CAN GUARDIAN COMMENCE A DIVORCE ACTION ON BEHALF OF WARD

DE v. PA, 2016 NY Slip Op 51230 - NY: Supreme Court 2016:

"However, defendant also contends that Ms. K. cannot maintain this divorce action for plaintiff, as the guardian of the person and property of an incompetent person cannot maintain an action of absolute divorce against the incompetent person's spouse. In re Wechsler, 3AD3d 424 (1st Dept. 2004); Mohrmann v. Kob, 291 NY 181 (1943).

In Mohrmann, 291 NY 181, the Court of Appeals determined that then present Civil Practice Act Section 1147 prohibited the committee of the property of an incompetent person to prosecute an action for divorce on behalf of the incompetent person, as that section limits the right to maintain an action to procure a judgment of divorce to a husband or wife.^[2] The Mohrmann Court wrote

[i]t has been suggested that the authority granted to the committee of the property of an incompetent person by section 1377 of the Civil Practice Act is broad enough in scope to include an action for divorce on behalf of the incompetent. We think that when the Legislature by section 1147 of the Civil Practice Act limited to a husband or a wife' the right to maintain an action against the other party to the marriage to procure a judgment divorcing the parties and dissolving the marriage by reason of the defendant's adultery', the statutory restriction thus placed upon the right to bring such an action was not relaxed by the provisions of section 1377. The committee of the property of an incompetent has the duty of protecting the property of his ward and for that purpose has been given by section 1377 a general power to maintain in his own name any action which the person with respect to whom he is appointed might have maintained if the appointment had not been made.' A statute conferring upon the committee of the property of an incompetent a general power should not be construed to include the right to choose for the incompetent whether or not to ask the courts to dissolve the marriage tie in order to free the incompetent from its incidental obligations. It is our view that when the Legislature by section 1377 authorized the committee of the property of an incompetent person to bring any action or special proceeding' in behalf of the incompetent, the use of the word any' did not include an action for divorce which the Legislature has always treated separately and completely.

Mohrmann, 291 NY at 188-189.

Many years later in In re Wechsler, 3 AD3d 424 (1st Dept. 2004), the First Department, citing to Mohrmann as being dispositive on the issue, held that the guardian of the incompetent husband could not institute a no-fault divorce proceeding in Pennsylvania against the wife, despite the grant of authority to the guardian to "maintain any civil judicial proceeding." The Wechsler Court wrote that in Mohrmann the Court of Appeals "noted that whether to pursue divorce proceedings is a personal decision in which the element of volition is implicit." In re Wechsler, 3 AD3d 424. The Court further opined that "absent statutory authority permitting a guardian to commence a divorce on behalf of a ward, the courts may not assume to grant such power (citations omitted). Id. at 425.

Counsel for plaintiff claims that defendant's argument fails, as plaintiff has not been adjudged to be an incompetent person, and that there is no medical evidence to support her claim that plaintiff is incapacitated. In reply, counsel for defendant maintains that Ms. K.'s appointment as temporary conservator is proof contrary to such an assertion by plaintiff's counsel.

At this juncture, the issue of plaintiff's competency is before the Connecticut court. By order dated June 2, 2016, Ms. K.'s appointment as temporary conservator of the estate and person of plaintiff was extended to July 2, 2016. On June 23, the Connecticut court will be holding a hearing regarding Ms. K.'s petition pursuant to which she is seeking to be appointed as conservator of plaintiff.

Based on the foregoing, in the event that the Connecticut court finds plaintiff to be incompetent, Ms. K., as his conservator will not be able to continue to prosecute this action for divorce on his behalf. Once plaintiff is found to be incompetent, Ms. K. can no longer maintain the action, as the Court of Appeals has held that the statute providing for an action for divorce (currently DRL §170) limits the right to maintain an action to procure a judgment of divorce to a husband or wife. Therefore, even assuming arguendo, that plaintiff was competent when the action commenced, if he is found to be incompetent at a later stage in the proceedings, the action must be dismissed."

PRENUPITAL AGREEMENT - DEFECTIVE ACKNOWLEDGMENT CURED

Matter of Koegel, 2018 NY Slip Op 00833, Decided on February 7, 2018, Appellate Division, Second Department:

"3. Curability of Acknowledgment Defect

At the outset, John is correct that Matisoff is not controlling here. Matisoff does not provide support for Irene's position that the defective certificates of acknowledgment utterly refute the allegations in the petition that she is not entitled to an elective share of the decedent's estate due to the waiver set forth in the prenuptial agreement.

In Matisoff, a case involving a postnuptial agreement in which the parties waived any rights of election provided by the EPTL, "it [wa]s undisputed . . . that the document was not acknowledged by the parties or anyone else" (90 NY2d at 130).

The case at bar differs from Matisoff since here, there were certificates of acknowledgment of the signatures of Irene and the decedent, albeit the certificates did not contain the required language for acknowledgment as currently required by the Real Property Law. Similarly, Irene's reliance on D'Elia is misplaced since the agreement in that case was not at all acknowledged at the time of execution. Thus, this Court's statement in D'Elia that "[i]t is uncontroverted that the parties' postnuptial agreement was not properly acknowledged at the time that it was executed" (14 AD3d at 478) was not referring to a defective acknowledgment, as occurred here, but instead, to the absence of any acknowledgment, presenting this Court with the same situation which arose in Matisoff (see e.g. Ballesteros v Ballesteros, 137 AD3d 722, 723 [the "Promissory Note," drafted by the wife in 2009, after the parties were married, pursuant to which the husband agreed to purchase a condominium for the wife in the event that they divorced, was unenforceable since the "Promissory Note" was an agreement between spouses, which did not have a certificate of acknowledgment attached to it although the husband had the document signed by a notary]). In that vein, Irene's reliance on First and Fourth Department cases is also unavailing, as those cases are distinguishable for the same reason (see Filkins v Filkins, 303 AD2d 934, 934 ["It is undisputed that no written certificate of acknowledgment was attached when the parties entered into the agreement in 1995"]; Schoeman, Marsh & Updike v Dobi, 264 AD2d 572, 573 [legal malpractice counterclaim related to the Matisoff matrimonial action]; cf. Anonymous v Anonymous, 253 AD2d 696, 697 [the First Department found that the Supreme Court erred in granting renewal to the husband with respect to the wife's prior motion to declare a prenuptial agreement to be unenforceable, due to the husband's failure to submit an acknowledgment with the agreement, where the husband could have submitted the certificate of acknowledgment on the prior motion. Moreover, the First Department questioned the appearance of the "alleged acknowledgment in affidavit form which was executed and which surfaced some 12 years after the fact in the midst of a contested matrimonial action in light of the required formalities of Domestic Relations Law § 236(B)(3)"]).

Here, given the presence of executed acknowledgments, admittedly without certain language required by the Real Property Law, rather than an absence of any acknowledgment at all, the decision in Galetta is more on point and instructive than Matisoff and D'Elia with respect to the issue at bar. Further, the Surrogate's Court correctly found that the Court of Appeals, in Galetta, left open the issue of whether a defective acknowledgment can be cured.

In Galetta, the parties executed a prenuptial agreement before different notaries at different times one week before their wedding took place in July 1997 (21 NY3d at 189). As here, it was undisputed that the signatures on the document were authentic and there was no claim that the agreement was procured through fraud or duress (see id. at 189-190).

The certificate of acknowledgment relating to the wife's signature contained the proper language (see id. at 190). However, in the acknowledgment relating to the husband's signature, the certificate failed to indicate that the notary "confirmed the identity of the person executing the document or that the person was the individual described in the document" (id.). The husband filed for divorce and the wife separately filed for divorce and for a declaration that the prenuptial agreement was unenforceable (see id.).

The wife moved for summary judgment on her cause of action seeking declaratory relief, contending that the agreement was invalid because the certificate of acknowledgment relating to the husband's signature did not comport with the Real Property Law requirements. The husband opposed the motion on the basis that the language of the acknowledgment substantially complied with the Real Property Law. He also submitted an affidavit from the notary who had witnessed his signature in 1997 and executed the certificate of acknowledgment (see id.). "The notary, an employee of a local bank where the husband then did business, averred that it was his custom and practice, prior to acknowledging a signature, to confirm the identity of the signer and assure that the [*7]signer was the person named in the document. He stated in the affidavit that he presumed he had followed that practice before acknowledging the husband's signature" (id. [emphasis added]).

The Supreme Court denied the wife's motion, finding that the acknowledgment substantially complied with the requirements of the Real Property Law. A divided Fourth Department affirmed the order albeit on the different ground that, although the acknowledgment was defective, the deficiency could be cured after the fact and that the notary's affidavit raised a triable issue of fact as to whether the agreement had been properly acknowledged when executed (see 96 AD3d 1565, revd 21 NY3d 186).^[FN5]

With respect to the issue of whether the certificate of acknowledgment accompanying the husband's signature was defective, the Court of Appeals determined that without stating " to me known and known to me,'" the certificate failed to indicate either that the notary knew the husband or had ascertained through some form of proof that the husband was the person described in the prenuptial agreement (21 NY3d at 193). The Court noted that:

"At the time the parties here signed the prenuptial agreement in 1997, proper certificates of acknowledgment typically contained boilerplate language substantially the same as that included in the certificate accompanying the wife's signature: before me came (name of signer) to me known and known to me to be the person described in and who executed the foregoing instrument and duly acknowledged to me that s/he executed the same'" (id. [footnote omitted]).

The Court pointed out that the " to me known and known to me to be the person described in the document'" language "satisfied the requirement that the official indicate that he or she knew or had ascertained that the signer was the person described in the document" (id.). It also observed that "[t]he clause beginning with the words and duly acknowledged' established that the signer had made the requisite oral declaration" (id.). Given the failure to include this language in the acknowledgment of the husband's signature, the Court of Appeals agreed with the Fourth Department that the acknowledgment did not conform with statutory requirements (see id. at 194).

Since the Court of Appeals determined that the certificate was defective, it then turned to address the question of "whether such a deficiency can be cured and, if so, whether the affidavit of the notary public prepared in the course of litigation was sufficient to raise a question of fact precluding summary judgment in the wife's favor" (id.). However, in looking at the proof submitted by the husband, the Court of Appeals stated that it "need not definitively resolve the question of whether a cure is possible because, similar to what occurred in Matisoff, the proof submitted here was insufficient" (id. at 197).

The Court of Appeals analyzed in detail the affidavit of the notary submitted by the husband in opposing the wife's summary judgment motion. The Court pointed out that the notary only recognized his own signature and had no independent recollection of notarizing the subject document (see id.). Given these statements, the Court found that the husband could not rely on the notary's custom and practice to fill in the evidentiary gaps because "the averments presented by the notary public in this case [we]re too conclusory to fall into this category" (id.).^[FN6]

Further, the Court stated that if the notary had recalled acknowledging the husband's signature, "he might have been able to fill in the gap in the certificate by averring that he recalled [*8]having confirmed [the husband's] identity, without specifying how" (id. at 198). However, since the notary did not recall acknowledging the husband's signature and was attempting to rely on custom and practice evidence, the Court stated that "it was crucial that the affidavit describe a specific protocol that the notary repeatedly and invariably used—and proof of that type is absent here" (id.).

The situation at bar is akin to the hypothetical described by the Court of Appeals in Galetta, where the notaries here, the decedent's law partner and Irene's attorney, actually recalled acknowledging the signatures at issue. In such a situation, the Court of Appeals explained that the confirmation of the identity of the signer, through an affidavit, is sufficient without having to explain how the identity was confirmed (see id.).

Although, in support of her motion, Irene submitted the prenuptial agreement with the defective acknowledgments to demonstrate that the agreement was invalid, the Surrogate's Court properly declined to dismiss the petition on the basis of documentary evidence in light of John's submission in opposition to her motion. To supplement the allegations of the petition, in opposition, John submitted affidavits which showed that the petition may be meritorious in spite of the documentary evidence. In response to the assertion that the prenuptial agreement was invalid as improperly acknowledged, the affidavits of Donovan and Jacobsen specifically stated that each observed the document being signed, took the acknowledgment in question, and personally knew the individual signer signing before him. In so doing, the defect in the acknowledgment was cured in order to give vitality to the expressed intent of the parties set forth in the prenuptial agreement.

Accordingly, the Surrogate's Court properly denied Irene's motion pursuant to CPLR 3211(a)(1) and Domestic Relations Law § 236(B)(3) to dismiss the petition. Therefore, the order is affirmed."

VOTED TOP 40 NEW YORK LAW BLOG

In at No. 26. See https://blog.feedspot.com/new_york_law_blogs/

CONTRACTS - COUNTEROFFER NOT REJECTED

Gator Hillside Vil., LLC v Schuckman Realty, Inc., 2018 NY Slip Op 01178, Decided on February 21, 2018, Appellate Division, Second Department:

"The plaintiff is the owner of a shopping center in Smithtown, which had commercial space for lease. The defendant is a real estate brokerage firm. One of its agents, Ari Malul, sent the plaintiff a letter of intent on behalf of a client, proposing to begin negotiations on a 10-year lease agreement. The initial proposal included an obligation by the plaintiff to pay the defendant a brokerage fee based on a certain rate. Negotiations ensued between Malul and James Goldsmith, the president of the plaintiff. During the negotiations, Goldsmith made it clear that the plaintiff would not pay the brokerage fee demanded by the defendant. In an email to Malul dated October 30, 2011, Goldsmith made a take-it-or-leave-it counteroffer in which the plaintiff would pay the defendant a commission of five percent of the rent for the first five years of the lease agreement if [*2]it wanted to move forward on the deal. Malul did not object to or reject the offer, but instead indicated that he would speak to his client regarding a good faith deposit. Subsequently, the lease agreement was entered into between the plaintiff and the client, with no further discussions of the brokerage fee. The defendant then demanded from the plaintiff a brokerage fee based on the rate set forth in its initial letter of intent. The plaintiff refused to pay that amount, and eventually commenced this action seeking a judgment declaring the amount of the brokerage commission due. The defendant served an answer with counterclaims seeking payment of the brokerage fee. The plaintiff moved for summary judgment on the complaint and, in effect, dismissing the counterclaims. The Supreme Court granted the motion and entered a judgment declaring that the brokerage commission due to the defendant is five percent of the rent for the first five years of the lease agreement, equaling $24,650, and dismissed the defendant's counterclaims. The defendant appeals.

"[T]he existence of a binding contract is not dependent on the subjective intent of [the parties]" (Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397, 399; see Civilized People, Inc. v Milk St. Café, Inc., 129 AD3d 761, 762; Minelli Constr. Co., Inc. v Volmar Constr., Inc., 82 AD3d 720, 721). "In determining whether the parties entered into a contractual agreement and what were its terms, it is necessary to look, rather, to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds" (Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d at 399; see Civilized People, Inc. v Milk St. Café, Inc., 129 AD3d at 762; Minelli Constr. Co., Inc. v Volmar Constr., Inc., 82 AD3d at 721). "That means, simply, that the manifestation of a party's intention rather than the actual or real intention is ordinarily controlling" (Mencher v Weiss, 306 NY 1, 7; see Hotchkiss v National City Bank of N.Y., 200 F 287, 293 [SD NY], affd 201 F 664 [2d Cir], affd 231 US 50).

Here, the plaintiff established, prima facie, its entitlement to a judgment declaring that the brokerage commission due was five percent of the rent for the first five years of the lease agreement by submitting evidence that the defendant did not reject the counteroffer, but instead proceeded to have its client enter into the lease agreement. "While mere silence, when not misleading, cannot be construed as acceptance, a counteroffer may be accepted by conduct" (Daimon v Fridman, 5 AD3d 426, 427 [citation omitted]; see McIntosh v Niederhoffer, Cross & Zeckhauser, 106 AD2d 774, 775; John William Costello Assocs. v Standard Metals Corp., 99 AD2d 227, 231; cf. Matter of Albrecht Chem. Co. [Anderson Trading Corp.], 298 NY 437, 440). The defendant's conduct of moving forward with the lease agreement upon receiving the plaintiff's counteroffer established that the objective manifestation of the parties' intent was an agreement to the brokerage rate set forth in the counteroffer (see Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d at 399; Civilized People, Inc. v Milk St. Café, Inc., 129 AD3d at 762; Minelli Constr. Co., Inc. v Volmar Constr., Inc., 82 AD3d at 721). In opposition, the defendant failed to raise a triable issue of fact."

FORECLOSURE - MUST SHOW COMPLIANCE WITH RPAPL 1304

Bank of Am., N.A. v Wheatley, 2018 NY Slip Op 01175, Decided on February 21, 2018, Appellate Division, Second Department:

"However, the Supreme Court properly determined that the plaintiff failed to establish, prima facie, its compliance with RPAPL 1304. RPAPL 1304(1) provides that, "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." RPAPL 1304(1) sets forth the requirements for the content of such notice and further provides that such notice must be sent by registered or certified mail and by first-class mail to the last known address of the borrower (see RPAPL 1304[2]). "[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106; see CitiMortgage, Inc. v Pappas, 147 AD3d 900, 901; Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 910).

Contrary to the plaintiff's contention, since the defendant raised the issue of compliance with RPAPL 1304 as an affirmative defense in his answer, the plaintiff was required to make a prima facie showing of compliance with RPAPL 1304 (cf. Flagstar Bank, FSB v Jambelli, 140 AD3d 829, 830; U.S. Bank N.A. v Carey, 137 AD3d 894, 896). The plaintiff failed to make the requisite showing. In support of its motion, the plaintiff submitted the affidavit of Sherry Benight, an officer of Select Portfolio Servicing, Inc. (hereinafter SPS), the loan servicer, along with two copies of a 90-day notice addressed to the defendant and a proof of filing statement pursuant to RPAPL 1306 from the New York State Banking Department. While mailing may be proved by documents meeting the requirements of the business records exception" to the hearsay rule, Benight, in her affidavit, did not aver that she 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 (CitiMortgage, Inc. v Pappas, 147 AD3d at 901; see Wells Fargo Bank, N.A. v Trupia, 150 AD3d at 1050). Moreover, the plaintiff failed to demonstrate, prima facie, that the notices included a list of five housing counseling agencies, as required by the statute (see RPAPL 1304[2]). Although Benight stated in her affidavit that the notices included such a list, the copies of the notices submitted merely included information about contacting a hotline that would provide "free personalized advice from housing counseling agencies certified by the U.S. Department of Housing and Urban Development."

Since the plaintiff failed to demonstrate its compliance with RPAPL 1304, the Supreme Court properly denied its motion for summary judgment (see Wells Fargo Bank, N.A. v Trupia, 150 AD3d at 1051; Citibank, N.A. v Wood, 150 AD3d 813, 814; CitiMortgage, Inc. v Pappas, 147 AD3d at 902)."

FORECLOSURE - SUMMARY JUDGMENT GRANTED

Bank of N.Y. Mellon v Lopes, 2018 NY Slip Op 01041, Decided on February 14, 2018, Appellate Division, Second Department:

"The defendants Bernil Lopes and Beverly Lopes (hereinafter together the defendants) executed a note dated September 2, 2005, in the sum of $395,000, in favor of Countrywide Home Loans, Inc. (hereinafter Countrywide). The note was secured by a mortgage on residential property located in South Floral Park. The mortgage was later assigned by Mortgage Electronic Registration Systems, Inc., as nominee for Countrywide, to the plaintiff, Bank of New York Mellon.

In October 2012, the plaintiff commenced this action to foreclose the mortgage. The defendants served an answer in which they asserted various affirmative defenses, including that the plaintiff lacked standing. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference. The defendants opposed the motion. The Supreme Court granted the motion, and the defendants appeal.

"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, 688-689). 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, 726; 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, 787; 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" (Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d at 726 [internal quotation marks [*2]omitted]; see 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 established, prima facie, that it had standing to commence the action by submitting the affidavit of a foreclosure specialist for the loan servicer, who stated that, based upon her review of the records for the subject loan, the plaintiff was the holder of the original note prior to commencement of the action, and that the note was delivered to the plaintiff prior to commencement of the action. The plaintiff also submitted a copy of the note containing an endorsement in blank by Countrywide, the original lender (see Wells Fargo Bank, N.A. v Lewczuk, 153 AD3d 890; Bank of Am., N.A. v Barton, 149 AD3d 676, 678). Moreover, the plaintiff established its prima facie entitlement to judgment as a matter of law by producing the note, the mortgage, and evidence of default. Contrary to the defendants' contention, the plaintiff demonstrated the admissibility of the business records upon which the foreclosure specialist relied under the business records exception to the hearsay rule (see CPLR 4518[a]), because she averred in her affidavit that she had personal knowledge of the plaintiff's records and record-making practices (cf. HSBC Mtge. Servs., Inc. v Royal, 142 AD3d 952, 954; U.S. Bank N.A. v Handler, 140 AD3d 948, 949).

In opposition, the defendants failed to raise a triable issue of fact.

The defendants' remaining contentions are without merit.

Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference."

FILING A LATE ANSWER

This case was an appeal from Supreme Court, Putnam County, where ostensibly the downstate practice of granting extensions is not followed.

Baldwin Rte. 6, LLC v Bernad Creations, Ltd., 2018 NY Slip Op 01039, Decided on February 14, 2018, Appellate Division, Second Department:


"In December 2014, the plaintiff commenced this action to recover damages for breach of contract. The defendant served its answer on January 22, 2015, which the parties agree was two days after the statutory deadline to answer had expired. After the plaintiff's counsel rejected the answer as untimely, the defendant moved pursuant to CPLR 2004 to compel the plaintiff to accept its late answer. The Supreme Court denied the defendant's motion. We reverse.

CPLR 2004 provides that, "[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed." Given the strong public policy favoring the resolution of cases on the merits, "the Supreme Court may compel a plaintiff to accept an untimely answer (see CPLR 2004, 3012[d]) where the record demonstrates that there was only a short delay in appearing or answering the complaint, that there was no willfulness on the part of the defendant, that there would be no prejudice to the plaintiff, and that a potentially meritorious defense exists" (Yongjie Xu v JJW Enters., Inc., 149 AD3d 1146, 1147; see Tewari v Tsoutsouras, 75 NY2d 1, 12; Calderone v Molloy Coll., 153 AD3d 491). Here, in light of the defendant's brief and unintentional delay in serving its answer, the lack of prejudice to the plaintiff, and the existence of a potentially meritorious defense, the Supreme Court improvidently exercised its discretion in denying the defendant's motion pursuant to CPLR 2004 to compel the plaintiff to accept its late answer (see Yongjie Xu v JJW Enters., Inc., 149 AD3d at 1147; Roy v 81E98th KH Gym, LLC, 142 AD3d 985, 986; Spence v Davis, 139 AD3d 703, 704; Klein v Yeshiva M'kor Chaim, 116 AD3d 672; see also Calderone v Molloy Coll., 153 AD3d at 491)."

LITIGATION: FISHING WITHIN FACEBOOK?

Kelly Forman v. Mark Henkin, February 13, 2018, No.1, New York State Court of Appeals:

"Plaintiff suggests that disclosure of social media materials necessarily constitutes an unjustified invasion of privacy. We assume for purposes of resolving the narrow issue before us that some materials on a Facebook account may fairly be characterized as private. But even private materials may be subject to discovery if they are relevant. For example, medical records enjoy protection in many contexts under the physician-patient privilege (see CPLR 4504). But when a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records – including the physician-patient privilege – are waived (see Arons v Jutkowitz, 9 NY3d 393, 409 [2007]; Dillenbeck v Hess, 73 NY2d 278, 287 [1989]). For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.

Applying these principles here, the Appellate Division erred in modifying Supreme Court’s order to further restrict disclosure of plaintiff’s Facebook account, limiting discovery to only those photographs plaintiff intended to introduce at trial.  With respect to the items Supreme Court ordered to be disclosed (the only portion of the discovery request we may consider), defendant more than met his threshold burden of showing that plaintiff’s Facebook account was reasonably likely to yield relevant evidence. At her deposition, plaintiff indicated that, during the period prior to the accident, she posted “a lot” of photographs showing her active lifestyle. Likewise, given plaintiff’s acknowledged tendency to post photographs representative of her activities on Facebook, there was a basis to infer that photographs she posted after the accident might be reflective of her post accident activities and/or limitations. The request for these photographs was reasonably calculated to yield evidence relevant to plaintiff’s assertion that she could no longer engage in the activities she enjoyed before the accident and that she had become reclusive. It happens in this case that the order was naturally limited in temporal scope because plaintiff deactivated her Facebook account six months after the accident and Supreme Court further exercised its discretion to exclude photographs showing nudity or romantic encounters, if any, presumably to avoid undue embarrassment or invasion of privacy.

In addition, it was reasonably likely that the data revealing the timing and number of characters in posted messages would be relevant to plaintiffs’ claim that she suffered cognitive injuries that caused her to have difficulty writing and using the computer, particularly her claim that she is painstakingly slow in crafting messages. Because Supreme Court provided defendant no access to the content of any messages on the Facebook account (an aspect of the order we cannot review given defendant’s failure to appeal to the Appellate Division), we have no occasion to further address whether defendant made a showing sufficient to obtain disclosure of such content and, if so, how the order could have been tailored, in light of the facts and circumstances of this case, to avoid discovery of nonrelevant materials."

A TESTAMENT TO OUR HIGH SCHOOL STUDENTS

Last night, I was honored to be one of the judges at Nassau Supreme Court for the 2018 New York Statewide High School Mock Trial Program. It was a privilege to see how accomplished some of our high school students are today.

FOR VALENTINE'S DAY

"...I will say, that [law] is a jealous mistress, and requires a long and constant courtship. It is not to be won by trifling favours, but by a lavish homage.

• A Discourse Pronounced upon the Inauguration of the Author, as Dane Professor of Law in Harvard University on the Twenty-fifth Day of August, 1829 (1829), p. 29 - by  Justice Joseph Story

DISQUALIFICATION OF COUNSEL

Deerin v Ocean Rich Foods, LLC, 2018 NY Slip Op 00820, Decided on February 7, 2018, Appellate Division, Second Department:

""A party seeking disqualification of its adversary's counsel based on counsel's purported prior representation of that party must establish (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse" (Gjoni v Swan Club, Inc., 134 AD3d 896, 897 [internal quotation marks omitted]; see Tekni-Plex, Inc. v Meyer & Landis, 89 NY2d 123, 131; Sharifi-Nistanak v Coccia, 119 AD3d 765). "A party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted" (Kelleher v Adams, 148 AD3d 692, 692 [internal quotation marks omitted]; see Matter of Rovner v Rantzer, 145 AD3d 1016; Lipschitz v Stein, 65 AD3d 573, 576; Gulino v Gulino, 35 AD3d 812). "The party seeking to disqualify a law firm or an attorney bears the burden to show sufficient proof to warrant such a determination" (Kelleher v Adams, 148 AD3d at 692-693 [internal quotation marks omitted]; see Matter of Rovner v Rantzer, 145 AD3d at 1016; Lipschitz v Stein, 65 AD3d at 576; Gulino v Gulino, 35 AD3d at 812). However, doubts as to the existence of a conflict of interest are resolved in favor of disqualification in order to avoid even the appearance of impropriety (see Gjoni v Swan Club, Inc., 134 AD3d at 897; Matter of Fleet v Pulsar Constr. Corp., 143 AD2d 187, 188).

"One who has served as attorney for a corporation may not represent an individual shareholder in a case in which his interests are adverse to other shareholders'" (Morris v Morris, 306 AD2d 449, 452, quoting Matter of Greenberg [Madison Cabinet & Interiors], 206 AD2d 963, 965; see Gordon v Ifeanyichukwu Chuba Orakwue Obiakor, 117 AD3d 681, 683). Here, the plaintiff alleged in an affidavit that the defendants' counsel was involved in the formation of Ocean Rich, and the defendants' counsel admitted that he had represented Ocean Rich in "various past matters." Counsel's prior representation of Ocean Rich "was in fact represent[ation of] its [three] shareholders," whose competing interests are at issue in this action (Matter of Fleet v Pulsar Constr. [*3]Corp., 143 AD2d at 189). Likewise, counsel's involvement in the formation of Ocean Rich and his representation of it against third parties was "substantially related" to the present action (Gjoni v Swan Club, Inc., 134 AD3d at 897 [internal quotation marks omitted]; see Tekni-Plex, Inc. v Meyer & Landis, 89 NY2d at 131; Sharifi-Nistanak v Coccia, 119 AD3d at 765). Since the defendants' counsel was "in a position to receive relevant confidences" from the decedent, whose estate's interests "are now adverse to the defendant[s'] interests," the Supreme Court should have granted that branch of the plaintiff's cross motion which was to disqualify the defendants' counsel (Gordon v Ifeanyichukwu Chuba Orakwue Obiakor, 117 AD3d at 683; see Tekni-Plex, Inc. v Meyer & Landis, 89 NY2d at 131; Gjoni v Swan Club, Inc., 134 AD3d at 897; Sharifi-Nistanak v Coccia, 119 AD3d at 765)."

THE LONG ROAD OF MORTGAGE FORECLOSURE

This case has a history as set forth in e courts. A foreclosure action was first commenced in 2009 and resolved by a modification. This subsequent foreclosure by the same bank was commenced in 2012. Further research indicates the homeowners currently have the property listed for sale.

Bank of N.Y. Mellon v Hoshmand, 2018 NY Slip Op 00818, Decided on February 7, 2018, Appellate Division, Second Department"

"The defendants Gila Hoshmand and Samuel Hoshmand (hereinafter together the appellants) defaulted on their consolidated mortgage loan. The plaintiff, the holder of the consolidated mortgage and consolidated note, commenced this action to foreclose the consolidated mortgage against, among others, the appellants. The appellants did not appear in the action or answer the complaint. On November 18, 2014, the Supreme Court granted the plaintiff's motion for an order of reference and denied the appellants' cross motion to vacate their default. Subsequently, the plaintiff moved, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale, and the appellants opposed the motion. In the order appealed from, the Supreme Court, inter alia, granted those branches of the plaintiff's motion.

Contrary to the appellants' contention, the Supreme Court properly considered a renewed power of attorney submitted by the plaintiff in reply to the appellants' opposition to its motion. "The function of reply papers is to address arguments made in opposition to the position taken by the movant" (Central Mtge. Co. v Jahnsen, 150 AD3d 661, 664 [internal quotation marks omitted]; see OneWest Bank, FSB v Simpson, 148 AD3d 920, 923). Here, the renewed power of attorney submitted by the plaintiff was offered in response to the appellants' argument made in opposition that the plaintiff's affidavit of merit, signed by the assistant vice president of its servicing agent, was invalid because it was signed after the original power of attorney submitted by the plaintiff had expired. The renewed power of attorney merely clarified that the plaintiff's servicing agent continued to have the authority to act on behalf of the plaintiff at the time the affidavit was signed (see Central Mtge. Co. v Jahnsen, 150 AD3d at 664; OneWest Bank, FSB v Simpson, 148 AD3d at 923).

The Supreme Court properly confirmed the referee's report. Contrary to the appellants' contention, under the circumstances of this case, the referee was not required to conduct a hearing before issuing her report (see Deutsche Bank Natl. Trust Co. v Williams, 134 AD3d 981; Wachovia Mtge. Corp. v Lopa, 129 AD3d 830, 831; Capital One, N.A. v Knollwood Props. II, LLC, 98 AD3d 707, 708; Dune Deck Owners Corp. v J.J. & P. Assoc. Corp., 85 AD3d 1091; Deutsche Bank Natl. Trust Co. v Zlotoff, 77 AD3d 702; Deutsche Bank Natl. Trust Co. v Jackson, 68 AD3d 805)."

BREACH OF ESCROW AGREEMENT AND THE RULES OF EVIDENCE

Atlantic Fin., LLC v Xinlei Lin, 2018 NY Slip Op 00817, Decided on February 7, 2018, Appellate Division, Second Department:

"The plaintiff entered into a contract of sale with the defendants Xinlei Lin and Shengguo Lin (hereinafter the defendants), whereby the plaintiff agreed to sell, and the defendants agreed to purchase, premises located in Jamaica, Queens, for the sum of $540,000. The contract contained a provision that required the plaintiff to deliver the premises free of violations and liens. The defendants' title search revealed numerous violations and civil penalties issued against the premises by the City of New York Department of Housing Preservation and Development (hereinafter HPD), Department of Buildings (hereinafter DOB), and Environmental Control Board (hereinafter ECB). The plaintiff and the defendants then executed an escrow agreement, whereby the parties agreed that the plaintiff's attorney would hold the sum of $100,000 in escrow to ensure the removal of the violations and civil penalties from the premises.

After a dispute arose as to whether the terms of the escrow agreement had been complied with, the plaintiff commenced this action against, among others, the defendants, inter alia, to recover damages for breach of the escrow agreement. After issue was joined, the plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against the defendants, and the Supreme Court denied that branch of the plaintiff's motion. The plaintiff appeals.

The plaintiff's submissions failed to eliminate all triable issues of fact as to whether the defendants breached the escrow agreement by unjustifiably refusing to permit the escrow funds to be released to it. Certain documentary evidence submitted by the plaintiff in support of its motion was not in admissible form. Specifically, none of the records from ECB, DOB, and HPD were certified, and therefore, these records constituted inadmissible hearsay. Additionally, an unsworn letter from an ECB attorney and uncertified records of the title insurance company also constituted [*2]inadmissible hearsay (see Greater Bright Light Home Care Servs., Inc. v Jeffries-El, 151 AD3d 818, 821; Pandey v Parikh, 57 AD3d 634). Without this evidence, the plaintiff's contention that it complied with the escrow agreement by removing all violations from the premises was conclusory and unsupported. Furthermore, the plaintiff's submissions raised a triable issue of fact as to its compliance with the terms of the escrow agreement and whether it failed to pay the civil penalties associated with the ECB violations. Accordingly, since the plaintiff's evidence failed to eliminate all triable issues of fact, the Supreme Court properly denied that branch of its motion which was for summary judgment on the complaint insofar as asserted against the defendants, without regard to the sufficiency of the opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; 32nd Ave., LLC v Angelo Holding Corp., 88 AD3d 986, 987)."

DIVORCE: 2018 INCOME MAINTENANCE CAP

Effective January 31, the income cap the income cap for the maintenance calculations has been adjusted to $184,000. The cap for income for child support remains at $143,000 and will not be adjusted until next year.

The courts have a new form for guidelines worksheet for maintenance:

http://www.nycourts.gov/divorce/childsupport/UD-8-2-MaintenanceGuidelinesWorksheet.pdf

PRE-NUP: BE SPECIFIC IN YOUR SCHEDULES

The exhibits and schedules that are attached to an agreement are part of the agreement and may override the intent of the general terms of the agreement. That was the lesson in Foley v. Foley, 2017 NY Slip Op 8435 - NY: Appellate Div., 3rd Dept. 2017:

"The husband argues that, under the plain meaning of the terms of the agreement, his pension and deferred compensation accounts were separate property. We disagree. Exhibit A, though a "simple list," included nine categories of assets: "A" cash accounts; "B" securities; "C" brokers margin accounts; "D" loans to others and accounts receivable from others; "E" value of any business interests; "F" cash surrender value of life insurance; "G" vehicles; "H" real estate; and "I" vested interests in trusts. In the column after categories "A", "B" and "C" the parties wrote "NONE." The column at category "D" identified a mortgage. Column "F" was a specific life insurance policy, the parties identified three vehicles at column "G", and, for column "H," the parties identified 15 separate parcels of real property.

We discern no ambiguity in this prenuptial agreement. Though we are mindful that the general terms of the agreement provided that all property acquired by the parties prior to the marriage was separate property, "including any increases thereto," the husband had both a pension and a deferred compensation account prior to the marriage and these accounts could have been identified very easily and been included with the "simple combined list" attached to the agreement. Instead, the parties simply ignored the category altogether. By failing to reference these accounts in the more specific "A," we, like Supreme Court, find that the parties did not intend to include either as separate property (see Herr v Herr, 97 AD3d at 963)."

DIVORCE - DEGREE OF PROOF NEEDED TO PROVE SEPARATE PROPERTY CREDIT

Culen v Culen, 2018 NY Slip Op 00541, Decided on January 31, 2018, Appellate Division, Second Department:

"Furthermore, the defendant's contention that he was entitled to a separate property credit for his contributions to the down payment on the marital residence is without merit. The defendant's self-serving trial testimony that his aunt gave him a check in the sum of $50,000, that his uncle gave him the sum of $10,000, and that he used these funds toward the down payment, was unsupported by documentary evidence, and insufficient to establish his entitlement to a separate property credit (see Rosenberg v Rosenberg, 145 AD3d 1052, 1055; Horn v Horn, 145 AD3d 666, 667; Wasserman v Wasserman, 66 AD3d 880, 883). Additionally, the Supreme Court properly found that the defendant failed to present sufficient evidence tracing the source of any funds used to purchase the martial residence to the sale of certain stock, which was purportedly the defendant's separate property (see Maddaloni v Maddaloni, 142 AD3d 646, 652)."

WORKING WITH MY COMMUNITY

Levittown Chamber of Commerce , 57th Annual Installation of Officers & Directors

DIVORCE - DELAYING TACTICS CAN COST A LITIGANT

Culen v Culen, 2018 NY Slip Op 00542, Decided on January 31, 2018, Appellate Division, Second Department:

" Pursuant to Domestic Relations Law § 237(a), a court in a divorce action may award counsel fees to a spouse 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'" (Samimi v Samimi, 134 AD3d 1010, 1012, quoting Aloi v Simoni, 82 AD3d 683, 686). "The decision to award an attorney's fee in a matrimonial action lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court" (Black v Black, 140 AD3d 816, 816 [internal quotation marks omitted]; see O'Brien v O'Brien, 66 NY2d 576, 590). "In exercising that discretion, the court must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions, and whether either party has delayed the proceedings or engaged in unnecessary litigation" (Black v Black, 140 AD3d at 816-817 [internal quotation marks omitted]; see Guzzo v Guzzo, 110 AD3d 765, 766).

Here, the plaintiff was entitled to an award of an attorney's fee in the amount of $90,000 based upon, inter alia, the relative merits of the parties' positions and the defendant's obstructionist tactics, which unnecessarily prolonged the litigation (see Cohen-McLaughlin v McLaughlin, 132 AD3d 716, 717-718; Baron v Baron, 71 AD3d 807, 810; Curatola v Curatola, 43 AD3d 974, 976; Schek v Schek, 49 AD3d 625, 626). These tactics included, but were not limited to, the defendant's insistence that the parties proceed to a jury trial on the grounds for the divorce, despite the plaintiff having agreed either to settle on a ground other than cruel and inhuman treatment or to withdraw the case and re-file on the ground of irretrievable breakdown of the marital relationship, and the defendant's motion filed after trial on the issues of equitable distribution and maintenance to exclude the plaintiff from a tennis club where the parties were both previously members. The defendant unnecessarily prolonged the litigation by attempting to obstruct the plaintiff from obtaining discovery regarding an inheritance that the defendant was entitled to receive [*3]from his aunt's estate, even though it is well established that parties to a divorce action are entitled to liberal and broad discovery from one another, including with respect to separate property that is not subject to equitable distribution (see Owens v Owens, 107 AD3d 1171, 1174; Jaffe v Jaffe, 91 AD3d 551, 554; Dorsa v Dorsa, 50 AD3d 842, 843)

SETTING ASIDE AN UNFAIR SEPARATION AGREEMENT

TUZZOLINO v. TUZZOLINO, 2017 NY Slip Op 8991 - NY: Appellate Div., 4th Dept. 2017:

"We agree with plaintiff that the agreements are unfair and unconscionable and should be set aside. Separation agreements are subject to closer judicial scrutiny than other contracts because of the fiduciary relationship between spouses (see Christian v Christian, 42 NY2d 63, 72 [1977]; Gibson v Gibson, 284 AD2d 908, 909 [4th Dept 2001]). A separation agreement should be set aside as unconscionable where it is "such as no person in his or her senses and not under delusion would make on the one hand, and as no honest and fair person would accept on the other . . ., the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense" (Christian, 42 NY2d at 71 [internal quotation marks and brackets omitted]; see Dawes v Dawes, 110 AD3d 1450, 1451 [4th Dept 2013]; Skotnicki v Skotnicki, 237 AD2d 974, 975 [4th Dept 1997]). We note that the unconscionability or inequality of a separation agreement may be the result of overreaching by one party to the detriment of another (see Tchorzewski v Tchorzewski, 278 AD2d 869, 870 [4th Dept 2000]).

Here, at the time the parties entered into the agreements, defendant wife was represented by counsel but plaintiff was not, which, while not dispositive, is a significant factor for us to consider (see Gibson, 284 AD2d at 909; Tchorzewski, 278 AD2d at 870; Skotnicki, 237 AD2d at 975). Another factor to consider is that the agreements did not make a full disclosure of the finances of the parties (see Tchorzewski, 278 AD2d at 870-871). In particular, defendant, who had a master's degree in business administration and was a professor at a SUNY college, would receive two pensions upon retirement, neither of which was valued. The separation agreement did not provide for any maintenance for plaintiff despite the gross disparity in incomes and the length of the marriage and, while the modification agreement provided maintenance for plaintiff, it also required plaintiff to transfer his interest in the marital residence to defendant. In opposition to the motion, defendant averred that the parties "wanted an agreement whereby [plaintiff] would keep his income and retirement assets and I would keep mine." As shown by their statements of net worth, which were prepared after the agreements were executed, plaintiff's assets totaled approximately $77,000 whereas defendant's assets, which included the marital residence, totaled approximately $740,000. Based on our consideration of all the factors, we conclude that the agreements here are unconscionable and were the product of overreaching by defendant and thus should be set aside (see Dawes, 110 AD3d at 1451; Gibson, 284 AD2d at 909; Tchorzewski, 278 AD2d at 871). We therefore reverse the judgment in appeal No. 1 insofar as appealed from, grant the motion, vacate the second and third decretal paragraphs, and we remit the matter to Supreme Court to determine the issues of equitable distribution and maintenance."