DEFAULT VACATED AFTER 6 WEEKS AFTER TIME TO ANSWER EXPIRED

Thousands of dollars in legal fees and costs could have been saved if an Answer was timely served....but this case did have a happy ending so far for the defendant.

P&H Painting, Inc. v Flintlock Constr. Servs., LLC, 2020 NY Slip Op 00603, Decided on January 29, 2020 ,Appellate Division, Second Department

"On or about August 3, 2017, the plaintiff, a subcontractor, commenced this action against the defendant, a general contractor, to recover damages for, among other things, breach of contract. According to the affidavits of service, the plaintiff served the defendant on August 7, 2017, by delivering copies of the summons and complaint to the Secretary of State and by sending a copy of the summons and complaint to the defendant by first-class mail on August 15, 2017. The defendant's time to answer expired on or about September 6, 2017.

On or about September 26, 2017, the plaintiff moved for leave to enter a default judgment, and on October 5, 2017, a default judgment was entered. Less than two weeks later, the defendant moved pursuant to CPLR 317 and 5015(a) to vacate the default judgment and to compel the plaintiff to accept its late answer. The Supreme Court denied the defendant's motion, and the defendant appeals.

Although the general rule is that in order to vacate a default, a party must demonstrate a reasonable excuse for the default and a potentially meritorious defense (see CPLR 5015[a][1]), the sufficiency of an excuse is not as significant where the default is only a short period (see Vallario v 25 W. 24th St. Flatiron, LLC, 149 AD3d 791, 792-793; Chakmakian v Maroney, 78 AD3d 1103, 1104).

Here, the less than six-week delay between when the defendant's time to answer expired and when the defendant moved to vacate the default judgment is brief, and the plaintiff does not allege that the defendant's default was intentional or part of a pattern of neglect (see Vallario v 25 W. 24th St. Flatiron, LLC, 149 AD3d at 793). Moreover, in light of the lack of prejudice to the plaintiff resulting from the defendant's short delay in appearing and seeking to answer the complaint, the existence of a potentially meritorious defense, and the strong public policy favoring resolution of cases on the merits, the Supreme Court should have granted the defendant's motion to vacate its default and to compel the plaintiff to accept the late answer (see Merchants Ins. Group v Hudson Val. Fire Protection Co., Inc., 72 AD3d 762, 764)."

MORTGAGE FORECLOSURE - RPAPL 1304 DEFENSE AVAILABLE FOR HOME LOANS ONLY

Would there have been a different resolution if the borrower had lived in one of the units? Here the court implies it might have held differently.

Vanderbilt Mtge. & Fin., Inc. v Ammon, 2020 NY Slip Op 00638, Decided on January 29, 2020, Appellate Division, Second Department:

"RPAPL 1304(1) provides, in pertinent part, that, "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower . . . , [the] lender . . . or mortgage loan servicer shall give notice to the borrower." "[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106; see CitiMortgage, Inc. v Pappas, 147 AD3d 900, 901; Flagstar Bank, FSB v Damaro, 145 AD3d 858, 860).

In support of its motion, inter alia, for summary judgment on the complaint insofar as asserted against Glenda Ammon, Vanderbilt failed to establish, prima facie, its strict compliance with RPAPL 1304. However, in its reply papers and on its motion, inter alia, for leave to renew, Vanderbilt demonstrated that RPAPL 1304 was inapplicable in this case because the subject loan was not a "home loan" as defined by the statute. Although generally, "[a] party moving for summary judgment cannot meet its prima facie burden by submitting evidence for the first time in reply, and generally, evidence submitted for the first time in reply papers should be disregarded by the court" (Wells Fargo Bank, N.A. v Osias, 156 AD3d 942, 943-944 [internal quotation marks omitted]), this Court has held that "the specific contention that this mortgage loan was not a home loan' for purposes of RPAPL 1304 may be reached because it involves a question of law that is apparent on the face of this record and could not have been avoided by the court if it had been brought to its attention" (HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822, 824; see Stassa v Stassa, 123 AD3d 804, 806; 126 Newton St., LLC v Allbrand Commercial Windows & Doors, Inc., 121 AD3d 651, 652; cf. U.S. Bank N.A. v Beymer, 161 AD3d 543, 543-544).

On the merits, the record reflects that this was not a "home loan" subject to the notice requirements of RPAPL 1304 (see RPAPL 1304[6]; Wells Fargo Bank, N.A. v Berkovits, 143 AD3d 696, 697). The purpose of the subject loan was a refinancing of a multi-unit rental/investment property, and Glenda Ammon resided elsewhere. Accordingly, compliance with RPAPL 1304 was not required with regard to the subject loan."

AN EASEMENT GROWS IN BROOKLYN

Aboulissan v Kingsland 79, LLC, 2020 NY Slip Op 00393, Decided on January 22, 2020, Appellate Division, Second Department:

"In 1986, the plaintiff purchased real property located at 241 79th Street in Brooklyn. In 1987, the owner of the adjacent property located at 237 79th Street abandoned that property, and in 2012, the City of New York demolished the house on it. In 2016, the defendant Kingsland 79, LLC (hereinafter the defendant), purchased 237 79th Street from the prior owner, erected a fence around the property, and began construction of a new home.

The plaintiff, who allegedly had been using the driveway of 237 79th Street to access the rear of his property since 1991, commenced this action seeking, inter alia, a judgment declaring that the previous owner of 237 79th Street had given him an express easement over the driveway or, alternatively, declaring that he had obtained a prescriptive easement. Thereafter, the plaintiff moved, inter alia, for summary judgment declaring that he has a prescriptive easement over the driveway, and the defendant cross-moved, among other things, in effect, for summary judgment declaring that the plaintiff does not have an express easement or a prescriptive easement over the driveway.
In an order dated April 20, 2017, the Supreme Court granted that branch of the defendant's cross motion which sought relief with respect to the cause of action alleging an express easement. However, it found that there was a triable issue of fact as to whether the plaintiff had established an easement by prescription. The court denied that branch of the plaintiff's motion which was for summary judgment declaring that he has a prescriptive easement and that branch of the defendant's cross motion which was, in effect, for summary judgment declaring that the plaintiff does not have a prescriptive easement. The defendant appeals from so much of the order as denied that branch of its cross motion.

" To acquire an easement by prescription, it must be shown that the use was hostile, open and notorious, and continuous and uninterrupted for the prescriptive period of 10 years'" (Ciringione v Ryan, 162 AD3d 634, 634, quoting Masucci v DeLuca, 97 AD3d 550, 551; see DiDonato v Dyckman, 166 AD3d 942, 944; Carty v Goodwin, 150 AD3d 812; Colin Realty Co., LLC v Manhasset Pizza, LLC, 137 AD3d 838, 839). " In general, where an easement has been shown by clear and convincing evidence to be open, notorious, continuous, and undisputed, it is presumed that the use was hostile, and the burden shifts to the opponent of the allegedly prescriptive easement to show that the use was permissive'" (Ciringione v Ryan, 162 AD3d at 634, quoting Carty v Goodwin, 150 AD3d at 812; see Colin Realty Co., LLC v Manhasset Pizza, LLC, 137 AD3d at 840; 315 Main St. Poughkeepsie, LLC v WA 319 Main, LLC, 62 AD3d 690, 691).

Although for a plaintiff to acquire an easement by prescription, it must be shown that the plaintiff's use of the burdened property is hostile (see Glennon v Mayo, 221 AD2d 504, 505) and was not "permitted as a matter of willing accord and neighborly accommodation" (315 Main St. Poughkeepsie, LLC v WA 319 Main, LLC, 62 AD3d at 691; see Colin Realty Co., LLC v Manhasset Pizza, LLC, 137 AD3d at 840), "[h]ostility does not require a showing of enmity or specific acts of hostility . . . . All that is required is a showing that the [use] constitutes an actual invasion of or infringement upon the owner's rights" (Mispalleleh Beis Medresh Torah Vadaas v Yeshivath Kehilath Yakov, Inc., 89 AD3d 700, 701 [internal quotation marks omitted]). Here, we agree with the Supreme Court's determination that the parties' submissions raised a triable issue of fact as to whether the plaintiff obtained an easement by prescription.

Contrary to the defendant's contention, the plaintiff was permitted to seek the alternative remedies of an express easement and a prescriptive easement (see Mitchell v New York Hosp., 61 NY2d 208, 218; 159 MP Corp. v Redbridge Bedford, LLC, 160 AD3d 176, 193, affd 33 NY3d 353; Gold v 29-15 Queens Plaza Realty, LLC, 43 AD3d 866, 867; West Park Assoc., Inc. v Cohen, 43 AD3d 818, 819)."

WHEN A JUDGMENT IS ISSUED BASED ON AN IMPROPERLY SERVED MOTION

MTGLQ Invs., L.P. v White, 2020 NY Slip Op 00269, Decided on January 15, 2020, Appellate Division, Second Department:

"In October 2014, Ocwen moved, inter alia, for summary judgment on the complaint insofar as asserted against White, to strike his answer, and for an order of reference (hereinafter the summary judgment motion). By order dated June 25, 2015, the Supreme Court granted the unopposed summary judgment motion. In April 2017, following additional assignments of the mortgage, the new holder, MTGLQ Investors, L.P. (hereinafter the plaintiff), moved, inter alia, for a judgment of foreclosure and sale. White opposed the motion, asserting, inter alia, that he never received the summary judgment motion. The court granted the motion and entered an order and judgment of foreclosure and sale on October 25, 2017. White appeals.

"The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void" (Citimortgage, Inc. v Reese, 162 AD3d 847, 848; see Wells Fargo Bank, N.A. v Whitelock, 154 AD3d 906, 907; Nationstar Mtge., LLC v Chase, 147 AD3d 964, 965). White's opposition to the plaintiff's motion, inter alia, for a judgment of foreclosure and sale included his attorney's affirmation, wherein his attorney stated that the attorney never received the summary judgment motion. In reply, the plaintiff did not submit an affidavit of service or other proof of service demonstrating that the summary judgment motion had been served on White's counsel. The plaintiff's assertions are insufficient to raise a presumption that White was served with the summary judgment motion (see Davis v New York City Hous. Auth., 172 AD3d 815, 817, Berkowitz v Tolentino, 94 AD3d 797, 797; Bonik v Tarrabocchia, 78 AD3d 630, 632; cf. Tsikotis v Pioneer Bldg. Corp., 96 AD3d 936, 936). At the time White's attorney brought to the Supreme Court's attention that the attorney had not received the motion for summary judgment and, in response, the plaintiff failed to submit any proof of service of the motion, the court was presented with evidence that the order dated June 25, 2015, was a nullity (see Prudence v Wright, 94 AD3d 1073, 1074). Under such circumstances, there was never a default in opposing the motion for summary judgment, and thus, there was no need for White to demonstrate a reasonable excuse or a potentially meritorious opposition to the motion (see Wells Fargo Bank, N.A. v Whitelock, 154 AD3d at 907). Accordingly, the Supreme Court should have denied the plaintiff's motion, inter alia, for a judgment of foreclosure and sale and vacated so much of the order dated June 25, 2015, as granted the summary judgment motion (see Citimortgage, Inc. v Reese, 162 AD3d at 848; Wells Fargo Bank, N.A. v Whitelock, 154 AD3d at 907; Nationstar Mtge., LLC v Chase, 147 AD3d at 965)."

CONTRACT NOT TO DISCLOSE EXTRAMARITAL AFFAIR

Is a plaintiff's attempt to enforce an agreement to keep silent about an extramarital affair in exchange for money illegal? We have heard about similar cases in the news and in this recent matter, the Southern District of New York addresses the issue. NOTE: The decision has the name changed to Plaintiff and Defendant as a curtesy to counsel of one of the parties and is posted here as modified by said counsel.

NAME DELETED AS CURTESY, Plaintiff, v. NAME DELETED AS CURTESY, Defendant., No. 19 Civ. 1546 (PAE),  United States District Court, S.D. New York, January 21, 2020:

"Defendant argues that Plaintiff's breach of contract claim is independently deficient because the agreement that Plaintiff posits would be illegal. Illegal agreements "are, as a general rule, unenforceable" in a breach of contract action. Lloyd Capital Corp. v. Pat Henchar, Inc., 80 N.Y.2d 124, 127 (1992). "It is the settled law of [New York] (and probably every other State) that a party to an illegal contract cannot ask a court of law to help him carry out his illegal object." State v. Freeman, 298 N.Y. 268, 271 (1948).

Here, Defendant argues that the agreement alleged by the Complaint is illegal because, on the facts pled, it is the product of extortion by Plaintiff. See Def. Mem. at 11. Under New York law, a person commits extortion if she compels or induces another to transfer property to her by instilling in that person a fear that if the property is not delivered, the actor or someone working with her will "[e]xpose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule." N.Y. Penal Law § 155.05(2)(e)(v). Attempted extortion is also a crime. See id. § 110.00. In cases involving contracts found to be extortionate, New York courts have dismissed claims of breach, on the grounds that such contracts are illegal and unenforceable. See Yao v. Bult, 666 N.Y.S.2d 159, 160 (1st Dep't 1997).

Critically here, an element of extortion is a threat, from the person seeking the property, that she will expose the controversial secret or fact. See People v. Dioguardi, 8 N.Y.2d 260, 269 (1960); see also N.Y. Penal Law § 155.05(2)(e)(v). Such a threat can be implied, as opposed to explicit. See Kraft Gen. Foods, Inc. v. Cattell, 18 F. Supp. 2d 280, 285 (S.D.N.Y. 1998); People v. Kacer, 448 N.Y.S.2d 1002, 1007 (Sup. Ct., N.Y. County 1982).

The parties disagree about whether the Complaint and attached exhibits demonstrate that Plaintiff threatened Defendant, as required to find extortion. Defendant argues that the Complaint and the accompanying Demand Letter support such a threat: In his framing, Plaintiff demanded $500,000 from him, implying that she might otherwise disclose their longstanding affair and the child's paternity. See Def. Mem. at 11; Def. Reply at 5 (citing Demand Ltr. at 3). As Defendant notes, Plaintiff, after the child learned about Defendant's likely paternity, wrote: "You thought. . . no one would find out and there never would be consequences." Sept. 17, 2018 Ltr. at 1. Plaintiff counters that, based on the Complaint and the documents attached to it, the condition that Plaintiff remain silent was introduced by Defendant, and that, viewing the pleadings in the light most favorable to Plaintiff, she did not threaten, explicitly or implicitly, to disclose these damaging facts. See Pl. Mem. at 7-8.

The Court regards this question as close. Favoring Defendant's reading, New York courts have held that agreements involving payments to induce a party to stay silent regarding sexual relationships and other intimate information bespeak extortion and are hence void for illegality. In Yao, for example, the plaintiff, a lawyer who had had an intimate relationship with a wealthy financial executive, threatened to expose that the executive was gay and that he had previously been in a relationship with an individual with AIDS. See Matter of Yao, 680 N.Y.S.2d 546, 547 (1st Dep't 1998) (per curiam); Matter of Yao, 661 N.Y.S.2d 199, 200 (1st Dep't 1997) (per curiam).^[6] The plaintiff alleged that he and the executive had entered into an oral agreement in which the executive promised to pay the plaintiff $10,000 per month, in exchange for the plaintiff's promise not to publicize that personal information. See Matter of Yao, 680 N.Y.S.2d at 547; Matter of Yao, 661 N.Y.S.2d at 200. After making the first payment, the executive stopped paying, and the plaintiff sued for breach of contract. Matter of Yao, 661 N.Y.S.2d at 200. The First Department affirmed the dismissal of the breach of contract claim, because the contract was extortionate. Yao, 666 N.Y.S.2d at 160.

As Defendant notes, the agreement alleged by Plaintiff contains similar terms to that in Yao. In the Demand Letter sent to Defendant's attorney, Plaintiff's attorney described the agreement as follows: "Ms. Plaintiff promised not to contact [Defendant] or [his] family or divulge the true nature of [their] relationship and the paternity of her daughter in exchange for [his] promise to pay her $500,000. [He] accepted that offer by agreeing to pay; thereafter a valid contract was formed." Demand Ltr. at 3. This statement is consistent with Plaintiff's having—at least implicitly— threatened that, if she were not paid, she would expose her sexual relationship with Defendant and Defendant's out-of-wedlock paternity of the child, both of which constitute "secret[s]" that would tend to subject Defendant to "hatred, contempt or ridicule." N.Y. Penal Law § 155.05(2)(e)(v).

At the same time, Plaintiff cites to allegations in the Complaint and attached exhibits that, although not establishing that Defendant, unprompted, demanded Plaintiff's silence as a condition on which he would pay her, are at least consistent with that series of events.^[7] On this reading, while the terms of Plaintiff and Defendant's agreement parallel those held void as extortionate in Yao, the non-disclosure condition was Defendant's impetus exclusively.

In the end, the Court is mindful that on a motion to dismiss, the pleadings must be read in the light most favorable to the plaintiff. A court must be wary of drawing factual inferences for a defendant that, even if rational, are arguable. See Edrei v. Maguire, 892 F.3d 525, 539 (2d Cir. 2018) ("Perhaps this is an inference that a factfinder might ultimately make, but at this stage we must draw all inferences in favor of the plaintiffs, not the defendants."). Defendant has not cited case law under which an agreement to pay another not to publicize damaging secrets would necessarily be extortionate and illegal where the facts show neither an express or implied threat of disclosure by the person promising silence. And the Court is unprepared, on the pleadings, which leave less than pellucid the parties' full course of communications, to hold that Plaintiff necessarily threatened disclosure of Defendant's embarrassing secrets so as to have committed extortion. The Complaint and the communications attached to it do not contain an express threat by Plaintiff to this effect. And while these are consistent with an implied such threat, they do not unambiguously reveal that Plaintiff, in seeking money, implied that she otherwise might disclose these secrets.

To be sure, Defendant's claim that Plaintiff implied such a threat, prompting his insistence on such a condition, is quite plausible. A finder of fact, upon hearing the principals' testimony and reviewing the documentary evidence, including the Demand Letter, might well so conclude. But that reading—that Plaintiff introduced the threat of disclosure—is not the only plausible one. Plaintiff's alternative theory is not inconceivable. She posits that, after the child learned of Defendant's apparent paternity, Plaintiff did no more than ask for money from Defendant, and that it was Defendant who, newly fearful of disclosure now that there was no longer a secret to be kept from the child, on his own initiative demanded a vow of silence from Plaintiff as a condition for paying her. On that reading, Plaintiff's acquiescence to that condition, without more, would not constitute extortion on her part. See Andrea Doreen Ltd. v. Bldg. Material Local Union, 299 F. Supp. 2d 129, 156 (E.D.N.Y. 2004) (no extortion because no threat); cf. People v. Flynn, 475 N.Y.S.2d 334, 338 (Sup. Ct., N.Y. County 1984) (larceny by trick and false pretenses charges, N.Y. Penal Law § 155.05(2)(a), not viable where evidence did not "rise to the level of even an implied threat").

Were Plaintiff's breach of contract claim not blocked by the Statute of Frauds, the decisive question as to whether the contract was the product of extortion and hence inherently illegal—whether Plaintiff expressly or impliedly threatened disclosure of Defendant's secrets— would have been tested in discovery. Defendant's claim that the agreement with Plaintiff, if any, was the product of a threat of disclosure would then have been assessed on a full record of the parties' communications, and resolved, at summary judgment or at trial. However, because the breach of contract claim is independently deficient, there is no occasion to undertake such discovery.

The Court, accordingly, dismisses Plaintiff's breach of contract, but only on the first ground urged by Defendant: that the agreement Plaintiff alleges is barred by the Statute of Frauds."

THE RAT RULE

Since it is the Year of the Rat, this is from the ABA Model Rules of Professional Conduct and some legal writers have referred to this as the "Rat Rule"

"Rule 8.3: Reporting Professional Misconduct

Maintaining The Integrity of The Profession

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

(b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

Comment

[1] Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.

[2] A report about misconduct is not required where it would involve violation of Rule 1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client's interests.

[3] If a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Such a requirement existed in many jurisdictions but proved to be unenforceable. This Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is, therefore, required in complying with the provisions of this Rule. The term "substantial" refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. A report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.

[4] The duty to report professional misconduct does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question. Such a situation is governed by the Rules applicable to the client-lawyer relationship.

[5] Information about a lawyer's or judge's misconduct or fitness may be received by a lawyer in the course of that lawyer's participation in an approved lawyers or judges assistance program. In that circumstance, providing for an exception to the reporting requirements of paragraphs (a) and (b) of this Rule encourages lawyers and judges to seek treatment through such a program. Conversely, without such an exception, lawyers and judges may hesitate to seek assistance from these programs, which may then result in additional harm to their professional careers and additional injury to the welfare of clients and the public. These Rules do not otherwise address the confidentiality of information received by a lawyer or judge participating in an approved lawyers assistance program; such an obligation, however, may be imposed by the rules of the program or other law."

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WHO HAS STANDING TO RAISE THE RPAPL 1304 DEFENSE

Spoiler Alert: Only the original borrower not a subsequent purchaser.

Wells Fargo Bank, N.A. v Eitani, 2020 NY Slip Op 00320, Decided on January 15, 2020, Appellate Division, Second Department:

In May 2005, the defendant Doron Eitani (hereinafter the borrower) executed a promissory note in favor of Argent Mortgage Company in the principal sum of $560,000, which was secured by a mortgage encumbering certain real property in Brooklyn. The note and mortgage were thereafter assigned to the plaintiff. The borrower defaulted on his payment obligations by failing to pay the monthly installment of principal and interest due on August 1, 2005, or any monthly installment due thereafter. In March 2011, the borrower transferred title to the subject property to the defendant David Cohan.

Thereafter, the plaintiff commenced this action against the borrower and Cohan, among others. The borrower did not serve an answer or otherwise appear in the action. However, issue was joined by Cohan.

The plaintiff subsequently moved, inter alia, for summary judgment on the complaint insofar as asserted against the borrower and Cohan and for an order of reference. Cohan opposed the motion and cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against him on the ground, among others, that the plaintiff failed to comply with the notice requirements of RPAPL 1304. The Supreme Court, inter alia, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the borrower and Cohan and for an order of reference, and denied Cohan's cross motion. Cohan appeals.

On appeal, Cohan contends that the Supreme Court should not have awarded the plaintiff summary judgment because he properly raised the defense of lack of compliance with RPAPL 1304 and the plaintiff failed to establish, prima facie, that it was not required to give notice to the borrower in accordance with RPAPL 1304 or that it provided such notice to the borrower in strict accordance with RPAPL 1304. Similarly, Cohan also contends that he was entitled to summary judgment due to the plaintiff's failure to comply with the notice requirements of RPAPL 1304.

Contrary to Cohan's contention, he lacked standing to raise the issue of compliance with RPAPL 1304 as a defense herein. "[T]he borrower is the only mortgagor and the only person named on the note. Although [Cohan] as the current owner of the subject property, is a proper party to this foreclosure action, as [he] may be subject to the mortgage lien and may have [his] rights in the property cut off due to a default on the mortgage, it does not necessarily follow that [he] may properly assert, either in [his] own right or on behalf of the borrower, any defense that was or could have been asserted by the borrower. Rather, as relevant here, the notice requirements of RPAPL 1304 were enacted for the benefit and protection of borrowers who are natural persons. The statutory defense created by RPAPL 1302(2) for noncompliance with RPAPL 1304 is a personal defense which could not be raised by [Cohan], a stranger to the note and underlying mortgage" (Citimortgage, Inc. v Etienne, 172 AD3d 808, 809-810 [citations and internal quotations marks omitted]; see Greene v Rachlin, 154 AD3d 814). Thus, the merits of the issue are not properly before this Court.

Accordingly, we agree with the Supreme Court's determination to grant those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against Cohan and an order of reference and to deny Cohan's cross motion, inter alia, for summary judgment dismissing the complaint insofar as asserted against him.

A RECOGNITION

A PRO SE HOMEOWNER SUCCEEDS ON APPEAL AGAINST THE BANK

In fact, the same homeowner had a similar issue in a Florida action and succeeded to have the foreclosure dismissed pro se. See Elsman v. HSBC Bank USA, 182 So.3d 770, 771 (Fla. 5th DCA 2015). However, in this subsequent case, the Second Department did not dismiss the case but merely denied the bank's summary judgment motion, leaving the assumption that the pro se homeowner failed to cross-move to dismiss.

Wells Fargo Bank, N.A. v Elsman, 2020 NY Slip Op 00321, Decided on January 15, 2020, Appellate Division, Second Department:

"The plaintiff, Wells Fargo Bank, N.A. (hereinafter Wells Fargo), commenced this action to foreclose a mortgage against, among others, the defendant Kenneth M. Elsman (hereinafter the defendant), in 2012. The mortgage at issue secured a note of $468,900 with property located in Baldwin. In his answer, the defendant, inter alia, alleged lack of standing as an affirmative defense.

By notice of motion dated May 1, 2014, Wells Fargo moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. In an order entered January 15, 2015, the Supreme Court granted Wells Fargo's motion.

By notice of motion dated September 16, 2015, Wells Fargo moved for a judgment of foreclosure and sale. In an order and judgment of foreclosure and sale entered May 3, 2016, the Supreme Court, inter alia, granted the motion for a judgment of foreclosure and sale, confirmed the report of the referee, and directed the sale of the subject premises. The defendant appeals.

"[I]n order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of the default" (Zarabi v Movahedian, 136 AD3d 895, 895-896). Where, as here, the plaintiff's standing to commence the action is placed in issue by a defendant, the plaintiff must establish its standing to be entitled to relief (see U.S. Bank N.A. v Godwin, 137 AD3d 1260, 1261).

A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced (see U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753-754). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" (Dyer Trust 2012-1 v Global World Realty, Inc., 140 AD3d 827, 828).

Here, Wells Fargo failed to establish, prima facie, that it had possession of the note prior to the commencement of the action, and thus failed to establish that it had standing to foreclose the mortgage (see U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754; see also Deutsche Bank Natl. Trust Co. v Barnett, 88 AD3d 636, 638; cf. Aurora Loan Servs., LLC v Taylor, 25 NY3d 355). Wells Fargo did not attach a copy of the note and allonge to the complaint when the action was commenced to establish, prima facie, that it had possession of the note at that time (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355; cf. JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d 643). Moreover, the affidavit of Wells Fargo's vice president of loan documentation was insufficient to establish that Wells Fargo possessed the note at the time the action was commenced (cf. Aurora Loan Servs., LLC v Taylor, 25 NY3d 355). Therefore, the Supreme Court should have denied Wells Fargo's motion for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference."

A MARRIAGE STORY

This case has a few twists and turns; the most significant one being that, through no fault of either party, the marital portion of a pension was incorrectly calculated by the plan, requiring the court to reconsider spousal maintenance and equitable shares.

Achuthan v Achuthan, 2020 NY Slip Op 00255, Decided on January 15, 2020, Appellate Division, Second Department:

"The parties were married on May 28, 1981, in New Delhi, India, and have one adult daughter. At the time of the marriage, the plaintiff was 45 years old and the defendant was 36 years old. At the time of trial in 2015, the plaintiff and the defendant were approximately 80 years old and 71 years old, respectively.
At the time of the marriage, the plaintiff was a professor of physics at Southampton College, where he had been employed since 1966. At the time of trial, he was employed full time at Long Island University with an annual salary of approximately $122,530, and he had annual social security income in the amount of $29,014.
At the time of the marriage, the defendant was studying for her doctorate in political science at Columbia University while on leave from her position with the government of India, where she had been employed since 1968. After obtaining her doctorate in 1985, the defendant returned to India and resumed her career with the government of India in order to qualify for her 20- year "golden handshake" retirement package, which she expected to receive in 1988. However, she was unable to qualify due to her years of absence while pursuing her studies in the United States. She continued to work for the government of India until retiring in 1999 at the age of approximately 55. At trial, there was scant evidence regarding the amount of the defendant's earnings during the years she was employed in India. Upon her retirement, the defendant's pension was in the amount of approximately $7,500 per year. According to the defendant, there are governmental restrictions that impede her ability to transfer funds out of India. Notwithstanding that the defendant obtained her green card in approximately 2001, which she achieved with the help of an attorney paid for by the plaintiff, she never secured gainful employment in the United States. At the time of trial in 2015, she had been working as a freelance interpreter but claimed that she had only earned $240 for the year and that the contract had terminated. Since 2010, the defendant received social security income of $14,400 per year based on the plaintiff's earnings. The Supreme Court determined that the defendant's income from all sources was $55,000 per year.
For a significant amount of time during their 33-year marriage, the plaintiff and the defendant lived apart, with the plaintiff residing at the marital residence located in Southampton, which he had purchased prior to the marriage, and the defendant residing in India. After their marriage in 1981, the parties resided together at the marital residence from July 1981 through November 1985, along with their daughter, who was born in October 1982. For the daughter's first three years, the defendant was her primary caregiver, with the plaintiff assisting in the late afternoons while the defendant worked on her studies. Subsequently, in December 1985, the defendant returned to India with the parties' daughter and remained in India until approximately 1999. Over the course of the years 1985 to1999, the family spent time together intermittently in India, in Southampton, and while on vacation. The parties' daughter resided with the defendant in India from 1985 to 1997, except for the 1993-1994 school year, during which she resided with the plaintiff in Southampton. The parties' daughter began living with the plaintiff and attending high school in Southampton in 1997 and remained in the United States, except for periodic visits to India. After retiring, the [*3]defendant returned to the marital residence in Southampton in 2000, where she resided intermittently between Southampton and India until May 2014, when the divorce action was commenced, after which the defendant remained in the United States.
During the marriage, while maintaining separate finances, the parties each amassed substantial marital assets. The parties agreed that the plaintiff accumulated marital assets totaling $2,573,440.69, including real property located in India with a value of $733,179.23. The defendant accumulated marital assets totaling $1,424,673.55, including real property located in India, the marital portion of which was valued by the Supreme Court at $1,234,072.57 after awarding the defendant a separate property credit of $63,714.55.
This action for a divorce and ancillary relief was commenced on May 8, 2014. At trial, the parties stipulated, inter alia, to the identity and valuation of all the marital property at the time of commencement, except for the value of the real property in India, which was ultimately determined by the Supreme Court after trial. The issues of equitable distribution and maintenance were determined by the court after a nonjury trial in a decision dated July 22, 2016. The court entered a judgment of divorce on October 21, 2016. The court, inter alia, (1) awarded the defendant maintenance in the amount of $2,000 per month for a period of 10 years, (2) directed the plaintiff to provide security for his obligation to pay maintenance, and (3) equitably distributed the marital assets by awarding approximately 51% to the defendant and approximately 49% to the plaintiff. The court stated that "[s]ome additional assets were distributed to the defendant as an adjustment for the loss of health insurance benefits." One of the marital assets distributed by the court was the marital portion of the plaintiff's TIAA-CREF account, which was stipulated to be in the amount of $945,082, which the court divided equally between the parties. The remaining portion of the plaintiff's TIAA-CREF account in the amount of $1,027,239.89 was stipulated to be the plaintiff's separate property. The plaintiff appeals from stated portions of the judgment of divorce. While the defendant filed a notice of cross appeal from the judgment of divorce, we must dismiss the cross appeal as abandoned since the defendant does not seek reversal or modification of any portion of the judgment of divorce in her brief (see Kamins v United Healthcare Ins. Co. of N.Y., Inc., 171 AD3d 715, 716).
By letter dated June 19, 2017, TIAA-CREF advised the plaintiff that an error was previously made in the calculations of the marital portion of the plaintiff's TIAA-CREF account. As a result of the recalculations, the marital portion of the TIAA-CREF account, which had been calculated at $945,082, was increased by approximately $800,000 to approximately $1,755,724. The plaintiff's separate property portion was correspondingly decreased by approximately $800,000 from $1,027,239.89 to approximately $214,000, for a net loss of approximately $400,000. The defendant's net assets were concomitantly increased by $400,000.
Based on these new calculations, in August 2017, the plaintiff moved, in effect, pursuant to CPLR 5015(a)(2) to vacate, on the ground of newly discovered evidence, so much of the judgment of divorce as awarded the defendant maintenance, directed the plaintiff to provide security for his obligation to pay maintenance, and equitably distributed the marital assets, and thereupon, to award to the plaintiff 60% of the marital assets. In an order dated March 16, 2018, the Supreme Court denied the motion, concluding that the miscalculation of the marital portion of the TIAA-CREF account did not necessitate vacatur of any portion of the judgment of divorce. The court further concluded that although the new calculations provided "an increase in the marital portion of the accounts, and therefore, an increase in the amount awarded to defendant with a concomitant decrease in plaintiff's separate property award," this shift did not affect the determination of the amount of maintenance, as "the distribution of marital property was but one factor" in making that determination. The plaintiff appeals from the order.
On appeal from the judgment of divorce, the plaintiff argues that the Supreme Court should not have awarded the defendant a greater share of the marital assets than it awarded him and, moreover, that the court should have awarded him a greater share of the marital assets, as the parties basically lived separate lives and the court made improper awards with respect to the defendant's Indian property.
" The trial court is vested with broad discretion in making an equitable distribution of marital property . . . and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed'" (Spencer-Forrest v Forrest, 159 AD3d 762, 764, quoting Gafycz v Gafycz, 148 AD3d 679, 680). "The equitable distribution of marital assets must be based on the circumstances of the particular case and the consideration of a number of statutory factors" (Brinkmann v Brinkmann, 152 AD3d 637, 638; see Domestic Relations Law § 236[B][5][d]). Those factors include, inter alia, the income and property of each party at the time of the marriage and at the time of the commencement of the action; the duration of the marriage and the age and health of both parties; the loss of inheritance rights and pension rights; any award of maintenance; any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of marital property by the party not having title; the liquid or nonliquid character of all marital property; the loss of health insurance benefits upon dissolution of the marriage; the probable future financial circumstances of each party; and any other factor which the court shall expressly find to be just and proper (see Domestic Relations Law § 236[B][5][d]; Brinkmann v Brinkmann, 152 AD3d at 638). "While equitable distribution does not necessarily mean equal distribution, when both spouses have made significant contributions to a marriage of long duration, the division of marital property should be as equal as possible" (Eschemuller v Eschemuller, 167 AD3d 983, 984-985; see Spencer-Forrest v Forrest, 159 AD3d at 764).
Here, while we agree with the plaintiff's contention that the Supreme Court improvidently exercised its discretion in directing a division of the marital assets resulting in the defendant being awarded a greater share of the assets (approximately 51%) than the plaintiff (approximately 49%), particularly where there were significant liquid assets to easily accomplish an equal distribution, we do not agree with the plaintiff's contention that he should be awarded a greater share of the marital assets than the defendant. Considering the relevant factors, as well as the circumstances of this case, there is no basis for an unequal distribution of marital assets.
The Supreme Court's reasoning that the defendant required additional marital assets "as an adjustment for the loss of health insurance benefits" was flawed, inasmuch as the defendant is eligible for Medicare and she received a sizable award of marital assets.
Similarly, there is no basis for the defendant to receive less than 50% of the marital assets. This case is unlike those cases in which one of the parties has engaged in conduct constituting economic fault (see Stewart v Stewart, 133 AD3d 493; Branche v Holloway, 124 AD3d 553; Frey v Frey, 68 AD3d 1052; Michaelessi v Michaelessi, 59 AD3d 688), or the contributions to the marriage are so one-sided (see Evans v Evans, 57 AD3d 718; Hathaway v Hathaway, 16 AD3d 458; K. v B., 13 AD3d 12) that an unequal distribution is appropriate. Here, there is no evidence of economic fault on the part of either party, and while the parties' relationship was unusual, it cannot be said that the defendant did not contribute to the marriage. Although each party maintained his or her assets and income separately, with the plaintiff accumulating a significantly greater amount of assets over the course of their 33-year marriage, together the parties managed to accumulate a sizable marital estate, with the defendant having amassed a significant portion of the parties' assets. The Supreme Court aptly noted the unique nature of the economic relationship between the plaintiff and the defendant, and found that they "did not enter an economic partnership during the course of the marriage in a traditional sense" and that "[t]heir marriage was independently cooperative." However, the economic decisions made by the parties during their marriage should not be second-guessed by the court (see Mahoney-Buntzman v Buntzman, 12 NY3d 415, 421). While the parties lived separately for substantial periods of time during their marriage, the plaintiff apparently acquiesced to this arrangement. Moreover, the defendant had a significant role in raising the parties' daughter, who resided with both parties until she was three years old, and who then resided solely with the defendant in India for the next 12 years except for one school year that she spent with the plaintiff. Accordingly, to implement an equal distribution of the marital assets, we modify the judgment of divorce by awarding the plaintiff the amount of $112,973.85 instead of $87,200.50 from the CitiBank account containing $174,401, and by awarding the defendant the amount of $61,427.15 instead of $87,200.50 from that CitiBank account.
We agree with the Supreme Court's determination to award the defendant a separate [*4]property credit of $63,714.55 with regard to the property she owns in India. The defendant overcame the presumption that her separate property funds, which were commingled in a bank account with marital funds, constituted marital property, as she demonstrated that the funds had been deposited into the account with marital funds for only one day as a matter of convenience (see Belilos v Rivera, 164 AD3d 1411, 1412-1413; Chamberlain v Chamberlain, 24 AD3d 589, 593; Wade v Steinfeld, 15 AD3d 390, 391). Moreover, the marital account into which the funds at issue were deposited was held only in the defendant's name (see Terasaka v Terasaka, 130 AD3d 1474, 1475). Further, the court's determination was based upon its finding that the defendant's testimony was credible, and upon a review of the record, we perceive no reason to disturb this finding of credibility, which is entitled to great deference on appeal (see Lieberman v Lieberman, 21 AD3d 1004, 1005).
The plaintiff's appeal from so much of the judgment of divorce as awarded the defendant maintenance in the amount of $2,000 per month for a period of 10 years and directed the plaintiff to provide security for his obligation to pay maintenance must be dismissed, as our determination on the appeal from the order has rendered these issues academic.
"In order to succeed on a motion pursuant to CPLR 5015(a)(2) to vacate an order or judgment on the ground of newly discovered evidence, the movant must establish that the evidence could not have been discovered earlier through the exercise of due diligence and that the newly discovered evidence would probably have produced a different result" (Wall St. Mtge. Bankers, Ltd. v Rodgers, 148 AD3d 1088, 1089 [citations omitted]).
Here, the plaintiff established that the incorrect calculations of the marital portion of the plaintiff's TIAA-CREF account had been provided to the plaintiff by a third party, TIAA-CREF, prior to the trial. The record is devoid of any evidence that the plaintiff had any basis to conclude that those calculations were incorrect until such time that TIAA-CREF provided the new calculations upon the plaintiff contacting it with regard to a Qualified Domestic Relations Order subsequent to the entry of the judgment of divorce. Moreover, the plaintiff demonstrated that the new calculations of the marital portion of the plaintiff's TIAA-CREF account would produce a different result to the extent that so much of the judgment of divorce that awarded the defendant maintenance should be vacated.
" [T]he amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts'" (Papakonstantis v Papakonstantis, 163 AD3d 839, 840, quoting Repetti v Repetti, 147 AD3d 1094, 1096; see Nadasi v Nadel-Nadasi, 153 AD3d 1346, 1350). "Where, as here, an action was commenced prior to the amendments to the Domestic Relations Law effective January 23, 2016 (see L 2015, ch 269, § 4), the factors to be considered include the standard of living of the parties, the income and property of the parties, the distribution of property, the duration of the marriage, the health of the parties, the present and future earning capacity of the parties, the ability of the party seeking maintenance to be self-supporting, [and] the reduced or lost earning capacity of the party seeking maintenance'" (Candea v Candea, 173 AD3d 663, 665, quoting Gordon v Gordan, 113 AD3d 654, 655; see Papakonstantis v Papakonstantis, 163 AD3d at 840-841). Based on the recalculation by TIAA-CREF, the marital portion of the plaintiff's TIAA-CREF account was increased by approximately $800,000 from the amount stipulated to at the time of trial. Considering the defendant's receipt of an additional $400,000 to her already substantial equitable distribution award of almost $2 million and the reduction of the plaintiff's total assets by $400,000, as well as the circumstances of this case, including the parties' ages at the time of trial—the plaintiff was 80 years old and the defendant was 71 years old—and the parties' incomes, there is no basis to award the defendant maintenance. Therefore, the Supreme Court should have granted those branches of the plaintiff's motion which were, in effect, to vacate so much of the judgment of divorce as awarded the defendant maintenance and directed the plaintiff to provide security for his obligation to pay maintenance.
With regard to that branch of the plaintiff's motion which was, in effect, to vacate so much of the judgment of divorce as awarded the defendant approximately 51% of the marital assets and awarded the plaintiff approximately 49% of the marital assets, and thereupon, to award [*5]the plaintiff 60% of the marital assets, for the reasons previously set forth in relation to the appeal from the judgment of divorce, we have determined that the defendant is entitled to 50% of the marital assets (see Eschemuller v Eschemuller, 167 AD3d at 984-985; Spencer-Forrest v Forrest, 159 AD3d at 764). The fact that the plaintiff's separate property has been decreased does not change our prior reasoning that based on the circumstances of this case and in consideration of the relevant factors set forth in Domestic Relations Law § 236(B)(5)(d), each party is entitled to an equal share of the marital assets.

LAP

The New York State Bar Association and other local Bar Associations offer a Lawyer Assistance Program (LAP), which  provides education and confidential assistance to lawyers, judges, law school students, and immediate family members who are affected by the problem of substance abuse, stress, depression or other mental health issues. Its goal is to assist in the prevention, early identification and intervention of problems that can affect professional conduct and quality of life. All LAP services are confidential and protected under Section 499 of the Judiciary Law as amended by Chapter 327 of the Laws of 1993. They are free and voluntary.

NO RELIGIOUS DIVORCE REQUIRED IN SECULAR MARRIAGE ABSENT EXPRESS AGREEMENT

The parties had a secular marriage. Can a husband force his wife to get a religious divorce when she never agreed to do so? Here are the facts:

"Following the execution of the Financial Stipulation, the Wife’s counsel prepared a proposed Judgment of Divorce and ancillary documents for submission to the Court. According to the Husband, his attorney then contacted Wife’s attorney to request the proposed Judgment include a provision requiring cooperation with a GET. The Husband states that he was led to believe that the Wife was willing to accept a GET, but she has since ignored his requests to cooperate with same. The Husband argues that because he is an Orthodox Jew, he cannot remarry under Jewish Law unless the Wife accepts a GET. He attaches an affirmation from a Rabbi in support of his request wherein the Rabbi states that a GET must be given by the Husband and accepted by the Wife for either party to remarry under Jewish Law. According to the Rabbi’s affirmation, the Wife’s refusal to appear before an Orthodox Beth Din and accept the GET will prevent the Husband from remarrying. The Husband asks that the Court stay his obligation to transfer the $100,000 to the Wife pursuant to the Financial Stipulation until such time as she accepts a GET. The Husband argues that the Wife swore to remove all barriers to his remarriage but her refusal to cooperate with the GET is a refusal to remove all barriers to his remarriage. The Husband argues that there is precedent for the Court to intervene and fashion an award of equitable distribution in this instance and he also seeks an award of legal fees.

In opposition, the Wife asserts that the parties were not married religiously nor was there any religious ceremony. Therefore, she argues, since there was no marriage according to Jewish Law, there is no religious divorce to be had. The Wife states that she refused the Husband’s offers for a religious wedding ceremony because she wanted to avoid any religious divorce rituals. The Wife argues that in any event, the Husband is not a practicing Orthodox Jew. She states that he regularly communicates with others during both Shabbat and Sukkot, and socializes in a manner contrary to his alleged faith. The Wife asserts that the Rabbi who offers an affirmation in support of the Husband is from a “fanatic” and “extreme” faction of Orthodox Jews which discriminates against women. Furthermore, she argues that even if the parties were religiously married, a religious divorce is never a barrier to the Husband’s remarriage. Finally, the Wife argues that the $100,000 due to her under the Financial Stipulation was without condition and that forcing her to accept a GET violates her civil rights.

The Husband offers no personal affidavit to refute her claims in reply. However, his attorney argues that the Wife fails to provide any “admissible evidence” that the Husband does not need a GET to remarry. She argues that the Wife’s sworn statement that she would remove all barriers to the Husband’s remarriage was a fraud."

Here is the case: A.W. v. I.N., NYLJ January 10, 2020, Date filed: 2020-01-02,  Court: Supreme Court, Nassau. Judge: Justice Edmund Dane:

"The issue before the Court is whether, based upon the Wife’s statement that she would remove all barriers to the Husband’s remarriage, the Wife should be directed to cooperate with the acceptance of a GET from the Husband, and/or whether the Court may condition her receipt of funds under the Financial Stipulation upon her cooperation with same.

The constitutional limitations on the Court’s ability to intervene on religious issues are deeply rooted in law and it is well established that the Court may not consider religious doctrine in rendering a decision (See e.g.: Presbyterian Church v. Hull Church, 393 U.S. 440, 449 [1969]; Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709 [1976]; Jones v. Wolf, 443 U.S. 595, 603, [1979]).
Nonetheless, Courts have resolved issues of religion by relying upon secular and neutral principles of law, primarily in the context of contract law. (See e.g.: Jones v. Wolf, supra, 443 U.S. at p. 602, 99 S.Ct. at 3024; Avitzur v. Avitzur, 58 N.Y.2d 108, 114-15 (1983); Golding v. Golding, 176 A.D.20 [1st Dept., 1992]; Congregation Yetev Lev D’Satmar, Inc., v. Kahana, 31 A.D.3d 541 [2nd Dept., 2006]). Where there is a contractual agreement to cooperate with a religious divorce, Courts have routinely enforced the agreement by imposing financial sanctions and/or withholding economic relief in the event of a party’s non-cooperation with same. (See, Fischer v. Fischer, 237 A.D.2d 559 [2nd Dept.1997]; Kaplinsky v. Kaplinsky, 198 A.D.2d 212 [2nd Dept.1993]; Waxstein v. Waxstein, 90 Misc.2d 784,[Sup.Ct. Kings Co.1976], aff’d 57 A.D.2d 863 [2d Dept.1977]).

In this case, however, there is no agreement or contract between the parties regarding the GET. In fact, there exists a fully executed Financial Stipulation which is silent as to the need, or even the desire, for either party to obtain a GET. There is no contract that obligates either party to cooperate with any religious divorce, ritual or ceremony. Accordingly, this is not an instance where the Court can rely upon contract law to intervene on this religious issue.

Outside the context of contract law, the Second Department has determined that it is not an improper interference with religion for the lower court to fashion maintenance and equitable distribution awards to address a Husband’s withholding of a GET solely to extract economic concessions from the Wife. (See, e.g. Mizrahi-Srour v. Srour, 138 A.D.3d 801, [2nd Dept.2016]; Pinto v. Pinto, 260 A.D.2d 622 [2nd Dept.1999); Schwartz v. Schwartz, 235 A.D.2d 468, [2nd Dept. 1997]). Under the unique circumstances of this case, it is the Wife who is refusing to cooperate with the GET, and there is already a fully executed Financial Stipulation resolving the economic issues of the marriage.2 There is nothing in the record to suggest that the Wife’s refusal to accept a GET had any impact on the terms of the Financial Stipulation or that her non-cooperation is for the purpose of extracting further economic concessions. Therefore, there is no basis for the Court to interfere with the economic settlement reached by the parties.

It would be a violation of the First Amendment of the United States Constitution for the Court to order the Wife to participate in a religious ritual when she did not agree to do so nor may the Court impose a financial penalty against her. One party’s decision to follow a certain faith and/or faction of that faith cannot be the basis for the Court’s decision. As articulated in the recently decided Masri v. Masri, 55 Misc. 3d 487, 499 (N.Y. Sup. Ct. 2017):

To apply coercive financial pressure because of the perceived unfairness of Jewish religious divorce doctrines to induce Defendant to perform a religious act would plainly interfere with the free exercise of his (and her) religion and violate the First Amendment.

The Husband further argues that the Court may interfere in this instance because the Wife swore that she removed all barriers to the Husband’s remarriage, a claim the Husband asserts was false. Whether or not the Wife removed religious barriers to the Husband’s remarriage is an issue of religion, not within the Court’s purview.

While DRL §253 requires a Plaintiff to swear that she has, to the best of her knowledge, taken all steps solely within her power to remove all barriers to Defendant’s remarriage following the divorce, subsection (9) of DRL §253 states that:

[n]othing in this section shall be construed to authorize any court to inquire into or determine any ecclesiastical or religious issue. The truth of any statement submitted pursuant to this section shall not be the subject of any judicial inquiry, except as provided in subdivision eight of this section.

The Wife asserts that because she was married in a civil ceremony her refusal to accept a GET is not a barrier to the Husband’s remarriage, either religious or otherwise. Because the Wife maintains that she is in compliance with DRL §253, the Court cannot grant the Husband the relief he seeks (c.f. Kaplinsky v. Kaplinsky, 198 A.D.2d 212 [2nd Dept., 1993][Husband properly held in contempt for his refusal to deliver a GET where he agreed in Stipulation, incorporated into Judgment of Divorce, to remove all barriers to the Wife's remarriage in light of the fact that he "continually acknowledged" that a GET was the only way the Wife could remarry]).

Here, the Court may not inquire beyond the Wife’s sworn statement that she has, to the best of her knowledge, removed all barriers to the Husband’s remarriage as same would constitute an impermissible decision on a religious issue. (see: e.g. Sieger v. Sieger, 37 A.D.3d 585, 586-87 [2nd Dept., 2007], rev’d on other grounds, 51 A.D.3d 1004 [2nd Dept., 2008]; DRL §253(9)). The parties are at liberty to follow whatever faith and religious beliefs they choose, but that does not mean the Court can or will interfere by imposing one party’s beliefs upon the other."

ON PARTITION OF REAL PROPERTY

In this case, a federal court addresses New York State law on partition of real property

Chasewood v. Kay, NYLJ January 10, Date filed: 2020-01-06, Court: U.S. District Court for the Eastern District of New York, U.S. - EDNY, Judge: Magistrate Judge Steven Gold, Case Number: 18-CV-623:

 "......
B. Partition and Sale

“A person holding and in possession of real property as…tenant in common…may maintain an action for partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners.” RPAPL §901(1). A court overseeing a partition action will enter an “interlocutory judgment,” which (1) “shall determine the right, share or interest of each party in the property, as far as the same has been ascertained”; (2) “[w]here the property…is so circumstanced that a partition thereof cannot be made without great prejudice to the owners[,]…shall direct that the property…be sold at public auction”; and (3) when the judgment is in favor of the plaintiff, “shall direct that partition be made between the parties according to their respective rights, shares and interests.” RPAPL §915.

“The tenant seeking the partition need not be in actual possession of the property to bring such an action, but instead need only have a right to possession of the property pursuant to the property’s title.” Melnick v. Press, 809 F. Supp. 2d 43, 58 (E.D.N.Y. 2011). Nonetheless, “[t]he right to partition is not absolute,…and while a tenant in common has the right to maintain an action for partition pursuant to RPAPL 901, the remedy is always subject to the equities between the parties.” Tsoukas v. Tsoukas, 107 A.D.3d 879, 880 (2d Dep’t 2013). Accordingly, “the statutory right of partition…may be precluded by the equities presented in a given case.” Ferguson v. McLoughlin, 184 A.D.2d 294, 294 (1st Dep’t 1992).

A plaintiff tenant in common seeking summary judgment on partition is typically required to make a prima facie showing of his or her ownership and right to possession. See Fini v. Marini, 164 A.D.3d 1218, 1221 (2d Dep’t 2018) (“A plaintiff establishes his or her right to summary judgment on a cause of action for partition and sale by demonstrating ownership and right to possession of the property.”); Cadle Co. v. Calcador, 85 A.D.3d 700, 702 (2d Dep’t 2011) (same); Manganiello v. Lipman, 74 A.D.3d 667, 668 (1st Dep’t 2010) (finding that “[d]efendant, by merely averring that plaintiff never contributed to the purchase of the premises, that she has solely contributed to the property’s maintenance and upkeep since defendant’s departure from the same, and that she has continuously occupied the condominium since that time, failed to controvert plaintiff’s ownership interest”). A defendant, however, may defeat the motion by raising a triable issue of fact as to whether the equities favor partition. See Arata v. Behling, 57 A.D.3d 925, 926 (2d Dep’t 2008) (affirming denial of summary judgment where, although plaintiff met his prima facie burden, “the defendant raised triable issues of fact as to whether the equities favor her position”).

C. Accounting

“A partition action, although statutory, is equitable in nature and an accounting of the income and expenses of the property sought to be partitioned is a necessary incident thereof.” Melnick, 809 F.Supp.2d at 58 (internal quotation marks and citation omitted). Generally, an accounting “should be had as a matter of right before entry of the interlocutory or final judgment and before any division of money between the parties.” Gapihan v. Hemmings, 121 A.D.3d 1397, 1399 (3d Dep’t 2014) (quoting McVicker v. Sarma, 163 A.D.2d 721, 722 (3d Dep’t 1990)).

New York common law with respect to the timing of an accounting relative to the granting of partition is somewhat unclear, though, and it appears that whether an accounting must be held prior to the entry of an interlocutory judgment is a matter within the discretion of the trial court. Compare Gapihan, 121 A.D.3d at 1399 (providing that the accounting should occur prior to entry of the interlocutory or final judgment), and Goldberger v. Rudnicki, 94 A.D.3d 1048, 1050 (2d Dep’t 2012) (holding that although plaintiff “established his prima facie entitlement to judgment as a matter of law by demonstrating his ownership and right to possession…and by showing that a physical partition would lead to great prejudice,” the parties’ “disagreements as to their respective interests, rights, and share” in the property must be determined prior to entry of an interlocutory judgment of partition), with McCormick v. Pickert, 51 A.D.3d 1109, 1110-11 (3d Dep’t 2008) (acknowledging the general rule that an accounting “should be had as a matter of right before entry of the interlocutory or final judgment and before any division of money between the parties” (quoting Wong v. Chi-Kay Cheung, 46 A.D.3d 1322, 1322 (3d Dep’t 2007)), but nonetheless finding that because plaintiffs asserted that unnecessary ongoing maintenance expenses would be incurred if a sale were deferred, and because defendant would not be prejudiced, the trial court did not abuse its discretion in directing that a sale take place and that the proceeds be held in escrow until an accounting was completed), and Donlon v. Diamico, 33 A.D.3d 841, 842 (2d Dep’t 2008) (affirming the trial court’s grant of summary judgment to plaintiff on her partition cause of action, but modifying the order to provide that “[p]rior to the entry of an interlocutory judgment directing the sale of the subject property, an accounting must be made of the income and expenses of the property”).

….."