FORECLOSURE RESCUE SCAM ALLEGED

Ortiz v Silver Invs., 2018 NY Slip Op 07135, Decided on October 24, 2018, Appellate Division, Second Department:

"The plaintiff allegedly was the victim of a foreclosure rescue scam whereby the defendant Silver Investors and its principal, the defendant Henry Walters (hereinafter together the Silver defendants), fraudulently induced the plaintiff to convey title to his property in foreclosure to Silver Investors by promising to allow the plaintiff to repurchase the original property at a more favorable interest rate. When the plaintiff became aware of an allegedly forged contract for the sale of the property, he consulted an attorney, and commenced this action to cancel the deed and to set aside the conveyance. The Silver defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against them. The Supreme Court, inter alia, denied the Silver defendants' motion.

"A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid" (Cruz v Cruz, 37 AD3d 754, 754; see ABN AMRO Mtge. Group, Inc. v Stephens, 91 AD3d 801, 803; First Natl. Bank of Nev. v Williams, 74 AD3d 740, 742; GMAC Mtge. Corp. v Chan, 56 AD3d 521, 522). "If a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser or bona fide encumbrancer for value receives nothing" (ABN AMRO Mtge. Group, Inc. v Stephens, 91 AD3d at 803; see Marden v Dorthy, 160 NY 39, 48; Solar Line, Universal Great Bhd., Inc. v Prado, 100 AD3d 862, 863-864; First Natl. Bank of Nev. v Williams, 74 AD3d at 741).

Deeming the allegations in the complaint as true and affording the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88), the complaint adequately states a cause of action to cancel the deed and set aside the conveyance. Although the [*2]complaint purports to set forth additional causes of action for "violation of the statute of frauds," "violation of New York Real Property Law § 265," "fraud," "civil conspiracy to commit fraud," and "unjust enrichment," the complaint does not demand damages under these theories, and therefore, there is no reason to consider the legal viability of these theories.

Contrary to the Silver defendants' contention, they did not demonstrate that the doctrine of "unclean hands" bars the plaintiff from seeking equitable relief. A party seeking an equitable remedy must not have "unclean hands" (Kopsidas v Krokos, 294 AD2d 406, 407). The doctrine of unclean hands applies when the offending party "is guilty of immoral, unconscionable conduct" directly related to the subject matter in litigation and which conduct injured the party seeking to invoke the doctrine (Columbo v Columbo, 50 AD3d 617, 619 [internal quotation marks omitted]; see National Distillers & Chem. Corp. v Seyopp Corp., 17 NY2d 12, 15-16; Lucia v Goldman, 145 AD3d 767, 769; Jiles v Archer, 116 AD3d 664, 666; Jara v Strong Steel Door, Inc., 58 AD3d 600). Here, the complaint alleges that the plaintiff, a vulnerable and unsophisticated homeowner facing foreclosure, was the victim of a foreclosure rescue scam, from which he was trying to extricate himself. The documentary evidence submitted by the Silver defendants in support of their motion failed to conclusively establish that any agreement between the parties was illegal and unenforceable (see CPLR 3211[a][1]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). Moreover, the documentary evidence failed to conclusively establish that the Silver defendants were injured by the plaintiff's alleged participation in the scheme, as the Silver defendants received the deed to the plaintiff's property (see Jiles v Archer, 116 AD3d at 666)."

COURT OF APPEALS RULES ON CREDIT CARD "SURCHARGES"

EXPRESSIONS HAIR DESIGN, ET AL., Respondents, v. ERIC T. SCHNEIDERMAN, & ET AL., Appellants.,  2018 NY Slip Op 07037 ,No. 100. Court of Appeals of New York. Decided October 23, 2018:

"General Business Law (GBL) section 518 states: "No seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means." Few statutes have provoked such diverse interpretations. Our task is to answer a certified question from the United States Court of Appeals for the Second Circuit concerning the meaning of the statute: "Does a merchant comply with New York's General Business Law § 518 so long as the merchant posts the total dollars and cents price charged to credit-card users?" The parties agree that GBL § 518 permits differential pricing, in which a merchant offers discounts to customers who pay by cash, so that customers pay a higher price, for the same item, if they use a credit card, than they would if they paid cash. What the statute prohibits is a more difficult inquiry. For the reasons explained below, we answer the Second Circuit's question in the affirmative.

……..

Plaintiffs are five merchants who allege that they wish to engage in differential pricing and to inform customers of their practice by stating the cash price in dollars and cents and the credit card price as a percentage or dollars-and-cents amount, reflecting only the additional charge for credit card purchases and not the total dollars-and-cents price for such purchases. The point is best illustrated by examples. Plaintiffs wish to tell their customers, for example, that "a haircut costs $10.00, and if you pay with a credit card you will pay 3% extra" or "a haircut costs $10.00, and if you pay with a credit card you will pay an additional 30 cents."^[1] This practice, "listing one price and a separate surcharge amount," has been described as "a single-sticker regime" (Expressions Hair Design v Schneiderman, ___ US ___, ___, 137 S Ct 1144, 1151 [2017]) or a "single-sticker-price scheme" (Expressions Hair Design v Schneiderman, 877 F3d 99, 101 [2d Cir 2017]), and we refer to it similarly. The merchants have challenged GBL § 518 as a violation of their First Amendment rights, to the extent that it allows them to charge credit card users higher prices but prohibits them from describing the price difference as they wish.^[2]

………

[S}o long as the total dollars-and-cents price charged for credit card purchases is posted, nothing in GBL § 518 prohibits merchants from explaining the difference in price as a "surcharge" attributable to credit card transaction fees they must bear^[5] . Of course, once price is communicated in the manner required by GBL § 518, the merchant does not "impose a surcharge" within the meaning of the statute. However, imposing a surcharge (as defined by the statute) and using the word "surcharge" are two different things. There is nothing in the legislative history of GBL § 518 or of the federal statute on which it was based to suggest that a merchant could not use the word "surcharge" — or words such as "additional fee" or "extra cost" — to communicate to customers that the credit card price is higher than the cash price. By disclosing the total dollars-and-cents price charged to credit card users, a merchant complies with the statute. The process by which the merchant characterizes the higher amount is irrelevant to the statutory requirement. In short, merchants are free to call the price differential anything they wish without fear of prosecution under the statute.

VI.

For the above reasons, we conclude that a merchant complies with GBL § 518 if and only if the merchant posts the total dollars-and-cents price charged to credit card users. In that circumstance, consumers see the highest possible price they must pay for credit card use and the legislative concerns about luring or misleading customers by use of a low price available only for cash purchases are alleviated. To be clear, plaintiffs' proposed single-sticker pricing scheme — which does not express the total dollars-and-cents credit card price and instead requires consumers to engage in an arithmetical calculation, in order to figure it out — is prohibited by the statute."

DIVORCE DETERMINING AMOUNT AND DURATION OF MAINTENANCE

Gorman v Gorman, 2018 NY Slip Op 07104, Decided on October 24, 2018, Appellate Division, Second Department:

"The parties were married on May 16, 1987. During the marriage, the defendant, after having worked as a legal secretary for a period of time, quit the workforce to become a homemaker and to care for the parties' two children, who now are in their mid-to-late twenties, while the plaintiff worked in various capacities connected with the United States military, including defense contracting work that took him overseas to Iraq.

This action for a divorce and ancillary relief was commenced on August 2, 2011, after the plaintiff vacated the marital residence. Thereafter, the defendant moved for and was awarded pendente lite maintenance and child support, and she has had exclusive occupancy of the marital residence during the pendency of this action. While the Supreme Court awarded the defendant unallocated temporary maintenance and child support in the sum of $6,300 per month in May 2013, the plaintiff unilaterally decided to pay the defendant, as of February 2014, the sum of only $2,500 per month. A nonjury trial was held on the ancillary economic issues attendant to the divorce. By judgment of divorce dated December 14, 2016, which incorporated by reference the court's decision after trial dated April 5, 2016, the court, inter alia, determined issues of maintenance, equitable distribution, pendente lite support arrears, and the defendant's application for attorney's fees. The defendant appeals and the plaintiff cross-appeals from stated portions of the judgment.

The defendant contends that her maintenance award of $4,500 per month for eight years, commencing January 1, 2012, is inadequate both in duration and amount, arguing, inter alia, that the Supreme Court improperly found, in setting the award, that she was capable of earning $26,000 per year and directed that maintenance shall terminate upon the plaintiff's remarriage. The plaintiff contends that the award is excessive, arguing, inter alia, that the court improperly imputed income to him.

"The amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its unique facts" (Culen v Culen, 157 AD3d 926, 928; see Carroll v Carroll, 125 AD3d 710, 711). In cases, like this one, commenced prior to amendments to the Domestic Relations Law effective January 23, 2016 (see L 2015, ch 269, § 4), factors to be considered include "the standard of living of the parties, the income and property of the parties, the distribution of property, the duration of the marriage, the health of the parties, the present and future earning capacity of the parties, the ability of the party seeking maintenance to be self-supporting, the reduced or lost earning capacity of the party seeking maintenance, and the presence of children of the marriage in the respective homes of the parties" (Gordon v Gordon, 113 AD3d 654, 655; see Domestic Relations Law former § 236[B][6][a]).

Here, considering the relevant factors, including the ages of the parties, the long duration of the marriage and the extended absence of the defendant from the workforce, the distribution of the marital assets, the parties' respective past and future earning capacities, and the availability of retirement funds and pensions, the Supreme Court providently exercised its discretion in awarding the defendant durational, as opposed to lifetime, maintenance (see Hartog v Hartog, 85 NY2d 36, 50-51; Levitt v Levitt, 97 AD3d 543, 544; Siskind v Siskind, 89 AD3d 832, 833; Litvak v Litvak, 63 AD3d 691, 691-692). However, rather than providing for a durational limitation of eight years and subjecting that award to termination upon the plaintiff's remarriage, under the circumstances of this case, the maintenance award should continue until the earliest of the defendant's remarriage, her attainment of the age at which she becomes eligible for full Social Security benefits, or the death of either party (see Repetti v Repetti, 147 AD3d 1094; Carroll v [*3]Carroll, 125 AD3d 710; Giokas v Giokas, 73 AD3d 688).

We disagree with the determination of the Supreme Court to impute to the plaintiff an annual income of $151,192. It is undisputed that from 2008 through late 2013, the plaintiff was employed overseas in Iraq and, as a result of such employment, received a significantly augmented salary, enhanced overtime, and no-cost room and board. In December 2013, the plaintiff returned to the United States, taking up residence in Ohio, where he resides with his fiancée. As of the time of trial, the plaintiff was employed by the Department of Defense as a quality assurance inspector at a salary of $81,079 per year. The plaintiff did not submit a current statement of net worth. He acknowledged that his earnings are deposited into a joint checking account with his fiancée and that all of his monthly expenses are shared with his fiancée. The plaintiff also acknowledged that he regularly gambles, to the point that he has received free hotel accommodations, airfare, vacations (including a cruise), and other free or discounted items because of his frequent gambling. In 2013, he reported gambling winnings of $11,250 on his tax return. He acknowledged winning $1,800 over two days of gambling in September 2014.

Taking into account the plaintiff's lack of candor in his testimony as to his finances, his history of gambling winnings and related benefits, and his failure to submit a current net worth statement and disclose his living expenses (which he shares with his fiancée), it is appropriate to impute to the plaintiff additional income above his basic governmental salary (see Fenech v Fenech, 141 AD3d 683, 685-686). However, we disagree with the Supreme Court's determination as to the amount of income to be imputed to the plaintiff. The full amount of the enhanced income attributable to the plaintiff's employment in Iraq should not be imputed to him given that the plaintiff has returned from Iraq and no longer receives such heightened compensation. It would be unreasonable to expect that the plaintiff would remain in Iraq indefinitely. Under the circumstances presented, we find it appropriate to impute to the plaintiff an annual income of $100,000, which attributes to the plaintiff enhanced income from his gambling activities and reflects an adjustment for the savings that the plaintiff should obtain from sharing living expenses with his fiancée.

While we agree with the defendant that the Supreme Court should not have imputed income to her based on statistical information from the New York State Department of Labor that was not admitted in evidence at trial (see McAuliffe v McAuliffe, 70 AD3d 1129, 1132-1133), there was evidence, nonetheless, that the defendant had earned $15 per hour as a legal secretary during the early part of the marriage. Even though she has been out of the work force for an extended period of time and does not have a college degree, she is in good health and has a sufficient employment history to warrant the conclusion that she is capable of earning at least the sum of $26,000 annually, which is the amount of income imputed to her by the court.

Taking into account the parties' respective imputed incomes and all the factors to be considered in awarding maintenance, we determine that the amount of maintenance payable by the plaintiff to the defendant to be $2,750 per month, which sum shall be neither tax deductible by the plaintiff nor taxable to the defendant."

FORECLOSURE - RPAPL 1304 STRIKES AGAIN

Deutsche Bank Natl. Trust Co. v Heitner, 2018 NY Slip Op 07090, Decided on October 24, 2018, Appellate Division, Second Department"

"In November 2006, the defendant Walter Heitner, Jr. (hereinafter the defendant), and his wife, the defendant Gail Heitner (hereinafter together the Heitners), executed and delivered to New Century Mortgage Corporation (hereinafter New Century) a "balloon" note (hereinafter the note) in the sum of $450,000, which was secured by a mortgage on their home in Wantagh.

The plaintiff, New Century's successor in interest, commenced this action to foreclose the mortgage at the end of 2009. In May 2014, the defendant moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against him based upon lack of personal jurisdiction, lack of standing, failure to comply with the statutory notice requirements of RPAPL 1303 and 1304, and failure to negotiate in good faith pursuant to CPLR 3408(f). The Supreme Court denied his motion and the defendant appeals.

We disagree with the Supreme Court's determination to deny that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against him. Contrary to the court's determination, the defendant established his prima facie entitlement to judgment as a matter of law by submitting his own affidavit attesting that he had not received any notice pursuant to RPAPL 1304 (see U.S. Bank N.A. v Henry, 157 AD3d 839, 842; CitiMortgage, Inc. v Pappas, 147 AD3d 900, 902; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106). In opposition, the plaintiff submitted only a copy of the required notice, but failed to submit any evidence that the notice was mailed in the manner required by the statute. Specifically, the plaintiff did not submit "an affidavit of service, . . . proof of mailing by the post office, evincing [*2]that it properly served the defendant pursuant to RPAPL 1304 [by registered or certified mail and also by first-class mail to his last known address]" (CitiMortgage, Inc. v Pappas, 147 AD3d at 901 [citations omitted]), or "proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure" (Wells Fargo Bank, NA v Mandrin, 160 AD3d 1014). Thus, the plaintiff failed to demonstrate that it strictly complied with the requirements of RPAPL 1304, notwithstanding the label on the notice stating "Certified Article Number" and "Senders Record" and listing a 20-digit number on the top of the letter (see Bank of N.Y. Mellon v Zavolunov, 157 AD3d 754, 756; Citibank, N.A. v Wood, 150 AD3d 813, 814). Thus, since the plaintiff did not raise a triable issue of fact in opposition to the defendant's prima facie showing that the plaintiff failed to satisfy the condition precedent of proper service of RPAPL 1304 notice upon him, the court should have granted that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against him on that ground (see CitiMortgage, Inc. v Pappas, 147 AD3d at 902; Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 106)."

NEW RULES - SEXUAL HARASSMENT LEGISLATION PART 2

Effective July 11, 2018:

"CPLR 7515: Mandatory arbitration clauses; prohibited;

(a) Definitions. As used in this section:

1. The term "employer" shall have the same meaning as provided in subdivision five of section two hundred ninety-two of the executive law.

2. The term "prohibited clause" shall mean any clause or provision in any contract which requires as a condition of the enforcement of the contract or obtaining remedies under the contract that the parties submit to mandatory arbitration to resolve any allegation or claim of an unlawful discriminatory practice of sexual harassment.

3. The term "mandatory arbitration clause" shall mean a term or provision contained in a written contract which requires the parties to such contract to submit any matter thereafter arising under such contract to arbitration prior to the commencement of any legal action to enforce the provisions of such contract and which also further provides language to the effect that the facts found or determination made by the arbitrator or panel of arbitrators in its application to a party alleging an unlawful discriminatory practice based on sexual harassment shall be final and not subject to independent court review.

4. The term "arbitration" shall mean the use of a decision making forum conducted by an arbitrator or panel of arbitrators within the meaning and subject to the provisions of article seventy-five of the civil practice law and rules.

(b) (i) Prohibition. Except where inconsistent with federal law, no written contract, entered into on or after the effective date of this section shall contain a prohibited clause as defined in paragraph two of subdivision (a) of this section.

(ii) Exceptions. Nothing contained in this section shall be construed to impair or prohibit an employer from incorporating a non-prohibited clause or other mandatory arbitration provision within such contract, that the parties agree upon.

(iii) Mandatory arbitration clause null and void. Except where inconsistent with federal law, the provisions of such prohibited clause as defined in paragraph two of subdivision (a) of this section shall be null and void. The inclusion of such clause in a written contract shall not serve to impair the enforceability of any other provision of such contract.

(c) Where there is a conflict between any collective bargaining agreement and this section, such agreement shall be controlling."

NEW RULES - SEXUAL HARASSMENT LEGISLATION PART 1

Effective July 11, 2018:

"CPLR 5003-b Notwithstanding any other law to the contrary, for any claim or cause of action, whether arising under common law, equity, or any provision of law, the factual foundation for which involves sexual harassment, in resolving, by agreed judgment, stipulation, decree, agreement to settle, assurance of discontinuance or otherwise, no employer, its officer or employee shall have the authority to include or agree to include in such resolution any term or condition that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the plaintiff's preference. Any such term or condition must be provided to all parties, and the plaintiff shall have twenty-one days to consider such term or condition. If after twenty-one days such term or condition is the plaintiff's preference, such preference shall be memorialized in an agreement signed by all parties. For a period of at least seven days following the execution of such agreement, the plaintiff may revoke the agreement, and the agreement shall not become effective or be enforceable until such revocation period has expired."

DIVORCE - VOLUNTARY PAYMENTS AS CREDITS?

Stern v Stern, 2018 NY Slip Op 06959, Decided on October 17, 2018, Appellate Division, Second Department:

"The parties were married on August 4, 1980. The plaintiff commenced this action for a divorce and ancillary relief on May 26, 2006. On September 7, 2006, a preliminary conference was held. In a preliminary conference order entered September 11, 2006, the parties addressed pendente lite relief. At that time, the defendant was voluntarily making payments to support the plaintiff and the children of the marriage, as well as paying the expenses of the household. Thus, the preliminary conference order provided as to pendente lite relief: "Status quo to be maintained. No motion at this time." This statement was acknowledged by the parties and their respective counsel, and so-ordered by the Supreme Court. As a result, there was no separate order concerning spousal maintenance issued at that time.

During the matrimonial trial, the plaintiff made an application for emergency pendente lite relief. By order dated January 22, 2009, the Supreme Court directed the defendant to pay the plaintiff's car insurance and $200 per week as interim maintenance. The parties were divorced by a judgment of divorce entered April 16, 2010. The judgment of divorce provided, among other things, that the defendant would pay the plaintiff maintenance in certain sums retroactive to the date of the commencement of this action, May 26, 2006, and continuing until October 25, 2009. The judgment of divorce also provided that the defendant was entitled to credits against his maintenance obligation "for payments of pendente lite spousal maintenance actually made pursuant to Court Order." The defendant appealed from the judgment of divorce but withdrew the appeal.

By order to show cause dated July 7, 2014, the plaintiff moved pursuant to Domestic Relations Law § 244, inter alia, for a money judgment against the defendant for unpaid maintenance arrears totaling $353,400, plus prejudgment interest, after crediting payments made by the defendant under the order dated January 22, 2009. The defendant opposed the motion, arguing, among other things, that he was entitled to credits totaling $393,516.53 against his maintenance obligation. The Supreme Court, inter alia, granted those branches of the plaintiff's motion which were for a money judgment for unpaid maintenance arrears in the sum of $353,400 and for an award of prejudgment interest on that sum, retroactive to the date of default. The defendant appeals.

Voluntary payments made for the support and legal obligations of a spouse should be applied as a credit to the calculation of arrears owed by the payor spouse (see McKay v Groesbeck, 117 AD3d 810, 811; Heiny v Heiny, 74 AD3d 1284, 1288). When the payor spouse relieves the other spouse from paying obligations for which the other spouse would be responsible, such payments must be considered as satisfying, in whole or part, maintenance and/or child support (see McKay v Groesbeck, 117 AD3d at 811; Gillings v Gillings, 56 AD3d 424, 424-425). Here, the defendant is entitled to credits against his maintenance obligation as established in the judgment of divorce with regard to the plaintiff's share of such expenses such as mortgage, real estate taxes, and automobile insurance payments (see Spiegel-Porco v Porco, 127 AD3d 847, 848; Lauria v Lauria, 45 AD3d 535, 536; Graham v Graham, 277 AD2d 423, 424).

We disagree with the plaintiff's contention that the defendant's voluntary payments made pursuant to the preliminary conference order, which does not specifically enumerate the payments to be made, cannot qualify as "payments of pendente lite spousal maintenance actually made pursuant to Court Order." The preliminary conference order, as so-ordered by the Supreme Court, plainly contemplated that the defendant would continue to make voluntary payments for the benefit of the plaintiff and the parties' children. To deny the payor spouse a credit for payments made on account of the other spouse's expenses would not only be inequitable by providing a windfall for the benefitted spouse, but it would also discourage voluntary support payments during the pendency of matrimonial actions and likely cause a precipitous rise of pendente lite motion practice by nonmonied spouses. Just as a party who unnecessarily prolongs a matrimonial action should not be rewarded, common sense dictates that a party who avoids unnecessary motion practice and preserves assets and time by agreeing to voluntarily pay the expenses of the other party should not be punished by being denied appropriate credits therefor.

The amount of credit to which the defendant is entitled cannot be determined on this record. While some payments documented by the defendant appear to be for the benefit of the plaintiff only and could qualify for a credit against maintenance, others are plainly for the children, professional expenses, and other expenses which would not be within the ambit of expenses which the plaintiff would be responsible to pay out of the maintenance she receives. Thus, the matter must be remitted to the Supreme Court, Nassau County, for a hearing to determine which of the payments claimed by the defendant, if any, constitute appropriate credits against maintenance as provided in the judgment of divorce."

DIVORCE - NEW RULES

As noted by Matrimonial Committee of Nassau County Bar Association:

All attorneys and litigants filing emergency Orders to Show Cause should notify the Judge assigned to the case (if there is a Judge assigned already) AND the Matrimonial Clerk SIMULTANEOUSLY with the notice provided to opposing counsel.  You can copy the Judge and the Clerk on your 202 notice to opposing counsel.  The 202 notice should be faxed to the Matrimonial Clerk at 516-493-3475 and to the Judge assigned to the case.  If you are seeking relief related to custody or an Order of Protection, please note same in your notice."

A CONDEMNATION CASE

Matter of Haverstraw (AAA Electricians, Inc.), 2018 NY Slip Op 06921, Decided on October 17, 2018, Appellate Division, Second Department:

"In this condemnation proceeding, the condemnor, the Village of Haverstraw, offered to pay the claimant the sum of $2,596,150, as compensation for the taking of its real property. After a nonjury trial, the Supreme Court determined that the principal sum of $6,500,000 constituted just compensation for the taking, and this Court upheld that determination on a prior appeal (see Matter of Village of Haverstraw [AAA Electricians, Inc.], 114 AD3d 955). The claimant subsequently moved for an additional allowance pursuant to EDPL 701, and the Supreme Court granted the motion to the extent of awarding an additional allowance in the principal sum of $1,190,582.91.

EDPL 701 "assures that a condemnee receives a fair recovery by providing an opportunity for condemnees whose property has been substantially undervalued to recover the costs of litigation establishing the inadequacy of the condemnor's offer" (Hakes v State of New York, 81 NY2d 392, 397). "The statute requires two determinations: first, whether the award is substantially in excess of the amount of the condemnor's proof' and second, whether the court deems the award necessary for the condemnee to achieve just and adequate compensation'" (id. at 397, quoting EDPL 701). "Where both tests are satisfied, the court may award reasonable fees" (Hakes v State of New York, 81 NY2d at 397; see Matter of City of Long Beach v Sun NLF L.P., 146 AD3d 775, 777).

Here, the condemnation award was substantially in excess of the amount of the evidence submitted by the Village. Further, the Supreme Court providently exercised its discretion in determining that an additional allowance, including for "reasonable attorney, appraiser and engineer fees actually incurred," was necessary for the claimant to receive just and adequate compensation (EDPL 701; see generally Hakes v State of New York, 81 NY2d at 398). The sliding scale contingency fee charged by the claimant's attorneys as well as the experts' fees were reasonable in light of the Village's undervaluation of the property and the effort required to establish the inadequacy of its offer (see Matter of City of Long Beach v Sun NLF L.P., 146 AD3d at 778; Matter of New York Convention Ctr. Dev. Corp. [Recycling for Hous. Partnership], 234 AD2d 167; Matter of Hoffman v Town of Malta, 189 AD2d 968, 969). Moreover, although the trial court ultimately decided to value the property on a per-acre basis, rather than on the basis of how many residential housing units could be developed thereon, as urged by the claimant, the claimant's attorneys and experts' fees were nonetheless necessarily incurred to establish the highest and best use of the property and its market value on a per-acre basis (see Matter of City of Long Beach v Sun NLF L.P., 146 AD3d at 778). Accordingly, the court providently exercised its discretion in awarding an additional allowance in the principal sum of $1,190,582.91, representing costs, disbursements, and expenses "actually incurred" (EDPL 701)."

AWARDING ATTORNEY FEES IN CUSTODY HEARING

Matter of Yu Wei v Mathews, 2018 NY Slip Op 06922, Decided on October 17, 2018, Appellate Division, Second Department:

"The parties are the parents of one child. The mother commenced this proceeding seeking custody of the child. While the custody proceeding was pending, the parties were also litigating separate family offense and child support proceedings, as well as a partition action regarding their jointly owned home. The mother moved for an award of counsel fees in the amount of $60,000 in the custody proceeding. In an order dated December 7, 2017, the Supreme Court granted the mother's motion. Subsequently, the parties settled the custody proceeding. Thereafter, the father moved, inter alia, for leave to renew his opposition to the mother's motion for an award of counsel fees. Upon renewal, the Supreme Court adhered to its determination to award the mother counsel fees, but decreased the award from $60,000 to $30,000. The father appeals.

The court in a custody proceeding has the authority to award counsel fees when the circumstances warrant (see Family Ct Act § 651[b]; Domestic Relations Law § 237[b]; Matter of Tundis v Tundis, 155 AD3d 882, 883; Matter of Catto v Howell, 144 AD3d 1146, 1147). The award of reasonable counsel fees is a matter entrusted to the trial court's sound discretion (see Matter of Zaydenverg v Zaydenverg, 151 AD3d 871, 872, Matter of Feng Lucy Luo v Yang, 104 AD3d 852). Such an award "is to be based on the financial circumstances of the parties and the circumstances of the case as a whole, which may include the relative merit of the parties' positions, but should not be predicated solely on who won and who lost" (Matter of O'Neil v O'Neil, 193 AD2d 16, 20; see Matter of Tundis v Tundis, 155 AD3d at 883).

Here, upon renewal, the Supreme Court providently exercised its discretion in awarding the mother counsel fees, based on the court's interactions with the parties, the court's [*2]participation in the custody proceeding, and the court's determination that the father had unnecessarily prolonged the litigation of the custody proceeding (see Matter of Zaydenverg v Zaydenverg, 151 AD3d at 872; Matter of Tuglu v Crowley, 96 AD3d 862, 863).

However, the billing records and other evidence submitted by the mother in support of her motion were insufficient to demonstrate that the $30,000 in counsel fees the Supreme Court awarded upon renewal were all incurred in the context of the custody proceeding, and not the parties' separate family offense and child support proceedings pending before the court, or the partition action pending before a different court. Inasmuch as the court predicated its award of counsel fees upon the father's dilatory conduct in the custody proceeding alone, the court failed to justify awarding the mother counsel fees to the extent that the counsel fees were incurred in the separate family offense and child support proceedings. Moreover, the court was not empowered to award any fees that may have related to the partition action (see Family Ct Act § 651[b]; Domestic Relations Law § 237[b]; Zeitlin v Zeitlin, 250 AD2d 606).

Moreover, inasmuch as the father objected to the time and value of the mother's attorneys' claimed services, and there is no indication in the record that the father stipulated that an award of counsel fees could be made solely on the papers or otherwise was on notice that the court would adopt that procedure, the Supreme Court was required to hold an evidentiary hearing on this issue (see Tenaglia v Tenaglia, 134 AD3d 801, 803; O'Connor v O'Connor, 89 AD3d 703, 704; Pfluger v Pfluger, 35 AD3d 828, 828-829; cf. Messinger v Messinger, 24 AD3d 631; Sieratzki v Sieratzki, 8 AD3d 552). Contrary to the mother's contention, this is not an issue that requires preservation (see O'Connor v O'Connor, 89 AD3d at 704; Pfluger v Pfluger, 35 AD3d at 828-829).

Accordingly, we remit the matter to the Supreme Court, Westchester County, for a hearing and determination on the issues of the amount of counsel fees the mother incurred in the custody proceeding that were outstanding at the time of her original motion for counsel fees and the extent and value of her attorneys' services (see Tenaglia v Tenaglia, 134 AD3d at 803; O'Connor v O'Connor, 89 AD3d at 704; Mattana v Mattana, 79 AD2d 702; Zeitlin v Zeitlin, 250 AD2d at 607)."

TONIGHT - PRESENTATION AT CHAMBER MEETING

DIVORCE - IS DELAY OF SALE OF MARITAL RESIDENCE A WAIVER

Kelly v Kelly, 2018 NY Slip Op 06726, Decided on October 10, 2018, Appellate Division, Second Department:

"Contrary to the plaintiff's contention, the defendant's delay in seeking to enforce her rights under the provisions of the parties' judgment of divorce pertaining to the disposition of the marital residence did not constitute a waiver. "Although a spouse may waive his or her rights under a judgment of divorce, [a] waiver must be an intentional relinquishment of a known legal right and will not be inferred from mere silence or inaction" (Andrews v Dolan, 158 AD2d 569, 570 [citation and internal quotation marks omitted]; see Cervera v Bressler, 85 AD3d 839, 842; Chapin v Chapin, 295 AD2d 389, 391).

We reject the plaintiff's contention that language in the judgment of divorce providing that the marital residence "should" be immediately listed for sale indicates that the Supreme Court merely suggested that the residence be sold or, in effect, made such sale optional. The judgment also provides that the property be listed "immediately," that the defendant "is entitled to" 25% of the equity in the house, and that the parties "shall cooperate" in effectuating the sale, which unambiguously express the court's directive that the marital residence be sold and the proceeds distributed to the parties (see Myers v Myers, 242 AD2d 372, 373). Therefore, the only reasonable construction of the judgment of divorce is that the marital residence was to be immediately sold (see Levy-Sitomer v Sitomer, 126 AD3d 511; Matter of Labrovic v Labrovic, 278 AD2d 419; Pottala v Pottala, 261 AD2d 806; Matter of Christodoulou v Christodoulou, 212 AD2d 607).

Accordingly, we agree with the Supreme Court's determination granting that branch of the defendant's motion which was to enforce the provisions of the judgment of divorce pertaining to the disposition of the marital residence."

MOTOR VEHICLE ACCIDENTS - THEGRAVES AMENDMENT

Casine v Wesner, 2018 NY Slip Op 06714, Decided on October 10, 2018, Appellate Division, Second Department:

"The plaintiff was involved in a vehicular collision with an automobile operated by the defendant Paul Wesner and owned by the defendant BAMA Commercial Leasing (hereinafter BCL). The plaintiff subsequently commenced this action to recover damages for his injuries, alleging, inter alia, that the defendants were negligent in their operation, ownership, and maintenance of the BCL vehicle. Following joinder of issue, and before discovery was conducted, the defendants moved for summary judgment dismissing the complaint insofar as asserted against BCL, relying on the bar against vicarious liability for commercial lessors of vehicles set forth in 49 USC § 30106 (hereinafter the Graves Amendment). The Supreme Court denied the motion, and the defendants appeal. We affirm.

Under the Graves Amendment, the owner of a leased vehicle will not be held vicariously liable for the negligent operation of that vehicle where the owner proves that it is engaged in the business of renting or leasing motor vehicles and it was not otherwise negligent (see Gluck v Nebgen, 72 AD3d 1023; Graham v Dunkley, 50 AD3d 55). However, "[t]he Graves Amendment does not apply where, as here, a plaintiff seeks to hold a vehicle owner liable for the alleged failure to maintain a rented vehicle" (Olmann v Neil, 132 AD3d 744, 745; see Terranova v Waheed Brokerage, Inc., 78 AD3d 1040, 1041; Collazo v MTA-New York City Tr., 74 AD3d 642, 643). Accordingly, in order to establish its prima facie entitlement to judgment as a matter of law in this action, BCL was required to prove not only that it is in the business of leasing vehicles, but also, that it did not negligently maintain the BCL vehicle (see e.g. Pacelli v Intruck Leasing Corp., 128 AD3d 921, 925; Ballatore v HUB Truck Rental Corp., 83 AD3d 978, 979-980; see generally Antoine v Kalandrishvili, 150 AD3d 941, 942; Khan v MMCA Lease, Ltd., 100 AD3d 833, 834).

BCL failed to sustain its prima facie burden, since the affidavit of its litigation specialist failed to address the plaintiff's negligent maintenance theory of liability, and the copy of the lease documents it submitted stated that Wesner was obligated to have the subject vehicle serviced "by a BCL partner dealer" according to a service schedule established by BCL. Accordingly, in the absence of a showing that BCL did not negligently maintain the vehicle, the motion for summary judgment dismissing the complaint insofar as asserted against BCL was properly denied (see Olmann v Neil, 132 AD3d at 746; see generally Anglero v Hanif, 140 AD3d 905), regardless of the sufficiency of the papers submitted in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853)."

A FIGHT OVER THE SALE OF A HOME

Brisk v Bloch, 2018 NY Slip Op 06712, Decided on October 10, 2018, Appellate Division, Second Department:

"The plaintiff and the defendant owned residential property across the street from each other in Brooklyn. In March 2012, they entered into two contracts, one for each property, in which the plaintiff agreed to pay the defendant $649,990 for the defendant's home, and the defendant agreed to pay the plaintiff $499,990 for the plaintiff's home. The transactions were contingent on the defendant obtaining a mortgage within 60 days of the execution of the contracts. If the defendant were unable to do so, she was permitted to cancel the contracts in writing within five business days after the deadline for obtaining a mortgage. The defendant's applications for a mortgage were denied and her attorney sent a letter dated July 18, 2012, to the plaintiff's attorney cancelling the contracts. Neither the plaintiff nor her attorney responded in writing. In November 2012, the defendant's attorney sent a letter to the plaintiff's attorney with a check for the reimbursement of title search expenses, which was required upon termination of the contracts. Neither the plaintiff nor her attorney objected.

Thereafter, in early 2013, both parties listed their properties for sale with the same real estate broker, and the defendant received an offer to purchase her property from a third party. In April 2013, the plaintiff sent the broker an offer to buy the defendant's house for $1,335,000. In May 2013, the plaintiff sent a letter to the defendant stating that she still had a contract on the defendant's home which was in full force and effect. In June 2013, the defendant entered into a contract of sale with the third-party buyer. The plaintiff then commenced this action seeking specific [*2]performance and damages for breach of contract, and filed a notice of pendency against the defendant's property. The defendant answered the complaint and asserted counterclaims for, inter alia, an award of attorneys' fees.

The plaintiff moved for summary judgment on her cause of action for specific performance, which the Supreme Court denied. Thereafter, following a nonjury trial, the court found that the plaintiff's conduct after receiving the defendant's letter of cancellation indicated that she accepted the defendant's termination of the contracts. The court rendered judgment in the defendant's favor and struck the notice of pendency. The court also dismissed the defendant's counterclaim for an award of attorneys' fees.

We agree with the Supreme Court's denial of the plaintiff's motion for summary judgment on her cause of action for specific performance, which is brought up for review on this appeal from the judgment (see CPLR 5501[a][1]). The plaintiff failed to meet her prima facie burden of demonstrating that "she was ready, willing, and able to perform . . . her obligations under the contract, regardless of any alleged anticipatory breach by the defendant" (Aliperti v Laurel Links, Ltd., 27 AD3d 675, 676; see Internet Homes, Inc. v Vitulli, 8 AD3d 438, 439).

" In reviewing a determination made after a nonjury trial, this Court's power is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing and hearing the witnesses'" (BNG Props., LLC v Sanborn, 153 AD3d 1221, 1221-1222, quoting BRK Props., Inc. v Wagner Ziv Plumbing & Heating Corp., 89 AD3d 883, 884; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499). "Where the trial court's findings of fact rest in large measure on considerations relating to the credibility of witnesses, deference is owed to the trial court's credibility determinations" (Bennett v Atomic Prods. Corp., 132 AD3d 928, 930; see BNG Props., LLC v Sanborn, 153 AD3d at 1222; Neiss v Fried, 127 AD3d 1044, 1046).

Here, we agree with the Supreme Court's determination that the plaintiff accepted the defendant's termination of the contracts. The credible evidence adduced at trial established that neither the plaintiff nor her attorney objected to the termination, the plaintiff later placed her property on the market, and she made an offer to purchase the defendant's property for more than double the purchase price set forth in the parties' contracts. The first time the plaintiff took steps to enforce her rights under the contract was after such conduct and nearly one year after the defendant's letter of cancellation. The plaintiff's conduct evinces an intent to abandon the contracts (see Savitsky v Sukenik, 240 AD2d 557, 559; Jones v Trice, 202 AD2d 394, 395). Accordingly, the complaint was properly dismissed and judgment rendered in the defendant's favor.

We agree with the Supreme Court's determination to dismiss the defendant's counterclaim for an award of attorneys' fees. A promise to pay attorneys' fees to the prevailing party cannot be clearly implied from the language of the contracts (see Hooper Assoc. v AGS Computers, 74 NY2d 487, 492; Goldman v Citicore I, LLC, 149 AD3d 1042, 1045-1046; 214 Wall St. Assoc., LLC v Medical Arts-Huntington Realty, 99 AD3d 988, 990)."

ADVERSE POSSESSION - TEN YEARS

168-170 Flushing Ave, LLC v February 22, LLC, 2018 NY Slip Op 06710, Decided on October 10, 2018, Appellate Division, Second Department:

"The plaintiff and the defendant Febrauary 22, LLC (hereinafter the defendant), own adjoining real property in Brooklyn. The plaintiff acquired its property, which had been developed as a gas station and automobile repair shop, in 2002. In 2013, shortly after acquiring its property, the defendant demanded that the plaintiff remove a portion of the automobile repair shop garage and driveway which encroached upon a triangular strip of the defendant's lot. Thereafter, the plaintiff commenced this action pursuant to RPAPL article 15 to be awarded title to the disputed strip as a result of adverse possession. Following discovery, the plaintiff moved for summary judgment. The Supreme Court, inter alia, granted that branch of the plaintiff's motion which was for summary judgment awarding it title as a result of the plaintiff's adverse possession to that portion of the disputed strip that is encroached by the automobile repair shop garage. The defendant appeals from that portion of the order.

In order to establish adverse possession, the plaintiff was required to demonstrate, by clear and convincing evidence, that its possession has "been adverse, under claim of right, open and notorious, continuous, exclusive and actual" for a period of 10 years (RPAPL 501[2]; see CPLR 212[a]; Reyes v Carroll, 137 AD3d 886, 888; Hartman v Goldman, 84 AD3d 734, 735). The plaintiff satisfied this burden with respect to that portion of the disputed strip that is encroached by the automobile repair shop garage, which is a substantial enclosure (see RPAPL 522[2]). The evidence submitted in support of the motion demonstrated that the garage had been erected prior to the plaintiff's acquiring title to the property, the automobile repair shop had been in continuous operation throughout the plaintiff's 10 years of ownership, and its use of the garage was exclusive (see e.g. Guardino v Colangelo, 262 AD2d 777, 778; Nazarian v Pascale, 225 AD2d 381, 383; [*2]Franzen v Cassarino, 159 AD2d 950, 951; Sinicropi v Town of Indian Lake, 148 AD2d 799, 800). In opposition, the defendant failed to raise a triable issue of fact (see Estate of Clanton v City of New York, 153 AD3d 787, 789)."

NEW RULES - TRIAL SUBPOENA

BILL NUMBER:  S4867 - Aug 24, 2018 signed chap.218

 TITLE OF BILL :  An act to amend the civil practice law and rules, in
relation to a subpoena of records for trial

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Civil Practice.

Our Advisory Committee has studied the procedures by which records
intended for use at trial are produced pursuant to a subpoena duces
tecum; and is of the view that counsel should have the option of
having trial material delivered to the attorney or self-represented
party at the return address set forth in the subpoena, rather than to
the clerk of the court. This is especially true where the materials
are in digital format and can be delivered on a disk or through other
electronic means.

In this measure, CPLR 2305 would be amended to add a new subdivision
(d) providing that where a trial subpoena directs service of the
subpoenaed documents to the attorney or self-represented party at the
return address set forth in the subpoena, a copy of the subpoena shall
be served upon all parties simultaneously and the party receiving such
subpoenaed records, in any format, shall deliver a complete copy of
such records in the same format to all opposing counsel and
self-represented parties where applicable, forthwith.

This measure, which would have no fiscal impact, would be effective
immediately and apply to all actions pending on or after such
effective date.

 2015-2016 LEGISLATIVE HISTORY :

Senate 5621 (Sen. Bonacic) (committed to Rules)
Assembly 7057 (M. of A. Titone) (PASSED)

FORECLOSURE - STATUTE OF LIMITATIONS DEFENSE UPHELD

This was the work of Staten Island Legal Services on behalf of the homeowner. I note that in asserting the affirmative defense of statute of limitations, the homeowner also counterclaimed, inter alia, to cancel and discharge the mortgage pursuant to RPAPL 1501(4) and for an award of attorneys' fees and expenses pursuant to Real Property Law § 282.

21st Mtge. Corp. v Nweke, 2018 NY Slip Op 06509, Decided on October 3, 2018, Appellate Division, Second Department:

"In July 1999, the defendant Magdalene Nweke (hereinafter the defendant) obtained a loan from Ameriquest Mortgage Company (hereinafter Ameriquest), which was secured by a mortgage on her real property in Staten Island. The defendant defaulted on her mortgage payments, and on April 6, 2006, Ameriquest commenced an action to foreclose the mortgage (hereinafter the 2006 foreclosure action). Following a traverse hearing, a Judicial Hearing Officer determined that the defendant was not properly served with the summons and complaint. The parties subsequently [*2]entered into a stipulation discontinuing the 2006 foreclosure action.

On September 17, 2007, Ameriquest commenced a second foreclosure action (hereinafter the 2007 foreclosure action), which, upon Ameriquest's motion, was discontinued by order dated January 24, 2013. After a series of assignments, the note and the mortgage were transferred by assignment to the plaintiff. In March 2014, the plaintiff moved, inter alia, to vacate the order discontinuing the 2007 foreclosure action and to restore that action to the active calendar. Thereafter, in April 2014, the plaintiff, without explanation, withdrew its motion to restore.

In September 2014, the plaintiff commenced this action to foreclose the mortgage. In her answer, the defendant asserted six affirmative defenses, including the statute of limitations, as well as counterclaims, inter alia, to cancel and discharge the mortgage pursuant to RPAPL 1501(4) and for an award of attorneys' fees and expenses pursuant to Real Property Law § 282. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant. The defendant cross-moved for summary judgment dismissing the complaint insofar as asserted against her as time-barred and for summary judgment on her counterclaims to cancel and discharge the mortgage pursuant to RPAPL 1501(4) and for an award of attorneys' fees and expenses pursuant to Real Property Law § 282.

In an order dated September 11, 2015, the Supreme Court denied the plaintiff's motion and granted that branch of the defendant's cross motion which was for summary judgment dismissing the complaint as barred by the applicable statute of limitations. The court denied the remainder of the defendant's cross motion and, sua sponte, imposed an equitable mortgage on the subject premises in favor of the plaintiff. The defendant appeals.

An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4]; NMNT Realty Corp. v Knoxville 2012 Trust, 151 AD3d 1068, 1069). " [E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt'" (Kashipour v Wilmington Sav. Fund Socy., FSB, 144 AD3d 985, 986, quoting EMC Mtge. Corp. v Patella, 279 AD2d 604, 605; see Lubonty v U.S. Bank N.A., 159 AD3d 962, lv granted _____ NY3d _____, 2018 NY Slip Op 083111 [2018]).
RPAPL 1501(4) provides that "[w]here the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage . . . has expired," any person with an estate or interest in the property may maintain an action "to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom" (see Mizrahi v US Bank, N.A., 156 AD3d 617, 618).

Here, the defendant established her prima facie entitlement to judgment as a matter of law on her counterclaim pursuant to RPAPL 1501(4) to cancel and discharge the mortgage by demonstrating that more than six years had passed since the mortgage was accelerated and therefore this foreclosure action was time-barred (see NMNT Realty Corp. v Knoxville 2012 Trust, 151 AD3d at 1070; Kashipour v Wilmington Sav. Fund Socy., FSB, 144 AD3d at 986). The plaintiff did not raise a triable issue of fact in opposition (see JBR Constr. Corp. v Staples, 71 AD3d 952, 953; LePore v Shaheen, 32 AD3d 1330, 1331). Thus, the Supreme Court should have granted that branch of the defendant's cross motion which was for summary judgment on her counterclaim pursuant to RPAPL 1501(4) to cancel and discharge the mortgage (see CPLR 213[4]; RPAPL 1501[4]; JBR Constr. Corp. v Staples, 71 AD3d at 953; LePore v Shaheen, 32 AD3d at 1331).

We disagree with the Supreme Court's determination to impose an equitable mortgage in favor of the plaintiff. The plaintiff never requested this relief, and the defendant was not afforded any notice nor an opportunity to be heard on this issue which amounted to a denial of the defendant's due process rights (see Chase Home Fin., LLC v Kornitzer, 139 AD3d 784, 785; Wachovia Mtge., FSB v Josef, 137 AD3d 1012, 1014). In any event, the doctrine of equitable mortgage is inapplicable to the circumstances of this case, where a legal written mortgage existed (see Payne v Wilson, 74 NY 348, 351; Allen v Union Fed. Mtge. Corp., 204 F Supp 2d 543, 546 [ED [*3]NY]).

The Supreme Court also should have granted that branch of the defendant's cross motion which was for summary judgment on her counterclaim for an award of attorneys' fees and expenses pursuant to Real Property Law § 282 since she was the prevailing party (see DKR Mtge. Asset Trust 1 v Rivera, 130 AD3d 774; 640 Broadway Renaissance Co. v Rossiter, 256 AD2d 568, 569)."

CHILD CUSTODY - PARENTAL ALIENATION LEADS TO CHANGE

Although in this case, where the alleged acts of parental alienation are not specified but must have been severe, this case is a reminder that co-parenting, though it may be difficult, must be performed if existing custody arrangements are to remain.

E.V. v R.V., 2018 NY Slip Op 06589, Decided on October 3, 2018, Appellate Division, Second Department:

"In this postjudgment matrimonial litigation, the plaintiff is the mother, and the defendant is the father, of the subject child. In an order dated July 2, 2014, the Supreme Court granted that branch of the father's cross motion which was to modify prior orders of custody and visitation incorporated into the parties' judgment of divorce so as to award him sole legal and physical custody of the child. That order was reversed on appeal, and the matter was remitted to the Supreme Court, Westchester County, for an updated forensic mental health evaluation and reopened hearing, an in camera examination of the child, and a new determination thereafter (see E.V. v R.V., 130 AD3d 920).

Upon remittitur, the court-appointed forensic evaluator performed a new evaluation and submitted an updated forensic mental health report (hereinafter the updated report). The mother then moved, inter alia, to strike the updated report or, in the alternative, for leave to cross-examine the forensic evaluator regarding the updated report. In an order dated February 26, 2016, the Supreme Court denied the motion. In an order dated February 29, 2016, the court granted that branch of the father's cross motion which was to modify the prior orders of custody and visitation so as to award him sole legal and physical custody of the child. The mother appealed from the order dated February 26, 2016, and the mother and the child appealed from the order dated February 29, 2016.

On appeal, this Court modified the February 26, 2016, order and held in abeyance the appeal from the order dated February 29, 2016, to give the mother an opportunity to cross-examine the forensic evaluator with respect to the updated report (see E.V. v R.V., 153 AD3d 580). The Supreme Court was directed to file a report setting forth its findings derived from the cross-examination and setting forth whether the testimony received would have changed its determination. The Supreme Court has filed its report, setting forth its findings and reaffirming its determination in the February 29, 2016, order that the father should have sole legal and physical custody of the child.

Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the best interests of the child (see Matter of Sidorowicz v Sidorowicz, 101 AD3d 737; Matter of Englese v Strauss, 83 AD3d 705; Matter of Said v Said, 61 AD3d 879). Parental alienation of a child from the other parent, including willful interference with his or her visitation rights, is "an act 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 custodial parent" (Entwistle v Entwistle, 61 AD2d 380, 384-385; see Matter of Lawlor v Eder, 106 AD3d 739; Matter of Doroski v Ashton, 99 AD3d 902). As custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, the Supreme Court's determination should not be disturbed unless it lacks a sound and substantial basis in the record (see Eschbach v Eschbach, 56 NY2d 167, 173-174; Matter of Doroski v Ashton, 99 AD3d at 903).

Here, the Supreme Court's determinations that there had been a change in circumstances, and that a transfer of sole legal and physical custody to the father would be in the child's best interests, has a sound and substantial basis in the record and, thus, will not be disturbed (see Eschbach v Eschbach, 56 NY2d at 171; Matter of Lawlor v Eder, 106 AD3d at 740; Matter of Doroski v Ashton, 99 AD3d at 903; cf. Matter of Martinez v Hyatt, 86 AD3d 571). The evidence presented at the hearing established, inter alia, that the mother acted to alienate the child from the father and that the father was more willing than the mother to assure meaningful contact between the child and the other parent (see Musachio v Musachio, 137 AD3d 881, 883; see also Matter of Martinez v Hyatt, 86 AD3d 571; Matter of Tori v Tori, 67 AD3d 1021). Further, the court's determination is supported by the recommendation of the court-appointed forensic evaluator, which, while not determinative, is entitled to some weight (see Matter of Shannon J. v Aaron P., 111 AD3d 829, 831; Baker v Baker, 66 AD3d 722, 723-724)".