ADVERSE POSSESSION IN NEW YORK

1982 E. 12th ST. HOLDING LLC v. LATI, 2020 NY Slip Op 33849 - NY: Supreme Court, Kings Co.  November 17, 2020:

".....

Article 5 of the RPAPL, as amended in 2008, is applicable to all claims filed on or after July 7, 2008 (L 2008, ch 269, § 9). Under the current law, an "adverse possessor" is defined as a person who "occupies real property of another person or entity with or without knowledge of the other's superior ownership rights, in a manner that would give the owner a cause of action for ejectment" (RPAPL 501[1]). The adverse possessor acquires title to the occupied real property upon the expiration of the 10-year statutory period (see CPLR 212[a]) where the use "has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual" (RPAPL 501[2]). With respect to an adverse possession claim not founded upon a written instrument or judgment, land "is deemed to have been possessed and occupied" only "[w]here there have been acts sufficiently open to put a reasonably diligent owner on notice," or "[w]here it has been protected by a substantial enclosure" (RPAPL 522).

RPAPL 543 provides, however, that "the existence of de [minimis] non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls," as well as "the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowner's property shall be deemed permissive and non-adverse." (See Hartman v Goldman, 84 AD3d 734, 735-736 [2d Dept 2011]). Thus, under the new statute, RPAPL 543, plaintiff's complaint does not state a cause of action. Specifically, this is because "plantings of foliage and shrubbery, and landscaping and lawn maintenance are de minimis and deemed permissive and non-adverse" (Bullock v Louis, ___ AD3d ___, 2020 NY Slip Op 06484 [2d Dept 2020]; Hartman v Goldman, 84 AD3d 734, 736 [2d Dept 2011]; see RPAPL 543).

In pre-amendment cases, the existence of the kinds of non-structural encroachments and maintenance listed in RPAPL 543 were able to be considered in determining whether the plaintiff had shown that he or she "usually cultivated, improved, or substantially enclosed the land, and the type of cultivation or improvement sufficient to satisfy the statute varied with the character, condition, location, and potential uses of the property" (id.; Asher v Borenstein, 76 AD3d 984, 986 [2d Dep 2010]).

....

Even under the "old law," adverse possession could not be obtained by planting grass and mowing it. Adding a bush or a young tree does not tip the balance in plaintiff's favor. Nor does running a hose and a few sprinkler heads. Keeping an unfenced strip of land on the border of plaintiff's property "in presentable condition" was found to be "inadequate to satisfy the requirement that the real property in dispute was usually cultivated or improved" (see Pritsiolas v Apple Bankcorp, Inc., 120 AD3d 647, 650 [2d Dept 2014]; see also Walsh v Ellis, 64 AD3d 702, 704, 883 NYS2d 563 [2009]; Giannone v Trotwood Corp., 266 AD2d 430, 431, 698 NYS2d 698 [1999]; Simpson v Chien Yuan Kao, 222 AD2d 666, 667, 636 NYS2d 70 [1995]; Yamin v Daly, 205 AD2d 870, 871, 613 NYS2d 300 [1994]). The same result obtains here.

Under the prior law, former RPAPL 522, "the party seeking title must demonstrate that he or she usually cultivated, improved, or substantially enclosed the land. Additionally, the party must demonstrate, by clear and convincing evidence, the five common-law elements of the claim. First, the possession must be hostile and under a claim of right, second, it must be actual, third, it must be open and notorious, fourth, it must be exclusive, and fifth, it must be continuous for the statutory period of 10 years" (Walsh v Ellis, 64 AD3d 702, 703 [2d Dept 2009]).

....

To be clear, under the prior law, when a party sought to obtain title by adverse possession on a claim not based upon a written instrument, he or she had to "produce evidence that the subject premises were either "usually cultivated or improved" or "protected by a substantial enclosure" ([old] RPAPL 522[1], [2]). That party also had to establish, by clear and convincing evidence, [not a preponderance of the evidence] the common-law requirements of hostile possession, under a claim of right, which was actual, open and notorious, and exclusive, and continuous for the statutory period" (see Giannone v Trotwood Corp., 266 AD2d 430, 431 [2d Dept 1999]).

...."

 

MEDIATION AND DIVORCE - A GUEST POST FROM TEXAS

 

The Enos Law Firm, P.C. helps families in and around Houston, Texas and Galveston, Texas through divorce, child custody, adoptions & other family matters, has prepared an article on preparing for your first divorce mediation session.

Here is the link: How to Prepare for Your First Divorce Mediation Session

FOR THE HOLIDAY

 

HOSTILE WORK ENVIRONMENT?

SIENA v. PRIMO PIZZA 84 LLC, 2020 NY Slip Op 51344 - NY: Supreme Court November 5, 2020:

"......

In order to establish a prima facie claim for hostile work environment, a plaintiff must demonstrate that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment (Schenkman v New York Coll. of Health Professionals, 29 AD3d 671, 673 [2d Dept 2006]; see Harris v Forklift Sys., Inc., 510 US 17 [1993]; Forrest v Jewish Guild for the Blind, 3 NY3d 295 [2004]). Under the New York City Human Rights Law (NYCHRL), the court considers whether such comments amount to more than "petty slights and trivial inconveniences" (see Williams v New York City Hous. Auth., 61 AD3d 62, 79-80 [1st Dept 2009]). "Whether an environment is hostile or abusive can be determined by looking at all the circumstances, including `the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance'" (Forrest, 3 NY3d at 310-311, quoting Harris, 510 US at 23). The conduct must have altered the condition of the victim's employment by being subjectively perceived as abusive by the plaintiff, and having created an objectively hostile or abusive environment (id. at 311).

Here, plaintiff's factual allegations, such as that defendants Goodman and Brill would refer to him as a "guido" or "wise guy" or imitate his accent, fall short of establishing that the "`workplace [was] permeated with discriminatory intimidation, ridicule, and insult. . . that [was] sufficiently severe or pervasive to alter the conditions of the [plaintiff's] employment and create an abusive working environment'" (Schenkman, 29 AD3d at 673, quoting Harris, 510 US at 21). This court is cognizant that "discrimination is rarely so obvious or its practices so overt that recognition of it is instant and conclusive, it being accomplished usually by devious and subtle means" (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 183 [1978]). Nonetheless, as defendants have demonstrated the absence of a prima facie case for national origin discrimination, summary judgment dismissing that cause of action is required (see Zhao v State Univ. of NY, 472 F Supp 2d 289 [ED NY 2007] [mimicking plaintiff's accent and comparing Turkish people to Chinese people were insufficient to establish a hostile work environment]). Indeed, in a similar case, Little v National Broad. Co., where a defendant's employee constantly used a "weird Spanish accent" when talking to Hispanic people, and on an occasion described Hispanics as being "very greasy," the court held that the "comments, standing alone, were not so severe that they could alter the conditions of [plaintiff's] employment. However, when combined with the display of Klu Klux Klan robes and/or [a] noose, these incidents may constitute an objectively hostile environment" (210 F Supp 2d 330, 390 [SD NY 2002])."\

....."

WHEN A NON-MARITAL RELATIONSHIP SOURS - CONSTRUCTIVE TRUSTS

Unmarried couples may purchase homes, etc. but, for various reasons, keep title in one name. If the relationship ends, and since they are not married, the home is not marital property but the doctrine of constructive trusts may apply.

GRIFEL v. Madsen, 2020 NY Slip Op 33118 - NY: Supreme Court September 23, 2020:

".....

A constructive trust is an equitable remedy that "may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest" (Watson v. Pascal, 65 AD3d 1333, 1334 [2d. Dept. 2009]). A constructive trust cause of action includes four elements: "(1) a confidential or fiduciary relationship; (2) a promise; (3) a transfer in reliance on that promise; and (4) unjust enrichment" (Id.). Since constructive trust is an equitable remedy, "courts do not rigidly apply the elements but use them as flexible guidelines" (Beason v. Kleine, 96 AD3d 1611, 1613 [4th Dept. 2012]; see also Hernandez v. Florian, 173 AD3d 1144, 1145 [2d. Dept. 2019] (stating that since "the elements serve only as a guideline, a constructive trust may still be imposed even if all of the elements arc not established")). Courts have held that the transfer in reliance element "is not limited to instances in which the plaintiff has actually transferred title to the property to the defendant, but may also include instances where the plaintiff has provided substantial funds for the maintenance and improvement of it" (Hairman v. Jhawarer, 122 AD3d 570, 572 [2d. Dept. 2014]; see also Washington v. Defense, 149 AD2d 697, 698-99 [2d. Dept. 1989]; Lester v. Zimmer, 147 AD2d 340, 342 [3d. Dept. 1989]). Cases have indicated that unjust enrichment may be established where the plaintiff contributed money for the down payment, mortgage payments, and for maintenance of the property (Diaz v. Diaz, 130 AD3d 560, 562 [2d. Dept. 2015]).

A constructive trust claim is governed by a six-year statute of limitations (See CPLR 213(1); Zane v. Minion, 63 AD3d 1151, 1153 [2d. Dept. 2009]). If the plaintiff alleges that the defendant acquired the property wrongfully, then the constructive trust claim accrued on the date it was acquired (Id.). If the plaintiff contends that the defendant wrongfully withheld property, then the claim accrued on the "date the trustee breache[d] or repudiate[d] the agreement to transfer the property" (Id. at 1153-54, indicating that "the plaintiff's claim accrued when the defendant allegedly failed to honor her promises, which according to the complaint, occurred in late 2005 or early 2006").

.....

Plaintiff's cause of action for constructive trust should not be dismissed, since plaintiff has stated a valid claim to impose a constructive trust. Plaintiff has adequately pleaded the first element, a confidential or fiduciary relationship, as the complaint alleges that defendant and plaintiff were in a romantic relationship since 2006, had cohabitated since 2007, and were registered as domestic partners in the State of New York as of 2014 (Complaint ¶ 11). Plaintiff has also adequately pleaded the second element, a promise, since the complaint states that when the property was purchased in December 2013, "Defendant Madsen promised plaintiff that the Premises belonged to both of them, that defendant Madsen would hold title to the Premises for the benefit of plaintiff, and that defendant Madsen would add plaintiff's name to the deed to the Premises at the first possible opportunity" (Id. at ¶ 28). Defendant does not contest that plaintiff has adequately pleaded the first two elements of a constructive trust claim.

Defendant maintains that the plaintiff has failed to adequately plead the third and fourth elements of a constructive trust claim: a transfer in reliance on the promise and unjust enrichment, because the down payment was not directly transferred from plaintiff to defendant, and defendant was not unjustly enriched, since plaintiff benefited by living in the home, and from the improvements she made to the property (Chatterton Affirmation ¶¶ 45, 55). Although plaintiff's mother transferred the money for the down payment directly to defendant's bank account, the complaint alleges that plaintiff asked her mother to loan the funds, and that the mother loaned the funds to the defendant "on behalf of plaintiff' (Id. at ¶¶ 19, 25). Since constructive trust is an equitable remedy, and not all elements need to be present to impose a constructive trust, the court declines to dismiss the cause of action merely because the down payment was not directly transferred from the plaintiff to the defendant. In any event, the transfer in reliance element has been adequately pleaded, since the plaintiff contends that she "contributed her personal funds to the costs of renovations" and "gave [money] to defendant Madsen on a nearly monthly basis for payment of the costs of the premises, including the mortgage and other carrying costs" (See Lester, 147 AD2d at 342 (stating that "a constrictive trust may be imposed ... where the proponent has extended funds or effort in reliance on a promise")).

Defendant's claim that plaintiff has not adequately pleaded unjust enrichment is incorrect. The cases defendant cites in support of this contention are distinguishable. Henning v. Henning, 103 AD3d 778 (2d. Dept. 2013) involved a constructive trust cause of action by a wife against her husband's parents, contending that defendants were unjustly enriched by her improvements to the property. This case can be differentiated, since defendants moved pursuant to CPLR 4401 for judgment as a matter of law "dismissing the complaint," "at the close of plaintiff's case at a nonjury trial" (Id. at 778). Similarly, Wilson v. La Van, 22 NY2d 131 (1968) is distinguished, since it involves an oral agreement for the transfer of real property, not a constructive trust claim. In Onorato v. Lupoli, 135 AD2d 693 (2d. Dept. 1987), the judge merely states in reference to a cause of action for specific performance, that "the fact that plaintiff made mortgage, taxes and other payments on the property during the period in which he resided in his brother-in-law's house, could be considered as rent for the use of the property" (Id. at 694). The judge denied plaintiff's motion to amend the pleadings to add a cause of action for the imposition of a constructive trust based on the fact that plaintiff "failed to establish that he had a prior interest in the subject property, nor [did] he [establish] the existence of an oral promise to convey title to the property" (Id. at 695). The judge never addressed unjust enrichment in his opinion. Marini v. Lombardo, 79 AD3d 932 [2d. Dept. 2010] is inapplicable since the judge made the decision to dismiss the constructive trust cause of action after a nonjury trial.

Plaintiff has adequately pleaded all three elements for unjust enrichment in her complaint. The first two elements, that the other party was enriched at her expense, are supported by plaintiff's allegations that she asked her mother to loan money to defendant for the down payment, and she also spent money, and dedicated her time and effort to maintaining and renovating the premises, and acquiring tenants (Complaint ¶¶ 30, 32). Plaintiff's complaint sufficiently alleges the third element, "that it is against equity and good conscience" to permit the defendant "to retain what is sought to be recovered." Plaintiff maintains that without her mother's contributions, defendant would not have acquired any interest in the premises, and that if the court dots not grant her an equitable interest in the premises, defendant would be unjustly enriched by her monetary contributions and the time and labor she devoted to finding and managing tenants for the premises (Id. at ¶¶ 62-64).

Defendant's contention that plaintiff has merely stated an unenforceable oral agreement for the transfer of property that is barred by the Statute of Frauds is without merit. As stated above, plaintiff has adequately pleaded a cause of action for imposition of a constructive trust. The Statute of Frauds is not a defense to a cause of action to impose a constructive trust (Vanasco v. Angiolelli, 97 AD2d 462, 462 [2d. Dept. 1983]).

The cause of action to impose a constructive trust is not barred by the statute of limitations. Although defendant contends that plaintiff's claim accrued in 2013 when the property was purchased, since there was no legal impediment to adding plaintiff's name to the deed, the parties had an agreement that plaintiff's name was left off the deed due to her prior bankruptcy filing (Chatterton Affirmation ¶ 40-42; Complaint ¶ 27). In light of the fact that a court is required to give the plaintiff the "benefit of every favorable inference" on a motion to dismiss, the court declines to interpret the statement in the complaint that defendant promised to add plaintiff to the deed "at the first possible opportunity" literally. The language, "the first possible opportunity" can be interpreted to mean when plaintiff's prior bankruptcy filing was no longer included in her credit history, which according to the complaint was in mid-2017 (Id. at ¶ 57). Since defendant did not wrongfully acquire the property, plaintiffs claim accrued on the date defendant wrongfully withheld it, which was in mid-2017. Therefore, since a cause of action to impose a constructive trust is governed by a six-year statute of limitations, plaintiff's first cause of action is not time-barred."

NEW RULES - SLAPP

On November 10, Governor Andrew M. Cuomo signed legislation amending the Civil Rights Law provisions which are aimed to deter abusive "strategic lawsuits against public participation," known as SLAPPs, viz., frivolous litigation brought by affluent plaintiffs who have the ability to spend large sums of money by using expensive and time-consuming litigation to obstruct those exercising their right to free speech.

"SUMMARY OF PROVISIONS OF BILL: 

Section 1 of the bill would amend section 70-a of the Civil Rights Laws to provide that costs and attorney's fees "shall be recovered upon a demonstration that a SLAPP suit was commenced or continued without a substantial basis in fact or law and could not be supported by a substantial argument for the extension, modification, or reversal of existing law."

Section 2 of the bill would amend section 76-a of the Civil Rights Law to define an "action involving public petition and participation" to include a claim related to: 

i. Any communication in a place open to the public or a public forum in connection with an issue of public interest; or ii. Any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition. The bill also specifies that "public interest" should be broadly construed.

Section 3 of the bill contains a stay of discovery and pending hearings or motions once a motion to dismiss a SLAPP action has been made pursu- ant to CPLR 3211 (a)(7). 

Section 4 specifies that the act shall take effect immediately.

JUSTIFICATION:

Section 76-a of the Civil Rights Law was originally enacted by the Legislature to provide "the utmost protection for the free exercise or speech, petition, and association rights, particularly where such rights are exercised in a public forum with respect to issues of public concern." L. 1992 Ch. 767. However, as drafted, and as narrowly interpreted by the courts, the application of Section 76-a has failed to accomplish that objective. In practice, the current statute has been strictly limited to cases initiated by persons or business entities that are embroiled in controversies over a public application or permit, usually in a real estate development situation. By revising the definition of an "action involving public petition and participation," this amendment to Section 76-a will better advance the purposes that the Legislature originally identified in enacting New York's anti-SLAPP law. This is done by broadly widening the ambit of the law to include matters of "public interest", which is to be broadly construed, e.g. anything other than a "purely private matter". 

Additionally, the principal remedy currently provided to victims of SLAPP suits in New York is almost never actually imposed. The courts have failed to use their discretionary power to award costs and attorney's fees to a defendant found to have been victimized by actions intended only to chill free speech. By an award of costs and fees, the Legislature had originally intended to address "threat of personal damages and litigation costs . . . as a means of harassing, intimidating, or punishing individuals, unincorporated associations, not-for-pro- fit corporations and others who have involved themselves in public affairs." L. 1992 Ch. 767. This amendment to Section 70-A of the Civil Rights Law makes clear that a court "shall" impose an award of costs and fees, but only if the court fords that the case has been initiated or pursued in bad faith. Together, the two amendments will protect citizens by encouraging only meritorious litigation."

CHILD SUPPORT - OVERPAYMENTS

Matter of Collette v Collette, 2020 NY Slip Op 06778, Decided on November 18, 2020, Appellate Division, Second Department:

"The parties were married and had two children together. The parties were subsequently divorced, and the father was obligated to pay the mother child support. A money judgment dated January 13, 2011 (hereinafter the money judgment), was entered against the father and in favor of the mother in the sum of $14,935.33 for child support arrears. In December 2018, the father filed a petition seeking, among other things, a determination that the money judgment had been satisfied.

In an order dated July 9, 2019, made after a hearing, a Support Magistrate, inter alia, vacated the arrears set forth in the money judgment as having already been satisfied, and directed the Support Collection Unit to stop enforcing the money judgment. In addition, the Support Magistrate determined that the father was entitled to a credit in the sum of $12,270.65 based on overpayments of child support, to be applied to the father's future child support payments or, in the alternative, to his obligation to pay his pro rata share of unreimbursed medical expenses and/or educational expenses. In an order dated November 4, 2019, the Family Court denied the mother's [*2]objections to the order dated July 9, 2019. The mother appeals.

We agree with the Family Court's determination denying the mother's objections to so much of the Support Magistrate's order dated July 9, 2019, as vacated the sum of $14,935.33 in arrears against the father set forth in the money judgment, directed the Support Collection Unit to stop enforcing that money judgment, and awarded the father a credit in the sum of $12,270.65. "Great deference should be given to the determination of the Support Magistrate, who is in the best position to assess the credibility of the witnesses and the evidence proffered" (Matter of Musarra v Musarra, 28 AD3d 668, 669; see Matter of Manocchio v Manocchio, 16 AD3d 1126, 1128). Contrary to the mother's contention, the record supports the Support Magistrate's finding that the father satisfied the money judgment.

However, "[t]here is strong public policy in this state, which the [Child Support Standards Act] did not alter, against restitution or recoupment of the overpayment of child support" (Matter of Taddonio v Wasserman-Taddonio, 51 AD3d 935, 936 [internal quotation marks omitted]; see Matter of McGovern v McGovern, 148 AD3d 900, 902). "The reason for this policy is that . . . child support payments are deemed to have been devoted to that purpose, and no funds exist from which one may recoup moneys so expended if the award is thereafter reversed or modified" (Matter of McGovern v McGovern, 148 AD3d at 902 [internal quotation marks omitted]; see Rader v Rader, 54 AD3d 919, 920). Therefore, the recoupment of child support payments is only appropriate under limited circumstances (see Matter of McGovern v McGovern, 148 AD3d at 902; Rader v Rader, 54 AD3d at 920; People ex rel. Breitstein v Aaronson, 3 AD3d 588, 589).

Here, there is no basis to conclude that an exception to the strong public policy against recoupment of child support overpayment exists. Thus, the Family Court improvidently exercised its discretion in denying the mother's objection to so much of the Support Magistrate's order dated July 9, 2019, as determined that the father was entitled to a credit against his future child support obligation based on prior overpayments of child support (see Matter of McGovern v McGovern, 148 AD3d at 902; Smulczeski v Smulczeski, 128 AD3d 670, 671; Coull v Rottman, 35 AD3d 198, 200). However, inasmuch as public policy does not forbid offsetting add-on expenses against an overpayment of child support (see Matter of Goehringer v Vozza-Nicolosi, 139 AD3d 949; Coull v Rottman, 35 AD3d at 201), we agree with the Support Magistrate's determination that the father may use the overpayments to offset his share of add-on expenses, such as educational expenses and unreimbursed medical expenses (see Matter of McGovern v McGovern, 148 AD3d at 902; Matter of Fitzgerald v Corps, 86 AD3d 611, 612)."

CHILD CUSTODY - WHEN ONE PARENT MOVES ON TO ANOTHER RELATIONSHIP

Whether it is during the litigation or afterwards, eventually, many parents do move on to new relationships but not every family is blended perfectly like in The Brady Bunch. 

TAMOUTSELIS v. TAMOUTSELIS, 2020 NY Slip Op 50435 - NY: Supreme Court, Monroe April 1, 2020:

".....

Significantly, in the order to show cause filed September, 2019, the mother sought a temporary order to prohibit the father from having his girlfriend in the children's presence during his visitation time. The September, 2019 order to show cause included an affidavit dated August 15, 2019, which described the children's reactions to their father's girlfriend. The mother's August 15, 2019 affidavit alleged that the father required his children in August, 2019 to sleep in a bed at his home with an unrelated "boy," who was the son of the father's girlfriend. The mother then described the children as "needy and clingy with me" since the sleep over and added the children told her that the girlfriend was taking their father away and characterized the girlfriend as "mean" and added that the girlfriend "ignores them."

However, this Court struck that portion of the temporary relief in the September, 2019 order to show cause because, based on the Court's review of the mother's affidavit at that time, there was insufficient evidence to justify restricting the father's relationship with another person or evidence that the children's exposure to the father's friend had adversely impacted the children's well-being.

.......

In her current application, the mother describes a series of incidents that, in her view, indicate the need for a modification of the custody/visitation order and agreement:

...

(B) On January 11, 2020, three days after the mother executed the custody/visitation agreement, the mother got an email from the father, which she alleges was a threat. She said that the father stated that if the mother did not help him with the children's relationship with the girlfriend, he would tell them the real reason for the divorce. The mother attached the text message to her affidavit. The only pertinent portion of the text message from the father is a sentence that reads: "Also can u stop alienating the kids from myself and my girlfriend and her son with lies . . . a lot of time has passed and u should be encouraging them that everythings ok and sometimes things change and that's ok . . . I really don't want to explain to them exactly what happened to cause this whole thing."

The mother did not respond to that text. There is no evidence that the either the mother or the father altered the parenting time schedule after January 11, 2020.

(C) On January 15, 2020, the couple's son got into argument with his father, according to the mother, over a video game. The father and son exchanged words and the father declined to take his son to hockey practice. Later that week, the children, while in residence with their father, again called their mother to complain that their father's girlfriend was scheduled to visit. The visit never occurred. The children stayed with their father.

(D) The mother also relates an incident when the children went with their father to a farm at an unspecified date in the Fall of 2019. The mother said the children told her that they were upset because the girlfriend was there. The father then imposed a discipline on his son for failing to follow the father's instructions and removed his access to his Ipad for two months. The mother, in her affidavit, said that the therapist had told them that this was "extremely excessive punishment."

... 

(I) In her reply affidavit, the mother describes the children's attendance at a professional soccer game and describes the father's insistence that his children say "hi" to his girlfriend and she claims the father just ignore the children.

...

In reading this opinion, both parents may think the Court is downplaying the mother's concerns about her children. To the contrary, this Court understands the maternal instinct that drives this mother's efforts to insulate her children from the consequences of the divorce and the entry of new people in their lives. The Court acknowledges that the father's introduction of a girlfriend can cause distress to children at any age. If he mishandles that introduction, he may someday face a child who justifiably concludes that his or her father, at a critical time in their young lives, lavished greater attention on a newcomer rather than his children. If that occurs, he may face loss of the child's affection. But, that decision rests with the father and his choices in a post-divorce world. This Court will not interfere with his personal choices, other than to suggest that a child's love, once lost, may be difficult to recoup.

The Court also recognizes the dislocation and disquieting nature of the new reality that these children face: life with their mother, and her style of parenting, without their father in residence and then time with their father, and his own style of parenting, and discipline and interactions with new friends and associates. In this case, as in many others, the conflict between mother and father, that ended the marriage and persists to this date, clouds the world of their children, often adding stress and anxiety to the lives of these eight-year-old twins. "

COURT HEARINGS WITH COVID

Matter of Haydee F. v. ACS-NY, NYLJ November 16, 2020, Date filed: 2020-10-28,     Court: Family Court, New York, Judge: Referee Pamela Scheininger,     Case Number: G-15246-19:

"This decision comes in response to three cases in which one or more parties has objected to participating in a contested virtual hearing in New York County Family Court. In compliance with New York State Governor Andrew Cuomo’s Executive Order and Administrative Orders from Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence Marks, hearings in Family Court are currently taking place virtually, via Skype for Business and/or Microsoft Teams. In the instant case, an Article Ten petition was filed against respondent parents, Catherine D. and Martin F. on July 7, 2016 as to four subject children, including the two subject children at issue in the present case, Aracelis D. (dob 1/21/10) and Katalaya F. (dob 7/6/10). A fact finding order of neglect was entered against Catherine D. on January 24, 2017 based on her submission to the jurisdiction of the court pursuant to Family Court Act §1051(a) and on March 10, 2017, an order of disposition was entered against Ms. D. releasing the children to her care pursuant to Family Court Act §1054 on terms and conditions. With respect to Martin F., an order was issued adjourning his Article Ten case in contemplation of dismissal on March 28, 2017.

On September 7, 2017, the Commissioner of Social Services filed a petition alleging that Mr. F. had violated the terms of the adjournment in contemplation of dismissal. On March 1, 2018 the Commissioner filed a petition to modify the dispositional order and place the subject children in the care of the Commissioner. The children were subsequently placed with the Commissioner in two separate kinship foster homes.

On August 12, 2019, the permanency goal for Aracelis and Katalaya was changed from return to parent to placement with a fit and willing relative, On December 23, 2019, Jessica G. filed a kinship guardianship petition as to the child, Catalaya F. and Haydee F. filed a guardianship petition as to the child, Aracelis. Issue was joined on that case on February 26, 2020. The matter was set down for a hearing on May 6, 2020.

Due to the global COVID-19 pandemic, this guardianship case did not go forward on May 6, 2020 and it was not until August 26, 2020 that the case was held in Virtual Court for a permanency hearing. The guardianship hearing was scheduled for October 26, 2020. Counsel for Ms. D. and Mr. F. objected to holding the guardianship hearing virtually and each filed a motion for an adjournment until an in-person hearing could be held. The attorney for the petitioner, attorney for the Commissioner and attorney for the child each filed affirmations in opposition to the motions.

It goes without saying that these are unprecedented times. A global pandemic of this nature has not been experienced in over a century and none of us could have anticipated the extent and the length of the impact of COVID-19. Indeed, standing here today, we cannot know how long this pandemic will last and the full extent of its devastation.

Family Court carries a heavy burden. We are the court to which people turn when they are experiencing domestic violence, when they need financial support to ensure the health and wellbeing of their children, when the State must protect a child from abuse or neglect, when a parent is denied access to a child and when a child is in need of a permanent home and a forever family. Family Court jurists (and indeed, jurists in all of our courts) have been working steadily through this pandemic, initially through Virtual Parts limited to “essential matters” then also through Virtual Chambers, and finally through expanded Virtual Parts which provide greater capacity to hear matters beyond those which fall strictly within the category of “essential.”

Currently, in compliance with Family Court protocols and procedures, jurists are able to hear permanency hearings and custody and guardianship cases which commenced prior to March 2020. Matters which may be heard and the number of Virtual Parts available to hear such cases have increased steadily as the New York City Family Court operations expand. There is still no certainty as to when regular, daily in-person hearings will resume in New York City Family Court.

With respect to practices and protocols which have been communicated by Administrative Judge of the Family Court, Judge Jeannette Ruiz, or Supervising Judge of Manhattan Family Court, Judge Karen Lupuloff, those practices and protocols, though accurate at the time of their making, have been fluid and ever-changing. Every day, Family Court pushes itself to be more open and available to the people who need us and practices and protocols are under constant review and evolving in order to meet those needs.

With respect to the court’s authority to hear virtual cases, as stated by Judge Jeffery Sunshine in C.C. v. A.R., 2020 Slip Op 29245 at *6 (Sup Ct. Kings Co. 2020):

“Pursuant to New York Judiciary Law §2-b(3), the Court has the power ‘to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.” This authority is vested in the Courts by the New York State Constitution which permits courts latitude to adopt procedures not specified in the statutes where such procedures are consistent with general practice as provided by the law. (NY Const Art VI, 30, see also People v. Ricardo, 73 NY2d 228, 232 [1989]).”

In his decision, Judge Sunshine cited People v. Wrotten, 14 NY3d, 33, 37 (2009) where the Court of Appeals “ruled that the Court “does not need the consent of the parties to fashion “innovative procedures” where “necessary” to effectuate the power and jurisdiction of the Court.” Id at *6. In People v. Wrotten, the Court of Appeals held that live televised testimony is to be used in “exceptional circumstances” as “necessary.” People v. Wrotten, 14 NY3d 33, (2009). Judge Sunshine further wrote that: “As the Court of Appeals has noted again and again, “in this imperfect world, the right of a defendant to a fair appeal, or for that matter, a fair trial, does not necessarily guarantee him a perfect trial or a perfect appeal.” (People v. Rivera, 39 NY2d 519, 523 [1976]; see also People v. Harris, 57 NY2d 335 [1982]; People v. Parris, 4 [*8] NY3d 41 [2004]).” Id at *7.

Similarly, in Ciccone v. One 64th St., Inc., 2020 Slip Op 20220 (Sup. Ct. NY Co. 2020), Judge Gerald Lebovits held that “the Court of Appeals and the Appellate Division, First Department, have repeatedly held that one such [innovative] procedure that courts may employ, albeit in exceptional circumstances, is the use of video testimony…” Ciccone at *2

Judge Lebovits further noted that:

“The federal trial courts considering the issue have acknowledged that “[c]onducting a trial by videconference is certainly not the same as conducting a trial where witnesses testify in the same room as the factfinder,” and that “[c]ertain features of testimony useful to evaluating credibility and persuasiveness, such as the immediacy of a living person can be lost be video technology.” Matter of RFC & RESCAP Liquidating Trust Action (444 F Supp 3d 967, 970 [D Minn. Mar 13,2020] [internal quotation marks omitted].) At the same time, these courts have found that given “advances in technology,” “the near instantaneous transmission of video testimony” permits the court “to see the live witness along with his hesitation, his doubts, his variations of language, his confidence or precipitancy, and his calmness or consideration.” (Id. [internal quotation marks and alteration omitted] ; accord Gould Elec. Inc.v. Livingston County Rd. Commn. (2020 WL 3717792, at 6 [ED Mich June 30, 2020 [same]; United States v. Donziger (2020 WL 5152162, at *3 n 4 [SD NY Aug. 31, 2020].” Id at *3-4.
He added that:

“Federal court have also found that given the “unprecedented nature of the circumstances faced by our society at present” due to the COVID-19 pandemic, compelling reasons exist to conduct trials virtually. (Flores v. Town of Islip (2020 WL5211052 at *2 [ED NY Sept. 1,2020]; accord RFC, 444 F Supp 3d at 972 [concluding that COVID-19's unexpected natures, rapid spread, and potential risk establish good cause for remote testimony"].) And given the court closures required by the pandemic, “the months’ long delay that has resulted” and the continuing lack of clarity about when it will be safe to resume normal in-person operations, the courts have concluded that “it is ‘absolutely preferable’ to conduct the bench trial via such ‘contemporaneous transmission’…rather than to delay the trial indefinitely.” (Argonaut Ins. Co. v. Manetta Enters., Inc. (2020 WL 3104033, at *2 [ED NY June 11, 2020], quoting RFC, 44 Supp 3d at 927.)” Id at *4.

Specifically, in the context of a virtual custody hearing, Justice Tandra L. Dawson ruled that a custody trial would proceed virtually over the objections of counsel stating:

“While the court is cognizant of the limitations and inherent difficulty involved in conducting virtual hearings, counsels’ objection do not set forth a prejudicial basis to further delay the hearing. Given the unpredictable nature of the COVID-19 pandemic it is unknown when court operations will return to normal in-person procedures, particularly given a resurgence is anticipated, if not already occurring, with multiple travel bans and advisories in effect. The court is mindful that compelling in-person attendance, in a courtroom, could subject vulnerable individuals to an increased risk of harm. Virtual technology would remove that risk.” A.S. v. N.S., 2020 NY Slip Op 20161 (Sup Ct, NY Co. 2020).
In addressing this issue, it bears mention that there are New York statutes which expressly allow for testimony by telephone, audio-visual or other electronic means. For example, under the Uniform Interstate Family Support Act (UIFSA), “In any proceeding under this article, the court may permit a party or a witness to be deposed or to testify by telephone, audio-visual means, or other electronic means at a designated family court or other location.” See N. Y. Fam Ct Act §531-a (1). Also, under the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA), “A court of this state may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state. A court of this state shall cooperate with courts of other states in designating an appropriate location for the deposition or testimony and the procedures to be followed by the persons taking such deposition or testimony. Any such testimony or deposition shall be recorded and preserved for transcription.” See N.Y. Domestic Relations Law §75-j(2). Long before the exceptional circumstances created by COVID-19, considerations of time and money led the New York State Legislature to adopt electronic testimony (including telephone testimony) as a reliable and competent means of conducting a hearing.

According to the Pew Research Center, as of February 7, 2019, 96 percent of all Americans owned a cell phone with 81 percent of all Americans owning a smart phone. 

https://www.pewresearch.org/internet/fact-sheet/mobile/. 

Though this study demonstrated variability based on race, gender, age, income and rural vs. urban dwellers, no group dropped below 91 percent in cell phone ownership or 71 percent in smart phone ownership (other than those over 65 years of age and those who had not yet graduated high school which both reported at 53 percent in smart phone ownership). Id. Simply put, as of 2019, almost all Americans owned cell phones and the vast majority of them owned smart phones. The technologies being employed to conduct virtual hearings in Family Court are accessible via phone or smartphone and are readily available to anyone who owns either a cell phone or smart phone.

With respect to arguments by counsel for Ms. D. that electronic testimony is unreliable or prejudicial, we note that the studies cited in support of such an argument are all at least ten years old, with some dated as early as the 1980′s. It goes without saying that the electronic testimony that was available in 2010 and earlier is not the electronic testimony that is available today. During COVID-19, courts across this country have become virtual, as have businesses, law firms, doctor’s offices, schools and universities. People are relying on platforms such as Zoom, Skype for Business and Microsoft Teams to conduct multi-billion dollar deals, educate students, conduct hearings and save lives. We are able to rely on these platforms because they are easy to access and they work.

Given these considerations and the fact that electronic testimony has long been utilized in Family Court, this Court find arguments by counsel for the parents that electronic testimony is unreliable and/or prejudicial to be unpersuasive. The court is no less able to make credibility findings in hearings which are conducted virtually than in hearings conducted in person.

With respect to the interest of the State in conducting these hearing in a timely manner, it must be noted that the hearings in question here are all related to Article Ten proceedings and being sought in an effort to achieve permanency for the children involved. The court and the State are seeking to conduct these virtual hearings because without a determination as to the permanency hearings, custody and guardianship cases, these children will continue to languish in a state of uncertainly and instability. The Adoption and Safe Families Act states: ”(C) if continuation of reasonable efforts of the type described in subparagraph (B) is determined to be inconsistent with the permanency plan for the child, reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child.” Public Law 105-80, 105th Congress, Section 101. We are acutely aware of the deleterious impact of delayed permanency on the psychological and emotional health of children in foster care. “Paramount in the lives of these children is their need for continuity with their primary attachment figures and a sense of permanence that is enhanced when placement is stable.” Pediatrics November 2000, 106 (5) 1145-1150; DOI: https://doi.org/10.1542/peds.106.5.1145. Moreover, “[c]hildren who have experienced abuse or neglect have a heightened need for permanency, security, and emotional constancy and are, therefore, at great risk because of the inconsistencies in their lives and the foster care system. Every effort should be made to rapidly establish a permanent placement for the child.” Id.

Unless and until a child is adopted, returned to a parent or placed in a permanent home with a fit and willing relative through a final order of custody or guardianship, permanency has not been achieved. Foster care agencies will continue to conduct home visits and interview these children, court ordered visits with parents will continue to take place at the foster care agencies or other locations, and the home will continue to be under the stress associated with frequent court appearances. Moreover, in the cases before us, the parties are engaged in litigation over what the permanency plan should be for the children. Without a hearing and determination of these matters, it is impossible to know what these children’s future looks like or to make any assurances. These children are struggling with insecurity and uncertainty and suffering from the associated social, emotional and psychological stressors that this insecurity and uncertainty brings. Arguments that a parent’s right to the trial of their choosing outweighs a child’s right to permanency in their lives is not persuasive.

Similarly, the arguments made by counsel for the parents as to ineffective assistance of counsel are unpersuasive. The attorneys in these cases would have ample opportunity to meet with their clients in person, masked and socially distanced or via phone or teleconference. Attorneys are able to participate fully in virtual hearings, directing and cross-examining witnesses and making objections and applications as appropriate. If there is a problem with the technology and a witness or attorney cannot hear or be heard, the hearing can be stopped until the issue is addressed. If the issue cannot be addressed that day, another hearing date can be chosen. During the hearing, attorneys and clients can communicate via text or email, they can ask for breaks and/or to go off the record in order to consult further. Adjournments can be granted between direct and cross examination and after each party has rested in order to allow for further consultation.

While it is true that a party may be more comfortable sitting next to their attorney and better able to participate in the process, our world has moved online and people have adapted, continuing to attend classes, see doctors and therapists, and visit with family and friends. Nothing takes the place of in-person contact but in these unprecedented times, Family Court must continue to meet the needs of its families. As stated by Judge Sunshine, a litigant has the right to a fair trial not a perfect trial. With the protections listed above put into place, fair trials occur.

This having all been said, in the instant matter, the court does find that in this contested virtual guardianship hearing, the witnesses must testify via video rather than telephone. Counsel have made valid arguments to the Court as to the potential unreliability of telephone testimony, including the inability to know whether a witness is reading from notes or another source, and whether the witness is in the presence of someone who is coaching them or preventing them from testifying truthfully. Further, counsel for the parents are persuasive in their arguments that it is challenging to make accurate credibility findings when one cannot see a witness’s face and facial expressions and that testimony via telephone would place a hindrance on an attorney’s ability to engage in fully effective advocacy.
Accordingly, parties are directed to provide the court and counsel with witness lists within two weeks with information as to whether each witness will be able to testify via video, and if not, an explanation as to why not. The court can then make inquiry and issue orders to address challenges with internet access and video capability. We are mindful that in the cases before us, it is likely that while agency personnel may have ready access to computers and internet, parents and foster parents may not. Given the availability of foster care agencies and their resources, there are any number of ways to ensure that all parties may appear via video. These hearing will then proceed via Skype for Business and/or Microsoft Teams. An application for a limited number of participants to appear virtually, from a monitor specifically set up for such person in our courthouse, while others appear virtually from law offices and other locations, may also be made for this Court’s consideration.

This matter is adjourned to November 9, 2020 at 2:00 p.m. in Part 43 for a virtual court appearance via Microsoft Teams."

EMPLOYEE COMPLAINTS RE COVID

 

All businesses must follow appropriate safety and health guidance. An employee may file a complaint for any of the following reasons:

    1. Being forced to work at a business that is not allowed to operate

    2. Being forced to work for a business that is allowed to operate, however:

        Employer is not taking proper safety and health precautions (see above)

        Employee has particular concerns because Emloyee or a family member are part of a vulnerable population (i.e. underlying health conditions or over 70)

    3. Employer has failed to pay wages owed for hours worked, earned sick pay or paid time off

    4. Employer has threatened or fired Employee for reasons related to COVID-19

    5. Employee qualifies for COVID-19 paid sick leave and Employer refuses to pay it

    6. Employer is forcing Employee to work when e sick

Go to: Complaints Related to COVID-19 Regulations

ALTERNATIVE DISPUTE RESOLUTION SERVICES AVAILABLE

 

THE UPHPA

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). Under the UPHPA, if the property for which the complaint seeks partition qualifies as “heirs property” as defined by RPAPL §993[2](e), then the filing of a complaint requesting a sale now constitutes an agreement by the plaintiff that his or her interest may be acquired by other co-tenants who have not requested a partition by sale at a value determined by the court. 

In Pachter v. 3063 BRIGHTON 8 PROPS. LLC, 2020 NY Slip Op 51108 - NY: Supreme Court September 29, 2020, defendants in a partition action attempted to raise the UPHPA as a defense to a regular partition action but this was denied:

"Defendant's motion for leave to amend its answer, to add an affirmative defense claiming that the Uniform Partition of Heirs Property Act (RPAPL § 993) is applicable to plaintiffs' partition cause of action, is denied. The statute clearly states that it is effective as of December 6, 2019, and it "applies to partition actions filed on or after [December 6, 2019]" (RPAPL § 993(3)(a)). Defendant claims that the action was commenced when the amended complaint was filed on January 22, 2020 (Defendant's Affirmation in Reply ¶¶ 4, 5). However, plaintiff disagrees, indicating that the action was commenced on August 19, 2019, when the original complaint was filed (Plaintiffs' Reply Memorandum of Law at 3). CPLR § 304(a) states that an action is commenced by the filing of a summons and complaint (CPLR § 304(a)). CPLR § 203(f) indicates that claims in an amended complaint are "interposed" when the original complaint was filed, as long as the original complaint "give[s] notice of the transactions, occurrences, or series of transactions or occurrences to be proved pursuant to the amended [complaint]" (CPLR § 203(f)). The only difference between the original and amended complaint concerns the status of the plaintiffs as beneficiaries under the will in the original complaint, as opposed to intestate heirs in the amended complaint. The amendment is not material, since the amendment has no effect on the plaintiffs' right to partition the property. Therefore, the amended complaint has no effect on the date the action was commenced (See also Valladares v. Valladares, 55 NY2d 388, 391 [1982], indicating that the action was commenced as of the service of the original complaint). Since the action was commenced on August 19, 2019, the Uniform Partition of Heirs Property Act does not apply to this action.

The cases defendant cites in support of his contention that the action was commenced by the filing of the amended complaint are distinguishable. Perez v. Paramount Communications, 92 NY2d 749 [1999], concerned whether the filing of a motion for leave to amend a complaint to add a defendant tolled the statute of limitations. This case does not involve adding additional parties. Schlapa v. Consolidated Edison Co. of NY, Inc., 174 AD3d 934 [2d. Dept. 2019], also involves the issue of adding additional defendants, indicating that the action was commenced against the additional defendants when the plaintiff "filed the supplemental summons and amended complaint with the Queens County Clerk's Office" (Id. at 935). Long v. Sowande, 27 AD3d 247 [1st Dept. 2006], can also be differentiated, as the issue in that case was whether cross claims by newly added defendants were time-barred. Therefore, this action was commenced by the filing of the initial complaint on August 19, 2019. Although defendant argues that the statute should be applied retroactively, when a statute clearly states that it applies to actions commenced after its effective date, retroactive application is precluded (Golston-Green v. City of New York, 184 AD3d 24, 24 n.1 [2d. Dept. 2020])."

A SALUTE TO VETERANS ON THIS DAY...AND MY FATHER

 

GOOD FOR TENANTS, DELAYS FOR LANDLORDS

On November 3, Executive Order 202.72 was issued which provides in part:

"IN ADDITION, I hereby temporarily suspend or modify the following from the date of this Executive Order through December 3, 2020:

• Sections 732 and 743 of the Real Property Actions and Proceedings Law are modified to the extent necessary to provide that the time to answer in any summary eviction proceeding for nonpayment of rent that is pending on the date of the issuance of this Executive Order will be sixty days.

DEALING WITH RENT IMPAIRING VIOLATIONS UNDER THE MULTIPLE DWELLING LAW

FOOD FIRST HDFC INC. v. Turner, 2020 NY Slip Op 51155 - NY: City Court, Civil Court October 5, 2020:

"......If HPD's official records show that an owner of a multiple dwelling does not remove a rent-impairing violation within six months after the notice of the violation, and if a tenant of "any premises in such multiple dwelling" pleads such a defense in a nonpayment proceeding and deposits with the clerk of the Court the amount of rent the owner demands in its petition, then the owner may not recover any rent after the expiration of the six months so long as the violation remains uncorrected. MDL §§302-a(3)(a), 302-a(3)(c). As Respondent has fulfilled every condition to the letter of the statute, Respondent proves, as a prima facie matter, that Petitioner may not collect rent from her from six months after the notice of the first violation until Petitioner corrects the Violations. 50 Manhattan Ave. LLC v. Powell, 2018 N.Y.L.J. LEXIS 777, *5-6 (Civ. Ct. NY Co.), Worley v. 151 W. Realty Co., 1995 N.Y.L.J. LEXIS 9783, *4 (Civ. Ct. NY Co.).

.....

Accordingly, Respondent is entitled to summary judgment on her defense pursuant to MDL §302-a. According to the facts Respondent has demonstrated by this motion, the statute precludes Petitioner from recovery of rent "for the period that such violation remains uncorrected after the expiration of said six months." MDL §302-a(3)(a). Words mean the same thing even when used in different statutes if the statutes concern the same subject matter. Benesowitz v. Metro. Life Ins. Co., 8 NY3d 661, 668 (2007). The statutory use of the word "period" in relation to landlord/tenant relationships speaks of the relevant time interval for payment of rent in terms of months. RPL §232-c ("if the landlord shall accept rent for any period subsequent to the expiration of such term the tenancy created shall be a tenancy from month to month commencing on the first day after the expiration of such term")(emphasis added). If a landlord does not correct a rent-impairing violation within six months of its issuance, then, the "period after the expiration of said six months" referred to in MDL §302-a(3)(a) means the month following the expiration of the six-month period. Similarly, if the "period" that a rent-impairing violation "remains uncorrected" ends in the middle of a month, the "period" in which a landlord may not recover rent includes the entirety of that month.

Six months after the issuance of the Violations in this matter fell in December of 2019. Petitioner therefore may not recover rent starting in January of 2020. The Violations remained uncorrected until July of 2020, so the first month that Petitioner may therefore receive rent is August of 2020. Respondent's rent for January of 2020 was $1,048.29 and from February through July of 2020 was $1,074.46. Respondent's aggregate rent liability from January through July of 2020 was $7,495.05. Respondent is entitled to a credit of this amount which, when set off against the amount demanded in the petition of $4,193.16, leaves a credit of $3,301.89. As the credit is greater than the judgment amount demanded in the petition, the Court dismisses the petition.

After dismissal of the petition, what remains of the proceeding is Respondent's counterclaims. At oral argument of this motion, Respondent indicated that it made sense to revisit the question of the course of this proceeding in the event the Court dismissed the petition. The Court therefore holds in abeyance the balance of Respondent's motion pending a conference of this matter which the Court will calendar virtually with the parties.

The Court further directs the clerk of the Court to release to Respondent the $4,193.16 that Respondent had deposited with the Court on December 19, 2019, which was memorialized as transaction No. 3490."

ALTERNATIVE DISPUTE RESOLUTION SERVICES AVAILABLE

 

NEW FORMS FOR E FILING

Judge Lawrence Marks issues Administrative Order 254-20 prescribing forms for use in electronic filing in New York Supreme Court through the New York State Courts Electronic Filing (NYSCEF) program.

The forms can be found at this link: AO 254-20

A FAMILY OFFENSE INVOLVES A FAMILY

Matter of KR v. FB, NYLJ October 26, 2020, Date filed: 2020-10-19, Court: Family Court, Suffolk,  Judge: Judge Paul Hensley:

"....The motion to dismiss properly does not challenge that the rape framed as forcible touching and sexual misconduct constitutes behavior that qualifies as a family offense as set forth in Family Court Act §812. The motion asserts that the Petitioner and Respondent are not members of the same family or household. In other words, the relationship between Petitioner and Respondent does not fall within a category set forth in Family Court Act §812 (a) — (e).

The Court reviewed the motion papers, and heard testimony on October 6, 2020 (see, Matter of Raigosa v. Zafirakopoulos, 167 AD3d 748, 89 NYS3d 322 [2d Dept 2018]). Petitioner and Respondent are not legally married to one another (Family Court Act §812 [1] [b]), nor were they ever married (Family Court Act §812 [1] [c]). They do not have a child in common (Family Court Act §812 [1] [d]). Moreover, Petitioner and Respondent are not related by consanguinity (Family Court Act §812 [1] [a]). 

Therefore, the two remaining bases on which a qualifying relationship may be found are affinity and intimate relationship.

Affinity

A relationship of affinity is ‘the relation that one spouse has to the blood relatives of the other spouse; relationship by marriage’ (Black’s Law Dictionary 70 [10th ed 2014]) (Matter of Arnold v. Arnold, 119 AD3d 938, 939, 989 NYS2d 879, 880 [2d Dept 2014]). A relationship meeting Family Court Act §812′s requirements exists when the petitioner and respondent are linked by a combination of consanguinity and affinity, such as a child who is the blood relative of the child’s parent (consanguinity) and therefore has a relationship by affinity with the parent’s spouse (frequently called a step-parent) (Id.["(W)hile spouses remain married, a stepchild is related by affinity to a stepparent"]), The two steps are consanguinity between child and parent (step one) and affinity between the parent and the stepparent (step two).

Here, Petitioner’s mother is married to someone other than Petitioner’s biological father. Petitioner’s mother’s husband (hereafter, “Stepfather”) has a sister (hereafter, “Stepaunt”) who is married to Respondent (“Stepuncle”). Thus, unquestionably, Petitioner has an affinity relationship with Stepfather by authority of Arnoldwhich covers the first two steps in the relational chain.

However, the third step of the relationship chain between Stepfather and Stepaunt is the subject of an anomaly among the Departments. In Matter of Bibeau v. Ackey, (56 AD3d 971, 869 NYS2d 244 [3d Dept 2008]), the Third Department held that a child has a relationship of affinity with the spouse of the sibling of the child’s parent. In Bibeau, the child’s mother’s (parent, step one) sister’s (aunt, step two) husband (non-blood uncle, step three) was the respondent in a petition brought on behalf of the child.
In Matter of Rizzo v. Pravato, (170 AD3d 860, 96 NYS3d 121 [2d Dept 2019]), the Second Department held that no relationship of affinity exists between a child and the sibling of that child’s stepparent which as described above is step three. Applying Rizzoto this case, no relationship of affinity exists between Petitioner and the Stepaunt (step three), thereby breaking the chain of consanguinity and affinity connections necessary to establish a relationship of affinity between Petitioner and Respondent.
The only difference between Bibeauand Rizzois that the relationship is through a parent (Bibeau) versus through a stepparent (Rizzo). In other words, in this case, had Petitioner’s mother’s (as opposed to Petitioner’s stepfather’s) sibling’s spouse been the respondent, then a relationship of affinity would exist.

This Court is powerless to disregard Rizzobecause when the Departments conflict, and a Second Department case is on point, trial courts in this Department must follow the Second Department precedent (Mountain View Coach Lines v. Storms, 102 AD2d 663, 476 NYS2d 918 [2d Dept 1984]).
Therefore, Respondent prevails on the motion to dismiss unless Petitioner and Respondent have an “intimate relationship” (Family Court Act §812 [e]). Rizzo stands for the proposition that even when an affinity relationship is absent, the courts must determine “whether persons are or have been in an ‘intimate relationship’ within the meaning of Family Court Act §812 (1) (e) [which is] a fact-specific determination which may require a hearing” (Rizzo, 170 AD3d at 861- 862, 96 NYS3d at 123).

Intimate Relationship

“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” (Family Court Act §812 [1] [e]).

Nature of the Relationship
Relative-like Relationship.

The nature of the relationship is, in familial functional effect, uncle and niece. The hearing testimony was that the Petitioner visits at and spends family event time at the Respondent’s home. This family tree relationship support finding that an intimate relationship exists.

Sexual Nature of the Relationship.

Family Court Act §812 vests the family court with jurisdiction over certain sex offenses, so the face of the statute clearly contemplates sex, and not romance, as a factor to consider. The relationship between Petitioner and Respondent alleged in the Petition and described at the hearing is sexual. That the relationship has a sexually violent component, as alleged, does not make the relationship non-sexual; instead, the violence makes the relationship sexual and violent, not simply non-sexual. The statutory language “regardless of whether the relationship is sexual in nature” means that a sexual relationship is not a necessary element of finding an intimate relationship. That language does not mean to ignore a sexual component to a relationship.

The Petition alleges that Petitioner and Respondent were kissing. Petitioner registered no objection to the kissing. When the Respondent intensified the parties sexual contact in the back of Respondent’s car in a dark parking lot sometime shortly after 4 a.m., Petitioner “told [Respondent] not to do that” (Petition at 2). When, as the Petition alleges, Respondent intensified the parties sexual contact and began having sexual intercourse with the Petitioner, who had no transportation save for the Respondent’s car, the sexual relationship became violent.

The sexual nature of the relationship supports finding that this is an intimate relationship.

Trusting Nature of the Relationship.

Petitioner did not allege, and no hearing testimony suggests that Petitioner made, any objection to (a) leaving Petitioner’s car at Petitioner’s workplace at the 4:00 a.m. end of Petitioner’s work shift; (b) having Respondent drive with Petitioner at 4:00 a.m. from the workplace parking lot where Petitioner’s car was parked; (c) Respondent kissing Petitioner. Petitioner’s objections began when Respondent was “moving his hand down [Petitioner's] back” (Petition at 2).

Something led the Respondent to arrive in Respondent’s car at Petitioner’s workplace at 4:00 a.m., when the Petitioner’s work shift ended. This Court finds that Respondent knew the Petitioner’s work schedule and arrived at the workplace on purpose intending to meet up with the Petitioner. That Respondent knew the Petitioner’s schedule demonstrates that this was not a “casual acquaintance” connection (Family Court Act §812 [1] [e]). To the contrary, the absence of objections and the Respondent’s awareness shows the trust-based nature of the relationship.

Frequency of Interactions and Duration

The parties interact and/or interacted with sufficient frequency to support a finding of an intimate relationship and have done so for a sufficient duration.

Conclusion

The purpose of the article 8 proceeding is “to stop the violence, end the family disruption and obtain protection” (Family Court Act §812 [2] [b]). This language helps illustrate that the degree of connection between petitioners and respondents should have some of the hallmarks of family relationships like trust.

Based on the foregoing analysis of the various factors, this Court concludes that Petitioner has established that this Petitioner and this Respondent are members of the same family or household because they have or have had an intimate relationship as defined in Family Court Act §812 (1) (e)."

GO VOTE

Who Can Vote?

You can vote in U.S. elections if you:

• Are a U.S. citizen

• Meet your state’s residency requirements

  • You can be homeless and still meet these requirements. 

• Are 18 years old on or before Election Day

  • In almost every state, you can register to vote before you turn 18 if you will be 18 by Election Day. See a table of voter registration age requirements by state.

• Are registered to vote by your state’s voter registration deadline. North Dakota does not require voter registration.

Who CAN’T Vote?

• Non-citizens, including permanent legal residents

• Some people with felony convictions. Rules vary by state. Check with your state elections office about the laws in your state.

• Some people who are mentally incapacitated. Rules vary by state.

• For president in the general election: U.S. citizens residing in U.S. territories

Check with your state or local election office for any questions about who can and cannot vote.

THE QUESTION OF THE DOG IS ONE OF FACT NOT OF LAW

The dog will get its day in court.

Introna v. Importuna, NYLJ October 26, 2020 Date filed: 2020-10-16 Court: Supreme Court, Richmond Judge: Justice Wayne Ozzi Case Number: 150038/2019:

"This is an action in which Plaintiff claims to have been injured as a result of an attack by Defendants’ dog, a pit bull named Capone. In brief, Plaintiff claims that while she was walking her own dog on the sidewalk in front of Defendants’ residence, she was attacked by the dog and knocked to the ground, sustaining various fractures and lacerations.

Defendants have made a prima facie showing of entitlement to judgment as a matter of law, by presenting evidence that there were no prior incidents involving this dog, no growling or prior complaints, and no knowledge of any vicious propensities.

Evidence tending to prove that a dog has vicious propensities may include a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, or a proclivity to act in a way that puts others at risk of harm. (see, Bard v. Jahnke, 6 NY 3d 592, 597).

In opposition, Plaintiff offers her previous testimony that she heard vicious growling as she passed Defendants’ house, that the dog broke its leash, and immediately broke through a hole in the fence and thereafter ran after Plaintiff and her dog. Plaintiff also points to testimony of Defendant Elizabeth Importuna that neither she nor her family members permit the dog to be let loose in the yard; they have to take him out on a leash notwithstanding that the yard is fenced in. On this point, she said that Defendants never take the dog for a walk outside of their yard. Also, there is testimony from Defendants’ son that two people are needed to take him for a walk.
Plaintiff has offered sufficient evidence in opposition to raise bona fide issues of fact. The dog’s growling, the manner in which he was restrained, as described hereinabove, a proclivity to put others at risk of harm by breaking his leash and breaking through a hole in the fence, are all indicia of vicious propensities (see, Hodgson-Romain v. Hunter, 72 AD 3d 741 (2d Dept.); Lina Thai Wong v. Largana, 170 AD 3d 700 (2d Dept.)). see also, Shuffian v. Garafola, 9 AD 2d 910 (2d Dept)). In particular, circumstances showing that the owner found it necessary to keep the dog tied up, and took precautions to restrain it, are further evidence of knowledge of the dog’s propensities (Lagoda v. Dorr, 28 AD 2d 208, 210, citing Brice v. Bauer 108 NY 428, 432, and Hahnke v. Friederich, 140 NY 224).

Although Defendant denied knowledge of the dog’s vicious propensities, asserting that there have been no prior incidents involving the dog, no prior complaints, and no growling, the evidence adduced convinces this Court that a jury may find that Defendants knew or should have known about it. Also, the parties provided conflicting testimony as to the nature of the contact between Plaintiff and the dog on the day in question (see, e.g. Lina Thai Wong v. Largana, supra.)

It must be remembered that the Court’s role in considering summary judgment motions is issue-finding, not issue-determination (Lui v. Park Ridge at Terryville Ass’n Inc., 196 AD 2d 579 (2d Dept.), and that the Court should not determine issues of credibility (Id.).

For these reasons, both the motion and cross-motion (Seq. 001, 002) are denied."