CHILD CUSTODY - DISPUTE OVER KINDERGARTEN

In this case, the court does not give the details of the dispute between the parents as to why the child had to enroll in a specific kindergarten but it illustrates how in certain cases, co-parenting disputes can lead to significant legal concerns.

Matter of Gottfried v Gottfried, 2018 NY Slip Op 05469, Decided on July 25, 2018, Appellate Division, Second Department:

"The parties were married and have one child born in 2012. As part of a stipulation of settlement dated February 5, 2014, which was incorporated but not merged into the parties' judgment of divorce entered April 3, 2014, the parties agreed to joint custody of the child. When the parties could not agree on where the child would enroll in kindergarten, the mother filed a petition to modify the custody provisions of the stipulation, as incorporated into the judgment of divorce, so as to award her sole legal and residential custody of the child. The father filed a cross petition for the same relief in his favor. After a hearing, the Family Court granted the mother's petition and denied the father's cross petition. The father appeals.

To modify an existing court-ordered custody arrangement, there must be a showing of a change in circumstances such that modification is required to protect the best interests of the child (see Matter of Zeis v Slater, 57 AD3d 793, 794; Matter of Wirth v Wirth, 56 AD3d 787, 788). There is no prima facie right to the custody of the child in either parent (see Friederwitzer v Friederwitzer, 55 NY2d 89, 93; Matter of Riccio v Riccio, 21 AD3d 1107). The essential consideration in making an award of custody is the best interests of the child (see Friederwitzer v Friederwitzer, 55 NY2d at 94; Matter of Cardozo v Defreitas, 87 AD3d 1138). Factors to be considered include, inter alia, (1) the original placement of the child, (2) the length of that placement, (3) the child's desires, (4) the relative fitness of the parents, (5) the quality of the home environment, [*2](6) the parental guidance given to the child, (7) the parents' financial status, and (8) the parents' ability to provide for the child's emotional and intellectual development (see Matter of Jonas v Leppert, 75 AD3d 552; Cuccurullo v Cuccurullo, 21 AD3d 983, 984; Kuncman v Kuncman, 188 AD2d 517, 518). Since any custody determination necessarily depends to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the hearing court's findings, and its findings will not be disturbed unless lacking a sound and substantial basis in the record (see Cuccurullo v Cuccurullo, 21 AD3d at 984).

Under the circumstances of this case, the parties' inability to agree on where the child would enroll in kindergarten constituted a change of circumstances requiring a modification of the existing joint custody arrangement to protect the best interests of the child. The Family Court's determination that the mother "is better equipped to meet the physical, mental and emotional needs of the child and that she has the capacity to properly raise and nurture the child, and continue to foster a relationship between the child and the father" has a sound and substantial basis in the record (see Matter of Feliccia v Spahn, 108 AD3d 702). Accordingly, the court's decision to award legal and residential custody to the mother will not be disturbed."

NEW RULE FOR DIVORCE JUDGMENTS

Although I have not seen the amendment on the NY Court website, I am advised that 22 NYCRR 202.50(b) has been amended, effective May 31, 2018, and now requires that the following provision be included in all Judgments of Divorce:

ORDERED AND ADJUDGED that pursuant to pursuant to the __ parties’ Settlement Agreement dated___________________ OR __ the court’s decision after trial, all parties shall duly execute all documents necessary to formally transfer title to real estate or co-op shares to the __ Plaintiff OR __ Defendant as set forth in the __ parties’ Settlement Agreement OR __ the court’s decision after trial, including, without limitation, an appropriate deed or other conveyance of title, and all other forms necessary to record such deed or other title documents (including the satisfaction or refinance of any mortgage if necessary) to convey ownership of the marital residence located at _________________________, no later than ________________________; OR __ Not applicable; and it is further

DOG LAW

Cintorrino v Rowsell, 2018 NY Slip Op 05446, Decided on July 25, 2018, Appellate Division, Second Department:

"On the afternoon of October 31, 2013, the plaintiff allegedly sustained injuries when she was bitten by the defendants' dog inside the defendants' house. Subsequently, the plaintiff commenced this action against the defendants to recover damages for her personal injuries, alleging common-law negligence and strict liability. The defendants moved for summary judgment dismissing the complaint, contending that their dog did not have vicious propensities, and that they did not know or have reason to know of such alleged propensities. The Supreme Court denied the defendants' motion, and the defendants appeal.

Aside from the limited exception set forth in Hastings v Sauve (21 NY3d 122, 125-126) regarding a farm animal that strays from the place where it is kept (see Carey v Schwab, 122 AD3d 1142, 1143-1145), which is not at issue here, "New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal" (Egan v Hom, 74 AD3d 1133, 1134; see Doerr v Goldsmith, 25 NY3d 1114, 1116; Hastings v Sauve, 21 NY3d at 125-126; Petrone v Fernandez, 12 NY3d 546, 550; Xin Kai Li v Miller, 150 AD3d 1051; Bueno v Seecharan, 136 AD3d 702; Lew v Stratigakis, 135 AD3d 832). Accordingly, to the extent that the complaint in this action alleged a common-law negligence cause of action to recover damages for injuries caused by the defendants' dog, the Supreme Court should have awarded summary judgment to the defendants dismissing that cause of action (see Doerr v Goldsmith, 25 NY3d at 1116; Hastings v Sauve, 21 NY3d at 125-126; Petrone v Fernandez, 12 NY3d at 550; Xin Kai Li v Miller, 150 AD3d at 1051; Roche v Bryant, 81 AD3d 707, 708).

To recover upon a theory of strict liability in tort for damages caused by a dog, a plaintiff must establish that the dog had vicious propensities, and that the owner of the dog knew or should have known of the dog's vicious propensities (see Petrone v Fernandez, 12 NY3d at 550; [*2]Carroll v Kontarinis, 150 AD3d 960; Bueno v Seecharan, 136 AD3d at 702; Matthew H. v County of Nassau, 131 AD3d 135, 144; Palumbo v Nikirk, 59 AD3d 691). Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others (see Collier v Zambito, 1 NY3d 444, 446; Gammon v Curley, 147 AD3d 727, 728; Claps v Animal Haven, Inc., 34 AD3d 715, 716). "Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm" (Hodgson-Romain v Hunter, 72 AD3d 741, 741; see Bard v Jahnke, 6 NY3d 592, 597; Collier v Zambito, 1 NY3d at 446-447; Carroll v Kontarinis, 150 AD3d at 960; Matthew H. v County of Nassau, 131 AD3d at 147).

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that their dog did not have vicious propensities and, in any event, that they neither knew nor should have known that their dog allegedly had vicious propensities (see Collier v Zambito, 1 NY3d at 446-447; Ioveno v Schwartz, 139 AD3d 1012; Galgano v Town of N. Hempstead, 41 AD3d 536; cf. Matthew H. v County of Nassau, 131 AD3d at 148). In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint."

A THANK YOU

THE SCRA

The Servicemembers Civil Relief Act (SCRA) gives military members a wide range of legal protections not available to the general public.

The SCRA can postpone or suspend financial or civil obligations to prevent you from being taken advantage of while on active duty and away from home.

Protections offered by the SCRA include:

• Prevents your landlord from evicting you unless the rent is higher than $3,451.20 per month (this amount changes every year)
• Stops foreclosures without a court order
• Your vehicle can't be repossessed without a court order if you made a deposit, or at least one payment before you joined
• You can't be taken to court for civil proceedings, this includes divorce and child support hearings
• Keeps the owner of a self-storage facility from selling your belongings for overdue rent without a court order

Benefits offered by the SCRA include:

• Lets you to terminate your current cell phone contract if you relocate for at least 90 days to a location that doesn't have coverage under your current cell phone provider
• Lets you end a vehicle lease you signed before joining if you are mobilized, PCS OCONUS, or deploy OCONUS for at least 180 days
• Lets you end a housing lease without penalty if you deploy for 90 days or more 
• Limits interest on all loans taken out before joining the military to 6 percent. This includes auto loans, mortgages, student loans, credit cards, etc.
• Also, it says that if you use any of your SCRA rights and delay payments it won't reflect on your credit report

The SCRA also gives you other rights regarding property taxes, federal taxes, life insurance, and other financial or legal penalties or proceedings.

DIVORCE - STANDARD LANGUAGE IN AGREEMENT IS AMBIGUOUS

Cohen v Cohen, 2018 NY Slip Op 05277 Decided on July 18, 2018. Appellate Division, Second Department:

"In October 2013, the parties entered into a "Stipulation of Settlement Opting Out Agreement," which was incorporated but not merged into a judgment of divorce dated April 2, 2014. Insofar as relevant to this appeal, article XIII, paragraph "1," of the stipulation of settlement addressed the parties' respective liability for their jointly filed 2013 tax returns, and provided that [*2]any taxes due were to be "paid by the parties in proportion to their respective income."

In January 2015, the defendant moved, inter alia, to enforce the stipulation of settlement by seeking a determination of the plaintiff's proportionate liability for the parties' jointly filed 2013 taxes and to direct the plaintiff to pay that sum. The plaintiff cross-moved, inter alia, for an award of counsel fees. In the order appealed from, the Supreme Court, inter alia, granted that branch of the defendant's motion which was, in effect, for a determination of the plaintiff's proportionate liability for the parties' jointly filed 2013 taxes, and determined that the plaintiff was responsible for 11.3% of the parties' tax liability for 2013, with credit for any payments already made. The court also denied those branches of the motion and cross motion which were for an award of counsel fees.

"A stipulation of settlement is a contract, enforceable according to its terms" (Stein v Stein, 130 AD3d 604, 605; see Palaia v Palaia, 158 AD3d 719; Klein v Klein, 134 AD3d 1066, 1068). "As with other contracts, when the terms of a separation agreement are clear and unambiguous, the general rule is that the intent of the parties is to be found within the four corners of the agreement" (Surlak v Surlak, 95 AD2d 371, 375). " Whether an agreement is ambiguous is a question of law for the courts'" (Boster-Burton v Burton, 92 AD3d 909, 910, quoting Kass v Kass, 91 NY2d 554, 566). "The resolution of an ambiguous provision, for which extrinsic evidence may be used, is for the trier of fact" (Boster-Burton v Burton, 92 AD3d at 910).

Here, the relevant provision of the parties' stipulation of settlement is ambiguous as to how to calculate the parties' respective income in connection with the apportionment of their 2013 tax liability. The parties' submissions were insufficient to resolve the ambiguity. Accordingly, we remit the matter to the Supreme Court, Nassau County, for an evidentiary hearing at which extrinsic evidence may be introduced to determine the parties' intent with regard to the relevant provision of the stipulation (see id.; Bianco v Bianco, 21 AD3d 918, 919; Chudick v Chudick, 287 AD2d 590; Laing v Laing, 282 AD2d 655, 655-656; see also Nirenberg v Nirenberg, 203 AD2d 980; Graepel v County of Nassau, 119 AD2d 800), and for a new determination thereafter as to that branch of the defendant's motion which was, in effect, for a determination of the plaintiff's proportionate liability for the parties' jointly filed 2013 taxes and to direct the plaintiff to pay that sum."

DIVORCE - AWARDING COUNSEL FEES FOR VIOLATING SETTLEMENT

Boukas v Boukas, 2018 NY Slip Op 05273, Decided on July 18, 2018, Appellate Division, Second Department:

"The parties were married in 1991 and have two children together. In 2011, the plaintiff commenced an action for a divorce and ancillary relief. The parties executed a stipulation of settlement dated September 10, 2013, which was incorporated but not merged into a judgment of divorce entered March 14, 2014, and included a vacation and parental access schedule with regard to the parties' children. The defendant moved to find the plaintiff in contempt of the parties' stipulation of settlement based on alleged violations of this schedule. The plaintiff cross-moved to hold the defendant in contempt, alleging noncompliance by the defendant with certain terms of the stipulation of settlement. The parties settled all issues with the exception of counsel fees, which issue was referred to the court for determination. In the order appealed from the Supreme Court, inter alia, denied that branch of the defendant's motion which was for an award of counsel fees.

In determining whether an award of counsel fees is appropriate, the court must [*2]consider the equities and circumstances of each particular case, the relative merit of the parties' contentions and their respective financial positions (see Domestic Relations Law § 238; Mons Pinto v Pinto, 151 AD3d 715; Ackerman v Midura, 145 AD3d 647; Pelgrim v Pelgrim, 127 AD3d 710, 714; Hackett v Hackett, 115 AD3d 800, 803; Pathak v Shukla, 109 AD3d 891, 892; Quinn v Quinn, 73 AD3d 887; Lauria v Usak-Lauria, 65 AD3d 1017).

Here, the defendant was entitled to reasonable counsel fees in connection with this matter, as the plaintiff's conduct in violation of the stipulation of settlement caused these fees to be incurred (see Pathak v Shukla, 109 AD3d 891, 892; Quinn v Quinn, 73 AD3d 887; Lauria v Usak-Lauria, 65 AD3d 1017). An award of counsel fees in the sum of $15,000 is supported by the record."

CUSTODY - PARENT WHO DOES NOT FOSTER RELATIONSHIP WITH OTHER PARENT CAN STILL GET SOLE CUSTODY

In this case, we do not have all the facts but there is always an exception to the rule.

Matter of Woodson v Woodson, 2018 NY Slip Op 05321, Decided on July 18, 2018, Appellate Division, Second Department:

"The father and the mother are the parents of two children. In 2008, the father commenced a proceeding seeking sole custody of the children. Thereafter, the mother filed a petition alleging that the father violated a temporary order of parental access dated December 21, 2009. After [*2]a lengthy hearing, which took place over more than four years, the Family Court awarded the father sole custody of the children, awarded the mother supervised parental access with the children, and, upon finding that the father violated the temporary order of parental access dated December 21, 2009, declined to impose a sanction against him. The mother appeals.

In making a custody determination, the paramount concern is the best interests of the children, considered under the totality of the circumstances (see Matter of James M. v Kevin M., 99 AD3d 911, 912-913). "Where, as here, a complete evidentiary hearing has been held on the issue of custody, any determination depends to a great extent upon the hearing court's assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties. The credibility findings of the Family Court will be accorded great weight and its determinations regarding custody and visitation will not be disturbed unless they lack a sound and substantial basis in the record" (Matter of Felty v Felty, 108 AD3d 705, 707 [citations omitted]). Here, we acknowledge that the father's negative attitude toward the mother is disconcerting, as children should generally be encouraged to have a relationship with both parents. Despite the father's shortcoming in this regard, the totality of the circumstances supports the finding that it would be in the children's best interests for the father to have sole custody.

Any error in failing to set forth the facts in the order awarding the father custody does not constitute grounds for reversal or modification, since the record contains a sound and substantial basis for the Family Court's determination and is sufficient for this Court to conduct an independent review of the evidence (see Matter of Thomas v Wong, 127 AD3d 769, 770)."

MORTGAGE FORECLOSURE - STANDING DEFENSE STILL LIVES

Deutsche Bank Natl. Trust Co. v Horowitz, 2018 NY Slip Op 05278, Decided on July 18, 2018, Appellate Division, Second Department:

"A plaintiff has standing to commence a foreclosure action where it is the holder or assignee of the underlying note, either by physical delivery or execution of a written assignment prior to the commencement of the action with the filing of the complaint (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 361-362; US Bank N.A. v Cohen, 156 AD3d 844, 845-846; U.S. Bank, N.A. v Noble, 144 AD3d 786; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753-754). Once a note is transferred, the mortgage passes as an incident to the note (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d at 361-362; US Bank N.A. v Cohen, 156 AD3d at 846; Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d at 726).

Here, the plaintiff failed to establish, prima facie, that it had standing to commence this action. The copy of the note, which was not annexed to the complaint, but was submitted by the plaintiff in support of its motion, inter alia, for summary judgment, contained an undated endorsement in blank (see Wells Fargo Bank, N.A. v Allen, 154 AD3d 644, 645; Deutsche Bank Natl. Trust Co. v Cunningham, 142 AD3d 634, 635-636; U.S. Bank, N.A. v Collymore, 68 AD3d at 754). Furthermore, although the affidavit of the contract management coordinator of the plaintiff's loan servicer, together with the documents submitted therewith, established, prima facie, that the plaintiff was presently the owner of the note, the affidavit and documentation failed to establish, prima facie, that the plaintiff was the owner of the note at the time the action was commenced (see Wells Fargo Bank, N.A. v Allen, 154 AD3d at 646; Deutsche Bank Natl. Trust Co. v Cunningham, 142 AD3d at 636; U.S. Bank, N.A. v Collymore, 68 AD3d at 754). Thus, the plaintiff failed to establish, prima facie, that it was the holder of the note at the time the action was commenced."

MORTGAGE FORECLOSURE - HOMEOWNER COULD NOT VACATE DEFAULT

HSBC Bank USA, N.A. v Daniels, 2018 NY Slip Op 05145, Decided on July 11, 2018, Appellate Division, Second Department:

"On June 17, 2015, the defendants moved, inter alia, pursuant to CPLR 5015(a)(1) and (4) to vacate the order and judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction and for failure to comply with RPAPL 1304 or, in the alternative, for leave to serve a late answer. Among other things, the defendants argued that the Supreme Court lacked personal jurisdiction over them because Daniels was not properly served with the summons and complaint. In an order dated October 29, 2015, the court denied the motion without a hearing. The defendants appeal.

Where, as here, a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), and seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), a court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1) (see Wachovia Bank, N.A. v Greenberg, 138 AD3d 984, 985; HSBC Bank USA, N.A. v Dalessio, 137 AD3d 860, 862-863; Wells Fargo Bank, NA v Besemer, 131 AD3d 1047; Roberts v Anka, 45 AD3d 752, 753).

Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308 (see Washington Mut. Bank v Murphy, 127 AD3d 1167, 1174; Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 896-897). "[T]he failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void" (McMullen v Arnone, 79 AD2d 496, 499; see Feinstein v Bergner, 48 NY2d 234, 241; Krisilas v Mount Sinai Hosp., 63 AD3d 887, 889).

Ordinarily, the affidavit of a process server constitutes a prima facie showing of proper service (see Citimortgage, Inc. v Baser, 137 AD3d 735, 736; American Home Mtge. Servicing, Inc. v Gbede, 127 AD3d 1004, 1005; Velez v Forcelli, 125 AD3d 643, 644). "However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server's affidavit, and necessitates an evidentiary hearing" (Deutsche Bank Natl. Trust Co. v DaCosta, 97 AD3d 630, 631; see Wells Fargo Bank, N.A. v Christie, 83 AD3d 824, 825).

Here, the process server's affidavit of service established, prima facie, that Daniels was served with the summons and complaint pursuant to CPLR 308(4) (see Wells Fargo Bank, NA v Besemer, 131 AD3d at 1048; HSBC Bank USA v Desrouilleres, 128 AD3d 1013, 1014; JP Morgan Chase Bank, N.A. v Baldi, 128 AD3d 777, 777-778). Contrary to the defendants' contention, Daniels' conclusory denial of service was insufficient to rebut the presumption of proper service established by the affidavit of service (see HSBC Bank USA, N.A. v Dalessio, 137 AD3d at 863; HSBC Bank USA v Desrouilleres, 128 AD3d at 1014; U.S. Bank N.A. v Hasan, 126 AD3d 683, 684). Verwayne did not submit any sworn denial of service. Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was pursuant to CPLR 5015(a)(4).

To the extent that the motion sought vacatur pursuant to CPLR 5015(a)(1), the defendants were not entitled to such relief since they failed to set forth a reasonable excuse for their default, and it is, therefore, unnecessary to consider whether they sufficiently demonstrated a potentially meritorious defense, including the plaintiff's alleged failure to satisfy the requirements of RPAPL 1304 (see Bank of Am., N.A. v Agarwal, 150 AD3d 651, 652)."

MORTGAGE FORECLOSURE - BANK DID NOT FAIL TO TAKE ACTION

Bank of Am., N.A. v Lucido, 2018 NY Slip Op 05130, Decided on July 11, 2018, Appellate Division, Second Department:

"The plaintiff commenced this mortgage foreclosure action in January 2009 against, among others, the defendants Galina Lucido and John A. Lucido (hereinafter together the defendants). In December 2009, following the defendants' failure to answer the complaint, the Supreme Court granted the plaintiff's unopposed motion for an order of reference. The plaintiff thereafter moved for a judgment of foreclosure of sale, but then withdrew the motion on April 12, 2011. In a judgment dated April 16, 2012, the Supreme Court sanctioned the plaintiff for failing to negotiate in good faith during mandatory foreclosure settlement conferences (see CPLR 3408). On the plaintiff's appeal, in a decision and order dated February 13, 2014, this Court reversed the judgment (see Bank of Am., N.A. v Lucido, 114 AD3d 714). Subsequently, the plaintiff moved, inter alia, for a judgment of foreclosure and sale. In an order dated May 10, 2016, the Supreme Court, sua sponte, directed dismissal of the complaint pursuant to CPLR 3215(c) and cancellation of the notice of pendency, and, in effect, denied the plaintiff's motion as academic. The plaintiff appeals. We reverse.

CPLR 3215(c) provides that "[i]f the plaintiff fails to take proceedings for the entry [*2]of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed." It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c) (see HSBC Bank USA, N.A. v Roldan, 155 AD3d 942, 944; Aurora Loan Servs., LLC v Gross, 139 AD3d 772, 773; US Bank N.A. v Dorestant, 131 AD3d 467, 469). So long as the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint pursuant to CPLR 3215(c) (see HSBC Bank USA, N.A. v Roldan, 155 AD3d at 944; HSBC Bank USA N.A. v Traore, 139 AD3d 1009, 1010; Wells Fargo Bank, N.A. v Combs, 128 AD3d 812, 813). Here, the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference (see RPAPL 1321[1]) within one year of the defendants' default (see HSBC Bank USA, N.A. v Roldan, 155 AD3d at 944; Aurora Loan Servs., LLC v Gross, 139 AD3d at 774; Klein v St. Cyprian Props., Inc., 100 AD3d 711, 712). There was no evidence that the plaintiff intended to abandon the action. Accordingly, the Supreme Court improvidently exercised its discretion in sua sponte directing dismissal of the complaint pursuant to CPLR 3215(c) and cancellation of the notice of pendency (see Aurora Loan Servs., LLC v Gross, 139 AD3d at 774; Citimortgage, Inc. v Espinal, 136 AD3d 857, 859)."

DIVORCE - INTRODUCING TAPED PHONE CALL

Perlman v Perlman, 2018 NY Slip Op 05212, Decided on July 11, 2018, Appellate Division, Second Department:

"We agree with the Supreme Court's determination denying that branch of the defendant's motion which was to preclude the plaintiff from offering a tape recording of a telephone call into evidence at trial. Generally, "[t]he contents of any overheard or recorded communication, conversation or discussion, or evidence derived therefrom, which has been obtained by conduct constituting the crime of eavesdropping, as defined by section 250.05 of the penal law, may not be received in evidence in any trial, hearing or proceeding before any court or grand jury" (CPLR 4506 [1]). "A person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication" (Penal Law § 250.05). Here, the plaintiff's actions in recording a telephone call, which apparently took place between the defendant and the children after the defendant requested that the children place the call on speaker so that the plaintiff could hear what he had to say, did not constitute the crime of eavesdropping. The plaintiff's actions did not amount to "mechanical overhearing of a conversation[,]" as she was present at, and a party to, the conversation at issue (Penal Law § 250.00 [2]; cf. People v Badalamenti, 27 NY3d 423, 432). Thus, we agree with the court's determination that the recordings of that conversation were admissible pursuant to CPLR 4506(1) (see CPLR 4506[1]; Penal Law §§ 250.05, 250.00 [1], [2])."

MORTGAGE FORECLOSURE - RPAPL 1304 DEFENSE UPHELD

U.S. Bank N.A. v Henderson, 2018 NY Slip Op 05071, Decided on July 5, 2018, Appellate Division, Second Department:

"Furthermore, in a residential foreclosure action, a plaintiff moving for summary judgment must tender "sufficient evidence demonstrating the absence of material issues as to its strict compliance with RPAPL 1304" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106). RPAPL 1304(1), which applies to home loans, provides that "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." The statute sets forth the requirements for the content of such notice (see id.), and provides that such notice must be sent by registered or certified mail and by first-class mail to the last known address of the borrower and to the subject residence (see RPAPL 1304[2]). "[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 106; see Citibank, N.A. v Wood, 150 AD3d 813, 814; Flagstar Bank, FSB v Damaro, 145 AD3d 858, 860).

Here, the plaintiff failed to establish, prima facie, that it complied with the requirements of RPAPL 1304 (see M & T Bank v Joseph, 152 AD3d 579; CitiMortgage, Inc. v Pappas, 147 AD3d 900; Bank of N.Y. Mellon v Aquino, 131 AD3d 1186, 1186; Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 910). In moving for summary judgment, the plaintiff submitted the affidavit of Timeka J. Motlow, a representative of its loan servicer, who stated that "[t]he records I have reviewed indicate that the attached 90-day pre-foreclosure notice was mailed to [the defendant] at the property address of the real estate at issue herein and to the last know address of the borrower(s)." However, Motlow did not have personal knowledge of the purported mailing and failed to make the requisite showing that she was familiar with the plaintiff's mailing practices and procedures, and therefore did not establish "proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed" (Wells Fargo Bank, N.A. v Trupia, 150 AD3d 1049, 1050-1051; see Wells Fargo Bank, N.A. v Lewczuk, 153 AD3d 890; Citibank, N.A. v Wood, 150 AD3d 813; CitiMortgage, Inc. v Pappas, 147 AD3d at 901)."

CHILD CUSTODY - RELOCATION LEADS TO CHANGE OF CUSTODY

Matter of Lyons v Sepe, 2018 NY Slip Op 05042, Decided on July 5, 2018, Appellate Division, Second Department:

"Jessica Lyons (hereinafter the mother) and Nicholas Sepe (hereinafter the father), who never married each other, have one child together, born in 2007. In an order dated January 16, 2014, the Family Court, Suffolk County, awarded the parties joint legal custody of the child and the mother was awarded residential custody, while the father was awarded parental access with the child. In addition, the order prohibited the mother from relocating beyond a 20-mile radius from her Kings Park residence without the written consent of the father or a court order.

In or about March 2017, the father refused to consent to the mother relocating with the child to the Rochester area. In April 2017, the mother filed a petition to modify the January 16, 2014, order so as to permit her to relocate with the child to the Rochester area. The mother alleged, inter alia, that relocation would be in the child's best interests given an increase in the mother's household income and reduced costs of living, and the child's bond with his half-siblings. In May 2017, the father filed his own petition to modify the January 16, 2014, order so as to award him residential custody of the child, alleging, inter alia, that the proposed relocation of the child would have a detrimental impact on his parental access with the child.

The mother relocated to Pittsford on July 1, 2017. After a hearing held in August 2017, the Family Court denied the mother's petition, granted the father's petition, and set forth a parental access schedule. The mother appeals.

" A parent seeking leave to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child's best interests'" (Matter of Teel v Minus, 152 AD3d 705, 705, quoting Matter of Caruso v Cruz, 114 AD3d 769, 771; see Matter of Detwiler v Detwiler, 145 AD3d 778, 779). In determining whether relocation is in the best interests of the child, courts are "free to consider and give appropriate weight to all of the factors that may be relevant to the determination" (Matter of Tropea v Tropea, 87 NY2d 727, 740; see Matter of Teel v Minus, 152 AD3d at 705). These factors include, but are not limited to, "each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements" (Matter of Tropea v Tropea, 87 NY2d at 740-741). "[N]o single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome" (id. at 738). However, the impact of the move on the relationship between the child and the noncustodial parent remains a central concern (see id. at 741; Matter of Francis-Miller v Miller, 111 AD3d 632, 635).

"In relocation proceedings, this Court's authority is as broad as that of the hearing court" (Matter of Caruso v Cruz, 114 AD3d at 771). However, the Family Court's assessment of the witnesses' demeanor and credibility is accorded considerable deference and a relocation determination will be upheld if supported by a sound and substantial basis in the record (see Matter of Detwiler v Detwiler, 145 AD3d at 780; Matter of Ventura v Huggins, 141 AD3d 600, 601).

Here, contrary to the mother's contentions, the record demonstrates that the Family Court, which was familiar with the parties from prior proceedings, appropriately considered and gave suitable weight to all of the relevant factors (see Matter of Tropea v Tropea, 87 NY2d at 740; Matter of Lopez v Chasquetti, 148 AD3d 1151, 1152; Matter of Detwiler v Detwiler, 145 AD3d at 780; Matter of Gravel v Makrianes, 120 AD3d 815, 816). Although the mother proved that the child's life would be enhanced economically, the mother failed to prove by a preponderance of the evidence that the child's life would also be enhanced emotionally and educationally by the move (see Matter of Teel v Minus, 152 AD3d at 706; Matter of Gravel v Makrianes, 120 AD3d at 817). The mother also failed to show that relocation "would not have a negative impact on the quantity and quality of the child's future contact with the father," who had exercised most of his parental access rights and indicated that he desired to continue participating in the child's life (Matter of Lopez v Chasquetti, 148 AD3d at 1153; see Matter of Teel v Minus, 152 AD3d at 706; Matter of Gravel v Makrianes, 120 AD3d at 817; Matter of Karen H. v Maurice G., 101 AD3d 1005, 1007; Matter of McBryde v Bodden, 91 AD3d 781, 782).

In light of the mother's acceptance of a job promotion and relocation to Pittsford, and the adverse impact of the move with respect to the father's parental access with the child, the father demonstrated that there was a sufficient change in circumstances since the initial custody determination such that modification so as to award him residential custody was in the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 173-173; Matter of Coon v Sanabria, 158 AD3d 756, 757; Matter of Lopez v Chasquetti, 148 AD3d at 1153; Matter of Detwiler v Detwiler, 145 AD3d at 781; Matter of Cornejo v Salas, 110 AD3d 1068, 1070). While not determinative, this conclusion is consistent also with the position advanced by the attorney for the child both at the hearing and on appeal (see Matter of Cisse v Graham, 120 AD3d 801, 806, affd 26 NY3d 1103; Matter of Kozlowski v Mangialino, 36 AD3d 916, 917).

Moreover, contrary to the mother's contention, the Family Court providently exercised its discretion in crafting the parental access schedule, which was in the best interests of the child and was supported by a sound and substantial basis in the record (see Matter of Morris v Morris, 156 AD3d 702, 704; Chamberlain v Chamberlain, 24 AD3d 589, 592). In addition, the record "demonstrates that the parties are not so antagonistic, embattled, and unable to set aside their differences that they cannot" agree on additional parental access time that would be in the best interests of the child (Matter of Retamozzo v Moyer, 91 AD3d 957, 959)."

CHILD SUPPORT - PROVING PARENT DID NOT WILLFULLY VIOLATE ORDER

Matter of Pacheco v Pacheco, 2018 NY Slip Op 05048, Decided on July 5, 2018, Appellate Division, Second Department:

"The parties were divorced in 2008 and are the parents of one child, born in 2005. By order dated November 14, 2014, the father's previous child support obligation was increased from the sum of $1,570 per month to the sum of $2,430 per month upon the consent of the parties. On April 21, 2015, the mother filed a petition alleging that the father violated the order dated November 14, 2014, and sought payment of retroactive child support arrears and an award of counsel fees. On May 17, 2016, the Support Magistrate set retroactive arrears and scheduled a hearing on the issues of willfulness and counsel fees. In an order dated April 4, 2017, the Support Magistrate found, after the hearing, that the father did not willfully violate the order dated November 14, 2014, and thereupon denied the mother's motion for an award of counsel fees. In an order dated June 7, 2017, the Family Court denied the mother's objections to the order dated April 4, 2017. The mother appeals.

The Family Court may allow the payment of counsel fees to the attorney representing the petitioner at any stage of a proceeding to modify or enforce an order (see Family Ct Act § 438[a]; Matter of Heintzman v Heintzman, 157 AD3d 682, 692; Matter of Nieves-Ford v Gordon, 47 AD3d 936, 937). Absent a finding that nonpayment was willful, an award of counsel fees is a matter left to the sound discretion of the Family Court (see Matter of Westergaard v Westergaard, 106 AD3d 926; Matter of Nieves-Ford v Gordon, 47 AD3d at 937). As with an award of counsel fees made pursuant to Domestic Relations Law § 237(b), the court must base its decision primarily upon both parties' ability to pay, the nature and extent of the services required to deal with the support dispute, and the reasonableness of their performance under the circumstances (see Matter of Heintzman v Heintzman, 157 AD3d at 693; Matter of Nieves-Ford v Gordon, 47 AD3d at 937; Matter of Barnes [*2]v Barnes, 54 AD2d 963). Great deference should be given to the credibility determinations of the Support Magistrate, who was in the best position to assess the credibility of the witnesses (see Matter of Julianska v Majewski, 78 AD3d 1182, 1183; Matter of Kennedy v Ventimiglia, 73 AD3d 1066, 1067; Matter of Musarra v Musarra, 28 AD3d 668, 669).

Here, the father demonstrated that he did not willfully violate the order dated November 14, 2014. The father's testimony at the hearing and other evidence submitted by the father showed that there had been a decline in his income as well as an inability to pay for financial obligations such as the mortgage on his residence and outstanding bills. The Support Magistrate's findings regarding the father's income were based on credibility determinations and were supported by the record (see Matter of Julianska v Majewski, 78 AD3d at 1183). Therefore, the Support Magistrate providently exercised her discretion in declining to award counsel fees to the mother (see Matter of Heintzman v Heintzman, 157 AD3d at 692; O'Brien v O'Brien, 115 AD3d 720, 724; Matter of Nieves-Ford v Gordon, 47 AD3d at 937; cf. Matter of Wiener v Salamy, 142 AD3d 1179)."

DIVORCE - EQUITABLE NOT EQUAL

McCormack v McCormack, 2018 NY Slip Op 05032, Decided on July 5, 2018, Appellate Division, Second Department:

"Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in awarding the plaintiff a 65% distributive share of the defendant's tax-deferred annuity. " The trial court is vested with broad discretion in making an equitable distribution of marital property . . . and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed'" (Halley-Boyce v Boyce, 108 AD3d 503, 504, quoting Safi v Safi, 94 AD3d 737, 737). " Equitable distribution does not necessarily mean equal distribution'" (Halley-Boyce v Boyce, 108 AD3d at 504, quoting Michaelessi v Michaelessi, 59 AD3d 688, 689). The court properly took into consideration its finding that the defendant was deliberately evasive in his testimony (see Kerley v Kerley, 131 AD3d 1124), and that he diverted marital assets to support a second family for almost 10 years (see Renck v Renck, 131 AD3d 1146; Sotnik v Zavilyansky, 101 AD3d 1102; Altieri v Altieri, 35 AD3d 1093; Coleman v Coleman, 284 AD2d 426; Southwick v Southwick, 202 AD2d 996)."

ART AND THE LAW

Lincoln for the Defense

Norman Rockwell 

1962

JOINT CUSTODY - WHEN PARTIES CANNOT AGREE ON EDUCATION

Hudson v Hudson, 2018 NY Slip Op 05025, Decided on July 5, 2018, Appellate Division, Second Department:

"The parties are the divorced parents of one child. They entered into a stipulation of settlement, which was incorporated, but not merged, into their June 10, 2014, judgment of divorce. The judgment of divorce awarded joint legal custody to both parents, with primary physical custody to the mother, the plaintiff. The parties' stipulation provided that the child "shall go to school within the jurisdiction of the [plaintiff's] residence based on physical custody, provided that she complies with the mileage conditions [established in the stipulation]." It is not disputed that the plaintiff has complied with the mileage conditions of the stipulation.

The child attended a pre-kindergarten program at a private school in Warwick, New York. However, the parties disagreed with respect to where the child would attend kindergarten. The plaintiff wanted the child to attend a public school in Vernon, New Jersey, within the township where she lives. The defendant wanted the child to continue to attend the school in Warwick. The parties were unable to resolve this disagreement, and as a result, the child attended kindergarten at both schools for a period of time.

In September 2016, the plaintiff moved, inter alia, to enforce the terms of the stipulation of settlement, and to direct that the child attend kindergarten at the Vernon school. The defendant opposed the plaintiff's motion, and cross-moved, inter alia, to modify the joint custody provision of the parties' judgment of divorce so as to award him sole physical and legal custody. [*2]In the order appealed from, the Supreme Court, inter alia, granted the plaintiff's motion and denied that branch of the defendant's cross motion which was to modify custody. The court found that the provision of the stipulation concerning the child's education was clear and unambiguous, and was in the plaintiff's favor. The defendant appeals.

"As with other contracts, when the terms of a separation agreement are clear and unambiguous, the general rule is that the intent of the parties is to be found within the four corners of the agreement" (Surlak v Surlak, 95 AD2d 371, 375; see Matter of Meccico v Meccico, 76 NY2d 822, 823-824; Rainbow v Swisher, 72 NY2d 106, 109; Nichols v Nichols, 306 NY 490, 496). "Whether an agreement is ambiguous is a question of law for the courts" (Kass v Kass, 91 NY2d 554, 566; see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162).

Contrary to the Supreme Court's finding, there is an ambiguity in the parties' stipulation of settlement concerning where the child would attend school, and it does not clearly evidence the parties' intent that she attend the local public school (see generally Nappy v Nappy, 40 AD3d 825, 826; Matter of Mahoney v Goggins, 12 AD3d 447, 448). Moreover, while priority will be accorded to a clause in a stipulation of settlement concerning education, the paramount concern is always the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171; Matter of Nehra v Uhlar, 43 NY2d 242, 251; Weisberger v Weisberger, 154 AD3d 41, 51; Matter of Awan v Awan, 63 AD3d 733, 734). In deciding the plaintiff's motion to enforce the education provision of the parties' stipulation, the Supreme Court should have rendered its determination based upon the child's best interests.

Furthermore, the Supreme Court erred in denying, without a hearing, that branch of the defendant's cross motion which was to modify the joint custody provision of the judgment of divorce. A joint custody arrangement can only work where there is harmony and cooperation between the parents; it should not be continued where the parties are unable to cooperate with each other with respect to their parental obligations such that joint custody is more harmful than beneficial to the child (see Braiman v Braiman, 44 NY2d 584, 587; Franco v Franco, 127 AD3d 810, 811; Robinson v Robinson, 111 AD2d 316, 318). Here, there was sufficient evidence to warrant a hearing to determine whether it was in the child's best interests to continue joint legal custody (see Franco v Franco, 127 AD3d at 811).

UNEMPLOYMENT INSURANCE - QUITTING WHEN SUPERVISOR IS ABUSIVE

State of New York , Appellate Division Third Judicial Department, Decided and Entered: June 28, 2018,  # 525878, In the Matter of the Claim of NIEAMA BAXTER, Appellant:

""Whether a claimant has voluntarily left employment for good cause is a factual determination to be made by the Board, and its decision will not be disturbed if supported by substantial evidence" (Matter of Sheldon [Commissioner of Labor], 153 AD3d 1480, 1480 [2017] [internal quotation marks and citation omitted]; see Labor Law § 593 [1] [a]). The record reflects that, notwithstanding claimant's allegations of verbal abuse, claimant's supervisor, on at least two occasions, issued a corrective action to claimant regarding incomplete work. Claimant, in turn, spoke to an assistant human resources manager on at least one occasion about the allegedly unprofessional manner in which her supervisor addressed her. In response to her expressed concerns, claimant was repeatedly advised by human resources about how to file a formal internal complaint concerning her supervisor's alleged treatment of her; however, claimant acknowledged that she never filed a complaint, did not call the employee hotline that was also available to her to lodge a complaint, and failed to request an internal transfer. Moreover, the differing versions of what claimant told the assistant human resources manager presented a credibility issue that the Board was free to resolve in the employer's favor (see Matter of Baez [Commissioner of Labor], 126 AD3d 1211, 1212 [2015]). Furthermore, although the record demonstrates that claimant obtained treatment from a clinical social worker, who opined that claimant was suffering from job-related anxiety and depression, that therapist never advised claimant to quit her employment (see Matter of Bielak [Commissioner of Labor], 105 AD3d 1226, 1226 [2013]; Matter of Spaulding [Commissioner of Labor], 264 AD2d 881, 882 [1999]; Matter of Ikoli [Commissioner of Labor], 249 AD2d 673, 673 [1998]). Under the circumstances presented here, the Board's decision that claimant voluntarily left her employment without good cause is supported by substantial evidence, and it will not be disturbed."

TRANSFER OF PROPERTY TO AVOID CREDITORS - DANGER

Flores v Guambana, 2018 NY Slip Op 04699, Decided on June 27, 2018, Appellate Division, Second Department:

"A person who transfers property to another to be held in trust for the purpose of hindering, delaying, or defrauding creditors has unclean hands, and equity will not afford relief when he or she seeks the reconveyance of the property (see Pattison v Pattison, 301 NY 65, 74). Stated differently, "the fraudulent grantor cannot undo, for his [or her] own benefit, the transfer he [or she] has made" (Ford v Harrington, 16 NY 285, 287). Such agreements are not enforced "as a matter of public policy to protect the integrity of the court" (Festinger v Edrich, 32 AD3d 412, 414), and the court "will leave the parties where it finds them" (Pattison v Pattison, 301 NY at 74).

Here, we agree with the Supreme Court's determination, based on the allegations in the complaint, that the plaintiffs' alleged conveyance of real property to the defendant Moises M. Guambana was for the purpose of frustrating their creditors and, therefore, the alleged oral agreement for the reconveyance of the property was unenforceable (see Dolny v Borck, 61 AD3d 817, 818; Festinger v Edrich, 32 AD3d at 414; Moo Wei Wong v Shirley Wong, 293 AD2d 387, 387; Walker [*2]v Walker, 289 AD2d 225, 226). Accordingly, we agree with the court's determination to grant Guambana's motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him and to cancel the notice of pendency filed against the subject property."

A RECOGNITION