ON USED CARS - NEW YORK STATE RULES

As a general rule, New York's Used Car Lemon Law provides a legal remedy for buyers or lessees of used cars that turn out to be lemons. The law requires dealers to give you a written warranty. Under this warranty, a dealer must repair, free of charge, any defects in covered parts or, at the dealer's option, reimburse you for the reasonable costs of such repairs. If the dealer is unable to repair the car after a reasonable number of attempts, you are entitled to a full refund of the purchase price. No used car covered by this law can be sold by a dealer "as is."

The consumer bill of rights can be found at this link: https://ag.ny.gov/sites/default/files/pdfs/bureaus/consumer_fraud/usedcar_lemon_bill_rights.pdf

ON USED CARS - THE FEDERAL RULES

The Used Car Rule, formally known as the Used Motor Vehicle Trade Regulation Rule, has been in effect since 1985. It requires car dealers to display a window sticker, known as a Buyers Guide, on the used cars they offer for sale. The Buyers Guide discloses whether the dealer offers a warranty and, if so, its terms and conditions, including the duration of the coverage, the percentage of total repair costs the dealer will pay, and which vehicle systems the warranty covers. In states that do not permit sales of used cars “as is,” or without warranties, dealers must display an alternative version of the Buyers Guide.

For more information, see https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/used-car-rule

LENGTH OF MARRIAGE OR LENGTH OF RELATIONSHIP - POST DIVORCE MAINTENANCE

Under DRL 236-B, the duration of post-divorce maintenance can be determined by an advisory durational formula directly linked to the "length of marriage" which is defined as running from the date of marriage until the date of commencement of the divorce action. But what if the couple have been living jointly for a considerable length of time but only married for several years? That issue was somewhat faced in KAPROV v. STALINSKY, 2016 NY Slip Op 8509 - NY: Appellate Div., 2nd Dept. 2016 where the couple were married in 1998 but have lived together prior thereto for around 14 years:


"A party's maintenance obligation is retroactive to the date the application for maintenance was first made (see Domestic Relations Law § 236 [B][6][a]). However, the party is also entitled to a credit for any amount of temporary maintenance . . . already paid" (Huffman v Huffman, 84 AD3d 875, 876). Here, in arguing that the maintenance award is out of proportion to the duration of the marriage, the husband fails to recognize that, pursuant to the version of Domestic Relations Law § 236(B)(6)(a) in effect at the time of the commencement of this action, one of the factors a court should take into account in deciding the amount and duration of a maintenance award is "the existence and duration of a pre-marital joint household" (Domestic Relations Law § 236 [B][6][a][6]). The wife testified that the couple lived together from 1984 to 2010, approximately 26 years. Thus, an 11-year award of maintenance is not out of proportion with the duration of the joint household. "The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting'" (Groesbeck v Groesbeck, 51 AD3d 722, quoting Sirgant v Sirgant, 43 AD3d 1034, 1035). "The amount and duration of maintenance is committed to the sound discretion of the trial court, and each case is to be decided on its own unique facts" (Divan v Divan, 135 AD3d 807, 809; see Lamparillo v Lamparillo, 130 AD3d 580, 581; Heydt-Benjamin v Heydt-Benjamin, 127 AD3d 814, 815). The maintenance award was appropriate for the wife to become self-supporting given the factors involved, including the duration of the pre-marital joint household, as well as the wife's age, absence from the workforce, reduced earning capacity, and limited education (see Domestic Relations Law § 236[B][6][a])."

NOTE - Even under the new guidelines, DRL 236 (B) (g) (e) provides: "(1) The court shall order the post-divorce maintenance guideline obligation up to the income cap in accordance with paragraph c of this subdivision, unless the court finds that the post-divorce maintenance guideline obligation is unjust or inappropriate, which finding shall be based upon consideration of any one or more of the following factors, and adjusts the post-divorce maintenance guideline obligation accordingly based upon such consideration:... (f) the existence and duration of a pre-marital joint household or a pre-divorce separate household;"

MENTAL HEALTH AND ATTORNEYS

Around this time last year, an article was published in the Journal of Addiction Medicine regarding a study designed "to measure the prevalence of substance use and mental health concerns among licensed attorneys, their awareness and utilization of treatment services, and what, if any, barriers exist between them and the services they may need."

See http://journals.lww.com/journaladdictionmedicine/Fulltext/2016/02000/The_Prevalence_of_Substance_Use_and_Other_Mental.8.aspx

ILLEGAL COMMERCIAL LEASES

JACK KELLY PARTNERS LLC v. ZEGELSTEIN, 2014 NY Slip Op 33673 - NY: Supreme Court 2014:

"It is well settled that a mere lack of certificate of occupancy for the use contemplated by a lease agreement does not absolve a tenant from its obligation to pay rent and justify abandonment of the demised premises, nor does the lack of conforming certificate of occupancy alone cause the lease to be void for illegality or result in a failure of consideration (see 56-70 58th St. Holding Corp. v Fedders-Quigan Corp., 5 NY2d 557 [1959]; Jordache Enters. v Gettinger Assoc., 176 AD2d 616 [1st Dept 1991]; see also Silver v Moe's Pizza, 121 AD2d 376 [2d Dept 1986]; Cutler-Hammer, Inc. v One Lincoln Assoc., 79 AD2d 512 [1st Dept 1980]; Shawkat v Malak, 38 Misc 3d 52, 54 [NY App Term 2013]). The cases are also legion in which the courts held that even if the certificate of occupancy and zoning regulations preclude the tenant from using the premises for the purpose specified in the lease, this does not absolve the tenant of its obligation to pay rent for the period of time when the tenant has occupied the premises, including where the landlord made no representation concerning the certificate of occupancy for the intended use under the lease (see e.g. Phillips & Huyler Assoc. v Flynn, 225 AD2d 475 [1st Dept 1996]; Only Props., LLC v Cavlak, 30 Misc 3d 129[A], 2010 NY Slip Op 52300[U] [NY Sup App Term 2010]; All Metro Corp. v Fit Laundromat, 13 Misc 3d 131[A], 2006 NY Slip Op 51858[U] [NY Sup Ct App Term 2006]). Therefore, the Court finds that plaintiff's argument that the lease is illegal for want of a conforming certificate of occupancy must fail. Plaintiff's argument regarding the failure of consideration is also unavailing for the reasons stated below.

Plaintiff asserts that there exists no support in the documentary evidence submitted which placed on plaintiff the obligation to take affirmative steps to revise or alter the certificate of occupancy. In response, defendants point out to paragraph 57(D) of the lease and the 2009 Order. In the 2009 Order, the Court already determined^[1] that paragraph 57(D)^[2] places the responsibility on plaintiff to seek a change of the certificate of occupancy for the demised premises, which is part of the certificate of occupancy for the entire building (Sava Affirm., exhibit J).

Notwithstanding the foregoing, plaintiff avers that nowhere in the lease is an affirmative obligation placed on plaintiff to procure a certificate of occupancy. Plaintiff argues further that to the extent that any ambiguity as to the meaning of the lease provisions can be found, such ambiguity must be resolved against the landlord, who drafted the lease. These arguments are defeated by the plain language of paragraph 65 of the lease agreement, which provides that "[the] Lease shall be deemed to have been jointly prepared by both the Landlord and Tenant and any ambiguities or uncertainties herein shall not be construed for or against either of them" (Sava Affirm., exhibit R, at page 18 of 21) (see also Madison Ave. Leasehold, LLC v Madison Bentley Assoc. LLC, 8 NY3d 59, 66 [2006] [a commercial lease should be enforced according to its terms when parties set down their agreement in a clear, complete document and extrinsic and parol evidence is not admissible to create an ambiguity]; Farrell Lines v City of New York, 30 NY2d 76, 165 [1972] ["(a)n agreement of lease possesses no peculiar sancity requiring the application of rules of construction different from those applicable to an ordinary contract"] [internal quotes omitted]).

Furthermore, defendants made no covenant in the lease agreement to procure a conforming certificate of occupancy, or obtain a zoning variance, and plaintiff enjoyed undisturbed right to possession of the demised premises (see Silver, 121 AD2d at 377-378, citing 56-70 58th St. Holding Corp. v Fedders-Quigan Corp., 5 NY2d 557 [1959]; cf. Multiple Dwelling Law § 302[1][b]; Kosher Konvenience, Inc. v Ferguson Realty Corp., 171 AD2d 650 [2d Dept 1991]). Moreover, the terms of the lease do not condition plaintiff's promise to pay the rent on either explicit or implied covenant that defendants have a proper certificate of occupancy for the demised premises (see Raner v Godberg, 244 NY 438 [1927]). In the 2009 Order, this Court held that the lease clearly delivered the premises in "as is" condition and paragraph 57(C) of the lease, should have placed plaintiff on notice to check the certificate of occupancy, and applicable laws, codes, and zoning regulations (Sava Affirm., exhibit J, at page 3).

Paragraph 57(C) provides that:

Landlord makes no representations that the use to be made of the Demised Premises, as specified herein, is consistent with permitted uses under the existing certificate of occupancy issue[d] for the Building. In the event that such use is inconsistent with said certificate of occupancy and further, that the Department of Buildings or other governmental agency having jurisdiction, issues a violation based on such inconsistent use, this Lease, shall be terminable by Landlord in accordance with the provisions for notice set forth herein, on thirty (30) days' prior written notice to Tenant (Sava Affirm., exhibit R, at page 12 of 21).

As defendants correctly contend, paragraph 57(C) of the lease contains disclaimer of warranty that the contracted for use of the premises, as strictly specified in the lease, is consistent with the permitted uses under the existing certificate of occupancy for the demised premises (see Sava Affirm., exhibit R, at page 12 of 21). Based on this language of the lease, defendants argue, that plaintiff's claim of fraud and misrepresentation is deficient and cannot sustain the cause of action for rescission. Once again, in the 2009 Order, this Court found that the documentary evidence conclusively established a defense, as a matter of law, to plaintiff's claim that the landlord breached an alleged promise that the premises may be legally used and occupied as a commercial space, and to plaintiff's claim that defendants falsely represented that the premises could be used for commercial purpose (Sava Affirm., exhibit R, at page 3). "Such a specific disclaimer destroys the allegations in plaintiff's complaint that the agreement was executed in reliance upon these contrary oral representations" (Danann Realty Corp. v Harris, 5 NY2d 317, 320-321 [1951]).

SPEAKING TODAY AT FREEPORT LIBRARY

MORTGAGE FORECLOSURE CLINIC

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

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

VERIFICATION OF MILITARY SERVICE

The Defense Manpower Data Center's (DMDC) Military Verification service can be used to verify if someone is currently serving in the military.

Information needed includes the Social Security Number and other personal information and the service will indicate that the Department either does not possess information regarding the individual or that the individual is in the military (in a signed printable letter format containing the Department of Defense seal).

See https://www.dfas.mil/garnishment/verifyservice.html

SERVICE BY FACEBOOK NOT OK

QAZA v. HAZZA ALSHALABI, 2016 NY Slip Op 26402 - NY: Supreme Court 2016:

"It is well established the CPLR 308(5) vests a court with the discretion to direct an alternative method of service of process when it has determined that the methods set forth in CPLR 308(1), (2) and (4) are impracticable (see State Street Bank and Trust Company v. Coakley, 16 AD3d 403, 790 NYS2d 412 [2 Dept.,2005]; see also CPLR 308[5]). Although the impracticability standard "is not capable of easy definition" (Markoff v. South Nassau Community Hosp., 91 AD2d 1064, 1065, 458 N.Y.S.2d 672, affd. 61 NY2d 283, 473 N.Y.S.2d 766, 461 N.E.2d 1253), it does not require the applicant to satisfy the more stringent standard of due diligence under CPLR 308(4), or to make a showing that actual prior attempts to serve a party under each and every method provided in the statute have been undertaken (see Astrologo v. Serra, 240 AD2d 606, 659 N.Y.S.2d 481 [2 Dept.,1997]).

In Dobkin v. Chapman, the Court of Appeals noted that "[d]ue process is not, however, a mechanical formula or a rigid set of rules" and that "in modern jurisprudence, the term has come to represent a realistic and reasonable evaluation of the respective interests of plaintiffs, defendants and the state under the circumstances of the particular case" (21 NYS2d 490, 502, 236 NE2d 451 [1968]). The Court of Appeals continued in Dobkin that "[o]ur law has long been comfortable with many situations in which it was evident, as a practical matter, that parties to whom notice was ostensibly addressed would never in fact receive it" such may occur in some situations where service by publication is permitted (id. at 502) and that the determination must be made upon the facts and circumstances before the court because "what might be inadequate notice in one kind of situation will amount to due process in another" (id. at 503).

The facts and circumstances before this Court are distinguishable from the facts before the Court in the case of Safadjou v. Mohammadi relied upon by plaintiff's counsel (105 AD3d 1423, 964 NYS2d 801 [4 Dept.,2013]). In Safadjou v. Mohammadi the Court permitted service by e-mail pursuant to CPLR 308(5); however, in that case, the record established that the plaintiff and defendant had been communicating by e-mail and, therefore, the Court found that "plaintiff made the requisite showing that service by e-mail was `reasonably calculated to apprise defendant of the pending lawsuit and thus satisfie[d] due process'" (Safadjou v. Mohammadi, 105 AD3d 1423, 1425, 964 NYS2d 801 [4 Dept.,2013], citing Harkness v. Doe, 261 AD2d 846, 847 [4th Dept.,1999]). Unlike the facts and circumstances presented in Safadjou, in the application before this Court plaintiff has failed to sufficiently authenticate the Facebook profile as being that of defendant and has not shows that, assuming arguendo that it is defendant's Facebook profile, that defendant actually uses this Facebook page for communicating. As such, plaintiff has not demonstrated that, under the facts presented here, service by Facebook is reasonably calculated to apprise defendant of the matrimonial action.

The act for divorce has a multitude of ancillary affects on the rights and liabilities of parties. The Court must be scrupulous in allowing service by a methodology most likely to give notice not only are one's economic responsibilities and rights to pay and receive maintenance and child support but rights to property, inheritance and most importantly the Constitutional right to custody and visitation [see generally Troxel v. Granville, 530 US 57, 120 S.Ct. 2054 [2000]. If the standard for review of an agreement in any matrimonial action is higher than that in a plenary action certainly the Court must be satisfied that there is some semblance of due process notice (see generally Kessler v. Kessler, 33 AD3d 42, 818 NYS2d 571 [2 Dept.,2006]).

Upon careful review of the profile pages annexed by plaintiff, which she purports to be defendant's profile, indicates that the profile has not been updated since April 27, 2014.^[1] The Court further notes that while plaintiff's counsel contends that plaintiff has communicated with defendant through Facebook the plaintiff's affidavit is entirely silent regarding any alleged communication with defendant through Facebook including any representation regarding dates when she communicated with defendant or that she communicated with defendant through this Facebook page. The Court notes that plaintiff did not annex copies of any of the alleged Facebook correspondence with defendant that she contends link him to this Facebook profile. Contrary to plaintiff's assertions she has not demonstrated that this profile is maintained by defendant and, therefore, while substituted service by publication may be appropriate under the facts and circumstances presented in the case at bar plaintiff has failed to establish that service of the summons by Facebook to this profile account would, under the facts as alleged here, be "reasonably calculated" to put defendant on notice. Furthermore, assuming arguendo that plaintiff had demonstrated this to be defendant's Facebook profile she has not demonstrated that defendant continues to use this profile currently since there is no indication that the profile has been used since April 2014. The Court notes that there is no sworn statement by plaintiff that she communicated with defendant through this Facebook profile nor are copies of any such correspondence which may support plaintiff's claim that the profile is maintained by defendant nor is there any representation made regarding when any alleged communication through Facebook took place. The only representation included in the application is plaintiff's counsel's affirmation that plaintiff told him that she communicates with defendant through this Facebook account.

Before the Court could consider allowing service by Facebook pursuant to CPLR 308(5) the record must contain evidence that the Facebook profile was one that defendant actually uses for receipt of messages. The Court notes that anyone can create a Facebook profile using accurate, false or incomplete information and there is no way, under the application currently pending, for the Court to confirm whether the profile proffered by plaintiff is in fact the defendant's profile and that he accesses it (see Fortunato v. Chase Bank USA, N.A., No. 11 Civ 6608 (JFK), 2012 WL 2086950 [S.D.NY, June 7, 2012]). Granting this application for service by Facebook under the facts presented by plaintiff would be akin to the Court permitting service by nail and mail to a building that no longer exists. For all of the foregoing reasons, plaintiff's application for permission to serve the summons upon defendant by Facebook is denied without prejudice.

This shall constitute the decision and order of the Court.

[1] While certainly not dispositive the Court notes that the only information listed on the profile is the name "Abdullah Alshalabi"; location of "Riyadh, Saudi Arabia"; seven (7) friends; and a profile picture of a geographic location not of an individual. The Court notes that plaintiff does not allege that she knows any of the "friends" to be family or friends of the defendant."

NEW YORK "COURT HELP"

 

See https://www.nycourts.gov/courthelp/

PUBLIC ACCOMMODATION EXEMPTIONS

The Americans with Disabilities Act (ADA) provides guidelines for what is necessary for organizations to provide accommodation to individuals with disabilities. While private clubs,religious entities and governments must comply with portions of the ADA, they are exempt from the ADA as it relates to public accommodation.

From Americans with Disabilities Act Title III Regulations, Part 36 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities (as amended by the final rule published on August 11, 2016):

"§ 36.102 Application.

...........

(e) Exemptions and exclusions. This part does not apply to any private club (except to the extent that the facilities of the private club are made available to customers or patrons of a place of public accommodation), or to any religious entity or public entity."

MLK

UNEMPLOYMENT INSURANCE - VOLUNTARY SEPARATION OR NOT - PART 2

The Appeal Board decision posted yesterday was reversed by the 3rd Department. MATTER OF GILL, 2016 NY Slip Op 8140 - NY: Appellate Div., 3rd Dept. 2016:

"Claimant initially worked for the employer as a welder. Following an injury resulting in his extended absence from work, the employer terminated claimant's employment in April 2013 for staffing reasons. Shortly thereafter, in June 2013, claimant was rehired by the employer as a boiler mechanic. He subsequently filed several grievances contesting, among other things, the denial of a pay increase and vacation leave. In addition, between February 2014 and April 2014, claimant made several requests for leaves of absence for differing reasons. The employer initially denied these requests, but ultimately granted claimant an indefinite leave of absence on April 28, 2014. Following an arbitration hearing, claimant signed a settlement agreement under which he received a payment of $10,000 from the employer and agreed to resign from his position effective May 1, 2014.

Thereafter, claimant filed an application for unemployment insurance benefits. His application was initially denied on the ground that he was disqualified from receiving benefits because he voluntarily left his employment without good cause. Claimant requested a hearing and, at its conclusion, an Administrative Law Judge sustained the initial determination. The Unemployment Insurance Appeal Board, however, reversed this decision and ruled that claimant was entitled to receive benefits. The employer now appeals.

Under the circumstances presented, claimant's resignation and acceptance of the $10,000 payment in settlement of outstanding grievances and other claims constitutes a voluntary separation from employment disqualifying him from receiving unemployment insurance benefits (see Matter of Livingston [Hudacs], 210 AD2d 721, 722 [1994]; Matter of Mathison [County of Dutchess—Hudacs], 203 AD2d 832, 832-833 [1994], lv denied 83 NY2d 760 [1994]). There is no indication that claimant was forced to accept the settlement agreement or that he was subject to disciplinary action if he did not. Consequently, the Board's decision finding claimant eligible to receive benefits is not supported by substantial evidence and must be reversed. Although the employer maintains that claimant is subject to a forfeiture of benefits based upon his willful misrepresentation, this issue was not before the Board and is not properly before this Court."

UNEMPLOYMENT INSURANCE - VOLUNTARY SEPARATION OR NOT - PART 1

Mailed and Filed: APRIL 01, 2015IN THE MATTER OF: Appeal Board No. 584131:

OPINION: The credible evidence establishes that the claimant was separated from his employment on April 28, 2014. The evidence fails to establish, however, that such separation was voluntary. The claimant was not granted his previously requested and denied three weeks of leave on April 28, 2014, nor had he asked to go on three weeks' leave starting on that date. Rather, the claimant was involuntarily placed on an indefinite leave without pay on April 28, 2014. He was not allowed to work on Tuesday, April 29, 2014, or thereafter, and his inquiries as to why he was then being placed on leave and about returning to work went unanswered by the employer. This was an involuntary separation for unemployment insurance purposes, and accordingly, the determination of voluntary separation without good cause must be overruled. The claimant's signature on the settlement agreement dated June 10, 2014, in which he purportedly resigned effective May 1, 2014, and whatever he may have indicated to the Department of Labor about the reason for his separation when and after he filed his claim are immaterial - as he had already been separated involuntarily for unemployment insurance purposes on April 28, 2014.

UNEMPLOYMENT INSURANCE CLASSIFICATION OF EMPLOYEE - PART 2

The Appeal Board case posted yesterday was reversed. MATTER OF TMR SECURITY CONSULTANTS, INC. v. Commissioner of Labor, 2016 NY Slip Op 8922 - NY: Appellate Div., 3rd Dept. 2016 - and note the footnote was to the test utilized:


"Whether there exists an employment relationship is a factual issue for resolution by the Board and its decision will not be disturbed when supported by substantial evidence" (Matter of Greystoke Indus. LLC [Commissioner of Labor], 142 AD3d 746, 746 [2016] [internal quotation marks and citations omitted]; see Matter of Eray Inc. [Commissioner of Labor], 136 AD3d 1129, 1130 [2016]). "Although no single factor is determinative, the relevant inquiry is whether the purported employer exercised control over the results produced or the means used to achieve those results, with control over the latter being the more important factor" (Matter of Davis [Niagara Falls Hous. Auth.— Commissioner of Labor], 142 AD3d 1269, 1270 [2016] [internal quotation marks, brackets and citations omitted]; accord Matter of Dwyer [Nassau Regional Off-Track Corp.—Commissioner of Labor], 138 AD3d 1369, 1370 [2016]; see Matter of Duno [Anthony Stone Investigative & Sec. Servs., Inc.—Commissioner of Labor], 120 AD3d 1512, 1513 [2014]).^[1]

The record evidence reveals that TMR posted security-related jobs on a secure website for its clients, who dictated the hours to be worked, as well as the scope of services that were needed. The security officers, after browsing through these postings, would request to work on any particular job, which TMR ultimately awarded on a "first come, first serve" basis. The security officers were free to select a job that they wanted and were not prohibited from seeking jobs from TMR's competitors. TMR did not provide the security officers with training or equipment nor did TMR pay the security officers a set hourly rate. Furthermore, once TMR placed the security officer with a client, TMR did not enter into a contract with the security officer. While a security officer could be in the middle of a continuing job for a client, he or she was nonetheless free to leave at any point and work elsewhere. In addition, if an issue arose with the security officer's performance, the client dealt with the security officer directly, and TMR would be notified if it needed to provide a substitute security officer. Inasmuch as the proof of incidental control relied upon by the Board does not support the conclusion that the security officers were employees (see Matter of Yoga Vida NYC, Inc. [Commissioner of Labor], 28 NY3d 1013, 1016 [2016]), under the circumstances of this case, the Board's decision must be reversed (see Matter of Chan [Market Force Info.—Commissioner of Labor], 128 AD3d 1146, 1146-1147 [2015]; Matter of Lee [Encore Nationwide Inc.—Commissioner of Labor], 127 AD3d 1399, 1399-1400 [2015]; Matter of Jennings [American Delivery Solution, Inc.— Commissioner of Labor], 125 AD3d 1152, 1153 [2015]; Matter of John Lack Assoc., LLC [Commissioner of Labor], 112 AD3d 1042, 1043-1044 [2013]; Matter of Best [Lusignan—Commissioner of Labor], 95 AD3d 1536, 1537-1538 [2012]).

Egan Jr., J.P., Lynch, Rose and Clark, JJ., concur.

ORDERED that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court's decision.

[1] To the extent that we have applied the overall control test to determine whether an employer-employee relationship exists in unemployment insurance cases involving individuals providing security services (see Matter of Lobban [Precinct Sec. & Investigations, Inc.—Commissioner of Labor], 131 AD3d 1294, 1294 [2015]; Matter of Klotz [Blue Perimeter, Inc.—Commissioner of Labor], 127 AD3d 1459, 1460 [2015]; Matter of Ray Catena Corp. [Commissioner of Labor], 274 AD2d 819, 820 [2000]), such cases should no longer be followed for that proposition."

UNEMPLOYMENT INSURANCE CLASSIFICATION OF EMPLOYEE - PART 1

Mailed and Filed: DECEMBER 23, 2016 IN THE MATTER OF: Appeal Board No. 585930:

OPINION: The credible evidence establishes that the company herein exercised sufficient direction, supervision and control over the claimant to demonstrate an employment relationship. In Matter of Concourse Ophthalmology Associates, PC, 60 NY2d 734 (1983), the Court held that whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact; that no one factor was determinative; and that an employment relationship could be found even if other evidence in the record would have supported a contrary conclusion. In the case at hand, the written agreement subjected him and any helpers or drivers he might use to drug and alcohol testing; barred him from disclosing confidential information regarding the company or its customers; and prohibited him competing with the company for 12 months following termination of services. He was provided with company identification and was required to use communications equipment that was compatible with the company's system. His work was subject to deadlines. The company handled customer complaints. Moreover, if customers did not pay the company, the claimant still got paid (See Matter of Voisin, 134 AD3d 1186 [3d Dept 2015]; see also Matter of Garbowski, 136 AD3d 1079 [3d Dept 2016]). The fact that the claimant used his own vehicle and signed a written agreement designating him an independent contractor is not dispositive (See e.g. Matter of Kelly, 28 AD3d 1044 [3d Dept 2006]; Matter of CDK Delivery Service, Inc., 151 AD2d 932 [3d Dept 1989]).

The employer's reliance on Matter of Jennings, 125 AD3d 1152 [3d Dept 2015] is misplaced. In that case, the claimant paid all of his expenses including tolls, whereas in the case at hand, the claimant was reimbursed for some tolls. Moreover, in Jennings, the employer did not impose any conditions on the way that claimant performed his work, whereas in the case at hand, the written agreement provided conditions. Additionally, deadlines were imposed for deliveries. Finally, in the case at hand, the company restricted the claimant from competing with it.

As to the company's contention that its control over the couriers was mandated by government regulations, e.g., the Department of Transportation regulations concerning background checks and drug testing, the employer exercised or reserved the right to exercise sufficient amount of supervision, direction or control above and beyond such regulations (Compare Matter of Choto, 82 AD3d 1369 [3d Dept 2011]; Matter of Leazard, 74 AD3d 1414 [3d Dept 2010]; and Matter of Wannen, 57 AD3d 1029 [3d Dept 2008]). As the company exercised sufficient supervision, direction and control over the claimant's services to establish his status as an employee of the company, we conclude that the company should be held liable for additional contributions.

DECISION: The decision of the Administrative Law Judge is reversed. The employer's objection, that the claimant and all other persons similarly situated were independent contractors, is overruled.

FREE FORECLOSURE CLINIC TODAY

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

STAYING EVICTIONS OUTSIDE NYC

DEUTSCHE BANK NATL. v. Oliver, 24 Misc. 3d 838 - NY: Dist. Court, Nassau County, 1st Dist. 2009:

"The court must reject the petitioner's contentions. CPLR 2201 broadly empowers the court to grant a stay of proceedings "in a proper case, upon such terms as may be just." The propriety of granting a stay in any given case is limited only by "the Court's own sense of discretion, prudence, and justice" (Matter of Joseph v Cheeseboro, 42 Misc 2d 917, 919 [1964, Greenfield, J.], revd on other grounds 43 Misc 2d 702 [1964]).

Contrary to petitioner's contention, the RPAPL does not constrain the court. Indeed, the provisions cited by petitioner (RPAPL 753) on their face apply only to proceedings "to recover the possession of premises in the city of New York" (RPAPL 753 [1]). A different section (RPAPL 751) once incorporated provisions relating to discretionary stays "outside the city of New York" (RPAPL 751 [4] [a]). The latter provisions, however, were effective "only until September first, nineteen hundred sixty-seven" (RPAPL 751 [e]). In any event, the provisions of section 751, like the provisions of section 753, literally apply only to stay applications "before a warrant is issued" (RPAPL 751; see Errigo v Diomede, 14 Misc 3d 988, 991 [2007]; New York City Hous. Auth. v Witherspoon, 12 Misc 3d 899, 905 [2006]).

Postwarrant stay applications accordingly are governed by the more general provisions of CPLR 2201 and traditional equitable principles (Canigiani v Deptula, 59 Misc 2d 401 [1969, Niehoff, J.]). This is not to suggest that there are no limits upon the exercise of the court's discretion. Both within and outside the City of New York, judges are cognizant that "there must be some limitations on their discretion to stay issuance and/or execution of a warrant" (see New York City Hous. Auth. v Witherspoon at 906). But it is equally well established that judges retain the equitable power to "mold ... relief to accord with the exigencies of the case" (see Newman v Sherbar Dev. Co., 47 AD2d 648 [2d Dept 1975], discussed in New York City Hous. Auth. v Witherspoon at 908).

Accordingly, the court rejects petitioner's contention that the court's authority is limited by the RPAPL. To the contrary, the court's power to act is firmly grounded in CPLR 2201 as made applicable under section 212 of the Uniform District Court Act (see Canigiani v Deptula, supra).

REAPPOINTING ATTORNEY FOR THE CHILD

MATTER OF TROMBLEY v. Payne, 2016 NY Slip Op 7475 - NY: Appellate Div., 4th Dept. 2016:

"The court properly denied the mother's objection to the reappointment of the Attorney for the Children (AFC) (see Matter of Mills v Rieman, 128 AD3d 1486, 1487; Matter of Leichter-Kessler v Kessler, 71 AD3d 1148, 1149; Matter of Petkovsek v Snyder [appeal No. 6], 251 AD2d 1087, 1087-1088, lv dismissed in part and denied in part 92 NY2d 942). In making an appointment of an AFC, "the court shall, to the extent practicable and appropriate, appoint the same attorney who has previously represented the child" (Family Ct Act § 249 [b]). Inasmuch as there is no support in the record for the mother's contention that the AFC was biased against her, there was no reason for the court to appoint a new AFC (see generally Matter of Kristi L.T. v Andrew R.V., 48 AD3d 1202, 1206, lv denied 10 NY3d 716)."

WHEN DOING SOMETHING OFF THE JOB IS MISCONDUCT

MATTER OF ROY v. Commissioner of Labor, 2016 NY Slip Op 2885 - NY: Appellate Div., 3rd Dept. 2016:

"Substantial evidence supports the Unemployment Insurance Board's determination that claimant was discharged from his position as a food service worker in a nursing home due to disqualifying misconduct. Claimant was obligated "even during his off-duty hours, to honor the standards of behavior which his employer has a right to expect of him and . . . he may be denied unemployment benefits as a result of misconduct in connection with his work if he fails to live up to this obligation" (Matter of Markowitz [New York City Human Resources Admin.—Roberts], 94 AD2d 155, 156 [1983]; see Matter of Punter [Ross], 43 NY2d 743, 744 [1977]; Matter of Moniz [Nucor Steel Auburn, Inc.—Commissioner of Labor], 126 AD3d 1251, 1252 [2015]). Here, the record contains evidence that claimant created violent and sexually explicit videos using "LEGO" characters, including characters depicting the executive director of the nursing home, claimant's department head and two female coworkers, and posted the videos online. Although claimant testified that he was depicting celebrities and fictional characters in his movies, and not his coworkers, this presented a credibility issue for the Board to resolve (see Matter of Manieson [Commissioner of Labor], 119 AD3d 1312, 1313 [2014]; Matter of Portis [Commissioner of Labor], 118 AD3d 1195, 1196 [2014]). Under these circumstances, we perceive no basis to disturb the Board's determination that claimant engaged in disqualifying misconduct."

NEW LAW FOR REAL ESTATE BROKERS AND SALESMEN

Paragraph (a) of subdivision 3 of section 441 of the Real Property Law is now amended, in the hope of promoting consumer protection, by requiring real estate licensees to, upon the licensee’s initial renewal, have two hours of instruction particularly relating to the law of agency. Thereafter, such license renewal would require at least one hour of instruction in the law of agency, providing real estate professionals with continuing education to help ensure a full understanding by the consumer of the roles agency relationships play in real estate transactions.

 " (a) No renewal license shall be issued any licensee under this article for any license period commencing November first, nineteen hundred ninety-five unless such licensee shall have within the two year period immediately preceding such renewal attended at least twenty-two and one-half hours which shall include at least three hours of instruction pertaining to fair housing and/or discrimination in the sale or rental of real property or an interest in real property, AT LEAST ONE HOUR OF INSTRUCTION PERTAINING TO THE LAW OF AGENCY EXCEPT IN THE CASE OF THE INITIAL TWO-YEAR LICENSING TERM FOR REAL ESTATE SALESPERSONS, TWO HOURS OF AGENCY RELATED INSTRUCTION MUST BE COMPLETED, and successfully completed a continuing education real estate course or courses approved by the secretary of state as to method, content and supervision, which approval may be withdrawn if in the opinion of the secretary of state such course or courses are not being conducted properly as to method, content and supervision. For those individuals licensed pursuant to subdivision six of section four hundred forty-two-g of this article, in the individual's initial license term, at least eleven hours of the required twenty-two and one-half hours of continuing education shall be completed during the first year of the term. Of those eleven hours, three hours shall pertain to applicable New York state statutes and regulations governing the practice of real estate brokers and salespersons. To establish compliance with the continuing education requirements imposed by this section, licensees shall provide an affidavit, in a form acceptable to the department of state, establishing the nature of the continuing education

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted."

NEW LAW ON TINTED WINDOWS

From the DMV:

"Effective January 1st 2017, examination of tinted or shaded windows will be required during motor vehicle inspections.

Section 375 (12-a) of the NYS Vehicle and Traffic Law does not allow a windshield or front side windows that are dark.

• The windshield and front side windows cannot block more than 30% of the light.
• Seventy percent or more of the light from the outside must pass through the window.
  
• This law also applies to the rear window unless the vehicle has outside rear-view mirrors on both sides.
• The mirrors must give the driver a full and clear view behind the vehicle.
  
• Rear side windows must also allow at least seventy percent of light from the outside to pass through the window if the vehicle is classified as a
• station wagon
• sedan
• hardtop
• coupe
• hatchback
• convertible

A vehicle falls into one of these categories if it is labeled “Passenger Car” on the Federal ID label found on the left front door panel.

It is illegal to sell, offer for sale, or install glass that does not comply with this law. It is illegal to operate a vehicle with glass that does not comply with this law.

NYS Health department regulations specify that only the following medical conditions may be used to justify an exemption from the limits on light transmittance. If you have one of the medical conditions below that require you to have tinted vehicle windows, you may request an exemption from the law using the Application for Tinted Window Exemption (MV-80W).

• Porphyria
• Xeroderma Pigmentosa
• Severe Drug Photo-Sensitivity"