REAL ESTATE - ACTIVE CONCEALMENT & FRAUD ON LEAKS AND MOLD

Razdolskaya v Lyubarsky, 2018 NY Slip Op 02817, Decided on April 25, 2018, Appellate Division, Second Department:

"The plaintiff purchased a condominium unit from the defendants Roman Lyubarsky and Yelena Lyubarsky (hereinafter together the Lyubarskys). The plaintiff was represented by the defendant attorney Zorik Erik Ikhilov in connection with the sale. The plaintiff commenced this action against the Lyubarskys and Ikhilov after allegedly discovering that the condominium building required remediation for mold and water damage. Specifically, the plaintiff alleged that the Lyubarskys actively concealed mold and water damage in the unit's balcony, and assigned storage unit and parking space, and additionally concealed defective conditions throughout the common areas of the building. The plaintiff alleged Ikhilov committed legal malpractice in his representation of her in the transaction. In his answer, Ikhilov asserted cross claims against the Lyubarskys for contribution and common-law and contractual indemnification.

The Lyubarskys moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint and all cross claims insofar as asserted against them, and the Supreme Court denied their motion in its entirety. On their appeal, the Lyubarskys concede that the complaint states a cause of action to recover damages for fraud based upon the alleged concealment of defects in the condominium unit's balcony, and assigned storage unit and parking space. They contend, however, that the court erred in denying those branches of their motion which were to dismiss so much of the fraud cause of action as was premised upon the alleged concealment of defects in the common areas of the building, and that the court erred in denying those branches of their motion which were to dismiss Ikhilov's cross claims.

We agree with the Supreme Court's determination to deny those branches of the Lyubarskys' motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss so much of the fraud cause of action as was premised upon the alleged concealment of defects in the common areas of the building. "New York adheres to the doctrine of caveat emptor and imposes no liability on a seller for failing to disclose information regarding the premises when the parties deal at arm's length, unless there is some conduct on the part of the seller which constitutes active concealment" (Simone v Homecheck Real Estate Servs., Inc., 42 AD3d 518, 520; see Radushinsky v Itskovich, 127 AD3d 838, 839). "If however, some conduct (i.e., more than mere silence) on the part of the seller rises to the level of active concealment, a seller may have a duty to disclose information concerning the property" (Hecker v Paschke, 133 AD3d 713, 716 [internal quotation marks omitted]; see Daly v Kochanowicz, 67 AD3d 78, 92). "To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller's agents thwarted the plaintiff's efforts to fulfill his responsibilities fixed by the doctrine of caveat emptor" (Jablonski v Rapalje, 14 AD3d 484, 485; see Perez-Faringer v Heilman, 95 AD3d 853, 854).

Here, accepting the facts alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference (see CPLR 3211[a][7]; Leon v Martinez, 84 NY2d 83, 87-88), the complaint sufficiently states a cause of action to recover damages for fraud on the theory that the Lyubarskys actively concealed defects throughout the common areas of the condominium building. The complaint alleges that the Lyubarskys took several steps to hide the existence of leaks and mold damage including, inter alia, claiming that they had lost the key to the storage area in the cellar which was assigned to the subject condominium, and removing and replacing damaged sheetrock from the cellar and the parking area. These allegations, if true, might have thwarted the plaintiff's efforts to fulfill her responsibilities imposed by the doctrine of caveat emptor with respect to the common areas of the building (see Camisa v Papaleo, 93 AD3d 623, 625; Margolin v IM Kapco, Inc., 89 AD3d 690, 692; Jablonski v Rapalje, 14 AD3d 484, 487; see also Radushinsky v Itskovich, 127 AD3d at 839). Further, in support of that branch of their motion which sought dismissal pursuant to CPLR 3211(a)(1), the Lyubarskys failed to sustain their burden of submitting documentary evidence to resolve all factual issues as a matter of law, and conclusively dispose of the plaintiff's fraud cause of action as it related to the common areas of the building (see Leon v Martinez, 84 NY2d at 87; Camisa v Papaleo, 93 AD3d at 625)."

THREE PARTIES, THREE PARENTS

MATTER OF DAVID S. v. SAMANTHA G., 2018 NY Slip Op 28110 - NY: Family Court 2018:

"The landmark Court of Appeals case Brooke S.B. changed the legal landscape regarding the rights of a partner who is not a legal parent to seek custody and visitation. Brooke S.B. held that "where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law §70" (id. at 15). Domestic Relations Law §70 (a) provides:

Where a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration may award the natural guardianship, charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly (emphasis added).

Significantly, Brooke S.B. overruled the Court's ruling in Allison D. v Virginia M. (77 NY2d 651 [1991]), which denied a partner who lacked a biological or adoptive relationship with a child the right to seek visitation under DRL §70(a), despite having an established "parental" type relationship with the child. In determining to break with precedent, the Brooke S.B. court gave primary consideration to the well-being of children being raised in nontraditional families and to how the Allison D. decision had negatively impacted those children (Brooke S.B. at 19-29). In making its ruling, the Brooke S.B. court also recognized the fundamental right of parents to control the upbringing of their children and required that the relationship between the child and the partner came into being with the consent of the legal parent (id. at 26).

In reaching its decision, the Brooke S.B. court relied heavily on the dissent of Judge Kaye in Allison D. Judge Kaye foresaw that the Allison D. ruling would "`fall [] hardest' on the millions of children raised in nontraditional families — including families headed by same-sex couples, unmarried opposite-sex couples, and stepparents" (Brooke S.B. at 20 citing Allison D., 658-660 [Kaye, J. dissenting].) "The dissent asserted that, because DRL §70 does not define `parent' — and because the statute made express reference to `the best interests of the child,' the court was free to draft a definition that accommodated the welfare of the child" (id.). The dissent criticized the majority for turning its back "on a tradition of reading section §70 so as to promote the welfare of the children" (id.).

In determining to overrule Allison D., the Brooke S.B. court also noted that legal commentators have "taken issue with Allison D. for its negative impact on children" and that "[a] growing body of social science reveals the trauma children suffer as a result of separation from a primary attachment figure — such as a de facto parent — regardless of the figure's biological or adoptive ties to the children" (id. at 25-26 [citations omitted]).

Against this backdrop, this court is now called upon to determine if the ruling in Brooke S.B. would be applicable to the situation at hand, where three — not just two — parties agreed to a preconception plan to raise a child together. It is not disputed that Ms. G. and Misters S. and T. consented to a preconception plan to establish a family where the child to be conceived would have three parents (albeit in two homes) and proceeded to effectuate that plan. The two men alternated the delivery of their sperm day by day to artificially inseminate Ms. G., and the three parties jointly announced their impending parenthood when Ms. G. became pregnant. The three parties jointly chose and paid for the midwife, were present when the child Matthew was born, and selected names for the child that recognized all three parties. The three parties agreed on a pediatrician and on a health insurance plan, and were all present at the hospital when Matthew needed hernia surgery at the age of two months. Misters S. and T. currently enjoy regular parenting time with Matthew.

The court finds that under the above circumstances where the three parties entered and followed through with a preconception plan to raise a child together in a tri-parent arrangement, the biological father's spouse has standing to seek custody and visitation as a parent pursuant to Brooke S.B. In making this decision, this court is specifically taking into consideration that the relationship between Mr. T. and Matthew came into being with the consent and blessing of the two biological parents and that both biological parents agree that Mr. T. should have standing to seek custody and visitation.

The court further finds that its ruling that Mr. T. has standing to seek custody and visitation despite the existence of two legal parents, to be consistent with the fundamental principle of Brooke S.B. — that DRL §70 must be read to effectuate the welfare and best interests of children, particularly those who are being raised in a non-traditional family structure (id. at 20). The parent-child relationships fostered by children like Matthew, who are being raised in a tri-parent arrangement, should be entitled to no less protection than children raised by two parties.^["

MARIJUANA USE AND NEGLECT

Matter of Gabriela T. (Angelina T.), 2018 NY Slip Op 02793, Decided on April 25, 2018, Appellate Division, Second Department:

"In July 2015, the Administration for Children's Services (hereinafter the petitioner) commenced related neglect proceedings against the mother, alleging that the mother neglected the subject children by, inter alia, misusing drugs. After a fact-finding hearing, the Family Court found that the petitioner failed to establish that the mother neglected the children. The court dismissed the petitions, and the petitioner appeals.

"In a neglect proceeding pursuant to Family Court Act article 10, the petitioner has the burden of proving by a preponderance of the evidence that the subject child was neglected" (Matter of Geoffrey D. [Everton D.], 158 AD3d 758, 759; see Family Ct Act § 1046[b][i]). Unlike other forms of neglect, which require a showing that a child's well-being has been impaired or is in imminent danger of becoming impaired, "proof that a person repeatedly misuses a drug . . . , to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial [*2]state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of . . . such person is a neglected child" unless the parent is "voluntarily and regularly participating in a recognized rehabilitative program" (Family Ct Act § 1046[a][iii]; see Matter of Isiah L. [Terry C.], 154 AD3d 697, 698).

Here, the petitioner presented a prima facie case of neglect based on evidence that the mother had regularly used marijuana, which she had been advised could worsen her preexisting mental health condition (see Matter of Isiah L. [Terry C.], 154 AD3d at 698-699; Matter of Nyheem E. [Jamila G.], 134 AD3d 517, 519; Matter of Ishaq B. [Lea B.], 121 AD3d 889, 889-890; Matter of Ayana Jean L., 23 AD3d 472, 473). Therefore, neither actual impairment of the children's physical, mental, or emotional condition, nor specific risk of impairment, needed to be shown to establish that the children were neglected (see Matter of Isiah L. [Terry C.], 154 AD3d at 699; Matter of Vita C. [Oksana C.], 138 AD3d 739, 740). Since the mother failed to establish that she was voluntarily and regularly participating in a drug rehabilitative program, she failed to rebut the petitioner's prima facie evidence of neglect (see Family Ct Act § 1046[a][iii]; Matter of Nyheem E. [Jamila G.], 134 AD3d at 519)."

MORTGAGE FORECLOSURE - LITIGATING AGAINST THE BANK AFTER DEFAULT

In this case, a homeowner learns that the failure to timely file an answer can affect the entire process. 

Bank of N.Y. Mellon Trust Co. v Loodus, 2018 NY Slip Op 02591, Decided on April 18, 2018, Appellate Division, Second Department:

"The defendant executed a note and mortgage in the amount of $488,700. The mortgage was secured by residential property located in Ronkonkama. After the defendant defaulted on her obligations under the note and mortgage, the plaintiff commenced this action to foreclose the mortgage. The defendant failed to timely answer the complaint. On March 25, 2011, the plaintiff filed a request for judicial intervention. Thereafter, the defendant moved to compel the plaintiff to accept a late answer. The Supreme Court denied the defendant's motion, finding that she failed to establish a reasonable excuse for her default. Thereafter, the plaintiff moved, inter alia, for leave to enter a default judgment and for an order of reference. The defendant cross-moved to dismiss the complaint and, in effect, to vacate her default. In an order dated February 25, 2014, the court granted the plaintiff's motion and denied the defendant's cross motion.

Subsequently, the plaintiff moved, inter alia, to confirm a referee's report and for a judgment of foreclosure and sale. The defendant opposed the motion and cross-moved to dismiss the complaint and to vacate the referee's report. In an order dated May 4, 2016, the Supreme Court granted that branch of the plaintiff's motion which was for a judgment of foreclosure and sale, and denied the defendant's cross motion. In an order and judgment of foreclosure and sale, the court, among other things, granted that branch of the plaintiff's motion which was to confirm the referee's report and directed the foreclosure and sale of the property.

Contrary to the defendant's contentions, the Supreme Court properly granted those branches of the plaintiff's motion which were for a judgment of foreclosure and sale and to confirm the referee's report. On its initial motion, inter alia, for leave to enter a default judgment and for an order of reference, the plaintiff established its entitlement to judgment as a matter of law (see CPLR 3215[f]; HSBC Bank USA, N.A. v Simmons, 125 AD3d 930, 932). On its subsequent motion, which was, inter alia, for a judgment of foreclosure and sale and to confirm the referee's report, the plaintiff established the amount due under the note by submitting that report (see HSBC Bank USA, N.A. v Simmons, 125 AD3d at 932).

The defendant's contention that the affidavit submitted in support of the plaintiff's motion, inter alia, for a judgment of foreclosure and sale was insufficient to prove the defendant's default on the loan is without merit. As noted above, the plaintiff already established its entitlement to judgment as a matter of law on its motion for a default judgment and an order of reference (see id.).

The Supreme Court properly denied that branch of the defendant's cross motion which was to dismiss the complaint since, by virtue of having failed to vacate her default in the action, the defendant is deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them (see 425 E. 26th St. Owners Corp. v Beaton, 128 AD3d 766, 769; Mortgage Elec. Registration Sys., Inc. v Smith, 111 AD3d 804, 806). The court also properly denied that branch of the defendant's cross motion which was to vacate the referee's report (see RPAPL 1321).

The defendant's contentions regarding the plaintiff's compliance with Administrative Order 548/10 of the Chief Administrative Judge of the Courts were not raised before the Supreme Court and are, therefore, improperly raised for the first time on appeal and not properly before this Court (see Flagstar Bank, FSB v Titus, 120 AD3d 469, 470)."

CIVIL RIGHTS LAW SECTION 80-b

BILLITTIER v. Clark, 2014 NY Slip Op 50758 - NY: Supreme Court, Erie 2014:

"Prior to 1965, the law in New York State, referred to as the so called heart balm statute, prohibited a former fiancee from suing to recover property given in contemplation of marriage. This law was adopted primarily to prevent acrimonious lovers scorned from suing each other based on alleged alienation of affections, criminal conversation, seduction and breach of contract to marry. The lawsuits were subject to grave abuses and caused financial damage and emotional injury to many persons who were innocent of any wrong doing and were merely the victims of circumstance, Brandes, Joel S. NY Law Journal October 27, 1998 p. 1, col. 3 vol. 220. New York Civil Rights Law § 80-b became law in 1965 permitting erstwhile fiancees to recover chattel given in contemplation of marriage regardless of fault if no marriage occurs. The statute also allows for the recovery of real property and permits courts to award a lien to defendants for money expended in connection with the chattels or real property. There is a strong presumption that any gifts made during the engagement period are given solely in contemplation of marriage. This presumption is rebuttable, but clear and convincing proof is necessary to overcome it, Vasinkevich v. Elm Drugs, 208 AD2d 522 (2nd Dept. 1994) and Friedman v. Geller, 82 Misc 2d 291 (Civil Court NYC, Kings County 1975).

Most of the reported decisions on this issue in New York and nationwide recognize the unique essence and purpose of an engagement ring as being given in contemplation of marriage, Tomko, Elaine, Rights in Respect of Engagement and Courtship Presents When marriage Does Not Ensue, 44 A.L.R.5th 1 (1996) and Glassman, Adam, I Do! Or Do I?, 12 Buff. Women's L.J. 47 (2003). Therefore, fairness requires its return to the donor when no marriage occurs regardless of who is responsible for such failure, Gaden v. Gaden, 29 NY2d 80 (1971), Paulicic v. Vogtsberger, 390 PA 502, 136 A2d 127 (PA Sup. Ct. 1957, but, see, Lewis v. Permut, 66 Misc 2d 127 (Civil Court NYC, Queens County 1971), Addarich v. Ford, 35 Misc 3d 1231(A) (Sup. Ct. NYC, 2012) and Maiorana v. Rojas, 3 Misc 3d 1107 (Civil Court NYC, Kings County 2004). One common exception is where one of the parties is already married thus defeating the contemplation of a legal marriage since bigamy is illegal in New York and enforcement of § 80-b would be void as against public policy under those circumstances, Lowe v. Quinn, 27 NY2d 397 (1971) and Leemon v. Wicke, 216 AD2d 272 (2nd Dept. 1995). The result holds true even where the donee is already married, Witkowski v. Blaskiewicz, 162 Misc 2d 66 (Civil Court NYC, Queens County 1994). However, most of the reported decisions in New York reflect adherence to the legislative intent of § 80-b to restore the parties to their pre-engagement status by returning the engagement ring to its donor. This is true unless the once conditional gift is transformed into an ordinary gift, which is by definition irrevocable, that is, once given vests immediately and irrevocably in the donee, and the donor's later acts cannot revoke or retract it, 62 NY Jur § 54 (NY Jur 2nd Ed. 2014). To make a valid inter vivos gift, there must exist the intent on the part of the donor to make a present transfer delivery of the gift, either actual or constructive to the donee, and acceptance by the donee, Gruen v. Gruen, 68 NY2d 48 (1986), see, 62 NY Jur § 31 and Juliano v. Juliano, NYLJ p. 21, col. 3 (Sup. Ct. Kings Cty. 2014)."

IS IT A GIFT OR A LOAN?

JD v. AD, 2017 NY Slip Op 50261 - NY: Supreme Court, Richmond 2017:

"The essential elements of any cause of action to recover damages for a breach of contract are, (1) the existence of a contract, (2) the plaintiff's performance pursuant to the contract, (3) the defendant's breach of its contractual obligations, and (4) damages resulting from that breach. See 143 Bergen St. LLC v. Ruderman, 144 AD3d 1002 (2d Dept. 2016); See also Tudor Ins. Co. v. Unithree Inv. Corp., 137 AD3d 1259 (2d Dept. 2016). The burden of proving the existence, terms and validity of a contract rests on the party seeking to enforce it. See Amica Mut. Ins. Co. v. Kingston Oil Supply Corp. 134 AD3d 750 (2d Dept. 2015).

In contrast, a defendant attempting to establish that a particular transaction was a gift, rather than a loan, has the burden of proof to show, by clear and convincing evidence, that the transaction was made with the requisite "donative intent." See Phelps v. Phelps, 128 AD3d 1545 (4th Dept. 2015) As Defendant Husband has alluded to the Statute of Frauds, it is worth noting that certain contracts must be set forth in a writing. See General Obligations Law § 5-701; See also, Taranto v. Fritz, 83 AD2d 864 (2d Dept. 1981). However, an oral agreement may be enforceable so long as the terms are clear and definite and the conduct of the parties evinces mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms. See Kramer v. Greene, 142 AD3d 438 (1st Dept. 2016). An oral contract to repay a loan may be enforceable if the elements indicated above are met. See Alameldin v. Kings Castle Caterers, Inc., 53 AD3d 514 (2d Dept. 2008); See also King Serv. v. O'Brien, 206 AD2d 728 (3rd Dept. 1994).

Decision

Defendant Wife concedes that she and her Husband borrowed the money from her father. While this is not conclusive proof as to Husband, it is some evidence of the existence of a loan. Wife credibly testified that she and Husband were well aware that this loan had to be repaid in full within six months of the closing of the Amboy Road property. Her testimony, like the testimony of Plaintiff and J.C., was credible. Wife claims that Husband's claim that this money was a gift (notwithstanding the markings on each check indicating it was a loan) is in furtherance of a scorched earth litigation strategy against her and her family. Wife and Plaintiff also credibly testified that Husband agreed to repay Plaintiff the $280,000 only if Wife gave up custody of the two subject children in the underlying divorce case.

Beyond the admissions of Wife, this Court finds that Plaintiff has independently established the necessary elements of his breach of contract cause of action. Here, the contract at issue was oral in nature. Plaintiff credibly testified that he provided his daughter and son in law the combined sum of $280,000 on the condition that it be paid back within six months of the closing, without interest. While the terms of the contract were agreed to between the parties orally, both of the checks at issue clearly indicated that the amounts provided were "loans." (See Pl. Exs. 1;3). Plaintiff further established that Defendant Husband's conduct evidenced that he understood the terms, as Husband sent two text messages to Defendant Wife indicating that he knew that the amount was borrowed, and had to be paid back within six months. (See Pl. Exs. 5;6). See Burnside v. Foglia, 208 AD2d 1085 (3rd Dept. 1994). Accordingly, this Court finds that Plaintiff has established the existence of a contract by a preponderance of the evidence. See Van Wie Chevrolet, Inc. v. General Motors, LLC 145 AD3d 1 (4th Dept. 2016).

In opposition, Husband argues that the transaction at issue was actually a gift from Plaintiff to his daughter, as opposed to a loan. However, this Court finds Husband's testimony in support of this defense to be patently unbelievable, particularly in light of his own text admissions. Indeed, when asked why he would believe this money was a $280,000 gift when, in fact each check had the word "loan" written on them, he could offer no explanation other than to suggest that Plaintiff had given his daughter gifts in the past. As Husband has failed to provide any evidence of donative intent on the part of Plaintiff, his defense must fail. See In re Estate of MacGregor, 119 AD2d 909 (3rd Dept. 1986); See also Phelps v. Phelps, 128 AD3d 1545 (4th Dept. 2015). Accordingly, after listing to the testimony and considering the evidence at trial, this Court finds that the $280,000 given by Plaintiff to defendants was a loan, and not a gift as claimed by Husband.

The second element of a breach of contract action is not in dispute as both Defendants admit that they received the two checks totaling $280,000 that were deposited into their joint account. Accordingly, Plaintiff fulfilled his end of the contract by providing the funds. Plaintiff further established that the defendants herein breached the contract when they did not repay the sums loaned within the six month time period allotted, or upon his subsequent demand for repayment. Finally, the Court finds that the Plaintiff sustained damages as he has not recovered any of the amount that he loaned the parties.

Defendant Husband argues, in the alternative, that even if this Court were to find that the $280,000 given by Plaintiff to the defendants was a loan, that loan would be unenforceable under the Statute of Frauds. (Gen. Obl. Law Sec. 5-701(a). That statute provides, inter alia, that an agreement, is void unless it is reduced to a writing if by its terms it is not capable of being performed within one year's time. See General Obligations Law § 5-701(a).

Defendant Husband's reliance on the Statute of Frauds is wholly unpersuasive. First, and foremost this affirmative defense was not asserted in his Verified Answer (Pl. Ex. 8) and is therefore unavailable to him. See Ryan v. Kellogg Partners Institutional Servs., 79 AD3d 447 (1st Dept. 2010). Nor has the defendant made an application to amend his answer. See Zito v. County of Suffolk, 81 AD3d 722 (2d Dept. 2011). Moreover, even if this defense was properly before this Court (which it is not), it would not prevent Plaintiff's recovery here. The credible testimony of Plaintiff and Wife coupled with Husband's own text admissions confirm that the he and Wife had six months in which to repay the debt. As this debt was payable within one year, this statute would not apply even if it were properly plead. See Weksler v. Weksler, 140 AD3d 491 (1st Dept. 2016).

Husband next argues that if this Court finds that these funds constituted a loan, then it was a loan made only to Wife for which he bears no legal responsibility. This argument is equally unpersuasive. First, the Court credits Plaintiff's testimony that the loan was intended for the defendants as Husband and Wife. In fact, the loan benefitted Husband more than Wife, as it was intended to purchase property to house his electrical business. Moreover, as this loan was given during the defendant's marriage, and it obviously benefited both defendants, it constitutes marital debt that should be shared by the parties. See Gillman v. Gillman, 139 AD3d 667 (2d Dep't. 2016)."

MORE ON RPL 235 BB

As reported earlier, this new provision, which was signed into law on November 29, 2017, requires a valid certificate of occupancy to be disclosed prior to the execution of a rental agreement or lease between a landlord and a tenant, effective immediately upon enactment.

According to the Justification provision in the Senate Bill S6636 - Details:

"Some tenants may assume that when a landlord is offering a place to rent, that those housing accommodations are safe and up to code. However, that isn't necessarily the case. In fact, some landlords are seeking additional profits by allowing more tenants into a house or building than would otherwise be allowed. For example, a landlord may take a two-family house, which was once only home to two families, and instead make illegal conversions inside the two-family house such that five or six families are living there. These illegal conversions present not only the obvious concerns of the safety of those individuals living there, but they also cause our neighborhoods and schools to become overcrowded because our city planners are assuming that a two-family house only has two families in it, and not five or six. This bill would protect tenants by requiring landlords to disclose whether a certificate of occupancy is on file, if the building is required to have one, for the property being rented and that it is valid. Alternatively, landlords could provide a copy of the certificate of occupancy to the tenants."

THANK YOU FOR THE HONORABLE MENTION

NYC - RIGHT TO COUNSEL IN HOUSING COURT

Last summer, NYC signed into law an amendment to Title 26, Chapter 13 of the Administrative Code which provides, in pertinent part:

"§ 26-1302 Provision of legal services.

   a.   Subject to appropriation, the coordinator shall establish a program to provide access to legal services for covered individuals in covered proceedings in housing court and shall ensure that, no later than July 31, 2022:

      1.   all covered individuals receive access to brief legal assistance no later than their first scheduled appearance in a covered proceeding in housing court, or as soon thereafter as is practicable; and

      2.   all income-eligible individuals receive access to full legal representation no later than their first scheduled appearance in a covered proceeding in housing court, or as soon thereafter as is practicable.

   b.   Subject to appropriation, no later than October 1, 2017, the coordinator shall establish a program to provide access to legal services in administrative proceedings of the New York city housing authority for tenants of buildings operated by the New York City housing authority who have been served with charges in such administrative proceedings for termination of tenancy and shall ensure that, no later than July 31, 2022, all such tenants receive access to such legal services.

   c.   The coordinator shall estimate annually the expenditures required for each year of implementation of the programs described by subdivisions a and b of this section. Beginning October 1, 2022 and no later than each October 1 thereafter, the coordinator shall publish a summary of any changes to such estimates for expenditures.

   d.   The coordinator shall annually review the performance of designated organizations.

   e.   The coordinator shall require each designated organization to identify the geographic areas for which such organization will provide legal services. For each such geographic area, the coordinator shall maintain a list of such organizations that provide such legal services.

   f.   Any legal services performed by a designated organization pursuant to this chapter shall not supplant, replace, or satisfy any obligations or responsibilities of such designated organization pursuant to any other program, agreement, or contract.

   g.   Nothing in this chapter or the administration or application thereof shall be construed to create a private right of action on the part of any person or entity against the city or any agency, official, or employee thereof.

(L.L. 2017/136, 8/11/2017)"

Basically, the new rule provides that at the end of 5 years, all income eligible tenants will be ensured an attorney when fighting their eviction in housing court.  Tenants who are over income, have the right to a consultation with an attorney.  It also provides for NYCHA tenants whose cases happen in administrative hearings, to have representation as well.

MORE ON ILLEGAL APARTMENTS

Governor Andrew Cuomo signed a new piece of legislation into law this past December to curb illegal conversions in buildings with three or fewer dwelling units.

"Real Property (RPP) Section 235-BB Certificates of occupancy; required disclosure to tenant

1. Prior to executing a residential lease or rental agreement with a tenant, the owner of real property consisting of three or fewer rental units shall provide conspicuous notice in bold face type as to whether a certificate of occupancy, if such certificate is required by law, is currently valid for the dwelling unit subject to the lease or rental agreement. Owners who provide the tenant with an actual copy of the valid certificate of occupancy shall be deemed to have complied with the requirements of this subdivision.

2. Any agreement by a lessee or tenant of premises for dwelling purposes waiving or modifying his or her rights as set forth in this section shall be void as contrary to public policy."

The law makes no mention of any penalty should a landlord fail to comply.

E TRACK

For counsel and/or pro see litigants in litigation, this is an essential. eTrack is a case tracking service which enables you to receive email updates and appearance reminders for Civil Supreme and Local Civil Court cases, as well as Criminal cases in Local and Superior Courts in 13 counties. eTrack is a free service provided by the New York State Unified Court System. Case Updates are emails which are automatically generated every time the court staff updates a case in their computer system (for example, if an appearance is adjourned to another date). Appearance Reminders are emails sent out a predetermined number of days before an appearance is scheduled (you can choose whether a reminder is sent 1, 7, 15 or 30 days before the appearance date).

For more information, see https://iapps.courts.state.ny.us/webcivil/etrackUserGuide

TESTIMONY OF CHILD IN NEGLECT PROCEEDING

Matter of Mirza S.A. (Mirza A A.), 2018 NY Slip Op 02455, Decided on April 11, 2018, Appellate Division, Second Department:

"The Administration for Children's Services (hereinafter ACS) commenced this proceeding pursuant to Family Court Act article 10, alleging that the father neglected the subject child by engaging in acts of domestic violence in the child's presence. After a fact-finding hearing, the Family Court found that the father neglected the child. Subsequently, the court issued an order [*2]of disposition, releasing the child to the custody of the nonrespondent mother under the supervision of ACS for a period of 12 months. The father appeals.

The appeal from so much of the order of disposition as released the child to the mother's custody under the supervision of ACS for a period of 12 months must be dismissed as academic, as that portion of the order has expired (see Matter of Justin P. [Damien P.], 148 AD3d 903, 903; Matter of Ethan B. [Frederick B.], 130 AD3d 816, 816). However, the appeal from the portion of the order of disposition which brings up for review the finding that the father neglected the child is not academic, since the adjudication of neglect constitutes a permanent and significant stigma, which might indirectly affect the father's status in future proceedings (see Matter of Justin P. [Damien P.], 148 AD3d at 904; Matter of Ethan B. [Frederick B.], 130 AD3d at 817).

To establish neglect, the petitioner must demonstrate by a preponderance of the evidence, "first, that [the] child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent . . . to exercise a minimum degree of care in providing the child with the proper supervision or guardianship" (Nicholson v Scoppetta, 3 NY3d 357, 368; see Family Ct Act §§ 1012[f][i]; 1046[b][i]). Here, the Family Court's finding that the father neglected the child is supported by a preponderance of the evidence (see Matter of Jaden J. [Ernest C.], 106 AD3d 822; Matter of Jayden B. [Erica R.], 91 AD3d 1344, 1345; Matter of Elijah J. [Phillip J.], 77 AD3d 835).

At the hearing, the Family Court concluded that the child would suffer emotional trauma if compelled to testify in front of the father (see Matter of Michael U. [Marcus U.], 110 AD3d 821; Matter of Elisha M.W. [Ronald W.], 96 AD3d 863; Matter of Deshawn D.O. [Maria T.O.], 81 AD3d 961). The court thus permitted the child to testify outside the father's presence. Nevertheless, to protect the father's rights, the court arranged for the father to view the testimony via video linkup, granted a recess after the completion of ACS's direct case to permit the father and his attorney time to consult before cross-examining the child, and permitted a further recess after the completion of that cross-examination for further consultation. The court's conclusion that the child would suffer trauma if compelled to testify in the father's presence was reasonable. Moreover, in its balancing of the respective rights and interests of the parties, the court did not improvidently exercise its discretion. Finally, because the father's attorney was present during the child's testimony and cross-examined him on the father's behalf, neither the father's due process right nor his Sixth Amendment right of confrontation was violated by his exclusion from the courtroom during the child's testimony (see Matter of Q.-L. H., 27 AD3d 738, 739; see also Matter of Deshawn D.O. [Maria T.O.], 81 AD3d 961; Matter of Sylvia J., 23 AD3d 560)."

CLAIMING IMPROPER SERVICE

BAC Home Loans Servicing, LP v Carrasco, 2018 NY Slip Op 02443, Decided on April 11, 2018, Appellate Division, Second Department:

"A process server's affidavit of service gives rise to a presumption of proper service (see Machovec v Svoboda, 120 AD3d 772, 772; Wells Fargo Bank, N.A. v Final Touch Interiors, LLC, 112 AD3d 813, 814). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits'" (Scarano v Scarano, 63 AD3d 716, 716 [citation omitted], quoting Simonds v Grobman, 277 AD2d 369, 370; see American Home Mtge. Servicing, Inc. v Gbede, 127 AD3d 1004, 1005; Edwards, Angell, Palmer & Dodge, LLP v Gerschman, 116 AD3d 824). Here, the affidavit of the defendant Andres H. Carrasco, which was submitted in support of his motion, inter alia, to dismiss the complaint insofar as asserted against him, set forth that he did not receive the pleadings, but did not deny the specific facts contained in the process server's affidavit (see U.S. Bank N.A. v Telford, 153 AD3d 881, 882; Bank of N.Y. v Samuels, 107 AD3d 653, 654; Christiana Bank & Trust Co. v Eichler, 94 AD3d 1170, 1171). Carrasco's conclusory assertion was inadequate to rebut the presumption of proper service (see U.S. Bank, N.A. v Peralta, 142 AD3d 988, 988-989; Bank of N.Y. v Espejo, 92 AD3d 707, 708). Accordingly, a hearing to determine the validity of service of process was not warranted under the circumstances of this case, the order directing that hearing must be reversed, and the order made after the hearing must be vacated (see Wells Fargo Bank, N.A. v Decesare, 154 AD3d 717; Washington Mut. Bank v Huggins, 140 AD3d 858, 859)."

NASSAU COUNTY EXPANSION OF CONSENSUAL E FILING

By notice dated April 3, 2018, an announcement was made regarding an update on the progress of the New York State Courts' Electronic Filing System ("NYSCEF"). As authorized under Chapter 237 of the Laws of 215, expansion of the consensual e-filing program has been proposed by the District Administrative Judge of the 10th Judicial District and the Nassau County Clerk lo take effect May 23, 2018. As of the effective date, the authorization will be to expand the consensual e-filing program to include newly filed matrimonial and CPLR Article 78 proceedings.

UNEMPLOYMENT INSURANCE - MISCLASSIFICATION

State of New York Supreme Court, Appellate Division,Third Judicial Department, Decided and Entered: March 29, 2018, 524951, In the Matter of the Claim of WALTER O. COWAN:

"Bimbo Foods Bakeries Distribution, Inc. (hereinafter the company) produces and distributes fresh baked goods under a variety of names and labels to chain stores and restaurants. Claimant entered into a distribution agreement with the company's predecessor in interest and purchased the rights to deliver those products in a specified geographic area.  After claimant ceased delivering for the company and sought a determination regarding unemployment insurance benefit coverage, the Department of Labor determined that claimant was an employee of the company and found it liable for additional unemployment insurance contributions. The company disputed the finding, asserting that claimant was an independent contractor.  Following a hearing, the Unemployment Insurance Appeal Board ultimately found that an employer-employee relationship existed and sustained the initial determination assessing additional unemployment insurance contributions on remuneration paid to claimant and other similarly situated individuals.  The company appeals.

"Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the . . . [B]oard, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion" (Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983] [citations omitted]; see Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010]).  "An employer-employee relationship exists when the evidence demonstrates that the [purported] employer exercises control over the results produced by claimant or the means used to achieve the results" (Matter of Hertz Corp. [Commissioner of Labor], 2 NY3d 733, 735 [2004] [citation omitted]).  The control over the means employed is the more important factor to be considered (see Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d at 437; Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725, 726 [1984]).  "All aspects of the arrangement must be examined to determine whether the degree of control and direction reserved to the [purported] employer establishes an employment relationship" (Matter of Villa Maria Inst. of Music [Ross], 54 NY2d 691, 692 [1981] [citations omitted]).

Initially, we are unpersuaded by the company's contention that the Board erred in determining that claimant was an employee as a matter of law pursuant to Labor Law § 511 (1) (b).  Labor Law § 511 (1) (b) defines "[e]mployment" for unemployment insurance purposes to include "any service by a person for an employer . . . as an agent-driver or commission-driver engaged in distributing . . . bakery products."  According to the company, claimant did not earn a commission but earned revenue upon selling the bakery products that he purchased at prices set by him.  The record, however, supports the Board's finding that the actual relationship between the parties did not constitute that of a buyer and seller.  No money was exchanged in connection with claimant's alleged purchases and, pursuant to the terms of the distribution agreement, he was credited for returned stale products.  Further, any hypothetical change in pricing negotiated by claimant with customers would only have resulted in a smaller commission as calculated by a set percentage.  The company also asserts that the remuneration earned by claimant was not a "commission" as defined in Labor Law § 191-a (a), but overlooks that said definition is limited to issues relating to the payment of wages under Labor Law article 6 (see Klepner v Codata Corp., 139 Misc 2d 382, 385 [1988], affd 150 AD2d 994 [1989]).  In view of the foregoing, substantial evidence supports the Board's finding that claimant earned a commission and qualified as an employee under Labor Law § 511 (1) (b).

Additionally, we find that substantial evidence supports the Board's finding that the company exercised sufficient supervision, direction and control over claimant to establish an employer-employee relationship under common-law principles.  The company retained numerous rights under the distribution agreement, including the right to set the price of the products sold to claimant and the right to negotiate with chain outlets to determine price and terms of sale, and it retained the authority to sell distribution rights purchased by claimant or perform his delivery obligations under certain circumstances.  Claimant was further required to deliver fresh products and remove stale products in a defined area, sell any additional products provided by the company, cooperate with its marketing programs, remit settlement information to it each week, maintain certain chain outlet customers even if not profitable to him and not engage in any business activity that directly competed with the company or interfered with his obligations under the distribution agreement. In addition, claimant was interviewed by the company, relied on certain equipment and supplies provided by it, was paid on a weekly basis and was trained, instructed, supervised and monitored by a company manager regarding his deliveries. Considering the foregoing, we find no reason to disturb the Board's finding that the company exercised sufficient control over claimant and those similarly situated to establish an employer-employee relationship, despite evidence in the record that could support a contrary conclusion (see Matter of Mastroianni Bros., Inc. [Commissioner of Labor], 130 AD3d 1117, 1119 [2015]; Matter of Francis [West Sanitation Servs.-Sweeney], 246 AD2d 751, 752 [1998], lvs dismissed 92 NY2d 886 [1998], 93 NY2d 833 [1999]; Matter of Pepsi Cola Buffalo Bottling Corp. [Hartnett], 144 AD2d 220, 222 [1988]; Matter of Oakes [Stroehman Bakeries-Roberts], 137 AD2d 927, 928 [1988])."

CUSTODY ISSUES OF CHILDREN WITH SPECIAL NEEDS

Matter of Griffin v Danzy, 2018 NY Slip Op 02324 ,Decided on April 4, 2018, Appellate Division, Second Department:

"The parties, who were never married, have two children together, twins born in April 2012. The children, who were born prematurely, have several health issues, including chronic lung disease and asthma, and one child has a heart defect.

In July 2013, the father filed a petition for custody and visitation. Thereafter, temporary orders of visitation were issued, granting the father alternate weekend visitation with the children, initially supervised by the mother, and later with the assistance of the children's home health aide. After a hearing, the Family Court, inter alia, granted the father unsupervised, overnight visitation on alternate weekends, to commence gradually after the mother had provided the father with an updated list of the children's physicians and the father had contacted each physician regarding the children's diagnoses and medications. The mother appeals.

The court's paramount concern in adjudicating visitation rights is the best interests of the child (see Matter of Murphy v Lewis, 149 AD3d 748, 749; Matter of Anthony M.P. v Ta-Mirra J.H., 125 AD3d 868, 868; Matter of Morocho v Jordan, 123 AD3d 1037, 1037). "Supervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child" (Cervera v Bressler, 50 AD3d 837, 839 [internal quotation marks omitted]; see Matter of Murphy v Lewis, 149 AD3d at 750; Matter of Lopez v Lopez, 127 AD3d 974, [*2]974; Matter of Blazek v Zavelo, 127 AD3d 854, 854; Matter of Anthony M.P. v Ta-Mirra J.H., 125 AD3d at 868). "Since custody and visitation determinations necessarily depend[ ] to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the court's findings'" (Matter of James M. v Kevin M., 99 AD3d 911, 913, quoting Matter of Elliott v Felder, 69 AD3d 623, 623). Thus, the determination of whether visitation should be supervised is a matter within the sound discretion of the Family Court and should not be set aside unless it lacks a sound and substantial basis in the record (see Matter of Blazek v Zavelo, 127 AD3d at 854; Matter of Anthony M.P. v Ta-Mirra J.H., 125 AD3d at 868; Matter of Dolan v Masterton, 121 AD3d 979, 981; Irizarry v Irizarry, 115 AD3d 913, 915; Matter of Brian M. v Nancy M., 227 AD2d 404, 404; Matter of Gerald D. v Lucille S., 188 AD2d 650, 650).

Here, the record does not support a conclusion that overnight, unsupervised visitation would be detrimental to the children. Further, the requirements imposed by the Family Court's order, including requiring the mother to provide contact information for all of the children's doctors, requiring the father to contact each doctor to obtain information about the children's diagnoses and medications, and introducing the overnight visitation gradually, while ensuring the assistance of the children's home health aide, are designed to protect the children while encouraging the bond between the children and the father (see Matter of Anthony M.P. v Ta-Mirra J.H., 125 AD3d at 868). Accordingly, the court's visitation determination had a sound and substantial basis in the record, and will not be disturbed (see Matter of Blazek v Zavelo, 127 AD3d at 854; Matter of Dolan v Masterton, 121 AD3d at 981; Irizarry v Irizarry, 115 AD3d at 915; Matter of Gerald D. v Lucille S., 188 AD2d at 650).: