within 90 days of the enactment of this legislation, OCA must promulgate rules to ensure the “just and expeditious processing of settlement conferences.” 21 Such rules shall provide those overseeing conferences the necessary authority to make sure the law is followed and the parties negotiate in good faith, including allowing OCA the ability to grant additional authority to courts to sanction egregious behavior. OCA is required to make annual reports (on November 1) to the governor and prescribed members of the legislature regarding the effectiveness of the settlement conferences.22

Other provisions remain the same: The ability of the court to appoint counsel in a case in which a defendant appears at the conference pro se, and the requirement that the plaintiff appear in person or by a representative with authority to settle the case either in person or by phone, remain the same. 23


13 The mandatory settlement conference provision sunsets five years from the effective date.
14 See footnote 5 for definition of “home loan” (RPAPL § 1304).
15 Settlement conference shall be held “for the purpose of holding settlement discussions pertaining to the relative rights and obligations of the parties under the mortgage loan documents, including, but not limited to determining whether the parties can reach a mutually agreeable resolution to help the defendant avoid losing his or her home, and evaluating the potential for a resolution in which payment schedules or amounts may be modified or other workout options may be agree to, and for whatever other purposes the court deems appropriate.” CPLR 3408(a).
16 CPLR 3408(f).
17 CPLR 3408(h).
18 CPLR 3408(g).
19 For plaintiff, such documents should include at least the payment history, an itemization of the cure and payoff amounts, the mortgage and the note; the defendant should be instructed to bring at least proof of income including most recent pay stubs, tax return, and property tax statements. The law also states that “If the plaintiff is not the owner of the mortgage and note, the plaintiff shall provide the name, address and telephone number of the legal owner of the mortgage and note.” CPLR 3408(e). This does not change any requirement already provided under law that the plaintiff be the legal owner and holder of the mortgage and note.
20 CPLR 3408(d).
21 Chapter 507 of the Laws of New York, 2009, sec.10-a(1).
22 Information to be collected by OCA and reported on includes “the number of adjournments, defaults, discontinuances, dismissals, conferences held, and defendants appearing with and without counsel.” Id. at sec.10-a(2).
23 See CPLR 3408"

Monday, March 22, 2010


From the CLE seminar held at the Nassau County Bar Association, courtesy of Empire Justice Center:

"The new law expands the requirement under RPAPL § 1304, providing that as of January 14, 2010, 3 a lender,4 assignee or a mortgage loan servicer must send a notice to all borrowers with a home loan 5 at least 90 days prior to the commencement of a legal action. (Previously, only borrowers with “high-cost,” “subprime” and “nontraditional” home loans had to be sent this notice. 6) A new provision requires the notice to be sent in a separate envelope from any other mailing or notice. The notice is the same as set forth in the Foreclosure Prevention and Responsible Lending Act of 2008 (“2008 Act”) and must be sent to the borrower by registered or certified mail, as well as by first-class mail, to the last known address of the borrower and if different, to the residence that is subject to the mortgage. The date the notice is mailed is the date that the notice is considered to be given.

Specific and personalized information required: The exact language required for the notice is set forth in the law. 7 The notice must be in fourteen-point font and must state that as of a specific date, the home loan is “X” number of days in default and that the homeowner is at risk of losing their home. The notice must also state that the homeowner can save their home by making a payment of “X” amount of dollars by a specific date, or may consider another option if they are having financial difficulty. The notice must set forth the telephone number of the lender or mortgage servicer, where the homeowner can contact them directly. The notice also must inform the borrower that it will be more beneficial to take immediate action as it is probable that there will be fewer options available the longer the homeowner waits. If the matter is not resolved in 90 days the lender or mortgage servicer can take action against the homeowner, or sooner, if the property is no longer the mortgagor’s primary residence.

Referrals to specified counseling services: One of the primary purposes of the notice is to refer borrowers to agencies that assist homeowners in doing work-outs with lenders, whether it be a loan modification, an easier payment plan, or a period of loan forbearance. The Division of Housing and Community Renewal and the Banking Department must make available on their websites the listing by region of such agencies. The lender or mortgage servicer must attach a list of at least five government approved housing counseling agencies in the homeowner’s geographic region that provide free or low-cost counseling. 8 The notice must also direct the homeowner to call the Banking Department’s Toll-Free Helpline or go to their website for more information.

Exemptions from the notice requirement: The 90-day period does not apply to mortgagors in bankruptcy, or if the borrower does not occupy that residence as their principal dwelling. The notice and the ninety-day period must be provided only once per year to the same borrower for the same loan.

Remedies: A defendant may raise a violation of this section as a defense to a foreclosure action


3 The 90 day notice provision sunsets five years from the effective date.
4 “Lender” means a mortgage banker as defined in Banking Law § 590.1(f) or an exempt organization as defined is Banking Law § 590.1(e). Private lenders who make under five mortgage loans in a year are not obligated to obtain a license under Banking Law § 590.1 to be a mortgage banker.
5 “Home loan” is defined as a loan, including an open-end credit plan in which the borrower is a natural person, the debt is incurred primarily for personal family, or household purposes, and the loan is secured by a mortgage or deed of trust on real estate improved by a one to four family dwelling, or a condominium unit, to be used or intended to be used or occupied wholly or partly, as the home or residence of one or more persons and which is or will be occupied by the borrower as their principal dwelling, but does not include a reverse mortgage transaction. RPAPL § 1304(5)(a).
6 Definitions for “subprime” and “nontraditional” home loans were removed from this section. The 2008 Act referenced the definition of “high-cost” home loans as set forth in Banking Law § 6-l for purposes of this section and therefore, the definition of “high-cost” home loan was not removed.
7 The notice is available on Empire Justice Center’s website at .
8 Agencies will include U.S. Dept of Housing and Urban Dev. Approved Housing Counseling Agencies or other such agencies as designated by the division of Housing and Community Renewal (DHCR). The list is provided to lenders by the NYS Banking Department and DHCR, available at .

Sunday, March 21, 2010


Another reposting from the Nassau County Bar Association - a call for more Spanish or Creole speaking volunteer lawyers at the mandatory settlement conferences and or clinics:

"Attorneys who speak Spanish or Creole are needed as volunteers for our free Mortgage Foreclosure Consultation Clinics at NCBA. We would like to have two Spanish-speaking volunteers for the next Consultation Clinic on April 12, 3:00 to 6:00 p.m. Homeowners not fluent in English have difficulty in communicating the details of their situation and in understanding recommendations of English-speaking attorneys. If you can assist in this vital service the Association offers to homeowners in distress, please contact Caryle Katz, to sign up for the April 12 Clinic, or for additional information. If you are unfamiliar with foreclosure law, you will have the opportunity to observe another attorney’s consultations to help you understand the procedure."

Saturday, March 20, 2010


I am reposting portions of an email from the Nassau County Bar Association - a call for more volunteer lawyers at the madatory settlement conferences (a training seminar was held on Thursday):

"It was a long program last night, packed with information which I hope you have since been able to digest and absorb. Now it’s time to put that knowledge to good use by volunteering to represent homeowners at a morning or afternoon session at the Supreme Court settlement conferences, which are held daily. Volunteers have no obligation to represent the homeowners beyond the period of the settlement conference; you are not expected to take them on as a pro bono case.

The other option is to volunteer to give individual consultations at a mortgage foreclosure consultation clinic, which we hold each month in the Lecture Room at Domus. Five attorneys are needed each month, and newcomers are welcome to sign up to sit with an experienced consulting attorney to observe and learn the procedure.


Bear in mind that the need is very great. The number of homeowners threatened with the loss of their homes grows daily, with no end in sight for the immediate future. We must do what we can to help those who are unable to help themselves. It’s up to people of good conscience to reach out a helping hand to them, and we’re counting on you to be one of those good people."

Friday, March 19, 2010


Yesterday I attended a mortgage foreclosure seminar at the Nassau County Bar Association. As if many in the area didn't know, the highest number of mortgage foreclosure filings are in Long Island, including Queens and Brooklyn, and there is a large number beginning in the Hudson Valley area.

Thursday, March 18, 2010



"There's a change in how child support is calculated in New York. The New York Child Support Modernization Act, starting January 31, 2010, changes the income range and formula used in figuring child support. The change means set rules apply when parents' incomes are up to $130,000. This number will adjust every two years, based on the Consumer Price index.

Three-Step Method for Determining Support

New York follows a three-step method for determining child support. First, the court adds up parents' combined income. Second, the combined income is multiplied by a certain percentage based on the number of children. For example, the combined income is multiplied by 17% if there's one child. Third, the court decides how much each parent pays for child support, based on each one's share of income.

Courts consider other factors besides combined income in setting child support. These factors include:

•Child's health and special needs
•Child's standard of living had parents stayed married
•Tax consequences
•Parents non-monetary contributions to the child
•Parents' educational needs
•Differences in parents' incomes
•Parents' children from other relationships and their support needs
•Out-of-the-ordinary visitation expenses
•Any other factors the court sees as important

Judges and magistrates have discretion in deciding support, and how they use the factors and methods above. However, a judge must explain his decision.

Impact of the New Law

The new law gives greater guidance given the new combined income cap amount - $130,000. It's expected more parents will use the new law and seek to update child support due to the income limit change. One purpose for the new law is to ensure that children receive sufficient support.

Questions for Your Attorney

•Is the change in the law a proper ground to ask for an increase in child support?
•Will the calculation of child support consider the income of someone who lives with me, such as a spouse if I remarry?
•How is the combined parental income determined?"

Wednesday, March 17, 2010


My first legal job was as a summer intern with the Attorney General's Charities Bureau, which is responsible for supervising charitable organizations to protect donors and beneficiaries of those charities from unscrupulous practices in the solicitation and management of charitable assets. My work involved, in part, investigating the improper activities of executors, administrators, trustees and personal representatives responsible for honoring gifts or bequests to a charity, even though those executors, etc. served without pay. So volunteers beware. Even an individual can attempt to take action against the charity, and the volunteer executors, etc., as illustrated in the recent case of JOHNSON v. BLACK EQUITY ALLIANCE, 106797/09 2010 NY Slip Op 50178(U) (Supreme Court of the State of New York, New York County, Decided January 21, 2010) but here the attempt to get personal liability failed:

"Unpaid directors are immune from suit under the New York Not-For-Profit Corporation Law (N-PCL) § 720-a and CPLR (a) (11), absent allegations of their gross negligence or intention to cause harm. Thus, as to plaintiff's causes of action alleged against the individual directors, they are properly dismissed (see Pontarelli v Shapero, , [1st Dept 1996]). "On a CPLR (a) (11) motion, Supreme Court is obligated to determine whether the defendant is entitled to the benefits conferred by N-PCL and, if it so finds, then it must ascertain whether there is a reasonable probability that the specific conduct of the defendant fell outside the protective shield afforded by N-PCL [citation1 omitted]" (see Martin v Columbia Greene Humane Society, Inc., , [3d Dept 2005]). The Individual Defendants all serve as directors of Black Equity without compensation for their directorial services, and it is undisputed that Black Equity is a charitable organization that is tax exempt pursuant to section (c) (3) of the Internal Revenue Code. In her opposition, plaintiff asserts that defendant Cheryle A. Wills (Wills) receives compensation from Black Equity; however, Wills' compensation is not based on her service as a director, but is paid pursuant to a separate consulting contract with Black Equity, by which she is engaged to develop a business plan for potential funding sources. Plaintiff does not allege that any of the other directors receive compensation, but contends that since they receive certain perquisites, such as Black Equity paying for their attendance at various events, they should not be considered to fall within the protective umbrella of N-PCL § . The legislative intent of section of the N-PCL is "to curtail litigation against persons engaged in nonpaid charitable activities . . ." (see Rabushka v Marks, , [3d Dept 1996]). Here, the complaint alleges wrongdoing against Wills perpetrated in her capacity as a nonpaid director of Black Equity, not in her role as a compensated consultant. Moreover, plaintiff did not cite any case or statutory reference that the perquisites stated by plaintiff constitute the type of compensation that would take the Individual Defendants out of section of the N-PCL. Therefore, with respect to the Individual Defendants, the court finds that they are entitled to N-PCL § protection, provided that the actions complained of do not constitute gross negligence or intentional harm. In order to prevail against an assertion of immunity, the plaintiff must demonstrate a "reasonable probability" that the Individual Defendants' conduct constitutes either gross negligence or was intended to cause harm. Thome v The Alexander & Louisa Calder Foundation, ___ AD3d ___, 890 NYS2d 16 (1st Dept 2009). The conclusory averments of plaintiff appearing in her complaint and opposition papers fall far short of satisfying this burden (see Pontarelli v Shapero, 231 AD2d 407, supra )."

So in order for personal liability to be found against the unpaid volunteer directors, the court must find that the actions complained of constitute gross negligence or intentional harm.

Tuesday, March 16, 2010


A recent consultation regarding an unemployment insurance matter revealed that the issue could be easily resolved in the Claimant's favor if the Claimant had taken a certain photograph with the Claimant's cell phone; however, the Claimant explained that the cell phone was an old one without a phone. With respect to certain matters, especially automobile and other property damage, it is best to have a camera on hand in your cell phone. Video with sound may also be useful in various matters, especially with certain matrimonial issues. I suggest all to have one but also beware as the following article from illustrates:

"These days, you can't walk down the street without seeing people chatting away on their cell phones, text messaging, or snapping a camera phone picture of a friend. But did you know that cell phones have also become an important part of criminal investigations?

Criminals and police are finding that cell phones can provide valuable evidence-and heated controversy-in some criminal cases.

NPR News reports the story of one Colorado high school where students' cell phones were seized and searched. School officials found mentions of marijuana use amid some of the text messages, but legal experts question whether the searches were lawful.

Some information discovered in the cell phone raid reportedly entered the students' discipline files, but the administrators' actions have met with much controversy. One student allegedly smashed her cell phone rather than subject it to a search she believed was inappropriate.

In New Jersey, police officers undergo rigorous training sessions to learn how to extract information from the hard drive of cell phones, according to Though computer-based information extraction procedures have been in place for years, cell phone investigations are fairly new.

Perhaps one of the most surprising facts about the role of cell phones in criminal law is how often suspects incriminate themselves with evidence from their phones.

The Wall Street Journal highlights the case of Morgan Kipper, a man who insisted he was innocent after being arrested for stealing cars and reselling their parts.

Apparently, when police got their hands of Kipper's camera phone, they found that the wallpaper background was a picture of Kipper in the driver's seat of a stolen Ferrari. After that, his criminal defense lawyer had a tougher time with the case.

Sources suggest that ordinary cell phone users don't realize how much information investigators can glean from cell phones-even messages and photos that have been deleted are stored on a phone's hard drive.

And, with all the new features cell phones have these days (including text messaging options, camera capabilities and video recording devices), police have a greater chance than ever of finding something incriminating for an investigation.

Software companies, too, have become aware of the trend. Vendors are pitching to investigators programs that help download phones' hard drives, sources report.

So how vulnerable is your phone information?

According to reports, police must get a warrant to search cell phone information, but some criminals post photos and videos on the Internet, making such warrants unnecessary.

Experts have commented that cell phones can be trickier to get information from than computers, because so many models of cell phones are out there. But, since most people never leave home without their cells, chances are good that evidence of a crime (if a crime was committed) will be somewhere in a phone.

The moral of the story? Experts suggest not texting anything you wouldn't want to see in a newspaper headline. Oh, and if you commit a crime, don't snap an image of yourself doing it."

Monday, March 15, 2010


A recent consultation regarded a request to terminate child support payments under the following circumstances: Child was 20 years old and residing with neither parent and residing in another state. This is from the New York State Court Help FAQ:

"Q. How old does a child have to be before child support ends?

A. In most cases, 21. If a child is under 21 and is either married, self-supporting, or in the military, a parent doesn't have to pay child support.

Q. Is there any other reason why child support might end?

A. A child between 17 and 21 who has left home and refuses to obey parents' reasonable commands can be considered "emancipated" by a court. In that case, child support might not have to be paid."

Sunday, March 14, 2010


An interesting consultation where it appeared that an employer, in order to avoid it's "workers" being considered as "employees", engaged in an elaborate set up involving stock ownership, partnership, various contracts, etc. in their position that it's "workers" are not "employees" under the Unemployment Insurance Law. My advice is to first contact the New York State Department of Labor at the address below. If you believe that some of your workers are independent contractors, of if you are a worker and are unsure of your status, ask the DOL's Liability and Determination Section for a formal determination by writing to the address below. Include a copy of any contract and details of the relationship between the parties.

New York State Department of Labor
Unemployment Insurance Division
Liability and Determination Section
P.O. Box 15122
State Office Building Campus
Albany, New York 12212-5122
Fax 518 485-6172

Saturday, March 13, 2010


A recent consultation raised the issue of religious beliefs and separation from work. The general rule, according to the Appeals Board website, is that one's refusal to attend work or to perform tasks which would violate one's religious beliefs is not disqualifying, as per AB 452,775:

"The credible evidence establishes that the claimant voluntarily left her employment because the employer could not relieve her from having to serve birthday cakes to customers, which act would violate her religious beliefs. The claimant took reasonable steps to protect her employment by suggesting alternative arrangements to the employer but due to the employer's size the employer, acting in good faith, could not reasonably accommodate claimant's religious beliefs. In the absence of any compelling State interest justifying the infringement of religious liberties, the State cannot deny unemployment insurance benefits because of conduct mandated by religious belief. Accordingly, we conclude that the claimant voluntarily left her job with good cause."

The comments to this case state:

"1. Claimant in this case had advised the employer at the time of hire of her religious beliefs. Based on her beliefs, she would not perform specific tasks. When the employer advised her that it would no longer accommodate her restrictions, claimant quit her job with good cause.

2. In another case (AB 433,355, not published) claimant's continued refusal to work on Sundays because of his religious beliefs is not misconduct. Claimant need not document membership in an established religious sect to demonstrate a sincerely held religious belief.

3. See also A750-2017, regarding Refusal of Employment"

But issues can arise when the employee's religious beliefs are not explained at the time of hire, or have changed after hire. And if the employee quits, the employer may also allege incidents of misconduct that led to the voluntary separation. Thus, my suggestion to employees who are faced with this situation, consult with an attorney, consult with the EEOC, and begin their documentation early, etc. before they voluntary quit.

Friday, March 12, 2010


In October 27 blog, I posted the following:

"Employee is a union member who is terminated. The union requests an arbitration and has an attorney for employee. In the meanwhile, employee has applied for unemployment insurance benefits and is denied for either misconduct or voluntary separation, etc. A hearing is requested by employee but the hearing is scheduled before the arbitration. Should the employee go ahead with the hearing prior to the arbitration? My initial suggestion would be to adjourn the hearing until the arbitration lawyer is at least consulted with. You would want to make sure with your arbitration attorney that nothing you do or say in the unemployment insurance hearing conflicts with your rights under the pending arbitration - or issues like collateral estoppel, res judicata, etc. But on the other hand, you are not receiving any money. I would like to hear from others on this."

I did hear from other attorneys from other legal groups but there was no consensus of opinion. The other day, however, I found the following case which I quote in part:

"PELZER v. TRANSEL ELEVATOR, 41 A.D.3d 379, 839 N.Y.S.2d 84[1st Dept 2007]

Because the doctrine of collateral estoppel is applicable to the quasi-judicial determinations of administrative agencies such as the Unemployment Insurance Appeal Board, such determinations become binding in a subsequent legal action for purposes of issue preclusion (Ryan v New York Tel. Co., 62 NY2d 494, 499 [1984]).However,"[s]ince administrative agencies are normally charged with making determinations based on unique, and often times complex,statutes and regulations which apply specifically to them, care must be taken in identifying the precise issue necessarily decided in the first proceeding and comparing it to the issue involved in the second proceeding" (Matter of Engel v Calgon Corp., 114 AD2d 108, 110 [1986], affd 69 NY2d 753 [1987])."

In this case, the issue was whether a finding of employee misconduct could be used in a subsequent negligence action against the employer by the employee, the court holding that a finding of misconduct would not defeat the employee's action for negligence by summary judgment and that the issue of negligence, viz., proximate cause, etc., was not determined in the Unemployment Insurance Hearing.

Thursday, March 11, 2010


A common question, and one that came up recently, is this: can a business owner collect UI benefits once the business is over. There is some law on this but I found one case that basically illustrates the rules and requirements for a business owner to collect:

"MENKOV v. COMM'R. OF LABOR, 62 A.D.3d 1193, 882 N.Y.S.2d 315 [3d Dept 2009]:

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 28, 2007, which, among other things, ruled that claimant was ineligible to receive unemployment insurance benefits because she was not totally unemployed.

Before: Mercure, J.P., Rose, Malone Jr., Stein and Garry, JJ., concur.

Claimant was the sole owner and officer of Danam Computer Services, Inc., which was created in 1996 to further her work as a computer consultant. In 2003, claimant made the decision to dissolve Danam and look for other employment. Claimant did not actually dissolve Danam until 2006, however, and completed additional projects through it from 2003 to 2005. Nevertheless, claimant applied for and received unemployment insurance benefits for two periods in 2003 and 2004. The Unemployment Insurance Appeal Board concluded that claimant was not totally unemployed and was ineligible to receive unemployment insurance benefits for either period. The Board further concluded that she made willful misrepresentations to obtain benefits and charged her with a recoverable overpayment pursuant to Labor Law § 597 (4). Claimant appeals.

"It is well settled that a principal of a corporation who performs activities on its behalf, even if minimal, will not be considered to be totally unemployed if such individual stands to benefit financially from the corporation's continued existence" (Matter of Ellison [Commissioner of Labor], 57 AD3d 1194, 1194 [2008] [citations omitted]; see Matter of Thomas [Commissioner of Labor], 58 AD3d 1099, 1099-1100 [ 2009]). Here, claimant did benefit financially from Danam given the projects she performed through it during the period in question. Moreover, she was a signatory to Danam's checking account and signed checks on its behalf for a variety of purposes, including for the purpose of repaying alleged loans made by her to Danam, for medical insurance expenses and as reimbursement for business expenses. Given the foregoing, substantial evidence supports the Board's conclusion that claimant was not totally unemployed (see Matter of Chirico [Commissioner of Labor], 49 AD3d 1104, 1105 [2008]). Substantial evidence also supports the Board's determination that claimant is liable for recoverable overpayments, particularly given her false representation on both applications that she was not a corporate officer (see Matter of Wood [Commissioner of Labor], 43 AD3d 593, 594[2007]).

Ordered that the decision is affirmed, without costs."

It would thus appear that a complete liquidation and legal dissolution of the business is required.

Wednesday, March 10, 2010


According to the Appeals Board website: "As a general principle, a claimant who quits in anticipation of discharge does so without good cause. An exception to this general rule was first enunciated by the Appellate Division in Matter of Grieco (41 AD. 2nd 799). The Court found that the claimant's leaving with the employer's acquiescence one day earlier than his scheduled date of discharge did not constitute a voluntary leaving, but rather an involuntary termination. Based on this case, and AB 391,146 cited by the Appeal Board, it is clear that the number of days should not be considered controlling. The essential, question is whether the employer's decision to discharge is definite and irrevocable (i.e. could any improvement in claimant's job performance between the date of notice and the intended date of discharge change the employer's decision). If so, and the employer consents to an earlier date, the separation is involuntary."

Thus, where a definite date of separation under non-disqualifying conditions has been set by the employer, a request by claimant to leave the job at an earlier date, when agreed to by the employer, did not. constitute a voluntary leaving without good cause. AB 405,053 where "Claimant worked as a bartender at a restaurant for about 11 months until August 30, 1990. He was informed on that day by the employer's president that he was being discharged because of unsatisfactory work performance and that his last day of work would be September 8, 1990. He finished his shift that evening, but felt uncomfortable about continuing to work for the next week. On the following night, he returned to work and asked the president if the president would agree to terminate him immediately because he felt uncomfortable. The president agreed and gave the claimant his last paycheck. OPINION: The record establishes that the claimant was discharged on August 30, 1990 because of unsatisfactory work performance, said discharge to take effect September 9, 1990. The employer consented to accelerate claimant's discharge to August 31, 1990 upon claimant's request. Under these circumstances, the Board concludes that there was no voluntary separation (see Appeal Board 393,146). The initial determination should be overruled."

But recently, I was consulted with a similar issue and the Claimant was able to successfully win the hearing without counsel. The administrative law judge stated in part:

"With the change in the nature of (claimant's work) permanent and with the employer telling (claimant) that (claimant) was not using the correct terminology, the claimant reasoned that (the claimant) could not perform the job to the employer's standards and accepted the separation package. The employer made it clear that it considered the claimant's job performance to be poor. The claimant reasonably concluded that (the claimant) would be terminated for poor performance in one month and that (the claimant's) performance would not improve in that month. The claimant had good cause to quit (the claimant's) job"

Tuesday, March 9, 2010


A often contested issue in matrimonial actions is which court is the proper venue. Of course, to obtain the divorce the proper court is the Supreme Court but in which county? Generally, venue is based on residence and section 503 (a) N.Y.C.P.L.R. provides in part:

"(a) Generally. Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; or, if none of the parties then resided in the state, in any county designated by the plaintiff. A party resident in more than one county shall be deemed a resident of each such county."

And generally, as per section 509 N.Y.C.P.L.R:

"Notwithstanding any provision of this article, the place of trial of an action shall be in the county designated by the plaintiff, unless the place of trial is changed to another county by order upon motion, or by consent as provided in subdivision (b) of rule 511.

Section 510 N.Y.C.P.L.R. provides:

"The court, upon motion, may change the place of trial of an action where:

1. the county designated for that purpose is not a proper county; or

2. there is reason to believe that an impartial trial cannot be had in the proper county; or

3. the convenience of material witnesses and the ends of justice will be promoted by the change."

And section 511 N.Y.C.P.L.R. provides:

"(a) Time for motion or demand. A demand under subdivision (b) for change of place of trial on the ground that the county designated for that purpose is not a proper county shall be served with the answer or before the answer is served. A motion for change of place of trial on any other ground shall be made within a reasonable time after commencement of the action.

(b) Demand for change of place of trial upon ground of improper venue, where motion made. The defendant shall serve a written demand that the action be tried in a county he specifies as proper. Thereafter the defendant may move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant. Defendant may notice such motion to be heard as if the action were pending in the county he specified, unless plaintiff within five days after service of the demand serves an affidavit showing either that the county specified by the defendant is not proper or that the county designated by him is proper.

(c) Stay of proceedings. No order to stay proceedings for the purpose of changing the place of trial shall be granted unless it appears from the papers that the change is sought with due diligence.

(d) Order, subsequent proceedings and appeal. Upon filing of consent by the plaintiff or entry of an order changing the place of trial by the clerk of the county from which it is changed, the clerk shall forthwith deliver to the clerk of the county to which it is changed all papers filed in the action and certified copies of all minutes and entries, which shall be filed, entered or recorded, as the case requires, in the office of the latter clerk. Subsequent proceedings shall be had in the county to which the change is made as if it had been designated originally as the place of trial, except as otherwise directed by the court. An appeal from an order changing the place of trial shall be taken in the department in which the motion for the order was heard and determined."

Many times in a divorce, one party moves to another county for many different reasons and many times a motion is made by one party to change venue and sometimes these motions are a barometer of the animosity between the parties. For example in RIDER v. RIDER, 2008 NY Slip Op 50334(U) (Supreme Court of the State of New York, Yates County. Decided on February 25, 2008):

"Defendant in this matrimonial action seeks a change in venue from Yates County to Suffolk County. Defendant states that she has an infant child, does not own a car, and it is a 12 hour round trip to Yates County. Further, it will be a financial burden for her to travel, since she is trying to find a job after being left in Georgia, penniless while five months pregnant.

Plaintiff opposes the defendant's application and by attorney affirmation notes Yates County is a proper venue, since the plaintiff lives in Yates County. Also, there is no reason to believe an impartial trial cannot be had here. Plaintiff argues that the convenience of material witnesses and the ends of justice provision of CPLR § 510 has been consistently interpreted to involve witnesses only, not parties.

Plaintiff in his affidavit in opposition says the defendant left the parties' former residence on her own. Her father sent her a plane ticket. She is not penniless, because the plaintiff has paid on two of her credit cards after she left for a total of $225 a month for four months, and he sent her $2000 on December 21, 2007. He believes the defendant lives with her mother, who has two vehicles, and she has the use of one of them.

Plaintiff also has limited funds. He is an Iraq war veteran, and is presently unemployed, and has spent most of his discharge pay. He was injured, and medically discharged November, 2007.

Clearly, defendant is basing her motion on CPLR § 510(3), since the other two reasons for change of venue do not apply. The case law in this area is sparse. In Bunker v Bunker, 73 AD2d 530, involving post judgment relief, the First Department held that Special Term did not abuse its discretion in denying a change of venue even though the divorce had been obtained in another county. The court stated: "There is no showing that the convenience of material witnesses will be served and the ends of justice promoted by such change of venue. Defendant has not even indicated the substance or materiality of the testimony to be given by these witnesses." Id., cites omitted.

Here, venue having been properly laid in Yates County, and there being competing
interests of both parties regarding venue, this Court will retain venue in this matter. The parties may be able to settle some of the issues of the divorce between themselves, and the court urges them to do so to the extent possible. Further, if court appearances are necessary, they can be scheduled with the convenience of the defendant in mind.

The motion is denied.

The foregoing constitutes the Opinion, Decision and Judgment of the Court.


Monday, March 8, 2010


A week or so back I mention some cases on "health" as a compelling good cause. Recently, this came into consideration at a hearing and the Clam ant was successful because the Claimant's health condition was known to the Employer and the Employer knew, or should have know, that taking certain actions would have an adverse effect on the Claimant's health. Giving the Employer notice of your health condition demonstrates that you had taken reasonable steps to protect your job. Illustrative, when health conditions ARE NOT disclosed to the Employer is IN RE CLAIM OF ANUMAH v. COMM'R. OF LABOR, 60 A.D.3d 1216, 876 N.Y.S.2d 172 [3d Dept 2008, where the court held in part:

"Substantial evidence supports the Board's determination that by failing to mention the legitimate medical reason for her absences, claimant failed to take a reasonable step to protect her position (see Matter of Peterson [Commissioner of Labor], 32 AD3d 610, 610-611 [2006]; Matter of Hernandez [Commissioner of Labor], 299 AD2d at 794; see also Matter of Miner [Commissioner of Labor], 49 AD3d 1128, 1129 [2008]; Matter of Cooper [Commissioner of Labor], 305 AD2d 894, 895 [2003]). Thus, she was not entitled to unemployment insurance benefits."

Sunday, March 7, 2010


OK, you were discharged. You applied for benefits. You were denied benefits. You requested a hearing. You got a lawyer. You had a hearing. The other side didn't show up. You give your testimony. The Administrative Law Judge rules in your favor. It's all over, right? Wrong. This is a process. The employer may move to reopen its default and it will likely be granted. So there is a new hearing. You win again. It's all over, right? Wrong. This is a process. The employer may file an appeal to the Appeals Board. The employer doesn't file a 20 day Notice of Appeal. It's all over, right? Wrong. This is a process. The employer may move the Appeals Court to accept it's late filing and it is granted. The Appeals Board reopens the case. But the employer fails to file a statement, request to inspect minutes, etc. The Appeal Board issues it's opinion in your favor, affirming the Administrative Law Judge. It's all over, right? Wrong. This is the process. The employer may file an application to reconsider and the Appeals Board reopens the case.

This is a true story. And it is still a work in process. Just over 2 years now and still going like the Everready Bunny.

Saturday, March 6, 2010


This is another common issue in foreclosure - is it worth it to keep the house? I have posted articles on this on my Facebook page and repeat a comment I made to someone on the NYS Department of Labor Facebook Fan page:

"Here's something some housing counselors and even myself tell homeowners: are you so "underwater (mortgage in excess of house value)" that you are paying a bank more for a house than it would be to rent? I have seen homeowners with monthly payments of, for example, $5000 for a home they could rent for half the price. I have seen homeowners with mortgages of over $700,000 wanting to keep their home when it is worth not even half that amount. I am not being political here as to who is to blame for this situation: I just want to point out that the decision to keep a home can be based on emotional reasons rather than financial. We are all adults and I understand all views - I have a summer home, no mortgage, that I inherited and has been in my family for almost 100 years and so far I am of the view that I will do everything I can to keep it. But I wonder how I would feel if my financial situation was different (and it has not been a bed of roses for me either)."

Friday, March 5, 2010


Here was another situation I was faced with at the foreclosure clinic this week: a homeowner was seeking a modification and paid an attorney around $3,000 to do the work. Obviously, the homeowner did not know, and was not advised, that these services are available for free. From the HUD web site:

"Foreclosure Avoidance Counseling

HUD-approved housing counseling agencies are available to provide you with the information and assistance you need to avoid foreclosure. As part of President Obama's comprehensive Homeowner Affordability and Stability Plan (HASP), you may be eligible for a special Making Home Affordable loan modification or refinance, to reduce your monthly payments and help you keep your home.

If you need help understanding the Making Home Affordable programs, you can use this search tool to find a counseling agency in your area that will provide you with free foreclosure prevention services. If you are eligible for the loan modification or refinance program, the counselor will work with you to compile an intake package for your servicer.

Foreclosure prevention counseling services are provided free of charge by nonprofit housing counseling agencies working in partnership with the Federal Government. These agencies are funded, in part, by HUD and NeighborWorks® America. There is no need to pay a private company for these services."

The search tool is available at this site:

Thursday, March 4, 2010


Another situation I find common at the Settlement Conference is that both Husband and Wife are on the Deed but only one spouse is on the Note and Mortgage. In such a case, the initial closing documents must be examined because if Husband and Wife want to remain in the home, it may be that the parties can allow the house to go into foreclosure because the bank can only foreclose on one spouse's interest. The bank will have to wait until the defaulting spouse dies or the parties divorce before they can foreclose on their interest. This is the protection only afforded to spouses who hold real estate as "Tenant's By The Entirety" as explained in the below article from the NY Times (although from 1997, the rules have not changed):

"June 8, 1997
Addressing The Forms Of Title
Correction Appended

MOST homebuyers know that what comes along with a house is its title. But what is often not noted is that there are various forms of title, and various ways that title can be held. In fact, real estate experts say, such seemingly arcane points can have significant practical and financial consequences when the time comes to sell the property or pass it on to one's heirs or beneficiaries.

Here, then, is a lay person's guide to Property 101.

''The standard form of title to real estate is called 'fee simple' title,'' said Christine F. Li, a Woodbridge, N.J., lawyer who specializes in real estate. ''Fee simple simply means that you own a particular piece of property,'' Ms. Li said, adding that ''you'' could mean one or more individuals, a husband and wife, a partnership, a corporation or various other legal entities that can be created to hold title to property.

Fee simple ownership, Ms. Li said, carries with it the right to possession of property and the right to sell that right to others -- either temporarily, as with a lease, or permanently, through a subsequent fee simple conveyance to someone else.

With individual ownership, for example, an individual owner can typically sell the property at any time (subject to paying off any outstanding mortgages, of course). If the property has not been sold before the owner's death, Ms. Li said, ownership will pass to the decedent's beneficiaries if there is a will or to his or her heirs if there is not.

Aside from individual ownership, she said, there are three basic ways for more than one person to take fee simple title to real estate: as tenants in common, as joint tenants with the right of survivorship and, when the parties are husband and wife, as tenants by the entirety.

With a tenancy in common, said Michael Schlesinger, a Manhattan real estate lawyer, each owner owns a specific percentage interest in a piece of property. If that interest is not defined, Mr. Schlesinger said, the presumption is that each owner owns an equal share. Moreover, he said, absent language to the contrary, co-owners who are not husband and wife are typically presumed to be tenants in common.

With a tenancy in common, Mr. Schlesinger said, each owner generally has the right to sell his or her interest or to pass that interest to heirs or beneficiaries.

For that reason, Mr. Schlesinger said, it is often wise to have a written agreement when purchasing property with someone other than a spouse. For example, he said, it usually makes sense for both parties to agree to a ''right of first refusal'' whereby an ownership interest cannot be sold without the interest first being offered to the co-owner. Unless there is a specific agreement to the contrary, or unless the parties have taken title as a legal partnership, the law presumes that any owner has an absolute right to do whatever he or she wants with an interest in real estate.

Another common presumption of property law in many jurisdictions -- including New York and New Jersey -- is that when parties buying a primary residence indicate they are husband and wife, the form of title is automatically considered a tenancy by the entirety unless otherwise specified. Connecticut does not recognize tenancy by the entirety.

''A tenancy by the entirety is for husband and wife only and only for the primary residence,'' Mr. Schlesinger said, adding that such form of title ''goes back to the ancient concept of preserving the marital abode.''

Mr. Schlesinger explained that tenancy by the entirety is a form of joint tenancy with the right of survivorship. In a joint tenancy, he said, each owner is considered an owner of the entire property. The right of survivorship, he said, means that when a joint owner dies, the deceased owner's interest in the property essentially vanishes, leaving the surviving owner or owners to automatically succeed to the deceased owner's former interest.

With a joint tenancy -- including a tenancy by the entirety -- a deceased owner's interest does not ''pass through'' the decedent's estate, Mr. Schlesinger said.

That means that property held as a joint tenancy cannot be passed to beneficiaries or heirs. Moreover, he said, a joint tenant cannot sell his or her interest in the property without the consent of the other joint owner.

Generally speaking, Mr. Schlesinger said, the only way for a joint owner to dissolve a joint tenancy without the cooperation and consent of all other owners is through what is known as an action for partition, whereby the court is asked to separate the ownership interests of the respective parties.

The basic difference between a joint tenancy and a tenancy by the entirety, Mr. Schlesinger said, is that with the former, a joint owner's creditors can force a partition of jointly owned property to recover a judgment. With a tenancy by the entirety, that is not permitted.

''That means that if a husband and wife own their house as tenants by the entirety, and the husband owes back taxes, the I.R.S. is going to have to wait until the wife dies before it can go after the house,'' Mr. Schlesinger said. ''And if the husband dies before the wife, the I.R.S. is out of luck.''

In fact, he said, there is only one way that a tenancy by the entirety can be dissolved without the consent of both spouses: ''It's called a divorce.''

In fact, divorce is one way in which a person's title to property can change without the execution of a new deed. The death of a joint tenant is another.

Richard Sussman, a Manhattan real estate lawyer, explained that when a joint tenant dies, that person's ownership interest passes automatically to the surviving joint owners. With a tenancy in common, on the other hand, any change in ownership interest would have to be made with a deed executed either by the person who is selling his interest or by the executor or administrator of that person's estate.

There are times, however, when it is wise to keep real estate paperwork up to date after the death of a joint tenant or the divorce of tenants by the entirety.

Eliot Zuckerman, a Manhattan co-op lawyer, explained that since Jan. 1, 1996, married couples who take title to shares of a co-op as their principal residence are presumed to be doing so as tenants by the entirety. While such a presumption would generate little difficulty for the owners of real property in the event of a subsequent death or divorce, it can cause a significant headache for owners of shares in a co-op corporation.

''This is coming up more and more often,'' Mr. Zuckerman said, explaining that owners of co-ops who do not request new stock certificates upon divorce or the death of a joint tenant could find themselves unable to sell their unit without having to go through a legal obstacle course to have new stock certificates issued.

''I've had closings adjourned because of this,'' Mr. Zuckerman said, adding that to have new certificates issued long after the death of a joint owner it is typically necessary to reopen the estate and have the administrator or executor fill out the necessary paperwork.

And that, Mr. Zuckerman said, can be easy when compared to tracking down an ex-spouse and asking for a favor.

Correction: June 22, 1997, Sunday The ''Your Home'' column on June 8, about ways in which title to real estate can be held, misstated the availability of the form known as ''tenancy by the entirety.'' That form of ownership, available to married couples only, can be used in New York and New Jersey for any real estate; it is not confined to a principal residence. (''Tenancy by the entirety'' is not recognized in Connecticut.)"

Wednesday, March 3, 2010


Yesterday, I was a Volunteer Lawyer for the Nassau County Bar Association at a foreclosure clinic at Nassau County Supreme Court. This "clinic" was designed to prepare homeowners for upcoming mandatory settlement conferences. I want to start a discussion again regarding foreclosure in the hopes it may assist homeowners. I have also made several posts on my Facebook page. First, when you are served the foreclosure papers, viz., the summons and complaint, file and serve an answer within the proper time frame even if you do not have an attorney. This will at least put you in a position of not being in default, can slow down the process and give you time to think. If you want or can get an attorney later, a motion can always be made to amend your answer but again: Lesson No. 1 - WHEN SERVED WITH PAPERS, FILE AND SERVE YOUR ANSWER, EVEN IF YOU DO IT ON YOUR OWN. You can easily search on the Internet on how to do it or ask the court clerk for a form.

Tuesday, March 2, 2010


Recently, I had a hearing and the issue was whether there was a compelling good cause for a voluntary separation. We established that but the administrative law judge also asked questions in order to ascertain whether the claimant had taken reasonable steps to protect her job and try to resolve the issue with the employer which established the compelling good cause(i.e. whether the good cause was discrimination, harassment, etc.). Such steps would include meetings with the supervisor, complaints to Human Resources, following procedure in employee handbook, etc. The theory being, according to the judge, is that if you quit, you should have at least made efforts to save your job. I would thus opine that, unless there is an immediate safety issue which requires you to quit immediately, Claimants should make every reasonable effort to protect their job before they resign.

Monday, March 1, 2010


Yesterday I received a comment on one of my posts regarding an attorney who was a guardian and it appears that there are many people who are unhappy with the concept of guardianship and/or conservatorships (which now in NY is referred to as a guardianship). Here is the cite of the organization "National Association to Stop Guardian Abuse©":