NEW ATTORNEY DISCIPLINE RULES TAKE EFFECT TOMORROW

The new rules are listed here (http://www.courts.state.ny.us/ad3/COPS/22_NYCRR_Part_1240.pdf) and I just note the following which recognizes the role of alcohol and substance abuse:

"§ 1240.11 Diversion to a Monitoring Program

(a) When in defense or as a mitigating factor in an investigation or formal disciplinary charges, the respondent raises a claim of impairment based on alcohol or substance abuse, or other mental or physical health issues, the Court, upon application of any person or on its own motion, may stay the investigation or proceeding and direct the respondent to complete an appropriate treatment and monitoring program approved by the Court. In making such a determination, the Court shall consider:

(1) the nature of the alleged misconduct;

(2) whether the alleged misconduct occurred during a time period when the respondent suffered from the claimed impairment; and

(3) whether diverting the respondent to a monitoring program is in the public interest."

GRANDPARENT WINS CUSTODY OVER PARENT

 
Roberta P. v Vanessa J.P. 2016 NY Slip Op 04356 Decided on June 7, 2016 Appellate Division, First Department:

"Family Court properly found that the grandmother petitioner demonstrated the requisite extraordinary circumstances to seek custody of the child (see Matter of Suarez v Williams, 26 NY3d 440, 448 [2015]; Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976]; Domestic Relations Law (DRL) § 72[2][a]). Contrary to the father's argument, the evidence supports the determination that petitioner, not the parents, cared for the child on a daily basis for a prolonged period of time of over 24 months, and that the child resided in her home during that period, and for almost all of his life. When the mother became unable by reason of mental illness to care for the child, the grandmother sought legal custody. By contrast, the father has not cared for the child, on a daily basis, for any length of time, has had sporadic contact, and has not provided financial support for the child's care (see Matter of Jerrina P. [June H.-Shondell N.P.], 126 AD3d 980 [2d Dept 2015]; Matter of Carton v Grimm, 51 AD3d 1111, 1113 [3d Dept 2008]).

The father did not challenge petitioner's standing to seek custody as a grandmother under DRL § 72, or raise any constitutional arguments at trial, and those arguments are unpreserved for appellate review (see Matter of Gracie C. v Nelson C., 118 AD3d 417 [1st Dept 2014]; Matter of Rayshawn F., 36 AD3d 429, 430 [1st Dept 2007]). With respect to petitioner's standing to seek custody, since she adopted the mother, she is the child's grandmother for purposes of DRL § 72 (see DRL § 117 [1][c]; Matter of Emanuel S. v Joseph E., 78 NY2d 178, 180 [1991]; cf. Matter of Chifrine v Bekker, 97 AD3d 574, 575 [2d Dept 2012], lv denied 19 NY3d 814 [2012]).

The father's due process arguments are unavailing, as the court made clear that the grant of temporary custody to petitioner was merely to preserve the status quo, confirming that petitioner, and not the father, was, at the time of the petition, raising the child. The court properly exercised its discretion in adjourning the proceeding to allow for the forensic evaluation to take place (see Matter of James Joseph M. v Rosana R., 32 AD3d 725, 727 [1st Dept 2006], lv denied 7 NY3d 717 [2006]), and the father did not object (see Matter of Skyla Lanie B. [Jonathan Miranda B.], 116 AD3d 589, 590 [1st Dept 2014]).

There is no basis to disturb Family Court's determination that it is in the child's best interests to remain with petitioner (see Melissa C.D. v Rene I.D., 117 AD3d 407, 407-408 [1st [*2]Dept 2014]). Family Court properly considered all relevant factors in making that determination, and the evidence that petitioner had provided the child with a loving and stable home, as well as that the child wished to remain with her, supported the determination. On the other hand, the father had never provided for the child's care on a daily basis, and intended to uproot the child from his home, to move across the country, to be cared for by the father's fiancé, whom the child never met, without regard to the child's well-being or emotional needs (see Matter of Michaellica Lee W., 106 AD3d 639, 640 [1st Dept 2013]). Finally, the father's arguments regarding the court's visitation provision are unfounded. Since no home study was provided to the court concerning the father's new home in California, visitation was rationally restricted to New York City. To the extent the father refers to new information regarding his current marital status, living arrangements and employment, which was not before the trial court, such information is not part of the record on this appeal (see Mendoza v Plaza Homes, LLC, 55 AD3d 692 [2d Dept 2008]), but may be raised in a modification petition."

NEW YORK HAS NEW GIFT CARD LAW

The bill (S.4771E / A.7610E), increases the minimum time before cards are charged a user fee, places additional restrictions on those fees, and expands the expiration dates of gift cards in order to protect consumers.

Under the new law:

1. The time period in which fees can be charged to unused gift card balances has been increased from 13 to 25 months and any monthly service fees that are applied after this time must be waived if the consumer uses the gift card within three years of the issue date.

2. The gift card's terms and conditions must describe exactly what the procedure is to replace a missing card.

3. No gift card may have an expiration date of earlier than five years from the date of issuance.

The bill was signed on September 26 and takes effect within 90 days thereafter. The amendment is to General Business Law Section 396-i

TEXT OF NEW YORK PET BURIAL LAW

The headlines read " YOU CAN NOW BE BURIED WITH YOUR PET". But only in limited circumstances. S2582/A2647 was signed yesterday by the Governor and provides:

 "Section  1.  Section  1502  of  the  not-for-profit corporation law is
amended by adding a new paragraph (q) to read as follows:

 (Q) THE TERM "PET CREMATED REMAINS" MEANS ASHES AND/OR  OTHER  RESIDUE
RECOVERED  AFTER THE COMPLETION OF CREMATION OF ANY DOMESTIC ANIMAL THAT
HAS BEEN ADAPTED OR TAMED TO LIVE IN INTIMATE  ASSOCIATION  WITH  PEOPLE
WHERE  SUCH  CREMATION  HAS  OCCURRED AT A PET CREMATORIUM AS DEFINED IN
SECTION SEVEN HUNDRED FIFTY-A OF THE GENERAL BUSINESS LAW.

 S 2. Section 1510 of the not-for-profit corporation law is amended  by
adding a new paragraph (n) to read as follows:

 (N)  INTERMENT  OF PET CREMATED REMAINS. THE INTERMENT OF PET CREMATED
REMAINS IN A CEMETERY CORPORATION SHALL BE AVAILABLE TO A LOT OWNER ONLY
IN THOSE CIRCUMSTANCES WHERE THE INTERMENT IS INCIDENTAL TO  THE  BURIAL
OF  HUMAN REMAINS AND WHERE AUTHORIZATION HAS BEEN PROVIDED IN A WRITTEN
STATEMENT FROM THE CEMETERY CORPORATION.  THE CEMETERY CORPORATION SHALL
PROVIDE A LIST OF APPROVED CHARGES FOR THE INTERMENT  OF  SUCH  REMAINS.
ALL  PAYMENTS  RECEIVED FOR INTERMENT OF SUCH REMAINS SHALL BE DEPOSITED
IN THE CEMETERY CORPORATION'S PERMANENT MAINTENANCE FUND.  PET  CREMATED
REMAINS MUST BE DISPOSED OF BY PLACING THEM IN A GRAVE, CRYPT, OR NICHE.
NOTHING  IN  THIS SECTION SHALL OBLIGATE A CEMETERY CORPORATION TO ALLOW
INTERMENT OF SUCH CREMATED PET REMAINS WHERE PRIOR APPROVAL AT THE  TIME
OF  SALE  OR IN ADVANCE OF NEED HAS NOT BEEN RECEIVED. THE PROVISIONS OF
THIS SECTION SHALL NOT APPLY TO AN INCORPORATED OR UNINCORPORATED  CEME-
TERY  OPERATED, SUPERVISED OR CONTROLLED BY A RELIGIOUS CORPORATION OR A
LOT, PLOT OR PART THEREOF WHOSE RECORD OWNER IS AN INCORPORATED OR UNIN-
CORPORATED RELIGIOUS ASSOCIATION OR SOCIETY.

 S 3. This act shall take effect immediately."

The summary explains it better:

"Section 1 of the bill amends Section 1502 of Article 15 of the Not-for-Profit Corporation Law to add a new definition of pet cremated remains. 

Section 2 of the bill amends Section 1510 of Article 15 of the Not-for-Profit Corporation Law to add a new subdivision to provide the option for the interment of pet cremated remains in a cemetery corporation only in those instances where the interment is incidental to the burial of human remains and where authorization has been provided in a written statement from the cemetery corporation. 

The provisions of this section make it clear that this bill does not apply to an incorporated or unincorporated cemetery operated, supervised or controlled by a religious corporation or a lot, plot or part thereof whose record owner is an incorporated or unincorporated religious association or society. Under the provisions of this section, a cemetery is not obligated to allow for such interments, however, the legislation provides a regulated option for such disposition. 

Section 3 of the bill states that this legislation shall take effect immediately."

POWER OF ATTORNEY ISSUES

In this case, the names mentioned are an attorney who had himself named as power of attorney and an attorney who prepared the papers. This case is interesting as it describes some potential ethical issues when counsel is asked to prepare these documents.

Matter of Mitchell 2016 NY Slip Op 50853(U) Decided on June 3, 2016 Supreme Court, Kings County Pesce, J.:

"Respondent argues in his post trial memorandum, that this Court should find that the $122,000 in gifts to Mr. Shadoian were proper, because: 1) it is movant's burden to show that the IP was suffering from mental infirmity at the time the gifts were made and that movant had offered no proof as to the IP's debilitated mental status on the specific dates the checks were issued ( See Lee v. Bank of NY, 294 AD2d [2d Dept 2002]; Gala v. Magarinos, 245 AD2d [2d Dept 1997]) and 2) despite the fact that the gifts were made to a fiduciary, there is nothing in the record to indicate that the gifts resulted form undue influence or that they were based on anything other than gratitude, affection and esteem. (See Matter of Hedges, 100 AD2d 586, [2d Dept 1984]).

Movant concedes that, typically, the burden of proving undue influence rests upon the party alleging it. (See Allen v. La Vand , 213 NY 322, 323 [1915]). Movant, however, advances [*6]the convincing and well established argument that if the donee of a transaction has a fiduciary or confidential relationship with the donor, the burden of proof shifts to the party receiving the benefit to prove by clear and convincing evidence that the transaction was fair and free of undue influence. (See Matter of Connelly, 193 AD2d 602 [2d Dept 1993]). Movant cites that this axiom was just reiterated by the Court of Appeals in Matter of Aoki, 27 NY3d 32 (2016) , where the court shifted the burden to the grantee that held a fiduciary relationship with the grantor.

However, an exception to that general rule provides that where a fiduciary relationship exists between the parties, the law of constructive fraud will operate to shift the burden to the party seeking to uphold the transaction to demonstrate the absence of fraud (see Matter of Aoki, supra, 39 citing Matter of Greiff, 92 NY2d 341, 345 [1998]).

It is uncontroverted that at the times of the gifts, to wit: January 23, 2012, April 24, 2012, June 15, 2012 and September 19, 2012, Mr. Shadoian was in two fiduciary relationships with the IP. He was the IP's attorney-in-fact and her health care proxy, and therefore it is Mr. Shadoian's obligation to prove that the IP freely and voluntarily gifted $122,000.00 to him. Under New York law, it is Mr. Shadoian's burden to prove that the IP made $122,000.00 of cash gifts to him knowingly and voluntarily, without the taint of undue influence.

To prove that the IP freely and knowingly made these gifts, Mr. Shadoian called Mr. Gagliardi to testify. Mr. Gagliardi's testimony did nothing to prove that the gifts were voluntary. He spoke to the IP briefly over the phone and met her one time for 30 minutes while the IP was in the company of Mr. Shadoian. Additionally, when Mr. Gagliardi telephoned the IP and she answered the phone and the two spoke, we do not know if Mr. Shadoian was present and influencing the IP. Mr. Gagliardi's testimony was too threadbare to carry much weight. He spent so little time with the IP that his impression cannot be given much weight, especially in light of the fact that Mr. Gagliardi was never informed that APS had intervened in the IP's life, that the IP had been prescribed Alzheimer medication, that she had been hospitalized on several occasions due to her own and Mr. Shadoian's neglect.

Moreover, Mr. Gagliardi failed to make even elementary inquiries as to the actual size of the IP's estate, her medical condition, her social and familial history. Contrary to usual practice, he allowed an unrelated person, designated as beneficiary, to orchestrate the completion and execution of the Will. As to the validity of the Will, it will have to be decided on another day in another court, if the Will ever arrives back in the United States from its sojourn in Iran.Also as Mr. Shadoian's case, two letters, purportedly from medical personnel, placed into evidence by Mr. Shadoian, stating the IP was fine are likewise given little to no weight. These providers were unaware of IP's hospitalizations or history with APS, and their statements are devoid of any medical basis for their declarations."

CUSTODY, VISITATION, RELOCATION - WHEN ONE PARENT HAS A DRUG ISSUE

 Matter of Gonzalez v Ross 2016 NY Slip Op 04413 Decided on June 8, 2016 Appellate Division, Second Department:

"
.........

The mother and the father are the parents of two children. In March 2013, following a breakdown of the parties' relationship as a result of the father's admitted drug use and his threatening behavior, the mother petitioned for sole custody of the parties' children and obtained a temporary order of protection against the father. The father cross-petitioned for custody or visitation. Prior to the commencement of a hearing on the parties' petitions, the mother relocated to Florida with the children and thereafter moved for temporary sole custody of the children and permission to relocate to Florida. The Family Court denied the mother's motion, but the court subsequently granted the motion of the attorney for the children to stay so enforcement of much of its order as required the mother to return the children to New York.

During the hearing, the attorney for the children moved to suspend the father's supervised visitation with the children based upon his erratic in-court behavior during the mother's testimony. The Family Court granted the motion, suspending all visitation between the father and the children until the father submitted to random drug and alcohol screens, tested negative, and underwent a comprehensive mental health evaluation. Following the conclusion of the hearing, the Family Court granted the mother's petition for sole custody of the children and her motion for permission to relocate with them to Florida. As relevant here, the court denied that branch of the father's cross petition which was for visitation with the children and directed him to submit to random drug and alcohol screens, test negative, and undergo a comprehensive mental health evaluation as conditions of future visitation. The father appeals.

The Family Court's determination, made after a hearing, to grant the mother permission to relocate to Florida with the parties' children is supported by a sound and substantial basis in the record (see Matter of Tropea v Tropea, 87 NY2d 727, 740; Matter of Bathjer v McCrae, 136 AD3d 688; Matter of Davis v Ogden, 109 AD3d 539; Matter of Eddington v McCabe, 98 AD3d 613).

However, the Family Court's determination to deny the father visitation with the parties' children is not supported by a sound and substantial basis in the record. " [V]isitation is a joint right of the noncustodial parent and of the child'" (Zafran v Zafran, 28 AD3d 753, 755, quoting Weiss v Weiss, 52 NY2d 170, 175). "As a general rule, some form of visitation by the noncustodial parent is always appropriate, absent exceptional circumstances, such as those in which it would be inimical to the welfare of the child or where a parent in some manner has forfeited his or her right to such access'" (Zafran v Zafran, 28 AD3d at 755, quoting Weiss v Weiss, 52 NY2d at 175; see Matter of Rambali v Rambali, 102 AD3d 797, 799; Matter of Giannoulakis v Kounalis, 97 AD3d 748; Matter of Balgley v Cohen, 73 AD3d 1038).

Here, the Family Court improperly based its determination to deny the father parental access upon the father's in-court demeanor (see Janousek v Janousek, 108 AD2d 782, 784-785), including his inability "to control his temper in open Court" and an instance in which he called the mother "a liar" as she testified. However, no correlation was made between the father's in-court demeanor and any detrimental effect on the children (see id. at 784-785). According to the supervised visitation reports prepared in connection with the father's therapeutic supervised visitation, the children appeared happy to see the father during each visit and were at ease with him throughout their time together. While the father did make some inappropriate comments to the children during the first visit regarding his desire for the family to remain together, the most recent report indicated that the father was "largely appropriate" with the children. Under the circumstances, the Family Court should have awarded the father supervised visitation with the children.

The Family Court also erred in directing the father to submit to random drug and alcohol screens, test negative, and undergo a comprehensive mental health evaluation as conditions of future visitation. "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" (Lajqi v Lajqi, 130 AD3d 687, 688; see Family Ct Act § 251[a]). A court may also "direct a party to submit to counseling or treatment as a component of a visitation or custody order" (Lajqi v Lajqi, 130 AD3d at 688). A court may not, however, " order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights'" (Welch v Taylor, 115 AD3d 754, 756, quoting Matter of Smith v Dawn F.B., 88 AD3d 729, 730; see Matter of Torres v Ojeda, 108 AD3d 570, 571; Matter of Lane v Lane, 68 AD3d 995, 995; Zafran v Zafran, 28 AD3d at 756). Thus, the court improperly directed the father to submit to random drug and alcohol screens, test negative, and undergo a comprehensive mental health evaluation as conditions of future visitation."

WE WILL BE AN EXHIBITOR

ADVANCE FEES FOR LOAN MODIFICATION SERVICES

"Enacted in 2008, the Foreclosure Prevention and Responsible Lending Act is a comprehensive law that addresses various issues relating to the foreclosure crisis, including predatory subprime lending, the foreclosure process, foreclosure prevention, mortgage fraud, and loan modification scams.  The law prohibits the upfront payment of fees by consumers to distressed property consultants.  In December 2009, parts of the law were amended to limit exemptions from the scope of the law.  Licensed attorneys who provide distressed property consulting services in the course of their legal practice are still exempt, but licensed attorneys who provide those services outside of their legal practice are not." 

See http://www.preventloanscams.org/states/new-york/new-york-law-prohibits-advance-fees-for-loan-modification-services

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

A cause of action often pleaded but the elements were recently explained in CHANKO v. American Broadcasting Cos., Inc., 2016 NY Slip Op 2478 - NY: Court of Appeals 2016:

"................

This Court has enumerated four elements of a cause of action for intentional infliction of emotional distress: "(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress" (Howell v New York Post Co., 81 NY2d 115, 121 [1993]). "`Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'" (Howell, 81 NY2d at 122, quoting Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983] [internal quotation marks and citation omitted]). Here, the complaint's fifth cause of action addresses each element above and alleges that the Hospital and Schubl allowed ABC to broadcast and disseminate the footage of the final moments of decedent's life, without the knowledge or consent of decedent or plaintiffs. The complaint alleges that plaintiffs watched the episode and were shocked and upset, that "[d]efendants acted intentionally, recklessly, willfully, maliciously and deliberately," and that it was foreseeable that plaintiffs would be caused to suffer emotional distress. Alternatively, the complaint alleges that "defendants acted with reckless disregard for the probability that they would cause plaintiffs to suffer emotional distress," and that defendants knew or should have known that emotional distress was a likely result of their actions. The complaint further alleges that plaintiffs experienced emotional distress due to defendants' conduct, and that "[d]efendants' conduct was extreme and outrageous, beyond all possible bounds of decency, utterly intolerable in a civilized community, and without privilege."

Although these allegations facially address all of the required elements, they are not sufficient to support this cause of action because they do not rise to the level necessary to satisfy the outrageousness element — the element most susceptible to a determination as a matter of law — which is designed to filter out petty complaints and assure that the emotional distress is genuine (see Howell, 81 NY2d at 121). Noting that "the requirements . . . are rigorous, and difficult to satisfy," we have commented that, "of the intentional infliction of emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous" (Howell, 81 NY2d at 122 [internal quotation marks and citation omitted] [emphasis added]).

The conduct at issue here for purposes of the fifth cause of action — the broadcasting of a recording of a patient's last moments of life without consent — would likely be considered reprehensible by most people, and we do not condone it. Nevertheless, it was not so extreme and outrageous as to satisfy our exceedingly high legal standard^[2]. The footage aired by ABC was edited so that it did not include decedent's name, his image was blurred, and the episode included less than three minutes devoted to decedent and his circumstances. We cannot conclude that defendants' conduct in allowing the broadcasting of that brief, edited segment is more outrageous than other conduct that this Court and the Appellate Division Departments have determined did not rise to the level required to establish "extreme and outrageous conduct" sufficient to state a cause of action for intentional infliction of emotional distress. For example, we did not deem a newspaper's conduct sufficiently outrageous when it published a picture of a person in a psychiatric facility — thereby informing the world that the photographed person was a patient at such a facility — even though the residents were photographed by someone trespassing on facility grounds and the facility had expressly requested that the newspaper not publish pictures of residents (see Howell, 81 NY2d at 118). Similarly, the conduct of a television station has been deemed insufficiently outrageous when the station displayed recognizable images of rape victims after repeatedly assuring them that they would not be identifiable (see Doe v American Broadcasting Cos., 152 AD2d 482, 483 [1st Dept 1989], appeal dismissed 74 NY2d 945 [1989]).

We conclude that defendants' conduct here, while offensive, was not so atrocious and utterly intolerable as to support a cause of action in the context of this tort (see Marmelstein v Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, 11 NY3d 15, 22-23 [2008]; Freihofer v Hearst Corp., 65 NY2d 135, 143-144 [1985])^[3] . Hence, there is no need to address whether the newsworthiness privilege is applicable.

.....


[2] We note that, after viewing the broadcast, one of decedent's sons (who is a physician) submitted an affidavit commenting on, among other things, what he perceived as highly inappropriate conduct on Schubl's part, namely, focusing on the camera and giving an interview in the emergency room, instead of concentrating on providing lifesaving medical services to decedent. However, plaintiffs have never relied — and do not now rely — on such conduct to supply a basis for their claim for intentional infliction of emotional distress. We, therefore, have no occasion at this time to express an opinion as to whether allegations of that nature would be sufficient to state a cause of action.
[3] Unlike plaintiffs' fourth cause of action, the fifth cause of action cannot rely on additional evidence that might be revealed in discovery. To state a cause of action for intentional infliction of emotional distress, plaintiffs must already be aware of the offending conduct and have suffered emotional distress as a result thereof. Thus, dismissal of this claim is appropriate at this stage of the litigation."

CHANGES IN STAR PROPERTY TAX RELIEF

There have been some changes in how certain homeowners will apply for STAR, and in how they receive their STAR benefit.

The New York State Department of Taxation and Finance recently updated their web site with instructions:

See https://www.tax.ny.gov/pit/property/star/

CHILD CUSTODY - A ROAD MAP TO A COMPLETE CHANGE IN PARENTING

MATTER OF BURNETT v. ANDREWS-DYKE, 2016 NY Slip Op 4482 - NY: Appellate Div., 3rd Dept. 2016:

"...................

Initially, the mother does not contest the portion of Family Court's order that awarded sole custody to the father. Nor does she dispute that the father established a change in circumstances, inasmuch as she admittedly violated the 2010 order by refusing to return the child to the father's custody. Rather, she argues only that the court abused its discretion by reducing the length and restricting the location of her visitation with the child. Thus, the issue before us is whether a sound basis exists in the record to support Family Court's decision that it was in the child's best interests to limit the mother's visitation (see Matter of Kadio v Volino, 126 AD3d 1253, 1254 [2015]; Matter of Miller v Fedorka, 88 AD3d 1185, 1186 [2011]; Matter of Braswell v Braswell, 80 AD3d 827, 831 [2011]).

At the fact-finding hearing, the attorney for the child presented the expert testimony and written report of Jacqueline Bashkoff, a licensed psychologist who conducted a court-ordered forensic custody evaluation of the parties. Based upon her interviews with the mother and the child, both separately and together, Bashkoff opined that, while keeping the child in Michigan, the mother had "encouraged, manipulated, and brainwashed" her in order to turn her against the father. Bashkoff also testified that, during her joint interview with the mother and the child, the mother openly discussed with the child the details of the Family Court proceeding and custody dispute, displayed an inability to set parent-child boundaries and encouraged and facilitated the child's negative statements about the father. Significantly, the mother admitted to Bashkoff that, for over a year, she had done nothing to foster a relationship between the child and the father.

As for the mother's allegations that the father abused the child, the undisputed evidence revealed that, after investigations by both Child Protective Services and the New York State Police, all of the mother's accusations against the father were deemed to be unfounded. When Bashkoff interviewed the father and the child together, she described their rapport as "playful." Indeed, the child herself told Bashkoff that she did not feel that the father's actions constituted abuse, and that they were more properly characterized as annoying horseplay, which the father has since discontinued. While the child also told Bashkoff that she would prefer to live with the mother, Family Court "understandably gave very little weight to [her] ... expressed wishes" in light of the mother's alienation behavior and influence on the child's preferences (Matter of Virginia C. v Donald C., 114 AD3d 1032, 1035 [2014]; see Eschbach v Eschbach, 56 NY2d 167, 173 [1982]; Matter of Goodfriend v Devletsah-Goodfriend, 29 AD3d 1041, 1042 [2006]).

We also agree with Family Court that the record clearly shows that the mother knowingly and willfully violated the previous order of custody and acted in contempt of court by withholding the child from the father in Michigan without simultaneously filing a petition for modification explaining her reasons for not returning the child to Ulster County. Further, the expert testimony of Bashkoff supports the court's determination that visitation with the mother in another state would not be in the best interests of the child as it would permit the mother's alienation behavior to continue unchecked.

Mindful of Family Court's "wide discretion in crafting an appropriate visitation schedule" (DeLorenzo v DeLorenzo, 81 AD3d 1110, 1112 [2011], lv dismissed 16 NY3d 888 [2011]), and the deference that we accord to its factual findings and credibility determinations (see Matter of Taylor v Fry, 63 AD3d 1217, 1219 [2009]; Matter of Jones v McMore, 37 AD3d 1031, 1031-1032 [2007]), our review of the record leads us to conclude that the court had a sound and substantial basis for limiting and restricting the mother's parenting time (see Matter of Braswell v Braswell, 80 AD3d at 830-831; Matter of Scialdo v Kernan, 14 AD3d 813, 815-816 [2005])."

LAWYERS AND BAD REVIEWS, ETC.

There are many online articles, etc. and advice as to what an attorney should do when an online "bad review" is posted, whether on Yelp, Avvo, etc. Perhaps it is to take some action and perhaps it is to ignore.

Recently, the Nassau County Bar Association issued an ethics opinion on one thing an attorney cannot and should not do: "A lawyer may not disclose a former client's confidential information solely to respond to criticism of the lawyer posted on the Internet or a website by a relative of the former client or by the former client himself."

Nassau County Bar Association Opinion No. 2016-01(Inquiry No. 2016- 005)

Note: As a Part 137 Arbitrator in Nassau County, and as an attorney myself, I understand and accept that not everyone is going to like an attorney's work. And they will state that - to friends, online, etc. Paul Newman, the actor, once said: "don't believe the bad reviews...and don't believe the good ones either".

SANCTIONS FOR LAWYER RE: CONTACT WITH REPRESENTED PARTY

Suggestions or requirements? In June of last year, new legal ethics guidelines developed by the Commercial and Federal Litigation Section of the New York State Bar Association addressed new guidelines for social media practices.

As reported in the NYLJ, an attorney was sanctioned over $7000 by a federal court "by directing her law clerk to create a false identity, use that false identity" to attempt contact with a represented party and/or witness. Although not clear from the article, it appeared that the false identity may have been utilized through various forms of social media.

See http://www.newyorklawjournal.com/this-weeks-news/id=1202767300023/Judge-Sanctions-Attorney-For-Investigating-ExOfficer?mcode=1202615036097&curindex=2&slreturn=20160814063901

PROPOSED RULES ON REVERSE MORTGAGE FORECLOSURE

Last month, New York Assemblywoman Helene Weinstein (D-Brooklyn) and Senator Jeff Klein (D-Bronx/Westchester) announced the introduction of legislation (A10745/S8177). The bill will provide reverse mortgage homeowners with the consumer protections given to other homeowners currently not included in many of the protections of New York State’s residential foreclosure prevention laws such as notices to reverse mortgage borrowers 90 days in advance of filing a foreclosure action against the homeowner, including a notice containing contact information to free non-profit resources to help negotiate a resolution early in efforts to avert the filing of a foreclosure action and homeowners would also be entitled to in-person mandatory residential foreclosure settlement conferences with the foreclosing entities under court oversight.

See https://www.nysenate.gov/legislation/bills/2015/s8177/amendment/original

DIVORCING YOUR PARENTS

Remember that movie? Drew Barrymore, as Casey, decides to divorce both her parents.

Several years ago, there was an interesting article in the NY Times "When Parents Are Two Toxic To Tolerate" - see http://www.nytimes.com/2009/10/20/health/20mind.html?ref=health

It brought to mind a statutory provision on adoptions. Because if your over 18, it is possible to "divorce " your parents via DRL 111 (4):

"Where the adoptive child is over the age of eighteen years the consents specified in paragraphs (b), (c) and (d) of subdivision one of this section shall not be required, and the judge or surrogate in his discretion may direct that the consent specified in paragraph (f) of subdivision one of this section shall not be required if in his opinion the best interests of the adoptive child will be promoted by the adoption and such consent cannot for any reason be obtained."

9/11

 

My first legal job was as a summer intern for the New York State Attorney General Charitable Foundations Bureau in 1974. What a magnificent site! How proud I was to be there!

NEW YORK'S NEW ALCOHOL LAW

On Wednesday September 7, Governor Cuomo signed legislation amending New York's Alcoholic Beverage Control Law: 

 

"The law ensures that the craft beverage industry in New York continues to thrive by amending the ABC Law to include the following:

• Expand Sunday Sales: The law expands Sunday sales at restaurants and bars by changing the statewide opening hours from noon to 10 am. In addition, the agreement enables these licensees to apply for a permit, limited to twelve per year, to sell alcoholic beverages for consumption on the premises on Sundays between 8 a.m. and the new 10 a.m. opening hour in areas outside New York City.
• Eliminate Burdensome Paperwork Requirements for Craft Manufacturers: At the 2012 Wine, Beer and Spirits Summit, Governor Cuomo ended the State Liquor Authority's policy prohibiting multiple manufacturing licenses at the same location, recognizing the additional burdens this placed, for example, on a small winery that wanted to also make whiskey – including building a separate facility. The law combines craft manufacturing licenses into one application to reduce burdensome paperwork for these small businesses.
• Authorize the Sale of Wine in Growlers: Previous law required that wine sold at retail for off-premises consumption be kept in their original sealed containers, and consequently, New York wineries were prohibited from filling growlers. This prohibition unduly burdens wineries that can open a container to sell wine for on-premises consumption, or can sell wine for off-premises consumption, but cannot fill a growler to be taken away from the winery. The law enacts a common sense change to allow wineries to fill their customers’ growlers. In addition, the law authorizes wineries and farm wineries to allow customers to take home partially finished bottles of wine.
• Reduce Fees for Craft Beverage Salespeople: The ABC Law required that any salesperson or solicitor employed by a manufacturer or wholesaler must obtain a solicitor’s permit in addition to a bond. Recognizing the financial hardship imposed by these unnecessary additional fees, the law eliminates the fee for a solicitor’s permit for craft manufacturers and removes the bond requirement for all manufacturers.
• Reduced Fees for Small Wholesalers: The primary business of most alcohol beverage wholesalers is selling their products to licensed retailers, such as bars, restaurants and liquor stores. However, there are currently a number of small wholesalers in New York that sell limited number of brands they import directly to large wholesalers for distribution to retailers. Under the ABC Law, these small wholesalers were required to pay the same amount for their license as their larger counterparts, with costs ranging from $1,460 for a one year beer license to $27,280 for a three year liquor wholesale license. This financial burden often required these small businesses to make a choice between continuing to hold a New York wholesale license or to relocate their business outside of New York. The law creates a low-cost “importer’s license” that is available to wholesalers who sell only to other wholesalers. These businesses may now obtain an importer’s license at a cost of only $125 a year.
• Authorize Gift Wrapping: The law allows liquor stores to sell gift wrapping and gift bags to their customers."

WHEN STUDENTS ARE NOT LEGALLY RESPONSIBLE FOR COLLEGE LOANS

From Wiki: "A PLUS Loan is a student loan offered to parents of students enrolled at least half time, or graduate and professional students, at participating and eligible post-secondary institutions. The original, now obsolete, meaning of the acronym was "Parent Loan for Undergraduate Students"."

And see this article: http://www.forbes.com/sites/laurengensler/2016/09/07/how-some-millennials-end-up-paying-their-parents-student-loan-debt/#5252a08c449f

HOUSING AND HOMELESS PREVENTION IN NASSAU COUNTY

From the Nassau County website:

"Shelter placements and assistance with emergency housing needs are provided at the Department of Social Services (DSS) under the auspices of the Nassau County Office of Housing and Community Development (OHCD).

Eligible individuals and families can, on an emergency, temporary basis be assisted with shelter and other items of need to help them meet their emergency and move as quickly as possible to a stable self-sufficient role in the community.

Housing Programs & Requirements
If a family or individual is threatened with eviction or foreclosure, assistance may be available to save the current housing. These emergency programs are:

• Emergency Assistance to Adults
• Emergency Assistance to Families
• Emergency Safety Net Assistance

These programs were designed to meet one-time non-recurrent emergency situations.

These benefits do have specific eligibility requirements, and each case receives the attention of a worker with specialized knowledge in this area. Applications for eligibility should be made as soon as the potential problem becomes known.

Following approval of eligibility by DSS, OHCD will proceed with providing for emergency housing assistance."


See https://www.nassaucountyny.gov/1921/Housing-Homeless-Prevention

ON NEW YORK RETALIATORY EVICTION LAW

New York state law (N.Y. Real Prop. Law § 223-b) prohibits landlords from retaliating against tenants. The kinds of retaliatory acts covered include terminating a tenancy or filing an eviction lawsuit; increasing the rent; or decreasing services, such as locking the laundry room. New York state law presumes retaliation if the landlord acts in these types of negative ways within six months of the date that a tenant has exercised a legal right, such as complaining to the landlord about an unsafe heater in the apartment.

ORANGE FALLS, LLC v. Forrest, 2016 NY Slip Op 50637 - Glen Falls NY: City Court April 21, 2016:

"In 1979, the New York State Legislature enacted RPL § 223-b in an attempt to protect residential tenants from evictions by landlords in retaliation against those tenants exercising, in good faith, their rights to exercise their section 235-b remedies and various other remedies. See: Rasch, Landlord and Tenant, § 1323.5 (Supplement). Real Property Law Sec. 223(b) was designed as a vehicle to encourage tenants to report housing code violations without fear of landlord reprisal. See, 3 NY Landlord & Tenant Incl. Summary Proc. § 43:34 (Rasch 4th Ed. 1998).

Section 223-b(1)(b) states that no landlord shall serve a tenant or commence an action in retaliation for actions taken in good faith to secure or enforce rights under section 235-b or any New York State law which has as its objective the regulation of leased premises. The prohibitions against retaliatory evictions set forth in RPL § 223-b only prohibit the landlord from certain expressly enumerated conduct. A landlord is entitled to evict the respondent from the leased premises for any legal reason except for those reasons expressed in RPL § 223-b.

The statutory protections against retaliatory eviction apply to "all rental residential premises except owner-occupied dwellings with less than four units." (RPL § 223-b[6]). This section provides, among other things, that no landlord shall serve a notice to quit or commence a summary proceeding to recover possession of real property in retaliation for "[a] good faith complaint, by or in behalf of the tenant, to a governmental authority of the landlord's alleged violation of any health or safety law, regulation, code, or ordinance, or any law or regulation which has as its objective the regulation of premises used for dwelling purposes ..." (RPL § 223-b[1][a]).

If a court finds that the landlord commenced an eviction action or proceeding in retaliation for the tenant having taken any protected action, and also finds that the landlord would not otherwise have commenced such action or proceeding, then a "judgment shall be entered for the tenant." (RPL § 223-b[4]).

The burden of establishing the affirmative defense of retaliatory eviction lies with its proponent, the tenant. See: 339-347 E. 12th St. LLC v. Ling, 35 Misc 3d 30, 942 N.Y.S.2d 862 (App. Term, 1st Dept., 2012). For the Respondent to prevail in her defense of retaliatory eviction, she must be established that: (1) the tenant exercised a protected right in the conduct that she undertook; (2) the grievance complained of by the tenant is bona fide, reasonable, and serious in nature, and has a foundation in fact; (3) the tenant did not create the condition upon which the defense is based; (4) the grievance complained of was present at the time the landlord commenced the proceeding; and (5) the overriding reason the landlord is seeking the eviction is to retaliate against the tenant for exercising his or her constitutional rights. Toms Point Apartments v. Goudzward, 72 Misc 2d 629, 339 N.Y.S.2d 281 (Dist. Ct., Nassau County, 1972), judgment aff'd on other grounds, 79 Misc 2d 206, 360 N.Y.S.2d 366 (App. Term, Second Dept., 1973); 89 NY Jur.2d Real Property — Possessory Actions § 111.

RPL § 223-b provides a rebuttable presumption of retaliation where a landlord serves a notice to quit or commences an eviction proceeding within six months after the tenant made a good faith complaint "to a governmental authority of the landlord's violation of any health or safety law, regulation, code, or ordinance, or any law or regulation which has as its objective the regulation of premises used for dwelling purposes ..." (RPL § 223-b[5][a]).

.........

 Once the tenant proves a prima facie defense of retaliatory eviction, the burden of proof then shifts to the landlord to come forward with evidence to rebut the presumption by showing some independent and non-retaliatory basis for the decision to evict the tenant. See: Paikoff v Harris, 178 Misc 2d 366, 368 (New York City Court 1998), aff'd as modified, 185 Misc 2d 372 (App. Term, Second Dept. 1999); 14 Carmody-Wait 2d § 90:161."

In that case, however, the landlord was able to rebut the presumption and demonstrated an independent and non-retaliatory basis for the decision to evict the tenant as the landlord commenced eviction proceedings based on the tenant's "hoarding"  and thus the affirmative defense of retaliatory eviction was dismissed.

HAVE A SAFE AND WONDERFUL LABOR DAY WEEKEND

ONE WAY TO PREVENT IDENTITY THEFT

Put a fraud alert on your credit reports through Experian. As they state:

"Add a fraud alert message to your credit report if you suspect that your identification information has been or could be used fraudulently. A fraud alert notifies potential credit grantors to verify your identity before extending credit in your name in case someone is using your information without your consent."

It would be suggested to report your cell phone number on the online form if you ever plan on applying for credit at a store or other location on site. This way, the credit company can call and reach you while you are applying for credit.

The fraud alert is good for 90 days so mark your calendars to do this every 90 days. Experian will also report the alert to the other credit reporting companies and immediately send you a copy of your credit report.

See  https://www.experian.com/fraud/center.html