Wednesday, June 19, 2019

AUGUST 2 ON CHAMBER CHATTER


August 2 on Chamber Chatter, Mark Snider is joined by Andrew Lamkin - President of the Plainview Old Bethpage Chamber of Commerce and owner of the Law Office of Andrew M. Lamkin, Jenny Jorge - President of the Freeport Chamber of Commerce and Vice President of Operation for Gala Foods Supermarkets, and Jon Probstein - President of the Levittown Chamber of Commerce and owner of the Law Offices of Jon Michael Probstein.

A production of LIU Public Radio. Visit them at WCWP.org


Tuesday, June 18, 2019

BE A STUDENT MENTOR


Here I am with a student I mentored this year.

One of the volunteer opportunities for Nassau County Bar Association members is to become a Student Mentor. Student Mentors provide valuable adult guidance and serve as a role model for at-risk middle school students in one-on-one sessions at a local middle school. The commitment is twice a month for less than an hour, but the rewards you receive are immeasurable. Mentors are always in demand. Contact Sheryl Palley-Engel at NCBA 516-747-4070 or SPalley-Engel@nassaubar.org

Monday, June 17, 2019

DIVORCE - AWARDING INTERIM COUNSEL FEES


An interesting note to this case: the wife's lawyers withdrew as counsel after the trial court denied the application for additional interim counsel fees. It was the law firm who appealed as a "non-party appellant" and the court held that "the law firm is aggrieved by the order on appeal despite the fact that the relief the law firm sought in the alternative was granted (see RCI Plumbing Corp. v Turner Towers Tenant Corp., 152 AD3d 723, 723; Matter of Stateway Plaza Shopping Ctr. v Assessor of City of Watertown, 87 AD3d 1359, 1360; Scharlack v Richmond Mem. Hosp., 127 AD2d 580, 581; cf. Alberi v Rossi, 117 AD2d 574)."

Pezzollo v Pezzollo, 2019 NY Slip Op 04741, Decided on June 12, 2019, Appellate Division, Second Department:

"A court in a divorce action may award counsel fees to a spouse "to enable [that spouse] to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties" (Domestic Relations Law § 237[a]). "An award of interim counsel fees is designed to redress the economic disparity between the monied spouse and the non-monied spouse, and ensures that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse" (Cohen v Cohen, 160 AD3d 804, 806 [internal citations and quotation marks omitted]; see O'Shea v O'Shea, 93 NY2d 187, 190; Shakil v Rehman, 134 AD3d 1093, 1094; Witter v Daire, 81 AD3d 719, 720; Prichep v Prichep, 52 AD3d 61, 65). There is a rebuttable presumption that interim counsel fees shall be awarded to the less monied spouse (see Domestic Relations Law § 237[a]), and courts "should normally exercise their discretion to grant such a request made by the nonmonied spouse, in the absence of good cause" to deny the request (Prichep v Prichep, 52 AD3d at 65; see Carlin v Carlin, 120 AD3d 734, 735).

Here, considering the equities of the case and the financial circumstances of the parties, the Supreme Court should have directed the defendant to pay additional interim counsel fees to the law firm. Even taking into account the pendente lite relief awarded to the plaintiff and the defendant's voluntary sale of his interest in his medical practice, the defendant remained the monied spouse, and he failed to rebut the presumption that additional interim counsel fees should be awarded to the plaintiff as the nonmonied spouse (see E.J.L. v K.L.L., 38 Misc 3d 389, 406 [Sup Ct, Monroe County]; Darby v Darby, 35 Misc 3d 1235[A], 2012 NY Slip Op 510049[U] [Sup Ct, Kings County]). Exercising this Court's discretionary authority, which is as broad as that of the Supreme Court (see Cohen v Cohen, 160 AD3d at 806), we determine that an award of 75% of the total combined sum requested, or $58,784.90, is appropriate under the circumstances (see Domestic Relations Law § 237[a]; Shakil v Rehman, 134 AD3d 1093; Prichep v Prichep, 52 AD3d at 65). We note that the requested fees were incurred following the plaintiff's prior award of interim counsel fees. Therefore, contrary to the defendant's contention, there is no duplication of fees. We further note that our analysis applied to the granting of interim counsel fees to ensure that the plaintiff "will be able to litigate this action on equal footing" with the defendant (Duvall v Duvall, 144 AD3d 739, 742-743; see Prichep v Prichep, 52 AD3d at 65). A more detailed analysis of the relative financial circumstances of the parties will be addressed after trial and any interim awards will ultimately be considered by the trial court in the context of an overall resolution of the parties' financial claims (see Duvall v Duvall, 144 AD3d at 743; see also DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881; Prichep v Prichep, 52 AD3d at 66)."

Thursday, June 13, 2019

A CHILD'S RIGHT TO APPEAL A CUSTODY DETERMINATION


The child was a female around 16 years old when the Family Court made a decision on a change of custody.

Matter of Newton v McFarlane, 2019 NY Slip Op 04386, Decided on June 5, 2019, Appellate Division, Second Department, Scheinkman, P.J.:

"This appeal raises several important issues pertinent to child custody determinations. We conclude that: (a) the attorney for the child has the authority to pursue an appeal on behalf of the child from an order determining the custody of the child; (b) the child is aggrieved, for appellate purposes, by an order determining custody; (c) the Family Court should not have held a full custody hearing without first determining whether the mother had alleged and established a sufficient change in circumstances to warrant an inquiry into whether the child's best interests were served by the existing custodial arrangement; and (d) the Family Court erred in failing to give due consideration to the expressed preferences of the child, who is a teenager."

Some highlights from the decision:

"We recognize that in Matter of Lawrence v Lawrence (151 AD3d 1879) and Matter of Kessler v Fancher (112 AD3d 1323), the Appellate Division, Fourth Department, dismissed appeals taken by the attorney for the child from orders dismissing custody modification petitions. In those cases, the parent whose petition was dismissed did not appeal. The Court reasoned that children could not compel their parents to litigate positions that the parents had elected to abandon. While we do not necessarily agree with the stated rationale, we do agree that it may be inappropriate to entertain litigation by a child for a change in custody where the parent to whom the custody of the child would be transferred is unwilling to accept the transfer. Likewise, it may be inappropriate to entertain litigation by a child to prevent a change in custody where the parent who has had custody is no longer opposed to the change. The present case does not present such a concern since the father, while not having filed and perfected his own appeal, has submitted a brief in which he urges reversal of the order from which the child has appealed. Further, since enforcement of the order has been stayed pending determination of this appeal, the father remains the custodial parent. Hence, this is not a circumstance where the child is attempting to compel a custody award in favor of an unwilling parent."

And this:

"Substantively, and more importantly, it cannot be denied that a teenaged child has a real and substantial interest in the outcome of litigation between the parents as to where the child [*4]should live and who should be entrusted to make decisions for the child. It seems self-evident that the child is the person most affected by a judicial determination on the fundamental issues of responsibility for, and the environment of, the child's upbringing. To rule otherwise would virtually relegate the child to the status of property, without rights separate and apart from those of the child's parents. As Chief Judge Charles D. Breitel stated in the landmark case of Matter of Bennett v Jeffreys (40 NY2d 543, 546): "a child is a person, and not a subperson over whom the parent has an absolute possessory interest. A child has rights too, some of which are of . . . constitutional magnitude." Among those rights is the child's right to have his or her best interests, and his or her position concerning those interests, given consideration by the court."

And note some of the issues raised by the non-custodial parent, as this was a teenager that did have some issues:

"Although the child had both academic and behavorial difficulties in school, these difficulties were of long-standing nature and were not due to any failings of the father. The father took appropriate steps to address the child's learning disabilities by working with her teacher and obtaining appropriate services for the child (see Matter of Cooper v Williams, 161 AD3d 1235, 1238 [father did not demonstrate a change in circumstances where the mother did not conceal one child's ADHD diagnosis and there was no evidence that the children's poor school performance was due to the custodial arrangement or failings of the mother]; Matter of Tiffany H.-C. v Martin B., 155 [*6]AD3d 501, 502 [father failed to demonstrate a change in circumstances based on poor school performance where he failed to obtain information about the children's education and where the mother took appropriate steps to address the children's learning disabilities by working with the school and obtaining appropriate services]). The father had sought private counseling for the child based on the school counselor's recommendation, but the services ended because the child missed sessions while she was visiting the mother. The suggestion that the mother might do a better job with these school issues than the father was belied by an episode in which the mother, during a telephone discussion with a family counselor, admittedly cursed at the counselor, ending the discussion with the mother. The counselor continued sessions with the father and the child.

In sum, while the child struggled academically, her difficulties were neither new nor related to the father's parenting; on the contrary, the evidence strongly suggested that the child's academic challenges were long-standing and that the father had developed numerous effective strategies for helping the child and motivating her. Thus, the child's academic struggles did not constitute a change in circumstances (see Matter of Cooper v Williams, 161 AD3d at 1238; Matter of Tiffany H.-C. v Martin B., 155 AD3d at 502).

The record establishes that the father responded appropriately to the discovery of the explicit photographs on the child's phone. When the father picked up the child after the visit during which the mother found the photos, he took away the child's phone and did not give it back to her for approximately five months. He also repeatedly discussed the seriousness of the issue with the child. He also discussed the incident with a private counselor, the school counselor, and the child's teachers. When the father returned the phone to the child, he did not enable Internet access or allow the child to password protect the phone. He also monitored the phone, and there have been no similar incidents. In contrast, although the mother was concerned that the child might again misuse Internet access, the mother did not take the phone away from the child, and had not tried to block Internet access or asked anyone else to do so. The mother was not even aware that parental control restrictions could be implemented, and did not know whether they were in place on the child's phone.

While the child's taking and/or distribution of explicit photos is a matter of concern given the way in which photos can spread on the Internet, the father's response to this incident was much more proactive. While this was a modern-age parenting challenge, there is nothing in the record to suggest that the father handled the situation inappropriately and certainly not to an extent that would constitute a change in circumstances warranting a review of custody (see Matter of Koch v Koch, 121 AD3d 1201, 1202 [father's ability, inter alia, to administer appropriate discipline supported award of custody to him]; Matter of Danielle TT. v Michael UU., 90 AD3d 1103, 1104 [court properly awarded custody to mother who, inter alia, was more likely to follow through with disciplining the children])."

Wednesday, June 12, 2019

FOR PRO SE HOMEOWNERS IN FORECLOSURE



From June 4, 2019 Press Release:

"The court system’s Office of Justice Initiatives and Office of Policy and Planning today announced an online program to assist homeowners in residential foreclosure lawsuits prepare the paperwork needed to proceed with the case ̶the latest of the court system’s many resources to aid homeowners. The program, which goes live today at www.nycourthelp.gov/DIY, was developed in partnership with Legal Assistance of Western New York, Inc. and Legal Services NYC."

The foreclosure assistance program is available at this link: Foreclosure Answer Program

Tuesday, June 11, 2019

DELAY IN SUBSTITUTION LEADS TO DISMISSAL



Justice delayed may mean justice is denied.

Silberstein v Silberstein Awad & Miklos, P.C. , 2019 NY Slip Op 04438, Decided on June 5, 2019, Appellate Division, Second Department:

"CPLR 1021 requires a motion for substitution to be made within a reasonable time. The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, prejudice to the other parties, and whether the party to be substituted has shown that the action or the defense has merit (see Suciu v City of New York, 239 AD2d 338; Mansfield Contr. Corp. v Prassas, 183 AD2d 878).

Here, we disagree with the Supreme Court's determination permitting the substitution of Ivy Silberstein as the plaintiff in this action. The action was commenced in April 2004 and was based, in part, upon a loan made by the plaintiff to the defendants prior to 1997. The plaintiff died on February 20, 2005. In February and March 2013, within the deceased plaintiff's estate proceeding, a stipulation was executed allowing Ivy Silberstein to be substituted as the plaintiff in this action. On September 23, 2014, Ivy Silberstein was granted limited letters of administration solely for the prosecution of this action. However, it was not until April 2017 that she moved to be substituted as the plaintiff in the action. Ivy Siberstein's submissions in support of her motion failed to provide any explanation for the long delay in her receiving the letters of administration, or a reasonable excuse for the unreasonably long delay in seeking a substitution, even after the letters of administration were issued. Moreover, she failed to provide an affidavit of merit (see Howlader v Lucky Star Grocery, Inc., 153 AD3d 610; Suciu v City of New York, 239 AD2d 338; Mansfield Contr. Corp. v Prassas, 183 AD2d 878). Contrary to her contention, we find that the defendants [*2]would be prejudiced if the substitution were permitted.

Accordingly, the Supreme Court should have denied Ivy Silberstein's motion to be substituted as the plaintiff, and should have granted the defendants' cross motion pursuant to CPLR 1021 to dismiss the complaint (see Giroux v Dunlop Tire Corp., 16 AD3d 1068; Suciu v City of New York, 239 AD2d 338; Mansfield Contr. Corp. v Prassas, 183 AD2d 878)."

Monday, June 10, 2019

A DE FACTO DISCONTINUANCE


It appears that although a foreclosure action is not formally discontinued, the effective abandonment of that action is a "de facto discontinuance" which militates against dismissal of the new action pursuant to RPAPL 1301 (3). 

U.S. Bank Trust, N.A. v Humphrey, 2019 NY Slip Op 04445, Decided on June 5, 2019, Appellate Division, Second Department:

"The plaintiff, U.S. Bank Trust, N.A. (hereinafter U.S. Bank), commenced this action in October 2014 to foreclose a mortgage, against, among others, the defendant Lionel Humphrey (hereinafter the defendant). The defendant moved, inter alia, pursuant to RPAPL 1301(3) and CPLR 3211(a)(1) to dismiss the complaint on the ground that there was another action pending to foreclose upon the same mortgage. In support of the motion, the defendant submitted evidence that in October 2010, HSBC Mortgage Services, Inc. (hereinafter HSBC), commenced an action to foreclose the subject mortgage against the defendant, among others (hereinafter the 2010 action), the defendant had joined issue in the 2010 action, and the 2010 action remained pending. U.S. Bank, to whom the subject mortgage was assigned shortly before it commenced the instant action, opposed the defendant's motion and submitted evidence that the plaintiff in the 2010 action, HSBC, had signed a stipulation discontinuing that action in August 2013. U.S. Bank submitted additional evidence that the stipulation was sent to the defendant, and there had been no further prosecution in the 2010 action. In the order appealed from, the Supreme Court denied the defendant's motion. The defendant appeals.

RPAPL 1301(3) provides that "[w]hile [an] action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought." The purpose of the statute is "to shield the mortgagor from the expense and annoyance of two independent actions at the same time with reference to the same debt" (Central Trust Co. v Dann, 85 NY2d 767, 772 [internal quotation marks and emphasis omitted]; see Old Republic Natl. Tit. Ins. Co. v Conlin, 129 [*2]AD3d 804, 805; Hometown Bank of Hudson Val. v Belardinelli, 127 AD3d 700, 701; Aurora Loan Servs., LLC v Lopa, 88 AD3d 929, 930). Under the circumstances of this case, we agree with the Supreme Court's determination that the defendant was not entitled to dismissal of the complaint pursuant to RPAPL 1301(3). The record supports the conclusion that the plaintiff's assignor, the former mortgagee, effectively abandoned its prior action to foreclose the mortgage. Although the 2010 foreclosure action was not formally discontinued, due in part to the defendant's failure to sign the stipulation of discontinuance, "the effective abandonment of that action is a de facto discontinuance' which militates against dismissal of the present action pursuant to RPAPL 1301(3)" (Old Republic Natl. Tit. Ins. Co. v Conlin, 129 AD3d at 805; see Credit-Based Asset Servicing & Securitization v Grimmer, 299 AD2d 887, 888; see also Bank of N.Y. Mellon v Adam Pl0tch LLC, 162 AD3d 502, 503; see also Wells Fargo Bank, N.A. v Irizarry, 142 AD3d 610, 611)."

Friday, June 7, 2019

FOR PRO BONO MATRIMONIAL RETAINER AGREEMENTS



The Judicial Departments of the Appellate Division of the New York State Supreme Court amended, effective June 1, 2019, the Statement of Client's Rights and Responsibilities (to be used only when representation is without fee) set forth in section 1400.2 of Part 1400 of Title 22 of the Official Compilations of Codes, Rules and Regulations of the State of New York.

See https://www.nycourts.gov/LegacyPDFS/rules/jointappellate/1400.2%20-%20Joint%20Order.pdf

Thursday, June 6, 2019

ONE YEAR TO ENTER JUDGMENT ON DEFAULT



Of course, the question is: what constitutes a reasonable excuse for the more than one year delay.

Deutsche Bank Natl. Trust Co. v Booker, 2019 NY Slip Op 04356, Decided on June 5, 2019, Appellate Division, Second Department:

"In September 2012, the plaintiff commenced an action (hereinafter Action No. 1) against, among others, the defendant Bernard Booker (hereinafter the defendant) to foreclose a mortgage on certain property in Mount Vernon. The defendant was personally served on October 1, 2012, but failed to appear or answer the complaint. In February 2015, the plaintiff commenced a second foreclosure action (hereinafter Action No. 2) in which it sought the same relief against a judgment creditor of the defendant. Also in February 2015, the plaintiff filed a request for judicial intervention in Action No. 1 requesting a residential mortgage foreclosure settlement conference. A settlement conference was held on April 21, 2015, but the defendant failed to appear. In March 2016, the plaintiff moved, inter alia, for an order of reference. The defendant cross-moved pursuant to CPLR 3215(c) to dismiss the complaint in Action No. 1 insofar as asserted against him as abandoned. The Supreme Court, inter alia, denied that branch of the plaintiff's motion which was for an order of reference, granted the defendant's cross motion, and, sua sponte, in effect, directed dismissal of the complaint in Action No. 2. The plaintiff appeals.

"CPLR 3215(c) provides that [i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed'" (Myoung Ja Kim v Wilson, 150 AD3d 1019, 1020, quoting CPLR 3215[c]). This statute is strictly construed, as "[t]he language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory inasmuch as courts shall' dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one year period, as those claims are deemed abandoned" (Giglio v NTIMP, Inc., 86 AD3d 301, 307-308; see Ibrahim v Nablus Sweets Corp., 161 AD3d 961, 963; HSBC Bank USA, N.A. v Grella, 145 AD3d 669, 671). The statute further provides, however, that the failure to timely seek a default may be excused if " sufficient cause is shown why the complaint should not be dismissed'" (HSBC Bank USA, N.A. v Grella, 145 AD3d at 671, quoting CPLR 3215[c]; see Ibrahim v Nablus Sweets Corp., 161 AD3d at 963). To establish the sufficient cause required by CPLR 3215(c), "the party opposing dismissal must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action" (Aurora Loan Servs., LLC v Hiyo, 130 AD3d 763, 764; see Ibrahim v Nablus Sweets Corp., 161 AD3d at 963; Wells Fargo Bank, N.A. v Bonanno, 146 AD3d 844, 845-846).

Here, the plaintiff failed to seek a default judgment on the unanswered complaint in Action No. 1 within one year after the default, as required by CPLR 3215(c), and failed to offer a reasonable excuse for the delay (see Federal Natl. Mtge. Assn. v Heilpern, 164 AD3d 654, 655-656). Since the plaintiff failed to proffer a reasonable excuse, this Court need not consider whether the plaintiff had a potentially meritorious cause of action (see BAC Home Loans Servicing, LP v Broskie, 166 AD3d 842, 843; U.S. Bank, N.A. v Dorvelus, 140 AD3d 850, 852)."

Wednesday, June 5, 2019

A MODIFIED SEPARATION AGAREEMENT



The safer practice is to have the modification acknowledged. Standard provision I have utilized states "Neither this Agreement nor any provision hereof, including this Article, shall be amended, waived or modified or deemed amended, waived or modified, except by an agreement in writing duly subscribed and acknowledged with the same formality as this Agreement, except as expressly provided herein." In the decision below, they do not state whether the agreement contained such language.

Schaff v Schaff, 2019 NY Slip Op 04215, Decided on May 29, 2019, Appellate Division, Second Department:

"The plaintiff and the defendant are the parents of three adult children. In 2004, the parties entered into a separation agreement, which was incorporated but not merged into the parties' judgment of divorce entered October 18, 2005, providing that the plaintiff would have residential custody of the parties' children and that the defendant would pay $446 per week in child support. The separation agreement provided that no modification or waiver of any of the terms thereof would be valid unless in writing and signed by both parties.

In December 2016, the defendant moved, inter alia, to modify the child support provisions of the judgment of divorce to reflect two modification agreements to the separation agreement. In support of his motion, the defendant submitted his affidavit in which he averred that the parties entered into two written modification agreements, one dated December 1, 2007 (hereinafter the 2007 writing), and one dated September 4, 2008 (hereinafter the 2008 writing), to modify their separation agreement. The defendant submitted copies of the 2007 writing and the 2008 writing, which he averred were signed by both parties. The 2007 writing provided that the defendant [*2]would have "residential" custody of the parties' daughter and their two sons would "remain residing" with the plaintiff. The 2007 writing also provided that, in light of the change of residential custody of their daughter, the new child support amount payable by the defendant to the plaintiff would be $1,256 per month. The 2008 writing provided, in part, that "[c]hild support will end effective immediately." The plaintiff opposed the defendant's motion, and cross-moved for, inter alia, a determination of the defendant's child support arrears.

By order dated July 10, 2017, the Supreme Court determined that the 2007 writing and the 2008 writing were enforceable modifications of the separation agreement and directed a conference, and, thereafter, if necessary, a hearing, to aid in the determination of the remaining issues in the defendant's motion and the plaintiff's cross motion. The plaintiff appeals.

So much of the order as directed a conference, and thereafter, if necessary, a hearing, did not dispose

……..

Contrary to the plaintiff's contention, the defendant was not required to institute a plenary action, as he was seeking to enforce the terms of the parties' separation agreement, which he asserts were modified by the 2007 writing and the 2008 writing (see Campello v Alexandre, 155 AD3d 1381, 1382; Gavin v Catron, 35 AD3d 354, 355; Luisi v Luisi, 6 AD3d 398, 400; Taylor v Taylor, 251 AD2d 175, 175-176). The separation agreement was incorporated but not merged into their judgment of divorce, and the separation agreement permitted written modifications, signed by both parties. By the express terms of the judgment of divorce, the Supreme Court retained jurisdiction to enforce the terms of the separation agreement.

We agree with the Supreme Court's determination that the 2007 writing and the 2008 writing are enforceable modification agreements to the parties' separation agreement. Contrary to the plaintiff's contentions, because the parties were no longer married at the time of the execution of the 2007 writing and the 2008 writing, those agreements did not need certificates of acknowledgment in order to be enforceable (see Domestic Relations Law § 236[B][3]; Penrose v Penrose, 17 AD3d 847, 848; Hargett v Hargett, 256 AD2d 50, 50).

A separation agreement is a contract subject to the principles of contract construction and interpretation (see Matter of Meccico v Meccico, 76 NY2d 822, 823-824; Matter of Tammone v Tammone, 94 AD3d 1131, 1133; Fishbein v Fishbein, 72 AD3d 1021, 1021). Accordingly, where the language of the agreement is clear and unambiguous, the court should determine the intent of the parties based on that language without resorting to extrinsic evidence (see Matter of Tammone v Tammone, 94 AD3d at 1133; Fishbein v Fishnein, 72 AD3d at 1021-1022). Here, the 2007 writing and the 2008 writing are unambiguous (see Matter of Meccico v Meccico, 76 NY2d at 823-824; Fishbein v Fishbein, 72 AD3d at 1021-1022; Kosnac v Kosnac, 60 AD3d 636, 637; Winski v Russo Kane, 33 AD3d 697, 698). Accordingly, the Supreme Court was not required to conduct a hearing and we agree with the court's determination that the 2007 writing and the 2008 writing are enforceable (see Schron v Troutman Sanders LLP, 20 NY3d 430, 436; cf. Salinger v Salinger, 125 AD3d 747, 749)."

Tuesday, June 4, 2019

MORTGAGE FORECLOSURE - FORBEARANCE AGREEMENT REVOKED ELECTION TO ACCELERATE



U.S. Bank Trust, N.A. v Rudick, 2019 NY Slip Op 04218, Decided on May 29, 2019, Appellate Division, Second Department

The plaintiff is the current holder of a note in the amount of $2,470,033 dated September 29, 2006, executed in favor of JP Morgan Chase Bank, N.A. (hereinafter Chase), by the defendant Samuel Rudick (hereinafter the defendant). The note was consolidated with numerous prior notes through a consolidation, extension, and modification agreement and secured by a mortgage dated September 29, 2006, on property in Westhampton.

After the defendant allegedly defaulted on the mortgage, Chase commenced a foreclosure action on June 12, 2008 (hereinafter the prior action). While the prior action was still pending, Chase and the defendant entered into a forbearance agreement on October 9, 2009, whereby Chase agreed, inter alia, to refrain from exercising its right to seek payment in full of all sums owed under the loan documents, and the defendant agreed, among other things, to repay all past due amounts pursuant to a new monthly repayment schedule. The defendant thereafter allegedly ceased to make payments under the forbearance agreement and, ultimately, the prior action was voluntarily discontinued by Chase for reasons that do not appear in the record.

This action was commenced in May 2015 by the plaintiff, as Chase's successor in interest, and the defendant moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him as barred by the six-year statute of limitations (see CPLR 213[4]). The Supreme Court granted that branch of the defendant's motion, and the plaintiff appeals.

While the commencement of the prior action in June 2008 constituted an election by Chase to accelerate the mortgage, thereby triggering the running of the statute of limitations on the entire debt (see Albertina Realty Co. v Rosbro Realty Corp., 258 NY 472, 476; Milone v US Bank N.A., 164 AD3d 145, 152; Freedom Mort. Corp. v Engel, 163 AD3d 631, 632), the subsequent forbearance agreement—a copy of which was submitted by the plaintiff in opposition to the defendant's motion—evinced a clear intent by Chase, with the defendant's knowledge and consent, to revoke its prior election and reinstate the defendant's right to repay the underlying debt in monthly installments, subject to the new terms and conditions set forth in the forbearance agreement (see Milone v US Bank N.A., 164 AD3d at 154; Golden v Ramapo Improvement Corp., 78 AD2d 648, 650). Thus, contrary to the defendant's contention, the earliest the six-year statute of limitations could have begun to run on the entire debt is the date on which the defendant defaulted under the terms of the forbearance agreement—a date which could not have been more than six years before this action was commenced.

Monday, June 3, 2019

WHAT IS A REASONABLE EXCUSE FOR A CORPORATION TO DEFAULT



Corporations can be served through service of the Secretary of State so it is important to have a current address on record to have Albany send you the summons and complaint.

Dove v 143 Sch. St. Realty Corp., 2019 NY Slip Op 04136, Decided on May 29, 2019, Appellate Division, Second Department:

In June 2016, the plaintiff commenced this action, inter alia, against the defendants for specific performance of two contracts for the sale of real property. The defendants were served on June 20, 2016, by delivery of copies of the summons and complaint to the Secretary of State (see Business Corporation Law § 306). The defendants failed to appear or answer the complaint. In August 2016, the plaintiff moved, inter alia, for leave to enter a default judgment against the defendants. The defendants did not oppose the plaintiff's motion and, in an order dated November 23, 2016, the Supreme Court granted that branch of the plaintiff's motion which was for leave to enter a default judgment against the defendants on the issue of liability (hereinafter the default order). The defendants did not appear at a subsequent settlement conference held on December 20, 2016, or at an inquest held on January 23, 2017, despite having received notice of those appearances. On March 1, 2017, the defendants moved, in effect, to vacate the default order pursuant to CPLR 317 and 5015(a)(1). The plaintiff opposed the motion. In an order dated May 22, 2017, the court denied the defendants' motion, and a judgment dated May 24, 2017, was entered in favor of the plaintiff and [*2]against the defendants, inter alia, directing specific performance of the contracts with a reduction of the purchase price of the subject properties. The defendants subsequently moved, inter alia, for leave to renew their prior motion to vacate the default order. In an order dated November 30, 2017, the court, in effect, upon renewal, adhered to the determination in the order dated May 22, 2017. The defendants appeal from the judgment dated May 24, 2017, and from so much of the order dated November 30, 2017, as, in effect, upon renewal, adhered to the prior determination.

"Pursuant to CPLR 317, a defaulting defendant who was served with a summons other than by personal delivery' may be permitted to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a potentially meritorious defense" (Booso v Tausik Bros., LLC, 148 AD3d 1108, 1108, quoting CPLR 317). "There is no necessity for a defendant moving pursuant to CPLR 317 to show a reasonable excuse for its delay" (Kircher v William Penn Life Ins. Co. of N.Y., 165 AD3d 1241, 1243; see Evans v City of Mt. Vernon, 163 AD3d 770, 772). "The determination of a motion pursuant to CPLR 317 is addressed to the sound discretion of the trial court, the exercise of which will generally not be disturbed if there is support in the record therefor" (Acqua Capital, LLC v Camarella Contr. Co., Inc., 164 AD3d 1197, 1198 [internal quotation marks omitted]). Contrary to the defendants' contention, the evidence in the record demonstrated that they received actual notice of the summons in time to defend the action. The self-serving affidavits of the defendants' owner averring, inter alia, that he was in Florida when the summons and complaint were delivered to a post office box address in New York, amounted to nothing more than a mere denial of receipt of the summons and complaint, and was insufficient to demonstrate that the defendants were entitled to relief under CPLR 317 (see Moran v Grand Slam Ventures, LLC, 160 AD3d 944, 945; Ultimate One Distrib. Corp. v 2900 Stillwell Ave., LLC, 140 AD3d 1054, 1055; Xiao Lou Li v China Cheung Gee Realty, LLC, 139 AD3d 724, 726; Wassertheil v Elburg, LLC, 94 AD3d 753, 754).

In contrast to a motion pursuant to CPLR 317, a defendant seeking, pursuant to CPLR 5015(a)(1), to vacate an order or judgment entered upon a default must demonstrate a reasonable excuse for the default (see Golden Mtn. Income, LLC v Spencer Gifts, LLC, 167 AD3d 850, 850; Dwyer Agency of Mahopac, LLC v Dring Holding Corp., 164 AD3d 1214, 1216; Zovko v Quittner Realty, LLC, 162 AD3d 1102, 1103-1104). The determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court (see Mid-Hudson Props., Inc. v Klein, 167 AD3d 862, 864; GMAC Mtge., LLC v Guccione, 127 AD3d 1136, 1138). Here, the defendants' conclusory denial of receipt of the summons and complaint served through the Secretary of State did not amount to a reasonable excuse for the defendants' default. Although the defendants' owner averred, inter alia, that he was caring for his terminally ill mother, who died on July 29, 2016, and that he did not learn of the action until after the defendants' time to appear or answer the complaint had elapsed, the defendants failed to establish a reasonable excuse for failing to oppose the plaintiff's subsequent motion, inter alia, for leave to enter a default judgment and for otherwise failing to appear in the action until more than three months after the issuance of the default order (see Jing Shan Chen v R & K 51 Realty, Inc., 148 AD3d 689, 691; Alterbaum v Shubert Org., Inc., 80 AD3d 635, 636). Furthermore, the defendants' additional assertion that ongoing settlement negotiations between the parties excused their default in failing to appear or answer the complaint, even after the plaintiff indicated its intent to move for leave to enter a default judgment, is without merit (see Turko v Daffy's, Inc., 111 AD3d 615, 616; Community Preserv. Corp. v Bridgewater Condominiums, LLC, 89 AD3d 784, 785; Kouzios v Dery, 57 AD3d 949, 950; Antoine v Bee, 26 AD3d 306, 306).

In light of the foregoing, it is unnecessary to determine whether the defendants demonstrated the existence of a potentially meritorious defense (see Wells Fargo Bank, N.A. v Leonardo, 167 AD3d 816, 817; Dwyer Agency of Mahopac, LLC v Dring Holding Corp., 164 AD3d at 1217). Accordingly, we agree with the Supreme Court's determination, in effect, upon renewal, to adhere to its original determination denying the defendants' motion, in effect, to vacate the default order.

Friday, May 31, 2019

THE RISK TO A SELLER WHO WON'T SELL..AND A BUYER WHO WON'T WALK AWAY



As the court noted in the companion appeal, 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. NOTE: the contract of sale was entered into in September 2013 and the court ordered conveyance took place around October 2018. That's a long wait for a house.

Breskin v Moronto, 2019 NY Slip Op 04127, Decided on May 29, 2019, Appellate Division, Second Department:

"The basic facts of this case are related in a companion appeal (see Breskin v Moronto, _____ AD3d _____ [Appellate Division Docket No. 2016-03080; decided herewith]). In an order dated February 22, 2016, the Supreme Court granted the plaintiffs' motion for summary judgment on their first cause of action, which sought specific performance, and on their second cause of action, which sought reasonable costs and expenses, including attorneys' fees, pursuant to the terms of the parties' contract. The order directed the defendant to deliver the premises vacant, with no tenants on the first and third floors, and directed the plaintiffs to make a separate motion for an award of reasonable costs and expenses, including attorneys' fees. In an order dated March 7, 2016, the court, upon renewal and reargument, adhered to the determination in the order dated February 22, 2016, [*2]and directed that "[s]pecific performance of the contract must be completed on or before" April 6, 2016.

When the closing did not occur by April 6, 2016, the plaintiffs moved, inter alia, to hold the defendant in civil contempt and to direct the Sheriff of Kings County to convey the property to them. In a separate motion, the plaintiffs sought an award of attorneys' fees in the sum of $199,123.50, costs in the sum of $300, and disbursements and expenses in the sum of $4,805.11. In the order appealed from, the Supreme Court directed the defendant to convey the subject real property to the plaintiffs and awarded the plaintiffs attorneys' fees in the sum of $5,000, costs in the sum of $300, and disbursements and expenses in the sum of $4,805.11. The court denied that branch of the plaintiff's motion which was to hold the defendant in civil contempt, "particularly without a hearing ascertaining the intent of the defendant." The plaintiffs appeal.

While this appeal was pending, in an order dated October 26, 2018, the Supreme Court directed the Sheriff of Kings County to convey the property to the plaintiffs, and the property was so conveyed. Accordingly, the remaining issues on this appeal are whether the defendant should have been held in civil contempt and the amount of attorneys' fees awarded to the plaintiffs.

"A motion to punish a party for civil contempt is addressed to the sound discretion of the court, and the movant bears the burden of proving the contempt by clear and convincing evidence" (Matter of Hughes v Kameneva, 96 AD3d 845, 846). "In order to adjudicate a party in civil contempt, a court must find: (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the party against whom contempt is sought disobeyed the order, (3) that the party who disobeyed the order had knowledge of its terms, and (4) that the movant was prejudiced by the offending conduct. The party seeking a finding of civil contempt must prove these elements by clear and convincing evidence" and willfulness need not be established (Palmieri v Town of Babylon, 167 AD3d 637, 640 [citation omitted]).

Since a showing of willfulness is not required to establish civil contempt, no hearing was necessary with respect to the defendant's intent. We conclude that the defendant's conduct in failing to vacate the premises was in civil contempt of the orders dated February 22, 2016, and March 7, 2016. Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing and determination as to the appropriate punishment for contempt and the appropriate directive for allowing the defendant to purge herself of her contempt.

Further, it is apparent that the defendant was in violation of the terms of the parties' contract, and pursuant to the terms of that contract the plaintiffs were entitled to an award of reasonable costs and expenses, including attorneys' fees. The Supreme Court improvidently exercised its discretion when it awarded the plaintiffs the sum of only $5,000 in attorneys' fees. Accordingly, we also remit the matter to the Supreme Court, Kings County, for a hearing and a new determination of the award of attorneys' fees to which the plaintiffs are entitled pursuant to the terms of the contract (see East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, 150 AD3d 683, 690; Altadonna v Accord Contr. & Mgt. Corp., 148 AD3d 764).

Since this action for specific performance is an action of an equitable nature, interest on the award of reasonable costs and expenses, including attorneys' fees, and the rate and date from which that interest shall be computed shall be in the court's discretion (see CPLR 5001[a]; John Hancock Life Ins. Co. of N.Y. v Hirsch, 77 AD3d 710, 711), governed by the facts, including any wrongful conduct by either party (see Danielowich v PBL Dev., 292 AD2d 414, 415). This issue should be determined after the hearing."

Thursday, May 30, 2019

NEIGHBORS AS NUISANCE - AND THEIR DOGS


The lesson here is that every plaintiff who makes a claim may expect a counterclaim.

Allen v. Powers, NYLJ, May 28, 2019, Date filed: 2019-04-01, Court: City Court, Albany ,Judge: Judge Thomas Marcelle, Case Number: CV-526-18/CO

"Julianne Allen (“Allen” or “plaintiff”) sued her neighbors Jennifer and John Powers (“the Powers” or “defendants”) claiming that their two German Shepherds barked incessantly. The dogs’ constant barking at all hours interfered with Allen’s right to quiet use and enjoyment of her property — at least according to Allen’s Complaint. The Powers denied these allegations and interposed a counterclaim contending that Allen had repeatedly called municipal authorities with specious complaints. Allen’s continued and prolonged efforts were an attempt to make them move or have their landlord, David Bosko, evict them — so say the Powers in their counterclaim.Allen responded by asking the Court to dismiss the counterclaim for failing to state a cause of action. Allen argues that the Powers’ allegations sound like a claim for harassment. The problem with such a claim is that New York does not recognize a cause of action of harassment (Wells v. Town of Lenox, 110 AD3d 1192 [3d Dept 2013]). Moreover, the allegations, Allen argues, “do not appear to make a claim for any other known tort” (Plaintiff’s Memorandum of Law at p. 2). Allen concludes, therefore, that since the Powers have not pled a cognizable theory of liability, their case must be dismissed.

The counterclaim states that Allen fabricated complaints or made frivolous complaints to various City officials to prevent the Powers from the use and quiet enjoyment of their property. This is classic nuisance language and the court, thus, feels the obligation to consider a cause of action sounding in private nuisance. While the language mirrors the traditional terms of a private nuisance, the allegations do not. A classic nuisance complaint alleges that an unpleasant noise, odor or sight generated from a nearby tract of land renders the plaintiff’s occupation and enjoyment of their home physically uncomfortable (Crawford v. Tyrrell, 128 NY 314 [1891]). Here, the alleged blight is the intrusion of a bureaucratic horde to investigate the Powers’ compliance with municipal regulations — a markedly unusual claim.

This question is not easily resolved. “There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance’” (Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts, §86, p. 616 [5th ed. 1984]). The examination of the Powers’ claim starts with the elementary components of a private nuisance. Private nuisance is established by proof of intentional action or inaction that substantially and unreasonably interferes with other people’s use and enjoyment of their property” (Schillaci v. Sarris, 997 N.Y.S.2d 504, 508 [NY App. Div. 2014]). Historically, the nuisance was produced by the wrongdoer on his own property (In re Chicago Flood Litig., 176 Ill 2d 179, 205 [Ill. 1997]).

Neither the court nor the parties could locate a New York precedent where a private nuisance was caused by an act unconnected with another’s use of property. Yet, nothing in the elementary formulation of a nuisance claim requires the action or inaction which causes the disturbance to arise from or be connected to the use of nearby land (see e.g., Copart Indus. v. Consolidated Edison Co. of NY, 41 NY2d 564, 570 [1977] [holding that the substantial interference with other's property need only be "caused by another's conduct in acting or failure to act"]). If this case were a statutory claim, the court would be at an impasse. Legislative enactments are inflexible. What a statute fails to command or to contemplate cannot be remedied by a court modifying the statutory language. Statues by their very nature leave gaps. No legislative body, no matter how wise, can conceive of every possible circumstance that constitutes a civil wrong.

However, private nuisance is a common law claim and the fantastic beauty of the common law is that it allows a court to shape, extend, narrow or adapt the law to the context of a controversy between parties. So, the question becomes whether the court should venture into new grounds. To assist in this endeavor, the court will examine three precedents from sister states: Macca v. Gen. Tel. Co. of Nw., 262 Or 414 (Or. 1972); Brillhardt v. Ben Tipp, Inc., 48 Wash 2d 722 (Wash 1956) and Schiller v. Mitchell, 357 Ill App3d 435 (Ill App Ct 2005).

In Brillhardt, a company misprinted its telephone number on sales slips. The number belonged to the plaintiff, a realtor. After the misprint, plaintiff was frequented with calls for the defendant; fed up with the calls from people not looking for her, she sued defendant for nuisance. Thus, the nuisance in Brillhardt, the repeated calls, was not caused by defendant, but by people who were attempting to call the defendant. Thus, the nuisance was not caused by the use of defendant’s property. Nevertheless, the Washington Supreme Court found the repeated calls violated “[plaintiff's] right to enjoy her property without unreasonable interference” (i.e., a private nuisance), entitling her to damages (Id at 727).

Macca v. Gen. Tel. Co. of Nw., 262 Or 414 (Or. 1972) dealt with a similar issue as Brillhardt. In Macca, a phonebook company erroneously listed plaintiff’s telephone number as “after hours” telephone number for a floral shop. This error generated numerous telephone calls to plaintiff. The court noted that nuisance “includes the disturbance of the comfort or convenience of the occupant of the land” (Macca, 262 Or. at 419). The Oregon Supreme Court analogized repeated phone calls to latter “unpleasant odors, smoke or dust, [and] loud noises” (Id). The court concluded that the phone company’s misprint resulted in invasion of plaintiff’s right to enjoy her property without unreasonable interference and she could recover damages (Id at 420).

Finally, Schiller v. Mitchell, 357 Ill App3d 435 (Ill App Ct 2005) involved the defendant making continuous calls to the police and other governmental agencies to complain about plaintiffs. Plaintiffs alleged that they were obliged to respond to calls and personal investigatory visits from government officials that had been initiated upon the demand of the defendant. This, plaintiffs averred, prevented them from the enjoyment of their home. Plaintiffs claimed that defendant’s acts constituted a private nuisance. The Illinois Court disagreed, holding that to state a cause of action for private nuisance it is necessary to allege a physical invasion of the plaintiff’s property. According to the Illinois court, the calls and visits by the government did not constitute a physical invasion, and thus plaintiffs had no case.

Perhaps the best way to analyze the case and to reconcile these opinions is to return to the origins of common law nuisance. The common law’s protection against unpleasant sounds, smells and sights were to allow owners peace and repose in their homes. Just as the industrialization of the United States meant the proliferation of odors and noise, and the invention of the telephone allowed the ringing to breach the solitude and with it the common laws courts from a right to be free from such intrusions (Brillhardt and Macca). Today, the administrative state has mushroomed and with it, a swarm of regulations. These regulations allow neighbors to sic municipal bureaucrats on each other. Authorities must dutifully undertake to examine each complaint which corresponds to visits by police and other members of the executive branch of government to a home owner. Each visit causes angst and repeated visits, when those visits are but a contrivance by a neighbor, leaves a homeowner in perpetual agitation — which creates a nuisance and robs the homeowner of solitude. Such repeatedly intrusions, when they are unjustified because of a neighbor’s specious claims, violated the homeowners’ right to the quiet enjoyment of their home — and correspondingly, give rise to a private cause of action for nuisance.1

Moreover, the Powers’ allegations here are directly connected to their ability to continue the use and enjoyment of their property. The Powers contend that all of Allen’s calls to authorities were an attempt by her to have them removed from their home by their landlord Bosko. This provides a direct connection to the use of the property. Thus, the court is convinced that the Powers’ counterclaim alleges a private nuisance.

Of course, here, the counterclaim is short on specifics. The question of nuisance will turn on the number of complaints, the frequency of the complaints, the redundancy of complaints, and the legitimacy of complaints. These facts will be needed to sustain a claim at trial or to survive a summary judgment motion. But for the current purpose, the allegations contained in the counterclaim suffice to plead a case in private nuisance.

Footnotes

1. The court, therefore, must disagree with Schiller, 357 Ill App3d 435."

Wednesday, May 29, 2019

BUYING A HOUSE - WITH MOLD


A true case of Buyer's remorse - in the lower court's decision, it is noted that the buyer also, pursuant to Section 465 of the Property Condition Disclosure Act ("PCDA"), agreed to accept the
$500 credit in lieu of all remedies afforded under PCDA and in lieu of any other remedies.

Rosner v Bankers Std. Ins. Co,. 2019 NY Slip Op 04015, Decided on May 22, 2019. Appellate Division, Second Department:

"On January 24, 2013, the defendants Jay Bernstein and Allison Bernstein (hereinafter together the defendants), as sellers, entered into a contract of sale with the plaintiffs, as buyers, for a house. The contract of sale contained language providing that, unless expressly stated, no covenant, warranty, or representation in the contract survived closing. A rider to the contract stated that the defendants were not aware of any mold or vermin infestation in the house. Prior to the closing, the plaintiffs conducted a home inspection which revealed, among other things, the presence of water staining and evidence of water infiltration on the interior of the house. The home inspection report stated that a mold evaluation was beyond the scope of the inspection and recommended that if the plaintiffs were concerned about potential mold issues, they should call a professional mold abatement company to perform an inspection. The report also stated that the need for some periodic general pest control should be anticipated. The plaintiffs did not undertake a mold inspection. The plaintiffs closed on the house on February 27, 2013.

According to the plaintiffs, almost immediately after she began getting the house ready to move into, the plaintiff Brooke Rosner began to experience, among other symptoms, headaches, lightheadedness, and dizziness when she was inside of the house which only abated after she left the house. On March 25, 2013, the plaintiffs had mold testing done of the house, which revealed extremely elevated levels of mold throughout the house. Further analysis confirmed proliferate mold growth in the house which allegedly rendered the house uninhabitable.

The plaintiffs commenced this action against their insurance company, Bankers Standard Insurance Company (hereinafter BSI), their home inspector, Blake Pre-Purchase [*2]Consultants, Inc. (hereinafter Blake), and the defendants. Against the defendants, the plaintiffs alleged, inter alia, breach of contract on the theory that the Bernsteins certified that the house was "free of damage, mold, infestation and other defects." After motion practice BSI and Blake settled with the plaintiffs. The Bernsteins then moved for summary judgment dismissing the amended complaint insofar as asserted against them. The Supreme Court granted the motion, and the plaintiffs appeal.

The defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the second cause of action, to recover damages for breach of contract. The plaintiffs allege that the defendants breached the provision in the rider to the contract which stated that the defendants were not aware of any mold or infestation. However, once title to the property closed and the deed was delivered, "any claims the plaintiff[s] might have had arising from the contract of sale were extinguished by the doctrine of merger" since there was no "clear intent evidenced by the parties that [the relevant] provision of the contract of sale [would] survive the delivery of the deed" (Ka Foon Lo v Curis, 29 AD3d 525, 526 [internal quotation marks omitted]). In opposition to the defendants' prima facie showing, the plaintiffs failed to raise a triable issue of fact as to whether the relevant portion of the rider survived the closing. Furthermore, "New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller's agent to disclose any information concerning the premises when the parties deal at arm's length, unless there is some conduct on the part of the seller or the seller's agent which constitutes active concealment" (Jablonski v Rapalje, 14 AD3d 484, 485; see Rojas v Paine, 101 AD3d 843, 845). While the plaintiffs submitted an affidavit from a mold remediation specialist who concluded that the defendants must have been aware of the alleged mold condition and actively concealed the odor of mold in the home, the affidavit was speculative and conclusory (see Senatore v Epstein, 128 AD3d 794). In addition, the plaintiffs' submission of pest control service slips failed to raise a triable issue of fact as to whether the defendants actively concealed an alleged infestation of mice in the home.

The defendants also demonstrated their prima facie entitlement to judgment as a matter of law dismissing the third cause of action, to recover damages for negligence. A simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389). In opposition to the defendants' prima facie showing, the plaintiffs failed to raise a triable issue of fact as to whether the defendants violated a legal duty independent of the contract. Since the defendants' legal duty did not spring from circumstances extraneous to the contract, the negligence cause of action must be dismissed as duplicative of the breach of contract cause of action (see Old Republic Natl. Tit. Ins. Co. v Cardinal Abstract Corp., 14 AD3d 678).

Finally, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the fourth cause of action, to recover damages for negligent misrepresentation. "A claim for negligent misrepresentation requires the plaintiff[s] to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant[s] to impart correct information to the plaintiff[s]; (2) that the information was incorrect; and (3) reasonable reliance on the information" (J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148). Here, the defendants demonstrated that there was no special or privity-like relationship between themselves and the plaintiffs in this arm's length transaction (see Lunal Realty, LLC v DiSanto Realty, LLC, 88 AD3d 661, 663). Moreover, the defendants established that the alleged misrepresentations they made were not extraneous or collateral to the contract (see Heffez v L & G Gen. Constr., Inc., 56 AD3d 526). In opposition, the plaintiffs failed to raise a triable issue of fact.

Accordingly, we agree with the determination granting the defendants' motion for summary judgment dismissing the amended complaint insofar as asserted against them."

Tuesday, May 28, 2019

DIVORCE - MAKING MERITLESS MOTIONS AND APPEALS



According to e courts, this case has had 9 motions filed. Husband is appearing pro se.

Patouhas v Patouhas 2019 NY Slip Op 03978 Decided on May 22, 2019 Appellate Division, Second Department:

"The plaintiff commenced this action for a divorce and ancillary relief on March 1, 2016, by service of a summons with notice upon the defendant. The summons with notice set forth that the nature of the action was to dissolve the marriage pursuant to Domestic Relations Law § 170(7) on the ground of irretrievable breakdown of the marriage for a period of at least six months, as well as the relief sought. In a notice of appearance dated March 10, 2016, the defendant "demand[ed] a copy of the Complaint and all papers in this action be served upon [him]" at the address provided. In a letter dated April 1, 2016, counsel for the plaintiff acknowledged receipt of the notice of appearance, noted that the parties had engaged in discussions concerning a resolution of the matter, and requested certain disclosure.

Thereafter, the defendant moved by notice of motion dated April 20, 2016, to dismiss the action based upon the plaintiff's failure to serve a complaint in accordance with CPLR 3012(b). On April 26, 2016, the defendant was served with a verified complaint. In an order dated June 22, 2016, the Supreme Court denied the defendant's motion and deemed the complaint timely served [*2]on the basis that the short delay was not willful, was a result of settlement negotiations, and did not prejudice the defendant and that the plaintiff demonstrated a meritorious cause of action. The defendant appeals.

To successfully defend against a motion to dismiss for failure to serve a complaint pursuant to CPLR 3012(b), a plaintiff must generally demonstrate that his or her action is potentially meritorious and that he or she has a reasonable excuse for failing to serve a timely complaint (see Savino v Savino, 43 AD3d 1029; Chiaffarano v Winston, 234 AD2d 329, 330; see also Genzone v Genzone, 146 AD3d 752, 753).

Here, the Supreme Court providently exercised its discretion in concluding that the delay caused by settlement negotiations was reasonable since the settlement discussions were undertaken in good faith and the delay was of a short duration (see Gibbons v Court Officers' Benevolent Assn. of Nassau County, 78 AD3d 654, 655; Chiaffarano v Winston, 234 AD2d at 330). In addition, the plaintiff's submission of a verified complaint was "sufficient to satisfy the requirement to demonstrate a [potentially] meritorious cause of action" (Savino v Savino, 43 AD3d at 1029; see Gibbons v Court Officers' Benevolent Assn. of Nassau County, 78 AD3d at 655; Chiaffarano v Winston, 234 AD2d at 330). Accordingly, we agree with the court's denial of the defendant's motion to dismiss the action due to the plaintiff's failure to serve the complaint in accordance with the time constraints contained in CPLR 3012(b) (see Savino v Savino, 43 AD3d at 1029; Chiaffarano v Winston, 234 AD2d at 330; see also Gibbons v Court Officers' Benevolent Assn. of Nassau County, 78 AD3d at 655).

In addition, since the defendant has raised arguments on this appeal that appear to be "completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law" (22 NYCRR 130-1.1[c][1]), the appeal may be frivolous (see Curet v DeKalb Realty, LLC, 127 AD3d 914, 916; Caplan v Tofel, 65 AD3d 1180, 1181-1182). Accordingly, we direct the submission of affirmations or affidavits on the issue of whether, and in what amount, costs or sanctions in connection with this appeal should or should not be imposed on the defendant."

Thursday, May 23, 2019

DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT


From May 11:

"Governor Andrew M. Cuomo today signed the Domestic Violence Survivors Justice Act (S.1077/ A.3974), a bill that codifies more meaningful sentence reductions for domestic abuse survivors in the criminal justice system and a key initiative in the Governor's 2019 Women's Justice Agenda. Current law allows judges to administer indeterminate sentences for domestic violence survivors who have committed a crime only in relation to their abuser under certain circumstances. The Domestic Violence Survivors Justice Act will build upon this law by adding offenses committed due to coercion by an abuser, as well as offenses committed against or at the behest of an abuser who does not share a household or family with the survivor—preventing further victimization of individuals who have endured domestic and sexual violence at the hands of their abusers."

The new law can be found here: https://www.nysenate.gov/legislation/bills/2019/s1077

Wednesday, May 22, 2019

MORTGAGE FORECLOSURE - A BANK RAISING LACK OF STANDING?



An interesting argument that failed: Bank's "predecessor in interest" could not have accelerated the debt more than 6 years ago because the "predecessor in interest" lacked standing.

HSBC Bank USA, N.A. v Islam, 2019 NY Slip Op 29085, Decided on March 29, 2019, Supreme Court, Queens County Caloras, J:

"Defendant MD A. Islam now moves to dismiss plaintiff's cause of action for foreclosure and sale of the subject property as being barred by the applicable statute of limitations, pursuant to CPLR §3211 (a) (5). He claims that MERS, commenced its prior action on or about May 9, 2008, at which time MERS accelerated the debt and demanded payment in its entirety. As such, the six year statute of limitations began to run not later than May 9, 2008 and the expiration date of the statute of limitations could occur not later than May 9, 2014. Therefore, any subsequent action to recover on the mortgage after May 9, 2014 would be barred by the statute of limitations pursuant to CPLR §213(4). Since MERS moved to voluntarily discontinue its action, dated May 8, 2014, and entered by the Queens County Clerk on May 15, 2014, this was after the expiration of the statute of limitations. 

Consequently, MERS' attempt to revoke its right to elect acceleration occurred beyond the expiration of the 6-year statute of limitations. Defendant MD Islam also argues that MERS' act of voluntarily discontinuing the prior action was not a sufficiently affirmative act to constitute a revocation of its acceleration of debt. As such, there was no tolling of the statute of limitations clock, and the current action was filed more than three years after the expiration of the six year statute of limitations.
Plaintiff opposes the motion and states that the Summons and Complaint in the 2008 Action was discontinued because it incorrectly recited that MERS is a party to the Note and provides that MERS commenced the 2008 Action as the owner and holder of the Note and Mortgage. Rather, the Note was executed in favor of MortgageIt, Inc., and MERS had no standing to commence or maintain the 2008 foreclosure. Subsequent to discovering this error, plaintiff claims that, by Notice of Motion dated May 8, 2014, Plaintiff in the 2008 Action moved for an Order discontinuing the 2008 Action without prejudice, vacating the judgment and dismissing any counterclaims and crossclaims due to title insurability issues. Thereafter, on July 18, 2017, plaintiff commenced the instant action and in its affirmation in opposition states that, "insofar as Plaintiff is time-barred from collecting arrears aged more than six years prior to the commencement of the foreclosure, Plaintiff has waived the arrears from November 1, 2007 through July 1, 2011 and seeks to foreclose upon Defendant's default in making the August 1, 2011 payment and all subsequent mortgage payments.

Plaintiff claims that the purported acceleration by the 2008 Action was a nullity since MERS had no standing to commence this Action. This being due to MERS having never been assigned the Note and Mortgage nor having possession of the Note at the time of the [*3]commencement of the 2008 Action. Plaintiff claims that since the acceleration of the note was a nullity, the statute of limitations did not begin to run and the current action is not time barred. Plaintiff also claims since the 2008 action resulted in a voluntary discontinuance pursuant to MERS motion, that was granted in an Order of the Court, entered on August 27, 2014, the 2008 acceleration was rescinded. This affirmative act of rescission was within six years of the instant action, thus rendering the instant action timely filed.
Here, the defendant established that the six-year statute of limitations began to run on the entire debt on May 9, 2008, the date the MERS accelerated the mortgage debt by commencing the prior action. See, Freedom Mtge. Corp. v Engel, 163 AD3d 631, 632-633 ( 2d Dept. 2018.) Since the plaintiff did not commence this action until July 18, 2017, more than six years later, the defendant sustained his initial burden of demonstrating, prima facie, that this action was untimely. U.S. Bank N.A. v Martin, 144 AD3d 891, 892 (2d Dept 2016.) The burden then shifted to the plaintiff to present admissible evidence establishing that the action was timely or to raise a question of fact as to whether the action was timely. Id. at 892.

The plaintiff failed to meet its burden. Contrary to its contention, the plaintiff failed to raise a question of fact as to whether it affirmatively revoked its election to accelerate the mortgage within the six-year limitations period. Its filing of the motion and the Court's Order discontinuing the action, did not, by themselves, constitute an affirmative act to revoke MERS' election to accelerate, since the motion and Order were silent on the issue of the election to accelerate, and did not otherwise indicate that the plaintiff would accept installment payments from the defendant MD A. Islam. See, Bank of NY Mellon v Craig, 2019 NY App. Div. NY Slip Op 00846, (2d Dept. February 6, 2019). See, also, Deutsche Bank Trust Co. Ams. v Smith , 2019 NY App. Div., 2019 NY Slip Op 01562 (2d Dept. March 6, 2019.)

Furthermore, the plaintiff's argument that the acceleration of the note was a nullity is without merit. First, the Court Order of discontinuance of the action does not state standing was a basis or consideration in reaching the decision. Second, the motion by Mers did not mention it was based upon any epiphany regarding standing. Rather, it sought vacatur of the Judgment of Foreclosure and Sale and discontinuance of the action "due to title insurability issues." Therefore, plaintiff's claims to the contrary are belied by MERS' motion.

Third, a facially adequate cause of action to foreclose a mortgage requires allegations regarding the existence of the mortgage, the unpaid note, and the defendant's default thereunder, which, if subsequently proven, will establish a prima facie case for relief. US Bank N.A. v Nelson, 2019 NY App. Div., 2019 NY Slip Op 00494 (2d Dept. January 23, 2019.) (Citations omitted.) In order to place in issue any of these essential elements of the cause of action, a defendant need only deny them in the answer. However, as a general matter, a plaintiff need not establish its standing (i.e., that it held and/or owned the note at the time the action was commenced) as an essential element of the cause of action. Id. (Citations omitted.) Rather, it is only where the plaintiff's standing is placed in issue by the defendant that the plaintiff must shoulder the additional burden of establishing its standing to commence the action, a burden satisfied by evidence that it was the holder or assignee of the underlying note at the time the action was commenced. Id. (Citations omitted.) Consequently, where, as here, standing is not an essential element of the cause of action, under CPLR 3018(b) a defendant must affirmatively plead lack of standing as an affirmative defense in the answer in order to properly raise the issue [*4]in its responsive pleading. Id. (Citations omitted.) This was not done in the 2008 action by defendant MD A. Islam, nor any other defendant. Since CPLR 3211 (subd [e]) provides that such a defense is waived if not raised either by motion or in the responsive pleading, any objection to MERS standing was deemed waived. Clearly, if defendants waived such objections, plaintiff in the instant matter cannot raise an objection to MERS standing and seek to use lack of standing to its advantage. Moreover, in the 2008 action, there was the 2009 Order that granted MERS' motion for a Judgment of Foreclosure and Sale. Thereby, finding MERS made out a sufficient cause of action and, in essence, making a finding of standing based upon there being no objection. To adopt plaintiff's argument regarding standing would twist the well established rules into a means to avoid statute of limitations bars to actions. This Court has not been given any basis to do so."