SPEAKING TOMORROW

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EQUITABLE ESTOPPEL TO ESTABLISH STANDING FOR NON-BIOLOGICAL PARENT

Matter of K.G. v C.H., 2018 NY Slip Op 04683, Decided on June 26, 2018, Appellate Division, First Department, Gische J.:

"Although prior to Brooke the doctrine of equitable estoppel was not available to establish standing on behalf of nonbiological, nonadoptive parents, it has been relied upon by New York courts in resolving many family disputes involving children. For instance, the legal doctrine has been applied to prevent an adult from denying paternity where a child has justifiably relied upon the representations of a man that he is the father and a parent-child relationship has developed (Matter of Shondel J. v Mark D, 7 NY3d 320, 326 [2006]). It has been applied to prevent a mother from challenging her husband's paternity (Matter of Sharon GG. v Duane HH., 63 NY2d 859 [1984], affg 95 AD2d 466 [3d Dept 1983]). It has also been applied to prevent a biological father from asserting paternity when he has acquiesced in the establishment of a strong parent-child bond between the child and another man (Matter of Cecil R. v Rachel A., 102 AD3d 545, 546 [1st Dept 2013]). Recently, it was successfully invoked to prevent a sperm donor from asserting paternity to a child born in an intact marriage (Matter of Joseph O. v Danielle B., 158 AD3d 767 [2d Dept 2018]). A unifying characteristic of these cases is the protection of " the status interests of a child in an already recognized and operative parent-child relationship'" (Shondel, 7 NY3d at 327, quoting Matter of Baby Boy C., 84 NY2d 91, 102n [1994]). Equitable estoppel requires careful scrutiny of the child's relationship with the relevant adult and is ultimately based upon the best interest of the child (see Shondel at 326; see also Family Court Act § 418). Likewise, in the context of standing under Domestic Relations Law § 70, equitable estoppel concerns whether a child has a bonded and de facto parental relationship with a nonbiological, nonadoptive adult. The focus is and must be on the child (Brooke, 28 NY3d at 27). It is for this reason that the child's point of view is crucial whenever equitable estoppel is raised.<sup>[FN7]

…...</sup>

In view of our conclusion that the record is incomplete, we do not reach CH's argument that because CH did not consent to holding KG out as a parent, KG cannot prove equitable estoppel. While some courts in other jurisdictions consider consent of the biological/adoptive parent an outcome determinative factor in equitable estoppel cases (see e.g. Pitts v Moore, 90 A3d 1169, 1179 [Me Sup Jud Ct 2014]; Matter of Parentage of LB, 155 Wash 2d 679, 708, 122 P3d 161, 176 [2005], cert denied 516 US 975 [1995]; In re Custody of H.S.H.-K., 193 Wis 2d 649, 694-695, 533 NW2d 419, 435-436 [1995], cert denied 516 US 975 1995]), New York has not yet formulated any dispositive test. Judge Kaye, in her dissent in Alison D., generally posited that the test for someone claiming standing on the basis of loco parentis should require that the relationship with the child came into being with the consent of the biological or legal parent (77 NY2d at 661-662). Notwithstanding that Judge Kaye favored consent as a factor in determining issues of de facto parenthood, she also would have remanded the matter to the trial court to devise an actual test. Brooke, although liberally citing Judge Kaye's dissent, did not reach this issue all.

We recognize that not every loving relationship that a child has with an adult will confer standing under Domestic Relations Law § 70, no matter how close or committed. It requires a relationship that demonstrates the relevant adult's permanent, unequivocal, committed and responsible parental role in the child's life. The underpinning of an equitable estoppel inquiry is whether the actual relationship between the child and relevant adult rises to the level of parenthood. Anything less would interfere with the biological or adoptive parent's right to decide with whom his or her child may associate (Troxel v Granville, 530 US 57 [2000]; Brooke at 26 [recognizing that any expansion of the definition of parent must be appropriately narrow to account for the fundamental liberty rights of biological and adoptive parents]). Consent, whether express or implied, is an important consideration that bears upon the issue. It may be that in this case the issue of CH's consent becomes a predominant consideration in the ultimate determination of whether equitable estoppel can be established. We only hold that the record developed at trial does not permit us to make the full consideration necessary to finally determine the issue of equitable estoppel at this point."

AN ACTION FOR LEGAL FEES

Holtzman v Griffith, 2018 NY Slip Op 04540, Decided on June 20, 2018, Appellate Division, Second Department:

"In January 2009, the defendant retained the plaintiff to represent him in a divorce action commenced against him by his former wife. The divorce action culminated in a settlement. The plaintiff represented the defendant from January 2009 through June 2011, and periodically sent invoices to the defendant for legal services rendered in accordance with a retainer agreement executed by the defendant. The defendant received the invoices and made payments with respect thereto through October 22, 2010. Thereafter, he made no further payments to the plaintiff. When the defendant discharged the plaintiff in June 2011, there were outstanding invoices in the total sum of $18,581.50. The plaintiff commenced this action, inter alia, to recover on an account stated. The defendant answered and interposed counterclaims alleging legal malpractice against the plaintiff. The plaintiff moved for summary judgment on the cause of action for an account stated and dismissing the defendant's counterclaims. The Supreme Court granted the motion, and the defendant appeals.

"An account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness of the account items and the specific balance due'" (Bashian & Farber, LLP v Syms, 147 AD3d 714, 715, quoting Citibank [South Dakota], N.A. v Abraham, 138 AD3d 1053, 1056). "Although an account stated may be based on an express [*2]agreement between the parties as to the amount due, an agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account" (Citibank [South Dakota], N.A. v Abraham, 138 AD3d at 1056; see Fleetwood Agency, Inc. v Verde Elec. Corp., 85 AD3d 850). The "agreement" at the core of an account stated is independent of the underlying obligation between the parties (see Citibank [South Dakota], N.A. v Abraham, 138 AD3d at 1056; Citibank [S.D.] N.A. v Cutler, 112 AD3d 573).

Here, the plaintiff demonstrated her prima facie entitlement to judgment as a matter of law on the cause of action to recover legal fees on an account stated in the amount of $18,581.50, with interest from July 11, 2011 (see Bashian & Farber, LLP v Syms, 147 AD3d at 715). In opposition, the defendant failed to raise a triable issue of fact (see Langione, Catterson & Lofrumento, LLP v Schael, 148 AD3d 797). The plaintiff also demonstrated her prima facie entitlement to judgment as a matter of law dismissing the defendant's counterclaims. The plaintiff's submissions demonstrated that in representing the defendant, who was also the defendant in the divorce action, she exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the stipulation of settlement executed by the defendant in the divorce action was not the product of any mistakes by the plaintiff (see Schiff v Sallah Law Firm, P.C., 128 AD3d 668, 669). The stipulation of settlement recited, among other things, that the defendant reviewed and understood its terms, had an opportunity to consult with counsel and have the legal and practical effect of the stipulation fully explained to him, executed the stipulation voluntarily, without coercion or pressure of any kind, and believed the stipulation to be fair and reasonable (see Chamberlain, D'Amanda, Oppenheimer & Greenfield, LLP v Wilson, 136 AD3d 1326, 1328; Schiff v Sallah Law Firm, P.C., 128 AD3d at 669). In opposition, the defendant failed to raise a triable issue of fact."

MORTGAGE FORECLOSURE - BANK MUST GIVE NOTICE TO DEFAULTING HOMEOWNER WHEN IT DELAYS

Citimortgage, Inc. v Reese, 2018 NY Slip Op 04527, Decided on June 20, 2018, Appellate Division, Second Department:

"In November 2009, the plaintiff commenced this action against Karen Reese (hereinafter the defendant), among others, to foreclose a mortgage on property located in Nassau County. The defendant failed to appear or answer the complaint. By order entered January 6, 2014, the Supreme Court granted the plaintiff's motion for an order of reference and referred the matter to a referee to ascertain and compute the amount due on the mortgage loan. The court subsequently, upon the plaintiff's motion, entered a judgment of foreclosure and sale on May 11, 2015.

By order to show cause dated August 17, 2015, the defendant moved, inter alia, to vacate the order of reference and the judgment of foreclosure and sale. The defendant alleged, among other things, that the plaintiff failed to serve her with the papers in support of its motions for an order of reference and for a judgment of foreclosure and sale. The plaintiff opposed the defendant's motion. By order entered November 4, 2015, the Supreme Court, inter alia, denied those branches of the defendant's motion which were to vacate the order of reference and the judgment of foreclosure and sale. The defendant appeals, and we reverse the order insofar as appealed from.

The defendant was entitled to notice of the plaintiff's motions for an order of reference and for a judgment of foreclosure and sale pursuant to CPLR 3215(g)(1), which provides, [*2]in relevant part, that such notice to a defendant who has not appeared is required "if more than one year has elapsed since the default." Here, the defendant defaulted in November 2009, and the plaintiff moved for an order of reference in March 2013, more than three years later. Contrary to the plaintiff's contention, the issue of its failure to comply with CPLR 3215(g)(1) may be raised for the first time on appeal (see Editorial Photocolor Archives v Granger Collection, 61 NY2d 517, 523; VNB N.Y., LLC v Y.M. Intercontinental Gem Corp., 154 AD3d 903, 906). The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void (see Wells Fargo Bank, N.A. v Whitelock, 154 AD3d 906, 907; Paulus v Christopher Vacirca, Inc., 128 AD3d 116, 117).

Accordingly, since the Supreme Court lacked jurisdiction to entertain the plaintiff's motions, it should have granted those branches of the defendant's motion which were to vacate the order of reference and the judgment of foreclosure and sale (see Paulus v Christopher Vacirca, Inc., 128 AD3d at 126)."

FREE MORTGAGE FORECLOSURE CLINIC TODAY

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

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

WHEN SEEKING AN ORDER OF PRECLUSION - CPLR 3216 (3)

As noted in an earlier publication: "The CPLR 3126(3) motion to strike a pleading is premised upon establishing a willful failure to disclose; obviously, a movant’s regular and documented efforts to coax compliance must found the motion. Opposition to a CPLR 3126 motion is often premised upon a misunderstanding regarding disclosure obligations, arguing that violation of an order to disclose, or violation of a conditional order of preclusion, must serve as a predicate for a 3126 motion."

These issues were raised in Cannon v 111 Fulton St. Condominium, Inc., 2018 NY Slip Op 04523, Decided on June 20, 2018 Appellate Division, Second Department:

"When a litigant fails to comply with the terms of a conditional order of preclusion, the terms of that order become absolute (see Lee v Arellano, 18 AD3d 620, 621). However, the burden of establishing noncompliance rests with the party seeking preclusion (see Goodman, Rackower & Agiato v Lieberman, 260 AD2d 599, 600; see also Deer Park Assoc. v Town of Babylon, 121 AD3d 738, 740). Because the remedy of preclusion is the functional equivalent of striking a party's pleading (see Goodman, Rackower & Agiato v Lieberman, 260 AD2d at 600), it may not be granted where the party can demonstrate a justifiable excuse and a potentially meritorious cause of action or defense (see Vera v New York El. & Elec. Corp., 150 AD3d 927, 928).

Here, the so-ordered stipulation did not set a time, date, or place for the plaintiff's deposition, instead stating merely that the plaintiff's deposition was to be held "on or before" March 16, 2015, "at a time and location to be agreed upon." In light of this, the defendants' minimal assertion that the plaintiff failed to appear, which relied on the hearsay assertion of an unnamed employee of defense counsel, was insufficient to demonstrate that the plaintiff willfully and contumaciously violated the so-ordered stipulation (see Yong Soon Oh v Hua Jin, 124 AD3d 639, 641; Deer Park Assoc. v Town of Babylon, 121 AD3d at 740; Vaccaro v Weinstein, 117 AD3d 1033, 1034; Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923). Similarly, the defendants did not allege in [*3]their motion that the plaintiff had failed to provide the outstanding written discovery that was included in the so-ordered stipulation. Therefore, since the defendants failed to demonstrate that the plaintiff knew when and where to appear for her deposition, there was no evidence of ongoing willful or contumacious conduct (see PNC Bank, N.A. v Campbell, 142 AD3d 1148, 1149). Accordingly, we disagree with the Supreme Court's determination to grant that branch of the defendant's motion which was to preclude the plaintiff from offering evidence at trial."

VACATING DEFAULT UNDER CPLR 317

Benchmark Farm, Inc. v Red Horse Farm, LLC, 2018 NY Slip Op 04522, Decided on June 20, 2018, Appellate Division, Second Department:

"A defendant who has been served with a summons other than by personal delivery may be allowed to defend the action within one year after he or she obtains knowledge of entry of the judgment upon a finding of the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense (see CPLR 317; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141-142; Dalton v Noah Constr. & Bldrs., Inc., 136 AD3d 730, 731).

Here, the defendant submitted the sworn affidavit of its principal, who stated that the defendant did not learn of the action or the judgment until August 2016, and that approximately one month thereafter it moved to vacate the judgment. The affidavit indicated that in 2003 the [*2]defendant's principal had moved his residence from the address on file with the Secretary of State and that neither the defendant nor its principal had received mail at that address since 2004. The affidavit also provided that the defendant's address had not been updated with the Secretary of State. There is no evidence in the record that the defendant or its agent received actual notice of the summons, which was delivered to the Secretary of State, in time to defend this action (see Dalton v Noah Constr. & Bldrs., Inc., 136 AD3d at 731; Schacker Real Estate Corp. v 553 Burnside Ave., LLC, 133 AD3d 586, 587; Gershman v Midtown Moving & Stor., Inc., 123 AD3d 974, 975). Although the defendant did not explain why it failed to update its address with the Secretary of State, "there is no necessity for a defendant moving pursuant to CPLR 317 to show a reasonable excuse' for its delay" (Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 141; see Gershman v Midtown Moving & Stor., Inc., 123 AD3d at 975), and there is no basis in the record to conclude that the defendant deliberately attempted to avoid service, especially since the plaintiff had knowledge of the defendant's actual business address and had written to the defendant at that address regarding the dispute that gave rise to the plaintiff's complaint (see Dalton v Noah Constr. & Bldrs., Inc., 136 AD3d at 731; Schacker Real Estate Corp. v 553 Burnside Ave., LLC, 133 AD3d at 587; Gershman v Midtown Moving & Stor., Inc., 123 AD3d at 975)."

JUDICIAL REVIEW OF ARBITRATION AWARDS

Matter of O'Neill v GEICO Ins. Co., 2018 NY Slip Op 04328, Decided on June 13, 2018, Appellate Division, Second Department:

"Judicial review of arbitration awards is extremely limited (see Matter of County of Nassau v Civil Serv. Empls. Assn., 150 AD3d 1230, 1230; Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida., 132 AD3d 40, 45). Pursuant to CPLR 7511(b)(1)(iii), a court may [*2]vacate an arbitration award if the arbitrator "exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made." However, vacatur of an award pursuant to this provision is warranted " only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power'" (Matter of Vintage Flooring & Tile, Inc. v DCM of NY, LLC, 123 AD3d 731, 732, quoting Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534; see Matter of Peterson v Katonah-Lewisboro UFSD, 134 AD3d 1125, 1125). " An award is irrational when there is no proof whatever to justify the award'" (Matter of Peterson v Katonah-Lewisboro UFSD, 134 AD3d at 1125, quoting Matter of Vintage Flooring & Tile, Inc. v DCM of NY, LLC, 123 AD3d at 732; see Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d at 534).

Where, as here, an arbitration award is the product of compulsory arbitration, the award " must satisfy an additional layer of judicial scrutiny—it must have evidentiary support and cannot be arbitrary and capricious'" (Matter of Liberty Mut. Fire Ins. Co. v Global Liberty Ins. Co. of N.Y., 144 AD3d 1160, 1161, quoting City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, 919 [internal quotation marks omitted]; see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223; Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida., 132 AD3d at 46).

Here, the arbitrator's determination was rational, supported by evidence, and not arbitrary and capricious. Moreover, while the petitioner contends that the arbitrator exceeded the scope of his authority by disregarding GEICO's prior inconsistent position, taken in the no-fault context, the alleged error was, at most, an error of law which would not warrant vacatur of the arbitration award (see Matter of Falzone [New York City Cent. Mut. Fire Ins. Co.], 15 NY3d at 534)."

FRAUD IN THE FAMILY

Monteleone v Monteleone, 2018 NY Slip Op 04317, Decided on June 13, 2018, Appellate Division, Second Department:

"The plaintiff was born in 1978 with severe physical birth defects. In 1998, an action concerning his birth defects resulted in him becoming the beneficiary of a structured settlement consisting of a series of monthly and periodic lump-sum payments that were to begin in 1998 and continue for the rest of his life. On June 13, 2013, the plaintiff commenced this action against his mother, seeking, inter alia, to recover damages for conversion and breach of fiduciary duty and for an accounting. The plaintiff alleged that the defendant was the custodian of the structured settlement payments during the period of time that he was a minor, she failed to provide him with information about the structured settlement, deliberately withheld the structured settlement payments from him, and she used all or some of the structured settlement payments for her own personal expenses. Further, the plaintiff alleged that the defendant interfered and continued to interfere with the structured settlement payments being paid directly to him after he reached the age of majority.

In an order dated March 29, 2016, the Supreme Court granted the plaintiff's motion for summary judgment on the issue of liability. On April 15, 2016, the court issued an interlocutory judgment upon the order, which was in favor of the plaintiff and against the defendant on the issue of liability and dismissed the defendant's affirmative defenses, which included the statute of [*2]limitations.
On this appeal, the defendant contends that in opposition to the plaintiff's prima facie showing, she established that the causes of action related to the structured settlement payments she received on the plaintiff's behalf prior to June 13, 2010, are barred by the three-year statute of limitations applicable to causes of action alleging conversion and breach of fiduciary duty that seek only monetary damages. She further contends, therefore, that she should not be held to account for the structured settlement payments that she received before June 13, 2010.

Contrary to the defendant's contentions, since the cause of action for conversion is based upon fraud, it is governed by the statute of limitations period for fraud set forth in CPLR 213(8) (see Loeuis v Grushin, 126 AD3d 761, 765; Ingrami v Rovner, 45 AD3d 806, 808; Petrou v Ehmer Intl. Foods, 167 AD2d 338, 339). The limitations period for fraud under CPLR 213(8) also applies to the breach of fiduciary duty causes of action inasmuch as the allegations of fraud are essential to those claims (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139; Kaufman v Cohen, 307 AD2d 113, 119).

Pursuant to CPLR 213(8), "the time within which the action must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it." "A cause of action based upon fraud accrues, for statute of limitations purposes, at the time the plaintiff possesses knowledge of facts from which the fraud could have been discovered with reasonable diligence'" (Coleman v Wells Fargo & Co., 125 AD3d 716, 716, quoting Town of Poughkeepsie v Espie, 41 AD3d 701, 705; see Oggioni v Oggioni, 46 AD3d 646, 648).

Here, the plaintiff established that he could not, with reasonable diligence, have discovered the fraud until 2013, when he learned for the first time that he was the beneficiary of a structured settlement from which he was entitled to receive millions of dollars in monthly and periodic lump-sum payments. The plaintiff initiated this action within a few months of learning this information and confronting the defendant, who refused to share details about the structured settlement with him because she was purportedly bound by a confidentiality agreement not to do so. Contrary to the defendant's contention, she did not raise a triable issue of fact as to whether the plaintiff could have, with reasonable diligence, discovered the alleged misconduct earlier. Accordingly, we agree with the Supreme Court's determinations that the conversion and breach of fiduciary duty causes of action are not time-barred, and to grant the plaintiff's motion for summary judgment on the issue of liability."

MORTGAGE FORECLOSURE - VACATING DEFAULT

U.S. Bank N.A. v Grubb 2018, NY Slip Op 04373, Decided on June 13, 2018, Appellate Division, Second Department:

'The plaintiff commenced this residential mortgage foreclosure action against the defendant Amanda M. Grubb (hereinafter the defendant), among others, in January 2014. On or about October 16, 2014, the defendant filed a verified answer to the complaint. However, the plaintiff rejected the answer as untimely. Thereafter, the plaintiff moved, inter alia, for an order of reference. The defendant opposed the motion and cross-moved, in effect, to vacate her default in answering the complaint and to compel acceptance of a late answer. The Supreme Court signed an order of reference dated June 24, 2015, in which it granted the plaintiff's motion, denied the defendant's cross motion, and appointed a referee to, inter alia, ascertain and compute the amount due to the plaintiff. In an order and judgment of foreclosure and sale entered December 22, 2015, the Supreme Court granted the plaintiff's motion to confirm a referee's report and directed the foreclosure sale of the subject property. The defendant appeals.

"An applicant for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear" (HSBC Bank USA, N.A. v Clayton, 146 AD3d 942, 944 [internal quotation marks omitted]; see CPLR 3215[f]; Citimortgage, Inc. v Chow Ming Tung, 126 AD3d 841, 843; U.S. Bank, N.A. v Razon, 115 AD3d 739, 740). Here, the plaintiff satisfied these requirements (see Bank of Am., N.A. v Agarwal, 150 AD3d 651; U.S. Bank, N.A. v Razon, 115 AD3d at 740).

"A defendant seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an untimely answer must show both a reasonable excuse for the default and the existence of a potentially meritorious defense" (Citimortgage, Inc. v Stover, 124 AD3d 575, 576; see US Bank, N.A. v Samuel, 138 AD3d at 1106; Gershman v Ahmad, 131 AD3d 1104, 1105). " The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court'" (HSBC Bank USA, N.A. v Lafazan, 115 AD3d 647, 648, quoting Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 889, 890).

Here, the Supreme Court providently exercised its discretion in determining that the defendant failed to demonstrate a reasonable excuse for her default in timely answering the complaint (see Wells Fargo Bank, N.A. v Singh, 153 AD3d 893; US Bank, N.A. v Samuel, 138 AD3d at 1106-1107; Wells Fargo Bank, NA v Besemer, 131 AD3d 1047, 1049; HSBC Bank USA, N.A. v Rotimi, 121 AD3d 855, 855; Mannino Dev., Inc. v Linares, 117 AD3d 995, 995; Chase Home Fin., LLC v Minott, 115 AD3d 634, 634; U.S. Bank N.A. v Slavinski, 78 AD3d 1167, 1167-1168). The absence of a reasonable excuse for the defendant's default in answering renders it unnecessary to determine whether she demonstrated the existence of a potentially meritorious defense (see US Bank, N.A. v Samuel, 138 AD3d at 1107; U.S. Bank N.A. v Ahmed, 137 AD3d 1106, 1109; Citimortgage, Inc. v Stover, 124 AD3d at 576).'

FATHER'S DAY GREETINGS

MORTGAGE FORECLOSURE - RPAPL 1304 AND SUMMARY JUDGMENT

US Bank N.A. v Sims, 2018 NY Slip Op 04374, Decided on June 13, 2018, Appellate Division, Second Department:

"On February 13, 2006, the defendant Janice Sims (hereinafter the defendant) executed a note in the sum of $410,000 in favor of EquiFirst Corporation, which was secured by a mortgage on property she owned in Plainview. In October 2009, the mortgage was assigned to the plaintiff. After the defendant allegedly defaulted on her mortgage payments, the plaintiff commenced this action to foreclose the mortgage by summons and complaint dated December 31, 2009, against, among others, the defendant. The complaint alleged that the plaintiff complied with RPAPL 1304. In her answer, the defendant asserted several affirmative defenses, including that the plaintiff failed to comply with RPAPL 1303 and RPAPL 1304.

The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference. In an order dated July 8, 2015, and entered July 13, 2015, the Supreme Court granted the plaintiff's motion. The court issued a second order, also dated July 8, 2015, and entered July 17, 2015, granting the same relief and referring the matter to a referee to compute the amount due to the plaintiff.

"RPAPL 1303 requires that a notice titled Help for Homeowners in Foreclosure' be delivered with the summons and complaint in residential foreclosure actions involving owner- occupied, one-to-four family dwellings" (Onewest Bank, N.A. v Mahoney, 154 AD3d 770, 771; see Prompt Mtge. Providers of N. Am., LLC v Singh, 132 AD3d 833). "Proper service of an RPAPL 1303 notice is a condition precedent to the commencement of a foreclosure action, and noncompliance mandates dismissal of the complaint" (Onewest Bank, N.A. v Mahoney, 154 AD3d [*2]at 771; see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 98). Here, contrary to the defendant's contention, the plaintiff established, prima facie, that it provided notice in compliance with RPAPL 1303 by submitting the process server's affidavit of service on the defendant, in which the process server stated that he served the summons and complaint together with "the Notice required by RPAPL Section 1303, which Notice, as served, was printed on blue paper, the title of the Notice appeared to be in bold 20-point type, and the text appeared to be in bold, 14-point type" (see HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822, 827-828; Onewest Bank, N.A. v Mahoney, 154 AD3d at 772). In opposition, the defendant failed to raise a triable issue of fact.

However, the plaintiff failed to establish, prima facie, that it strictly complied with RPAPL 1304. "[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 at 106; see Flagstar Bank, FSB v Damaro, 145 AD3d 858, 860). Here, contrary to the plaintiff's contention, the "affidavit of mailing" of a vice president for loan documentation of its loan servicer was insufficient to establish that the notice was sent to the defendant in the manner required by RPAPL 1304, as the loan servicer did not provide proof of a standard office mailing procedure and provided no independent proof of the actual mailing (see J.P. Morgan Mtge. Acquisition Corp v Kagan, 157 AD3d 875, 876; U.S. Bank N.A. v Henry, 157 AD3d 839, 841-842; Wells Fargo Bank, N.A. v Lewczuk, 153 AD3d 890, 892; Citibank, N.A. v Wood, 150 AD3d 813, 814). Accordingly, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer, and for an order of reference, without regard to the sufficiency of the defendant's opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324)."

A HELOC DEFAULT

This type of action can proceed to judgment quickly, unlike a mortgage foreclosure.

M & T Bank v DelVecchio, 2018 NY Slip Op 03971, Decided on June 6, 2018, Appellate Division, Second Department:

"In September 2005, the plaintiff and the defendant entered into a home equity line of credit agreement (hereinafter the agreement) whereby the plaintiff agreed to extend to the defendant a line of credit in the amount of $100,000, and the defendant agreed to make monthly payments. In January 2008, the line of credit was increased from $100,000 to $168,300. The agreement provided that the defendant would be in default if he failed to meet any of its repayment terms for a period of 30 days and that, in the event of a default, the plaintiff could demand that the defendant "pay the outstanding balance on this Account in one payment." In January 2014, the defendant failed to tender payment for that month and for successive months. In a letter dated April 18, 2014, the plaintiff informed the defendant that his account was past due, he was in "serious default," and he needed to pay $1,824.08 within five days to bring the account up to date. In a letter to the defendant dated June 8, 2015, the plaintiff, by its attorneys, demanded payment within 30 days of the outstanding principal in the amount of $158,444.05.

In July 2015 the plaintiff commenced this action alleging breach of contract and unjust enrichment. Issue was joined in December 2015 and, in May 2016, the plaintiff moved for summary judgment, in effect, on the breach of contract cause of action to recover the outstanding principal balance of $158,444.05, plus interest, costs, disbursements, late fees, and counsel fees. The motion was supported, inter alia, by the affidavit of a banking officer employed by the plaintiff who attested that she had personal knowledge of the matter and was familiar with all of the corporate records, files, and documents related thereto, including those evidencing the defendant's default and the plaintiff's efforts to recover payment. The defendant opposed the motion, arguing that on or about July 30, 2014, the plaintiff wrongfully rejected his offer to tender payment of the sum of [*2]$5,000. The Supreme Court denied the motion, and the plaintiff appeals.

The plaintiff made a prima facie showing of its entitlement to judgment as a matter of law by submitting, inter alia, a copy of the agreement and the affidavit of the banking officer evidencing the defendant's obligations under the agreement and his failure to make payment in accordance with its terms (see J.P. Morgan Chase Bank, N.A. v Lanar Sys., Inc., 120 AD3d 764; New York Community Bank v Fessler, 88 AD3d 667). In opposition, the defendant failed to raise a triable issue of fact as to any bona fide defense (see Bank of Am., N.A. v DeNardo, 151 AD3d 1008, 1010), as his contentions were unsubstantiated and speculative (see Bank of Am., N.A. v J.P.T. Automotive, Inc., 52 AD3d 553, 555; First Natl. Bank of Hudson Val. v Schantz, 253 AD2d 735, 736).

Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment, in effect, on the cause of action alleging breach of the agreement and seeking to recover the outstanding principal balance of $158,444.05, plus interest, costs, disbursements, late fees, and counsel fees."

WHEN CAN AN EMPLOYER RECOVER ATTORNEY FEES WHEN A WHISTLEBLOWER CASE IS DISMISSED

Berde v North Shore- Long Is. Jewish Health Sys., Inc., 2018 NY Slip Op 03955, Decided on June 6, 2018, Appellate Division, Second Department:

"The plaintiff commenced this action to recover damages for unlawful termination of employment in violation of Labor Law § 740. After years of discovery and motion practice, including two appeals in which this Court vindicated the plaintiff's right to proceed with this action (see Berde v North Shore-Long Is. Jewish Health Sys., Inc., 98 AD3d 932, 932-933; Berde v North Shore-Long Is. Jewish Health Sys., Inc., 50 AD3d 834, 835-836), the Supreme Court, following a nonjury trial, decided in favor of the defendant in a decision dated July 25, 2014. In an order dated October 21, 2014, the court awarded the defendant attorneys' fees and costs pursuant to Labor Law § 740(6) in the sum of $591,071.70. The court entered a judgment dated March 20, 2015, upon the decision and the order. In an order dated September 8, 2015, the court granted the plaintiff's motion [*2]for leave to reargue the award of attorneys' fees and costs, but upon reargument, adhered to its original determination. The plaintiff appeals from the judgment and the order dated September 8, 2015.

Although the decision of the trial court upon which the judgment was based did not state the essential facts (see CPLR 4213[b]), this Court has before it the complete trial record, which is sufficient to conduct an independent review of the evidence so as to make the requisite findings of fact (see Park E. Constr. Corp. v East Coast Mech. Servs., Inc., 133 AD3d 581, 582; Hugh O'Kane Elec. Co., LLC. v MasTec N. Am., Inc., 45 AD3d 413, 414; Atlantic Contr. Corp. v Hartford Acc. & Indem. Co., 155 AD2d 571, 572). " In reviewing a determination rendered after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts'" (Galbraith v Westchester County Health Care Corp., 140 AD3d 696, 697, quoting Furino v O'Sullivan, 137 AD3d 1208, 1209-1210). Upon our independent review, we conclude that the determination to dismiss the complaint was warranted by the facts presented at trial (see Hookman v Lenox Hill Hosp., 241 AD2d 333, 333). In particular, the weight of the evidence established that the defendant had a nonretaliatory justification for dismissing the plaintiff, as she had numerous conflicts with other hospital staff and failed to improve in that respect despite opportunities to do so.

Labor Law § 740(6) provides that a court, in its discretion, may award an employer attorneys' fees and costs if it determines that the employee's action is " without basis in law or in fact'" (Tomo v Episcopal Health Servs., Inc., 85 AD3d 766, 768-769, quoting Labor Law § 740[6]). Here, the trial record included testimonial and documentary evidence of the plaintiff's numerous complaints about ongoing sterility problems in the operating room, which problems arguably constituted a violation of applicable regulations and posed a present, substantial, and specific danger to patient health. The plaintiff and other witnesses testified that these issues arose hundreds of times over the relevant time period and were not seriously addressed until after the plaintiff finally complained to her supervisor's supervisor. The plaintiff's annual performance evaluations demonstrate that she met or exceeded expectations throughout her tenure as a nurse manager and, despite identifying areas for improvement, did not indicate a risk of dismissal until after she complained to upper management. While ultimately unpersuasive in light of the defendant's evidence, the plaintiff's action "cannot reasonably be characterized as being without basis in law or in fact'" (Lukose v Long Is. Med. Diagnostic Imaging, P.C., 120 AD3d 1312, 1313-1314, quoting Labor Law § 740[6]). The Supreme Court therefore improvidently exercised its discretion in awarding the defendant attorneys' fees and costs pursuant to Labor Law § 740(6)."

VOLUNTEER LAWYERS PROJECT

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

"Volunteer Lawyers Project

What is the Volunteer Lawyers

Project?

Attorneys are encouraged to volunteer to provide free legal assistance to the poor in Nassau County through the Volunteer Lawyers Project. NCBA partners with the Nassau/Suffolk Law Services Committee to support VLP, which helps maximize the quantity and quality of pro bono assistance provided for the county's low-income community.

What programs are part of the VLP?
Volunteer attorneys handle a wide array of cases including matrimonial matters, individual bankruptcy, personal injury and negligence defense, estate matters, release of accounts blocked by judgment creditors, and various other civil matters.

     • The Landlord/Tenant Project's Attorney of the Day Program assists thousands of men, women and children in court to prevent homelessness.

     • The Bankruptcy Clinics assist families either with advice or the filing for a Chapter 7 bankruptcy, when appropriate.

     • The Matrimonial Project assists hundreds of individuals in obtaining divorces, child support and custody.

How does it work?

An attorney based at VLP’s offices in Hempstead conducts client intake interviews and refers clients to appropriate volunteer attorneys. The VLP attorney also recruits and trains volunteer attorneys to handle cases."

DIVORCE - REQUEST TO ALLOCATE FUTURE COLLEGE EXPENSES

Weidman v Weidman, 2018 NY Slip Op 04027, Decided on June 6, 2018, Appellate Division, Second Department:

"The court, however, should have denied, as premature, the defendant's request to allocate between the parties responsibility for the future college expenses of the parties' then 13-year-old child (see Marin v Marin, 148 AD3d 1132, 1136; Repetti v Repetti, 147 AD3d 1094, 1097; Dochter v Dochter, 118 AD3d 665, 666; Bogannam v Bogannam, 60 AD3d 985, 986)."

DEFAMATION BY FACEBOOK?

Stolatis v Hernandez, 2018 NY Slip Op 03868, Decided on May 30, 2018, Appellate Division, Second Department:

"Whether a particular statement constitutes an opinion or an objective fact is a question of law (see Mann v Abel, 10 NY3d 271, 276; Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 381).

Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation (see Mann v Abel, 10 NY3d at 276; Crescendo Designs, Ltd. v Reses, 151 AD3d 1015).

We turn first to the portion of the complaint predicated upon the statements set forth in paragraphs 22 through 25 of the complaint. The defendant established that these statements, which referred to the plaintiff's actions in causing the demolition of the building as a "crime" and referred to the plaintiff as a "vampire," constituted nonactionable opinion or rhetorical hyperbole (see Greenbelt Cooperative Publishing Assn., Inc. v Bresler, 398 US 6, 14; Gross v New York Times Co., 82 NY2d 146, 155; 600 W. 115th St. Corp. v Von Gutfeld, 80 NY2d 130, 144-145; see also LeBlanc v Skinner, 103 AD3d 202, 213; Melius v Glacken, 94 AD3d 959, 960; Sandals Resorts Intl. Ltd. v Google, Inc., 86 AD3d 32, 43-44). In opposition to this showing, the plaintiff and Plateau failed to raise a triable issue of fact. For the same reason, the Supreme Court properly denied that branch of the motion of the plaintiff and Plateau which was for summary judgment in favor of the plaintiff on the issue of liability on so much of the complaint as was predicated on the statements set forth in paragraphs 22 through 25.

We further agree with the Supreme Court's determination to award summary judgment dismissing the remaining portion of the complaint, which was predicated on the statement set forth in paragraph 26. In this statement, the defendant asserted that the plaintiff had originally said that he would keep the building's historic facade and gut the interior to convert the building into apartments. The defendant further stated that the plaintiff's statement was "a lie" and that "[a]ll along he planned a big condo and he removed part of the metal roof and punched holes in it and failed to repair it so the elements would get in and slowly but surely destroy the building. This is known as demolition by intentional neglect.'"

The statement complained of was one of numerous posts made during the course of April 14, 2015, and thereafter, regarding the controversy on Facebook pages about Ossining. Another post asserted that the building had been damaged in Hurricane Sandy in 2012 and the developer "threw in the towel" on restoration. Another post, by someone else, stated that the property was an "eye sore and dangerous," while a third poster stated that the building had been vacant for 30 years. The third poster later added that he "used to go there for dumpster fires" between 1988 to 1994.

In distinguishing between statements of opinion and fact, the factors to be considered are: (1) whether the specific language at issue has a precise, readily understood meaning, (2) whether the statements are capable of being proven true or false, and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers that what is stated is likely to be opinion, not fact (see Mann v Abel, 10 NY3d at 276; Brian v Richardson, 87 NY2d 46, 51). Even apparent statements of fact may assume the character of opinion when made in public debate where the audience may anticipate the use of rhetoric or hyperbole (see Steinhilber v Alphonse, 68 NY2d 283, 294). The question is not whether there is an isolated assertion of fact; rather, it is necessary to consider the writing as a whole, including its tone and apparent purpose, as well as the overall context of the publication, to determine whether the reasonable reader would have believed that the challenged statements were conveying facts about the plaintiff (see Mann v Abel, 10 NY3d at 276; Brian v Richardson, 87 NY2d at 51; Crescendo Designs, Ltd. v Reses, 151 AD3d at 1015; Sandals Resorts Intl. Ltd. v Google, Inc., 86 AD3d at 42).

Here, given the context in which the statements set forth in paragraph 26 of the complaint were made, and viewing the content of the post as a whole, as well as the content of the other contemporaneous posts on the same Facebook pages, a reasonable reader would have believed that the defendant was communicating his opinion as to whether plaintiff and his company intended from the outset to preserve or replace the building. Although one could sift through the series of posts, including the challenged one, and argue that the author made false factual assertions, viewing the entire series of posts as a whole, as we must, we conclude that the posts constituted an expression of protected opinion and, therefore, summary judgment was properly awarded to the defendant (see Mann v Abel, 10 NY3d at 277)."

MEDICAID APPLICATION - WHEN YOU CANNOT GET ALL THE DOCUMENTATION

Matter of Medford Multicare Ctr. v Zucker, 2018 NY Slip Op 03837, Decided on May 30, 2018, Appellate Division, Second Department:

"In 2012, Louise Wick, a 91-year-old person with a guardian, was admitted to long-term care at the petitioner nursing home. Wick's guardian authorized the petitioner's Medicaid coordinator to represent Wick during the Medicaid eligibility process. On or about July 28, 2014, Wick's representative submitted a Medicaid application to the Suffolk County Department of Social Services (hereinafter DSS) on Wick's behalf, seeking coverage from April 1, 2014. DSS requested certain documentation by August 11, 2014, including statements from specified bank accounts held at Citibank and Chase. Wick's representative submitted some, but not all, of the requested documentation, and secured two extensions of time. The last extension of time request cited difficulty the representative was having in obtaining the Chase account statements. DSS extended the time for production of the documents until September 11, 2014. Prior to that date, Wick's representative submitted the Chase account statements and certain other documents. She did not submit the Citibank account statements, request another extension of time, or seek DSS's aid in obtaining the documents. In a determination dated September 24, 2014, DSS denied the application for failure to submit required documentation. Following a fair hearing, in a determination dated December 30, 2014, the New York State Department of Health (hereinafter DOH) affirmed DSS's determination.
The petitioner commenced this proceeding pursuant to CPLR article 78 to review [*2]DOH's determination. The proceeding was transferred to this Court pursuant to CPLR 7804(g).

In reviewing a Medicaid eligibility determination made after a fair hearing, the court must review the record, as a whole, to determine if the agency's decisions are supported by substantial evidence (see Matter of Sandoval v Shah, 131 AD3d 1254, 1255). Substantial evidence "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180). The petitioner bears the burden of demonstrating eligibility (see Matter of Bosco v McGuire, 111 AD3d 931, 932; Matter of Loiacono v Demarzo, 72 AD3d 969, 969-970).

Here, the determination of DOH that Wick's representative failed, without good cause, to provide in a timely manner documents necessary for the processing of her application is supported by substantial evidence (see 18 NYCRR 351.8[a][2][ii]; Matter of Pagnani v Suffolk County Dept. of Social Servs., 152 AD3d 696, 696; Matter of Bosco v McGuire, 111 AD3d 931, 932; Matter of Frohlinger v DeBuono, 278 AD2d 323, 324; cf. 18 NYCRR 351.26[a][2], [3]; Matter of Eichna v Demarzo, 52 AD3d 513). Accordingly, the determination must be confirmed."

POST ADOPTION CONTRACTS

Matter of Yasmine T. (Aeisha G.--Keisha G.), 2018 NY Slip Op 03848, Decided on May 30, 2018, Appellate Division, Second Department:

"The biological mother executed separate conditional judicial surrenders for the two subject children, Yasmine and Daneisha, with post-surrender/post-adoption contact agreements allowing her four supervised visits per year and twice yearly mailings of photographs until each child turned 14. Once each child turned 14, those contacts were to occur only upon the consent of that child. The children were subsequently adopted by their aunt in July 2013, and the relevant provisions of the post-adoption contact agreements were included within the orders that granted and approved the instruments of surrender, terminated the mother's parental rights, and transferred the guardianship and custody rights of the children to the adoptive parent.

In December 2016, the mother filed separate petitions alleging that the adoptive parent had failed to schedule the necessary number of visitations or provide the mother photographs of each of the children. After a hearing, the Family Court, in effect, denied the petitions.

Issues concerning the child Daneisha are academic, as she is now 19 years old (see [*2]Matter of Heidi E. [Tresea F.—Phyllis G.], 68 AD3d 1174).

Regarding the child Yasmine, the post-adoption contact provisions of a judicial surrender contained within an order of adoption will be enforced only where the court determines that enforcement is in the child's best interests (see Domestic Relations Law § 112-b[4]; Social Services Law § 383-c[2][b]; Matter of Jayden A. [Jennifer A.], 123 AD3d 816, 818-819; Matter of Rebecca O., 46 AD3d 687, 688). Inasmuch as the Family Court's determination with respect to the best interests of a child or children depends to a great extent upon its assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parties, deference is accorded to its findings, and such findings will not be disturbed unless they lack a sound and substantial basis in the record (see Matter of Jayden M.A.-M. [Jennifer A.—Gregory M.], 156 AD3d 878, 878-879).

The record reflects that Yasmine had chosen not to contact the mother. Under the terms of the post-adoption contact provisions of the judicial surrender, this was Yasmine's prerogative because she was 14 years old. Accordingly, there is a sound and substantial basis in the record for the Family Court's determination."

CHILD CUSTODY - POST BROOKE S. B.

Matter of Renee P.-F. v Frank G. ,2018 NY Slip Op 03839, Decided on May 30, 2018, Appellate Division, Second Department:

Joseph P. (hereinafter Joseph) and Frank G. (hereinafter Frank) were domestic partners who began living together in 2009. As they desired to have children genetically related to both of them, they asked Joseph's sister, Renee P.-F. (hereinafter Renee), to act as a surrogate. Renee had previously promised her brother that she would carry a child for him after he met his life partner. Renee executed a surrogacy contract in which she agreed to be impregnated with Frank's sperm and to terminate her parental rights in order for Joseph to adopt the child or children. In February 2010, Renee gave birth to fraternal twins, Giavonna and Lucciano (hereinafter together the children).

During the first four years of the children's lives, Joseph and Frank equally shared the rights and responsibilities of parenthood, although Joseph did not legally adopt the children. The children regarded both Joseph and Frank as their parents. During that period, Renee frequently saw the children. In early 2014, Joseph and Frank separated, and the children continued to reside with Frank. Even so, Joseph, acting in a parental role, visited and cared for the children on a daily basis.

However, in May 2014, Frank suddenly refused to allow Joseph or Renee to have any access to the children. In December 2014, Frank moved to Florida with the children without informing Joseph or Renee, or commencing a proceeding for custody of the children.

Thereafter, Renee petitioned for custody of the children, and Joseph petitioned to be appointed guardian of the children. In March 2015, Frank petitioned for custody of the children and for permission to relocate with the children to Florida. In an order dated April 8, 2015, the Family Court denied that branch of Frank's motion which was for permission to relocate with the children to Florida. In June 2015, Joseph withdrew his guardianship petition and filed a petition for custody of the children. Frank then moved, in effect, to dismiss Joseph's custody petition on the ground, inter alia, that Joseph lacked standing under Domestic Relations Law § 70. In an order dated August 21, 2015, the court, after a hearing, denied Frank's motion to dismiss and determined that Joseph had standing to seek custody of or physical access with the children. Frank appealed from the orders dated April 8, 2015, and August 21, 2015.

While Frank's appeals were pending before this Court, the Court of Appeals, in Matter of Brooke S.B. v Elizabeth A.C.C. (28 NY3d 1), overruled Matter of Alison D. v Virginia M. (77 NY2d 651). In Matter of Brooke S.B., the Court of Appeals held that, where a partner to a biological parent "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" (Matter of Brooke S.B. v Elizabeth A.C.C., 28 NY3d at 13). Based upon the evidence adduced at the hearing before the Family Court and in light of Matter of Brooke S.B., this Court determined that Joseph established standing to seek custody or physical access and remitted the matter to the Family Court, Orange County, for a full hearing on the custody petitions (see Matter of Giavonna F.P.-G. [Frank G.—Renee P.-F.], 142 AD3d 931; Matter of Frank G. v Renee P.-F., 142 AD3d 928).

On remittitur, the Family Court, after a hearing, issued an order dated February 14, 2017, upon a decision also dated February 14, 2017, inter alia, granting Joseph's petition for custody of the children and denying Frank's petition for custody of the children and for permission to relocate with the children to Florida. In an order dated May 10, 2017, the court granted that branch of Joseph's motion which was for an award of an attorney's fee to the extent of directing Frank to pay [*3]an attorney's fee in the sum of $25,000, and granted that branch of Renee's motion which was for an award of an attorney's fee to the extent of directing Frank to pay an attorney's fee in the sum of $15,000. In an order dated August 2, 2017, the court dismissed, without a hearing, Frank's petition to modify the order dated February 14, 2017, so as to, inter alia, award him custody of the children. Frank appeals from the decision and the orders.

Frank argues that the Family Court improperly determined that Joseph had standing to seek custody of the children pursuant to Matter of Brooke S.B. (28 NY3d 1). However, as stated above, on Frank's prior appeal from the order dated August 21, 2015, this Court determined that Joseph established standing to seek custody or physical access pursuant to the standard set forth in Matter of Brooke S.B. and remitted the matter to the Family Court, Orange County, for a full hearing on Joseph's petition for custody or visitation with the children (see Matter of Frank G. v Renee P.-F., 142 AD3d at 930-931). "The law of the case doctrine forecloses re-examination of issues decided on a prior appeal in the same action, absent a showing of new evidence or a change in the law" (New York Cent. Lines, LLC v State of New York, 141 AD3d 703, 705; see Clinkscale v Sampson, 104 AD3d 722, 723; Wells Fargo Bank Minn., N.A. v Perez, 70 AD3d 817, 817). Here, Frank had a full and fair opportunity before the Family Court and on the prior appeal to contest the issue of Joseph's standing. Frank has neither presented new evidence that would change the determination in the prior appeal nor demonstrated that there has been a subsequent change in the law. Under these circumstances, Frank is barred from raising the same argument again on these appeals.

"The paramount concern in any custody or visitation determination is the best interests of the child, under the totality of the circumstances" (Matter of Boggio v Boggio, 96 AD3d 834, 835; see Matter of Wilson v McGlinchey, 2 NY3d 375, 380-381; Eschbach v Eschbach, 56 NY2d 167, 171). As this matter concerns an initial custody determination, the strict application of the factors relevant to relocation petitions (see Matter of Tropea v Tropea, 87 NY2d 727, 741) is not required (see Matter of McDonald v Thomas, 154 AD3d 763, 764; Matter of Wood v Rago, 135 AD3d 949, 950). Frank's relocation to Florida was one factor for the Family Court to consider in determining what was in the children's best interests (see Matter of Wood v Rago, 135 AD3d at 950; Matter of Santano v Cezair, 106 AD3d 1097, 1098). "[O]ne of the primary responsibilities of a custodial parent is to assure meaningful contact between the children and the noncustodial parent, and the willingness of a parent to assure such meaningful contact between the children and the other parent is a factor to be considered in making a custody determination" (Matter of Vasquez v Ortiz, 77 AD3d 962, 962; see Matter of Dezil v Garlick, 114 AD3d 773, 773-774; Matter of Honeywell v Honeywell, 39 AD3d 857, 858).

Here, the Family Court's determination that the best interests of the children would be served by an award of custody to Joseph has a sound and substantial basis in the record and will not be disturbed. Frank's refusal to allow Joseph any contact with the children as of May 2014 and relocation with the children to Florida, without informing Joseph, constitutes willful interference with the relationship between the children and Joseph. Such conduct " is so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent'" (Matter of Khan-Soleil v Rashad, 111 AD3d 728, 730, quoting Matter of Ross v Ross, 68 AD3d 878, 878; see Matter of Lawlor v Eder, 106 AD3d 739, 740; Matter of Purse v Crocker, 95 AD3d 1216, 1217). Although Frank attempted to excuse his conduct based upon his allegations that Joseph was engaging in risky sexual behavior, thereby endangering the children, the court concluded that Frank's allegations were not supported by credible evidence. As a result, the court properly discounted that explanation (see Matter of Khan-Soleil v Rashad, 111 AD3d at 730; Matter of Jones v Pagan, 96 AD3d 1058, 1058). In contrast, the record supported the court's finding that Joseph was willing to assure meaningful contact between the children and Frank.

Contrary to Frank's contentions, the awards of an attorney's fee to Joseph and Renee were not an improvident exercise of discretion in light of the parties' financial circumstances and the circumstances of this case (see Matter of Zaydenverg v Zaydenverg, 151 AD3d 871, 872; Matter of Feng Lucy Luo v Yang, 104 AD3d 852, 852; Matter of Tuglu v Crowley, 96 AD3d 862, 863).

Moreover, Frank's petition to modify the custody order was properly dismissed [*4]without a hearing. A parent seeking a change of custody is not automatically entitled to a hearing, but must make an evidentiary showing of a change in circumstances demonstrating a need for a change in custody in order to protect the child's best interests (see Matter of Scott v Powell, 146 AD3d 964, 965; Matter of Paulino v Thompson, 145 AD3d 726, 726-727; Matter of Ali v Hines, 125 AD3d 851, 851; Magee v Magee, 119 AD3d 658, 659). Here, Frank failed to make an evidentiary showing that there had been a sufficient change of circumstances between the issuance of the custody order dated February 14, 2017, and the filing of the modification petition. The unsubstantiated and conclusory allegations in his modification petition were insufficient to warrant a hearing (see Matter of Paulino v Thompson, 145 AD3d at 726-727; Matter of Ali v Hines, 125 AD3d at 851)."