HALLOWEEN AND THE LAW

From The Harvard Law School Library Blog:

http://etseq.law.harvard.edu/2012/10/halloween-and-the-law-a-round-up-of-links/

FREE NEW YORK LITIGATION GUIDE

http://www.nylitguide.com/about-the-guide/

Just passing this on.

STUDENT MENTORING - NASSAU COUNTY

This is my first day of volunteering as a student mentor. This program is offered through the Nassau County Bar Association:

"Student Mentors

Provide valuable adult guidance and serve as a role model for at-risk middle school students in one-on-one sessions at a local middle school. The commitment is twice a month for less than an hour, but the rewards you receive are immeasurable. Mentors are always in demand.

→Contact Demi Tsiopelas at NCBA 516-747-4070 or dtsiopelas@nassaubar.org"

CHILD CUSTODY FORENSIC REPORTS

This has been reported in the NYLJ and others - JFD v. JD from Nassau Supreme Court Judge Goodstein:

"Accordingly, it is this Court’s belief that the forensic evaluator’s raw data, recordings, notes, tests, test results, and all material relied upon and created during the evaluation process are discoverable by both parties and by the Attorney for the Children. Likewise, this Court, while coming to this decision, shall, from this day forward, allow the parties themselves to read the report, as well as the raw material. However, the parties shall not be provided a copy of the report or the raw materials, but will be allowed to review the report and raw materials in their attorney’s office with an attorney present. They will be permitted to take notes, but will be precluded from taking photos and/or copies of the report and/or the raw data. This Court’s orders appointing forensic evaluators for custody purposes will address the evaluator’s responsibility to maintain and provide copies of all the raw data materials to the Court, which in turn, will provide same to counsel as set forth above with the signing of a Stipulation for Release and Use of Forensic Reports and Order as outlined above. Only in doing this can a party truly assist their counsel in preparing for an effective crossexamination."

MORTGAGE FORECLOSURE AND GOOD FAITH UNDER CPLR 3408 (f)

As I attend a mandatory settlement conference this morning, I am reminded that the Appellate Division, Second Department recently ruled that a mortgagee's conduct in evaluating a borrower's loan modification application should be judged using the "totality of the circumstances" standard to determine whether the mortgagee negotiated in good faith during mandatory foreclosure settlement conferences. Applying that standard in US Bank N.A. v. Sarmiento, 2014 NY Slip Op 05533 (2d Dep't July 30, 2014), the Appellate Division affirmed a lower court's holding that a foreclosing plaintiff failed to negotiate in good faith, stating in part:

"Therefore, we hold that the issue of whether a party failed to negotiate in "good faith" within the meaning of CPLR 3408(f) should be determined by considering whether the totality of the circumstances demonstrates that the party's conduct did not constitute a meaningful effort at reaching a resolution. We reject the plaintiff's contention that, in order to establish a party's lack of good faith pursuant to CPLR 3408(f), there must be a showing of gross disregard of, or conscious or knowing indifference to, another's rights. Such a determination would permit a party to obfuscate, delay, and prevent CPLR 3408 settlement negotiations by acting negligently, but just short of deliberately, e.g., by carelessly providing misinformation and contradictory responses to inquiries, and by losing documentation. Our determination is consistent with the purpose of the statute, which provides that parties must negotiate in "good faith" in an effort to resolve the action, and that such resolution could include, "if possible," a loan modification (CPLR 3408[f]; see Wells Fargo Bank, N.A. v Meyers, 108 AD3d at 11, 18, 20, 23; Wells Fargo Bank, N.A. v Van Dyke, 101 AD3d 638 [the defendants did not demonstrate that the plaintiff failed to act in good faith because nothing in CPLR 3408 requires a plaintiff to make the exact settlement offer desired by the defendants]; HSBC Bank USA v McKenna, 37 Misc 3d 885 [Sup Ct, Kings County] [the plaintiff failed to act in good faith based upon, inter alia, a referee's finding that the plaintiff rejected an all-cash short sale offer]).

Where a plaintiff fails to expeditiously review submitted financial information, sends inconsistent and contradictory communications, and denies requests for a loan modification without adequate grounds, or, conversely, where a defendant fails to provide requested financial information or provides incomplete or misleading financial information, such conduct could constitute the failure to negotiate in good faith to reach a mutually agreeable resolution."

UNDOCUMENTED CHILD AND SCHOOL

I had a consultation on this yesterday at the pro bono fair:

1. This is the problem:

http://www.nytimes.com/2014/10/22/nyregion/rules-and-paperwork-keep-long-islands-immigrant-children-from-classroom.html?_r=0

2: This is the current action the state education department and AG office is taking:

http://www.longislandpress.com/2014/10/23/ag-to-review-districts-undocumented-student-enrollment-policies/

But what should a parent do at the moment if the school does not accept the child due to lack of residency documentation? First, it is suggested for the parent to contact his/her church to see if they can range some temporary education. Next, documents can be created to establish residency, viz., affidavit of residency, to satisfy the school until this issue is resolved. If the school does not accept, appeal to the commissioner:'

http://www.counsel.nysed.gov/appeals

NASSAU COUNTY PRO BONO FAIR TODAY

The Nassau County Bar Association’s Pro Bono Fair is today Thursday, October 23^rd, 2014 from 3-7pm.  I have agreed to be one of many volunteers.

For information, etc., contact:

Nassau County Bar Association

15^th and West Streets
Mineola, NY 11501
(516) 747-4070 x 203

CASH BUSINESSES AND DIVORCE

I link to this recent blog from Mark S. Gottlieb CPA, P.C.:

http://www.msgcpa.com/forensicperspectives/cash-businesses-and-divorce/

ORDERS OF PROTECTION - CLE AT NASSAU COUNTY BAR ASSOCIATION

 A CLE presentation,  Orders of Protection,  begins at 5:30 PM at the Nassau County Bar Association.

NASSAU COUNTY PRO BONO FAIR OCTOBER 23

The Nassau County Bar Association’s Pro Bono Fair is going ahead as scheduled Thursday, October 23^rd, 2014 from 3-7pm.  I have agreed to be one of many volunteers.

For information, etc., contact:

Nassau County Bar Association

15^th and West Streets
Mineola, NY 11501
(516) 747-4070 x 203

BEING A PARENT AND AN ATTORNEY

The headline the other day read "Attorney denied hearing delay appears with baby" and here is a link to the full story:

http://news.yahoo.com/attorney-denied-baby-time-brings-infant-court-204048601.html?soc_src=mediacontentsharebuttons

A couple of times I had to bring my then elementary age school kids to court. One I remember was a conference at Supreme Court and another I remember for an administrative hearing.

VOLUNTEER OPPORTUNITY

The Nassau County Bar Association sponsors various pro bono and volunteer opportunities, one of which I have volunteered for and starting the end of this month:

"Student Mentors

 

Provide valuable adult guidance and serve as a role model for at-risk middle school students in one-on-one sessions at a local middle school. The commitment is twice a month for less than an hour, but the rewards you receive are immeasurable. Mentors are always in demand."

MORE RE: SUPERSTORM SANDY

As I read in today's Newsday about many issues Sandy victims are still having, particularly with New York Rising, I pass along these links to a group I discovered during the last Sandy clinic at the Nassau County Bar Association - they may be able to assist homeowners to link up with architects who will prepare plans for reconstruction:

http://architectureforhumanity.org/content/hurricane-sandy-reconstruction

http://openarchitecturenetwork.org/projects/hurricane_sandy

FOR SENIORS - FREE LEGAL CLINIC TODAY

Senior Citizen Consultation Clinics

Each month, attorneys give free 30-minute private consultations to Nassau County residents 65 years of age and over. The consultation does not provide free legal service. The Clinics are held from 9:30 a.m. to 10:30 a.m. at the Nassau County Bar Association, 15th and West Streets, Mineola, NY.

There is a clinic today starting at 9:30 (I will attempt to be there after a court appearance). The next schedule clinic is on the NCBA Calendar.

Advance telephone registration is required. Please call NCBA: (516) 747-4070. Attorneys fluent in other languages are available upon request when registering.

FREE CONSULTATIONS TOMORROW

I will be exhibiting at the following Levittown Fall  Community Festival.

WHAT IS DOCUMENTARY EVIDENCE UNDER CPLR 3211(a)(1)

Attias v Costiera, 2014 NY Slip Op 06163, Decided on September 17, 2014, Appellate Division, Second Department:

""On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff's allegations are accepted as true and accorded the benefit of every possible favorable inference" (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996; see Leon v Martinez, 84 NY2d 83, 87). A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the ground that a defense is founded on documentary evidence "may be [*2]appropriately granted only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Rodolico v Rubin & Licatesi, P.C., 114 AD3d 923, 924-925). "The evidence submitted in support of such motion must be documentary or the motion must be denied" (Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714 [internal quotation marks omitted]; see Fontanetta v John Doe 1, 73 AD3d 78, 84; see also David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C 3211:10, at 21-23).

In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as "documentary evidence," it must be "unambiguous, authentic, and undeniable" (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [internal quotation marks omitted]; see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case" (Fontanetta v John Doe 1, 73 AD3d at 84-85 [internal quotation marks omitted]; see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714). At the same time, "[n]either affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)" (Granada Condominium III Assn. v Palomino, 78 AD3d at 997 [internal quotation marks omitted]; see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714; Suchmacher v Manana Grocery, 73 AD3d 1017, 1017).

Here, the affidavits submitted by the defendants, their attorney's affirmation, and the correspondence that was submitted in support of the defendants' motion did not constitute documentary evidence within the meaning of CPLR 3211(a)(1), and should not have been relied upon by the Supreme Court in directing the dismissal of the complaint pursuant to CPLR 3211(a)(1) (see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714; Granada Condominium III Assn. v Palomino, 78 AD3d at 997; Fontanetta v John Doe 1, 73 AD3d at 84-85). The only documentary evidence submitted in support of the defendants' motion was the contract of sale and the rider to the contract of sale. However, these submissions did not "utterly refute" the plaintiff's allegations or "conclusively establish[ ] a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; see Rodolico v Rubin & Licatesi, P.C., 114 AD3d at 924-925; JP Morgan Chase Bank, N.A. v Balliraj, 113 AD3d 821, 821; Uzzle v Nunzie Ct. Homeowners Assn., Inc., 70 AD3d 928, 930). Accordingly, the Supreme Court erred in granting that branch of the defendants' motion which was to pursuant to CPLR 3211(a)(1) to dismiss the complaint."

Thanks to email from David Gabay, Law Offices of David A. Gabay, PC

ON "WELFARE MORTGAGES"

According to an email from Empire Justice Center:

"The 2014-15 New York State budget contains Article VII legislation that amends SSL 106 to clearly state that HEAP, child care and SNAP cannot be charged against welfare mortgages.  Although this was true before the law was amended, the rules appeared only in regulation and sub-regulatory materials resulting in errors in the calculation of these mortgages.  The errors have been particularly egregious since there is no right to a fair hearing to challenge erroneous liens. 18 NYCRR 358-3.1(f)(5).  Effective May 30, 2014, the bill requires a signed acknowledgement from all applicants who are asked to sign a welfare mortgage that  

• HEAP, child care and food stamps cannot be charged against the mortgage;
• Child support retained by the district, as well as any other payment (lottery winnings, etc.), must be applied to reduce the mortgage;
• That a person can refuse to sign a mortgage and still get a grant for their children."

See:http://www.empirejustice.org/policy-advocacy/legislative-updates/new-law-makes-the-rules.html

VOLUNTEER LAWYERS PROJECT

Today I will be a volunteer lawyer with Nassau Suffolk Law Services at Landlord/Tenant court in Hempstead:

 

"Volunteer Lawyers Project

What is the Volunteer Lawyers

Project?

Attorneys are encouraged to volunteer to provide free legal assistance to the poor in Nassau County through the Volunteer Lawyers Project. NCBA 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.

 

What programs are part of the VLP?
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.

 

     • The Landlord/Tenant Project's Attorney of the Day Program assists thousands of men, women and children in court to prevent homelessness.

 

     • The Bankruptcy Clinics assist families either with advice or the filing for a Chapter 7 bankruptcy, when appropriate.

 

     • The Matrimonial Project assists hundreds of individuals in obtaining divorces, child support and custody.

 

How does it work?

An attorney based at VLP’s offices in Hempstead conducts client intake interviews and refers clients to appropriate volunteer attorneys. The VLP attorney also recruits and trains volunteer attorneys to handle cases."

HOME INSURANCE

From the Suffolk County Bar Association:

WHAT YOU NEED TO KNOW ABOUT HOME INSURANCE

A Free Public Service Program from the Suffolk Academy of Law

 

On Monday, October 6, the Suffolk Academy of Law, in conjunction with the SCBA Real Property Committee, will present a FREE public service seminar on HOME INSURANCE. The program runs from 6:30 to 8:00 p.m. and will succinctly cover such topics as determining what kind of and how much insurance is needed, new legislation affecting flood insurance, procedures to follow after a loss, deductions, and calculating liability. PLEASE TELL YOUR CLIENTS, FRIENDS AND FAMILY MEMBERS about the program and invite them to attend.

Of course, attorneys - also home owners and renters - are invited to attend this free program as well.  And if you would like to earn 1.5 MCLE credits for the presentation, you may do so through the payment of a small tuition free ($35 for SCBA members; $50 for non-members).   

Access the publicity flier by clicking here: http://www.scba.org/post/homeinsurance.pdf 

HIRING INDIVIDUALS WITH CRIMINAL BACKGROUNDS

A.G. Schneiderman Announces Agreement With Party City To End Discrimination In Hiring Based On Criminal Records

NEW YORK UNEMPLOYMENT INSURANCE BENEFITS INCREASE

As reported in Newsday, starting Monday the maximum amount increases from $405 to $420 a week and the minimum increases from $64 to0 $100 a week.

See http://www.newsday.com/business/nys-unemployment-benefits-rising-to-420-a-week-1.9455647

NEW YORK CHILD CUSTODY - SEEKING A HEARING ON MODIFYING A VISITATION ARRANGEMENT

Magee v Magee 2014 NY Slip Op 05163 Decided on July 9, 2014 Appellate Division, Second Department (emphasis supplied)

""Modification of an existing visitation arrangement is permissible only upon the showing of a material change of circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child" (Vaccaro v Vaccaro, 83 AD3d 691). "[O]ne who seeks a change in visitation is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing" (Matter of Collazo v Collazo, 78 AD3d 1177). Contrary to the father's contention, the Supreme Court properly denied, without a hearing, his motion to modify the provisions of the parties' stipulation of settlement regarding custody and visitation (see Matter of Sullivan v Moore, 95 AD3d 1223; Matter of Francois v Grimm, 84 AD3d 1082; Matter of Figueroa v Lewis, 81 AD3d 823; Matter of Mazurkiewicz v Pindor-Mazurkiewicz, 80 AD3d 615, 616). The father's assertions were unsubstantiated and conclusory or did not allege a material change in circumstances. Accordingly, he failed to make the requisite showing (see Matter of Palmiotti v Piscitelli, 100 AD3d 637, 638; Matter of Aronowich-Culhane v Forunier, 94 AD3d 1114, 1115)."