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POST DIVORCE CHILD CUSTODY - PARENTAL ALIENATION

This case is worth a read. It is a post divorce custody matter involving the testimony of 4 experts. I only post the scholarly discussion on parental alienation.

J.F. v. D.F., NYLJ 12/27/18, Date filed: 2018-12-06, Court: Supreme Court, Monroe County, Judge: Justice Richard Dollinger, Case Number: 2012/01795:

"The Law of Parental Alienation in New York

Against this broad canvass of conflicting emotions among parents and children, this court acknowledges that the New York courts have accepted the notion of parental alienation as a factor in determining whether a change in circumstances exists. The judicial refrain is unmistakable: a concerted effort by one parent to interfere with the other parent’s contact with the child is so inimical to the best interests of the child, that it, per se, raises a strong probability that the interfering parent is unfit to act as a custodial parent. Matter of Avdic v. Avdic, 125 AD3rd 1534 (4th Dept 2015) (the court’s determination that the mother had engaged in parental alienation behavior raised a strong probability she is unfit to act as a custodial parent).6 The acknowledgment of this concept requires a more demanding definition than just the “unjustified frustration of the non-custodial parent’s access.”7 Vargas v. Gutierrez, 155 AD3rd 751, 753 (2nd Dept 2017). Parental alienation as a basis to alter parenting access is a relatively new concept in family law. The term was first coined in 1985 by a researcher who recorded impressions involving false allegations of child sexual abuse.8 These initial observations led to development of the still-controversial Parental Alienation Syndrome, a form of psychological, but non-sexual abuse. Id.9 When first articulated in New York, the concept was linked to a parent “programming” a child to make claims of sexual abuse. Karen B. v. Clyde M., 151 Misc2nd 794 (Fam. Ct. Fulton Cty 1991), affd sub nom Karen PP v. Clyde QQ, 197 AD2nd 753 (the trial court concluded that a parent was unfit by casting the false aspersion of child sex abuse and involving the child as an instrument to achieve his or her selfish purpose).10 Less than a decade later, a New York court found alienation without allegations of sexual abuse, but there was overwhelming evidence that one parent had virtually brainwashed the children:

In the instant case, the children do not want to visit with their father. With the passage of time, these children have become “staunch corroborators” of their mother’s ill opinion of the father. They call their father names, they make fun of his personal appearance, they treat him as though he were incompetent, and they speak of and treat his mother similarly…The mother’s view of the father has been completely adopted by the children and she has done nothing to promote their relationship with him. J.F. v. L.F., 181 Misc2nd 722 (Fam. Ct. Westchester Cty 1999). As the concept worked into New York law, the courts, without evidence of physical abuse or false reports of sexual abuse, required proof that a party “intentionally” engaged in conduct for the “sole purpose” of alienating the child. Smith v. Bombard, 294 AD2nd 673 (3rd Dept 2002). Trial courts held that occasional adverse statements, even made in the presence of children, and the occasional failure to communicate about scheduling treatment sessions, while deplorable behavior calculated to antagonize the other parent, did not countenance a finding of change of circumstances sufficient to change custody. F. D. v. P. D., 2003 NYLJ LEXIS 2057 (Sup. .Ct. Nassau Cty 2003) (both parties in this matter agree that there has been no interference with visitation). With respect to statements alleging abuse of the child, the court added:

This court finds that [the therapist] testified credibly and truthfully, and that in fact the Mother’s statements [regarding alleged abuse by the father] were made while the child was present. While this court does not countenance the Mother’s statements and deplores them, the statements on the several occasions testified to, did not result in any alienation of the child.

Id. at 9.The court concluded:

In this matter, although the Mother’s statements to [the therapist], in front of the child, are not to be countenanced and are never to occur again, nevertheless the court does not find that the Father has met his burden of proof with respect to change of circumstances. Regardless of the unfortunate statements by the Mother, the visitation with the Father has been unhampered, and in fact, the Father has had additional visitation in excess of that provided by the current so-ordered stipulation. The child further loves his Father very much, despite the Mother’s negative comments and apparent attempts to alienate the child on the several occasions the Mother made certain statements to [the therapist] in the presence of the child.

Id. at 11. While the court rejected a finding of parental alienation, the trend to allege alienation based on a pattern of intentional conduct involving statements and derogatory comments took hold in New York. The Family Court in Whitley v. Leonard, 5 AD3rd 825 (3rd Dept 2004) found alienation when a parent encouraged a child to negotiate changes in visitation directly with the father, denied the father an opportunity for visitation while she was away on vacation, failed to communicate with the father concerning the child’s problems at school, discussed court proceedings with the child, and promised the child that he would be returned to her custody. In addition, courts began to summarize parental alienation as a form of “brainwashing” of the child. Jennifer H. v. Paul F., 6 Misc3rd 1013 (A) (Fam. Ct. Suffolk Cty 2004). Throughout this process, the courts, as a sine qua non, have insisted on a finding of an actionable refusal or failure by the children to visit the targeted parent. Duzant-Forlenza v. Wade, 2009 NY Misc. LEXIS 6688 (Fam. Ct. Westchester Cty 2009).

One other precedent attracts interest because it was the basis for the court to admit testimony from the experts during the hearing. In Mastrangelo v. Mastrangelo, 2017 Conn. Super. LEXIS 226 (Sup. Ct. 2017), a Connecticut court held that even though the children were not seeing their father, the father’s conduct in seeking to establish parental alienation was not proven and what emerged was “a picture of two parents constantly in court over issues involving the children.” The court in Mastrangelo said that pursuing the alienation claim was part of the father’s “efforts to take the mother down.” In that case, three of the experts who testified here, also testified on behalf of the father in Connecticut. In addition, the “rejection” alleged by the father in Mastrangelo was complete in that the children were not seeing their father; a fact in stark contrast to the more-then-equal access that the father has in this instance. The decision in Mastrangelo, while not controlling, is instructive on several fronts. It demonstrates that alienation can be a two-way street. Excessive litigation based on a flimsy theory can be as alienating as any other strategy. The presence of the same three experts here — at a substantial cost by the father — suggests to the court that the parental alienation theory is a new tool in the “para-psychology-in-the-courtroom complex,” as part of a strategy to upend negotiated parenting agreements by the more aggressive and more moneyed spouse. Finally, in Mastrangelo concludes that even if there is proof “rejection” (lack of access by a parent), that fact alone does not lead to the conclusion of alienation.11 In this case, as noted throughout the opinion, there is no evidence of lack of access for this father to his children.

Other New York courts have expressed equal skepticism over the scientific validity of “parental alienation.” Matter of Montoya v. Davis, 156 AD3rd 132, 136 n.5 (3rd Dept 2017) (the appeal was concerned about the forensic evaluator having been deemed an expert in “parental alienation,” which is not a diagnosis included in the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders and further noted that, in the criminal context, “parental alienation syndrome” has been rejected as not being generally accepted in the scientific community, citing People v. Fortin).12 Another New York court used a descriptive method to reference parental alienation:

Parental alienation has been described as the programming of the child/children by one parent, into a campaign of denigration against the other. The second component is the child’s own contributions that dovetail and complement the contributions of the programming parent. It is this combination of both factors that define the term parental alienation.

P.M. v. S.M., 17 Misc3rd 1122 (A) (Sup. Ct. Nassau Cty 2007); Zafran v. Zafran, 191 Misc2nd 60 (Sup. Ct. Nassau Cty 2002). See also Seetaram R. v. Pushpawattie M., 2018 NYLJ LEXIS 2069 (Fam. Ct. Queens Cty 2018) (parental alienation is where a custodial parent actively interferes with, or deliberately and unjustifiably frustrates, the non-custodial parent’s right of reasonable access).

Amidst the swirl of these increasingly more frequent cases, the concept of parental alienation remains controversial, both in psychological studies and the courts. In a widely-quoted study, a California law professor in 2001 commented: PAS as developed and purveyed by Richard Gardner has neither a logical nor a scientific basis. It is rejected by responsible social scientists and lacks solid grounding in psychological theory or research. PA, although more refined in its understanding of child-parent difficulties, entails intrusive, coercive, unsubstantiated remedies of its own. Lawyers, judges, and mental health professionals who deal with child custody issues should think carefully and respond judiciously when claims based on either theory are advanced. Although the use of expert testimony is often useful, decision-makers need to do their homework rather than rely uncritically on experts’ views. This is particularly true in fields such as psychology and psychiatry, where even experts have a wide range of differing views and professionals, whether by accident or design, sometimes offer opinions beyond their expertise. Lawyers and judges are trained to ask the hard questions, and that skill should be employed here. Burch, Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases, 35 Family Law Quarterly 527, p.33 (2001). Another judge intoned in a Maryland family dispute:

I write separately to state my view that I consider the diagnoses of “parental alienation” or “parental alienation syndrome” (which, quite evidently, are the basis for Father’s appeal) to be based on novel scientific theories. Prior to admissibility, testimony on these subjects must be subjected to a Reed/Frye hearing to prove that such diagnoses are generally accepted in the relevant scientific community, a conclusion about which I have significant doubt. See Smith, Parental Alienation Syndrome: Fact or Fiction? The Problem with Its Use in Child Custody Cases, 11 U. Mass. L. Rev. 64 (2016) (collecting cases denying admissibility of diagnoses of parental alienation syndrome); Burch, Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases, 35 Fam. L.Q. 527, 539 (2001-2002) (quoting Dr. Paul J. Fink, past president of the American Psychiatric Association: “[Parental Alienation Syndrome] as a scientific theory has been excoriated by legitimate researchers across the nation. Judged solely on [its] merits, [Parental Alienation Syndrome] should be a rather pathetic footnote or an example of poor scientific standards.”). Unless and until that happens, however, I would caution courts, lawyers, expert witnesses, and litigants not to use the terms “parental alienation” or “parental alienation syndrome” casually, informally, or as if they have a medically or psychologically diagnostic meaning that has not been established. Gillespie v. Gillespie, 2016 Md. App. LEXIS 1366, p.36 (Ct. Sp. App. Md. 2016) (Freidman, J., concurring).13 Despite these judicial misgivings expressed by others, there is no doubt that parental alienation exists.14 As one commentator noted:

Although PAS has generated much controversy in both the mental health and legal fields, there is little doubt that parental alienation exists, and has existed, for years. See, e.g., Fidler & Bala, Article: Children Resisting Postseparation Contact with a Parent: Concepts, Controversies, and Conundrums, 48 Fam. Ct. Rev. 10, n. 12 (2010) (noting that parental alienation “is not a new phenomenon”)…Young, Parent Trap, Parental Alienation Cases divide Scholars, Boise Weekly, January 2007 (“Whether or not a psychological ‘syndrome’ exists, parental alienation clearly does.”). As a news reporter glibly claimed, “Anybody old enough to drink coffee knows that embittered parties to divorce can and do manipulate their children.”

Vernado, Article: Inappropriate Parental Influence: A New App: A New For Tort Law and Upgraded Relief For Alienated Parents, 61 DePaul L. Rev. 113, n. 6 (2011). In this somewhat uncertain landscape, this court seeks a more demanding definition of parental alienation to more explicitly describe the concept of what constitutes “unjustified behavior.” To achieve this, the court borrows from a comparable tort-law cousin: the tort of intentional infliction of emotional distress, a concept in which an individual, as a consequence of certain directed behavior, caused harm to the emotional status of a second party. Howell v. New York Post Co., 81 N.Y.2nd 115 (1993). The tort of intentional infliction of emotional distress consists of four elements: “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.” Id. Simple word substitution — “parental alienation” for “emotional distress” — creates an equivalence between this tort designed to protect an individual’s emotional status and the family law concept to protect and preserve a parent’s relationship with their children.15 If the substitution works, then parental alienation consists of four elements: “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe alienation of any parent from a child; (iii) a causal connection between the alienating conduct and the child’s rejection of a parent; and (iv) severe parental alienation.” The resulting equivalence allows a more refined analysis of what “unjustified…frustration of access” means in the parental alienation context.

In reaching this equivalence, the court examines the nature of the conduct that is the first prong of this test. In intentional infliction of emotional harm, the standard of “extreme and outrageous conduct” is “strict,” “rigorous” and “difficult to satisfy” unless there is evidence of a prolonged “deliberate and malicious campaign of harassment or intimidation.” Nader v. General Motors Corp., 25 NY2nd 560, 569 (1970).Importantly, New York courts have recognized that alienating conduct by a parent must meet the family law equivalent of “extreme and outrageous” conduct that supports the tort of intentional infliction of emotional harm. In defining the conduct that constitutes parental alienation, the courts have broadly stated that the underlying conduct must be “so inconsistent with the best interests of the children.”16 Matter of Sanders v. Jaco, 148 AD3rd 812, 813 (2nd Dept 2017); Rosenstock v. Rosenstock, 162 AD3rd 702 (2nd Dept 2018) (absconding with the child as “inconsistent conduct”); Altieri v. Altieri, 156 AD3rd 667 (2nd Dept 2018) (false accusation of sexual abuse as “inconsistent conduct’). In short, the alleged alienating conduct must be more than minor parental mishaps — an isolated vulgarity, a missed communication or unreturned phone call on a child’s welfare, a disparaging comment about the other spouse’s significant other, a statement about “who loves you more,” questioning the ex-spouse’s judgment, an occasional complaint about inadequate support or the other parent’s reliability.17 While downplaying these incidents, this court concedes that a chorus of suspect behaviors — perhaps all of the above repeated over a prolonged period of time — might reach the “extreme and outrageous” threshold to justify a finding of alienation. In short, the alleged conduct to support a finding of parental alienation must “so” violate norms of proper parenting, age appropriate conversations with children and/or parenting conduct. This aspect of the analysis — determining the standards of parenting and when parent conduct sharply violates those valued intra-family standards — represents a serious challenge to the court, but one that this case demands be resolved.

When analyzed in this light, parental alienation, as a legal concept, requires (1) that the alleged alienating conduct, without any other legitimate justification, be directed by the favored parent, (2) with the intention of damaging the reputation of the other parent in the children’s eyes or which disregards a substantial possibility of causing such, (3) which proximately causes a diminished interest of the children in spending time with the nonfavored parent and, (4) in fact, results in the children refusing to spend time with the targeted parent either in person, or via other forms of communication."

MORTGAGE FORECLOSURE - TOLLING OF INTEREST

BAC HOME LOANS SERVICING, LP v. Jackson, 2018 NY Slip Op 1896 - NY: Appellate Div., 2nd Dept. 2018:

"On August 25, 2010, the plaintiff commenced this action to foreclose a mortgage against, among others, the defendant Brian Jackson. Jackson, acting pro se, served his answer on September 20, 2010. A request for judicial intervention (hereinafter RJI) was not filed in this action until November 10, 2014. Thereafter, Jackson moved, inter alia, to dismiss the complaint insofar as asserted against him for failure to comply with 22 NYCRR 202.12-a(b)(1) based on the plaintiff's failure to timely file an RJI requesting a settlement conference or, in the alternative, in effect, to toll the accrual of interest on the mortgage loan following the filing of the summons and complaint. Jackson also sought leave to amend his answer to assert several affirmative defenses, including lack of standing. The Supreme Court, inter alia, denied those branches of his motion.

While 22 NYCRR 202.12-a(b)(1) states that at the time that proof of service of a summons and complaint is filed with the clerk, a plaintiff in a mortgage foreclosure action shall file a specialized RJI applicable to such actions, it does not provide that the failure to do so will result in the dismissal of the action. Accordingly, the Supreme Court properly denied that branch of Jackson's motion which was to dismiss the complaint for failure to comply insofar as asserted against him with 22 NYCRR 202.12-a(b)(1).

"In an action of an equitable nature, the recovery of interest is within the court's discretion. The exercise of that discretion will be governed by the particular facts in each case, including any wrongful conduct by either party" (Prompt Mtge. Providers of N. Am., LLC v Zarour, 155 AD3d 912, 915 [internal quotation marks omitted]; see CPLR 5001[a]; LaSalle Bank, N.A. v Dono, 135 AD3d 827, 829; US Bank N.A. v Williams, 121 AD3d 1098, 1101-1102; Dayan v York, 51 AD3d 964, 965; Preferred Group of Manhattan, Inc. v Fabius Maximus, Inc., 51 AD3d 889, 890). Here, the plaintiff contends that it initially attempted to file an RJI on October 22, 2010, but that the RJI was rejected by the Supreme Court for failure to comply with Administrative Order 548/10. Administrative Order 548/10, which was promulgated on October 20, 2010, by the Chief Administrative Judge of the Courts, required that, "effective immediately,' . . . a plaintiff's attorney in certain mortgage foreclosure actions [had] to submit an affirmation confirming the factual accuracy and the accuracy of notarizations of all filings in support of foreclosure" (Bank of N.Y. Mellon v Izmirligil, 144 AD3d 1063, 1064 quoting Administrative Order 548/10). This Administrative Order provided that, in new cases, the affirmation had to accompany the RJI. However, where a residential mortgage foreclosure action was pending on the effective date of Administrative Order 548/10, and no judgment of foreclosure had been entered, such as in the instant case, Administrative Order 548/10 provided that the affirmation must be filed at the time of filing either the proposed order of reference or the proposed judgment of foreclosure. Since this was a pending case, the RJI should not have been rejected by the court for failure to file an attorney affirmation with the RJI. The attorney affirmation did not have to be filed until the plaintiff submitted either the proposed order of reference or the proposed judgment of foreclosure (see Bank of N.Y. Mellon v Izmirligil, 144 AD3d at 1064; U.S. Bank, N.A. v Ramjit, 125 AD3d 641, 642).

Although the initial October 2010 RJI may have been rejected erroneously, the plaintiff fails to explain the ensuing four-year delay between the initial October 2010 filing and the subsequent filing on November 6, 2014. Under the unusual circumstances of this case, since Jackson was prejudiced by this unexplained delay, during which time interest had been accruing, the interest on the loan should have been tolled from December 22, 2010 (that is, 60 days after the alleged initial October 2010 RJI was filed, the time period during which a settlement conference would be scheduled), through the date that the plaintiff filed the subsequent RJI on November 6, 2014 (see Greenpoint Mtge. Corp. v Lamberti, 155 AD3d 1004; Citicorp Trust Bank, FSB v Vidaurre, 155 AD3d 934, 935; Dayan v York, 51 AD3d 964, 956; Danielowich v PBL Dev., 292 AD2d 414; Dollar Fed. Sav. & Loan Assn. v Herbert Kallen, Inc., 91 AD2d 601; South Shore Fed. Sav. & Loan Assn. v Shore Club Holding Corp., 54 AD2d 978; Wells Fargo Bank, N.A. v Lindo, 2013 NY Slip Op 30375[U], *12-13 [Sup Ct, NY County]; cf. U.S. Bank Nat. Ass'n v Williams, 121 AD3d 1098, 1102)."

KWANZAA GREETINGS

MERRY CHRISTMAS

FORECLOSURE - RPAPL 1304 DEFENSE FAILS AS RECEIPT IS NOT REQUIRED PROOF

Deutsche Bank Nat'l. Trust Co. v. Jimenez, NYLJ 12/20/18, Date filed: 2018-11-30, Court: Supreme Court, Suffolk County Judge: Justice Robert Quinlan, Case Number: 16236/2011:

"Before further discussion the court notes a flaw in defendants’ motion that would preclude dismissal of the action against both defendants on the basis of the mailings were not made, even if the court accepted many of the arguments for dismissal made by defendant Kevin Jimenez, based upon the alleged failure of plaintiff to establish the mailings not only of the RPAPL §1304 notices, but also the default notice required by the mortgage. The flaw is that only Mr. Jimenez provided an affidavit stating that he did not receive the RPAPL §1304 mailings. Although he states therein that “We both, however, deny ever receiving these 90 day notices,” that statement as to his wife is inadmissable hearsay. If the court was to accept his statement, and if the court found that plaintiff’s submissions in opposition were not sufficient to at least raise issues of fact as to the mailings, and if the court was to apply the line of cases following Citimortgage v. Pappas, 147 AD3d 900 (2d Dept 2017), the court would only dismiss the action as to him. Without a similar denial by affidavit submitted by Debra Jimenez, even in the light most favorable to defendants, the action could not be dismissed as to her. There is no argument made by defendants that if the action was dismissed against Mr. Jimenez, then the action against Ms. Jimenez must be dismissed because a necessary party is no longer joined. The court will not act sua sponte in that regard.

Unlike the line of cases emanating from Citimortgage v. Pappas, to establish the mailing of the RPAPL §1304 notices, plaintiff has submitted an affidavit from Richard Schwiner, an employee of Ocwen Financial Corporation. His affidavit establishes the relationship between Ocwen Financial Corporation and Ocwen Loan Servicing, LLC (“Ocwen”), a limited liability company of which Ocwen Financial Corporation is the sole member. Ocwen is the present servicer for plaintiff, having taken over those responsibilities from GMAC Mortgage, LLC (“GMACM”), the prior servicer in 2013.

The RPAPL §1304 notices were allegedly mailed by GMACM on January 6, 2011, more than ninety days prior to the filing of this action, to defendants at the property address. Through his affidavit Mr. Schwiner establishes his ability to testify as to Ocwen’s business records pursuant to the requirements of CPLR 4518 (a). Mr. Schwiner’s affidavit and the submissions establish that Ocwen assumed servicing responsibilities for plaintiff from GMACM in 2013. Although plaintiff argues that the incorporation by Ocwen of GMACM’s business records into its own upon assuming the servicing of the loan is sufficient to establish GMACM’s business records as Ocwen’s business records, and as such Mr. Schwiner is able to testify to them as Ocwen’s records pursuant to CPLR 4518, the court is compelled to disagree. The Second Department has long and consistently held that the mere filing of papers received from other entities which are retained in the recipient’s regular course of business do not qualify those papers as business records of the recipient so as to meet the requirements of CPLR 4518 as an exception to the rule against hearsay (see Standard Textile Company, Inc. v. National Equipment Rental, Ltd., 80 AD2d 911 [2d Dept 1981]). If an employee of plaintiff’s present servicer attempts to testify concerning business records of a prior servicer, that affiant must establish his/her ability to do so by showing personal knowledge and familiarity with the record keeping practices and procedures of that prior entity, (see Arch Bay Holding, LLC v. Albanese, 146 AD3d 849 [2d Dept 2017]; Aurora Loan Svcs, LLC v. Ang, 150 AD3d 649 [2d Dept 2017]; Wells Fargo Bank. N.A. v. Talley, 153 AD3d 583 [2d Dept 2017]; Bank of New York Mellon v. Alli, 156 AD3d 957 [2d Dept 2017]; Fulton Holding Group, LLC v. Lindoff, 165 AD3d 1053 [2d Dept 2018]).

But Mr. Schwiner also attests to the fact that prior to his employment at Ocwen, he was employed by GMACM, and although not in the same detail as to Ocwen’s records keeping practices, he sufficiently establishes his familiarity with GMACM’s business practices and procedures to establish his ability to testify to GMACM’s records pursuant to CPLR 4518 (a). His affidavit presents in detail the standard office practices and procedures used by GMACM to ensure and establish the mailings of the RPAPL §1304 notices to defendants which are reflected in their records. To establish mailing, plaintiff may provide proof of actual mailing or a description of its office’s practice and procedure for mailing (see New York & Presbyt. Hosp. v. Allstate Ins. Co. (29 AD3d 547 [2d Dept 2006]; Citibank, N.A. v. Wood, 150 AD3d 813 [2d Dept 2017]; Citimortgage Inc. v. Banks 155 AD3d 936 [2d Dept 2017]). Business records that detail a standard of office practice or procedure designed to ensure that items are properly addressed and mailed are sufficient to establish mailing (see Vivane Etienne Med. Care, P.C. v. Country Wide Ins. Co., 25 NY3d 498 [2015]; Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]); Citimortgage v. Banks, 155 AD3d 936 [2d Dept 2017]; U.S. Bank, N.A. v. Sims, 162 AD3d 825 [2d Dept 2018]; Deutsche Bank Natl. Trust Co. v. Heitner, 165 AD3d 1038 [2d Dept 2018]). Internal computer records of a sender, supplied by an affiant able to testify as to sender’s business records pursuant to CPLR 4518 (a), have been held sufficient to demonstrate that the notices were indeed mailed to defendants (see One West Bank, FSB v. Simpson, 148 AD3d 920 [2d Dept 2017]; Citimortgage, Inc. v. Wallach, 163 AD3d 520 [2d Dept 2018]). By his affidavit testimony Mr. Schwiner is able to provide proof of his review of the both Ocwen’s records and those records of GMACM contained in Ocwen’s records, a description of computer entries made upon mailing by GMACM and GMACM’s practices to ensure proper mailing of the RPAPL §1304 notices to defendants at the property address.

Mr. Jimenez’ protestation that he did not receive them is to no avail, as the statutory condition precedent is not to establish receipt by defendants, but only their mailing be established, which Mr. Schwiner’s affidavit does. That portion of defendants’ motion seeking dismissal of the action because plaintiff cannot establish the mailing of the RPAPL §1304 notices is denied."

MORE ON RENT ABATEMENT FOR BREACH OF WARRANTY OF HABITABILITY

Here the lack of evidence, plus tenant's own misconduct, led to an 11% abatement but the case has an excellent discussion of the law.

Maxwell Dev. LP v. France, NYLJ 12/19/18, Date filed: 2018-11-01/Court: Civil Court, New York/Judge: Judge Dakota Ramseur/Case Number: LT-083272-17:

Respondent asserted a defense to nonpayment of Petitioner’s breach of the warranty of habitability. In every lease for residential property, the warranty of habitability implies a covenant that the premises rented and all common areas are fit for human habitation and for the uses reasonably intended by the parties, and free from conditions dangerous to life, health, or safety (Real Property Law [RPL] §235-b[1]; Scherer/Fisher, Residential Landlord Tenant L. in N.Y., §12:65). Breach of this warranty can be the basis of a defense to a nonpayment proceeding or support a separate affirmative claim (id.).

The proper measure of damages for a breach of the warranty of habitability is the difference between the fair market value of the premises in fully habitable condition, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach (Park W. Mgt. Corp. v. Mitchell, 47 NY2d 316, 329 [1979]). The award may take the form of a sum of money awarded the tenant in a plenary action or a percentage reduction of the contracted-for rent as a setoff in summary nonpayment proceeding in which the tenant counterclaims or pleads as a defense breach by the landlord of his duty to maintain the premises in habitable condition (Park W. Mgt. Corp., 47 NY2d at 329).

Complete vacatur is not necessary to receive an abatement; it is sufficient to have been constructively evicted from a portion of the premises (Minjak Co. v. Randolph, 140 AD2d 245, 248 [1st Dept 1988]). The finder of fact must weigh the severity and duration of the breach, as well as the effectiveness of steps taken by the landlord to abate those conditions (id.). In determining the amount of damages sustained by a tenant as a result of a breach of the warranty set forth in the section, the court “need not require any expert testimony” (RPL §235-b; see also Park W. Mgt. Corp., 47 NY2d at 329-30).

Courts have awarded a broad spectrum of abatements, including upward modification of lower court determinations, total abatements, and nominal damage awards (Dumbadze v. Saxon Hall Owner, LLC, 93 AD3d 756, 757 [2d Dept 2012] [increasing 10 percent abatement to 25 percent where plaintiff's evidence demonstrated recurring issue with "bubbles" forming on ceiling in bedroom and living room and at least one instance of ceiling collapse in bedroom which caused injuries]; Westhattan Corp. v. Wong, 42 Misc 3d 130(A) [App Term 1st Dept 2013] [affirming trial court's dismissal of nonpayment petition and award of damages on tenant's counterclaims where record evidenced recurrent leaks over a three-year period resulting in at least one ceiling collapse, rodent infestation, a broken door and window, and persistent heating problems, all of which landlord had notice of]; Mayourian v. Tanaka, 188 Misc 2d 278, 279 [App Term 2d Dept 2001] [100 percent abatement when relocation of dumpster in front of property resulted in odor which prevented enjoyment of deck or company of friends]; Ocean Rock Associates v. Cruz, 66 AD2d 878 [2d Dept 1978], aff’d, 51 NY2d 1001 [1980] [100 percent abatement affirmed where substantial deprivations existed, including inadequate heat for extended periods of time]; 162 BSD Realty LLC v. Ross, 11/26/2008 NYLJ 30, col. 1 [Civ Ct Kings County] [100 percent abatement for cascading water leak, vermin infestation, exposed electrical wirings and other "hazardous conditions," as well as $1,500 award for cost of tenant's repairs]; Rosier v. Brown, 158 Misc 2d 748, 752 [NY City Ct, Rochester 1993] [68 percent abatement granted for lack of working smoke detectors, damaged lock, and waste line leak in basement]; Tonetti v. Penati, 48 AD2d 25, 27 [2d Dept 1975] [affirming trial court's determination that a strong canine odor justified tenant's vacatur after one month where landlord had guaranteed, incorrectly, that odor would be remedied by cleaning]). In some instances, courts have awarded nothing or nominal damages (see Kekllas v. Saddy, 88 Misc 2d 1042, 1046 [NY Dist Ct Nassau County 1976] [awarding nominal abatement of six cents for cat odor where tenant's proof of damages was insufficient]; cf Toomer v. Higgins, 161 AD2d 347 [1st Dept 1990] [no abatement for interruption of heat on seven occasions over one month where the interruption was necessary to service and adjust newly-installed boiler equipment and, in each case, was promptly remedied]; cf Solow v. Wellner, 86 NY2d 582, 586 [1995] [reversing civil court's abatement award where defects related only to convenience and amenities, not conditions such as worn carpets and non-extreme garbage accumulation which do not "constitute deficiencies that prevent the premises from serving their intended function of residential occupation"]).

Indeed, varying abatements have been granted for conditions similar to those alleged here (Elijah Jermaine, LLC v. Boyd, 5 Misc 3d 131(A) [App Term 1st Dept 2004] [awarding 15 percent abatement for unremedied "rodent infestation and other defective conditions"]; Bender v. Green, 24 Misc 3d 174, 185 [Civ Ct NY County 2009] [awarding a 12 percent abatement for bedbugs]; 1097 Holding LLC v. Ballesteros, 17 Misc 3d 1111(A) [Civ Ct Bronx County 2007] [awarding 25 percent abatement where Respondents observed roaches and rats in entire apartment and "…heard rats cracking and biting, so loudly that they initially thought someone was trying to break into their apartment and called the police. The police arrived, pulled the stove from the wall and discovered rats hiding behind the wall."]). Respondent alleges five defects here to justify an abatement: lack of heat/window problems, lack of a working intercom, a rodent and insect infestation, holes in the wall as a result of that infestation, and a non-functioning toilet. As an initial matter, the record does not corroborate Respondent’s contention that he lacked heat or proper windows during the subject time period.

Conversely, Respondent’s testimony that his intercom was partially repaired is corroborated by HPD records evidencing a continuing defect (see p 4, supra). To the extent, however, that there is nothing in the record demonstrating the impact of that defect, Respondent is entitled only to a nominal abatement of 1 percent (Pena v. Lockenwitz, 53 Misc 3d 428, 433 [NY City Ct Cohoes County 2016] ["The existence of a code violation does not automatically translate into a breach of the warranty of habitability; rather, once a code violation has been shown, the tenant must come forward with evidence concerning the extensiveness of the breach, the manner on which it impacted upon the health, safety or welfare of the tenants"], quoting 211 E 46th Owners LLC v. Mohabir, 33 Misc.3d 1232(A), 2011 WL 6141671 [Civ Ct NY County 2011]). Similarly, the record supports an insect and rodent infestation. However, there is insufficient evidence in the record from which the Court can deduce any substantial impact upon the Apartment’s value, including the presence of insects or rodents in the Apartment proper, other than the holes in the wall caused by Respondent’s dogs. Accordingly, the record merits a 10 percent abatement (cf Bender, 24 Misc 3d at 185 [tenant kept log of bedbug bites]; cf 1097 Holding LLC, 17 Misc 3d 1111(A) [25 percent abatement where Respondents observed roaches and rats in entire apartment]).

However, a tenant’s misconduct can reduce or entirely preclude an abatement (RPL §235-b[1]). Case law defining “tenant misconduct” is sparse in New York (5th & 106th St. Assoc. LP v. Rodriguez, 21 Misc 3d 1133(A) [Civ Ct NY County 2008]). It includes, however, denial of access to correct conditions, rent abatements will be denied or severely limited (Marz Realty Inc. v. Reichman, 2003 WL 1907665 [App Term 2003 2d & 11th Jud Dists] [15 percent abatement affirmed where "landlord promptly attempted to repair same and was denied access"]; W. 122nd St. Assoc., L.P. v. Gibson, 5 Misc 3d 137(A) [App Term 1st Dept 2004] [affirming judgment in favor of landlord where tenant "impeded landlord's ability to complete painting work agreed upon"]; 5th & 106th St. Assoc. LP v. Rodriguez, 21 Misc 3d 1133(A) [Civ Ct NY County 2008] [no abatement where clutter in apartment and respondent's absence from apartment complicated access and repair]; Scherer/Fisher, Residential Landlord Tenant L. in N.Y. §12:115 [collecting cases]). Case law involving affirmative misconduct is rarer still, but at least one recent case confirms that conduct contributing to the defective condition can preclude an abatement (see 12-14 E. 64th Owners Corp. v. Hixon, 130 AD3d 425, 426 [1st Dept 2015] [affirming denial of abatement where tenant made repairs herself without the proper application and failed to pay an escrow deposit for repairs]).

The sparsity of case law notwithstanding, the Court holds that flushing bones down the toilet — whether chicken, ham, or any other animal — is objectively unreasonable conduct precluding an abatement for that condition. It should be noted that after the first four toilet clogs, Petitioner’s superintendent arrived promptly to remedy the condition. At minimum, after the first clog, and certainly after the second or third, Respondent was on notice to dispose of any bones in a reasonable manner — that is, not in the toilet.

Accordingly, Petitioner has demonstrated entitlement to judgment in the amount of $2,130.00, representing Respondent’s share of the rent from November 2017 through August 2018, less an 11 percent aggregate abatement during that timeframe, totaling $1,895.70.

NOT MARRIED BUT ENDS LIKE A DIVORCE

Baron v Suissa, 2018 NY Slip Op 08453, Decided on December 12, 2018, Appellate Division, Second Department:

The plaintiff and the defendant met in 1992, while each of them was married to another person. After the defendant obtained a divorce from his wife in or about 1995, the parties began living together and, thereafter, moved into a house located in Northport. The parties do not dispute that the defendant is the only person named on the deed and mortgage as the owner of the house. The plaintiff alleged, however, that the parties agreed that the house was to be retitled into joint ownership upon the completion of her divorce. The plaintiff also alleges that she and the defendant entered into an oral agreement to form an antiques business as partners and to share equally in the profits and inventory of the partnership. She further alleged that the defendant promised, in exchange for her domestic services and legal services to the defendant's other businesses during the course of the relationship, to maintain and support her and share equally in the income and assets acquired during the relationship. When the parties' relationship ended in 2008, the defendant sought to evict the plaintiff and her son from the house. The plaintiff alleged that the defendant removed from the house fixtures, antiques, and other personal property in which the plaintiff alleges she had an ownership interest.

In May 2009, the plaintiff commenced this action, seeking relief in the nature of, inter alia, a constructive trust, an accounting of partnership assets, specific performance, recovery for [*2]unjust enrichment, conversion, and replevin, and to recover damages for fraud and slander. The defendant moved, pre-answer, to dismiss the complaint pursuant to CPLR 3211(a)(1), (3), (5), and (7), but the motion was misfiled by the Supreme Court and remained pending and undecided for several years. In 2012, the defendant made a motion, denominated as one pursuant to CPLR 2221(a) for leave to renew his pending and undecided motion to dismiss the complaint. In the order appealed from, the Supreme Court, among other things, granted leave to renew and, upon renewal, granted those branches of the motion which were pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint. The plaintiff appeals, and we modify.

CPLR 3211 provides, inter alia, that a party may move for judgment dismissing one or more causes of action on the ground that "the cause of action may not be maintained because of . . . [the] statute of frauds" (CPLR 3211[a][5]). "On a CPLR 3211 motion made against a complaint, including a motion pursuant to CPLR 3211(a)(5) to dismiss a complaint based on the statute of frauds, a court must take the allegations as true and resolve all inferences which reasonably flow therefrom in favor of the pleader" (AAA Viza, Inc. v Business Payment Sys., LLC, 38 AD3d 802, 803, quoting Cron v Hargro Fabrics, 91 NY2d 362, 366 [internal quotation marks omitted]).

We agree with the Supreme Court that, insofar as they related to real estate, the causes of action arising from the multiple purported oral agreements between the parties were required to be in writing pursuant to the statute of frauds (see General Obligations Law § 5-703). The court, however, failed to consider the plaintiff's contention in opposition to the defendant's motion that her allegations of partial performance under the purported agreements were sufficient to permit her claims related to real estate to survive the absence of an appropriate writing (see General Obligations Law § 5-703[4]). With respect to the defendant's alleged promise to retitle the house in both parties' names upon the plaintiff's divorce and in consideration of her alleged $100,000 contribution to the purchase price, the plaintiff's allegations were sufficient, at this early procedural stage, to fall within an exception to the statute of frauds and survive dismissal. Accordingly, the court should not have granted those branches of the motion which were pursuant to CPLR 3211(a)(5) to dismiss the seventeenth cause of action and so much of the twentieth cause of action as pertain to ownership of the house (see Mackenzie v Croce, 54 AD3d 825, 826).

We disagree with the Supreme Court as to the applicability of the statute of frauds to the plaintiff's allegations as to other express oral agreements between the parties, namely those related to her provision of domestic and legal services in exchange for support and sharing of business profits. Agreements between persons cohabiting together are not per se required to be in writing (see Morone v Morone, 50 NY2d 481, 487-488). Moreover, the plaintiff's allegations as to the terms of the oral agreements do not otherwise fall within the statute of frauds (see General Obligations Law § 5-703; Starr v Akdeniz, 162 AD3d 948, 949; Meagher v Doscher, 157 AD3d 880, 883; Kelley v Galina-Bouquet, Inc., 155 AD2d 96, 100). Accordingly, the court should have denied those branches of the defendant's motion which were pursuant to CPLR 3211(a)(5) to dismiss the second, sixth, ninth, tenth, eleventh, twelfth, thirteenth, eighteenth, and nineteenth causes of action, and the part of the twentieth cause of action that does not pertain to ownership of the house.

We also disagree with the Supreme Court's determination granting that branch of the motion which was to dismiss the plaintiff's third cause of action pursuant to the statute of frauds. The third cause of action seeks the return of certain personal items that allegedly were owned by the plaintiff separately prior to her relationship with the defendant. Thus, the property that was the subject of that cause of action was not within the statute of frauds.

We agree with the Supreme Court that certain evidence submitted by the defendant in support of the motion did not constitute "documentary evidence" within the meaning of CPLR 3211(a)(1).

Nevertheless, we disagree with the court's directing dismissal of the majority of the remaining causes of action, which are for equitable relief, on the ground that the same evidence established as a matter of law that the plaintiff had, among other things, engaged in a dubious scheme to avoid creditors and a Medicaid lien and, in doing so, had committed perjury by disclaiming, at that time, any ownership interest in the house, personal property of value contained in the house, and a safe deposit box and its contents. The court's determination that the plaintiff is, in effect, judicially estopped by that evidence is premature. Viewing the complaint in the light most favorable to the plaintiff and affording her every favorable inference, we find that the complaint [*3]sufficiently alleged causes of action to recover for conversion and seeking, inter alia, a constructive trust and replevin. Accordingly, the court should have denied those branches of the motion which were to dismiss the first, fifth, eighth, twenty-third, and twenty-fourth causes of action, and those portions of the fourth and seventh causes of action that did not relate to property purportedly owned by the plaintiff's son.

We agree with the Supreme Court's determination granting those branches of the motion which were to dismiss those portions of, inter alia, the fourth and seventh causes of action that relate to property allegedly owned by the plaintiff's son. The plaintiff failed to allege facts that would support her right to assert those causes of action on her son's behalf.

LANDLORD'S PREDICATE NOTICE FACTUALLY INCORRECT AND INSUFFICIENT

2018 NY Slip Op 51711(U), ALEXANDER OCHAKOVSKY, AMELIA OCHAKOVSKY and MARIA OCHAKOVSKY, Petitioners-Landlords-Respondents, v. SHILEN AMIN and ASIFA TIRMIZI, Respondents-Tenants-Appellants, -and- JANE and JOHN DOES, Respondents-Undertenants. 570128/18. Supreme Court, Appellate Term, First Department. Decided November 29, 2018:

"We agree with tenants, however, that the holdover petition must be dismissed because the predicate notice served by landlords was defective. Paragraph 17 of the governing lease agreement authorized landlords to terminate the tenancy on 30 days notice in the event they elected to sell the underlying condominium unit. The April 21, 2017 notice of termination utilized by landlords, purporting to terminate the lease as of May 31, 2017, tersely and incorrectly stated that tenants "d[id] not have a lease agreement" and were "month-to-month" tenants, with no reference to paragraph 17 of the lease, or any other indication that the lease termination was based on landlords' election to sell the unit. Measured against the test of reasonableness in view of the attendant circumstances (see Oxford Towers Co., LLC v Leites, 41 AD3d 144, 144-145 [2007]), the notice was insufficient to serve as a predicate for this holdover proceeding."

PROOF OF LIABILITY BUT NO PROOF OF DAMAGES

ARABIA VEGGACADO, Plaintiff, v. LORDSWORKS WELDING CO. &  ERIC SESSOMS, Defendants. Docket No. CV-013055-18/BX. Civil Court of the City of New York, Bronx County. November 8, 2018:

"`As a general rule, there is implied in every contract for work or services a duty to perform it skillfully, carefully, diligently and in a workmanlike manner `(N.Y. Prac, Contract Law § 11:14) [Jeffries v. Willow Woodworking, Inc., 40 Misc. 3d 1205(A)].

The contract at issue is a Home Improvement Contract which is defined by statute as ". . . an agreement for the performance of home improvement, between a home improvement contractor and an owner, and where the aggregate contract price specified in one or more home improvement contracts, including all labor, services and materials to be furnished by the home improvement contractor, exceeds five hundred dollars (N.Y. Gen. Bus. Law § 770(6))."

Home improvement includes the repairing, remodeling, altering, converting, or modernizing of, or adding to, residential property, and specifically include the construction, replacement or improvement of roofing and flooring, as well as other improvements of the residential property [N.Y. Gen. Bus. Law § 770 (3)].

Plaintiff proved to the court's satisfaction that there were defects in Defendant's work. However, Plaintiff failed to prove a dollar amount of damages. Although Plaintiff testified that she hired someone to finish the work, she never submitted documentation to support that or show the amount incurred.

Plaintiff bore the burden of proving damages resulting from defendant's breach of contract (see Peak v. Northway Travel Trailers, Inc., 27 A.D.3d 927, 928, 811 N.Y.S.2d 798 [2006]; Cotazino v. Basil Dev. Corp., 167 A.D.2d 632, 633, 562 N.Y.S.2d 988 [1990]). In general, the proper measure of damages for breach of a construction contract is the cost to either repair the defective construction or complete the contemplated construction (see Route 7 Mobil v. Machnick Bldrs., 296 A.D.2d 809, 810, 745 N.Y.S.2d 336 [2002]; Thompson v. McCarthy, 289 A.D.2d 663, 664, 733 N.Y.S.2d 791 [2001]; Lyon v. Belosky Constr., 247 A.D.2d 730, 731, 669 N.Y.S.2d 400 [1998]). The damages must be reasonably certain, however, not based upon speculation (see Peak v. Northway Travel Trailers, Inc., 27 A.D.3d at 929, 811 N.Y.S.2d 798).

Similarly while Plaintiff claimed that parts of her property were damaged, no evidence was offered to enable the court to place a dollar value on said damage."

LIMITING THE RECOVERY OF LEGAL FEES IN HOUSING COURT

Sokolow v. NEUMANN-WERTH, 2018 NY Slip Op 28351 - NY: Appellate Term, 2nd Dept. 2018:

"Where a lease does not deem attorney's fees to be additional rent, a court entertaining a summary proceeding lacks subject matter jurisdiction to entertain a landlord's claim for attorney's fees (see RPAPL 741 [5]; Jacoby v Cabrera, 60 Misc 3d 136[A], 2018 NY Slip Op 51079[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; Green v Weslowski, 53 Misc 3d 144[A], 2016 NY Slip Op 51568[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; Inland Diversified Real Estate Serv., LLC v Keiko NY, Inc., 51 Misc 3d 139[A], 2016 NY Slip Op 50613[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; Saunders St. Owners, Ltd. v Broudo, 32 Misc 3d 135[A], 2011 NY Slip Op 51459[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Henry v Simon, 24 Misc 3d 132[A], 2009 NY Slip Op 51369[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]; see also 172 Van Duzer Realty Corp. v Globe Alumni Student Assistance Assn., Inc., 24 NY3d 528, 534 [2014]; Matter of Bedford Gardens Co. v Silberstein, 269 AD2d 445 [2000]).

…….

The provisions in the lease, as set forth in paragraph 23, limit landlord's right to recover attorney's fees to instances where the tenant's default leads to landlord's cancelling the lease, taking back the apartment, and deducting landlord's expenses, which include reasonable legal fees, from the rent received from the new tenant. "New York public policy disfavors any award of attorneys' fees to the prevailing party in a litigation [and] a provision in an agreement allowing the recovery of attorneys' fees that are incidents of litigation should be strictly construed" (Horwitz v 1025 Fifth Ave., Inc., 34 AD3d 248, 249 [2006] [internal quotation marks and citation omitted]; see 40-50 Brighton First Rd. Apts. Corp. v Henderson, 51 Misc 3d 1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Since the conditions in paragraph 23 upon which landlord may recover attorney's fees as "added rent" are not present in this holdover proceeding based on the termination of a month-to-month tenancy, where there was no default by tenants which prompted the cancellation of the lease or the taking back and rerenting of the apartment by landlord, the Civil Court lacked subject matter jurisdiction to entertain landlord's claims for attorney's fees in this summary proceeding (see Jacoby v Cabrera, 60 Misc 3d 136[A], 2018 NY Slip Op 51079[U]; Green v Weslowski, 53 Misc 3d 144[A], 2016 NY Slip Op 51568[U],*1; Inland Diversified Real Estate Serv., LLC v Keiko NY, Inc., 51 Misc 3d 139[A], 2016 NY Slip Op 50613[U], *2). Were the issue properly in the case, we would find, for the same reason, that landlord is not entitled to such fees."

FREE SENIOR LAW CLINIC TODAY

The next Senior Clinic is scheduled for today 9:30-11am at the Nassau County Bar Association, 15th and West Streets, Mineola, NY 11501.

I will be one of the volunteer lawyers.

CAN YOU SUE THE DEAD?

Yes and no - you cannot sue the decedent individually but you can sue the personal representative that has been appointed by the Surrogate Court. Matter of Bd. of Mngrs of Westbury Terr. Condo v. Ringen, NYLJ 12/11/18, Date filed: 2018-11-13, Court: Supreme Court, Nassau, Judge: Justice John Galasso:

"“[A] plaintiff is unable to commence an action during the period between the death of a potential defendant and the appointment of a representative of the estate” Laurenti v. Teatom, 210 A.D.2d 300, 301, 619 N.Y.S.2d 754 [2d Dept. 1994]. Furthermore, “no action may effectively be commenced against a dead person subsequent to his or her death and prior to the appointment of a personal representative” See, Arbalez v. Chun Kuei Wu, 18 AD3d 583, 795 N.Y.S.2d 327 [2d Dept 2005]; Laurenti v. Teatom, 210 A.D.2d 300, 619 N.Y.S.2d 754 [2d Dept 1994]. In as much as the Respondent has provided admissible proof that she has not been appointed representative of the decedent’s estate, and it is uncontested by the parties that Letters Testamentary have not been issued, Petitioner is unable to commence the instant Petition during the period between the death of the decedent John Ringen and the appointment of Respondent Nancy Ringen a representative of his estate."

WILLS - UNDUE INFLUENCE A QUESTION OF FACT

Estate of Robinson, NYLJ 12/10/18, Date filed: 2018-11-07, Court: Surrogate's Court, Bronx Judge: Surrogate Nelida Malave-Gonzalez, Case Number: 2012-639:

"...….
The objectant asserts inter alia; lack of due execution, capacity, fraud and undue influence. The objectant alleges that he and his father had a close and loving relationship, however, after the decedent’s wife passed away, the relationship changed due to the fact that her daughter, Audrey Allen, who lived with the decedent, began to control the decedent’s activities. He alleges that the decedent’s stepdaughter, Audrey monitored all of the decedent’s phone calls and attempted to keep him from his father, who was unable to freely communicate with him. The objectant alleges that despite these efforts, he maintained a relationship with the decedent, visiting him twice monthly, however, there was often hostility in the home. He alleges that the decedent’s living conditions deteriorated in 2000, after which the stepdaughter discouraged him from visiting his father, and when he would call or appear at the home, she told him that the decedent was not available and would not be permitted to see him. When the objectant was permitted to see the decedent, he looked unhappy and was unwilling to speak when Audrey was present, but would speak freely when she left the room. In 2003, the objectant alleges that when at the decedent’s home, his father cried and complained to him regarding his living situation and Audrey then told the objectant to leave the home and not to return. He believes that Audrey exerted mental coercion over the decedent to carry out her wishes because he was too weak to resist and was afraid to anger her. He alleges that Audrey kept the decedent isolated from his family, frustrated communication with them and put him in a nursing home without consulting them. The decedent was dependent and under the control of his step-children and he was unduly influenced to disinherit his family in favor of them.
…….
The successor guardian ad litem submitted a report indicating he was unable to locate his ward and believes that the objectant presented compelling arguments and significant questions of fact. He argues that taken in the light most favorable to the objectant, the decedent may well have been under duress when he executed the will and may have been unduly influenced by the people that lived in his house and “controlled” his life and argues there is a sufficient basis to deny probate of the will.
…….
The burden of proof lies on the objectant to demonstrate, by a preponderance of the evidence, that the testamentary instrument was procured by the exercise of undue influence or fraud (see Matter of Conti, 5 Misc.3d 1026A [Sur Ct, New York County 2004]); Matter of Coniglio, 242 AD2d 901 [4th Dept 1997]). For a will to be invalidated based upon undue influence it must be shown that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist (Matter of Walther, 6 NY2d 49 [1959]). Undue influence may be proved by circumstantial evidence, but this evidence…must be of a substantial nature. Evidence must be adduced from which inferences of undue influence can be reasonably drawn before a will should be denied probate (id.). Undue influence is frequently established by circumstantial evidence including: the facts and circumstances surrounding the testator and the execution of the will; the condition of the testator’s mind; the testator’s dependency on and subjection to the control of the person accused of exerting the undue influence; the acts and declarations of that person showing the opportunity and disposition of that person to wield the undue influence; and the provisions of the will compared to prior wills as well as whether the will favors the person charged with the influence at the expense of others who, based on the testator’s relationship with them, would be considered more natural objects of the testator’s bounty (see Matter of Elkan, 22 Misc 3d 1125 [A] [Sur Ct, Bronx County 2009]).

To establish fraud, the objectant must show that the petitioner or another person made a false statement which altered the testamentary disposition that would have been made in the absence of such a statement (Matter of Paigo, 53 AD3d 836 [3d Dept. 2008]). Without a showing that undue influence or fraud was actually exercised upon the decedent, evidence that opportunity and motive existed to exert such influence will not suffice to raise a triable issue as to whether the will reflected the intent of the testator (Matter of Zirinsky, 43 AD3d 946 [2d Dept 2007]).
…….
...the court finds questions of fact as to whether the proponent may have exercised undue influenced over the decedent. The objectant indicates that: (1) the proponent moved in with the decedent after the decedent’s spouse died and thereafter decedent’s physical and mental living conditions deteriorated; (2) when he visited the decedent, the decedent was emotional and unhappy, and would not speak when the proponent’s mother, Audrey, was in the room; and (3) Audrey isolated the decedent from his family and (4) Audrey moved the decedent to a nursing home without consulting the decedent’s family (see Matter of Johnson, 6AD3d 859 [3d Dept 2004]). ....The court finds issues of fact warranting a trial with respect to undue influence. Proceed accordingly."

INCORPORATION BY ESTOPPEL

TY Bldrs. II, Inc. v 55 Day Spa, Inc., 2018 NY Slip Op 08345, Decided on December 5, 2018, Appellate Division, Second Department:

""Since a nonexistent entity cannot acquire rights or assume liabilities, a corporation which has not yet been formed normally lacks capacity to enter into a contract" (Rubenstein v Mayor, 41 AD3d 826, 828; see 442 Decatur St., LLC v Spheres Realty, Inc., 14 AD3d 535, 536; Farrell v Housekeeper, 298 AD2d 488, 489). However, a corporation may be deemed to exist and possess the capacity to contract pursuant to the doctrine of incorporation by estoppel (see Boslow Family Ltd. Partnership v Glickenhaus & Co., 7 NY3d 664, 668; JCL Props., LLC v Equity Land Developers, LLC, 102 AD3d 745, 746; Rubenstein v Mayor, 41 AD3d at 828). The doctrine of incorporation by estoppel, or corporation by estoppel, is based on the principle that "one who has recognized the organization as a corporation in business dealings should not be allowed to quibble or raise immaterial issues on matters which do not concern him [or her] in the slightest degree or affect his [or her] substantial rights" (Boslow Family Ltd. Partnership v Glickenhaus & Co., 7 NY3d at 668 [internal quotation marks omitted]). There is no question that the defendants, regardless of the technical status of TY Builders, LLC, or TY Builders II, LLC, at the time the lease documents were signed, agreed to enter into a lease for certain premises owned by Weiss, the principal of those later-formed entities, and were granted legal access and possession of those premises in exchange for the promise of the payment of rent. The defendants do not dispute that 55 Day Spa failed to pay rent as directed under the lease or that Peterson had personally guaranteed the monthly lease payments. The evidence demonstrates that the parties engaged in the subject business transactions and the defendants received the benefit of possession of the property. Consequently, the defendants are estopped from using the plaintiff's lack of proper incorporation to escape liability under the lease (see Boslow Family Ltd. Partnership v Glickenhaus & Co., 7 NY3d at 668; JCL Props., LLC v Equity Land Developers, LLC, 102 AD3d at 746; Rubenstein v Mayor, 41 AD3d at 828). As such, we agree with the Supreme Court's determination to deny the defendants' cross motion, in effect, for summary judgment dismissing the amended complaint on this ground."

A CAVEAT TO SOME BASIC RULES ON BREACH OF WARRANTY OF HABITABILITY

de Socio v. 136 E. 56th St. Owners Inc, TS-300481-09, 2018-10-05 , Court: Civil Court, New York County, Judge Dakota Ramseur - NYLJ 11/26/18:

"The warranty of habitability applies only to areas that are “within the landlord’s control” (12-14 E. 64th Owners Corp. v. Hixon, 130 AD3d 425, 426 [1st Dept 2015], citing Park W. Mgt. Corp., 47 NY2d 316, 327 [1979] [affirming appellate term's denial of rent abatement for period where, after a flood, cooperative unit owner advised the cooperative that she intended to make leak repairs herself and where "[t]he cooperative credibly submit[ted] that, absent respondent’s delays and misconduct, it would have restored [the unit owner's] apartment to a habitable condition]).

Consequently, a tenant cannot recover under the warranty of habitability, or any abatement will be reduced, when access to the landlord to inspect or remedy the alleged defective condition is refused or thwarted (N.Y. Real Prop. Law §235-b; Finkelstein & Ferrara, Landlord and Tenant Practice in New York §9:79; Scherer/Fisher, Residential Landlord Tenant L. in N.Y. §12:115 [collecting cases]; Brookwood Mgt. Co. v. Melius, 14 Misc 3d 137(A) [App Term 9th & 10th Jud Dists 2007] [tenant not entitled to an abatement because he denied access to landlord's agents to remedy the condition and, once access was granted, the agents corrected the condition]; W. 122nd St. Assoc., L.P. v. Gibson, 5 Misc 3d 137(A) [App Term 1st Dept 2004] [affirming trial court's determination in favor of landlord based on finding that tenant impeded landlord's ability to complete the stipulated painting work]; 930 Fifth Corp. v. Shearman, 23 Misc 3d 133(A) [App Term 1st Dept 2009] [affirming trial court's judgment in favor of landlord where "any roach or mice infestation in tenant's apartment resulted largely from her failure to grant reasonable access to landlord"]; Ansonia Assoc. v. Moan, NYLJ 7/13/95, p 25, col 2 (App Term 1st Dept] [tenants refused access to landlord for asbestos abatement work]; see also N.Y.C. Administrative Code §27-2008)."

SOME BASIC RULES ON BREACH OF WARRANTY OF HABITABILITY

de Socio v. 136 E. 56th St. Owners Inc, TS-300481-09, 2018-10-05 , Court: Civil Court, New York County, Judge Dakota Ramseur - NYLJ 11/26/18:

"As an initial matter, the Court notes that Plaintiff may not recover damages for loss or diminution in value of personal property, personal injury, or pain and suffering on a claim for breach of the implied warranty of habitability (Elkman v. Southgate Owners Corp., 233 AD2d 104, 105 [1st Dept 1996] ["Loss or diminution in value of personal property as well as personal injuries and pain and suffering are not recoverable under Real Property Law [RPL] §235-b.”]). Accordingly, any claim to that effect must be denied.

The proper measure of damages for a breach of the warranty of habitability is the difference between the fair market value of the premises in fully habitable condition, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach (Park W. Mgt. Corp. v. Mitchell, 47 NY2d 316, 329 [1979]). The award may take the form of a sum of money awarded the tenant in a plenary action or a percentage reduction of the contracted-for rent as a setoff in summary nonpayment proceeding in which the tenant counterclaims, or pleads as a defense, breach by the landlord of his duty to maintain the premises in habitable condition (id.).

Complete vacatur is not necessary to receive an abatement; it is sufficient to have been constructively evicted from a portion of the premises (Minjak Co. v. Randolph, 140 AD2d 245, 248 [1st Dept 1988]). The finder of fact must weigh the severity and duration of the breach, as well as the effectiveness of steps taken by the landlord to abate those conditions (id.). In determining the amount of damages sustained by a tenant as a result of a breach of the warranty set forth in the section, the court “need not require any expert testimony” (RPL §235-b; see also Park W. Mgt. Corp., 47 NY2d at 329-30).

Given the fact-specific nature of each inquiry, courts have awarded a broad spectrum of abatements, up to and including a full abatement, for water leaks, nonfunctioning appliances, and mold conditions (Solow Management Corp. v. Reinicke, NYLJ, 1/29/01, p 26, col 1 [App Term 1st Dept] [15 percent rent abatement for "sporadic leaks from a living room skylight and ceiling" and a loss of air conditioning]; Collins Estate Corp. v. Beader, NYLJ, 4/9/87, p 14, col 1 [App Term 1st Dept] [abatement reduced to 25 percent when tenant's unit was "impaired primarily as a result of a leak originating above tenant's bedroom ceiling from an upstairs apartment"]; W.S.L.S.J. & I Weinrib, A & M Reiss v. Fuchs, NYLJ, 3/5/99, p 26, col 2 [App Term 1st Dept] [court affirmed 25 percent abatement covering 18-month period]; Koch v. McQueen, NYLJ, 3/4/96, p 31, col 1 [App Term, 9th and 10th Jud Dists] [50 percent abatement for a two-month period upheld for defective repair of a deteriorated bathtub, dislocation of tiles caused by leakage in bathroom ceiling and water infiltration of common hallway ceiling]; Pamela Equities v. McSween, NYLJ, 8/18/95, p 24, col 4 [App Term, 1st Dept] [tenant awarded 25 percent abatement for 20-month period of "recurring water leaks"]; Gottesman v. Graham Apartments, Inc., 47 Misc 3d 1213(A), 2015 WL 1839746 [Civ Ct Kings County] [100 percent abatement awarded when landlord was found liable for a flood that resulted in water damage to tenant's apartment]; 157 East 57th Street LLC v. Birrenbach, NYLJ, 5/15/03, p 22, col 6, [Civ Ct NY County] [full abatement warranted where mold's size and spread necessitated abandonment of the apartment for remediation], aff’d, 8 Misc 3d 127(A) [App Term 1st Dept 2005]; Pallotta v. Perry, 2002 NY Slip Op 40328(U) [App Term 9th & 10th Jud Dists] [25 percent abatement warranted by roof leak resulting in mold and mildew, a defective freezer door gasket, and oven problems]).

The credible evidence at trial demonstrates profound damage to the Apartment rendering it materially uninhabitable from the time that the leaks began in 2005 to April 2016, when the Corporation completed the necessary repairs. The evidence shows, during that time period, numerous leaks, damage to walls, fixtures, the terrace, and personal items, and the accompanying complaints. The evidence shows the existence of mold which, while remediated, nevertheless required a significant overhaul of the Apartment. Accordingly, Plaintiff is entitled to a full abatement."

SUMMARY JUDGMENT DENIED ON FORECLOSURE - ACCELERATION OF NOTE

Wilmington Sav. Fund Socy. FSB v Yisroel, 2018 NY Slip Op 08174, Decided on November 28, 2018, Appellate Division, Second Department:

"The plaintiff commenced this action against Bais Hamedrish Netzach Yisroel (hereinafter the defendant), among others, to foreclose a mortgage encumbering certain property in Monsey. The defendant interposed an answer with various affirmative defenses, including that the plaintiff failed to provide a timely notice of default and an opportunity to cure under the terms of the note and mortgage. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference. In an order dated July 27, 2017, the Supreme Court granted the motion and referred the matter to a referee to ascertain and compute the amount due. The defendant appeals.

The mortgage required that the lender give notice of a date by which the borrower must correct a default in order to avoid acceleration. It further required that the date specified in the notice "be at least 30 days from the date on which the notice is given." The mortgage also provided that notice by first-class mail "is considered given" on the date mailed.

In support of its motion for summary judgment, the plaintiff failed to establish, prima facie, that it complied with this condition precedent to accelerating the mortgage. Specifically, in support of its motion for summary judgment, the plaintiff presented conflicting evidence as to [*2]whether it mailed the notice at least 30 days before the date specified in that notice. Inasmuch as the plaintiff's own evidence submitted in support of the motion demonstrated the existence of a triable issue of fact as to whether the plaintiff complied with the 30-day notice provision, the plaintiff's motion should have been denied without regard to the sufficiency of the defendant's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Deutsche Bank Natl. Trust Co. v Carlin, 152 AD3d 491, 493)."

AN INVITATION

I will be installed as President of the Levittown Chamber of Commerce

HANUKKAH GREETINGS TO ALL

SUMMARY JUDGMENT DENIED FOR SPECIFIC PERFORMANCE OF REAL ESTATE CONTRACT

Finkelstein v Lynda, 2018 NY Slip Op 08116, Decided on November 28, 2018, Appellate Division, Second Department:

"The plaintiff and Benny Cohen entered into a contract dated January 30, 2012, and a "contract modification" dated May 1, 2012 (hereinafter together the contract), to purchase real property from the defendant Steuben Street Corp. (hereinafter the seller). The seller's attorney sent a letter dated December 31, 2013, to the plaintiff's attorney setting a closing date of February 1, 2014, and stating that time was "of the essence." Although the plaintiff and the seller agreed to adjourn the closing date twice, the closing did not occur. The plaintiff subsequently commenced this action, inter alia, for specific performance of the contract.

"The elements of a cause of action for specific performance of a contract [for the sale of real property] are that the plaintiff substantially performed its contractual obligations and was [ready,] willing and able to perform its remaining obligations, that defendant was able to convey the property, and that there was no adequate remedy at law" (EMF Gen. Contr. Corp. v Bisbee, 6 AD3d 45, 51; see Victory M, LLC v Frederic, 148 AD3d 1086; Spira v Acceus, 114 AD3d 663; Huang v Shih, 73 AD3d 981; Backer v Bouza Falco Co., 28 AD3d 503; Cheemanlall v Toolsee, 17 AD3d 392, 393).

In moving for summary judgment on a complaint seeking specific performance of a contract, a purchaser must submit evidence demonstrating financial ability to purchase the property in order to demonstrate that it was ready, willing, and able to purchase the property (see Grunbaum [*2]v Nicole Brittany, Ltd., 153 AD3d 1384; Kaygreen Realty Co., LLC v IG Second Generation Partners, L.P., 78 AD3d 1010, 1015).

Here, the plaintiff did not establish his prima facie entitlement to judgment as a matter of law on his cause of action for specific performance. Contrary to the defendants' contention, the contract did not contain a provision obligating the plaintiff to secure a "conventional" mortgage loan. Nevertheless, the plaintiff did not show by competent evidence that he had obtained a mortgage loan or otherwise had the means to purchase the premises as of the closing date (see Grunbaum v Nicole Brittany, Ltd., 153 AD3d 1384; New York Tile Wholesale Corp. v Thomas Fatato Realty Corp., 115 AD3d 829; Benhamo v Marinelli, 82 AD3d 922, 923; Kaygreen Realty Co., LLC v IG Second Generation Partners, L.P., 78 AD3d at 1015; Fridman v Kucher, 34 AD3d 726, 727-728). Further, any evidence of a breach or repudiation of the contract by the seller would not obviate the plaintiff's obligation to establish that he was ready, willing, and able to close as of the closing date (see Dixon v Malouf, 70 AD3d 763, 763-764; Zeitoune v Cohen, 66 AD3d 889, 891; see also Pesa v Yoma Dev. Group, Inc., 18 NY3d 527, 531).

The defendants did not demonstrate their prima facie entitlement to judgment as a matter of law dismissing the cause of action for specific performance, as they did not eliminate all issues of fact as to the plaintiff's readiness and ability to perform the contract (see Chester Green Estates, LLC v Arlington Chester, LLC, 161 AD3d 1036; 1107 Putnam LLC v Beulah Church of God in Christ Jesus of the Apostolic Faith, Inc., 152 AD3d 474, 475; Jericho Group Ltd. v Pioneer Mgt. & Realty, LLC, 48 AD3d 368).

The record also shows the existence of triable issues of fact as to whether the plaintiff and/or the seller defaulted, which precludes the grant of summary judgment to either the plaintiff or the defendants as to the cause of action for the return of the down payment (see 533 Park Ave. Realty, LLC v Park Ave. Bldg. & Roofing Supplies, LLC, 156 AD3d 744, 746-747; Pizzurro v Guarino, 147 AD3d 879; Reid v I Grant Inc., 94 AD3d 500, 501).

The plaintiff did not establish his prima facie entitlement to judgment as a matter of law dismissing the counterclaims. Specifically, the plaintiff failed to establish, prima facie, that he did not breach the contract in the manner alleged by the defendants (see Weatherguard Contrs. Corp. v Bernard, 155 AD3d 921, 922; Derago v Ko, 153 AD3d 663, 665).

The plaintiff's remaining contentions are without merit.

Accordingly, we agree with the Supreme Court's determination denying the defendants' motion for summary judgment dismissing the complaint and those branches of the plaintiff's cross motion which were for summary judgment on his causes of action for specific performance of the contract and for return of the down payment, and for summary judgment dismissing the affirmative defenses and counterclaims."