COURT DISCRETION IN CHILD CUSTODY

Most interesting is that the court appointed a forensic but did not appoint an attorney for the child.

Ambrose v Ambrose, 2019 NY Slip Op 07757, Decided on October 30, 2019, Appellate Division, Second Department:

"In making an initial custody determination, the paramount consideration is the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171; Cravo v Diegel, 163 AD3d 920, 921). "In determining the child's best interests, the court must consider, among other things, (1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires" (Rosenstock v Rosenstock, 162 AD3d 702, 703 [internal quotation marks omitted]). "Custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, and therefore, deference is accorded to the trial court's findings in this regard. Such findings will not be disturbed unless they lack a sound and substantial basis in the record" (Cravo v Diegel, 163 AD3d at 922 [citation omitted]). Here, the Supreme Court conducted a full trial in which it observed the demeanor and heard the testimony of, among others, the parties, the child's preschool teachers, the paternal grandfather, the maternal grandmother, and a court-appointed forensic evaluator. Based on our review of the record, the court's determination awarding sole custody to the plaintiff has a sound and substantial basis in the record and will not be disturbed (see Cole v Cole, 172 AD3d 680, 681; Matter of Quinones v Quinones, 139 AD3d 1072, 1074). Contrary to the defendant's contention, the record demonstrates that the court appropriately considered all relevant factors in making its determination (see Patanella v Keveney, 145 AD3d 686, 687).

We reject the defendant's additional contention that the Supreme Court failed to give appropriate consideration and weight to the report and testimony of the court-appointed forensic evaluator. "A court is not automatically required to accept the recommendation of a court-appointed forensic evaluator, but must consider all of the relevant evidence. Moreover, in considering a forensic evaluator's recommendation, the court must take into account the quality of the evaluator's methods and report" (Matter of Vaysman v Conroy, 165 AD3d 954, 955). In this case, the court fully explained its reasons for according little weight to the report and testimony of the forensic evaluator and its rationale is amply supported by the record (see Matter of Selliah v Penamente, 107 AD3d 1004, 1005; Matter of Kelly v Hickman, 44 AD3d 941, 942).

The defendant's contention that the Supreme Court should have appointed an attorney for the child is unpreserved and, in any event, without merit. "While appointment of an attorney for the child in a contested custody matter remains the strongly preferred practice, such appointment is discretionary, not mandatory" (Matter of Quinones v Quinones, 139 AD3d at 1074 [internal quotation marks omitted]; see Matter of Keen v Stephens, 114 AD3d 1029, 1031-1032; Jean v Jean, 59 AD3d 599, 600). Under the circumstances of this case, including the young age of the child and the absence of any demonstrable prejudice to the child's interests, the court providently exercised its discretion in not appointing an attorney (see Matter of Quinones v Quinones, 139 AD3d at 1074)."

120 DAYS AFTER COMMENCEMENT

CPLR 306-b provides: "Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause shall be made within one hundred twenty days after the commencement of the action or proceeding, provided that in an action or proceeding, except a proceeding commenced under the election law, where the applicable statute of limitations is four months or less, service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires.  If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service."

Nationstar Mtge., LLC v Wilson 2019 NY Slip Op 07595 Decided on October 23, 2019 Appellate Division, Second Department

"If service of the summons and complaint is not made upon a defendant within 120 days of commencement of the action, "the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service" (CPLR 306-b). " Good cause' and interest of justice' are two separate and independent statutory standards" (Bumpus v New York City Tr. Auth., 66 AD3d 26, 31; see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104). "To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service" (Bumpus v New York City Tr. Auth., 66 AD3d at 31; see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106). The interest of justice standard is a broader standard "to accommodate late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant" (Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105 [internal quotation marks omitted]). "The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties" (id.). "Under the interest of justice standard, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for an extension of time, and prejudice to defendant'" (Wells Fargo Bank v Figueroa, 171 AD3d 987, 989, citing Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105-106).

Here, the plaintiff failed to establish that it exercised reasonably diligent efforts in attempting to effect proper service upon Carbone, and thus failed to show good cause (see Wells Fargo Bank, NA v Barrella, 166 AD3d 711, 714; Hobbins v North Star Orthopedics, PLLC, 148 AD3d 784, 787-788). The first attempted service upon Carbone was made on October 30, 2014, at the property which is the subject of this foreclosure action. Carbone's answer raised the affirmative defense of improper service, and in his affidavit submitted in support of his motion to dismiss filed on February 2, 2015, this argument was set out in detail, in that Carbone asserted that he did not reside at the property address. Yet, Nationstar waited until February 20, 2015, the day before the expiration of the 120-day service period, to make a second attempt to serve Carbone at his residence, and notably this service was not completed within the 120-day period. Moreover, in regard to the second attempt at service, which the Supreme Court totally discredited, it cannot be said that the plaintiff exercised reasonable diligence in attempting service.

Further, the plaintiff failed to establish entitlement to an extension of time for service in the interest of justice. Even though Nationstar was on notice in April 2015—when Carbone moved to dismiss for the second time based on improper service, relying on the surveillance video [*3]recording of the process server—that the February 2015 service was defective, and even though a copy of the video was sent to counsel for Nationstar on February 26, 2016, Nationstar still waited until April 2016 to move for an extension of time to serve Carbone. The plaintiff's motion therefore was not made until one year after Carbone moved to dismiss, and 16 months after the expiration of the 120-day service period (see Jung Hun Cho v Bovasso, 166 AD3d 868, 870; Hourie v North Shore-Long Is. Jewish Health Sys., Inc.-Lenox Hill Hosp., 150 AD3d 707, 709). The facts that the action was timely commenced, that Carbone had actual notice of the action within the 120-day service period, and that the statute of limitations had expired by the time the plaintiff moved to extend the time to serve, militate in favor of granting the plaintiff's motion to extend the time to serve. However, these factors are outweighed by the lack of diligence evidenced by the Supreme Court's finding that the process server never served Carbone, despite the process server's affidavit claiming he did serve Carbone."

MARIJUANA IN THE LAW

Matter of Weiss v County of Nassau, 2019 NY Slip Op 07594, Decided on October 23, 2019, Appellate Division, Second Department:

"In 2013, the petitioner took the Police Service Aide Trainee Examination No. 3005. In June 2017, while her application for the position of Police Service Aide Trainee was pending, she applied to the Nassau County Civil Service Commission (hereinafter the Commission) for a position as a Crossing Guard. In connection with that application, the petitioner submitted a written statement dated October 24, 2017, disclosing, inter alia, that she had used marijuana "approximately 100 times or less between 2007 - 2015." The petitioner was subsequently hired as a Crossing Guard and has been employed in that capacity since November 17, 2017. Thereafter, in a letter dated March 1, 2018, the Commision notified the petitioner that it had determined that she was disqualified from eligibility for the position of Police Service Aide Trainee on the ground of "disrespect for the process of law and order as evidenced by her admitted use of an illegal substance after the examination." The petitioner pursued an administrative appeal, requesting that the Commission reconsider its determination. In a letter dated March 22, 2018, the Commission advised the petitioner that, on March 15, 2018, it conducted "a thorough review of all the materials submitted in connection with [her] disqualification" and "determined that the original notification of disqualification stands."

In July 2018, the petitioner commenced this proceeding pursuant to CPLR article 78 against the County of Nassau, Nassau County Police Department, and the Commission, alleging, among other things, that the Commission acted arbitrarily and capriciously in determining that she was not eligible for the position of Police Service Aide Trainee, yet hired her as a Crossing Guard. In a judgment entered September 21, 2018, the Supreme Court denied the petition and, in effect, [*2]dismissed the proceeding. The petitioner appeals.

" [I]n a proceeding seeking judicial review of administrative action, the court may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious'" (Matter of Rodriguez v County of Nassau, 80 AD3d 702, 703, quoting Flacke v Onondaga Landfill Sys., 69 NY2d 355, 363; see CPLR 7803[3]; Matter of Altman v Suffolk County Dept. of Civ. Serv., 165 AD3d 921, 922). Furthermore, "the Commission is afforded wide discretion in determining the fitness of candidates for appointment," and, as such, "[t]his Court will not interfere with the discretion of the Commission in determining the qualifications of candidates unless the decision was irrational and arbitrary" (Matter of Villone v Nassau County Civ. Serv. Commn., 16 AD3d 591, 592; see Matter of Rogan v Nassau County Civ. Serv. Comm., 91 AD3d 658, 658; Matter of Rodriguez v County of Nassau, 80 AD3d at 703; Matter of Bruen v Nassau County Civ. Serv. Commn., 294 AD2d 361, 361; Matter of Needleman v County of Rockland, 270 AD2d 423, 424). Contrary to the petitioner's contention, the Commission did not act arbitrarily or capriciously in disqualifying her from eligibility for the position of Police Service Aide Trainee based on her admitted drug use, notwithstanding that she was hired as a Crossing Guard, since those positions involved different duties and responsibilities (see Matter of Mullen v County of Suffolk, 43 AD3d 934, 935; Matter of Little v County of Westchester, 36 AD3d 616, 617; Matter of Verme v Suffolk County Dept. of Civ. Serv., 5 AD3d 498, 499; Matter of Havern v Senko, 210 AD2d 480, 481). Accordingly, we agree with the Supreme Court's determination to deny the petition and, in effect, dismiss the proceeding."

NOT A JURISDICTIONAL DEFECT

US Bank Nat'l Ass'n v. Tran, NYLJ October 16, 2019, Date filed: 2019-10-03, Court: District Court, Nassau, Judge: Judge Scott Fairgrieve, Case Number: LT-003391-19:

"Respondent states that RPAPL 713(5) requires that Respondents be served with a “certified deed” but a photocopy is legal. See Plotch v. Dellis, 60 Misc 3d, 1 (App Term, 2nd & 9th Jud Dist). Respondent states that an original certification of the deed must be filed with the court after service of the photocopy of same. Respondent avers that since Petitioner failed to file an original certification, this summary proceeding must be dismissed. This constitutes a jurisdictional defect.
…….

Petitioner contends that Plotch v. Dellis was concerned with two issues:

(1) Whether personal delivery of a certified copy of the deed is required?

(2) Does the copy of the certified deed served need to be an original, or does a copy suffice?

Petitioner states that it complied with the holding of Plotch by service of a certified copy of the certification of the deed by an attorney admitted to practice in New York pursuant to CPLR 2105. The method of service upon Thi Van Tran is not contested by Respondent. Petitioner contends that the holding of Plotch does not require a filing of an original certification. Thus, Petitioner concludes that no jurisdictional issue is involved. Any failure to file the original is a de minimis defect which can be cured by “Petitioner producing such original upon request of the court or the Respondent, or through production at trial.”
…….

This court agrees with Petitioner, that the failure to file the original certification of the deed pursuant to the requirements of CPLR 2105 is not a jurisdictional defect requiring dismissal.

In Plotch the Court held the following:

“This section of the CPLR requires that the attorney ‘subscribe’ the certificate. It is undisputed that petitioner’s attorney signed the original certification,1 that a photocopy was then made of that document, and that the photocopy was served on occupants. We find that this procedure comports with the requirements of CPLR 2105, for the reasons set forth out in Federal Natl. Mtge. Assn. v. Wagshcal (NYLJ, Jan. 31, 2011, at 33, col 4 [Civ Ct, NY County 2001]; but see Security Pac. Natl. Trust Co. v. Cuevas, 176 Misc 2d 846, 675 N.Y.S.2d 500 [1998]).

As can be gleaned from the above, service of the photostatic copy of the deed was upheld because the original certification of the deed by the attorney was filed with the Court.

In the case at bar, Petitioner failed to file the original certification.

Petitioner contends that it is not jurisdictional for its failure to file the original certification, and that it should be allowed to correct this mistake. Respondent counters that the failure to file the certification is jurisdictional mandating dismissal.

This court believes that the failure to file the original certification is not a jurisdictional defect and may be corrected by the Petitioner by filing the original certification.

In Hall v. Bray, 61 Misc 3d 921, 86 NYS 3d 393 (Bronx Co, Sup Ct, 2018), the plaintiff failed to file an affidavit of compliance and other documents required by Vehicle and Traffic Law Section 253. The defendant moved for summary judgment to dismiss the action because the failure to file the affidavit of compliance and other documents constituted a jurisdictional defect requiring dismissal of the action on statute of limitation grounds. The Court rejected the defendant’s argument that failure to file was jurisdictional. The Court held the failure to file the documents required by VTL §253 was a procedural irregularity and could be corrected by the filing of the documents.

“It is well settled that a statute permitting service of process other than by personal service must be strictly complied with in order to confer jurisdiction [over the defendant] upon the *927 court” (Air Conditioning Training Corp. v. Pirrote, 270 App Div 391, 393 [1st Dept 1946]). Vehicle and Traffic Law §253 is no exception (Bingham v. Ryder Truck Rental, 110 AD2d 867 [2d Dept 1985]). However, as observed by the Court in Air Conditioning Training Corp., ‘[t]here is…a difference between service and proof of service. One is a fact of which the other is the evidence’ (270 App Div at 393). Thus, the failure to file proof of service is a procedural irregularity — not a jurisdictional defect — and the court, employing CPLR 2004, may extend a plaintiff’s time to file such proof (First Fed. Sav. & Loan Assn. of Charleston v. Tezzi, 164 AD3d 758 [2d Dept 2018]; Khan v. Hernandez, 122 AD3d 802 [2d Dept 2014]; see Lancaster v. Kindor, 98 AD2d 300, 306 [1st Dept 1984] [delay in filing proof of service is mere procedural irregularity that may be corrected]). The filing of the proof of service does have an important (but non-jurisdictional) consequence: it pertains to the time within which a defendant must answer or move against the complaint (Lancaster v. Kindor, 98 AD2d at 306).

Generally, the case law regarding the failure to file proof of service addresses situations where a plaintiff did not file proof of service after effecting service under CPLR 308 (2) — deliver-and-mail — or 308 (4) — affix-and-mail. Both of those service provisions require an ‘affidavit of service’ to be filed by a plaintiff after the required service steps are taken. Service is deemed ‘complete’ 10 days after the filing of an affidavit of service; a defendant’s time to answer or move against the complaint runs from the completion of service (see CPLR 308 [2], [4]).

The affidavit of compliance called for by Vehicle and Traffic Law §253 is the equivalent of the affidavit of service required under CPLR 308 (2) and (4). The affidavit of compliance, like the affidavit of service, is evidence of service, not service itself (see generally Air Conditioning Training Corp. v. Pirrote, 270 App Div at 393). The name of the Vehicle and Traffic Law §253 affidavit makes that point plain: the ‘affidavit of compliance’ is designed to demonstrate that the plaintiff complied with the service steps laid out in the statute. Thus, plaintiff’s failure to file timely the affidavit of compliance did not constitute a jurisdictional defect. Similarly, plaintiff’s failure to file timely the certified-mailing envelope bearing the “unclaimed” notation and the certificate of mailing evidencing that plaintiff sent the process by ordinary mail did not constitute a jurisdictional defect (see Albrecht v. Gordon, 182 AD2d 1131 [4th Dept 1992]; see also Michaud v. Lussier, 6 AD2d 746 [3d Dept 1958] *928 [construing the predecessor statute to Vehicle and Traffic Law §253], affd 7 NY2d 934 [1960]; Johnson v. Bunnell, 8 AD2d 832 [2d Dept 1959] [same]).” See Navillus Tile, Inc. v. LC Main, LLC, 98 AD3d 979, 950 NYS2d 748 (2nd Dept 2012) wherein the Court granted the time to file an application for an extension of a lien nunc pro tunc where the application was timely filed but not presented to a judge until after the extension date pursuant to CPLR 2004.

Based upon the above, Respondent’s motion is denied. Plaintiff shall file the required original certification within 10 days of the date of this decision. Failure to file the original certification within 10 days shall result in dismissal of this proceeding."

A FAILURE TO REPORT CAR ACCIDENT EXCUSES COVERAGE

If you decide to file a claim, time may be of the essence

Matter of Progressive Direct Ins. Co. v Ostapenko, 2019 NY Slip Op 07586, Decided on October 23, 2019, Appellate Division, Second Department:

"The respondent, Irina Ostapenko, allegedly was injured when the vehicle she was driving was struck in the rear by another vehicle that then left the scene. The vehicle Ostapenko was driving was insured by the petitioner. Ostapenko filed a request for uninsured motorist arbitration. The petitioner commenced this proceeding, inter alia, to permanently stay arbitration. In an order dated August 7, 2018, the Supreme Court, among other things, in effect, denied that branch of the petition which was to permanently stay arbitration. The petitioner appeals.

The Supreme Court should have granted that branch of the petition which was to permanently stay arbitration. The subject insurance policy required the insured or someone acting on the insured's behalf to report the collision within 24 hours or as soon as reasonably possible to a "police, peace or judicial officer or to the Commissioner of Motor Vehicles." Ostapenko's failure to comply with this requirement in the absence of a valid excuse vitiates coverage (see Matter of Country-Wide Ins. Co. v Chaudry, 171 AD3d 1052; Matter of Geico Ins. Co. v Silverio, 171 AD3d 924; Matter of Government Empls. Ins. Co. v Baik, 94 AD3d 888, 889; Matter of Eagle Ins. Co. v Brown, 309 AD2d 749, 750; Matter of Interboro Mut. Indem. Ins. Co. v Napolitano, 232 AD2d 561, 562)."

THE HIGH COST OF LITIGATION AND RES JUDICATA/COLLATERAL ESTOPPEL

In this matter, a dispute over approximately $13,000 in legal fees has been litigated in 4 courts.

Kleinman v Weisman Law Group, P.C., 2019 NY Slip Op 07573, Decided on October 23, 2019, Appellate Division, Second Department:

"In 2013, the defendant Weisman Law Group, P.C. (hereinafter the defendant firm), commenced an action against the plaintiff to recover unpaid legal fees in the Nassau County District Court. The plaintiff asserted a counterclaim, alleging that he was overbilled by the defendant firm. A judgment was entered in favor of the defendant firm and against the plaintiff. The plaintiff appealed the judgment of the Nassau County District Court to the Appellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts, which affirmed the judgment (see Weisman Law Group, P.C. v Kleinman, 60 Misc 3d 133[A], 2018 NY Slip Op 51042[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). In 2016, the plaintiff commenced the instant action against the defendants asserting causes of action alleging, inter alia, breach of contract and legal malpractice.

The plaintiff contends that the doctrines of res judicata and collateral estoppel do not apply in the instant case, as the Nassau County District Court lacked subject matter jurisdiction over his counterclaim in the prior action. Contrary to the plaintiff's contention, the Nassau County District Court did have jurisdiction over his counterclaim pursuant to Uniform District Court Act § 208(b), as the counterclaim was for money only. The doctrine of res judicata precludes the plaintiff from litigating the claims set forth in his complaint, as a judgment on the merits exists in the prior action between the same parties involving the same subject matter (see Matter of Josey v Goord, 9 NY3d 386, 389; Matter of Hunter, 4 NY3d 260, 269). New York has adopted the transactional analysis approach to res judicata, so that once a claim is brought to a final conclusion, all other claims between the same parties or those in privity with them arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy (see Matter of Josey v Goord, 9 NY3d at 389-390; Matter of Hunter, 4 NY3d at 269; O'Brien v City of Syracuse, 54 NY2d 353, 357; Greenstone/Fontana Corp. v Feldstein, 72 AD3d 890, 893).

Furthermore, the plaintiff's causes of action are barred by the doctrine of collateral estoppel, which precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same (see Ryan v New York Tel. Co., 62 NY2d 494, 500; Williams v New York City Tr. Auth., 171 AD3d 990). The doctrine of collateral estoppel applies here, as the issues in both actions are identical, the issue in the prior action was actually litigated and decided, there was a full and fair opportunity to litigate the action, the issue previously litigated was necessary to support a valid and final judgment on the merits, and the defendant Rachel J. Weisman was in privity with the defendant firm (see Conason v Megan Holding, LLC, 25 NY3d 1, 17; Williams v New York City Tr. Auth., 171 AD3d at 991-992; Karimian v Time Equities, Inc., 164 AD3d 486)."

A NYC COURT ADDRESSES DEFAULT JUDGMENTS

Parkchester Pres. Co. v. Jobartech,  NYLJ October 22, 2019, Date filed: 2019-10-11,  Court: Civil Court, Bronx, Judge: Judge Brenda Rivera, Case Number: 1754-18:

"It is significant to note that the Civil Courts of the City of New York entered 41,671; 33,771; and 53,099 default judgments in 2016, 2017, and 2018 respectively. In the nearly three years that this Judge has presided over Civil Court cases, this Judge has ruled on hundreds of motions to vacate a default judgment and in NONE of those cases, did the Court inquire, nor did the Plaintiff provide evidence that the Defendant’s address was a proper address for service prior to granting the default judgment. The Plaintiff only presented the self-serving affidavit of the process server, who stays employed by successfully serving Defendants. Judges often rationalize that a Defendant can always move to vacate their default when service is improper. This rationale is prejudicial to the Defendant and wrongly places the burden on the Defendant who now has to move to vacate a default judgment and offer sufficient details before he can even get a traverse, when the default judgment should not have been granted in the first place. Oftentimes, a Defendant cannot afford to take time off from work to attend Court; may live in a different state and cannot afford to come to New York for numerous appearances to defend an action; or are simply lost, overwhelmed, ignorant, or intimidated with the Courts. Their inability to afford to take time off from work or to navigate through the bureaucratic process is unfairly prohibitive and denies access to justice to many Defendants.

There has been lot of discussion in the Courts and articles published about the lack of access to justice and the inordinate number of default judgments entered by the Civil Courts of the City of New York. Yet, a majority of the default judgments are wrongly granted by Judges and Inquest Clerks when they fail to require the Plaintiff to establish the proper address for the Defendant. An affidavit of service, without corroborating evidence, is insufficient. A Plaintiff must establish, with corroborating evidence in admissible form, that the address where the Defendant was served is a proper address under CPLR 308. To be clear, a request for change of address from the Postmaster merely containing a post office stamp, an Accurrint search, and a credit report inquiry is insufficient as they rely on hearsay information. In order to satisfy the exception to the hearsay rule, the contents of the report must be sworn to by an authorized employee, must provide information for the Court to assess the accuracy of the record proffered, and must meet the requirements of CPLR 4518, as it is well-settled that the evidence submitted in support of a default judgment must be in admissible form."

Also note in this case:

"CPLR §306-b requires that the Summons and the Complaint be served within 120 days of the filing of the Summons and Complaint. In the interest of justice or upon good cause shown, the Courts may grant an extension of time to serve the Summons and Complaint upon consideration of several factors: (1) the expiration of the statute of limitations, (2) the explanation given for the late service, (3) the promptness with which the Plaintiff sought judicial extension of the time to serve, (4) prejudice to the Defendant, (5) diligence in attempting service, and (6) principled and supported determinations as to what is just and equitable under all of the relevant facts and circumstances of a case. See generally, Hafkin v. North Shore University Hospital, 279 AD2d 86 (2nd Dept. 2000).

In the instant case, the Plaintiff waited 16 months after it missed the deadline for service of the Summons and Complaint to move for a judicial extension."

ONLY LIMITED DISCLOSURE OF DIGITAL ASSETS TO FIDUCIARY ABSENT A SPECIFIC DIRECTIVE

The better practice is, if it is your desire, to address disclosure of your full digital assets via a will, trust or other record. 

Estate of Murray, NYLJ October 21, 2019, Date filed: 2019-09-30. Court: Surrogate's Court, Suffolk, Judge: Surrogate Theresa Whelan, Case Number: 2018-1561/A:

"By this proceeding, petitioner, one of the duly appointed fiduciaries of the estate of this decedent, seeks an order granting her access to the account decedent maintained with Apple, Inc. so she can recover the personal data from the account. Jurisdiction has been obtained over those shown as necessary parties to this proceeding and no one has appeared in opposition to the relief requested by petitioner.

Decedent died on March 25, 2017 survived by his parents, Beatrice Murray and Michael Murray. Pursuant to decree dated May 7, 2018, decedent’s parents were appointed co-administrators of his estate and letters of administration issued accordingly.

Although both of decedent’s parents were issued letters of administration, the instant proceeding was commenced solely by Beatrice Murray. Petitioner asserts that when the decedent died, he was the user of an Apple iPhone 7 cell phone. The phone carrier assigned telephone number 631-6**-8*** to the device and an Apple ID was created using the email address P******12@gmail.com. The cell phone and presumably the account contains data associated with this Apple ID. Petitioner indicates that she was, and is, the owner of this cell phone, that decedent merely had permission to use the phone and that he was the only user of the Apple account associated with the aforementioned cell phone number and email address at the time of his death.

Petitioner is of the good faith belief that the data within the phone contains information in the form of telephone records, voice messages and text messages received and sent by the decedent which would assist in determining the source of drugs obtained by him. She indicates that information contained “in the data within the phone” as well as the contents of these electronic communications of the user is reasonably necessary for the administration of decedent’s estate. Thus, petitioner requests the disclosure of this data and electronic communications via access to the decedent’s Apple ID.
Upon information and belief, petitioner asserts that there are no other authorized users of this Apple iPhone 7 cell phone, using the telephone number 631-6**-8***. Further, petitioner asserts that under the facts of this case, no law, legal duty, or obligation, including, but not limited to any provision of state or federal law prohibits Apple from disclosing to petitioner the contents stored in decedent’s account.

Further, petitioner indicates that she submitted a written request to Apple, the custodian, to transfer ownership of the Apple ID and provide access to the data. Such request included a copy of the death certificate of her son, the user, and a copy of the letters of administration issued to petitioner. The custodian contacted petitioner and explained the procedure for transferring the Apple ID. A copy of the emails and text messages have been submitted in connection with this proceeding.

According to petitioner, a representative of Apple has indicated that Apple will continue with petitioner’s request to transfer ownership of the Apple ID to petitioner, which will allow access to the data from decedent’s cell phone, if a court order specifies that the decedent was the user of all accounts associated with the Apple ID, that the “requestor” (petitioner) is the legal representative of the decedent, that the requestor is the “agent” of the decedent and her authorization constitutes “lawful consent”, and that Apple is ordered by the court to assist in the recovery of decedent’s personal data from the Apple account (s).

Petitioner asserts that, as the duly appointed fiduciary, she is the legal personal representative of the decedent and that a court order would constitute “lawful consent” as those terms are set forth in the Electronic Communication Privacy Act (18 USC §§2510, et seq.) and the Stored Communications Act (18 USC §§2701, et seq.). Petitioner avers that under the circumstances presented, there is no state or federal law that prohibits disclosure of the contents stored in decedent’s account.
EPTL Article 13-A, which addresses access to digital assets, became effective in September of 2016. This article, as it relates to this proceeding, is applicable to an administrator acting for a decedent who died before, on or after its effective date (EPTL 13-A-2.1(a)(2)) and a custodian if the user resided in this state at the time of his death (EPTL 13-A-2.1(b)).

Pursuant to the relevant provisions of Article 13-A, where a user utilizes an “online tool”, which is a service provided by a custodian that permits a user to give directions for disclosure or nondisclosure of digital assets to a third party, such directive overrides a contrary directive contained in a will, trust, power of attorney or other record. Here, it is unclear whether Apple provides such tool or, if it is provided, whether decedent utilized it. It does not appear that decedent addressed disclosure of his digital assets via a will, trust or other record (EPTL 13-A-2.2 (b)).

Although no one has appeared in opposition to the requested relief, in this evolving area, the former surrogate of this county, John M. Czygier, Jr., expressed his concern regarding unintended consequences of permitting unfettered access to a deceased user’s digital assets (see Matter of White, NYLJ Oct. 3, 2017, at 25, col. 1). The undersigned acknowledges this concern and appreciates the delicate balance between a decedent’s right to privacy and a fiduciary’s duty to marshal estate assets.
Here, petitioner’s vague assertion that access to the content of the electronic communications held by Apple, Inc. as custodian is reasonably necessary to the administration of the estate is not supported by the record. Further, the Apple iPhone 7 that she claims ownership of is merely a portal for accessing the content and digital assets associated with a specific Apple ID. Absent from the record is an allegation supported by proof of a connection between the information petitioner seeks and the administration of this decedent’s estate. Rather, it appears that petitioner seeks the content of decedent’s electronic communications so she can conduct an investigation into facts and circumstances leading up to tragic loss of her son.

While the court is not unsympathetic to the concerns of petitioner and her desire to uncover the identities of those individuals she believes were, in part, responsible for the death of her son, she has not established a sufficient nexus to warrant granting the requested relief.

Further, the court notes that a distinction must be made between content based disclosure and non-content based disclosure with respect to a deceased user. Subject to other requirements, disclosure of content of electronic communications involves an affirmative act by the decedent whether online or via an instrument or document (EPTL 13-A-3.1), while disclosure of non-content based digital assets merely requires that the decedent did not prohibit the disclosure (EPTL 13-A-3.2).

Here, as it does not appear from the record that decedent prohibited disclosure of his digital assets, pursuant to EPTL 13-A-3.2, the court shall direct Apple, Inc. to disclose to petitioner solely the non-content information to wit: a catalogue of electronic communications sent or received by decedent and digital assets associated with decedent’s Apple ID, other than the content of electronic communications. In the event that greater access to this account appears warranted, the fiduciary may commence a new proceeding seeking same.

Based upon the foregoing the court finds that decedent was the user of the specific account associated with the subject Apple ID, that the petitioner is a duly appointed legal representative of this decedent, that disclosure of a catalogue of electronic communications sent or received by decedent and digital assets associated with subject Apple ID, other than the content of electronic communications, was not prohibited by decedent and does not require lawful consent under the EPTL Article 13 or the Stored Communications Act (18 USC §§2701, et seq.)"

NEW RULES - RETURN OF SECURITY DEPOSIT

The devil is in the detail.

Asquith v. REDEVELOP ALBANY, LLC, 2019 NY Slip Op 29295 - NY: City Court September 20 2019:

"With respect to the subject security deposit, the Court finds that defendant did not comply with the legal requirement that a landlord provide to a tenant who vacates an apartment a written statement itemizing the reasons for retaining all or a portion of the tenant's security deposit. General Obligations Law Section 7-108(1-e), which became effective on July 14, 2019, provides that:

"Within fourteen days after the tenant has vacated the premises, the landlord shall provide the tenant with an itemized statement indicating the basis for the amount of the deposit retained, if any, and shall return any remaining portion of the deposit to the tenant. If a landlord fails to provide the tenant with the statement and deposit within fourteen days, the landlord shall forfeit any right to retain any portion of the deposit."

It is undisputed that no such required itemized statement was given to plaintiff. The Court brought to the attention of Ms. Kelly during trial that the recently enacted law with respect to security deposits requires that written notification be given to a tenant within 14 days after the tenant has vacated the premises. When Empire did the move out inspection of the subject premises on August 5, 2019 (after the applicable statutory provision cited above took effect), an itemized statement was required to be provided to plaintiff by August 19, 2019, which was not done. Accordingly, pursuant to the General Obligations Law, defendant has forfeited the right to retain any portion of plaintiff's security deposit. Plaintiff's claim for the return of her $3525 security deposit is therefore granted."

WHAT IS LAP

LAP is the Lawyers Assistance Program of a Bar association.

Nassau County Bar Association Lawyer Assistance Program (LAP) offers assistance to lawyers, judges, law students and their family members who are struggling with alcohol or drug use, gambling and other addictions, depression, anxiety and stress, and other mental health issues. LAP also provides assistance with law office closings. LAP services are free and strictly confidential via Section 499 of the Judiciary Law and the Rule of Professional Conduct. LAP is completely independent of the grievance committees of the Appellate Division and Nassau County Bar Association.

For over 10 years, I have been an active member of Nassau County Bar Association Lawyer Assistance Program committee.

For more information, go to NCBA LAP

A JURISDICTIONAL DEFECT

Here the court discusses whether CPLR 2001 will cure a defect under CPLR 308.

Estate of Norman Perlman v Kelley, 2019 NY Slip Op 06475, Decided on September 11, 2019, Appellate Division, Second Department:

"The plaintiff commenced this action on December 31, 2015, by filing a summons and complaint. On January 21, 2016, the plaintiff filed an affidavit of service with the Kings County Clerk's Office, which stated that on January 14, 2016, service was effectuated upon the defendant pursuant to CPLR 308(2) by delivery of the summons and complaint to a paralegal who worked at the defendant's law office. The affidavit of service did not indicate that the summons and complaint had been mailed to the defendant. On or about March 17, 2016, the plaintiff moved for leave to enter a default judgment against the defendant. The affirmation of service attached to the motion papers stated, inter alia, that the plaintiff had mailed a "second copy" of the summons and complaint to the defendant on February 13, 2016. However, there is no evidence in the record that the plaintiff ever filed an affidavit of service with the Kings County Clerk's Office indicating that the summons [*2]and complaint had been mailed to the defendant. The defendant opposed the plaintiff's motion, contending, inter alia, that the motion was premature, and cross-moved pursuant to CPLR 3211(a) to dismiss the complaint. In an order dated February 22, 2017, the Supreme Court, inter alia, granted the defendant's cross motion to dismiss the complaint pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction. The plaintiff thereafter moved, inter alia, for leave to reargue his opposition to the defendant's cross motion. In an order dated June 15, 2017, the court, inter alia, granted reargument and, upon reargument, adhered to its original determination granting the defendant's cross motion. The plaintiff appeals.

CPLR 308(2) provides, in pertinent part, that personal service may be made upon a defendant by delivery of the summons upon "a person of suitable age and discretion at the actual place of business . . . of the person to be served and by . . . mailing the summons by first class mail to the person to be served at his or her actual place of business . . . , such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing whichever is effected later; service shall be complete ten days after such filing."

"Jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been strictly complied with'" (Josephs v AACT Fast Collections Services., Inc., 155 AD3d 1010, 1012, quoting Gray-Joseph v Shuhai Liu, 90 AD3d 988, 989; accord Munoz v Reyes, 40 AD3d 1059, 1059; Ludmer v Hasan, 33 AD3d 594, 594). "CPLR 308(2) requires strict compliance and the plaintiff has the burden of proving, by a preponderance of the credible evidence, that service was properly made" (Samuel v Brooklyn Hosp. Ctr., 88 AD3d 979, 980).

Here, the mailing of the summons to the defendant occurred more than 20 days after the delivery upon a person of suitable age and discretion. Additionally, the plaintiff never filed an affidavit of service with the Kings County Clerk's Office indicating that the mailing had been effectuated. Accordingly, the service of process upon the defendant did not comply with the strict requirements of CPLR 308(2), and the time for the defendant to serve an answer never began to run (see CPLR 3012).

Contrary to the plaintiff's contention, the delay in mailing was not a mere "technical infirmity" that may be overlooked by the court pursuant to CPLR 2001 (Ruffin v Lion Corp., 15 NY3d 578, 582 [internal quotation marks omitted]). "In deciding whether a defect in service is merely technical, courts must be guided by the principle of notice to the defendant—notice that must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections" (id. at 582 [internal quotation marks omitted]). As the Court of Appeals noted in Ruffin, a defendant's "actual receipt of the summons and complaint is not dispositive of the efficacy of service" (id. at 583). "For example, simply mailing the documents to defendant or e-mailing them to defendant's Web address would present more than a technical infirmity, even if defendant actually receives the documents, inasmuch as these methods in general introduce greater possibility of failed delivery" (id.).

A mailing sent within the wrong time frame, like a mailing sent by the wrong method (see id.; Brown v State of New York, 114 AD3d 632), increases the likelihood that a party will not receive proper notice of a legal proceeding. The first 20-day window set forth in CPLR 308(2) serves an important function. If the delivery and mailing required by that statute are not made within a short time of one another, there is a greater likelihood that one or both sets of pleadings will be mislaid, or, at the very least, that confusion will arise as to how much time the defendant has to respond—both of which appear to have occurred here. Further, the requirement that an affidavit of service be filed within 20 days of the delivery or mailing, whichever is effected later, also serves an important function. Timely filing of the affidavit of service is designed to give notice as to the plaintiff's claim of service and permit the defendant to calculate the time to answer. Where the affidavit of service claims that delivery but not mailing occurred within the 20-day period, yet the plaintiff intends to later claim that a timely mailing did occur, additional confusion is created, a defendant may be prejudiced by reliance upon the publicly filed affidavit which only partially [*3]disclosed the plaintiff's claim of service, and such prejudice may preclude the prospect that the failure to file the affidavit could be cured (cf. Khan v Hernandez, 122 AD3d 802, 803).

We therefore agree with the Supreme Court's determination that the plaintiff's failure to comply with the delivery and mailing requirements of CPLR 308(2) in the time prescribed by the statute was a jurisdictional defect, and that the plaintiff's late mailing of the summons and complaint after the statutory time period did not cure the defect in service. The plaintiff's remaining contentions are without merit. Accordingly, we agree with the court's determination, upon reargument, to adhere to its prior determination granting the defendant's cross motion to dismiss the complaint for lack of personal jurisdiction."

PERSONAL LIABILITY OF MANAGEMENT UNDER NYC HUMAN RIGHTS LAW

Doe v Bloomberg, L.P., 2019 NY Slip Op 06728, Decided on September 24, 2019, Appellate Division, First Department Kern, J.:

"The City HRL imposes strict liability on an "employer" for the discriminatory acts of the employer's managers and supervisors (see Administrative Code of the City of New York § 8-107[13][b][1]; Zakrzewska v New School, 14 NY3d 469, 480-481 [2010])[FN2]. Specifically, Administrative Code § 8-107(13)(b) provides:

"An employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of subdivision 1 or 2 of this section only where:

(1) The employee or agent exercised managerial or supervisory
responsibility . . . ."

However, the statute does not provide a definition of "employer" and the legislature has not provided guidance as to how "employer" should be defined under the statute. The legislature has also not provided guidance as to when an individual, in addition to the corporate employer, may be held strictly liable under the statute.

The Court of Appeals has held that section 8-107(13)(b)(1) of the Administrative Code holds corporate employers strictly liable for the discriminatory acts of their managers and supervisors (see Zakrzewska, 14 NY3d at 469). Additionally, pursuant to the plain language of the statute, where the only employer is an individual and there is no corporate employer, the individual may be held strictly liable for the discriminatory acts of his or her managers and supervisors as such individual is the only possible employer under the statute. However, the Court of Appeals has never addressed the issue of when an individual, in addition to the corporate employer, may be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code. Based on a review of the cases that have addressed the issue, we find that in order to hold an individual owner or officer of a corporate employer, in addition to the separately charged corporate employer, strictly liable under section 8-107(13)(b)(1) of the Administrative Code, a plaintiff must allege that the individual has an ownership interest or has the power to do more than carry out personnel decisions made by others and must allege that the individual encouraged, condoned or approved the specific conduct which gave rise to the claim.[FN3]
This Court has twice explicitly addressed the issue of when an individual may be held strictly liable, in addition to the corporate employer, under section 8-107(13)(b)(1) of the Administrative Code, and held that an individual will be held strictly liable under the statute if he or she encouraged, condoned or approved the specific discriminatory behavior alleged in the complaint. In Boyce v Gumley-Haft, Inc. (82 AD3d 491, 492 [1st Dept 2011]), this Court denied summary judgment to the individual owner of the corporate employer under section 8-107(13)(b)(1) of the Administrative Code because there were issues of fact as to whether he "encouraged, condoned or approved" the specific discriminatory conduct alleged by the plaintiff (82 AD3d at 492). This Court reiterated this standard in McRedmond v Sutton Place Rest. & Bar, Inc. (95 AD3d 671, 673 [1st Dept 2012]), a case in which we denied summary judgment to the individual officers of the corporate employer under section 8-107(13)(b)(1) of the Administrative Code because there were issues of fact as to whether they condoned or participated in the discriminatory conduct complained of by the plaintiff.

All of the federal cases cited by the parties which have addressed the specific issue before us now have also held that an individual will only be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code if he or she participated, in some way, in the specific discriminatory conduct alleged in the complaint (see Marchuk v Faruqi & Faruqi, LLP, 100 F Supp 3d 302, 309 [SD NY 2015] [a plaintiff must establish "at least some minimal culpability on the part of (the company's individual shareholders)" in order to hold them liable as employers under the City HRL]; Zach v East Coast Restoration & Constr. Consulting Corp., 2015 WL 5916687, *1, 2015 US Dist LEXIS 138334, *1 [SD NY 2015] [denying plaintiff's motion to add the president of the corporate employer as an individual defendant under the City HRL because the proposed amended complaint failed to "allege any knowledge, participation, or involvement whatsoever" in the discriminatory conduct detailed in the complaint]; Burhans v Lopez, 24 F Supp 3d 375, 385 [SD NY 2014] [allowing plaintiffs' claims to proceed against the individual defendant as an employer under the City HRL on the ground that plaintiffs "sufficiently allege that (the individual defendant) was personally involved in the conduct in question"]).[FN4]

We note that the legislative history of section 8-107(13)(b)(1) does not address whether an individual owner or officer of a corporate employer may be held strictly liable, in addition to the corporate employer, absent a finding of culpability on the part of the individual. However, holding an individual owner or officer of a corporate employer liable under the City HRL as an [*3]employer, without even an allegation that the individual participated, in some way, in the specific conduct that gave rise to the claim, would have the effect of imposing strict liability on every individual owner or high-ranking executive of any business in New York City. The City HRL is not so broad that it imposes strict liability on an individual for simply holding an ownership stake or a leadership position in a liable corporate employer.

Moreover, interpreting section 8-107(13)(b)(1) of the Administrative Code to impose liability on an owner or officer of a corporate employer in his or her individual capacity without any inquiry into his or her personal participation in the conduct giving rise to the claim would be inconsistent with the principles underlying this State's corporate law (see Marchuk, 100 F Supp 3d at 309). "The law permits the incorporation of a business for the very purpose of enabling its proprietors to escape personal liability" (Walkovszky v Carlton, 18 NY2d 414, 417 [1966]). Indeed, a corporate owner or officer may be held individually liable for a tort committed by the corporation but only if the corporate officer or owner "participates in the commission of [the] tort" (American Express Travel Related Servs. Co. v North Atl. Resources, Inc., 261 AD2d 310, 311 [1st Dept 1999]). Moreover, a plaintiff who attempts to pierce the corporate veil and hold a corporate officer or owner liable for an obligation of, or a wrong committed by, the corporation must show complete domination of the corporation and that "the [individual], through [his] domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against [the plaintiff]" (Matter of Morris v New York State Dept. of Taxation and Fin., 82 NY2d 135, 142 [1993]). Thus, some participation in the specific conduct committed against the plaintiff is required in order to hold an individual owner or officer of a corporate employer personally liable in his or her capacity as an employer.

Based on the foregoing, we find that plaintiff's City HRL claims must be dismissed as against Mr. Bloomberg because plaintiff has failed to sufficiently allege that Mr. Bloomberg is her employer for purposes of the City HRL. She has failed to allege that Mr. Bloomberg encouraged, condoned or approved the specific discriminatory conduct allegedly committed by Mr. Ferris."

WHEN A CHILD ADMITS MOM OR DAD TO A NURSING FACILITY

Here the son was sued by the facility in the principal amount of $44,210.11 for room, board, and skilled nursing care services which it provided to the defendant's mother from January 29, 2010 through August 31, 2010. An admission agreement was signed by the defendant as "responsible party" and plaintiff claimed a breach by defendant's "failing to pay the moneys due toward the cost of his mother's care at the facility from his mother's assets and resources; to the extent those assets and resources may have been insufficient to cover the cost of her care, the plaintiff claims that the defendant breached the terms of the admission agreement by failing to timely file for Medicaid, leaving a gap in coverage for which the plaintiff has not been compensated."

JOPAL AT ST. JAMES, LLC v. Manning, 2019 NY Slip Op 32720 - NY: Supreme Court, Suffolk County, September 5, 2019:

"While a nursing facility may not require a third-party guarantee of payment to the facility as a condition to admission or a continued stay in the facility, it may, as here, require an individual who has legal access to a resident's income or resources to provide payment from such income or resources, without incurring personal liability (see 10 NYCRR § 415.3[b][1], [6]).

The plaintiff established its prima facie entitlement to summary judgment on its cause of action for breach of contract by demonstrating that the defendant accepted personal responsibility to utilize his access to his mother's funds to pay for her care, and then breached his contractual obligation by failing to apply available assets toward her care (see Troy Nursing & Rehabilitation Ctr. v Naylor, 94 AD3d 1353, 944 NYS2d 323, lv dismissed 19 NY3d 1045, 954 NYS2d 6 [2012]). The defendant, in opposition, failed to raise a triable issue of fact. The record, however, does not reveal the amount of his mother's funds to which he had access prior to her death. Irrespective of whether the defendant may also have failed to comply with his Medicaid obligations, he is liable only to the extent that her assets would cover outstanding payments owed to the plaintiff (see Prospect Park Nursing Home v Goutier, 12 Misc 3d 1192[A], 824 NYS2d 770 [2006]). Accordingly, the plaintiff is entitled to summary judgment, albeit only on the issue of liability (see Troy Nursing & Rehabilitation Ctr. v Naylor, supra; cf. Presbyterian Home for Cent. NY v Thompson, 136 AD3d 1421, 25 NYS3d 513 [2016]), and the defendant's cross motion—which is addressed solely to the cause of action for breach of contract, notwithstanding the breadth of relief requested in the notice of cross motion—is correspondingly denied."

GETTING EXTENSION OF STAY TO VACATE FOR EXTREME HARSHIP UNDER NEW TENANT LAW

N.Y.C. Hous. Auth. v. Jones Jr.,  NYLJ October 09, 2019, Date filed: 2019-09-25, Court: Civil Court, New York, Judge: Judge Timmie Erin Elsner, Case Number: 15234/18:

"Upon the foregoing papers, the Decision/Order of this Court is as follows: Respondents’ order to show cause is granted to the following extent: It is undisputed that respondents have been paying ongoing use and occupancy. The issue before the court is whether, pursuant to the amendments to RPAPL Section 753 enacted as part of the Housing Stability and Tenant Protection Act of 2019, the court can extend a stay which afforded respondents five months to vacate.
As set forth in RPAPL Section 753, the court can stay issuance [execution] of a judgment and warrant for a period of up to one year if it would “occasion extreme hardship to the applicant or the applicant’s family if the stay were not granted. In determining whether refusal to grant a stay would occasion extreme hardship, the court shall consider serious ill health, significant exacerbation of an ongoing condition, a child’s enrollment in a local school, and any other extenuating life circumstances affecting the ability of the applicant or the applicant’s family to relocate and maintain quality of life. The court shall consider any substantial hardship the stay may impose on the landlord in determining whether to grant the stay in setting the length or other terms of the stay.”

In this instance, respondent Cherity Wilson suffers from ovarian cancer. She has also been diagnosed with breast cancer. She is undergoing radiation three days per week and chemotherapy two days per week. These treatments are expected to continue for approximately three months. Ms. Wilson also suffers from a blood-clotting disorder which complicates her treatment. The respondents have three children, two of whom are nine and one who is eight. They are attending school in the area nearby the premises. Ms. Wilson has advised the court of the after-effects of radiation and the court believes these treatments increase the level of responsibility Mr. Jones has in caring not only for Ms. Wilson but also their children as Ms. Wilson is incapacitated following treatment.

It is also obvious to the court that treatment along with the uncertainty attendant with respondent’s complicated medical history places an incredible level of stress on this family’s emotional and potentially financial resources. Petitioner, on the other hand, is an institutional landlord who would suffer no hardship if respondents were allowed to remain in the premises for a substantial time period. Respondents are paying ongoing use and occupancy and their presence does not affect their neighbors in a negative way.

Respondents’ request for an extended stay is of the exact nature the amendments to the statute were enacted to address. It is uncontroverted that the court’s failure to extend a stay would cause an extreme hardship to respondents. Based upon the foregoing, execution of the judgment and warrant are stayed though January 31, 2020 to allow respondent Cherity Wilson to complete medical treatment. In the event respondents do not vacate, a notice of eviction may be served subsequent to the default. Respondents are to pay ongoing use and occupancy each month. APS [New York City Adult Protective Services] is to be notified prior to any eviction.

Petitioner is ordered to provide respondents who were deemed licensees of the former tenant of record with information on application for NYCHA housing and to place them on a priority list for such housing if they qualify for same. Said information must be supplied by October 15, 2019."

DESPITE'S MOM WRONGFUL ACCUSATIONS, CUSTODY REMAINS WITH HER - PART 2

Now the court deals with healing the strained relationship between the father, who was false accused of abuse, and the children. To get a better idea of the severity of the false accusations by the mother and some of her behavior which occurred during the trial, read the factual portion of this case.

L.S. v. E.C., NYLJ October 04, 2019,  Date filed: 2019-09-03,  Court: Family Court, Bronx Judge: Judge Ariel Chesler, Case Number: 199451:

"It is well settled that non-custodial parents have a right to visitation with their children, that such visitation is a joint right of the noncustodial parent and children, and that the noncustodial parent plays a valuable role in guiding and loving their children. (See Weiss v. Weiss, 52 NY2d 170, 175 [1981]). F.S.’s attorney advocates for continued visits with his father graduating to unsupervised and liberal visits. F.S.’s attorney also suggests that both children visit with their father together. A.S.’s attorney takes no specific position regarding visitation.
The evidence establishes that the children and father share a bond, and that despite everything that has occurred, the children exhibit resilience and a love for their father. Once supervised visits became more consistent it was evident both children enjoyed their time with their father and benefit from having him in their lives.

The welfare of the children, which is paramount, requires more visitation and contact with their father who will play a significant and meaningful role in their lives going forward. Indeed, as is demonstrated by the recent CFS reports, the more regular contact that occurs between the father and his children the more their relationship has improved. The CFS reports show that the children look forward to the visits, exhibit no trouble separating from their mother, enjoy their time with their father, show him affection and receive love from him, are upset when the visits end and, more so, at the prospect of lost visits. Time with their father is both meaningful and beneficial to the children.

As previously noted, Dr. Pino recommended therapeutic supervised visitation between A.S. and the father so they can develop a safe, comfortable, and healthy relationship and repair the rupture in their relationship. Dr. Pino stressed that the father should develop realistic ideas about reunification with A.S. She noted that the repair of the relationship may be a gradual and prolonged process. On the other hand, no similar therapeutic visits are recommended for F.S.

While the Court accepts Dr. Pino’s conclusion that the repair of the relationship between the father and A.S. will take time, and that therapeutic visits between A.S. and the father would be appropriate, the Court declines to order only supervised visitation between the father and his children at this time. Supervised visitation has already been taking place between the father and children since March 2019 and has gone very well. Nor is there any asserted need for therapeutic visits for F.S.

Moreover, it is noted that supervised visitation was initially ordered in 2016 and the father’s relationship with his children would be in a very different posture in 2019 had such visits been regularly held between 2017 and 2019. This Court will not reward the mother’s noncompliance with Court ordered visitation by further delaying reunification between the father and his children.

The proper course of action to restore the children’s relationship with their father is therapeutic visits between the father and A.S., and, in light of all the circumstances in this case, unsupervised time for the father with both children. Ultimately, the children should have a visitation schedule with the father which will graduate to liberal and unsupervised parenting time.

Accordingly, the Court orders A.S. to enroll in weekly therapeutic visitation with the father through Comprehensive Family Services. In addition, commencing September 8, 2019 the father shall have unsupervised visitation with both children on alternate Sundays from 10 AM until 4 PM until further order of the Court. The father shall also have phone access with the children every Tuesday and Thursday evening. The parties may modify this schedule on mutual consent in writing.

It is the order of the Court that visitation between the father and the children must continue and expand toward liberal, unsupervised and overnight visits, as well as vacation, holiday, and summer access. All counsel are to submit to the Court proposed visitation schedules, accounting for a graduated schedule toward liberal overnight parenting time of both children with their father."