A NOTE OF THANKS

CONGRATULATIONS

My retired law partner, Gerald B. Weiner, and his wife Dana who got married on July 26

DIVORCE - THE MARITAL RESIDENCE AND THE MORTGAGE

This case illustrates a common problem when one spouse agrees to relinquish their interest in the marital residence to the other spouse but the house is subject to a mortgage.

Lainez v Orellana, 2019 NY Slip Op 05769, Decided on July 24, 2019, Appellate Division, Second Department:

"The parties were married in 2000 and separated in 2011. In a 2011 settlement agreement, the defendant agreed to transfer his interest in the marital residence to the plaintiff, and the plaintiff agreed to hold the defendant harmless with respect to all mortgage payments and do everything in her power to remove his name from the mortgage. The parties were divorced in October 2012, and the judgment of divorce incorporated, but did not merge, the 2011 settlement agreement.

The plaintiff continued to live in the marital residence, neither party performed his or her obligations under the provisions of the 2011 settlement agreement relating to the marital residence, and the defendant made the monthly mortgage payments. In April 2016, the parties entered into a stipulation (hereinafter the 2016 stipulation) in an attempt to resolve the problems arising from their failure to perform under the 2011 settlement agreement. Under the terms of the 2016 stipulation, the plaintiff was obligated to pay the defendant the sum of $20,424.90 to reimburse him for the mortgage payments he had made since the 2011 settlement agreement, the defendant was obligated to execute all documents necessary to transfer his interest in the property to the plaintiff within 30 days, and the plaintiff was obligated to remove the defendant's name from the mortgage on the property within four months. The 2016 stipulation further provided that if the plaintiff, after receiving notice that she was in default, remained in default on any provision in the stipulation for more than 10 days, then she would transfer her interest in the property to the defendant, who would become the sole owner of the property.

Several months later, the defendant moved, inter alia, to compel the plaintiff to [*2]transfer her interest in the marital residence to the defendant on the ground that the plaintiff had not fulfilled her obligations under the parties' agreements. In an order dated September 12, 2016, the Supreme Court denied the motion, finding, among other things, that the defendant had failed to fulfill his obligation under the agreements to transfer his interest in the marital residence to the plaintiff, and, without that transfer, the plaintiff was in no position to refinance the mortgage. The defendant subsequently sent a deed, transfer documents, and contract of sale to the plaintiff's attorney to be held in escrow pending the reimbursement of mortgage payments to the defendant, as agreed to in the 2016 stipulation.

In May 2017, the defendant moved, inter alia, to compel the plaintiff to transfer her interest in the marital residence to the defendant pursuant to the 2016 stipulation. In support of the motion, the defendant submitted evidence that the plaintiff had failed to pay him as required under the 2016 stipulation; he sent the plaintiff notice of her default, which notice was received on April 19, 2017; and the plaintiff had not cured her default. The plaintiff opposed the motion, arguing that the defendant had not complied with his obligations under the parties' agreements inasmuch as the deed he executed transferring the property to the plaintiff was not notarized and, therefore, could not be recorded, thus preventing the plaintiff from fulfilling her obligation under the 2011 settlement agreement to refinance the property and remove the defendant's name from the mortgage. In an order dated December 13, 2017, the Supreme Court denied the defendant's motion. As relevant to this appeal, the court found that the defendant had failed to transfer his interest in the marital residence to the plaintiff inasmuch as the deed presented by the defendant was undated and not notarized. The court also found that the plaintiff had failed to reimburse the defendant for the mortgage payments he had made prior to the 2016 stipulation, but the court would not penalize the plaintiff when the defendant had failed to fulfill his obligations under the same agreement. The defendant appeals from so much of the December 13, 2017, order as denied that branch of his motion which was to compel the plaintiff to transfer her interest in the martial residence to him.

The 2011 separation agreement, which survived the judgment of divorce, and the 2016 stipulation, are contracts subject to principles of contract construction and interpretation, the terms of which are binding on the parties (see Matter of Meccico v Meccico, 76 NY2d 822, 823-824; Rainbow v Swisher, 72 NY2d 106, 109; Scheriff v Scheriff, 152 AD3d 724, 725). As with any contract, since the terms of the 2016 stipulation are clear and unambiguous, the court should give effect to the parties' intent based upon the plain meaning of the words used by the parties (see Matter of Meccico v Meccico, 76 NY2d at 824; McSherry v McSherry, 163 AD3d 650, 651; Margolis v Cohen, 153 AD3d 1390, 1392).

The 2016 stipulation provides that the plaintiff shall transfer her interest in the marital residence to the defendant if she defaults on any provision of that agreement and does not cure the default within 10 days of receiving notice of her default. The defendant submitted evidence that the plaintiff failed to reimburse him for the mortgage payments he made prior to the 2016 stipulation as required by the stipulation; the defendant gave notice of the default to the plaintiff; more than 10 days had passed since the plaintiff's receipt of notice; and the plaintiff had not cured the default. The plaintiff does not dispute that she defaulted on her agreement to reimburse the defendant. Thus, the defendant established that under the plain terms of the 2016 stipulation, the plaintiff was obligated to deed the marital residence to the defendant.

Contrary to the plaintiff's contention, neither of the parties' agreements made her performance contingent upon the defendant's performance under the agreements. To the extent that the plaintiff argues that she could not perform under the agreements until the defendant transferred his interest in the marital residence to her, the defendant's failure to timely transfer title to the plaintiff was a foreseeable event and a provision could have been made for its occurrence (see Freedman v Hason, 155 AD3d 831, 833; Matter of Rebell v Trask, 220 AD2d 594, 598), but was not. Moreover, the defendant's purported deficiencies in performance under the agreements did not prevent the plaintiff from performing her obligation to reimburse him for the mortgage payments he made prior to the 2016 stipulation.

Accordingly, the Supreme Court should have granted that branch of the defendant's [*3]motion which was to compel the plaintiff to transfer her interest in the marital residence to him."

ON EMPLOYMENT DISCRIMINATION

Concha v. Purchase College State University of New York et al, No. 7:2017cv08501 - Document 55 (S.D.N.Y. 2019):

A.    Discrimination under Title VII, § 1983 and NYSHRL

Title VII makes it unlawful “to fail or refuse to hire or to discharge any individual, or otherwise discriminate with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The NYSHRL covers analogous discriminatory acts by employers, see N.Y. Exec. Law § 296(1)(a), and “[e]mployment discrimination claims brought under the NYSHRL are analyzed identically to claims under . . .Title VII.” Cooper v. N.Y. State Dep’t of Labor, 819 F.3d 678, 680 n.3 (2d Cir. 2016). Additionally, “[i]n order to establish individual liability under § 1983, a plaintiff must show (a) that the defendant is a ‘person’ acting ‘under the color of state law,’ and (b) that the defendant caused the plaintiff to be deprived of a federal right.” Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004) (citation omitted). Plaintiff’s § 1983 discrimination claim “parallels his Title VII claim” where, as here, the color of law requirement is met.16 Vega v. Hempstead Union Free School District,

15 Moreover, Defendants’ arguments seeking dismissal of these claims were meritorious and grounded in well settled case law in this Circuit. See, e.g., Def. Br. at 21 (correctly noting that individual defendants cannot be sued under Title VII) (citing Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 608 n.8 (2d Cir. 2006)).

16 There is no dispute that the individual defendants were acting under color of state law. See Vega, 801 F.3d at 88 (“A state employee acting in his official capacity is acting ‘under color of state law.’”); Hayut v. State Univ. of N.Y., 352 F.3d 733, 744 (2d Cir. 2003) (“As a general rule, state employment is ... sufficient to render the defendant a state actor.”) (internal quotation marks and citation omitted).

801 F.3d 72, 88 (2d Cir. 2015). Thus, the three-part burden-shifting test laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), applies to Plaintiff’s discrimination claim under all three statutes.

Plaintiff bears the initial burden of establishing a prima facie case of discrimination. To do this, Plaintiff must show: “(1) that he belonged to a protected class; (2) that he was qualified for the position he held; (3) that he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008). “Once a plaintiff has established a prima facie case . . . [the] burden then shifts to the employer to ‘articulate some legitimate, nondiscriminatory reason’ for the disparate treatment.” Vega, 801 F.3d at 83 (quoting McDonnell Douglas, 411 U.S. at 802). “If the employer articulates such a reason for its actions, the burden shifts back to the plaintiff to prove that the employer’s reason ‘was in fact pretext’ for discrimination.” Id.

i.    Prima Facie Case

Defendants do not contest that Plaintiff has met the first three elements of a prima facie case: (i) he belonged to a protected class; (ii) he was qualified for the position he held within the Grounds Department; and (iii) he suffered an adverse employment action when he was terminated. Defendants, however, argue that Plaintiff cannot show any facts giving rise to an inference of discrimination. (Def. Br. at 26).

To satisfy the fourth element of a prima facie case, Plaintiff must present evidence that gives rise to an inference of discrimination. “A plaintiff can support such an inference by (a) demonstrating that similarly situated employees of a different race or national origin were treated more favorably, (b) showing that there were remarks made by decisionmakers that could be viewed as reflecting a discriminatory animus, or (c) proving that there were other circumstances giving rise to an inference of discrimination on the basis of [the] plaintiff’s race or national origin.” Nguyen v. Dep’t of Corr. & Cmty. Servs., 169 F. Supp. 3d 375, 388 (S.D.N.Y. 2016) (internal quotation marks and citation omitted). “Conclusory and speculative allegations will not suffice to demonstrate discriminatory intent. Rather, a plaintiff must point to facts that suggest that the adverse employment action was motivated, at least in part, by discriminatory animus.” Id. (internal quotation marks and citation omitted). Although, “Plaintiff’s burden in establishing a prima facie case is de minimis . . . a party’s bald assertions, without more, are insufficient to overcome a motion for summary judgment.” Hill v. Rayboy-Brauestein, 467 F. Supp. 2d 336, 350 (S.D.N.Y. 2006) (internal quotation marks and citation omitted).

Plaintiff alleges race and national origin discrimination based on disparate treatment between Hispanic and non-Hispanic Grounds Department employees. (Docket No. 1 at 10). To establish this claim, Plaintiff relies on: (i) his own testimony regarding his experience as a Hispanic employee; (ii) the investigation of the anonymous complaint against Halliday; and (iii) the claim that Esposito was subject to disciplinary proceedings concerning the use of a racial slur. (Pl. Br. at 11–12). At the outset, the Court notes that Esposito’s alleged racial slur is not probative of racial animus because there is nothing in the record that suggests that Esposito, who was a Senior Grounds Worker, was a decisionmaker involved in Plaintiff’s termination. See Quinby v. WestLB AG, No. 04–CV–7406, 2007 WL 3047111, at *1 (S.D.N.Y. Oct.18, 2007) (“Generally speaking, comments by nondecisionmakers cannot be used to establish discriminatory animus.”). Moreover, Plaintiff fails to both identify the nature of the alleged slur and demonstrate whether it reflected a discriminatory animus. See id. (“comments by decisionmakers that do not bear on the decisionmaking process itself, are not pro[b]ative of discriminatory animus.”).

However, Plaintiff’s remaining contentions satisfy the de minimis burden of proof needed to demonstrate a prima facie discrimination claim. “A showing of disparate treatment—that is, a showing that an employer treated plaintiff ‘less favorably than a similarly situated employee outside his protected group’—is a recognized method of raising an inference of discrimination for the purposes of making out a prima facie case.” Mandell v. Cty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). Here, Plaintiff provides examples of favoritism and disparate treatment between the Hispanic and non-Hispanic employees within the Grounds Department. (Pl. 56.1 at ¶¶ 5–12); see Village of Freeport v. Barrella, 814 F.3d 594, 613 (2d Cir. 2016) (holding that Title VII does not “forbid[ ] favoritism, nepotism, or cronyism, so long as it is not premised on animus against a protected class.”) (emphasis added).  Plaintiff testified that Hispanic employees received harder work assignments and inferior tools than the non-Hispanic employees. (Pl. 56.1 at ¶¶ 5– 12). In addition, Plaintiff claimed that Halliday did not reprimand the non-Hispanic employees for arriving late and fostered a work environment where Hispanic employees were not afforded the same opportunities as the non-Hispanic employees. (Id.).

SUNY Purchase’s investigation of the anonymous complaint corroborates Plaintiff’s allegations. Aure’s report noted that the Hispanic employees in the Grounds Department felt segregated from the non-Hispanic employees. (Docket No. 41-22). Furthermore, the report concluded that Halliday favored certain employees over others. (Id.); Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999) (“A plaintiff may support an inference of race discrimination by demonstrating that similarly situated employees of a different race were treated more favorably.”). Thus, viewing the record in a light favorable to Plaintiff, the Court concludes that Plaintiff has met his burden of “establishing a prima facie [case of discrimination by] showing that he was terminated under circumstances that create an inference of discrimination.” Baguer, 2010 WL 2813632 at *7.

ii.    Legitimate, Non-Discriminatory Reason for Plaintiff’s Termination

The Court next considers whether Defendants have proffered a legitimate, nondiscriminatory reason for Plaintiff’s termination. Under the second step of the McDonnell Douglas analysis, it is the “employer’s burden [] to ‘clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.’” Nguyen, 169 F. Supp. 3d at 392 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)). “This ‘burden of showing a legitimate[,] non-discriminatory reason for its actions is not a particularly steep hurdle.’” Id. (quoting Brierly v. Deer Park Union Free Sch. Dist., 359 F. Supp. 2d 275, 291 (E.D.N.Y. 2005)) (alteration in original).

Defendants have met their burden of articulating a legitimate, non-discriminatory basis for terminating Plaintiff. Defendants put forward sufficient evidence showing that Plaintiff’s termination was motivated by complaints about his unsatisfactory work performance. See O’Kane v. Lew, No. 10-CV-5325(PKC), 2013 WL 6096775, at *10 (E.D.N.Y. Nov. 20, 2013) (“Poor work performance is well-established as a legitimate, nondiscriminatory reason for firing an employee.”). At least three of Plaintiff’s colleagues complained to Halliday regarding Plaintiff’s work performance prior to Plaintiff’s termination. Santiago Linares told Halliday that: (i) Plaintiff was a bad worker; (ii) he complained about his co-workers; and (iii) he was unwilling to perform the typical tasks that Grounds Department employees performed. (Linares Dec. at ¶¶ 3–5). Linares further stated that Plaintiff did not want to report back to the Grounds Department after completing tasks. (Id.). Michael Koran testified that Plaintiff shouted expletives and threw a leaf blower at him while working. (Def. 56.1 at ¶ 22). Koran disclosed this incident to Halliday and Espinales well before Halliday recommended terminating Plaintiff. Esposito also informed Halliday that Plaintiff’s performance was deficient and that he did not want to work. (Halliday Dep. at 86–87). Complaints of this nature provide a legitimate, non- discriminatory basis for terminating Plaintiff’s probationary employment. See Johnson v. Schmid, 750 F. App’x 12, 17 (2d Cir. 2018) (holding that poor job performance is a legitimate, non-discriminatory reason for firing an employee); Yu v. N.Y.C. Hous. Dev. Corp., 494 Fed. Appx. 122, 126 (2d Cir. 2012) (summary order) (holding that defendants proffered legitimate, non-discriminatory reasons for plaintiff’s termination, including that “he spoke to his coworkers and his supervisor in an unprofessional manner;” “he did not work well with others, particularly on team projects;” and “he failed to follow instructions and often deviated from assigned tasks and questioned the work of others, while failing to complete his own.”); Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir. 1985) (citing “profound inability to get along with her co-workers” as a legitimate non-discriminatory reason for discharge); Bogdan v. N.Y. City Transit Auth., No. 02 Civ. 09587(GEL), 2005 WL 1161812, at *8, (S.D.N.Y. May 17, 2005) (multiple complaints of poor job performance were legitimate, non-retaliatory reasons for employee’s termination). Accordingly, Defendants have satisfied their burden of establishing a legitimate, non- discriminatory reason for Plaintiff’s termination.

iii.    Evidence of Pretext

Since Defendants have set forth legitimate, non-discriminatory reasons for their actions, the burden shifts back to Plaintiff to establish that Defendants’ grounds for terminating Plaintiff are “mere pretext for actual discrimination.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). This burden is higher than the burden to establish a prima facie case. Nguyen, 169 F. Supp. 3d at 393 (quoting Geoghan v. Long Is. R.R., No. 06–CV–1435, 2009 WL 982451, at *21 (E.D.N.Y. Apr. 9, 2009)).“‘[P]laintiff must produce not simply ‘some’ evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action.’” Id. at 394 (quoting Weinstock, 224 F.3d at 42).

Plaintiff’s subjective disagreement with his co-workers’ characterization of his job performance does not create a material issue of fact as to whether Defendants’ asserted reasons for Plaintiff’s termination were pretextual. See Baguer v. Spanish Broad. Sys., Inc., No. 04 Civ. 8393 (RJS), 2010 WL 2813632, at *8 (S.D.N.Y. July 12, 2010), aff’d, 423 F. App’x 102 (2d Cir. 2011) (holding that plaintiff’s argument that he, in fact, “performed his job well does not create a material question of fact as to whether [Defendant’s] asserted reasons for his termination were pretextual.”); Soderberg v. Gunther Int’l, Inc., 124 F. App’x 30, 32 (2d Cir. 2005) (“‘it is not the function of a fact-finder to second-guess business decisions’ regarding what constitutes satisfactory work performance.”) (quoting Dister v. Cont’l Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988)). Where, as here, “plaintiff’s own testimony is the only basis for contesting otherwise strong evidence of valid, non-discriminatory reasons for termination, the evidence of ‘pretext’ cannot alone support a reasonable inference of prohibited discrimination.” Rodriguez v. Am. Friends of Hebrew Univ., Inc., No. 96 Civ. 0240(GEL), 2000 WL 1877061, at *5 (S.D.N.Y. Dec. 26, 2000).

In addition, the record establishes that Halliday recommended Plaintiff’s termination based on Plaintiff’s poor work performance and issues with his co-workers. Plaintiff received an “Unsatisfactory” score in almost every category in his Evaluation Report, including “Attitude Toward Job,” “Quality of Work,” and “Relations with Other[s].” (Docket No. 41-15). Halliday’s draft of the Evaluation Report specifically referenced reports of Plaintiff’s disruptive and abusive behavior towards his co-workers. (Docket No. 41-14). This language was removed from the

final Evaluation Report at the request of the Human Resources Department because the level of detail provided was not required to terminate a probationary employee under state law. (Def. 56.1 at ¶ 33); (Pl. 56.1 at ¶ 48). While Plaintiff refutes the accuracy of the Evaluation Report, his self-serving statements are not “the concrete evidence necessary to give rise to a reasonable inference that poor performance evaluations were suspect.” Mattera v. JPMorgan Chase Corp., 740 F. Supp. 2d 561, 577 (S.D.N.Y. 2010). Moreover, Plaintiff’s denials “[do] not alter this analysis because ‘[i]n a discrimination case . . . we are decidedly not interested in the truth of the allegations against plaintiff. We are interested in what ‘motivated the employer;’ the factual validity of the underlying imputation against the employee is not at issue.’” Dasrath v. Stony Brook Univ. Med. Ctr., No. 12-CV-1484 SJF SIL, 2015 WL 1223797, at *13 (E.D.N.Y. Mar. 17, 2015) (quoting McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006)).

Plaintiff further identifies alleged inconsistencies in Defendants’ proffered reasons for his termination. (Pl. Br. at 13–16). Plaintiff argues that Defendants’ reliance on the leaf blower incident is problematic because there is a discrepancy between Koran’s testimony and his written report.  Koran testified that Plaintiff threw the leaf blower at him and told him to go fuck himself, (Def. 56.1 at ¶ 22), whereas his written statement states that Plaintiff “practically threw the blower on the ground and told me to go fuck myself,” (id. at ¶ 26). The Court disagrees that Koran’s characterizations of the incident are so inconsistent that they are “unworthy of credence.” Droutman v. New York Blood Ctr., Inc., No. 03-CV-5384(DRH/ARL), 2005 WL 1796120, at *8 (E.D.N.Y. July 27, 2005) (internal quotation marks and citation omitted). Even if Plaintiff did not throw the leaf blower or commit the other acts complained of by his co-workers, the record is devoid of any evidence that these grounds were pretextual. “An employer’s good faith belief that an employee engaged in misconduct is a legitimate reason for terminating [him], 

and the fact that the employer is actually wrong is insufficient to show that the alleged misconduct is a pretext for discrimination.” Id. at *9 (emphasis in original) (citing Agugliaro v. Brooks Bros., Inc., 927 F. Supp. 741, 747 & n. 5 (S.D.N.Y.1996)). Plaintiff also claims that Halliday’s recollection of Plaintiff’s performance record is too weak to be relied upon because he is unable to pinpoint when he received reports of Plaintiff’s poor work performance and whether he documented the complaints.  This argument is belied by the sworn testimony of the employees who confirmed that they relayed these reports to Halliday. (See Linares Dec. at ¶¶ 3– 5); (Koran Dep.17 at 19–21). Thus, Plaintiff has failed to show that Defendants’ proffered basis for Plaintiff’s termination was pretextual.

Accordingly, Plaintiff’s discrimination claims pursuant to Title VII, NYSHRL and § 1983 are dismissed.

B.    Retaliation Under § 1983

Plaintiff alleges that Defendants retaliated against him for cooperating with Aure’s investigation into the anonymous complaint against the Grounds Department’s supervisors. (Docket No. 1 at 13). Defendants seek dismissal of this claim on the grounds that the Equal Protection Clause does not support a claim for retaliation under § 1983. (Def. Br. at 26). Defendants ignore the Second Circuit’s authority on this issue. In Vega v. Hempstead Union Free School District, the Second Circuit settled the ambiguity in its case law with respect to the viability of § 1983 retaliation claims and held that “retaliation claims alleging an adverse action because of a complaint of discrimination are actionable under § 1983.” 801 F.3d 72, 82 (2d Cir. 2015). The Second Circuit recognized that “retaliation is a form of discrimination,” and when an employer “retaliates against an employee because he complained of discrimination, the

17 Refers to Michael Koran’s deposition transcript. (Docket No. 41-12).

retaliation constitutes intentional discrimination against him for purposes of the Equal Protection Clause.” Id.

Evaluating Plaintiff’s retaliation claim under the controlling case law, the Court finds that Plaintiff’s § 1983 retaliation claim fails. “[O]nce action under color of state law is established, ‘the elements of a retaliation claim based on an equal protection violation under § 1983 mirror [the elements of a retaliation claim] under Title VII.’” Anderson v. City of New York, Health & Hosp. Corp., No. 16-CV-01051(GBD)(KHP), 2017 WL 9538862, at *14 (S.D.N.Y. Jan. 19, 2017), report and recommendation adopted, 2017 WL 3251603 (S.D.N.Y. July 31, 2017) (quoting Vega, 801 F.3d at 91). Thus, retaliation claims are subject to the McDonnell Douglas burden shifting framework. See Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014). To establish a prima facie case of retaliation, Plaintiff must prove that “(1) he was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014) (citation and internal quotation marks omitted).

Here, the record fails to establish a prima facie case of retaliation. Plaintiff argues that he participated in a protected activity when Aure interviewed him as a part of his investigation into the anonymous complaint. (Docket No. 1 at ¶ 72). However, the record does not establish that any of the Defendants were aware of Plaintiff’s meeting with Aure. (See Def. Br. at 37–38). Aure testified that he did not discuss the investigation with anyone while it was pending, nor did he disclose the substance of Plaintiff’s interview until well after Plaintiff’s termination. (Def. 56.1 at ¶¶ 51, 61). Plaintiff’s conclusory allegation that Defendants were aware of his participation in the investigation is not supported by any evidence in the record. Thus, because Plaintiff failed to demonstrate that Defendants, except Aure, were made aware of the alleged protected activity, Plaintiff has failed to establish a prima facie case of retaliation against Defendants Halliday, Schwarz, Farrell, Espinales and Tighe. See Mendoza v. SSC & B Lintas, New York, 913 F. Supp. 295, 301 (S.D.N.Y.1996) (dismissing retaliation claim where supervisor was unaware of plaintiff’s complaint at the time the adverse employment action was taken). Moreover, because Defendants Halliday, Schwarz, Farrell, Espinales and Tighe were unaware of Plaintiff’s cooperation with the investigation, Plaintiff has not established a causal connection between the protected activity and his termination. See Uddin v. City of New York, 427 F. Supp. 2d 414, 433 (S.D.N.Y. 2006) (finding no causal connection where the defendant was not aware of the protected activity prior to the adverse action).

Although Defendant Aure knew about Plaintiff’s participation in a protected activity, there is no evidence that Aure had any involvement in Plaintiff’s termination. “[L]iability for an Equal Protection Clause violation under § 1983 requires personal involvement by a defendant, who must act with discriminatory purpose.” Reynolds v. Barrett, 685 F.3d 193, 204 (2d Cir. 2012). To hold an individual liable for retaliatory conduct under § 1983, there must be “‘some affirmative link to causally connect the actor with the discrimination action,’ such that the claim is ‘predicated on the actor’s personal involvement.’” Hagan v. City of New York, 39 F. Supp. 3d 481, 514 (S.D.N.Y. 2014) (quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000)). “Personal involvement includes not only direct participation but also ‘an official’s (1) failure to take corrective action after learning of a subordinate’s unlawful conduct, (2) creation of a policy or custom fostering the unlawful conduct, (3) gross negligence in supervising subordinates who commit unlawful acts, or (4) deliberate indifference to the rights of others by failing to act on information regarding the unlawful conduct of subordinates.’” Id. (quoting Hayut, 352 F.3d at 744). Here, the Complaint does not allege that Aure was involved in terminating Plaintiff’s probationary employment. Nor does the record suggest that Aure participated in Plaintiff’s termination proceedings, directly or indirectly. At the time, Aure was the Chief Diversity Officer, Title IX Coordinator, and Affirmative Action Officer at SUNY Purchase. (Def. 56.1 at ¶ 8). In that capacity, he was not responsible for recommending or reviewing Plaintiff’s employment status or termination. (See Aure Dep.18 at 7); (Aure Dec.19 at ¶ 6). Thus, Plaintiff’s retaliation claim against Aure must be dismissed for lack of personal involvement.

Accordingly, Plaintiff’s § 1983 retaliation claim against the individual defendants is dismissed.

SPOLIATION

In 2009, plaintiff's truck was damaged by defendant. The action was commenced in 2010. In 2014, defendants demanded to inspect the truck. Plaintiff failed to comply and revealed in 2016 that the truck was sold. Defendants moved to strike the complaint.

Delmur, Inc. v School Constr. Auth,  2019 NY Slip Op 05764, Decided on July 24, 2019, Appellate Division, Second Department:

""Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126'" (Samaroo v Bogopa Serv. Corp., 106 AD3d 713, 713-714, quoting Holland v W.M. Realty Mgt., Inc., 64 AD3d 627, 629). " [T]he Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence' and may, under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness'" (Doviak v Finkelstein & Partners, LLP, 137 AD3d 843, 846, quoting Biniachvili v Yeshivat Shaare Torah, Inc., 120 AD3d 605, 606).

"The nature and severity of the sanction [for spoliation] depends upon a number of factors, including, but not limited to, the knowledge and intent of the spoliator, the existence of proof of an explanation for the loss of evidence, and the degree of prejudice to the opposing party" (Samaroo v Bogopa Serv. Corp., 106 AD3d at 714). " Recognizing that striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct, courts will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness'" (Jennings v Orange Regional Med. Ctr., 102 AD3d 654, 655-656, quoting Iannucci v Rose, 8 AD3d 437, 438).

As the party seeking sanctions for spoliation, the defendants were required to demonstrate "that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim . . . such that the trier of fact could find that the evidence would support that claim" (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547 [internal quotation marks omitted]; see Franco Belli Plumbing & Heating & Sons, Inc. v Dimino, 164 AD3d 1309, 1313; Saeed v City of New York, 156 AD3d 735, 737). "A culpable state of mind for purposes of a spoliation sanction includes ordinary negligence" (VOOM HD Holdings LLC v EchoStar Satellite LLC, 93 AD3d 33, 45 [internal quotation marks omitted]). "Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed [evidence] is presumed. On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed [evidence was] relevant to the party's claim or defense" (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d at 547-548 [citation omitted]).

Here, on their motion pursuant to CPLR 3126 to strike the complaint, the defendants sustained their burden of establishing that the plaintiff was obligated to preserve the truck at the time it was purportedly "seized and disposed" of, that the truck had been seized and disposed of before the defendants had an opportunity to inspect it, and that the truck was relevant to the litigation (see [*3]Richter v BMW of N. Am., LLC, 166 AD3d 1029, 1030). Furthermore, the defendants demonstrated that their ability to prove their defense had been significantly, if not fatally, compromised by the loss of the truck. Under the circumstances presented, the sanction of striking the complaint was appropriate (see UMS Solutions, Inc. v Biosound Esaote, Inc., 145 AD3d 831, 832-833; Diono v Meltzer, 208 AD2d 798; cf. Richter v BMW of North America, LLC, 166 AD3d at 1030; McDonnell v Sandaro Realty, Inc., 165 AD3d 1090, 1095; Neve v City of New York, 117 AD3d 1006, 1009)."

TEXT OF NEW YORK ANTI-DECLAWING LAW

It can be found in Article 26 of the Agriculture and Markets Law:

"Agriculture and Markets § 381. Prohibition of the declawing of cats.

1. No person shall perform an onychectomy (declawing), partial or complete phalangectomy or tendonectomy procedure by any means on a cat within the state of New York, except when necessary for a therapeutic purpose. Therapeutic purpose means the necessity to address the physical medical condition of the cat, such as an existing or recurring illness, infection, disease, injury or abnormal condition in the claw that compromises the cat's health. Therapeutic purpose does not include cosmetic or aesthetic reasons or reasons of convenience in keeping or handling the cat.

2. Any person who performs an onychectomy, partial or complete phalangectomy or tendonectomy procedure on any cat within the state of New York in violation of the provisions of subdivision one of this section shall be punishable by a civil penalty not to exceed one thousand dollars."

Article 26 has numerous provisions regarding farm animals, pets and other creatures. For example, Section 326 governs the sale of baby chicks and baby rabbits.

PRIOR EVICTION RECORDS AND POTENTIAL TENANT

The Housing Stability and Tenant Protection Act of 2019 created a new Real Property Law 227-f. This provision states that no landlord may refuse to rent or offer a lease to a potential tenant on the basis that the potential tenant was involved in a past or pending landlord-tenant action or summary proceeding. In addition, there is now a rebuttable presumption that there is a violation of this law if information is requested by a landlord from a tenant screening bureau or the landlord otherwise inspects court records.

SWORN IN

I was sworn in as an Arbitrator on July 19 by Judge LaShann DeArcy Hall of the Eastern District of New York.

LAW OFFICE FAILURE

We all make mistakes but when alleging it as an excusable default on a motion to vacate under CPLR 5015 (a) (1), be specific in your allegations.

For example in Bank of N.Y. Mellon v Faragalla, 2019 NY Slip Op 05641, Decided on July 17, 2019, Appellate Division, Second Department:

"A party seeking to vacate a default in opposing a motion or in appearing at a conference must demonstrate both a reasonable excuse for its default and a potentially meritorious cause of action or defense (see CPLR 5015[a][1]; OneWest Bank, FSB v Singer, 153 AD3d 714, 715-716; Flagstar Bank, FSB v Damaro, 145 AD3d 858, 859-860; Bayview Loan Servicing, LLC v Martano, 131 AD3d 1187, 1189; GMAC Mtge., LLC v Guccione, 127 AD3d 1136, 1138).

"A motion to vacate a default is addressed to the sound discretion of the motion [*2]court" (Aurora Loan Servs., LLC v Ahmed, 122 AD3d 557, 557-558 [internal quotation marks omitted]; see U.S. Bank, N.A. v Dorvelus, 140 AD3d 850, 852; Forward Door of N.Y., Inc. v Forlader, 41 AD3d 535). "In making that discretionary determination, the court should consider relevant factors, such as the extent of the delay, prejudice or lack of prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits" (Citicorp Trust Bank, FSB v Makkas, 127 AD3d 907, 908; see Lyubomirsky v Lubov Arulin, PLLC, 125 AD3d 614; Fried v Jacob Holding, Inc., 110 AD3d 56, 60).

Under the circumstances presented here, the appellants set forth a reasonable excuse for their failure to appear at the centralized motion part of the Supreme Court on the return date of the plaintiff's motion based on evidence of law office failure. In an affirmation, the appellants' attorney explained that upon receiving the plaintiff's motion, he directed his office's legal assistant to note the return date of the motion on the office calendar, but that the return date had not been noted on the calendar. In addition, the appellants demonstrated a potentially meritorious defense based upon the statute of limitations. Thus, the Supreme Court improvidently exercised its discretion in denying that branch of the appellants' motion which was to vacate their default in opposing the plaintiff's motion, inter alia, for summary judgment (see Flagstar Bank, FSB v Damaro, 145 AD3d at 859-860; U.S. Bank, N.A. v Bukobza, 142 AD3d 1070, 1071; Bank of N.Y. v Segui, 120 AD3d 1369, 1373-1374; see also CPLR 2005; Bayview Loan Servicing, LLC v Martano, 131 AD3d 1187, 1189)."

Compare that to HSBC Bank USA, N.A. v Coronel, 2019 NY Slip Op 05648, Decided on July 17, 2019, Appellate Division, Second Department:

"We agree with the Supreme Court's determination in an order entered November 28, 2016, to deny the motion of the defendant Alex Coronel (hereinafter the appellant) pursuant to CPLR 5015(a)(1) to vacate a prior order dated November 6, 2015, granting the plaintiff's unopposed motion, inter alia, for summary judgment on the complaint, as well as the court's determination to deny vacatur of an order dated October 7, 2016, granting the plaintiff's motion for a judgment of foreclosure and sale. The appellant's unsubstantiated and conclusory claim of law office failure was insufficient to demonstrate a reasonable excuse for his default in opposing the plaintiff's motion, inter alia, for summary judgment (see Bank of N.Y. Mellon v Ruci, 168 AD3d 799, 800; IndyMac Bank, FSB v Izzo, 166 AD3d 866, 868; Option One Mtge. Corp. v Rose, 164 AD3d 1251, 1252). In light of the appellant's failure to establish a reasonable excuse for his default, it is not necessary to determine whether he demonstrated a potentially meritorious opposition to the motion (see Nationstar Mtge., LLC v Ramnarine, 172 AD3d 886, 887; Bank of N.Y. Mellon v Ruci, 168 AD3d at 800; Hudson City Sav. Bank v Bomba, 149 AD3d 704, 705)."

OBTAINING ADOPTION RECORDS

Finding your roots sometimes involves the court.

Matter of George, 2019 NY Slip Op 31998(U), July 9, 2019, Surrogate's Court, New York County, Docket Number: 2019-1560, Judge: Nora S. Anderson :

"This is an application by an adult who was adopted seventy years ago as an infant and now seeks access to the sealed files of his adoption pursuant to DRL 114(2). On the facts presented, petitioner has demonstrated both good cause for unsealing the records and that the privacy rights of any interested persons will not be implicated. The application is therefore granted to the limited extent set forth below.

Petitioner avers, with supporting documentation, that he was born in New York in 1949, surrendered for adoption by his biological parents, and adopted in this court on May 9, 1950. The records of his adoption were sealed in accordance with the mandate of New York statutory law (DRL § 114), which requires a showing of good cause for. access to or inspection of sealed adoption records, as well as notice to the adoptive parents and any additional persons as the court may direct {DRL § 114[2)).

Petitioner seeks proof of Italian birth parentage in order to obtain Italian citizenship which, in turn, will facilitate hi plans to retire to Italy for both personal and economic reasons.  The grant of Italian citizenship requires proof of a blood tie to his biological father, whom, petitioner alleges, was Italian. Petitioner asks the court to allow him access to the sealed record for the purpose of obtaining a copy of the sole document which will establish that tie, i.e., his original pre-adoption birth certificate. Case law has established that allegations such as petitioner's constitute good cause (see, Matter of Rose, 137 AD3 431 [1s t Dept 2016]; Matter of S.P., 2010 NY Slip Op 50783[U], 27 Misc 3d 1217[A], 910 NYS2 765 [Sur Ct, Bronx County 2010]; Matter of Regine, NYLJ, April 14, 2010, at p 34, col 4, 2010 NYLJ LEXIS 902 [Sur Ct, NY County); Matter of Victor M. I. I., 2009 NY Slip Op 50557[U], 23 Misc 3d 1103 [A], 881 NYS2 367 [Sur Ct, Nassau County 2009]).

After a demonstration of good cause, the court must determine whether access to the sealed file violates the privacy interests of those intended to be protected by the sealing in which case the court must allow such interested persons an opportunity to oppose the application (DRL § 114(2]). As explained by the Court of Appeals in Matter of Linda F. M., 52 NY2d 236 (1981), strict confidentiality serves several purposes:

It shields the adopted child from possibly disturbing facts surrounding his or her birth and parentage, it permits the adoptive parents to develop a close relationship with the child free from interference or distraction, and it provides the natural parents with an anonymity that they may consider vital [cite omitted]. The State's interest in fostering an orderly and supervised system of adoptions tis closely tied to these interests of the parties involved [cite omitted]."

52 NY2d at 239.

None of the privacy concerns identified by the Court of Appeals in Matter of Linda F. M. applies here. Petitioner states that his adopted parents told him that he was adopted and gave him the relevant facts and documents, including a certified copy of the Order of Adoption which identified his biological parents. With this information, petitioner located his biological mother and learned from her that his biological father had died many years previously. From the time of their initial contact until his biological mother died two years later, she and petitioner maintained a close relationship, speaking on the telephone two to three times a week. Furthermore, the record contains death certificates of both adoptive parents and both biological parents. The state's interest in maintaining confidentiality as part of an orderly system of adoption is not a factor here, since there is no information contained in the requested document which petitioner does not already possess, and since petitioner is not requesting unfettered access to the entire adoption file (see, Matter of Victor M. I. I., supra.)

Accordingly, since no privacy interests are at risk of being violated, no further notice is required before a determination is reached. After an in camera inspection of the sealed adoption file, the court confirms that the requested document is in the file.The court thus directs that a certified copy of petitioner's pre-adoption birth certificate be issued to petitioner upon his paying the applicable court fees."

WHO CANNOT BE A FIDUCIARY UNDER SURROGATE'S COURT PROCEDURE ACT

If you are "dishonest", you are not eligible. According to SCPA 701:

"Letters may issue to a natural person or to a person authorized by law to be a fiduciary except as follows:

1. Persons ineligible

(a) an infant

(b) an incompetent

(c) a non-domiciliary alien except one who is a foreign guardian as provided in subdivision four of section one thousand seven hundred sixteen of this chapter, or one who shall serve with one or more co-fiduciaries, at least one of whom is resident in this state.  Any appointment of a non-domiciliary alien fiduciary or a New York resident fiduciary hereunder shall be made by the court in its discretion

(d) a felon

(e) one who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office.

2. Persons ineligible in court's discretion.  The court may declare ineligible to act as fiduciary a person unable to read and write the English language."

MATTER OF CENTNER, 2018 NY Slip Op 32664 - NY: Surrogate's Court, Richmond 2018:

"Petitioner further argues that the Respondent is ineligible to serve based on SCPA § 707(1)(e). SCPA § 707(1)(e) states "Letters may issue to a natural person or to a person authorized by law to be a fiduciary except as follows: Persons ineligible . . . One who does not possess the qualifications required by a fiduciary by reason of substance, abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office." Petitioner has provided transcripts of the divorce proceedings, and statements from the Respondent in an effort to demonstrate the "dishonesty" that Respondent has shown. Petitioner alleges that Respondent stole an excessive amount of funds from the marital joint account while Decedent was suffering from cancer. Furthermore, Petitioner argues that Respondent delayed the divorce proceeding in order to ensure that the Decedent would die as his wife, which would result in her estate passing to the Respondent. Respondent objected to the inclusion of such evidence, and argues that all allegations of dishonesty are based upon purported excerpts of uncertified transcripts from the divorce proceeding. Respondent heavily objects to the introduction of any of the material or documents from the divorce proceeding because the Petitioner has no legal right to access the contents of the sealed file.

Respondent brings a cross-petition to disqualify the Petitioner from acting as fiduciary pursuant to SCPA 707(1)(e), also on the ground of dishonesty. Respondent's argument is based upon Petitioner's prior sworn petition with this Court along with photographic evidence of the Petitioner and her siblings removing Decedent's personal property from the marital home.

"The dishonesty contemplated by the statute must be taken to mean dishonesty in money matters from which reasonable apprehension may be entertained that the funds of the estate would not be safe in the hands of the executor." Matter of Latham's Will 145 App Div. 849. A mere isolated act of wrongdoing is not enough to disqualify a fiduciary for dishonesty. The documentation currently before the Court, presented by both sides, is not enough to make a determination on the matter without first going through the formal channels of conducting a hearing. Estate of Marie Starace Knee, 2015 NYLJ Lexis 3597."

CAUSES OF ACTION AGAINST HOME IMPROVEMENT CONTRACTOR

In addition to breach of contract, there are remedies under the General Business Law and the Lien Law. In this case, the court dismissed the claims for fraudulent inducement and unjust enrichment because of the breach of contract claim.

Cha v Columbia E. Constr. Corp., 2019 NY Slip Op 31829(U), June 18, 2019, Supreme Court, Kings County, Docket Number: 525240/18, Judge: Karen B. Rothenberg:

"With regard to the first cause of action, the plaintiff sufficiently pleaded a claim under the New York Home Improvement Business Law, N.Y. Gen. Bus. Law [GBL] Art. 36-A, §770 et. seq. Defendants argument that plaintiff is not a protected individual because the "home" is an investment property and not her residence is without merit. GBL§ 771(1) provides that "[e]very home improvement contract subject to the provisions of ... article [36-a], and all amendments thereto, shall be evidenced by a writing and shall be signed by all the parties to the contract." GBL §770 defines an "Owner" as any "homeowner" and defines a "home improvement contract" as "an agreement for the performance of home improvement, between a home improvement contractor and an owner, and where the aggregate contract price specified ... exceeds five hundred dollars." Defendant fails to cite any language in the text of the GBL or case law interpreting the provisions of the GBL as restricting its protections to only certain types of homeowners. Further, as this action is not based on an alleged violation of the Home Improvement Business provisions of the Administrative Code of the City ofNew York, §20-386 et. seq, defendants' citation to cases holding that such provisions are only applicable to individuals residing in the subject premises is of no import. Thus, the protections afforded under GBL §770, et. seq. applies to the home improvement contract at issue.

Moreover, plaintiff, as an owner, sufficiently pleaded her third cause of action against defendants for diversion of trust funds in violation of Art. 3A of the Lien Law (see Ippolito v TJC Dev., LLC [83 AD3d 57 [2d Dept 2011]). Under the Lien Law, the funds paid to defendants under the home improvement contract qualify as trust funds, requiring defendants to hold the funds in an escrow account, where they would remain the property ofthe plaintiffuntil substantial completion of the contract (GBL §771[1][e]; N.Y. Lien Law §71-a[4][a][d]). The use of trust funds for any purpose "other than the expenditures authorized in Lien Law §71 before all trust claims have been paid or discharged constitutes an improper diversion of trust assets, regardless of the propriety of the trustee's intentions" and enables an owner to commence an action pursuant to Art. 3A of the Lien Law (RLI Ins. Co. v New York State Dept. of Labor, 97 NY2d 256 [2002]). Further, an officer or agent of the defendant corporation, may be held personally liable for his/her acts which constitute an improper diversion of trust funds (see Ippolito at 71). The complaint alleges that the defendants, in violation of the Lien Law, wrongfully co-mingled funds and used or applied a portion of the paid funds for purposes unrelated to the construction and renovation work contemplated by the contract. It is also alleged that the defendants failed to maintain the required records concerning the trust. Thus, the plaintiff has a viable cause of action against both defendants pursuant to Art. 3A of the Lien Law (see Gorman v Fowkes, 97 AD3d 726 [2d Dept 2012]). Lastly, as it is alleged that the project was abandoned by the defendants, the one-year limitations period of §77(2) of Art. 3A of the Lien Law is not applicable (see Putnins Contracting Corp. v Winston Woods at Dix Hills, Inc., 36 NY2d 679 [1975]). "

GUARDIAN AD LITEM - WHO PAYS?

If your defendant is in need of a Guardian Ad Litem, this may be an extra cost in the litigation.

41-43 Lawrence Realty LLC v Thompson, 2019 NY Slip Op 51068(U), Decided on June 26, 2019, District Court Of Nassau County, First District Fairgrieve, J.

"As provided by CPLR 1202(a), "[t]he court in which an action is triable may appoint a guardian ad litem at any stage in the action upon its own initiative...." Also, pursuant to CPLR 1204:

"A court may allow a guardian ad litem a reasonable compensation for his services to be paid in whole or part by any other party or from any recovery had on behalf of the person whom such guardian represents or from such person's other property. No order allowing compensation shall be made except on an affidavit of the guardian or his attorney showing the services rendered."

In the instant matter, petitioner's counsel acknowledges that he received the subject order on February 4, 2019. He further states that he only skimmed the order and did not see the provision that the petitioner would be required to pay the legal fees of the guardian ad litem pursuant to CPLR 1204. He further argues that since the order was issued by the court sua sponte, the petitioner did not have an opportunity to oppose the inclusion of this provision. However, petitioner's counsel fails to explain why he waited almost two (2) months to challenge same. Regardless, as previously stated, the court may sua sponte allow a guardian ad litem to be paid in whole or part by any other party (see CPLR 1202[a] and 1204), and petitioner's attorney has not provided any legal authority in support of the instant motion. Accordingly, the petitioner's motion is denied in all respects.

In his cross motion, Mr. Imbroto asserts that he expended 15.9 hours on this matter, and that his hourly billing rate is $375.00 per hour, for a total $5,962.00. He also separately sets forth each of the dates, the amount of time expended and a description of the services rendered. In his motion, petitioner's counsel argues these fees are "way out of line" and that guardian ad litems in the City of New York "are paid a $675.00 flat fee whether they are appointed by motion or sua sponte" (Notice of Motion, ¶ 6).

"In determining reasonable compensation, the responsibility, time and attention required, the result obtained, and the funds available to the person who must bear the cost of the guardian ad litem must be considered" (Alias v Olahannan, 15 AD3d 424, 425 [2d Dept 2005]). Based upon all of the circumstances presented herein, the court determines that the guardian ad litem's fee should be reduced to a rate of $250.00 per hour. Accordingly the petitioner shall pay to Mr. Imbroto the amount of $3,975.00, representing 15.9 hours at a rate of $250.00 per hour, in reasonable compensation for services rendered."

ADOPTION BY BIOLOGICAL FATHER - PART 3

Finally, the court gave its conclusion that the adoption statute permits adoption by an unmarried adult, an adoption which results in the child having only one legal parent.

Matter of John (Joseph G.), 2019 NY Slip Op 05132, Decided on June 26, 2019, Appellate Division, Second Department:


The Adoption of the Child by His Biological Father is Permitted by the Adoption Statute


The second reason given by the Family Court for dismissing the adoption petition here was that, under New York's adoption statute, a biological parent may not adopt his or her own child. This determination was also erroneous.


"Adoption is the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect of such other person" (Domestic Relations Law § 110). Our adoption statute specifies the categories of persons who may adopt a child. It states that "[a]n adult unmarried person, an adult married couple together, . . . any two unmarried adult intimate partners together," or a formally separated person may adopt another person (id.). Further, a married couple together may adopt a child of either of them, and a spouse may adopt a child of the other spouse (id.). If satisfied that the best interests of the child will be promoted by the adoption of the child by an authorized person or persons, the judge or surrogate "shall make an order approving the adoption" (Domestic Relations Law § 114[1]).


Since adoption is solely the creation of statute (see Matter of Eaton, 305 NY 162, 165), the adoption statute must be strictly construed (see Matter of Jacob, 86 NY2d 651, 657). "What is to be construed strictly and applied rigorously in this sensitive area of the law, however, [*3]is legislative purpose as well as legislative language. Thus, the adoption statute must be applied in harmony with the humanitarian principle that adoption is a means of securing the best possible home for a child" (id. at 657-658). "[I]n strictly construing the adoption statute, our primary loyalty must be to the statute's legislative purpose—the child's best interest" (id. at 658).


The appellant here, as an "adult unmarried person," is among those who are statutorily authorized to adopt a child. That he fits within the statutory definition is not, however, conclusive, as our loyalty must be to the statute's legislative purpose. Thus, in Matter of Robert Paul P. (63 NY2d 233, 238), a man was not permitted to adopt his same-sex partner, even though the statutory language permitted the adoption, since the purpose of the statute is to create a parent/child relationship. Conversely, prior to the statute being expressly amended to permit joint adoption by unmarried intimate partners, the Court of Appeals allowed second-parent adoptions by partners of biological parents (see Matter of Jacob, 86 NY2d 651).


Here, the appellant, an otherwise qualified "adult unmarried person," seeks to adopt a child in order to gain legal and social recognition for the parent/child relationship already existing between himself and the child. The Family Court disallowed it on the ground that there is no authority for a parent to adopt his or her biological child. We disagree. The blanket prohibition, invoked by the Family Court, against legal adoption of a child by a biological parent, is not supported by either the language of the statute or its purpose.


There is nothing in the text of the Domestic Relations Law which precludes a parent from adopting his or her own biological child. While adoption, as we recognized above, is a statutory creation, the adoption sought here is authorized by the governing statute and there is nothing in the statute which precludes it. Further, to the extent that the Legislature has contemplated this subject, it has permitted adoptions notwithstanding an existing biological connection.


Domestic Relations Law § 110 expressly provides that "[a]n adult or minor married couple together may adopt a child of either of them born in or out of wedlock." Thus, the statute expressly provides that a married person may adopt his or her own child together with his or her spouse, and does not limit the couple to a second-parent adoption. This provision allows the spouse who is the biological parent to jointly adopt his or her own child together with his or her spouse, notwithstanding the preexisting biological connection. Thus, it is readily apparent that the statute does not totally prohibit adoptions of biological children by their parents. Apart from the absence of an express legislative prohibition on the adoption of biological children by their parents, we perceive nothing in the purposes of the statute that should lead us to engraft such a prohibition by judicial construction. Rather, such adoptions may serve salutory purposes which are consistent with the overarching legislative purpose of promoting the best interests of adoptive children.


The issue we consider here is relatively novel and there is little by way of precedent. Apart from the fact that the appellant successfully adopted his biological twin children in 2013, there is one reported case in which a petition for adoption of a biological child was granted. In Matter of Sebastian (25 Misc 3d 567 [Sur Ct, NY County]), the genetic mother and the gestational mother had been married in the Netherlands. While a legal relationship already existed in New York due to the presumption of legitimacy, other states, at the time, refused to recognize the validity of the marriage or the genetic mother's parentage. Further, although the Surrogate's Court believed that the genetic mother should be able to obtain an order of filiation, because of the nature of the Surrogate's Court it was unclear whether the Surrogate's Court had jurisdiction to do so outside of an adoption proceeding. Thus, adoption provided the only means of ensuring that the genetic mother's parental relationship would be recognized throughout the United States.


While Matter of Sebastian presented unique issues related to the Full Faith and Credit Clause of the United States Constitution (US Const, art IV, § 1), there may be other situations in which the adoption of one's biological child is the only means to establish a parent/child relationship in this state. For example, if a married woman gives birth to a child biologically fathered by a man other than her husband, the husband is presumed to be the father of the child (see Matter of Findlay, 253 NY 1, 7), and the biological father may be estopped from asserting his paternity (see Family Ct Act §§ 418[a]; 532[a]; Matter of Shondel J. v Mark D., 7 NY3d 320, 327). The legal parents of the child would be the married couple. If, many years later, the husband died or divorced the mother, and the mother then married the biological father, the biological father would have no mechanism for creating a legal parent/child relationship with the child other than a second-parent adoption. Similarly, if both the husband and wife died, and the biological father wanted to establish a legal [*4]parental relationship, adoption of his biological child would be the only mechanism for creating a parent/child relationship.


Here, in dismissing the adoption petition, the Family Court relied on Matter of Zoe D.K. (26 AD3d 22), which held that an unwed biological mother could not adopt her own child so as to remove the biological father from the birth certificate. As the Appellate Division, Fourth Department, viewed it, the adoption did not provide " a means of securing the best possible home'" for the child (id. at 24, quoting Matter of Jacob, 86 NY2d at 658), nor did it give " legal recognition to an existing family unit'" (Matter of Zoe D.K., 26 AD3d at 24, quoting Matter of Raquel Marie X., 76 NY2d 387, 398). Rather, as a result of the adoption, the father, without his knowledge or consent, was relieved of all parental responsibilities and rights, while the rights and responsibilities of the mother remained unchanged. As the adoption did not serve the purpose of the statute, the court granted the father's application to vacate the order of adoption (see Matter of Zoe D.K., 26 AD3d at 24-25).


The situation here is significantly different. While the appellant seeks to have the surrogate removed as a parent, an adoption would not be adverse to her rights, but rather is undertaken with her consent. Further, the surrogate has no genetic connection to the child and was never intended to be a parent to the child. Although a surrogacy contract is not enforceable against the birth mother to deprive her of parental rights, it may be used as "evidence of the parties' unequivocal intention" that the intended parents become the parents of the child (Matter of Frank G. v Renee P.-F., 142 AD3d 928, 930).

The appellant, at present, has no legal relationship with the child, and the record before us indicates that the surrogate neither has, nor ever sought to have, any relationship of any sort with the child. Thus, an adoption of this child by the appellant would "create[ ] a legal parent-child relationship where none previously existed" (Matter of Sebastian, 25 Misc 3d at 571; see Domestic Relations Law § 110), while severing a legal relationship with the gestational mother that exists solely as a legal abstraction with no physical or emotional manifestation. While the appellant could obtain an order of filiation, such would leave the surrogate as the legal mother, which was not their intent in creating the child. Further, the continuance of a bare legal tie between the child and the surrogate would not require her to actually assume a maternal role toward the child. The surrogate would be left as a vestigial parent only. While her rights could be terminated for abandonment or neglect, absent an adoption, only governmental authorities could initiate termination proceedings, leaving both the appellant and the child at the mercy of governmental discretion.


Relegating the appellant, and others similarly situated, to seeking orders of filiation would be a shallow remedy. Originally created in order to avoid having children born out-of-wedlock becoming public charges, paternity proceedings have historically had as their principal purpose ensuring that the subject children are provided with adequate financial support (see Matter of Cathleen P. v Gary P., 63 NY2d 805, 807; Matter of L. Pamela P. v Frank S., 59 NY2d 1, 5). While statutes have expanded the impact of orders of filiation beyond financial support to such matters as inheritance (see EPTL 4-1.2[a][2][A]), workers' compensation benefits, and notice of adoption (see Matter of Cathleen P. v Gary P., 63 NY2d at 807; Matter of Kordek v Wood, 90 AD2d 209, 212), orders of filiation are not the legal equivalent of adoptions, which grant full and complete legal recognition to an existing familial relationship between parent and child (see Matter of Raquel Marie X., 76 NY2d at 398). Nor would an order of filiation provide the appellant with judicial authorization to make decisions on behalf of the child. For that, the appellant would have to first obtain an order of filiation and then initiate a custody proceeding, thus requiring him to initiate successive and time-consuming proceedings in which the ostensibly adverse party would be the gestational surrogate who had already renounced her own tie to the child.


An apt analogy are cases involving a declaration of maternity of a genetic mother over a gestational mother. In such cases, courts have presumed that the genetic mother could have adopted her biological child. This Court, in T.V. v New York State Dept. of Health (88 AD3d at 301), observed that there was no provision prohibiting a declaration of maternity and the Domestic Relations Law "does not limit the parties to a formal adoption proceeding." Likewise, in Matter of Andres A. v Judith N. (156 Misc 2d 65, 71 [Fam Ct, Queens County]), the Family Court held that it did not have jurisdiction to enter an order of maternity, but noted that the biological mother was [*5]not without a remedy since she could adopt her biological children [FN2] (see also Feigenbaum v New York State Dept. of Health, 2010 WL 9596711, 2010 NY Misc LEXIS 6860 [Sup Ct, Suffolk County, No. 2009-019430]). The court in Doe v New York City Bd. of Health (5 Misc 3d 424, 427 [Sup Ct, NY County]) noted that Domestic Relations Law § 124 "specifically leaves open the type of legal proceeding that may be instituted following the birth of a child born pursuant to a surrogate parenting contract, and does not limit the parties to a formal adoption proceeding."


Since the adoption statute permits adoption by an unmarried adult, an adoption which results in the child having only one legal parent is not against the language or purpose of the adoption statute. Moreover, the continuity of a fictitious family structure whereby a gestational surrogate with no genetic ties or intention to be a parent remains a legal parent is hardly consonant with a child's best interests. Thus, under the circumstances presented, the adoption of one's biological child from a gestational surrogate complies with the purpose of the adoption statute and should be permitted where, as in all adoption cases generally, the proposed adoption in the best interests of the child [FN3]. Our conclusion is consistent with legislation recently passed by both the State Senate and the State Assembly, and awaiting action by the Governor, which would amend Domestic Relations Law § 110 to explicitly provide that where an adoption petitioner's parentage is legally recognized under New York law, adoption should not be denied solely on the basis that such parentage is already legally recognized (see NY Senate Actions on 2019-2020 Senate Bill S3999; NY Assembly Actions on 2019-2020 Assembly Bill A460).