A HAPPY AND SAFE NEW YEAR

IMPORTANT LEGAL STORIES OF 2015

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

http://www.abajournal.com/news/article/10_most_important_legal_stories_of_2015/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email

DIVORCE - IMPUTING INCOME TO DISABLED SPOUSE?

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)."

FROM LEVITTOWN TRIBUNE

A VERY MERRY XMAS TO ALL

A XMAS STORY - DON'T BELIEVE EVERYTHING YOU READ ON THE INTERNET

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:

http://www.pressherald.com/2013/01/16/christmas-in-maine-can-be-lawfully-long_2013-01-16/

WHEN BUYING A NEW HOME.....UNTIL JANUARY

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."

WHEN BUYING A NEW HOUSE.........

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." 

ON SELLING A HOME WITH AN UNDERGROUND OIL TANK

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: 

https://www.nassaucountyny.gov/3060/11593/Homeowner-Underground-Tank-Information?activeLiveTab=widgets

FROM BETTY FORD FOUNDATION

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."

NEW LEGISLATION SIGNED ON EXPERT WITNESSES

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."

CHILD SUPPORT - ARE COLLEGE EXPENSES ALWAYS AWARDED?

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."

CHILD CUSTODY - WHO FOSTERS RELATIONSHIP WITH OTHER SPOUSE

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."

VACATING A DEFAULT BY SERVING SECRETARY OF STATE

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."

SAVE A LIFE TONIGHT

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.

ON BED BUGS

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:

http://www.nyc.gov/html/doh/bedbugs/html/home/home.shtml

FOR HANUKKAH

ON REHOMING

Before you read this case, see http://www.reuters.com/investigates/adoption-follows/

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.

II. RE-HOMING

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.

III. CONSIDERATIONS CONCERNING RE-HOMING

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.

IV. CONCLUSION

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.

UNAUTHORIZED PRACTICE OF LAW IN NEW YORK - WHEN IT IS A FELONY

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."

See  https://www.governor.ny.gov/news/governor-cuomo-signs-legislation-make-unlicensed-practice-law-felony

UNAUTHORIZED PRACTICE OF LAW IN NEW YORK

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)."

HOT WATER ISSUES IN OLDER APARTMENT BUILDINGS

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:

"THE HOT WATER IN YOUR HOUSE CAN CAUSE SERIOUS INJURIES 

 

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

 

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 CAUSE OF DANGEROUSLY HOT WATER

 

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.

WHAT IS A SAFE TEMPERATURE FOR WATER IN AN APARTMENT

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.　　　
 

DON'T PUT UP WITH DANGEROUSLY HOT WATER

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.

PRESERVE EVIDENCE WITH ATHERMOMETER AND A VIDEO CAMERA

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."

 anweiner.com

From  Reibman & Weiner, Esqs. | info@reibmanweiner.com
26 Court Street, Suite 1808, Brooklyn, NY 11242

HOW A NYC EVICTION IS HANDLED BY A CITY MARSHAL

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:

http://www.nyc.gov/html/doi/html/marshals/mar4.shtml#6s4

CHILD CUSTODY AND SUPPORT - ALIENATION OR CHILD'S WISHES OR BOTH?

An example when a child is completely estranged from a parent. 

Matter of Coull v Rottman 2015 NY Slip Op 06723 Decided on September 2, 2015 Appellate Division, Second Department:

".....Here, the evidence adduced at the hearing demonstrated that despite the fact that the child had participated in therapy for several months in an effort to foster a relationship with his father, the child remained vehemently opposed to any form of visitation with the father. The Family Court was entitled to place great weight on the child's wishes, since he was mature enough to express them (see Matter of Rosenblatt v Rosenblatt, 129 AD3d 1091; Matter of Luo v Yang, 103 AD3d 636). The court's finding that further attempts to compel the child, who was then 13 years old, to engage in visitation would be detrimental to the child's emotional well being has a sound and substantial basis in the record and, thus, should not be disturbed (see Matter of Rosenblatt v Rosenblatt, 129 AD3d 1091; Matter of Lyons v Knox, 126 AD3d 798, 799; Matter of Luo v Yang, 103 AD3d at 637; Matter of Krasner v Krasner, 94 AD3d 763, 764).

However, contrary to the conclusion of the Family Court, the evidence adduced at the hearing justified a suspension of the father's obligation to make future child support payments (see Rodman v Friedman, 112 AD3d 537; Ledgin v Ledgin, 36 AD3d 669, 670). The forensic evaluator testified that there was a "pattern of alienation" resulting from the mother's interference with a regular schedule of visitation. The evaluator was unable to complete her evaluation because the mother refused to consent to the evaluator's request to speak with mental health providers or school officials, and the child did not appear for his interview. Moreover, after the father's last visit with the child, which occurred on February 7, 2010, the father continued to go to the exchange location on visitation days for several months. On one occasion, the mother and child appeared, but the mother said the child would not come out of the car. On the other occasions, neither the mother nor the child appeared, nor did the mother communicate with the father. The father was never told about the child's medical needs or that the child had been hospitalized until after the fact, nor was he advised of any information about the child's school or school events. Further, the record reflects that the mother, who represented herself before the Family Court, assumed an inappropriately hostile stance toward the father and witnesses who testified in his favor. The Family Court noted in its decision that the mother stated "many times, that she will never allow [the father] to see the subject child and that she would do whatever it takes to keep the subject child away" from him.

Under these circumstances, it is appropriate to suspend the father's current child support obligations (see Matter of Thompson v Thompson, 78 AD3d 845)."

THANKSGIVING BEST WISHES TO ALL

VOLUNTEER LAWYERS PROJECT

Once again, 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."

FORECLOSURE/SANDY CLINIC TODAY AT NCBA

I will be volunteering today, Monday November 23, at the Nassau County Bar Association's free clinic for Mortgage Foreclosure, Bankruptcy and Superstorm Sandy issues from 3pm to 6pm.
 

For more information, contact Nassau County Bar Association, 15^th and West Streets, Mineola, NY 11501 at (516) 747-4070

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 one of the volunteer lawyers.

WORKING WITH VETERANS WITH HOFSTRA UNIVERSITY

Hofstra University Law School sponsors Veterans clinics at least once a year.

NARCAN TRAINING IN NASSAU COUNTY

TIME LIMITS TO SUMMARY JUDGMENT MOTIONS

Bennett v St. John's Home, 128 AD3d 1428 (4th Dept. 2015) - sometimes the most interesting part of a decision is the dissent:
 

"Whalen, J. (dissenting). I respectfully dissent because I disagree with the majority's conclusion that plaintiff waived his contention that defendants' motion for summary judgment should have been denied as untimely. I would therefore reverse the order and judgment, deny defendants' motion, and reinstate the complaint.

Where, as here, Supreme Court does not schedule a deadline for filing motions for summary judgment, "such motion shall be made no later than one hundred and twenty days after the filing of the note of issue, except with leave of court on good cause shown" (CPLR 3212 [a]; see O'Brien v Bainbridge, 109 AD3d 1206, 1208 [2013]; Jones v Town of Le Ray, 28 AD3d 1177, 1178 [2006]). The moving party has the burden of demonstrating good cause, and "[n]o excuse at all, or a perfunctory excuse, cannot be 'good cause' " (Brill v City of New York, 2 NY3d 648, 652 [2004]; see LoGrasso v Myer, 16 AD3d 1089, 1089-1090 [2005]). In that context, CPLR 3212 (a) "requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy" (Brill, 2 NY3d at 652; see O'Brien, 109 AD3d at 1208).

The Court of Appeals has explained that requiring the movant to show good cause serves "the purpose of the amendment, [i.e.,] to end the practice of eleventh-hour summary judgment motions" (Brill, 2 NY3d at 652), and that "statutory time frames . . . are not options, they are requirements, to be taken seriously by the parties. Too many pages of the Reports, and hours of the courts, are taken up with deadlines that are simply ignored" (Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727 [2004]).

Here, the court did not set a deadline for motions, and the note of issue was filed on April 20, 2012, which meant that all summary judgment motions were to be filed within 120 days and no later than August 18, 2012 (see CPLR 3212 [a]). The motion for summary judgment was not filed until June 28, 2013, which is just over 10 months beyond the 120-day limit (see O'Brien, 109 AD3d at 1208). Defendants' moving papers did not include any explanation for the delay, and the reason set forth by the court during proceedings on May 13, 2013 was simply that defendants may have a meritorious motion and, thus, that determining the motion might simplify the issues at trial, which is the same excuse that was rejected by the Court of Appeals in Miceli and Brill (see Miceli, 3 NY3d at 727; Brill, 2 NY3d at 652-653). I therefore conclude that the motion should not have been entertained by the court.

In my view, the fact that the parties entered a stipulation to allow defendants to make a late motion for summary judgment does not alter the above analysis inasmuch as "[the] parties' stipulation is insufficient to excuse [a] delay" (Coty v County of Clinton, 42 AD3d 612, 614 [2007]). "Unless public policy is violated, the parties are free to chart their own procedural course, and may fashion the basis upon which a particular controversy will be resolved" (Loretto-Utica Props. Corp. v Douglas Co., 226 AD2d 1058, 1059 [1996] [internal quotation marks omitted]; see Mitchell v New York Hosp., 61 NY2d 208, 214 [1984]). However, as articulated by the legislature and the Court of Appeals, it is public policy to strictly enforce the 120-day limit for summary judgment motions in the absence of leave of court on good cause shown. CPLR 3212 (a) was amended by the legislature with "the purpose . . . to end the practice of eleventh-hour summary judgment motions" (Brill, 2 NY3d at 652), which the Court of Appeals described as a "sloppy practice threatening the integrity of our judicial system" (id. at 653). "[T]he Court of Appeals [has] clearly indicated that the 120-day statutory time frame contained in CPLR 3212 (a) is a strict requirement 'to be taken seriously by the parties' " (Coty, 42 AD3d at 614, quoting Miceli, 3 NY3d at 726) and "must be 'applied as written and intended' " (id., quoting Brill, 2 NY3d at 653). Although parties may stipulate away some statutory rights (see Mitchell, 61 NY2d at 214), under CPLR 3212 (a) and the decisions of the Court of Appeals in Brill and Miceli, "the court has the exclusive authority to extend the statutory deadline; mutual agreement of the parties without court approval will not suffice" (Coty, 42 AD3d at 614), and the court may not approve of the delayed motion without a showing of good cause (see CPLR 3212 [a]; Brill, 2 NY3d at 652). Thus, contrary to the majority's position, litigants cannot waive the statutory requirement that good cause be shown in order to permit the late filing of a motion pursuant to CPLR 3212, and the statute does not permit courts to accept a stipulation of the parties "in advance of the [*3]motion" where there is no showing of good cause. I therefore conclude that, while a court may accept a late motion for summary judgment "pursuant to both a stipulation and the court's own order, upon a showing of 'good cause' " (Jim Beam Brands Co. v Tequila Cuervo La Rojena, S.A. De C.V., 85 AD3d 556, 556-557 [2011] [emphasis added]), a stipulation alone is not sufficient to extend the deadline imposed by the statute (see Coty, 42 AD3d at 614).

As discussed above, the parties' stipulation in the present case was accompanied by acquiescence of the court, but without any showing of good cause for the delay. In my view, "[i]f this practice is tolerated and condoned, the ameliorative statute is, for all intents and purposes, obliterated" (Brill, 2 NY3d at 653). The courts should heed the admonition of the Court of Appeals and not countenance such statutory violations (see id.)"

TALK TO STRANGERS

The American Academy of Matrimonial Lawyers is co-distributing the Telly Award winning custody film, TALK TO STRANGERS"

"The 25-minute dramatic film tells the story of a sister and her younger brother struggling to navigate the child custody evaluation process typically used in American family courts. It is being used by divorce professionals throughout the country to remind parents and counsel of the consequences for children when parents give up on cooperative parenting."


See http://www.aaml.org/childcustodyfilm

BUYING A "TAINTED" HOUSE

This came up in an email discussion - and reminded me of the movie Poltergeist. What is the Seller's duty to disclose the fact that, for example, there was a murder in the home, a contagious disease....or that the house is build on a burial ground and ghosts appear?

In 1995, New York State passed Section 443-a of the Real Property Law which makes the failure to disclose disease-type and crime/death-type impacts not a material defect.  Disease-type impacts protected under the statute are the AIDS or HIV status of a prior occupant, or any other disease not transmitted through occupancy of a dwelling. The crime/death-type impacts under the statute are "a homicide, suicide, or other death by accidental or natural causes, or any crime punishable by a felony."' It also prohibits causes of action against owners, occupants, and their agents for failing to disclose psychological impacts. Real estate agents and brokers are also immune from disciplinary action.

However, there is a procedure for buyers to make a written inquiry if psychological impacts are important to their decision to buy. The buyer or buyer's agent must provide the written inquiry to the seller or the seller's agent. The seller may choose whether or not to respond. If the seller chooses to respond, the seller or seller's agent must provide the response to the buyer or the buyer's agent.

So when representing a buyer - make the inquiry pursuant to RPL Section 443-a. But I don't think it covers ghosts...here it is in its entirety:

"1. Notwithstanding any other provision of law, it is not a material defect or fact relating to property offered for sale or lease, including residential property regardless of the number of units contained therein, that: (a) an owner or occupant of the property is, or was at any time suspected to be, infected with human immunodeficiency virus or diagnosed with acquired immune deficiency syndrome or any other disease which has been determined by medical evidence to be highly unlikely to be transmitted through occupancy of a dwelling place; or (b) the property is, or is suspected to have been, the site of a homicide, suicide or other death by accidental or natural causes, or any crime punishable as a felony. 2. (a) No cause of action shall arise against an owner or occupant of real property, or the agent of such owner or occupant, or the agent of a seller or buyer of real property, for failure to disclose in any real estate transaction a fact or suspicion contained in subdivision one of this section. (b) Failure to disclose a fact contained in subdivision one of this section to a transferee shall not be grounds for a disciplinary action against a real estate agent or broker licensed pursuant to this article. (c) As used in this section, the terms "agent", "buyer" and "seller" shall have the same meanings as such terms are defined in section four hundred forty-three of this article. 3. Notwithstanding the fact that this information is not a material defect or fact, if such information is important to the decision of the buyer to purchase or lease the property, the buyer may, when negotiating or making a bona fide offer, submit a written inquiry for such information. The buyer or the agent of the buyer shall provide the written request to the seller's agent or to the seller if there is no seller's agent. The seller may choose whether or not to respond to the inquiry. The seller's agent, with the consent of the seller and subject to applicable laws regarding privacy, shall report any response and information to the buyer's agent or to the buyer if there is no buyer's agent. If there is no seller's agent, the seller shall inform the buyer's agent, or the buyer if there is no buyer's agent, whether or not the seller chooses to provide a response. 4. This section shall preempt any local law inconsistent with the provisions of this section."

NEW YORK DIVORCE - ANOTHER AMENDMENT TO NEW MAINTENANCE LAW

On October 28, Gov. Cuomo signed into law a bill designed to clear up confusion that has developed over how spousal maintenance is treated when calculating child support. The bill, provides that spousal maintenance that is actually paid must be added to the recipient spouse's income, provided that the order contains an adjustment to take effect if the maintenance order is terminated. The new law contains a provision that where spousal maintenance is deducted from a payor's income, the order must have a provision automatically adjusting the payor's child support amount when maintenance payments end.

Prior court rulings have held that durational spousal maintenance payments should not be deducted from the payor's income unless the order specifies a mechanism for an adjustment if maintenance stops.

The new bill takes effect in 90 days and reflects that state and federal tax laws allows payor spouses to deduct maintenance payments from their taxes in recognition that the maintenance is income to the recipient and not money that is available any longer for use by the payor.

VETERANS DAY

My father Albert Probstein served in the Pacific in WW2. This Saturday, I will serve as a volunteer lawyer at a free Veterans Legal Clinic:

"The Maurice A. Deane School of Law will host a free Veterans Legal Clinic on Saturday, November 14, 2015. The clinic is open to all veterans and offers a free consultation with attorneys who specialize in VA benefits and claims, family law, social security disability, employment, USERRA, housing, bankruptcy, debtor/creditor matters, landlord-tenant disputes, elder law, tax, wills, estates, Medicare and Medicaid, and more. Appointments are required.

The clinic is organized by the Hofstra Veterans Legal Assistance Project. For more information or to schedule a free consultation, contact the Hofstra Veterans Legal Assistance Project at VLAP@hofstra.edu or call 516-463-7302.

This is the fifth one-day clinic hosted by the Veterans Legal Assistance Project. To date, VLAP has provided more than 200 military veterans with free legal services.

TIME: 10 a.m.-4 p.m.

LOCATION: 2nd-Floor Atrium, Hofstra Law, South Campus, Hempstead, NY 11549"

TAX LIENS & STUDENT LOAN DEBTS

This is from an email I received from Shenwick & Associates:

Many of our debtor clients ask the question: if I owe the IRS taxes and I'm collecting Social Security benefits or going to collect Social Security benefits in the future, can the IRS levy my Social Security payments? Unfortunately for delinquent taxpayers, through the Federal Payment Levy Program (FPLP), 15% of a taxpayer's Social Security benefits may be levied to pay delinquent tax debt. However, certain other federal benefits, such as lump sum death benefits, Supplemental Security Income (SSI) and benefits paid to children are excluded from the FPLP levy. What about student loans? If a debtor defaults in the payment of federally guaranteed student loans, then the IRS may levy on the debtor's tax refunds and apply those monies to the balance of the student loans. Additionally, if a debtor defaults on federally insured outstanding student loans, the government can take some federal benefit payments (including Social Security retirement and disability benefits, but not SSI) as reimbursement for student loans, but not the full amount (see below). With respect to student loan defaults, the government cannot take any amount that would leave you with benefits less than $9,000 per year or $750 per month. And it cannot take more than 15% of your total benefits for either student loan defaults or delinquent taxes. If you have questions about the federal government's powers to seize your benefits for the payment of delinquent taxes or publicly guaranteed student loans, please contact Jim Shenwick. My LinkedIn profile
jshenwick@gmail.com • Shenwick & Associates

CHILD CUSTODY AND VISITATION - WHAT KIND OF MENTAL HEALTH TREATMENT CAN A COURT ORDER

Lajqi v. Lajqi, 130 A.D.3d 687, 11 N.Y.S.3d 860 (Second Dept. 2015):

"The Supreme Court properly denied that branch of the defendant's motion which was to direct the plaintiff to undergo a psychiatric evaluation as a condition of continued visitation with the parties' child. A court hearing a pending proceeding or action involving issues of custody or visitation may properly order a mental health evaluation of a parent, if warranted, prior to making a custody or visitation determination (see Family Ct Act § 251[a]; Zafran v. Zafran, 28 AD3d 753, 756; see also Bibas v. Bibas, 62 AD3d 924). In addition, a court may properly direct a party to submit to counseling or treatment as a component of a visitation or custody order (see Matter of Smith v. Dawn F.B., 88 AD3d 729, 730; Matter of Lane v. Lane, 68 AD3d 995, 997–998; Matter of Thompson v. Yu–Thompson, 41 AD3d 487, 488; Matter of Grassi v. Grassi, 28 AD3d 482, 483; Jordan v. Jordan, 8 AD3d 444, 445; Matter of Williams v. O'Toole, 4 AD3d 371, 372).

However, "a court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights" (Matter of Smith v. Dawn F.B., 88 AD3d 729, 730; see Matter of Welch v. Taylor, 115 AD3d 754, 756; Matter of Torres v. Ojeda, 108 AD3d 570, 571; Matter of Grassi v. Grassi, 28 AD3d 482, 483). The rationale underlying this rule is that "a court may not properly delegate to mental health professionals the ultimate determination of whether a parent will be awarded visitation rights," a determination that is properly made by the court (Zafran v. Zafran, 28 AD3d at 757). Therefore, the Supreme Court properly denied that branch of the defendant's motion which was to direct the plaintiff to undergo a psychiatric evaluation as a condition of continued visitation with the parties' child."

TENANT BLACKLIST AND TENANT SCREENING

A common question tenants ask when facing eviction is how the process will affect their chances of re-renting.

Some websites tenants are suggested to review:

http://cwtfhc.org/tenant-blacklists-credit-reports-and-debt-collection/

http://cwtfhc.org/wp-content/uploads/2009/06/deniedhousingtenantscreeningrepoprts.pdf

ON FREE LEGAL INFORMATION DAY

 

I was just one of dozens of volunteer attorneys that day.  It was a wonderful experience.

HOW INCARCERATION CAN AFFECT VISITATION

McIntosh v. Clary, 129 A.D.3d 1392, 12 N.Y.S.3d 356 (Third Dept. 2015):

"The parties are the parents of four children, born in 2005, 2006, 2008 and 2009. Since 2010, petitioner (hereinafter the mother) has had sole custody of the children pursuant to an order that permitted respondent (hereinafter the father), who was incarcerated, to have telephonic contact with the children. In 2012, after a fact-finding and Lincoln hearing, Family Court determined that the telephone calls were emotionally distressing to the children and granted the mother's petition to modify the order by limiting the father's contact to monthly, monitored written communication with the two oldest children.FN1 Ten months later, the father commenced this proceeding to modify the 2012 order, seeking prison visitation and reinstating telephonic contact with the two oldest children. Family Court granted the mother's motion to dismiss the petition for failure to allege a change in circumstances. The father now appeals .FN2

We affirm. As the party seeking to modify a recent, existing visitation order, "the father was required to provide sufficient evidence in support of the petition to show that there had been a change in circumstances demonstrating a real need for a change to ensure the children's best interests" (Matter of Hall v. Hall, 61 AD3d 1284, 1285 [2009]; see Matter of Ruple v. Cullen, 115 AD3d 1123, 1123 [2014]). The only changes in circumstances alleged in the father's petition were that he had received a certificate for attending substance abuse meetings and positive inmate progress reports and completed vocational training, and that his request for the children to participate in a prison program had been denied. Even accepting these allegations as true, they do not set forth a change in circumstances that would warrant the relief sought (see Matter of Januszka v. Januszka, 90 AD3d 1253, 1254 [2011]). The bare fact that the father had availed himself of prison services did not require a reexamination of the childrens' best interests, particularly where the changes alleged do not address their emotional reaction to telephonic communication from the father, which was the reason for limiting contact in the 2012 order. Moreover, although the father was allowed monthly communication with the two oldest children, he had written to them on only two occasions in the 10 months that had elapsed between the 2012 order and this proceeding. Given the circumstances, Family Court did not err in dismissing the petition without an evidentiary hearing (see Matter of Marquis v. Washington, 86 AD3d 753, 754 [2011]; Matter of Heater v. Heater, 81 AD3d 1017, 1017 [2011]).

FN1. We subsequently affirmed this order (Matter of Clary v. McIntosh, 117 AD3d 1285, 1286 [2014]).

FN2. Inasmuch as the father has been released to parole supervision, his request for visitation at the prison is moot (see Matter of Samantha WW. v. Gerald XX., 107 AD3d 1313, 1315 [2013])."

VOTE TODAY

MY "CONNECTION" TO LUCKY LUCIANO

In this month's ABA Journal, there is an article on the 1936 trial of Lucky Luciano. Moses Polakoff, Luciano’s longtime attorney, worked on the case along with criminal counsel George Morton Levy.

In the early 1979-1980, I was an associate to Berman & Zivyak and next door to my office was Moses Polakoff. One of my duties as an associate, was to assist Mr. Polakoff on various matters.

And that's the extent of my connection to organized crime and Lucky Luciano. By the way, Mr. Polakoff would never discuss his representation of Luciano and, of course, I was forbidden to ask.

SOME INTERESTING MATRIMONIAL DECISIONS - PROVING COMINGINGLED PROPERTY IS SEPARATE PROPERTY

Terasaka v. Terasaka, 130 A.D.3d 1474, 13 N.Y.S.3d 740 (Fourth Dept. 2015):

"We reject defendant's contention that Supreme Court erred in determining that the disputed trust account, funded with plaintiff's premarital property and property acquired by gift or inheritance, was plaintiff's separate property. It is well settled that separate property that is " ‘commingled with marital property or is subsequently titled in the joint names of the spouses is presumed to be marital property’ " (Gately v. Gately, 113 AD3d 1093, 1094, lv dismissed 23 NY3d 1048), and that "[t]he party seeking a finding of separate property has the burden of rebutting that presumption" (id.). Here, the uncontroverted evidence at trial "trace[d] the source of the [commingled] funds ... with sufficient particularity to rebut the presumption that they were marital property" (id. at 1903 [internal quotation marks omitted]). Defendant stipulated to the introduction in evidence of the forensic accounting report prepared by plaintiff's accountant "subject to whatever legal arguments either party may advance" regarding certain aspects of the report. Furthermore, plaintiff's accountant was the only expert witness who testified regarding the report and the ability to distinguish plaintiff's separate property from the parties' marital property even after they were commingled. Plaintiff also rebutted the presumption that the commingled separate property is now marital property by establishing that her transfer of her separate funds into a marital checking account for 95 days was merely a convenient means of transferring her separate funds into her trust account (see Noble v. Noble, 78 AD3d 1386, 1389). Furthermore, the marital checking account in which the funds at issue were commingled was held only in plaintiff's name (see Chamberlain v. Chamberlain, 24 AD3d 589, 593)."

FREE LEGAL INFORMATION DAY TODAY

At the Nassau County Bar Association, today, October 29. 3-7 p.m.

Volunteer attorneys (like myself) to meet one-on-one with a Nassau resident to provide legal information and referral.

Please call Gale Berg 516-747-4070.

SOME INTERESTING MATRIMONIAL DECISIONS - THE ATTORNEY FOR THE CHILD

Viscuso v. Viscuso, 129 A.D.3d 1679, 12 N.Y.S.3d 684 (Fourth Dept. 2015):

"In appeal No. 1, the mother contends that the Attorney for the Child (AFC) violated her ethical duty to determine the subject child's position and advocate zealously in support of the child's wishes, because the AFC advocated for a result that was contrary to the child's expressed wishes in the absence of any justification for doing so. We reject that contention. The Rules of the Chief Judge provide that an AFC "must zealously advocate the child's position" and that, "[i]f the child is capable of knowing, voluntary and considered judgment, the [AFC] should be directed by the wishes of the child, even if the [AFC] for the child believes that what the child wants is not in the child's best interests" (22 NYCRR 7.2[d][2]; see Matter of Swinson v. Dobson, 101 AD3d 1686, 1687, lv denied 20 NY3d 862). A contrary rule arises where, as here, "the [AFC] is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child[. In such circumstances, the AFC] would be justified in advocating a position that is contrary to the child's wishes" (22 NYCRR 7.2[d][3]; see generally Matter of Carballeira v. Shumway, 273 A.D.2d 753, 755–756, lv denied 95 N.Y.2d 764). Here, "the evidence supports the court's conclusion that ‘to follow [the child's] wishes would be tantamount to severing her relationship with her father, and [that] result would not be in [the child's] best interest[s]’ " (Matter of Marino v. Marino, 90 AD3d 1694, 1696). We conclude that the mother's persistent and pervasive pattern of alienating the child from the father "is likely to result in a substantial risk of imminent, serious harm to the child" (22 NYCRR 7.2[d][3]), and we conclude that the AFC acted in accordance with her ethical duties."

CAN A CHILD BE A WITNESS IN A CIVIL CASE?

Question posed yesterday - if the matter is not a matrimonial, not a criminal action - what are the rules?


DELMARIE QUINONES, an Infant, by Her Mother and Natural Guardian, DELMA ALCANTARA, et al., Plaintiffs, v. CLIFTON CABALLERO et al., Defendants.10 Misc.3d 486 , 802 N.Y.S.2d 831 (Brnx. Co. 2005):

"V. The Child Witness

Plaintiff Quinones was 12 years old when she testified, recalling events when she was 10½ years old. To rely on a 12-year-old minor's testimony, the court must find she had sufficient capacity and intelligence, not only to comprehend the nature and obligations of the oath she took at her deposition, but also to recall and give an accurate account of what she saw or heard concerning the material events or circumstances she was questioned about. (People v Parks, 41 NY2d 36, 45 [1976]; People v Singleton, 284 AD2d 249 [1st Dept 2001]; People v Taylor, 244 AD2d 152, 153 [1st Dept 1997]; People v Bunche, 235 AD2d 271, 272 [1st Dept 1997].) Competency determinations, at least where the child witness is a complainant testifying against a defendant in a criminal action, rely on the trial court's opportunity to observe the witness, her demeanor and presence of mind, and undertake inquiries that disclose her capacity and intelligence. (People v Parks, 41 NY2d at 46; People v Taylor, 244 AD2d at 153.) "Impressions that may be validly drawn only from closehand personal observation cannot be 'photographed into the record' for later study." (People v Parks, 41 NY2d at 46.)

Against this authority, may the court in the context of summary judgment motions rely on a minor's testimony, already sworn, without actually observing the witness and conducting an independent inquiry to determine her competency? To rely on the minor's testimony as defendants seek, for purposes of granting them summary judgment and dismissing plaintiffs' action, obviously will preclude the trial judge from making this determination for purposes of the trial.

For purposes of the pending dispositive motions, plaintiff Quinones already was sworn and testified, without plaintiffs' or any other party's objection. While objections to a witness' competency are not waived by the failure to pose them before or during her deposition as she responded to questions (CPLR 3115 [d]), the action is now at a potentially dispositive juncture. Neither at the deposition, nor in the context of these motions, have plaintiffs or any other party raised any question, based on the opportunity for "closehand observation" they had at the deposition, that the minor did not have the capacity or intelligence to understand and respond to any question posed or to recall and accurately recount material facts. (People v Parks, 41 NY2d at 46.)

The context here departs from the authority governing criminal trials in critical respects. A deposition upon oral questions is not a discovery device in criminal actions (e.g., CPL 240.20), so there is no opportunity before the trial for "closehand observation" of a child witness and scrutiny of her capacity and intelligence. (People v Parks, 41 NY2d at 46.) Here, although the court had no such opportunity except study of the transcript and corroborating or conflicting evidence, the parties had a thorough opportunity. Concomitantly, there is no analogy in criminal actions to the summary dispositions upon admissible evidence, routinely sought, and for which the parties therefore must be prepared, in civil actions.

In addition, while one side, here defendants, seeks to rely on the minor's testimony against the other side, unlike the prosecution relying on its complaining witness as an accuser against the other side, defendants rely not on their own witness, but on the other side's own witness, plaintiff Quinones. Most critically, and perhaps the explanation for plaintiffs' reluctance to raise a competency issue, if plaintiffs are to prevail, they must rely on the minor's testimony as well. Although her mother, plaintiff Alcantara, was present for the material events, neither side has found her recollection and account sufficiently useful to rely on her, despite her capacity as an adult, to support the parties' positions. Hence the minor is the witness on whom all parties must rely if they are to establish their claims or defenses.

Keeping the age of the key witness foremost in mind, the court finds no hint in the record that she was confused by the questions posed to her or had any difficulty expressing her recollection of the material events or her intended meaning. Nothing in the plaintiff mother's testimony or anywhere else in the record is in any way inconsistent with or otherwise casts any doubt on the certainty of the minor plaintiff's testimony. (See Totan v Board of Educ. of City of N.Y., 133 AD2d 366, 369 [2d Dept 1987].) In fact the mother corroborates both that the snow was "spread" over the part of the sidewalk where her daughter fell (affirmation of David Holmes, exhibit G, at 17), and that "more snow" had fallen "on top" of the snow that had been shoveled and salted. (Id. at 20.) This careful scrutiny provides assurance even where no issue was raised regarding the daughter's competency.

In these circumstances, in the context of summary judgment motions, where the parties against whom a minor's testimony is used raised no objection to the testimony and also must rely on it, the court, after scouring the record for uncertainty in the testimony and finding none, may rely on a sworn 12 year old's account, without her appearance and further examination. Consequently, based on the admission that no shoveling was observed in the area where plaintiff Quinones fell and that no additional salt had been spread there since she had walked there hours earlier, the Caballero defendants, at least, establish defendants' freedom from liability."

SOME INTERESTING MATRIMONIAL DECISIONS - DOWNWARD MODIFICATION OF MAINTENANCE

 

Kaplan v. Kaplan, 130 A.D.3d 576, 13 N.Y.S.3d 184 (Second Dept. 2015):

"The Supreme Court properly granted that branch of the plaintiff's motion which was for a downward modification of his maintenance obligation. The plaintiff demonstrated that his loss of employment was unavoidable, that he made a good-faith effort to obtain employment commensurate with his qualifications and experience, and that continued enforcement of the maintenance obligation as set forth in the parties' separation agreement would create an "extreme hardship" (cf. Lewis v. Lewis, 43 AD3d 462, 463–464; see Beard v. Beard, 300 A.D.2d 268, 269; Pintus v. Pintus, 104 A.D.2d 866, 868–869). The Supreme Court also providently exercised its discretion in imputing $450,000 in income to the plaintiff based upon, inter alia, his educational background and employment history (see Matter of Julianska v. Majewski, 78 AD3d 1182, 1183; Friedman v. Friedman, 309 A.D.2d 830, 831), and reducing his maintenance obligation to the defendant from $16,666 per month to $6,375 per month, taking into consideration, inter alia, the relevant factors enumerated in Domestic Relations Law § 236(B)(6)(a) (see Baron v. Baron, 71 AD3d 807, 809; Otto v. Otto, 207 A.D.2d 530, 532).

However, the Supreme Court erred in directing that the plaintiff recoup the overpayment of his maintenance obligation made since the filing of his motion as a credit against his future maintenance obligation. Generally, as a matter of public policy, a payor spouse is not entitled to restitution or recoupment of maintenance payments (see Fox v. Fox, 306 A.D.2d 583; Vigliotti v. Vigliotti, 260 A.D.2d 470, 471; Samu v. Samu, 257 A.D.2d 656; Du Jack v. Du Jack, 243 A.D.2d 908, 909; Matter of Klein v. Klein, 58 A.D.2d 811), and, contrary to the plaintiff's contention, this case does not fall outside the general rule (see Arcabascio v. Arcabascio, 48 AD3d 606; cf. Stimmel v. Stimmel, 163 A.D.2d 381; Jacobs v. Patterson, 143 A.D.2d 397, 398; Vigliotti v. Vigliotti, 260 A.D.2d at 471)."

2015 PETER JAMES JOHNSON NATIONAL CIVIL RIGHTS COMPETITION

Last night, I was honored to be a presiding judge in one of the competitions at Nassau County Supreme Court. My best wishes to all the schools participating.

STUDENT MENTORING - NASSAU COUNTY

Today is another 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"

LAWYERS WHO COMMIT CRIMES

After reading the recent news of the arrest of one Long Island attorney arrested for stealing escrow funds, I came across this article from the NYLJ reprinted the the blog "Legal Ethics":

http://nylegalethics.attorney/lawyers-who-commit-crimes-disciplinary-consequences/

STATUE OF LIMITATIONS - FORECLOSURE

Headline in today's Newsday about Suffolk County Supreme Court Justice Rebolini dismissing action in foreclosure due to bank's delay.

To read the full decision in U.S. BANK NA vs. PARISI, JAYNE, Index. 066885/2014, Suffolk Supreme Court, it is available on e-courts and is posted online at

http://stopforeclosurefraud.com/2015/10/15/u-s-bank-v-parisi-nysc-another-statute-of-limitations-foreclosure-dismissal-granted/