BEST WISHES

 

For the holiday season...a little vacation....see you in 2014!

NEW YORK MORTGAGE FORECLOSURE

Yesterday, I attended a webinar CLE via Empire Justice Center on Ethics in Foreclosure Litigation. Representing homeowners in defending mortgage foreclosure actions in New York can bring up ethical issues just as much as ethical issues arise with attorneys representing the banks (viz., robo signing affirmations now known as the certificate of merit).

I note the recent article from Bloomberg News:

Secret Inside BofA Office of CEO Stymied Needy Homeowners

MORE RE: SUPERSTORM SANDY

As I read today's paper re: payments being made from New York Rising to Long Island homeowners, as I recall the homeowners I consulted with this past Monday at the Nassau County Bar Association's Sandy clinic, I urge homeowners who suffered storm damage to visit the following website for a full list of available resources, etc:

Governor’s office of storm recovery

THE HIGH COST OF LITIGATION

Yesterday I attended an ABA live CLE webinar on focus groups, mock trials, etc. for litigation. Basically, this is a process utilized as one means of preparing for trial, almost like the way previews are used for theater shows or movies: presenting your issues before a mock group to ascertain the strengths and weaknesses of your case, your witnesses, etc.

A quick Internet search revealed there are several organizations that assist counsel in this.

SANDY CLINIC TODAY AT NCBA

Free Consultation Clinics at Nassau County Bar Association on December 16 from 3 to 6 p.m.

THE HIGH COST OF LITIGATION

Recommend an article on another factor that must be considered in litigation - the potential cost of e- discovery. Finished reading "The End of the World as We Know It? The Impact of e-Discovery on Individual Employment Cases" By William D. Frumkin and Elizabeth E. Hunter which can be found in "NYSBA Labor and Employment Law Journal | Summer 2013 | Vol. 38 | No. 2"

The discussion in that article apply to all litigations because as technology takes a part in all aspects of our lives, e-discovery will take a part in all fields of law, whether in matters of litigation or transactions.

ON FORECLOSURES ON LONG ISLAND

One effect of the new August 30 law discussed earlier was the rise in filings of new actions. Another effect of the new August 30 law discussed earlier was the rise in RJI and Attorney Affirmations in shadow docket cases.

Is this another effect:

BLOOMBERG - Long Island Foreclosures Spur Looters Amid Home Limbo

NEW FEE RULES FOR UNEMPLOYMENT CASES

Following yesterday's post, a review of the Unemployment Insurance Appeal Board website homepage notes at the bottom:

"Certain aspects of the Appeal Board’s Attorney Fee Rule, Rule 460.6, [12 NYRR Part 460.6], are no longer being enforced: the definition of benefits allowed and the 20 percent cap on fees. Pending promulgation of a new Rule please refer to Labor Law section 538 and follow the instructions found in the “Certification of Services”, which can be found under the Resource tab on the UIAB website. For further guidance please call the Appeal Board at 518-408-0428"

NEW FEE RULES FOR UNEMPLOYMENT CASES

AT CLE TODAY

On School Law - at the Nassau County Bar Association. I will be able to return calls.

SUPERSTORM SANDY

Homeowners in New York are still facing issues and guidance is still available. The New York State Disaster Case Management Program "is operated by Catholic Charities Community Services, Archdiocese of New York, under the auspices of the New York State Division of Homeland Security and Emergency Services, Office of Emergency Management and funded by the Federal Emergency Management Agency. The program provides relief to those affected by Superstorm Sandy by providing a single point of contact to access services from various social service organizations and to develop an individual recovery plan."

See this link:

http://sandydcm.org/

FOR NEW YORK PRIMARY RESIDENCE HOMEOWNERS

If you currently receive the Basic STAR property tax exemption, please remember you must re-register with the Tax Department to continue receiving the exemption. Registration is fast and easy by going to www.tax.ny.gov or calling 518-457-2036. If you have not already registered, the deadline is December 31,2013. Do not risk losing your Basic STAR exemption by failing to register.

I recently did mine online. It was simple. Again, please go to www.tax.ny.gov or call 518-457-2036 to register.

BANKRUPTCY BASICS

A of review the basics of bankruptcy courtesy of Shenwick & Associates:

Shenwick & Associates - Bankruptcy Basics

FREE CLE

From Nassau Suffolk Law Services:

 

"On Thursday, December 12, 2013, the Suffolk County Bar Academy of Law, in collaboration with the Pro Bono Project and Nassau Suffolk Law Services, will present a free three-credit foreclosure training for volunteer attorneys. The program will be held in the Great Hall at the Suffolk County Bar Association in Hauppauge from 1 p.m.-4 p.m. with lunch served at 12:30 p.m.

 

The program is mandatory for attorneys currently participating in the SCBA Foreclosure Settlement Conference project, but other attorneys who are not in the Project may attend the lecture and receive the MCLE credit, provided they agree to take a foreclosure matter on a volunteer basis. Other topics the program will cover: Foreclosure Trends in Suffolk County; The Settlement Process; The SCBA's Foreclosure Settlement Project. To register call the Academy at (631) 234-5588. 

Also of interest is a new administrative rule signed by District Administrative Judge C. Randall Hinrichs which, effective November 1, 2013, enacts procedures in Suffolk County Supreme Court for the filing of the Foreclosure Action Surplus Monies form to track surplus monies as a result of a foreclosure sale. For more go to:
 http://www.scba.org/post/admord13.pdf"

  

SANDY/FORECLOSURE CLINIC TODAY AT NCBA

Monday, December 2, starting at 3 pm, Nassau County Bar Association will be sponsoring another free Mortgage Foreclosure and Superstorm Sandy clinic.

Nassau County Bar Association, 15^th and West Streets, Mineola, NY 11501, (516) 747-4070 x 203.

 

I will be one of the volunteer lawyers.

FOR THE STORY OF THANKSGIVING.....

For the "legal" history of Thanksgiving, read the following from the National Archives website:

Congress Establishes Thanksgiving

SMALL BUSINESS CHECKLIST

Here is a link to a checklist entitled Small Business Fundamentals from Thomas Gallo, CPA:

From Cohen Greve & Company CPA - SMALL BUSINESS FUNDAMAENTALS 

AS A MEMBER OF MY LOCAL CHAMBER OF COMMERCE.....

NEW YORK DIVORCE - FINANCIAL ABUSE

Recently, there was a segment on the Today show entitled 1 in 10 say they are being financially bullied by a spouse or partner:

TODAY.com: 1 in 10 say they are being financially bullied by a spouse or partner

Financial bullying may also be  known as, in matrimonial law, economic abuse rising to the level of a form of, or part of a pattern of, domestic violence. I have seen case law on this, have raised this issue on pendente lite motions, and refer to the following 2011 article from the NYSBA Journal which can now be found on the New York Courts website:

NYSBA JOURNAL - Economic Abuse 2011

ON NEW YORK'S NEW FORECLOSURE RULES

Question -  is there a connection with the new foreclosure rules and the rise in foreclosure filings?

NY POST - Year of foreclosures for Westchester County

I welcome comments on this.

MORE RE: SUPERSTORM SANDY

I pass along this news item regarding homeowners with rejected FEMA claims due to "earth movement" for relief under NY Rising:

NEWSDAY - Officials: Sandy victims with rejected insurance should apply to state

But note the caveat if you have already applied for an SBA loan:

NEWSDAY - SBA loans keep Sandy recipients from NY Rising aid

PART 137

The New York State Court System has established a Statewide Fee Dispute Resolution Program (FDRP) to resolve attorney-client disputes over legal fees through arbitration (and in some cases mediation).

For more information, see this link:

NY Attorney-Client Fee Dispute Resolution Program

AT A CLE TODAY

I will be attending an all day CLE on updates in New York matrimonial law but I will be able to return calls and I will be checking email during breaks.

ON NEW YORK'S NEW FORECLOSURE RULES

Here is another recent blog post from one attorney which should be of interest:

BLOG - Criticism of Cuomo's Certificate of Merit Law & The Real Effects It Will Have

ON NEW YORK'S NEW FORECLOSURE RULES

Here is a recent blog post from one attorney which should be of interest:

Blog - How Does the new New York Foreclosure Law Affect You?

ON NEW YORK'S NEW FORECLOSURE RULES

The change in the foreclosure rules was designed in part to address the long foreclosure process in New York, here described as the "1000 day nightmare" in a 2012 article from Banking New York:

http://www.bankingny.com/portal/Features/tabid/71/newsid413/2550/Default.aspx

ON NEW YORK'S NEW FORECLOSURE RULES

Does the following statement apply to all homeowners in foreclosure (taken from AARP November magazine):

"In a state previously riddled by a lengthy foreclosure process, a law that took effect Aug. 30 has begun to shorten the duration and help homeowners avoid snowballing interest charges and penalties.
Backed by AARP New York, the law requires lenders to file certification paperwork at the same time they file a foreclosure suit, which speeds up cases and gives thousands of New Yorkers a better chance at affording a settlement. Additionally, the measure reduces blight from “zombie foreclosures” when legal delays prompt people to walk away from their homes.
New York’s foreclosure process previously averaged nearly three years—the longest in the nation—with about 25,000 unresolved cases statewide."

A link to the article can be found here:

AARP - Mortgage Relief to Avoid Delays

VETERAN'S DAY

My father Albert Probstein. Fought in the Pacific in WWII including Okinawa.

A DEED SCAM ALERT FROM NASSAU COUNTY CLERK

County Clerk Warns Residents About “Deed Scam”

Unfortunately, the Nassau County Land Viewer does not have a searchable data base for deeds, mortgages, etc. Many counties do have such land viewers, including NYC, where deeds and other recording instruments, can be searched and viewed.

FREE VETERANS' CLINIC AT HOFSTRA THIS SATURDAY NOVEMBER 9

 

I will be one of the volunteer lawyers.

CHANGES IN REVERSE MORTGAGES

This took effect in October: many believe although the purpose was to prevent defaults on seniors not paying property taxes, the HECMs (Home Equity Conversion Mortgage) are now costlier, smaller and complicated. Here are some articles that discuss these issues:

http://www.reuters.com/article/2013/09/10/column-miller-mortgages-idUSL2N0H615C20130910

http://www.dailyherald.com/article/20131102/entlife/711029967/

ELECTION DAY

SANDY/FORECLOSURE CLINIC TODAY AT NCBA

 Monday, November 4, starting at 3 pm, Nassau County Bar Association will be sponsoring another free Mortgage Foreclosure and Superstorm Sandy clinic.

Nassau County Bar Association, 15^th and West Streets, Mineola, NY 11501, (516) 747-4070 x 203.

 

I will be one of the volunteer lawyers.

AT CLE TODAY

NYSBA - Matrimonial Trial Institute - Mock Financial Trial

OPERATION HALLOWEEN ZERO TOLERANCE - TWO VIEWS

The official view:

NYS Department of Corrections and Community Supervision

An opposing view:

HUFFINGTON POST - Manufacturing Fear: Halloween Laws for Sex Offenders

MORE RE: RENT CONTROL/STABILIZED LEASES IN BANKRUPTCY

An update of this issue from the firm of Shenwick & Associates - the case is now before the Second Circuit:

http://www.icebase.com/r.pl?IRUqwmHd8F1mpjiX_cf7de8d42ca2adcc

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 UNEMPLOYMENT INSURANCE - PERSONAL LIABILITY OF EMPLOYER

This is an interesting question presented - when is a corporate officer/owner individually responsible for wages, payments of UI benefits, etc.

The DOL's opinion letter as to when an individual shall be deemed an employer is set forth at this link:

http://www.labor.ny.gov/legal/counsel/pdf/opinions/ro-11-0002%20definition%20of%20employer.pdf

The most recent case I found on this issue is PICARD v. BIGSBEE ENTERPRISES, INC., 1984-13 (9-12-2013), 2013 NY SLIP Op 51495 (U) where the court noted:

"The second branch of defendants' motion seeks dismissal of the complaint
as against the two individual defendants, Joseph Mallozzi and John Mallozzi
(collectively "Individual Defendants"), on the ground that officers and
shareholders of a corporation are not subject to civil liability. In
opposition, plaintiff argues that corporate officers, agents and
shareholders may be held liable under article 6 of the Labor Law as
"employers" and that the complaint alleges sufficient facts for the
Individual Defendants to be deemed plaintiff's employer.

  Settled law holds that an individual does not bear civil liability for
unpaid wages under Labor Law article 6 ("Article 6") merely by serving as an
officer, shareholder or agent of a corporation (see Stoganovic v Dinolfo,
92 AD2d 729 [4th Dept 1983], aff'd 61 NY2d 812; Andux v Woodbury Auto Park,
Inc., 30 AD3d 362 [2d Dept 2006]). However, Article 6 does impose liability
upon "employers" (Labor Law § 190 [3]), and an officer, shareholder or agent
of a corporation who qualifies as an "employer" may be subject to a civil
suit on that basis (Bonito v Avalon Partners, Inc., 106 AD3d 625, 625-626
[1st Dept 2013] [officer]; Wing Wong v King Sun Yee, 262 AD2d 254, 255 [1st
Dept 1999] [shareholder]).

  The term "employer" is broadly defined in Article 6 to include "any
person, corporation, limited liability company, or association employing any
individual in any occupation, industry, trade, business or service." In
determining whether an individual may be subject to civil liability as an
"employer" under Article 6, courts consider factors such as whether the
individual exercises control of the day-to-day operations of the business,
including determination of the rate and method of payment of employees (see
Bonito, 106 AD3d at 625). Here, the complaint alleges that each of the
Individual Defendants "exercises sufficient control of each catering
location's day to day operations to be considered an employer of Plaintiff
and those similarly situated under New York Labor Law" (Complaint ¶¶ 30-31).
Accepting the truth of these allegations and according plaintiff the benefit
of all reasonable inferences, the Individual Defendants have failed to
demonstrate their entitlement to dismissal of the complaint at this early
stage of the litigation."




 

NEW YORK UNEMPLOYMENT INSURANCE - RECENT DEVELOPMENTS PART 1

The DOL has recently sent this letter to employers about recent reforms to NYS unemployment Insurance system:

PRO BONO FAIR

The Fair will be held at the Nassau County Bar Association from 3-7pm. For a reservation, call Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501, 516-747-4070 x 202

I will be one of the volunteer lawyers.

SUPERSTORM SANDY STATUTE OF LIMITATIONS

Well it appears that there is an issue as to whether FEMA's grant of 6 months additional time to file paperwork also extended the statute of limitations.

See this press release from Senator Schumer:

SCHUMER: LITTLE KNOWN DEADLINE FOR THOUSANDS OF SANDY VICTIMS TO HOLD ACCOUNTABLE INSURANCE COMPANIES FOR SHORT-CHANGING THEM IS FAST APPROACHING; MANY FAMILIES DON’T EVEN KNOW THEY MAY NEED TO TAKE LEGAL ACTION, BUT MAY SOON LOSE THAT RIGHT ANYWAY– SCHUMER CALLS FOR FEMA TO EXTEND DEADLINE

FROM NEWSDAY - WHAT TO DO ABOUT THE HOUSE WHEN DIVORCING

Here's a recent informative article:

http://www.newsday.com/business/your-finance-divorce-and-the-marital-home-1.6230125

FREE SANDY CLINIC IN LONG BEACH TODAY

For more information, see this link:

https://www.nassaubar.org/UserFiles/Clinic_Long_Beach_Eng_10_21_2013.pdf

EMPIRE JUSTICE CENTER - ORDER OF PROTECTION

From the website of the Empire Justice Center:

"In an effort to help alleviate barriers for domestic violence victims with limited English proficiency, Empire Justice Center has developed a resource that provides answers to frequently asked questions about how to obtain an order of protection and to fully access Family Court.

The pamphlet is available in the top three languages in which interpreters are sought in the NYS Courts, as well as English:

• Russian
• Spanish
• Simplified Chinese
• English"

A link to the full web page is here:

http://www.empirejustice.org/publications/brochures/seeking-protection-from.html#.Ulg6_RCqJC8

NEW YORK DIVORCE - CUSTODY & RELOCATION

A recent consultation and a recent email brought this case to my attention -  Matter of Kevin McK. v Elizabeth A.E. , 2013 NY Slip Op 06328, Decided on October 1, 2013, Appellate Division, First Department.

In this case, the Family Court, which denied a parent's application to relocate, was reversed by the Appellate Division. What I find most interesting about the case is the following:

1. Around the fall of 2008, the application to relocate was made in Family Court.

2.  Trial on the issues of custody and relocation commenced around a year later 2009, and was conducted on 13 days over the course of 2½ years.

3. The Family Court issued it's decision in April 2012.

4. The Appellate Division reversed in October 2013 - but the matter was remanded for further proceedings at which provision shall be made regarding liberal visitation and an allocation of travel costs.

Over 5 years and perhaps more until the parent can relocate....when I was consulted on this issue the need was immediate due to lack of income. So do was the application in Matter of Kevin McK. v Elizabeth A.E.

ON MEDICARE

From an email I recently received:

"

 ** Legal Alert **

Beware of Medicare
3-Day Hospital Stay  

 

Most people believe that if they are transferred from a hospital directly to a nursing home or rehabilitation center, they will be entitled to Medicare coverage for a certain period of time. This is generally true. However, a new status category employed by hospitals may thwart those benefits.

How It Works

When an individual has a 3-day hospital stay and then transfers to a skilled nursing facility or rehabilitation center, s/he will be entitled to a maximum of 100 days of Medicare coverage if all eligibility criteria are met and the individual is making progress and/or maintaining their skill level due to the therapy or rehabilitation services provided. The first 20 days will be paid for by Medicare in full and days 21-100 will be subject to a co-pay (currently $148/day), which can be covered by medi-gap or other private health insurance plans.

The Problem 

Unfortunately, many people are currently being denied this Medicare coverage due to action at the hospital level. Instead of admitting the patient, the hospital keeps the person in "observation." While a patient can be kept on "observation" for days at a time, it does not rise to the level of a hospital "admission." As such, when that patient is transferred to a nursing home or rehabilitation center, Medicare will not cover any of the costs of their care. With nursing homes and rehabilitation centers costing on average $400 per day, this is a huge financial burden to the patient and their family.

What You Can Do

When your loved one is in the hospital, ask a hospital staff member if s/he has been formally admitted to the hospital and has inpatient status. If necessary, engage the help of your loved one's primary care physician to ensure a formal hospital admission. It is often the case that the patient has no idea of their "status" in the hospital until s/he is transferred to a nursing home and by then, it is too late to secure a formal admission and in-patient status.

By knowing your rights, you can advocate for your loved one to make sure your loved one gets the benefits to which s/he is entitled.

*************************

Genser Dubow Genser & Cona is recognized as a leading elder law and estate planning firm on Long Island.  The firm provides creative advocacy and cutting edge planning strategies and has been featured in many publications including: The New York Times, The Wall Street Journal, Newsday, L.I. Business News, Kiplinger's, Reader's Digest and many others.   GDGC attorneys are frequent contributors to Newsday's Act II "Ask the Expert" column and have appeared as guests on WNBC-TV, CNN-fn, News 12, News 55, Channel 21 "Act II With Newsday" and many radio stations including WOR, WCBS AM and WFAN."

NEW YORK UNEMPLOYMENT INSURANCE - VOLUNTARY SEPARATION

In a column today in Newsday, there is a discussion regarding an employee quitting because of one instance of verbal abuse by the employer. The advice was "Generally, if you resign, you don't qualify for unemployment benefits. But you should apply because the Labor Department stresses that it decides claims on a case-by-case basis."

I would add this - on the claimant's application, if the claimant states voluntary separation as the cause of separation, there is generally no benefits paid until the investigation is complete by the DOL - and then if good cause for separation is established , benefits will commence. Some claimants are aware of this and state another reason for separation (lack of work for example) so that benefits will start immediately and hope that the employer will not contest or that the DOL investigation will result in a favorable decision on the issue of voluntary separation.

There are great risks in the latter approach - if the ultimate determination is that the claimant voluntary separation was without good cause, the DOL may issue a false statement penalty as well as seek repayment of benefits paid. From the DOL website:

"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 ..."."

FOR CONSUMERS RE: DEBT COLLECTION

Depending on where you live, debt collectors may be legally entitled to take your entire paycheck, house or car and completely clear out your bank accounts. According to the National Consumer Law Center:

"The economic downturn has strained millions of families to the breaking point, and the astronomic growth of the debt buyer industry makes them increasingly vulnerable to seizure of essential wages and property to pay their oldest debts. NCLC surveys the exemption laws of the 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands. Sadly, not one jurisdiction's laws meet basic standards so that debtors can continue to work productively to support themselves and their families."

A link to the full story and report:

http://www.nclc.org/issues/no-fresh-start.html

MORE RE: SUPERSTORM SANDY

A compliment to Touro Law Center for their excellent insurance checklist and other information, etc. re: Sandy claims. It was reported today in Newsday and can be found at this link:

http://www.tourolaw.edu/TLCHEART/

NEW YORK UNEMPLOYMENT INSURANCE - EFFECT OF BLAND V. ROBERTS

This was a recent case Bland et al v. Roberts, 4th U.S. Circuit Court of Appeals, No. 12-1671, in which the 4th U.S. Circuit Court of Appeals ruled in favor of a former deputy sheriff in Hampton, Virginia, who claimed he lost his job in retaliation for his "liking" the Facebook page of a candidate running against his boss for city sheriff:

"Liking a political candidate's campaign page communicates the user's approval of the candidate and supports the campaign by associating the user with it....It is the Internet equivalent of displaying a political sign in one's front yard, which the Supreme Court has held is substantive speech."

How does this apply to Unemployment Insurance and misconduct?  Here is a case decided prior to BLAND: In Mailed and Filed: AUGUST 25, 2011, IN THE MATTER OF: Appeal Board No. 553929:

"The evidence further establishes that the claimant was discharged on January 26, 2010 after the employer learned that she had posted derogatory comments as well as comments that could be perceived as threatening regarding coworkers on her "Facebook" page on January 19. The employer contends the claimant's conduct violated the employer's policy. However, the portions of the policy at issue, prefaced by the language "For the benefit and safety of employees, clients, and the Organization", clearly pertain to employee conduct in the office. Further, we are not convinced that the claimant could have known from the language of the policy that her personal "Facebook" postings would jeopardize her employment.

We note that while the claimant acknowledged that she made the comments, she also credibly testified that she did not intend for any of her coworkers to be able to access her "Facebook" page, and therefore could not have intended to offend or threaten her coworkers. We also find it significant that neither the employer nor the coworkers are named in the claimant's postings, and that the claimant had received no warnings regarding similar conduct during her seven and a half-year employment, Further, it is credible that the claimant's comments were made in jest, and that she did not mean the exaggerated and outlandish remarks made.

Accordingly, while the Board does not condone such conduct by the claimant, the employer's policy regarding employee conduct was too broad to put the claimant on notice that comments on her personal social networking page, that were made in jest and did not specifically identify either the employer by name or the names of her coworkers, was not sufficient to put the claimant on notice that her conduct could result in her discharge. Absent a specific policy that would provide such notice to an employee, we find that the claimant's conduct - while demonstrating extremely poor judgment - did not constitute misconduct for unemployment insurance purposes. We conclude that this claimant was separated from employment under non disqualifying circumstances."

ON MEDIATION

A Public Education Seminar on “Mediation: Keeping Family Feuds (and other fights) Out of Court” will be held at the Nassau County Bar Association on Wednesday October 16. It is a Free Program - 6:30 to 8:30 p.m.

Here is a link to the flyer:

https://www.nassaubar.org/UserFiles/Mediation_Seminar_Oct_2013.pdf

ACCESS TO JUSTICE CHAMPION

Received October 1, 2013

"2013 Access to Justice Champions
Congratulations!

You have earned the honor of being named an Access to Justice Champion, a new recognition sponsored by the Nassau County Bar Association. This inaugural honor recognizes NCBA member attorneys with outstanding service and dedication of time and effort to provide legal representation, guidance or advice on a pro bono basis to serve those in Nassau County. 

Feel free to use this special designation in you CVs, resumes, publicity and marketing materials.

The complete list of Access to Justice Champions will be published in the October 2013 issue of the Nassau Lawyer, the official monthly journal of NCBA. We are also planning a press release announcing all the winners at that time.

On behalf of the NCBA Access to Justice Committee, congratulations and much appreciation for the work you do on behalf of those in need. Keep up the good work!

Regards,

Valerie Zurblis
Director of Marketing and PR
Nassau County Bar Association
15th & West Streets
Mineola, NY 11501
516-747-4070 x204
vzurblis@nassaubar.org"

HOW SOME COMMUNITIES HANDLE THE FORECLOSURE CRISIS

NEWSDAY - Brookhaven: Banks must register, maintain foreclosed homes

If you live next door to an abandoned home, or one is on your block, what are the legal ramifications if you and/or your neighbors maintain the abandoned home themselves because the town or municipality does not take prompt action?

In the 1970's, New York City officials had issues when individuals or neighborhood groups took matters into their own hands and created community gardens. At first, local government did not support these "self-help" methods.

 

FORECLOSURES ON LONG ISLAND

On Monday, September 30, Newsday ran an excellent story on mortgage foreclosures on Long Island.

A practical suggestion to any one dealing with these type of legal proceedings is to read the article but here are some highlights:

1. This year, filings were up 53% (although this may change with the new October 1 law regarding the certificate of merit).

2. The foreclosure process ion New York, like New Jersey, can be a three year process - the longest in the nation. There is a huge backlog of cases.

3. Due to various reasons, such as job loss and divorce, many homeowners in Long Island find their homes are now unaffordable even if the mortgage is modified.

SUPERSTORM SANDY DEADLINE EXTENDED

The October deadline for FEMA proof of loss claims discussed in my September 30 post is now extended to April 2014 (28 or 29).

The FEMA website also states: "NOTICE:  Due to the lapse in federal funding, portions of this website may not be updated and some non-disaster assistance transactions submitted via the website may not be processed or responded to until after appropriations are enacted,"

RECENT ISSUES RE: SUPERSTORM SANDY

For those counseling clients, be aware of these developments:

1. New York will use part of its share of billions of dollars in federal Superstorm Sandy aid to “fully compensate” storm victims who had flood insurance claims denied because of a hard-to-understand rule barring payments for damage caused by earth movement during a flood, New York Gov. Andrew Cuomo announced Saturday. Details have not yet been released.

2. The STOP FEMA NOW protest - The Biggert-Waters Flood Insurance Reform Act of 2012 stipulates that if homeowners don't raise their houses, they face much higher flood insurance premiums - to $20,000 plus.

SUPERSTORM SANDY DEADLINE

The standard National Flood Insurance Program (“NFIP”) dwelling form requires that detailed information be provided as a proof of loss within sixty days.

After Sandy hit on October 29, 2012, the Federal Emergency Management Agency (“FEMA”) extended the amount of time within which an insured must submit a proof of loss for FEMA-backed insurance policies to one year from the date of the loss. Generally speaking, for New Jersey and New York Sandy victims looking for insurance claims, this deadline should be considered to be no later than October 29, 2013 but some may argue the one year expires October 28.

NEWSDAY - Deadline looms for Sandy victims on flood insurance claims

OPERATION CLEAR TURF

While researching sites that post reviews and what to do about negative reviews, I discovered this:

http://www.ag.ny.gov/press-release/ag-schneiderman-announces-agreement-19-companies-stop-writing-fake-online-reviews-and

RENT CONTROL/STABILIZED LEASES IN BANKRUPTCY

A link to an interesting discussion from Shenwick & Associates:

http://www.icebase.com/r.pl?P67HxqNVCmmHoLPL_f762b287d48c661d

NEW YORK UNEMPLOYMENT INSURANCE - DELAY IN DISCHARGE DATE

If an employee violates company policy or commits some act of alleged misconduct on Day 1 but is not discharged until Day 160, an issue arises. As explained in In re AB 566212 (Decided November 29, 2012):
 
"OPINION: The credible evidence establishes that the employer discharged the claimant on November 4, 2011. The law is settled that there must be a direct nexus in time between the alleged act and the discharge to establish misconduct for unemployment insurance purposes, and if there is a delay, there must be a reasonable explanation for such delay. We find that the employer has failed to put forth any compelling explanation for the delay in discharge from May to November of 2011. Although an employer is entitled to a reasonable period of inquiry to investigate the matter and consider the proper consequences, we note that the investigation of the incident was essentially complete the following day. Even considering that school may have been out of session after June 26, 2011, we are not convinced that this adequately explains all of the inordinate delay in discharge, particularly considering that the claimant continued working for employer well into the next school year, and for some six weeks after the "personnel performance conference" in September.”          

ON STUDENT LOANS

At yesterday's mortgage foreclosure clinic at the Nassau County Bar Association, several matters involved the connection between student loans and mortgage foreclosure. There are many.

One aspect of student loans that has been in the press recently is the under utilization of the Public Service Loan Forgiveness Program, which is intended to encourage individuals to enter and continue to work full-time in public service jobs. Under this program, borrowers may qualify for forgiveness of the remaining balance of their Direct Loans after they have made 120 qualifying payments on those loans while employed full time by certain public service employers.

Here is a link to the program's website:

http://studentaid.ed.gov/repay-loans/forgiveness-cancellation/charts/public-service

NEW YORK FORECLOSURE - SHADOW DOCKET BILL

In effect since August 30, the purpose of the law is to limit the number of foreclosure actions that fall into the "shadow docket".

The Empire Justice Center has recently posted an article on the new law and here is a link:

EJC - New York State Law Requires Certificate of Merit Filing with the Summons and Complaint in Residential Foreclosure Cases

HELPING CLIENTS STAY AFLOAT

Attending a CLE this early afternoon at Nassau County Bar Association - most helpful with foreclosure issues but can also guide me in other matters such as home purchase, divorce, etc.

DEADLINE ON AFFORDABLE CARE ACT NOTICE OCTOBER 1

Companies subject to the new law must notify all employees by letter before October 1 about the Affordable Care Act's healthcare exchanges. The penalty is a fine of $100 a day.

More information is available at the US DOL website:

http://www.dol.gov/ebsa/pdf/tr13-02.pdf

AVOIDING ESTATE BATTLES

As a trial is about to begin in the Estate of Huguette Clark matter, here is a link to an article I recently found with some very good suggestions on how to avoid this type of battle, even with small estates where such disputes can lead to agonizing family issues:

Liz Weston, MSN Money - How To Avoid Nasty Estate Battles

MENTAL HEALTH OF LITIGANTS

Setting aside the argument that litigation always affects the mental health of a party, there are truly cases where a party who has not been adjudicated as incompetent is nevertheless incapable of adequately prosecuting or defending his/her rights.

There is statutory guidance in Article 12 of the CPLR and of course the cases thereunder when  dealing with a client in litigation (and/or a pro se party in opposition) with a mental health condition and an attorney should be aware that a need for a guardian ad litem may arise at any time. The best course, naturally, is to deal with client competency problems as soon as possible in order to avoid unnecessary delays and costs in litigation.

While researching this, I came across an interesting Court of Claims case from a few months ago where the pro se claimant was making his own motion for a guardian ad litem:

TRUCCHIO v. THE STATE OF NEW YORK, # 2013-048-101, Claim No. 112596, Motion No. M-82864

PRO BONO FAIR OCTOBER 24

Thursday, October 24, 2013 3:00 to 6:30 p.m. at the Nassau County Bar Association 15th &  West Streets, Mineola . Call to Register (516) 747-4070 

Volunteer attorneys meet one-on-one with members of the public to answer questions and concerns in many areas of law. Attorneys fluent in foreign languages available.

WHO CAN AFFORD TO LITIGATE

I came across this article a few weeks back and meant to post it then. As several matters were recently turned down by me due to inability to afford the cost of litigation, this article is compelling:

Berkshire Eagle - Opinion

TENANT OR LICENSEE

I had an interesting question posed to me yesterday - was the individual a tenant or a licensee? This distinction is important so here is a recent case I found which has a thorough discussion of the issue:

25 Misc.3d 210 (2009) 881 N.Y.S.2d 839   ROBERT DROST, Petitioner,
v.
KIM HOOKEY, Respondent.   HULT 187-09   District Court of Suffolk County, Third District. Decided May 14, 2009. Albert M. Swift, Great Neck, for respondent.
Keith A. Lavallee, Farmingdale, for petitioner.
OPINION OF THE COURT

C. STEPHEN HACKELING, J.

Undisputed Facts

The undisputed relevant facts presented are that Robert Drost, the petitioner, is the sole deeded title holder of the real property located at 43 Louisa Court, Northport, New York. Until recently, the petitioner resided there with his ex-girlfriend, the respondent, Kim Hookey, for in excess of three years. Prior to moving in together the respondent individually owned and resided in her own separate house. Contemporaneously with the petitioner's move-in invitation, the respondent transferred a one-half interest in her house to him in consideration of $25,000 which was utilized to cure her mortgage arrears. The petitioner recently moved out of the Louisa Court premises alleging the respondent has a medically related affliction. Said condition has apparently prevented the respondent from appearing in this action other than by counsel.

Issues Presented

May a cohabiting former boyfriend dispossess his girlfriend of three years from real property, titled only in his name, via a summary proceeding pursuant to the provisions of RPAPL 713 (7)?
Secondly, if such a girlfriend sold the boyfriend a one-half interest in a second residence as part of the cohabitation arrangement is she a "licensee," "tenant at will" or something else?

Discussion

Tenant at Will?

[*2]
The petitioner has proceeded under section 713 (7) of the RPAPL which provides that he may dispossess a licensee after giving a 10-day notice to quit. The respondent girlfriend counters that the 10-day notice to quit is inapplicable as she is not a licensee, but rather a tenant at will, requiring a 30-day notice to quit. (See Real Property Law § 228.)
Despite the frequency that the "cohabiting boyfriend/girlfriend" issue is presented in this state's landlord-tenant{**25 Misc 3d at 212} courts, "the legal status of a paramour with respect to continued occupancy . . . after love's ardor has cooled" was only first construed via written decision in 1987. (Minors v Tyler, 137 Misc 2d 505, 506 [Civ Ct, Bronx County 1987].) As of this date, no appellate court has directly addressed the paramour licensee issue, although a plethora of lower courts have written divergent opinions on the subject, premised upon First, Second and Fourth Department, Appellate Division, decisions construing the status of a "wife" as a licensee.
The threshold dispositive issue requires the court to address the girlfriend's argument that her legal status is that of a "tenant at will" (not a licensee) and as such is entitled to the enhanced 30-day notice protections afforded landlord/tenant relationships ascribed under RPAPL 711. (Real Property Law § 228.) Interestingly, the terms "tenant at will" and "licensee" are not defined by statute in New York, and as such the distinction between them is left to the common law. (See Larned v Hudson, 60 NY 102 [1875].) The generic common-law definitions of these two concepts do tend to blur and involve common concepts of temporary permission to occupy premises for an undetermined time period. (See generally Fisher v Queens Park Realty Corp., 41 AD2d 547 [2d Dept 1973].) However, synthesized down to its most basic common denominator, a "tenant at will" recognizes a landlord-tenant relationship and the occupant is granted exclusive possession of a designated space while a "licensee" acknowledges an absence of a landlord-tenant relationship and the occupant receives only unexclusive "use or occupancy" of a premises. (See American Jewish Theatre v Roundabout Theatre Co., 203 AD2d 155, 156 [1st Dept 1994], citing Feder v Caliguira, 8 NY2d 400, 404 [1960]; see also Reynolds v Van Beuren, 155 NY 120 [1898] [dicta]; 49 NY Jur 2d, Easements § 216.)
The factual situation at hand evidences no indication of a landlord-tenant relationship. The girlfriend was granted permission to utilize the entirety of the residence. That grant did not include "exclusive dominion and control over a specifically identified portion of [the] premises" and as such is recognized to constitute a license pursuant to the provisions of section 713 (7). (Federation of Orgs., Inc. v Bauer, 6 Misc 3d 10, 12 [App Term, 9th & 10th Jud Dists 2004]; see also City Enters. v Posemsky, 184 Misc 2d 287 [App Term, 2d & 11th Jud Dists 2000].) In such a situation, the respondent is not a "tenant at will," and is not entitled to a 30-day notice to quit.{**25 Misc 3d at 213}

Licensee?

Statutes Change the Common Law

Historically, nonmarried adults who shared the nonexclusive confines of a home and [*3]were provided with board maintained the legal status of a "lodger." (See People v Hyland, 19 Misc 3d 1114[A], 2008 NY Slip Op 50716[U] [Suffolk Dist Ct 2008].) A lodger did not maintain a landlord-tenant relationship as the owner did not surrender dominion over the premises to him. (See Ashton v Margolies, 72 Misc 70 [App Term 1911]; Schreiber v Goldsmith, 35 Misc 45 [App Term 1901]; 1 Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 4:2, at 173 [4th ed 1998].) Prior to the enactment of RPAPL 711-713's predecessor statutes (Civ Prac Act §§ 1410-1426), a lodger could not be dispossessed via a summary proceeding which was limited to landlord-tenant relationships. Lodgers could only be formally removed via a common-law "action in ejectment." (See Benjamin v Benjamin, 5 NY 383 [1851]; Mathews v Mathews, 2 NYS 121 [3d Dept 1888].)
In response to changing times and increased societal demands, the state legislature, in 1921, created a bifurcated statutory scheme within the Civil Practice Act which allowed for the summary dispossession of both landlord-tenant relationship and nonlandlord-tenant relationship (Civ Prac Act, art 83, § 1411) real property occupiers. The legislature expanded the nonlandlord relationships in 1951 to expressly include licensees. (Rosenstiel v Rosenstiel, 20 AD2d 71, 74 [1st Dept 1963], citing L 1951 ch 273.) It is this court's opinion that the legislature intended the expansion of the summary remedy to be all encompassing and that section 713 (7), and its predecessor statute Civil Practice Act § 1411 (8), was the catchall provision designed to include all non-landlord-tenant occupiers of real property who were not otherwise expressly designated. Such a construction would explain why the statute itself is silent as to any limitations envisioned by the legislature which would change the common-law definition of "licensee." It is noted that statutes arising after creation of the common law are held to abrogate it only to the extent of the "clear import of the language used" and only to the extent the "statute absolutely requires" (McKinney's Cons Laws of NY, Book 1, Statutes § 301 [b]; see also Bertles v Nunan, 92 NY 152 [1883]). The statute's derogation of the common law must be strictly construed. (Dollar Dry Dock Bank v Piping Rock Bldrs., 181 AD2d 709 [2d Dept 1992].) In{**25 Misc 3d at 214} order for a statute to change the common law, the legislative intent behind the statute must clearly have the purpose of doing so. (See Dean v Metropolitan El. Ry. Co., 119 NY 540 [1890]; Bose v United Empl. Agencies, Inc., 200 Misc 176 [Mun Ct, Brooklyn 1951].) The Appellate Division, Fourth Department, has adopted this broad common-law definition and has expressly determined that even a "wife" is a licensee capable of being removed from the marital home under an RPAPL 713 (7) proceeding unless a summary eviction would be in derogation of her rights under the Domestic Relations Law. (Halaby v Halaby, 44 AD2d 495 [4th Dept 1974].)

Familial Relationship Exceptions

Premised upon a finding that a girlfriend meets the common-law definition of a licensee, it would be logical to conclude that section 713 (7) is the appropriate summary statutory mechanism to dispossess her. Confusedly, the aforementioned Tyler court and its progeny created a "familial relationship" exception to the common-law definition of licensee, which had broad ramifications in limiting the use of summary proceedings to dispossess persons outside of a landlord-tenant [*4]relationship.^[FN1]
This familial relationship exception initially stemmed from the Appellate Division, First Department, decision in Rosenstiel v Rosenstiel (20 AD2d 71 [1963]), which held that a husband cannot by means of summary proceedings evict his wife from the marital home, as long as the marriage relationship is unabridged by a court of competent jurisdiction or by a valid agreement. Rosenstiel relied upon the premise that the legislature intended to exempt wives from the common-law definition as it removed "Spouse Remaining on Premises after Separation or Divorce" from the original proposed bill and as a result of the affirmative enactment of mandated support statutes in the Domestic Relations Law (20 AD2d at 75). The Rosenstiel holding was expanded by New York City courts to cover domestic partners in reliance upon Braschi v Stahl Assoc. Co. (74 NY2d 201 [1989]), which held that a paramour was a "family member" of his partner as envisioned by New York City's rent control laws, and as such, protected from eviction due to his occupancy{**25 Misc 3d at 215} succession rights. Thereafter, this expansive and somewhat subjective definition of family led to an ever evolving class constituting the "familial relationship" licensee exception, which presently includes a girlfriend who had a petitioner's child, grandchildren, adult children, stepchildren, and inlaws after the death or divorce of a spouse. See Lally v Fasano (23 Misc 3d 938 [Nassau Dist Ct 2009]) for a good historical synopsis.

Family Case-by-Case Review vs. Statutory Opt-Out Objective Test

Lower courts outside the City of New York somewhat acquiesced to the existence of a "familial relationship" licensee exception but balked at the idea of a "blanket assertion that all family members will be exempt from licensee status." (Lally v Fasano, 23 Misc 3d 938, 940 [2009].) In an attempt to limit the scope of the licensee exception, a "case-by-case" test was advanced whereby each court must examine whether the family members lived together under one roof, were financially and socially dependent and whether a legal duty of support existed. Utilizing this codependency test, it was held that a domestic partner could evict a former girlfriend who was the mother of his child pursuant to section 713 (7). (See Blake v Stradford, 188 Misc 2d 347 [Nassau Dist Ct 2001].)
While the result of the Lally and Blake holdings appears correct, this court declines to adopt the "case-by-case" codependency test. A close reading of the Second Department's Rosenstiel precedent reveals a simpler more objective licensee exemption test. Rosenstiel relied upon the premise that the legislature intended to exempt wives from the common-law definition as a result of the affirmative enactment of mandated support and marital distribution statutes contained in the Domestic Relations Law. Similarly, the common thread running through the Court of Appeals Braschi decision is not the common-law definition of family, but rather the [*5]statutory protections flowing from New York's rent-control apartment succession laws. The Appellate Division, Fourth Department, in Halaby (44 AD2d at 499), citing to Tausik v Tausik (11 AD2d 144 [1st Dept 1960], affd 9 NY2d 664 [1961]), also made its section 713 (7) licensee determination premised upon a finding that prior to the initiation of the RPAPL 713 (7) proceeding, the husband's support obligations had already been determined by the Family Court. Thus, the husband was not circumventing his{**25 Misc 3d at 216} obligations by using the section 713 (7) summary proceeding. The Court disregarded any arguments that licensee status hinged upon the definition of "family." In all these instances, the common law was modified via express statutory amendment. It is submitted herein that section 713 (7) includes all common-law licensees except those who can claim an "opt-out" status by virtue of inclusion in a legislative vehicle which grants them greater rights than those of a licensee.^[FN2] Mere "cohabitation without marriage does not give rise to property and financial rights which attend the marital relation." (Morone v Morone, 50 NY2d 481, 486 [1980].) It is therefore the burden of the respondent paramour to identify her statutory entitlement to opt out of the common-law licensee definition. (See generally Eckles v Sealy, NYLJ, Apr. 17, 2002, at 27, col 6.)
In the instant proceeding, the respondent advances no argument citing to alternative statutory entitlement to greater dispossession protections other than those provided by section 713 (7). As such, she meets the common-law definition of licensee and is subject to a section 713 (7) summary eviction. The court is aware of the respondent's factual assertion via the argument of counsel that she granted the petitioner a one-half interest in her house, possibly in consideration of her cohabiting with the petitioner. Assuming such a defense was asserted in an answer to the petition, such an arrangement might establish a constructive trust or joint venture/partnership which could be an affirmative defense to a licensee proceeding. (See generally Padilla v Padilla, 164 Misc 2d 740 [Civ Ct, Bronx County 1995], citing Minors v Tyler, supra.) However, the respondent's failure to appear and testify leaves the court an insufficient record to consider such a defense.
Accordingly, the court finds that the respondent is a section 713 (7) licensee and that she received the appropriate 10-day notice of termination of her license to occupy the premises located at 43 Louisa Court, Northport, New York. The petitioner may submit a judgment of possession and a warrant of eviction, enforcement of which shall be stayed until June 30, 2009.[*6]

Footnotes

Footnote 1: A familial relationship exception to the licensee definition would also bar the use of summary proceedings to remove adult children from their elderly parents' homes. This everyday situation in landlord-tenant court could now only be addressed via a Supreme Court action in ejectment which the Fourth Department Halaby Court described as an inadequate remedy.
Footnote 2: This is consistent with this court's ruling in Curtis Jackson (50 Cent) v Shaniqua Tompkins (HULT No. 112-08, Apr. 3, 2008), wherein it was determined that the girlfriend respondent was a section 713 (7) licensee as support payments, inclusive of a housing allowance, were current. This statutory "opt-out" test also allows for parents and grandparents to dispossess adult children/family members as licensees via a summary proceeding.

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.

REBUILDING AFFORDABLE HOUSING AFTER SANDY

Consulting at yesterday's Sandy/Foreclosure clinic, I was faced with this issue - can one rebuild with insurance funds, SBA loans, etc. and make the housing affordable.

See this article:

NY WORLD - Left high and dry by insurers, homeowners reluctantly borrow Sandy rebuilding funds

So assuming a family earning $100,000 a year, with a $200,000 regular mortgage, requiring a $250,000 loan SBA loan to rebuild in addition to flood insurance funds received - with Nassau County taxes, flood insurance costs, etc. calculated and assuming no other debt -  that would put the family into a house with $450,000 debt and unaffordable housing.

NASSAU SANDY/FORECLOSURE CLINIC TODAY

At 3pm at Nassau County Bar Association, 15^th and West Streets, Mineola, NY 11501. This is a free clinic starting at 3pm and it is urged that you call first at (516) 747-4070.

I will be one of the volunteer attorneys.

5774

MORE RE: SUPERSTORM SANDY

An interesting story on the additional cost of rebuilding - elevate or high insurance policy:

NBC NEWS - $20,000 a year for flood insurance? Sandy survivors face tough rebuilding choices

LAWYERS AND MENTAL ILLNESS

Yesterday I read a decision from the Appellate Division, First Department regarding an attorney's disbarment - basically neglect of work due to depression and mental illness but the Appellate Division noted in dicta that it would only have suspended the attorney if the attorney responded to the charges (but the attorney could not due to the attorney's mental illness). Matter of Blank, 2013 NY Slip Op 05724 (AD 1st Dept August 27, 2013)

Note this editorial from the New York Times earlier this month:

NYT - Lawyers of Sound Mind?

A NOTE TO SMALL BUSINESSES - WORKER'S COMPENSATION

From the NYS WC Board website:

"The law requires employers operating in New York State to have workers' compensation coverage for their employees, with limited exceptions. Employers are required to obtain and keep in effect workers' compensation coverage for all employees, even part-time employees and family members that are employed by the company. The following is a brief summary of the liability and penalties for violations of mandatory workers' compensation insurance coverage requirements.

Ascertaining Violations of the Law

The Workers' Compensation Board may require an employer to furnish proof that the employer:

• Has a valid workers' compensation insurance policy;
• Is self-insured for workers' compensation; or
• Is legally exempt from having to obtain workers' compensation coverage, and/or
• Is keeping proper, accurate business records.

If an employer fails to provide this information within 10 days following the Board's request, under the WCL the Board is required to assume that the employer is violating the WCL. (WCL §52 [3])

Personal Accountability

The sole proprietor, partners or the president, secretary and treasurer of a corporation are personally liable for a business' failure to secure workers' compensation insurance.

Liability for Claims Incurred by an Uninsured Employer

Section 26-a says an employer is liable for a penalty of $2,000 per 10-day period of noncompliance, plus the actual award (including both compensation and medical costs), plus any other penalties the Board assesses for noncompliance. In cases involving severely injured employees, the medical costs alone could be in the hundreds of thousands of dollars per injury."

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NEW YORK STATE CAPITOL BUILDING TOURS

A suggestion for every New York attorney: to see the Assembly and Senate, visit the Hall of Governors and see where New York laws are made. I just visited yesterday, the tours are free and here is the link:

http://www.ogs.ny.gov/esp/CT/Tours/Capitol.asp

A THANK YOU....

....to my over 320 connections on Google Plus:

Jon Michael Probstein - Google+

And the firm page on Google Plus:

Law Offices of Jon Michael Probstein - Google+

'

NEW FORECLOSURE LAW FOR ACTION STARTED AUGUST 30

Earlier this month, Governor Cuomo signed into law an amendment to the CPLR, CPLR 3012-b ("Certificate of Merit" Law), which will require any lender intending to file a foreclosure complaint in New York to provide a certificate of merit at the start of the proceedings.

For more information, go to page 3 of the Nassau Suffolk Law Services newsletter for this month:

http://nslawservices.org/wp/wp-content/uploads/2013/08/august-2013-newsletter.pdf

"THE BULLDOG ATTORNEY"

Here is a link to a post from New York Divorce Report:

7 Divorce Mistakes to Avoid: How to Not Have A Disastrous Divorce

Of course, a lot of these suggestions apply to any commercial litigation as well but I found the Number 1 suggestion most interesting when it states:

"Hiring the bullldog attorney- the super aggressive lawyer who promises to leave no stone unturned so that you will “win” the case and who promises to punish your spouse- is a recipe for disaster. The bulldog attorney will needlessly litigate everything.

The only one who will definitely benefit from this hire is the attorney. He will bill you aggressively and end up with the lion’s share of the marital assets."

I just note that I have seen this in matrimonial and non-matrimonial cases - the "bulldog client/litigant" who, notwithstanding any type of attorney hired and who may even proceed pro se, will "needlessly litigate everything".

THE USE OF CORPORATE OFFICER TITLES

I recently came across this article in the New York Times:

NYT - Real Estate Professionals Lose Some Curb Appeal

BCL Article 7, and Section 715 in particular, defines some of the duties and responsibilities of corporate officers. It would thus certainly appear, at least under the BCL, the use of corporate honorifics without any actual corporate duties is improper.

RE-REGISTER FOR STAR

As noted on the NYS Dept. Taxation & Finance website:

 

"Two types of STAR exemptions:

 

Basic STAR

• available for owner-occupied, primary residences where the resident owners' and their spouses income is less than $500,000
• exempts the first $30,000 of the full value of a home from school taxes

Enhanced STAR

• provides an increased benefit for the primary residences of senior citizens (age 65 and older) with qualifying incomes
• exempts the first $63,300 of the full value of a home from school taxes as of 2013-14 school tax bills (up from $62,200 in 2012-13)"

"New legislation requires all homeowners receiving a Basic STAR exemption to register with the New York State Tax Department in order to receive the exemption in 2014 and subsequent years.

• Homeowners will not have to register in order to receive their 2013 STAR exemptions.
• Homeowners will not have to re-register every year. Based on the information provided in the registration process, the Tax Department will monitor homeowners' eligibility in future years."

For more information, see this link:

http://www.tax.ny.gov/pit/property/star13/default.htm

MORE RE: EMPLOYMENT AND CRIMINAL BACKGROUND

My research found an excellent pamphlet by the NYC Bar Association on this issue and so here is the link:

http://www2.nycbar.org/pdf/report/Labor_reentry_pamphlet_employees09.pdf

Other recent articles of interest with respect to the EEOC on this issue:

http://blog.nolo.com/employment/2013/08/15/controversy-over-criminal-background-checks/

http://www.jdsupra.com/legalnews/eeoc-cracking-down-on-use-of-criminal-ba-74227/

http://www.mondaq.com/unitedstates/x/258274/Discrimination+Disability+Sexual+Harassment/EEOC+Position+On+Criminal+Background+Checks+Rejected+Again

MORE RE: EMPLOYMENT AND CRIMINAL BACKGROUND

As noted in the last blog, New York State Executive Law Section 296 (15), the New York State Human Rights Law, refers to New York State Correction Law Article 23-A. Section 751 of the Correction Law relates to applicability and the inclusions and exclusions should be noted:

 "§  751.  Applicability.  The provisions of this article shall apply to
  any application by any person for a license or employment at any  public
  or  private  employer,  who has previously been convicted of one or more
  criminal offenses in this state or in any other jurisdiction, and to any
  license or employment held by any person whose conviction of one or more
  criminal offenses in this state or in any  other  jurisdiction  preceded
  such  employment  or  granting  of  a  license, except where a mandatory
  forfeiture, disability or bar to employment is imposed by law,  and  has
  not  been  removed  by  an  executive pardon, certificate of relief from
  disabilities or certificate of good conduct.  Nothing  in  this  article
  shall be construed to affect any right an employer may have with respect
  to  an  intentional  misrepresentation in connection with an application
  for employment made by a prospective employee or previously  made  by  a
  current employee."

MORE RE: EMPLOYMENT AND CRIMINAL BACKGROUND

New York State Executive Law Section 296 (15) first refers to New York State Correction Law Article 23-A. Let us examine that statute.

There are six sections - Section 750 to 755. The first, Section 750, deals with definitions and note the definition of employment and the exclusion of law enforcement from that definition:

§  750.  Definitions.  For the purposes of this article, the following
  terms shall have the following meanings:

    (1) "Public agency" means the state or any local subdivision  thereof,
  or any state or local department, agency, board or commission.

    (2)  "Private  employer" means any person, company, corporation, labor
  organization or association which employs ten or more persons.

    (3) "Direct relationship" means that the nature  of  criminal  conduct
  for  which  the person was convicted has a direct bearing on his fitness
  or ability to perform one or more  of  the  duties  or  responsibilities
  necessarily related to the license, opportunity, or job in question.

    (4)  "License"  means  any  certificate,  license,  permit or grant of
  permission  required  by  the  laws  of  this   state,   its   political
  subdivisions or instrumentalities as a condition for the lawful practice
  of any occupation, employment, trade, vocation, business, or profession.
  Provided,  however,  that  "license" shall not, for the purposes of this
  article, include any license or permit to own, possess, carry,  or  fire
  any explosive, pistol, handgun, rifle, shotgun, or other firearm.

    (5)  "Employment" means any occupation, vocation or employment, or any
  form of vocational or  educational  training.  Provided,  however,  that
  "employment"  shall  not,  for  the  purposes  of  this article, include
  membership in any law enforcement agency."

MORE RE: EMPLOYMENT AND CRIMINAL BACKGROUND

New York's Human Rights Law should be examined in exploring this issue - N.Y. EXEC. LAW § 296 (15):

"15.  It  shall  be an unlawful discriminatory practice for any person,
  agency, bureau, corporation or association, including the state and  any
  political  subdivision thereof, to deny any license or employment to any
  individual by reason of his or her having been convicted of one or  more
  criminal  offenses,  or  by reason of a finding of a lack of "good moral
  character" which is based upon his or her having been convicted  of  one
  or  more  criminal  offenses,  when  such  denial is in violation of the
  provisions of article twenty-three-A of  the  correction  law.  Further,
  there  shall  be  a  rebuttable  presumption  in favor of excluding from
  evidence the prior incarceration or conviction of any person, in a  case
  alleging  that the employer has been negligent in hiring or retaining an
  applicant or  employee,  or  supervising  a  hiring  manager,  if  after
  learning  about  an  applicant  or  employee's  past criminal conviction
  history, such employer has evaluated the factors set  forth  in  section
  seven  hundred  fifty-two  of the correction law, and made a reasonable,
  good faith determination that such factors militate in favor of hire  or
  retention of that applicant or employee."

HELP! I HAVE JUST BEEN ARRESTED AND I CAN'T GET A JOB

Catchy title but this is all about employment discrimination - especially since I have seen this problem arise in the context of unemployment insurance denial where a claimant is found to be in "misconduct" for a false job application (and of course, the claimant believed claimant would never have obtained the job unless the "false statement" was made).

What is "puffing" and what is deliberate falsification? Recently, I have been reviewing this issue in the context of job applicants who have had some contact with criminal matters.

Let us first look at the federal rules. This is from the EEOC website http://www.eeoc.gov/laws/practices/inquiries_arrest_conviction.cfm:

"There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records. However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.

Since an arrest alone does not necessarily mean that an applicant has committed a crime the employer should not assume that the applicant committed the offense. Instead, the employer should allow him or her the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable.

Even if the employer believes that the applicant did engage in the conduct for which he or she was arrested that information should prevent him or her from employment only to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when

• considering the nature of the job,
• the nature and seriousness of the offense,
• and the length of time since it occurred.

This is also true for a conviction.

Several state laws limit the use of arrest and conviction records by prospective employers. These range from laws and rules prohibiting the employer from asking the applicant any questions about arrest records to those restricting the employer's use of conviction data in making an employment decision.
.........

In some states, while there is no restriction placed on the employer, there are protections provided to the applicant with regard to what information they are required to report.

The Fair Credit Reporting Act (FCRA) imposes a number of requirements on employers who wish to investigate applicants for employment through the use of consumer credit report or criminal records check. This law requires the employer to advise the applicant in writing that a background check will be conducted, obtain the applicant's written authorization to obtain the records, and notify the applicant that a poor credit history or conviction will not automatically result in disqualification from employment.

Certain other disclosures are required upon the employee's request and prior to taking any adverse action based on the reports obtained."

NEW YORK TIMES LINK TO DECISION STOP & FRISK FLOYD V. NYC

http://www.nytimes.com/interactive/2013/08/12/nyregion/stop-and-frisk-decision.html?_r=0

CHILD CUSTODY - RELOCATION

This issue comes up many times in divorce and/or separation (and can even come up during marriage): parent has new job, is transferred, remarries, etc. and wants or needs to move but the move may cause some issues between the child and the other parent remaining behind.

While researching this issue, I came across the website of The McCarthy Fingar firm who had a list of appellate cases dealing with relocation and I pass it on here:

http://www.mccarthyfingar.com/practice-areas/matrimonial-and-family-law/child-relocation.aspx

One case cited was a dispute over a 12 mile relocation.

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS

At a hearing this morning - the third day of hearings since June. This is just to point out that this type of litigation can be a lengthy process.

NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT

The question of whether to have arbitration as per union contract first or unemployment insurance hearing has been recently addressed by the Appellate Division, Third Department:

IN THE MATTER OF THE CLAIM OF CHOHAN v. COMMISSIONER OF LABOR, 515899 (3d Dept 7-11-2013)

2013 NY Slip Op 05280

In the Matter of the Claim of ADIL J. CHOHAN, Appellant v. COMMISSIONER OF
LABOR, Respondent.

515899

Appellate Division of the Supreme Court of New York, Third Department.

Calendar Date: June 6, 2013 Decided and Entered: July 11, 2013

Appeal from a decision of the Unemployment Insurance Appeal Board, filed
March 8, 2012, which ruled that claimant was disqualified from receiving
unemployment insurance benefits because his employment was terminated due to
misconduct.

Adil J. Chohan, Coram, Appellant Pro Se.

Before: PETERS, P.J., LAHTINEN, McCARTHY and EGAN JR., JJ.

  MEMORANDUM AND ORDER

  Claimant, a mail carrier, lost his employment following an incident
whereby he was found to have left the employer's vehicle unattended with the
engine running in violation of the employer's known policy. Claimant
contested his discharge and, following an evidentiary hearing, an arbitrator
concluded that there was just cause for his termination. The Unemployment
Insurance Appeal Board subsequently ruled that claimant was disqualified
from receiving unemployment insurance benefits on the basis that he lost his
employment due to misconduct. This appeal ensued.

  We affirm. Significantly, "as there was a full and fair opportunity to
litigate the issue in the prior proceeding, collateral estoppel effect must
be given to the arbitrator's factual findings regarding claimant's
misconduct" (Matter of Redd [Commissioner of Labor, 98 AD3d 791, 791 [2012],
lv denied20 NY3d 857 [2013] [internal quotation marks and citation omitted];
see Matter of Mordukhayev [Commissioner of Labor], 104 AD3d 1005, 1006
[2013]). Here, inasmuch as the Board appropriately took into account the
arbitrator's factual findings and made "an independent evaluation as to
whether that conduct constitutes `misconduct' for the purposes of
unemployment insurance" (Matter of Nwaozor [City of New York — Commissioner
of Labor], 82 AD3d 1475, 1475 [2011]), we find no basis to disturb the
Board's ruling. While claimant maintains that, at worst, the alleged conduct
constituted an excusable error in judgment, the Board disagreed, noting that
claimant had been counseled by the employer prior to this incident "for
various safety violations." Notably, "[a] claimant's disregard of an
employer's established procedures and policies, particularly where it is
potentially detrimental to the employer's best
Page 2
interest" (Matter of Song [Commissioner of Labor], 105 AD3d 1241, 1241
[2013]), may, as in this instance, be sufficient to constitute disqualifying
misconduct (see Matter of Cedrone [Warren County Head Start ACC Childcare
Ctr. — Commissioner of Labor], 69 AD3d 1251, 1252 [2010]).

  Peters, P.J., Lahtinen, McCarthy and Egan Jr., JJ., concur.

  ORDERED that the decision is affirmed, without costs.

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Copyright © 2013 CCH Incorporated or its affiliates
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MENTAL HEALTH AND BECOMING A LAWYER

See this article from August 5 New York Times:

NY TIMES - LAWYERS OF SOUND MIND?

REFUSAL BY CO-OP BOARDS

Two articles which highlight the issues faced by both Sellers and Buyers of co-op apartments - particularly in the higher price market:

http://www.nytimes.com/2012/10/14/realestate/co-op-boards-to-buyers-nah-not-at-that-price.html?pagewanted=all

http://nypress.com/mixed-support-for-co-op-bills/

Basically, although they are not allowed to illegally discriminate, co-op boards aren’t required to disclose the reasons they reject applications.

THE USE OF PRIVATE INVESTIGATORS

Whether it is a commercial or a matrimonial matter, there can be a need for an investigator (costly but effective) as noted in this recent landlord/tenant case:

NY POST - Nolita landlords say tenant earned $500K over 4 years by illegally renting out apartment as a NYC ‘hotel room’ - used private eye posing as tourist to out sublet

JAY-J'S LAW

Several days ago, Governor Andrew M. Cuomo  signed legislation enacting Jay-J’s Law, which allows for tougher penalties against offenders who have been convicted of repeatedly abusing a child.

Here is a link to the press release:

http://www.governor.ny.gov/press/07292013-jay-js-law

NEW YORK DIVORCE - JUDICIAL MISCONDUCT?

Here is a link to a news story I got the other day:

NBC - I-Team: Judge Made Rulings on Divorce Case, Husband Was Lawyer

NEED HELP?

For attorneys in Long Island, a reminder that The Nassau County Bar Association Lawyer Assistance Program (NCBA LAP) provides free and 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.

See this link:

Lawyer Assistance Program - NCBA