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."

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."

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."

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."

HAVE A SAFE MEMORIAL DAY WEEKEND

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

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."

PREDATORY MARRIAGES

Another issue that can arise with a predatory caretaker.

Matter of Hua Wang (Berk), 2018 NY Slip Op 51016(U), Decided on June 27, 2018, Surrogate's Court, Kings County Ingram, J:

"In the above-entitled contested proceeding, Hua Wang a/k/a Judy Wang (hereinafter petitioner) seeks a decree determining that 1) she is entitled under the provisions of EPTL 5-1.1-A to elect to take her elective share of the estate of Irving Berk (hereinafter decedent) and 2) the notice of election served and filed herein with the clerk of the court has been properly served, filed and recorded as provided by law. Harvey Berk and Joel Berk (decedent's sons and hereinafter referred to collectively as the co-executors) opposed petitioner's petition in an answer wherein they alleged, inter alia, that the marriage of petitioner to decedent was the product of undue influence and that decedent lacked the requisite mental capacity to enter into a marriage contract.

In 1997, petitioner was hired as decedent's live-in caretaker. Decedent was about 91 years old at the time. On June 17, 2005, petitioner (who was almost 48 years old) and decedent (who was 99 years old) married in a ceremony at the New York City Clerk's Office.

On June 16, 2006, decedent died. On October 30, 2006, decedent's will was admitted to [*2]probate in this court and letters testamentary were issued to the co-executors. Petitioner received no bequest under decedent's will.

On December 4, 2017, a 37-day trial commenced in this matter with the last witness testifying on February 26, 2018. Summations were held on May 9, 2018. The trial transcript is approximately 5,000 pages. Over 30 witnesses testified in person or by deposition and well over 100 exhibits were received in evidence. This Court must determine the following issues. 1) Did petitioner know that decedent was mentally incapacitated and incapable of consenting to the marriage? 2) If so, did petitioner take unfair advantage of decedent by marrying him for the purpose of obtaining pecuniary benefits that become available by virtue of being that person's spouse, at the expense of the intended beneficiaries? 3) In the alternative, did petitioner, as decedent's caretaker, exercise undue influence upon decedent to induce him to marry her for the purpose of obtaining pecuniary benefits that become available by virtue of being that person's spouse, at the expense of the intended beneficiaries (see Matter of Berk, 133 AD3d 850 [2d Dept 2015])?

A person is presumed to be competent at the time of the performance of the challenged action and the burden of proving incompetence, by a preponderance of the credible evidence, rests with the party asserting incapacity (Thomas v Gray, 121 AD3d 1091 [2d Dept 2014]; Matter of Berk, supra). The standard of capacity for marriage is whether the person was able to understand the nature, effect and consequences of the marriage (Levine v Dumbra, 198 AD2d 477 [2d Dept 1993]). Marriage is a civil contract, to which the consent of the parties capable in law of making a contract is essential (DRL 10).

In this matter, petitioner argues that decedent was fully capable of entering into a marriage at the time of his nuptials with her. She argues that he continued to work up until shortly before his demise and was able to attend to and continue to run his business at the Berk Trade and Business School. She also argued that he was able to attend and participate in family functions. The co-executors argue the opposite. They argue that decedent was the victim of the slow fog of dementia that started to creep into his life and robbed him of the capacity to understand the effects of entering into a marriage with petitioner.

The record is replete with credible evidence that decedent suffered from both physical and mental impairments. Among other things, in 1999, decedent suffered from a stroke and was hospitalized several times between 1999 and the date of his death for a number of physical ailments. Moreover, the record contains ample evidence that decedent suffered from significant hearing loss. In February 2005, decedent was hospitalized for gall bladder surgery at which time it was noted in hospital records that decedent experienced periods of confusion. In February 2005, decedent met with Sayward Mazur, Esq. (hereinafter Mazur), an attorney who was representing him in a landlord/tenant matter. Mazur testified that he had significant concerns regarding decedent's competency and ability to meaningfully participate in the prosecution of the matter for which he was retained. Mazur's concerns about the decedent's competency were so grave that he considered the appointment of a guardian for decedent. Mazur eventually recommended that a guardian ad litem be appointed for decedent in the landlord/tenant matter. On June 16, 2005, decedent was unable to accurately complete the marriage license application and made critical mistakes including, among other things, decedent's address, his place of birth, and his mother's maiden name. In a photograph taken on decedent's wedding day, decedent [*3]appeared unsmiling and looked dazed and/or confused.

While the parties presented vastly contrasting evidence of decedent's physical and mental condition, the above-specified instances are only a few of the examples of the plethora of credible evidence presented that decedent suffered from diminished mental capacity that rendered him incapable of understanding the nature, effect and consequences of the marriage to petitioner or consenting to the marriage.

Moreover, this Court finds it impossible to believe that petitioner did not know of decedent's mental incapacity. Petitioner, in essence, was decedent's primary caretaker from 1997 until his death. During that time, petitioner was present during decedent's doctor's visits and numerous hospitalizations. The record also reflects that during her tenure as decedent's caretaker, petitioner was with decedent during a significant portion of each day where she would interact with him and she had ample opportunity to observe his actions, his daily routine and interactions with others. Also, petitioner had experience in the medical field. Prior to immigrating to the United States in 1996, petitioner, an ophthalmologist, worked in a hospital in China. With petitioner's medical experience and her constant care of decedent, this court's finds that she knew decedent lacked the capacity to consent to marry her.

An alternate ground for forfeiture of the right of election is whether petitioner, as decedent's caretaker, exercised undue influence upon decedent to induce him to marry her for the purpose of obtaining pecuniary benefits that become available by virtue of being that person's spouse, at the expense of the intended beneficiaries (see Matter of Berk, supra). To establish undue influence, the co-executors must prove, by a preponderance of the credible evidence, that (1) the perpetrator had the motive to exercise undue influence; (2) the perpetrator had the opportunity to exercise undue influence, and (3) undue influence was actually exercised (see Matter of Bianca, 195 AD2d 457 [2d Dept 1993]; Matter of Berk, supra). The party alleging the undue influence must show that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained decedent to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist (see Matter of Capuano, 93 AD3d 666 [2d Dept 2012]).

The testator's physical and mental condition are critical factors in determining whether the pressure exerted amounts to undue influence (Matter of O'Brien, 182 AD2d 1135 [4th Dept 1992]; Children's Aid Society v Loveridge, 70 NY 387 [1877]; Matter of Woodward, 167 NY 28 [1901]; Matter of Callahan, 155 AD2d 454 [2d Dept 1989]; Matter of Gnirrep, 2 AD2d 404 [3d Dept 1956]; Matter of Streb, 247 App Div 556 [4th Dept 1936]). Similarly, the nature of grantor's relationship with the beneficiary is relevant to whether undue influence was exercised (Matter of Burke, 82 AD2d 260 [2d Dept 1981]). Other factors that have been held to indicate the exercise of undue influence are whether the professional who drafted the document involved in the transaction was chosen by decedent (see Matter of Elmore, 42 AD2d 240 [3d Dept 1973]); whether the person who allegedly wielded undue influence was in a position of trust (Id.), and whether decedent was isolated from the objects of his natural affection (see Matter of Burke, supra; Matter of Kaufman, 20 AD2d 464 [1st Dept 1964], affd 15 NY2d 825 [1965]).

As previously stated, this Court finds that decedent suffered from diminished capacity at the time of his marriage as evidenced from the record before the court. Further, as decedent's [*4]caretaker, petitioner maintained a confidential relationship with decedent, wherein he was dependent upon petitioner to help him meet his needs of daily living (see Matter of Arnold, 125 Misc 2d 265 [Sur Ct, Bronx County 1983]). Once it is shown that a confidential relationship existed between petitioner and decedent, an inference of undue influence arises which requires the beneficiary to come forward with an explanation of the circumstances of the transaction (Bazigos v Krukar, 140 AD3d 811 [2d Dept 2016]). Petitioner's allegations regarding the romantic and loving relationship that developed between decedent and petitioner were insufficient to convince this court. In fact, this Court found petitioner's testimony substantially incredible on material issues.

However, even without an inference of undue influence, there was evidence of the influence exerted over decedent by petitioner. All of the parties that prepared documents related to the marriage in time and/ or subject matter (other than petitioner, decedent and city officials) appeared to be chosen by petitioner. Petitioner chose 1) Jing Kang to assist petitioner and decedent in the administrative processes of obtaining a license and getting married; Ms. Kang also served as witness to the marriage; 2) Jacqueline Rayfield, Esq. to prepare a post-nuptial agreement; 3) Yuming Wang, Esq. to prepare a "gift certification" (relating to certain inter vivos gifts from decedent to petitioner) and a "limited power of attorney" (relating to the Berk Trade and Business School) in the months shortly before the marriage and 4) Walter Chin (a Notary Public) to notarize various documents purportedly signed by decedent. Although Notary Chin only saw decedent twice in his lifetime, upon the request of petitioner, Notary Chin summarily executed and affixed his notary stamps and signature to a number of documents on various dates that were purportedly signed by decedent without Notary Chin actually witnessing decedent sign the document. Under the circumstances herein, it appears incredible to this court that decedent, if competent, would not have taken a more active role in choosing the professionals for the drafting of legal documents regarding decedent's property and certain gifts made by him in light of his access to, and probable knowledge of, various legal professionals in his extensive real estate and business dealings throughout the years.

While decedent was not isolated from his family, petitioner did have a great deal of control over the people in decedent's life who helped care for him on a daily basis. The record reflects that decedent met with the co-executors on a regular basis. He also regularly attended family functions. However, petitioner, as decedent's live-in caretaker, was decedent's daily companion who took care of his daily needs. Even more troubling to this Court was the evidence that showed that during decedent's last years, petitioner hired a substitute caretaker to take her place when she was away or otherwise unable to be present to care for decedent herself, such as during visits with her family in China. Essentially, petitioner had control of decedent's daily needs, even when she was not in decedent's presence or in the country.

In addition, the credible evidence showed that the marriage between decedent and petitioner was kept secret until after decedent's death. After the marriage, petitioner even failed to disclose to decedent's physicians that she was decedent's spouse. In fact, while en route to the funeral home following decedent's death in June 2006, petitioner revealed to the co-executors that she had married their father in June 2005. Most telling of the great influence that petitioner had over decedent was a number of notes in evidence that were written by decedent that appeared to be clearly written at the direction of petitioner. The notes in evidence appeared to be dictated [*5]by petitioner. The notes appeared to have been in decedent's handwriting, but contained the unmistakable undertones of petitioner's voice. Petitioner's counsel even conceded during summations that the aforementioned notes contained the "diction" or "dialect" of petitioner.

The evidence presented shows consistent, insidious and duplicitous conduct that led to petitioner's clandestine marriage to decedent. As decedent's live-in caretaker, petitioner had ample motive and opportunity to influence decedent's actions. In light of the evidence of the actions of decedent in this matter, it is crystal clear that petitioner actually exercised undue influence over decedent in entering into a marriage with him.

It is well settled that no one shall be permitted to profit from his/her own fraud, or take advantage of his/her own wrong, or to base any claim upon his/her own iniquity, or to acquire property by his/her own crime (see Riggs v Palmer, 115 NY 506 [1889]). Where a marriage has been wrongfully procured, the statutory right of election which would have been the benefit of such marriage will be forfeited (Campbell v Thomas, 73 AD3d 103 [2d Dept 2010]).

Therefore, this Court finds that, based upon the credible evidence, petitioner knew that decedent was mentally incapacitated at the time of their marriage, and entered into marriage with decedent to obtain the pecuniary benefits of said marriage at the expense of the beneficiaries. This Court further finds that, even if the petitioner was competent, the co-executors have proven by the preponderance of the credible evidence that petitioner exercised undue influence over decedent to induce him to marry her for the pecuniary benefits that became available by virtue of being decedent's spouse, at the expense of the beneficiaries. Thus, through her wrongdoing, petitioner has forfeited her right to take the elective share of decedent's estate as decedent's surviving spouse.

Accordingly, based upon the record, petitioner's petition for decree determining that she is entitled under the provisions of EPTL 5-1.1-A to elect to take her elective share of decedent's estate is hereby denied. Decedent's petition for a decree determining that the notice of election served and filed herein with the clerk of the court has been properly served, filed and recorded as provided by law is also denied as moot."

FREE MORTGAGE FORECLOSURE CLINIC TODAY

I will be volunteering today at the Nassau County Bar Association's free clinic for Mortgage Foreclosure, Bankruptcy and Superstorm Sandy issues, from 3pm to 6pm.

For more information, contact Nassau County Bar Association, 15^th and West Streets, Mineola, NY 11501 at (516) 747-4070

FOR THE LEVITTOWN CHAMBER OF COMMERCE

YOU GOT SERVED?

Maybe not, as this case is being remanded for a hearing. Reading the defendant's allegations, it would appear he may need to get his separated wife's testimony that he did not live with her and that she never told him of the service of papers.

US Bank, Natl. Assn. v Schumacher, 2019 NY Slip Op 03839, Decided on May 15, 2019, Appellate Division, Second Department:

"The Supreme Court should not have denied the defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him without conducting a hearing. CPLR 308(2) authorizes service, inter alia, by delivery of the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place, or usual place of abode of the person to be served, and by mailing the summons to the person to be served at his or her last
known residence or actual place of business. The term "usual place of abode" means a place at which the person lives with a degree of permanence and stability and to which he or she intends to return (see Feinstein v Bergner, 48 NY2d 234, 239, n 3; HSBC Bank USA, N.A. v Whitter, 159 AD3d 942, 945; Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d 776, 777).

"Ordinarily, a process server's affidavit of service constitutes prima facie evidence that the defendant was validly served" (U.S. Bank, N.A. v Peralta, 142 AD3d 988, 988; see Fuentes v Espinal, 153 AD3d 500, 501; Citibank, N.A. v Balsamo, 144 AD3d 964, 964). "However, when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit of the process server, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing" (U.S. Bank, N.A. v Peralta, 142 AD3d at 988-989; see Fuentes v Espinal, 153 AD3d at 501; Citibank, N.A. v Balsamo, 144 AD3d at 964).

Here, the plaintiff's affidavit of service constituted prima facie evidence of proper service pursuant to CPLR 308(2) upon the defendant (see Fuentes v Espinal, 153 AD3d at 501). The process server averred, inter alia, that on August 23, 2014, at 10:26 a.m., he served the defendant with the summons and complaint in this action by delivering them to Michelle Schumacher, the defendant's wife, a person of suitable age and discretion, who indicated that the premises were the defendant's dwelling place or usual place of abode in Hicksville.

However, the defendant rebutted the process server's affidavit through his specific averments that, at the time of the purported service, on August 23, 2014, the Hicksville address was not his residence, actual dwelling place, or usual place of abode. More specifically, the defendant averred that on August 23, 2014, he and his wife lived separate and apart, and that he lived in South Ozone Park, Queens. Moreover, the defendant submitted copies of a lease to the premises in Queens covering the period from October 1, 2012, to October 1, 2014; a Con Edison bill for electrical service at the address in Queens covering the period from July 30, 2014, to August 28, 2014; and an order of the Supreme Court, Nassau County, dated March 9, 2010, in a prior foreclosure action commenced by the plaintiff's predecessor in interest, dismissing that action. The order dated March 9, 2010, inter alia, directed dismissal of the complaint in the prior action upon a determination, made after a hearing to determine the propriety of service, that the Hicksville address was not the defendant's actual dwelling place or his usual place of abode on August 28, 2008, the date of purported service in that action. The plaintiff's submissions in opposition to the defendant's motion failed to establish that service was proper.

Under these circumstances, the Supreme Court should have conducted a hearing to determine whether the defendant was properly served pursuant to CPLR 308(2) (see Bank of Am., N.A. v Tobing, 145 AD3d 941, 942; see also Deutsche Bank Natl. Trust Co. v Stolzberg, 165 AD3d 624, 625-626; Bank of Am., N.A. v Latif, 148 AD3d 967, 969; Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d at 777-778). Accordingly, we remit the matter to the Supreme Court, Nassau County, for a hearing to determine whether personal jurisdiction over the defendant was obtained, and a new determination of his motion thereafter."

CAT LAW - THE EVOLVING LAW OF PETS

Finn v. Anderson, NYLJ May 14, 2019, Date filed: 2019-04-30, Court: City Court, Chautauqua, Judge: Judge Frederick Larson, Case Number: CV-000108-19/JA:

"FACTS
 This is a replevin action requiring the Court to determine ownership/custody of a cat. Plaintiffs moved to Wescott Street in the City of Jamestown in September of 2018. Around that time, the Plaintiffs noticed a white cat frequently wandering onto their property looking for food. Plaintiffs state that the cat was quite thin, and had no identification tags. The Plaintiffs assumed that the cat was a stray, named him “Sylvester”, and began feeding the cat in the entry-way of their home. The Plaintiffs fed Sylvester frequently for several months before bringing him into their home. The Plaintiffs took the cat to the veterinarian on January 14, 2019 where he was given shots, treated for fleas, de-wormed, and micro-chipped. The veterinary report states that Sylvester had not been previously micro-chipped, but had previously been neutered prior to January 14, 2019. Plaintiff states that Plaintiff reported Sylvester to be 4-years-old. After having been an indoor cat since January 14, Sylvester accidentally got out of the house on February 2, 2019. Plaintiff’s asked their neighbors, who lived across the street, if they had seen Sylvester. The neighbor stated that Sylvester belonged to his girlfriend, the Defendant Ashlynn Anderson, and that she had taken the cat back. The Defendant states that the cat in question is named Marshmallow. The Defendant testified that Marshmallow was given to her by a co-worker in 2009. Since 2009, Marshmallow has lived in her home on Westcott Street, where the Defendant has resided for about 25 years. The Defendant had Marshmallow neutered as a kitten, but beside that visit, the Defendant has not taken him to the vet in the ten years that she has owned him. However, the Defendant did take Marshmallow for a vet “checkup” following the commencement of this action and after speaking with an attorney. The Defendant also testified that Marshmallow is and “indoor-outdoor” cat. Therefore, he may enter and exit the Defendant’s home using a cat-door whenever he chooses. The Defendant stated that at least three of the neighbors are all familiar with Marshmallow, and often feed him treats when he wanders onto their properties. Additionally, the Defendant testified that she has a second cat that also operates in this way, living both inside and outside the Defendant’s home to some degree. Based on these habits, the Defendant was not immediately concerned with Marshmallow’s failure to return home in January of 2019. The Defendant admitted that Marshmallow had absconded on previous occasions and was missing for a week or two, but eventually returned to her residence. Defendant states that she looked for Marshmallow around the neighborhood a couple weeks after his disappearance without success. The Defendant stated that she did not inquire with the Plaintiff’s regarding Marshmallow’s whereabouts. Finally, the Defendant’s boyfriend found Marshmallow outside on February 2, 2019, and Defendant repossessed Marshmallow.

Plaintiff argues that she is the true owner of the cat based on the lack of identification, overall neglected appearance of the cat, and the effort and money expended to feed and treat the cat for any illness. Defendant argues that she has been the rightful owner of the cat for ten years. Although the cat has lived and “indoor-outdoor” lifestyle, Defendant states that she has fed him and housed him for the duration of her ownership of him. Both parties claim to love the cat, and desire him to be a part of their family. Plaintiff has filed this Replevin Action in order to recover possession of Sylvester (a.k.a. Marshmallow) from her neighbor, the Defendant.

DISCUSSION
Replevin is a remedy employed to determine “the right of possession as well as recover specific, identifiable items of personal property”. See Practice Commentary following CPLR §7101; TAP Manutencao e Engenharia Brasil S.A. v. Intern. Aerospace Group, Corp., 127 F. Supp. 3d 202 (S.D. NY 2015); Heckl v. Walsh, 122 AD3d 1252, 996 N.Y.S.2d 413 (4th Dep’t 2014); see also 23 NY Jur Conversion, and Action for Recovery of Chattel §89. The term “personal property” includes chattels, and the term “chattel” refers to “things that can be used, handled, or transported, as horses, carriages, furniture, machinery, tools, and numberless objects to be seen about us in everyday life, the value of which is in the possession of the thing itself.” Niles v. Mathusa, 162 NY 546, 57 N.E. 184 (1900); see also 23 NY Jur Conversion, and Action for Recovery of Chattel §89.

Under New York Law, irrespective of how strongly people feel about their pets, cats and dogs have been viewed as “personal property — sometimes referred to as “chattel” — just like a car or a table”. Travis v. Murray, 42 Misc 3d 447, 452, 977 N.Y.S.2d 621, 625 (Sup. Ct.); 2013 NY Slip Op 23405,
5; see also Mullaly v. People, 86 NY 365 [1881]; Schrage v. Hatzlacha Cab Corp., 13 AD3d 150, 788 NYS2d 4 [1st Dept 2004]; Rowan v. Sussdorff, 147 App Div 673, 132 NYS 550 [2d Dept 1911]; ATM One, LLC v. Albano, 2001 NY Misc. LEXIS 910, 2001 NY Slip Op 50103[U] [Nassau Dist Ct 2001]). The standard for recovery in a replevin action being “superior possessory right in the chattel” Pivar v. Graduate School of Figurative Art of NY Academy of Art, 290 AD2d 212, 213, 735 NYS2d 522 [1st Dept 2002]. Therefore, it is “the property rights of the litigants, rather than their respective abilities to care for the dog or their emotional ties to it, that are ultimately determinative.” Travis v. Murray, 2013 NY Slip Op 23405, 5, 42 Misc 3d 447, 453, 977 N.Y.S.2d 621, 626 (Sup. Ct.).

Nevertheless, there has been a slow evolution in New York case law towards the “dechattelization” of household pets, and away from the “overly reductionist and utilitarian” view. Id. New York Courts, as well as most Courts across the United States, are unwilling to go so far as to adopt a child custody or “best interests” standard. Travis v. Murray, 42 Misc 3d 447, 456; see generally Desanctis v. Pritchard, 2002 PA Super 221, 803 A2d 230, 232 [Pa Super Ct 2002]; Clark v. McGinnis (298 P3d 1137 [Kan Ct App 2013]; Morgan v. Kroupa, 167 Vt. 99, 702 A.2d 630 (1997); Houseman v. Dare, 405 N.J. Super. 538, 966 A.2d 24 (Super. Ct. App. Div. 2009).

The “best interests” standard has been rejected for several reasons. First, it is difficult if not impossible to truly determine what is in a pet’s best interests as there is no proven or practical means of gauging an animal’s happiness or “its feelings about a person or a place other than, perhaps, resorting to the entirely unscientific method of watching its tail wag.” Travis v. Murray, 2013 NY Slip Op 23405, 9-10, 42 Misc 3d 447, 459, 977 N.Y.S.2d 621, 630-31 (Sup. Ct.). The subjective factors that are “key to a best interests analysis in child custody — particularly those concerning a child’s feelings or perceptions as evidenced by statements, conduct and forensic evaluations — are, for the most part, unascertainable when the subject is an animal rather than a human.” Id. Second, even if it were possible to ascertain a pet’s feelings, and even if a Court could make a finding of a pet’s best interests, it is “highly questionable whether significant resources should be expended and substantial time spent on such endeavors…[t]o allow full-blown dog custody cases, complete with canine forensics and attorneys representing not only the parties but the dog itself, would further burden the courts to the detriment of children”. Id.

Where a “best interests” standard cannot reasonably be applied, and a strict property analysis is neither desirable nor appropriate, New York Courts have developed a “quasi-interests based standard” that “takes into consideration, and gives paramount importance to, the intangible, highly subjective factors that are called into play when a cherished pet is the property at issue.” Travis v. Murray, 42 Misc 3d 447, 455; see also Raymond v. Lachmann (264 AD2d 340, 695 NYS2d 308 [1st Dept 1999]. The standard that has been adopted by some recent Court Decisions in New York is the “best for all concerned” standard. Raymond v. Lachmann (264 AD2d 340, 695 NYS2d 308 [1st Dept 1999]; Travis v. Murray, 42 Misc 3d 447, 455.

In accordance with that standard, this Court will analyze proof offered by each party that they will benefit from having the animal in their life, and why the animal has a better chance of living, prospering, loving and being loved in their care. Travis v. Murray, 2013 NY Slip Op 23405,
10, 42 Misc 3d 447, 460, 977 N.Y.S.2d 621, 631 (Sup. Ct.); see also Raymond v. Lachmann (264 AD2d 340, 695 NYS2d 308 [1st Dept 1999]. In this way, the Court hopes to take the intangible needs and interests of a pet into account along with the ordinary indicia of ownership or right to possession (title, purchase, gift, expenses, etc.). Id.

DECISION
The decision in Travis v. Murray is a good starting point on the evolution of the law’s treatment of ownership or custody of pets over the last 100 years. Travis v. Murray, 42 Misc 3d 447, 455. Our perception of pets has clearly shifted over time away from a strict property view and towards a more humanistic and interest based view. Id.

Why Shouldn’t the Courts Determine Custody Based on the “Best Interests” of a Pet?
This Court is not persuaded that a court could not evaluate the “best interests” of a pet. Instead, it is the opinion of this Court, that the reason not to use a strict “best interests” standard is the fundamental difference between a human child and a domesticated dog or cat. The “best interests” of the child standard is based on the implicit understanding that the ultimate goal of the Courts is to ensure that the child is nurtured into independent adulthood. It is the future adult that must be the Court’s primary consideration, and not the interests of the father or mother. However, in the case of a pet cat or dog, the pet never becomes an independent being apart from the owner. So, if a Court chooses not to apply a property-based standard, and a “best interests of the pet” standard is inappropriate, what is the standard that should be applied in an action to recover custody and possession of a beloved pet?

While it appears the Appellate Division, Fourth Department, has not addressed the issue, this Court concludes that it is time to declare that a pet should no longer be considered “personal property” like a table or car. The Appellate Division, First Department, in a one-paragraph analysis of the contested ownership and possession of 10-year-old Lovey the cat, utilized a test of what was “best for all concerned”. Raymond v. Lachmann (264 AD2d 340, 695 NYS2d 308 [1st Dept 1999]. Those concerned were the two litigants, and Lovey the cat. Id.

In the instant case, this Court will apply a “best interests of all concerned” standard to the facts and testimony presented at the hearing. On the one hand, the Defendant in this replevin action has owned and possessed Sylvester (aka Marshmallow) for 10 years. The Defendant admitted that she had has only taken Sylvester (aka Marshmallow) to the vet once in that 10-year period (to have him spayed/neutered when he was a kitten). Additionally, the Defendant allowed Sylvester (aka Marshmallow) to come and go in the neighborhood, and the Defendant was aware that Sylvester (aka Marshmallow) was consistently fed by at least three neighbors. However, there is no real evidence of “abuse or neglect” of Sylvester (aka Marshmallow). The Court notes that Sylvester’s (aka Marshmallow’s) second ever visit to a vet via the Defendant only came about after the Defendant consulted with an attorney regarding defense of the instant replevin action. The Defendant testified that the cat has always been in decent health, and that her children are emotionally attached to Sylvester (aka Marshmallow).

On the other hand, the Plaintiffs’ testified that Sylvester (aka Marshmallow) began coming to their home begging for food immediately when they moved to Wescott Street in September of 2018. The Plaintiffs state that they initially let the cat into the entry-way of their home to feed him. The Plaintiffs believed the cat to be a stray. On or about January 14, 2019, the Plaintiffs took Sylvester (aka Marshmallow) into their home, and decided to make him an indoor cat. The Plaintiff’s provided Sylvester (aka Marshmallow) with veterinary care including rabies and FURCP vaccine (a vaccine against three potentially deadly airborne viruses). The Court notes that Plaintiffs believed Sylvester (aka Marshmallow) to be a 4-yearold cat at the time of the vet visit in January 2019. This suggests that the cat was in good health, given the fact that the cat was in fact 10 years old. On February 2, 2019, Sylvester (aka Marshmallow) got out of the Plaintiffs’ home and ended up across the street at the home of the Defendant.

Best Interests of All Concerned
In a very close decision, the Court finds that the “best interests of all concerned” test leaves the custody of the cat, Sylvester (aka Marshmallow), with the Defendant.

The Court is convinced that Plaintiffs were and are genuinely concerned for Sylvester’s (aka Marshmallow’s) welfare and spent time and money on his care. While the Court is perplexed that the Defendant never inquired with the Plaintiffs regarding the cat’s whereabouts between January 14, 2019 and February 2, 2019, the Defendant has been responsible for the care and custody of Sylvester (aka Marshmallow) for the last decade. Additionally, the Defendant has children who have some emotional attachment to the cat. Finally, when Sylvester (aka Marshmallow) got out of the Plaintiffs’ home he may have “voted with his feet” to return to his home of ten years with the Defendant and her children.

Therefore, based an analysis of the law and the evidence presented at the hearing, this Court finds in favor of the Defendant, and the Plaintiff’s claim is hereby dismissed"

CHILD CUSTODY - MODIFICATION BASED ON TESTIMONY OF TREATING PSYCHIATRIST

This case has been going on for years. The parties are the mothers of a son born in 2008. They executed a custody agreement dated January 26, 2012.

Matter of Lela G. v Shoshanah B., 2019 NY Slip Op 03659, Decided on May 9, 2019, Appellate Division, First Department:

Order, Family Court, New York County (George L. Jurow, J.H.O.), entered on or about June 20, 2018, which, after a trial, to the extent appealed from, eliminated respondent's Wednesday overnight visits with the parties' child, and modified the parties' holiday and parenting schedule, unanimously affirmed, without costs.

While the better practice would have been for the Family Court to appoint a neutral forensic given the circumstances of this case, including the different views as to the reasons for the child's psychological difficulties, it was not reversible error for the court to allow the child's treating psychiatrist to testify and make recommendations for modification of the access schedule (see Matter of Rogan v Guida, 143 AD3d 830, 831-832 [2d Dept 2016] [holding that a "court may [], as it deems appropriate, solicit input from the child's therapist or other mental health professionals to assist it in determining the best interests of the child"]; Matter of Ni-Na C. [Xiao Q.C.], 134 AD3d 702 [2d Dept 2015] [upholding the court's determination to gather information from the children's therapist to assist it in determining the best interest of the children]). The treating psychiatrist had the relevant credentials, met with and interviewed both parents, and performed a thorough assessment of the child.

Respondent argues that the treating psychiatrist's neutrality was compromised because he had been retained by petitioner. Although the record indicates that the treating psychiatrist was retained, and paid by, the custodial parent, the court became aware of this fact during cross examination. There was also sufficient evidence in the record, in addition to the treating psychiatrist's testimony, to support the court's determination that Wednesday overnights were a cause of the child's symptoms. Moreover, the record supports the court's conclusion that the child experiences heightened stress in connection with midweek changes to his routine. Notwithstanding such conclusion, the treating doctor expressed openness to the idea of gradual reintroduction of Wednesday overnights to help the child cope with his symptoms.

Although respondent's expert disagreed with, and criticized, the treating psychiatrist's separation anxiety diagnosis, his testimony was based solely on his review of trial transcripts, and he did not have the benefit of in-person interviews with the child or his parents. The recommendation by the treating psychiatrist to eliminate Wednesday overnights was not based solely on the separation anxiety diagnosis, but also on other possible issues with the child. In any event, given the court's ability to assess the credibility of both doctors, its determination to give greater weight to the treating psychiatrist's testimony is entitled to deference and should not be disturbed on appeal (Matter of Ruth Joanna O.O. [Melissa O.], 149 AD3d 32, 43 [1st Dept 2017], affd 30 NY3d 985 [2017]). The record does not support respondent's argument that the Judicial Hearing Officer (JHO) interfered with questioning to cure petitioner's "failure of proof." [*2]The JHO's clearly expressed goal, in keeping with this Court's prior directives, was to ensure that relevant testimony about Wednesday overnights was elicited. His questions were phrased neutrally and did not suggest desired answers. We reject respondent's argument that the JHO erred in admitting evidence of events that postdated pleadings from 2014 and 2015. The trial was held pursuant to this Court's orders instructing that a hearing was required, and the latter of those orders was issued June 20, 2017 (see Matter of Lela G. v Shoshanah B., 151 AD3d 593 [1st Dept 2017]). In any event, respondent herself relied on recent evidence about the child in support of her arguments.

Respondent failed to establish that this case should be assigned to a different JHO. While this Court has twice reversed his orders in this case, the reversals were based on the need to hold a hearing, which the JHO has since done.