Thursday, December 31, 2015


Wednesday, December 30, 2015


2015 gavel

These are the 10 most important legal stories of 2015 according to ABA Journal:

Tuesday, December 29, 2015


Brady v Bounsing-Brady 2015 NY Slip Op 06999 Decided on September 30, 2015 Appellate Division, Second Department

"A court need not rely upon a party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated future potential earnings (see Brown v Brown, 239 AD2d 535). The court may impute income to a party based on his or her employment history, future earning capacity, educational background, or money received from friends and relatives (see Wesche v Wesche, 77 AD3d 921, 923). Here, the Supreme Court erred in imputing yearly income of $9,216 to the defendant, in addition to the $20,784 yearly income the defendant receives as Social Security disability benefits and retirement disability benefits. The defendant demonstrated through, inter alia, the testimony of her expert witness, that she has been permanently disabled since January 1998 as a result of a workplace injury and, thus, unable to work (cf. Matter of Bukovinsky v Bukovinsky, 299 AD2d 786, 787). Accordingly, the determination of the defendant's child support obligation, which was based in part on the defendant's imputed income, [*2]is incorrect, and the matter must be remitted to the Supreme Court, Orange County, for, inter alia, a new determination of the defendant's child support obligation. As part of that determination, the Supreme Court must consider whether the child support obligation is "unjust or inappropriate" (Domestic Relations Law § 240[1-b][f]), such that a deviation from the Child Support Standards Act figure is required (see Mollon v Mollon, 282 AD2d 659, 660)."

Wednesday, December 23, 2015


Despite persistent Internet rumors (even today) about a Maine law that requires homeowners to remove holiday decorations by Jan. 14 or face a fine, it's not true. From the Portland Press Herald in 2013:

Tuesday, December 22, 2015


Following up on yesterday's post, today, Newsday reported that "Faced with complaints from title companies and local real estate agents, Nassau lawmakers declared an emergency Monday to delay until January the implementation of higher real estate fees that add hundreds of dollars to buying and selling property in the county."

Monday, December 21, 2015


Also keep in mind that recording costs have increased dramatically. From Title Guarantee:

"Please be advised that the Nassau County Clerk's office has enacted a law which increases the Real-Property tax service agency fee to a total of $225.00 for each lot verified, for each document to be recorded. In addition, they have increased the block fee from $150.00 to $300.00. This is a substantial increase over the current fees and has added an additional fee for recordings that involve more than one lot. This means that the recording fee for a standard deed would be approximately $845.00.  A standard 20 page mortgage would have a recording fee of $725.00.  Each additional tax lot would require an additional $200.00 per document.
The increase takes effect for any document presented for recording after December 7th, 2015.  Please guide yourself accordingly as you will start to see these additional charges on title invoices starting immediately.  


Nassau County has followed suit with Suffolk County in increasing recording fees.   We may see additional fees starting in other New York counties.  We will keep you apprised on all changes.

Friday, December 18, 2015


Some home buyers will run away from a home with an underground oil tank. As noted by one company: "It can cost around $1,500 to remove an oil tank, but a clean-up can cost anywhere from $3,000 to $8,000. That’s a lot of money that new home owners don’t want to take on. Environmental damage can bump this number up to six figures – an extremely high risk for new homeowners."

For homeowners in Nassau County, the county has on their website some helpful information:

Thursday, December 17, 2015


For several years now, I have been a member of the Lawyers Assistance Committee of the Nassau County Bar Association...and so I pass along this from a recent email from the Betty Ford Foundation - my emphasis supplied:

"Q: Is it true that the holidays can exacerbate substance abuse?

A: Definitely. While it's a time of great joy and happiness for many, the holidays can also bring extra stress or feelings of loss or depression. Sometimes family gatherings can aggravate difficult or unhealthy relationships and cause additional anxiety. Intense end-of-the-year workplace demands combined with must-show holiday parties can place additional pressure to drink or use. The season also brings many opportunities to celebrate in excess, which can create tremendous challenges for those with addiction. On top of all this, families who may be struggling with a loved one's addiction feel pressure to present the image that all is well."

Wednesday, December 16, 2015


From the NYS Academy of Trial Lawyers:

"Expert affidavit to be considered on summary judgment motions - whether or not the expert has been previously disclosed.

Dear Academy Members and Friends:

The Governor has signed S5188/A6265 into law.  This legislation overrules a line of decisions, including Construction by Singletree, Inc. v. Lowe, 55 A.D.3d 861 (2d Dep't 2008), Garcia v. New York, 98 A.D.3d 857 (1st Dep't 2012), Rivers v. Birnbaum, 102 A.D.3d 26 (2d Dep't 2012) and DeSimone v. New York, 119 A.D.3d 422 (1st Dep't 2014) which have permitted trial judges, in an exercise of discretion, to decline to consider expert affidavits submitted in support of or in opposition to, summary judgment motions where the proponent of the affidavit did not serve a CPLR 3101(d)(1)(i) exchange prior to the filing of the note of issue.

This legislation amends CPLR 3212(b) to expressly allow such an expert affidavit whether or not an expert disclosure was made prior to the submission of the affidavit.

This bill applies to all motions for summary judgment made on or after December 11, 2015."

Tuesday, December 15, 2015


Dougherty v. Dougherty, 2015 NY Slip Op 6705 - (September 2, 2015 App. Div. 2nd Dept. ):

""Unlike the obligation to provide support for a child's basic needs, support for a child's college education is not mandatory'" (Matter of Lynn v Kroenung, 97 AD3d 822, 823, quoting Cimons v Cimons, 53 AD3d 125, 127). "Instead, absent a voluntary agreement, whether a parent is obligated to contribute to a child's college education is dependent upon the exercise of the court's discretion in accordance with Domestic Relations Law § 240(1-b)(c)(7)' [Cimons v Cimons, 53 AD3d at 127], and an award will be made only as justice requires'" (Matter of Lynn v Kroenung, 97 AD3d at 823, quoting Domestic Relations Law § 240[1-b][c][7] [some internal quotation marks omitted]; see Matter of Levison v Trinkle, 70 AD3d 827, 830; Cimons v Cimons, 53 AD3d at 129). "[A] court must give due regard to the circumstances of the case and the respective parties, as well as both the best interests of the child and the requirements of justice" (Powers v Wilson, 56 AD3d 642, 643)."

But in this case, the court held: "Under the circumstances of this case, the Supreme Court providently exercised its discretion in apportioning 72% of the subject children's educational expenses to the defendant, and 28% to the plaintiff."

Monday, December 14, 2015


MATTER OF KEYES v. Watson, 2015 NY Slip Op 8415 - NY: Appellate Div., 2nd Dept. November 18, 2015:

"In adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child" (Matter of Jules v Corriette, 76 AD3d 1016, 1017; see Eschbach v Eschbach, 56 NY2d 167, 171; Matter of McQueen v Legette, 125 AD3d 863; Matter of McKoy v Vatter, 106 AD3d 1090; Matter of Roldan v Nieves, 76 AD3d 634). "[O]ne of the primary responsibilities of a custodial parent is to assure meaningful contact between the children and the noncustodial parent, and the willingness of a parent to assure such meaningful contact between the children and the other parent is a factor to be considered in making a custody determination" (Matter of Vasquez v Ortiz, 77 AD3d 962; see Matter of Dezil v Garlick, 114 AD3d 773, 773-774; Matter of Khan-Soleil v Rashad, 111 AD3d 728, 729; Matter of Honeywell v Honeywell, 39 AD3d 857, 858). "As custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, the Family Court's determination should not be disturbed unless it lacks a sound and substantial basis in the record" (Matter of Tori v Tori, 103 AD3d 654, 655; see Eschbach v Eschbach, 56 NY2d at 173; Matter of Stones v Vandenberge, 127 AD3d 1213, 1215; Matter of McFarlane v Newton, 127 AD3d 1199, 1200; Matter of McKoy v Vatter, 106 AD3d at 1090).

Here, the primary issue with respect to the children's best interests was which parent was better able to avoid conflict between the parties and foster the children's relationship with the noncustodial parent. Contrary to the mother's contention, this question did not present "sharp factual disputes'" upon which the report of a court-appointed forensic examiner could have shed light (Matter of Brown v Simon, 123 AD3d 1120, 1122, quoting Matter of Shanika M. v Stephanie G., 108 AD3d 717, 718). Accordingly, the Family Court providently exercised its discretion in denying the mother's request for the appointment of a forensic evaluator to produce an updated report in this case (see Matter of Linn v Wilson, 68 AD3d 1767, 1767-1768; Matter of Armstrong v Heilker, 47 AD3d 1104, 1105; Matter of Sassower-Berlin v Berlin, 31 AD3d 771, 772; Matter of Salamone-Finchum v McDevitt, 28 AD3d 670, 671). Furthermore, the evidence presented at the hearing supported the court's conclusion that the father was willing and able to "assure meaningful contact between the children and the noncustodial parent" and that the mother was not willing to do so (Matter of Vasquez v Ortiz, 77 AD3d at 962; see Matter of Dezil v Garlick, 114 AD3d at 773-774; Matter of Khan-Soleil v Rashad, 111 AD3d at 729; Matter of Honeywell v Honeywell, 39 AD3d at 858). Accordingly, the court's determination that the children's interests would be best served by awarding the father sole custody, while maintaining liberal parenting time for the mother, had a sound and substantial basis in the record."

Friday, December 11, 2015


SCHACKER REAL ESTATE CORP. v. 553 BURNSIDE AVE., LLC, 2015 NY Slip Op 7963 - NY: Appellate Div., 2nd Dept. 2015:

"In support of its motion to vacate a judgment entered against it upon its failure to appear or serve an answer to the complaint, the defendant claimed to have a reasonable excuse for its default and a potentially meritorious defense (see CPLR 5015[a][1]). However, under the circumstances of this case, the defendant's failure to keep a current address on file with the New York State Secretary of State was not excusable (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 143; Gershman v Midtown Moving & Stor., Inc., 123 AD3d 974, 975; Sussman v Jo-Sta Realty Corp., 99 AD3d 787, 788; Bontempts v Aude Constr. Corp., 98 AD3d 1071, 1072).

Nonetheless, although the defendant did not cite CPLR 317 in support of its motion, this Court may, under the circumstances presented here, consider CPLR 317 as a basis for vacating the default (see CPLR 2001; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 142-143; Brickhouse Masonry, LLC v Windward Bldrs., Inc., 101 AD3d 919, 920; Levine v Forgotson's Cent. Auto & Elec., Inc., 41 AD3d 552, 553). CPLR 317 permits a defendant who has been "served with a summons other than by personal delivery" to defend the action upon a finding by the court that the defendant "did not personally receive notice of the summons in time to defend and has a meritorious defense" (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 141; Taieb v Hilton Hotels Corp., 60 NY2d 725, 728; Gershman v Midtown Moving & Stor., Inc., 123 AD3d at 975; Fleisher v Kaba, 78 AD3d 1118, 1119). Here, there was no evidence that the defendant or its agent received actual notice of the summons, which was delivered to the Secretary of State, in time to defend this action (see Gershman v Midtown Moving & Stor., Inc., 123 AD3d at 975; Fleisher v Kaba, 78 AD3d at 1119). Proof that additional copies of the summons and complaint [*2]were delivered to an employee of the tenant occupying premises owned by the defendant was insufficient to establish that the defendant received notice of the summons and complaint (see generally Ainbinder v R.C.R. Contr., 204 AD2d 582, 583). Furthermore, there is no basis in the record to conclude that the defendant deliberately attempted to avoid service, especially since the plaintiff had knowledge of the defendant's actual business address (see Gershman v Midtown Moving & Stor., Inc., 123 AD3d at 975; Girardo v 99-27 Realty, LLC, 62 AD3d 659; Grosso v MTO Assoc. Ltd. Partnership., 12 AD3d 402, 403; cf. Cruz v Keter Residence, LLC, 115 AD3d 700, 701). Moreover, the defendant met its burden of demonstrating the existence of a potentially meritorious defense (see Marie Zere Assoc. v Vanguard Ventures, 139 AD2d 569, 570; Mulvihill v DiPrima, 47 AD2d 560).

Accordingly, the Supreme Court should have granted the defendant's motion to vacate the judgment entered against it upon its default.

MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur."

Thursday, December 10, 2015


The YES Community Center is offering a free NARCAN Training for families and concerned community members who are impacted by opiate addiction. The training will take place at their Levittown location at 152 Center Street, Levittown, NY. NARCAN kits will be distributed to trained participants. Please contact to register, 516-799-3203.

Wednesday, December 9, 2015


A common complaint in NYC now is getting to be a growing complaint of Long Island residents.

The NYC Department of Health and Mental Hygiene has a guide:

Monday, December 7, 2015


Before you read this case, see

MATTER OF CHILD A, 2014 NY Slip Op 24394 - NY: Surrogate's Court, Nassau 2014

The following constitutes the court's decision and order concerning the issue of Re-Homing in the Nassau County Surrogate's Court, reviewed during the A and C adoption related proceeding. Parent Father (hereinafter "PF") and Parent Mother (hereinafter "PM") reside in Nassau County, New York. They adopted the children, A and C, in Russia in 2008. Child A was born in 2000 and child C was born in 2002. They seek a decree denying recognition of the Russian adoption order or, alternatively, vacating the Russian adoption order.

Before exploring the Re-Homing issue certain observations in regard to this case must be made. Judicial Notice is the rule of law of evidence that allows the fact to be introduced into evidence if the truth of that fact is so notorious or well known, or so authoritatively attested, that it cannot be reasonably doubted. This decision will also take Judicial notice of the many undisputed facts of the Russian/American adoption trade as well as the practice of Re-Homing of children.

1. In the past 30 years, 60,000 Russian children have been adopted by Americans;

2. The estimated payments to private and public Russian sources have been estimated to be 1/3 of a billion dollars;

3. Russia is not a party to the Hague Convention on Protection of Children and Co-Operation in Respect of Inter-Country Adoption. This convention guarantees certain rights to adoptive children and the process of adoption;

4. An estimated 20 percent of Russian children adopted in the United States suffer from developmental disabilities from severe to mild;

5. Since 2001, over 18 adopted Russian children have died through violence of their adoptive parents or supervisors. Seventy-five percent of these children were in the United States for less than 6 months and under the age of two years;

6. In 2013, Russian President Putin publicly stopped the Russian-American adoption trade yet Russian children can still be obtained in the worldwide adoption market through other Eastern European adoption agencies;

7. Adopted Russian children have been returned to Russia without American due process; and

8. Adopted Russian children throughout the United States are currently being exchanged on the Internet through a process called Re-Homing without the benefit of any court or governmental supervision.


If the application for recision of their adoption status by P1 and P2 is denied they may wish to pursue the process called Re-Homing. A successful resolution in this procedure by P1 and P2 will terminate their parental responsibilities concerning A and C. This potential action will now be addressed by this Court.

Re-Homing is the placement or replacement of a child with new care givers who are not related to that child. It is a procedure outside of official government and judicial review in the unofficial and involuntary transfer of children (see, Donovan M. Stelzner, Intercountry Adoption; Toward a Regime That Recognizes the "Best Interest" of Adoptive Parents, 35 Case W.Res.J.Int,L L. 113, 132 [2003]). Last year in the United States it has been estimated that between 200 and 300 foreign and American born children were traded in this internet fashion. Most often the transfers of these children found them to be between the ages of 6 to 14 with some as young as 10 months. The most often cited reason for the rejection by their adoptive/natural parents is a failure to bond (Megan Twohey, The Child Exchange; Inside Americas Underground Market for Adoptive Children, Reuters Investigates [September 9, 2003]).

The procedure of Re-Homing is technically not an adoption by the receiving person(s). The transfer of custody of the child to a stranger is often done pursuant to a Power of Attorney. Most States and Courts have been reluctant to make any investigation into or take any legislative action condemning Re-Homing. Through the process of Re-Homing children are:

1. Not placed for adoption with any government notice;

2. Not placed through any government approved forster care agency; and

3. Not placed through an adoption agency. Placement of the to-be Re-Homed child is made through advertising on the Internet or other public media process.

1) There is no prior home study of the accepting person;

2) There is no court approval of the process;

3) There is no court supervision of the process;

4) It is often accomplished with the person placing the child knowing little, if anything, of the person or persons with whom the child is placed.

In 2014 children are still being sent off to receiving person(s) with their original adoption papers or birth certificate and a Power of Attorney from the sending parents to the receiving person(s). Such Re-Homing or any other descriptive phrase to classify this trade is unmistakably "human trafficking in children," even absent any financial element being present. This decision is an attempt to publicize the Re-Homing trade in children.


The Court's original intention was to enact a local rule to forbid the kind of Re-Homing I have been discussing. However, I am now of the opinion that a local rule will likely be both improper and inadequate.

The Court is aware of the provisions of SSL §374 which appear to authorize this very practice, though that was not and could not have been the intent of the Legislature in enacting this statute. The Court urges the Legislature to amend SSL §374 to permit the temporary placement of a child where the parent is currently unable to provide sufficient care, but to prohibit the unsavory and unsupervised practice of adoptive parents ridding themselves of the responsibility of caring for their children by placing them with people whose motives and qualifications are, at best, entirely unknown.


This decision is a first step to control Re-Homing and the unofficial adoption process. In the event that P1 and P2's application for the dissolution of their adoption status is denied and they wish to place the children with another person or persons they must make application to do so through this Court. A Guardian Ad Litem will be appointed to determine the best interests of the children and their report will be issued for further action to the Surrogate. This decision marks an attempt by this Court to regulate the Re-Homing trade in children.

Friday, December 4, 2015


Section 485-A of the Judiciary Law was signed by the Governor in December 2012:

"Violation of certain sections a class E felony.

 Any person who violates the provisions of sections four hundred seventy-eight, four hundred eighty-four, four hundred eighty-six or four hundred ninety-five of this article is guilty of a class E felony when he or she: (1) falsely holds himself or herself out as a person licensed to practice law in this state, a person otherwise permitted to practice law in this state, or a person who can provide services that only attorneys are authorized to provide; and (2) causes another person to suffer monetary loss or damages exceeding one thousand dollars or other material damage resulting from impairment of a legal right to which he or she is entitled."

From the Governor's press release:

"Governor Andrew M. Cuomo today signed legislation that will make the unlicensed practice of law a class E felony.

"We have no tolerance for scam artists who pose as lawyers and deceive New Yorkers in need of legal help," Governor Cuomo said. "This new law will help hold accountable individuals who defraud New Yorkers by offering services they are not licensed to provide accountable. I thank the bill sponsors for their efforts on this important legislation."
For most professions licensed by New York State, unlicensed practice constitutes a class E felony but under current law, unlicensed practice of law constitutes a misdemeanor. The new law will make serious instances of unlicensed practice of law a felony.

The new law takes effect November 1, 2013.

Senator Charles Fuschillo said, "Someone who hires an attorney is paying and entrusting that attorney to carry out some of their most important personal and financial wishes, such as buying or selling their home or creating a will. Scam artists who pose as licensed attorneys and jeopardize these important matters should face tougher penalties. I applaud Governor Cuomo for approving this law which will help ensure that phony lawyers receive real punishment for defrauding consumers."

Assembly Member Ed Braunstein said, "Over the past several years, there have been hundreds of complaints by immigrants who have been victimized by fraudulent attorneys. No one should ever be forced to leave the country because of the practices of dishonest con-artists claiming to be lawyers. By having this law signed, we are standing up for the rights of all New Yorkers to ensure that individuals receive proper legal assistance."


Thursday, December 3, 2015


From the New York State Bar Association "The Practice of Law in New York State: An Introduction for Newly-Admitted Attorneys Revised 9/2015":

"B. Unauthorized Practice

At present, there is no single place to turn in New York state for a definition of the practice of law and what may constitute the unauthorized practice of law in New York state. However, attorneys are referred to the provisions of article 15 of the Judiciary Law (especially §§ 478 and 484). Investigation and prosecution of allegations of unauthorized practice are handled by the Attorney General’s office (Judiciary Law §§ 476-a to 476-c). Unauthorized practice may subject the violator to misdemeanor prosecution (Judiciary Law § 485) or contempt of court (Judiciary Law § 750[b]). (See, also, Judiciary Law §§ 16, 250)."

Wednesday, December 2, 2015


I found this recent email from the law firm of Reibman & Weiner interesting because I recall in my younger days living in an old apartment building which always had this problem:

This is the time of the year when people are most likely to be injured by dangerously hot water in their apartment.  During the heating season landlords increase the boiler temperature from 160 degrees Fahrenheit to more than 212 degrees Fahrenheit to provide heat.  If the hot water system is not working properly the water coming out of the tap or shower can be as much as 200 degrees Fahrenheit, nearly the same temperature as the boiler.  Obviously 200 degree water will cause severe scald/burn injuries.   
Scald/burn injuries are so painful that victims often receive morphine from emergency medical personnel before they even get to the hospital.  Treatment can require skin grafts and result in scarring, reduced range of motion of fingers and limbs and increased susceptibility to skin cancer.
The hot water system in an apartment building should mix hot and cold water  so that the water coming out of the tap or shower is at a safe temperature.  Negligent maintenance or repair is the most common cause of malfunction of the hot water system.  Often the landlord or plumbing company fails to routinely check the temperature of the water or tries to save money by postponing necessary repairs. Sometimes the plumbing company installs the wrong temperature control device.


The generally accepted maximum safe temperature for domestic hot water is 140 degrees Fahrenheit. When water comes out of the tap or shower at more than 140 degrees Fahrenheit a person can suffer serious scald injuries before they have time to react.  Children and the elderly suffer scald injuries more quickly than others.   

People sometimes "adjust" to a dangerous hot water condition by mixing hot water with cold water at the tap or shower before they use the water.  Mixing hot and cold water is not a substitute for safe water temperature.  It only takes one forgetful moment to result in serious injury.  No one should live in an apartment or house where a momentary lapse can result in tragic injuries.


If you or someone you know is injured by excessively hot water in the home it is very important to preserve evidence of the water temperature. The best way to do this is to hold a meat thermometer under the running water and videotape the temperature."
From  Reibman & Weiner, Esqs. |
26 Court Street, Suite 1808, Brooklyn, NY 11242

Tuesday, December 1, 2015


Below is a link to the NYC Marshals Handbook, specifically CHAPTER IV - Summary Proceedings: Evictions and Legal Possessions.

These are the rules that Marshals should follow in evictions in NYC: