NEW YORK DIVORCE - CHILD CUSTODY & SUPERVISED VISITATION

I point out the following recent case: IN THE MATTER OF THIERRY E. LEW, Appellant, v. DOROTHY M. LEW, Respondent. 2013 NY Slip Op 02076, Appellate Division of the Supreme Court of New York, Second Department. Decided March 27, 2013 - which is quoted in part:

""[A] noncustodial parent is entitled to meaningful visitation. Denial of that right is so drastic that it must be based on substantial evidence that visitation would be detrimental to the welfare of the child" (Matter of Pettiford-Brown v Brown, 42 A.D.3d 541, 542 [internal quotation marks omitted]; see Matter of Walker v Diaz, 95 A.D.3d 1225; Matter of Kachelhofer v Wasiak, 10 A.D.3d 366). Generally, visitation should be determined after a full evidentiary hearing to determine the best interests of the child (see Matter of Feldman v Feldman, 79 A.D.3d 871; Matter of Franklin v Richey, 57 A.D.3d 663, 665; Matter of Pettiford-Brown v Brown, 42 AD3d at 542). "However, a hearing will not be necessary where the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child['s] best interest" (Matter of Peluso v Kasun, 78 A.D.3d 950, 951[internal quotation marks omitted]; see Matter of Feldman v Feldman, 79 AD3d at 871;Matter of Hom v Zullo, 6 A.D.3d 536).

Here, the Family Court did not possess adequate relevant information to determine that supervised visitation with the father, as provided for in the parties' judgment of divorce, was not in the subject child's best interests. Accordingly, the court erred in dismissing the father's petition to enforce the supervised visitation provisions of the judgment of divorce without an evidentiary hearing (see Matter of Sullivan v Moore, 95 A.D.3d 1223; Matter of Riemma v Cascone, 74 A.D.3d 1082; Matter of Pettiford-Brown v Brown, 42 AD3d at 542; see also Matter of Rodriguez v Hangartner, 59 A.D.3d 630, 631).

Moreover, "a court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation" (Matter of Smith v Dawn F.B., 88 A.D.3d 729, 730; see Matter of Lane v Lane, 68 A.D.3d 995, 997-998; Matter of Thompson v Yu-Thompson, 41 A.D.3d 487, 488). Thus, it was also improper for the Family Court to determine that the father could not file further petitions concerning his visitation rights until he completed, inter alia, therapeutic counseling, anger management classes, and parenting skill classes (see Matter of Smith v Dawn F.B., 88 AD3d at 730; Matter of Lane v Lane, 68 AD3d at 998; Matter of Williams v O'Toole, 4 A.D.3d 371, 372).

Accordingly, the matter must be remitted to the Family Court, Nassau County, for an evidentiary hearing and a new determination of the father's petition."

SANDY CLINIC TODAY

At the Nassau County Bar Association - I will be a volunteer lawyer. For more information, see this link to flyer:

NCBA FLYER SANDY CLINICS

MORE ON SUPERSTORM SANDY

The next Sandy Clinic at the NCBA is Monday April 29, 2013 from 3-6:30. Issues concerning contractors, FEMA , and insurance are becoming more prevalent.

I have seen other issues too in heavily damaged areas - homeowners with houses that were "underwater" prior to Sandy; after Sandy, they were literally underwater.

Now comes the real issue: how much money should one put in to repair a home that has more debt than its value? I have discussed this with several homeowners. Soon I was discovering ads for many homes for sale in storm damaged areas. I later asked some real estate professionals if these sales were taking place: the answer was no.

Today,Newsday came out with a very interesting article about the challenges faced by both Sellers and Buyers and here is a link:

NEWSDAY - Want to live near the water? Do homework

NASSAU COUNTY CONSUMER AFFAIRS HEARING

I will be counsel at a hearing today and this is from the NCCA website:

"What to Expect at a Violation Hearing

 

After a violation is issued, a hearing is scheduled at the Office of Consumer Affairs. The respondent appears at the hearing, with or without legal counsel and, where permitted at the discretion of the hearing officer, other relevant parties that can offer evidence or explanation on behalf of the respondent. The complaining consumer is not present at the hearing. The hearing officer keeps the record of the hearing and no verbatim recording is conducted in the hearing room. The consumer complaint is presented by the Investigator from the Office assigned to the complaint. After the presentation of the complaint by the Investigator, the respondent then offers evidence to refute or mitigate the facts presented. The Investigator also explains why a violation was issued and the legal basis of the violation.

 

At the conclusion of the hearing, the hearing officer weighs the evidence and credibility of the arguments and has several options for a decision. The hearing officer will decide whether a legal violation has occurred, whether to assess a fine and the amount, memorialize any settlement agreements that may have been concluded during the hearing, order restitution by a respondent to redress a grievance, or order the suspension of a license or registration."

PART 137 FEE DISPUTE RESOLUTION PROGRAM

Today I will be a Part 137 arbitrator.

Administrative Rules of the Unified Court System & Uniform Rules of the Trial Courts Part 137 is the New York State Fee Dispute Resolution Program, which provides for the informal and expeditious resolution of fee disputes between attorneys and clients through arbitration and mediation. In accordance with the procedures for arbitration, arbitrators shall determine the reasonableness of fees for professional services, including costs, taking into account all relevant facts and circumstances. Mediation of fee disputes, where available, is strongly encouraged.

LANDLORD TENANT - NASSAU COUNTY - HEMPSTEAD VILLAGE

See this article:

Hempstead Village Passes Rental Registration Permit Law

However, it is not clear whether compliance will be a new pleading and/or element of proof requirement in any landlord/tenant petition and/or action. A review of the Board resolution indicates that Section 106-12, which stated that the permit was a condition to collecting rent, has been specifically deleted:

http://villageofhempstead.org/announcements/phNotice-041513.pdf

FORECLOSURE - PROPERTY TAX

This article was recently emailed to me.

A reminder to all homeowners that the payment of property taxes and other fees should be verified and what steps should be taken by those homeowners who turn their residence into an investment property - this happened in Buffalo, NY and the comments are also informative:

Amherst couple’s foreclosure nightmare is a real-life cautionary tale

MORE ON SUPERSTORM SANDY

For individual and businesses currently in the process of obtaining SBA Loan business expansion or disaster assistance, to meet the request of the SBA for the funding package, there are property title search requirements for SBA loans which typically require the following:

Record Ownership in the name of the borrower
All Prior Liens
SBA's recorded Mortgage/Deed of Trust
Tax and Judgment Search
Copy of the Legal Description covered in Title report
Search at least 30 years

This is where a reputable title company is needed and, as a suggestion, is Title Guarantee, Inc. (especially for Long Island and in NY/NJ). Here is a link to them:

TITLE GUARANTEE SBA SERVICE

AT A CLOSING TODAY

And this is a good time to alert all to a wonderful website for NY counsel.

The closing I have today is for a senior housing co-op which is managed by the residents. No one had the original offering plan for review (something an attorney is recommended to do for every co-op sale/purchase).

Offering Planet (www.offeringplanet.com) is a collection of copies of condominium and cooperative offering plans collected over the years. And it was there I was able to get a copy of the plan.

BANKRUPTCY LAW - FRAUDULENT TRANSFER

From the firm of Shenwick & Associates, here is a link to a recent bankruptcy case

IN RE PANEPINTO Case No. 12-11230K (Bankr. W.D.N.Y. Feb. 25, 2013)

The Court noted in part:

"The question is this: If someone who is insolvent, or is being sued, owns a wholly-exempt homestead free-and-clear, and (without consideration) transfers half ownership to someone else (in this case her husband), could any existing creditor sustain an action to set that transfer aside as a fraudulent conveyance under state law? (It is important to note that the many cases that address transfers of exempt property under 11 U.S.C. §§ 547 and 548 are of no application here because the transfer occurred four years before this Chapter 13 filing.

The answer in New York is “Yes. It may be set aside.”"

MORTGAGE FORECLOSURE - LONG ISLAND

From an email received yesterday from the Empire Justice Center:

"We are pleased to announce that today Empire Justice Center released our report, "The Long Island Foreclosure Crisis: Stabilizing communities most impacted by foreclosures in Nassau and Suffolk Counties," which explores the impact and ongoing dynamics of the foreclosure crisis on Long Island.

Why did we focus on Long Island?

Because over a quarter all homeowners in New York who are at risk of foreclosure live in just two counties - Nassau and Suffolk - both are on Long Island. Our analysis found that in many of the communities on Long Island where concentrations of foreclosures occur, there also tends to be a high concentration of minority homeowners. To make matters worse, we found a dearth of home purchase lending in the same areas – putting these communities at higher risk of home loss, vacancies, deterioration of housing stock and subsequent loss of local tax revenue and threatening economic recovery on Long Island.

Pursuing Solutions:

In addition to pinpointing these communities for investment, the report provides a series of recommended policies for banks and policymakers to adopt in an effort to limit the damage caused by these concentrated foreclosures.

By devising ways to keep homeowners in their homes, advocating for continual maintenance of properties and working towards achieving economic justice for minority communities, hardest hit neighborhoods will be better able to rebound from the disparate impact of foreclosures and focus on rebuilding the assets of the community as a whole. "

http://www.empirejustice.org/assets/pdf/publications/reports/li-foreclosure-report-42013/the-long-island-foreclosure.pdf

SANDY CLINICS AT NCBA

There are two Sandy Clinics this month. One for this Monday, Tax day, April 15 and again on Monday, April 29. I will be a volunteer lawyer at both.

For more information, see this link to flyer:

NCBA FLYER SANDY CLINICS

LAP

The New York State Bar Association Lawyer Assistance Program (LAP) provides education and confidential assistance to lawyers, judges, law school students, and immediate family members who are affected by the problem of substance abuse, stress, depression or other mental health issues. Its goal is to assist in the prevention, early identification and intervention of problems that can affect professional conduct and quality of life.

 

 

Local bar associations also have LAP. For example, The Nassau County Bar Association Lawyer Assistance Program (NCBA LAP) provides confidential assistance to all attorneys, judges and law school students who are struggling with alcohol, drug and/or mental health problems or are affected by the problem of substance abuse, stress, or depression. NCBA LAP operates a 24-hour confidential hotline 888 - 408-6222

LICENSED HOME IMPROVEMENT CONTRACTORS & THE LIEN LAW

This I found interesting from The Home Equity Theft Reporter:

Home Improvement Contractor Pinched In Ripoff For Pocketing $300K, Abandoning Project; Failure To Treat Cash As Trust Funds & Provide An Accounting Constitute Violations Of NYS Lien Law

DIVORCE AND THE LOTTERY

A link to an interesting article sent to me today:

A Change of Economic Circumstances: When a Party Hits the Lottery by Law Offices of Daniel Clement

FREE CLE

Passing this along - New York and other state attorneys can study areas of law or fulfill Continuing Legal Education (CLE) requirements with Lexvid (www.lexvid.com) which offers accessible videos of CLE content completely free of charge.

NEW YORK - CHANGE IN MATRIMONIAL ORDERS

A week or so ago I mentioned the new change in the rules regarding automatic orders in matrimonial actions. A few days ago, I received the following email from the Matrimonial Committee of the NCBA:

"Dear Committee Members:

I am attaching what seems to be an amendment to the Uniform Rules which indicates some changes to the automatic orders. It indicates that violation of the orders “may” be deemed a contempt of court. It also changes the Notice on the face of the Summons. While I am of the opinion that contempt does not properly lie for a violation of a court rule where the order was not actually issued by court or record, this is the rule change. ........... According to the documents, the Rule actually changed “effective immediately” as contained in the NY Register of January 30, 2013.” The OCA website in the Rules section does not contain this amendment. I have several calls in to OCA to confirm the change given its lack of reference on the site. I have not yet heard back but will keep everyone posted.

Notably, the Court of Appeals in Gair v Peck, held “the Appellate Divisions cannot make substantive law by rules”— Can the Administrative Judge?"

 

RENT ABATEMENTS AND SUPERSTORM SANDY

One of the issues presented to me yesterday in L&T Court in Nassau County was how much of a rent abatement should a tenant receive for damage due to Superstorm Sandy.

Here is a link to a recent article in the NYLJ about this issue as well as a class action for rent abatement brought by one group of tenants:

Residential Tenants Explore Rent Abatements - NYLJ

LANDLORD/TENANT COURT - VLP

Today I will be a volunteer lawyer for the day at Landlord/Tenant court in Hempstead. Attorneys are encouraged to volunteer to provide free legal assistance to the poor in Nassau County through the Volunteer Lawyers Project (VLP). The Nassau County Bar Association partners with the Nassau/Suffolk Law Services Committee to support VLP, which helps maximize the quantity and quality of pro bono assistance provided for the county's low-income community. Volunteer attorneys handle a wide array of cases including matrimonial matters, individual bankruptcy, personal injury and negligence defense, estate matters, release of accounts blocked by judgment creditors, and various other civil matters. I will be with The Landlord/Tenant Project's Attorney of the Day Program, which assists thousands of men, women and children in court to prevent homelessness.

NEW YORK STATE UNEMPLOYMENT INSURANCE - FRAUD

The DOL is clear in this issue. As stated on their website FAQ:

" Q: What should I do when I return to work?
A: When you get a job, claim credit for the last days you were out of work in the usual way, by:

• Telephone
• Mail or
• Online

then simply stop claiming your weekly benefits.

Do not claim benefits for any week when you work more than three days or earn more than the maximum benefit rate. The maximum benefit rate is currently $405."

Perhaps you have read about the Nassau County individual who pleaded not guilty Tuesday to felony charges alleging that he stole more than $18,000 in unemployment benefits from March 2010 to December 2010, while still collecting a salary of more than $90,000 annually.

MORE ON SUPERSTORIM SANDY

New York has a proposed bill that hands new legal powers to policyholders impacted by disasters such as Superstorm Sandy so they can score punitive damages and attorneys' fees from insurers that unfairly handle claims but critics sau it's more likely to profit plaintiffs attorneys than help out storm victims. Read about it here:

Sandy Insurance Bill A Gift For Plaintiffs Bar

HAPPY APRIL FOOLS DAY

From Westlaw Insider, a link to an April Fools article (from 2011) - hope you enjoy and the moral is that "while everyone loves a good April Fools’ joke, the excuse seldom provides legal immunity to otherwise unlawful behavior":

Legal April Fools' Hijinks