Friday, January 31, 2014


This is the full opinion of the case that has been hitting the news lately:

"Matter of Seb C-M, (Surr., NY, Kings County, Decided January 06, 2014)

This is an uncontested proceeding commenced by A. C. (the petitioner) for the adoption of her infant son, Seb C-M, pursuant to DRL §111, et seq. The petitioner is married to M. M., Seb C-M's birth mother.1 In support of her petition, the petitioner offers, inter alia, a certified copy of Seb C-M's Certificate of Birth Registration, issued by the City of New York, which identifies the petitioner and her spouse, M.M., as the parents of Seb C-M.

The petitioner appears to have filed the instant application out of an abundance of caution, perhaps to ensure that, with the support of judicial imprimatur, her existing parental relationship with the infant is less susceptible to challenge in the event of the family's re-location to a jurisdiction less hospitable to the rights of same-sex couples to marry and adopt children. Indeed, the court is mindful of the uncertainty occasioned by the tectonic shifts occurring in the geography of our culture's definition of "family," particularly with respect to the increasing recognition of the right to marriage equality and adoption by same-sex families, as well as the ethical complexities arising from assisted reproductive technologies.2 However, the relief sought herein by the petitioner is neither necessary nor available.

"Adoption is the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of a parent in respect of such other person." DRL §110 (emphasis added). The "purpose and effect" of adoption is "…to create a new legal relationship where one did not previously exist. Adoption is not utilized for, nor…is it available to reaffirm, an already existing parent/child relationship." In re Sebastian, 25 Misc. 3d 567, 572 (Sur. Ct. New York Co. 2009) (emphasis in original, citations omitted).3

The petitioner herein was lawfully married to M.M. on April 29, 2011, in the State of Connecticut. The marriage of the petitioner and her spouse was fully recognized by the State of New York even before DRL §10-a took effect on July 24, 2011. See Martinez v. County of Monroe, 50 A.D. 3d 189, 193 (4th Dep't 2008), app. dismissed 10 N.Y. 3d 856 (2008) (New York must recognize as valid same-sex marriages lawfully contracted in other jurisdictions); see also Golden v. Paterson, 23 Misc.3d 641 (Sup. Ct. Bronx County 2008) (upholding Governor Paterson's executive directive that New York State agencies recognize same-sex marriages legally performed in other jurisdictions).

Furthermore, the petitioner's status as the parent of Seb C-M is reflected on his birth certificate, which serves as prima facie evidence of his parentage (Public Health Law §4103). New York courts have long held that the presumption of legitimacy afforded children born of married parents is "one of the strongest and most persuasive known to the law. " David L. v. Cindy Pearl I., 208 A.D. 2d 502, 503 (2d Dep't 1994) (quoting Matter of Findlay, 253 N.Y. 1, 7 [1930]); see also Barbara S. v. Michael I., 24 A.D.3d 451 (2d Dep't 2005). While the traditional understanding implied by the strong, albeit rebuttable, presumption is that a child is the biological offspring of her or his married parents, the court notes that recognition of marriage equality rights, coupled with advances in assisted reproductive technologies, necessarily results in application of the presumption of legitimacy to offspring of parents in lawful same-sex and opposite-sex marriages, regardless of the circumstances of conception, gestation and birth of such children. Indeed, petitioner's status is further protected by the enactment of subsection (2) of DRL §10-a:

[n]o government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage, whether deriving from statute, administrative or court rule, public policy, common law or any other source of law, shall differ based on the parties to the marriage being or having been of the same sex rather than a different sex. When necessary to implement the rights and responsibilities of spouses under the law, all gender-specific language or terms shall be construed in a gender-neutral manner in all such sources of law.

Prior to the holding in Martinez, supra, and the enactment of DRL §10-a, this court would have, without any hesitation whatsoever, approved the petitioner's application for adoption of Seb C-M. However, today no such action is warranted or permitted by this court to affirm an existing, recognized and protected parent-child relationship between the petitioner and her son. Indeed, were this court to entertain the instant petition, such action would imply that, notwithstanding the existing and lawful marital relationship between the petitioner and her spouse, true marriage equality remains yet to be attained, and that, although legally recognized in this state, a same-sex marriage remains somehow insufficient to establish a parent-child relationship between one particular parent and any child born within that marriage, thereby raising equal protection concerns.

If in fact the petitioner's and M.M.'s intent is to secure additional protection of their family's legal relationship in order to assure its recognition in the event of relocation to a jurisdiction hostile to marriage equality, the more appropriate, and indeed necessary, course of action would be to seek redress of the denial of their civil rights in such jurisdiction. In just the past half year, following Windsor, a host of state and federal courts in disparate parts of the nation have struck down, on constitutional grounds, state laws and policies that limit the rights of same-sex couples to civil marriage. For example, in Obergefell v. Wymyslo, 2013 U.S. Dist. LEXIS 179550, 78-79 (S.D.Ohio Dec. 23, 2013), the court declared invalid provisions of Ohio's state constitution and statutes that banned recognition of out-of state same-gender marriages, stating in no uncertain terms Ohio must recognize valid out-of-state marriages between same-sex couples on Ohio death certificates…. That is, once you get married lawfully in one state, another state cannot summarily take your marriage away, because the right to remain married is properly recognized as a fundamental liberty interest protected by the Due Process Clause of the United States Constitution.

See also Griego v. Oliver, 2013 N.M. LEXIS 414, *65-66. (Dec. 19, 2013) (New Mexico Supreme Court, ruling on equal protection grounds that the state must allow same-gender couples to marry and "extend to them the rights, protections, and responsibilities that derive from civil marriage under state law," noted that "child-rearing for same-gender couples is made more difficult by denying them the status of being married and depriving them of the rights, protections, and responsibilities that come with civil marriage" and that "[c]hildren benefit from the presumption of legitimacy when they are born to a married couple"); Kitchen v. Herbert, 2013 WL 6697874 (D. Utah Dec. 20, 2013) (holding unconstitutional "state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law" based on Windsor), stay denied, Kitchen v. Herbert, 2013 WL 6834634 (D. Utah Dec. 23, 2013), and stay granted, Herbert v. Kitchen, 2014 WL 30367 (U.S. Utah Jan. 6, 2014) ; Garden State Equality v. Dow, 79 A.3d 1036, 2013 N.J. LEXIS 1091, 2013 WL 5687193 at *6-7 ( Oct.18, 2013) (New Jersey Supreme Court denying stay of lower court decision holding that the State must extend the right to civil marriage to same-sex couples on equal protections grounds articulated in Windsor); Bassett v. Snyder, No. 12-10038, _ F. Supp.2d _, 2013 WL 3285111 at *23-25 (E.D. Mich. June 28, 2013) (enjoining enforcement of Michigan statute prohibiting public employers from providing medial and other benefits to co-habitants, holding that the statute displayed animus against same-sex couples and lacked a rational basis); and Bishop v. U.S. ex rel. Holder, 2014 WL 116013 (N.D. Oklahoma Jan. 14, 2014) (determining that an amendment to the Oklahoma state constitution which limited the definition of "marriage" solely to the union of one man and one woman intentionally discriminated against groups of persons and violated a same-sex couple's equal protection rights under the Fourteenth Amendment by preventing them from obtaining a marriage license).
Accordingly, it being wholly unnecessary to affirm the existing parental relationship between A. C. and her infant son, Seb C-M, the court hereby declines to entertain the instant petition for adoption.

1. Seb C-M was born in New York, New York on ____, 2013.

2. The court is fully cognizant of the reality that familial relationships sanctioned by the State of New York may be accorded lesser status, or even denied, in certain jurisdictions, and is wholly sympathetic to the concerns of families of same-sex couples who may wish or need to relocate to such jurisdictions. Nonetheless, any jurisdiction which fails to accord recognition to a marriage valid under the laws of the State of New York is equally likely to deny full faith and credit to decrees of adoption issued to same-sex couples by a New York Surrogate's Court.

3. In Sebastian, the petitioning parent was the genetic mother of a child born of her same-sex spouse, to whom she was legally married in the Netherlands. The petitioning parent had executed a surrender of her rights to her biological child as required by the physicians supervising the in vitro fertilization procedure, and the birth certificate reflected only the birth mother as the parent of the child. By virtue of her relinquishment of parental rights, the petitioner in Sebastian had no legal status as parent of the subject infant; thus, the Surrogate's entertainment and grant of her petition for adoption was appropriate. The Court notes that the decision in Sebastian pre-dates both the enactment by the State of New York of DRL §10-a, as well as the decisions of the United States Supreme Court in U.S. v. Windsor, __ U.S. __, 133 S.Ct. 2675 (2013) (finding unconstitutional the federal Defense of Marriage Act as denying same-sex couples the "equal liberty" guaranteed by the Due Process Clause of the Fifth Amendment) and in Hollingsworth v. Perry, __ U.S. __, 133 S.Ct. 2652 (2013) (finding that the proponents of California's Proposition 8 lacked standing to defend the law on appeal from a lower court's decision)."

Thursday, January 30, 2014


A reminder to all claimants - if you have been denied benefits and will request a hearing, you must still certify weekly to protect your rights for benefits. From the DOL FAQ:

"How do I request a hearing?

You may request a hearing on any determination affecting your rights to benefits by writing a letter to NYS Department of Labor, P.O. Box 15131, Albany, NY 12212-5131. The request must be postmarked or otherwise proven to have been filed within 30 days after the mailing or personal delivery of the determination. Absent proof to the contrary, a determination shall be deemed to have been mailed on the date recited on it and received by a party to whom it is addressed no later than five business days after the date on which it is mailed. Make sure you include your Social Security number on your hearing request and the reasons you disagree with the determination. You will be notified of the date, time and place of the hearing by the Administrative Law Judge section after your request has been processed.

To protect your rights, you must continue to claim weekly benefits for any week in which you are unemployed. Claim your weekly unemployment benefits online with your NY.GOV ID or by calling TEL-SERVICE."

Wednesday, January 29, 2014


This book is a collection of "200 unusual, bizarre, and absurd laws that seem too weird to be true, but are indeed true" was published last month and is available from the ABA. For more information go to:

Tuesday, January 28, 2014


This can be a common scenario: an employee get into a fight. A clear case of misconduct yet a fight with a fellow employee in which a claimant acted in self-defense may not constitute misconduct. (Ref. Dec. M11-7-38R; B-6-38; similarly A.B. 33,250-52).

According to the DOL comments:

"1. It is well established that a claimant who initiates a physical altercation with a co-worker, a supervisor or a customer in violation of an employer rule forbidding fighting, commits misconduct.

2. On occasion a claimant may be drawn into a fight involuntarily. Under such circumstances, the claimant has an obligation to withdraw from the fight at the first opportunity. The Appeal Board has previously held that it is immaterial who strikes the first blow if, once the fight commences, neither employee is willing to abandon it. (A.B. 319,018)

3. Escalating an argument is inappropriate behavior for the workplace. When a verbal dispute threatens to become physical" one means of avoiding physical confrontation is to seek assistance from a supervisor. Failure to do so, thus allowing a fight to ensue, is misconduct. (A.B. 345,987)

4. Not all physical fights allow a person to retreat. A claimant will not be subject to disqualification if (s)he fights solely out of self-defense. (A.B. 320,635) The claimant acts in self defense when (s)he

a. neither initiates nor provokes the physical altercation,

b. has no available retreat once it begins,

c. reasonably believes returning blows is necessary to avoid suffering additional, serious harm, and

d. responds to the attack with no more than the minimal degree of force necessary to disengage from the fight."

Monday, January 27, 2014


This case hit the newspapers in late November when it was decided and I just read the full lengthy is interesting to note the many issues that can come up in any matrimonial: trivial to some but a matter of life and death to others.

The case is SHANNON LOUISE TRAVIS, Plaintiff, v. TRISHA BRIDGET MURRAY, Defendant., 2013 NY Slip Op 23405(Supreme Court, New York County.Decided November 29, 2013) and can be found at this link:

Friday, January 24, 2014


In today's Newsday, an article reports a plea bargain made by some in Long Island for filing false FEMA claims and yesterday, the FBI announces four more arrests:

FBI - Four Arrested in FEMA Fraud Scheme

Thursday, January 23, 2014


New York's court system is now on Twitter with emergency announcements such
as snow storm closings:


Wednesday, January 22, 2014


This email came in from a fellow attorney and just felt quite appropriate with today's snow blizzard:
'Establishing Constructive Notice of Icy Condition in Personal Injury Actions; Two Recent First Department Decisions
Law Offices of David A. Gabay, PC
January 21, 2014
Dear Jon Michael,
Plaintiffs claiming constructive notice of an icy condition must proffer sufficient evidence for the trier of fact to conclude that the condition was visible and apparent, and that it existed for a sufficient length of time for defendant to have discovered it and taken curative action. The First Department has very recently decided two cases addressing whether the evidence of constructive notice is sufficient to survive a summary judgment motion and to survive a motion for a directed verdict.
In Tompa v. 767 Fifth Partners, LLC, decided on January 16, 2014, the First Department affirmed the Supreme Court's decision granting defendant summary judgment on the issue of liability. Plaintiff slipped and fell on a thin sheet of ice on a plaza in front of defendant's building. Plaintiff conceded the lack of actual notice on appeal, but argued defendant either created the condition itself by running a water fountain in the cold weather or that it had constructive notice of the condition because it was a recurring condition.
The First Department determined that the plaintiff's explanation of how the ice sheet formed was too speculative to survive summary judgment. Plaintiff did not produce any expert evidence as to how the water left the fountain, how it got to the place where the ice sheet was, and what conditions would have been required for the water from the fountain to form the ice sheet. The Appellate Division also found that the plaintiff never established that the fountain was in fact running on the day of the incident.
There is a dissent from Justice Fineman, which is interesting to me because it illuminates just how differently judges can perceive and present the exact same facts or information contained in a brief.

In Harrison v. New York City Transit Authority, decided on January 16, 2014, the First Department reversed and remanded a jury verdict for a new trial on liability because of a defective jury instruction on the issue of constructive notice. Plaintiff slipped and fell on a patch of ice on the yellow safety strip on a subway platform in the Bronx. In its opinion, the Court lays out in detail all of the evidence of constructive notice produced at trial by both sides. The Court's conclusion was that there was sufficient evidence of constructive notice to allow that issue to go to the jury.

But the valuable lesson in the opinion is the detailed list of facts, documents, and evidence used by both parties, which to my mind is a useful road map of how to ensure that a constructive notice claim survives a motion for a directed verdict at the close of the defendant's case.
If you or someone you know would like to talk about a civil appeal in either state or federal court, please call or email me.

Thank you.

David Gabay
Law Offices of David A. Gabay, PC

57 West 57th Street, 4th Floor           
New York, NY 10019                         
Phone: 212-321-0871                       

Cell Phone: 516-318-5542"

Tuesday, January 21, 2014


To some, this link is more political than legal; however, the editorial does express some real concerns for homeowners:

NEWDAY - Editorial: Keep a careful eye on Sandy billions

Friday, January 17, 2014


Many years ago, I was consulted on a similar (but less "Rear Window") matter where an individual was, without consent, prominently featured in a crowd scene in a music video. There is much commentary on this case (I just read about it in Readers Digest):

Foster v. Svenson 2013 NY Slip Op 31782

On October 24, 2013, the Appellate Division, First Department (M- 4562/ Index No. 651826/13) issued the following order:

"An appeal having been taken to this Court from the order of the Supreme Court, New York County, entered on or about August 5, 2013,

And plaintiffs-appellant having moved for an order in the nature of a preliminary appellate injunction pursuant to CPLR 5518 directing defendant-respondent from refraining from all display, dissemination and sale of the subject photos and from photographing plaintiffs-appellants and/or their children in their apartment, pending hearing and determination of the appeal taken therefrom,

Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon,

It is ordered that the motion is granted to the extent that defendant-respondent is enjoined from photographing plaintiffs and their children in their apartment and from displaying disseminating and/or selling the subject photographs of plaintiffs and/or their children, pending hearing and
determination of the appeal, on condition the appeal is perfected on or before January 27, 2014 for the March 2014 Term."

Thursday, January 16, 2014


Yesterday I was installed as a member of the Board of Directors of the Levittown Chamber of Commerce. The ceremony was performed by Town Supervisor Kate Murray.

Wednesday, January 15, 2014


Just a reminder that the Application for Superstorm Sandy Assessment Relief must be filed with your assessor by 1/21/2014 and a link to the form is below:

Tuesday, January 14, 2014


Although not yet on the Coiunty Clerk's website, this notice was forwarded to me:

Monday, January 13, 2014

Thursday, January 9, 2014


As noted in the following article:

"Homeowner associations typically have the right to place liens against wayward residents. Either through a court or state-regulated process, they can then foreclose on houses worth hundreds of thousands of dollars even for a few hundred dollars of unpaid debt, much like a municipality can for unpaid property taxes or a bank for a few missed mortgage payments."

See: MSN: $288 in unpaid fees, homeowner association took her home

Wednesday, January 8, 2014


Here's a bit of honesty: in practice since 1977, in partnerships and solo since 1982...I may be a good lawyer but I do not run my practice as a good businessman.

A quick search reveals that The University of Alabama School of Law has a course on this subject:

Today, I will attend an ABA telephone seminar on the same.

And yet for me, I find that many times, being a lawyer and being a businessman cannot mix.

Tuesday, January 7, 2014


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.

Monday, January 6, 2014


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

Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501, (516) 747-4070 x 203.
I will be one of the volunteer lawyers.

Flyer below - English and Spanish