Friday, December 22, 2017


Thursday, December 21, 2017


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

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

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

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

Wednesday, December 20, 2017


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

The facts as noted by the court:

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

The arguments:

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

The decision, in which there was also a dissent:

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

Tuesday, December 19, 2017


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

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

Monday, December 18, 2017


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

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

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

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

Friday, December 15, 2017


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

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

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

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

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

Thursday, December 14, 2017


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

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

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

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

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

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

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

Wednesday, December 13, 2017


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

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

Monday, December 11, 2017


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

"The Volunteer Lawyers Project (Nassau) and The Pro Bono Project (Suffolk)
Nassau/Suffolk Law Services operates a nationally lauded pro bono program with the Bar Association of Nassau County and the Suffolk County Bar Association. Established in 1981, the program provides legal representation in civil cases for individuals meeting low income guidelines.

Volunteer Lawyers Project and Pro Bono Project:

The Projects strive to supplement the funded civil legal services provided by Law Services’ staff with the generous volunteer assistance of the private bar. The Project staff refers a variety of legal matters to private volunteer attorneys, usually in the areas of matrimonial, bankruptcy and landlord-tenant law. The demand for pro bono services is great and may involve a waiting list, as in the case of divorce matters.  However, we maintain an active outreach and recruitment program in an effort to meet the challenge. The Projects also screen prospective clients for the Modest Means Panel, private attorneys who have agreed to accept divorce cases at a reduced fee. The Volunteer Lawyers and Pro Bono Projects are supported in part by The Nassau Bar Association, the We Care Fund, and The Suffolk County Bar Association, the Suffolk County Bar Pro Bono Foundation, as well as by The Legal Services Corporation. For information in Nassau County call 516-292-8299 and in Suffolk County 631-232-2400. HOW MANY LAWYERS  DOES  IT  TAKE TO CHANGE. . . The World ? It’s a simple idea. Use your powers for good. When you represent the poor and disabled, you also represent the best of our profession. A profession full of caring, committed people who firmly believe a just world is possible. Our clients don’t pay.  But the rewards —-that’s another story entirely. Once you’ve made a difference in the life of another , it can’t but help make a difference in yours. You’ve been given a gift, a powerful skill –you can put it to no better use than to help the powerless. You can help.  The only question is: will you? The Collateral Rewards:
  • Free CLE credits
  • Free pass to a CLE course
  • Access to expert consultation and mentoring
  • Eligibility for Pro Bono Attorney of the Month award and Pro Bono Recognition Reception
  • Free professional liability insurance
  • Networking with attorney colleagues and judges
  • Expand your knowledge and experience in various disciplines of law
How can you help?
  • Provide direct client representation
  • Be a mentor to other volunteer attorneys
  • Assist Project staff with intake, case analysis, referral and recruitment of volunteer attorneys
  • Volunteer to work alongside Nassau Suffolk Law Services staff in landlord/tenant court, assist in disability, access to health care, Social Security advocacy, etc
Help is especially needed in the following areas:
  • Matrimonial and Family Law
  • Bankruptcy
  • Guardianships (Article 17A)
  • Foreclosure
  • Consumer Issues
  • Access to Medical Care and Public Benefits
  • Wills, Trusts, and Estates
Take the challenge! You can make a difference. Call Maria Dosso for more information about volunteering. 631 232-2400 x 3369 Each month Nassau Suffolk Law Services celebrates the labors of individual attorneys who have demonstrated an outstanding commitment to the Pro Bono effort and who serve as a role model for the legal profession and its commitment to pro bono work."

Friday, December 8, 2017


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

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

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

Thursday, December 7, 2017


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

Wednesday, December 6, 2017


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

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

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

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

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

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

Tuesday, December 5, 2017


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

A form can be found at this link:

Monday, December 4, 2017


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

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