Mark S. Gottlieb, CPA, PC (MSG) is distinguished as one of New York City and the Tri-State's premier business valuation, forensic accounting, and litigation support firms and the following is from one of the firm's email/blogs:
http://www.msgcpa.com/forensicperspectives/types-of-fraud-in-business/
Friday, May 29, 2015
Thursday, May 28, 2015
CONTRACTS IN VIOLATION OF STATUTE STILL ENFORCEABLE?
In Grape Solutions, Inc. v. Majestic Wines, Inc., 2015 NY Slip Op. 30770(U) (NY Sup. Ct. May 11, 2015), the court held that in an action for breach of contract, the contract may be enforced even though the contract may have violated a New York statute:
""Contracts which violate statutory provisions are, as a general rule, unenforceable on public policy grounds where the statute which is violated is enacted to protect the public health and safety." Eber Bros. Wine & Liquor Corp. v Rare Spirits, Inc., 21 Misc3d 201, 208 (Sup Ct, Monroe County 2008); Rosasco Creameries v Cohen, 276 NY 274, 278 (1937). However, `"[i]f the statute does not provide expressly that its violation will deprive the parties of their right to sue on the contract, and the denial of relief is wholly out of proportion to the requirements of public policy . . . the right to recover will not be denied.'" Benjamin v Koeppel, 85 NY2d 549, 553 (1995), quoting Rosasco Creameries, 276 NY at 278. Courts generally enforce the contract "where there are [other] regulatory sanctions and statutory penalties in place to redress violations of the law." Lloyd Capital Corp. v Pat Henchar, Inc., 80 NY2d 124, 127 (1992).
"To constitute a valid defense to an action on a contract, the alleged illegality must be `central to or a dominant part of the plaintiff's whole course of conduct in performance of the contract.'" FCI Grp., Inc. v City of New York, 54 AD3d 171, 177 (1st Dept 2008), quoting McConnell v Commonwealth Pictures Corp., 7 NY2d 465, 471 (1960). The illegality defense is inapplicable where it would result in a substantial forfeiture to one party while allowing the other party, who has already reaped the benefit of the transaction, to avoid the corresponding obligation. Murray Walter, Inc. v Sarkisian Bros., 107 AD2d 173, 178 (3d Dept 1985). "This is particularly true where the two parties are equally culpable with respect to the illegal conduct." Unger v Leviton, 5 Misc3d 925, 929 (Sup Ct, Nassau County 2004). Forfeitures by operation of law are disfavored where the party who is alleged to have breached the contract is attempting to improperly use public policy "`as a sword for personal gain rather than a shield for the public good.'" Charlebois v J.M. Weller Associates, Inc., 72 NY2d 587, 595 (1988). Thus, once the party seeking such enforcement has performed his obligations, "the court should consider the quality of the illegality, the extent of public harm, the relative guilt of the parties, and the cruelty of the forfeiture involved in a denial of remedy." Murray Walter, Inc., 107 AD2d at 177."
This case is also discussed at http://www.schlamstone.com/court-enforces-contract-that-violates-statute/
""Contracts which violate statutory provisions are, as a general rule, unenforceable on public policy grounds where the statute which is violated is enacted to protect the public health and safety." Eber Bros. Wine & Liquor Corp. v Rare Spirits, Inc., 21 Misc3d 201, 208 (Sup Ct, Monroe County 2008); Rosasco Creameries v Cohen, 276 NY 274, 278 (1937). However, `"[i]f the statute does not provide expressly that its violation will deprive the parties of their right to sue on the contract, and the denial of relief is wholly out of proportion to the requirements of public policy . . . the right to recover will not be denied.'" Benjamin v Koeppel, 85 NY2d 549, 553 (1995), quoting Rosasco Creameries, 276 NY at 278. Courts generally enforce the contract "where there are [other] regulatory sanctions and statutory penalties in place to redress violations of the law." Lloyd Capital Corp. v Pat Henchar, Inc., 80 NY2d 124, 127 (1992).
"To constitute a valid defense to an action on a contract, the alleged illegality must be `central to or a dominant part of the plaintiff's whole course of conduct in performance of the contract.'" FCI Grp., Inc. v City of New York, 54 AD3d 171, 177 (1st Dept 2008), quoting McConnell v Commonwealth Pictures Corp., 7 NY2d 465, 471 (1960). The illegality defense is inapplicable where it would result in a substantial forfeiture to one party while allowing the other party, who has already reaped the benefit of the transaction, to avoid the corresponding obligation. Murray Walter, Inc. v Sarkisian Bros., 107 AD2d 173, 178 (3d Dept 1985). "This is particularly true where the two parties are equally culpable with respect to the illegal conduct." Unger v Leviton, 5 Misc3d 925, 929 (Sup Ct, Nassau County 2004). Forfeitures by operation of law are disfavored where the party who is alleged to have breached the contract is attempting to improperly use public policy "`as a sword for personal gain rather than a shield for the public good.'" Charlebois v J.M. Weller Associates, Inc., 72 NY2d 587, 595 (1988). Thus, once the party seeking such enforcement has performed his obligations, "the court should consider the quality of the illegality, the extent of public harm, the relative guilt of the parties, and the cruelty of the forfeiture involved in a denial of remedy." Murray Walter, Inc., 107 AD2d at 177."
This case is also discussed at http://www.schlamstone.com/court-enforces-contract-that-violates-statute/
Wednesday, May 27, 2015
ON FORGED DEEDS AND MORTGAGES
Faison v Lewis 2015 NY Slip Op 04026 Decided on May 12, 2015
This case came to my attention:
Plaintiff filed a complaint against Bank of America and related entities seeking to set aside and cancel, as null and void, the Bank’s mortgage interest in real property conveyed on the authority of an allegedly forged deed. The Court of Appeals held that the statute of limitations did not foreclose Plaintiff’s claim against Defendant because, under prior case law, a forged deed is void ab initio, and as such, any encumbrance upon real property based on a forged deed is null and void:
"For over a century, since this Court's decision in Marden, a forged deed has been treated in New York as void ab initio. As the Court recognized in Riverside, a statute of limitations cannot validate what is void at its inception. Therefore, a void deed is not subject to a statutory time bar. The defendant's arguments are in contravention of Marden and Riverside, and would subject a claim of deed forgery to a six-year statute of limitations under CPLR 213 (8), with the result that a forged deed may be relied upon to convey title and for purposes of encumbering real property. However, under well-established real property principles, because only a holder of legal title may convey an interest in real property, no property interest can be conveyed by a forged deed, and no person may be a bona fide purchaser of real estate on the force of such deed. Moreover, our recording statute does not apply to a forged deed, with the consequence that recording a forged deed cannot transfer title. We, thus, decline the defendant's invitation to unsettle this established doctrine to the detriment of our state's real property recording system.
To adopt defendant's position is to permit a forged deed to accomplish, by the mere passage of time, what has always been forbidden — the encumbrance and transfer of title. Neither law nor public policy nor common sense dictates such outcome. Defendant fails to present a compelling reason to overturn or ignore our prior case law in the area of real property because as we have recognized, "parties in business transactions depend on the certainty of settled rules, `in real property more than any other area of the law, where established precedents are not lightly to be set aside'" (172 Van Duzer Realty Corp. v Globe Alumni Student Assistance Ass'n, Inc., 24 NY3d 528, 535 [2014], citing Holy Properties Ltd., L.P. v Kenneth Cole Productions, Inc., 87 NY2d 130, 134 [1995]). No less so with respect to forged deeds, because landowners, banks, mortgagees, insurers, and a myriad of others depend on the simple rule that a forged deed is a legal nullity that cannot divest ownership or serve to encumber real property."
Judge Lippman dissented.
This case came to my attention:
Plaintiff filed a complaint against Bank of America and related entities seeking to set aside and cancel, as null and void, the Bank’s mortgage interest in real property conveyed on the authority of an allegedly forged deed. The Court of Appeals held that the statute of limitations did not foreclose Plaintiff’s claim against Defendant because, under prior case law, a forged deed is void ab initio, and as such, any encumbrance upon real property based on a forged deed is null and void:
"For over a century, since this Court's decision in Marden, a forged deed has been treated in New York as void ab initio. As the Court recognized in Riverside, a statute of limitations cannot validate what is void at its inception. Therefore, a void deed is not subject to a statutory time bar. The defendant's arguments are in contravention of Marden and Riverside, and would subject a claim of deed forgery to a six-year statute of limitations under CPLR 213 (8), with the result that a forged deed may be relied upon to convey title and for purposes of encumbering real property. However, under well-established real property principles, because only a holder of legal title may convey an interest in real property, no property interest can be conveyed by a forged deed, and no person may be a bona fide purchaser of real estate on the force of such deed. Moreover, our recording statute does not apply to a forged deed, with the consequence that recording a forged deed cannot transfer title. We, thus, decline the defendant's invitation to unsettle this established doctrine to the detriment of our state's real property recording system.
To adopt defendant's position is to permit a forged deed to accomplish, by the mere passage of time, what has always been forbidden — the encumbrance and transfer of title. Neither law nor public policy nor common sense dictates such outcome. Defendant fails to present a compelling reason to overturn or ignore our prior case law in the area of real property because as we have recognized, "parties in business transactions depend on the certainty of settled rules, `in real property more than any other area of the law, where established precedents are not lightly to be set aside'" (172 Van Duzer Realty Corp. v Globe Alumni Student Assistance Ass'n, Inc., 24 NY3d 528, 535 [2014], citing Holy Properties Ltd., L.P. v Kenneth Cole Productions, Inc., 87 NY2d 130, 134 [1995]). No less so with respect to forged deeds, because landowners, banks, mortgagees, insurers, and a myriad of others depend on the simple rule that a forged deed is a legal nullity that cannot divest ownership or serve to encumber real property."
Judge Lippman dissented.
Tuesday, May 26, 2015
REVERSE MORTGAGES NOT FOR EVERYONE
And the reason of course is "affordable housing". That's because under the new rules, you’ll now be subject to what’s known as a “financial assessment” — much like what lenders do when sizing up applicants for regular mortgages. Lenders will now review the income, cash flow and credit reports of prospects. You’ll need to prove that you have the “willingness” and “capacity” to continue paying your home’s property taxes and insurance premiums. If the assessment convinces the reverse mortgage lender that you won’t have the cash to make those home-related payments, you may be rejected. That’s because a reverse mortgage borrower who fails to pay property taxes or homeowner’s insurance could be tossed out of the home and the house could then go into foreclosure.
I believe this new rule is a major "point". And yet, it would appear that those involved in marketing reverse mortgages (Home Equity Conversion Mortgage or HECM) downplay this new rule. For example:
http://www.reversemortgageadviser.com/blog/reverse-mortgages/reverse-mortgages/
I believe this new rule is a major "point". And yet, it would appear that those involved in marketing reverse mortgages (Home Equity Conversion Mortgage or HECM) downplay this new rule. For example:
http://www.reversemortgageadviser.com/blog/reverse-mortgages/reverse-mortgages/
Friday, May 22, 2015
STUDENT MENTOR PROGRAM AT NASSAU COUNTY BAR ASSOCIATION
Yesterday, a luncheon was held for the 20th anniversary of the NCBA Student Mentor Program. This year (and I will continue) was my first year as a student mentor as part of the Clarke Mentoring Program and below is myself and my student mentor:
Thursday, May 21, 2015
Wednesday, May 20, 2015
MENTAL HEALTH AND THE COURTS CLE
A free CLE by PLI 2015 will focus on individuals living with mental illness and their involvement in both the criminal and civil justice systems in New York State. This program is designed for New York State Judges, Court Attorneys, law clerks, prosecutors, defense attorneys, the private bar, state attorneys, and mental health system professionals involved in the New York State justice system.
As part of PLI's commitment to the pro bono activities of the legal community, there is no fee to attend this program.
New York City and Live Webcast – June 26, 2015
http://www.pli.edu/Content/Seminar/Mental_Health_Issues_the_New_York_State_Courts/_/N-4kZ1z128py?ID=225060&tab=0&t=BHF5_8AEM1&utm_source=8AEM1&utm_medium=EMAIL&utm_campaign=BHF5
http://www.pli.edu/Content/Seminar/Mental_Health_Issues_the_New_York_State_Courts/_/N-4kZ1z128py?ID=225060&tab=0&t=BHF5_8AEM1&utm_source=8AEM1&utm_medium=EMAIL&utm_campaign=BHF5
Tuesday, May 19, 2015
FREE SENIOR LEGAL CLINIC TODAY AT NASSAU COUNTY BAR ASSOCIATION
The next Senior Clinic is scheduled for today 9:30-11am at the Nassau County Bar Association, 15th & West Streets, Mineola, NY 11501.
I will be a volunteer lawyer.
I will be a volunteer lawyer.
Monday, May 18, 2015
FORENSIC REPORTS
Matter of Psaros v Mitchell-Ortega 2015 NY Slip Op 03846 Decided on May 6, 2015 Appellate Division, Second Department:
".......
In this case, the Family Court properly weighed all of the factors in awarding physical custody to the father and did not, as the mother alleges, give undue weight to the opinion of the court-appointed forensic psychologist (cf. Matter of Supangkat v Torres, 101 AD3d at 890). The court, after evaluating the testimony, considering the recommendations of a forensic expert, home studies, and the custody investigation, interviewing the child in camera, and considering the position of the attorney for the child, determined that the child's best interests would be served by an order awarding physical custody to the father, with the parties sharing joint legal custody (see Matter of Andrews v Mouzon, 80 AD3d 761, 762). That determination is supported by the record, and we decline to disturb it (see id.; Matter of Guzman v Pizarro, 102 AD3d 964, 965)."
(emphasis supplied)
Attending a seminar today on this issue.
".......
In this case, the Family Court properly weighed all of the factors in awarding physical custody to the father and did not, as the mother alleges, give undue weight to the opinion of the court-appointed forensic psychologist (cf. Matter of Supangkat v Torres, 101 AD3d at 890). The court, after evaluating the testimony, considering the recommendations of a forensic expert, home studies, and the custody investigation, interviewing the child in camera, and considering the position of the attorney for the child, determined that the child's best interests would be served by an order awarding physical custody to the father, with the parties sharing joint legal custody (see Matter of Andrews v Mouzon, 80 AD3d 761, 762). That determination is supported by the record, and we decline to disturb it (see id.; Matter of Guzman v Pizarro, 102 AD3d 964, 965)."
(emphasis supplied)
Attending a seminar today on this issue.
Friday, May 15, 2015
INFORMATION ON RELIGIOUS DIVORCES
Parties to a divorce may have some concerns regarding their religions and the rules, etc. regarding a divorce recognized through their religious beliefs. Here are some resources for some (not all) of various religions:
http://www.foryourmarriage.org/catholic-marriage/church-teachings/annulments/
http://www.chabad.org/library/article_cdo/aid/557976/jewish/The-Divorce-Proceedings.htm
http://www.al-islam.org/a-summary-of-rulings-makarim-shirazi/rules-divorce
http://www.hinduwebsite.com/hinduism/h_divorce.asp
http://www.foryourmarriage.org/catholic-marriage/church-teachings/annulments/
http://www.chabad.org/library/article_cdo/aid/557976/jewish/The-Divorce-Proceedings.htm
http://www.al-islam.org/a-summary-of-rulings-makarim-shirazi/rules-divorce
http://www.hinduwebsite.com/hinduism/h_divorce.asp
Thursday, May 14, 2015
SAME SEX DIVORCE
An article emailed to me:
http://www.bizactions.com/n.cfm/page/e100/key/302177361G2334J5952409N0P35P2082T1/
http://www.bizactions.com/n.cfm/page/e100/key/302177361G2334J5952409N0P35P2082T1/
Wednesday, May 13, 2015
MORTGAGE SCAM HELP
From AGScamHelp.com:
"Thousands of New Yorkers are scammed by companies who take advantage of homeowners in distress. Don't let it happen to you. The New York State Attorney General created AGScamHelp.com to assist homeowners in finding free, qualified mortgage assistance relief services from a network of trusted partners operating across the state under the New York Attorney General Homeowner Protection Program (HOPP)."
See https://agscamhelp.com/
"Thousands of New Yorkers are scammed by companies who take advantage of homeowners in distress. Don't let it happen to you. The New York State Attorney General created AGScamHelp.com to assist homeowners in finding free, qualified mortgage assistance relief services from a network of trusted partners operating across the state under the New York Attorney General Homeowner Protection Program (HOPP)."
See https://agscamhelp.com/
Tuesday, May 12, 2015
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.
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."
Monday, May 11, 2015
CORRECTION - FORECLOSURE/SANDY CLINIC MAY 18
At the Nassau County Bar Association's free clinic for Mortgage Foreclosure, Bankruptcy and Superstorm Sandy issues.
For more information, contact Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501 at (516) 747-4070.
Friday, May 8, 2015
THE "NEW" NEW YORK STATE BAR EXAMINATION
Whether you are pro or con, the New York Court of Appeals has adopted the recommendation of the Advisory Committee on the Uniform Bar Examination (UBE) that New York adopt the UBE effective July 2016.
Read about it here at http://www.nybarexam.org/
Read about it here at http://www.nybarexam.org/
Thursday, May 7, 2015
ON WORKPLACE DISCRIMINATION
"The New York State Assembly today (May 5) passed a pair of bills to protect New York women from workplace discrimination, legislation initially introduced as part of the Women’s Equality Act and championed by the New York Civil Liberties Union. The vote clears the way for Gov. Andrew Cuomo to sign the legislation into law."
For the full story: http://www.nyclu.org/news/assembly-vote-protects-womens-ability-work-free-discrimination
For the full story: http://www.nyclu.org/news/assembly-vote-protects-womens-ability-work-free-discrimination
Wednesday, May 6, 2015
ON NEW YORK SEAT BELT LAW
New York State law does not require in every case that rear seat passengers wear a seat belt.
NYS Vehicle & Traffic Law §1229-c requires all front seat passengers to wear seat belts. Children under the age of 16 must wear seat belts when they are in the front seat or the back seat. Children under the age of four must ride in safety seats.
The rules are discussed at the following sites:
NYS Vehicle & Traffic Law §1229-c requires all front seat passengers to wear seat belts. Children under the age of 16 must wear seat belts when they are in the front seat or the back seat. Children under the age of four must ride in safety seats.
The rules are discussed at the following sites:
Tuesday, May 5, 2015
SOME TECHNICAL DIFFICULTIES....
This blog should be posting to our Facebook pages and twitter accounts but unfortunately, RSS Graffiti, the service we have been using, has ceased operating.
We are working with another service and will resume shortly.
We are working with another service and will resume shortly.
Monday, May 4, 2015
MEDICAL BILL SURPRISES IN NEW YORK
Last month, New York’s Emergency Medical Services and Surprise Bills law went into effect, designed to protect
consumers from surprise bills.
For a discussion, see http://www.mintz.com/newsletter/2015/Advisories/4872-0415-NAT-HL/
For a discussion, see http://www.mintz.com/newsletter/2015/Advisories/4872-0415-NAT-HL/
Friday, May 1, 2015
SO MANY TO THANK AT NASSAU COUNTY BAS ASSOCIATION DINNER LAST NIGHT
Last night, I was quite moved and slightly scared... so if I could repeat the speech, I would first thank Martha for the wonderful introduction I received, the warm reception from all attending, the NCBA for the beautiful plague I received, the county for the wonderful citation, and everyone for allowing my children to attend the dinner.
I would then thank again the Bar Association who have sponsored so many pro bono events like Senior Clinic, Foreclosure/Sandy clinic, Student Mentoring as well as allowing me to serve on the Lawyers Assistance Committee, and that is just to name a few. I would like to thank Nassau/Suffolk Law Services for the many opportunities to assist families facing eviction in landlord/tenant court as well as the several low income matrimonial disputes that I handled and certain guardianship consultations. And of course The Safe Center where I learned in their training program and the several cases I was assigned a new perspective in matrimonial disputes.
I would have also mentioned Hofstra School of Law which has a bi-annual veterans clinic which has been a further honor. And also the courts because to be a Part 137 Arbitrator for the Supreme Court has been most instructive.
I apologize for not mentioning all the names of the people who are involved in these programs - there are so many. But I thank you all.
Again, it is my children who inspired be to perform Pro Bono work - it makes be a better person, which makes me a better father, which makes me a better lawyer and (since some of you know of my other career as Jon Avner, it also makes me a better actor.)
Again, my humble thanks.
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