Tuesday, May 31, 2016


This office will be advertising in the Levittown MapToon. On Memorial Day, the Maptoon organization began a seven-day ad campaign with Cablevision to make Levittown residents aware of the map arriving in their mailbox shortly. The ads will be running around the clock on News 12 and News 12 Traffic and Weather (ch. 61) thru Sunday.

See you soon with the Levittown MapToon!

Friday, May 27, 2016


Thursday, May 26, 2016


Today, at the Nassau County Bar Association, is the annual Student Mentoring Program luncheon.

In this program, sponsored by the Bar Association, attorneys act as mentors to middle school students selected by guidance counselors, meeting with them on school premises twice monthly for 45 minutes during the school year. The one-on-one program permits mentor and student to develop a rapport, and motivates students to set and work towards positive goals.

This is my second year as a Student Mentor.

Wednesday, May 25, 2016


As reported by numerous sources, Town Board members of the Town of Hempstead on Tuesday voted unanimously on a measure requiring banks and lenders to post a $25,000 security deposit each time a home in the Town of Hempstead goes into foreclosure.

A copy of the bill that was proposed (May 24, 2016) can be found on the Town's website: https://toh.li/files/tbdocuments/20160524-resolutions.pdf

However - it appears to be limited to foreclosure actions that are commenced against homes that are already vacant. Although there are no studies that I am aware of, it appears to me, in my experience, that most homeowners abandon their homes well after the foreclosure process has been in process, not before. Thus, the method of rolling upkeep costs to the foreclosed homeowner’s property taxes years later may probably continue to be the main upkeep approach with new foreclosures.

Tuesday, May 24, 2016


According to Planned Parenthood, once a parent is aware that their teen is sexually active, ".....parents can make a difference. We can help our teens think about their relationships. We can talk with them about the relationship responsibilities they have. We can encourage them to always use birth control and practice safer sex. And we can reassure them that we will continue provide loving homes and work to build and maintain a good relationship with them."

But do the courts agree with that premise when custody issues are involved? When is allowing your teenager to have an intimate relationship constitute neglect? What is the effect on any younger children in the household?

Matter of Lawton v Lawton 2016 NY Slip Op 01216 Decided on February 18, 2016 Appellate Division, Third Department:

"Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of two children (born in 2005 and 2006). Although married, they have been separated since 2011. In accordance with a verbal agreement, the mother had primary physical custody of the children and the father had parenting time with them every other weekend. In March 2013, the Schoharie County Department of Social Services (hereinafter DSS)
filed a neglect petition against the mother for allowing her 16-year-old daughter — who is unrelated to the father — to have sex with the 22-year-old son of the mother's boyfriend. In November 2013, the mother consented to a fact-finding order wherein the 16-year-old child and the children were adjudicated as neglected. Despite the adjudication, the custodial arrangement between the parties continued. In March 2014, the father filed a temporary emergency custody petition based on his claim that the mother was unemployed and living in a hotel with the children. In April 2014, DSS filed a second neglect petition against the mother for allowing another daughter — a 15 year old also unrelated to the father — to spend weekends overnight and engage in a sexual relationship with that daughter's 16-year-old boyfriend. After a number of appearances and after the mother filed a petition seeking custody, a fact-finding hearing began in July 2014. After hearing testimony from the father, his fiancée and the mother and after a [*2]Lincoln hearing, Family Court granted joint legal custody to the parties, primary physical custody to the father and parenting time to the mother every weekend and on Wednesdays after school. The mother now appeals.

The focus in an initial custody determination is the best interests of the children, which involves consideration of factors including "the parents' past performance and relative fitness, their willingness to foster a positive relationship between the child[ren] and the other parent, as well as their ability to maintain a stable home environment and provide for the child[ren]'s overall well-being" (Matter of Adams v Morris, 111 AD3d 1069, 1069-1070 [2013]; accord Matter of Daniel TT. v Diana TT., 127 AD3d 1514, 1514-1515 [2015]; Matter of Jarren S. v Shaming T., 117 AD3d 1109, 1110 [2014]). The children's wishes should be considered but are not dispositive (see Rumpff v Schorpp, 133 AD3d 1109, 1113 [2015]; Matter of Rivera v LaSalle, 84 AD3d 1436, 1438 [2011]). Because Family Court has the best ability to assess the witnesses' demeanor and credibility, we will not disturb a custody determination unless it lacks a sound and substantial basis in the record (see Matter of Daniel TT. v Diana TT., 127 AD3d at 1515; Matter of Kayla Y. v Peter Z., 125 AD3d 1126, 1127 [2015]).

Here, as Family Court noted, the mother had been the children's primary caregiver, but the father had taken on a more active role since the neglect adjudication. Further, the record indicates that, although the mother had found a job and an apartment by the time of the fact-finding hearing, she was unemployed and living with the children in a hotel when the father filed his petition. By comparison, the father testified that he had been working at the same job for nearly six years and had been living in the same apartment with his fiancée for nearly two years. He testified that the children were sharing a room, but that he was looking into purchasing a home to provide more space for the children and the 10-month-old child that he had with his fiancée.

We are not persuaded by the mother's argument, joined by the attorney for the children, that Family Court placed too much emphasis on the neglect adjudication. The incident underlying the neglect adjudication reflected a serious lack of judgment — a point that the mother conceded and was continuing to work to address (see Matter of Rosetta BB. v Joseph DD., 125 AD3d 1205, 1206 [2015]). Based on the record, we agree with the court's view that it was faced with the dilemma of "choosing between two less than perfect household situations." In such a case, it is particularly important to defer to the court's determination (see Matter of Windom v Pemberton, 119 AD3d 999, 999 [2014]). Based on the record as a whole, we conclude that Family Court's determination to award primary physical custody to the father — without prejudice to the mother's application for a modification upon the termination of the second neglect proceeding — has sound and substantial support in the record."

Note: the teenagers who the mother allowed to be sexually active were the half-sisters of the younger children who were subject to the custody case.

Monday, May 23, 2016


As attorneys, many times we are working with clients who had bought or sold a small business but did not consult with counsel in the transaction. And usually those who did not consult with counsel also failed to conduct their due diligence. What is due diligence? According to the dictionary, it is "reasonable steps taken by a person in order to satisfy a legal requirement, especially in buying or selling something; a comprehensive appraisal of a business undertaken by a prospective buyer, especially to establish its assets and liabilities and evaluate its commercial potential."

An excellent article today in Newsday:


Thursday, May 19, 2016


As a general rule, all property acquired during the marriage is presumed to be marital property but the court can give credits on specific items of marital property which were obtained with separate property funds. So despite the alleged "transmutation", the spouse who contributed separate property to the creation of a marital property should be credited for that contribution...however, the spouse claiming a separate property credit must have proof in order to trace the separate asset and establish the value of the separate asset at the time of the creation of the marital property.

Ahearn v Ahearn 2016 NY Slip Op 01448 Decided on March 2, 2016 Appellate Division, Second Department:

"In June 1996, the plaintiff purchased a house on Salem Street in Patchogue (hereinafter the Salem Street house). Approximately nine months later, the plaintiff and the defendant were married, and they lived together in the Salem Street house. In December 2004, the plaintiff sold the Salem Street house and used the net proceeds of approximately $143,000 from that sale toward the purchase, in March 2005, of a house in Holbrook (hereinafter the Holbrook house). Only the plaintiff's name was on the deed, but, at the time of trial, both parties were listed on the mortgage.

The plaintiff commenced this action for a divorce and ancillary relief in 2011, and the Supreme Court conducted a nonjury trial as to certain issues concerning equitable distribution. As relevant here, in a decision dated October 17, 2013, the court determined that the Salem Street house had remained the plaintiff's separate property until it was sold, and that the Holbrook house was marital property. On the issue of equitable distribution, the court determined that the plaintiff was entitled to a credit insofar as proceeds from the sale of her separate property were used to purchase the Holbrook house only three months later. Accordingly, the court gave the plaintiff a separate property credit of $143,000 in the Holbrook house. A judgment was entered upon the decision, and the defendant appeals, contending primarily that the court erred insofar as it awarded the plaintiff that separate property credit.

Marital property must be equitably distributed (see Domestic Relations Law § 236[B][5][c]), but equitable distribution is not necessarily equal distribution. As this Court has explained, "not all marital property must be distributed in the same manner or in the same percentage, as different equities or different credits may pertain to different assets" (Midy v Midy, [*2]45 AD3d 543, 545; see Arvantides v Arvantides, 64 NY2d 1033, 1034). Here, the Supreme Court correctly determined on the evidence before it that the Salem Street house was the plaintiff's separate property (see Robinson v Robinson, 133 AD3d 1185, 1187; Ceravolo v DeSantis, 125 AD3d 113, 115-116). Moreover, the court did not improvidently exercise its discretion in concluding that the plaintiff was entitled to a separate property credit for any separate property funds she used in the purchase of the Holbrook house. The evidence supports the court's determination that the plaintiff used $143,000 in separate property funds, which derived from the sale of the Salem Street house, in the purchase of the Holbrook house (see Midy v Midy, 45 AD3d at 544-545; Wade v Steinfeld, 15 AD3d 390, 391)."

Just as a side note, this divorce was commenced in 2011 and litigation continued for about 5 years until this decision was issued.

Wednesday, May 18, 2016


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

For more information, see


Tuesday, May 17, 2016


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.

Monday, May 16, 2016


DRL 236 Part B (5-a) (e) (3) provides:

"Where either or both parties are unrepresented, the court shall not enter a temporary maintenance order unless the unrepresented party or parties have been informed of the presumptive award of temporary maintenance"

Thus by Administrative Order of January 14, 2016 (http://www.nycourts.gov/divorce/pdfs/AO0004_16.pdf), a new form was prescribed for inclusion in the Uncontested Form Packet:

Notice of Guideline Maintenance (https://www.nycourts.gov/divorce/forms_instructions/NoticeGuidelineMaintenance.pdf)

Because there are times when one does not know if the other side is represented or not or whether appearing pro se shall be deemed to be unrepresented, it may be a better practice to include this notice in the Summons along with the automatic orders (DRL 236, Part B (2)) and Health Care notice (DRL 255 (1)).

Friday, May 13, 2016


Here in New York, as in most other jurisdictions, statutes of limitations are laws which say how long, after certain events, a case may be started based on those events. The New York Courts website has a chart listing many common causes of actions, both civil and criminal, with the approporaite statutory cite.

See http://www.nycourts.gov/courthelp/goingtocourt/SOLchart.shtml

Thursday, May 12, 2016


Matter of Solomon v Mellion 2016 NY Slip Op 01190 Decided on February 17, 2016 Appellate Division, Second Department:

"Here, considering the totality of the circumstances, including the express wishes of the child, who was 15 years old when the Family Court conducted an in camera interview of him, there is a sound and substantial basis in the record for the determination that it was in the child's best interests to grant the father's petition to modify the provisions of a judgment of divorce so as to award him sole custody of the child (see Matter of McVey v Barnett, 107 AD3d 808, 809)."

The Family Court order was December 2014. It may be assumed that by the time this decision was issued, the child was anywhere from 17-18.

Wednesday, May 11, 2016


I would imagine in this case, without knowing the facts as they are not set forth in the opinion, that it was difficult for the father to have meaningful supervised visitation with the children when the supervisor was his ex-wife's mother.

Matter of Kraft v Orsini 2016 NY Slip Op 01183 Decided on February 17, 2016 Appellate Division, Second Department (emphasis supplied):


Here, the Family Court erred in finding that there had been a change in circumstances warranting an award of unsupervised visitation to the father. Two of the experts who evaluated the father concluded that supervised visitation was warranted. Although the father's therapist recommended unsupervised visitation, that recommendation came with several caveats. She recommended that an "objective, nonfamily person" should talk to the children about their states of mind as "a safety precaution." She also advised against any overnight unsupervised visitation. Given the totality of the circumstances, the award of unsupervised visitation was inappropriate (see Matter of Bullinger v Costa, 63 AD3d 735). In the future, the father's visitation should not be supervised by the maternal grandmother, who supervised such visitation in the past, but rather by a person agreed to by the parties or, in the event they cannot agree, by a person selected by the father with the approval of the attorney for the children."

Tuesday, May 10, 2016


Michael J.D. v Carolina E.P. 2016 NY Slip Op 01252 Decided on February 18, 2016 Appellate Division, First Department:

" Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate, the court may award educational expenses. The non-custodial parent shall pay educational expenses, as awarded, in a manner determined by the court, including direct payment to the educational provider.

While a court may direct a parent to contribute to a child's educational expenses, "even in the absence of special circumstances or a voluntary agreement of the parties" (Pittman, 127 AD3d at 757), in order to do so, the court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice (see Family Court Act § 413[1][c][7]; Domestic Relations Law § 240[1-b][f]; Manno v Manno, 196 AD2d 488, 491 [2d Dept 1993]). The trial court articulated no reason for ordering plaintiff to pay for private school, other than the informal discussions the parties had about their son's future while they briefly lived together, when the child was only a few months old. At the time of trial, the child was not yet school age, he was not enrolled in any regular educational program, and there is no record that the child has any special needs or gifts (see Friedman v Friedman, 216 AD2d 204 [1st Dept 1995] [religious grade school appropriate given religion's integral part of the family's lifestyle]; Matter of Prystay v Avildsen, 251 AD2d 87 [1st Dept 1998] [child had attended private school for five years and had only one year left]). The circumstances of these parties and their son does not present a justifiable basis to impose a private school obligation on plaintiff. Plaintiff's income, as it was determined by the trial court even after drawing adverse inferences to his claims, was not at a sufficiently high level that it alone provided a sufficient [*5]basis for requiring private school for the child.

The trial court also ordered that, commencing with the 2012-13 academic year until the child's graduation from high school, plaintiff is responsible for paying 100% of the child's extracurricular activities including after school, weekend and summer activities. No benchmark was provided on what these activities could include and there was no cap on how much they could cost. These expenses are not expressly enumerated add on expenses in the CSSA and the trial court failed to articulate why a deviation requiring their separate payment was appropriate in this case. While under certain circumstances these expenses may appropriately be considered an add on for child care (Domestic Relations Law § 240[1-b][c][4]; Family Court Act § 413[1][c][4]); Sieratzki v Sieratzki, 8 AD3d 552, 554 [1st Dept 2004]), here no recovery of child care costs was requested or warranted because defendant does not work or go to school and it is not her intention to do so. Consequently, in order for these additional expenses to be properly added to basic child support, the trial court needed to articulate the basis for the deviation. Only by articulating the factors relied on in deciding to deviate from the presumptively correct basic child support can a trial court justify its decision to deviate therefrom because the exercise of judicial discretion in child support awards is narrowly circumscribed (Rubin, 107 AD3d 60, 72; see also Bohnsack v Bohnsack, 185 AD2d 533, 535 [3d Dept 1992]). Given the parties' brief time living as a family, it cannot be said that a standard of living was established for the child. The trial court primarily based its award on the conclusion that had the family remained intact, the child, as the son of a lawyer, would have probably enjoyed a certain standard of living. The consideration of this solitary factor, coupled with the court's own determination of the parties' financial resources, does not, however, support the addition of unlimited add on extracurricular expenses that deviate from basic child support."

Monday, May 9, 2016


The Suffolk Pro Bono Project,  the Suffolk County Bar Association and the Suffolk Pro Bono Foundation are sponsoring an event for Suffolk veterans and their dependent family members.

Volunteers for Vets will be held on Tuesday May 10, 2016 at the Suffolk County Bar Association 560 Wheeler Rd, Hauppauge from 1:00 to 4:00 P.M. Pro Bono attorneys will be available to discuss various issues such as: Foreclosure, eviction, debt and bankruptcy, health care, benefits, family law, criminal matters, traffic tickets, warrant recalls, and VA benefits. Please note that this will be a short, confidential meeting giving veterans and their dependent family members the opportunity to discuss their legal issue with a pro bono attorney. If ongoing representation or assistance is necessary, an appropriate referral will be facilitated.

Registration is required in advance by calling 631 234-5511 so that we can be sure to accommodate those in need of legal assistance. 

Friday, May 6, 2016


This is the age of ratings. Of the two largest I know, I rank very high:

Avvo:  https://www.avvo.com/attorneys/11756-ny-jon-probstein-808277.html

Martindale-Hubbell: http://www.martindale.com/Jon-Michael-Probstein/144480-lawyer.htm

But what do these really mean? In December 2015, the New York State Bar Association Committee on Attorney Professionalism issued a Report on Attorney Ratings to address certain aspects of the use of attorney - ratings services. The purpose of this Report was to highlight various relevant considerations that may be applicable to the use of ratings and set forth some suggested guidelines concerning their use and sought to identify important considerations and recommended practices regarding the use of attorney - ratings services by attorneys and by potential and existing clients.

To read the full report, see https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=60562

Thursday, May 5, 2016


Matter of Waite v Clancy 2016 NY Slip Op 00793 Decided on February 5, 2016 Appellate Division, Fourth Department:

"Memorandum: Respondent mother appeals from an order that awarded petitioner father sole custody and placement of the parties' child and suspended visitation between the mother and the child "until she engages successfully in mental health and drug and alcohol evaluations, and . . . recommended treatment, and upon successful completion of [the] same is reserved the right to file a [m]odification." Contrary to the mother's contention, Family Court's determination to suspend her visitation is supported by a sound and substantial basis in the record inasmuch as the evidence presented at the hearing established that such visitation was detrimental to the child's welfare (see Matter of Christina F.F. v Stephen T.C., 48 AD3d 1112, 1113, lv denied 10 NY3d 710). We agree with the mother, however, that the court lacked authority to condition the resumption of visitation upon her completion of mental health and drug and alcohol evaluations and compliance with all treatment recommendations (see Matter of Hameed v Alatawaneh, 19 AD3d 1135, 1136; Matter of Davenport v Ouweleen, 5 AD3d 1079, 1079-1080). We therefore modify the order accordingly. Finally, as we similarly concluded in the mother's related appeal (Matter of VanSkiver v Clancy, 128 AD3d 1408, 1408-1409), the court did not abuse its discretion in denying her attorney's request for an adjournment and in holding the hearing in
her absence."

Note that although the Appellate Division held that "the court lacked authority to condition the resumption of visitation upon her completion of mental health and drug and alcohol evaluations and compliance with all treatment recommendations", nevertheless, the suspension of visitation was upheld. Thus, the mother will face this issue - if she wishes to resume visitation by petition in the future and does not engage in any treatment for her mental health and substance abuse issues, will the court still hold that visitation is detrimental to the child's welfare because there has been no change in circumstances?

Wednesday, May 4, 2016


Last night, Jon was awarded the Thomas Maligno Pro Bono Attorney of the Year Awardfrom the Nassau County Bar Association.

From an earlier press release:

"The Nassau County Bar Association, the source for legal information and education on Long Island, is marking 50 years since the landmark Miranda Rights legislation was enacted, as well as awarding three outstanding advocates for service to the legal profession and the community, at the annual Law Day Awards Dinner on May 3, 5:30-8 p.m. at NCBA in Mineola.
Keynote speakers Nassau County District Attorney Madeleine Singas and Honorable Stephen P. Scaring, Scaring & Carman, Garden City, together will share their experiences of life before Miranda, the procedural protections afforded to all of us by the U.S. Constitution, how these rights are safeguarded by the courts, and why the preservation of these principles is essential to our liberty.
Each year on Law Day, NCBA recognizes three outstanding examples of service.  The Liberty Bell Award will be presented to Robert Bernstein, a teacher who has served as a Mock Trial Coach for his high school team since 1997 and volunteers as a court advocate for The Safe Center LI. 
Jonathan Press, a long-time dedicated volunteer attorney at NCBA's Mortgage Foreclosure Legal Consultation Clinics and mandated court settlement conferences, will be honored with The Thomas Maligno Pro Bono Attorney of the Year. Finally, the Peter T. Affatato Court Employees of the Year Award will be presented to Lisa Porteus, Chief Court Reporter for Supreme Court in Mineola.
Fifty years ago, the landmark U.S. Supreme Court case, Miranda v. Arizona  resulted in the Miranda Rights statement that must be made by police to inform a person in police custody or under interrogation of his Fifth Amendment right against compelled self-incrimination. The Miranda warning has become one of the most recognizable phrases in law enforcement, repeated countless times in films and on television."

Tuesday, May 3, 2016


In limited circumstances, yes. Weidner v. Weidner, 2016 NY Slip Op 1102 - NY: Appellate Div., 4th Dept. 2016:

".....we further agree with defendant that she is entitled to recoupment of her child support overpayments, and we remit the matter to Supreme Court to determine the amount of recoupment that plaintiff owes to defendant. Although there is a strong public policy against recoupment of child support overpayments (see Johnson v Chapin, 12 NY3d 461, 466, rearg denied 13 NY3d 888), we conclude that recoupment is appropriate under the limited circumstances of this case. Here, the record establishes that defendant's income was below the poverty level, and that plaintiff held a high-income job. Moreover, requiring plaintiff to repay the child support erroneously ordered by the court will not detract from plaintiff fulfilling the needs of the children while they are in his care and, indeed, will restore needed funds to defendant that will assist her in maintaining a suitable household for the children and in meeting their reasonable needs during visitation (cf. Smith v Smith, 116 AD3d 1139, 1143; see generally People ex rel. Breitstein v Aaronson, 3 AD3d 588, 589; Tuchrello v Tuchrello, 233 AD2d 917, 918)."

Monday, May 2, 2016



 Straus v. Strauss, 2016 NY Slip Op 634 - NY: Appellate Div., 1st Dept. 2016:

The motion court properly denied plaintiff's motion to exclude the forensic report. Frye v United States (293 F 1013 [DC Cir 1923]) does not require that a forensic report cite specific professional literature in support of the report's analyses and opinions. As the motion court noted, plaintiff could cross-examine the forensic evaluator regarding the lack of citations, and such an omission is relevant to the weight to be accorded to the evaluator's opinion, not to its admissibility (Zito v Zabarsky, 28 AD3d 42, 46 [2d Dept 2006]).

The forensic report does not rely to a significant extent on hearsay statements. A review of the report reveals that the primary source of the report's conclusions are the forensic evaluator's firsthand interviews with the parties. In any event, defendant intends to call as witnesses at any future custody hearing anyone to whom the forensic evaluator spoke; thus, the declarants will be subject to cross-examination, rendering admissible any opinion evidence based on their statements (see Wagman v Bradshaw, 292 AD2d 84, 86-87 [2d Dept 2002]). To the extent that any hearsay declarants are not cross-examined, the motion court acknowledged that those portions of the report containing inadmissible hearsay should be stricken or not relied upon (see Lubit v Lubit, 65 AD3d 954, 956 [1st Dept 2009], lv denied 13 NY3d 716 [2010], cert denied 560 US 940 [2010]).

Although the forensic report briefly refers to the parties' initial negotiations regarding custody, those negotiations do not form the basis for any conclusions regarding parental fitness or custody. Nor did the forensic evaluator contravene a prior order of the motion court, which directed him to refrain from making an ultimate recommendation regarding custody. The report states that preschool-age children "usually tolerate well" a 65/35 custody split, and older children a range between 65/35 and 50/50, but it made no specific recommendation in this case. Nor did the report's findings that defendant was an adequate parent, despite plaintiff's safety concerns, usurp the motion court's fact-findings in prior orders. In a prior order, the motion court cited certain safety concerns for the child while in defendant's care, but the court noted that those concerns dissipated after it issued its order. The motion court also noted that it was free to reject opinions in the report (Zelnik v Zelnik, 196 AD2d 700, 700 [1st Dept 1993]).

There is a sound and substantial evidentiary basis for the motion court's modification of the visitation order (see Matter of Frank M. v Donna W., 44 AD3d 495, 495-496 [1st Dept 2007]; see also Eschbach v Eschbach, 56 NY2d 167, 173 [1982]). Among other things, defendant sufficiently explained, without contradiction, why he missed certain visits with the child, and his failure to explain all of the missed visits did not warrant denial of his cross motion, particularly where the attorney for the child supported the motion and noted that the child enjoyed spending time with his father. Plaintiff never requested a hearing before the motion court, and, in any event, a hearing was not necessary (see Skidelsky v Skidelsky, 279 AD2d 356, 356 [1st Dept 2001]).