HIGH COST AND LENGTH OF MATRIMONIAL LITIGATION

And this case did not involve custody issues as the children were adult.

The parties were married in 1967. Forty years later in 2007, an action for divorce is commenced. Six years later in 2013, the trial court issues a decision and the wife appealed from so much of the judgment which failed to award her maintenance and expert fees, and awarded her counsel fees only to the extent of awarding her the sum of $87,000. Four years later, in March 2017, the Second Department issues its decision in OSTROWER v. OSTROWER, 2017 NY Slip Op 1705 - NY: Appellate Div., 2nd Dept. 2017:

"The amount and duration of maintenance is a matter committed to the sound discretion of the trial court and each case must be determined on its unique facts (see Carr-Harris v Carr-Harris, 98 AD3d 548, 551; Mazzone v Mazzone, 290 AD2d 495, 496). The factors to be considered in awarding maintenance include "the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance" (Kret v Kret, 222 AD2d 412, 412; see Domestic Relations Law § 236[B][6][a]; Heymann v Heymann, 102 AD3d 832, 834; Meccariello v Meccariello, 46 AD3d 640, 641-642). In light of the substantial distributive share of the marital property that the plaintiff was awarded pursuant to the parties' stipulation, and the age and health of the parties, we decline to disturb the Supreme Court's determination denying the plaintiff spousal maintenance (see Heymann v Heymann, 102 AD3d at 834; Carr-Harris v Carr-Harris, 98 AD3d at 551-552; Haagen-Islami v Islami, 96 AD3d 1004, 1004-1005; Scher v Scher, 91 AD3d 842, 848). Furthermore, in light of the plaintiff's substantial distributive award, the court providently exercised its discretion in denying her application for expert fees (see Cooper v Cooper, 84 AD3d 854, 858; Grumet v Grumet, 37 AD3d 534, 536-537).

The determination of what constitutes reasonable counsel fees is within the Supreme Court's discretion (see Domestic Relations Law § 237[a]; DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881; Duffy v Duffy, 84 AD3d 1151, 1152; Kaplan v Kaplan, 51 AD3d 635, 637). In exercising its discretion, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions (see DeCabrera v Cabrera-Rosete, 70 NY2d at 881). Under the circumstances of this case, including the substantial distributive award which the plaintiff received pursuant to the parties' stipulation, and the fact that the bulk of both the plaintiff's and the defendant's counsel fees were paid from marital funds, the court providently exercised its discretion in limiting the plaintiff's counsel fee award to the balance owed to her attorneys, which was the sum of $87,000 (see Cotter v Cotter, 139 AD3d 995, 996; Matter of Brink v Brink, 55 AD3d 601, 602; Grumet v Grumet, 37 AD3d at 536-537; cf. Baron v Baron, 71 AD3d 807, 810-811)."

CHALLENGING PATERNITY

Zhu v. Pan, 2017 NY Slip Op 50468 - NY: Supreme Court 2017:

"The presumption that a child born during marriage is the biological product of the union is "one of the strongest and most persuasive known to the law" (Matter of Findlay, 253 NY 1, 7 [1930]; see Walker v Covington, 287 AD2d 572 [2d Dept 2001]; Fung v Fung, 238 AD2d 375, 375-376 [2d Dept 1997]). Nevertheless "the presumption does not consecrate as truth the extravagantly improbable" (id. at 8). In other words, the presumption is not "intended to suppress the truth and perpetuate a falsehood" (Constance G v Lewis L, 119 AD2d 209, 211 [2d Dept 1986] [internal citations omitted]). Rather, the presumption yields to "the sway of reason" and may be rebutted (Findlay, 253 NY at 7). Hence, the presumption prevails "unless common sense and reason are outraged by a holding it abides" (id.; see Constance G, 119 AD2d at 211). Clear and convincing evidence which excludes the husband as the father or otherwise tends to disprove the legitimacy of the child rebuts the presumption of legitimacy (see Walker, 287 AD2d at 572; Fung, 238 AD2d at 375-376). Where the presumption is rebutted, the court has authority to order a paternity test (see id. at 572-573; Fung, 238 AD2d at 376). Regardless, a party may invoke equitable estoppel as a defense to preclude the test (see id.; Fung, 238 AD2d at 376).

Equitable estoppel prohibits a person from asserting a claim that would prejudice another where he has led that other person to reasonably believe that he would not do so (see Juanita A v Kenneth Mark N, 15 NY3d 1, 5 [2010], citing Shondel J v Mark D, 7 NY3d 320, 326 [2006]). The law imposes equitable estoppel as a matter of fairness (see id.). Thus, where a man represents himself to be a child's father and it serves the child's best interests, equitable estoppel prevents him from denying paternity (see id., citing Shondel J, 7 NY3d at 326; see also Derrick H v Martha J, 82 AD3d 1236, 1238 [2d Dept 2011]). Equitable estoppel thereby protects "the status interests of a child in an already recognized and operative parent child relationship" (Shondel J, 7 NY3d at 327). The paramount concern is the best interests of the child (see Derrick H, 82 AD3d at 1238; Walker, 287 AD2d at 572-573; Fung, 238 AD2d 376).
A husband must overcome the presumption of legitimacy as well as equitable estoppel to obtain a paternity test of a child born during marriage. Mere proof that the wife engaged in adultery is insufficient to rebut the presumption (see Constance G, 119 AD2d at 211). Indeed, where "husband and wife are living together in the conjugal relation, legitimacy will be presumed, though the wife has harbored an adulterer" (Findlay, 253 NY at 8). Proof of the wife's adultery in conjunction with conclusive proof of the husband's nonaccess (see Family Ct Act § 531), however, will suffice to rebut the presumption (see Constance G, 119 AD2d at 211 [evidence of "recurrent acts of intercourse" between the wife and another man coupled with "corroborated and unshaken proof negating access" by the husband refuted the presumption]).

Where the husband rebuts the presumption of legitimacy and has no relationship with the child, equitable estoppel will not preclude a paternity test (see Michaleas v Michaleas, 136 AD3d 616 [2d Dept 2016]). For example, where uncontroverted evidence established that the wife had been in a sexual relationship with another man during the time that the three-year-old child was conceived; that the wife told the husband he was not the father; and that the husband had no relationship with the child, equitable estoppel did not bar genetic testing (id.). Similarly, where the husband filed for divorce shortly after learning of his pregnant wife's adulterous affairs and immediately disavowed paternity of the child, equitable estoppel should not have prevented a blood test (Murtagh v Murtagh, 217 AD2d 538, 539 [2d Dept 1995]).

On the other hand, the husband's unsubstantiated claims that his wife had committed adultery and repeatedly told him that he was not the child's father failed to rebut the presumption of legitimacy (Fung, 238 AD2d at 376). Moreover, because the husband was listed on the birth certificate, "consistently held himself out as the child's father," and waited almost a year and a half before challenging paternity^[2], he was equitably estopped from doing so (id.). Indeed, it was not in the child's best interests to order a blood test which "would have the potential to brand the child illegitimate without settling the issue of paternity" (id.). Comparably, in light of the presumption of legitimacy, and where the husband's surname was on the child's birth certificate; the child was registered in school under that name; and the husband waited four years to contest paternity, his paternity petition was properly dismissed under equitable estoppel (David L v Cindy Pearl L, 208 AD2d 502, 504 [2d Dept 1994]).

Here, Defendant presented no evidence that Plaintiff engaged in sexual intercourse with anyone other than himself during the time that L.P. was conceived. Moreover, Defendant consistently presented himself as L.P.'s father in a myriad of ways. L.P.'s birth certificate identifies Defendant as his father. Defendant declared L.P. as his dependent on his federal income tax returns. Defendant refers to L.P. as the "most beautiful son in the world" on his affidavit in support of Plaintiff's application for lawful permanent residency. Defendant identifies L.P. as his child on his net worth statement. Defendant lived with Plaintiff and L.P. as a family for almost two years before L.P. went to live in China. During that time, they went on outings, took vacation and posed for family pictures. Moreover, most recently, Defendant moved the court to order Plaintiff to have L.P. returned to New York and to allow Defendant to visit with him.
Consequently, Defendant has failed to rebut the presumption that L.P. is his legitimate child. In any event, he is equitably estopped from denying paternity. Regardless of whether or why it was interrupted, Defendant established a parent-child relationship with L.P., which is in the child's best interests to protect. Specifically, it would not benefit L.P. to order a genetic test which could brand him as illegitimate without resolving his paternity (see Fung, 238 AD2d at 476). Accordingly, Defendant's motion for a paternity test is denied.

SENIOR CITIZENS RIGHT TO TERMINATE LEASE

New York Real Property Law § 227-a provides for the right to terminate a residential lease by senior citizens moving to a residence of a family member or entering certain health care facilities, adult care facilities or housing projects. Thus if the senior citizen is relocating to senior citizen housing, an adult care facility or a residential health care facility such as a nursing home, upon proper notice to the landlord, the landlord must release the senior from any liability to pay rent through the balance of the lease term. The same is true if the senior citizen is relocating to subsidized low income housing in order to save money or to the home of a relative. If the senior prepaid his rent, the landlord is obligated to credit back to the senior any rent payments covering the period of time after the effective date of the notice of termination.

In addition, senior citizen rental facilities must also provide the following notice:

"NOTICE TO SENIOR CITIZENS: RESIDENTIAL LEASE TERMINATIONSECTION 227-a OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK ALLOWS FOR THE TERMINATION OF A RESIDENTIAL LEASE BY SENIOR CITIZENS MOVING TO A RESIDENCE OF A FAMILY MEMBER OR ENTERING CERTAIN HEALTH CARE FACILITIES, ADULT CARE FACILITIES OR HOUSING PROJECTS.

         Who is eligible? Any lessee or tenant who is age sixty-two years or older, or who will attain such age during the term of the lease or rental agreement, or a spouse of such person residing with him or her.
         What kind of facilities does this law apply to? This law will apply if the senior citizen is relocating to: A. An adult care facility; B. A residential health care facility; C. Subsidized low income housing; D. Senior citizen housing;  or E. A residence of a family member.
          What are the responsibilities of the rental property owner? When the tenant gives notice of his or her opportunity to move into one of the above facilities the landlord must allow: A. for the termination of the lease or rental agreement, and B. the release of the tenant from any liability to pay rent or other payments in lieu of rent from the termination of the lease in accordance with section 227-a of the real property law, to the time of the original termination date, and C. to adjust any payments made in advance or payments which have accrued by the terms of such lease or rental agreement.
            How do you terminate the lease? If the tenant can move into one of the specified facilities, he or she must terminate the lease or agreement in writing no earlier than thirty days after the date on which the next rental payment (after the notice is delivered) is due and payable.  The notice is deemed delivered five days after being mailed.  The written notice must include documentation of admission or pending admission to one of the above mentioned facilities. For example:  Mail the notice:  May 5th Notice received:  May 10th Next rental payment due:  June 1st Termination effective:  July 1st
             Will the landlord face penalties if he or she does not comply? Yes, according to section 227-a of the real property law, if anyone interferes with the removal of your property from the premises they will be guilty of a misdemeanor and will be either imprisoned for up to one year or fined up to $1000.00 or both."

COMMISSIONED SALESPERSONS - WRITING REQUIRED WHETHER EMPLOYEE OR INDEPENDENT CONTRACTOR

N.Y. Labor Law § 191(c) requires that agreements with commissioned sales workers be in writing and signed by the employer and the employee.

The statute provides:

"c. Commission salespersons.--A commission salesperson shall be paid the wages, salary, drawing account, commissions and all other monies earned or payable in accordance with the agreed terms of employment, but not less frequently than once in each month and not later than the last day of the month following the month in which they are earned;  provided, however, that if monthly or more frequent payment of wages, salary, drawing accounts or commissions are substantial, then additional compensation earned, including but not limited to extra or incentive earnings, bonuses and special payments, may be paid less frequently than once in each month, but in no event later than the time provided in the employment agreement or compensation plan.  The employer shall furnish a commission salesperson, upon written request, a statement of earnings paid or due and unpaid.  The agreed terms of employment shall be reduced to writing, signed by both the employer and the commission salesperson, kept on file by the employer for a period not less than three years and made available to the commissioner upon request.  Such writing shall include a description of how wages, salary, drawing account, commissions and all other monies earned and payable shall be calculated.  Where the writing provides for a recoverable draw, the frequency of reconciliation shall be included.  Such writing shall also provide details pertinent to payment of wages, salary, drawing account, commissions and all other monies earned and payable in the case of termination of employment by either party.  The failure of an employer to produce such written terms of employment, upon request of the commissioner, shall give rise to a presumption that the terms of employment that the commissioned salesperson has presented are the agreed terms of employment."

Also note for sales representatives who are not employees there is Labor Law 191-b:

"1. When a principal contracts with a sales representative to solicit wholesale orders within this state, the contract shall be in writing and shall set forth the method by which the commission is to be computed and paid.

2. The principal shall provide each sales representative with a signed copy of the contract.  The principal shall obtain a signed receipt for the contract from each sales representative.

3. A sales representative during the course of the contract, shall be paid the earned commission and all other monies earned or payable in accordance with the agreed terms of the contract, but not later than five business days after the commission has become earned."

Of course, the status of a sales representative as an independent contractor is a complex matter that depends on a number of factors.

See https://labor.ny.gov/legal/counsel/pdf/payment-of-commissions-frequently-asked-questions.pdf

SMALL CLAIMS LITIGATION - ABUSING THE SYSTEM?

Of course, not all litigation is frivolous. Some, such as court action to protect a child or prosecute a crime, is completely just and proper. However when legal arguments are not supported by the applicable laws, or are based on false testimony, or have been commenced simply to cause distress, harm or fear to the other party, the litigation is effectively a form of abuse attempted via the legal system. Small claims court is the "people's court" allowing litigants to bring an action without the need for counsel. But sometimes, counsel should be consulted to at least consider the merits of bring an action and maybe to tell the client that the proceeding might be considered frivolous.

This case was decided on April 14 - OMWATHATH v. MOOTOOSAMMY, 2017 NY Slip Op 50500 - NY: Appellate Term, 2nd Dept. 2017:

"Plaintiff commenced a Civil Court action against defendant, his former tenant, to recover unpaid use and occupancy, and defendant interposed a counterclaim for harassment. Plaintiff also commenced a separate small claims action to recover for damage that was allegedly done to the door of his apartment by defendant. The actions were consolidated by the Civil Court. At a nonjury trial, defendant testified that any rent arrears had been waived by plaintiff in a so-ordered stipulation in a proceeding brought in the Housing Part, and introduced into evidence a copy of the stipulation and a receipt stating that defendant had moved out of the apartment, "giving it back in good condition," and was returning the keys. Insofar as is relevant to this appeal by plaintiff, following the trial, the Civil Court dismissed the complaint and the cause of action that had been asserted in the small claims action.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

The Civil Court's determination is supported by the proof at trial. Plaintiff did not deny that he had signed the receipt proffered at trial stating that defendant vacated the premises and that the premises was in "good condition." Moreover, a review of the record establishes that plaintiff did not even allege that defendant damaged his door, much less establish the damages he allegedly sustained for the door's damage. In addition, the Civil Court could credit defendant's testimony that he timely vacated but was unable to contact plaintiff to return the keys until two days later."

JURISDICTION IN FAMILY COURT - WHEN CHILD NOT ALWAYS IN NY

MATTER OF BURDICK v. Boehm, 2017 NY Slip Op 2107 - NY: Appellate Div., 3rd Dept. 2017:

"Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a son (born in 2006), born in New York. In 2014, Family Court issued an order, on the parties' consent, granting the father's petition to modify a prior custody and visitation order, and awarded the parties joint custody of the child with placement with the mother effective June 25, 2014. The 2014 order granted the father visitation with the child during summer vacations and school breaks of three consecutive days or more and as the parties mutually agree. The father apparently remained in New York while the mother and child have lived in Illinois and then Wisconsin with various relatives^[1]. In May 2016, the father commenced this modification proceeding seeking sole custody of the child, alleging that, among other things, the mother lacks stable housing and is a substance abuser, and that the child has been living with either his maternal grandmother or great-grandmother since March 2016. Prior to a response by the mother, Family Court sua sponte dismissed the petition, finding that New York does not have continuing exclusive jurisdiction over the child's custody pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (see Domestic Relations Law art 5-A). The father appeals.^[2]

We reverse. A New York court that has previously made a child custody determination "has exclusive, continuing jurisdiction over the determination until . . . a court of this state determines that neither the child [nor] the child and one parent . . . have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships" (Domestic Relations Law § 76 — a [1] [a]; see Matter of Wengenroth v McGuire, 127 AD3d 1278, 1280 [2015], lv denied 25 NY3d 913 [2015]). In dismissing the petition, Family Court relied upon the fact that the child and the mother had not resided in New York for over two years and that the "events which [the father] asserts in support of his petition occurred in Wisconsin." However, the father, who shares joint custody of the child pursuant to the 2014 order and has apparently lived continuously in New York since before the 2014 custody order was issued, alleges in an affidavit in support of his petition that the child spent the prior summer — from June 22, 2015 to August 22, 2015 — with him in New York pursuant to the 2014 order^[3] (see Matter of Belcher v Lawrence, 98 AD3d 197, 200-201 [2012]; compare Matter of Wengenroth, 127 AD3d at 1280; Matter of Zippo v Zippo, 41 AD3d 915, 916 [2007]). The allegations in the petition, while somewhat confusing, further suggest that the child lived in New York from his birth until June 2014 and for a period of several months in early 2016, and that the child has a half sibling living with the father with whom he is bonded. According to the father, the child has his own room, a bank account, a YMCA membership and many familial and social relationships in New York.

Family Court "should have given the parties an opportunity to present evidence as to whether the child[ ] has maintained a significant connection with New York, and whether substantial evidence is available in New York concerning the child['s] `care, protection, training, and personal relationships'" (Pyronneau v Pyronneau, 130 AD3d 707, 708 [2015], quoting Domestic Relations Law § 76 — a [1] [a]). Given due process concerns, sua sponte dismissal of pleadings is to be used sparingly in the absence of extraordinary circumstances (see Wells Fargo Bank, N.A. v Pabon, 138 AD3d 1217, 1219 [2016]; Maynard v Maynard, 138 AD3d 794, 794 [2016]). Crediting the father's factual allegations at this early juncture,^[4] as we must, we find that the child continues to have significant connections to New York (see Matter of Seminara v Seminara, 111 AD3d 949, 950-951 [2013]; Matter of Mercado v Frye, 104 AD3d 1340, 1341 [2013], lv denied 21 NY3d 859 [2013]; Matter of Belcher v Lawrence, 98 AD3d at 200-201; Matter of Hissam v Mancini, 80 AD3d 802, 803 [2011], lv dismissed and denied 16 NY3d 870 [2011]; Matter of Sutton v Sutton, 74 AD3d 1838, 1839 [2010]; see also Vernon v Vernon, 100 NY2d 960, 972 [2003]). That is, while significant evidence concerning the child's current "care, protection, training, and personal relationships" (Domestic Relations Law § 76-a [1] [a]) may be in Wisconsin, the same may ultimately be said about New York, which retains significant connections with the father and the child. Family Court, which presided over the 2014 proceedings involving this child, is presumably more familiar with the parties than Wisconsin courts would be (see Matter of Snow v Elmer, 143 AD3d 1217, 1219 [2016]), and the testimony of the mother, grandmother and other relevant Wisconsin witnesses could be presented "by telephone, audiovisual means, or other electronic means" (Domestic Relations Law § 75-j [2]; see Matter of Snow v Elmer, 143 AD3d at 1219). Thus, we find that Family Court erred in summarily concluding that it was divested of its exclusive, continuing jurisdiction to determine custody pursuant to Domestic Relations Law § 76-a (1) (a), and it should not have dismissed the petition on this ground at this early stage and on this limited record.
........

[1] The record does not reflect whether the mother obtained a court order authorizing her move out of state with the child.
[2] The mother has not submitted a brief or letter on appeal although contacted and requested to do so.
[3] The father's brief on appeal represents that the child also spent the summer of 2016 with him in New York.
[4] On a motion to dismiss pursuant to CPLR 3211 (a), the facts as alleged in the petition are accepted as true (see Matter of Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Likewise here, where the petition was dismissed without a motion, sua sponte, Family Court was bound to credit the father's allegations in his petition."

THE EXTENT OF POWERS UNDER KENDRA'S LAW

Matter of Raymond G., 119 AD 3d 685 - NY: Appellate Div., 2nd Dept. 2014:

"The petitioner commenced this proceeding pursuant to Mental Hygiene Law § 9.60 seeking an order directing Raymond G. to comply with Assisted Outpatient Treatment (hereinafter AOT). The petition alleged that Raymond G. was a person over 18 years of age suffering from mental illness, was unlikely to survive safely in the community without supervision, had a history of lack of compliance with treatment for mental illness, and had been hospitalized at least twice within the preceding 36 months. The petition was supported by an affirmation of Dr. Evelyn Wasserman, a psychiatrist who had evaluated Raymond G. and determined that he met the statutory criteria for AOT, as well as a prepared treatment plan worksheet pursuant to Mental Hygiene Law § 9.60, a medication worksheet, and an alcohol/substance abuse treatment worksheet, outlining the treatment and medications Dr. Wasserman recommended.

At the hearing on the petition, Dr. Wasserman, the petitioner's only witness, testified as to her evaluation and diagnosis of Raymond G., his extensive history of treatment noncompliance and resulting hospitalizations, and his need for an AOT order. She described the AOT plan she recommended, and opined that it was the least restrictive feasible and appropriate alternative for Raymond G. In her testimony, Dr. Wasserman mentioned that Raymond G. owned or possessed a vehicle to which he had unrestricted access; however, she did not opine as to whether he 686*686 should be prevented from driving. Thereafter, in an order and judgment dated January 13, 2014, the court granted the petition, directed that Raymond G. receive AOT, and further directed that any vehicle he operated or possessed be impounded. Raymond G. appeals from so much of the order and judgment as directed the impoundment of the subject vehicle.

Mental Hygiene Law § 9.60, commonly known as Kendra's Law, "provides a framework for the judicial authorization of involuntary outpatient treatment programs for persons suffering from mental illnesses" (Matter of William C., 64 AD3d 277, 279 [2009]). It sets forth, inter alia, the types of outpatient services that may be ordered by the court as part of an AOT plan, the requirements for the petition, and the procedures for a hearing on the petition (see Mental Hygiene Law § 9.60 [a] [1]; [e] [2]-[3]; [h] [1]).

The statute defines AOT as follows: "`assisted outpatient treatment' shall mean categories of outpatient services which have been ordered by the court pursuant to this section. Such treatment shall include case management services or assertive community treatment team services to provide care coordination, and may also include any of the following categories of services: medication; periodic blood tests or urinalysis to determine compliance with prescribed medications; individual or group therapy; day or partial day programming activities; educational and vocational training or activities; alcohol or substance abuse treatment and counseling and periodic tests for the presence of alcohol or illegal drugs for persons with a history of alcohol or substance abuse; supervision of living arrangements; and any other services within a local services plan developed pursuant to article forty-one of this chapter, prescribed to treat the person's mental illness and to assist the person in living and functioning in the community, or to attempt to prevent a relapse or deterioration that may reasonably be predicted to result in suicide or the need for hospitalization" (Mental Hygiene Law § 9.60 [a] [1]).

The statute requires that the petition be accompanied by an affirmation or affidavit of an examining physician who recommends AOT (see Mental Hygiene Law § 9.60 [e] [3] [i]), and directs that the court "shall not order [AOT]" unless it is provided with a proposed written treatment plan developed by a physician appointed by the applicable community services or hospital director, which includes "all categories of services, as set forth in [§ 9.60 (a) (1)], which such physician recommends that the [patient] receive," "no later than the date of the hearing on the petition" (Mental Hygiene Law § 9.60 [i] [1]). Further, 687*687 the statute provides that the court "shall not order [AOT] unless [the] physician appearing on behalf of [the] director testifies to explain the written proposed treatment plan [and] state[s] the categories of [AOT] recommended, the rationale for each such category, [and] facts which establish that such treatment is the least restrictive alternative" (Mental Hygiene Law § 9.60 [i] [3]).

Following the hearing, the court "may" order AOT if it finds by "clear and convincing evidence that the [patient] meets the criteria for [AOT], and there is no appropriate and feasible less restrictive alternative" (Mental Hygiene Law § 9.60 [j] [2]). The order must include specific findings "by clear and convincing evidence that the proposed treatment is the least restrictive treatment appropriate and feasible for the [patient]," and "state an [AOT] plan, which shall include all categories of [AOT], as set forth in [§ 9.60 (a) (1)], which the [patient] is to receive" (Mental Hygiene Law § 9.60 [j] [2]). The order "shall not include any such category that has not been recommended in both the proposed written treatment plan and the [physician's hearing] testimony" (Mental Hygiene Law § 9.60 [j] [2]).

In light of this statutory framework, the Supreme Court's inclusion of the impoundment provision in the AOT order here was improper. Impounding a patient's vehicle is not among the specifically enumerated types of services Mental Hygiene Law § 9.60 (a) (1) authorizes, nor does it fit within the final category listed in that paragraph of "any other services within a local services plan developed pursuant to [Mental Hygiene Law article 41], prescribed to treat the person's mental illness and to assist the person in living and functioning in the community, or to attempt to prevent a relapse or deterioration," inasmuch as it was not "prescribed" by Dr. Wasserman, and does not fall within the scope of article 41 (see Mental Hygiene Law §§ 41.01, 41.03 [15]; cf. Matter of William C., 64 AD3d at 287). Moreover, the impoundment of Raymond G.'s vehicle was not included in the written treatment plan Dr. Wasserman recommended, nor was it recommended, explained, and deemed the least restrictive feasible and appropriate alternative by her when she testified at the hearing. As such, the court lacked the authority to issue such a directive as part of the AOT plan (see Mental Hygiene Law § 9.60 [i] [1], [3]; [j] [2]; Matter of Gail R. [Barron], 67 AD3d 808, 811-812 [2009]).

Accordingly, that portion of the AOT order which directed that Raymond's vehicle be impounded must be reversed.

CHILD CUSTODY - TO BE ABLE TO MODIFY OUT OF STATE CUSTODY ORDER

MATTER OF INTRIAGO v. DIAZ-GARCIA, 2017 NY Slip Op 1357 - NY: Appellate Div., 2nd Dept. 2017:

"The subject child was born in 2007 and, on May 26, 2009, the Court of Common Pleas, Lebanon County, Pennsylvania, issued a custody order granting the mother primary physical custody and the father partial custody and visitation. Sometime after May 26, 2009, but before April 1, 2015, both parties relocated to New York. On April 1, 2015, the mother moved to New Jersey, but the subject child stayed with the father in New York until early June 2015. On November 9, 2015, the father commenced this proceeding in the Family Court, Kings County, to modify the Pennsylvania custody order. Based upon the mother's April 1, 2015, move to New Jersey, the Family Court found that the subject child's home state was New Jersey and dismissed the father's petition for lack of subject matter jurisdiction. The father appeals.

Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relation Law article 5-A; hereinafter UCCJEA), a court of this state may modify a child custody determination made by a court of another state if the court has jurisdiction to make an initial determination under Domestic Relations Law § 76(1)(a) or (b), and, inter alia, "the child, the child's parents, and any person acting as a parent do not presently reside in the other state" (Domestic Relations Law § 76-b[2]). A court has jurisdiction to make an initial custody determination pursuant to Domestic Relations Law § 76(1)(a) if "this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state" (emphasis added). Under the UCCJEA, the definition of "home state" includes, in relevant part, "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. . . . A period of temporary absence of any of the mentioned persons is part of the period" (Domestic Relations Law § 75-a[7]).

Here, the Family Court erred in determining that New Jersey was the child's home state based upon the mother's April 1, 2015, move to New Jersey, since the child resided with the father in New York until early June 2015, and the father commenced this proceeding less than six months later, on November 9, 2015. Therefore, the child did not live with the mother in New Jersey for at least six consecutive months immediately before the commencement of the proceeding. Domestic Relations Law § 76(1)(a) permits New York courts to exercise jurisdiction if, inter alia, New York "was the home state of the child within six months before the commencement of the proceeding." However, as the record does not disclose the date the child moved to New York, we cannot determine whether the child resided in New York for a period of six consecutive months prior to June 2015, so as to establish this state as his home state (see Domestic Relations Law § 75-a[7]) for purposes of Domestic Relation Law § 76(1)(a). Accordingly, the matter must be remitted to the Family Court, Kings County, for further proceedings to determine whether the Family Court had jurisdiction to modify the Pennsylvania custody order.

Contrary to the father's contention, registration of the Pennsylvania custody order in New York pursuant to Domestic Relations Law § 77-d was not sufficient to confer exclusive, continuing jurisdiction over this custody matter pursuant to Domestic Relations Law § 76-a (see Schroeder v Schroeder, 658 NW2d 909, 912 [Minn Ct App]; Jamil v Jahan, 280 Mich App 92, 102, 760 NW2d 266, 272).

In light of the foregoing, the attorney for the child's alternative contention that New Jersey would be a more convenient forum (see Domestic Relations Law § 76-f) is premature."

FREE SENIOR LAW CLINIC TODAY

The next Senior Clinic is scheduled for today 9:30-11am at the Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501.

I will be one of the volunteer lawyers.

GENERAL RULES ON ACTIONS AGAINST CO-OP BOARD

Sims v. Firstservice Corp., 2017 NY Slip Op 30104 - NY: Supreme Court 2017:

"Before shareholders may commence a derivative action, they must make a demand upon the corporation to commence the action, unless such demand would be futile (Marx v. Akers, 88 N.Y.2d 189 [1996]). Under the rule that the plaintiff may commence a derivative action only after demanding that the board of directors initiate a suit, a demand will be considered futile if the complaint alleges with particularity: 1) that the majority of the directors are interested in the transaction; 2) that the directors failed to inform themselves to a degree reasonably necessary about the transaction; or 3) that the directors failed to exercise their business judgment in approving the transaction (id.).

"Under the business judgment rule, which applies to the directors of residential cooperative corporations, absent a showing of discrimination, self-dealing or misconduct by board members, corporate directors are presumed to be acting in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes" (Jones v. Surrey Coop. Apts., 263 A.D.2d 33, 36 [1st Dept., 1999] (internal citation and quotation marks omitted)). "Thus, without a showing of a breach of fiduciary duty to the corporation, judicial inquiry into the actions of corporate directors is prohibited, even though `the results show that what [the directors] did was unwise or inexpedient'" (id.).

A cooperative board owes a fiduciary duty to further the collective interests of the cooperative (40 W. 67th St. v. Pullman, 100 N.Y.2d 147, 150 [2003]). The business judgment rule prohibits judicial inquiry into the actions of the board of directors of a cooperative undertaken in good faith and in furtherance of the cooperative's business (id.)."

CHILD SUPPORT AGREEMENTS - WHERE AMOUNT VARIES WITH INCOME

Decker v. Decker, 2017 NY Slip Op 1614 - NY: Appellate Div., 3rd Dept. 2017:

"Plaintiff (hereinafter the mother) and defendant (hereinafter the father) are the divorced parents of a daughter (born in 1995) and a son (born in 1998). In 2005, the parties stipulated to a separation agreement that was incorporated but not merged into the judgement of divorce. The agreement set forth the father's child support obligation based upon his then-current income of just under $50,000 and provided that the father's income would be subject to reevaluation each year. To facilitate the yearly reevaluation, the agreement provided that the parties would exchange their "proper and complete" income tax returns each year, and the father's child support obligation would "rise or fall" based upon his annual income in accordance with the Child Support Standards Act (see Domestic Relations Law § 240 [1-b]). In November 2014, the mother moved to enforce the agreement, alleging, among other things, that the father had failed to provide her with a copy of his tax returns for several years and, as a result, he had underpaid his child support obligation. The father then moved for, among other things, an order terminating the tax exchange provision of the agreement. Following a hearing, Supreme Court granted the mother's motion, calculated the arrears owed by the father for 2011, 2012, 2013 and 2014, set the father's monthly child support obligation going forward and denied the father's motion. The father now appeals.

Despite the father's efforts to limit any increases in his child support obligation by entering into a series of post-judgment oral agreements with the mother, she did not waive her right to collect the child support contemplated by their separation agreement. Although a parent can expressly waive his or her right to unpaid child support, such a waiver must evince a "voluntary and intentional abandonment of a known right" (Matter of Williams v Chapman, 22 AD3d 1015, 1017 [2005] [internal quotation marks and citations omitted]; accord Matter of Hastie v Tokle, 122 AD3d 1129, 1129-1130 [2014]). Here, although the record establishes that the father negotiated child support increases with the mother in 2009, 2012 and 2013, he readily acknowledged that he consistently failed to provide the mother with a copy of his annual income tax returns and, therefore, she was unaware that his annual income eventually exceeded $350,000. Significantly, the father testified that the mother did, in fact, request "more information" than what he verbally provided to her, but he told her that he did not "have to give [her his] full and complete tax returns because the law is supportive of that." According to the mother, she requested a copy of the father's tax returns each year, but he refused to comply, telling her that they were too complicated for her to understand and, because he was no longer residing in New York, he was not subject to the Child Support Standards Act. In light of the father's efforts to conceal the true extent of his income, we agree with Supreme Court that the mother did not voluntarily and intentionally waive her right to any unpaid child support (see Matter of Hastie v Tokle, 122 AD3d at 1130; compare Hannigan v Hannigan, 104 AD3d 732, 734-735 [2013], lv denied 21 NY3d 858 [2013]; Matter of O'Connor v Curcio, 281 AD2d 100, 105 [2001]).
.......
Finally, we find no merit to the father's assertion that the tax return exchange provision is unworkable, and we cannot agree that Supreme Court erred in denying his request to terminate it. In our view, this provision is the only practical means by which the parties can determine the appropriate amount of child support without the court's annual intervention. To the extent that the father is concerned about the privacy of the Social Security numbers of his wife and their children, those numbers can be redacted. The father's remaining contentions have been considered and determined to be lacking in merit."

ACTIONS AGAINST EMPLOYERS FOR WRONGS DONE BY EMPLOYEE

ARRASATE v. WESTHAMPTON BEACH UFSD, 2017 NY Slip Op 30508 - NY: Supreme Court 2017  wherein a teacher was convicted of unlawful surveillance in the second degree and endangering the welfare of a child for placing a cell phone in a school locker room and video recorded it.

"With regard to the School District defendants' motion for summary judgment, "[g]enerally, where an employee is acting within the scope of his or her employment, the employer is liable for the employee's negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision or training" (Quiroz v Zottola, 96 AD3d 1035, 1037, 948 NYS2d 77 [2d Dept 2012]; see Timothy Mc. v Beacon City Sch. Dist., 127 AD3d 826, 7 NYS3d 348 [2d Dept 2015]). Here, the School District defendants established their prima facie entitlement to summary judgment as a matter of law dismissing the portions of plaintiffs' complaint alleging that they may be held vicariously liable for Sheppard's misconduct, as the alleged conduct is a clear departure from the scope of a physical education teacher's employment, and is unrelated to the furtherance of their business (see "John Doe 1" v Board of Educ. of Greenport Union Free Sch. Dist., 100 AD3d 703, 955 NYS2d 600 [2d Dept 2012]; N.X. v Cabrini Med. Ctr., 97 NY2d 247, 739 NYS2d 348 [2002]; Dia CC v Ithaca City Sch. Dist., 304 AD2d 955, 758 NYS2d 197 [3d Dept 2003]).

As to the claims of negligent hiring and negligent supervision, a plaintiff must show that the employer was on notice of a propensity to commit the alleged acts in order to recover against an employer for negligent retention or negligent supervision of an employee (see Doe v Chenango Val. Cent. School Dist., 92 AD3d 1016, 938 NYS2d 360 [3d Dept 2012]; G.G. v Yonkers Gen. Hosp., 50 AD3d 472, 858 NYS2d 11 [1st Dept 2008]; Doe v Rohan, 17 AD3d 509, 793 NYS2d 170 [2d Dept 2005]). Here, the School District defendants established that they did not have notice of Sheppard's propensity to commit the alleged acts. Miller testified at her deposition testimony that she conducted an interview of Sheppard, which was followed by interviews of him conducted by the athletic director and a committee of teachers. She testified that after the assistant superintendent and superintendent performed reference checks on Sheppard, he was hired because he had extraordinarily strong references, connected with the students during the teaching demonstration, and was able to coach multiple sports. Furthermore, Miller testified that Sheppard had no blemish on his record and that parents and students wanted him as a teacher. In opposition, plaintiffs failed to raise a triable issue of fact. While plaintiffs contend that Miller did not have personal knowledge regarding any reference or fingerprint checks relating to Sheppard's hiring, an employer is under no duty to inquire as to whether an employee has been convicted of crimes in the past (see Day v J. Vlachos Hellenic Serv. Station, Inc., 2 AD3d 482, 767 NYS2d 893 [2d Dept 2003]; Yeboah v Snapple, Inc., 286 AD2d 204, 729 NYS2d 32 [1st Dept 2001]). Nevertheless, there is no evidence to suggest that Sheppard had a criminal history prior to the subject incident.

The complaint does not assert a cause of action alleging infliction of emotional distress. However, to the extent that any of the causes of action against the School District defendants could be construed to include a claim for negligent infliction of emotional distress, to establish such a claim, a plaintiff must demonstrate "[a] breach of the duty of care resulting directly in emotional harm is compensable even though no physical injury occurred when the mental injury is a direct, rather than a consequential, result of the breach and when the claim possesses some guarantee of genuineness" (Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1, 6, 852 NYS2d 1 [2008]; see Sawitsky v State of New York, 146 AD3d 914, 46 NYS3d 423 [2d Dept 2017]; Taggart v Costabile, 131 AD3d 243, 14 NYS3d 388 [2d Dept 2015]). Moreover, such an action generally requires a plaintiff to show a breach of a duty owed to her which unreasonably endangered her physical safety, or caused her to fear for her own safety (see Sacino v Warwick Val. Cen. School Dist., 138 AD3d 717, 29 NYS3d 57 [2d Dept 2016]). Here, the intervening act of Sheppard in using his cell phone in an attempt to record infant plaintiff and other students in the girls' locker room is a superseding cause which severed the causal nexus between the School District defendants' alleged negligence and the claimant's alleged injuries. Moreover, nothing in the evidence demonstrates that infant plaintiff's physical safety was unreasonably endangered or that she was caused to fear for her own safety.

TO MEDIATE WITHOUT SEPARATE COUNSEL

Recently, I had a conversation with an individual who sought a divorce through mediation but did want separate counsel.

This was one of the problems in Massari v. Massari, 2017 NY Slip Op 50412 - NY: Supreme Court 2017 which was decided about 8 days ago. It was a long term marriage of about 40 years. The husband - defendant "consulted an attorney and was referred to a mediator...on the belief that a mediated outcome would be less costly than a divorce trial. Plaintiff assented to the choice of [the mediator], and the parties entered into a mediation agreement with her. [The mediator] provided mediation services between March 2012 and September 2012. In July 2012, after approximately six or eight sessions, the parties executed a Separation Agreement. Then, in September 2012, they executed a Modification Agreement."

However the wife did obtain separate counsel and waived her right to maintenance:

"Prior to the July Agreement, Plaintiff requested maintenance. The mediator advised her that she was entitled to it. Defendant opposed to paying Plaintiff maintenance and to giving her one half of his 401-k. According to Plaintiff, Defendant was willing to do one or the other, but not both. The parties discussed the issue of maintenance, and Plaintiff told the mediator she thought it was "unfair". She claimed she was unaware she was entitled to seek and obtain the advice of counsel, despite the Agreement's express language that states, in part:

"The Parties acknowledge that the terms of this Agreement have been mediated through the efforts of Melissa Goodstein, Esq. The Parties acknowledge that they have each had the opportunity, and have been advised by their mediator on several occasions to obtain independent counsel of their own selection prior to entering into this Agreement. The Parties acknowledge that they have not consulted with nor retained an attorney with respect to this Agreement although they have strongly been advised to do so. They agree that this should in no way affect the legality or enforceability of this Agreement and that they have each chosen not to use an attorney on their own accord."

(Article XV, §3)"

The court set aside the waiver of maintenance:

"Here, the parties' freedom to enter into an enforceable agreement is conditioned on the statutory requirements that such agreement is "subject to the provisions of Section 5-311 of the General Obligations Law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment." DRL §236(B)(3). The Court heard the parties' testimony and found the agreement was fair and reasonable at the time of the making. That finding is consistent with the requirements of Christian v. Christian, 42 NY2d 63, 72-73 (1977), where the threshold focus is on the procedural components forming the agreement. See also Levine v. Levine, 56 NY2d 42, 47 (1982). Insofar as DRL §236(B)(3) requires the court to conclude the terms of the agreement "are not unconscionable at the time of entry of final judgment," a separate examination is required — the court must consider changes to a spouse's economic status including the possibility that a spouse may become a public charge. Certainly, a Judgment incorporating an Agreement, which deprives a party of income after a forty-year-marriage, raises the possibility of unconscionability.

As Justice Ecker observed, the severability of the maintenance provision in the Agreement allows for the preservation of the remaining provisions. Consequently, the Court need not disturb the provisions which equally distribute the marital estate. The Court has no intention of re-writing the Agreement. Cappello v. Cappello, 286 AD2d 360 (2d Dept. 2001). It is unnecessary to do so. The Complaint seeks not only to set aside the Agreement but also an award of non-durational spousal maintenance to the Plaintiff. The trial testimony included some evidence of the parties' financial status and current Statements of Net Worth. Plaintiff's Statement of Net Worth reflects a gross income of $11,352.00 per year ($10,526.00 net) from her part-time employment as a receptionist in a hair salon. The interest income on her 401-k funds is unknown. Her claimed expenses are $3,414.00/month, inclusive of a claimed housing expense of $1,500.00/month, without any indication of payments to her daughter. Her limited housing costs are due to her residing in her daughter's basement apartment. Once the Judgment is entered, Plaintiff will have an additional — albeit unknown — expense for health insurance, which will be paid from her distributive award, depleting it rapidly.^[11] The 2016 federal poverty guidelines for a single person household is $11,880.00. In 2017, that figure rises to $12,060.00.^[12] Defendant's income is $76,608.00/year, exclusive of overtime or a second job, but consistent with his income during the marriage, which provided the parties' marital standard of living. His monthly gross income is $6,099.58 (net is $4,019.94). He also has a significant housing cost of $2,024.00 inclusive of mortgage and taxes, arising from his refinance of the marital residence to purchase Plaintiff's interest. His Statement of Net Worth indicates a monthly condominium cost, which may assist the parties' younger daughter, or may be a timeshare expense, but it is not otherwise identified. He can still contribute $1,039.00/month to his 401-k and he budgets $208.00/month for vacations. While marital assets were distributed equitably, Defendant remains in a position to significantly improve his comfortable standard of living. The Court concludes there is a manifest unfairness in enabling Defendant to maintain a comfortable standard of living, while relegating Plaintiff to a poverty level lifestyle. Christian v. Christian, supra. Accordingly, the Court awards maintenance to the Plaintiff in the amount of $1,000.00 per month, commencing on the entry of Judgment herein and continuing until Defendant reaches the age of 66 and he is eligible for full Social Security benefits, at which time Plaintiff will be eligible for her full Social Security benefits based on her contributions, and her marriage to Defendant. Consequently, Defendant shall continue to maintain his life insurance as set forth in Article XIII of the Agreement.

[11] Given Plaintiff's health history, it is unknown if she will be able to obtain insurance, even if she has "access" to it, especially with the proposed radical changes to the Affordable Care Act.
[12] See https://aspe.hhs.gov./poverty guidelines. The Court takes judicial notice of this information."

PASSOVER GREETINGS

ATTORNEY DUTY TO REGISTER

Matter of Cluff, 2017 NY Slip Op 1753 - NY: Appellate Div., 3rd Dept. 2017:

"Amanda Lynn Cluff was admitted to practice by this Court in 2012 and has previously listed a business address in Brielle, New Jersey with the Office of Court Administration (hereinafter OCA). By affidavit sworn to June 16, 2016, Cluff seeks leave to resign from the New York bar for nondisciplinary reasons (see Uniform Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.22 [a]). The Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) opposes the application by correspondence from its Chief Attorney.
......
Inasmuch as Cluff is ineligible for nondisciplinary resignation, her application for that relief must be denied. According to OCA records, and as is emphasized by AGC, Cluff is presently delinquent in her New York attorney registration requirements, having failed to register for the 2016-2017 biennial period (see Judiciary Law § 468-a; Rules of the Chief Admin of Cts [22 NYCRR] § 118.1). It is beyond cavil that the failure to duly register constitutes "conduct prejudicial to the administration of justice" (Judiciary Law § 468-a [5]) and, therefore, attorney misconduct (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 8.4 [d]; see also Matter of Attorneys in Violation of Judiciary Law § 468-a, 113 AD3d 1020, 1021 [2014]; Matter of Arms, 251 AD2d 743, 743-744 [1998]; Matter of Ryan, 238 AD2d 713, 713-714 [1997]; Matter of Farley, 205 AD2d 874, 874-875 [1994]). Accordingly, Cluff's failure to duly register is a bar to her nondisciplinary resignation, and her application must be denied (see Matter of Frank, 146 AD3d 1228, 1228-1229 [2017]). Further, any future application by Cluff must be supported by proof of her full satisfaction of the requirements of Judiciary Law § 468-a and Rules of the Chief Administrator of the Courts (22 NYCRR) § 118.1 (see id.)."

FROM HOFSTRA VETERANS LAW

"Dear Valued Attorneys,

Thank you so much for coming out this past Saturday to extend your services to our Veterans! We truly appreciate all of your time that you were able to dedicate to helping serve those who have served us. We know that the Veterans were so thankful for your consultation and advice. Thank you, and we look forward to seeing you at our next Clinic this coming fall semester.

We truly appreciate your time and effort, 

The Hofstra Veterans Law Executive Board and Members"

EVICTING A HOARDER - ANOTHER VIEW

222 E. 12 REALTY v. SO, 2017 NY Slip Op 27000 - NY: Appellate Term, 1st Dept. 2017:

There was a dissent and here it is in part:

"Moreover, any alleged breach by tenant was de minimus, given that the first inspection was not an issue (and, therefore, presumably, plaintiff was in compliance with the parties's stipulation during the first six (6) months of the one (1) year probationary period), tenant cooperated with APS with the initial organization of his unit, and provided proof that he in fact remedied any clutter condition, quickly after the second inspection. Any breach was particularly de minimus, especially when weighed against landlord's eight (8) immediately hazardous violations and 16 hazardous violations placed on the building and landlord's own actions causing any alleged breach by tenant, because of its construction, which indisputably caused flooding and dust to accumulate in So's unit, and landlord's requiring the immediate removal of tenant's possessions from his long-term storage area in the basement, causing tenant to temporarily store some additional possessions in his unit just prior to the second inspection, and for which, tenant, nonetheless, received no building violations on his apartment, unlike landlord's 24 immediately hazardous/hazardous building violations.

In any event, even if it was determined that tenant breached the stipulation, as this court recently acknowledged, pursuant to RPAPL 753 (4)^[7], tenant must be afforded a post-judgment opportunity to cure (see Roger Morris Apt. Corp. v Varela, 2016 NY Slip Op 51697[U][App Term, 1st Dept 2016], citing Cutler v North Shore Towers Assoc., 125 AD2d 532 [1st Dept 1986]), and/or the lower court should have, at the very least, have considered tenant's evidence, which showed that he had in fact cured any alleged aggravated conditions, which were caused by landlord's actions, prior to the hearing. Such statute, which provides for the automatic granting of "a ten day stay of issuance of the warrant, during which time the respondent may correct such breach" was enacted to "permit tenants to remain in possession by curing [a] violation after the rights of the parties have been adjudicated" (Post v 120 E. End Ave. Corp., 62 NY2d 19, 27 [1984]. Significantly, "RPAPL 753 (4) is procedural and remedial in nature and ... [is to] be liberally construed to spread its beneficial effects as widely as possible" (id.; see also Lincoln Terrace Assoc. v Snow, 1983 NY Misc LEXIS 4233 [App Term, 1st Dept 1983]["[RPAPL 753 (4)], remedial in nature, should be broadly applied wherever possible to avoid needless and unwarranted forfeitures of dwelling spaces"]). Indeed, RPAPL 753 (4) has been applied where, as here, there has been a nuisance adjudication based on excessive clutter (see 4G Realty v Vitulli, 2 Misc 3d 29 [App Term, 2d Dept 2003]).

An opportunity to cure is particularly warranted in this case, given tenant's age (65 years old), his long-term (38 year) rent stabilized tenancy, the de minimus nature of the alleged breach, his efforts at mitigating any alleged condition prior to the hearing, and the undisputed need for and prior involvement of Adult Protective Services (APS)^[8] (see Trump Village Section 3, Inc. v Birnbaum, 2002 NY Slip Op 50646[U][App Term, 2d and 11th Jud Dist][where tenant failed to timely comply with the terms of settlement by curing cluttered condition, execution of warrant was permanently stayed since proof established that tenant cured the cluttered condition, prior to entry of the final judgment]. The evidence produced at the hearing falls short of establishing a breach of the stipulation sufficient to warrant a forfeiture of this 35 year rent stabilized tenancy. "It is a well-settled principle of equity that courts do not look favorably upon the forfeiture of leases" (2246 Holding Corp. v. Nolasco, 52 AD3d 377 [1st Dept 2008][citations omitted]; see also Dino Realty Corp. v. Khan, 46 Misc 3d 71 [App Term 2d Dept, 2d, 11th & 13th Jud Dists 2014][stating that "the law abhors forfeiture of leases" and that "it is the policy of New York State to prevent unnecessary evictions, particularly of rent-stabilized tenants" [internal citations omitted]).

Accordingly, I would reverse, or, at minimum, remand for consideration of whether landlord caused the alleged breach by depriving tenant of the basement storage space and/or by landlord's construction causing dust and flooding of tenant's apartment^[9], and whether tenant cured any alleged condition, prior to the hearing, and/or, nevertheless, qualified for a stay, pursuant to RPAPL 753(4)."

EVICTING A HOARDER

222 E. 12 REALTY v. SO, 2017 NY Slip Op 27000 - NY: Appellate Term, 1st Dept. 2017:

"Landlord commenced this nuisance holdover proceeding upon allegations that garbage and other debris were "crammed from floor to ceiling" in tenant's single room occupancy (SRO) unit, creating a health, fire and safety hazard to other tenants. The proceeding was settled by a two-attorney, so-ordered stipulation that provided for a 10-month probationary period, during which tenant would refrain from "maintaining the subject premises in an unsanitary and unsafe manner" by "cramming" such "garbage, trash, boxes and bags[]" as listed in the "termination notice." The stipulation provided for specified inspection dates of the premises and enabled landlord, upon an alleged breach, to move to restore the proceeding for "an immediate hearing" on the "sole issue of whether the nuisance conditions exist." The stipulation further provided that if the court found that the nuisance conditions were present, landlord would be entitled to a possessory judgment and issuance of the warrant "with no further stays."

Upon a scheduled inspection of tenant's unit, landlord moved to restore the case, claiming that tenant breached the stipulation. Following a hearing, Civil Court concluded that "the evidence shows that the condition of the subject premises" was in a "nuisance condition, depicting an undue accumulation of items such as boxes and garbage bags," and that tenant was therefore in breach of the stipulation. The Court awarded landlord a possessory judgment with no stay of issuance of the warrant "[a]s the stipulation does not allow for a stay."

The stipulation, properly construed by Civil Court under settled contract principles (see Hotel Cameron, Inc. v Purcell, 35 AD3d 153, 155 [2006]) according to the plain meaning of its terms (see Greenfield v Philles Records, 98 NY2d 562, 569 [2002]), reveals that its aim was to cure the "Collyer"-type condition in tenant's residential unit. Civil Court's determination that tenant breached the stipulation rested upon a fair interpretation of the evidence, including (1) the credited testimony of landlord's employee who inspected tenant's room on one of the scheduled inspection dates during the probationary period and (2) date-stamped photographs depicting the overwhelming accumulation of papers, refuse and debris stacked throughout the unit on the inspection date (see Hotel Cameron, Inc. v Purcell, 35 AD3d at 155; see also Cabrini Terrace Joint Venture v O'Brien, 71 AD3d 486 [2010], lv dismissed 15 NY3d 888 [2010]). Given the court's fully-supported findings, and affording proper effect to the plain terms of the stipulation, which expressly provided for "no further stays," Civil Court properly declined to stay execution of the warrant (see 565 Tenants Corp. v Adams, 54 AD3d 602 [2008]; 521 East 72nd St. Realty Co., LLC v Borovicka, 26 Misc 3d 139 [A], 2010 NY Slip Op 50244[U] [App Term, 1st Dept 2010]).

We also note that efforts were previously taken to assist tenant in curing the condition so that he could avoid eviction. Adult Protective Services conducted a deep cleaning of the unit prior to execution of the probationary stipulation, but tenant has obviously been unable to maintain the premises, as required, on a long-term basis. "Evidently, the problem has not been solved, and cannot be solved with a directive [to cure the condition]" (Zipper v Haroldon Ct. Condominium, 39 AD3d 325, 326 [2007]; see Cabrini Terrace Joint Venture v O'Brien, 71 AD3d at 486; Matter of Chi—Am Realty, LLC v Guddahl, 33 AD3d 911 [2006])."

Tomorrow - the dissent.