UNDERGROUND OIL TANKS

This is what home owners and home buyers wish to avoid. For full story, see  http://www.nj.com/mercer/index.ssf/2009/10/tank_removal_project_leads_to.html

My view for best practice for home resales, the contract of sale should contain a clause regarding the existence of an underground tank and that it has been removed or abandoned legally. Here in Nassau County, all tank removals and abandonments are recorded on a county database and a record can be obtained through the Health Department by calling (516) 227-9691.

WHY YOU SHOULD HAVE A WILL - A LESSON FROM PRINCE DID NOT

If you are a resident in New York, the small estate administration is still a procedure (especially if there is an issue with heirs) and is only available if:

• If the decedent (the person who died) passed away between August 29, 1996 and December 31, 2008 AND had $20,000 or less in personal property (not land or buildings).
• If the decedent passed away after January 1, 2009 AND had $30,000 or less in personal property.
• If the decedent owned real property, he/she owned it jointly with someone else and you don’t plan to sell the real estate.

Otherwise, have a will. Here's one story on what Prince's family may be facing:

http://www.billboard.com/articles/business/7348424/prince-estate-will-lawsuits-tax-bills

IMPUTING INCOME IN CHILD SUPPORT

Compare these two cases:

Matter of Taylor v Benedict 2016 NY Slip Op 00803 Decided on February 5, 2016 Appellate Division, Fourth Department:

" At the hearing, the father testified that he was currently unemployed, but that he had worked for a company "off and on" for over five years, making $10 per hour, and that he did not have any medical disabilities preventing him from working. Family Court determined that the Support Magistrate imputed income to the father of $20,800 per year, and we conclude that the determination is supported by the record and was based on the relevant factors (see Lauzonis v Lauzonis, 105 AD3d 1351, 1351; Matter of Monroe County Support Collection Unit v Wills, 21 AD3d 1331, 1331, lv denied 6 NY3d 705). "

Balaj v Balaj 2016 NY Slip Op 00685 Decided on February 3, 2016 Appellate Division, Second Department:

"Income may be imputed to a party based on factors including his or her educational background, past earnings, and employment potential (see Zloof v Zloof, 104 AD3d 845; Cusumano v Cusumano, 96 AD3d 988, 990; Rand v Rand, 29 AD3d 976; Scammaca v Scamacca, 15 AD3d 382; Kalish v Kalish, 289 AD2d 202). Here, the Supreme Court properly imputed income to the plaintiff in the amount of only $150,000. Although his previous earnings were much higher than that amount, he provided credible evidence of a downturn in his field of employment."

GRANDPARENT RIGHTS TO VISITATION

Grandparent alienation is real but not every case is black and white. The facts in the following case sadly describes the complete deterioration of a family. In short, mother and father are not living together and both have terrible relationship with grandmother (who has engaged in some questionable conduct) but young child loves grandmother. To get a full picture of the facts, the case also refers to a prior matter involving grandmother and mother.

Matter of Kathleen LL. v Christopher I. 2016 NY Slip Op 00222 Decided on January 14, 2016 Appellate Division, Third Department:

"This toxic relationship between petitioner and respondents cannot be ignored; nevertheless, "an acrimonious relationship is generally not sufficient cause to deny visitation" by itself (Matter of E.S. v P.D., 8 NY3d at 157; see Matter of Stellone v Kelly, 45 AD3d 1202, 1204 [2007]). Petitioner testified that the child lived with and was raised by her until the child was over four years of age, and that the two had developed a "very close bond" as a result.

.....

We are mindful that Family Court is painfully aware of the prior history between the parties and may well have grounds to believe that the best interests of the child lie in suspending visitation with petitioner altogether. That being said, a sound and substantial basis in the record before us, which illustrates a positive relationship between petitioner and the child despite the toxic relationship between petitioner and respondents, does not exist for that finding (see e.g. Matter of Burton v Barrett, 104 AD3d at 1087; Matter of Johnson v Zides, 57 AD3d at 1320). Under the circumstances present here, we deem it prudent to leave the suspension of visitation in effect on a temporary basis and remit so that Family Court may further develop the record, ascertain the wishes of the child, and fashion an appropriate order (see Matter of Tamara FF. v John FF., 75 AD3d 688, 690 [2010])."

NEW YORK: NON RESIDENT NY ATTORNEYS MUST STILL MAINTAIN OFFICE IN NY

Section 470 of the Judiciary Law mandates that a nonresident attorney maintain an “office for the transaction of business” within the state of New York. Last week, in Schoenefeld v. Schneiderman, the Second Circuit denied the constitutional challenges and the full decision, with dissent, can be found at:

http://law.justia.com/cases/federal/appellate-courts/ca2/11-4283/11-4283-2016-04-22.html

PASSOVER GREETINGS

NO MAINTENANCE IN LONG TERM MARRIAGE

Yes that is from a real movie and this is from a real case. Even though the marriage lasted for almost 40 years, there are some circumstances where maintenance will not be awarded (here I would assume that the equitable distribution was large and that husband's income did not expect to be a significant amount):

Diwan v. Diwan, 2016 NY Slip Op 327 - NY: Appellate Div., 2nd Dept. 2016:

 "The parties were married in 1973 and, in 2011, the plaintiff commenced this action for a divorce and ancillary relief. On January 24, 2014, after a nonjury trial, the Supreme Court entered a judgment of divorce awarding the plaintiff one half of the marital assets and the sum of $60,000 in attorney's fees and costs. The Supreme Court declined to award the plaintiff maintenance....

......

In a matrimonial action, "the court may order maintenance in such amount as justice requires" (Domestic Relations Law § 236[6]). The amount and duration of spousal maintenance is committed to the sound discretion of the trial court, and each case is to be decided on its own unique facts (see Lamparillo v Lamparillo, 130 AD3d 580, 581; Heydt-Benjamin v Heydt-Benjamin, 127 AD3d 814, 815). Here, given that the plaintiff was already receiving Social Security retirement benefits and would receive a substantial distributive award, the Supreme Court did not improvidently exercise its discretion in declining to award the plaintiff maintenance (see Domestic Relations Law § 236[6]; Filippazzo v Filippazzo, 121 AD3d 835, 835-836; Signorile v Signorile, 102 AD3d 949, 951).

WHEN YOU ENTER INTO A STIPULATION OF SETTLEMENT

D'Iorio v D'Iorio 2016 NY Slip Op 00148 Decided on January 13, 2016 Appellate Division, Second Department:

"The court, however, properly declined to direct the plaintiff to maintain life insurance in the defendant's favor to secure her interest in the plaintiff's pensions, as all matters of equitable distribution were resolved by the partial stipulation of settlement. Judicial review of settlement stipulations should be exercised sparingly (see Sabowitz v Sabowitz, 123 AD3d 794, 795; Brennan-Duffy v Duffy, 22 AD3d 699, 699), and a stipulation that is fair on its face should be enforced unless there is proof of fraud, duress, overreaching, or unconscionability (see Sabowitz v Sabowitz, 123 AD3d at 795; Brennan-Duffy v Duffy, 22 AD3d at 699). Here, the defendant did not establish any basis to modify this provision of the partial stipulation of settlement."

THE OTHER SIDE OF REVERSE MORTGAGES

I had several consultations yesterday which demonstrated the down side of these types of loans. This article is from the Consumer Financial Protection Bureau:

http://www.consumerfinance.gov/blog/consumer-advisory-dont-be-misled-by-reverse-mortgage-advertising/

FREE MORTGAGE FORECLOSURE CLINIC TODAY

Today at Nassau County Bar Association. I will be one of the volunteer attorneys.

For more information, see http://www.nassaubar.us/hopp/clinic_flyer/April%202016%20-%20ENGLISH.pdf

THINGS NOT TO DO IN COURT

 

Fortunately, it appears that no one was seriously injured but: see http://www.theguardian.com/world/2016/apr/12/police-officer-accidentally-explodes-grenade-in-pakistan-court

NEW NOTICE IN DIVORCE ACTIONS

 
"By Administrative Order A/O/0004/16, New and Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective January 25, 2016. These form revisions are required by two legislative enactments last year: L. 2015 c. 269 (the Maintenance Guidelines Law which amended statutory provisions regarding temporary spousal maintenance, established formulae and procedures for setting post-divorce (final) maintenance) and L. 2015 c. 387 (the law as to treatment of maintenance in child support calculations). See http://www.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml"

CHILD CUSTODY - RELOCATION PERMITTED

 

In this case, I assume parents divorced while child was very young, Mother had remarried shortly thereafter and had half-sibling child, this was the household for child for some time but now new spouse had to move to Florida. I also assume, Father had the funds for liberal visitation schedule. And I also assume this litigation was somewhat difficult for the child.

Matter of Ceballos v Leon 2015 NY Slip Op 09278 Decided on December 16, 2015 Appellate Division, Second Department:
 
"When reviewing a custodial parent's request to relocate, each "request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child" (Matter of Tropea v Tropea, 87 NY2d 727, 739; see Matter of Rizvi v Shah, 126 AD3d [*2]984, 984; Matter of Estevez v Perez, 123 AD3d 707, 708). "The relevant factors include each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and both parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally, and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements'" (Matter of Estevez v Perez, 123 AD3d at 708, quoting Matter of Hall v Hall, 118 AD3d 879, 880-881). In relocation proceedings, the authority of this Court is as broad as that of the hearing court, and a relocation determination will not stand if it is not supported by a sound and substantial basis in the record (see Matter of Doyle v Debe, 120 AD3d 676, 680; Matter of Caruso v Cruz, 114 AD3d 769, 771).

Here, the Family Court's determination that the child's best interests would not be served by the relocation to Florida is not supported by a sound and substantial basis in the record. Although both parties were loving parents, the mother had been the child's primary caretaker for all but one year of the child's life, and the child was 11 years old at the time of the hearing (see Matter of Hall v Hall, 118 AD3d at 883). The record indicates that the child has established a primary emotional attachment to the mother (see Matter of Fegadel v Anderson, 40 AD3d 1091, 1093), and that the child's emotional well-being suffered after she was removed from the mother's care. Furthermore, the child repeatedly expressed that she wished to relocate to Florida with her mother. While a child's preference is not determinative, it is some indication of what is in the child's best interests, particularly where, as here, the court's interviews with the child demonstrate the child's level of maturity and ability to articulate her preferences (see Matter of Hall v Hall, 118 AD3d at 882-883; Matter of Winston v Gates, 64 AD3d 815, 818-819). Moreover, the child's relationship with her half-sibling, who resides in Florida, will be disrupted if she remains in the father's care, and the record indicates that the child and her half-sibling have developed an emotional bond (see Matter of Shannon J. v Aaron P., 111 AD3d 829, 831; Matter of Fegadel v Anderson, 40 AD3d at 1093).

The record also supports a finding that the denial of the mother's petition to relocate and an award of sole residential custody to the father will have a potentially negative impact on the child's relationship with her mother. Although the mother's relocation will inevitably have an impact upon the father's ability to spend time with the child, a liberal visitation schedule, including extended visits during summer and school vacations, will allow for the continuation of a meaningful relationship between the father and the child (see Matter of Tropea v Tropea, 87 NY2d at 742; Matter of Tracy A.G. v Undine J., 105 AD3d 1046, 1048).

Upon weighing the relevant factors, we find that the mother established that the best interests of the subject child would be served by permitting the relocation. Accordingly, the Family Court should have granted the mother's petition to relocate with the child to Florida. Furthermore, the Family Court should have denied that branch of the father's cross petition which was for sole residential custody of the child. In light of our determination, we remit the matter to the Family Court, Nassau County, to establish an appropriate post-relocation visitation schedule for the father (see Matter of Hall v Hall, 118 AD3d at 883). As a final matter, we note that our determination is based on the current record before this Court. Should there be a change of circumstance in the future, either party may, at that point, petition to modify the custodial arrangement (see Matter of Hirtz v Hirtz, 108 AD3d 712, 715)."

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 and West Streets, Mineola, NY 11501.


I will be one of the volunteer lawyers.

ON THE RECENT CASE GIVING GAY PARENT VISITATION

The decision came out April 6 and can be found at http://www.nycourts.gov/reporter/3dseries/2016/2016_02676.htm

ON MORTGAGE SETTLEMENT CONFERENCES

 

From the Empire Justice Center:

"New Yorkers for Responsible Lending (NYRL) has released a report titled “Divergent Paths: The need for more uniform standards and practices in New York State’s residential foreclosure conference process” which exposes wide variations in the way foreclosure settlement conference rules are implemented, leaving tens of thousands of New Yorkers at heightened risk of losing their homes depending on how settlement conferences are being run where they live. 

When the outcome of your case – whether or not you get to stay in your home – depends on where you live, it becomes very clear that stronger enforcement and clarification of the rules is vital.

Almost 90,000 homeowners across New York State were still in foreclosure as of October 2015 - making settlement conferences just as important now as they were at the height of the foreclosure crisis."

For the report, see http://support.empirejustice.org/site/R?i=Nyyl5MOjf08CYhKqFI5sGA 

SEEKING A DOWNWARD MODIFICATION OF CHILD SUPPORT?

Another example as to why proof must be more than testimony but must include documentation.

Matter of Fantau v Fantau 2015 NY Slip Op 09682 Decided on December 30, 2015 Appellate Division, Second Department (emphasis supplied):


"In this child support proceeding pursuant to Family Court Act article 4, the father was directed to pay child support in an order dated May 25, 2012. In August 2014, the father sought downward modification of his child support obligation. A support magistrate dismissed the father's petition in an order dated December 22, 2014. In an order dated February 4, 2015, the Family Court denied the father's objections to the support magistrate's order. The father appeals.

A "party seeking modification of an order of child support has the burden of establishing the existence of a substantial change in circumstances warranting the modification" (Matter of Baumgardner v Baumgardner, 126 AD3d 895, 896-897; see Matter of Rubenstein v Rubenstein, 114 AD3d 798, 798; Matter of Suyunov v Tarashchansky, 98 AD3d 744, 745). "A reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience" (Raab v Raab, 129 AD3d 1050, 1050 [internal quotation marks omitted]). "The proper amount of support to be paid . . . is determined not by the parent's current economic situation, but by the parent's assets and earning capacity" (Matter of Muselevichus v Muselevichus, 40 AD3d 997, 998-999; see Matter of Baumgardner v Baumgardner, 126 AD3d at 897; Ashmore v Ashmore, 114 AD3d 712, 713; Matter of Solis v Marmolejos, 50 AD3d 691, 692).

Here, the Family Court properly denied the father's objections to the order dated December 22, 2014. The record supported the Family Court's determination that the father failed to establish that he used his best efforts to obtain employment which was commensurate with his qualifications and experience, or that his current income was commensurate with his earning capacity so as to warrant a downward modification of his child support obligation (see Raab v Raab, 129 AD3d 1050; Matter of Schlakman v Schlakman, 66 AD3d 786; Matter of Karrin v Gottesman, [*2]16 AD3d 587). We note that the father failed to submit evidence such as résumés that he had sent to potential employers, or proof that he had been on any interviews in search of employment commensurate with his education, ability, and experience (see Matter of Schlakman v Schlakman, 66 AD3d at 787; Matter of Davis v Davis, 197 AD2d 622, 623; cf. Ritchey v Ritchey, 82 AD3d 948, 949)."

TONIGHT'S SECOND ANNUAL" Access to Justice Pro Bono Recognition Reception" - NASSAU COUNTY BAR ASSOCIATION

CHILD SUPPORT/CUSTODY - WHEN TEENAGERS DECIDE WHERE TO LIVE

It's hard enough to deal with teenagers as a single parent. But when parents are divorced and separated, a teenager's threat to "move out" may be more than a "threat".

Rubin v Rubin 2015 NY Slip Op 09377 Decided on December 22, 2015 Appellate Division, First Department:

"Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered January 30, 2014, which granted plaintiff father's motion to terminate his monthly child support obligation of $4,250, unanimously affirmed, without costs.

Supreme Court properly granted the father's motion for a termination of his child support obligation, based upon his showing of a substantial change in circumstances as a result of a change in the child's residence from defendant mother to him (see e.g. Atlas v Smily, 117 AD3d 471 [1st Dept 2014]; Domestic Relations Law § 236[B][9][b]). Contrary to the mother's contention, the court was not required to conduct a hearing, since no triable issues of fact were raised (see Matter of Stern v Stern, 40 AD3d 1108 [2d Dept 2007], lv denied 9 NY3d 813 [2007]). Indeed, the mother acknowledged in her opposing affidavit that the child had resided with the father since September 2013, and the 19-year-old child also averred the same in her affidavit. The mother's allegations of the father's undue influence on the child and other allegations pertaining to the child's execution of her affidavit are conclusory and insufficient to warrant a hearing (see David W. v Julia W., 158 AD2d 1, 7-8 [1st Dept 1990]).

The child's affidavit, based on her personal knowledge of her intent not to return to the mother's home, did not constitute inadmissible hearsay (see e.g. Pintor v 122 Water Realty, LLC, 90 AD3d 449, 451 [1st Dept 2011]). In contrast, the mother's statements in her affidavit, based on what the child purportedly told her, were properly rejected as inadmissible hearsay and double hearsay (see McGinley v Mystic W. Realty, Corp., 117 AD3d 504, 505 [1st Dept 2014]; MG W. 100 LLC v St. Michaels Prot. Episcopal Church, 127 AD3d 624, 625 [1st Dept 2015])."

ON BEING EVICTED

As attorneys for either a landlord or tenant, we only know a portion of the story. For more details on this book and a review from the New York Times, see:

http://www.nytimes.com/2016/02/28/books/review/matthew-desmonds-evicted-poverty-and-profit-in-the-american-city.html?_r=0

WHEN APRIL FOOL PRANKS LEADS TO LAWSUITS

Yes, it is true. In fact, according to Snopes, several women have sued over pranks and one even settled for some money. For the full coverage, see http://www.snopes.com/business/deals/hummer.asp