UNPAID CONDO CHARGES TO BOARD LEADS TO FORECLOSURE

BOARD OF MGRS. OF 4260 BROADWAY CONDOMINIUM v. Veloz, 2020 NY Slip Op 32361 - NY: Supreme Court July 20, 2020:

"In this condominium common charges lien foreclosure action, plaintiff Board of Managers of the 4260 Broadway Condominium (4260 Broadway) moves in motion sequence 001 for an order directing: (1) entry of default judgment against defendants Ramon N. Veloz and "John Doe" 1 through 10 pursuant to CPLR 3215^[1]; and (2) the appointment of a referee to compute and report the amount due to plaintiff pursuant to Real Property Actions and Proceedings Law (RPAPL) § 1321, or alternatively, pursuant to CPLR § 4311. Plaintiff's motion is unopposed. The Decision and Order is as follows:

BACKGROUND AND PROCEDURAL FACTS

Plaintiff claims that Veloz purchased the premises known as 4260 Broadway, Unit 604 in the city, county, and state of New York by deed dated February 20, 1998 (NYSCEF #15 — Deed). The deed contained a recitation that Veloz's title was subject to the Declaration and By-Laws of 4260 Broadway (id.). Plaintiff claims that pursuant to the governing documents of 4260 Broadway, all unit owners are obligated to pay common charges and special assessments assessed by the Board of Managers (NYSCEF #16 — 4260 Broadway By-Laws at Art 6, § 6.2). Plaintiff also claims that if common charges are not paid on the date due, then such assessment shall become delinquent and, together with late fees and interest, shall constitute a lien on the unit owner, and the Board of Managers shall be entitled to collect legal fees (id. at Art 6, §§ 6.2, 6.4).

Due to Veloz's sporadic and insufficient common charges payments, plaintiff filed a lien on February 1, 2019, at the City Register of the City of New York in the amount of $19,559.61 for unpaid payments through January 15, 2019 pursuant to RPAPL § 339-z (NYSCEF #17 — Lien). The lien is a continuing lien and encompasses the aggregate of unpaid common charges and special assessments that have accrued since the filing of the lien (id.). Plaintiff claims that as of November 20, 2019, Veloz was indebted to it in the amount of $23,252.46 for unpaid assessments and fees (NYSCEF #21 — Ledger). The 4260 Broadway By-Laws permit plaintiff to foreclose on a lien for unpaid common charges or to recover a money judgment for unpaid common charges (NYSCEF #16 at Art 6, § 6.4).

Plaintiff's first cause of action is for breach of contract, and plaintiff seeks monetary damages including interest and costs incurred (NYSCEF #18 at 8). Plaintiff's second cause of action is for attorneys' fees pursuant to Article 6 of the 4260 Broadway By-Laws (id.). Plaintiff's third cause of action is for a judgment of foreclosure and sale on Veloz's apartment unit, and that all persons claimed under defendants or all persons or parties making claims subsequent to the filing of the notice of lien shall be barred and foreclosed from all estate, right, title, interest, claim lien and equity of redemption of the premises (id. at 8-9). Defendants "John Does" 1 through 10 are possible holders of interest in the subject premises (id., ¶ 9).

Plaintiff filed its summons and verified complaint on May 3, 2019 (NYSCEF #18). Plaintiff served Veloz by substituted service at 4260 Broadway, Unit 604. Plaintiff personally delivered and left a copy of the documents with Cemio Ergun, a person of suitable age and discretion, who stated that he lived at the premises, on May 13, 2019 (NYSCEF #19 — Affidavits of Service). Plaintiff also mailed. a copy of the documents by first-class mail on May 14, 2019 (id.). Subsequently, plaintiff filed an affidavit of service on May 21, 2019 (id.). In compliance with CPLR § 3215(g), plaintiff also served Veloz with a copy of the summons by first-class mail on November 20, 2019, and submitted an affidavit of additional service (NYSCEF #22).

Veloz did not appear or answer in this action by filing an answer to the complaint or by submitting an opposition to plaintiff's motion. Plaintiff's instant motion was timely filed within a year of Veloz's default. Veloz's time to answer or appear was not extended.

DISCUSSION

The branch of plaintiff's motion for default judgment against defendant Veloz is granted. Plaintiff has demonstrated compliance with CPLR 3215. CPLR 3215(f) states that on any default judgment application, "the applicant shall file proof of service of the summons and the complaint... proof of the facts constituting the claim, the default and the amount due by affidavit." Plaintiff's submitted proof demonstrates its entitlement to entry of default judgment against Veloz.

Plaintiff properly served Veloz with the summons and complaint by substituted service in compliance with CPLR § 308. CPLR § 308 requires the documents to be delivered to "a person of suitable age and discretion at the dwelling place of the person to be served" and to be mailed "to the person to be served at his last known residence by first-class mail." Plaintiff personally delivered the documents to Veloz's apartment unit and left them with a person over the age of eighteen who lived there. On the next day, plaintiff also mailed the documents to Veloz's apartment unit by first-class mail. Thus, service in this matter was proper.

Further, plaintiff shows proper proof of the default. Veloz never appeared or answered in this matter (NYSCEF #12, ¶ 16). Additionally, plaintiff complied with CPLR 3215(g), which states that "an affidavit shall be submitted that additional notice has been given by or on behalf of plaintiff ... by mailing a copy of the summons by first-class mail to defendant at his place of residence." Plaintiff submitted proof of service of additional notice in compliance with CPLR 3215(g), by mailing a copy of the summons by first-class mail to Veloz at his apartment unit.

Next, plaintiff produces proper proof to demonstrate its entitlement to foreclose on Veloz's premises and sell it to recover on the unpaid common charges as permitted by statute and the governing documents of 4260 Broadway. Real Property Law (RPL) § 339-aa reads in pertinent part as follows:

The lien ... shall be effective from and after the filing in the office of the recording officer in which the declaration is filed a verified notice of lien stating the name (if any) and address of the property, the liber and page of record of the declaration, the name of the record owner of the unit, the unit designation, the amount and purpose for which due, and the date when due; and shall continue in effect until all sums secured thereby, with the interest thereon, shall have been fully paid or until expiration six years from the date of filing, whichever occurs sooner. In the event that unpaid common charges are due, any member of the board of managers may file a notice of lien as described herein if no notice of lien has been filed within sixty days after the unpaid charges are due... Such lien may be foreclosed by suit authorized by and brought in the name of the board of managers, acting on behalf of the unit owners... In any such foreclosure the unit owner shall be required to pay a reasonable rental for the unit for any period prior to sale pursuant to judgment of foreclosure and sale, if so provided in the bylaws, and the plaintiff in such foreclosure shall be entitled to the appointment of a receiver to collect the same. The board of managers, acting on behalf of the unit owners, shall have power, unless prohibited by the by-laws, to bid in the unit at foreclosure sale, and to acquire and hold, lease, mortgage and convey the same. Suit to recover a money judgment for unpaid common charges shall be maintainable without foreclosing or waiving the lien securing the same, and foreclosure shall be maintainable notwithstanding the pendency of suit to recover a money judgment.

(RPL § 339-a).

Plaintiff filed a valid lien on February 1, 2019 that listed the pertinent information and was properly and timely recorded (NYSCEF #17). As this is a continuing lien, Veloz's common charges continued to accrue following the recording of the lien. Plaintiff's submitted evidence demonstrates that Veloz has unpaid common charges and special assessments due and owing in the amount of $23,252.46 as of November 20, 2019. As permitted by statute, plaintiff is entitled to foreclose on Veloz's premises due to his failure to pay the common charges or clear the lien prior to this suit. As such, plaintiff has fully complied with all CPLR 3215 requirements and is entitled to entry of default judgment.

The branch of plaintiff's motion to appoint a referee is also granted. As Veloz failed to answer within the time allowed, an appointment of a referee pursuant to RPAPL § 1321 is appropriate here to determine the amount of charges outstanding and the amount on the prior incumbrances, and to examine and report whether Veloz's premises can be sold in parcels. All defendants who have or claim to have some interest in or lien upon Veloz's premises are subordinate to plaintiff's lien."

THE GUIDE TO NEW YORK EVIDENCE

 "The objective of this Guide to New York Evidence, as set forth in Rule 1.01, "is to bring together in one document, for the benefit of the bench and bar, New York's existing rules of evidence, setting forth each rule with a note on the sources for that rule."

Guide To NY Evidence

OCTOBER 18, 2020 FOR COMMERCIAL EVICTIONS

First both commercial and residential evictions were on hold due to executive orders. 

In June, residential evictions were no longer on hold due to executive orders as this issue was replaced by legislation. The Tenant Safe Harbor Act (the Act), was enacted prohibiting the eviction of residential tenants for unpaid rent during the COVID-19 covered period if the tenant has suffered a financial hardship and allows a tenant to raise financial hardship experienced during the COVID-19 covered period as a defense in a summary proceeding. However, the Act does not prohibit a court from awarding in a summary proceeding a money judgment for the rent due and owed to a landlord.

But no legislation was enacted for commercial renters. Through a series of later executive orders, Cuomo further extended the date for commercial evictions  On September 18, 2020, Cuomo issued Executive Order No. 202.64: Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency to October 18

NEW YORK COURTS - MICROSOFT TEAMS

The New York State Unified Court System has adopted Microsoft Teams as the standard for internal and external videoconferencing calls, including virtual court hearings. A FAQ has been posted by the courts at this link:

Microsoft Teams Q&A

WHAT IS AN INTIMATE RELATIONSHIP FOR FAMILY COURT TO EXERCISE JURISDICTION

A.S. v. Goldberg, NYLJ September 18, 2020,  Date filed: 2020-09-14, Court: Family Court, Nassau,  Judge: Judge Linda Mejias:

"“The Family Court is a court of limited jurisdiction, constrained to exercise only those powers conferred upon it by the New York Constitution or by statute” (Cambre v. Kirton, 130 A.D.3d 926 [2nd Dept. 2015], citing Matter of H.M. v. E.T., 14 N.Y.3d 521, 526 [210]).

Family Court Act §812 prescribes the acts and types of relationships over which the family court has jurisdiction. Relevant to the case at bar, FCA §812(1)(e), establishes jurisdiction over “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may consider in determining whether a relationship is an “intimate relationship” include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”.

Here, it is not alleged that the Petitioner and the Respondent have ever lived together, nor are they related by blood or marriage. It is, however, unrefuted that the Respondent resides with the Petitioner’s children as stepfather and stands in loco parentis. It is further unrefuted that the Respondent has had frequent and consistent contact with the Petitioner regarding matters related to the Children. Accordingly, the unrefuted allegations in this matter are sufficient to establish an “intimate relationship” between the Petitioner (the Children’s parent) and the Respondent (the Children’s stepparent) (see, Winston v. Edwards-Clarke, 127 A.D.3d at 773)."

A VERY COSTLY AND TIME CONSUMING "GRE(A)Y" DIVORCE

This is a case which should be read as it addresses the issues of equitable distribution, maintenance and counsel fees in a long term marriage. Here is the procedural history:

"By Summons with Notice filed on May 14, 2015, Plaintiff Y. L. (hereinafter "Husband") commenced this action for divorce against Defendant L. L. (hereinafter "Wife"). Some four years after this action commenced Plaintiff filed a Verified Complaint on or about April 17, 2019. Wife filed an Answer with Counterclaims on or about April 22, 2019. On or about September 12, 2016 the parties agreed by Preliminary Conference Order that Husband would be granted a divorce on the grounds that the marriage had broken down irretrievably for a period of six months pursuant to DRL §170(7). The parties were married on October 29, 1969 in a civil ceremony held in Moscow, Russia. Accordingly, this is a marriage of long duration (47 years). There are two adult children of this marriage: V.L. and I.L. Husband is currently 70 years old and Wife 68 years old.

The issues of equitable distribution, maintenance and counsel fees were tried before this Court over the course of seventeen days between January 15, 2019 and April 29, 2019. Throughout trial Husband was represented by Michael E. Greene, Esq. and Andrew T. Lolli, Esq. from the law firm of Robinson, Brog, Leinwald, Greene, Genovese, and Gluck, P.C. Wife was initially represented by the Law office of Raoul Felder, Esq. in relation to proceedings that took place before a Request for Judicial Intervention was filed. Once the matter appeared in Court, Wife was represented at all times by Mr. Howard File, Esq., who substituted for Mr. Felder when he withdrew as counsel.

At trial, Husband testified on his own behalf and called three court appointed neutral appraisers as witnesses. Husband also placed voluminous documents into evidence (Pl. Ex. 1 to 109). Wife testified on her own behalf and called eleven witnesses, one of which was a court appointed neutral. Among the witnesses called by Wife was Plaintiff's attorney, Mr. Green. While Mr. Greene's testimony was credible, this Court finds that it was not materially relevant to any of the issues decided in this case. Wife also placed voluminous documents into evidence (Def. Ex. A to AAAAA). Post-trial written summations were submitted by both parties. In total, five real estate appraisers and two forensic accountants testified as experts at trial along with a number of fact witnesses. The fees for all court-appointed neutral experts were paid by Husband subject to reallocation. Wife's expert witnesses, forensic accountant Heidi Muckler and real estate appraiser Mr. Brian Gager were both paid by Wife subject to her application for expert fees. Judicial Notice was taken of several Orders (Ct. Ex. 1-20). In total, the trial record consists of over two-thousand pages."

See YL v. LL, 2020 NY Slip Op 50896 - NY: Supreme Court, Richmond July 29, 2020:

NEW RULES - UNIFORM PARTITION OF HEIRS PROPERTY ACT

On December 6, 2019, Governor Andrew Cuomo signed into law New York’s version of the Uniform Partition of Heirs Property Act (UPHPA) (RPAPL §993). As the bill noted:

"As a general rule under current New York law, when real property has multiple owners who hold the property as tenants in common, any one co-owner can try to force the sale of the property by filing a partition action in court under Article 9 of the Real Property Actions and Proceedings Law. In recent years, predatory real estate speculators have taken advantage of New York's laws governing partition actions by purchasing a stake in a residential property - usually after a number of family members have inherited the property - and then using that owners hip stake to file a partition action to dispossess the family of the property through a forced sale, often for pennies on the dollar relative to the actual value of the property. Lower- and middle-class families are particularly susceptible to these types of schemes, as they often do not engage in the kind of sophisticated estate planning that could prevent predatory partitioning actions.

This legislation would address the issue of predatory partition actions, while preserving a co-owner's right to sell his or her share of the property. The Act would only apply in situations where at least one of the co-owners has inherited their property interest from a relative and there is no written agreement otherwise governing partition among the owners. In such situations, there are a number of protections in place when a co-owner files for a partition order:

- The co-owner requesting the partition must give notice to all of the other co-owners.

- The court must order an independent appraisal to determine the property's fair market value.

- Any co-owner may exercise a right of first refusal to buy out the interest of the co-owner seeking partition for a proportional share of the court-determined fair market value.

- If no co-owner elects to buy out the co-owner seeking partition, the court must first consider ordering a partition-in-kind if the property can be physically divided.

- If a partition-in-kind would be inappropriate, and the court orders a partition-by-sale, the property must be offered for sale on the open market at a price no lower than the court-determined value for a reason- able period of time and in a commercially reasonable manner. As of March 2019, eleven other states and the U.S. Virgin Islands have adopted similar legislation."

FOR RESIDENTIAL TENANTS AND COVID - THE MORATORIUM

There is no law, program, grant, etc. offering rent forgiveness. But....

On September 1st, the Centers for Disease Control (CDC) announced a national eviction moratorium for virtually all tenants in the U.S impacted by the COVID-19 pandemic. The order will be in effect from September 4, 2020 through December 31, 2020.  Unless, further extended, New York city and state moratoriums only apply to everyone through October 1st. After that date, tenants who qualify under the CDC’s regulation will still be protected from eviction,

But to take advantage of this protection, the tenant — and all adults living in the household — have to submit a signed declaration to their landlord stating they are eligible and that they are telling the truth, under legal penalty. 

I would suggest that tenant send a copy of the signed declaration to their landlord, with some sort of proof of delivery (i.e. USPS tracking) and keep the original for later court usage. 

This link has the form: CDC Declaration For Tenants

MASKS AND COURT - A PERSONAL EXPERIENCE

Yesterday I was in court in Nassau County on a matter. The building seemed quite empty, the floors were quiet and although it seemed like things moved very slowly, eventually you become used to it.

THERE WILL BE SANCTIONS

Jessica T. v. Kieth T., NYLJ September 11, 2020,  Date filed: 2020-06-12,     Court: Supreme Court, Suffolk, Judge: Justice Patrick Leis, III,     Case Number: 33914/2013:

"Similarly, this Court has the discretion to impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct (22 NYCRR 130-1.1[a]; see Rhodes v. Rhodes, 169 A.D.3d 841, 844, 94 N.Y.S.3d 123, 127 [2d Dept 2019]). Conduct is frivolous and sanctions may be awarded if “it is completely without merit in law” or fact and “cannot be support by a[ny] reasonable argument for an extension, modification or reversal of existing law” (22 NYCRR 130-1.1[c][1]). Furthermore, if conduct “is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another” (22 NYCRR 130-1.1 [c] [2]) or if such conduct “asserts material factual statements that are false” (22 NYCRR 130-1.1 [c] [3]) sanctions may be warranted (see Weissman v. Weissman, 116 A.D.3d 848, 849, 985 N.Y.S.2d 93 [2d Dept 2014]). In light of the fact that the Defendant has abused the Plaintiff throughout the litigation with his manipulation of the court process by his blatant disregard of the truth, pressing frivolous claims, wasting court time with witnesses that had at best merely uninformed opinions, causing drawn out conferences and examinations of witnesses that were not probative, making specious arguments and accusations including parent alienation, refusing to pay timely support payments until threatened with incarceration, refusing to help save the marital home from foreclosure, harassing and annoying the Plaintiff and J., refusing to pay his share of the court-ordered business evaluation which precluded the Plaintiff from demonstrating any potential increase in business’ value during the marriage, and by prolonging this case by creating unnecessary litigation, the court will award financial compensation to the Plaintiff (see id. at 850).14

Therefore, pursuant to the Court’s above consideration of the factors necessary to award an amount and duration of maintenance, and in order to do justice in this case and compensate the Plaintiff for some of the injuries that the Plaintiff has suffered as a result of the Defendant’s malicious, vexatious/abusive litigation, and as a sanction for the Defendant’s completely frivolous conduct throughout this case and certainly during this trial, the Court will award the Plaintiff ten years of maintenance payments. Furthermore, while normally the years and amounts paid during the pendente lite period are accounted for in formulating post-divorce maintenance, here, because of the Defendant’s own actions and vexatious litigation which purposefully attenuated this proceeding, and the need to compensate the Plaintiff, the Defendant will receive no credit for the approximately last 6 years of pendente lite payments. There is simply no other way to accomplish justice in this case as the Defendant’s malicious, egregious and conscience-shocking conduct toward the Plaintiff and the parties’ son J. needs to be addressed. While the Court could under these egregious circumstances equitably distribute all of the assets to the Plaintiff as a penalty (see Howard S. v. Lillian S., 14 NY3d 431, 436, 928 NE2d 399, 402, 902 NYS2d 17, 20 [2010]), it is necessary for future payment purposes to award the Defendant his business (which is addressed below).

.....

Footnote

14. The Defendant's vexatious behavior in this case is akin to a prima facie tort or an abuse of process. A prima facie tort consists of four elements: (1) intentional infliction of harm, (2) causing special damages, (3) without excuse or justification, (4) by an act or series of acts that would otherwise be lawful (Burns J.son Miller Summit & Spitzer v Lindner, 59 N.Y.2d 314, 332, 464 N.Y.S.2d 712, 451 N.E.2d 459 [1983]). An abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective (Lynn v McCormick, 153 A.D.3d 688, 688, 60 N.Y.S.3d 316, 317 [2d Dept 2017])."

DOMESTIC VIOLENCE (ABUSIVE RELATIONSHIP) IN SAME SEX MARRIAGE

In this case, the court begins as follows:

"The relationship between the parties evidences a classic, unequal power dynamic which is the hallmark of abusive relationships. The parties met in 1989 when plaintiff was only twenty-one years old, having recently moved to New York City from Puerto Rico, and was working several jobs to support a modest lifestyle. Defendant was a successful businessman, fifteen years plaintiff's senior, who quickly began providing plaintiff with a sizable allowance and induced him to quit his jobs. In addition to his financial dependence on defendant, plaintiff was largely ignorant of the parties' financial circumstances, how decisions were made, how property was acquired and financed, or how bills were paid over their decades-long relationship. Disturbingly, this unequal dynamic was evident in the parties' intimate life, where defendant used his power as the breadwinner to instill fear and coerce plaintiff to engage in risky, unprotected group-sex while defendant watched. As a result, plaintiff contracted HIV and was later diagnosed with full-blown AIDS.

Now that the relationship has ended, plaintiff, ill and largely supported by public assistance benefits, seeks maintenance from defendant in place of the financial support he received from defendant both before and during their marriage. Because he believes that defendant cannot be relied on to make monthly payments of maintenance, he requests that it be paid in one large lump sum, and because he is dependent on government health benefits to cover his astronomical medical expenses, he seeks to have that money paid into a Special Needs Trust ("SNT "). Plaintiff also seeks a substantial award of equitable distribution, contending that the parties owned significant real and personal property and that defendant is the longtime owner of a lucrative business. As with maintenance, plaintiff askes that defendant be required to pay the distributive award into an SNT. Finally, plaintiff seeks a judgment for arrears resulting from defendant's failure to pay court-ordered temporary maintenance.


Further complicating this case is defendant's sudden and mysterious "unforeseen financial hardship," which conveniently began at the time this divorce commenced, and which he claims makes him unable to pay maintenance and leaves no assets to be equitably divided. Added to this is defendant's repeated failure to provide documentation to verify his claimed loss of income and assets alongside his complete failure to comply with plaintiff's discovery demands. These failings on defendant's part, coupled with the plaintiff's lack of knowledge about the couple's finances while they were together, greatly hindered plaintiff's ability to demonstrate the actual state of defendant's financial affairs. It also hindered my ability to make precise financial determinations, despite having conducted a three-day trial to resolve the issues of equitable distribution, spousal maintenance, and temporary maintenance arrears."

G.R. v K.R., 2020 NY Slip Op 50976(U), Decided on August 21, 2020, Supreme Court, New York County, Cooper, J.

NOTE: Marital assets were distributed 50 percent for non-business and 15 percent for business ($880,000) and maintenance for 10 years ($2,250 monthly).

FATHER FILES PATERNITY PROCEEDING FOR CHILD BORN TO MARRIED COUPLE

Matter of K.B. v R.S., 2020 NY Slip Op 50958(U), Decided on August 18, 2020, Family Court, Onondaga County, Hanuszczak, J.:

"On December 23, 2019, Petitioner K.B. filed a petition seeking to be adjudicated the father of the unborn child of the Mother R.S. (the Mother). An amended petition was subsequently filed on February 6, 2020 including the name of the child as L.R.S., born on January 17, 2020. The Mother filed a motion to dismiss the paternity petition on February 7, 2020, arguing that the instant petition did not state a claim upon which relief may be granted because she is married and the petition did not establish non-access on the part of her husband. On February 19, 2020, the matter was heard before the Support Magistrate, who referred the case to this Court to address the issues of the presumption of legitimacy based upon the fact that the Mother was married at the time of the child's birth. The Mother's husband, Mr. S. S., appeared before the Support Magistrate on February 19, 2020 and before this Court on March 9, 2020. The Court assigned an Attorney for the Child (AFC) to represent the interests of the child L. on March 9, 2020. After receiving the arguments of counsel, including the Attorney for the Child, this Court denied the motion to dismiss in a written decision on April 28, 2020.

This Court held appearances with counsel via Skype for Business on July 8, 2020 and July 23, 2020. During the July 8, 2020 conference, the Court adjourned the matter to July 23, 2020 to address the issue of equitable estoppel. On the July 23, 2020 date, the Court entertained arguments from counsel concerning equitable estoppel. At that point, the Mother's counsel indicated that he had filed for an interlocutory appeal of this Court's decision denying the Mother's motion to dismiss the petition and was seeking a stay. As of today's date, the Court is unaware that any stay has been granted by the Appellate Division in this matter.

During the July 23, 2020 settlement conference, the Court specifically asked counsel about any potential irreparable harm that would be suffered by the child if genetic marker testing was permitted. The Mother's counsel did not make any specific argument on this point. The Court notes that the Mother has not raised equitable estoppel at all in her filings. The Attorney for the Child argued that the child has lived with Mr. S. (the Mother's husband) all of his life and knows Mr. S. as his father. Mr. B.'s counsel asserted that no hearing was required and that any further delay would further prejudice his client. The Court indicated that it would issue a written decision on whether a hearing was required and whether a genetic marker test would be ordered in this matter.

Family Court Act §532 provides that the Court "shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests" on its own motion or the motion of any party (§532(a)). The statute further states that "no test shall be ordered, however, upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married [*2]women" (Id.). The Court, after a review of the pleadings and based upon the arguments of counsel, finds in this matter that it is in the best interests of the child to order a genetic marker test. Under the unique circumstances of this case, no hearing is warranted (Matter of Marilene S. v David H., 85 AD3d 1035 [2nd Dept 2011]).
The Court has considered whether the Mother's marriage to Mr. S. is a bar to a genetic market test in this case. The Court notes the statute "does not impose a blanket prohibition on genetic testing whenever the presumption of legitimacy is found to apply" (Matter of Mario WW v Kristin XX, 173 AD3d 1392 [3rd Dept 2019]). Once Mr. B. made sufficient allegations that a nonfrivolous controversy exists as to paternity, the burden shifted to the Mother to demonstrate "why testing would not be in the [child's] best interests, and she can not simply rely upon the presumption of legitimacy" (Matter of Gutierrez v Gutierrez-Delgado, 33 AD3d 1133 [3rd Dept 2006]). The Mother must show more than just that the presumption applies, "but also that, given the entirety of the circumstances, including the applicability of the presumption, such testing will not serve the best interest of the child" (Prowda v Wilner, 217 AD2d 287 [3rd Dept 1995]). The Mother has not made such a showing.
In reviewing whether the marital presumption should preclude genetic testing, the Court has considered the following factors: "the child's interest in knowing the identity of his or her biological father, whether testing may have a traumatic effect on the child, and whether continued uncertainty may have a negative impact on a parent-child relationship in the absence of testing" (Matter of Mario WW v Kristin XX, 149 AD3d 1227 [3rd Dept 2017]). The Court has also considered the husband's relationship with the child, any potential trauma to the child from identifying someone else as the father of the child and "the very real disruption to the stability of the child's existing family that would result" (Matter of Christopher YY v Jessica ZZ, 159 AD3d 18 [3rd Dept 2018]).

In this case, Mr. B. filed the paternity petition before the child was born (Family Court Act §517), which put all parties on notice that he was claiming to be the father of the child. The Court finds that, with respect to the first factor, the child "certainly has an interest in knowing the identity of her biological father" (Matter of Anthony M., 271 AD2d 709 [3rd Dept 2000]). Given that the child is currently seven (7) months old and that the petition was filed before her birth, the Court finds that any genetic market testing would not be traumatic to the child. The Court has also considered that continued uncertainty could have a traumatic effect on the child, particularly as the child grows older. A determination at this age is in the best interests of the child.

The Court has additionally considered whether testing would disrupt an intact family unit in this case. Initially, the Court notes that since the petition was filed before the child's birth, any bonding between the child and Mr. S. that has occurred was created by the Mother, despite knowledge of Mr. B.'s petition. Accordingly, any lack of involvement with the child on the part of Mr. B. is due to the Mother's actions, not due to any lack of effort on the part of Mr. B. While the Court does recognize the possibility that genetic marker testing in this case could upset the current living situation of the child, the Court finds that the child's interest in knowing the identity of her father outweighs that concern, especially given the fact that the child is under a year old. The Court additionally notes that if Mr. B. is the father of the child, any further delay would significantly impact his ability to form a relationship with the child. Accordingly, the Court finds that the marital presumption does not preclude a genetic marker test in this case.This case can be distinguished from Matter of Tracy C.O. v Douglas A.F., because in that [*3]case, the petition was not filed until the child was almost eight years old (66 AD3d 1390 [4th Dept 2009]). Additionally, an Attorney for the Child has been assigned in this matter and the Court here has considered the specific best interests of the child.

With respect to equitable estoppel, the Court finds that a prima facie case has not been made that is sufficient to prevent a genetic market test in this case. The Court of Appeals explained that "the purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted" (Matter of Shondel J. v Mark D., 7 NY3d 320 [2006]). "The law imposes the doctrine as a matter of fairness" (Matter of Young v Rios, 151 AD3d 1862 [4th Dept 2017]).Its purpose is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party's actions, has been misled into a detrimental change of position" (Matter of Shondel J. at 326). This doctrine may be used to "prevent a biological father from asserting paternity rights when it would be detrimental to a child's interests to disrupt the child's close relationship with another father figure" (Matter of Juanita A. v Kenneth Mark N., 15 NY3d 1 [2010]). It is generally imposed "to protect the status interests of a child in an already recognized and operative parent-child relationship" (Matter of Suffolk County Department of Social Services v James D., 147 AD3d 1067 [2nd Dept 2017]). The best interests of the child is the "paramount concern" (Matter of Greg S. v Keri C., 38 AD3d 905 [2nd Dept 2007]).

The party raising the issue of equitable estoppel bears the initial burden of proof (Matter of Starla D. v Jeremy E., 95 AD3d 1605 [3rd Dept 2012]). In this case, the Mother did not specifically raise the issue of equitable estoppel (See, Matter of Beth R. v Ronald S., 149 AD3d 1216 [3rd Dept 2017]). The Attorney for the Child may also invoke the doctrine of equitable estoppel (Matter of Cleophous P. v Latrica M.R., 299 AD2d 936 [4th Dept 2002]) as she has in this case. An equitable estoppel issue may be decided without a hearing "if Family Court possesses sufficient information to render an informed decision consistent with the child's best interests" (Matter of Edward WW v Diana XX, 79 AD3d 1181 [3rd Dept 2010]).

The Court finds that a prima facie case of equitable estoppel has not been made in this case. An essential element of equitable estoppel is that the purported biological father must have acquiesced to allowing another man to act as the child's father. In this case, Mr. B. did not acquiesce to Mr. S. developing a relationship with the child, in that he filed his paternity action before the birth of the child (See, Matter of John J. v Kayla I., 137 AD3d 1500 [3rd Dept 2016]). No claim has been made, nor could there have been on these facts, that Mr. B. permitted Mr. S. to act as the child's father, to the detriment of the child. The Court finds that a hearing in this matter is not required, as the Court has "sufficient information to render an informed decision consistent with the child's best interests" (Matter of Razo v Leyva, 3 AD3d 571 [2nd Dept 2004]) and no prima facie case of equitable estoppel has been established.

Moreover, there have been no specific claims that "the child would suffer irreparable loss of status, destruction of [her] family image, or other harm to [her] physical or emotional well-being if a genetic marker test was ordered" in this case (Matter of Denise R-D v Julio R.P., 179 AD3d 704 [2nd Dept 2020]). The importance of this young child discovering the identity of her father is also a relevant consideration (Matter of William X v Linda Y, 132 AD3d 1195 [3rd Dept 2015]). While the AFC has alleged that the child would be harmed if testing was ordered, that blanket allegation alone, without any specific claim of harm to the child or irreparable loss [*4]of status, is insufficient to trigger a hearing in this case. Further, as the petition was filed before the child was born, there was no operative parent-child relationship between Mr. S. and the child (See, Matter of Luis V v Laisha P.T., 184 AD3d 648 [2nd Dept 2020]).

The Court is mindful that this petition was filed before the subject child was born and the child is now over seven months old. The COVID-19 pandemic has contributed to the delay in this case. A hearing in this matter would delay the resolution of paternity and undoubtedly prejudice Mr. B., who filed his petition on December 23, 2019. It would also be contrary to the best interests of the child, who has lived with uncertainty since her birth on January 17, 2020, and who deserves to know the identity of her father. Mr. and Mrs. S. also deserve an expeditious resolution to this matter. Any further delay in this matter will undoubtedly cause the child to become further entrenched in an uncertain familial situation; circumstances which presumably Mr. B. was attempting to avoid in filing this paternity action at the earliest possible opportunity. At the time Mr. B. filed the petition, the child had no relationship with Mr. S. Waiting any longer would only serve to create or cement such a relationship, at the expense of Mr. B. This would additionally be manifestly unfair to the child, who could be missing out on precious time with a potential biological father.

The Court finds that a genetic marker test is in the best interests of the child L. The matter shall be returned to the Support Magistrate for a genetic marker test to be scheduled and for further proceedings. Mr. B. shall bear the cost of the testing."

"NAIL AND MAIL" NOT PROPER

Matter of Robinson, NYLJ September 03, 2020 , Date filed: 2020-08-25, Court: Supreme Court, Kings, Judge: Justice Leon Ruchelsman, Case Number: 100226/2019:

"It is well settled that pursuant to CPLR §308(4) commonly known as ‘nail and mail’ service, the plaintiff must exercise due diligence to demonstrate that personal service or service upon someone of suitable age and discretion could not be made. Thus, this method of service is not available if someone is present at the location where service is attempted (Kambour v. Farrar, 188 AD2d 719, 590 NYS2d 586 [3rd Dept., 1992]). Therefore, in Bossuk v. Steinberg, 58 NY2d 916, 460 NYS2d 509 [1983] the Court of Appeals held that where a person of suitable age and discretion (and surely the defendant herself) refuses to open the door for a process server and “resists” service then service can be effectuated by leaving the summons and complaint outside the door and informing the individual the summons has been left there. Further, in Ramirez v. Romualdo, 25 AD3d 680, 808 NYS2d 733 [2d Dept., 2006] the court held that where an individual answers the door but refuses to accept service then the process server may not resort to service pursuant to CPLR §308(4) service. The court explained that “the affidavit of service indicated that the process server spoke to a person of suitable age and discretion at the defendant’s actual dwelling place when he attempted service. Since service pursuant to CPLR 308(2) could have been made with due diligence, the process server’s resort to ‘nail and mail’ service pursuant to CPLR 308(4) was improper and did not confer personal jurisdiction over the defendant” (id).

In this case the process server’s affidavit states that on his first attempt “there was no answer. On my second attempt I spoke with a woman from behind the apartment door who identified herself as Rose Robinson a/k/a Rose Fleary. She refused to open the door to accept service of the documents” (see, Affidavit of Nnamdi Erskine, Paragraph #10, dated June 22, 2018). Consequently, in order to effectuate service, the process server was required to leave the papers in the vicinity and effectuate service pursuant to CPLR §308(1). Returning another date and time and serving the summons and complaint utilizing nail and mail service was improper and did not confer any service upon Rose Robinson (see, Plycon Transportation Group LLC v. Kirschenbaum, 36 Misc3d 1232(A), 959 NYS2d 91 [Supreme Court Suffolk County, 2012]).

Consequently, there was no service upon Rose Robinson. The court need not examine any substantive issues regarding knowledge of incapacity or the status of the buyer as a bona fide purchaser since there was never jurisdiction conferred upon Rose Robinson. Therefore the motions seeking to vacate’ the foreclosure and vacate the sale are granted."

LANDLORD HARASSMENT IN NYC

Butler v. Thomas , NYLJ August 26, 2020, Date filed: 2020-08-19, Court: Civil Court, Kings, Judge: Judge Zhuo Wang, Case Number: 989/20-KI:

"“The owner of a dwelling shall not harass any tenants or persons lawfully entitled to occupancy of such dwelling as set forth in [HMC §27-2004(A)(48)]” (see HMC 27-2005[d]). As relevant here, the aforementioned section provides that:

“Except where otherwise provided, the term “harassment” shall mean any act or omission by or on behalf of an owner that (i) causes or is intended to cause any person lawfully entitled to occupancy of a dwelling unit to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy, and (ii) includes one or more of the following acts or omissions, provided that there shall be a rebuttable presumption that such acts or omissions were intended to cause such person to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy…other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet of any person lawfully entitled to occupancy of such dwelling unit and that cause or are intended to cause such person to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy…” (HMC §27-2004[a][48][g]).

The credible testimony adduced at trial shows that, after purchasing the subject building, the Thomases as new owners sought to have Butler move out of her bedroom. But the record also reveals that the parties engaged in a joint effort to find Butler and her daughter alternative housing. Indeed, it was Butler who asked to be served with a termination notice in order to qualify for a housing voucher. Butler was also willing to speak with De Falco and Brookes in assisting her to move.

Because the record is unclear to which acts to relocate Butler were consented to by her and which were not, Butler does not meet her burden of proof that her occupancy was “substantially” disturbed from the time the Thomases purchased the property to the date of the termination notice. To the extent Butler contends that certain statements or acts during this period constituted harassment, her role as a willing participant to find alternative housing rebuts this argument.

But what began as a cooperative effort to relocate Butler turned into a pressure campaign ultimately intended to cause Butler to vacate the premises. The credible evidence shows that, following unsuccessful efforts to have Butler move out voluntarily, the Thomases grew increasingly frustrated.

But for the eviction moratoriums imposed in response to the Covid-19 pandemic, the Thomases were bent on dispossessing Butler. Indeed, Chinelle admitted as much when she told Butler that she was going to “stress” her until she left.

Unable to remove Butler from the premises through the proper legal channels and under financial strain, the Thomases made the decision in or about early April to move into a portion of the basement apartment. This act is significant as it relates to Butler’s harassment claim but not for the reasons stated by the parties.

Importantly, the credible proof establishes that neither Griffith nor the Thomases conveyed to Butler anything more than one bedroom and the common areas of the basement apartment. Contrary to HPD’s assertion, which is unsupported by any legal authority, the fact that Butler used the second and third bedroom did not give her legal possession of that portion of the subject premises. This Court therefore rejects the argument that harassment lies as a matter of law by virtue of the Thomases’ mere act of entering and occupying a portion of the apartment for which Butler held no occupancy rights. While moving into the premises without Butler’s permission may constitute a separate violation of the Housing Maintenance Code, e.g., an illegal SRO, the act alone is not harassment per se.

At the same time, this Court is also unpersuaded by Thomases’ argument that their entitlement to enter and occupy the premises entirely precludes Butler’s harassment claim. Rather, the harassment statute looks at the respondent’s intent and the effect on the occupant from the predicate acts. In this respect, the manner by which the Thomases entered and began occupying the premises, that is, their unannounced arrival at the premises with their belongings, immediate removal of Butler’s belongings in the other bedrooms, and nonconsensual partition of the kitchen, bathroom, and common areas evince both an intention to cause Butler to vacate and an utter disregard for her comfort, peace, and quiet at the subject premises. The credible testimony by Butler of feeling “shaken” and “scared” also establishes that these acts substantially disturbed her occupancy.

The Thomases’ newly aggressive campaign continued. Ten days after they moved in, while Butler left to purchase groceries, the Thomases contacted the authorities to accuse Butler of neglecting her daughter. The intent of this act was to intimidate Butler into moving out and the clear effect was an interference with her peace and quiet at the subject premises.

Thirdly, the construction work by the Thomases in the now-shared living area of the premises constitutes the most recent substantial act constituting harassment. Specifically, the Thomases performed this work without notice to Butler or the Court. Indeed, the thick plastic sheets cordoning off the majority of the living space adjoining the kitchen area rendered most of the common areas unusable. Moreover, the installation of surveillance equipment and constant surveilling of Butler clearly disturbs the comfort and repose that any tenant should have within the confines of an apartment (see e.g. T & G Realty Co. v. Hawthorn, 64 Misc 3d 1214(A) [Civ Ct 2019] [finding 24-hour surveillance video recording to constitute harassing conduct])

The record indicates that the Thomases’ pattern of conduct following their abrupt entry into and occupancy of the premises was calculated to and did substantially disturb Butler’s occupancy. Thus, a finding of harassment is warranted based on these predicate acts during the period from April 5, 2020 through July 1, 2020.

A finding of harassment constitutes an immediately hazardous violation of the Housing Maintenance Code (see §27-2115[m][1]) and subjects the owner to a mandatory civil penalty of not less than two thousand dollars and not more than ten thousand dollars (see §27-2115[m][2]). Moreover, this Court may award where appropriate compensatory damages, reasonable attorneys’ fees and costs, as well as punitive damages (see §27-2115[o]). Lastly, this Court may “issue an order restraining the owner of the property from harassing and direct the owner to ensure that no further violation occurs” in accordance with HMC §27-2121. Specifically, the aforementioned section grants this Court the power to issue “preliminary, temporary, and final orders requiring the owner of property or other responsible person to abate or correct violations of this code, or to comply with an order or notice of the department, or to take such other steps as the court may deem necessary to assure continuing compliance with the requirements of this code” (see HMC §27-2121).

To the extent the Thomases challenges the power of this Court to issue an injunction excluding them from the basement apartment, it is well-established that the New York City Civil Court Act “grants the Civil Court broad powers in landlord-tenant proceedings” (Prometheus Realty Corp. v. City of New York, 80 AD3d 206, 210 [1st Dept 2010]). Specifically, and in contrast to Civil Court’s limited equitable jurisdiction in other matters, “[Civil Court Act] 110[a][4] authorizes the Housing Part to issue equitable relief such as restraining orders and injunctions in order to enforce housing standards” because the court has “specifically been granted the authority to hear such matters and award such relief” (Prometheus Realty Corp., 80 AD3d at 212). Indeed, this applies specifically to harassment claims because the “legislative declaration in the Housing Maintenance Code indicates an intent to protect tenants’ actual occupancy, as well as the physical condition of the premises…” (id [emphasis added]).

Based on the finding of harassment above, it is appropriate to issue civil penalties against the Thomases in the amount of four thousand dollars. Specifically, the duration that Butler had to endure the Thomases’ conduct totaled four months, albeit not continuously. Although Butler’s counsel in her written summation seeks unspecified “damages,” she fails to submit any proof in support of this item. Because “[compensatory damages] cannot be remote, contingent or speculative” (see E.J. Brooks Co. v. Cambridge Sec. Seals, 31 NY3d 441, 448 [2018]), Butler fails to establish her entitlement to such damages. Moreover, this Court is unpersuaded that the above conduct is equivalent to a “self-help” eviction and that punitive damages are warranted as a deterrence measure. Indeed, after the issuance of the TRO on July 1, 2020, Butler has not moved for further injunctive relief based on new allegations of harassment. Butler is, however, entitled to an award of attorneys’ fees and costs, to be determined at a hearing.

Finally, this Court is asked to issue an order enjoining Respondents from residing in the basement unit. In other words, Butler and HPD contend that a de facto eviction of the Thomases from the premises is the only equitable remedy available to ensure that harassment does not occur. Upon a review of the record, this Court does not find it absolutely necessary to exclude the Thomases in order to enjoin the harassment that has occurred to date.

Generally, “a court of equity has an obligation to go no further than absolutely necessary to protect the rights of the complaining parties. The injunction must be framed as narrowly as possible” (Zutt v. State, 80 AD3d 758, 759 [2d Dept 2011]). It bears noting that the Thomases’ mere presence in an apartment, the entirety of which Butler does not have exclusive possession of, does not meet the definition of harassment. Rather, it is the Thomases’ conduct during their occupancy, e.g., removing/discarding Butler’s food and belongings without notice or consent, making frivolous complaints to agencies, denying her access to common areas, or surveilling her at all times, that aggregate to a finding of harassment. Were they to desist in this and other behavior substantially interfering with the comfort and repose of Butler’s occupancy, the harassment would cease.

In issuing this decision, this Court is mindful that this factual scenario and the application of the harassment statute to it may be a matter of first impression. And while the current living arrangement is not per se harassment, conduct that substantially interferes with Butler’s occupancy may give rise to a motion for contempt or a further order pursuant to HMC §27-2121. "

DAMAGES FOR FAILURE TO RETURN RESIDENTIAL SECURITY DEPOSIT

Smith v. Morgan Webster Manor LLC, NYLJ September 02, 2020,  Date filed: 2020-08-19,     Court: Town Justice Court, Monroe, Judge: Town Justice Thomas DiSalvo, Case Number: 2003002:

"Facts of the Case

This came on before the court on its small claims docket. The plaintiff had previously rented an apartment from the defendant¹ pursuant to a short term lease. The plaintiff’s claim against the defendant was divided into two separate parts. The first claimdemanded the return of the security deposit of three hundred dollars ($300.00). The second claim was for damages in the amount of two thousand one hundred sixty dollars ($2,160.00) for the additional cost of monthly mortgage payments made by the plaintiff as a result of a drop in his credit rating allegedly caused by the defendant. The plaintiff and his wife had been in the process of building a new house. Since the construction of the house was ongoing, the plaintiff entered into a short term lease with the defendant for a period of December 1, 2017 through April 7, 2018. The main lease itself was seven pages long. Said pages, except for page seven, consisted of two single spaced columns of terms.² The monthly rent payment was $1,227.00, which included a “pet rent” of $35.00. The lease required a $300.00 security deposit. Page one of the lease refers the tenant to “special provisions on the last page”. On page seven the pertinent portion of the special provisions stated “You are required to give us at least 60 days written notice if you intend to vacate the Apartment at the end of the lease term.” No penalty of failure to provide said written notice is set out in the lease.

On January 18, 2018 Tessa McCauley, Property Manager of the defendant sent an e-mail to the plaintiff regarding a possible extension of the lease term and reminding the plaintiff that the plaintiff was required to provide the defendant with a “60 days written notice” of an intent to vacate the apartment. A written notice of “Intent To Vacate” on April 7, 2018, dated March 22, 2018, was signed by the plaintiff and provided to the landlord. Said written notice was acknowledged by the defendant via a signature of a representative of said landlord. The plaintiff did not seek an extension of the lease term and vacated the apartment at the end of the original lease term.

Subsequent to plaintiff’s vacating of the apartment, the defendant sent the plaintiff a bill for two months rent in the amount of $1,541.72, apparently prorated for the April 7th departure of the plaintiff. From that amount the defendant deducted $240.12 of the $300 deposit, since the defendant paid the gas bill directly to the utility company for the apartment in the amount of $59.88, which would normally be added to the rent in accordance with the lease. This resulted in a net bill to the plaintiff of $1,301.60. Interestingly the defendant did not file a counterclaim for said amount.
Paragraph “42″ of the lease, entitled “SECURITY DEPOSIT DEDUCTIONS AND OTHER CHARGES”, states in pertinent part as follows: “You will be liable for the following charges, if applicable: unpaid rent, unpaid utilities, unreimbursed service charges, repairs or damages…. “
As previously stated the defendant sent plaintiff a bill for $1,301.60 because of the plaintiff’s failure to provide defendant with the 60 days written notice that it would be vacating the premises at the end of the term of the lease. Since the plaintiff/tenant failed to pay said sumto the defendant/landlord, the bill was referred to a debt collection agency. Plaintiff contends that when he and his wife refinanced the mortgage on their new home in November of 2019 their credit rating had been reduced from 834 to 690, which resulted in the mortgage lender charging a higher interest rate and a higher monthly mortgage payment, which resulted in an increase in the cost of his mortgage to the tune of $2,160.00 for the period in question. Thus the plaintiff’s claim included a demand for reimbursement of that amount.

Issues Presented

May the landlord apply the deposit to an amount charged for outstanding rent accrued for the tenants failure to give the landlord sixty days written notice of his intent to vacate the premises?
May the defendant be held liable for the increased cost of plaintiff’s monthly mortgage payment?

Legal Analysis — Deposit

General Obligations Law §7-108 (1-a) (b) states as follows:
“The entire amount of the deposit or advance shall be refundable to the tenant upon the tenant’s vacating of the premises except for an amount lawfully retained for the reasonable and itemized costs due to non-payment of rent, damage caused by the tenant beyond normal wear and tear, non-payment of utility charges payable directly to the landlord under the terms of the lease or tenancy, and moving and storage of the tenant’s belongings. The landlord may not retain any amount of the deposit for costs relating to ordinary wear and tear of occupancy or damage caused by a prior tenant.”³

In effect the defendant/landlord herein argues that the failure of the plaintiff/tenant to provide sixty days written notice to vacate the apartment amounts to “reasonable and itemized costs due to non-payment of rent”, because the landlord needs said time to make the apartment presentable to rent said apartment to a subsequent tenant. As previously stated the lease did not set out a penalty for the tenant’s failure to provide the sixty days written notice to vacate the apartment. In any event the charging of two months rent or even a pro-rated amount of two months rent appears to be more in the form of liquidated damages rather than “reasonable and itemized costs due to non-payment of rent”. In analyzing the facts herein, reference is made to Asquith v. Redevelop Albany, LLC, 65 Misc 3d 892, 110 N.Y.S.3d 905 [1985]. In that case the court held

“With respect to the subject security deposit, the Court finds that defendant did not comply with the legal requirement that a landlord provide to a tenant who vacates an apartment a written statement itemizing the reasons for retaining all or a portion of the tenant’s security deposit. General Obligations Law Section 7-108(1-e), which became effective on July 14, 2019 provides that
“‘Within fourteen days after the tenant has vacated the premises, the landlord shall provide the tenant with an itemized statement indicating the basis for the amount of the deposit retained, if any, and shall return any remaining portion of the deposit to the tenant. If a landlord fails to provide the tenant with the statement and deposit within fourteen days, the landlord shall forfeit any right to retain any portion of the deposit.’”⁴

In the instant case a letter dated April 13, 2018 was sent by the defendant to the plaintiff at his last known address along with a “move out inspection” form. Said letter indicated that the plaintiff owed $1,301.60 to the defendant. The move out inspection form stated that the said additional charge was because of “insufficient notice/did not give 60 days” and because of the payment of the tenant’s gas bill of $59.88.

“A clause in a contract is one for liquidated damages if ‘the amount of actual loss is incapable or difficult of precise estimation’ and the stipulated amount of damages ‘bears a reasonable proportion to the probable loss’ (Truck Rent — A — Ctr. v. Puritan Farms 2nd, 41 NY2d 420, 425, 393 N.Y.S.2d 365, 361 N.E.2d 1015; see BDO Seidman v. Hirshberg, 93 NY2d 382, 396, 690 N.Y.S.2d 854, 712 N.E.2d 1220; Vernitron Corp. v. CF 48 Assoc., 104 AD2d 409, 478 N.Y.S.2d 933). Whether a contractual provision represents a liquidated damages provision is a question of law *42 for the court to resolve (see United Tit. Agency, LLC v. Surfside — 3 Mar., Inc., 65 AD3d 1134, 1135, 885 N.Y.S.2d 334). Liquidated damages provisions will be upheld only if the amount fixed is a “reasonable measure of the probable actual loss in the event of a breach” (Central Irrigation Supply v. Putnam Country Club Assoc., LLC, 57 AD3d 934, 935, 871 N.Y.S.2d 319). If the amount fixed is grossly disproportionate to the amount of actual damages, then the liquidated damages provision amounts to a penalty and will not be enforced (see BDO Seidman v. Hirshberg, 93 NY2d at 396, 690 N.Y.S.2d 854, 712 N.E.2d 1220; Truck Rent — A — Ctr. v. Puritan Farms 2nd, 41 NY2d 420, 393 N.Y.S.2d 365, 361 N.E.2d 1015; Central Irrigation Supply v. Putnam Country Club Assoc., LLC, 57 AD3d at 935 — 936, 871 N.Y.S.2d 319).” (G3-Purves Street, LLC v. Thomson Purves, LLC, 101 AD3d 37, 41-42, 953 N.Y.S.2d 109,113 [2nd Dept. 2012]).

The only portion of the “14 Day Notice” which satisfies the statute relative to being an itemized statement is the $60.00 charge for the unpaid gas bill. The defendant would not be able to retain the balance of the $300.00 deposit nor charge the defendant for the pro-rata amount of two months rent as both items would be unenforceable liquidated damages. Certainly Real Property Law §227-e imposes a duty on the landlord to mitigate its damages. That section in and of itself casts doubt on any automatic damage claim on the part of the defendant. Finally, language such as “insufficient notice/did not give 60 days [notice]” would not satisfy the “ reasonable and itemized costs due to non-payment of rent” requirement of General Obligations Law §7-108 (1-a) (b) as same or similar language would lack the specificity implicit in the terms of the statute.

Legal Analysis — Damage to Plaintiff’s Credit Rating

The plaintiff’s claim for reimbursement for the additional cost incurred by him upon his refinance of his mortgage is a claim for consequential, special or extraordinary damages, “…which are recoverable in a breach of contract action only upon a showing that they were foreseeable and within the contemplation of the parties at the time the contract was made (see, Kenford Co. v. County of Erie, 73 NY2d 312, 319, 540 N.Y.S.2d 1, 537 N.E.2d 176, lv. dismissed 74 NY2d 712, 543 N.Y.S.2d 393, 541 N.E.2d 422).”⁵ (Williams v. Associated Mutual Insurance Company, 211 AD2d 865,867, 621 N.Y.S.2d 206,208 [3d Dept. 1995]). In that case the plaintiff was unable to close on a piece of real estate due to a default judgment entered against him, when the insurance company failed to defend him in a wrongful death suit as was required by the insurance policy in question. The court stated as follows:

“We conclude that the consequential damages claimed by plaintiff to have arisen as a result of his inability to close on the contract for the sale of his property and business, as well as the damages for mental anguish, altered standard of living, damage to plaintiff’s credit rating and other similar damages, are not recoverable in this breach of contract action (see, Sweazy v. Merchants Mut. Ins. Co., 169 AD2d 43, 571 N.Y.S.2d 131, lv. dismissed 78 NY2d 1072, 576 N.Y.S.2d 221, 582 N.E.2d 604; DiBlasi v. Aetna Life & Cas. Ins. Co., 147 AD2d 93, 103 — 104, 542 N.Y.S.2d 187).”⁶
In this case, there is no evidence that the refinance of the plaintiff’s real property approximately twenty months after it was purchased was contemplated by the parties at the time they entered into the lease agreement. Thus, the claim for special or consequential damages alleged to have been suffered by the plaintiff cannot be sustained.

Conclusion.

The court finds that the defendant is liable to the plaintiff for $240.12 relative to partial reimbursement of the security deposit. Therefore, judgement shall enter in favor of the plaintiff and against the defendant in that sum together with the filing fee of $15.00 for a total of $255.12. That the claim for special or consequential damages, allegedly suffered by the plaintiff relative to an adverse change in his credit rating, is hereby dismissed. This constitutes the decision and order of this court.
Dated: August 19, 2020

Footnotes

1. The "Request for Small Claims Action" cited the defendant as "Webster Manor Apartments". However, the name of the defendant set out on the lease between the parties was "Morgan Webster Manor, LLC". The caption is amended accordingly.
2. Attached to the lease and made a part thereof was a two page "Utility and Servicese Addendum", a two page "Animal Addendum", a two page "Bed Bug Addendum", a two page "Community Policies and Regulations Addendum", a one page "Lease Buy-Out Agreement", a one page "Lease Addendum For Enclosed Garage, Carport, or Storage Unit", a one page "Mold Information and Prevention Addendum", a one page "No-Smoking Addendum", a one page "Lease Addendum for Satellite Dish or Antenna". All of said addendums consisted of two single spaced columns of terms. Attached to said addendums was a one page "Liability Insurance / Insurance Exemption Addendum and a one "Schedule B Disclosure of Information on Lead-Based Paint Hazards" Both of the latter attachments consisted of half page single spaced terms. Thus the entire lease in question was twenty two pages long.
3. The gas bill was "payable directly to the landlord under the terms of the lease".
4. Id at 894, 908.
5. Special damages are "Those which are the actual, but not the necessary, result of the injury complained of, and which in fact follow it as a natural and proximate consequence in the particular case, that is, by reason of special circumstances or conditions." (Black's Law Dictionary 468 [Revised 4th Edition1968]).
6. Id.

HETPA

In order to reduce home equity fraud, the Home Equity Theft Prevention Act (HETPA, NY RPL §265-a) was passed on July 26, 2006 and it provides homeowners of residential property with information and disclosures in order to make informed decisions when approached by persons seeking a sale or transfer of the homeowner's property, particularly when homeowners are in default on their mortgage payments or the property is in foreclosure.

HETPA also affects the Banking Law (prohibiting banks from participating in home equity theft) and the Real Property Actions and Proceedings Law (requiring notice and information on foreclosure actions).

See DFS Industry Letter Home Equity Theft Prevention Act

AND BE SAFE AND HEALTHY THIS HOLIDAY WEEKEND

DOMESTIC VIOLENCE AND EQUITABLE DISTRIBUTION

A note on this case: a victim of domestic violence can often feel that the abuser continues the abuse by "dragging the case". This action was commenced in 2009. It finally reached a judgment in 2015. This appeal was finally decided in 2020.

Socci v Socci, 2020 NY Slip Op 04888, Decided on September 2, 2020, Appellate Division, Second Department:

"The parties were married on February 7, 1987. In March 2008, the defendant was convicted, upon his pleas of guilty, of assault in the second degree (two counts), kidnapping in the second degree, and aggravated criminal contempt related to incidents in which he beat the parties' two daughters with a belt and chained them to a tree overnight, and forced the plaintiff into his vehicle and tried to make her pour gasoline on herself (see People v Socci, 160 AD3d 904). In October 2009, the plaintiff commenced this action for a divorce and ancillary relief. At the trial in the divorce action, the plaintiff testified as to these events, as well as numerous other incidents of physical abuse during the marriage. In a decision after trial dated May 27, 2015, the Supreme Court, among other things, found that the defendant's egregious conduct in abusing the plaintiff over the course of the marriage warranted consideration in determining equitable distribution. Based, in part, on the defendant's egregious fault, the court awarded the plaintiff 75% of the net proceeds from the sale of the marital residence and 60% of the parties' investment and bank accounts and of the marital contributions to the defendant's deferred compensation plan. A judgment of divorce was entered on October 26, 2015. The defendant appeals.

The general rule in New York is that marital fault should not be considered in determining equitable distribution (see O'Brien v O'Brien, 66 NY2d 576, 589-590). However, egregious marital fault may be considered in rare cases involving extreme conduct which shocks the conscience of the court (see Domestic Relations Law § 236[B][5][d][14]; Howard S. v Lillian S., 14 NY3d 431, 435-436; O'Brien v O'Brien, 66 NY2d at 589-590; Brancoveanu v Brancoveanu, 145 AD2d 395, 398). The marital misconduct must be "so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship" (Blickstein v Blickstein, 99 AD2d 287, 292; see Levi [*2]v Levi, 46 AD3d 520, 521; Havell v Islam, 301 AD2d 339, 345).

Here, the Supreme Court providently exercised its discretion in finding that the defendant's sustained physical abuse of the plaintiff over the course of their marriage constituted egregious marital fault to be factored into the equitable distribution award in addition to other considerations, and providently exercised its discretion in fashioning the equitable distribution award (see Havell v Islam, 301 AD2d at 345; Brancoveanu v Brancoveanu, 145 AD2d at 398). Contrary to the defendant's contention, the court properly rejected his argument that he should not be held responsible for the abuse because of a brain injury he sustained in 2005. The evidence established that the abuse began prior to the defendant's accident, and the defendant failed to offer evidence to support his argument that he lacked legal responsibility for his acts by reason of a mental disease or defect (see Levi v Levi, 46 AD3d at 521-522). Notably, the defendant's criminal convictions related to the abuse have been affirmed on appeal (see People v Socci, 160 AD3d 904).


The defendant further contends that he was denied the effective assistance of trial counsel. However, there is neither a constitutional nor a statutory right to counsel in the equitable distribution portion of a matrimonial action (see Matter of Smiley, 36 NY2d 433, 440; Elsayed v Edrees, 141 AD3d 503, 505; cf. Matter of Nassau County Dept. of Social Servs. v King, 149 AD3d 942, 943-944). "[I]n the context of civil litigation, an attorney's errors or omissions are binding on the client and, absent extraordinary circumstances, a claim of ineffective assistance of counsel will not be entertained" (HBJOBaron Assoc. v Leahing, 142 AD3d 585, 585 [internal quotation marks omitted]). The defendant failed to demonstrate the existence of extraordinary circumstances."

DETERMINING RESIDENTIAL CUSTODY BY OVERNIGHTS

For this court in the Second Department, when the parenting time is joint and shared, the parent who spends more overnights with the children is deemed the custodial parent for child support purposes.

Matter of Aileen S. v. Michael D., NYLJ August 31, 2020, Date filed: 2020-05-07, Court: Family Court, Nassau, Judge: Support Magistrate Sondra Toscano, Case Number: F-00984-20:

"The parties have never been married and have two children in common, Chiara D. and Michelangelo D. On January 27, 2020, the mother, Aileen S. (hereinafter “Mother” or “Ms. S.”) filed a support petition against the father, Michael D. (hereinafter “Father” or “Mr. D.”). In her petition, she alleges that she is entitled to child support because she asserts that the parties’ final order of custody and parenting time grants “the parties’ [sic] joint legal custody and shared parenting time.” On February 26, 2020, Mr. D. filed a motion to dismiss. In his papers, Mr. D. argues that Ms. S. is not entitled to child support because although the parties were awarded joint legal custody, the final order does not delineate residential custody. On March 16, 2020, Ms. S. filed opposition papers. Thereafter, the Court conducted two Skype conferences with the parties’ attorneys. Despite efforts to settle the motion, a resolution could not be reached. Both parties submitted supplementary papers which they agreed would be considered by the Court for the purposes of deciding the motion. On May 1, 2020, the motion was marked submit. Having considered the parties’ papers, the law, and counsels’ arguments, the Court’s determination is as follows:

DISCUSSION

A party to a family court action may file a motion to dismiss for failure to state a cause of action pursuant to CPLR §3211(a)(7). See N.Y. FAM. CT. ACT §165(a) (McKinney’s 2020) (FCA adopts and applies CPLR where FCA is silent); see also See N.Y. C.P.L.R. §3211(a)(7) (McKinney’s 2020). In its analysis, the Court must construe the petition liberally to determine whether, within the pleading’s four corners, there exists a cognizable cause of action. See Harris v. Barbera, 96 A.D.3d 904, 905 (2d Dep’t 2012); see also Martin v. Liberty Mutual Ins. Co., 92 A.D.3d 729, 730 (2d Dep’t 2012); Ruffino v. New York City Transit Auth., 55 A.D.3d 817, 818 (2d Dep’t 2008). To that end, the Court must accept all alleged facts within the pleadings to be true. See Martin, 92 A.D.3d at 730; see also Young v. Campbell, 87 A.D.3d 692, 693 (2d Dep’t 2011). In other words, a motion to dismiss for failure to state a cause of action may be granted only where, accepting the petition’s alleged facts as true, the moving papers establish conclusively that there is no claim for relief stated within the petition. See N.Y. C.P.L.R. §3221(a)(7) (McKinney’s 2020); see also Noble v. Graham, 8 A.D.3d 641, 641 (2d Dep’t 2004); Fields v. Leeponis, 95 A.D.2d 822, 822 (2d Dep’t 1983). Although Ms. S.’s petition states that she is entitled to support for the benefit of the parties’ two children, the Court finds that under the law, the relief she seeks is not warranted, and dismisses her petition.

For the purposes of calculating child support, a custodial parent is a parent who has physical custody for a majority of time. See Bast v. Rossoff, 91 N.Y.2d 723, 728 (1998); see also Watson v. Maragh, 147 A.D.3d 769, 769 (2d Dep’t 2017); Conway v. Gartmond, 144 A.D.3d 795, 796 (2d Dep’t 2016); Ambrose v. Felice, 45 A.D.3d 581, 582 (2d Dep’t 2007). It is well-settled in the Second Department that where neither parent has the children for the majority of the time, the non custodial parent is deemed to be the more monied spouse.¹ See Conway, 144 A.D.3d at 796 (citing cases). Where, as here, the parties disagree about whom has the children most of the time, a court must make a determination as to whom is the primary custodial parent. See Bast, 91 N.Y.2d at 728. There is no controlling law in the Second Department in that regard.

The stare decisis doctrine requires Second Department trial courts to follow precedents set forth in sister departments until controlling law in the Court of Appeals or Second Department is established. See Mountain View Coach Lines, Inc. v. Storm, 102 A.D.2d 663, 664(2d Dep’t 1984). Where there are differing views in sister departments, a Court is able choose which approach it deems to be the better one and apply it. See Mountain View Coach Lines, Inc., 102 A.D.2d at 664 66; Matter of Faragiano, 46 Misc. 3d 646, 649 (Erie Cty. Surr. Ct., Oct. 29, 2014) (citing cases). The First and Third Departments hold that the parent who spends more overnights with the children is the custodial parent. See Mitchell v. Mitchell, 134 A.D.3d 1213, 1214-215 (3d Dep’t 2015); Rubin v. Della Salla, 107 A.D.3d 60, 67-73 (1st Dep’t 2013); Smith v. Smith, 97 A.D.3d 923, 924 (3d Dep’t 2012). The Fourth Department holds that where there is an approximately even distribution of parenting time, the parent with the greater income is the non-custodial parent. See Brink v. Brink, 178 A.D.3d 1369, 1371 (4th Dep’t 2019); see also Rapp v. Horbett, 174 A.D.3d 1315, 1316 (4th Dep’t 2019). Mr. D. maintains that he has more overnights with the children and urges the Court to follow the First and Third Departments. Ms. S. urges the Court to follow the Fourth Department because she maintains that the parties enjoy shared parenting time with the children. She further asserts that she was awarded more waking hours with the children.

The Court finds the reasoning and holding in the First and Third Departments to be more persuasive than the Fourth Department. In Rubin v. Della Salla, 107 A.D.3d 60 (1st Dep’t 2013), the court sets forth a thorough analysis of its conclusion that overnights are the determinative factor. The Rubin court found that “[a]n hour-by-hour analysis of custodial time is just not workable and would run afoul of the ‘greater uniformity [and] predictability’ the CSSA was designed to promote.” Id. at 70. The Rubin court explained that: (1) the number of waking hours does not accomplish the goal of child support, which is to help a custodial parent provide the children with basic necessities; (2) since children’s daily activities are constantly ever-changing, children may not actually be with a parent during daytime hours; and, (3) the waking hours approach promotes manipulation by parents in trying to achieve the custodial parent designation. Id. Moreover, other New York trial courts have consistently followed the overnight approach.² See E.I. v. Y.A., 2018 N.Y. Misc. LEXIS 1230, at *19 (Queens Cty. Sup. Ct., Mar. 20, 2018); see also J.R. v. M.S., 56 Misc. 3d 975, 988-89 (N.Y. Cty. Sup. Ct., May 5, 2017); Joseph M. Lauren J., 45 Misc. 3d 1211(A) (N.Y. Cty. Sup. Ct., Oct. 22, 2014). Ms. S. acknowledges that Mr. D. enjoys more overnights with the children.³ Thus, applying the relevant law set forth in the First and Third Departments, the Court finds that Ms. S. is not the children’s custodial parent.⁴ Accordingly, accepting all alleged facts within the pleadings to be true, the Court finds that Ms. S. has failed to sufficiently set forth a cause of action.

Footnotes

1. There is no dispute amongst the parties that Mr. D. is the parent with the greater income.
2. The Court notes parenthetically that most recently, one New York trial court found that where the parties had roughly equal parenting time, the more monied spouse was the noncustodial parent. See Warshaw v. Warshaw, 2020 N.Y.L.J. LEXIS 415 (N.Y. Sup. Ct., Feb. 24, 2020). However, the Court declines to adopt this view as it is not appellate authority and is contrary to all prior New York trial court decisions, on the issue, within the Second Department. See Kolanu Partners, LLC v. Perry, 2015 N.Y. Misc. LEXIS 3344, at *5 (N.Y. Cty. Civil Ct., Sept. 16, 2015) (court decision of equal or inferior jurisdiction "is not necessarily controlling, through entitled to respectful consideration."); see also Matter of Nonhuman Rights Project Inc. v. Stanley, 49 Misc. 3d 746, 770 (N.Y. Cty. Sup. Ct., July 29, 2015) (same).
3. Ms. S. concedes such in an affidavit, dated June 21, 2019, submitted during a prior child support proceeding and attached as Exhibit F to Mr. D.'s motion to dismiss as well as a spreadsheet provided in Ms. S.'s supplemental papers on the instant motion.
4. The Court notes anecdotally that the children reside primarily with Mr. D. for 10 months out of the year. In the Honorable Ayesha Brantley's (hereinafter "Judge Brantley") Decision and Order, dated March 29, 2019, she granted "residential custody to [Mr. D.] solely for the purpose of determining the children's school district and a shared parenting schedule between the parties." Although she "endeavored to create a schedule that is balanced and affords both parties meaningful and regular access to the children," Judge Brantley found that "the children's interests are best served by residing with [their father] primarily during the school year (September through June) and residing with [their mother] primarily during the summer months (July and August)." Id.

CONSTRUCTIVE TRUST ON REAL PROPERTY

In this matter, the defendant holds title to the home and plaintiff resides in the home. Defendant sought to evict plaintiff in Housing Court. Plaintiff brings this action to impose a constructive trust, alleging plaintiff is a 50% owner, and is able to obtain a stay of the eviction. Supreme Court dismisses the complaint and the plaintiff appeals. NOTE: The parties are related by marriage.

Abehsera v Saldin, 2020 NY Slip Op 04723, Decided on August 26, 2020, Appellate Division, Second Department:

"The plaintiff commenced this action against the defendant to impose a constructive trust on certain real property in Nassau County, and for related relief. The plaintiff alleged that he, by virtue of an oral agreement with the defendant and equitable contributions to the premises by the plaintiff, owns one half of the premises. The defendant answered and thereafter moved for summary judgment dismissing the complaint. By order dated April 26, 2017 (hereinafter the April 2017 order), the Supreme Court granted the motion. The plaintiff then moved for leave to renew and reargue his opposition to the defendant's motion for summary judgment. By order entered December 11, 2017, the court denied that branch of the plaintiff's motion which was for renewal, granted that branch of the plaintiff's motion which was for reargument, and upon reargument, adhered to its prior determination in the April 2017 order. The plaintiff appeals from both orders.

The defendant established his prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting his affidavit denying the existence of any agreement with [*2]the plaintiff regarding ownership or an interest by the plaintiff in the premises, and denying that the plaintiff performed repairs to the premises. However, in opposition, the plaintiff submitted the affidavits of two nonparties who each attested, inter alia, to admissions made by the defendant that the plaintiff was an equal owner of the premises with the defendant. Thus, the affidavits submitted by the parties raise triable issues of fact as to whether the parties, who are in-laws by virtue of the defendant's marriage to the plaintiff's daughter and who lived with each other for several years prior to the defendant moving out, orally agreed to a shared ownership of the subject premises, and as to whether the plaintiff relied on that agreement by paying for repairs and expenses on the home for the benefit of the defendant. Accordingly, the defendant's motion for summary judgment should have been denied (see JP Morgan Chase Bank, N.A. v Bank of Am., 164 AD3d 565, 568; see also Marini v Lombardo, 39 AD3d 824, 825-826)."