WHEN A SAFETY DEPOSIT BOX IS NOT THAT SAFE...FROM A CREDITOR

Creating a joint tenancy may affect a creditor's right to enforce a judgment.

Matter of New York Community Bank v. Bank of Am. N.A., NYLJ 1/29/19, Date filed: 2019-01-24, Court: Appellate Division, First Department, Case Number: 158084/17:

"This appeal requires us to consider whether a presumption of joint tenancy with rights of survivorship in a safety deposit box also extends to its contents where only one of the persons who rented the box is a judgment debtor. Most of the jurisprudence concerning the statutory presumption of joint tenancy (Banking Law §675[b]), relates to cash deposits in bank accounts, not deposits of property into safe deposit boxes. We find the safety deposit box rental agreement controlling on the issue of ownership and that the judgment creditor, New York petitioner (NYCB) established that the notice respondents are joint tenants of the contents of the box, with rights of survivorship.

……….

CPLR 5225(b) provides for an expedited special proceeding by which a judgment creditor can recover “money or other personal property” belonging to a judgment debtor “against a person in possession or custody of money or other personal property in which the judgment debtor has an interest” in order to satisfy a judgment (Matter of Signature Bank v. HSBC Bank USA, N.A., 67 AD3d 917, 918 [2d Dept [2009]). When two or more persons open a bank account, making a deposit of cash, securities, or other property, a presumption of joint tenancy with right of survivorship arises (Banking Law §675[b]; Matter of Friedman, 104 AD2d 366 [1984], affd 64 NY2d 743 [1984]). The presumption extends to safe deposit boxes held jointly (Matter of First Am. Tit. Ins. Co. v. Kenderian, 157 AD3d 891, 892 [2d Dept 2018]). If the presumption is applied, each named tenant “is possessed of the whole of the account so as to make the account vulnerable to the levy of a money judgment by the judgment creditor of one of the joint tenants” Viggiano v. Viggiano, 136 AD2d 630, 630 [2d Dept 1988]; Banking Law §675[b])."

NOTE: In this case, the non-judgment debtor did not identify what contents were not the property of the judgment debtor. Even where a joint account is vulnerable to the levy of a money judgment as against one joint tenant, such a levy is effective only as to the actual interest of that judgment debtor in the account (Olshan v East N. Y. Sav. Bank, 28 F.Supp. 727 [US Dist Ct., ED NY 1939]; Annotation, Attachment-Joint Bank Account, 11 ALR3d 1465, 1473).

TRYING TO AVOID DEBT - SUCCESSOR LIABILITY

It may be a new name, but it's the same business trying to avoid debt.

Jack Williams Tire Co. v. The Tire Pl. of Queens Ltd., NYLJ 1/24/19, Date filed: 2019-01-15, Court: Supreme Court, Queens, Judge: Justice Robert McDonald, Case Number: 711068/2016:

"An action for continuation of successor liability requires a plaintiff to show that the corporation was a mere continuation of its predecessor (see Broadway 26 Waterview, LLC v. Bainton, McCarthy & Siegel, LLC, 94 AD3d 506 [1st Dept. 2012]). “[W]hen a successor firm acquires substantially all of the predecessor’s assets and carries on substantially all of the predecessor’s operations, the successor may be held to have assumed it’s predecessor’s…liabilities” (Aguas Lenders Recovery Group v. Suez, S.A., 585 F3d 696, 702 [2d Cir. 2009] [internal quotation marks and citations omitted]). In determining whether a successor corporation is a mere continuation of a predecessor corporation, five factors are considered: (1) all or substantially all assets are transferred to the successor corporation; (2) only one corporation exists after the transfer; (3) assumption of an identical or nearly identical name; (4) retention of the same corporation officers and/or directors; and (5) continuation of the same business (see Miot v. Miot, 897 NYS2d 670 [Sup Ct, NY Cnty 2009]).

Here, Tire Place of Queens transferred its website, phone number, customer base, and network to Tire Place. Although Ms. Lombardi contends that Tire Place merely assumed the abandoned assets of Tire Place of Queens, a successor corporation has still been found to be a mere continuation of a predecessor corporation without a formal transfer of assets when, as here, only one of the two corporations is benefitting from those (see Miot v. Miot, 897 NYS2d 670 [Sup Ct, NY Cnty 2009]). Only one corporation now exists, and the names are nearly identical. Tire Place is owned by the daughter and former co-owner of Tire Place of Queens and a former employee. Lastly, Tire Place is merely an expansion of Tire Place of Queens’ business, not a different business. As such, the five factors are met, and this Court finds that Tire Place is a mere continuation of Tire Place of Queens."

BREACH OF CONTRACT OR UNJUST ENRICHMENT?

At some point, a choice must be made as to an election of remedies. An unjust enrichment claim, also known as a quasi-contract or an implied contract, is meant to apply where there is no contract between parties, but one party is unfairly benefiting from the efforts of the other without providing compensation. If both claims are made, breach of contract and unjust enrichment, the court is obliged to dismiss either one or the other. In this case, plaintiff chose breach of contract but did not choose correctly.

A&D Pool Serv. v. Hayden, NYLJ 1/17/19, Date filed: 2018-12-13, Court: Appellate Term, Second Department, 9th &10th Judicial Districts, Case Number: 2017-1436NC:

"In a commercial claims action, our review is limited to a determination of whether “substantial justice has…been done between the parties according to the rules and principles of substantive law” (UDCA 1807-A [a]; see UDCA 1804-A; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125 [2000]).

The elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s performance under the contract, the defendant’s breach, and resulting damages (see New York State Workers’ Compensation Bd. v. SGRisk, LLC, 116 AD3d 1148, 1153 [2014]; JP Morgan Chase v. J.H. Elec. of N.Y., Inc., 69 AD3d 802, 803 [2010]. “As with any contract, an oral agreement is not enforceable unless there is ‘a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms’ ” (Kelly v. Bensen, 151 AD3d 1312, 1313 [2017], quoting Matter of Express Indus. & Term. Corp. v. New York State Dept. of Transp., 93 NY2d 584, 589 [1999]; see also Saul v. Cahan, 153 AD3d 947, 950 [2017]). In determining whether there is an enforceable oral contract, ” ‘the court looks not to the parties’ after-the-fact professed subjective intent, but rather at their objective intent as manifested by their expressed words and conduct at the time of the agreement’ ” (Jump v. Jump, 268 AD2d 709, 710 [2000], quoting Winkler v. Kingston Hous. Auth., 259 AD2d 819, 823 [1999]). It is plaintiff’s burden to establish that the parties’ agreement was sufficiently specific to be enforceable (see Muhlstock v. Cole, 245 AD2d 55, 58 [1997]). Price is a material term of a contract (see Tufano v. Morris, 286 AD2d 531, 534 [2001]; Village of Lansing v. Triphammer Dev. Co., 193 AD2d 919, 920 [1993]). Here, the parties never “mutually assented” to the work to be performed. It is undisputed that defendant requested, but plaintiff never supplied, a cost estimate. Defendant’s unrebutted testimony was that the work was done in her absence and without her prior consent.

Plaintiff further asserts that defendant assumed the obligation to pay after the work was completed, based on defendant’s text message stating that she would send a check the following week. Defendant contends that this text was motivated by plaintiff’s threats to defame her and ruin her business. The text, however, is insufficient to create a contractual obligation where none existed before. “Past consideration is insufficient to support a contractual obligation” (Beitner v. Becker, 34 AD3d 406, 408 [2006]), except as specified in General Obligations Law §5-1105, which creates a limited exception for a “promise in writing and signed by the promisor” which expresses past consideration. A writing is only enforceable pursuant to section 5-1105 if it “contain[s] an unequivocal promise to pay a sum certain, at a date certain, and must express consideration for the promise” (Umscheid v. Simnacher, 106 AD2d 380, 381 [1984]). Here, the text message fails to satisfy the requirements of section 5-1105. Consequently, plaintiff’s action should have been dismissed."

CERTAIN DEFENSES FOR CREDIT CARD DEBT ACTIONS MAY BE AVAILABLE

A credit card company has two causes of action for credit card debt but when credit card agreements are changed due to mergers, etc., certain defenses may be available for certain causes of actions.

Citibank NA v. Geyer, NYLJ 1/17/19, Date filed: 2019-01-14, Court: District Court, Nassau, Judge: Judge Ignatius Muscarella, Case Number: CV-045509-11:

"First cause of action: Breach of Contract --- It is well settled that a "plaintiff establishes a breach of contract action by demonstrating the existence of a contract between the parties, performance by the plaintiff, breach by the defendant and damages resulting from the breach" (National Commerce Exchange of Long Island, Inc., v. Cosmopolitan Coach LTD, 2012 NY Slip Op. 30394 (U).

Here, the only evidence of the terms and conditions of the parties' agreement is premised on plaintiff's Exhibit 3, an agreement which post-dates by several months the last partial payment by the defendant. As the defendant never used the credit card after some unknown modification of the agreement previously in existence so as to establish acceptance of its terms (see Citibank (South Dakota), N.A. v. Brown-Serulovic, 97 AD3d 522, 523-524 [2d Dept 2012]), there exists nothing to establish what the terms of the parties’ agreement was during the period of the defendant’s use of the Sears card and the defendant should not be found to have accepted whatever modification of those terms might exist in this new agreement. Absent proof of same, the court is persuaded by defendant’s argument that plaintiff has failed to establish its prima facie entitlement to a recovery based thereon.

The defendant’s motion to dismiss this cause of action is, accordingly, granted.

Second cause of action: Account Stated — “An account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness of the account items and the specific balance due. Although an account stated may be based on an express agreement between the parties as to the amount due, an agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account. The ‘agreement’ at the core of an account stated is independent of the underlying obligation between the parties.” (Holtzman v. Griffith, 162 AD3d 874, 875-876 [2d Dept 2018][Internal quotes and citations omitted]).

Here, the documentary evidence and credible testimony establishes that during the period from July, 2009 through March, 2011 monthly statements were evidently received by the defendant as she was making regular partial payments thereon2. Moreover, Plaintiff’s Exhibit 3 establishes that at least some payments were being made using the defendant’s personal checking account and that as of the defendant’s most recent partial payment credited on March 9, 2011 the balance due from the defendant was $5,122.38. That amount had increased to $5,459.60 as of the final two monthly statements included in Plaintiff’s Exhibit 3. No objections were made by defendant to plaintiff in response to any of the billings.

Accordingly, plaintiff has established its prima facie entitlement to judgment on its cause of action for an account stated in the sum of $5,459.60. Given the absence of any evidence or testimony on defendant’s behalf, plaintiff is awarded judgment on its second cause of action."

MAKING A PROPER RENT DEMAND

Although a non-payment is a summary proceeding, the paper work should not be prepared in a summary fashion.

EOM 106-15 217th Corp. v. Severine, NYLY January 23, 2019, Date filed: 2019-01-11 Court: Appellate Term, Second Department, 2nd, 11th & 13th Judicial Districts,  Case Number: 2017-1172QC:

"A proper rent demand is a statutory prerequisite to a nonpayment proceeding (RPAPL 711 [2]) and an element of a landlord’s prima facie case (see Community Hous. Innovations, Inc. v. Franklin, 14 Misc 3d 131[A], 2007 NY Slip Op 50050[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2007]). A rent notice must “set forth the approximate good faith amount of rent owed” (Dendy v. McAlpine, 27 Misc 3d 138[A], 2010 NY Slip Op 50890[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; see 542 Holding Corp. v. Prince Fashions, Inc., 46 AD3d 309, 311 [2007]) and “fairly apprise the tenant of the periods for which rent is allegedly due and in what amounts” (Pantigo Professional Ctr., LLC v. Stankevich, 60 Misc 3d 133[A], 2018 NY Slip Op 51039[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; see 10 Midwood LLC v. Hyacinth, 2003 NY Slip Op 50789[U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2003]). Moreover, it is well settled that, in asserting the amount of rent owed for each period, a landlord must apply the payments that it accepted to the months for which they were earmarked (see Greenbrier Garden Apts. v. Eustache, 50 Misc 3d 142[A], 2016 NY Slip Op 50210[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; 270 E. 95 Props., LLC v. Kent, 49 Misc 3d at 35; 134-38 Maple St. Realty Corp. v. Medina, 3 Misc 3d 134[A], 2004 NY Slip Op 50469[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2004]; L&T E. 22 Realty Co. v. Earle, 192 Misc 2d 75, 76-77 [App Term, 2d Dept, 2d & 11th Jud Dists 2002]).

Here, the predicate rent notice, which sought rent arrears for May 2016 through September 2016, did not satisfy these requirements. While landlord admittedly had received the payments that were earmarked for May and June 2016, it failed to apply those payments to the respective periods for which they had been intended. Furthermore, landlord-although having admittedly received the payment earmarked for September 2016 rent approximately three days before the rent notice was created and 14 days before the notice was served-omitted this payment from the rent notice. In light of the magnitude of the inaccuracies in the amounts sought in the rent notice, we find that tenant may have been prejudiced in his ability to respond to the demand, formulate defenses, and avoid litigation or eviction (see Inland Diversfied 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]; cf. 10 Midwood LLC v. Hyacinth, 2003 NY Slip Op 50789[U], at *1). Given that the rent notice was defective and that it cannot be amended (see Chinatown Apts. v. Chu Cho Lam, 51 NY2d 786, 787[1980]; 125 Ct. St., LLC v. Sher, 58 Misc 3d 150[A], 2018 NY Slip Op 50092[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), the Civil Court properly granted the motion to dismiss the petition."

DEFAMATION AT A PUBLIC HEARING

Some things are better not said in anger.

Gugliotta v Wilson, 2019 NY Slip Op 00261, Decided on January 16, 2019, Appellate Division, Second Department:

"The plaintiff and the defendant are neighbors in the Village of Southampton. The defendant was seeking to add an exterior staircase to her property. A public hearing was held on April 13, 2015, before the Village's Board of Historic Preservation and Architectural Review (hereinafter the Board) to review the defendant's application. After the defendant presented her plans to the Board, the plaintiff and other neighboring property owners voiced their objections to the defendant's application.

Among other things, the plaintiff questioned the defendant's explanation that the staircase was needed for the safety of her daughter, observing that the daughter had been living in the house for 16 years and had a bedroom on the ground floor.

In responding to the various objections made by the plaintiff and the other homeowners, the defendant began by saying, "[f]irst of all, I'm going to try to say this calmly as a mother." Then, turning toward the plaintiff, she added, "I'm so glad you're worried about my daughter." Upon being prompted by the Chairman to address the Board and not the plaintiff, the defendant continued: "Since he's so concerned about my daughter, I'll be enforcing the settlement that we entered into where his camera is not supposed to be . . . on my daughter's bedroom window." The Chairman then urged the defendant not to bring up irrelevant issues before the Board.

A few minutes later, the defendant, unprompted, again returned to this subject: "Just when people bring up my daughter, it's a little upsetting to me. . . . Especially when grown men want to look at little girls," prompting the Chairman to exclaim: "Whoa. We don't want to get into that."

After the defendant's application was adjourned, her voice could be heard off camera warning the plaintiff: "You better stay away from my daughter." The meeting was transcribed by a court reporter, and a video of the meeting was also broadcast over local television.

The plaintiff commenced this action against the defendant to recover damages for [*2]slander per se and libel per se. The defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint, and the plaintiff opposed the motion. In an order entered April 15, 2016, the Supreme Court denied the defendant's motion. The defendant appeals.

"In assessing the adequacy of a complaint under CPLR 3211(a)(7), the court must give the pleading a liberal construction, accept the facts alleged in the complaint to be true and afford the plaintiff the benefit of every possible favorable inference'" (J.P. Morgan Sec. Inc. v Vigilant Ins. Co., 21 NY3d 324, 334, quoting AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591). "A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)" (Sokol v Leader, 74 AD3d 1180, 1181; see CPLR 3211[c]). "If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one'" (Sokol v Leader, 74 AD3d at 1181-1182, quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275).

"The elements of a cause of action for defamation are (a) a false statement that tends to expose a person to public contempt, hatred, ridicule, aversion, or disgrace, (b) published without privilege or authorization to a third party, (c) amounting to fault as judged by, at a minimum, a negligence standard, and (d) either causing special harm or constituting defamation per se" (Greenberg v Spitzer, 155 AD3d 27, 41).

"Absolute privilege is based upon the personal position or status of the speaker and is limited to the speaker's official participation in the processes of government" (Park Knoll Assoc. v Schmidt, 59 NY2d 205, 209). "The absolute privilege generally is reserved for communications made by individuals participating in a public function, such as executive, legislative, judicial or quasi-judicial proceedings. This protection is designed to ensure that such persons' own personal interests—especially fear of a civil action, whether successful or otherwise—do not have an adverse impact upon the discharge of their public function" (Rosenberg v MetLife, Inc., 8 NY3d 359, 365 [internal quotation marks omitted]).

Here, as a threshold matter, the challenged statements, considered in the context in which they were made, tended to expose the plaintiff to public contempt, hatred, ridicule, aversion, or disgrace.
The challenged statements, which were made in the context of a contested application before a municipal body whose determination is subject to judicial review pursuant to CPLR article 78 (see Code of the Village of Southampton §§ 116-33, 116-34; Matter of Sagaponack Homeowners Assn. v Chief Bldg. Inspector of Town of Southampton, 279 AD2d 579), would ordinarily be subject to absolute privilege (see Allan & Allan Arts v Rosenblum, 201 AD2d 136). Nevertheless, the absolute privilege embraces only those statements that may possibly be or become material or pertinent to the matters before the Board, construed under an extremely liberal standard (see id. at 143; Dachowitz v Kranis, 61 AD2d 783). Upon our review of the papers and documentary evidence submitted by the parties, we discern "not one scintilla of evidence present upon which to base the possible pertinency of [the] defendant's statement[s]" (Dachowitz v Kranis, 61 AD2d at 784). Therefore, under the circumstances of this case, the challenged statements are not subject to an absolute privilege (see id. at 783-784).

The defendant's remaining contention is without merit.

Accordingly, we agree with the Supreme Court's determination denying the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint."

ELDER ABUSE

Matter of Reyes v Reyes, 2019 NY Slip Op 00283, Decided on January 16, 2019, Appellate Division, Second Department:

"The petitioner, age 86, commenced this family offense proceeding against the appellant, who is her grandson, alleging that he had committed, among other things, the family offense of harassment in the second degree. Following a hearing, the Family Court found that the petitioner established, by a preponderance of the evidence, that the appellant had committed the family offense of harassment in the second degree, and issued a two-year order of protection.

A family offense must be established by a "fair preponderance of the evidence" (Family Ct Act § 832; see Matter of Silva v Silva, 125 AD3d 869). The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court, and that court's determination regarding the credibility of witnesses must be given great weight on appeal unless clearly unsupported by the record (see Matter of Magana v Delph, 163 AD3d 673, 674; Robbins v Robbins, 48 AD3d 822).

Here, according due deference to the credibility determinations of the Family Court, a fair preponderance of the evidence adduced at the fact-finding hearing supported a finding that the appellant committed the family offense of harassment in the second degree (Penal Law § 240.25[3]). The evidence demonstrated that the appellant, with the intent to harass, annoy, or alarm the petitioner, engaged in a course of conduct consisting of following the petitioner around her apartment, cursing at the petitioner, and staying in her apartment until all hours of the night, despite her numerous requests that he leave, which alarmed and frightened the petitioner and served no legitimate purpose (see Matter of Jackson v Idlettt, 103 AD3d 723).

Further, the evidence adduced at the hearing supported the issuance of a two-year order of protection (see Matter of Mistretta v Mistretta, 85 AD3d 1034, 1035)."

ADMINISTRATIVE REVIEW IN ARTICLE 78 PROCEEDINGS

MATTER OF HAUG v. STATE UNIVERSITY OF NEW YORK AT POTSDAM, 2018 NY Slip Op 6964 - NY: Court of Appeals 2018:

"This article 78 proceeding was transferred to the Appellate Division to address, inter alia, petitioner's challenge to respondents' determination that he violated their code of student conduct (CPLR 7803 [4]; 7804 [g]). The court concluded that respondents' determination was not supported by substantial evidence. We disagree.

Upon judicial review, the Appellate Division must accord deference to the findings of the administrative decision-maker. As we said in Matter of Pell, "neither the Appellate Division nor the Court of Appeals has power to upset the determination of an administrative tribunal on a question of fact; * * * the courts have no right to review the facts generally as to weight of evidence, beyond seeing to it that there is substantial evidence" (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230 [1974] [internal quotation marks and citation omitted]).

"We emphasize that [t]he substantial evidence standard is a minimal standard" (Matter of FMC Corp. v Unmack, 92 NY2d 179, 188 [1998]). It is "less than a preponderance of the evidence'" (Matter of Kelly v DiNapoli, 30 NY3d 674, 684 [2018], quoting Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d 494, 499 [2011]), and "demands only that a given inference is reasonable and plausible, not necessarily the most probable" (Matter of Ridge Rd., 16 NY3d at 499 [internal quotation marks and citations omitted]). Stated differently, "[r]ationality is what is reviewed under the substantial evidence rule" (Matter of Pell, 34 NY2d at 231); substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). Where substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently (see Toys "R" Us v Silva, 89 NY2d 411, 423 [1996]; Matter of Axel v Duffy-Mott Co., 47 NY2d 1, 6 [1979]).

"[O]ften there is substantial evidence on both sides of an issue disputed before an administrative agency" (Matter of Marine Holdings, LLC v New York City Commn. on Human Rights, 31 NY3d 1045, 1047 [2018] [internal quotation marks and citation omitted]). Where substantial evidence exists to support a decision being reviewed by the courts, the determination must be sustained, "irrespective of whether a similar quantum of evidence is available to support other varying conclusions" (Matter of Collins v Codd, 38 NY2d 269, 270 [1976]; 300 Gramatan Ave., 45 NY2d at 180-181). Moreover, hearsay is admissible as competent evidence in an administrative proceeding, and if sufficiently relevant and probative may constitute substantial evidence even if contradicted by live testimony on credibility grounds (see Matter of Gray v Adduci, 73 NY2d 741, 742 [1988]; Matter of National Basketball Assn. v New York State Div. of Human Rights, 68 NY2d 644, 646 [1986]; People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985]; Matter of Malacarne v City of Yonkers Parking Auth., 41 NY2d 189, 193 [1976]).

Contrary to petitioner's argument, the hearsay evidence proffered at the administrative hearing, along with petitioner's testimony, provides substantial evidence in support of the finding that he violated respondents' code of conduct. The hearing board also could have reasonably interpreted some of petitioner's conceded behavior as consciousness of guilt and concluded that his version of the events was not credible. Ultimately, it was the province of the hearing board to resolve any conflicts in the evidence and make credibility determinations. The Appellate Division improperly engaged in a re-weighing of the evidence when it substituted its own factual findings for those of respondents (see Pell, 37 NY2d at 230)."

REMEMBERING

A CITATION FROM STATE SENATOR THOMAS

PRESCRIPTIVE EASEMENT

A “prescriptive easement” is a permanent legal right to use the real property belonging to another person, and is a form of “adverse possession.”

Bedik Corp. v. Herrick Rd. Holdings, NYLJ 1/16/19, Date filed: 2018-12-14 , Court: Supreme Court, Nassau, Judge: Justice Leonard Steinman, Case Number: 004517/2016:

"The concept of fair notice to a property owner of another’s adverse use underlies the requirement that an easement by prescription have determinate boundaries. To satisfy the open and notorious element of a prescriptive easement claim, a party’s use of another’s land should be substantial and reasonably definite. Restatement (Third) of Property (Servitudes) §2.17 comment h at 274 (2000). “Claims for rights of way must be based on uses that are substantially confined to a regular route.” Id. (emphasis added). Equity also dictates that the acquisition of a right to utilize another’s land be limited at least to the actual past use made of such land. There are few cases in New York discussing the scope of a prescriptive easement and none similar to the facts before the court. In Patel v. Garden Homes Management Corp., 156 A.D.3d 807 (2d Dept. 2017), the court held that the right acquired by prescription is commensurate with the right enjoyed by the party obtaining the easement and that the defendant could obtain a prescriptive easement only equal in area to that portion of the plaintiff’s property actually used. Id. at 809; see also Vitiello v. Merwin, 87 A.D.3d 632 (2d Dept. 2011); Thury v. Britannia Acquisition Corp., 19 A.D.3d 586 (2d Dept. 2005). But these cases do not squarely address the situation where the purpose of the claimed easement remains the same but there are slight deviations in the path used over the servient estate.

Cases from other jurisdictions have addressed this issue in cases remarkably similar to this one. In California, its Supreme Court held that slight deviations from an accustomed route will not defeat an easement. Warsaw v. Chicago Metallic Ceilings, Inc., 35 Cal. 3d 564 (1984). In Warsaw, the plaintiff and defendant owned adjoining commercial parcels purchased from the same owner. Trucks servicing the plaintiff’s commercial building used a portion of the defendant’s vacant lot to enter, turn, park and leave the area of plaintiff’s loading dock. The defendant then constructed a warehouse partially on the area of the vacant lot needed for plaintiff’s trucks to maneuver into its loading bays, and plaintiff sought injunctive relief. The trial court granted the injunction, finding that the truck drivers had followed a definite course and pattern, with slight deviation.

The Supreme Court affirmed the trial court’s ruling, notwithstanding that California law requires that the existence of a prescriptive easement be shown by a definite and certain line of travel. In affirming, the Supreme Court explained:

The evidence revealed that truck drivers who were making deliveries to or receiving goods from plaintiffs used the parcel to approach the building, swing around and back into plaintiffs’ loading dock. Since the drivers varied in their abilities, the space required to complete this manuever [sic] was variable. No two drivers followed precisely the same course, but all used the parcel for the same purpose—to turn their vehicles so they could enter plaintiffs’ loading docks. The Supreme Court therefore held that the inevitable differences in the paths utilized by the drivers did not defeat the prescriptive easement claim because a definite pattern was followed for a similar purpose.

In Community Feed Store, Inc. v. Northeastern Culvert Corporation, 151 Vt. 152 (1989), the Vermont Supreme Court came to a similar conclusion when faced with nearly identical facts. In that action, the plaintiff sought a prescriptive easement over vacant land of its neighbor used by its customers and supplier delivery trucks for turning and backing into its mill’s loading docks. The trial court denied plaintiff’s claim for a prescriptive easement, in part because the plaintiff purportedly failed to prove what portion of the defendant’s land was used by the vehicles.

The Vermont Supreme Court reversed, finding that the extent of the use “must be proved not with absolute precision, but only as to the general outlines consistent with the pattern of use throughout the prescriptive period.” Id. at 158. The Supreme Court’s analysis persuasively demonstrated that its conclusion was consistent with similar cases from other jurisdictions and the Restatement of Property. See, e.g., O’Brien v. Hamilton, 15 Mass. App. Ct. 960 (1983)(extent of easement is measured by general pattern formed by the adverse use); Restatement of Property §477 (1944); see also Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 124 (2005)(use leading to prescriptive easement must define its bounds with reasonable certainty) and cases cited therein in fn. 23; Concerned Citizens of Brunswick County Taxpayers Ass’n. v. State ex rel. Rhodes, 329 N.C. 37 (1991)(use of roadway need not be confined to a definite and specific line of travel but rather there must be a “substantial identity” of traveled way claimed).

Irrespective of whether New York were to adopt the “pattern of use,” “substantial identity,” or “definite line of travel” test, Bedik has set forth sufficient evidence to establish its right to the claimed easement. It produced an eyewitness attesting to the consistent pattern of travel utilized by the delivery trucks with only slight deviations and evidence delineating this pattern was introduced.

For sure, Bedik does not help its cause by submitting diagrams with varying descriptions of its claimed easement. But the discrepancies—while significant to HRH because every foot of property burdened could affect its desire to proceed with submitted and approved development plans—are not substantial given the overall size of the vacant lot in question. Furthermore, some discrepancies were explained by Spinello as emanating from his inclusion in certain diagrams of additional space to provide a cushion for less-skilled drivers and for convenience. This court will not include such additional space as part of the prescriptive easement. While some variation of the trucks’ actual use of the vacant lot is explainable and acceptable, the touchstone remains that the easement is limited to actual use. Furthermore, given the varying paths used by the trucks, equity dictates in these circumstances that the right-of-way be limited to the area necessary for the purpose of the easement. See Ledlley v. D.J. & N.A. Management, Ltd., 228 A.D.2d 482 (2d Dept. 1996). Spinello testified that he observed trucks successfully accessing and leaving the loading bays utilizing the easement area reflected in Exhibit I. Trucks were also able to successfully navigate the area utilizing an eastern boundary of 78 feet as reflected in Exhibit D. These are the least intrusive uses of HRH’s land and, therefore, are the appropriate dimensions of the easement. Plaintiff is to submit a judgment on notice."

TONIGHT - INSTALLATION AS PRESIDENT

DIVORCE - ALLOCATION OF MARITAL DEBT

Lynch v Lynch, 2019 NY Slip Op 00105, Decided on January 9, 2019, Appellate Division, Second Department:

"The plaintiff claims that the Supreme Court erred in various respects in its allocation of responsibility for marital debt. In general, expenses incurred prior to the commencement of a divorce action constitute marital debt and should be equally shared by the parties (see Minervini v Minervini, 152 AD3d 666, 668; Bogdan v Bogdan, 260 AD2d 521, 522). The court has broad discretion in allocating the debts of the parties to a matrimonial action (see Minervini v Minervini, 152 AD3d at 668; DiFiore v DiFiore, 87 AD3d 971, 974-975).

The plaintiff asserts that only $14,300 of the $95,937.26 outstanding on the parties' home equity line of credit (hereinafter HELOC) was used for marital purposes, and that the balance was used by the defendant to pay for college and living expenses of his children and to satisfy his maintenance obligations to his prior wife. We perceive no error in the Supreme Court's allocation of responsibility for the HELOC debt. As the court stated, the plaintiff established only that the defendant may have borrowed the sum of $30,000 from the HELOC to make a scheduled lump sum payment to his prior wife. This is not the sort of expenditure made during the marriage that may be second-guessed by the courts in a later divorce action (see Mahoney-Buntzman v Buntzman, 12 NY3d 415, 421-422). The record demonstrates that the plaintiff was well aware of the defendant's maintenance obligations to his prior wife, and that the plaintiff provided input in the establishment and modification of those obligations.

While the plaintiff claims that the Supreme Court's allocation of debt was inappropriate in a large number of instances, we find her position to have merit only in one respect. The court granted the defendant an equitable distribution credit for one-half of the amount he paid to satisfy the student loans he took out while studying for his MBA degree. These loans were obtained during the marriage, but were satisfied by the defendant after the commencement of this action. While the court declined to require the plaintiff to pay any portion of the balance of these loans as of the time of commencement, by granting the defendant an equitable distribution credit for one-half of the amount that he paid to satisfy those loans, the court effectively made the plaintiff responsible for one-half of this liability. Given that the plaintiff was not granted a distributive award based on the value of the MBA degree, and given the court's determination not to obligate the plaintiff to pay any portion of the balance of these loans herself, the provision giving the defendant an equitable distribution credit for one-half of the amount he paid to satisfy these loans should be deleted."

MORTGAGE FORECLOSURE - STATUTE OF LIMITATIONS AND ACCELERATION ISSUES

In this recent case, the court provides a survey of many of the most recent Second Department cases on the issues of acceleration and de-acceleration follows.

Sharova v. Wells Fargo Bank, NYLJ 1/10/19, Date filed: 2018-10-25, Court: Supreme Court, Kings County,Judge: Justice Debra Silber, Case Number: 5002846/2018:

"It is now, in the Second Department, unequivocal that unless the terms of the mortgage provide otherwise, the filing of the summons and complaint in a foreclosure action is sufficient to accelerate the mortgage (MSMJ Realty, LLC v. DLJ Mtge. Capital, Inc., 157 AD3d 885, 887 [2d Dept 2018].) This is true even if the borrower is never served with the summons and complaint and the action is dismissed after a traverse hearing on the issue of service, where the terms of the mortgage state that the borrower is entitled to a notice of default but not to notice of the acceleration of the debt. (see MSMJ Realty, LLC v. DLJ Mtge. Capital, Inc., 157 AD3d 885, 887 [2d Dept 2018], citing Beneficial Homeowner Serv. Corp. v. Tovar, 150 AD3d 657, 658 [2d Dept 2017]).

To be clear, the terms of the mortgage and note may alter the lender’s obligations if they deviate from applicable statutory requirements and impose additional obligations on the lender than are required by New York law. For example, in one case, where the defendant borrower “raised the issue of compliance with paragraph 7, subsection C, of the note in her affirmative defenses and counterclaim,” the plaintiff’s submission for the first time of a copy of the requisite default notice as an exhibit in its reply to the defendant’s opposition to the summary judgment motion was not sufficient to establish its prima facie compliance with the requirements in the note, which had to be in the motion papers. (Wells Fargo Bank, N.A. v. Osias, 156 AD3d 942, 944 [2d Dept 2017].)

The court declines to follow the MacPherson case4, which counsel for defendants urges the court to follow. This court is bound to follow the precedents issued by the Appellate Division, Second Department, but is not bound to follow decisions issued by justices of the State Supreme Court in other counties of the Second Department. Not only has that decision not been cited by any decision issued by the Second Department, it has been specifically mentioned and not followed by two Federal District Court Judges.5

A survey of many of the most recent Second Department cases on the issues of acceleration and de-acceleration follows. In chronological order, excluding those discussed elsewhere herein, they hold:

1. An action to foreclose a mortgage is subject to a six-year statute of limitations pursuant to CPLR §213[4]. Even if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount becomes due and the statute of limitations begins to run on the entire debt. (NMNT Realty Corp. v. Knoxville 2012 Trust, 151 AD3d 1068 [2d Dept 2017].)

2. The “savings” provision of CPLR §205(a) is applicable in a second foreclosure action if the first action was timely commenced and then dismissed, for example, for abandonment, without prejudice, as this is a dismissal based on grounds other than a voluntary discontinuance, lack of personal jurisdiction, neglect to prosecute, or a final judgment on the merits. Therefore, the lender has six months after the dismissal to commence the second action, even if the statute of limitations has run, and this provision is applicable even where the second action is brought by an assignee of the mortgage and not the same plaintiff, as it is a successor in interest and has the same rights as the assignor. (Wells Fargo Bank, N.A. v. Eitani, 148 AD3d 193, 195 [2d Dept 2017].)

3. The fact that the action was dismissed as against the defendant homeowner for failure to effectuate personal service does not invalidate the plaintiff’s election to exercise its right to accelerate the maturity of the debt. The fact of plaintiff’s election to accelerate should not be confused with the notice or manifestation of such election where nothing in the parties’ [mortgage] agreement provides that the plaintiff’s election is not valid until the defendant homeowner receives notice thereof. Thus, the failure to properly serve the summons and complaint upon the defendant homeowner did not, as a matter of law, destroy the effect of the sworn statement [in the complaint] that the plaintiff had elected to accelerate the maturity of the debt. (Beneficial Homeowner Serv. Corp. v. Tovar, 150 AD3d 657, 658 [2d Dept 2017].)

4. If the plaintiff in a prior foreclosure action lacked standing to commence it, there was no acceleration, as the commencement of that action did not constitute an affirmative action evidencing the exercise of the option to accelerate the maturity of the loan. (DLJ Mtge. Capital, Inc. v. Pittman, 150 AD3d 818, 819 [2d Dept 2017].) 5. A lender may revoke its election to accelerate the mortgage by an affirmative act of revocation occurring during the six-year limitations period subsequent to the initiation of the foreclosure action. (U.S. Bank N.A. v. Barnett, 151 AD3d 791, 793 [2d Dept 2017].)

6. Where the lender makes a motion to discontinue a foreclosure action and obtains an order granting the motion, this is distinguishable from the cases in which the foreclosure action was never discontinued by the lender, but rather, was dismissed by the court. Making such a motion is an affirmative act to revoke the lender’s election to accelerate, while the dismissal by the court does not constitute an affirmative act by the lender to revoke its election to accelerate. (NMNT Realty Corp. v. Knoxville 2012 Trust, 151 AD3d 1068, 1070 [2d Dept 2017].)

7. Where a plaintiff’s standing has been placed in issue by a defendant’s answer, the plaintiff must prove its standing as part of its prima facie showing on a motion for summary judgment. (21st Mtge. Corp. v. Adames, 153 AD3d 474, 474 [2d Dept 2017].)

8. Where the foreclosure action was administratively dismissed, and the lender did not challenge the propriety of the dismissal or seek to restore the action to the court’s calendar, the acceleration of the debt is not revoked. (Deutsche Bank Natl. Trust Co. v. Gambino, 153 AD3d 1232, 1234 [2d Dept 2017].)

9. Where the complaint states that it had given the borrower the required notice of default, that the period to cure “has elapsed,” and that the lender “has elected and hereby elects to declare immediately due and payable the entire unpaid balance of principal,” the lender accelerated the mortgage in the complaint, and not earlier than the date, of the commencement of the foreclosure action. (Stewart Tit. Ins. Co. v. Bank of NY Mellon, 154 AD3d 656, 660 [2d Dept 2017].)

10. The filing of the summons and complaint seeking the entire unpaid balance in the prior foreclosure action constituted a valid election by the plaintiff lender to accelerate the maturity of the debt. This established that the mortgage debt was accelerated on April 11, 2008, and that the applicable six-year statute of limitations had expired by the time the plaintiff commenced the second foreclosure action on July 8, 2014. The plaintiff had voluntarily discontinued the prior foreclosure action on April 23, 2014, after the statute of limitations had expired, and its April 8, 2014, 90-day notice pursuant to RPAPL §1304 did not, as a matter of law, “destroy the effect of the sworn statement in the first complaint that the plaintiff had elected to accelerate the maturity of the debt.” (Deutsche Bank Natl. Trust Co. v. Adrian, 157 AD3d 934, 935-936 [2d Dept 2018].)

11. The court dismissed the prior foreclosure action, finding that the plaintiff did not have standing to commence that action, because it was not the holder of the note and mortgage at the time that the action was commenced. Accordingly, the complaint in the first action was ineffective to constitute a valid exercise of the option to accelerate the debt, since the prior plaintiff did not have the authority to accelerate the debt or to sue to foreclose at that time. Thus, the mortgage was not accelerated by the prior foreclosure action. (U.S. Bank N.A. v. Gordon, 158 AD3d 832, 836 [2d Dept 2018]. See also DLJ Mtge. Capital, Inc. v. Hirsh, 161 AD3d 944 [2d Dept 2018].)

12. The court held that a “purported loan modification application submitted by the plaintiff in opposition to the motion was not an acknowledgment of the debt and an unconditional promise to repay the debt sufficient to reset the running of the statute of limitations.” (U.S. Bank, N.A. v. Kess, 159 AD3d 767, 768-769 [2d Dept 2018].) 13. Pursuant to CPLR §204(a), the Bankruptcy Code’s automatic stay of 11 U.S.C.S. §362(c) tolls the limitations period for foreclosure actions. (Lubonty v. U.S. Bank N.A., 159 AD3d 962, 962 [2d Dept 2018].)

14. The Supreme Court dismissed a foreclosure action commenced on March 17, 2009 for lack of personal jurisdiction. In June 2015, the plaintiff borrower commenced an action pursuant to RPAPL §1501(4) to cancel and discharge the subject mortgage, alleging that the applicable six-year statute of limitations to foreclose the mortgage had expired on March 17, 2015. Lender moved pre-answer to dismiss, and submitted a letter dated March 13, 2015, addressed to the borrower, stating that “[t]he maturity of the Loan is hereby de-accelerated, immediate payment of all sums owed is hereby withdrawn, and the Loan is re-instituted as an installment loan.” The court found this to be insufficient to support the motion to dismiss, stating “the Supreme Court should have denied [lender's] motion pursuant to CPLR §3211(a)(1) to dismiss the complaint insofar as asserted against it, on the ground that the evidence it submitted did not constitute documentary evidence within the meaning of CPLR §3211(a)(1) and did not utterly refute the factual allegations of the complaint and conclusively establish a defense to the claims as a matter of law… nothing on the face of the letter establishes when it was actually mailed, and no independent evidence of the mailing date was submitted. Accordingly, for the purposes of this CPLR §3211(a) motion, the letter does not demonstrate that [lender's] claimed affirmative act of revocation was timely interposed, and thus does not conclusively establish a defense to the plaintiff’s claims under RPAPL §1501(4) as a matter of law. (Soroush v. Citimortgage, Inc., 161 AD3d 1124, 1127 [2d Dept 2018].)

15. A 2008 foreclosure action was discontinued by a stipulation dated January 23, 2013, which was so-ordered by the Supreme Court, wherein the parties agreed, inter alia, that: (1) the defendant was served with a copy of the summons and complaint; (2) the defendant would withdraw his motion; (3) the action would be discontinued without prejudice and the notice of pendency would be cancelled; and (4) they “desire to amicably resolve this dispute and the issues raised in the [defendant's motion] without further delay, expense or uncertainty.” In 2015, the lender commenced a second foreclosure action, which borrower moved to dismiss, claiming the action was time-barred, as the loan was accelerated in 2008. The lender claimed the stipulation revoked the acceleration. The Appellate Division disagreed, stating “the stipulation did not, in itself, constitute an affirmative act to revoke its election to accelerate, since, inter alia, the stipulation was silent on the issue of the revocation of the election to accelerate, and did not otherwise indicate that the plaintiff would accept installment payments from the defendant.” (Freedom Mtge. Corp. v. Engel, 163 AD3d 631, 633 [2d Dept 2018].)

16. Determining precisely when a mortgage is accelerated is a key aspect in any action or proceeding commenced pursuant to RPAPL §1501(4). Where the plain language setting forth the contractual right of the lender to accelerate the entire debt is discretionary rather than mandatory, the lender maintains the right to later revoke the acceleration. Just as standing, when raised, is a necessary element to a valid acceleration, it is a necessary element, when raised, to a valid de-acceleration. To the extent the cases have held that acceleration notices must be clear and unambiguous to be valid and enforceable, de-acceleration notices must also be clear and unambiguous to be valid and enforceable. “Courts must, of course, be mindful of the circumstance where a bank may issue a de-acceleration letter as a pretext to avoid the onerous effect of an approaching statute of limitations and to defeat the property owner’s right pursuant to RPAPL §1501 to cancel and discharge a mortgage and note. A de-acceleration letter is not pretextual if it contains an express demand for monthly payments on the note, or, in the absence of such express demand, it is accompanied by copies of monthly invoices transmitted to the homeowner for installment payments, or is supported by other forms of evidence demonstrating that the lender was truly seeking to de-accelerate and not attempting to achieve another purpose under the guise of de-acceleration. In contrast, a bare and conclusory de-acceleration letter, without a demand for monthly payments toward the note, or copies of invoices, or other evidence, may raise legitimate questions about whether or not the letter was sent as a mere pretext to avoid the statute of limitations.” In this case, the court found that a letter that stated that borrower’s failure to cure her delinquency within 30 days “will result in the acceleration” of the note, was merely an expression of future intent that fell short of an actual acceleration, as it was not clear and unequivocal, as future intentions may always be changed in the interim.6 (Milone v. US Bank N.A., 164 AD3d 145, 148 [2d Dept 2018].) 17. General Obligations Law §17-101 effectively revives a time-barred claim when the debtor has signed a writing which validly acknowledges the debt. To constitute a valid acknowledgment, a writing must be signed, must recognize an existing debt and must contain nothing inconsistent with an intention on the part of the debtor to pay it. In this case, a letter written by the borrower that accompanied his second short sale package submitted to lender’s loan servicer did not constitute an unqualified acknowledgment of the debt or manifest a promise to repay the debt sufficient to reset the running of the statute of limitations. (Karpa Realty Group, LLC v. Deutsche Bank Natl. Trust Co., 164 AD3d 886, 888 [2d Dept 2018].)

18. The notice of default “was nothing more than a letter discussing acceleration as a possible future event, which does not constitute an exercise of the mortgage’s optional acceleration clause.” (Fbp 250, LLC v. Wells Fargo Bank, N.A., 164 AD3d 1307, 1309 [2d Dept 2018].)

19. The plaintiff’s letter accompanying her request for the defendant to authorize a short sale of the property, and the other documents relied on by the defendant, did not constitute an unqualified acknowledgment of the debt sufficient to reset the statute of limitations (Yadegar v. Deutsche Bank Natl. Trust Co., 164 AD3d 945, 947 [2d Dept 2018].)

20. The defense of statute of limitations is waivable. Where a borrower in a foreclosure action defaulted and did not appear or answer the complaint, then opposed the lender’s motion for a default judgment by alleging that the statute of limitations had run, but did not seek to vacate his default and interpose an answer to the complaint, the court held that the borrower had waived the defense. The decision states “borrower waived a statute of limitations defense by failing to raise it in an answer or in a timely pre-answer motion to dismiss.” (21st Mtge. Corp. v. Palazzotto, 164 AD3d 1293, 1294 [2d Dept 2018].)

21. Where the lender had brought a motion to discontinue the prior foreclosure action, the court found this was still insufficient to constitute a de-acceleration, as “[c]ontrary to the plaintiff’s contention, the order dated December 12, 2013, which discontinued the 2008 action upon its motion, was insufficient to evidence an affirmative act to revoke the election to accelerate the mortgage debt. In this case, the plaintiff failed to demonstrate the basis for that motion, since it did not submit the motion papers in opposition to the defendant’s cross motion, and nothing in the order itself served to “destroy the effect of the sworn statement that the [plaintiff's predecessor in interest] had elected to accelerate the maturity of the debt….[t]he plaintiff’s further contention that it affirmatively revoked the election to accelerate the mortgage debt by serving the defendant with various notices, including the 90-day notice pursuant to RPAPL §1304, is also without merit.” (U.S. Bank Trust, N.A. v. Aorta, ___AD3d___, 2018 NY Slip Op 08528 [2d Dept 2018].)

It is clear from the above Second Department decisions that plaintiff herein has made a prima facie case for summary judgment. In support of her motion for summary judgment, the plaintiff has submitted, inter alia, a copy of the verified complaint that commenced the foreclosure action against the mortgagors [e-file doc. No. 80], in which lender and plaintiff Aurora specifically states in Paragraph Fifth that it “elects to call due the entire amount secured by the mortgage.” This establishes that the mortgage debt was accelerated on or about April 16, 2009, the date on which the foreclosure action was commenced, and thus, that the applicable six-year statute of limitations had expired by the time the plaintiff commenced the instant action on February 10, 2018. (NMNT Realty Corp. v. Knoxville 2012 Trust, 151 AD3d 1068, 1070 [2d Dept 2017].)"

MORE ON FAMILY EVICTION

Yu v. Zhan, NYLJ 1/9/19, Date filed: 2018-12-18, Court: District Court, Nassau, Judge: Judge Scott Fairgrieve, Case Number: LT-004391-18NA:

"Generally, and with limited exceptions, a family member may not evict another family member in a summary proceeding where the occupancy arises out of a familial relationship (Rosenstiel v. Rosenstiel, 20 AD2d 71 [1st Dept 1963]; Kakwani v. Kakwani, 40 Misc 3d 627 [Nassau Dist Ct 2013]; Lally v. Fasano, 23 Misc 3d 938 [Nassau Dist Ct 2009]; Hon. Stephen L. Ukeiley, The Bench Guide to Landlord & Tenant Disputes in New York 47 [2d ed 2013]). “However, a summary proceeding is permitted to evict a family member whose occupancy is not the result of a ‘familial relationship’” (Hon. Stephen L. Ukeiley, The Bench Guide to Landlord & Tenant Disputes in New York 47 [emphasis in original]).

As stated in Lally v. Fasasno, 23 Misc3d at 941: “In interpreting the definition of a ‘family,’ courts have traditionally considered whether the parties lived together ‘in a family unit’ with ‘some indicia of permanence or continuity’ (Braschi v. Stahl Assoc. Co., 74 N.Y.2d 201, 211, 543 N.E.2d 49, 54 [1989] ). Whether the parties resided together has often been the ‘critical factor’ in determining whether they are to be considered a ‘family’ for legal purposes (see Sirota, 164 Misc.2d at 967, 626 N.Y.S.2d 672).” It is uncontested that petitioner and respondent do not live in the subject premises together. Accordingly, there is no familial relationship that would preclude this court from exercising jurisdiction over this action."

DIVORCE - INTERIM LEGAL FEES

Skokos v Skokos, 2019 NY Slip Op 00158, Decided on January 9, 2019, Appellate Division, Second Department:

"Domestic Relations Law § 237(a) provides that in any action for a divorce, "the court may direct either spouse . . . to pay counsel fees . . . directly to the attorney of the other spouse to enable the other party to carry on or defend the action . . . as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties." The statute provides that "[t]here shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse" (Domestic Relations Law § 237[a]).

The determination of an application for interim counsel fees is committed to the sound discretion of the trial court (see Falcone v Falcone, 109 AD3d 787; Coven v Coven, 82 AD3d 1144). "An award of interim counsel fees to the nonmonied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties" (Falcone v Falcone, 109 AD3d at 788). Such an award is intended to ensure that the nonmonied spouse "will be able to litigate the action, and do so on equal footing with the monied spouse" (Prichep v Prichep, 52 AD3d 61, 65).

Here, the evidence submitted by the defendant revealed a significant disparity in the financial circumstances of the parties, as the plaintiff owns and derives his income from a successful [*2]construction business, and the defendant, who has not been employed outside the home since the beginning of the marriage, has relatively few financial resources. Thus, the evidence established that the defendant is the nonmonied spouse. Further, the record reflects that the Supreme Court had a sufficient basis to award the defendant interim counsel fees in the sum of $15,000 (see Domestic Relations Law § 237[a]; Vistocco v Jardine, 116 AD3d 842; Palmeri v Palmeri, 87 AD3d 572; Penavic v Penavic, 60 AD3d 1026; Prichep v Prichep, 52 AD3d at 66)."

MORTGAGE FORECLOSURE - IMPROPER SERVICE REVERSES JUDGMENT FOR TRAVERSE HEARING

Federal Natl. Mtge. Assn. v Alverado, 2018 NY Slip Op 08918, Decided on December 26, 2018, Appellate Division, Second Department:

"In an action to foreclose a mortgage, the defendants Rudy E. Alverado and Danilo Ramos appeal from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered November 17, 2016. The order and judgment of foreclosure and sale, insofar as appealed from, in effect, denied the defendant Rudy E. Alverado's cross motion pursuant to CPLR 5015(a)(4) to vacate an order of the same court dated June 25, 2015, granting the plaintiff's motion for summary judgment on the complaint insofar as asserted against him, upon his failure to appear or answer the complaint, and to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211(a)(8), on the ground that he was not properly served.

ORDERED that the appeal by the defendant Danilo Ramos is dismissed, as he is not aggrieved by the portion of the order and judgment of foreclosure and sale appealed from; and it is further,

ORDERED that the order and judgment of foreclosure and sale is reversed insofar as appealed from by the defendant Rudy E. Alverado, on the law, and the matter is remitted to the Supreme Court, Nassau County, for a hearing to determine whether the defendant Rudy E. Alverado was properly served with copies of the summons and complaint pursuant to CPLR 308(1), and, thereafter, a new determination of his cross motion; and it is further,

ORDERED that one bill of costs is awarded to the defendant Rudy E. Alverado.

In this action to foreclose a mortgage, the defendant Rudy E. Alverado failed to appear or answer the complaint. The plaintiff moved, inter alia, for summary judgment on the complaint. In support of the motion, the plaintiff submitted, among other things, the affidavits of a process server who stated that he delivered the summons and complaint to the defendant Danilo Ramos and to Alverado at a certain location on Gotham Avenue in Elmont. In an order dated June 25, 2012, the Supreme Court granted the motion.

The plaintiff moved, inter alia, for a judgment of foreclosure and sale. Alverado then [*2]cross-moved to vacate his default pursuant to CPLR 5015(a)(4), and to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211(a)(8), on the ground that he was never properly served. In support, he submitted his own affidavit, in which he denied receiving service of process, and denied being present at the location listed in the process server's affidavit. He stated that, at the time of the alleged service, he was at work at another specified location. He added that, even if he had been home at that time and date, he would not have been at the Gotham Avenue location listed in the process server's affidavit, because he was living at the subject property located on Randall Avenue in Elmont.

In an order and judgment of foreclosure and sale entered November 17, 2016, the Supreme Court, in effect, denied Alverado's cross motion to vacate his default and to dismiss the complaint insofar as asserted against him.

"The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process. In those instances in which process has not been served upon a defendant, all subsequent proceedings will be rendered null and void" (Washington Mut. Bank v Murphy, 127 AD3d 1167, 1173-1174 [internal citations omitted]).

"Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" (Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589). To be entitled to vacatur of a default judgment under CPLR 5015(a)(4), a defendant must overcome the presumption raised by the process server's affidavit of service (see Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d 776, 776). "Although bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing" (U.S. Bank, N.A., v Tauber, 140 AD3d 1154, 1155 [internal citations omitted]). A determination as to whether service was properly made pursuant to CPLR 308(1), as here, turns on issues of credibility, which should be determined by a hearing (see FV-1, Inc. v Reid, 138 AD3d 922, 924).

Here, since Alverado's sworn denial of receipt of process contained specific facts to rebut the statements in the process server's affidavit, the presumption of proper service was rebutted and an evidentiary hearing was required (see FV-1, Inc. v Reid, 138 AD3d at 924; Velez v Forcelli, 125 AD3d 643, 644; cf. Bank of Am., N.A., v Latif, 148 AD3d 967, 969; Engel v Boymelgreen, 80 AD3d 653, 655)."