A HALLOWEEN LITIGATION

An oldie but a goodie. Stay safe tomorrow and always. (The image is from "You can´t scare me I´m a Lawyer: Journal, Notebook, Diary to Organize Your Life" - Paperback – September 18, 2019 by Carol Lewis (Author) - Available on Amazon)

Jacobson v. E. WILLISTON DIST, 170 Misc. 2d 93 - NY: Supreme Court 1996:

"Plaintiffs' application by order to show cause for preliminary injunctive relief directing defendants to permit plaintiffs access to and use of its facilities for any event to which students of the District are invited, including but not limited to the I. U. Willets Road School Halloween party, is denied.

Plaintiffs' underlying action seeks to recover consequential and punitive money damages for defendants' alleged negligent and intentional refusal to allow infant plaintiff Clarice Jacobson entry to defendants' 1995 Halloween party. Additionally, by this order to show cause, plaintiffs seek a permanent injunction compelling defendants to allow plaintiffs, specifically the infant plaintiff, to attend future school events, most notably the 1996 I. U. Willets Road School Halloween party.

As neither party addresses the issue of whether the underlying action in fact seeks mandamus relief pursuant to CPLR article 78 for which more stringent procedural and substantive standards would apply, neither will this court. Applying the traditional tripartite test for preliminary injunctive relief, i.e., likelihood of success on the merits, irreparable injury and a balancing of the equities (Aetna Ins. Co. v Capasso, 75 N.Y.2d 860), plaintiffs have failed to demonstrate their entitlement to injunctive relief.

For purposes of this motion, it is uncontroverted that infant plaintiff Clarice Jacobson lives within the East Williston Union Free School District but attends Friends Academy, a private school. Plaintiffs, relying upon Education Law § 414, claim that Clarice Jacobson may not be excluded from the upcoming 1996 I. U. Willets Road School Halloween party hosted by that school's principal Michael Gordon and members of his teaching staff.

Plaintiffs' reliance on Education Law § 414 and the circumstances herein alleged fail to establish the requisite likelihood of success prong of the traditional tripartite test for issuance of the preliminary injunction.

Education Law § 414 (1) provides for the adoption of reasonable regulations for the use of school property when not in use for school purposes or at times not disruptive of normal school operations. For purposes of this application, this court will accept, arguendo, that a Halloween party falls within one or more of the listed purposes of Education Law § 414 (1) (a) (instructional), (c) (social, civic and recreational meetings and entertainments) or (h) (athletic contests).

Subdivision (2) provides, in relevant part, that any such use, pursuant to paragraphs (a), (c), and (h), shall not allow the 95*95 exclusion of any district child solely because the child is not attending a district school or not attending the district school which is sponsoring such use or on which grounds the use is to occur.

While inartfully drawn, Education Law § 414 (1) provides for the establishment of regulations for use of school property for nonschool purposes. The statute is applicable when the school is either not in use for school purposes or when the school is in use for school purposes but its use for any of the categorized purposes will not be disruptive of normal school operations (see, Trietley v Board of Educ., 65 AD2d 1, 5). It does not, however, govern use of school property for school uses.

That the 1996 I. U. Willets Road School Halloween party may fall within one or more of the statutorily listed categories of Education Law § 414 for which school property may be used, does not preclude such a gathering from being held exclusively as a school function or program limited to students of the District, or more restrictively, limited to students of a particular school within the District.

Plaintiffs do not seek to hold their own Halloween gathering as a nondisruptive use of the school's normal operation pursuant to Education Law § 414 but seek entry into the school program itself.

The East Williston School District is the sponsoring entity of this 1996 Halloween party; and, there is no claim that this is not an appropriate school function or program, especially since it is designed among other things to provide a safe environment for students on Halloween night.^[*] Hence, school property is in use for a school purpose during this planned school function or program.

This court declines to adopt plaintiffs' interpretation of Education Law § 414 which interpretation would effectively vitiate the ability of school districts to close school functions and programs, including not only school dances but also events such as auditorium presentations, science and book fairs, field day competitions and the like, to nonstudents. This is clearly not the intent of Education Law § 414.

In keeping with the "long-standing deference afforded local school boards to exercise ultimate authority for access to students, school buildings and school property generally" (Lloyd v Grella, 83 N.Y.2d 537, 547), this court finds that 96*96 plaintiffs have failed to demonstrate a likelihood of success on the merits. The motion is accordingly denied.

Having failed in this initial test of the strength of plaintiffs' claim, this court will not permit this litigation to languish.

[*] Indeed, this appears to be one of the motivating forces behind plaintiffs' desire to have infant plaintiff attend."

COVID SAFETY MEASURES IN COURT

CC v. AR, 2020 NY Slip Op 20245 - NY: Supreme Court September 30, 2020:

".....

The Court notes that court staff, including Justices of the Supreme Court, chambers staff, part clerks, court officers, clerical staff, maintenance personnel and other employees of the court system in Kings County Supreme Court, have been working in the courthouse, observing those established protocols, for months. There have been proceedings conducted in the courthouse on a limited basis and jurors have been summoned for petit jury trials to commence in the next few weeks. While keeping foot traffic at a minimum the Court has provided methods for physical access to the Courthouse to the public on a case-by-case basis.

These are unprecedented times: fortunately, global pandemics have not been commonly faced in New York. All aspects of social infrastructure and daily-life face the challenging task of mindfully restarting in-person operations. There are Admistrative Orders available on the Court website which provide guidance and instructions regarding court operations and safety protocols. When there is an individual who tests positive in a courthouse a public notification is made on the website. The Courts are open to serve the people of New York State through a hybrid of virtual and increasingly in-person proceedings, which were regionally adapted to take into account different regions of the State. These protocols and Administrative Orders were disseminated and posted to the New York State Court website.

The authority and autonomy of the Unified Court System to establish and implement the appropriate measures for in-person court proceedings was recently recognized by the Southern District of New York Federal Court in Bronx Defenders v Office of Court Administration (2020 WL 4340967 [S.D.N.Y, July 28, 2020]. In Bronx Defenders, plaintiff challenged the Uniform Court System determination that in-person proceedings could resume and sought an injunction from the Federal Court to halt in-person appearances in New York City Criminal Court. That application was denied and the case was dismissed with a finding by the Southern District of New York Federal Court that the Federal Courts:

cannot, dictate if, when, and how state criminal courts reopen or schedule in-person appearances. To do so would violate fundamental principals of comity and federalism, and would result in federal supervision of state procedures and proceedings in direct contradiction of O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)" (2020 WL 4340967 at *1).

Similarly, it is not within the purview of a litigant or counsel to assess whether the protocols established are adequate; however, neither is plaintiff nor his counsel, under the facts and circumstances presented, required to appear in-person for the conclusion of the trial. The Court notes that plaintiff has every interest in seeking to delay the resolution of this matter inasmuch as he faces possible incarceration.

This Court has previously made arrangements for others to conduct in-person review of documents in the courthouse that observe social distancing and all protocol guideline procedures adopted by the Unified Court System. The Court notes that it is not the purvey of this Court nor of plaintiff to deem the protocols established and adopted by the Uniform Court System as "sufficient" or not: nor is there a need for plaintiff to reach that determination because there is no requirement for plaintiff to appear in-person. Virtual proceedings are available precisely to fit these situations. To hold otherwise: to deem that any individual could be arbitrarily left to determine for him or herself that she did not believe that courthouses were safe would, in effect, grant any litigant carte blanc to postpone — indefinitely — any proceeding in which he or she did not want to appear. Certainly, such an outcome will not stand. This case need not be an exception.

......"

A SUMMARY JUDGMENT MOTION REQUIRES ADMISSABLE EVIDENCE

In this case, a foreclosure is delayed due to the bank's failure to submit proper evidence in its motion papers.

SELENE FIN., LP v. Coleman, 2020 NY Slip Op 5962 - NY: Appellate Div., 2nd Dept. October 21, 2020:

".....

However, we agree with the defendant that the Supreme Court also should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him, to strike his answer and affirmative defenses, and for an order of reference. "On its motion for summary judgment, the plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law" (Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d 780, 782; see JPMorgan Chase Bank, N.A. v Akanda, 177 AD3d 718, 719). "In an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default" (MLCFC 2007-9 Mixed Astoria, LLC v 36-02 35th Ave. Dev., LLC, 116 AD3d 745, 746). Where, as here, a defendant places standing in issue, the plaintiff must prove standing as part of its prima facie case (see U.S. Bank N.A. v Auguste, 173 AD3d at 932-933).

Here, although the plaintiff established its standing, the plaintiff failed to establish, through admissible evidence, the defendant's default in payment under the note. For evidence of default, the plaintiff relied upon the affidavit of a foreclosure manager employed by the plaintiff, wherein she attested, among other things, that the defendant defaulted under the loan in February 2011. By attesting that she was familiar with the record-making practices of her employer, that the records were made in the regular course of business, that it was the regular course of such business to make the record, and that the records were made "at or about the time of the event being recorded" (People v Kennedy, 68 NY2d 569, 580), the foreclosure manager satisfied the requirements for establishing a foundation for the admission of business records (see CPLR 4518[a]; Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 205). However, since the foreclosure manager failed to submit any of the business records upon which she contends she relied in making her affidavit, her averment as to the defendant's purported default "`constitute[s] inadmissible hearsay and lack[s] probative value'" (Federal Natl. Mtge. Assn. v Brottman, 173 AD3d 1139, 1141, quoting Bank of N.Y. Mellon v Gordon, 171 AD3d at 208-209). As "it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted" (Bank of N.Y. Mellon v Gordon, 171 AD3d at 205), and "a witness's description of a document not admitted into evidence is hearsay" (U.S. Bank N.A. v 22 S. Madison, LLC, 170 AD3d 772, 774), the assertions by the foreclosure manager as to the contents of the records were "inadmissible hearsay to the extent that the records she purport[ed] to describe were not submitted with her affidavit" (id. at 774; see JPMorgan Chase Bank, N.A. v Grennan, 175 AD3d 1513, 1517).

Since the plaintiff failed to meet its prima facie burden, the Supreme Court should have denied those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer and affirmative defenses, and for an order of reference, without regard to the sufficiency of the defendant's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853)."

NO MUTUAL MISTAKE

When drafting an agreement, take enough time to be clear and specific.

PERRETTA v. PERRETTA, 2020 NY Slip Op 5958 - NY: Appellate Div., 2nd Dept. October 21, 2020:

"The parties are the divorced parents of two children, now both over 18 years old. The parties' stipulation of settlement (hereinafter the settlement agreement), entered into in 2011 and incorporated, but not merged, into the judgment of divorce, provided the defendant, who had residential custody of the children, with exclusive occupancy of the former marital residence until the youngest child turned 18 years old, at which time the residence would be sold. The parties' youngest child turned 18 in August 2018. By notice of motion dated March 7, 2019, the plaintiff moved to enforce the provision of the settlement agreement, as incorporated into the judgment of divorce, requiring that the former marital residence be listed for sale. The defendant opposed the motion and cross-moved to reform the settlement agreement, as incorporated into the judgment of divorce, on the ground of mutual mistake so as to condition the sale of the former marital residence on the parties' youngest child turning 21 years old. The defendant asserted that the parties had intended for the child, who is severely autistic, to remain in the former marital residence until such time as he was able to enter a group home, that both parties believed at the time the settlement agreement was entered into that the child would be eligible to enter a group home when he turned 18, and that the parties have since learned that the child will not be eligible to enter a group home until he turns 21. By order entered July 24, 2019, the Supreme Court, inter alia, granted the plaintiff's motion, denied the defendant's cross motion, and directed that the former marital residence be listed for sale in accordance with the terms of the settlement agreement. The defendant appeals.

"Marital settlement agreements are judicially favored and are not to be easily set aside" (Simkin v Blank, 19 NY3d 46, 52; see Leacock v Leacock, 132 AD3d 818, 819). "Nevertheless, in the proper case, an agreement may be subject to rescission or reformation based on a mutual mistake by the parties" (Simkin v Blank, 19 NY3d at 52). "The premise underlying the doctrine of mutual mistake is that `the agreement as expressed, in some material respect, does not represent the meeting of the minds of the parties'" (id. at 52-53, quoting Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446, 453). "For a party to be entitled to reformation of a [settlement agreement] on the ground of mutual mistake, the mutual mistake must be material, i.e., it must involve a fundamental assumption of the contract" (True v True, 63 AD3d 1145, 1147; see Asset Mgt. & Capital Co., Inc. v Nugent, 85 AD3d 947, 948), and the party must "demonstrate that the mistake existed at the time the [settlement agreement] was entered into" (Mahon v New York City Health & Hosps. Corp., 303 AD2d 725, 725; see Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d at 453; Yakobowicz v Yakobowicz, 142 AD3d 996, 998).

The party seeking reformation of a contract by reason of mutual mistake must establish, with clear and convincing evidence, that the contract was executed under mutual mistake (see Gunther v Vilceus, 142 AD3d 639, 640; Yu Han Young v Chiu, 49 AD3d 535, 536). "In a case of mutual mistake, the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement" (Chimart Assoc. v Paul, 66 NY2d 570, 573). "Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties" (George Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 219).

Here, the defendant failed to establish by clear and convincing evidence that the parties had agreed to sell the former marital residence when the parties' youngest child turned 18 based on their alleged misunderstanding that the youngest child would be eligible for placement in a group home when he turned 18 (see McClorey v McClorey, 153 AD3d 1252, 1254; Gunther v Vilceus, 142 AD3d at 641). The terms of the settlement agreement regarding the sale of the former marital residence are plain and unambiguous, and there is no evidence in the record that the parties had considered the impact of a sale of the marital home on the youngest child at the time that the settlement agreement was executed (see Yakobowicz v Yakobowicz, 142 AD3d 996).

Accordingly, we agree with the Supreme Court's determination granting the plaintiff's motion to enforce the subject provision of the settlement agreement, as incorporated into the judgment of divorce, and denying the defendant's cross motion to reform the settlement agreement, an incorporated into the judgment of divorce."

HSTPA AND RPAPL 749 VACATES WARRANT

In this case, it was the landlord's action of applying the security deposit to rent after the warrant that resulted in this decision.

636 Apt. Assocs. JV v. Mayo, NYLJ  October 07, 2020 • Date filed: 2020-09-25 • Court: City Court, Westchester  • Judge: Judge Lyndon Williams • Case Number: 2920-19:

Petitioner commenced this nonpayment proceeding in November 2019 seeking to recover $8,940.00 in alleged rental arrears for the period from January 2019 to November 2019. The petition alleges that respondent entered into possession of the premises under a written rental agreement where respondent agreed to pay $1,550.00 each month and that pursuant to said agreement there was due to landlord from respondent $8,940.00. On January 2, 2020, the agreed upon return date of the petition, respondent failed to appear. After having reviewed the petitioner’s rent ledger for the alleged rent arrears the Court determined that petitioner was not entitled to parking, late or attorneys fees, all of which had been included in the amount sought in the petition. Accordingly, after deducting said fees from the total amount alleged in the petition, the Court granted petitioner a final judgment of possession in the amount of $1,080.00 with a five (5) day stay. On March 13, 2020 the judgment was entered and the warrant of eviction issued. Thereafter, on March 17, 2020, the NYS Unified Courts stayed all pending matters as a result of the ongoing COVID-19 pandemic and as such, the warrant of eviction was never executed. The instant matter was stayed until being restored to the Court’s calendar for a conference on September 3, 2020 pursuant to Administrative Order 160A-20.

On September 3, 2020 the parties appeared and respondent was referred to the Legal Services of the Hudson Valley to obtain counsel. The matter was adjourned to September 23, 2020 for a conference. On September 23, 2020, the Court held a conference with petitioner and respondent, who appeared pro se. Petitioner presented a rent ledger for respondent’s account dated September 22, 2020 which indicated an overall balance of $14,015.00. The ledger further indicated, however, that a credit to respondent’s account of $1,550.00 was applied on May 19, 2020. Petitioner acknowledged that it had applied respondent’s security deposit of $1,550.00 toward her outstanding rent arrears. At no time during the pendency of this matter did the petitioner amend its petition to include the additional alleged rent arrears that accrued after the judgment and warrant were issued.

It is petitioner’s position that pursuant to RPAPL §749(3) a tenant must tender or deposit all rent amounts due and outstanding and not just the judgment amount for a warrant of eviction to be vacated.1 As such, petitioner contends that in the instant matter, respondent has an outstanding balance of $14,015.00 and therefore, the warrant of eviction cannot be vacated. None of the cases cited by petitioner support its position that it is entitled to evict respondent because she has additional outstanding rent arrears that accrued after the judgment and warrant were issued even though the judgment has been satisfied prior to the execution of the warrant. Moreover, all of the cases relied on by Petitioner are inapplicable as they were interpreting the old RPAPL §749(3) which explicitly provided that the landlord-tenant relationship between the parties was terminated upon the issuance of a warrant and only provided for vacatur of the warrant prior to execution upon a showing of good cause. Under the old RPAPL §749(3) and the case law interpreting the statute, payment of rent arrears alone was not sufficient good cause to support a vacatur.

On the contrary, the new RPAPL §749(3), enacted under the New York Housing Stability and Tenant Protection Act of 2019 (“HSTPA”), which applies to the instant matter, no longer terminates the landlord tenant relationship upon issuance of a warrant of eviction. Rather, the new statute affords tenants greater protection from eviction based upon non-payment of rent. Specifically, the provision actually requires that where the full amount of rent owed is paid prior to the execution of the warrant, the warrant must be vacated except where the landlord demonstrates that the tenant withheld the rent in bad faith. Moreover, the statute also specifically states that the “[p]etitioner may recover by action any sum of money which was payable at the time when the special proceeding was commenced and the reasonable value of the use and occupation to the time when the warrant was issued…” RPAPL §749(3). The plain language of the statute makes it clear that the rent amounts owed as contemplated by the statute are for the period of time before a warrant of eviction is issued.

In the case at bar, a final judgment of possession for petitioner in the amount of $1,080.00 and a warrant of eviction were issued on March 13, 2020. Respondent’s account was credited $1,550.00 on May 19, 2020 using her security deposit. Petitioner did not present any evidence to support a finding that the respondent had withheld the rent due in bad faith. Any alleged additional rent arrears that accrued after the judgment and warrant were issued were never properly brought before the Court as petitioner did not seek to amend the instant petition nor did petitioner commence a new action seeking to recover said arrears. As such, since a credit to respondent’s account in excess of the $1,080.00 judgment amount, that being the full rent amount due prior to the issuance of the warrant, was applied to respondent’s account prior to the execution of the warrant, the warrant must be vacated. See RPAPL §749(3).

Accordingly, the Court finds that the judgment has been satisfied, the warrant of eviction is vacated and the petition is dismissed with prejudice.

TRY PRIVATE MEDIATION

Try private mediation. In 2016, Jed S. Rakoff, a United States District Judge for the Southern District of New York, wrote:

"Over the past few decades, ordinary US citizens have increasingly been denied effective access to their courts. There are many reasons for this. One is the ever greater cost of hiring a lawyer. A second factor is the increased expense, apart from legal fees, that a litigant must pay to pursue a lawsuit to conclusion. A third factor is increased unwillingness of lawyers to take a case on a contingent-fee basis when the anticipated monetary award is modest. A fourth factor is the decline of unions and other institutions that provide their members with free legal representation. A fifth factor is the imposition of mandatory arbitration. A sixth factor is judicial hostility to class action suits. A seventh factor is the increasing diversion of legal disputes to regulatory agencies. An eighth factor, in criminal cases, is the vastly increased risk of a heavy penalty in going to trial."

 

WHAT IS "DUE DILIGENCE" FOR "AFFIX AND MAIL" SERVICE

Federal Natl. Mtge. Assn. v Castoldi, 2020 NY Slip Op 05887, Decided on October 21, 2020, Appellate Division, Second Department:

".......

"It is well established that the burden of proving that personal jurisdiction was acquired rests at all times upon the plaintiff in the action" (Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139; see HSBC Bank USA, N.A. v Assouline, 177 AD3d 603, 604; Wells Fargo Bank, N.A. v Decesare, 154 AD3d 717). Ordinarily, a process server's sworn affidavit of service attesting to the proper delivery of a summons to a defendant constitutes prima facie evidence of service in the manner described (see Nationstar Mtge., LLC v Cohen, 185 AD3d 1039; Federal Natl. Mtge. Assn. v Alverado, 167 AD3d 987, 988; Wells Fargo Bank, N.A. v Chaplin, 65 AD3d 588, 589). A defendant moving to vacate a judgment pursuant to CPLR 5015(a)(4) must overcome the presumption raised by such an affidavit of service (see Nationstar Mtge., LLC v Cohen, 185 AD3d 1039; Federal Natl. Mtge. Assn. v Alverado, 167 AD3d at 988). A sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit will defeat the presumption of proper service (see Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d 776, 776-777; Machovec v Svoboda, 120 AD3d 772, 773). If the presumption is rebutted, a hearing is necessary, at which the plaintiff must establish jurisdiction by a preponderance of the evidence (see Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d at 777; Machovec v Svoboda, 120 AD3d at 773).

Here, the affidavit of service contained sworn allegations reciting that the process server served Castoldi with the summons and complaint, along with the RPAPL 1303 notice, at Castoldi's residence at 2:30 p.m. on July 19, 2008, by affixing a true copy of each to the door of the premises. The process server averred that he had been unable, "with due diligence," to find the defendant or a person of suitable age and discretion at the home, having "confirmed with the neighbor" and having called there on July 15, 2008, at 7:00 p.m., on July 16, 2008, at 3:30 p.m., and on July 18, 2008, at 7:15 a.m. The process server further averred that he also mailed a copy by first class mail to Castoldi at the residence on July 30, 2008.

Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with "due diligence" (CPLR 308[4]; see Coley v Gonzalez, 170 AD3d 1107, 1108; Estate of Waterman v Jones, 46 AD3d 63, 65). "The requirement of due diligence must be strictly observed because there is a reduced likelihood that a defendant will actually receive the summons when it is served pursuant to CPLR 308(4)" (Coley v Gonzalez, 170 AD3d at 1108 [internal quotation marks omitted]; see Serraro v Staropoli, 94 AD3d 1083, 1084; McSorley v Spear, 50 AD3d 652, 653). "What constitutes due diligence is determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality" (McSorley v Spear, 50 AD3d at 653; see Coley v Gonzalez, 170 AD3d at 1108; Serraro v Staropoli, 94 AD3d at 1084).

In support of that branch of his motion which was pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale entered November 23, 2016, and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, Castoldi raised issues of fact as to whether the process server exercised due diligence in attempting to effectuate service pursuant to CPLR 308(1) or (2) before  resorting to the "affix and mail" method pursuant to CPLR 308(4) (see HSBC Bank USA, N.A. v Assouline, 177 AD3d at 605; Coley v Gonzalez, 170 AD3d at 1108; Federal Natl. Mtge. Assn. v Alverado, 167 AD3d at 989; Sinay v Schwartzman, 148 AD3d 1068, 1070; Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d at 777-778; Machovec v Svoboda, 120 AD3d at 774; Deutsche Bank Natl. Trust Co. v DaCosta, 97 AD3d 630, 631-632). Accordingly, a hearing to determine the validity of service of process on Castoldi is warranted." 

COMMERCIAL EVICTIONS AND FORECLOSURES ON HOLD TO JANUARY 1, 2021

Executive Order 202.70 was signed yesterday on October 20 (also allows some movie theaters to reopen) and it provides in part:

".......

IN ADDITION, by virtue of the authority vested in me by Section 29-a of Article 2-B of the Executive Law to issue any directive during a disaster emergency necessary to cope with the disaster, I do hereby issue the following directive through November 19, 2020:

• The directive contained in Executive Order 202.64, which modified the directive in Executive Order in 202.28 that relates to eviction of any commercial tenant for nonpayment of rent or a foreclosure of any commercial mortgage for nonpayment of such mortgage is continued through January 1, 2021.

• The directive contained in Executive Order 202.3, as extended, that closed movie theatres, is hereby modified to provide that movie theatres shall be allowed to open effective October 23, 2020 at 25% capacity with up to 50 people maximum per screen, subject to adherence to Department of Health guidance, provided that movie theatres in the New York City region, in counties with infection rates above 2% over a 14-day average, and in counties with red cluster zones continue to be closed."

LANDLORD/TENANT IN NY: USE THE NEW FORM

Marshall v. Simmons, NYLJ October 07, 2020 • Date filed: 2020-09-23 • Court: Civil Court, Kings • Judge: Judge Kenneth Barany • Case Number: 080571/19:

".....

More glaring, however, is the deficiency of the notice of petition dated October 1, 2019 which fails to comport with the current pleading requirements. A new form for the Notice of Petition in Holdover proceedings was promulgated under 22 NYCRR §208.42(b) and (c) pursuant to Administrative Order No. 163 dated August 7, 2019 issued by the Honorable Lawrence K. Marks Chief Administrative Judge of the State of New York2. As part of Administrative order no. 163 Judge Marks directed that “Use of these forms shall be optional up to and including September 30, 2019, and mandatory thereafter (emphasis supplied). I further repeal all former versions of the form notice of petition in nonpayment and holdover proceedings”.

The reason for the change in form is clear as evidenced by the development and institution of various court programs over the last several years intent on assisting pro-se litigants and increasing attorney representation of such individuals. Programs such as the Assigned Counsel Project, have been specifically put in place to accomplish this purpose. Within the context of the newly adopted Notice of Petition for Holdover proceedings is notice to respondents on where to seek assistance on Legal help, Language help, ADA Help, Financial Help, Help at the Courthouse and Online Help. It also advises respondents as to their right to a postponement, and the Rent Deposit Law. In many cases this has led to representation prior to the first court date, approvals for money in process prior to the first court date etc.

In the proceeding at bar the notice of petition dated October 1, 2019 is not the approved form which was mandatory for use as of that date. It fails to contain any of the information now required by court administrative directive3. Therefore, respondent’s motion is granted dismissing this proceeding as to all respondents without prejudice to petitioner commencing a new action or proceeding. As the dismissal is not on the merits and is without prejudice, the balance of respondent’s motion seeking legal fees is denied. Such denial is without prejudice to respondent’s right to renew the application for legal fees in any future action or proceeding commenced by petitioner. In light of the foregoing the court need not address the alleged deficiency of the date omission in the notice of petition or reach a determination as to whether respondent qualifies for the “family” exception under RPAPL §713(7). This constitutes the Decision and Order of the Court.

Footnotes

......

2. Judge marks also directed that a similar notice of petition be promulgated for nonpayment proceedings and posted on the Unified Court website.

3. The use of the correct form cannot be understated. For example, the rent deposit law allows a landlord to request a deposit of rent after sixty days of adjournments requested solely by a respondent. Both of the first two adjournment stipulations in this proceeding indicated that it was respondent's request to obtain counsel. Had respondent received the proper form it is quite possible she could have obtained representation for the first court date thereby avoiding having a total of two months of adjournments charged against her. The fact that she ultimately obtained counsel does not absolve petitioner from this pleading form obligation."

WILL CONTEST: WIFE, CAREGIVER OR ELDER ABUSE?

If I sum the facts up, the decedent was on opioids for cancer, met and married his fourth wife about a 2 years before he died and was moved into her home where she lived with her ex-husband and then, a few weeks before he died, she contacted a lawyer 350 miles away to draft a will giving her everything, as well as a power of attorney....and the facts get even better.

In re Ramirez, NYLJ September 14, 2020, Date filed: 2020-07-30, Court: Surrogate's Court, Queens,  Judge: Surrogate Peter Kelly,     Case Number: 2018-2652/A:

"In this proceeding for probate of an instrument dated April 11, 2018, the objectants move for summary judgment dismissing the petition upon the grounds that decedent lacked testamentary capacity, the instrument was not duly executed and that it was the product of fraud, forgery and/or undue influence. The petitioner, decedent’s surviving spouse, cross-moves for summary judgment dismissing the objections and granting probate to the instrument. The decedent, Ulysses Ramirez, died on April 23, 2018 survived by Francesca, his fourth wife, and Mikhail and David, decedent’s adult children from prior marriages. Ulysses had first met Francesca the previous year, in May 2017, at which time he was being treated for terminal metastic prostate cancer. Six months after they met, in or about December 2017, decedent left the condominium where he had lived long-term with Mikhail and moved into Francesca’s house, where she either had been or still was residing with her ex-husband. Thereafter, Ulysses and Francesca advanced their planned wedding date from Spring 2018 to December 2017, apparently in consideration of decedent’s deteriorating health.

The eight page type-written instrument at issue was drafted by Francesca’s family-attorney N. Lyman (“Lyman”) and bears the date of April 11, 2018, less than two weeks prior to decedent’s death. It nominates Francesca as executor and bequeaths to her all of decedent’s property including his condominium in Flushing where Mikhail lived, worth approximately $750,000.00. Lyman, whose office was located over 350 miles away in Albion, New York, was contacted by Francesca via text-messages on April 10, 2018, allegedly at decedent’s behest, requesting that he draft decedent’s will and a power of attorney naming her as agent. Although Lyman never met decedent nor ever had a conversation with him, he prepared the will and power of attorney according to the terms Francesca furnished.
The instrument erroneously states that decedent has only one son, Mikhail. Specifically, it states that:
I have one child by a prior relationship, MIKHAIL RAMIREZ. References to “my child” or “my children” mean my child above-named.

The omission of decedent’s other son David was either due to Francesca’s failure to inform Lyman or her own misunderstanding of decedent’s next-of-kin. Decedent’s medical records of the same date, April 10, 2018, show he provided a social history to his medical provider acknowledging he had two sons. Francesca asked Lyman to forward the draft of the will and power of attorney to an e-mail address that, unbeknownst to him, actually belonged to Francesca’s next-door neighbor Karen L. (“Karen”). Karen printed the draft will and the power of attorney together with written instructions provided by Lyman as to how they should be executed, and gave them to Francesca. There are no other notes pertaining to the drafting of the instrument other than the text messages and the e-mail.

The propounded will was not executed under the supervision of an attorney, but it bears decedent’s signature at the end thereof and an attestation clause together with the signatures of two witnesses, Francesca’s neighbor Karen and her son Alexander F. (“Alexander”). Francesca requested that Karen and Alexander be witnesses to the decedent’s will in a ceremony that was to take place at her house, purportedly at the decedent’s behest, and in accordance with Lyman’s written instructions concerning the need for two witnesses. Besides being neighbors, Karen owed Francesca a substantial debt of $35,000.00.

Although the instrument states that it was executed on April 11, 2018, the attached SCPA 1406 self-proving affidavit of Karen and Alexander indicates that it was actually executed three days later, on April 14, 2018. Karen testified that she took the instrument to her home to make copies and scan it when she noticed the erroneous date of “11″ pre-typed on the Affidavit of Subscribing Witnesses. She proceeded to change the date from “11″ to “14.”¹ The dates appearing on the self-proving affidavit are clearly changed to read “April 14, 2018,” said changes being written over white correction fluid. Karen also testified that she did not notice the same erroneous date of “April 11″ appearing on pages 6 and 7 of the will and, therefore, did not change those. Both witnesses testified that the will was executed on April 14, 2018 in the presence of decedent and in the presence of each other in Francesca’s dining room while she was present elsewhere in her house.

The propounded instrument bears staple holes in the top-left corner which Karen attributes to her removal of the staple at the time she made the handwritten change of date on the affidavit and made copies and scanned the instrument to her personal computer.

The Affidavit of Subscribing Witnesses is notarized by an attorney, Levan N. (“Levan”), who testified that he was present when the will was executed on April 14, 2018. He repeatedly testified that his role was solely to act as a notary and that he neither supervised the execution of the will nor had knowledge of trusts and estates law.²

Although Karen and Alexander acknowledge that decedent was of sound memory and understanding and competent to make a will, decedent’s contemporaneous medical records reveal that his health was in a serious state of decline. On April 5, 2018, Francesca called decedent’s doctor to state that he was “mentally not there,” and “very debilitated, not eating, vomits intermittently” and has overall body pain which only goes away with medication that makes him “sleep the day away.” Decedent had been taking the opioid narcotic Oxycodone and medical records show that he was then given additional prescriptions for more powerful opioid narcotics, Dilaudid and Fentanyl. On April 10, 2018, four days prior to the purported execution of the instrument, he was admitted to the hospital and diagnosed and treated for “Failure to Thrive.” His Fentanyl dosage was increased and he was then prescribed Morphine. In hospital records, Francesca states “he knows he is dying.” The hospital record for April 11, 2018 provides that palliative medical services were consulted and Morphine Sulfate injections were started. On April 12, 2018, his Morphine prescription was increased. Decedent’s death certificate dated April 23, 2018 confirms that he had received hospice care during the time period when the instrument was executed, although Francesca denies this.

The medical records of decedent’s condition are corroborated by the testimony of his first wife, L. Klein (Klein”), also a registered nurse, that throughout March and April of 2018 decedent was continuously “drowsy,” “sleepy,” “groggy” and “not clear of thought” due to the medication and “couldn’t keep what [he] was saying straight” and was incompetent to make decisions regarding financial matters and assets. Based upon her observations, decedent could not read, understand or be aware of the contents of a will by the time it was executed. Further, E. McCann (“McCann”), a long-time acquaintance of decedent, testified that decedent had been six days without food when the will was executed.

Both Klein and decedent’s former brother-in-law, R. Filandro (“Filandro”), testified that decedent had a prior will, which thus far has neither been located nor produced, wherein decedent bequeathed all his property to his son Mikhail with the exception of a specific devise of some money to each of Klein’s two daughters. Both also testified that decedent disclosed to them that, upon marrying Francesca, they made an oral agreement whereby each of them would retain ownership of their own mon-marital property.

Summary judgment is a drastic remedy that can be granted only when it is clear that no genuine issues of fact exist (see Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Andre v. Pomeroy, 35 NY2d 361 [1974]; Phillips v. Joseph Kantor & Co., 31 NY2d 307 [1972]). On a motion for summary judgment the proponent must establish his or her claim or defense sufficient to warrant the court in awarding judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 NY2d 320; Friends of Animals Inc. v. Assoc. Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979]). When the movant makes out a prima facie case, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 49 NY2d 557 [1980]; Albouyeh v. County of Suffolk, 96 AD2d 543 [2d Dept 1983], aff’d 62 NY2d 681 [1984]). Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient (see Zuckerman v. City of New York, 49 NY2d at 562; Leonard v. Kinney Sys.,199 AD2d 470 [2d Dept 1993]).

Here, both parties assert that they have sustained their respective burdens on the motions for summary judgment and that each of their motions should be granted.

The proponent of the will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements (EPTL 3-2.1; see Matter of Moskowitz, 116 AD3d 958 [2d Dept 2014]). To establish due execution, petitioner must show that: 1) the testator subscribed or signed at the end of the instrument, and 2) the testator signed in the presence of at least two attesting witnesses or acknowledged his/her signature to these witnesses, and 3) the testator declared to each of the witnesses that the instrument is his/her will, and 4) there are at least two witnesses each of whom signed his or her name as a witness at the end of the will, at the request of the testator (see EPTL 3-2.1).
Petitioner argues that there is a presumption of due execution since the notary who was present at the execution ceremony, Levan, is also an attorney. A presumption of regularity arises when the execution of a will is supervised by an attorney (see e.g. Matter of Moskowitz, 116 AD3d at 959; Matter of Tuccio, 38 AD3d 791 [2d Dept 2007]; Matter of Weltz, 16 AD3d 428, 429 [2d Dept 2005]). Levan repeatedly testified, however, that he did not act as attorney to supervise the execution of the instrument, that he solely acted as a notary to acknowledge the signatures of the witnesses and that he lacked familiarity with trusts and estates law and practice. Therefore, the presence of Levan does not give rise to the presumption of due execution.

Petitioner argues that the presumption of due execution nevertheless arises since the instrument contains a full attestation clause and there is a contemporaneous “self-proving” affidavit of the two witnesses (see e.g. Matter of Rottkamp, 95 AD3d 1338 [2d Dept 2012]; Matter of Farrell, 84 AD3d 1374 [2d Dept 2011]; Matter of Greene, 89 AD3d 941, 943 [2d Dept 2011]). Objectants oppose, contending that no such presumption arises since the unorthodox facts and circumstances surrounding the will-signing do not corroborate due execution. Objectants cite the seminal Court of Appeals case, Matter of Collins, 60 NY2d 466 [1983], to support their argument that the circumstances must be corroborative of due execution for application of the presumption:

If the attestation clause is full and the signatures genuine and the circumstances corroborative of due execution, and no evidence disproving a compliance in any particular, the presumption may be lawfully indulged that all the provisions of the statute were complied with, although the witnesses are unable to recollect the execution of what took place at the time (emphasis added) (60 NY2d at 471).

In this case, there is a litany of irregular circumstances in the drafting and execution of the instrument. As stated above, attorney Lyman neither met nor spoke with decedent before drafting the instrument and he kept no notes other than text messages with Francesca and an e-mail to the witness, Karen. Lyman was Francesca’s family attorney and drafted the instrument according to terms she furnished via text messages, albeit she claims to have acted at decedent’s request. Attorney Levan, who was present at the execution ceremony, affirmatively denies that he supervised its execution but acted only as a notary.

With respect to the circumstances of the execution ceremony, Karen testified that she was called to be a witnesses by Francesca and she “was not really clear” at first whether decedent asked her to be a witness saying, “I don’t know if he wanted or she wanted.” She later gave discrepant but corrective testimony stating that it was “understood” that decedent wanted her to act as a witness based upon a conversation with him and her observation that he read the will and said “yes” and also “this [is] it.” There is also an anomaly in that Karen assented to Francesca’s request to be a witness while then owing her a debt in the sum of $35,000.00. Additionally, Karen brought the instrument to her own home where she removed the staple, changed the date on the affidavit and purportedly scanned a copy thereof to her own personal computer.

As for the second witness Alexander, he testified that his mother Karen asked him to help her execute a will “for Francesca.” While he states that during the execution ceremony he overheard decedent saying that “this is what he wanted,” he also lacked full recollection of all aspects of the will execution. He did identify his name on the will and the self-proving affidavit (see e.g. Matter of Malan, 56 AD3d 479 [2d Dept 2008]).

With respect to the witnesses’ signatures, it appears from a comparison of the proffered will with the subject affidavit that, while both witnesses’ names all appear in print and script on the instrument, only a printed version of their names appears on the affidavit. The joint testimony explaining that “both” of the markings are their signatures, while possible, is too convenient and coincidental under these circumstances for this court to indulge the presumption that the instrument was duly executed. Based upon the evidence and the circumstances presented, the court finds that the petitioner is not entitled to a presumption of regularity for the execution of this instrument (see e.g. Matter of Christie, 170 AD3d 718 [2d Dept 2019]).

The petitioner argues, nevertheless, that the presence of the attestation clause and affidavit together with pertinent parts of the witnesses’ SCPA 1404 testimony are sufficient to make a prima facie showing of due execution, and prove that decedent signed the instrument in the presence of Karen and Alexander, who both acknowledge they also signed in his presence and at his request, and that decedent read the will and made declarations and exhibited conduct in their presence indicating that the instrument was his will. To the extent the court finds such evidence is sufficient to make a prima facie showing of due execution (see Matter of Collins, 60 NY2d at 471; Matter of Malan, 56 AD3d at 479), objectant also satisfies his burden of raising a triable issue of fact by relying upon other discrepant and conflicting testimony above showing that the instrument may not have been executed properly. In addition, although petitioner claims that substantial compliance with the publication requirement was satisfied by decedent making certain communications and expressions of intention to the witnesses that the document was his will (see e.g. Lane v. Lane, 95 NY 494 [1884]; Matter of Falk, 47 AD3d 21, 26 [1st Sept 2007]; Matter of Frank, 249 AD2d 893 [4th Dept 1998]; see also Matter of Roberts, 215 AD2d 666 [2d Dept 1995]), their testimony is vacillant at best and, due to the litany of irregularities attendant to this execution ceremony, issues of credibility are raised that are reserved for the trier of fact (see Matter of Jacinto, 172 AD2d 664 [2d Dept 1991]; Estate of Velasquez, 2013 NYLJ LEXIS 5493 [Sur Ct, Bronx County]; see also e.g. Matter of Falk, 47 AD3d at 28; see also generally Ferrante v. American Lung Assn., 90 NY2d 623, 631 [1997]).

Accordingly, the branch of petitioner’s cross-motion for summary judgment dismissing the objections on the issue of due execution is denied. Likewise, objectant’s motion for summary judgment dismissing the petition for probate on this ground is denied due to the failure to tender prima facie evidence that establishes their defense as a matter of law.

Petitioner has the burden of proving that the testator possessed testamentary capacity at the time the will was executed (see Matter of Kumstar, 66 NY2d 691 [1985]; Matter of Mooney, 74 AD3d 1073 [2d Dept 2010]; see also Matter of DiChiaro, 39 AD3d 751 [2d Dept 2007]). The court must look into the following factors: “(1) whether she [he] understood the nature and consequences of executing a will; (2) whether she [he] knew the nature and extent of the property she [he] was disposing of; and (3) whether she [he] knew those who would be considered the natural objects of [his] her bounty and [his] her relations with them” (Matter of Kumstar, 66 NY2d at 692). The capacity necessary to execute a valid will is minimal and lower than that required to execute most other legal documents or contracts (In Re Coddington, 281 AD 143 [3d Dept 1952], aff’d 307 NY 181 [1954]; Matter of Bellasalmo, 54 Misc 3d 1216[A] [Sur Ct, Queens County 2017]; Matter of DeMaio, 43 Misc 3d 1218[A] [Sur Ct, Queens County 2014]; Matter of Iwachiw, 40 Misc 3d 1211[A] [Sur Ct, Queens County 2013]).The relevant inquiry is whether the decedent was lucid and rational at the time the will was made (see Matter of Hedges, 100 AD2d 586 [2d Dept1984]).

In support of petitioner’s claim that decedent possessed testamentary capacity, petitioner submits a copy of the will offered for probate together with the annexed self-proving affidavit and the transcripts of the SCPA 1404 examinations of the two attesting witnesses, Karen and Alexander. Karen acknowledged that decedent was of sound memory and understanding and that he was competent to make a will. Karen’s conclusions were based upon her conversations with him and his “seemingly oriented behavior.” Alexander similarly testified that decedent was “alert, oriented as to time and place…[h]e knew what was going on,” and “clear, sound in mind when…this will was being made.” He further testified that decedent understood what he was reading and that he did not appear to suffer from any mental impairments.

Based upon the testimony and the documents submitted, petitioner has established, prima facie, entitlement to summary judgment as a matter of law dismissing the objection based upon decedent’s lack of capacity (see Matter of Kumstar, 66 NY2d at 692; Matter of Curtis, 130 AD3d 722 [2d Dept 2015]; Matter of Feinberg, 37 Misc 3d 1206 [A] [Sur Ct, Queens County 2012]).

In opposition, objectants submit a copy of the will and decedent’s contemporaneous medical records and argue that this evidence, together with the collective testimony of Karen, Alexander, Levan, Lyman, Klein and McCann, all of whom had communications and interactions with decedent during the relevant time period, raise triable issues of fact concerning his testamentary capacity.

As stated above, the instrument offered for probate incorrectly recites that decedent had only one child despite that fact that he had two sons, notwithstanding the fact that decedent clearly identified he had two children to his own medical provider a few days earlier on April 10, 2018.

In addition, the contemporaneous medical records detailed above from April 2018 which include Francesca’s own characterization of decedent’s desperate physical and mental condition, the diagnosis of his “failure to thrive,” documentation of the powerful opioid narcotics he had been given and the palliative care he was prescribed, all support objectant’s argument that decedent lacked testamentary capacity and may not have understood the nature and consequences of executing a will.

The medical records are further corroborated by the testimony of decedent’s first wife Klein and his friend McCann, which collectively confirm that decedent may have lacked testamentary capacity and that his mental state was severely affected by the powerful prescription narcotics received and by his failure to eat for six days prior to the execution ceremony. Although it is not the court’s function to assess the credibility of Klein’s or McCann’s testimony on this motion for summary judgment (see Ferrante v. American Lung Ass’n., 90 NY2d at 631; Daliendo v. Johnson, 147 AD2d 312, 317 [2d Dept 1989]; Schwartz v. Epstein, 155 AD2d 524, 525 [2d Dept 1989]), it is relevant that their testimony is clearly at odds with that of witnesses Karen and Alexander. Klein’s professional observations as a nurse should also be read in light of the fact that attorney Lyman neither spoke with nor met decedent and he had absolutely no knowledge of his medical condition when he drafted the will. Summary judgment should be denied where determinations of credibility are required (see Bank of NY Mellon v. Gordon, 171 AD3d 197 [2d Dept 2019]) and, where there is “conflicting evidence or the possibility of drawing conflicting inferences from the undisputed evidence, the issue of capacity is one for the jury (Matter of Kumstar, 66 NY2d at 692; see e.g. Matter of Marsh, 236 AD2d 404 [2d Dept 1997]).

The Court finds that objectant has submitted sufficient proof to raise a triable issue of fact concerning decedent’s lack of testamentary capacity. Accordingly, the branch of the petitioner’s cross motion for summary judgment dismissing the objection based upon the lack of testamentary capacity is denied. The branch of objectants’ motion for summary judgment dismissing the petition on this ground is also denied. Petitioner next seeks summary judgment dismissing the objection that the will was the product of undue influence exercised on decedent by Francesca.

Petitioner has made a prima facie showing of entitlement to summary judgment as a matter of law by submitting the SCPA 1404 testimony of the witnesses together with their self-proving affidavit which demonstrate that the decedent understood the terms of the will and that it was not the product of undue influence. The role of the court, therefore, is to determine whether objectant raises any triable issues of fact (see O’Brien v. Port Authority of NY & NJ, 29 NY3d 27, 37 [2017]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).

For the will to be denied probate based upon undue influence, “it must be shown that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his [or her] free will and desire, but which he [or she] was unable to refuse or too weak to resist. “It must not be the promptings of affection; the desire of gratifying the wishes of another; the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices” (Matter of Walther, 6 NY2d 49, 53 [1959], quoting Children’s Aid Socy. of NY v. Loveridge, 70 NY 387, 394 [1877]; see Matter of DiDomenico, 101 AD3d 998, 1000 [2d Dept 2012]; Matter of Favaloro, 94 AD3d 989, 992 [2d Dept 2012]).

Undue influence may be proved by circumstantial evidence, but such indirect proof must be of a substantial nature (see Matter of Walther, 6 NY2d at 56; Matter of Zirinsky, 43 AD3d 946, 948 [2d Dept 2007]). The circumstantial evidence may include the physical and mental condition of the testator; whether the propounded instrument deviated from the testator’s prior testamentary plan; whether the attorney who drafted the will was the testator’s attorney; whether the person who allegedly wielded the undue influence was in a position of trust and confidence; the opportunity and disposition of the person to wield undue influence; and whether the testator was isolated from the objects of his/her natural affection (see generally e.g., Children’s Aid Socy. of NY v. Loveridge, 70 NY 387 [1877]; Matter of Anna, 248 NY 421, 424 [1928], quoting Rollwagen v. Rollwagen, 63 NY 504, 519 [1876]; Matter of Katz, 63 AD3d 836 [2d Dept 2009]; Matter of Elmore, 42 AD2d 240 [3d Dept 1973]; Matter of Kruszelnicki, 23 AD2d 622 [4th Dept 1965]; see also Matter of Burke, 82 AD2d 260, 270-272 [2d Dept 1981]; Matter of Hirschorn, 21 Misc 3d 1113 [A] [Sur Ct, Westchester County 2008]; Matter of Zirinski, 10 Misc 3d 1052 [A] [Sur Ct, Nassau County 2005]).

Objectants argue that an inference of undue influence arises because Francesca was in a position of trust and confidence with decedent, and he had become dependent upon her for his daily needs. The fact that Francesca was in a confidential relationship with the decedent is counterbalanced in this case by the fact she was his wife, albeit for only several months, and the inference of undue influence does not automatically arise (see Matter of Zirinsky, 43 AD3d at 948; see also Matter of Anella, 88 AD3d 993, 995 [2d Dept 2011]; Matter of Scher, 74 AD3d 827, 828 [2d Dept 2010]).

The medical records and testimony of Klein and McCann, as described above, show that decedent was suffering from terminal cancer and had severely diminished mental and physical capacity, exacerbated by powerful opioid narcotics which had the capability of clouding his mind and making him vulnerable to undue influence, when the instrument was executed (see e.g. Estate of Elmore, 42 AD2d 240 [3d Dept 1973]).

There is also evidence that the propounded will deviated from decedent’s prior testamentary intent which, until nine days before his death, was apparently either specifically benefitting Mikhail or an intestate estate which would include his spouse and two children (EPTL 4-1.1). To this end, there is testimony by Klein, McCann and decedent’s former brother-in-law Filandro that they have knowledge of decedent having a prior will, albeit not produced and filed with the court, wherein decedent specifically bequeathed to his son Mikhail the co-operative apartment where they had lived together long-term. Further, there is testimony by both Klein and Filandro that decedent disclosed to them the terms of an oral agreement with Francesca which provided that the property brought into the marriage would remain separate. Francesca denies this. Nevertheless, even decedent’s intestacy benefitted his son Mikhail, who lived with his father almost the entirety of his life until several months prior to his father’s death. There is no evidence of any rift or dispute arising between them but, to the contrary, the testimony of Klein, McCann and Filandro all strongly support the position that they had a healthy, loving relationship. In their opinion, it is inconceivable that Mikhail would be suddenly disinherited by a change of plan.

The issue whether this change in testamentary plan is significant, however, “depends mainly upon its connection with associated facts” (Matter of Scher, 20 Misc 3d 1141 [A] [Sur Ct, Kings County], quoting Horn v. Pullman, 72 NY 269, 276-277 [1878]; see e.g. Estate of Teresa Driscoll, 1998 NYLJ LEXIS 2349 [Sur Ct, Westchester County]; cf. Matter of Malone, 46 AD3d 975, 978 [3rd Dept 2007]). The associated facts show that the instrument was executed shortly prior to decedent’s death while he was prescribed palliative care and powerful opioid narcotics, and the instrument disinherits both his natural children yet, erroneously, states that he has only one child. Notably, although Mikhail resided exclusively with his father virtually his entire life and, in his condominium, the instrument disowns and dispossesses him entirely of it. The aggravating fact which makes this change in testamentary plan important is the undisputed evidence that Francesca dictated the terms of the will to attorney Lyman who, inexplicably, failed to speak directly with decedent about his heirs and assets prior to drafting the instrument. Francesca’s intimate involvement with the drafting of the terms of the will is a hallmark of undue influence (see generally, Matter of Ellmore, 42 AD2d at 241-242; Matter of Robbins, 2018 NY Misc LEXIS 4675 [Sur Ct, Queens County]).

The circumstances of how Francesca came to use attorney Lyman are also significant. Francesca first attempted to retain Levan to draft decedent’s will and then she approached a second attorney, but neither of them would draft the will. Francesca then turned to her own family attorney Lyman who was located hundreds of miles away in Albion, New York, retaining him and dictating the terms of the instrument which, essentially, were that she was to receive decedent’s condominium and all his assets. Since Lyman was her own family attorney it can be inferred that he was acting” to some extent, ‘under [her] direction’” (Matter of Gerdjikian, 8 AD3d 277 [2d Dept 2004], quoting Matter of Lamerdin, 250 AD 133 [2d Dept 1937]). Lyman testified that Francesca told him what to put in the will and that he was just trying to do her “a favor.” Francesca inexplicably kept Lyman “in the dark” as to other pertinent details, as he testified that she never told him decedent had terminal prostate cancer or was prescribed hospice care; and while Lyman thought he was e-mailing decedent’s draft will to Francesca, she had deceitfully given him the e-mail address for Karen instead. Lyman was also unaware that Karen admittedly owed Francesca a $35,000.00 debt³ and that Francesca would be asking Karen to witness to the will. The totality of these circumstances together with Francesca’s utilization of her own family attorney by these means and in this manner, to prepare a will that solely benefitted herself and disinherited decedent’s children, evidences not only that Francesca had the opportunity to exercise undue influence but, also, that undue influence may have been actually utilized (see e.g. Matter of Gerdjikian, 8 AD3d at 278; Matter of Kryk, 18 Misc 3d 1105 [A] [Sur Ct, Monroe County]; cf. Matter of Fiumara, 47 NY2d 845, 846; Matter of Walther, 6 NY2d at 55; Matter of Favaloro, 94 AD3d 989, 993 [2d Dept 2012]; Matter of Bustanoby, 262 AD2d 407 [2d Dept 1999]).

Francesca disputes the claim that she dictated the terms of the will to Lyman in accordance with her own intentions, stating that she was just relaying decedent’s wishes to him. Although Lyman could not know if the will reflected decedent’s wishes because he never spoke to him, Karen made the salient observation in her testimony that it was Francesca who had the will “thrown together helter skelter when Ulysses realized he was crashing.” The incompatible evidence therefore only raises additional issues of credibility that are not suitable for summary judgment, and the conflicting inferences raised thereby are for a jury to decide.

The circumstantial evidence of undue influence further includes testimony by Klein, McCann and Filandro that Francesca took advantage of decedent and systematically isolated him from his family and life-long friends. Klein testified that decedent complained to her that Francesca kept up a “relentless assault” against his son, Mikhail. Francesca was very critical of Mikhail, and disliked him “to the core” calling him “worthless” and sending angry texts about him. She also “controlled access” to decedent, causing an alienation of affections, and decedent “didn’t have the energy to oppose her.” McCann testified that Francesca would verbally “trash” Mikhail calling him “lazy” and that he needed to get “a real job,” while boasting that she had decedent “wrapped around [her] finger” and she was “smart…[to] marry for money.” She further states that decedent was seduced and “boondoggled” while Francesca was proud to be in “complete control” of a “lonely man.” Filandro described Francesca as a “gatekeeper” who “badmouthed” Mikhail and would not let him visit his father, and that she also had Klein and Mikhail uninvited from seeing decedent at Thanksgiving dinner in 2017, a day they customarily spent together. The isolation of decedent from family and long-term friends while he was in a weakened state and susceptible to control is a further hallmark of undue influence (see generally e.g. Estate of Johnson, 6 AD3d 859 [3d Dept 2004]).

Viewing the evidence in a light most favorable to the objectants, the court finds that they have come forward with sufficient circumstantial evidence that raises triable issues of fact with respect to undue influence (see generally e.g. Rollwagen v. Rollwagen, 63 NY 504, 519 [1876]; Matter of Cavallo, 6 AD3d 434 [2d Dept 2004]; Matter of O’Brien, 182 AD2d 1135 [4th Dept 1992]; Matter of Pavelock, 16 Misc 3d 1124[A] [Sur Ct, Dutchess County 2007]; see also Matter of Katz, 63 AD3d 836, 838 [2d Dept 2009]; Matter of Gerdjikian, 8 AD3d 277 [2d Dept 2004]).

Accordingly, that branch of petitioners’ cross-motion for summary judgment dismissing the objection based upon undue influence is denied. In light of the existence of triable issues of fact, the objectants’ motion for summary judgment dismissing the petition for probate on this ground is denied.

Obectants next argue that decedent’s signature at the end of the instrument is “not his own,” that it is forged. The argument belies the testimony of both witnesses who unequivocally state that the decedent signed the instrument in their presence. Objectants rely upon the testimony of Filandro and McCann who both state that they are familiar with decedent’s signature and that it does not match the one appearing on the purported will. Notably, they both fail to provide particulars as to how decedent’s signature differs from that on the purported will. Moreover, objectants fail to submit any contemporaneous exemplars of decedent’s signature other than photocopy signatures appearing on a Health Care Proxy and “Consent to DNR Order” dated in April, 2018 which, to the court’s untrained eye, look essentially the same as the signature on the purported will. Where the objectants seek to prove that the instrument was forged, the proponent is entitled to particulars of the forgery and, where known, the name and address of the person or persons who forged the instrument (see Matter of Herman, 289 AD2d 239 [2d Dept 2001]; Matter of Taylor, 32 Misc 3d 1227[A] [Sur Ct, Bronx County 2011]; Estate of Harper, 2014 NYLJ LEXIS 4032 [Sur Ct, Bronx County 2014]). In the absence of any such particulars concerning decedent’s signature and the alleged forgery, objectants fail to raise a triable issue of fact with respect to same.

Accordingly, the branch of objectants’ motion for summary judgment dismissing the petition on the ground that it is forged is denied due to their failure to tender prima facie evidence that establishes this defense as a matter of law, and the branch of petitioner’s cross-motion to dismiss this objection is granted.

Petitioner next seeks summary judgment dismissing the objection to probate based upon fraud. For probate of the will to be denied based upon fraud, there must be evidence that petitioner knowingly made a false statement to the testator which caused him to dispose of his property in a manner differently than he would have absent that statement (see Matter of Cavallo, 6 AD3d 434 [2d Dept 2004]; Matter of Evanchuk, 145 AD2d 559, 560 [2d Dept 1988]).

Objectants fail to present any evidence of a false statement knowingly made by petitioner that caused decedent to dispose of his property any differently (see e.g. Matter of Zirinsky, 43 AD3d at 948).
Accordingly, the branch of the cross-motion for summary judgment dismissing the objection based upon fraud is granted. Likewise, inasmuch as objectants fail to make a prima facie showing that the will was procured by fraud, their motion for summary judgment dismissing the petition on this ground is denied.

Petitioner is directed to file a note of issue and certificate of readiness on or before September 25, 2020 together with a statement of issues (22 NYCRR §207.29, §207.30). Counsel for the respective parties and their clients are directed to appear for a pretrial conference on October 6, 2020, 9:30 AM. No adjournments shall be permitted without prior court approval."

THE EVIDENCE WHICH WAS NOT EVIDENCE

This is the case where a written receipt for cash received signed by both parties was not evidence of cash received based on one party's claim that the receipt was altered.

Rooney v. Cacoango, NYLJ October 08, 2020, Date filed: 2020-10-01, Court: City Court, Westchester, Judge: Judge Elena Goldberg-Velazquez,     Case Number: SC-0406-19:

"Claimant commenced the instant small claim for breach of contract seeking five thousand dollars ($5,000.00) allegedly paid to defendant in October 2018 to repair the roof on his home. The sole evidence that claimant submitted to support his claim that he paid defendant cash was a receipt executed by both parties on October 3, 2018, setting forth that defendant was in receipt of said cash. (Pl. Ex. 2). After an inquiry under oath by the Court, the defendant testified that he did not receive five thousand dollars ($5,000.00) cash from the claimant for work performed. Claimant did not submit documentary evidence or have witnesses testify to support his claim that he did indeed tender five thousand dollars ($5,000.00) cash to defendant. As claimant failed to demonstrate a cause of action for breach of contract for “money had and received” in that plaintiff failed to sufficiently demonstrate that he paid defendant the sum five thousand dollars ($5,000.00), claimant is not entitled to judgment herein (See, Pacella v. RSA Consultants, Inc., 164 AD3d 806 [2nd Dept, 2018]; Village of Kiryas Joel v. County of Orange, 144 AD3d 895 [2nd Dept. 2016]). Accordingly, the matter is dismissed. 

Decision:

After a bench trial the claim is dismissed. Claimant failed to satisfy a prima facie case that he was entitled to a judgment as a matter of law for breach of contract.

To satisfy a primary facie entitlement to judgment as a matter of law and recover damages for a breach of contract, a claimant “must demonstrate the existence of a contract, the [claimant's] [] performance pursuant to the contact, the defendant’s breach of its contractual obligations, and damages resulting from the breach.” (See, Village of Kiryas Joel v. County of Orange, 144 AD3d 895, 896 [2nd Dept. 2016] (plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law for breach of contract as plaintiff failed to sufficiently demonstrate that it “suffered damages as a result of that breach”) (Id). Additionally, to satisfy a breach of contract claim for “money had and received”, “a [claimant] [] must allege that: (1) the defendant received money belonging to the [claimant], (2) the defendant benefitted from the receipt of the money, and (3) under the principles of equity and good conscious, the defendant should not be permitted to keep the money.” (See, Pacella v. RSA Consultants, Inc., 164 AD3d 806 [2nd Dept. 2018] quoting Goel v. Ramachandran, 111 AD3d 783, 790 [2013]).

Here, claimant is seeking five thousand dollars ($5,000.00) for alleged money paid to defendant in 2018 for work that was not performed. Claimant alleged that defendant and he entered a contract for defendant to repair the roof on claimant’s residence. Claimant alleged he paid defendant a total of eight thousand five hundred dollars ($8,500.00).

The sole evidence that claimant submitted to support his claim that he paid defendant five thousand dollars ($5,000.00) cash was a receipt executed by both parties on October 3, 2018, setting forth that defendant was in receipt of said cash (Pl. Ex. 2). After an inquiry under oath by the Court, the defendant testified that he did not receive five thousand dollars ($5,000.00) cash from the claimant for work performed. Defendant testified he received two checks for one thousand dollars ($1,000.00) each and five hundred dollars ($500.00) cash. That amount of money (total of $2,500.00) was not in dispute by the parties as that money was paid in 2017. With respect to the five thousand dollars ($5,000.00) in dispute, claimant furnished the Court with proof of withdrawal of funds from his bank (Pl. Ex. 7) and other documentary evidence which failed to demonstrate that cash money was given to defendant (Id.).

Other than the purported receipt for the five thousand dollars ($5,000.00) allegedly signed for by defendant, claimant failed to submit any other documentary evidence or have witnesses testify that he gave defendant five thousand dollars ($5,000.00) cash. Defendant denied ever receiving five thousand dollars ($5,000.00) cash from defendant on our around October 3, 2018 and the defendant testified under oath that claimant altered the receipt and added “$5,000.00″ cash.

As claimant failed to demonstrate a cause of action for breach of contract for “money had and received” in that plaintiff failed to sufficiently demonstrate that he paid defendant the sum of five thousand dollars ($5,000.00), claimant is not entitled to judgment (See, Pacella v. RSA Consultants, Inc., 164 AD3d 806 [2nd Dept. 2018]; Village of Kiryas Joel v. County of Orange, 144 AD3d 895 [2nd Dept. 2016]). Accordingly, the matter is dismissed."

LIVE ENTERTAINMENT IN RESTAURANTS?

According to The New York State Restaurant Association: "Also, we received clarification from the State Liquor Authority that a licensed establishment can host a comedy night or a trivia night, as long as it’s open to the public, and all spacing, party size, PPE, congregating, etc. guidelines are followed." See https://www.nysra.org/covid-19-reopening-info-and-resources.html

But according to the New York State Liquor Authority:

"Restaurants  and other on premises food and beverage establishments that have a license through the SLA are only allowed to offer on-premise music if their license certificate specifically allows for such activity (i.e., live music, DJ, recorded, etc.). A manufacturer that has an on premises license also must assure that its on premises license certificate specifically allows for the type of music it is offering.  A manufacturer without a separate on premises license may offer music unless its license certificate specifically prohibits such music. 

If offering music, indoors or out, all relevant aspects of the respective Department of Health guidance dining must be followed, e.g., patrons should not be standing except for necessary reasons (e.g., restroom, entering/exiting), standing patrons should wear face coverings, etc.   Performers should be at least 12 feet from patrons. 

All other forms of live entertainment, such as exotic dancing, comedy shows, karaoke etc., are not permissible currently regardless of phase. 

Additionally, please note that only incidental music is permissible at this time.  This means that advertised and/or ticketed shows are not permissible.  Music should be incidental to the dining experience and not the draw itself."

See Phase 3/4 Guidelines for Licensed On-Premises Establishments