Wednesday, January 31, 2018


Not all issues are resolved by summary judgment and a trial may be required. That is the lesson in
Forestal Condominium v Davydov, 2018 NY Slip Op 00410, Decided on January 24, 2018, Appellate Division, Second Department:

"The plaintiff, the owner of a condominium building located in Forest Hills, commenced this action against the defendant, an owner of one of the units in the building (hereinafter the subject apartment), for a judgment declaring that the defendant violated the plaintiff's by-laws by performing alterations to the subject apartment without the plaintiff's permission, to enjoin the defendant from conducting any further construction on the subject apartment in violation of the by-laws, and for costs and attorneys' fees incurred in commencing this action.

The plaintiff moved for summary judgment on the complaint, and the defendant cross-moved for summary judgment dismissing the complaint. The Supreme Court denied the motion and the cross motion. The plaintiff appeals from so much of the order as denied its motion.

"Condominium ownership is a hybrid form of real property ownership, created by statute" (Board of Mgrs. of Vil. View Condominium v Forman, 78 AD3d 627, 629; see Real Property Law art 9-B; Caprer v Nussbaum, 36 AD3d 176, 183). The administration of the condominium's affairs is governed principally by its by-laws, "which are, in essence, an agreement among all of the individual unit owners as to the manner in which the condominium will operate, and which set forth the respective rights and obligations of unit owners, both with respect to their own units and the condominium's common elements" (Schoninger v Yardarm Beach Homeowners' Assn., 134 AD2d 1, 6; see Real Property Law § 339-v; Board of Mgrs. of Vil. View Condominium v Forman, 78 AD3d at 629; Murphy v State of New York, 14 AD3d 127, 133).

Here, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law (see Village at Corbin Hill Condominium II v Ungaro, 74 AD3d 958; Board of Mgrs. [*2]of Stewart Place Condominium v Bragato, 15 AD3d 601, 602). While article VI, section 12, of the plaintiff's by-laws specified that a unit owner could not make any structural addition, alteration, or improvement to his or her unit without the prior written consent of the plaintiff's board of managers, it also provided that the plaintiff's board of managers had 30 days to answer any written request after receipt of such request, and that the failure to respond within that time frame would constitute consent to the proposed addition, alteration, or improvement. The plaintiff's submissions failed to eliminate all triable issues of fact as to what requests the defendant made of the plaintiff, and what responses, if any, were provided by the plaintiff (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853)."

Tuesday, January 30, 2018


Saint Annes Dev. Co. v Russ, 2018 NY Slip Op 00451, Decided on January 24, 2018, Appellate Division, Second Department:

"The plaintiff objected to certain of the defendants' discovery requests on the ground that the requested documents, which related to communications among the plaintiff, its attorney, and its assignors, were protected by the common-interest privilege. The defendants moved to compel the production of these documents, arguing that the common-interest privilege did not apply. Following an in camera review of the documents, the Supreme Court denied the defendants' motion.

The common-interest privilege is an exception to the traditional rule that the presence of a third party waives the attorney-client privilege (see Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d 186, 205; Aetna Cas. & Sur. Co. v Certain Underwriters at Lloyd's, London, 176 Misc 2d 605, 611 [Sup Ct, NY County], affd 263 AD2d 367; In re Quigley Co., 2009 WL 9034027, *2-3, 2009 Bankr LEXIS 1352, *7-8 [Bankr SD NY]). To fall within that exception, the privileged communication must be for the purpose of furthering a legal, as opposed to a commercial, interest common to the client and the third party (see Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d at 205; Delta Fin. Corp. v Morrison, 69 AD3d 669; U.S. Bank N.A. v APP Intl. Fin. Co., 33 AD3d 430, 431). "The legal interest that those parties have in common must be identical (or nearly identical), as opposed to merely similar" (Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d at 205; see United States v Doe, 429 F3d 450, 453 [3d Cir]; F.D.I.C. v Ogden Corp., 202 F3d 454, 461 [1st Cir]). Moreover, the communication must "relate to litigation, either pending or anticipated, in order for the exception to apply" (Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616, 620; see Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d at 205).

Here, the Supreme Court properly denied the defendants' motion to compel the production of the subject documents, as these documents were protected by the common-interest [*2]privilege."

Monday, January 29, 2018


First Franklin Fin. Corp. v Alfau, 2018 NY Slip Op 00409 ,Decided on January 24, 2018, Appellate Division, Second Department:

"Nevertheless, the plaintiff failed to submit the requisite proof of the facts constituting the claim (see DLJ Mtge. Capital, Inc. v United Gen. Tit. Ins. Co., 128 AD3d at 762). "While a verified complaint may be used as the affidavit of the facts constituting the claim, it must contain evidentiary facts from one with personal knowledge" (id. [citation omitted]; see CPLR 3215[f]). " [A] pleading verified by an attorney pursuant to CPLR 3020 (d) (3)[, and not by someone with personal knowledge of the facts,] is insufficient to establish its merits'" (DLJ Mtge. Capital, Inc. v United Gen. Tit. Ins. Co., 128 AD3d at 762, quoting Triangle Props. #2, LLC v Narang, 73 AD3d 1030, 1032). On its motion, the plaintiff submitted the complaint, verified only by counsel, and an affirmation of counsel, with counsel having no personal knowledge of the facts. The plaintiff also submitted an affidavit of a representative of the loan servicer attesting to a default, but failing to address the relevant questions relating to the fact that the mortgagor did not own the subject property, whether the relevant documents should be reformed, or whether an equitable lien or mortgage should be imposed."

Friday, January 26, 2018


Deutsche Bank Natl. Trust Co. v Acevedo, 2018 NY Slip Op 00407, Decided on January 24, 2018, Appellate Division, Second Department:

"[A]n objection that the summons and complaint . . . was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship" (CPLR 3211[e]). Here, the defendant failed to move for judgment on the ground of lack of personal jurisdiction based on improper service within 60 days after his answer was served. Additionally, he failed to made an adequate showing of undue hardship that prevented the making of the motion within the requisite statutory period. Although the plaintiff, appearing by its former attorneys, wrote to the defendant's attorney, stating that the verified answer with affirmative defenses and counterclaims was rejected, this Court has indicated that a "purported rejection of the defendants' answer did not extend the 60-day time limit" (Dimond v Verdon, 5 AD3d 718, 719). Further, less than one month after the defendant's verified answer with affirmative defenses and counterclaims was served, the plaintiff's responsive pleading was served. Under these circumstances, the defendant waived his objection to personal jurisdiction based on improper service (see id. at 719; see also Warsowe Acquisition Corp. v DeNoble, 116 AD3d 949, 950; Reyes v Albertson, 62 AD3d 855, 855)."

Thursday, January 25, 2018


Countrywide Home Loans, Inc. v Gibson, 2018 NY Slip Op 00404, Decided on January 24, 2018, Appellate Division, Second Department:

"In 2004, the defendant Brett Jones borrowed the sum of $337,455 from Option One Mortgage Corporation. The loan was secured by a mortgage on the subject property (hereinafter the Option One mortgage). Two years later, after defaulting on the Option One mortgage, Jones turned to MAI Management and Redemption, LLC (hereinafter MAI), for help in avoiding foreclosure. MAI located the defendant Kirk Gibson, who, for a fee, agreed to purchase the subject property from Jones and obtain a new mortgage to finance the purchase.
At the closing on November 13, 2006, a portion of the proceeds was used to pay off the Option One mortgage, and a satisfaction of mortgage discharging the Option One mortgage was issued. Gibson obtained two loans from the defendant Premium Capital Funding, LLC, doing business as TopDot Mortgage (hereinafter TopDot), in the amounts of $524,000 and $131,000, respectively. The larger loan was secured by a first mortgage on the subject property (hereinafter the TopDot mortgage), and the smaller loan was secured by a second mortgage.
Gibson subsequently defaulted on his mortgage payments, and the plaintiff, as successor-in-interest to TopDot, commenced this action in 2008 to foreclose the TopDot mortgage. Jones answered the complaint, asserting, inter alia, affirmative defenses that the plaintiff lacked standing, that the Option One mortgage was not paid off, and that the plaintiff was "perpetuating the fraud perpetrated upon [him]," as well as a counterclaim alleging that the deed by which Jones conveyed the subject property to Gibson was a forgery.
At a nonjury trial, the plaintiff offered the testimony of Nathan Musick, an assistant vice president of Bank of America National Association (hereinafter Bank of America). In relevant part, Musick testified that he is the authorized custodian of the original note relating to the TopDot mortgage, which has been kept in the regular course of Bank of America's business. Musick further confirmed, based on information contained in a database created by the plaintiff and transferred to Bank of America when the plaintiff was absorbed by merger into Bank of America's corporate structure, that the plaintiff took possession of the original note on November 28, 2006, before this action was commenced.
The plaintiff also offered the testimony of Steven Vasco, the notary public who witnessed the signatures of Jones and Gibson on the November 13, 2006, deed transferring the subject property to Gibson. Although Vasco had no independent recollection of the closing, he confirmed his signature and notary stamp on the deed, and explained the procedure he usually follows in verifying the identity of signatories.
Jones testified on his own behalf. In relevant part, he conceded that the grantor's signature appearing on the November 13, 2006, deed "look[ed] like" his, but maintained that he "would never sell [his] home" or "give [his] home away." He acknowledged receiving $56,675.82 from the 2006 refinancing transaction, and confirmed that, after the refinancing, he never again received another invoice or demand regarding the Option One mortgage.
At the close of evidence, the plaintiff moved pursuant to CPLR 4401 for judgment as a matter of law against Jones. The court granted the motion, and Jones appeals.
In reviewing a determination made after a nonjury trial, this Court's power is as broad at that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial court had the advantage of seeing and hearing the witnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; International Exterior Fabricators, LLC v Decoplast, Inc., 128 AD3d 1016, 1019).
"Any party may move for judgment with respect to a cause of action or issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party with respect to such cause of action or issue" (CPLR 4401). "A trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party" (Szczerbiak v Pilat, 90 NY2d 553, 556; see Geeta Temple-Ashram v Satyanandji, 142 AD3d 1132, 1134). In considering such a motion, the trial court must afford the nonmoving party every inference that may properly be drawn from the facts presented (see Szczerbiak v Pilat, 90 NY2d at 556; Geeta Temple-Ashram v Satyanandji, 142 AD3d at 1134).
On appeal, Jones no longer contends that the 2006 deed was forged. Insofar as Jones contends that he was fraudulently induced into entering into the 2006 refinancing based on misrepresentations that the Option One mortgage would be paid off, his contention is belied by the unchallenged documentary evidence, as well as Jones's own testimony, all of which support the conclusion that the Option One mortgage was, in fact, satisfied in 2006. Accordingly, even considering the evidence in the light most favorable to Jones, there was no rational process by which the court, as the trier of fact, could have found that the Option One mortgage was not satisfied (see Szczerbiak v Pilat, 90 NY2d at 556).
Moreover, insofar as Jones alleges fraud in the factum with respect to the 2006 deed, i.e., that he "was induced to sign something entirely different than what he thought he was signing" (First Natl. Bank of Odessa v Fazzari, 10 NY2d 394, 397), the trial evidence failed to substantiate his claim. "Generally, a cause of action alleging that the plaintiff was induced to sign something different from what he or she thought was being signed only arises if the signer is illiterate, blind, or not a speaker of the language in which the document is written" (Anderson v Dinkes & Schwitzer, [*2]P.C., 150 AD3d 805, 806). No such circumstances were shown in this case. Thus, upon the evidence presented at trial, there is no rational process by which the trier of fact could base a finding in favor of Jones on a theory of fraud in the factum (see Szczerbiak v Pilat, 90 NY2d at 556).
Contrary to Jones's contention, the plaintiff established its standing by showing that it took possession of the subject note, endorsed in blank, on November 28, 2006, well before this action was commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 362)."

Wednesday, January 24, 2018


The Fiduciary Online system has been updated to allow Part 36 appointees to submit Online UCS-872 Notices of Appointment and Certifications of Compliance, replacing paper forms. This new feature permits Part 36 fiduciary appointees to receive email notifications from the court and accept or decline an Online UCS-872, Notice of Appointment. This new process is entirely paperless.

Tuesday, January 23, 2018


New York Vehicle and Traffic Law § 505 (5) provides:

"Change of address.  It shall be the duty of every licensee to notify the commissioner in writing of any change of residence of such licensee within ten days after such change occurs and to make a notation of such change of residence on such license in the place provided by the commissioner."

Failure to comply has consequences in a civil action. When a process server attempts to make personal delivery and then relies upon substituted service, this is usually done by delivering the summons to a person of suitable age and discretion at the address which was on file at the State of New York Department of Motor Vehicles, and then mailing the summons to defendant at that same address. Now here is a real situation in which I consulted with the defendant. The defendant never changed the address on the drivers license, did not live at the address for several years, and only learned of the action after a default judgment was issued.

TARDUNGO v. ARIAN, 2016 NY Slip Op 50706 - NY: Appellate Term, 2nd Dept. 2016:

"In this action to recover rent arrears, defendant appeals from an order of the Civil Court which denied her motion to vacate a default judgment that had been entered against her in the principal sum of $7,700. Upon a review of the record, we find that the Civil Court did not improvidently exercise its discretion in denying defendant's motion. Since service was made upon a person of suitable age and discretion at the address which was on file for defendant at the State of New York Department of Motor Vehicles, and the summons was mailed to defendant at that same address (see CPLR 308 [2]), defendant was estopped from challenging personal jurisdiction on the ground that she was served at the wrong address (see Kandov v Gondal, 11 AD3d 516 [2004]; Burke v Zorba Diner, 213 AD2d 577 [1995]). Moreover, defendant's moving papers failed to demonstrate that she had a meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986])."

Monday, January 22, 2018


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

Friday, January 19, 2018


Bank of N.Y. Mellon v Zavolunov, 2018 NY Slip Op 00271, Decided on January 17, 2018, Appellate Division, Second Department:

"Here, the plaintiff failed to establish, prima facie, that it complied with the requirements of RPAPL 1304 (see M & T Bank v Joseph, 152 AD3d 579; CitiMortgage, Inc. v Pappas, 147 AD3d 900; Bank of N.Y. Mellon v Aquino, 131 AD3d 1186, 1186; Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 910). In moving for summary judgment, the plaintiff submitted the affidavit of Jason Ussery, a representative of its loan servicer, who stated that "[a]t least 90 days prior to the commencement of the action, notice was sent to Defendant by certified mail and first class mail to the last known address of the Defendant and, if different, to the residence that is the subject of the mortgage." Ussery annexed copies of the 90-day notices mailed to the defendant, all of which contained a bar code with a 20-digit number below it, but no language indicating that a mailing was done by first-class or certified mail, or even that a mailing was done by the U.S. Postal Service (see Wells Fargo Bank, N.A. v Trupia, 150 AD3d 1049). Moreover, Ussery did not make the requisite showing that he was familiar with the plaintiff's mailing practices and procedures, and therefore did not establish "proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed" (id. at 1050-1051; see Wells Fargo Bank, N.A. v Lewczuk, 153 AD3d 890; Citibank, N.A. v Wood, 150 AD3d 813; CitiMortgage, Inc. v Pappas, 147 AD3d at 901)."

Thursday, January 18, 2018


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

I will be one of the volunteer lawyers.

Wednesday, January 17, 2018


Arthur v. Arthur, 2017 NY Slip Op 1608 - NY: Appellate Div., 3rd Dept. 2017:

"Because the parties' combined incomes slightly exceeded the statutory cap of $141,000 (see Domestic Relations Law § 240 [1-b] [c] [3]), the court noted that it had considered the statutory factors in utilizing the combined parental income in excess of the statutory cap (see Domestic Relations Law § 240 [1-b] [c], [f]). Specific factors noted by the court included the children's entitlement to continue the standard of living they enjoyed prior to the parties' separation, their needs that must be addressed and the husband's resources that go beyond the income he attempted to have attributed to him. "The CSSA contains a rebuttable presumption that application of the guidelines will yield the correct amount of child support, thereby placing the burden on the party contesting the application of the statutory percentage to establish that the pro rata share of support is unjust or inappropriate" (Matter of Ryan v Ryan, 110 AD3d 1176, 1180 [2013] [citations omitted]). In exercising our independent review power, we find a lack of evidence in the record to support the husband's claim that shared parenting justifies a reduction of his child support obligation or that his proportional share of support "is unjust or inappropriate based on the application of the statutory factors" (Matter of Mitchell v Mitchell, 134 AD3d 1213, 1215 [2015])."

Tuesday, January 16, 2018


In this case, the reason for quitting turned out not to be just because "the rent is too high". Mailed and Filed: AUGUST 17, 2017, IN THE MATTER OF: Appeal Board No. 595502:

"FINDINGS OF FACT: The claimant worked for an advertising agency in Manhattan for more than seven years, ending in the position of manager of content and marketing. At the time of separation, the claimant was earning $73,500.00. To meet her living expenses, the claimant also had accrued approximately $8,000.00 in credit card debt, and she owed $6,000.00 to her parents.

In November 2016, the claimant's parents advised her that they would not lend her any more money. They did not set any deadline for her to repay the money they had already lent her. They offered to let her live with them rent-free while she paid off her debts. Her parents lived in California.

The claimant considered her financial situation and concluded that her debt was out of
control. She saw no way that she could meet her living expenses and pay off her debts living in New York. The claimant's take-home pay every two weeks was $1,936.99. She was paying $1,550.00 per month toward her share of the rent on an apartment she shared with a roommate in the Williamsburg section of Brooklyn. Her other expenses included: Groceries - $400 per month; Laundry - $60 to $100 per month; Uber, Lyft and taxicabs - $150 per month; Air travel - $2,025 per year; Utilities - $50 to $100 per month; Internet - $40 per month; Restaurants - $1,000.00 - $1,100.00 per month on average; Netflix - $9.99 per month; Gym memberships at two gyms - $230.00 + $187.00 = $417.00 per month. The claimant paid about $1,000.00 per month toward her credit card bills, and she incurred interest on the outstanding balance each month.

The claimant gave the employer notice by the end of November that she would be quitting in December. The claimant's last day of work was December 16, 2016. Continuing work was available.

OPINION: The credible evidence establishes that the claimant quit her job with the employer because she felt she could not afford to pay her living expenses and also pay off her debts while living in New York. In assessing whether the claimant was financially compelled to quit, we consider not only the amount but also the nature of the claimant's expenses. In this regard, we note that the claimant's monthly expenses included, on average, $1,567.00 to $1,667.00 per month in restaurant expenses, private car service, and memberships at two different gyms. She also was spending more than $2,000.00 per year on air fare. These circumstances establish that the claimant did not quit because she was financially compelled to leave New York. Rather, she quit because she wanted to live more affordably without lowering her standard of living. We further note that while the claimant's parents had advised her that they would lend her no further money, they had set no timetable for the claimant to repay the money they had already lent her. Thus, the claimant's debt to her parents did not add any urgency to her need to relocate.

The claimant's choice to live rent-free while paying off her debts may have been a wise financial choice, but it was also a discretionary one. "We have previously held that relocations motivated by a lower cost of living, more desirable housing, and proximity to family do not constitute good cause to quit for purposes of the Unemployment Insurance Law" (see Appeal Board No. 583065, citing Appeal Board No. 582656, Appeal Board No. 570678). Whereas the claimant could have continued to live and work in New York if she had made different choices, the claimant's decision to quit was not supported by good cause. Accordingly, we conclude that the initial determination was properly sustained, and the claimant is disqualified from receiving benefits."

Friday, January 12, 2018


So when there is a break up ad no marriage, many things can go awry. Here is an interesting case (although from 4 years ago is one of the more recent decisions) where the question was - is it an engagement ring or not. Torres v. Lopez, 2014 NY Slip Op 51494 - NY: Dist. Court, Nassau County, 1st Dist. 2014:

"In Lipton v. Lipton, 134 Misc 2d 1076, 514 NYS2d 158 (Sup Ct, NY Cty), the court stated that the intention of the parties whether an inter vivos gift is conditional or absolute is to be determined based from the express declaration of the parties or from the circumstances:

All the elements of an inter vivos gift were satisfied. (See In re Estate of Szabo, 10 NY2d 94, 98 217 NYS2d 593, 176 NE2d 395). The ring was delivered and accepted. Whether in a given instance the gift is conditional or absolute is an ordinary question of intention to be determined by an express declaration in the making of the gift or from the circumstances. 38 C.J.S Gifts § 61.

In Glachman v. Perlen, 159 AD2d 553, 552 NYS2d 418 (2nd Dept 1990), the Second Department held issues of fact existed on whether the gifts were in contemplation of marriage:

Although the plaintiff may maintain a cause of action to recover gifts he gave to the defendant solely in contemplation of their marriage (see, Civil Rights Law § 80-b, see also, Gaden v. Gaden, 29 NY2d 80, 323 NYS2d 955, 272 NE2d 471), the affidavits submitted by the parties regarding the circumstances under which the alleged gifts were given raise triable issues of fact precluding the awarding of summary judgment.

In DeFina v. Scott, 195 Misc 2d 75, 755 NYS2d 587 (Supt Ct, NY Cty 2003), the court states the applicable law in New York concerning the recovery of a ring:

The court starts with application of the traditional principle of New York law holding that an engagement ring is the property of the male donor when an engagement is terminated (see, Gagliardo v. Clemente, 180 AD2d 551, 580 NYS2d 278 [1st Dept 1992]; 11 NY Prac New York Law of Domestic Relations § 4:4, Courtship: Engagement Rings [2002], "Even prior to the enactment of the anti-heart balm legislation," cases held that "[t]he donee of the ring receives, at the time of the gift, only the right of possession. Firm ownership passes only upon the performance of the mar-riage").

This rule applies only to a ring given as an engagement ring (id., "If there were reasons other than a contemplated marriage why the gift was given, such as part of a birthday or holiday celebration, the ring may not be subject to return. Where there is a genuine dispute as to the circumstances under which the ring was given, a trial is necessary to determine the facts").

See also Poupis v. Brown, 90 AD3d 881, 935 NYS2d 127 (4th Dept 2009) holding issues of fact existed as to whether the ring and the transfer of the interest in the West Islip property were given solely in contemplation of marriage.

This court finds that while there is a very close issue of fact, the plaintiff failed to sustain his burden by preponderance of the evidence that the ring was solely given to defendant in contemplation of marriage.

Based upon a review of the trial transcript and evidence, this court holds that the ring was given as a gift and not in contemplation of marriage. The court credits the defendant's testimony that the ring was a gift for her giving the plaintiff a son and being a good mother. The invoice has no mention of the ring being an engagement ring. Plaintiff and defendant referred to each other as husband and wife prior to the ring being given as a gift. A domestic partnership already existed prior to the date the ring was given as a gift. The parties had a prior history of exchanging gifts with each other.

The court further credits defendant's testimony that she contributed $1,000 down for the diamond and gave $4,500 from her tax return.

The evidence further shows that no engagement announcement was sent out and no wedding venue had been booked.

Based upon the foregoing the plaintiff gave the ring to defendant as a gift and not in contemplation of marriage. Plaintiff is not entitled to recover a completed gift. Defendant is entitled to retain ownership of the ring."

Thursday, January 11, 2018


Here is an interesting situation involving the Electronic Signatures and Records Act.

SOLARTECH RENEWABLES, LLC v. Vitti, 2017 NY Slip Op 8574 - NY: Appellate Div., 3rd Dept. 2017:

Defendant is the party to be charged, but she did not put pen to paper and physically sign any relevant document. Plaintiff contends that defendant's act of typing her name at the bottom of the proposed side letter constituted her signature and agreement to be bound. We disagree. While emails may comprise some of the documents that are read together to form a contract (see Brighton Inv., Ltd. v Har-Zvi, 88 AD3d at 1222), the question here is whether any of the relevant documents were signed by defendant.

Plaintiff cites to decisions from other Departments that have held that "[a]n e-mail sent by a party, under which the sending party's name is typed, can constitute a writing for purposes of the statute of frauds" (Newmark & Co. Real Estate Inc. v 2615 E. 17 St. Realty LLC, 80 AD3d 476, 477 [2011]; see Agosta v Fast Sys. Corp., 136 AD3d at 695; Williamson v Delsener, 59 AD3d 291, 291 [2009]; Naldi v Grunberg, 80 AD3d 1, 11-12 [2010], lv denied 16 NY3d 711 [2011]; Stevens v Publicis S.A., 50 AD3d 253, 255-256 [2008], lv dismissed 10 NY3d 930 [2008])[3]. Those holdings are consistent with the Electronic Signatures and Records Act (hereinafter ESRA), in which the Legislature provided that, "unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand" (State Technology Law § 304 [2]; see 9 NYCRR 540.4). An electronic signature is defined as "an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record" (State Technology Law § 302 [3]). "`Electronic record' shall mean information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities" (State Technology Law § 302 [2]).

Under ESRA, plaintiff would have a viable argument that defendant signed the emails she sent, as they are electronic records and she typed her name at the end of each. As confirmed at oral argument, however, plaintiff does not contend that the emails constituted signed documents forming the contract, but that defendant's typed name at the end of the proposed side letter constituted her signature. That document was separately typed and attached to emails for transmission. Although emails are electronic records, not every attachment to an email qualifies as an electronic record under ESRA. One of the purposes of ESRA is "to promote the use of electronic technology in the everyday lives and transactions" of government entities, businesses and average citizens (L 2002, ch 314, § 1, 2002 McKinney's Session Laws of NY, at 1034 [statement of legislative intent]; see Letter from William Pelgrin, Counsel of Office for Technology, Aug. 19, 1999, Bill Jacket, L 1999, ch 4 at 32-33). To fulfill this purpose, it was necessary for the Legislature to permit emails to be considered equivalent to signed writings when that was the sender's intent (see Naldi v Grunberg, 80 AD3d at 11-13), because it was not possible to place a handwritten signature on an email or similar electronic record that was being transmitted electronically.

The same logic does not apply to ordinary typed documents that are scanned and attached to emails, because a party could easily affix a handwritten signature to those documents. Indeed, defendant provided a signature line for plaintiff on the proposed side letter and requested that plaintiff's representative sign it to acknowledge acceptance of her conditions. The record demonstrates that plaintiff's representative must have printed a copy of the proposed side letter and endorsed it with his handwritten signature, then scanned and emailed the signed copy to defendant. That ordinary letter did not transform into an electronic record simply by virtue of its attachment to an electronic record (i.e., defendant's email), revert to a non-electronic record when printed and signed, then transform into an electronic record again when the signed copy was scanned and attached to a new email. In sum, the record does not demonstrate that the proposed side letter, itself, was an electronic record.

Defendant typed her name to the proposed side letter but did not sign it, although affixing her signature would have been easy and she requested that plaintiff affix an actual signature to it. Thus, even though that letter was attached to an email, we reject plaintiff's argument that defendant's typed name at the bottom of the letter constituted a signature. Because no document was signed by defendant, the alleged contract — assuming one was ever formed — did not satisfy the statute of frauds and is void. As the claims against defendant were based on the alleged contract, defendant was entitled to summary judgment dismissing the complaint against her."

Wednesday, January 10, 2018


MATTER OF PAPAPIETRO v. ROCHESTER CITY SCHOOL DISTRICT, 2017 NY Slip Op 8596 - NY: Appellate Div., 3rd Dept. 2017:

"..."Pursuant to Labor Law § 590 (10), a claimant who is employed in an instructional capacity by an educational institution is precluded from receiving unemployment insurance benefits during `any week commencing during an established and customary vacation period or holiday recess, not between such academic terms or years, provided the claimant performed services for such institution immediately before such vacation period or holiday recess and there is a reasonable assurance that the claimant will perform any services . . . in the period immediately following such vacation period or holiday recess'" (Matter of Scott [Commissioner of Labor], 25 AD3d 939, 939-940 [2006]).

Initially, this Court has repeatedly held that the interpretation of plain language in Labor Law § 590 (10) is a matter for resolution by the courts, not subject to deference in regard to the Board's interpretation (see Matter of Scott [Commissioner of Labor], 25 AD3d at 940; Matter of Abramowitz [City Univ. of N.Y. — Hartnett], 156 AD2d at 839; Matter of Lintz [Roberts], 89 AD2d 1038, 1038 [1982]). This Court has well-established precedent interpreting the identical phrase in Labor Law § 590 (10), "reasonable assurance," regarding two successive academic years or terms to require "a representation by the employer" as to future employment (Matter of Rosenbaum [Borough of Manhattan Community Coll., City Univ. of N.Y. — Commissioner of Labor], 125 AD3d 1019, 1020 [2015] [internal quotation marks and citations omitted; emphasis added]; see Matter of Upham [Dutchess Community Coll. — Commissioner of Labor], 132 AD3d 1221, 1221 [2015]; Matter of Murphy [Copake-Taconic Cent. School Dist. — Commissioner of Labor], 17 AD3d 762, 763 [2005]). This representation often takes the form of a letter from an employer assuring a per diem substitute teacher of future employment opportunities (see e.g. Matter of Murphy [Commissioner of Labor], 85 AD3d 1478, 1479 [2011]; Matter of Schwartz [New York City Dept. of Educ. — Commissioner of Labor], 68 AD3d 1323, 1324 [2009]; Matter of Papapietro [Commissioner of Labor], 34 AD3d 956, 957 [2006]).

Here, it is uncontested that the employer never sent any letter to claimant or provided him with any other form of notice that made a representation regarding claimant's employment after the recess. Despite the fact that the Legislature required an assurance in this regard, the Board found that none was needed; it explained that it has "long held" that an employer need not give any notice to an employee regarding employment following a recess or a vacation.

Given that we have interpreted the word assurance to mean that an employer must make a representation to the employee, we find no reason to conclude, as the Board apparently did, that the Legislature intended the second use of the word assurance in Labor Law § 590 (10) to be superfluous. Accordingly, as the Board's conclusion that the employer need not make any representation or provide any notice to an employee regarding the provision of services immediately following a recess or vacation is inconsistent with the plain legislative requirement that the employer provide a reasonable assurance regarding such services, we reverse and remit for further proceedings (see Matter of Echevarria v DiNapoli, 145 AD3d 1310, 1311 [2016]; Matter of Abramowitz [City Univ. of N.Y. — Hartnett], 156 AD2d at 840).