COMMERCIAL LITIGATION - ACCOUNT STATED

Caring Professionals, Inc. v Landa, 2017 NY Slip Op 05803, Decided on July 26, 2017 Appellate Division, Second Department:

"An account stated is an agreement, express or implied, between the parties to an account based upon prior transactions between them with respect to the correctness of account items and a specific balance due on them which is independent of the original obligation (see Clean Earth of N. Jersey, Inc. v Northcoast Maintenance Corp., 142 AD3d 1032, 1035; Citibank [S.D.], N.A. v Brown-Serulovic, 97 AD3d 522, 523). An essential element of an account stated is that the parties came to an agreement with respect to the amount due (see Episcopal Health Servs., Inc. v POM Recoveries, Inc., 138 AD3d 917, 919; Cameron Eng'g & Assoc., LLP v JMS Architect & Planner, P.C., 75 AD3d 488, 489).

Upon reargument, the Supreme Court properly determined that the plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law on the cause of action to recover on an account stated. The plaintiff's evidentiary submissions did not establish that the parties came to an agreement with respect to the amount of the balance due (see Raytone Plumbing Specialties, Inc. v Sano Constr. Corp., 92 AD3d 855, 856)."

SNOW REMOVAL LIABILITY

Yes, it's summer but winter is coming. In this recent Appellate Division Second Department case on legal malpractice, the court discusses the general rules on liability for snow removal. Balan v Rooney, 2017 NY Slip Op 05801, Decided on July 26, 2017, Appellate Division, Second Department:

""[A] landowner generally cannot be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter'" (Weller v Paul, 91 AD3d 945, 947, quoting Mazzella v City of New York, 72 AD3d 755, 756; see Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d 1177; Salvanti v Sunset Indus. Park Assoc., 27 AD3d 546). "However, once a landowner elects to engage in snow removal activities, it is required to act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm" (Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d at 1177; see Salvanti v Sunset Indus. Park Assoc., 27 AD3d at 546; Chaudhry v East Buffet & Rest., 24 AD3d 493).

Here, the defendant failed to demonstrate his prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for legal malpractice on the ground that the plaintiff could not have prevailed in an action against the property owner. While the defendant demonstrated, prima facie, through certified meteorological data and the plaintiff's deposition testimony, that the accident occurred less than one hour after the snowstorm ceased, he did not eliminate triable issues of fact as to whether the property owner created or exacerbated a hazardous condition through negligent snow removal efforts (see Anderson v Landmark at Eastview, Inc., 129 AD3d 750, 751; Salvanti v Sunset Indus. Park Assoc., 27 AD3d at 546-547; Chaudhry v East Buffet & Rest., 24 AD3d at 494). In particular, in light of the plaintiff's deposition testimony, a triable issue of fact exists as to whether the property owner, upon clearing snow from a small portion of the premises, had left a pile of snow that the plaintiff had to "lift [her] leg" to "cross" over, causing her to slip and fall. Accordingly, that branch of the defendant's motion which was for summary judgment dismissing the legal malpractice cause of action should have been denied."

CUSTODY/VISITATION NOT AN ISSUE WHEN CHILDREN REACH MAJORITY

MATTER OF DE OLIVEIRA v. De Oliveira, 2017 NY Slip Op 5223 - NY: Appellate Div., 2nd Dept. 2017:

"The father's appeal from the order denying his petition for visitation with the parties' daughters must be dismissed as academic, since their daughters are now more than 18 years of age (see Matter of Julian B. v Williams, 97 AD3d 670, 670-671; Matter of Bartley v Pringle, 90 AD3d 653)."

There are many approaches, counseling, etc. available for parents with estranged children. For example, see http://www.rejectedparents.net/

FROM LEVITTOWN COMMUNITY COUNCIL

ARE MARKETING FEES FOR CLIENT REFERRALS LEGAL?

Not according to New Jersey and several other states. See the article in:

http://www.abajournal.com/news/article/avvo_violates_nj_ethics_rules_banning_fee_sharing_lawyer_referral_payments/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email

NYC CRACKDOWN ON PET SITTERS

Recent news stories have come out NYC's crackdown on pet sitters. The law in question is Article 161 of the NYC Health Code and specifically:

"§161.15 Keeping of small animals for sale, boarding, grooming, or training.

(a) No animals shall be sold or held for sale, or boarded, groomed or trained in a room in which a person lives. No aquatic animals, as defined in Article 81 of this Code, except live food fish species from a source authorized by applicable law to supply such fish or live fish in an ornamental aquarium, shall be sold or held for sale or kept in the same place where food or drink is sold for human consumption.

(b) The holder of a permit issued pursuant to §161.09 or the person in charge of the place for which the permit is issued, shall provide any individual seeking to purchase, adopt, groom, train, or board a dog, showing no evidence of licensure, with a dog license application, furnished by the Department, which shall be completed by the individual. The holder of a permit to operate a pet shop or shelter or person in charge thereof, shall not transfer possession, title, ownership, control or custody of any dog to a prospective purchaser or adopter without first requiring the purchaser or adopter to submit a completed application for a dog license and to pay all required license fees unless such purchaser or adopter shall execute and submit to such permittee a written statement that the dog to be purchased or adopted is to be harbored outside the City. The operator of a shelter issued a permit by the 14 Department shall not release an unlicensed dog to any person unless the person shall complete an application for a license and tender the license fees required by law. Such holder of a permit or person in charge shall forward such completed application and license fees to the Department in such manner as may be specified by the Department, consistent with the New York City Dog License Law enacted by the State legislature (Chapter 115 of the Laws of 1894, as amended). The license shall be issued by the Department.

(c) A holder of a permit to keep small animals for sale or for boarding, grooming or training, or to shelter homeless animals, shall maintain and keep for one year a record of purchases and sales and/or a record of boarding, grooming, training, providing shelter for homeless animals, or adoption services rendered. When a dog or cat is purchased, sold, adopted or kept, the permittee shall make an entry in the record which shall contain the name and address of the person from whom it was purchased and of the person to whom it was sold or given for adoption or of the person who ordered boarding, grooming, or training services for such animals, and a complete description of the animal, including its age, sex and breed. The permittee shall on at least a monthly basis report to the Department on a form furnished by the Department all licensed and unlicensed dogs which have been sold, adopted, groomed, trained, boarded, sheltered, or otherwise served. Such form shall include the name and address of the dog owner and license number of all licensed dogs as well as any other descriptive information regarding such dog as may be required by the Department.

(d) A holder of a permit to keep small animals for sale, boarding, grooming or training shall not sell or hold for sale, boarding, grooming or training a dog or cat which is affected with or which has been exposed to a disease which is communicable among such animals, and shall not keep such animals unless it is under the care of a licensed veterinarian.

(e) Proof of vaccinations required. (1) Proof of rabies vaccination. Holders of permits to operate animal boarding kennels, grooming parlors, training establishments and pet shops providing boarding, grooming and/or training services must obtain proof from the owner of each dog, cat or other animal that is provided services that the animal is currently vaccinated for rabies, provided that there is a USDA approved rabies vaccine for such animal, or that the animal has a medical condition for which rabies vaccination is contraindicated. A copy of a rabies vaccination certificate or signed letter from a veterinarian verifying the animal’s vaccination status or exemption from vaccination will constitute such proof. Such proof must be maintained on the premises and provided to the Department upon request. (2) Other vaccinations for dogs. (A) Boarding kennels and training establishments. Holders of permits to operate animal boarding kennels, training establishments and pet shops providing boarding, grooming and/or training services must obtain proof from the owner of each dog provided services that such dog is currently actively vaccinated against distemper, adenovirus, parainfluenza, parvovirus and Bordetella, or a letter from a veterinarian that the animal has a medical condition for which vaccination is contraindicated. Such proof may include, but is not limited to, (i) a receipt from a veterinary office for vaccines provided, (ii) a summary of a veterinary visit prepared by the veterinary office indicating such vaccines were administered, or (iii) a copy of a signed letter from a veterinarian stating that the dog has been so vaccinated or that the dog has a medical condition for which vaccination is contraindicated. The accepted proof must 15 be maintained on the premises for a period of not less than one year and provided to the Department upon request. (B) Grooming parlors. A holder of a permit to operate a grooming parlor where only grooming services are provided must obtain from the owner of each dog that is provided services either (i) a sworn statement of the owner that the dog is currently actively vaccinated against distemper, adenovirus, parainfluenza, parvovirus and Bordetella, or (ii) a receipt from a veterinary office for vaccines provided, (iii) a summary of a veterinary visit prepared by the veterinary office indicating such vaccines were administered, or (iv) a copy of a signed letter from a veterinarian stating that the dog has been so vaccinated or that the dog has a medical condition for which vaccination is contraindicated. An owner’s sworn statement must include the name and contact information of the veterinarian who administered the vaccinations. The accepted proof must be maintained on the premises for a period of not less than one year, and provided to the Department upon request.

(f) Cage or box dryers prohibited. Facilities that care for or provide services to small animals shall not dry any such animal using a cage or box dryer or any other dryer that is equipped with a heating element that is not handheld."

CAN RENT BE COLLECTED FOR AN ILLEGAL APARTMENT?

Madden v. Juillet, 2015 NY Slip Op 50214 - NY: Appellate Term, 2nd Dept. 2015

"....Defendant cross-appeals from the judgment, arguing that she does not owe the $800 which was awarded to plaintiff for April 2012 rent because the premises was an illegal basement apartment and because plaintiff breached the warranty of habitability.

.......

Contrary to defendant's contention, the absence of a certificate of occupancy for the lower-level apartment does not bar the recovery of rent (see Sinclair v Ramnarace, 36 Misc 3d 150[A], 2012 NY Slip Op 51671[U] [App Term, 9th & 10th Jud Dists 2012]; Pickering v Chappe, 29 Misc 3d 6 [App Term, 2d, 11th & 13th Jud Dists 2010]; Schweighofer v Straub, 23 Misc 3d 132[A], 2009 NY Slip Op 50730[U] [App Term, 9th & 10th Jud Dists 2009]; Corbin v Briley, 192 Misc 2d 503 [App Term, 9th & 10th Jud Dists 2002]; Tuzel v Reilert, NYLJ, Dec. 3, 1996 [App Term, 9th & 10th Jud Dists])."

IS THERE A DEFENSE TO NO FAULT DIVORCE?

This question arose when an individual consulted me on Avvo. They were advised that their "friend" could not get a no fault divorce because the court stated they have to first attempt counseling before they could establish an irretrievable breakdown.

That would be an interesting defense but would conflict with the purpose of the no fault rule. As noted in LAB v. BM, 2014 NY Slip Op 51069 - NY: Supreme Court 2014:

"Plaintiff's complaint seeks a divorce based on "no-fault" grounds, the irretrievable breakdown in the parties' relationship for at least six months pursuant to DRL § 170(7). Defendant has not cross claimed for divorce on different grounds. Although Referee Ratner's report indicates that the grounds for divorce are not resolved, this Court agrees with the case law which holds that there is no defense to a party seeking a divorce based on irretrievable breakdown in the parties' relationship and "a plaintiff's self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on the ground that it is irretrievably broken down." D.R.C. v A.C., 32 Misc 3d 293, 306 [Sup. Ct. Nassau County 2011]; Vahey v Vahey, 35 Misc 3d 691, 694 [Sup. Ct. Nassau County 2012]."

GIVING BACK TO THE COMMUNITY

BRINGING BACK PREFERENTIAL RENT RIGHTS IN NYC?

As reported recently in The Village Voice:

"Before June 2003, landlords who gave tenants preferential rents had to continue them as long as the current tenant stayed in the apartment, with any increases based on the discounted rent rather than the legal maximum. But on the last night of that year’s legislative session, the Republican-dominated state senate amended the state’s about-to-expire rent-stabilization law to let owners raise preferential rents when the tenant renewed his lease, unless the lease explicitly forbade it. The senate then adjourned, leaving the Democratic-controlled assembly with the choice of accepting its changes or letting rent stabilization itself die."

Senator Liz Kruger has introduced Senate Bill S3712 2017-2018 Legislative Session, to amend the emergency tenant protection act of nineteen seventy-four and the administrative code of the city of New York, in relation to the regulation of rents and which will prohibit an owner from adjusting the amount of preferential rent upon the renewal of a lease. The bill is currently in committee. The Senator notes:

"As housing costs increase across the City of New York, the displacement of working families and middle class residents from rent regulated apartments has resulted in a housing crisis. The displacement of rent regulated tenants has been aggravated by a landlord's ability to abandon a preferential rent upon the renewal of a lease.

Prior to a change in law, a preferential rent was permanent for the duration of a tenancy and could only be increased upon vacancy. However, as a result of amendments to the law in 2003, landlords are now permitted to abandon a discounted, preferential rent and impose the statutory rent upon vacancy or renewal of a lease. Pursuant to this provision, tenants throughout New York City have faced sudden and unanticipated rent increases upon lease renewal. As a result, many tenants cannot pay new rental payments and have been forced out of their rent-regulated apartments.

Equally problematic is that there is no "clean hands" requirement that a landlord conduct him/herself responsibly when abandoning a preferential rent and imposing the maximum rent upon vacancy. If a tenant leaves an apartment that is uninhabitable due unsanitary conditions, lack of heat, hot water, electricity, repairs, etc., a landlord can precipitously increase rent upon the vacancy of an apartment. As such, the law encourages bad actors to deprive tenants of a habitable apartment in order to benefit from the ability to abandon a preferential rent.

In order to stem the displacement crisis in New York City and preserve the affordable housing stock available to working families and moderate-income residents, the rent regulation laws are in need of reform. This proposed amendment of the preferential rent provisions is an important step in that direction."

DRUG USE AND LAWYERS

https://www.nytimes.com/2017/07/15/business/lawyers-addiction-mental-health.html?smprod=nytcore-iphone&smid=nytcore-iphone-share

ON AVVO

NEW RULES FOR NY ATTORNEYS - CLE REQUIREMENTS

Part 1500, Title 22 of the Official Compilations of Codes, Rules and Regulations of the State of New York - recent change

"CLE PROGRAM RULE §1500.22 Minimum Requirements

(a) Credit Hours.  Each attorney shall complete a minimum of 24 credit hours of accredited continuing legal education each biennial reporting cycle in ethics and professionalism, skills, law practice management, areas of professional practice, or diversity, inclusion and elimination of bias, at least four (4) credit hours of which shall be in ethics and professionalism and at least one (1) credit hour of which shall be in diversity, inclusion and elimination of bias.  Ethics and professionalism, skills, law practice management, areas of professional practice, and diversity, inclusion and elimination of bias are defined in §1500.2. The ethics and professionalism and diversity, inclusion and elimination of bias components may be intertwined with other courses. [effective July 1, 2018]

Attorneys due to re-register on or after July 1, 2018 must meet this requirement"

RENTAL PERMITS AND THE TOWN OF HUNTINGTON

As reported in Newsday, a federal court dismissed an action against the Town of Huntington filed by a coalition of landlords.  The plaintiff's objected to a rental permit law adopted by the town requiring non-owner-occupied landlords to obtain a permit for the rental property every two years. The permit certifies that the home has been examined by an independent state-certified inspector, a Town of Huntington public-safety inspector or a licensed engineer. According to the town's website:

"Rental permits are not required when:

• The owner lives on the premises
• The owner's immediate family lives on the premises
• There is a homeowner's association on site
• There is a property management office on site" 

The objections were primarily based on constitutional grounds and a full copy of the decision can be viewed at  http://www.huntingtonny.gov/filestorage/13753/13757/17478/17524/Rental_Registration_Decision.pdf

SEVERANCE PAY AND UNEMPLOYMENT INSURANCE

From the DOL website:

"Q: How will dismissal or severance pay affect my Unemployment Insurance Benefits?

A: You may eligible to collect benefits under the following conditions: The weekly amount of dismissal/severance pay is less than the maximum weekly benefit rate


OR


The initial severance payment is made more than 30 days after the last day of your employment 


OR


The dismissal/severance pay is stopped


AND


You have enough earnings in the base period to establish a claim.


You must notify the TCC if you receive or will receive dismissal severance pay.  Failure to do so could result in an overpayment of benefits and other penalties. "

For more information, see https://labor.ny.gov/formsdocs/factsheets/pdfs/p825.pdf

NEW RULES - DIVORCE JUDGMENTS

Effective August 1, 22NYCRR §202.50(b) is amended to add a new section 202.50(b)(3) requiring that every Uncontested and Contested Judgment of Divorce contain certain decretal paragraphs, including one concerning the venue where post judgment applications for modification or enforcement in Supreme Court should be brought. 

See http://www.nycourts.gov/divorce/pdfs/PDF%20A%20AO-100-17-Judgments.pdf

NEW RULES - PENDENTE LITE MOTIONS

Effective July 1, new rules govern pendent lite motions regarding, among other things, the size of papers, form, etc.

See https://www.nycourts.gov/divorce/pdfs/PDF%20B%20AO-99-17-Applications.pdf

DOMESTIC VIOLENCE AND MEDIATION

The general school of thought is that domestic violence victims, when seeking divorce, should not attempt mediation as the mediation can be used as a further tool of abuse and control by the abuser. This was illustrated in the recent decision in Massari v. Massari, 2017 NY Slip Op 50412 - NY: Supreme Court 2017.

A reading of the facts indicated that a serious incident of physical violence led to a separation in which the defendant husband insisted that a mediator referred by his attorney be used. The agreements entered into appear fair on its face in that marital assets were split evenly, however, the agreements provided that maintenance would be waived. The court held:

"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."

PROMISSORY ESTOPPEL AND THE STATUTE OF FRAUDS

Matter of Hennel 2017 NY Slip Op 05266 Decided on June 29, 2017 Court of Appeals Fahey, J. :

"Petitioners concede that the statute of frauds would generally bar reliance on their oral bargain with decedent. As the Appellate Division acknowledged, wills are ambulatory in nature, and decedent was free to revoke or alter his 2006 will until his death (see Matter of American Comm. for Weizmann Inst. of Science v Dunn, 10 NY3d 82, 92 [2008]). Petitioners do not allege that decedent promised never to revoke or alter his 2006 will. In any event, Estates, Powers and Trusts Law § 13-2.1 (a) (2) requires every agreement or promise to make a "testamentary provision of any kind" to be in writing. General Obligations Law § 5-701 (a) (1) further requires any agreement or promise that "[b]y its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime" to be in writing. The Appellate Division therefore correctly held that "petitioners were obliged to bring this case within an exception to the statute of frauds" (Hennel, 133 AD3d at 1122).

Petitioners attempted to do so by relying on the doctrine of promissory estoppel. Although respondent agrees that the statute of frauds will not apply if petitioners can establish the elements of promissory estoppel and that they would otherwise suffer unconscionable injury, [*5]this Court has not yet expressly recognized this principle. We adopt it now, for several reasons.

The Restatement (Second) of Contracts endorses the principle that a promise inducing reasonable reliance "is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise" (Restatement [Second] of Contracts § 139 [1]; see also 10 Richard A. Lord, Williston on Contracts §§ 27:14-27:15, at 185-206 [4th ed 2011]; 4 Corbin on Contracts § 12:8, at 38-44 [1997]). This Court has previously cited section 139 of the Restatement with approval (see Farash v Sykes Datatronics, 59 NY2d 500, 504-505 [1983]).

This Court has also recognized that the related doctrines of equitable estoppel and part performance may preclude application of the statute of frauds under certain circumstances (see e.g. American Bartenders School v 105 Madison Co., 59 NY2d 716, 718 [1983], affg 91 AD2d 901 [1st Dept 1983]; Anostario v Vicinanzo, 59 NY2d 662, 663-664 [1983]; Woolley v Stewart, 222 NY 347, 350-351 [1918]; cf. Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 234 n 1 [1999])[FN2]. Furthermore, the Appellate Division departments have unanimously recognized that promissory estoppel may preclude enforcement of the statute of frauds if application of the statute would result in unconscionability (see e.g. Carvel Corp. v Nicolini, 144 AD2d 611, 612-613 [2d Dept 1988]; Bernard v Langan Porsche Audi, 143 AD2d 495, 496 [3d Dept 1988]; American Bartenders School, 91 AD2d at 902; Buddman Distribs. v Labatt Importers, 91 AD2d 838, 839 [4th Dept 1982]; Swerdloff v Mobil Oil Corp., 74 AD2d 258, 261-264 [2d Dept 1980], lv denied 50 NY2d 803, 913 [1980]).

Finally, this equitable doctrine is grounded in sound principles of fairness. As this Court has stated in a different context,

"The Statute of Frauds was designed to guard against the peril of perjury; to prevent the enforcement of unfounded fraudulent claims. But, as Professor Williston observed: 'The Statute of Frauds was not enacted to afford persons a means of evading just obligations; nor was it intended to supply a cloak of immunity to hedging litigants lacking integrity; nor was it adopted to enable defendants to interpose the Statute as a bar to a contract fairly, and admittedly, made'" (Morris Cohon & Co. v Russell, 23 NY2d 569, 574 [1969], quoting 4 Williston on Contracts § 567A, at 19-20 [3d ed 1961]).

In other words, equity "will not permit the statute of frauds to be used as an instrument of fraud" (Wood v Rabe, 96 NY 414, 425 [1884]).

We hold that where the elements of promissory estoppel are established, and the injury to the party who acted in reliance on the oral promise is so great that enforcement of the [*6]statute of frauds would be unconscionable, the promisor should be estopped from reliance on the statute of frauds.[FN3]"

FOR THE FOURTH OF JULY