Friday, June 28, 2019


Something to consider in estate planning documents.

Matter of Zhu, 2019 NY Slip Op 29146, Decided on May 16, 2019, Supreme Court, Westchester County Colangelo, J.:

"Petitioners Monica Zhu and Yongmin Zhu ("Petitioners" or the "Zhus") are the parents of Peter Zhu, now deceased. ("Peter" or the "Deceased"). Peter was a cadet at West Point Military Academy ("West Point") in West Point, New York, scheduled to graduate later this year. On February 23, 2019, Peter was involved in a ski accident on the West Point ski slope which resulted in fractures to his spinal cord. Peter was transported to the Westchester County Medical Center (the "Medical Center"). As a result of the accident, Peter was declared brain dead on February 27, 2019, but remained alive through life support, pending organ donation. Peter had previously signed an organ donor card (Exh. A to the Petition) and pursuant to his wishes as set forth on the donor card, Peter was scheduled for organ donation removal surgery at 3 P.M. on March 1, 2019. On the morning of March 1, 2019, Petitioners brought the instant Petition, seeking the following relief:

"a. Directing Westchester Medical Center to retrieve sperm from Petitioners' son PETER ZHU, and to provide such sperm to a sperm bank or similar facility of Petitioners' choosing;

b. Allowing Petitioners to use Peter Zhu's sperm for third party reproduction; and

c. Granting such other and further relief as to the Court seems just and proper."

Petitioners also sought immediate interim relief with respect to the retrieval of Peter's sperm. 

Petitioners had been advised, and the Court had no reason to doubt, that such retrieval would not succeed unless it was effected prior to or contemporaneous with the removal of Peter's organs - - that is, before Peter's demise. Petitioners, through their counsel, Joseph R. Williams, Esq., alerted the Medical Center to the proposed Order to Show Cause and the interim relief sought, and counsel for Petitioners was advised by Barbara Kukowski, Esq., an attorney for the Medical Center, that the "hospital does not object to the relief sought in the Petition as long as a sperm bank or similar facility can be found who will come to Westchester Medical Center to receive and transport the sperm upon retrieval." (Affirm. of Joseph R. Williams, Esq., dated March 1, 2019 (the "Williams Affirm." ) ¶9).

Petitioners appeared before this Court on the morning of March 1, 2019 through their attorney, Mr. Williams, and presented the instant Order to Show Cause including the request for immediate interim relief as described above. After hearing from Mr. Williams, the Court contacted the Medical Center attorney Ms. Kukowski, who confirmed that while the hospital did not consent to the procedure, neither did it object and that it would comply with any duly issued [*2]order. Ms. Kukowski also suggested that if the Court was inclined to grant the interim relief sought by Petitioners, that it include in its order a provision giving the Medical Center the authority to release to the sperm bank any information regarding Peter that such sperm banks generally require in order to properly effect the sperm transmission - - a provision to which Petitioners did not object.

On March 1, 2019, the Court granted the following interim relief:

"ORDERED that the Westchester Medical Center is hereby directed to retrieve sperm from the Petitioner's son, PETER ZHU, and to provide such sperm to a sperm bank or similar facility of Petitioners' choosing for storage until further Order of this Court regarding disposition of such sperm, and that the Westchester County Medical Center has the Court's permission to release to said facility all information necessary to effect the transmission of such material to the sperm bank or other facility including but not limited to HIV and hepatitis related information."

As the Court later confirmed with Petitioners, Peter's sperm was successfully retrieved and is being preserved in a local sperm bank. The issue of the ultimate disposition of Peter's sperm remained outstanding. The Court then set March 21, 2019 as the date for further proceedings with respect to the determination of the remaining issues raised by Petitioners' Order to Show Cause.

On March 21, the Zhus appeared by their counsel, Mr. Williams. Since the Zhus reside in California and in light of the circumstances of their loss, the Court permitted them to appear and give testimony by telephone. The Court also heard, telephonically, from Captain Marc Passmore, the Company Tactical Officer of Peter's Company at West Point who had been in charge of supervising and monitoring Peter as well as the other 117 members of his Company.

The Zhus first recounted the events relating to their son's accident and the reasons behind their decision to seek both the temporary and the permanent relief as set forth in their Order to Show Cause: essentially, to preserve the possibility of the use of Peter's sperm in the future in order to posthumously realize his dream of having children and continuing the family line. (See also Petition, dated March 1, 2019, ¶ 15).

Not surprisingly, in view of the shock of their loss and its close temporal proximity, the Zhus testified that they are not now prepared to definitively state that they will use the sperm for third party reproductive purposes, nor have they taken any concrete steps to do so; no potential surrogate or eggs have been located or even sought after, and no physician retained. The Zhus nonetheless made clear that they would like the Court to designate them, Peter's parents, as the persons who will be charged with the responsibility of deciding upon the disposition of Peter's genetic material. That is the issue which confronts the Court now: who, if anyone, should be given the authority to determine the disposition of Peter's genetic material, now preserved in the sperm bank.

In making this determination, the talisman must be the decedent's intent. On this, the few courts that have addressed this issue and ethicists who have commented with respect to it tend to agree. For example, in the California case of Estate of Kievernagel, 166 Cal. App. 4th 1024 (Ct. of Appeal, 3rd Dist. 2008), a California Court of Appeals held that the intent of the decedent should govern and affirmed an order authorizing destruction of decedent's sperm pursuant to his written request during his lifetime, despite his widow's claim to the sperm as her property under [*3]estate law. And in Hecht v. Kane, 16 Cal. App. 4th 836 (Ct. of Appeal, 2d Dist. 1993), the Court held that decedent's estate representative did not have the right to destroy decedent's frozen sperm in light of his expressed written intent that it be stored for possible future use by his longtime girlfriend. See also Posthumous Retrieval and Use of Gametes or Embryos: an Ethics Committee Opinion, Ethics Committee of the American Society for Reproductive Medicine, April 2, 2018 at pp. 2-3; Shelly Simana, Creating Life After Death: Should Posthumous Reproduction be Legally Permissible Without the Deceased's Prior Consent?, Journal of Law and the Biosciences, 7 August 2018 (PMID 30191068), at pp. 3-8; Browne Lewis, Graveside Birthday Parties: The Legal Consequences of Forming Families Posthumously, 60 Case W. Res. L. Rev.1159, 1176-1177 (2010) (Discussing unreported cases that permitted retrieval and potential procreative use of decedents's sperm on application of wife and parents in light of evidence of decedent's prior expressed intention to father children); cf. In re. Daniel Thomas Christy, No. EQCV 68545 (Iowa Dist. Ct., Johnson Co. 2007), annexed as Exh. D to Petitioners' Memorandum of Law.

Unfortunately, Peter left no express direction with respect to the posthumous disposition or use of his genetic material, including how or whether it could or should be used for procreative purposes. Nonetheless, Petitioner's presumed intent can be gleaned from certain of his prior actions and statements, in conjunction with statutes designed to serve as surrogates for a decedent's intent.

First, as mentioned above, Peter did sign a donor card authorizing the donation of his "organs, eyes, and tissues." (Donor Card, Exh. A to the Order to Show Cause.). When his parents were asked why they believed he had done so, they stated that Peter had always been motivated by a desire to help others. As they advised the Court, thanks to Peter, a 53 year old man now has a healthy kidney and pancreas, and a twelve year old girl a new heart. In addition, Peter's decision to embark upon a career in service to his fellow citizens and, as a military doctor, to his comrades in arms, is further indicia of his generosity of spirit. Thus, even though Peter did not expressly state that he wanted his sperm to be used for reproductive purposes, should his parents chose to do so in the future, it would not do violence to his memory. Indeed, as his parents confirmed in their Petition and testimony, such use would not be contrary to Peter's moral or religious beliefs, but would be consistent with his past conduct and statements.

Second, the determination of which person or entity should be charged with the responsibility for making the decision regarding the disposition of Peter's genetic material is also informed by statements made by Peter to his parents and others. In seeking to divine Peter's intent from his past statements and actions, there is a consistent thread running through his short life: the primacy of family and family relationships. In what can be discerned from the Petition, testimony, and documents adduced, one thing is clear: considerations of family - - past, present and future - - were vital to Peter. Devotion to family, revealed in various ways, direct and subtle, was evident throughout Peter's young life.

For example, Peter's parents testified to conversations they had over time with Peter, in which he related to them his dream of having several children, and the responsibility he felt to carry on his cultural and family legacy. His parents shared with the Court a card sent by Peter to a religious studies professor after a trip to China, in which he related to the professor that "[y]ou are the type of teacher who I will share with my children. The stories that you told me will be [*4]passed on for future generations to come!" (Petitioners Exh. 1). More recently, Peter communicated to his Company's Tactical Officer at West Point, Captain Marc Passmore, his plans for the future, which included a family and children. Captain Passmore, who also testified telephonically on March 21, was in charge of assisting, counseling and mentoring the 117 cadets in Peter's company, including Peter. During his mentoring sessions with Peter, they discussed Peter's work and personal goals, long and short term, and Peter emphasized a goal of having several children. This and the other aspirations were reflected in a writing called a "baseball card" (due to its resemblance to the back, statistical side of a typical major league player's baseball card) which each cadet completes in his or her senior year, as Peter did. Peter's card, completed by him only months ago, lists as his "Family/Goals/Notes" to " [h]ave three kids, Get married before 30; Become a career officer in the military." (Petitioners . Exh. 2).

Thus, whether through his conversations with his parents, reports to his military advisor, or written reflections posted to a professor, the importance of family to Peter was a hallmark. Under such circumstances, the rhetorical question may well be: what better mechanism for determining the ultimate fate of his biological legacy than the decision of Peter's closet kin, his parents. The statutes inform and provide implicit support for this conclusion.

The statutes, particularly the relevant provisions of the Public Health Law ("PHL") and the Estates, Powers and Trusts Law (the "EPTL"), serve as important additional, albeit imperfect guides as to a decedent's - - here, Peter's - - presumed intent. PHL § 4301(2), implicitly relied upon by the Court in its temporary order, authorizes the donation and therefore disposition of bodily organs and, by extension, bodily fluids even in the absence of a potential decedents's express intent. As PHL § 4301(2) prescribes, when a potential donor has failed to leave specific instructions for the donation of his or her organs - - either for or against - - a transfer may nonetheless be effectuated upon the consent and direction of a person or persons close to the potential donor who would presumptively give voice to his ineffable wishes. To that end, the statute establishes a pecking order of consent that mirrors, to a significant extent, the order of those who take from a decedent in the absence of a Will. As GHL §4301(2) provides:

"§4301. Persons who may execute an anatomical gift.

2. Any of the following persons, in the order of priority stated, may, when persons in prior classes are not reasonably available, willing, and able to act, at the time of death, and in the absence of actual notice of contrary indications by the decedent, or actual notice of opposition by a member of the same class or prior class specified in paragraph (a), (b), (c), (d), (e), (f), (g) or (h) of this subdivision, or reason to believe that an anatomical gift is contrary to the decedent's religious or moral beliefs, give all or any part of the decedent's body for any purpose specified in section forty-three hundred two of this article:(a) the person designated as the decedent's health care agent under article twenty-nine-C of this chapter, subject to any written statement in the health care proxy form,(b) the person designated as the decedent's agent in a written instrument under article forty-two of this chapter, subject to any written statement in the written instrument,(c) the spouse, if not legally separated from the patient , or the domestic partner,(d) a son or daughter eighteen years of age or older,(e) either parent,(f) a brother or sister eighteen years of age or older,(g) a guardian of the person of the decedent at the time of his death,(h) any other person authorized or under the obligation to dispose of the body.

(Emphasis added). 

As Petitioners confirmed, Peter did not have a health care proxy or living will, never had children, and was neither married nor in a domestic partner relationship. His parents, next on the list, would therefore have been able to effect organ donation even if Peter had not signed a donor card. Parenthetically, the Court notes that in the context of Article 43-B of the Public Health Law concerning the organized procurement and storage of "organ, tissue and body parts", while not directly in play here, defines "tissue" to include "spermatozoon" PHL § 4360(10).

Similarly, the Estates, Powers and Trusts Law ("EPTL") sets forth the order in which those connected to the decedent take his or her property in the absence of a Will. As EPTL § 4-1.1 provides in pertinent part:

"§ 4-1.1. Descent and distribution of a decedent's estate

The property of a decedent not disposed of by will shall be distributed as provided in this section. In computing said distribution, debts, administration expenses and reasonable funeral expenses shall be deducted but all estate taxes shall be disregarded, except that nothing contained herein relieves a distributee from contributing to all such taxes the amounts apportioned against him or her under 2-1.8. Distribution shall then be as follows:(a) If a decedent is survived by:(1) A spouse and no issue, fifty thousand dollars and one-half of the residue to the spouse, and the balance thereof to the issue by representation.(2) A spouse and no issue, the whole to the spouse.(3) Issue and no spouse, the whole to the issue, by representation.(4) One or both parents, and no spouse and no issue, the whole to the surviving parent or parents..(5) Issue of parents, and no spouse, issue or parent, the whole to the issue of the parents, by representation." (Emphasis added).

Indeed, in the Iowa case of In re Daniel Thomas Christie, No. EQCV 6845 (Iowa District Court, Johnson County 2007) the Court relied solely upon the Iowa laws of intestacy to authorize the recovery and storage of decedent's sperm by his parents, and to permit them to make an "anatomical gift" of it to decedent's fiancé, presumably for possible future procreative use. (A copy of the Christie decision is annexed as Exhibit D to Petitioners' Memorandum of Law).

When examined in this light, both the PHL and the EPTL provisions as well as Peter's past actions and statements point to his parents as the persons Peter would have intended to make decisions with respect to the preservation and disposition of the procreative fluids at issue. Peter did not leave a health care proxy or Will; he left no children, spouse or partner; his parents are next on the PHL and EPTL pecking order. Moreover, by leaving a donor card with respect to his organs, Peter evinced an intent to leave for future disposition rather than destroy certain bodily parts, tissues and, by extension, bodily fluids that survived him.

Thus, in the instant case, the inferential emanations from the PHL, the EPTL, and Peter's [*5]donor card dovetail with Peter's personal history to arrive at the same result: the imperative that the decision regarding the disposition of Peter's genetic material be made in the first instance by his parents.

At this time, the Court will place no restrictions on the use to which Peter's parents may ultimately put their son's sperm, including its potential use for procreative purposes. As far as the Court can discern, no such restrictions are mandated by either New York or federal law. That is not to say, however, that Petitioners may not need to surmount certain obstacles, or confront important residual issues should they chose to seek to use Peter's sperm for reproductive purposes. A specific use, once chosen, may run afoul, or at least merit consideration of, certain legal, practical and ethical concerns, including the potential reluctance of medical professionals to assist in such a procedure. (See, e.g., Posthumous Retrieval and Use of Gametes or Embryos: an Ethics Committee Opinion, Ethics Committee of the American Society for Reproductive Medicine, April 2, 2018, at pp. 3-5 (Discussion of ethical concerns of doctors asked to participate in posthumous reproduction, particularly at the behest of parents rather than a surviving spouse). 

In addition, the recognition of a posthumously conceived child as the son or daughter of the deceased may prove problematic; in some states, a child born after a certain period of time following the father's death may not be deemed such father's offspring for certain purposes. See Astrue v. Capato, 566 U.S. 541, 132 S. Ct. 2021 (2012) (Children conceived by in vitro fertilization using late husband's frozen sperm and born 18 months after husband's death held not entitled to social security survivor benefits since such children were deemed not to be his offspring under the relevant state (here, Florida) intestacy law); Cal. Probate Code §249.5 (A posthumously conceived child is deemed a child of the decedent "[f]or purposes of determining rights to property to be distributed upon the death of a decedent" only if the decedent, in writing, "specifies that his or her genetic material shall be used for the posthumous conception of a child of the decedent" and the child was "in utero within two years of the date of issuance of a certificate of decedents's death."); cf. Martin v. Martin, 17 Misc 3d 198 (Surrogates Ct., NY Co. 2007 (The Court interpreted trust agreements to include children conceived posthumously using a decedent's cryopreserved semen as his "issue" and "descendants."). And this is not to mention the challenges and responsibilities necessarily entailed in caring for and raising a child. The aforementioned considerations may well weigh into any decision Petitioners may make regarding the ultimate disposition of Peter's sperm.

The Court is constrained from addressing the range of other potential considerations at this juncture. Any evaluation must perforce await not only the expressed intent of the Zhus, but the presentation to the pertinent medical professionals, medical ethicists and, perhaps ultimately, a court of a concrete plan for that intent's actualization.

In any event, for the reasons set forth herein, the Court concludes that Peter's parents are the proper parties to make decisions regarding the disposition of Peter's genetic material. Accordingly, Petitioners' application is granted to the extent that they shall possess and control the disposition and potential use of their son Peter's genetic material."

Thursday, June 27, 2019


The answer is no if the fact that the contractor is unlicensed is the sole basis for seeking recoupment.

Rusin v Design-Apart USA, Ltd. 2019 NY Slip Op 05172 Decided on June 26, 2019 Appellate Division, Second Department;

"The plaintiff and the defendant executed a contract, in which it was agreed that the defendant would furnish and install kitchen cabinets at the plaintiff's home for a total cost in excess of $64,000. The plaintiff paid to the defendant $61,449.34 pursuant to the contract. After the cabinets were furnished and installed, the plaintiff commenced this action against the defendant, seeking, in the first cause of action, to recover $61,449.34 on the basis that the defendant was not a licensed home improvement contractor at the time it performed the work. In the second cause of action, the plaintiff sought to recover damages for breach of contract, alleging that the defendant's work was defective.

After joinder of issue, the plaintiff moved for summary judgment on the first cause of action, and the defendant cross-moved pursuant to CPLR 3211(a)(7) to dismiss that cause of [*2]action. In an order dated January 8, 2018, the Supreme Court granted the plaintiff's motion and denied the defendant's cross motion. On January 12, 2018, a judgment was entered in favor of the plaintiff and against the defendant in the principal sum of $61,449.34. The defendant appeals.

The plaintiff failed to demonstrate her prima facie entitlement to judgment as a matter of law on the first cause of action. Although an unlicensed contractor may not enforce a home improvement contract against a homeowner or seek recovery in quantum meruit for work performed (see B & F Bldg. Corp. v Liebig, 76 NY2d 689; Holistic Homes, LLC v Greenfield, 138 AD3d 689, 690), here, the defendant is not seeking to enforce the parties' contract or to recover in quantum meruit. Rather, the plaintiff homeowner is seeking to recover money already paid to the defendant pursuant to the contract. Where a homeowner receives the benefit of the services of an unlicensed contractor, he or she is not entitled to recoup payments made for such services solely on the basis that the defendant was unlicensed (see Brite-N-Up, Inc. v Reno, 7 AD3d 656, 657; Voo Doo Contr. Corp. v L & J Plumbing & Heating Co., 264 AD2d 361; Sutton v Ohrbach, 198 AD2d 144; Segrete v Zimmerman, 67 AD2d 999, 1000; see also Goldman v Garofalo, 71 AD2d 650). "The parties, in these circumstances, should be left as they are" (Segrete v Zimmerman, 67 AD2d at 1000; see Brite-N-Up, Inc. v Reno, 7 AD3d at 657). Thus, the plaintiff was not entitled to summary judgment on the first cause of action.

Concomitantly, even assuming the fact alleged in the first cause of action—that the defendant was unlicensed at the time it performed the work—to be true, the plaintiff is not entitled to recover, on that basis, payments made pursuant to the contract. Accordingly, the defendant's cross motion pursuant to CPLR 3211(a)(7) to dismiss that cause of action should have been granted (see generally Leon v Martinez, 84 NY2d 83, 87)."

Wednesday, June 26, 2019


Bank of Am., N.A. v Shami, 2019 NY Slip Op 04901, Decided on June 19, 2019, Appellate Division, Second Department:

"Notwithstanding the above, CPLR 3215(c) provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed." The language of CPLR 3215(c) is mandatory in the first instance, inasmuch as it provides that the court "shall" dismiss the complaint when the plaintiff has not sought a default judgment within the requisite one-year period, as the action is deemed to have been abandoned (see Ibrahim v Nablus Sweets Corp., 161 AD3d 961, 963; HSBC Bank USA, N.A. v Grella, 145 AD3d 669, 671; Giglio v NTIMP, Inc., 86 AD3d 301, 307-308; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d 624, 625). The statute gives the court discretion only where the plaintiff demonstrates "sufficient cause" as to why the complaint should not be dismissed (Ibrahim v Nablus Sweets Corp., 161 AD3d at 963; see HSBC Bank USA, N.A. v Grella, 145 AD3d at 671). To avoid dismissal of the complaint as abandoned under such circumstances, a plaintiff must offer a reasonable excuse for the delay in moving for leave to enter a default judgment, and must demonstrate that the complaint is potentially meritorious (see Ibrahim v Nablus Sweets Corp., 161 AD3d at 963; Wells Fargo Bank, N.A. v Bonanno, 146 AD3d 844, 845-846; Kay Waterproofing Corp. v Ray Realty Fulton, Inc., 23 AD3d at 625).

Here, the plaintiff took no proceedings for entry of a default judgment within one year following the appellant's default in the action. In claiming otherwise, the plaintiff refers to matter dehors the record, which will not be considered (see Schondorf v Brookville Energy Partners, 303 AD2d 396). Further, contrary to the plaintiff's contention, its conclusory and unsubstantiated assertions that its delay was attributable to compliance with certain administrative orders instituted after the relevant time period, i.e., more than one year following the appellant's default in the action, and waiting for receipt of additional documentation, were insufficient to excuse the lengthy delay (see BAC Home Loans Servicing, LP v Broskie, 166 AD3d 842, 843; HSBC Bank USA, N.A. v Jean, 165 AD3d 632, 634; Wells Fargo Bank, N.A. v Cafasso, 158 AD3d 848, 850; HSBC Bank USA, N.A. v Grella, 145 AD3d at 672).

Since the plaintiff failed to proffer a reasonable excuse, this Court need not consider whether the plaintiff had a potentially meritorious cause of action (see Federal Natl. Mtge. Assn. v Heilpern, 164 AD3d 654, 656; U.S. Bank, N.A. v Dorvelus, 140 AD3d 850, 852)."

Tuesday, June 25, 2019


In this case, an investor company bought the property after the homeowner defaulted but before the foreclosure action was begun.

Citimortgage, Inc. v Etienne, 2019 NY Slip Op 03564, Decided on May 8, 2019, Appellate Division, Second Department:

"Turning to the merits, OKL contends that the Supreme Court should not have awarded the plaintiff summary judgment because the plaintiff failed to establish, prima facie, that it gave proper notice to the borrower in strict accordance with RPAPL 1304. However, the borrower is the only mortgagor and the only person named on the note. Although OKL, as the current owner of the subject property, is a proper party to this foreclosure action, as it may be "subject to the mortgage lien and may have [its] rights in the property cut off due to a default on the mortgage" (PHH Mtge. Corp. v Davis, 111 AD3d 1110, 1111; see generally 2 Bergman on New York Mortgage Foreclosures § 12.04), it does not necessarily follow that OKL may properly assert, either in its own right or on behalf of the borrower, any defense that was or could have been asserted by the borrower. Rather, as relevant here, the notice requirements of RPAPL 1304 were enacted for the benefit and protection of borrowers who are "natural person[s]" (RPAPL 1304[6][a][1][i]; see generally Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 107). The statutory defense created by RPAPL 1302(2) for noncompliance with RPAPL 1304 is a "personal defense" which could not be raised by OKL, a stranger to the note and underlying mortgage (Greene v Rachlin, 154 AD3d 814, 816; see Ekelmann Group, LLC v Stuart, 108 AD3d 1098, 1100; see also NYCTL 1996-1 Trust v King, 13 AD3d 429, 430; Home Sav. of Am. v Gkanios, 233 AD2d 422, 423; accord Ashkenazy Acquisition Corp. v Rela Realty Corp., 296 AD2d 332, 333; Matter of Lee v Maltais, 250 AD2d 951, 953; Vincent v Seaman, 152 AD2d 841, 843). Accordingly, contrary to OKL's contention, it lacked standing to raise the issue of compliance with RPAPL 1304 as a defense and the merits of that issue are not properly before this Court."

Monday, June 24, 2019


In this case:

"Plaintiffs bring claims under Section 504 of the Rehabilitation Act of 1983 (the "Rehabilitation Act"), 29 U.S.C. § 794, and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., alleging that Defendant "failed to protect J.L. from the repeated and frequent bullying which occurred because of his disability on the schools' premises" ("Count One" and "Count Two," respectively). (Compl. ¶¶ 42-60.) Plaintiffs also bring a variety of common-law claims, including negligence, negligent infliction of emotional distress, and negligent hiring and supervision ("Count Three," "Count Four," and "Count Five," respectively). (Id. ¶¶ 61-90.)

Defendant argues that Plaintiffs must first exhaust their administrative remedies with respect to any disability claim pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq prior to bringing the suit. (Mot. 4-10.) Plaintiffs, by contrast, contend that exhaustion of their claims is not necessary because their claims do not pertain to access to a free appropriate public education ("FAPE"), a right guaranteed by IDEA. (Pl. Opp'n at 3-4.)"

The court denied the motion and went into an overview of the IDEA exhaustion requirement and held that the plaintiffs' claims were beyond the reach of the IDEA's exhaustion requirement.

PARKER-LEON v. MIDDLE VILLAGE PREPARATORY CHARTER SCHOOL, No. 17-CV-4548 (NGG) (RML), United States District Court, E.D. New York, June 4, 2019:

"Under the IDEA, parents of disabled children are guaranteed "a variety of procedural safeguards," Mr. P, 885 F.3d at 741, including the right "to request a due process hearing in order to present complaints as `to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.'" Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008) (quoting 20 U.S.C. § 1415(b)(6)(A)). These administrative proceedings are determined by and conducted pursuant to the laws of each state. See 20 U.S.C. § 1415(f)(1)(A), (g). "New York has opted for a two-tier administrative system" for review of IEPs:

First, an impartial hearing officer is selected from a list of certified officers and appointed by the local board of education or the competent state agency to conduct the initial hearing and issue a written decision. That decision can then be appealed to a state review officer of the New York Education Department.

Cave, 514 F.3d at 245. "Only after exhaustion of these procedures has an aggrieved party the right to file a suit in a federal or state court." Id. (citing 20 U.S.C. § 1415(i)(2)(A)).

The exhaustion requirement applies to all suits that "seek relief for the denial of a FAPE," regardless of whether the suit was brought under the IDEA or "similar laws," which include the ADA, the Rehabilitation Act, and 42 U.S.C. § 1983. Fry v. Napoleon Cmty. Schs., 137 S.Ct. 743, 752 (2017); see 20 U.S.C. § 1415(1) ("Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under . . . other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under [the IDEA].").

"[I]n determining whether a suit indeed `seeks' relief for such a denial, a court should look to the substance, or gravamen, of the plaintiffs complaint." Fry, 137 S. Ct. at 752. "[I]f, in a suit brought under a different statute, the remedy sought is not for the denial of a FAPE, then exhaustion of the IDEA's procedures is not required." Id. at 754; see L.K. v. Sewanhaka Cent. High Sch. Dist., 641 F. App'x 56, 57 (2d Cir. 2016) (summary order) ("[I]f the `theory' behind a claim relates to the `education of disabled children,' IDEA exhaustion is required ...." (quoting Polera v. Bd. of Educ., 288 F.3d 478, 481, 487-88 (2d Cir. 2002))).

"[T]he exhaustion requirement does not apply `in situations in which exhaustion would be futile." Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d 198, 205 (2d Cir. 2007) (quoting Polera, 288 F.3d at 488). "To show futility, a plaintiff must demonstrate that adequate remedies are not reasonably available or that the wrongs alleged could not or would not have been corrected by resort to the administrative hearing process." Id. (internal quotation marks and citations omitted). Futility may exist where the case involves "systemic violations that could not be remedied by local or administrative agencies." Baldessarre ex rel. Baldessarre v. Monroe-Woodbury Cent. Sch. Dist., 496 F. App'x 131, 134 (2d Cir. 2012) (summary order) (quoting Cave, 514 F.3d at 249); accord J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 113 (2d Cir. 2004). "The rationale behind this exception is that while the administrative hearing officers have the authority to enforce established regulations, policies[,] and procedures, they generally do not have the authority to set new policies or to alter existing ones." King v. Pine Plains Cent. Sch. Dist., 918 F.Supp. 772, 781 (S.D.N.Y. 1996). While claims of systemic violations are often asserted as part of a class action, they "can be made at the individual level, provided `a systemic policy is at stake' and `the administrative officer has no power to correct the violation.' J.Z. v. N.Y.C. Dep't of Educ., 281 F.Supp.3d 352, 362 (S.D.N.Y. 2017) (quoting F.C. v. N.Y.C. Dep't of Educ., No. 15-CV-6045 (PAE), 2016 WL 8716232, at *8 (S.D.N.Y. Aug. 5, 2016)). "The burden of demonstrating futility rests with the party seeking to avoid the exhaustion requirement." Coleman, 503 F.3d at 205.

Exhaustion may also be excused where "the parents have not been notified that [administrative] remedies were available to them." Weixel, 287 F.3d at 149; see Dervishi ex rel. T.D. v. Stamford Bd. of Educ., 691 F. App'x 651, 652 (2d Cir. 2016) (summary order) ("[E]xhaustion is excused if the defendant failed to notify the plaintiff of her procedural rights under the IDEA.")."

Friday, June 21, 2019


As seen recently in the commercial lease area, the parties can agree to waive a commercial tenant's right to bring a Yellowstone injunction; but with residential lease,s the warranty of habitability is absolute.

HAMEROFF v. SWAMINATHAN, 2019 NY Slip Op 50875 - NY: Appellate Term, 2nd Dept. May 31, 2019:

"A valid lease may qualify as documentary evidence within the meaning of CPLR 3211(a)(1) (see Sunset Cafe, Inc. v Mett's Surf & Sports Corp., 103 AD3d 707, 709 [2013]). "`[L]ease interpretation is subject to the same rules of construction as are applicable to other agreements'" (Avon Bard Co. v Aquarian Found., 260 AD2d 207, 208 [1999], quoting Matter of Cale Dev. Co. v Conciliation & Appeals Bd., 94 AD2d 229, 234 [1983], affd 61 NY2d 976 [1984]). Paragraph five of the lease requires defendant to provide cooling if air conditioning was installed, but also states that "[s]topping or reducing the service(s) will not be reason for Tenant to stop paying rent, to make a money claim or to claim eviction." Pursuant to this language, plaintiff has agreed not to bring an action to recover money damages based on a violation of paragraph five of the lease. Consequently, the branches of defendant's motion seeking to dismiss the causes of action for breach of contract, breach of the lease, constructive eviction, and breach of the covenant of quiet enjoyment to the extent that they are predicated on paragraph five of the lease should have been granted.

However, the warranty of habitability is not waivable (see Real Property Law § 235-b [2]; see also Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 327 [1979]; Vanderhoff v Casler, 91 AD2d 49 [1983]; Windy Acres Farm, Inc. v Penepent, 40 Misc 3d 63, 65-66 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Consequently, the Civil Court properly declined to dismiss the cause of action alleging a breach thereof."

Thursday, June 20, 2019


RPAPL 881 provides:

When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules.  The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought.  Such license shall be granted by the court in an appropriate case upon such terms as justice requires.  The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.

Does this apply to adjoining condominium units? That was the issue in Voron v Board of Mgrs. of the Newswalk Condominium, 2019 NY Slip Op 2913,2 Decided on April 26, 2019, Supreme Court, Kings County, Rothenberg, J.:

"RPAPL 881 is "a codification of well-settled principles of jurisprudence expounded by courts . . . dealing with conflicting interests of adjacent property owners" (Chase Manhattan Bank v Broadway, Whitney Co., 57 Misc 2d 1091, 1096 [Sup Ct, Queens County 1968], affd 24 NY2d 927 [1969]).
"A proceeding pursuant to RPAPL 881 is addressed to the sound discretion of the court . . .which must apply a reasonableness standard in balancing the potential hardship to the applicant if the petition is not granted against the inconvenience to the adjoining owner if it is granted" (Queens Coll. Special Projects Fund, Inc. v Newman, 154 AD3d 943, 943-944 [2017] [internal citations omitted]), lv denied, 31 NY3d 901 [2018]; see also Bd. of Managers of Artisan Lofts Condo. v Moskowitz, 114 AD3d 491, 492 [2014]). "Courts are required to balance the interests of the parties and should issue a license 'when necessary, under reasonable conditions, and where the inconvenience to the adjacent property owner is relatively slight compared to the hardship of his neighbor if the license is refused'" (Bd. of Managers of Artisan Lofts Condo, 114 AD3d at 492 [quoting Chase Manhattan Bank, 57 Misc 2d at 1095]).

Here, the court finds that Petitioners have satisfied the statutory prerequisites of showing necessity and that neither the period of time requested nor the size of the area involved appears unreasonable. While the Unit 415 Owners assert that granting Petitioners access "is not simply an inconvenience, [but] it is extreme" because they have rented unit 415 to a family with an infant, Petitioners have established that those tenants have already vacated unit 415. The parties confirmed during oral argument that unit 415 is now vacant. Thus, granting Petitioners a limited license to access and perform work in the bathroom of unit 415 would not inconvenience any existing tenants.

Notably, licenses pursuant to RPAPL 881 have been granted to enter upon the adjoining neighbor's property even in situations where the proposed work is intrusive (see, e.g., N. 7-8 Inv'rs, LLC v Newgarden, 43 Misc 3d 623, 634 [Sup Ct, Kings County 2014] [license granted pursuant to RPAPL 881 where "the activities pursuant to the license will be more intrusive then a sidewalk shed or scaffold [because] Respondent will have a cantilevered balcony protrude 6 feet into his airspace, approximately 6 feet above his roof deck, for a year"]; Rosma Development, LLC v South, 5 Misc 3d 1014 [A] [Sup Ct, Kings County 2004] [license granted to developer of eight-story building, pursuant to RPAPL 881, to erect sidewalk bridging that would abut 10 feet onto the sidewalk of adjoining owner's property, as well as roof protection, for a period of twelve months]).

Importantly, RPAPL 881 affords the adjoining property owners adequate legal rights and remedies by subjecting the licensee to full liability "for actual damages occurring as a result of the entry." For such actual damages occurring as a result of the entry, the Unit 415 Owners have a cause of action against Petitioners under the statute, and, to insure payment of such damages, the court will require the maintenance of adequate insurance by Petitioners (see Sunrise Jewish Ctr. of Valley Stream v Lipko, 61 Misc 2d 673, 676-677 [Sup Ct, Nassau County 1969]). Additionally, the Unit 415 Owners will receive compensation for Petitioners' utilization of unit 415 during the time period of the license in a fair and equitable sum as set forth below. …"