MERRY CHRISTMAS

FORECLOSURE - FAILURE TO PROSECUTE

Deutsche Bank Natl. Trust Co. v Inga, 2017 NY Slip Op 08810, Decided on December 20, 2017 Appellate Division, Second Department:

"In March 2009, the plaintiff commenced this action to foreclose a mortgage against Manual Inga (hereinafter the defendant) and Maria Inga, among others. The defendant served an answer dated May 1, 2009. On October 10, 2014, the defendant served a 90-day demand to resume prosecution and, when the plaintiff failed to comply, moved pursuant to CPLR 3216 to dismiss the action insofar as asserted against him. In an order dated September 22, 2015, the Supreme Court granted the motion. The plaintiff appeals.

Where, as here, a plaintiff has been served with a 90-day demand pursuant to CPLR 3216(b)(3), that plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90-day period (see Belson v Dix Hills A.C., Inc., 119 AD3d 623, 623; Griffith v Wray, 109 AD3d 512, 513-514; Cope v Barakaat, 89 AD3d 670, 671). The plaintiff failed to do either within the 90-day period. Therefore, in order to excuse the default, the plaintiff was required to demonstrate a justifiable excuse for its failure to timely file the note of issue or move to either vacate the demand or extend the 90-day period, as well as a potentially meritorious cause of action (see Baczkowski v Collins Constr. Co., 89 NY2d 499, 503; Furrukh v Forest Hills Hosp., 107 AD3d 668; Jedraszak v County of Westchester, 102 AD3d 924). Nevertheless, it has been said that CPLR 3216 is "extremely forgiving" (Baczkowski v Collins Constr. Co., 89 NY2d at 503), "in that it never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed" (Davis v Goodsell, 6 AD3d 382, 383; see Di Simone v Good Samaritan Hosp., 100 NY2d 632, 633; Baczkowski v Collins Constr. Co., 89 NY2d at 504-505; Atterberry v Serlin & Serlin, 85 AD3d 949).

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the defendant's motion pursuant to CPLR 3216 to dismiss the action insofar [*2]as asserted against him. The plaintiff took no action whatsoever in the five years from the time the case was released from the foreclosure settlement part on October 15, 2009, until the defendant served his 90-day demand on October 10, 2014. Moreover, after failing to comply with the 90-day deadline, the plaintiff took no action for five months before belatedly filing a note of issue. The plaintiff failed to provide a justifiable excuse for its delay in filing a note of issue and failed to demonstrate a potentially meritorious cause of action. The plaintiff's further contention that dismissal was too harsh a sanction, and that a lesser sanction was more appropriate under the circumstances, is unavailing, given the plaintiff's "pattern[ ] of persistent neglect, a history of extensive delay, evidence of an intent to abandon prosecution and lack of any tenable excuse for such delay" (Schneider v Meltzer, 266 AD2d 801, 802)."

FAMILY COURT JURISDICTION - NO FAMILY OFFENSE BUT STILL A VIOLATION OF A TEMPORARY ORDER OF PROTECTION

No. 129, In the Matter of Lisa T., Respondent, v. King E. T., Appellant., Court of Appeals, December 19, 2017:

The facts as noted by the court:

"While the family offense proceeding remained pending, petitioner filed two violation petitions, later consolidated into a single petition, alleging that respondent had contacted her in contravention of the temporary orders of protection. Family Court held a combined hearing on the family offense and consolidated violation petitions. As relevant here, Family Court determined that petitioner had presented insufficient evidence to sustain the family offense petition, but that she had proven respondent's willful violations of two temporary orders through email communications unrelated to the child's visitation or any emergency. Accordingly, Family Court dismissed the family offense petition, but sustained the violation petition and issued a one-year final order of protection precluding respondent from, among other things, communicating with petitioner except as necessary to make arrangements for respondent's visitation with the child."

The arguments:

"Upon respondent's appeal, the Appellate Division affirmed, with one justice dissenting (147 AD3d 670 [1st Dept 129 2017]).  The dissenting justice would have held that Family Court lacked jurisdiction to issue a final order of protection because the family offense petition had been dismissed (147 AD3d at 675). Thereafter, the Appellate Division certified to this Court the question of whether its order was properly made."

The decision, in which there was also a dissent:

"To be sure, where the court concludes that the allegations of the petition charging respondent with a family offense are not established, it must dismiss the family offense petition (see Family Court Act § 841 [a]). However, this does not compel the conclusion that a pending petition alleging the violation of a [previously issued] temporary order of protection must also be dismissed. As noted, the family offense and violation petitions are authorized by different statutory provisions (see id. §§ 821, 846, 846-a). Once Family Court obtains jurisdiction over the parties by virtue of a petition facially alleging a family offense, the court may issue a temporary order of protection (see Family Court Act §§ 821-a [2] [a]; 828). A violation of that temporary order of protection is a separate matter over which sections 846 and 846-a give Family Court authority to act, including the authority to issue a final order of protection."

PRENUPTIAL AGREEMENT AND PENDENTE LITE MOTIONS

Kashman v. Kashman, 147 AD 3d 1034 - NY: Appellate Div., 2nd Dept. 2017:

"Although the prenuptial agreement contains a waiver of maintenance, equitable distribution, and an award of attorney's fees in the event of termination of the marriage, it does not bar temporary relief, including pendente lite maintenance and attorney's fees during the pendency of this litigation (see Davis v Davis, 144 AD3d 623 [2016]; McKenna v McKenna, 121 AD3d at 867; Abramson v Gavares, 109 AD3d 849, 850 [2013]). While the Supreme Court properly awarded the plaintiff interim attorney's fees, the court, without explanation, improvidently denied that branch of the plaintiff's motion which was for an award of pendente lite maintenance. Accordingly, we remit the matter to the Supreme Court, Nassau County, for a new determination of that branch of the plaintiff's motion (see McKenna v McKenna, 121 AD3d at 867)."

A BROKER IS ENTITLED TO A COMMISSION WHEN.....

REBENWURZEL v. SWIECA, 2016 NY Slip Op 50068 - NY: Supreme Court 2016:

"It is well established that "[i]If negotiations between parties brought together by a broker are unproductive and the parties, in good faith, withdraw and abandon the proposed purchase and sale, a subsequent renewal of negotiations, followed by a sale at a lesser price, does not entitle the broker to a commission as the broker was not the procuring cause of the sale" (11 NY Jur 2d, Brokers § 166; see also Leipham, Inc. v Grosodonia, 21 AD2d 847, 847 [4th Dept 1964]). "In the absence of fraud or bad faith on the part of the sellers, the broker is not entitled to [a] commission on a sale negotiated after the term of [its] employment, even though the sale is negotiated with a buyer introduced to the seller by the broker" (Bashant v Spinella, 67 AD2d 1100, 1100 [4th Dept 1979]).

A real estate broker who initially called the property to the attention of the ultimate purchaser "does not automatically and without more make out a case for commissions simply because [it] initially called the property to the attention of the ultimate purchaser" (Hentze-Dor Real Estate, Inc., 40 AD3d at 815, quoting Greene v Hellman, 51 NY2d 197, 205-206 [1980]). "Indeed, there must be a direct and proximate link, as distinguished from one that is indirect and remote, between the bare introduction and the consummation'" (Hentze-Dor Real Estate, Inc., 40 AD3d at 816 [internal quotation marks omitted]; see also SPRE Realty, Ltd. v Dienst, 119 AD3d 93, 98 [1st Dept 2014]).

It is true that "in order to qualify for a commission, a broker need not have been involved in the ensuing negotiations or in the completion of the sale (Hentze-Dor Real Estate, Inc., 40 AD3d at 816; see also Buck v Cimino, 243 AD2d 681, 684 [2d Dept 1997]). However, where, as here, "the broker is not involved in the negotiations leading up to the completion of the deal, the broker must establish that [it] created an amicable atmosphere in which negotiations proceeded or that [it] generated a chain of circumstances that proximately led to the sale'" (Hentze-Dor Real Estate, Inc., 40 AD3d at 816, quoting Dagar Group v Hannaford Bros. Co., 295 AD2d 554, 555 [2d Dept 2002]; see also Friedland Realty v Piazza, 273 AD2d 351, 351 [2d Dept 2000])."

ADOPTION: WHEN BIOLOGICAL PARENTS CHANGE THEIR MIND

Matter of Anya W. (Darryl W.--Chalika W.-R.), 2017 NY Slip Op 08673, Decided on December 13, 2017, Appellate Division, Second Department:

"Shortly after the birth of the subject child, the biological parents each executed an extrajudicial consent to the adoption of the child. The biological parents each subsequently executed a timely revocation of their extrajudicial consent, which was opposed by the adoptive parents. As a result, a "best interests" hearing was conducted pursuant to Domestic Relations Law § 115-b(3)(b) and (6)(d)(v).

The primary factors to be considered in determining what custodial disposition will be in a child's best interests include the ability to provide for the child's emotional and intellectual development, the quality of the home environment, and the parental guidance provided (see Eschbach v Eschbach, 56 NY2d 167, 172; Matter of Summer A., 49 AD3d 722, 725; Matter of Baby Boy M., 269 AD2d 450; Matter of Baby Boy P., 244 AD2d 491; Matter of Baby Boy L., 206 AD2d 470, 471). In addition, other relevant considerations include the original placement of the child, the length of that placement, the financial status and ability of the parents to provide for the child, and the relative fitness of the prospective adoptive parents and the biological parents (see Eschbach v Eschbach, 56 NY2d at 172; Miller v Pipia, 297 AD2d 362; Matter of Baby Boy M., 269 AD2d at 450; Matter of Baby Boy P., 244 AD2d 491; Matter of Baby Boy L., 206 AD2d at 471).

Here, the Family Court's determination was supported by the record. Specifically, the adoptive parents demonstrated the ability to establish and maintain continuous and stable relationships and employment, and the record demonstrates that they are better suited to meet the day-to-day and life-long physical, emotional, and material needs of the child. Thus, the hearing court properly determined that the best interests of the child will be promoted by allowing the adoptive parents to proceed with adoption (see Matter of Baby Boy M., 269 AD2d at 450; Matter of Baby Boy P., 244 AD2d at 492).

Contrary to the biological mother's contention, the Family Court properly determined that the biological parents' execution of the consent was not the product of any fraud, duress, or coercion (see Domestic Relations Law § 115-b[7]; Matter of Sarah K., 66 NY2d 223, 242; Matter of Baby Girl Z., 154 AD2d 471). Moreover, neither the biological mother's alleged mistake as to the meaning of the form nor her failure to read the form before signing it constitutes a valid ground for vitiating the consent (see Matter of Sarah K., 66 NY2d at 241; Matter of Baby Boy B., 163 AD2d 673, 674).

RECORDING CONTRACTS OF SALE?

139 Lefferts, LLC v Melendez, 2017 NY Slip Op 08647, Decided on December 13, 2017, Appellate Division, Second Department:

“On August 5, 2014, the plaintiff entered into a contract to purchase a parcel of real property located at 139 Lefferts Place, Brooklyn, from the defendant Sahidan Melendez for a purchase price of $1,050,000. The plaintiff provided Melendez with a down payment. However, the plaintiff never recorded the contract of sale. Melendez subsequently entered into another contract of sale on November 11, 2014, to sell the subject property to the defendant Craig Bolender for a purchase price of $1,000,000. The deed to the subject property was delivered to Bolender on November 21, 2014, and was recorded in the Office of the City Register of New York on December 27, 2014.

The plaintiff commenced this action against Melendez seeking specific performance of the contract or, in the alternative, money damages, by filing a summons, complaint, and notice of pendency on December 11, 2014. Bolender moved for, and was granted leave to, intervene in the action "as a defendant." Thereafter, Bolender moved, in effect, for summary judgment dismissing the complaint insofar as asserted against him. The Supreme Court granted the motion.

To establish that he was a bona fide purchaser for value, Bolender had the burden of proving that he purchased the property for valuable consideration and that he did not purchase with " knowledge of facts that would lead a reasonably prudent purchaser to make inquiry'" (Berger v Polizzotto, 148 AD2d 651-652, quoting Morrocoy Mar. v Altengarten, 120 AD2d 500; see TCJS Corp. v Koff, 74 AD3d 1188, 1189). "When two or more prospective buyers contract for a certain property, pursuant to Real Property Law §§ 291 and 294, priority is given to the buyer whose conveyance or contract is first duly recorded" (Avila v Arsada Corp., 34 AD3d 609, 610; see 2386 Creston Ave. Realty, LLC v M-P-M Mgt. Corp., 58 AD3d 158, 160; Varon v Annino, 170 AD2d 445, 446; La Marche v Rosenblum, 50 AD2d 636, 637).

Here, Bolender established, prima facie, his entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him. His submissions demonstrated that he was a bona fide purchaser for value, that he purchased the subject property for valuable consideration, without prior notice of the plaintiff's alleged interest in the subject property, and without knowledge of facts that would lead a reasonably prudent purchaser to make such an inquiry. Bolender further demonstrated that the deed for the subject property was delivered to him on November 21, 2014, and recorded on December 27, 2014.

In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's assertion, the proof that it filed a notice of pendency on December 11, 2014, failed to raise a triable issue of fact. Although New York has a so-called "race-notice" statutory scheme (see CPLR 6501; Real Property Law § 291; Goldstein v Gold, 106 AD2d 100, 101-102, affd 66 NY2d 624), having failed to avail itself of the protection of either Real Property Law §§ 291 or 294, the plaintiff may not successfully contend that its filing of a notice of pendency serves as a substitute for the recording of a conveyance or a contract (see TCJS Corp. v Koff, 74 AD3d at 1189; 2386 Creston Ave. Realty, LLC v M-P-M Mgt. Corp., 58 AD3d at 160; Avila v Arsada Corp., 34 AD3d at 610; Finkelman v Wood, 203 AD2d 236, 238).

Accordingly, the Supreme Court properly granted Bolender's motion, in effect, for summary judgment dismissing the complaint insofar as asserted against him.”

FAMILY LAW - DERIVATIVE NEGLECT VS. DERIVATIVE ABUSE

MATTER OF NAYOMI M., 147 AD 3d 413 - NY: Appellate Div., 1st Dept. 2017:

"The finding of derivative neglect with respect to the two youngest children was supported by a preponderance of the evidence. The violent and repeated abuse of the oldest children was "so proximate in time to the derivative proceeding that it c[ould] reasonably be concluded that" respondent had "a faulty understanding of the duties of parenthood" and thus that the youngest children's physical or emotional conditions were "in imminent danger of becoming impaired" (Matter of Matthew O. [Kenneth O.], 103 AD3d 67, 76 [1st Dept 2012] [internal quotation marks omitted]). Family Court did not err in finding derivative neglect, rather than derivative abuse. There was no evidence that the youngest child, who was a baby, was ever directly exposed to any of the abuse. Although the second youngest child appears to have been locked in the room with the other children, he was only two years old at the time and was apparently not subjected to many of the more severe forms of abuse perpetrated by respondent."

HANUKKAH GREETINGS

VOLUNTEER LAWYERS PROJECT

Today I will be a volunteer lawyer with Nassau Suffolk Law Services at Landlord/Tenant court in Hempstead. From the Nassau/Suffolk Law Services website:

"The Volunteer Lawyers Project (Nassau) and The Pro Bono Project (Suffolk)

Nassau/Suffolk Law Services operates a nationally lauded pro bono program with the Bar Association of Nassau County and the Suffolk County Bar Association. Established in 1981, the program provides legal representation in civil cases for individuals meeting low income guidelines.

Volunteer Lawyers Project and Pro Bono Project:

The Projects strive to supplement the funded civil legal services provided by Law Services’ staff with the generous volunteer assistance of the private bar. The Project staff refers a variety of legal matters to private volunteer attorneys, usually in the areas of matrimonial, bankruptcy and landlord-tenant law. The demand for pro bono services is great and may involve a waiting list, as in the case of divorce matters.  However, we maintain an active outreach and recruitment program in an effort to meet the challenge. The Projects also screen prospective clients for the Modest Means Panel, private attorneys who have agreed to accept divorce cases at a reduced fee. The Volunteer Lawyers and Pro Bono Projects are supported in part by The Nassau Bar Association, the We Care Fund, and The Suffolk County Bar Association, the Suffolk County Bar Pro Bono Foundation, as well as by The Legal Services Corporation. For information in Nassau County call 516-292-8299 and in Suffolk County 631-232-2400. HOW MANY LAWYERS  DOES  IT  TAKE TO CHANGE. . . The World ? It’s a simple idea. Use your powers for good. When you represent the poor and disabled, you also represent the best of our profession. A profession full of caring, committed people who firmly believe a just world is possible. Our clients don’t pay.  But the rewards —-that’s another story entirely. Once you’ve made a difference in the life of another , it can’t but help make a difference in yours. You’ve been given a gift, a powerful skill –you can put it to no better use than to help the powerless. You can help.  The only question is: will you? The Collateral Rewards:

• Free CLE credits
• Free pass to a CLE course
• Access to expert consultation and mentoring
• Eligibility for Pro Bono Attorney of the Month award and Pro Bono Recognition Reception
• Free professional liability insurance
• Networking with attorney colleagues and judges
• Expand your knowledge and experience in various disciplines of law

How can you help?

• Provide direct client representation
• Be a mentor to other volunteer attorneys
• Assist Project staff with intake, case analysis, referral and recruitment of volunteer attorneys
• Volunteer to work alongside Nassau Suffolk Law Services staff in landlord/tenant court, assist in disability, access to health care, Social Security advocacy, etc

Help is especially needed in the following areas:

• Matrimonial and Family Law
• Bankruptcy
• Guardianships (Article 17A)
• Foreclosure
• Consumer Issues
• Access to Medical Care and Public Benefits
• Wills, Trusts, and Estates

Take the challenge! You can make a difference. Call Maria Dosso for more information about volunteering. 631 232-2400 x 3369 Each month Nassau Suffolk Law Services celebrates the labors of individual attorneys who have demonstrated an outstanding commitment to the Pro Bono effort and who serve as a role model for the legal profession and its commitment to pro bono work."

MORTGAGE FORECLOSURE - SUMMARY JUDGMENT AGAIN DENIED IF HEARSAY RULES NOT FOLLOWED

Bank of N.Y. Mellon v Alli, 2017 NY Slip Op 0850,1 Decided on December 6, 2017, Appellate Division, Second Department:

"Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default" (Deutsche Bank Natl. Trust Co. v Abdan, 131 AD3d 1001, 1002 [internal quotation marks omitted]; see Hudson City Sav. Bank v Genuth, 148 AD3d 687). Where a plaintiff's standing to commence a foreclosure action is placed in issue by a defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief (see Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d 725; Wells Fargo Bank, N.A. v Arias, 121 AD3d 973, 973-974). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362; U.S. Bank, N.A. v Noble, 144 AD3d 786; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753-754). Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident (see Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d at 726; U.S. Bank N.A. v Saravanan, 146 AD3d 1010, 1011; Deutsche Bank Natl. Trust Co. v Logan, 146 AD3d 861, 862).

Here, the plaintiff failed to meet its prima facie burden of establishing its standing (see Wells Fargo Bank, N.A. v Talley, 153 AD3d 583). In support of its motion, the plaintiff submitted the affidavit of Dara Foye, a document coordinator for Bayview Loan Servicing, LLC (hereinafter Bayview), the loan servicer. Foye averred, based on her review of Bayview's business records, that the original, endorsed consolidated note was delivered to the plaintiff on January 24, 2007, and that the plaintiff "maintained possession of the original note since that date up until and including the date the action was commenced on May 24, 2010." However, the plaintiff failed to demonstrate the admissibility of the records relied upon by Foye under the business records exception to the hearsay rule (see CPLR 4518[a]), since Foye did not attest that she was personally familiar with the record-keeping practices and procedures of the plaintiff (see Wells Fargo Bank, N.A. v Talley, 153 AD3d at 583; Arch Bay Holdings, LLC v Albanese, 146 AD3d 849, 853; Aurora Loan Servs., LLC v Baritz, 144 AD3d 618, 620; Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 685). The plaintiff also failed to establish its standing based on the purported assignment of the note and mortgage to it by MERS, as it failed to submit any evidence establishing delivery or assignment of the note to MERS prior to its execution of the assignment to the plaintiff (see Arch Bay Holdings, LLC v Albanese, 146 AD3d at 853). Since the plaintiff failed to meet its prima facie burden, the Supreme Court should have denied those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference, without regard to the sufficiency of the defendants' opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324)."

DIVORCE - A SUGGESTION WHEN SUBMITTING SEPARATION AGREEMENTS

It has been suggested to add Tables of Contents to Stipulations of Settlements/Separation Agreements. A Table of Contents makes it much easier for the clerk to locate the necessary provisions in the lengthy Stipulations/Agreements that need to be reviewed when the Judgments of Divorces are being processed. That in turn makes the review process go faster and could result in the Judgments being processed faster.

A LENGTHY COMMERCIAL FORECLOSURE

JP Morgan Chase Bank, NA v Adventure Corp., 2017 NY Slip Op 08358, Decided on November 29, 2017,  Appellate Division, Second Department:

"In 2007, the plaintiff commenced this action against Adventure Corp. (hereinafter the defendant), among others, to foreclose a mortgage. The defendant failed to answer the complaint or appear in the action. Summary judgment on the complaint was thereafter awarded to the plaintiff, and a referee was appointed to compute the amount due under the mortgage loan, by order entered January 27, 2014. A judgment of foreclosure and sale was entered on September 16, 2015.

The defendant subsequently moved, inter alia, pursuant to CPLR 5015(a) and 317 to vacate the order entered January 27, 2014, and the judgment of foreclosure and sale, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it. The Supreme Court denied the motion, and the defendant appeals.

The Supreme Court improperly denied, without a hearing, the subject branches of the defendant's motion. The defendant asserted that the plaintiff failed to properly serve it with process and that it did not receive notice of the action in time to defend it. "Ordinarily, the affidavit of a process server constitutes a prima facie showing of proper service" (FV-1, Inc. v Reid, 138 AD3d [*2]922, 923; see Bank of America, N.A. v Latif, 148 AD3d 967, 968). Here, however, questions of fact exist as to whether proper service was effected upon the Secretary of State as the defendant's agent, pursuant to Business Corporation Law § 306(b)(1). In particular, the process server's affidavit was ambiguous as to whether "duplicate copies" of process were delivered to the Secretary of State as required by Business Corporation Law § 306(b)(1). Under the circumstances, a hearing was required on the issue of whether the defendant was properly served with process.

Accordingly, we reverse the order, and remit the matter to the Supreme Court, Nassau County, to conduct a hearing to determine whether service of process was properly effected upon the defendant, and for a new determination thereafter of those branches of the defendant's motion which were pursuant to CPLR 5015(a) and 317 to vacate the order entered January 27, 2014, and the judgment of foreclosure and sale, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it."

NOTE: This property is actually a single family home in Glen Cove New York. Further research revealed that a Chapter 11 was filed during the pendency of this appeal in EDNY. See Case 8-17-74506-ast    Doc 1    Filed 07/25/17    Entered 07/25/17 09:52:14

CAREGIVER DESIGNATION

At the end of January 2005, Governor Pataki signed into law a bill that created a “Designation of Person in Parental Relation” section in New York’s General Obligation Law. The General Obligations Law includes statutes about powers of attorney. This new law creates a limited parental power of attorney by legalizing the common practice of parents writing notes to schools or to medical providers in order to permit other persons to assume responsibility for children.

A form can be found at this link:

http://www.ocfs.state.ny.us/main/Forms/kinship/OCFS-4940%20Designation%20of%20Person%20in%20Parental%20Relationship.pdf

FREE MORTGAGE FORECLOSURE CLINIC TODAY

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

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

MORTGAGE FORECLOSURE - RECOMPUTING INTEREST DUE AND COUNSEL FEES

Greenpoint Mtge. Corp. v Lamberti, 2017 NY Slip Op 08353, Decided on November 29, 2017, Appellate Division, Second Department:

"This is an action to foreclose a mortgage on real property owned by the defendant Mary M. Lamberti (hereinafter the defendant) in Woodbury. The Supreme Court granted the motion of the plaintiff PE-NC, LLC (hereinafter PE-NC), the current holder of the note and mortgage, for summary judgment on the complaint, and appointed a Referee to compute the amount due pursuant to the note and mortgage. Following a hearing, the Referee issued a report finding, inter alia, that $1,134,630.81 was due and owing to PE-NC, inclusive of counsel fees and interest on the unpaid balance, on counsel fees, and on money advanced to protect the lender's rights in the property. PE-NC moved to confirm the Referee's report and the computation contained therein and for leave to enter a judgment of foreclosure and sale. The defendant cross-moved to reject the report. In an order entered February 26, 2015, the court granted PE-NC's motion and denied the defendant's cross motion. Thereafter, in a judgment of foreclosure and sale entered July 13, 2015, the court, upon the order, confirmed the report, awarded PE-NC the sum of $1,134,630.81, and directed that the subject property be sold. The defendant appeals. We reverse the judgment insofar as appealed from and [*2]remit the matter to the Supreme Court, Nassau County, for the Referee to recompute the amount due and for the court to determine the reasonableness of the counsel fees included in the Referee's computation, following a hearing on the issue, if necessary.

The Referee must recompute the amount due. "In an action of an equitable nature, the recovery of interest is within the court's discretion. The exercise of that discretion will be governed by the particular facts in each case, including any wrongful conduct by either party" (Dayan v York, 51 AD3d 964, 965 [citations omitted]; see CPLR 5001[a]). Here, in view of the lengthy delay by PE-NC's predecessors in interest in prosecuting this action, PE-NC should recover no interest for the roughly three-year period of time from when the action was commenced in 2005 to when the defendant filed a request for judicial intervention in 2008. While PE-NC did not cause this delay, it should not benefit financially, in the form of accrued interest, from this delay caused by its predecessors in interest. Furthermore, PE-NC should not recover interest on the counsel fees awarded to it. Paragraphs 7 and 21 of the mortgage are inconsistent regarding whether interest could be recovered on counsel fees. Since "ambiguities in a contractual instrument will be resolved contra proferentem, against the party who prepared or presented it" (151 W. Assoc. v Printsiples Fabric Corp., 61 NY2d 732, 734), this ambiguity must be resolved against PE-NC, whose predecessors in interest presented the mortgage. Moreover, interest awarded under paragraph 7 of the mortgage, on money advanced to protect the lender's rights in the property, should not have been awarded at the rate of 17%, but at the "Note rate," which, in this case, was 7.25%.

"An award of an attorney's fee pursuant to a contractual provision may only be enforced to the extent that the amount is reasonable and warranted for the services actually rendered. In determining reasonable compensation for an attorney, the court must consider such factors as the time, effort, and skill required; the difficulty of the questions presented; counsel's experience, ability, and reputation; the fee customarily charged in the locality; and the contingency or certainty of compensation" (Vigo v 501 Second St. Holding Corp., 121 AD3d 778, 779-780 [citation omitted]; see SO/Bluestar, LLC v Canarsie Hotel Corp., 33 AD3d 986, 988). In this case, a determination must be made on the reasonableness of the counsel fees, following a hearing on that issue, if necessary.

The defendants' remaining contentions, including those concerning an intermediate order dated June 13, 2014, which are brought up for review on this appeal from the judgment of foreclosure and sale (see CPLR 5501[a][1]; Greenpoint Mortgage Corp. v Lamberti, _____ AD3d _____ [Appellate Division Docket No. 2014-08300; decided herewith]), are without merit."

CONTEMPT - NON PAYMENT OF CHILD SUPPORT

Avraham v Avraham, 2017 NY Slip Op 08253, Decided on November 22, 2017, Appellate Division, Second Department:

"Appeal by the plaintiff from an order of the Supreme Court, Kings County (Eric I. Prus, J.), dated June 9, 2015. The order granted that branch of the defendant's motion which was to hold the plaintiff in contempt for failing to pay the full amount of child support required under pendente lite orders dated July 26, 2012, and January 29, 2013, respectively.

ORDERED that the order dated June 9, 2015, is affirmed, with costs.

Contrary to the plaintiff's contention, the applicable standards in this case were those of civil, not criminal, contempt, as the Supreme Court gave the plaintiff the opportunity to purge his contempt and thereby avoid incarceration by paying his child support arrears in full (see Matter of Rubackin v Rubackin, 62 AD3d 11, 16; New York City Tr. Auth. v Transport Workers Union of Am., AFL-CIO, 35 AD3d 73, 86). The defendant established by clear and convincing evidence that there was "an unequivocal mandate" that the plaintiff pay the sum of $1,400 per month in pendente lite child support, that the plaintiff had knowledge of that mandate, that the plaintiff disobeyed that mandate, and that this disobedience prejudiced the defendant (El-Dehdan v El-Dehdan, 114 AD3d 4, 16, affd 26 NY3d 19; see Matter of Hughes v Kameneva, 96 AD3d 845, 846). The defendant was not required to show that she had exhausted other enforcement remedies before moving to hold the plaintiff in contempt (see L 2016, ch 365, §§ 1, 2; Cassarino v Cassarino, 149 AD3d 689, 691). The burden then shifted to the plaintiff either to refute the defendant's showing or to establish a defense (see El-Dehdan v El-Dehdan, 114 AD3d at 17). The plaintiff failed to raise a factual dispute as to the amount of the arrears, and thus, contrary to his argument, no hearing was required on this issue (see id. at 18). A hearing was not required on the plaintiff's defense that he could not afford to pay $1,400 per month in child support. The facts underpinning this defense were addressed at a trial before a special referee, and the court was not required to hold a new hearing on this issue (see CPLR 4403). Accordingly, the court providently exercised its discretion in finding the plaintiff in civil contempt without holding a new hearing on that branch of the defendant's motion (see El-Dehdan v El-Dehdan, 114 AD3d at 16-17; Matter of Hughes v Kameneva, 96 AD3d at 846)."

ETHICS - ATTORNEY AS BROKER AND ATTORNEY

Can an attorney serve as lawyer and broker in same real estate transaction? According to New York State Bar Association Committee on Professional Ethics Opinion 1117 (4/4/17), a lawyer who receives a broker’s commission in a real estate transaction may not also serve as the lawyer for the buyers, even if the buyers are long-time clients and friends and have requested both kinds of services and even if the legal services are provided pro bono.

"Such personal interest conflicts are generally present when a lawyer provides brokerage services as well as legal services in the same real estate transaction. We have opined on numerous occasions that a lawyer may not act as an attorney on behalf of any party to a real estate transaction in which the lawyer is also acting as a broker. See, e.g. N.Y. State 1013 ¶ 1 (2014); N.Y. State 933 ¶ 7 (2012); N.Y. State 919 ¶ 3 (2012). In N.Y. State 753 (2002), we explained our reasoning:

The rationale for these opinions is that a lawyer should not have a personal stake in the advice rendered, and a broker who is paid only if the transaction closes cannot be fully independent in advising the client as a lawyer.

See also N.Y. State 1015 (2014) (quoting N.Y. State 753 and citing later opinions)."

DIVORCE - DIVIDING ASSETS WHEN ONE SPOUSE COMMITS CRIME

LINDA G. v. James G., 2017 NY Slip Op 7968 - NY: Appellate Div., 1st Dept. 2017:

".......

In 2010, the husband was indicted on charges of conspiracy and insider trading. At trial, the husband maintained his innocence and claimed that a woman with whom he was having an affair stole his BlackBerry and used the information to engage in insider trading. He was found guilty and served a one year and one day sentence in federal prison from May 2010 through January 2011. The SEC investigation and criminal trial depleted the joint assets of the parties. The divorce proceedings started on January 26, 2010.
........

Section 236(B)(5)(d) of the Domestic Relations Law, which specifies the factors to be considered in making an award of equitable distribution, includes a catch-all provision that empowers a court to look at "any other factor which the court shall expressly find to be just and proper" (DRL § 236[B] [5][d][14]). However, marital fault may not be considered as "just and proper" except in "a truly exceptional situation, due to outrageous or conscience-shocking conduct on the part of one spouse, that will require the court to consider whether to adjust the equitable distribution of the assets" (Howard S. v Lillian S., 14 NY3d 431, 436 [2010] [adultery, by itself, is not egregious conduct]; Havell v Islam, 301 AD2d 339 [1st Dept 2002] [malicious assault of a spouse in the proximity of children amounts to egregious conduct]; Pierre v Pierre, 145 AD3d 586 [1st Dept 2016] [stabbing and physically assaulting wife is egregious conduct]).

Supreme Court took into account the husband's "adulterous and criminal behavior" in awarding the wife 75% of the marital home. The husband's adulterous conduct is not sufficiently egregious and shocking to the conscience to justify making an unequal distribution of the marital home. However, we hold that the impact of the husband's criminal conduct on the family may be considered in making an unequal distribution. In Kohl v Kohl (6 Misc 3d 1009[A], 2004 NY Slip Op 51759[U], *24 [Sup Ct, NY County 2004], affd 24 AD3d 219 [1st Dept 2005]), the wife sought an unequal distribution of the marital estate based on the husband's criminal conviction. The trial court denied the request as the father supported his family by borrowing money from friends and business acquaintances until such time that he was able to resume his career (id. at *25). The husband accepted a plea that allowed him to resume his career and business (id.). Within a few years after his indictment, he was earning as much income as he had prior to the criminal proceeding (id.). Also, the parties' standard of living did not change as a result of the husband's actions (id.). On that record, we affirmed the distribution of the value of the parties' residences at 50%/50% (id. at *25, 26, 27).

Unlike Kohl, the record in this case supports an unequal distribution. The parties were required to spend down their savings from 2007 through 2010 when the husband was forced to resign due to the SEC investigation. He refused to take a plea bargain and insisted on going to trial, blaming a woman with whom he had an extramarital affair for his insider trading. He was convicted of a felony and lost his license to practice law. The husband's post-incarceration earnings at the time of the trial dropped significantly to less than 20% of his prior income. His income never returned to the level he earned prior to the conviction. As a result of the husband's criminal actions, the wife, who had left a lucrative career to raise their children, was compelled to return to work after being out of the work force for almost a decade. This meant that the wife could no longer remain at home with the children. During this time, the younger son suffered from psychiatric issues and the older son from significant emotional issues.

In short, the husband's insider trading, and ensuing criminal trial, conviction and incarceration caused the family to undergo financial losses and a substantial decrease in the standard of living. These events also significantly disrupted the family's stability and well-being. Based on our review of the record, we find that a 60%/40% equitable division of the value of the marital estate is just and proper when taking into account the hardship that the husband put his family through as a result of his volitional and irresponsible behavior."

THANKSGIVING GREETINGS TO ALL

THE MORTGAGE MODIFICATION SCAMS ARE STILL WAITING FOR YOU

Yesterday at the Mortgage Foreclosure Clinic at the Nassau County Bar Association, I consulted with a client who appeared to have been scammed. Several thousand dollars were paid to either an attorney or a company to seek a modification of the mortgage payments while a foreclosure action was commenced. Although this attorney or company prepared an answer for the homeowner: (1) the answer was a pro se answer and there was no attorney appearance (2) the homeowner was advised not to attend the settlement conference and (3) although a motion was thereafter made by the bank for summary judgment, the homeowner was assured that the modification papers were submitted and that no further papers need to be submitted - of course, the motion for summary judgment was granted. Although it appeared the client did not have any real defense and the real problem was home affordability, nevertheless, monies were paid to an apparent scam and the client was advised to file appropriate complaints.

ALERT:

1. If you are working with an attorney, make sure there is a written retainer agreement which outlines the duties and scope of representation.

2. Attend all scheduled court appearances.

3. Follow your case on New York State E Courts. You can sign up for an email track of the case.
eTrack is a case tracking service which enables you to track active Civil Supreme Court cases from all 62 counties of New York State, and cases from all currently available Local Civil and Criminal Courts.

For further information on such scams and what to do, see

http://www.preventloanscam.org/states/new-york#Long%20Island

ON NEW YORK'S NEW "SEALING RULE"

In today's Newsday, the main story discussed a new state law aimed at giving nonviolent offenders a clean slate. As of October 7, 2017, New York courts may expunge eligible offenses under Section 160.59 of the Criminal Procedure Law.

The Law Offices of Robert Briere, a ​New York City Criminal Defense Lawyer,  ​30 Wall Street, New York, NY 10005, had noted on their web site that CPL 160.05 was not the only statute dealing with the sealing of criminal records:

"Remember that CPL 160.59 requires a ten year waiting period before the conviction can be sealed. So, in the meantime, what records can be sealed in New York before the ten year period has run?

Prior to the ten year period running, a record of a criminal conviction, which is any misdemeanor or felony except a youthful offender adjudication, cannot be sealed and is considered a public record available to anyone through the OCA website for a $55 fee. It does not matter if the person had the charge reduced from a felony to a misdemeanor or only received probation. There are no exceptions to the rule.

In New York, the only records that get completely sealed outside of the provisions of CPL 160.59 (pursuant to CPL 160.50) are cases that result in complete dismissals including:

ACD's and other forms of dismissals and acquittals. whenever a case is fully dismissed either through an ACD an acquittal after trial or if the case is dismissal in the interests of justice for dismissed for facial insufficiency...whatever the reason for the dismissal... these get the full sealing treatment of CPL 160.50. On the other hand, charges that are reduced from a misdemeanor or felony to a violation or infraction get the partial seal treatment of CPL 160.55.

How does sealing of a New York Record differ between CPL 160.59 and CPL 160.50 and CPL 160.55?

A sealing under CPL 160.59 occurs upon application of a person with two or less criminal convictions and no more than one felony conviction (that are at least ten years old) pursuant to the process outlined above. A sealing under 160.50 occurs in New York when a criminal charge is dismissed completely, while a sealing under 160.55 occurs when a criminal charge is reduced from a misdemeanor or felony to a violation or infraction.

A sealing under CPL 160.50 is the most favorable of the three since the 160.50 sealing mandates destruction of the arrest record and the sealing of the court file. A sealing under 160.55 is not as comprehensive as the 160.50 sealing. The 160.55 sealing occurs when someone is arrested or charged with a criminal offense, but is ultimately convicted of a violation or infraction, the sealing of the arrest records is accomplished pursuant to CPL 160.55 (1) (c), which means that records of the arrest, such as mugshots, arrest reports and fingerprints are destroyed but the Court file stays open.

The CPL 160.59 is a hybrid of the 160.50 and the 160.55 as is allows for the court file to be sealed but the arrest records remain unsealed." ​

CAN A LANDLORD EXEMPT RENT REGULATION COVERAGE BY CONVERSION OF UNITS

U 31st ST., LLC v. Montalvo, 2017 NY Slip Op 51435 - NY: Appellate Term, 1st Dept. 2017:

"Landlord's possessory claim, based on allegations that tenant's unregulated lease agreement expired by its terms, is not susceptible to summary disposition. The record presents triable issues of fact as to whether the building in which tenant's apartment was located had at least six residential units on July 1, 1974, or thereafter, and, thus, was subject to rent stabilization (see Rent Stabilization Law [Administrative Code of City of NY] § 26-504[a]; Rent Stabilization Code [9 NYCRR] § 2520.11[d]; Matter of Loventhal Mgt. v New York State Div. of Hous. & Community Renewal, 183 AD2d 415 [1992];see generally Sharabi v Morales, 23 AD3d 544 [2005]).

Pertinent records on file with City agencies, including a 1926 certificate of occupancy and "I-Cards," show that the subject building consisted of six residential units. While landlord and the motion court relied heavily upon a "Maximum Base Rent Building Profile and Owner's Order," issued by the Office of Rent Control, indicating that the building contained five residential units as of January 1, 1972, we do not view this document as dispositive as a matter of law, especially given that an amended certificate of occupancy showing less than six residential units was not issued until 1982 and no alteration permit was filed prior to 1980. Thus, it is unclear if the reduction from six units to five, which occurred at some undetermined time between 1926 and 1972, was the result of a legal conversion (see Matter of Loventhal Mgt. v New York State Div. of Hous. & Community Renewal, 183 AD2d at 415 [illegal renovation cannot be used by landlord as a basis to exempt the premises from coverage under the Rent Stabilization Law]). In the circumstances, the issue of whether the building contained six residential units on or after July 1, 1974, must be resolved at trial."

STUDENT MENTORS

This morning I will be a Student Mentor.

One of the Pro Bono & Volunteer Opportunities sponsored by the Nassau County Bar Association is the Student Mentor Program. Attorneys can provide valuable adult guidance and serve as a role model for at-risk middle school students in one-on-one sessions at a local middle school. The commitment is twice a month for less than an hour and Mentors are always in demand.

Contact Demi Tsiopelas at NCBA 516-747-4070 or dtsiopelas@nassaubar.org