Thursday, April 30, 2020

MORE ON COVID AND CHILD CUSTODY



In this case, the court handles a similar situation (note the case posted yesterday) in a different manner...I also note how the court approaches the issue of attorneys fees and that this litigation is about 10 years going.

Waldorf v. Waldorf, NYLJ  April 27, 2020, Date filed: 2020-04-17, Court: Supreme Court, Suffolk, Judge: Justice Cheryl Joseph, Case Number: 27361/2010:

"The parties to this action are no strangers to this Court and have been embroiled in litigation for nearly a decade. It is worth noting that this post judgment matrimonial proceeding also has an accompanying plenary action under index number 06631/2017.

The Plaintiff commenced an action for divorce on or about July 26, 2010 and the parties settled their marital difficulties by way of a Stipulation of Settlement that was placed on the record before Hon. William J. Kent, J.S.C. on June 23, 2014 (hereinafter “Stipulation”). The parties were ultimately divorced by Judgment of Divorce dated October 1, 2014 and entered October 17, 2014 (hereinafter “JOD”). Subsequent post judgment litigation ensued and apart from the current pending applications before the Court, various applications made by both parties were settled and/or withdrawn.

The instant motion sequence, number 18, was made by the Defendant on February 14, 2020 and the Court notes that it previously decided Branch 3 of Defendant’s application by way of Decision and Order dated March 9, 2020.

Branch 1.

Branch 1 of Defendant’s application seeks an Order temporarily modifying the Interim Order of Parenting Time dated September 26, 2018. Plaintiff opposes the application.

The Court is unable to issue a decision with respect to this issue on the papers alone. The Court further takes judicial notice of the national pandemic, to wit: COVID-19, and the schools are currently closed until further notice. Therefore, the Defendant’s argument that the child, Q.W., should be with her during the school weeks may soon be rendered moot and the child may recommence attendance at the boarding school in Maryland in September 2020.

Therefore, this Branch of Defendant’s application shall be held in abeyance.
……

Branch 4.
Branch 4 of Defendant’s application seeks an award of interim counsel fees in the amount of $25,000.00. The Plaintiff opposes the application.

The Court may direct a party to pay counsel fees “directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.” See Dom. Rel. Law §237(a).

It is well settled that an award of interim counsel fees is within the sound discretion of the court. The issue of counsel fees is also controlled by the equities and circumstances of each case. See Nicodemus v. Nicodemus, 98 A.D.3d 604 (2d Dept. 2012). “In addition, the court may ‘take into account whether one party has delayed the proceedings or engaged in unnecessary litigation”‘. Margolis v. Cohen, 153 A.D.3d 1390, 1393-94 (2d Dept. 2017) (internal citations omitted).
In support of her request for $25,000.00, the Defendant argues that the Plaintiff is the monied party and she claims that he earns over $500,000.00 per year. She further posits that she is unable to pay her new attorneys’ retainer fee because she has “little in her bank accounts”, used her savings to purchase a new home that she renovated costing her nearly $200,000.00. She also argues that her income is used to pay her monthly expenses. The Defendant annexed an updated Statement of Net Worth, albeit using the old form, as Exhibit H to her moving papers which the Court has reviewed. While Defendant failed to annex her 2018 tax returns and/or her 2019 W-2 statement, she lists her income at almost $152,000.00 per year1.

In opposition to Defendant’s application, the Plaintiff argues that there is $319,278.83 being held in escrow from the sale of the parties’ Colorado property which the Defendant refuses to release. Plaintiff submits that Defendant would realize at least $92,000.00 from the Colorado proceeds. The Plaintiff also directs the Court to the fact that the Defendant has purchased 2 houses (1 in 2016 and 1 in 2017) and one of said houses in a rental property. Further, the Plaintiff argues that the Defendant may not have disclosed certain assets on her statement of net worth, for example a Merrill Lynch account that previously had a gross value of approximately $150,000.00. Finally, the Plaintiff argues that Defendant has delayed this matter and has engaged in unnecessary litigation, for example: Defendant’s refusal to respond to settlement proposals; Defendant’s refusal to participate in a settlement meeting; and Defendant’s delay in listing the marital residence for sale.

Here, the Court finds that the Defendant has engaged in delay tactics and unnecessary litigation, which include but are not limited to her bringing an application for a Writ of Habeas Corpus during the current national pandemic (Covid-19) for the alleged return of a 15-year-old child.2 The Court is further troubled by the Defendant’s failure to engage in the settlement meeting held on September 6, 2019. Specifically, Defendant chose to say in her counsel’s office instead of participating with the attorneys, including the attorney for the child, and the Plaintiff in the conference room.
The Court notes that the presumption that a party is entitled to counsel fees because he or she is the “monied spouse” is a rebuttable one. See Dom. Rel. Law §237(a). Furthermore, and to quote the Court’s learned colleague, Justice Jeffrey S. Sunshine, “…the court cannot decide that just because one party ‘earns more’ than the other that he or she automatically becomes the ‘monied spouse’.” Scott M. v. Ilona M., 31 Misc.3d 353, 369 (Sup. Ct. Kings Cty. 2011). Here, while the Plaintiff may earn more than the Defendant, the Defendant is possessed of sufficient income and assets that she is able to pay her counsel fees and litigate this matter on equal footing with the Plaintiff. "

Wednesday, April 29, 2020

COVID AND CHILD CUSTODY


Was this case decided in the spirit of the letter published in the NYLJ on March 27 from Judge Sunshine of Supreme Court (see https://jmpattorney.blogspot.com/2020/04/to-parents-in-current-custody-disputes.html)?

R.M. v. B.S., NYLJ April 27, 2020, Date filed: 2020-04-16, Court: Supreme Court, Bronx ,Judge: Justice La Tia Martin, Case Number: 36789/2015:

"The plaintiff (father), pro se litigant, seeks an Order directing the defendant to adhere to the parental access schedule listed in the April 5, 2019 schedule. He contends that the defendant has violated the parties’ parenting agreement executed on June 7, 2016 and June 22, 2016 and so-ordered stipulation and agreement dated March 4, 2019. He asserts that the defendant denied him parenting time March 24, 2020 in violation of the parties’ parenting agreement which indicates that he may request midweek parenting time. He indicates that the defendant stated that she denied said parental access because he is a first responder from a state with high exposure and he had not been quarantined for fourteen (14) days. The plaintiff contends that prior to the current health crisis the defendant denied he was willing to pick up the children afterschool and return them after work. The plaintiff further asserts that that on March 25, 2020 the defendant indicated that she is suspending parental access at that time and would allow parental access when she is able to do so. He contends that the defendant ignored his communication that he works at the World Trade Center which has been closed and he would have virtually no interaction with the public. He further indicates that the defendant has also ignored multiple requests to compromise by allowing the parties’ children to visit at his brother’s home in New Hampshire. The plaintiff further contends that the defendant has refused to allow him to engage in a private phone call or face time with the parties children. He asserts that she consistently hangs up on him if he asks the children about their homework. The plaintiff asserts that he has not seen the parties’ children in forty (40) days.

In opposition, the defendant, mother through counsel argues that the plaintiff’s application is an attempt to harass and intimidate the defendant. Defendant’s counsel contends that the defendant remains fearful that if the father has access with parties’ children over spring break(Friday, April 10, 2020 at 7am to Friday to April 17, 2020 at 6 p.m. to travel to/from Massachusetts) he will not ensure the safety of the children due to the pandemic coronavirus. Counsel indicates that the plaintiff is a first responder and resides in a New York City, a state with high exposure to coronavirus. Counsel asserts that neither the plaintiff or his brothers(that often care for the children in New York and the one who lives in a one bedroom apartment in New Hampshire) have been quarantined for fourteen days or taken the coronavirus test. Counsel indicates that the defendant resides with the children in Massachusetts and has been sheltering at home with them. She further indicates that one of the children has underlying respiratory issues and uses an inhaler. Counsel further indicates that the defendant and the parties’ children reside in house with a private backyard where the children have space to enjoy fresh air safely. She asserts that the plaintiff was offered face time and telephone access and choses not to avail himself of same. Counsel asserts that privacy is not an issue. Counsel further contends that the plaintiff enjoyed parental access with the parties’ children for the February break (February 16, 2020 to February 23, 2020). Counsel asserts that the plaintiff worked four of the days during the February break and had his brothers care for the children after fighting for these dates in Court. Counsel asserts that the plaintiff requested midweek parental access on same day notice which the defendant denied as the parties agreement provides for thirty (30) days notice. Counsel also indicates that the children are playing kill zone and watching walking dead which is inappropriate. Counsel further argues that the dates requested are not school break dates for the boys and the defendant is the residential custodial parent responsible for home schooling the children. Counsel indicates that spring Break is April 20-24, 2020. Counsel indicates that the defendant notified the plaintiff that she did not know when he could resume parental access because it will be determined by the scientist and government as to when it will be safe to reopen the country.

In reply, the plaintiff asserts that according to the children the defendant has had guests sat their home during this period of quarantine. He also argued that Massachusetts has the third highest cases of coronavirus behind New York and New Jersey. The plaintiff indicates that he works at the world trade center which has been closed since March 13, 2020 and does not have interaction with the public and does not take public transportation to work. The plaintiff further contends that he did not choose to work during the children’s February break but was unable to take off because the senior sergeant had priority over requests for vacation time. The plaintiff further asserts that the children do not engage inappropriate behavior during his parenting time and focuses on academic enrichment. The plaintiff indicates that this is the third time in one year that he has had to contact the court to intervene regarding parental access. He further argues that the parties’ agreement indicates that he must seek midweek access at his earliest availability. He asserts that the thirty days refers to if his schedule changes and is unable to exercise parental access every other weekend.

The parties’ So-Ordered Stipulation and Agreement dated April 5, 2019 outlined a detailed parenting schedule for the parties for 2019 and 2020 and indicates in pertinent part that

“2. The Plaintiff shall have parental access with the parties’ children on the following dates in 2020:
February School Break TBD-Sunday, February 16, 2020 at 2p.m. -Sunday, February 23, 2020 at 2 p.m.

April School Break TBD-Friday, April 10, 2020 at 7 am at mother’s residence to Friday, April 17, 2020 at 6p.m.…without prejudice to school calendar changes.”

The Court held a conference via skype for business on April 13, 2020 in which both parties and defendant’s counsel were present. The Court clearly recognizes the rights of the plaintiff as non-custodial parent to exercise his previously agreed upon parental access. Unfortunately, this current public health crisis has upended the lives of us all. However, in light of the unprecedented Covid-19 virus pandemic throughout the nation the Court shall temporarily set forth a new parental access schedule for the plaintiff. It is in the best interest of the parties’ children for their safety at this time to implement the new, although temporary, access schedule. Based upon the record provided herein, the plaintiff shall be entitled to daily telephonic/skype access at 6.p.m. The defendant is hereby ordered to facilitate but not to interfere at all with said access. Accordingly, the Court hereby denies the plaintiff’s application for in person parental access during the April 2020 recess. However, the Court shall entertain an application for additional time at a later date. Additionally, the court hereby reserves decision on plaintiff’s application directing the defendant to adhere to the parental access schedule for the remainder of the year. The parties and counsel shall appear via Skype Business for a conference at 12 p.m. on May 29, 2020 to address the outstanding issues."

Tuesday, April 28, 2020

WHEN THE ATTORNEY FOR THE CHILD DISAGREES WITH CPS AND TAKES OVER


In this case, CPS withdrew its neglect petition but the attorney for the child was permitted to adopt it and continue the proceeding, which was granted by the Family Court but reversed by the Third Department - the wheels of justice grind slowly.

Matter of Abel XX. (Jennifer XX.) 2020 NY Slip Op 02129 Decided on April 2, 2020 Appellate Division, Third Department:

"Respondent is the mother of four children (born in 2001, 2010, 2012 and 2014), the youngest three of which were fathered by Patrick XX. In August 2017, petitioner commenced these neglect proceedings against respondent and Patrick XX. based upon, among other things, allegations of educational neglect relating to the second child and medical neglect relating to all of the children. Respondent was present in Family Court for an initial appearance on the petitions, during which time she consented to the temporary placement of the oldest child with the maternal grandmother. Patrick XX. did not appear at the initial appearance, and petitioner advised that it had not been able to serve him with the petitions. Over the course of several subsequent court appearances, at which respondent was present but Patrick XX. was not, petitioner advised the court that its repeated efforts to serve Patrick XX. with the petitions had been unsuccessful. At a November 2017 appearance, at which both respondent and Patrick XX. failed to appear, Family Court dismissed the petitions against Patrick XX. without prejudice.

In December 2017, respondent failed to appear for a permanency hearing relating to the oldest child and a hearing on the neglect petitions. Respondent's assigned counsel indicated that respondent was in Arizona, where it was believed that Patrick XX. had taken the three youngest children. At the request of respondent's counsel, Family Court adjourned the hearing until January 2018.

On the January 2018 hearing date, at which respondent once again failed to appear, petitioner requested to withdraw its petitions against respondent. Family Court provided both respondent's counsel and the attorney for the children with an opportunity to comment on petitioner's request, at which time the attorney for the children expressed his concern for his clients' safety. Referencing Matter of Jamie TT. (191 AD2d 132 [1993]), a case in which this Court found a law guardian to have provided ineffective assistance of counsel for failing to take steps to cure deficiencies in the petitioner's presentation of proof on a child abuse petition, Family Court asked the attorney for the children whether he would be "prepared to go forward" on the petitions if it declined to dismiss them. The attorney for the children requested a brief recess to go over the petitions and to speak with the caseworkers. Family Court granted that request. After the recess, the attorney for the children indicated his intention to go forward on the petitions, and Family Court permitted him to do so. Following the hearing, at which the attorney for the children presented the testimony of petitioner's caseworker and limited documentary evidence, Family Court issued two orders adjudicating the children to have been neglected by respondent. Respondent appeals from both orders.

Initially, we perceive no error or abuse of discretion in Family Court declining to dismiss the petitions and allowing the attorney for the children to adopt the petitions and proceed on them (see Family Ct Act § 1032 [b]; Matter of Amber A. [Thomas E.], 108 AD3d 664, 665 [2013]). Turning to the merits, as relevant here, a party seeking to establish neglect must prove, by a preponderance of the evidence, that a child's "physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his [or her] parent . . . to exercise a minimum degree of care . . . in supplying [him or her] with adequate . . . education in accordance with the provisions of part one of article [65] of the [E]ducation [L]aw, or medical . . . care, though financially able to do so or offered financial or other reasonable means to do so" (Family Ct Act § 1012 [f] [i] [A]; see Family Ct Act § 1046 [b] [i]; Matter of Amanda M., 28 AD3d 813, 814 [2006]).

Upon our review of the record, we find that — notwithstanding his laudable efforts to protect his clients' welfare by proceeding on the petitions in petitioner's stead — the attorney for the children failed to present sufficient competent evidence to support Family Court's findings of educational and medical neglect (see Family Ct Act § 1046 [b] [iii]). With respect to the claim of educational neglect, the attorney for the children sought to prove that respondent failed to ensure that the second child was enrolled in and attending an adequate educational program for the 2016-2017 school year and beyond, as legally required. To that end, the attorney for the children offered the testimony of petitioner's caseworker and her corresponding progress notes, which together established that respondent had stated to the caseworker that the second child was enrolled in a particular public elementary school. The attorney for the children, however, failed to present any admissible, non-hearsay evidence to establish that, contrary to respondent's assertion, the second child was not actually enrolled in that elementary school or any other educational program. Although the caseworker testified, and the progress notes similarly reflected, that she spoke with individuals at the elementary school and the school district office regarding the second child's enrollment in an educational program, neither her testimony nor the progress notes demonstrated that those conversations were admissible under an exception to the hearsay rule and, therefore, such evidence should not have been relied upon by Family Court (see Matter of Leon RR., 48 NY2d 117, 122-123 [1979]; Matter of Jaden C. [Phillip J.], 90 AD3d 485, 487 [2011]; Matter of Tiffany S., 302 AD2d 758, 761 [2003], lv denied 100 NY2d 503 [2003]).[FN1] In the absence of competent evidence establishing that the second child was not enrolled in an adequate educational program during the 2016-2017 school year, we find that a sound and substantial basis does not exist in the record to support Family Court's finding in this regard (compare Matter of William AA., 24 AD3d 1125, 1126 [2005], lv denied 6 NY3d 711 [2006]).

Family Court's findings of medical neglect are similarly unsupported by a sound and substantial basis in the record. The attorney for the children presented evidence establishing that, in August 2013, roughly four years prior to the filing of the petitions, a pediatric nurse practitioner — whose care respondent had sought — diagnosed the second and third children with whooping cough and had prescribed antibiotics for the family. The progress notes established that the caseworker visited respondent's home after the diagnosis, at which time respondent stated that she and Patrick XX. had declined on religious grounds to provide the antibiotics to the children, that they were treating the whooping cough with alternative medicine and that the children were recovering well.[FN2] The caseworker's notes indicated that she was able to observe the oldest child and the third child during the visit and that they appeared to be healthy.[FN3] The caseworker's testimony and progress notes also established that, in July 2017, the caseworker had a conversation with respondent, in which respondent stated that she suspected that the youngest child had Lyme disease and that she was using naturopathic treatments to address her suspicions.[FN4] Upon review of the foregoing evidence, and considering that some of the medical neglect allegations pertained to events that occurred more than four years earlier, we find that the attorney for the children failed to prove, by a preponderance of the evidence, that the children's physical conditions were in imminent danger of becoming impaired as a result of a failure to provide adequate medical care (see Family Ct Act § 1012 [f] [i] [A]; compare Matter of Josephine BB. [Rosetta BB.], 114 AD3d 1096, 1098-1099 [2014]). Accordingly, because Family Court's findings of neglect are not supported by a sound and substantial basis in the record, we must reverse Family Court's orders and dismiss the petitions.

Footnotes

Footnote 1: Although respondent's counsel should have raised objections to the hearsay evidence offered by the attorney for the children, we cannot uphold a finding of neglect that is supported solely by inadmissible evidence.

Footnote 2: Family Court's finding that the oldest child also contracted whooping cough in August or September 2013 was solely based upon inadmissible hearsay, and its finding that she consequently missed a substantial amount of school is wholly contradicted by the certified school records that were admitted into evidence.

Footnote 3: The oldest child was observed riding a scooter.

Footnote 4: The remaining evidence proffered by the attorney for the children on the 2013 and 2017 events was inadmissible and, although not objected to, should not have been relied upon by Family Court (see Family Ct Act § 1046 [b] [iii])."


Monday, April 27, 2020

MY EXPERIENCE WITH VIDEO NOTARIZATION




As you know,  as part of Executive Order 202.7, electronic notarization is permitted under the following circumstances and now expires May 7,2020:



"Any notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology provided that the following conditions are met:

The person seeking the Notary's services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after;

The video conference must allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing);

The person must affirmatively represent that he or she is physically situated in the State of New York;

The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed;

The Notary may notarize the transmitted copy of the document and transmit the same back to the person; and

The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution."



Recently, I had my signature notarized by an attorney for a notary renewal, the attorney being someone I have known for quite some time, and we discovered the following “pitfalls” in video notarization:



1. It takes a lot of time. We knew each other but it takes time to scan the documents and ID, receive it, send back, etc. If we were not chatting it up, it would probably have been, under the best circumstances, at least 15 minutes. Perhaps longer if you are dealing with someone who is either “electronically challenged” or with someone with whom competency is an issue.



2. The usual video software is a head and shoulder shot so you are not really witnessing the signature, etc. unless the affiant lifts up the paper and sign it or the camera moves with each action. It would be possible to have someone say they are signing it but someone else out of video view is signing it, etc.



3. Once the affiant signs, are you actually viewing them sending the same document to you by fax or email? Not with a head and shoulder shot.



4. Once you transmit back a notarized copy, who will accept it immediately. In my case, it is a notary renewal application - will the Nassau County Clerk accept it? I will certainly find out.


Friday, April 24, 2020

ARTICLE 17-A GUARDIANSHIP NOT AUTOMATIC



In New York State, when a person becomes 18 years old they are assumed to be legally competent to make decision for themselves. This means no other person is allowed to make a personal, medical or financial decision for that individual. If a person is "intellectually disabled or developmentally disabled," has difficulty making decisions for themselves and over 18 years old, many parents will  ask the Surrogate's Court to appoint a guardian for him or her. This was a case from 15 months ago that I wanted to report on but forgot - it taught me that there are no guarantees in seeking a guardianship and that each case is different because each person is different.

Matter of Eli T. 2018 NY Slip Op 28389 Decided on December 5, 2018 Surrogate's Court, Kings County Lopez Torres, S.:

"Before the court is a guardianship proceeding pursuant to Article 17-A of the Surrogate's Court Procedure Act (Article 17-A) to appoint Sarah T. and Solomon T. (together, the petitioners) as guardians of the person of Eli T. (the respondent or Eli), and for the appointment of Chaim T. as stand-by guardian.

Article 17-A governs guardianship of persons who are diagnosed with an intellectual or developmental disability. SCPA 1750, SCPA 1750-a. An intellectually disabled person is defined by SCPA 1750 as one who is permanently or indefinitely incapable of managing oneself and/or one's own affairs because of an intellectual disability. The condition must be certified by a licensed physician and a licensed psychologist or by two licensed physicians, one of whom has familiarity with or knowledge of the care and treatment of persons with intellectual disabilities. It must appear to the satisfaction of the court that the best interests of such person will be promoted by the appointment of a guardian. SCPA 1754 (5). A developmentally disabled person is defined by SCPA 1750-a as one who has an impaired ability to understand and appreciate the nature and consequences of decisions which result in one's incapacity to manage oneself and/or one's own affairs. The developmental disability must be permanent or indefinite and attributable to cerebral palsy, epilepsy, neurological impairment, autism, traumatic brain injury, or any condition found to be closely related to intellectual disability. The condition must have originated before the age of 22, except for traumatic brain injury which has no age limit. As with SCPA 1750, the condition must be certified by a licensed physician and a licensed psychologist or by two licensed physicians, one of whom has familiarity with or knowledge of the care and treatment of persons with developmental disabilities, and the court must determine that it is in such person's best interest that a guardian is appointed. SCPA 1754 (5). The legal analysis in determining the need for guardianship is functionally the same whether an individual's disability is categorized under section 1750 or 1750-a of SCPA and relies upon the same body of law.

Under Article 17-A, the appointment of guardianship results in the complete removal of the individual's legal right to make decisions over her or his own affairs. "The imposition of an Article 17-A guardianship is plenary, and, under the provisions of the statute, results in the total deprivation of the individual's liberties," Matter of Michael J.N., 58 Misc 3d 1204 (A) (Sur Ct, Erie County 2017). On its face, the plain statutory language of Article 17-A does not grant a court authority or discretion to limit or tailor the scope of guardianship to meet the individual's specific areas of need, unlike guardianships available under Article 81 of the Mental Hygiene Law (Article 81) which expressly provides a tailored approach to meeting the needs of an alleged incapacitated person. Matter of Chaim A.K., 26 Misc 3d 837 (Sur Ct, New York County 2009); Matter of D.D., 50 Misc 3d 666 (Sur Ct, Kings County 2015); Matter of Michael J.N., supra; Matter of Sean O., NYLJ, Oct. 7, 2016, at 26, col 6 (Sur Ct, Suffolk County). For this reason, an Article 17-A guardianship is the most restrictive type of guardianship available under New York law and should only be granted in the absence of less restrictive alternatives. See Matter of K.L., NYLJ 1202792444598 (Sur Ct, Richmond County 2017); Matter of Michelle M., 52 Misc 3d 1211(A) (Sur Ct Kings County 2016).

Submitted in support of the petition are two requisite certifications, from Moshe Lazar, M.D., and Alan Blau, Ph.D.[FN1] Dr. Blau, who supervised the administration of the Stanford Binet Intelligence Scales-Fifth Edition and Vineland Adaptive Behavior Scales, confirms the diagnosis of Downs Syndrome and adds, in his certification, that the respondent "functions within the mild range of intellectual disability" with a full scale IQ score of 64 and adaptive behavior composite score of 77. Dr. Lazar's certification, in describing the mental and physical condition of the respondent, simply states, "physical condition normal. Mental retardation. Down's syndrome."

A psychological evaluation from the New York State Hamaspik Association (the evaluation) and a psycho-social summary completed by Neil Weinstein, LMSW, were also submitted. The evaluation reveals that Eli's area of cognitive strength is fluid reasoning, described as "ability to solve verbal and nonverbal problems using inductive or deductive reasoning." His score of 79 in this area is classified as "borderline deficient." The evaluation also shows that Eli's area of relative cognitive weakness is knowledge, described as "acquired accumulated fund of general information acquired at home, school or work." His score of 60 in this area is classified as "mildly deficient." The evaluation describes Eli as a young man who possesses communication, daily living, and socialization skills ranging from "adequate" in certain areas of adaptive behavior, to "moderately low" in others. In the area of communication, the psychologist found that Eli is capable of describing short and long term goals, giving directions to and receiving directions from others, and "using irregular plurals correctly." The psychologist further found that "Eli understands sayings that are not meant to be taken word for word. He follows three part instructions. Eli follows instructions in if-then form and follows instructions heard five minutes before." With respect to reading and writing skills, Eli reads on at least a fourth, sometimes a sixth grade level, and he writes reports, papers or essays that are [*2]one or more pages long, completes mailing and return addresses on letters and packages, and composes business letters and correspondence at least ten sentences long. The psychologist observed that Eli sometimes self-edits or corrects before submitting his written work. In the area of daily living skills, the evaluation shows that Eli is independent in all aspects of his personal hygiene. He also takes his medicine as directed, cares for minor cuts, and seeks medical help in an emergency. He is able to use the stove, oven and the microwave for heating, baking, or cooking meals. He prepares food using a sharp knife and uses ingredients that require measuring mixing and cooking. Mr. Weinstein described Eli as "a very sweet, good natured 22 year old young man with the diagnosis of Down Syndrome and mild intellectual disability." According his summary, Eli received center-based education services, including speech therapy, occupational therapy, and physical therapy during his per-school years, and then was placed in a MIS-4 special education program through the Board of Education. After he graduated, he attended the Jewish Center for Special Education, a high school program for boys with Downs Syndrome, and attended their vocational training program. Having graduated, Eli volunteers at the Boro Park Rehabilitation Center (the Center).

A hearing was held during which oral testimony was given by Eli and the petitioners, who are Eli's parents, and who were represented by counsel. The Court had an opportunity to observe Eli's demeanor, which the Court found to be engaging, inquisitive, observant, informed, and highly conversant.

Eli testified that he volunteers five days a week at the Center, which he explained was a rehabilitation and healthcare center. His responsibility as a patient transporter is to bring patients from their rooms to the rehabilitation rooms, and then transport the patients back to their rooms in their wheelchairs. He testified he liked his job and when asked why, he responded, "Well, it keep me healthier. It keeps me on my feet." He testified that he tries to get to work at 9 o'clock but "it depends how long prayer takes." His shift ends at 2:30 p.m. Eli uses public transportation independently. Although he has not yet been travel trained to use the subway, Eli uses buses to travel. In his commute to the Center, Eli rides the public bus for 45 minutes to an hour each way. Three times a week, he works out at a gym after work, traveling independently from the Center to the gym. "I take the B11 from the Center, and then from the gym I take the B68," Eli testified. At the gym, Eli works out on the treadmill, lifts weights, uses the bike, and engages in other aerobic activities. He testified that working out makes him feel better and helps him lose weight so he can avoid diabetes. The petitioners testified that Eli's doctor had informed them that he was a pre-diabetic candidate. Eli stated, "I've decided to get out of the zone before I get onto it," explaining his plan to start eating healthier and get more exercise.

Currently, Eli receives Supplemental Security Income (SSI) and his parents assist him in managing his money. Eli testified that most of his money is deposited at Signature Bank but he carries pocket money, given to him by his dad from his own account, from which he makes purchases on his own. Eli testified that he does not get paid for the work he does at the Center, but he would one day like to have a job that pays.

Eli expressed that he would like to get married at some point, and "the money in the bank will buy, I'd pay for the apartment and the mortgage." He does not currently have a girlfriend nor is he dating, which he described as "when you actually meet a girl and you take her out." At one point when the Court asked, "do you see girls in the synagogue?" Eli corrected, "I see ladies."

Eli testified that he enjoys listening to music, reading the Bible, dancing, watching the news as well as shows on YouTube such as "The Three Stooges," " The Dick Van Dyke Show," "I Love Lucy," and "the Honeymooners." When asked why he likes to watch these old shows, Eli explained that he learns lessons from them. From "The Honeymooners," Eli explained that he learned, "don't be a big shot," while from "I Love Lucy," he learned "don't get into so much trouble," elaborating that "Lucy is like, she's a simple lady who gets into a lot of trouble with her husband." He also opined that he would not like to have a marriage exactly like Lucy's; rather he would like his marriage to be "hopefully calm." When asked if he found the show to be calm, he responded, "No, no. Plenty of yelling , shouting, hitting . . . [t]hat's when you begin to fall apart . . . [t]hat's when you ruin a marriage." Eli also follows the news, noting that there are "interesting politics" with respect to the (then) upcoming presidential election. Eli testified he is registered to vote and planned to vote in the November presidential election. When asked who was running, he said "Hillary Clinton and some crazy guy that's Trump." He also observed "Well, it looks like Hillary is going to win the White House. That's what the polls are saying."

Eli resides with his parents, the petitioners, and is the youngest of 11 adult children. Eli testified that his responsibilities at home include taking out the garbage and helping clean the house. He does not usually assist his mother, who does most of the cooking, in the kitchen but he testified he can cook light things like eggs and a sandwich, and in the past he has helped bake.

Eli testified that he believes he needs help with issues like medical choices. Aside from expressing concern over how knowing much medicine to take, Eli articulated no other type of medical situations for which he needed a guardian. He testified that he does not regularly take medicine, but during the previous summer he recalled having to take a "Z pack" for his sore throat. He appears to be generally healthy.

Eli's mother testified that they would like to help Eli make wise decisions including medical and financial decisions. She testified that Eli can't do math problems, but she thinks he could learn how to manage a checking account. Eli's father testified that Eli's SSI checks are directly deposited into a joint checking account held in Eli's and his father's names. Eli's father further testified that he then writes out a check from that joint account to himself, deposits it into his personal account, and then he uses the funds for Eli's benefit. Often Eli's expenses exceed what he receives in SSI, and his parents make up the difference. Eli's father testified that there hasn't been anything that Eli has wanted that they did not provide for, which Eli confirmed. Eli's father expressed that they want to be included in Eli's medical care and to be able to discuss medical issues with Eli's doctors, although both parents testified that Eli has never objected to their presence and participation during his doctor's visits. Eli's father also testified that it would be must easier to talk with the SSI program. When asked to articulate any other reasons the petitioners seek guardianship, Eli's mother testified "I don't see the down side to it." The petitioners affirmed that they never looked into obtaining a healthcare proxy or becoming a payee for Eli's SSI funds. The sole area of contention between the petitioners and Eli, as presented, was with respect to the petitioners' concern about Eli's weight. Eli's mother testified that they have to monitor what Eli eats, and that she prepares Eli's breakfast and dinner in order to manage his food intake. "If we did not watch the pantry and minimize the amount of nosh in the house, things would get out of control," Eli's mother testified.

Aside from a disagreement between Eli and the petitioners over whether Eli administered [*3]medication independently or was assisted by Eli's mother, and an erroneous recollection of the duration of the "Z pack" medicine, there were no specific examples proffered of how Eli has made any medical decisions that have adversely affected his well-being. The petitioners, who make medical appointments for Eli, are always present and authorized by Eli to speak with his physicians. With his consent, Eli's finances are already managed by the petitioners in a joint bank account, and to the extent that Eli desires that his parents communicate more directly with the Social Security Administration regarding his SSI, he may choose to designate the petitioners as his payee, a far less restrictive alternative to guardianship. With respect to Eli's weight, it has not been shown how the petitioner's desire to help Eli maintain a healthy weight, a goal which Eli evidently shares, will be aided by the imposition of an Article 17-A guardianship.

There is no doubt that the petitioners are deeply devoted to Eli and are motivated by what they believe is in his best interest. While one's natural instinct to protect one's loved one may be assuaged by the appointment of a guardian, it is not, however, in the best interest of a person who can make decisions aided by the support of those he trusts, to have his ability to make decisions wholly removed by appointing a Article 17-A guardian, no matter how well-intentioned the guardians. The appropriate legal standard is not whether the petitioners can make better decisions than Eli; rather, it is whether or not Eli has the capacity to make decisions. The record presented is devoid of evidence regarding Eli's inability to make decisions with the support he currently has; indeed, no actual harm resulting from Eli's decision-making, preventable by the appointment of guardianship, has been demonstrated or even alleged.

Upon the record presented, the credible evidence demonstrates that Eli is an adult who has cognitive limitations but also has capacity to make decisions affecting the management of his affairs with the sufficient and reliable support of his loving family. Where, as here, the individual has strong support from family members and/or supportive services with whom he already consults in managing his affairs and making decisions, imposing a plenary guardianship is not in the individual's "best interest." Matter of Dameris L., 38 Misc 3d 570, 579. To allow Eli to retain the legal right to make personal decisions about his own affairs, while providing him with any necessary assistance to make or communicate those decisions in a supported decision-making framework, is ultimately in his best interest.

To the extent that Eli may desire additional support, evidence of which has not been presented, alternatives to guardianship, such as a durable power of attorney, advance directives, health care proxies, and representative payee arrangements, can provide targeted assistance without wholly supplanting Eli's right to make decisions in every aspect of his affairs.

Footnote 1:These certifications are generally boilerplate forms where the affirmant physician or psychologist checks off pre-printed conclusions relating to the decision-making capabilities of an intellectually or developmentally disabled individual. These forms are dismally wanting in details and useful information regarding the functional capacity of the respondent."


Thursday, April 23, 2020

TOO LATE FOR RPAPL 1302-A



According to e courts, no notice of appeal was filed.

JPMorgan Chase Bank, NA v. Carducci, 2020 NY Slip Op 20072 - NY: Supreme Court, Westchester County, March 10, 2020:

"Initially, the bank made the necessary showing to properly obtain a judgment of foreclosure. It produced the unpaid note, endorsed in blank, as well as the assigned mortgage and evidence of the mortgagors' default (see Citibank, N.A. v Van Brunt Props., LLC, 95 AD3d 1158, 1159 [2d Dept 2012]). Although there was no answer putting plaintiff's standing in issue, plaintiff's submissions proved its standing. The documents submitted with the filed complaint established that plaintiff was assigned the mortgage, and was in physical possession of the note, endorsed in blank by the payee (see Wells Fargo Bank, NA v Thomas, 150 AD3d 1312, 1313 [2d Dept 2017]).

Defendants abandoned the previous motion to vacate the judgment, therefore, the issues raised there — an alleged lack of personal jurisdiction and failure to comply with conditions precedent regarding required notices — are deemed to have been abandoned.

Defendants now rely solely on the contention that plaintiff lacks standing. They cite in support newly-enacted RPAPL 1302-a, which provides that "any objection or defense based on the plaintiff's lack of standing in a foreclosure proceeding relating to a home loan. . . shall not be waived if a defendant fails to raise the objection or defense in a responsive pleading or pre-answer motion to dismiss." However, defendants read too much into the new statute when they argue that defendants who seeks to interpose the standing defense after defaulting in the action need not establish grounds to vacate their default.

In order to vacate a default judgment of foreclosure and sale, a defendant must establish both a reasonable excuse for the default and a meritorious defense (see CPLR 5015 [a][1]; HSBC Bank, USA v Dammond, 59 AD3d 679, 680 [2d Dept 2009]). While RPAPL 1302-a abrogates the portion of HSBC v Dammond which held that "[h]aving failed to interpose an answer or file a timely pre-answer motion which asserted the defense of standing, the respondent waived such defense pursuant to CPLR 3211(e)" (59 AD3d at 680), the statute does not alter the remainder of the ruling of that case, that "since the respondent failed to demonstrate any other meritorious defense to the foreclosure action, and did not demonstrate a reasonable excuse for his failure to answer, it was error for the Supreme Court to grant those branches of the respondent's motion which were to vacate the judgment of foreclosure and dismiss the complaint (id. [emphasis added]).

Assuming that the defendants established the existence of a newly-available, valid standing defense, they must also establish excusable neglect. At oral argument, counsel for defendants conceded that they are unable to make such a showing. Moreover, nothing in defendants' moving papers makes such a claim. Accordingly, grounds to vacate the default judgment of foreclosure have not been presented.
Even if defendants are correct that RPAPL 1302-a authorizes the vacatur of a default judgment solely upon a demonstration of a viable standing defense, defendants' last minute argument challenging plaintiff's standing is not meritorious. Plaintiff was in possession of the note, endorsed in blank by the original lender, when it commenced this action. Defendants' citation to JPMorgan Chase Bank N.A. v Grennan (175 AD3d 1513 [2d Dept 2019]) is unavailing. In that matter, the Court found an issue of fact as to whether the note's endorsement in blank, which was situated on a separate page, was on an allonge that was firmly affixed to the note. The endorsement on the note at issue here is on the note's signature page.

This Court rejects defendants' argument that Washington Mutual's endorsement is invalid and has no legal effect, because of Washington Mutual's bankruptcy and takeover by the FDIC, which sold the bank's assets to plaintiff on September 25, 2008. The timing of the official assignment of the mortgage from the FDIC to plaintiff, which did not occur until November 3, 2016, does not invalidate the endorsement in blank of the note, which necessarily occurred while Washington Mutual was still in business. Defendants engage in mere speculation when they contend that the endorsement occurred improperly, at a time when Washington Mutual no longer had an interest in the note."

Wednesday, April 22, 2020

DEFENDING A COLLECTION CASE ON LACK OF SERVICE GROUNDS



When this crisis is over, expect a lot of collection actions and expect a lot of defendants to claim they were never served. Now in this case, from 8:48pm to 9:20pm, or in 32 minutes, the process server claims to have served 5 parties within a 2 mile distance - which according to the above Google Maps, means 19 minutes of driving, 13 minutes of parking, going into 5 buildings, waiting for the elevator, and attempting the service, etc. or about 2.5 minutes per service. Is it possible? This court said yes.

UNIFUND CCR LLC v. SEIFULLAH, 2020 NY Slip Op 50339 - NY: City Court, Civil Court, Bronx, March 9, 2020:

In this action for breach of contract, defendant's motion pursuant to CPLR § 3211(a)(8) seeking dismissal of this action on grounds that the Court has no personal jurisdiction over her is denied.
The complaint alleges that defendant was issued a credit card by plaintiff's predecessor in interest, the use of which was governed by an agreement between the same parties. It is alleged that defendant made purchases using the card and in failing to pay plaintiff's predecessor in interest, breached the agreement. It is also alleged that plaintiff was assigned the foregoing debt and that it is owed $6,131.75.

On April 25, 2019, the Court (Doherty, J.) denied defendant's motion pursuant to CPLR § 3211(a)(8), seeking dismissal of the complaint for want of personal jurisdiction. Defendant appealed and on November 18, 2019, the Appellate Term, First Department reversed thE Court's Decision and Order and remanded the case for a traverse hearing (Unifund CCR LLC v Seifullah, 65 Misc 3d 149[A], *1 [App Term 2019] ["Thus Civil Court should have conducted a traverse hearing before resolving defendant's motion to dismiss."]).

On March 5, 2020, this Court held a traverse hearing.

To the extent relevant, the parties stipulated to the admission of five documents into evidence. First, Carl Raymond Bouton's (Bouton) Process Server's license was admitted into evidence (Plaintiff's Exhibit 1). The license indicates that Bouton was a licensed Process Server in the City of New York. The license had an expiration date of February 28, 2020. Second, Bouton's affidavit of service of the summons and complaint in this action, evincing service of the same upon defendant, was also admitted into evidence (Plaintiff's Exhibit 2). The affidavit of service indicates that on October 31, 2018, at 9:04pm, Bouton served the summons and complaint upon defendant by leaving a copy of the same with Khalid Seifullah (Khalid), a person of suitable age and discretion, at the premises located at 3405 Kossuth Avenue, Apt. 4D, Bronx, NY 10467 (3405). The affidavit indicates that the summons and complaint were also mailed to defendant at the address above on November 1, 2018. A stamp on the affidavit indicates that it was filed with the Court on November 2, 2018. Third, portions of Bouton's logbook were also admitted into evidence (Plaintiff's Exhibit 3). The logbook contains an entry memorializing the service of the summons and complaint upon defendant. Said entry is consistent with the affidavit of service. Fourth, a photograph bearing the date, time, and GPS information was admitted into evidence (Plaintiff's Exhibit 4). The photograph depicts the entrance of a building, contains GPS coordinates and is date/time stamped. The forgoing stamp indicates that the photograph was taken on October 31, 2018 at 9:03 pm. Fifth, defendant's renewal lease was also admitted into evidence (Defendant's Exhibit C). The lease indicates that on December 1, 2017, defendant resided at (3405) and renewed the lease for an additional two years.

The Court also admitted five affidavits into evidence, over plaintiff's objection and upon defendant's request that the Court take judicial notice of them[1] (Defendant's Exhibit B). The first two affidavits indicate that Bouton served process upon unrelated non-parties in other cases prior to effectuating service upon defendant. Specifically, at 8:48pm, Bouton served process upon a defendant by leaving a copy of the summons and complaint with a person of suitable age and discretion at the premises located at 2505 Olinville Avenue, Apt. 6D, Bronx, NY 10467. Bouton also served process upon another defendant at 8:59pm, by leaving a copy of the summons and complaint with a person of suitable age and discretion at the premises located at 3530 Bainbridge Avenue, Apt. 4F, Bronx, NY 10467. The third affidavit made part of this exhibit is the one for service upon defendant, while the fourth and fifth are for service effectuated by Bouton after purported service of process upon defendant. Specifically, at 9:14pm, Bouton served process upon a defendant by leaving a copy of the summons and complaint with a person of suitable age and discretion at the premises located at 3560 Rochambeau Avenue, Apt. 4C, Bronx, NY 10467. At 9:20pm, Bouton also served process upon a defendant by leaving a copy of the summons and complaint with a person of suitable age and discretion at the premises located at 3467 Dekalb Avenue, Apt. 1E, Bronx, NY 10467.

At the hearing, plaintiff elicited testimony from Bouton, who testified, in pertinent part, as follows: Bouton is a licensed process server, who some time around October 31, 2018, was asked by plaintiff to serve the summons and complaint in this action upon defendant. On October 31, 2018, as was his custom and practice, defendant set out to serve process upon multiple defendants with his wife. Generally, his wife drove their vehicle and Bouton would exit the vehicle and serve process at designated locations. At some point that night, his wife drove him to 3405. Bouton exited his vehicle and was able to enter the building because someone was exiting. Bouton took the elevator to the fourth floor and knocked on the door to apartment 4D. A man answered the door and indicated that defendant was not home. The man gave Bouton his name, which was Khalid, indicated that defendant was not in the military, and accepted the summons and complaint on defendant's behalf. Bouton then ran down the stairs and as he did so, used his telephone to input the information regarding service upon defendant in the Independent Server, a service/database which keeps track of service by process servers. The next day, Bouton, with the aid of the Independent Server, created the affidavit of service evincing service upon defendant, memorialized the same in his logbook and mailed a copy of the summons and complaint to defendant. At some point, either immediately before or after effectuating service upon defendant, he photographed the front of 3405 using software on his telephone which inscribed the location of where the picture was taken using GPS coordinates as well as the date and time it was taken. Bouton testified that he served approximately 18 people that day and described service upon two people immediately before and after service upon defendant. With regard to the four locations in between which service upon defendant was sandwiched, Bouton testified that the locations were either only several minutes away or right next door to 3405. Bouton testified that he was not aware of any instance where service by him had been found defective. When confronted with a decision by this Court (Kraus, J.), where service by him had been found defective after a traverse hearing, Bouton testified that he had not reported the decision as required because he was unaware of it.

Defendant also testified at the hearing, stating, in pertinent part, as follows: on October 31, 2018, she resided at 3405 with her daughter and no one else. On that day, she worked from 10am-6pm and commuted to work by bus. As was her custom and practice, when she got home that evening, she proceeded to move her vehicle because of the alternate side of the street parking rules. Because parking in her neighborhood was difficult to find, she ordinarily parked several blocks away. Defendant finally got home at 8pm, spoke to her daughter, cooked dinner and showered. Defendant then watched television and ultimately went to bed at 10pm. Defendant testified that on October 31, 2018, if someone had knocked on her door, either she or her daughter would have answered. Defendant also testified that 3405 did not have an elevator. Defendant denied knowing anyone named Khalid or that she received the summons and complaint that night.

Based on the foregoing, crediting Bouton's testimony and the documents supporting service of process upon defendant, the Court denies defendant's motion for dismissal of the complaint finding that defendant was properly served with the summons and complaint pursuant to CPLR § 308(2). As such, this Court has personal jurisdiction over defendant.

It is well settled that a motion to dismiss for lack of personal jurisdiction pursuant to CPLR § 3211(a)(8) will be granted when it is established that service of process upon a defendant was improper (Feinstein v Bergner, 48 NY2d 234, 234-235 [1979] [Court dismissed complaint for lack of personal jurisdiction when defendant was served with process by nail and mail service at an address where defendant no longer resided.]; West v Doctor's Hospital, 198 AD2d 92, 92 [1st Dept 1993] [Court granted motion to dismiss for want of personal jurisdiction, holding that service was improper when summons and complaint were left with someone on the 14th floor, rather than the 8th floor — the floor where defendant maintained his office.]; O'Connell v Post, 27 AD3d 630, 630-631[2d Dept 2006] [Court granted motion to dismiss for lack of personal jurisdiction holding that service was improper when plaintiff resorted to nail and mail service without attempting to serve defendant at his place of business]).

It is well settled that the burden of establishing personal jurisdiction and proper service rests with the plaintiff (Frankel v Schilling, 149 AD2d 657, 659 [2d Dept 1989]; Torres v Corpus, 131 AD2d 463, 464 [2d Dept 1987]). Generally, an affidavit evidencing proper service upon the defendant is sufficient to support a finding of jurisdiction (Skyline Agency, Inc. v Ambrose Coppotelli, Inc., 117 AD2d 135, 139 [2d Dept 1986]). As such, an affidavit of service is prima facie evidence of proper service (Caba v Rai, 63 AD3d 578, 582-583 [1st Dept 2009]; NYCTL 1998-1 Trust Bank of NY v Rabinowitz, 7 AD3d 459, 460 [1st Dept 2004]; Scarano v Scarano, 63 AD3d 716, 716 [2d Dept 2009]; Simonds v Grobman, 277 AD2d 369, 370 [2d Dept 2000]), and personal jurisdiction will be upheld, without a traverse hearing, if the only evidence submitted to controvert service is a bare denial of service (Caba at 583; Simonds at 370; Beneficial Homeowner Service Corp. v Girault, 60 AD3d 984, 984 [2d Dept 2009]; Chemical Bank v Darnley, 300 AD2d 613, 613 [2d Dept 2002]), or by reference to a minor discrepancy, such as the description of the recipient listed in the server's affidavit (Green Point Savings Bank v Clark, 253 AD2d 514, 515 [2d Dept 1998]). Stated differently, a mere conclusory denial of service does not negate the propriety of service established by an affidavit of service (Caba at 683 [Sworn denial conclusorily stating that defendant was not served was insufficient to rebut service as evinced by the affidavit of service.]; Rabinowitz at 460 [Defendant negated service of process upon him by citing to the affidavit of service and pointing to the deficiencies therein.]). In order to properly assail service so as to warrant a hearing, the defendant's affidavit must specifically rebut the facts in the plaintiff's affidavit of service (Caba at 683; Simonds at 370). If the denial of service is factually specific, then the court must hold a traverse hearing before deciding whether it has personal jurisdiction over the defendant (Frankel v Schilling, 149 AD2d 657, 659 [2d Dept 1989]; Powell v Powell, 114 AD2d 443, 444 [2d Dept 1985]).

At a traverse hearing, plaintiff bears the burden of establishing service upon the defendant (Chaudry Const. Corp. v James G. Kalpakis & Assoc., 60 AD3d 544, 545 [1st Dept 2009]; Schorr v Persaud, 51 AD3d 519, 519-520 [1st Dept 2008]). Moreover, at the hearing, the trial court can resolve issues of credibility, such resolution accorded great deference, and absent a determination that it is against the weight of the evidence, cannot be disturbed on appeal (Saperstein v Lewenberg, 11 AD3d 289, 289 [1st Dept 2004]; McCray v Petrini, 212 AD2d 676, 676 [2d Dept 1995]; Avakian v De Los Santos, 183 AD2d 687, 688 [2d Dept 1992]). Indeed, it is well settled that "in a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference" (People v McCoy, 100 AD3d 1422, 1422 [4th Dept 2012]; see Ning Xiang Liu v Al Ming Chen, 133 AD3d 644, 644 [2d Dept 2015]). Moreover,
[a] judicial factfinder should make credibility determinations on the basis of demeanor, forthrightness in answering, consistency or lack thereof in the account being given, interest in the outcome and other relevant considerations(Gass v Gass, 42 AD3d 393, 401 [1st Dept 2007]).
In New York City, all process servers who engage in service of process on five or more occasions must be licensed by the New York City Department of Consumer Affairs (New York City, NY, Code § 20-404). § 20-404(a) defines a process server as
a person engaged in the business of serving or one who purports to serve or one who serves personally or by substituted service upon any person, corporation, governmental or political subdivision or agency, a summons, subpoena, notice, citation or other process, directing an appearance or response to a legal action, legal proceeding or administrative proceedings.
In addition, New York City, NY, Code § 20-403 imposes a licensing requirement upon process servers and states that "[i]t shall be unlawful for any person to be employed as or perform the services of process server without a license therefor."

General Business Law (GBL) § 89-cc mandates that all process servers keep a record of the process they serve and 22 NYCRR 208.29 mandates that when a process server is called to testify at a traverse hearing, he/she is required to bring all records in his possession related to service.
The forgoing rules
were designed to combat a continuing and pervasive problem of unscrupulous service practices by licensed process servers. These practices deprive defendants of their day in court and lead to fraudulent default judgments. Often associated with consumer debt collection and landlord-tenant litigation, questionable service practices have their greatest impact on those who are poor and least capable of obtaining relief from the consequences of an improperly imposed default judgment. Accordingly, the Department of Consumer Affairs must depend on the accurate record-keeping practices of its licensees as a means of monitoring the industry and uncovering wrongful practices. Petitioner's repeated disregard for the strictures of the agency's record-keeping provisions was a direct violation of the terms of his license and, further, was antithetical to the regulatory goal of assuring honest service practices(Barr v Dept. of Consumer Affairs of City of New York, 70 NY2d 821, 822-823 [1987]).
Accordingly, trial courts have routinely declined to credit a process server's testimony regarding service when the witness fails to keep records in accordance with the statutory requirements (Barr at 822-823), fails to bring all papers — such as his logbook — related to the service at issue to a traverse hearing (First Commercial Bank of Memphis, N.A. v Ndiaye, 189 Misc 2d 523, 526 [Sup Ct 2001]; Masaryk Towers Corp. v Vance, 12 Misc 3d 1172[A], *9 [Civ Ct 2006]; Borges v Entra Am., Inc., 7 Misc 3d 1032[A] [Civ Ct 2005]), or fails to demonstrate that he was properly licensed (Borges at *6).

The rationale underpinning the decision not to credit a process server who fails to comply with the statutory record keeping requirement is simply one of memory — which is lost over time. It is a recognition that memory fades with time and as such, reliance upon proper records is paramount. This is particularly true of process servers who normally engage in the service of many items in their day to day employment and for whom there exist many months between service and being called upon to testify regarding a particular instance of service (Masaryk at *9. Accordingly, proper record keeping is essential to ensure accuracy (id.). In First Commercial of Memphis, the court stated that
[m]any months passed between the time of alleged service and the traverse hearing. The unaided memory of the process server, who may have served hundreds of people in the interim, is unreliable. The plaintiff has the burden of proving jurisdiction by a preponderance of credible evidence. In this case, the plaintiff has not met this burden in producing a process server whose records do not conform with statutory requirements(id. at 526).
Pursuant to 22 NYCRR 208.1(b), the court can waive compliance with any of the Uniform Rules for the New York State Trial Courts when good cause is shown. However, to the extent that there exists strong public policy to support the rules and regulations governing service of process, strict compliance with said rules is required. As such, the court shall not waive the documentary requirements imposed upon process servers by 22 NYCRR 208.29 (Inter-Ocean Realty Assoc. v JSA Realty Corp., 152 Misc 2d 901, 903 [Civ Ct 1991] [Court declined to credit process server's testimony regarding service when he failed to bring the same to traverse hearing. Court concluded that the process server's excuse for failure to bring his logbook, namely, that it had been stolen, was unsubstantiated with corroborating evidence.]).

Here, upon consideration of all of the evidence offered at the traverse hearing, the Court finds that plaintiff established that defendant was, in fact, served with the summons and complaint in this action. To be sure, at a traverse hearing, plaintiff bears the burden of establishing service upon the defendant (Chaudry Const. Corp. at 545; Schorr at 519-520) and at the hearing the trial court is tasked with resolving issues of credibility; such resolution accorded great deference, which absent a determination that it is against the weight of the evidence, cannot be disturbed on appeal (McCray at 676; Avakian at 688).

Significantly, Bouton testified that on October 31, 2018, he served defendant with the summons and complaint in this action when he left the same with Khalid, a person of suitable age and discretion, who answered the door to defendant's apartment and was wiling to accept service on defendant's behalf. While trial courts routinely decline to credit a process server's testimony regarding service when the witness fails to keep records in accordance with the statutory requirements (Barr at 822-823), fails to bring all papers, such as his logbook, related to the service at issue to a traverse hearing (First Commercial Bank of Memphis, N.A. at 526; Masaryk Towers Corp. at *9; Borges at * 6) or fails to demonstrate that he was properly licensed (Borges at *6) here, Bouton was licenced and produced his license at the hearing, memorialized service in his logbook, which was admitted into evidence, and produced a photograph of plaintiff's building bearing an indelible time, date, and GPS stamp. To the extent that with regard to the latter, Bouton testified that an application on his phone automatically inscribed the date and time the photograph was taken on the picture as well as the GPS coordinates for the location where the picture was taken, the photograph is incontrovertible evidence that Bouton was, in fact, at defendant's building on October 31, 2018 at 9:03 pm; the same date and approximate time that Bouton testified he effectuated service upon defendant and which his contemporaneous documents — the logbook and affidavit of service — support.

The Court did not find that defendant testified credibly with regard to her denial of service and her testimony that she did not know anyone named Khalid. Moreover, the Court was not persuaded by her counsel's attempts to convince the Court that Bouton either could not — given the short intervals between service — have properly served as many people as indicated in the affidavits of service submitted into evidence by defendant or that because everyone served by Bouton that night were served by substituted service, that he, in essence, served no one at all.

Based on the foregoing, since it is well settled that the burden of establishing personal jurisdiction and proper service rests with the plaintiff (Frankel at 659; Torres at 464), here, the evidence demonstrates that defendant was served pursuant to CPLR § 308(2)[2]. To be sure, the evidence establishes that defendant was served on October 31, 2018 when the summons and complaint were left at her home with Khalid, whose age is listed as 38 years old. The evidence further indicates that the summons and complaint were then mailed to defendant's home the very next day and that the affidavit of service was filed with the Court on November 2, 2018, a day later. It is hereby

ORDERED that all parties appear for a conference on April 30, 2020, in Room 504, Part 11C at 9:30 am. It is further

ORDERED that plaintiff serve a copy of this Order with Notice of Entry upon defendant within thirty (30) days hereof.

This constitutes this Court's decision and Order.

[1] It is well settled that a court can take judicial notice of any and all undisputed court records and files (Khatibi v Weill, 8 AD3d 485, 485 (2d Dept 2004). Indeed, this rule includes the court's own court files and extends to files related to proceedings in other courts (MJD Construction, Inc. v Woodstock Lawn & Home Maintenance, 299 AD2d 459, 459 [2d Dept 2002]; Ptasznick v Schultz, 247 AD2d 197, 199 [2d Dept 1998]; Warner v Board of Education of the City of New York, 14 AD2d 300, n 1 [1st Dept 1961]). When a court chooses to take judicial notice of records, it obviates a foundation for purposes of admitting said documents into evidence (Bernasconi v Aeon, LLC, 105 AD3d 1167, 1169 [3d Dept 2013]; Lagano v Soule, 86 AD3d 665, 667, n 5 [3d Dept 2011]; Secretary of Dept. of Hous. and Urban Dev. v Torres, 2 Misc 3d 53, 55 [App Term 2003]). Here, the Court took judicial notice of the affidavits in its files.
[2] CPLR § 308(2) states that a natural person can be served "by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, 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; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service."

Tuesday, April 21, 2020

RELITIGATING BAD PUBLICITY IS A BAD IDEA


'There's no such thing as bad publicity' is often associated with Phineas T. Barnum, the 19th century American showman and circus owner. But in these days of the web, Yelp, Google, etc., that may not be true and some consumers have taken their right to an opinion to the extreme.

On December 16, 2016, an action for defamation was commenced by a real estate broker against a defendant who created a website entitled “{NAME OF BROKER}.com – The Worst Broker Ever!” which, as the court described, was a "five-page running narrative regarding defendant’s negative experience using plaintiffs’ real estate services. Plaintiffs alleged causes of action for libel, and intentional and negligent infliction of emotional distress." The court denied plaintiff's motion for summary judgment finding by order dated July 25, 2018 "that plaintiffs’ libel claim was not actionable because defendant’s website, as a whole, was “pure opinion" … that defendant’s opinion about {NAME OF BROKER} being the “worst broker ever” was based on so-called “facts” – such as {NAME OF BROKER} failing to appear for a property closing ( see Steinhibler v Alphonse , 68 NY2d 283, 289 [1986] [“A pure opinion is a statement of opinion which is accompanied by a recitation of the facts upon which it is based”]). In particular, this court found defendant’s website, as a whole, to be a consumer criticism, which is not subject to libel claims ( see Themed Restaurants, Inc. v Zagat Survey, LLC , 21 AD3d 826, 827 [1st Dept 2005] [highly critical comments from reviewers in the Zagat guide of a female impersonators cabaret were mere opinion and thus protected]).  Subsequently, defendant moved to dismiss the complaint and the court granted the action in 2019.

This decision was not published or reported but around the time of the decision, it appears that the defendant took down the website. So this would appear to be the end of the story but....

However, in January of this year, the plaintiff moved for re-argument which the court denied be decision dated April 13, 2020. And that decision was reported and the name of the broker was revealed to anyone who reads and reports on court decisions. The lesson - don't litigate bad publicity. If a bad review is plaguing your small business, litigation is not a way to go about dealing with the situation.

Monday, April 20, 2020

THE DISSENT IN THE POSTMATES CASE



This decision is apparently pre-COVID so what will be the future of the "gig economy" is anyone's guess. Only the dissent is being presented here.

MATTER OF VEGA (POSTMATES INC.—COMMISSIONER OF LABOR), 2020 NY Slip Op 2094 - NY: Court of Appeals March 26, 2020:

WILSON, J. (dissenting): NOTE:Judge Wilson dissents and votes to affirm in an opinion in which Judge Garcia concurs.

The majority's opinion suffers from two independent defects. The first is a failure to examine the record to determine whether the findings of the Commissioner of Labor were supported by substantial evidence. Many of those findings were so lacking in support as to appear to have been cut and pasted from the decision in some other matter, or from a form list of all the possible factors that might warrant the conclusion that someone was an employee. Under those circumstances, reversal is required. The second is a failure to recognize that the realities of the contemporary working world have outpaced our jurisprudence. The multitude of factors identified in our caselaw as pertinent to determining whether a claimant is an employee or independent contractor — reflective of a time when employees received a gold watch upon retiring from the sole company at which they spent their entire careers — coupled with our deferential standard of review, has left only two undesirable paths open: either we adhere to the caselaw and standard of review, leaving all agency decisions unreviewable, or we make haphazard reversals without explanation, based on an ad hoc test we do not articulate because it defies explanation. We have chosen the latter approach, which has nothing to recommend it except that it is marginally better than the former.

I.

The majority begins by asserting that "[t]he issue before us is whether the decision of the Unemployment Insurance Appeals Board (the Board) that claimant, a former Postmates, Inc. courier, and others similarly-situated are employees for whom Postmates is required to make contributions to the unemployment insurance fund was supported by substantial evidence" (majority op at 1-2). That is not correct.

At the inception of the hearing before the ALJ, the following colloquy occurred:

ALJ PICHARDO: This two-page document is marked as an exhibit for the record as Hearing Exhibit 1 as of today's date. And so where on this document does it say similarly situated, Ms. Claxton?
MS. CLAXTON [Counsel for the Commissioner]: I don't see it. I don't see it, you're right.
ALJ PICHARDO: So then it's only for —
MS. CLAXTON: For the claimant.
ALJ PICHARDO: — claimant?
MS. CLAXTON: Yes, Judge.
ALJ PICHARDO: All right.

After the close of evidence, the ALJ reiterated that "my decision in this case ... only relates to Mr. Vega and not any other employees." Thus, this appeal concerns only Mr. Vega: whether there is substantial evidence supporting the determination that he was an employee of Postmates. The Board's determination, erroneously purporting to apply its decision to all similarly situated Postmates workers, is itself a freestanding basis to reject the Board's determination (see Pell v Board of Education, 34 NY2d 222, 230-231 [1974] [the action of an administrative tribunal is arbitrary when "taken without regard to the facts"]).[12]

Anyone can download the Postmates Fleet app to become a courier for Postmates. I could be a Postmates courier, so long as I passed a criminal background check. I could make Postmates deliveries when and where I pleased, and extemporaneously indicate my availability at moments when I need a break from the press of court business. I could make my deliveries by any form of locomotion I choose: walk, bicycle, scooter, car, rollerblade, etc.

Luis Vega, at least briefly, thought more of the Postmates opportunity than did I. He downloaded the app, provided sufficient information to pass the criminal check, and was thereafter authorized to use the Postmates service to make deliveries. Mr. Vega indicated he would be walking to make deliveries. He first logged on to Postmates on June 8, 2015, and last logged on to Postmates on June 15, 2015. At that point, he had worked for Postmates for less than a week and had logged on 12 times for an average of 3 hours and 15 minutes at a time. During those six days, Mr. Vega rejected or ignored about 50% of the assignments offered to him. The record was unequivocal that, even if Mr. Vega requested to make a specific delivery assignment and obtained it, he could thereafter change his mind and reject it, causing it to be dumped back into the pool of assignments available to others. Mr. Vega had no set schedule; he had no supervisor[13]; and, he chose what deliveries interested him, how to perform deliveries, the route he would take, and the times at which he would log on and off. Of the jobs he accepted over those six days, "a lot of requesters' feedback" indicated that "they weren't receiving the items requested." Postmates therefore blocked Mr. Vega from the app. Mr. Vega then filed for unemployment benefits.

In its determination of the matter in August 2015, the Department of Labor classified Mr. Vega as an employee for the purposes of New York Unemployment Insurance Law. The Department of Labor's determination that Mr. Vega was Postmates' employee lists 24 factors supporting that determination.

A large number of those factual findings are directly contradicted by the record[14]. Among those factors are: Mr. Vega was told "when, where, and how the work was to be performed"; he was required to report to a supervisor and work an established schedule; he was required to deliver the packages within a set time; his work would be reviewed; he could not take time off without Postmates' approval; he was covered by a workers' compensation policy; he was not free to determine the route of the delivery; and, he could not perform other deliveries while on route with Postmates.
None of these factors has support in the record. Each of those factors was undermined by the testimony before the ALJ, who found that the Postmates couriers chose when they worked, how they worked, and where they worked; couriers could and did choose their own routes; Mr. Vega was not covered by workers' compensation; couriers were free to reject, ignore, or accept assignments as they chose; and, couriers were free to work for other companies at the same time as they worked for Postmates (id.). Although the Commissioner found that Mr. Vega "could not engage substitutes or other couriers without your permission," the record evidence was that Mr. Vega could "hand his phone to a complete stranger" to complete deliveries. Additionally, the Department noted as a factor that: "Individuals performing such services as couriers were previously determined to be your employees." However, the ALJ expressly stated that she was "not going to be considering it" because Postmates and its counsel "weren't aware of this determination." Moreover, counsel for the Commissioner stated, "I didn't really want to make it a part of the record," after which the ALJ reiterated, "that's not going to be before me."

Based on the record, which included both exhibits and testimony, the ALJ held that Mr. Vega was an independent contractor not entitled to unemployment benefits. Although the Board did not make any finding of fact contrary to the ALJ's findings, the Board reversed the ALJ's determination. The Appellate Division reversed the Board's determination for lack of substantial evidence, citing our decision in Yoga Vida (Matter of Vega v Postmates Inc., 162 AD3d 1337 [3d Dept 2018]). The court noted the lack of application or review process, the lack of supervision, the courier's choice to log on and accept delivery requests, the courier's choice of route and mode of transportation, the lack of a required uniform or identification, the payment system (allowing for payment only upon the completion of a delivery), and the lack of reimbursements for delivery-related expenses (id. at 1338-1339). Although some indicia of control remained, the court concluded it only showed incidental control, insufficient to render Mr. Vega an employee (id. at 1339). To recap: the Commissioner, the Board and majority conclude that Mr. Vega's slapdash week of activity made him Postmates' employee; the ALJ and Third Department concluded, as do I, that it did not[15]. What accounts for that disagreement? The failure of our precedent to keep up with the times.

II.


"Any employer shall become liable for contributions under [Article 18, the Unemployment Insurance law] if it has paid remuneration of three hundred dollars or more in any calendar quarter" (Labor Law § 560 [1]). "Remuneration" in this part of the Labor Law means "every form of compensation for employment paid by an employer to his employee" (Labor Law § 517 [1]) and "employment" is defined as "any service under any contract of employment for hire, express or implied, written or oral" (Labor Law § 511 [1] [a]), subject to many additions not relevant here[16]. Thus, Postmates' obligation to pay unemployment insurance contributions for Mr. Vega turns on whether its agreement with him was "a contract of employment for hire." That definition of "employment" is circular, so we have interpreted it to apply what is described as the "common law test" of employee status (In re Morton, 284 NY 167, 173 [1940], cf. Community for Creative Non-Violence v Reid, 490 US 730, 740 [1989]), often described as the "control test," when determining liability for unemployment insurance payments.[17]

Under the control test of employee status, "the critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results" (Bynog v Cipriani Group, Inc., 1 NY3d 193, 198 [2003]). We further explained that "control over the means is the more important factor to be considered," and distinguished "incidental control over the results produced without further indicia of control over the means employed to achieve the results" from other forms of control that would evince an employment relationship (Matter of Ted Is Back Corp. [Roberts], 64 NY2d at 726; see Matter of Hertz Corp. [Commissioner of Labor], 2 NY3d at 735). However, that means-ends test coexists uneasily with a separate test, the "overall control" test, where "substantial evidence of control over important aspects of the services performed other than results or means is sufficient to establish an employer-employee relationship" (Matter of Empire State Towing and Recovery Assn., Inc., 15 NY3d 433, 437-438 [2010]; Matter of Concourse Ophthalmology Assocs., P.C., 60 NY2d 734 [1983] ["The board's determination is ... supported by substantial evidence of control over important aspects of the services performed other than results or means"]). The "overall control" test is said to apply only "where the details of the work performed are difficult to control because of considerations such as professional and ethical responsibilities" (Empire State Towing, 15 NY3d at 437-438).

A.


Putting aside the clear lack of record support for a multitude of the factors relied on by the Department of Labor, the majority's conceptual error in resolving this case (and, I suspect, a good deal of the confusion below on the application of the control test) stems from a lack of decisional clarity about what factors matter when and why. Every contractual relationship for the provision of services will involve some control — whether overall or over means-ends — being ceded to the service-provider and some control being held by the requestor. No sensible enterprise gives even an indisputably independent contractor complete control over the "results produced or the means used to achieve the results." Imagine instructing a contractor to build a house, with no specification as to the size, layout, style or features to be included (ends) or a requirement that the contractor comply with local building laws (means). Absent a more defined legal standard it is unclear how much control the employer may have over an independent contractor before that contractor becomes an "employee," or, for that matter, what makes control "incidental" as compared to non-incidental.[18]

Matters are especially unclear in the semi-professional world of the "overall control" test, which tells us only that sometimes control over "important aspects" other than ends or means matters. But even the means-ends test is no panacea. Means and ends are not perfectly polarized. Here, for example, Postmates allows its couriers to choose whatever method of delivery they wish, but had Mr. Vega opted to deliver by pogo stick, turning sushi into a poke bowl or burritos into taco salads, surely he would have been bounced from the app expeditiously. Postmates undoubtedly cares that its customers receive their dinners intact, but Postmates' concern for that end, or a ban on the means of pogo stick deliveries, does not address the question of control for employment purposes. Both the means (no pogo) and ends (no mush) would be required whether the delivery person was an independent contractor or an employee.

Because "control" standing alone is relatively unhelpful, we have responded by creating a multifactor analysis where no one factor is determinative and where, as the majority correctly observes, "no enumerated list of factors can apply to every situation faced by a worker" (majority op at 5). The Supreme Court of the United States, reviewing a similar proliferation of factors, noted dryly that "the traditional agency law criteria offer no paradigm of determinacy" (Nationwide Mut. Ins. Co. v Darden, 503 US 318, 327 [1992]). This approach has given us a hash of factors that may be held more or less probative to the "control" determination depending on who is performing the analysis; indeed, in the briefing on this case, the parties point to more than twenty factors, each supported by one or more of our cases, none of which overruled the other, all of which are claimed to bear on the control analysis. Yet without providing guidance as to which factors ought to be weighed, and how weighed, and when weighed — without providing some precision and clarity as to what the factors are meant to support the existing paradigm ends up giving the agency free rein to make whatever legal determinations it pleases until, usually with little explanation, we reverse the Board's findings for want of "substantial evidence" in an opinion that usually wants for substantial explanation (cf. Matter of Charles A. Field Delivery Services [Roberts], 55 NY2d 516, 517 [1985]).[19]

B.


Our inconsistent, summary precedent makes it nearly impossible to arrive at a decision in this case that seems in perfect harmony with what has come before. Reading today's decision, one might think that, in the future, the Board's employment-status determinations will unfailingly be affirmed on the grounds of substantial evidence. Instead, today's decision is just one more bounce of the ball in the opposite direction whence it came.

In 12 Cornelia St. (56 NY2d 895 [1982]), a memorandum opinion, we held that the Unemployment Insurance Appeal Board's determination that real estate salespersons were employees was not supported by substantial evidence, because that "determination must rest on evidence that the company exercises control over the results produced by its salespersons or the means used to achieve the results" — and "such control [wa]s lacking" where the salespersons: (1) were paid commissions; (2) worked whatever hours they chose; (3) were free to engage in outside employment; (4) bore their own expenses; (5) were not required to attend meetings or trainings; (6) paid their own premiums for health insurance; and, (7) found their own leads. Those salespeople were independent contractors even though the real estate corporation supplied them with business cards, held regular sales meetings, and provided them with workers' compensation (12 Cornelia St., Inc. v Ross, 83 AD2d 681, 682 [3d Dept 1981]). Mr. Vega — like the salespeople — was paid by commission (he received a percentage of the fee charged to the customer by Postmates for each delivery, which fee varied by distance), worked whatever hours he chose, was free to engage in outside employment, bore his own expenses, was provided no health insurance, and was not required to attend meetings or trainings (other than one initial meeting on how to use the app). Yet, despite the "evidence in the record that would have supported a contrary conclusion" (majority op at 4, citing Concourse Ophthalmology, 60 NY2d 734 [1983]), in 12 Cornelia St., we reversed the Board's determination as not supported by substantial evidence.

In Concourse Ophthalmology (60 NY2d at 736 [1983]), another memorandum decision, we upheld the Board's determination that doctors were employees, laying stress on the alleged employer's control of: (1) employee schedules; (2) the place of employment; (3) the appointment-making process; (4) the fee schedule; (5) ownership of key equipment; (6) administration of bills; and, (7) allocation of record-keeping responsibilities, even though the purported employer did not control the "results or means" of the doctors' work. However, those doctors maintained their own malpractice insurance, operated substantial outside practices, and "functioned completely autonomously" (Matter of Concourse Ophthalmology Assocs., P.C., 89 AD2d 1047, 1048 [3d Dept 1982] [Levine, J., dissenting]). We did not dispute the putative employer's contention that "the record is devoid of evidence of control over results or means." Instead, we brushed the means-ends test aside because "professional services do not lend themselves to such control." Thus, we affirmed the Board's decision on the grounds that substantial evidence existed in the record. Following that precedent, then, where the factors cut in different directions, the Board may have had "substantial evidence" for its determination here, because Postmates controlled the delivery-assignment process, the fee schedule, administration of bills and allocation of record-keeping responsibilities, even though the first two factors we cited in Concourse Ophthalmology (regular work schedule and employer determination of place of work) cut against finding Mr. Vega an employee.

In yet another memorandum, we reversed the Board's decision that salespeople for an aluminum siding installation company were employees, holding that decision was not supported by substantial evidence (Ted Is Back, 64 NY2d at 726; see also Matter of Ted Is Back Corp., 103 AD2d 932, 932 [3d Dept 1984]). We held that "incidental control over the results produced without further indicia of control over the means employed to achieve the results will not constitute substantial evidence of an employer-employee relationship" (Ted Is Back, 64 NY2d at 726). That "incidental control" included the corporation's supply of form contracts and its retained right to approve contracts (id.). That the salespeople were "agents" of the company was not "decisive, for this is equally true where salespeople are determined to be independent contractors" (id.). The Court cited factors including that the salespeople: (1) worked at their own convenience; (2) were free to hold outside employment; (3) were not limited to a particular territory; and, (4) were paid on commissions. Applying that analysis to this case, we would affirm the order of the Appellate Division that the Board lacked substantial evidence for its determination because each of the above factors from Ted Is Back applies to Mr. Vega; that "incidental control" is insufficient, as a matter of law, to deem Mr. Vega an employee.
We yet again reversed the decision of the Board that a salesperson was an employee, on the ground that substantial evidence did not support its determination in Hertz (2 NY3d at 733). There, the claimant was a salesperson for Hertz: she visited travel agencies to promote Hertz's products by making presentations and distributing sales materials (id. at 734-735). She was compensated per-visit, was not required to attend meetings, and had minimal supervision (id. at 735). On the other hand, Hertz told her what to wear during her visits, instructed her on what products to promote, barred her from promoting competing products, and instructed her on how to present Hertz products (id.). Despite those factors, which could have supported the Board's determination under the substantial evidence standard, we said that she was not an employee as a matter of law, because Hertz exerted merely "incidental control" (id.). Mr. Vega was compensated per delivery; the Hertz salesperson per visit. Mr. Vega was told where and what to pick up and deliver, just as the Hertz representative was told what products to promote. Neither was supervised; neither had to attend meetings. But Mr. Vega was not prohibited from delivering for competing services even while engaged in a Postmates delivery and could wear whatever he liked. Hertz would lead one to conclude that the order of the Appellate Division must be affirmed here because the factors determining Mr. Vega's status point more strongly to independent contractor than the factors on which we reversed the Board's determination in Hertz.

Our most recent decision in this area, also a memorandum, is Yoga Vida. There, as here, the Department of Labor initially determined Yoga Vida was liable for unemployment insurance for its non-staff yoga instructors; as here, an ALJ overruled that determination; next, the Unemployment Insurance Appeal Board reversed the ALJ's decision, sustaining the Department's initial determination (Yoga Vida, 28 NY3d at 1015). The Appellate Division sustained the Board's determination that the non-staff yoga instructors were employees. We reversed, holding the Board's determination was not supported by substantial evidence because the non-staff instructors made their own schedules, were paid only if students attended their classes, could work for competitors, and were not required to attend meetings or trainings (id.)[20]. Each of those factors — which are the factors that justified our reversal as a matter of law — is true as to Mr. Vega: Mr. Vega made his own schedule, was paid only for deliveries he made, could work and perform deliveries for other companies even while making deliveries for Postmates, and was not required to attend meetings or trainings. Moreover, Mr. Vega did not have to work on a prearranged schedule; the non-staff instructors did. Mr. Vega did not have to work at his employer's place of business; the non-staff instructors did. In Yoga Vida, we emphasized that Yoga Vida's determination and collection of the fees that the non-staff instructors received did "not supply sufficient indicia of control" (id. at 1016). So too, Postmates' control over the fees Mr. Vega received should be insufficient to support an employer-employee relationship[21]. That the outcome today is the diametric opposite of the outcome arrived at just three years ago in Yoga Vida, an outcome that the majority contends was reached by the same standard as applied here (majority op at 8), shows just how inconstant our "test" has become.

The facts surrounding Mr. Vega's six-day adventure as a courier neatly fit into the exertion of mere "incidental control," which does not provide substantial evidence for a Board's determination of employee status (see e.g. Ted Is Back, 64 NY2d at 726). Mr. Vega retained more than just "some independence to choose [his] work schedule and delivery route" (majority op at 6) — he had complete control over his schedule, the hours he logged on, the jobs he accepted or rejected (or rejected even after accepting them), and the routes he took when, having accepted a job, he actually made the promised delivery. Nor does Mr. Vega need to have actual control over "the service Postmates provides its customers" (majority op at 6 [emphasis added]), for that is not the test. The control test applies only to the company's control over the worker's labor; the worker need not have control over, or anything to do with, the service provided by the company. Our precedent may not be consistent, and it certainly makes it difficult for litigants and lower courts to apply the control test, but at least it provides this answer: Mr. Vega is far more an "independent contractor" than the real estate salespeople given business cards by their company in 12 Cornelia St., the product promoter who was told what to wear and how to present in Hertz, or the yoga instructors told when, where and what to teach in Yoga Vida.

III.


The overarching problem in our control test jurisprudence is exemplified by Mr. Vega's case. The parties here attempt to rely on two dozen different factors, all of which derive from previous Court of Appeals' decisions and all of which we have suggested may have some bearing on the control analysis. However, those factors fail to aid us in this decision. Factors that seem in some of our cases to provide support for the determination of an employer-employee relationship do not always do so (compare Concourse Ophthalmology, 60 NY2d at 736 [where the company collected and determined fees, supporting the decision that ophthalmologists were employees] with Yoga Vida, 28 NY3d at 1017 [Fahey, J., dissenting] [where Yoga Vida collected and fixed the fees of the non-staff instructors, but substantial evidence did not support the Board's decision that the non-staff instructors were employees]),[22] whereas factors that we previously identified as showing merely incidental control insufficient to establish an employment relationship, such as setting one's own schedule, the ability to work for other companies, and being paid on commission (see e.g. Ted Is Back, 64 NY2d at 726) are today eschewed by the majority.

It is no surprise, then, that reading the procedural history of this case or our prior decisions feels like watching a ping-pong match: no one, not even this Court, knows which combinations of factors are determinative and which are not. We have held that no one factor is determinative (Concourse Ophthalmology, 60 NY2d at 736), and the majority emphasizes the formlessness of our jurisprudence by observing that "no enumerated list of factors can apply to every situation faced by a worker" (majority op at 5). At the same time, the majority adds a new factor to the list: "the nature of the work" (id. ). It wields that new factor based on unsupported judgments, contrasting couriers as "low-paid workers performing unskilled labor who possess limited discretion over how to do their jobs" (id. at 6), with yoga instructors who perform work that "is not comparable to that of a delivery person," because a yoga instructor provides a "service ... unique to that of the instructor and his or her personal characteristics" (id. at 7). We have never before mentioned the "nature of the work" in the employment context, let alone held that factor determinative in such cases.[23]

In any event, adding that factor to our litany makes no sense. The purpose of the control test, and even the variegated factor analysis, is to prevent the over-reliance on the kind of work in the determination of employment status. Forcing that factor into the control test provides the opportunity for every courier — regardless of any analysis of the factors or the degree of control exerted over them — to be an employee because of the nature of delivery work: if Mr. Vega is an employee, so is everyone who delivers a tangible good. Had the "nature of work" been determinative in Yoga Vida, non-staff yoga instructors and staff instructors alike would need to have been deemed employees. Instead, however, this Court held that substantial evidence did not support the Board's determination that non-staff yoga instructors were employees by relying on dissimilarities — having nothing to do with the nature of the work — between the non-staff instructors and the staff instructors (Yoga Vida, 28 NY3d at 1015). If the nature of the work holds as much importance as the majority declares it does today, the dissimilarities between the non-staff and staff instructors would have been irrelevant.
For that reason, the majority's reliance on Matter of Rivera (69 NY2d 679 [1986]), is misplaced. Simply because the employees at issue in Rivera were delivery persons does not make that case "indistinguishable" (majority op at 7). Although similar in many respects, there are several notable differences: Mr. Vega could accept a delivery assignment and then later change his mind at any time, even after a customer had been told that Mr. Vega would deliver it, whereas there is no indication that the Rivera couriers could turn back a delivery assignment after accepting it; Mr. Vega was not given a time limit for completing deliveries, whereas the Rivera couriers were; Mr. Vega was free to choose any means of transportation he wished (which he could vary at will with no need to inform Postmates), whereas Rivera required its couriers to use motor vehicles and to purchase both ordinary insurance as well as special cargo insurance for their vehicles (Claim of Rivera, 120 AD2d 852, 854 [3d Dept 1986]).

The addition of a new factor to the control test illustrates the most concerning aspect of our ever-changing employment determination decisions. Because the test depends on innumerable factors, which vary from case to case and opinion to opinion, and we review the Board's determinations for substantial evidence, the Board is given unbounded discretion. We will never be able adequately to review their determinations because they will always rely on factors that we — at one point or another — have sanctified. "Substantial evidence" review of a smorgasbord of flavorless factors authorizes unrestrained agency decision-making.

Without regular examination, modification and explication of our common law, common-law tests risk falling into incoherence or vagueness. In the broader sense, this case implicates many factors upon which our Court and the Appellate Division have relied to reverse an agency determination as "unsupported by substantial evidence" because the courts have concluded that the facts relied on by the agency do not really speak to the ultimate issue of control (see e.g. Empire State Towing, 15 NY3d at 437; 12 Cornelia St., 56 NY2d at 897-898; Ted Is Back, 64 NY2d at 726; Hertz, 2 NY3d at 733; Yoga Vida, 28 NY3d at 1015-1016). Our several prior reversals of the Board's decisions, though offering that "the determination of the appeal board, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary decision'" (Empire State Towing, 15 NY3d at 437 [2010]), are best understood as reflecting our recognition that we cannot allow the deferential standard of review to shield the Board from all review, even if the Board has relied exclusively on factors we have deemed relevant in determining who is an employee. Of course, the most important concern for us is to ensure that the law is clear and consistent as to what employers, workers and the lower courts must consider in forming and evaluating work relationships. Our terse memorandum decisions do not serve that purpose.

We need a clear understanding, comprehending the modern realities of our rapidly evolving economy, of who should be an employee and who an independent contractor, including whether work relationships should continue to be measured on that dichotomy. It is past time for the law to reexamine the definition of work and its application to different forms of entitlement and obligation. Our current framework, as inconsistently applied, fails to provide clarity to anyone involved. The agencies tasked with applying our cases and the courts that attempt to review those decisions for substantial evidence oscillate in result and rationale. The common-law test for status as an employee developed in a vastly different time, when employment was monotonic. Now, it is cacophonic. The number of workers performing multiple or alternative jobs has grown dramatically. New technology and the rise of the sharing economy have driven further changes, including the crowdsourcing of flexible and low-barrier-to-entry jobs upon which many workers are less reliant than our traditional notion of career employees. The challenge is how to apply our inconsistent common-law test in a world where work looks much different than it did when that test was developed and where we cannot, if we hold true to the deferential standard of review, reverse an agency determination so long as it has relied on some of the factors we have identified as relevant.

The stakes are high. As the California Supreme Court, confronting a similar question, phrased the matter (Dynamex Operations W. v Superior Ct., 4 Cal 5th 903, 912-13 [2018] [Cantil-Sakaute, C.J.]):
"On the one hand, if a worker should properly be classified as an employee, the hiring business bears the responsibility of paying federal Social Security and payroll taxes, unemployment insurance taxes and state employment taxes, providing worker's compensation insurance, and, most relevant for the present case, complying with numerous state and federal statutes and regulations governing the wages, hours, and working conditions of employees. The worker then obtains the protection of the applicable labor laws and regulations. On the other hand, if a worker should properly be classified as an independent contractor, the business does not bear any of those costs or responsibilities, the worker obtains none of the numerous labor law benefits, and the public may be required under applicable laws to assume additional financial burdens with respect to such workers and their families."
"Although in some circumstances classification as an independent contractor may be advantageous to workers as well as to businesses, the risk that workers who should be treated as employees may be improperly misclassified as independent contractors is significant in light of the potentially substantial economic incentives that a business may have in mischaracterizing some workers as independent contractors. Such incentives include the unfair competitive advantage the business may obtain over competitors that properly classify similar workers as employees and that thereby assume the fiscal and other responsibilities and burdens that an employer owes to its employees. In recent years, the relevant regulatory agencies of both the federal and state governments have declared that the misclassification of workers as independent contractors rather than employees is a very serious problem, depriving federal and state governments of billions of dollars in tax revenue and millions of workers of the labor law protections to which they are entitled."[24]

Although it is well within the purview of the courts to alter a common-law test, that is best done incrementally; the complete overhaul of our common-law employment test to adapt it to the present and future economy is not a task to which courts are well suited[25]. Whether, to what degree, and on what basis we wish to provide unemployment benefits to Postmates couriers generally, or to other workers in the gig economy, is a policy question best left to the legislature. Whether the test for that entitlement should be the same as the test for Postmates' liability if a courier, speeding on an electrified bicycle to make a timely delivery of a hot dinner, injures a pedestrian, is also a question best suited to legislative determination. The role of the courts is to interpret the law and to clarify it when we can. The accumulation of indecisive, unweighted factors articulated in our past cases, scrutinized under our highly deferential standard of review, typically produces either a de facto lack of review or an uninformative summary reversal. The resulting body of law is difficult to reconcile and does little to advise agencies and lower courts (to say nothing of business enterprises or workers) how any particular work relationship will or should be adjudicated. Today's decision places further stress on that test through its contradiction of our recent decision in Yoga Vida and its incompatibility with several others in which we found the Board lacked substantial evidence in circumstances less compelling than this. Nevertheless, until the legislature steps in, we have an obligation to do our best to reach consistent results so that both businesses and workers can structure their affairs with a sound understanding of when the benefits and obligations of "employment" are imposed or conferred upon them. Whether other Postmates couriers are employees is not before us. Mr. Vega's case is, and he is not.

[12] Not only was Postmates given no opportunity to present evidence as to other couriers, but the parties were expressly informed by the ALJ, at the start of the hearing, that the ALJ's determination would be limited to just Mr. Vega. That neither party addressed the ALJ's limited determination does not change that determination's scope (majority op at 3 n 1). Thus, the Board's subsequent decision, if read to impose a contribution requirement on Postmates for Mr. Vega and all other similarly situated couriers, would implicate due process concerns because Postmates was expressly instructed that the proceeding would relate solely to Mr. Vega's claim and not others similarly situated (see e.g. Martin v Ronan, 47 NY2d 488, 490 [1979]["a requisite of due process (is) the opportunity to be heard before one's rights or interests are adversely affected"]).
[13] Postmates' witness before the ALJ, the regional manager, believed Mr. Vega had been a bicycle courier, which just goes to show how much "supervision" of Mr. Vega actually took place.
[14] Incidentally, Mr. Vega did not appear and presented no evidence at the hearing; the sole evidence presented came from Postmates.
[15] At oral argument, counsel for the Board had difficulty pinpointing when Mr. Vega became an employee of Postmates, eventually settling for the moment he made his first Postmates delivery.
[16] I note that "employment" under Article 18 expressly includes "any service by a person for an employer as an agent-driver or commission-driver engaged in distributing meat, vegetable, fruit, or bakery products; beverages other than milk; or laundry or dry-cleaning services" (Labor Law § 511 [1] [b] [1]), a definition that might arguably sweep in Mr. Vega if the record showed what he had delivered (or promised to deliver), but the parties do not direct any arguments to the possible application of this definition and accordingly I do not consider it.
[17] Of course, the Legislature may, for unemployment compensation purposes, adopt a different definition of "employee." It has done so in other parts of the Labor Law, providing at Labor Law § 2(7) that one is employed simply when one is "permitted or suffered to work" for an employer (cf. Nationwide Mut. Ins. Co. v Darden, 503 US 318, 326 [1992] [discussing similar language in the federal Fair Labor Standards Act]). However, that broader definition does not apply to the unemployment insurance article, which uses the definition discussed above (Labor Law § 510).
[18] We have never defined "incidental control." Doing so might better allow us, even if we cannot reach consensus on what meets the substantial evidence standard, to determine when the facts are not supported by substantial evidence.
[19] Of our opinions in the unemployment insurance cases since 1981, Villa Maria Inst. of Music v Ross (54 NY2d 691 [1981]), 12 Cornelia St., Inc. v Ross (56 NY2d 895 [1982]), Matter of Concourse Ophthalmology Assoc., P.C. (60 NY2d 734 [1983]), Matter of Ted Is Back Corp. (64 NY2d 725 [1984]), Matter of Rivera (69 NY2d 679 [1986]), Matter of Salamanca Nursing Home, Inc. (68 NY2d 901, 903 [1986]), Matter of Hertz Corp. (Commissioner of Labor) (2 NY3d 733 [2004]), and Matter of Yoga Vida NYC, Inc. (28 NY3d 1013 [2016]) were all summary, memoranda judgments. We have treated this question in a full opinion only in Matter of Charles A. Field Delivery Serv., Inc. (66 NY2d 516 [1985]) and Matter of Empire State Towing and Recovery Assn., Inc. (15 NY3d 433 [2010]). The profusion of summary memoranda in this area underscores the incoherence of the conventional test for independent contractor/employee status when applied to an evolving economy that encompasses new styles of working.
[20] The majority's claim that our decision in Yoga Vida "reaffirmed" the substantial evidence standard (majority op at 8) illustrates the amorphousness of that standard when applied in the unemployment insurance context. For example, even though "Yoga Vida generally determines what fee is charged and collects the fee directly from the students [that] does not supply sufficient indicia of control over the
instructors" to constitute substantial evidence of employment (Yoga Vida, 28 NY3d at 1016). If the majority is reaffirming the standard we applied in Yoga Vida, that standard has become so elastic as to be whimsical.

[21] The majority cites a few other distinctions between the non-staff yoga instructors and Mr. Vega, but those sound more different than they really are. The yoga instructors' interest in maintaining a "customer following to be successful" is akin to the customer ratings Mr. Vega needed to remain successful on the Postmates app (majority op at 7). Likewise, the ability of the yoga instructors to affect their compensation to some degree by choosing hourly compensation or a percentage of class fees corresponds to Mr. Vega's ability to affect his compensation by taking, e.g., high dollar volume jobs or short-haul jobs that he could consolidate and deliver simultaneously. Indeed, Mr. Vega had more control of his compensation than did the yoga instructors, inasmuch as he could accept a job, immediately see the compensation he would receive from it, and reject it if it was not to his liking. There is nothing to suggest the yoga instructors could decline to teach a class or switch from percentage to hourly compensation if only two customers appeared for class.
[22] Judge Rivera's concurring observation that Yoga Vida was wrongly decided further emphasizes the incoherence of our decisional law in this area.
[23] Although the majority points to no prior precedent of ours listing "nature of the work" among the factors to be considered, we are advised that because "indicia of control will vary depending on the nature of the work," it is "obvious" that nature of the work should be included in the list of factors (majority op at 5 n 3, 8). I do not think it "obvious" — one way or the other — that differences in the work of ophthalmologists and aluminum siding salespeople tend to make the former more controllable than the latter, or that our determination that the former were employees and the latter independent contractors had anything to do with the intrinsic nature of their occupations.
[24] See also Joint Task Force on Employee Misclassification, Annual Report 2015, https://www.labor.ny.gov/agencyinfo/PDFs/Misclassification-Task-Force-Report-2-1-2015.pdf (discussing at length the effect of employee misclassification on New York state in particular); Sarah Jeong, Strike All You Want. Uber Won't Pay a Living Wage, NY Times (May 10, 2019), https://www.nytimes.com/2019/05/10/opinion/uber-ipo.html (discussing studies showing that in New York City, about half of ride-hailing drivers are supporting families with children, but earn so little that 40 percent of those drivers qualify for Medicaid and another 18 percent qualify for food stamps); Noam Scheiber, Uber and Other Gig Companies Maneuver to Shape Labor Rules, NY Times (Mar. 26, 2019), https://www.nytimes.com/2019/03/26/business/economy/gig-economy-lobbying.html (discussing the "highly disruptive" effect of proposals to classify large numbers of gig workers as employees).
[25] Our call for a new test need not be preserved (majority op at 5 n 3). In fact, because the employment test is one created by the courts, it is our job to change it if necessary — regardless of if the parties call for it. However, it is the role of the legislature to make policy; here, where the majority's holding overturns a decision of this Court from just three years prior, it is clear we are in sore need of legislative decision-making, not solely judicial re-interpretation.