HAPPY HALLOWEEN

HEARSAY AND MORTGAGE FORECLOSURE SUMMARY JUDGMENT

Bank of N.Y. Mellon v Cutler, 2017 NY Slip Op 07424, Decided on October 25, 2017, Appellate Division, Second Department:

"The plaintiff commenced this mortgage foreclosure action following the default of the defendants Gregg E. Cutler and Mirela S. Cutler, also known as Mirela Cutler (hereinafter together the defendants), on a note executed by them in the principal amount of $372,000 and issued in favor of Countrywide Home Loans, Inc., the plaintiff's predecessor in interest. The defendants asserted, inter alia, the defense of lack of standing in their answer. The parties engaged in pretrial disclosure, and the plaintiff subsequently moved, among other things, for summary judgment on the complaint insofar as asserted against the defendants and for the appointment of a referee to facilitate the sale of the property mortgaged by the defendants as security for the debt. The defendants [*2]opposed the motion, inter alia, on the ground that the plaintiff lacked standing to maintain the action, and cross-moved to compel further discovery. The Supreme Court granted those branches of the plaintiff's motion and, apparently in light of that determination, denied the defendants' cross motion. The defendants appeal.

Where, as here, a plaintiff's standing to commence a foreclosure action is placed in issue by the defendant, it is incumbent upon the plaintiff to prove its standing to be entitled to relief (see Bank of N.Y. v Willis, 150 AD3d 652, 652; Citimortgage, Inc. v Klein, 140 AD3d 913, 914; Bank of N.Y. Mellon v Visconti, 136 AD3d 950, 950). A plaintiff has standing in a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 207-209; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" (U.S. Bank, N.A. v Collymore, 68 AD3d at 754; see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361-362).

Here, the plaintiff attempted to establish its standing by submitting the affidavit of Katherine Cacho, a vice president at Bank of America, N.A., which serviced the defendants' loan on behalf of the plaintiff. Cacho averred, in relevant part, that her affidavit was based upon her review of unspecified records indicating that the note was physically transferred to the plaintiff on August 16, 2007. The plaintiff failed to demonstrate that the records relied upon by Cacho were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]) because Cacho did not attest that she was personally familiar with the plaintiff's record-keeping practices and procedures (see Bank of N.Y. v Willis, 150 AD3d at 652; Arch Bay Holdings, LLC v Albanese, 146 AD3d 849; Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 685; Aurora Loan Servs., LLC v Mercius, 138 AD3d 650, 652).

Since the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on the issue of standing, we need not consider the sufficiency of the defendants' opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).

Inasmuch as the Supreme Court's denial of the defendants' cross motion to compel further discovery appears to have been premised on its granting of the plaintiff's motion for summary judgment, we remit the matter to that court for a new determination of the cross motion."

WHEN BUYER FAILS TO GET A MORTGAGE COMMITMENT BECAUSE BUYER CAN'T SELL THEIR CURRENT HOME

The standard form residential contract of sale (jointly Prepared by the Real Property Section of the New York State Bar Association, the New York State Land Title Association, the Committee on Real Property Law of the Association of the Bar of the City of New York and the Committee on Real Property Law of the New York County Lawyers' Association) has a clause (if the sale is conditioned on a mortgage) which states in part:

"To the extent a Commitment is conditioned on the sale of Purchaser's current home, payment of any outstanding debt, no material adverse change in Purchaser's financial condition or any other customary conditions, Purchaser accepts the risk that such conditions may not be met;"

That clause came into issue earlier this year in Gonzalez v. CHAR & HERZBERG, LLP, 2017 NY Slip Op 30473 - NY: City Court, Civil Court 2017:

"Plaintiffs received a Mortgage Loan Commitment from loanDepot.com, LLC dated August 29, 2016 (Ex 4). The document listed conditions that had to be met prior to closing and at closing, including that Plaintiffs had to have a contract of sale executed for their current home prior to the closing.

Plaintiffs submitted a "Statement of Credit Denial, Termination or Change" dated September 1, 2016 (Exs 3 & 5) which provided that Plaintiffs application was denied, because the institution did not" . . Grant Credit to Any Applicant on the terms and conditions . . ." requested and that Plaintiffs were unable to meet the condition for sale of their current residence prior to closing.

On September 2, 2016, Plaintiffs' counsel notified Defendant that Plaintiffs' mortgage application had been denied, and requested return of their security deposit (Ex 7). Defendant responded pursuant to a letter dated September 9, 2016, stating the cancellation provision was only contingent upon a commitment letter which had been issued, and advising that they intended to proceed with the scheduled closing on or about September 10, 2016 (Ex 1). Plaintiffs' counsel responded on September 9 that no "firm" commitment has ever been issued and the commitment that was issued had conditions which could not be met. Plaintiffs' counsel again requested return of the funds or stated legal action would be instituted against Defendant as escrow agent (Ex 8).

Further correspondence between counsel ensued. Defendant alleged that the conditions in the original commitment letter could have easily been met, and that Plaintiffs "bad faith" actions resulted in the denial (Ex 9). Defendant set a closing date pursuant to a Time Is of the Essence demand for October 21, 2016 (Ex 11) and stated that failure to close would result in retention of the down payment for breach of contract."

The court held:

"Where, as here, a mortgage commitment letter is revoked after issuance Plaintiffs' right to return of the escrowed down payment turns on whether the commitment revocation and consequent failure of the transaction was attributable to bad faith on the part of the Plaintiffs (Kapur v Stiefel 264 AD2d 602). There is no evidence of any bad faith on the part of Plaintiffs in the underlying record at inquest."

NOTE - an inquest was held. That is because the defendant in this action was the attorney for the seller who was also the escrow agent. The attorney refused service and defaulted. The court awarded a judgment for the down payment plus interest and costs.

DIVORCE - COURT ORDERED HOLIDAY SCHEDULE

DD v. AD, 2017 NY Slip Op 50807 - NY: Supreme Court, Richmond 2017:

"The parties shall alternate all of the major holidays and school vacations as set forth below. Parenting time shall commence at 10:00 a.m. on the first day of the holiday or vacation period and shall conclude 9:00 p.m. on the final day of the visit unless otherwise specified below. If a conflict occurs between the normal parenting schedule and the holiday visitation schedule, the holiday visitation schedule will supersede normal parenting time. Holidays that fall on school days, such as Halloween, and the child's birthday, shall commence at school dismissal and end at 9:00 p.m.

Mother's Day shall always be with Mother and Father's Day shall always be with Father. Each parent shall have a total of two non-consecutive weeks of vacation with the child during the months of July and August. One week shall be in July; the other week shall be in August. Each party shall designate by email their vacation weeks by May first of each calendar year or be subject to the other parent's choice of designated weeks. Husband, as the non custodial parent, shall be granted first choice in the event that both parties seek the same weeks provided that he has timely designated his weeks in accordance herein.

At trial Wife testified at length that it would be her desire to have parenting time with the subject children every Christmas Eve. In return Wife suggested that Husband be granted every Fourth of July. Husband opposed Wife's proposed holiday schedule and argues that Christmas Eve is important to him also. Husband requests that each holiday simply be alternated. In regards to holiday visitation, the Court agrees with Husband. Accordingly, the following holidays shall be alternated:

Child's Birthday: even years: Mother/odd years: Father

Thanksgiving: even years: Mother/odd years: Father

Christmas Eve: even years: Father/odd years: Mother

Christmas Eve visit shall begin at 4 p.m. and end at 11 a.m. on Christmas Day.

Christmas Day: even years: Mother/odd years: Father

New Years Eve: even years: Mother/odd years: Father

>New Years Eve visit shall begin at 4:00 p.m. and end at 12:00 p.m. on New Year's Day.

New Years Day: even years: Father/odd years: Mother

Martin Luther King Day: even years: Mother/odd years: Father

President's Day: even years: Father/odd years: Mother

Good Friday: even years: Father/odd years: Mother

Easter: even years: Mother/odd years: Father

Memorial Day: even years: Father/odd years: Mother

Fourth of July: even years: Father/odd years: Mother

Labor Day: even years: Mother/odd years: Father

Halloween: even years: Mother/odd years: Father

Columbus Day: even years: Father/odd years: Mother

Veteran's Day: even years: Mother/odd years: Father

Midwinter Recess (February): the parent with the weekend directly preceding midwinter recess shall have parental access with the subject children until Wednesday of the vacation week at 3:00 p.m. The parent with the second weekend shall have the subject children from 3:00 p.m. Wednesday until Sunday at 9:00 p.m.

Spring Recess (April): the parent with the weekend directly preceding spring recess shall have the subject children until Wednesday of the vacation week at 3:00 p.m. The parent with the second weekend shall have the subject child from 3:00 p.m. Wednesday until Sunday at 9:00 p.m."

ANOTHER FAMILY EVICTION CASE

An interesting note in this case is that the landlord/owner discharged their counsel on the eve of trial. RINIS v. TOLIOU, 2017 NY Slip Op 50964 - NY: King County, Civil Court 2017:

"The premises at issue is the second-floor apartment in a building ("the property") with two apartments, one on the first floor and the other on the second floor. The property was owned by Haritini Rinis and John Rinis as tenants by the entirety; they lived in the first-floor apartment. Haritini Rinis died in 2008 and by operation of law John Rinis became the property's sole owner.

At some point in 2009 John Rinis rented the second floor apartment either to Eleni Toliou alone or to both Eleni Toliou and her adult daughter Sofia Toliou. A year or so later, John Rinis and Eleni Toliou entered into a prenuptial agreement dated September 2, 2010. They married each other later that year.

Five years later, by a deed dated October 14, 2015, John Rinis conveyed the property to his three adult children (Nikolaos Rinis, Anastasia Rinis, and Konstantina Rinis-Dibello), i.e., the instant petitioners, but he retained a life estate for himself. Five months later, by a summons and complaint dated March 15, 2016, John Rinis (under the name of Ioannis Rinis) sued in Supreme Court, Kings County, index number 51230/2016, for a divorce from Eleni Toliou. That action is still pending.

By counsel, petitioners served a 30-day predicate notice of termination dated November 19, 2015 purporting to terminate as of December 31, 2015 respondents' alleged month-to-month tenancy made pursuant to an oral agreement. Thereafter petitioners began this proceeding. Respondents joined issue and moved for, among other things, summary judgment. By a decision and order dated October 7, 2016 the court (Fitzpatrick, J.) denied that relief "because petitioner raises issues of fact as to whether the subject building is marital property and whether the subject unit was a marital domicile or not."

At the trial herein, petitioners insisted that the premises was neither the marital domicile nor part of the marital domicile. In support John Rinis testified that he never lived in the second floor apartment, that he never slept or ate meals there, and that he went there only on afternoons to drink coffee or tea with his wife. The foregoing may be true. However, the court notes that John Rinis and Eleni Toliou filed from the same address joint income tax returns in 2012 and 2013, and also that in a sworn statement bearing the dates of October 17, 2012 and October 26, 2012 and submitted to Federal immigration authorities, John Rinis certified that he lived at the property with his wife. In pertinent part, the statement provides: "The home is two floors and it is my ownership [sic]. I certify that my wife Eleni's [sic] Toliou daughter, Sofia Toliou lives with us with her husband Dennis Rodriguez at the address 1858 67th Street, Brooklyn, NY, 11204."

This court may not review the ruling dated October 7, 2016 by a judge of coordinate jurisdiction that there is a question of fact as to whether "the subject building is marital property and whether the subject unit was a marital domicile or not." However, this court holds that subject matter jurisdiction to decide that issue lies elsewhere. See, e.g., Rosenstiel v Rosenstiel, 20 AD2d 71, 73 (1st Dep't, 1963), where the court held that that a summary proceeding might not be maintained "to evict a wife whose rights as such have not been annulled or modified by any court decree or special agreement." Here, Eleni Toliou's rights as a wife have not been annulled or modified by any court decree or special agreement; the issue of whether the premises is part of the marital domicile may not be decided in the instant proceeding.

Petitioners argue that Rosenstiel and its progeny, e.g., Billips v Billips, 189 Misc 2d 144 (Civ Ct, NY Co, 2001) (Acosta, J.), are inapposite because those proceedings were between spouses while the instant proceeding is not between spouses but instead is between a stepmother and stepchildren who have no obligation to support one another. Especially in view of John Rinis' having retained a life interest in the property, the court holds that this argument exalts form over substance and that its acceptance here might permit John Rinis to evade responsibilities either undertaken in the prenuptial agreement or else imposed by law.

Finally, the court notes that Heckman v Heckman, 55 Misc 3d 86 (App Term, 9th & 10th Jud Dists, 2017) is not to the contrary. The ruling there, even read broadly, holds no more than that the housing part of the Civil Court has subject matter jurisdiction to entertain disputes between family members over the possession of real property as long as the family members are adults and the disputes do not include issues of support. Here there very well may be issues of support."

IS THE PERSONAL GUARANTY AMBIGUOUS?

82-90 Broadway Realty Corp. v New York Supermarket, Inc., 2017 NY Slip Op 07233, Decided on October 18, 2017, Appellate Division, Second Department:

"Contrary to the defendants' contention, the typographical error in the guaranty relating to the year of the lease did not render the guaranty unenforceable. "Where there is no mistake about the agreement and the only mistake alleged is in the reduction of that agreement to writing, such mistake of the scrivener, or of either party, no matter how it occurred, may be corrected" (Born v Schrenkeisen, 110 NY 55, 59; see Nash v Kornblum, 12 NY2d 42, 47; Simek v Cashin, 292 AD2d 439, 440). In such a case, there is no need to reform the contract (see Castellano v State of New York, 43 NY2d 909, 911; Simek v Cashin, 292 AD2d at 440). "[I]n the absence of a claim for reformation, courts may as a matter of interpretation carry out the intentions of the parties by transposing, rejecting, or supplying words to make the meaning of the contract more clear" (Hickman v Saunders, 228 AD2d 559, 560; see Ross v Sherman, 95 AD3d 1100, 1100).

Here, the Supreme Court did not err in finding that the date of the lease in the guaranty should have read "January 15, 2000," rather than "January 15, 2001," notwithstanding the fact that the plaintiff did not seek to reform the contract. The plaintiff's president asserted in his affidavit that, pursuant to the lease, Long Deng was required to execute a guaranty of the lease when he purchased NY Supermarket from its previous owner in March of 2001. The guaranty refers to the same parties and premises as are set forth in the lease, and the same date of the lease except for the incorrect year. Moreover, Long Deng acknowledged that he is the president of NY Supermarket and did not provide a copy of any lease dated January 15, 2001, to which the guaranty could apply. As such, the court correctly interpreted the lease and the guaranty to carry out the intentions of the parties (see Ross v Sherman, 95 AD3d at 1100-1101; Hickman v Saunders, 228 AD2d at 560)."

WITH LEVITTOWN CHAMBER OF COMMERCE

ON ANTICIPATORY BREACH OF CONTRACT

No. 92, Princes Point LLC  v. Muss Development L.L.C., October 19, 2017, New York Court of Appeals:

“An anticipatory breach of a contract by a promisor is a repudiation of [a] contractual duty before the time fixed in the contract for . . . performance has arrived” (10-54 Corbin on Contracts § 54.1 [2017]; see 13 Williston on Contracts § 39:37 [4th ed]). An anticipatory breach of a contract -- also known as an anticipatory repudiation “can be either a statement by the obligor to the obligee indicating that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach or a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach” (Norcon Power Partners v Niagara Mohawk Power Corp., 92 NY2d 458, 463 [1998] [internal quotation marks omitted]; see 2B NY PJI2d 4:1 at 35 36 [2017]).

For an anticipatory repudiation to be deemed to have occurred, the expression of intent not to perform by the repudiator must be “positive and unequivocal” (Tenavision, Inc. v Neuman, 45 NY2d 145, 150 [1978]; see Ga Nun v Palmer, 202 NY 483, 489 [1911]). We have taught that the party harmed by the repudiation must make a choice either to pursue damages for the breach or to proceed as if the contract is valid (see Strasbourger v Leerburger, 233 NY 55, 59 [1922]; see also American List Corp. v U.S. News & World Report, 75 NY2d 38, 44 [1989]). We have also clarified that “a wrongful repudiation of the contract by one party before the time for performance entitles the nonrepudiating party to immediately claim damages for a total breach” (id.).

On this record -- and particularly in view of the repeated movement of the new outside closing date -- we cannot conclude that the commencement of this action reflects a repudiation of the contract. At the core of this appeal is the unsettled question whether “the commencement of an action, particularly one seeking rescission, is an anticipatory breach” (Princes Point, 138 AD3d at 117, citing Auten v Auten, 308 NY 155, 159 [1954] [addressing whether an action for separation constituted a repudiation of a prior separation agreement, but declining to answer that question given that English law controlled that matter]). The Appellate Division correctly observes that the commencement of a declaratory judgment action “does not constitute an anticipatory breach . . . because a declaratory judgment action merely seeks to define the rights and obligations of the parties” (Princes Point, 138 AD3d at 117). "

DISCRIMINATION FOR "PERCEIVED ALCOHOLISM"

The New York City Human Rights Law (NYCHRL) is a civil rights law that is embodied in Title 8 of the Administrative Code of the City of New York. It prohibits discrimination in employment, housing, and public accommodations based on race, color, creed, age, national origin, alienage or citizenship status, gender (including gender identity and sexual harassment), sexual orientation, disability, marital status, and partnership status.

Recently in No. 104, Kathleen Makinen et al., Respondents, v. City of New York, et al., Appellants, October 17, 2017, New York Court of Appeals:

"The United States Court of Appeals for the Second Circuit has certified and we have accepted for review (29 NY3d 1019 [2017]) the question whether "sections 8 102 (16) (c) and 8 107 (1) (a) of the New York City Administrative Code preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?" (Makinen v City of New York, 857 F3d 491, 493 [2d Cir 2017]). We conclude that those sections of the Administrative Code plainly preclude a disability discrimination claim based solely on a perception of untreated alcoholism, and we therefore answer the certified question in the affirmative."

According to the dissent (J. Garcia):

Plaintiffs, two female police officers, were wrongfully diagnosed as alcoholics based on allegations made by their respective former partners from past relationships. As a result, plaintiffs' employer -- the New York City Police Department (NYPD) -- compelled them to undergo unwarranted treatment. Plaintiffs brought suit, contending, among other things, that defendants' discriminatory conduct violated City, State, and federal civil rights laws. The jury entered verdicts in favor of plaintiffs under the New York City Human Rights Law (the Human Rights Law).

Defendants appealed, contending that the relevant provisions of the Human Rights Law "preclude a plaintiff from bringing a discrimination claim based solely on a perception of untreated alcoholism" (Makinen v City of New York, 857 F3d 491, 497 [2d Cir 2017]). The Second Circuit determined that certification on this issue was warranted, and we accepted the certified question. Defendants advance a plausible reading of the Human Rights Law that would prohibit plaintiffs from recovering. Specifically, defendants contend that, according to the clear statutory language, the Human Rights Law applies only to "recovering" or "recovered" alcoholics, and therefore does not extend protection to an employee who is -- or, like plaintiffs, is perceived to be -- an untreated alcoholic, even if that employee is not, in fact, an alcoholic at all. The majority adopts this admittedly "narrow[]" reading of the Human Rights Law, concluding that the plain text of the statute "does not consider a mistaken perception of alcoholism to be a disability" (majority op at 6, 11).

But we are required to construe the Human Rights Law "broadly in favor of discrimination plaintiffs" wherever such a construction is "reasonably possible" (Albunio v City of New York, 16 NY3d 472, 477-478 [2011]). Here, plaintiffs have advanced a logical interpretation of the statute that aligns with its text, that better serves its express remedial purpose, and that is consistent with its legislative history. Accordingly, I believe plaintiffs have asserted a valid discrimination claim under the Human Rights Law, and I dissent."

UNEMPLOYMENT INSURANCE - JOB DISSATISFACTION

MATTER OF McCLAMMY v. STCR BUSINESS SYSTEMS, INC., 2017 NY Slip Op 6704 - NY: Appellate Div., 3rd Dept. 2017:

"Claimant was employed as a technical account manager, a position that required regular travel to the employer's business customers. Claimant informed his supervisor that he no longer wanted to travel and unsuccessfully sought a position in the company that would not require it. Claimant then met with his supervisor and the employer's controller, reiterating that he no longer wished to travel; he was advised in return that there were no such positions available and none would be created. The controller assured claimant that he was not being discharged, concluded their meeting by stating "we're done" and returned to his office. Claimant then packed up his personal belongings at his desk and told his supervisor, who was on the way to his own desk nearby, that "unfortunately it's not gonna work out." Claimant left the building, did not return and applied for unemployment insurance benefits. The Unemployment Insurance Appeal Board ultimately ruled that claimant was disqualified from receiving benefits because he voluntarily left his employment without good cause. Claimant appeals.

We affirm. In our view, substantial evidence supports the Board's factual determination that claimant voluntarily left his employment without good cause while continuing work was available (see Matter of Skura [Commissioner of Labor], 116 AD3d 1330, 1331 [2014]; Matter of Roth [Commissioner of Labor], 108 AD3d 906, 907 [2013]). Dissatisfaction with work schedules, job responsibilities and terms of employment does not constitute good cause for leaving one's employment (see Matter of Davis [Commissioner of Labor], 148 AD3d 1367, 1368 [2017]; Matter of Flint-Jones [Federal Reserve Bank of N.Y-Commissioner of Labor], 144 AD3d 1288, 1289 [2016]; Matter of Tineo [Commissioner of Labor], 117 AD3d 1307, 1308 [2014]). The conflicting testimony over the circumstances leading to claimant's departure and the inferences to be drawn therefrom created a credibility issue for the Board to resolve (see Matter of Maldonado [Commissioner of Labor], 150 AD3d 1512, 1513 [2017]; Matter of Roberson [Commissioner of Labor], 142 AD3d 1259, 1261 [2016]). Claimant's remaining contentions, to the extent that they are preserved for our review, lack merit."

COMMERCIAL LEASE ACCELERATION CLAUSE

172 VAN DUZER v. GLOBE ALUMNI, 24 NY 3d 528 - NY: Court of Appeals 2014:

"To the extent defendants suggest that a landowner should be subject to a duty to mitigate, we previously rejected this argument in Holy Props. v Cole Prods. (87 NY2d 130 [1995]). In that case the Court stated that once a tenant abandons the property prior to expiration of the lease, a "landlord [is] within its rights under New York law to do nothing and collect the full rent due under the lease" (id. at 134, citing Becar v Flues, 64 NY 518 [1876], Underhill v Collins, 132 NY 269 [1892], and Matter of Hevenor, 144 NY 271 [1895]). The Court adhered to this established approach, and stated that parties in business transactions depend on the certainty of settled rules, "in real property more than any other area of the law, where established precedents are not lightly to be set aside" (Holy Props., 87 NY2d at 134). We see no reason to reverse course in defendants' case, in particular where, as in Holy Props., the parties here freely agreed to bind defendants to pay rent after termination of the landlord-tenant relationship (id. at 134, citing International Publs. v Matchabelli, 260 NY 451, 454 [1933], Mann v Munch Brewery, 225 NY 189, 194 [1919], and Hall v Gould, 13 NY 127, 133-134 [1855]).

Defendants argue, in the alternative, that the liquidated damages as future rent provided for under the acceleration clause are grossly disproportionate to Van Duzer's actual losses, and therefore constitute an unenforceable penalty. Defendants are correct that an acceleration clause is subject to judicial scrutiny based on a challenge that it is nothing more than a means by which to exact a penalty otherwise proscribed by the law.

As a general matter parties are free to agree to a liquidated damages clause "provided that the clause is neither unconscionable nor contrary to public policy" (Truck Rent-A-Ctr. v Puritan Farms 2nd, 41 NY2d 420, 424 [1977], citing Mosler Safe Co. v Maiden Lane Safe Deposit Co., 199 NY 479, 485 [1910]). Liquidated damages that constitute a penalty, however, violate public policy, and are unenforceable (Truck Rent-A-Ctr., 41 NY2d at 424, citing City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470, 472-473 [1974]). A provision which requires damages "grossly disproportionate to the amount of actual damages provides for [a] penalty and is unenforceable" (Truck Rent-A-Ctr., 41 NY2d at 424).
Whether a provision in an agreement is "an enforceable liquidation of damages or an unenforceable penalty is a question of law, giving due consideration to the nature of the contract and the circumstances" (JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 379 [2005], citing Mosler Safe Co., 199 NY at 485; Leasing Serv. Corp. v Justice, 673 F2d 70, 74 [2d Cir 1982]). "The burden is on the party seeking to avoid liquidated damages . . . to show that the stated liquidated damages are, in fact, a penalty" (JMD Holding Corp., 4 NY3d at 380, citing P. J. Carlin Constr. Co. v City of New York, 59 AD2d 847 [1st Dept 1977]; Wechsler v Hunt Health Sys., Ltd., 330 F Supp 2d 383, 413 [SD NY 2004]). Where a party establishes a penalty, the proper recovery is the amount of actual damages established by the party (JMD Holding Corp., 4 NY3d at 380 ["`If the (liquidated damages) clause is rejected as being a penalty, the recovery is limited to actual damages proven'"], quoting Brecher v Laikin, 430 F Supp 103, 106 [SD NY 1977]).

Defendants claim that because the acceleration clause permits Van Duzer to hold possession and immediately collect all rent due, the damages are grossly disproportionate to the landowner's actual damages. They contend this is a windfall that allows Van Duzer to double dip—get the full rent now and hold the property. On its face this argument is compelling because arguably the ability to obtain all future rent due in one lump sum, undiscounted to present-day value, and also enjoy uninterrupted possession of the property provides the landowner with more than the compensation attendant to the losses flowing from the breach—even though such compensation is the recognized purpose of a liquidated damages provision (Truck Rent-A-Ctr., 41 NY2d at 423; see JMD Holding Corp., 4 NY3d at 382; Benderson v Poss, 142 AD2d 937, 938 [4th Dept 1988]; Gotlieb v Taco Bell Corp., 871 F Supp 147, 155 [ED NY 1994]). Although the acceleration clause in Fifty States was held enforceable, that case is distinguishable from the instant case because there the landlord did not get to keep the property."

RECENT FORECLOSURE CASE

Wells Fargo Bank, N.A. v Lilley, 2017 NY Slip Op 07157, Decided on October 11, 2017, Appellate Division, Second Department:

"In April 2013, the plaintiff commenced this action to foreclose a mortgage secured by real property owned by the defendants Linda M. Lilley and Willie Lilley (hereinafter together the defendants), alleging that they had defaulted on their payment obligations. The defendants failed to appear or answer the complaint. In January 2014, within one year of the defendants' default, the plaintiff moved, ex parte, for an order of reference, to deem all the defendants who failed to appear or answer in default, and to amend the caption. The defendants neither opposed the motion nor cross-moved for relief. In December 2014, the Supreme Court denied, without prejudice, those branches of the motion which were for an order of reference and to deem all the defendants who failed to appear or answer in default, and granted that branch of the motion which was to amend the caption.

In July 2015, the plaintiff again moved for an order of reference and to deem all the defendants who failed to appear or answer in default. The defendants neither opposed the motion nor cross-moved for relief. In the order appealed from, the Supreme Court denied the plaintiff's motion "because of delay in making their motion pursuant to CPLR 3215(c) without sufficient excuse." The plaintiff appeals.

CPLR 3215(c) states, in pertinent part: "If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed" (see State of N.Y. Mtge. Agency v Linkenberg, 150 AD3d 1035, 1036). To avoid dismissal pursuant to CPLR 3215(c), it is not necessary for a plaintiff to actually obtain a default judgment within one year of the default (see State of N.Y. Mtge. Agency v Linkenberg, 150 AD3d at 1036; HSBC Bank USA, N.A. v Traore, 139 [*2]AD3d 1009, 1010; Aurora Loan Servs. LLC v Gross, 139 AD3d 772, 773). As long as "proceedings" are being taken, and those proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be dismissed (see State of N.Y. Mtge. Agency v Linkenberg, 150 AD3d at 1037; HSBC Bank USA, N.A. v Traore, 139 AD3d at 1010-1011; Aurora Loan Servs. LLC v Gross, 139 AD3d at 773). Taking the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference within one year of the defendant's default is sufficient to timely initiate proceedings for entry of judgment pursuant to CPLR 3215(c) (see State of N.Y. Mtge. Agency v Linkenberg, 150 AD3d at 1037; HSBC Bank USA, N.A. v Traore, 139 AD3d at 1010; Aurora Loan Servs. LLC v Gross, 139 AD3d at 773). Here, the plaintiff timely moved for an order of reference within one year of the defendants' default.

Furthermore, the plaintiff established, prima facie, its entitlement to an order of reference and to deem all defendants who failed to appear or answer in default by submitting the mortgage, the unpaid note, an affidavit of merit of its vice president of loan documentation, the complaint, and evidence that the defendants defaulted on their payment obligations and failed to appear or answer the complaint in the time allowed (see RPAPL 1321; Flagstar Bank, FSB v Jambelli, 140 AD3d 829, 830; U.S. Bank N.A. v Gulley, 137 AD3d 1008, 1009; U.S. Bank N.A. v Norgriff, 131 AD3d 527, 528; Wells Fargo Bank, NA v Ambrosov, 120 AD3d 1225, 1226).

Accordingly, the Supreme Court erred in denying the plaintiff's unopposed motion for an order of reference and to deem all the defendants who failed to appear or answer in default."

DIVORCE - AWARDING COUNSEL FEES WHEN THERE IS A CAP

SM v. MR, 2017 NY Slip Op 51071 - NY: Supreme Court, Richmond 2017:

"Accordingly, When Wife testified that she was obligated to pay her attorney the sum of $42,281, she was at best mistaken. Pursuant to the clear terms of their agreed upon retainer, Wife owes her attorney no more than $10,000, of which she has already paid $7,500. Notably, there is no language in the retainer that would indicate that Wife's attorney "reserves the right" to seek any balance of counsel fees from Husband. Moreover, the retainer does include language indicating that Wife has "not relied on any oral statement "and that the agreement can only be "modified in writing . . . signed by both of the parties hereto." (See Pl. Ex. 16).

However, the question remains as to whether the clause capping counsel fees, which was negotiated between Wife and her attorney, inures to the benefit of Husband. Husband argues that he is akin to a "third party beneficiary" to Wife's retainer agreement as he is being asked to pay the hourly amount indicated therein, to the attorney who drafted the agreement. Wife argues that the retainer was drafted for her benefit, and therefore cannot be used to protect Husband.

While this appears to be a matter offirst impression, the Court does not find itself without guidance. Matrimonial retainers are highly regulated, and thus are often the subject of scrutiny at trial. These regulations, which were "designed to address abuses in the practice of matrimonial law and to protect the public" are contained in 22 NYCRR 1400. See Hovanec v. Hovanec, 79 AD3d 816 (2d Dept. 2010). A failure to abide by these regulations, such as a failure to provide a written bill every 60 days, or the failure to provide a written retainer agreement, or a "statement of client's rights" may preclude an attorney from recovering a legal fee from his or her client. See Matter of Grald v. Grald, 33 AD3d 922 (2d Dept. 2006).

In the First, Third and Fourth Judicial Departments, the Appellate Courts have held that the protections of 22 NYCRR 1400, which must be set forth in a written retainer agreement, are protections that only run between attorney and client, as signatories to the retainer contract. For example, the First Department has held that "it is the right of the client, not the adversary spouse, to be billed every 60 days, and the client may waive that right." See Rivacoba v. Aceves, 110 AD3d 495 (1st Dept. 2013); See also Harrington v. Harrington, 93 AD3d 1092 (3rd Dept. 2012); Petosa v. Petosa, 56 AD3d 1296 (4th Dept. 2008).

However, this Court sits in the Second Judicial Department, which has taken a markedly different view as to the applicability of the provisions set forth in a retainer agreement to the adversarial spouse. In the Second Department, the failure to substantially comply with the retainer requirements set forth in 22 NYCRR 1400 will preclude an attorney's recovery of a legal fee from his or her client, "or from the adversary spouse." See Montoya v. Montoya, 143 AD3d 865 (2d Dept. 2016); See also, Wagman v. Wagman, 8 AD3d 263 (2d Dept. 2004); Vitale v. Vitale, 112 AD3d 614 (2d Dept. 2013). The Appellate Division has explained the reasoning behind thisruling by holding that "since the plaintiff's counsel was precluded from seeking unpaid fees from the plaintiff, the plaintiff's spouse may not be required to pay such fees." See Rosado v. Rosado, 100 AD3d 856 (2d Dept. 2012). This Court finds that while the facts of the cases cited above are different, the reasoning is equally applicable to the issue presently before this Court.

Husband has not argued that Wife's counsel is not in compliance with the rules required for a matrimonial retainer. However, following the Rosado logic, Husband argues that since plaintiff's counsel is precluded from ever seeking more than $10,000 from Wife, that he cannot be required to pay more than that amount, as the protections of the retainer apply equally to him in the Second Department. This Court agrees and finds that clauses of Wife's retainer agreement apply to Husband, so long as Husband is being asked to contribute to the counsel fees owed under that retainer.

Wife's attorney argues in the alternative, that the Court should grant legal fees to Wife under the spirt of DRL §237 because of "public policy concerns." Wife's attorney argues that non-monied matrimonial litigants would be somehow hindered in acquiring representation if they could not seek counsel fees from the monied spouse in a matrimonial proceeding. (Tr. 9/29/16 pgs. 10-11). While this argument effectively sets forth part of the reasoning behind DRL §237, it is not persuasive in the unique circumstance before this Court. Husband is not arguing that he cannot be compelled to pay Wife's counsel fees. In fact, he has already paid $11,500 to Wife's attorney. Husband simply argues that he cannot be forced to pay a fee in excess of what Wife would ever have to pay under the retainer. Therefore, a ruling agreeing with Husband does affect the reasoning behind, or purpose of, DRL §237.

It is well settled law that the main purpose behind DRL §237 is to level the playing field between the monied spouse and the non-monied spouse. See Kaufman v. Kaufman, 131 AD3d 939 (2d Dept. 2015). "The courts are to see to it that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigants wallet." Saunders v. Guberman, 130 AD3d 510 (1st Dept. 2015).

Contrary to Wife's counsel's public policy argument, Wife effectively leveled the playing field the minute she signed the retainer agreement. Wife obtained a competent trial attorney for the sum of $10,000, no matter how difficult, or lengthy the litigation became. Husband, on the other hand, has been required to pay his attorney an hourly rate during the course of this proceeding, without the benefit of a cap. Thus, if anyone was at a financial disadvantage when it came to the issue of counsel fees, it was Husband, not Wife.
Moreover, the Court finds thatpublic policy also favors "predictably and clarity" in regard to contracts, especially matrimonial retainers. See Sport Rock Int'l v. Am. Cas. Co. of Reading, 65 AD3d 12 (1st Dept. 2009); See also, Moran v. Erk, 11 NY3d 452 (2008). Here, Husband was entitled to rely upon a fair and usual reading of Wife's retainer agreement. Upon reading that agreement it would be fair for him to conclude that since his Wife was not required to pay more than $10,000, and since the retainer did not contain a provision authorizing Wife's attorney to seek fees in excess of the cap (from either spouse), that he would not have to pay any more than $10,000.

For the reasons set forth above, and after careful consideration of the arguments raised by Wife and Husband, the Court finds that Husband was entitled to rely upon the aspect of Wife's retainer that limited her counsel fee exposure in this matter. As Wife could not be charged more than $10,000, it would be inequitable to require Husband to pay her attorney more than thatcontracted for sum. See Mulcahy v. Mulcahy, 285 AD2d 587 (2d Dept. 2001); See also, Wagman v. Wagman, 8 AD3d 263 (2d Dept. 2004); Bentz v. Bentz, 71 AD3d 931 (2d Dept. 2010). As it is undisputed that Husband has already paid the sum of $11,500 to Wife's counsel, Wife's application for a final award of counsel fees is hereby denied."

FREE MORTGAGE FORECLOSURE CLINIC TODAY

At 3pm at the Nassau County Bar Association. I will be one of the volunteer attorneys.

For more information, see: https://www.nassaubar.org/UserFiles/Clinics_October_English_2017.pdf

SETTING ASIDE A STIPULATION - A MUTUAL MISTAKE?

Although this case involves the setting aside of a stipulation in a matrimonial setting, the rules will apply to all litigations in which a stipulation is entered into and perhaps to all contracts. McClorey v McClorey, 2017 NY Slip Op 06438, Decided on September 13, 2017, Appellate Division, Second Department:

"The parties were divorced by a judgment dated December 5, 2013, which incorporated the terms of a separation agreement between the parties (hereinafter the separation agreement). The plaintiff subsequently commenced this action, inter alia, to recover damages for the defendant's alleged breach of the agreement. The parties thereafter appeared in open court, and the defendant offered to transfer to the plaintiff a life insurance policy in full settlement of the action. When asked by the court, the defendant unequivocally stated that the cash surrender value of the policy was the sum of $78,000. The plaintiff accepted the offer, and the parties placed a stipulation of settlement on the record in open court, during which the plaintiff indicated that she would settle all her claims and discontinue the action in reliance upon her receipt of the insurance policy with a cash surrender value of at least $78,000, as represented by the defendant. The parties and their counsel confirmed their acceptance of the terms of the stipulation before the court, and a judgment dated February 22, 2016, was entered upon the stipulation. The judgment recited that the defendant was obligated to transfer the policy, which "shall have a cash surrender balance of at least $78,000," in settlement of the action.

Thereafter, the defendant moved to vacate the stipulation and to amend or vacate the judgment entered thereon, claiming that they were the product of mistake since the cash surrender value of the policy was actually only $39,000, rather than $78,000. The plaintiff cross-moved to enforce the terms of the stipulation and judgment, and to direct the defendant to pay her any difference between the policy's actual cash surrender value and the cash surrender value represented by the defendant at the time of the stipulation. The Supreme Court denied the defendant's motion and granted the plaintiff's cross motion.
"Stipulations of settlement are favored by the courts and not lightly cast aside" (Hallock v State of New York, 64 NY2d 224, 230; see Matter of Galasso, 35 NY2d 319, 321). This is all the more so in the case of "open court" stipulations (Matter of Dolgin Eldert Corp., 31 NY2d 1, 10) pursuant to CPLR 2104, where strict enforcement "not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process" (Hallock v State of New York, 64 NY2d at 230). "Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation" (id.; see Libert v Libert, 78 AD3d 790, 791; Matter of Marquez, 299 AD2d 551, 552; Gage v Jay Bee Photographers, 222 AD2d 648).

Here, the defendant failed to come forward with record evidence to support his alternative assertions that the clear and unambiguous stipulation was the product of mutual mistake (see Yakobowicz v Yakobowicz, 142 AD3d 996, 997-998; Book v Book, 58 AD3d 781, 783; Hannigan v Hannigan, 50 AD3d 957, 958; Vermilyea v Vermilyea, 224 AD2d 759, 760-761), or of a unilateral mistake induced by a fraudulent misrepresentation by the plaintiff (see Yakobowicz v Yakobowicz, 142 AD3d at 997-998; Rosin v Weinberg, 107 AD3d 682, 683-684; Matter of Toledano v Eliyahu, 102 AD3d 879, 880; Portnoy v Allstate Indem. Co., 82 AD3d 1196, 1198; Matter of Marquez, 299 AD2d at 552)."

UNEMPLOYMENT INSURANCE - BROKER, INDEPENDENT CONTRACTOR, EMPLOYEE

MATTER OF CUSHMAN & WAKEFIELD, INC. v. Commissioner of Labor, 2017 NY Slip Op 7022 - NY: Appellate Div., 3rd Dept. 2017:

...."With regard to the Board's finding that an employment relationship existed between Cushman & Wakefield and its licensed real estate brokers, "[w]hether an employee-employer relationship exists is a factual question to be resolved by the Board and we will not disturb its determination when it is supported by substantial evidence in the record" (Matter of Jennings [American Delivery Solution, Inc.-Commissioner of Labor], 125 AD3d 1152, 1152 [2015] [internal quotation marks and citations omitted]; accord Matter of Williams [Summit Health, Inc.-Commissioner of Labor], 146 AD3d 1210, 1210 [2017]). In the context of an unemployment insurance appeal, "substantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably — probatively and logically" (Matter of Yoga Vida NYC, Inc. [Commissioner of Labor], 28 NY3d 1013, 1015 [2016] [internal quotation marks and citation omitted]; see Matter of Mitchell [The Nation Co. Ltd. Partners-Commissioner of Labor], 145 AD3d 1404, 1406 [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 Dwyer [Nassau Regional Off-Track Corp.-Commissioner of Labor], 138 AD3d 1369, 1370 [2016]; accord Matter of Burgess [Attack! Mktg., LLC-Commissioner of Labor], 145 AD3d 1282, 1283 [2016]).

Cushman & Wakefield recruits experienced real estate brokers to provide real estate services to its clients, and, prior to retaining those brokers, it conducts a criminal background check. Cushman & Wakefield requires the brokers that it retains to then execute a written broker-salesperson agreement, which governs their relationship^[1]. Pursuant to the agreement, Cushman & Wakefield provided its brokers with an office, various equipment — including a desk, telephone, stationary and business cards bearing the company's name — and secretarial and other support services deemed by Cushman & Wakefield to facilitate the brokers' transactional work. The agreement also specified that Cushman & Wakefield would furnish the brokers with advice, information and assistance that it deemed necessary for the brokers' assigned real estate activities and required the brokers to follow its written policies and procedures. Cushman & Wakefield also provided its brokers with fringe medical and dental benefits and reported these benefits as taxable income for the brokers and retained the right, at any time and in its sole discretion, to modify these benefits.

The agreement required brokers to faithfully devote their full business time and best efforts to aid and assist Cushman & Wakefield with the transaction of its business and, through the performance of their services, to promote the business and reputation of Cushman & Wakefield. To this end, Cushman & Wakefield reserved the right to direct the methods, techniques and procedures employed by the brokers. Significantly, the agreement prohibited the brokers from collecting or receiving any independent compensation for real estate services not performed in their capacity as a Cushman & Wakefield broker. Nor were the brokers permitted, without prior written consent from Cushman & Wakefield, to serve as a broker for any real estate transaction not related to Cushman & Wakefield's business. With regard to the brokers' compensation, which included the right to draw on commissions, the brokers were paid a commission according to a schedule of compensation established by Cushman & Wakefield and subject to modification in its sole discretion. Cushman & Wakefield agreed to provide the broker with a "guaranteed draw" of $35,000 per annum, payable semimonthly in equal installments, in the event that the brokers' commissions were less than that guaranteed draw amount.

In addition, Cushman & Wakefield had the sole discretion to determine the commission or fee charged to a client when a real estate transaction was completed, and the brokers were required to use only real estate forms approved by Cushman & Wakefield. Cushman & Wakefield reimbursed brokers for certain travel costs and professional expenses, including their real estate brokers' license application and renewal fees as well as half of any membership dues in a local real estate board for brokers. The agreement also contained a noncompete clause prohibiting the brokers from soliciting Cushman & Wakefield's clients for one year after their employment with Cushman & Wakefield came to an end. In view of the foregoing, and although there is evidence in the record that would support a contrary conclusion, we find that the Board's decision that Cushman & Wakefield exercised sufficient control over its licensed real estate brokers and those similarly situated so as to establish an employment relationship is supported by substantial evidence, and it will not be disturbed (see Matter of Link [Cantor & Pecorella, Inc.-Commissioner of Labor], 153 AD3d 1061, 1063 [2017]; Matter of Atac [Fashion Realty Group-Commissioner of Labor], 265 AD2d 777, 777 [1999]; Matter of Feldstein [Feathered Nest-Commissioner of Labor], 253 AD2d 992, 993 [1998]; compare Matter of 12 Cornelia St. [Ross], 56 NY2d 895, 897-898 [1982]; Matter of Spielberger [Commissioner of Labor], 122 AD3d 998, 999-1000 [2014])."

ATTENDING TOMORROW

NASSAU COUNTY MATRIMONIAL MOTION FEES

According to an email received today:

"Please be advised that, effective immediately, the Clerk at the Matrimonial Center can no longer accept payment of any kind, including for motion fees.  All fees need to be paid at the county clerk. 

Jennifer Rosenkrantz
Chair, Matrimonial Law Committee NCBA"

WHEN ATTORNEYS COMMIT FELONIES

Disbarment will occur on the date of conviction or plea. Matter of Butcher, Supreme Court, Appellate Division Third Judicial Department Decided and Entered: August 31, 2017,  D-169-17:

"Respondent was automatically disbarred and ceased to be an attorney by operation of law in April 2017 when he entered his guilty plea to a felony, which, for attorney discipline purposes, served as the equivalent of a conviction (see Judiciary Law § 90 [4]; Matter of Tendler, 131 AD3d 1301, 1302 [2015]; Matter of Montague, 130 AD3d 1297, 1298 [2015]; Matter of Sanderson, 119 AD3d 1318, 1318 [2014]).  Accordingly, the motion by AGC to strike respondent's name from the roll of attorneys is a formality that merely confirms respondent's disbarment (see Matter of Tendler, 131 AD3d at 1302; Matter of Brunet, 106 AD3d 1443, 1443 [2013]).  Given these circumstances, we grant AGC's motion and strike respondent's name from the roll of attorneys nunc pro tunc to April 3, 2017."

REAL ESTATE CONTRACTS - SPECIFIC PERFORMANCE ACTION

Many times, a purchaser in a contract of sale will ask, or insist, that it be entitled to bring an action to specifically enforce the contract should the seller fail to close.

Grunbaum v Nicole Brittany, Ltd., 2017 NY Slip Op 06638, Decided on September 27, 2017, Appellate Division, Second Department:

"In a contract dated December 30, 2003, the defendant, Nicole Brittany, Ltd. (hereinafter NBL), agreed to sell real property located in Brooklyn to the plaintiff. The closing did not occur pursuant to the terms of the contract. In August 2007, the plaintiff commenced this action against NBL for specific performance of the contract of sale. Subsequently, NBL moved to dismiss the complaint, and the plaintiff cross-moved for summary judgment on the complaint in January 2015. In an order dated July 30, 2015, upon a decision dated April 17, 2015, the Supreme Court denied NBL's motions to dismiss the complaint and granted the plaintiff's cross motion for summary judgment on the complaint. NBL appeals from so much of the order as granted the plaintiff's cross motion for summary judgment on the complaint.

"To prevail on a cause of action for specific performance of a contract for the sale of real property, a plaintiff purchaser must establish that it substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations, that the vendor was able to convey the property, and that there was no adequate remedy at law" (1107 Putnam, LLC v Beulah Church of God in Christ Jesus of the Apostolic Faith, Inc., 152 AD3d 474; see ADC Orange, Inc. v Coyote Acres, Inc., 7 NY3d 484; Cipriano v Glen Cove Lodge #1458, B.P.O.E., 1 NY3d 53; E & D Group, LLC v Vialet, 134 AD3d 981; Johnson v Phelan, 281 AD2d 394, 395). In moving for summary judgment on a complaint seeking specific performance of a contract, the plaintiff purchaser must submit evidence demonstrating financial ability to purchase the property in order to demonstrate that it was ready, willing, and able to purchase such property (see Kaygreen Realty Co., LLC v IG Second Generation Partners, L.P., 78 AD3d 1010, 1015). In the absence of such evidence, a plaintiff purchaser's motion for summary judgment in its favor on a cause of action for specific performance should be denied due to the plaintiff purchaser's failure to meet its initial burden (see id. at 1015; Ferrone v Tupper, 304 AD2d 524, 525; Goller Place Corp. v Cacase, 251 AD2d 287, 288; cf. Madison Equities, LLC v MZ Mgt. Corp., 17 AD3d 639, 640). "When a purchaser submits no documentation or other proof to substantiate that it had the funds necessary to purchase the property, it cannot prove, as a matter of law, that it was ready, willing, and able to close" (Fridman v Kucher, 34 AD3d 726, 728; see Internet Homes, Inc. v Vitulli, 8 AD3d 438, 439; Johnson v Phelan, 281 AD2d at 395).

Here, the plaintiff failed to establish, prima facie, that he was ready, willing, and able to purchase the subject property, since he did not submit any evidence demonstrating his financial ability to close the transaction (see New York Tile Wholesale Corp. v Thomas Fatato Realty Corp., 115 AD3d 829, 832; Kaygreen Realty Co., LLC v IG Second Generation Partners, L.P., 78 AD3d at 1015; Dixon v Malouf, 70 AD3d 763, 764). Contrary to the plaintiff's contention, the issue of whether he demonstrated, through the submission of financial evidence, that he was ready, willing, and able to purchase the property is properly before this Court, as the plaintiff was required to submit such proof to meet his initial burden of establishing his prima facie entitlement to summary judgment directing specific performance of the contract of sale (see Kaygreen Realty Co., LLC v IG Second Generation Partners, L.P., 78 AD3d at 1015; Fridman v Kucher, 34 AD3d at 728; see generally Zuckerman v City of New York, 49 NY2d 557, 562; Fairlane Fin. Corp. v Longspaugh, 144 AD3d 858, 859).

Accordingly, the Supreme Court should have denied the plaintiff's cross motion for summary judgment on the complaint, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Dixon v Malouf, 70 AD3d at 764)."

DIVORCE - AWARDING ATTORNEY FEES IN SIMPLE DIVORCE WITH NO REAL LEGAL ISSUES

DC v. PC, 2017 NY Slip Op 50278 - NY: Supreme Court 2017:

" ........

Plaintiff seeks payment of her attorney fees. Defendant opposes Plaintiff's application.

DRL § 237 provides that in an action for a divorce the court may award counsel fees "to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and the respective parties." See, Prichep v Prichep, 52 AD3d 61 [2d Dept 2008]. Indigence is not a prerequisite to an award of counsel fees pursuant to DRL § 237. See, DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987].In considering an application for an award of counsel fees, the court shall consider the "equities and circumstances" of the case before it (Basile v Basile, 122 AD2d 759 [2d Dept 1986]).

Plaintiff testified that she is employed by the New York City Board of Education. As part of her employment, Plaintiff is a member of DC37 Union Legal Service and is eligible to receive legal representation from the Union. However, Plaintiff testified that she sought outside counsel because she understood that her spouse would pay her legal fees since he created the reason for her filing this action. Plaintiff has not shown that she was denied representation from her Union. Distressing is Plaintiff's attorney summation wherein she accused Attorneys who work for Union Legal Services as providing a time cap representation for clients. Plaintiff's Attorney assertion is an insult to the hard-working attorneys who work for Union employees. Plaintiff's attorney had cited no fact, law or statute to support this brazen discrediting accusation. In this basic garden variety matrimonial case, Plaintiff's Attorney bill is more than $31,848.67 as of the date of trial.

In a pendente lite order, Plaintiff's application for attorney fees was granted in the sum of $10,000.00 in the Order dated May 9, 2014. Since that Order, Defendant had to take out a loan to pay Plaintiff's attorneys' fee and his attorneys' fee. Given his limited financial circumstances, Defendant was unable to continue with his attorney and proceeded to trial unrepresented. Now, Plaintiff has incurred an additional $21,848.67 in attorney fees as of the date of trial.

There is no reasonable logic for incurring these astronomical attorney fees for this garden variety case. The only unresolved issue is Plaintiff's application for maintenance. Both parties are W2 wage earners. Plaintiff's attorney proceeded on a witch hunt for documents that Defendant was not disputing or seeking reimbursement, such as credit card statements, unnecessary subpoenas for bank statements and discovery demands. Assuming Plaintiff was entitled to attorney fees as the less monied spouse, the award of $10,000.00 was more than sufficient for this moderate middle class family with no significant legal issues.

Plaintiff had an ability to have legal representation through her employment Union but chose not to avail that benefit. DRL § 237 provides a remedy to level the playing field of a spouse that has no ability to obtain legal representation to defend themselves in a matrimonial action. It does not give an option to seek an attorney for the sole purpose to sanction a miscreant spouse as Plaintiff believes or was incorrectly advised.

Based on all of the above and circumstances in this case, the award of $10,000.00 is reallocated to Defendant which shall be deducted from Plaintiff's proceeds from the marital residence.Plaintiff's application for additional attorneys' fees is denied in its entirety."