ALTERNATIVE DISPUTE RESOLUTION SERVICES AVAILABLE

 

THE CASE IS SETTLED - NOW WHAT?

This is more of interest to pro se defendants: pro se:  Latin:  "On one's own behalf."  A person who represents him or herself without an attorney.

You are being sued for money damages based upon breach of contract,  etc. and you and the plaintiff's lawyer have reached a settlement. The plaintiff's lawyer drafts a stipulation of settlement as per CPLR 3217 (usually with the settlement figure) and you sign it. 

But note:

1. CPLR 3217 (c) "Effect of discontinuance.  Unless otherwise stated in the notice, stipulation or order of discontinuance, the discontinuance is without prejudice...."  So to pro se defendants, make sure "with prejudice" is added which means the action cannot be brought back into the suit in the future or the party cannot file a new claim against you arising out of the same controversy or transaction.  A case dismissed without prejudice means it's not dismissed forever.

2. CPLR 3217 (d) "All notices, stipulations, or certificates pursuant to this rule shall be filed with the county clerk by the defendant." So to pro se defendants, make sure you get a duplicate original that you file with the clerk: do not rely on assurances that someone else will file it. If it is not filed, the court does not know the case is over and will still be an open matter on record. And see also CPLR 2104: "An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered.  With respect to stipulations of settlement and notwithstanding the form of the stipulation of settlement, the terms of such stipulation shall be filed by the defendant with the county clerk.

LANDLORD AND TENANT - AN EXCEPTION TO 14 DAY RULE ON SECURITY DEPOSIT RETURNS?

Here the "return" was in 17 days.

Elena v. Milo Mgmt. LLC, NYLJ April 22, 2021, Date filed: 2021-03-18, Court: City Court, Westchester,   Judge: Judge Karen Best, Case Number: SC-0002-21:

"On March 10, 2021, this court conducted a full trial on all issues pertaining to the complaint in this action. The Court listened to testimony, and considered other evidence presented by both parties hereto. The plaintiff testified that the defendant failed to return the full amount of her security deposit after she moved out of 70 Parkway North Apt. 4C Yonkers, NY 10704. In November 2020, the plaintiff’s one-year lease ended. Adhering to the lease agreement, at the end of November, 2020, the plaintiff moved out. However, the defendant failed to return $1,090.00 from her security deposit.

The defendant testified that on November 9, 2020, the plaintiff left the apartment unattended with the stove on. Hours later, smoke was emanating from her apartment into the hallway of her portion of the building. The plaintiff testified she forgot a pot on the stove, and she left her apartment to go to work. The defendant then testified that the plaintiff was contacted in order to gain access to the apartment because she did not provide the building superintendent with a spare key. The plaintiff was unable to immediately return to the building, thus the Yonkers Fire Department was called, and upon their arrival firemen broke the plaintiff’s door to gain access into the apartment.

The defendant testified that after the fire the plaintiff was provided with a temporary door until a custom door could be measured and installed. The plaintiff then vacated the apartment at the end of the month. On December 1, 2020, the plaintiff surrendered the keys to the apartment. Once the defendant vacated the premises, they proceeded with the process of obtaining the customized door. Additionally, the defendant testified that on December 18, 2020, management sent the plaintiff a letter stating they were withholding a portion of her security deposit for the cost of the customized door for her apartment.

Decision

After hearing all the credible evidence, this Court finds that even though the defendant failed to satisfy the sufficient notice requirement under General Obligations Law §7-108(1-a) (e), the plaintiff is not entitled to a judgment against the defendant due to extraordinary circumstances caused by her own negligence.

Normally, the court would strictly interpret General Obligations Law §7-108(1-a) (e) , which requires a landlord to provide the tenant with an itemized statement indicating the basis for retaining their security deposit within fourteen days after a tenant has vacated the premises. If a landlord fails to provide the tenant with the statement within fourteen days, the landlord forfeits the right to retain any portion of the deposit. However, this court must conduct hearings upon small claims in such a manner as to do substantial justice between the parties according to substantive law. NY CLS UCCA §1804

The Court has previously found that the Legislature’s intent in adopting New York General Obligations Law §7-108 (1-a) (d) and (e), specifically wanted tenants to know if the landlord believed the rented property was damaged, whether the cost of those damages would be deducted from the security deposit, and for the landlord to give the tenant an opportunity to fix or repair the alleged damages. Diaz v. Cunningham, 68 Misc. 3d 319, 123 N.Y.S.3d 807, 327 (Middletown City Ct. 2020). In the absence of such opportunity to cure, and in the absence of a written, itemized statement from the landlord to the tenant showing what amount, if any, would be deducted from the security deposit and why, that section of the General Obligations Law generally would require a landlord to return the security deposit to the tenant. Id.

In this case, the issue of property damage is undisputed. Both parties agree the plaintiff’s mistake caused an emergency which required the Yonkers Fire Department to break the apartment door, and the emergency occurred less than a month before she vacated the premises. Although the defendant took seventeen days after the plaintiff surrendered the key to management to send the plaintiff a statement with an explanation of why a portion of her security deposit was being retained, the replacement of the apartment door, the Court finds that the defendant did provide creditable testimony and evidence explaining the reason for the delay. The defendant submitted an itemized receipt showing the building purchased a custom door from a fire door company, and a receipt for expenses related to temporarily reattaching the old door and the installation of the new door. (Exhibit D).

Under the circumstances presented to the Court, the testimony and the evidence, the Court finds there is sufficient evidence to find in favor of the defendant."

PARTITION: WHEN "CO-HOUSING" GOES SOUR

They bought a house together as tenants in common. One party owned 1/3, the other 2/3 and after they closed, they divided the home into 2 units...but disputes began regarding the common areas. 

XING NG v. NG, 2021 NY Slip Op 31289 - Kings Co. Supreme Court 2021:

"It is well-settled that one who holds an interest in real property as a tenant in common may maintain an action for the partition of the property and for a sale, if it appears that a partition alone would greatly prejudice the owners of the premises. See Real Property Actions and Proceedings Law (hereinafter RPAPL) § 901(1); see also Tsoukas v Tsoukas, 107 AD3d 879 (2d Dept 2013); Donlon v Diamico, 33 AD3d 841 (2d Dept 2006). However, before a partition or sale may be directed, a determination must be made as to the rights, shares or interests of the parties and where a sale is demanded, whether the property or any part thereof is so circumstanced that a partition cannot be made without great prejudice to the owners. See RPAPL § 915. Such determinations must be included in the interlocutory judgment contemplated by RPAPL § 915 along with either a direction to sell at public auction or a direction to physically partition the premises. See RPAPL § 911; § 915; Hales v Ross, 89 AD3d 1261 (2d Dept 2011); see also Lauriello v Gallotta, 70 AD3d 1009 (2d Dept 2010).

Determinations of the rights and shares of the parties must be made by declaration of the court directly or after a reference to take proof and report. See RPAPL § 911; § 907; see also Mary George, D.M.D. & Ralph Epstein, D.D.S., P.C. v J. William, 113 AD2d 869 (2d Dept 1985). Moreover, because of the equitable nature of a partition action, an accounting by and between the parties is necessary, and should be done as a matter of right before entry of an interlocutory or final judgment, and before any division of funds between the parties is adjudicated. See Donlon v Diamico, 33 AD3d 841. The Court has the authority to adjudicate the rights of the parties "so each receives his or her proper share of the property and its benefits." See Brady v Varrone, 65 AD3d 600, 602 (2d Dept 2009).

Here, the plaintiffs have demonstrated their entitlement to maintain this action for partition by providing a certified copy of the deed indicating that the plaintiffs hold an undivided one-third interest in the property, and that the defendant holds an undivided two-thirds interest in the property as tenants in common, which is not disputed by the defendant. The defendant has failed to raise a triable issue of fact that a physical partition of the property can be accomplished without great prejudice to the owners. The unsworn and uncertified construction invoice submitted by the defendant which ostensibly provides an estimate of the cost of physically partitioning the premises to permit the plaintiffs access to the common areas, is insufficient to support a showing that partitioning is possible or even plausible. In light of the foregoing, the plaintiffs' motion seeking partition and sale of the property is granted.

The plaintiffs have also established their entitlement to dismissal of the defendant's first counterclaim seeking a declaratory judgment permitting her exclusive use and enjoyment of the first and second floor of the premises, including the backyard, basement, first floor backroom and storage area; that the plaintiffs have no legal entitlement to partition and sale of the property; and that the plaintiffs are not entitled to an accounting from the defendant. A tenancy in common represents a form of ownership which provides for the "right of each cotenant to use and enjoy the entire property as would a sole owner. This undivided interest is a right enjoyed by all the cotenants whether or not they are in actual possession of the premises." See Butler v Rafferty, 100 NY2d 265, 269 (2003). Therefore, the plaintiffs and the defendant each have the right to use and enjoy all parts of the premises, and contrary to the defendant's assertions, she is not entitled to exclusive use and occupancy of specific sections of the property. Moreover, the defendant has failed to demonstrate that there was a binding agreement between the parties concerning her right to exclusive use and occupancy of those particular areas of the premises. The alleged oral agreement falls within the purview of the Statute of Frauds, which holds that "[a]n oral agreement to convey an estate or interest in real property ... is nugatory and unenforceable," and "[a] party to the agreement may legally and rightfully refuse to recognize or perform it." See Pattelli v Bell, 187 Misc.2d 275, 278, 2001 NY Slip Op 21098 (Sup Ct, Richmond County 2001), quoting Woolley v Stewart, 222 NY 347, 350-351 (1918) (internal quotation marks omitted).

As to the defendant's cross-motion, she has not tendered admissible evidence establishing her entitlement to summary judgment on her second and third counterclaims which seek damages based on the plaintiffs' alleged failure to pay for the expenses, utilities, mortgage, insurance and taxes on the property. As such, that prong of the defendant's cross motion is denied. However, the defendant's motion seeking an accounting is granted, as it is a necessary requisite to a partition of sale. See Donlon v Diamico, 33 AD3d 841.

Finally, the defendant's request for dismissal of the plaintiffs' second, third, fifth, seventh and eighth causes of action based on CPLR § 3212(b) is denied. Section 3212(b) provides, in pertinent part, that "[e]xcept as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." The plaintiffs' second, third, fifth, seventh and eighth causes of action involve allegations that the defendant prevented the plaintiffs from use and occupancy of the entire premises; that the defendant ejected the plaintiffs in a "forcible and unlawful manner"; that the defendant destroyed and demolished areas of the premises; that the defendant has improperly exercised exclusive use and occupancy of the common areas of the premises; and that the defendant deliberately inflicted harm upon the plaintiffs. In the case at bar, the defendant has failed to submit admissible evidence, other than her own conclusory affidavit, demonstrating her entitlement to summary judgment as a matter of law that no genuine issue of fact exists concerning these causes of action. See Zuckerman v City of New York, 49 NY2d 557 (1980)."

THE COURT OF APPEALS AND RPAPL 1306

CIT BANK NA v. Schiffman, 2021 NY Slip Op 1933 - NY: Court of Appeals March 30, 2021:

"The second certified question asks whether RPAPL 1306 requires that a lender's filing include information about all borrowers on a multi-borrower loan. RPAPL 1306 provides that as a "condition precedent" to commencing a foreclosure action, "[e]ach lender, assignee or mortgage loan servicer" file with the superintendent of financial services "within three business days of the mailing of the [section 1304 notice] . . . the information required by subdivision two" (RPAPL 1306[1]). Subdivision two directs, in relevant part, that "[e]ach filing . . . shall be on such form as the superintendent shall prescribe and shall include at a minimum, the name, address, last known telephone number of the borrower, and the amount claimed as due and owing on the mortgage . . .." (RPAPL 1306[2]). In this case, defendants do not dispute that CIT submitted the electronic filing—nor do they dispute that it was made within three days of the purported date of the mailing of the 90-day notices. Instead, defendants contend that the copy of the filing statement supplied by CIT was insufficient to establish compliance because it listed only Pamela Schiffman, and not Jerry Schiffman, as a borrower—arguing that the statute requires a lender to include "up to two, not only one" borrower on a multi-borrower loan. CIT asserts that only one borrower must be listed on an RPAPL 1306 filing in light of the plain language of the statute, which refers to "the borrower" in singular form, and the statute's primary purpose to provide data on defaulting loans to a state agency, which is satisfied by listing one borrower on the filing. We agree with CIT.

Whether the statute requires the lender to list the names of each individual or entity liable on a loan is a matter of statutory interpretation. "[O]ur primary consideration is to ascertain and give effect to the intention of the [l]egislature" (Samiento v World Yacht Inc., 10 NY3d 70, 77-78 [2008], quoting Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]). Because "the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself" (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]), with due consideration given to the statutory purpose and history, including the objectives the legislature sought to achieve through its enactment (see Abood v Hospital Ambulance Serv., 30 NY2d 295, 298 [1972]; Matter of Hernandez v Barrios-Paoli, 93 NY2d 781, 786, 788-789 [1999]; Riley v County of Broome, 95 NY2d 455, 463-464 [2000]).

Although the statute does not specify whether information must be supplied concerning each party when there are multiple individuals or entities on a single loan, a plain reading indicates that RPAPL 1306 is satisfied as long as one borrower is listed. The statute states that the filing must contain information about "the borrower," referring to the party in singular form—unlike RPAPL 1304, which references the "borrower, or borrowers." To be sure, words in the singular may generally be interpreted to encompass the plural, if doing so is consistent with the context and legislative intent (see General Construction Law § 35; Matter of Toys "R" Us v Silva, 89 NY2d 411, 421 n 2 [1996]). But it is significant that, despite using the singular and plural form in section 1304, the legislature chose to reference only the singular "borrower" in RPAPL 1306, a closely related statute.

Moreover, the conclusion that information relating to one borrower suffices is consistent with the primary purpose of the filing, which is expressed in the plain language of the statute. RPAPL 1306(4) provides that the data collected via the filing "shall be used by the superintendent [of financial services] exclusively for the purposes of monitoring on a statewide basis the extent of foreclosure filings within this state" with the ultimate purpose to "perform an analysis of loan types" at risk of foreclosure and to "direct[] as appropriate available public and private foreclosure prevention and counseling services to borrowers at risk of foreclosure" (RPAPL 1306[4] [emphasis added]). This provision shows that the principal objective of the filings is to provide statistical data permitting DFS to accurately track and analyze loans at risk of foreclosure and properly allocate foreclosure counseling resources statewide in order to combat the mortgage crisis—an aim also reflected in the legislative history (Governor's Program Bill, 2009 Mem, Bill Jacket, L 2009, ch 507 at 9, 11). This objective is fulfilled by a filing that references at least one borrower. Indeed, it appears that DFS—the agency charged with developing the filing form and database and otherwise implementing the statute—views RPAPL 1306 as requiring the listing of only one borrower (see Pre-foreclosure Information Form FAQs, NYS Department of Financial Services, available at https://www.dfs.ny.gov/apps_and_licensing/mortgage_companies/pre-foreclosure_filing_guide_faqs [last accessed Mar. 19, 2021] [RPAPL 1306 "does not specifically anticipate multiple borrowers" and "do(es) not believe RPAPL § 1306 should be interpreted as requiring the reporting of more than two Borrowers"]).

To be sure, the statutory text permits the agency to share information from the filing with certain housing counseling agencies that coordinate help for distressed borrowers, and DFS may use the information "to facilitate a review of whether the borrower might benefit from counseling or other foreclosure prevention services" (RPAPL 1306[2], [4]). But such ancillary uses of the data do not compel the conclusion that the statute is violated if each liable individual is not listed on the filing. In most instances, an electronic filing containing one borrower's information would not impede these downstream uses of the data. Indeed, in many cases the inclusion of additional information about a second borrower would be redundant—as reflected here, where the borrowers are married, reside at the subject property together, and their interests are aligned (as is evident from their joint representation by the same counsel). To read the statute as defendants urge would give an overly specific interpretation to "borrower," unsupported by the language of the statute or the primary legislative objective—to provide DFS with statewide data on properties at risk of foreclosure through a filing containing information about the loan and the "borrower." Thus, a filing that includes information about only one borrower is sufficient under the statute."

THE CONCURRING OPINION OF THE COURT OF APPEALS AND REBUTTING PRESUMPTION OF OFFICE MAILING BUSINESS PRACTICE - RPAPL 1304

 

CIT BANK NA v. Schiffman, 2021 NY Slip Op 1933 - NY: Court of Appeals March 30, 2021:

"FAHEY, J. (concurring):

The Second Circuit has certified to us a question regarding the showing required to rebut the presumption of receipt created by proof of a standard office mailing procedure (see 948 F3d 529, 538 [2d Cir 2020]). As the majority notes (majority op at 4 n), the Second Circuit has not asked this Court about the nature or quantum of proof sufficient to create the presumption in the first place. Nevertheless, the Second Circuit has invited us to "address any other issues of New York law that would assist [the Second Circuit] in determining whether CIT demonstrated compliance" with the RPAPL statutes at issue in this case (948 F3d at 538). Inasmuch as the proof necessary to rebut a presumption can be fully considered only in conjunction with the threshold issue of what proof gives rise to the presumption in the first instance, and because the presumption of mailing and receipt is an issue that arises in many areas of the law, I write separately to briefly address New York law on that threshold issue.

As the majority states, where a party seeks to establish receipt of a document through proof of a standard office mailing procedure rather than proof of actual mailing, the proponent must provide evidence of its routine office practice with respect to the "creation, addressing, and mailing of documents of that nature" (majority op at 6). If the proponent demonstrates "an established and regularly followed office procedure designed to insure that [documents] are properly addressed and mailed, a rebuttable presumption arises that the [documents] are received" (Matter of Gonzalez [Ross], 47 NY2d 922, 923 [1979], citing Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830 [1978]). We allow proof of a standard office procedure to substitute for proof of actual mailing for practical reasons, based on the assumption that "a person who regularly follows a strict routine in relation to a particular repetitive practice is likely to have followed that same strict routine at a specific date or time relevant to the litigation" (Galetta v Galetta, 21 NY3d 186, 198 [2013]; see Gardam & Son v Batterson, 198 NY 175, 178-180 [1910]). Upon adequate proof of mailing, the presumption of receipt, in turn, is "founded on the probability that the officers of the government will do their duty; and the usual course of business" (News Syndicate Co. v Gatti Paper Stock Corp., 256 NY 211, 214 [1931] [internal quotation marks omitted]).

For the presumption to arise, the standard office procedure "must be geared so as to ensure the likelihood that [the document] is always properly addressed and mailed" (Nassau Ins. Co., 46 NY2d at 830). The proof of that standard procedure generally should include a description of "the practices utilized by the [mailing party] at the time of the alleged mailing to ensure the accuracy of addresses, as well as office procedures relating to the delivery of mail to the post office" (Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169, 1170 [2014]).

In Gardam & Son, for example, this Court held that the proof of a standard office mailing procedure was deficient because, although the defendant testified that he always placed outgoing letters in a tray on his desk to be mailed, there was "no sufficient proof of a course of office practice, or of business, from which a presumption might be legally indulged, that the letters had been carried to the post office and that they, therefore, had been received in due course of the mails" (198 NY at 178). We held that

"[h]owever strong the convictions and the statements of the defendant as to the usual mailing of the letters placed on his desk, there was the gap in the proof, created by the failure to show that regular practice, or custom, of carrying them to the post, by some one charged with that duty, from which a presumption would naturally arise of these letters having been posted" (id. at 180; see also Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051-1052 [2d Dept 2015]; Rhulen Agency v Gramercy Brokerage, 106 AD2d 725, 726 [3d Dept 1984]).

By contrast, in Preferred Mut. Ins. Co., the proof was sufficient to raise a presumption of mailing and receipt where an affidavit described how the notices in question were generated, addressed, and placed in envelopes; how those envelopes were transported to the mail room, posted and sealed; and then how the mail was regularly delivered to the nearby post office (22 NY3d at 1170, affg 111 AD3d 1242, 1244 [4th Dept 2013]; see also Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 230 [1st Dept 2004]; Jonathan Woodner Co. v Higgins, 179 AD2d 444, 445 [1st Dept 1992], lv denied 80 NY2d 756 [1992]).

Once the presumption arises, I agree with the majority that to rebut the presumption, the alleged recipient must deny receipt and point to a deviation from an aspect of the stated office procedure that would call into doubt whether the notice was properly prepared, addressed, or mailed (see majority op at 7-9).^[2] I further agree that minor, insignificant deviations from the stated procedure will not be sufficient to rebut the presumption, although what constitutes a minor deviation will depend upon the stated office practice described by the proponent (see id.). Of course, it would be in the proponent's interest in such situations to explain the reason for any deviation from the standard office practice in order to diminish doubt as to the reliability of the mailing and minimize the likelihood that a court will consider the deviation sufficient to rebut the presumption.

I am in full agreement with the majority's response to the Second Circuit's certified question regarding RPAPL 1306.

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.27 of this Court's Rules of Practice, and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified questions answered in accordance with the opinion herein. Opinion by Chief Judge DiFiore. Judges Rivera, Stein, Garcia and Wilson concur. Judge Fahey concurs in an opinion, in which Judges Stein and Wilson concur.

[1] The Second Circuit has not requested guidance concerning whether CIT's submissions created a presumption—a matter the Second Circuit addressed and resolved in CIT's favor, rejecting defendants' arguments to the contrary (CIT Bank N.A., 948 F 3d at 534).

[2] Alternatively, a recipient may rebut the presumption by denying receipt and showing that the routine office practice "was so careless that it would be unreasonable to assume that the notice was mailed" (Nassau Ins. Co., 46 NY2d at 830). Defendants did not make such a claim here."

THE COURT OF APPEALS AND REBUTTING PRESUMPTION OF OFFICE MAILING BUSINESS PRACTICE - RPAPL 1304

CIT BANK NA v. Schiffman, 2021 NY Slip Op 1933 - NY: Court of Appeals March 30, 2021:

"We begin with the first question concerning the showing necessary to rebut the presumption created by proof of a standard office mailing procedure in the section 1304 context. RPAPL 1304(1) provides that "with regard to a home loan, at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, or borrowers . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." The notice must be sent "by registered or certified mail and also by first-class mail" and contain a list of at least five local housing counseling agencies, among other requirements (RPAPL 1304[2]). "Notice is considered given as of the date it is mailed" (id.).

The legislature enacted RPAPL 1304 in 2008 in response to the mortgage crisis, initially making it applicable only to lenders of certain "high-cost," "subprime" and "non-traditional" home loans (L 2008, ch 472, § 2). The scope of the statute was expanded the following year to cover all home loans (L 2009, ch 507, § 1-a; see RPAPL 1304[1], [6][a][1]). This had the effect of increasing the number of borrowers who would benefit from the information provided in the notice and the 90-day period during which the parties could attempt to work out the default "without imminent threat of a foreclosure action," in an effort to further the ultimate goal of reducing the number of foreclosures (Governor's Program Bill, 2009 Mem, Bill Jacket, L 2009, ch 507 at 10).

RPAPL 1304 does not indicate what proof a lender must submit in a foreclosure action to demonstrate compliance with the notice requirement. However, in analogous circumstances, this Court has long recognized a party can establish that a notice or other document was sent through evidence of actual mailing (e.g., an affidavit of mailing or service) (see Engel v Lichterman, 62 NY2d 943, 944 [1984]) or—as relevant here—by proof of a sender's routine business practice with respect to the creation, addressing, and mailing of documents of that nature. Evidence of "an established and regularly followed office procedure" (Matter of Gonzalez (Ross), 47 NY2d 922, 923 [1979]) may give rise to a rebuttable "presumption that such a notification was mailed to and received by [the intended recipient]" (Preferred Mut. Ins. Co. v Donnelly, 22 NY3d 1169, 1170 [2014]; see also Nassau Ins. Co. v Murray, 46 NY2d 828, 829 [1978]). "In order for the presumption to arise, [the] office practice must be geared so as to ensure the likelihood that [the] notice . . . is always properly addressed and mailed" (Nassau Ins. Co., 46 NY2d at 830). Such proof need not be supplied by the employee charged with mailing the document (see Bossuk v Steinberg, 58 NY2d 916, 919 [1983]) but can be offered in the form of an affidavit of an employee with "personal knowledge of the practices utilized by the [company] at the time of the alleged mailing" (Preferred Mut. Ins. Co., 22 NY3d at 1170; see also Nassau Ins. Co., 46 NY2d 828). For example, in Preferred Mut. Ins. Co., we deemed an affidavit describing the procedures used by an insurance company "to ensure the accuracy of addresses, as well as office procedure relating to the delivery of mail to the post office" sufficient to support the presumption, where the affidavit explained, among other things, how the notices and envelopes were generated, posted and sealed, as well as how the mail was transmitted to the postal service (22 NY3d at 1170, affg 111 AD3d 1242, 1244 [4th Dept 2013]).

The particular issue before us here is what showing a borrower must make to rebut the presumption created through proof of a standard office mailing procedure in the context of RPAPL 1304 notices. In this Court, defendants essentially argue that a lender's showing of compliance with section 1304 through an affidavit of a routine office mailing procedure can be rebutted by the borrower's denial of receipt, accompanied by a showing that any aspect of the routine office procedure was not followed. CIT does not disagree that a denial of receipt and a showing of noncompliance can raise a fact issue but contends that this is true only if the deviation from procedure is material and related to the mailing process in a manner that would affect whether the document was mailed to the appropriate party.

It is well-settled that "[d]enial of receipt . . . standing alone, is insufficient . . .. In addition to a claim of no receipt, there must be a showing that [the] routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed" (Nassau Ins. Co., 46 NY2d at 829-830). While we set forth these general principles in Nassau Ins. Co., we did not elaborate upon the nature or extent of the departure from stated office routine necessary to rebut the presumption. Asked by the Second Circuit for further guidance on that issue, we clarify that to rebut the presumption, there must be proof of a material deviation from an aspect of the office procedure that would call into doubt whether the notice was properly mailed, impacting the likelihood of delivery to the intended recipient. Put another way, the crux of the inquiry is whether the evidence of a defect casts doubt on the reliability of a key aspect of the process such that the inference that the notice was properly prepared and mailed is significantly undermined. Minor deviations of little consequence are insufficient.

What is necessary to rebut the presumption that a RPAPL 1304 notice was mailed will depend, in part, on the nature of the practices detailed in the affidavit. Moreover, contextual considerations may also factor into the analysis. For example, here, CIT points out that residential notes and mortgages are negotiable instruments that often change hands at various points during their duration, which may impact the timing of the creation and mailing of RPAPL 1304 notices—a contextual factor a court could consider in assessing whether a purported deviation from routine procedure was material. We reject defendants' argument that a single deviation from any aspect of the routine office procedure necessarily rebuts the presumption of mailing. Such a standard would undermine the purpose of the presumption because, in practice, it would require entities to retain actual proof of mailing for every document that could be potentially relevant in a future lawsuit. As we recognized almost a century ago, such an approach would be financially and logistically impractical given the reality that commercial entities create and process significant volumes of mail and may experience frequent employee turnover—circumstances that apply not only to banks, but many other businesses and government agencies (see generally Johnson v Lutz, 253 NY 124, 126-127 [1930] [addressing adoption of the business records rule]). Instead, New York courts have applied a workable rule that balances the practical considerations underpinning the presumption against the need to ensure the reliability of a routine office practice with respect to the creation and mailing of notices, which we have further clarified today in the context of notices mailed pursuant to section 1304.

The Second Circuit has not asked us to address how the standard should be applied in this case and we therefore express no view on that question (see e.g. Engel v CBS, Inc., 93 NY2d 195, 207 [1999])."

ARE NUISANCE TENANTS MORE OBJECTIONABLE IF IT IS LUXURY HOUSING?

Imagine this: you live in an apartment building in NYC and there is a tenant on a floor who refuses to wear a mask all the time, has a barking/accident prone dog who is sometimes unleashed in the building and maybe smokes pot (the tenant not the dog). Many would call this a typically NYC day in a typical NYC dwelling but to luxury housing, with a moratorium on evictions and where sale units go for over $2 million, supreme court is the option for breach of contract action for injunctive relief but not ejectment, and the building owner may get an injunction, especially when the tenant fails to appear (in this case it appears that the tenant is rent stabilized).

19 INDIA FEE OWNER LLC v. Miller, 2021 NY Slip Op 30816 - Kings Co. Supreme Court March 11, 2021:

"Plaintiff, 19 INDIA FEE OWNER LLC ("plaintiff"), commenced this matter by the filing of a Summons and Verified Complaint on February 16, 2021, with the instant emergency Order to Show Cause for injunctive relief and a temporary restraining order pursuant to CPLR §§ 6301, 6311 and 6313(a). Defendant, Terrell Miller ("defendant"), submitted no written opposition and failed to appear for oral argument, held on March 3, 2021, via Microsoft Teams.

Plaintiff is the owner of the building located at 21 India Street, Brooklyn, New York 11222 ("building"), wherein defendant is a tenant pursuant to a one-year lease agreement. Plaintiff seeks injunctive relief and a temporary restraining order against the defendant, based upon its contention that the defendant's conduct is offensive, objectionable, and a nuisance, which has created health-related and safety risks affecting other occupants of the building. Specifically, plaintiff alleges that the defendant (1) refuses to wear a mask over his nose and mouth or socially distance in common areas and the gym; (2) allows his dog to run "off leash;" and (3) regularly causes marijuana smoke to emanate from his apartment. Plaintiff asserts that the defendant's actions contravene paragraphs 11(A), 11(B), and 12 of the Lease, Paragraph 9 of the Rules to the Lease, as well as the Gym Rules and Non-Smoking Riders (referred collectively as "lease agreements"). Plaintiff annexed copies of the lease agreements, multiple photos showing COVID-19-related signs posted throughout common areas, and affidavits from staff members and the tenant who resides in the apartment directly beneath the defendant.

Andre Clanagan ("Mr. Clanagan"), the. Senior Community Manager of the building since August 2020, states, in his affidavit, that the defendant is consistently observed in common areas, including the gym, without a mask covering his nose and mouth despite signage related to COVID-19 safety precautions that is posted throughout the building. Mr. Clanagan further states that he has received multiple complaints about the defendant's large dog, which the defendant allows to roam about the premises without a leash. According to Mr. Clanagan, other tenants have also complained about the marijuana smoke emanating from the defendant's apartment into the tenth and eleventh floor hallway area. Mr. Clanagan explains that the defendant's conduct is the mainspring for requests from several of the residents for early termination of their leases.

The maintenance manager, Francisco Cedano ("Mr. Cedano"), attests to many of the same issues in his affidavit. Additionally, Mr. Cedano recounts a day in January 2021, when one of the tenants reported a gas smell in the building. Mr. Cedano states that the New York City Fire Department identified no issues but that the defendant later disclosed, to a National Grid representative, that he left his stove burner on for hours while smoking marijuana.

In his affidavit, Michael Ramos ("Mr. Ramos"), who provides Concierge service at the building, confirms receiving complaints about the defendant's conduct from other tenants in the building. Mr. Ramos states that he has also observed such conduct via the surveillance system, specifially, the defendant playing basketball in the gym without a mask.

Melissa Hougland ("Ms. Hougland"), who resides in the apartment directly beneath the defendant, in her affidavit, recounts multiple incidents, between September 2020 and December 2020. Ms. Hougland states that the defendant discharges saliva over his terrace when working out. According to Ms. Hougland, the saliva is carried onto her terrace by the wind. Ms. Hougland also alleges that the defendant's dog barks incessantly, urinates and defecates on his terrace, Ms. Hougland states that the dog's excrement leaks onto her terrace. Further, Ms. Hougland avers that she has smelled marijuana smoke coming from the defendant's apartment through the vent canals that run through her and the defendant's bathrooms. According to. Ms. Houghland, these issues have rendered her terrace unusable and the apartment uninhabitable.

The purpose of a preliminary injunction is to maintain the status quo and not to determine the ultimate rights of the parties (Matter of Weaton/TMW Fourth Ave., LP v New York City Dept. of Bldgs., 65 AD3d 1051, 1052 [2d Dept 2009]). The moving party is required to demonstrate a likelihood of success on the merits, irreparable injury absent a preliminary injunction, and a balancing of the equities in its favor (see CPLR § 6301; Cong. Mchon Chan v Machon Chana Women's Inst., Inc., 162 AD3d 635, 637 [2d Dept 2018]). "The decision to grant a preliminary injunction is a matter ordinarily committed to the sound discretion of the court hearing the motion" (Nelson v Jannace, 248 AD2d 448 [2d Dept 1998]).

Here, plaintiff submitted sufficient evidence to demonstrate that it has a likelihood of success on the merits of its claim for a judgment declaring that the defendant has breached provisions of the lease agreements. As summarized above, there are multiple accounts from individuals with personal knowledge of the defendant's refusal to wear a mask in common areas, allowing his dog to roam without a leash, and smoking. The wearing of a mask or face covering is required under Section 66-3.2(a) of Title 10 of the New York City Rules and Regulations law, and, under Section 11(A) of the Lease. The defendant, upon signing the lease documents, agreed to comply with all present and future city, state and federal laws and regulations. Additionally, as provided in the supplemental Rules documents and Riders to the lease, the defendant agreed that he would obey gym usage rules, leash his dog, and not smoke in the building, including in his apartment.

The irreparable injury component is self-explanatory under the circumstances of this case. Plaintiff, as landlord and owner of the building, is contractually and statutorily obligated to provide habitable housing not only to the defendant, but each resident in the building. Moreover, the defendant's conduct, which involves allowing his dog to roam off-leash and his alleged refusal to comply with. COVID-19 safety measures, poses an imminent threat to the safety and well being of individuals in or about the premises.

Furthermore, the court finds that a balancing of the equities militate in favor of enjoining the defendant from violating the lease agreements and Section 66-3.2(A) of Title 10 of the New York City Rules and Regulations law. The risk of irreparable injury to the plaintiff, as landlord and owner of the building, staff, tenants and visitors on the subject property, outweigh the imposition of an injunction and temporary restraining order that merely requires the defendant to comply with his contractual obligations.

Based upon the foregoing, the instant application is granted, on default, to the extent provided herein, that a temporary restraining order is granted in favor of plaintiff, 19 India Fee Owner LLC, and against defendant, Terrell Miller."

HOW TO VIRTUALLY DRESS FOR COURT

 

Courts are beginning to open soon but still, this is last mon th's reminder

MORTGAGE FORECLOSURE CLINIC TODAY

Nassau County residents who are struggling with mortgage foreclosure issues are invited to attend FREE, socially distant Mortgage Foreclosure Clinics at the Nassau County Bar Association (NCBA) in Mineola where they can meet with a volunteer attorney.

Residents may also request an attorney who speaks a different language if they wish.

Monday, April 19, 2021

3:00 PM to 5:30 PM

FACE MASKS/COVERINGS ARE REQUIRED.

**Attorneys will not provide free legal representation.

SPACE IS LIMITED. Registration is REQUIRED! Call (516) 747-4070 ext. 1308 to register now.

Other dates include:

Monday, May 24, 2021

Monday, June 14, 2021

CONSEQUENCE OF NOT SEEKING PROTECTIVE ORDER PROMPTLY

A delay in seeking justice can result in a denial of justice.

ALROSE STEINWAY, LLC v. JASPAN SCHLESINGER, LLP, 2021 NY Slip Op 30620 - NY Co: Supreme Court March 5, 2021:

"CPLR 3103 provides that "[t]he court may ... make a protective order denying, limiting, conditioning, or regulating the use of any disclosure device. Such order shall be designated to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts."

Here defendants fail to meet their burden of proving that the attorney-client privilege was not waived. Even assuming that the attorney-client privilege attached to the 2/9 Email, the privilege was waived by defendants' failure to wait until November 27, 2019 to file an OSC seeking a protective order, 10 months after learning of the alleged inadvertent disclosure.

It is the burden of "the proponent of the privilege to prove that the privilege was not waived." (New York Times Newspaper Div. of N.Y. Times Co. v Lehrer McGovern Bovis., 300 AD2d 169, 172 [1st Dept 2002] [citation omitted].) For instance, "[d]isclosure of a privileged document generally operates

as a waiver of the privilege unless it is shown that the client intended to maintain the confidentiality of the document, that reasonable steps were taken to prevent disclosure, that the party asserting the privilege acted promptly after discovering the disclosure to remedy the situation, and that the parties who received the documents will not suffer under prejudice if a protective order against use of the document is issued."

(Id. [citations omitted] [emphasis added].) Again, "assuming that such a privilege existed, it was waived by the defendants' lack of due diligence." (Koramblyum v Medvedovsky, 19 AD3d 651, 652 [2d Dept 2005] [citations omitted].) After plaintiff refused to return the 2/9 Email, defendants waited an unreasonable 10 months to take any action to remedy the situation. Even after this court expressly welcomed defendants to bring an OSC in March 2019, which they could have filed at any time after learning of the disclosure, still no action was taken to remedy the situation until November 2019. The lack of defendants' due diligence to remedy the disclosure of this document cannot be ignored, and thus, any existing privilege was waived."

STATUTE OF LIMITATIONS AND FORGED DEED

Plaintiffs commenced this action to quiet title to the property seeking to set aside a certain alleged fraudulent deed recorded against her property 18 years earlier.

Torres v. EQUITY HOLDINGS LLC, 2021 NY Slip Op 31031 - Kings Co. Supreme Court March 30, 2021:

"Equity's motion to dismiss the complaint as time-barred by the ten-year statute of limitations is denied, pursuant to the Court of Appeals' holding in Faison v Lewis (25 NY3d 220, 226 [2015]). In Faison, the Court of Appeals held that because the complaint alleged a forged deed, defendants could not rely on the statute of limitations as a defense:

"Given the clarity of our law that a forged deed is void ab initio, and that it is a document without legal capacity to have any effect on ownership rights, the question remains whether a claim challenging a conveyance or encumbrance of real property based on such deed is subject to a time bar. Our case law permits only one answer: a claim against a forged deed is not subject to a statute of limitations defense" (Faison, 25 NY3d at 226).

Contrary to Equity's contention, the allegations in plaintiffs' complaint must be considered true on a CPLR § 3211 motion to dismiss, even if those allegations are alleged "upon information and belief." Because the complaint sufficiently alleges that the 2002 Deed was a forgery, that plaintiffs did not sign the 2002 Deed and that they did not receive payment for the Property, plaintiffs' claims are not subject to a statute of limitations defense, as a matter of law.

Equity's motion to dismiss the complaint based on the doctrine of laches is denied, since the laches defense requires a showing of equitable estoppel, which is unavailable to a party with unclean hands (see Bunge Corp. v Manufacturers Hanover Trust Co., 31 NY2d 223, 228 [1972]; Kraker v Roll, 100 AD2d 424, 432 [1984]). At this early stage of the action, it is unclear if Equity was involved in an alleged forgery of the 2002 Deed, and thus, Equity's dismissal motion based on laches is denied as premature."

ON CONSUMER CONTRACTS THAT ARE AUTOMATICALLY RENEWED

New York has intended to protect consumers from forgetting about an automatic renewal clause. For certain agreements for service, maintenance or repair to or for any real or personal property, New York’s General Obligations Law § 5-903 requires a specific reminder notice before renewal.

Protections have now been extended to other consumer agreements with a new Article 29-BB of the General Business Law effective February 9, 2021. According to the legislative history (S1475A/A3173):

"An increasing number of consumers are struggling with misleading offers
known as automatic renewals of merchandise and services. In a typical
scenario, consumers believe they made a one-time purchase or signed up
to receive a free product. Consumers then continue to receive more
deliveries of the merchandise, while incurring additional charges to
their credit cards or bank accounts. Many consumers fail to notice the
agreements - generally hidden in the fine print of an order - that they
unknowingly commit to while shopping.

This legislation would require that businesses provide automatic renewal
or continuous service offer terms in a clear and conspicuous manner
before the subscription or purchasing agreement is fulfilled, and
provide consumers with a straightforward, no- or low-cost means of
cancellation. Companies are also prohibited from advertising products as
"free" if the item is only distributed as part of an automatic renewal
agreement.

New York consumers should not be lured by false and deceptive practices
- nor should it be their responsibility to comb through the fine print
of a sales offer to determine if they will be trapped in an automatic
renewal offer. This legislation will ensure that consumers are made
fully aware of the terms and conditions of any offer before they provide
credit or debit card information."

THE SURROGATE'S RIGHT TO COUNSEL

The Child-Parent Security Act (the CPSA) became effective on February 15, 2021 and can be found in Article 5-C of the Family Court Act. 

Section 581-402 of the CPSA, entitled "Eligibility to enter surrogacy agreement" provides at paragraph (a) (6) as follows:

"(6) the person acting as surrogate, and the spouse of the person acting as surrogate, if applicable, have been represented throughout the contractual process and the duration of the contract and its execution by independent legal counsel of their own choosing who is licensed to practice law in the state of New York which shall be paid for by the intended parent or parents except that a person acting as surrogate who is receiving no compensation may waive the right to have the intended parent or parents pay the fee for such legal counsel. Where the intended parent or parents are paying for the independent legal counsel of the person acting as surrogate, and the spouse of the person acting as surrogate, if applicable, a separate retainer agreement shall be prepared clearly stating that such legal counsel will only represent the person acting as surrogate and the spouse of the person acting as surrogate, if applicable, in all matters pertaining to the surrogacy agreement, that such legal counsel will not offer legal advice to any other parties to the surrogacy agreement, and that the attorney-client relationship lies with the person acting as surrogate and the spouse of the person acting as surrogate, if applicable;

A CONSEQUENCE OF FAILURE TO PAY CHILD SUPPORT

EPTL 4-1.4 provides: "a) No distributive share in the estate of a deceased child shall be allowed to a parent if the parent, while such child is under the age of twenty-one years: (1) has failed or refused to provide for the child ... whether or not such child dies before having attained the age of twenty-one years, unless the parental relationship and duties are subsequently resumed and continue until the death of the child."

MATTER OF LEE, 2021 NY Slip Op 30984 - NY: Surrogate's Court, New York March 31, 2021:

"This motion seeks summary judgment to disqualify pro se respondent Edward Caraballo as a distributee and estate beneficiary for failing to provide support for the parties' child, decedent Emma Mei Lee (see EPTL 4-1.4[a][1]).^[1] This matter arises under tragic circumstances, the child's having died at age 14 while at boarding school, as it is alleged, by the child's own hand. Petitioner Deanna Jane Lee, who was divorced from respondent in 2004 and who was the custodial parent, previously obtained Letters of Administration for decedent's estate. Caraballo did not appear or contest that appointment, but he has opposed the disqualification petition and the instant summary judgment motion. He does so on the ground that he was unable to pay more support than he did.

There is no doubt that a parent's ability to pay support is an essential consideration when that parent's disqualification is sought under EPTL 4-1.4(a)(1) (see Matter of Emiro, 5 Misc 3d 1002[A], at *6, 2004 NY Slip Op 51149[U] [Sur Ct, Westchester County 2004]). As a ground for disqualification, the failure to support must arise from an unwillingness, rather than an inability, to pay (see id., citing Matter of Zounek, 143 Misc 827 [Sur Ct, Queens County 1932]). On this issue, however, movant has established, sufficiently to satisfy her burden on summary judgment,^[2] that such issue was fully and fairly addressed in support hearings in Family Court (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980] [all setting forth the standards for summary judgment]; see also Matter of Arroyo, 273 AD2d 820 [4th Dept 2000]).

Movant has established facts requiring the application of the doctrine of res judicata based on this 2008 Family Court decision and order (see Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485 [1979]). This doctrine provides that a party's having had a full and fair opportunity to litigate a particular issue resulting in a final determination later precludes that party from having another court address and determine that same issue or those which should have been raised (id.).^[3]

Here, it is uncontroverted that, after a hearing on May 30, 2008, at which the same parties currently before this court had the opportunity to present their evidence and testify, a Family Court Support Magistrate issued a twenty-five-page decision, dated June 30, 2008, determining respondent's support obligations; this decision explicitly addressed respondent's ability to meet such obligations (Lee v Caraballo, No. 30-F-05973-06/07C; 30-F-05973-06/08E, June 30, 2008, Fam Ct, NY County, Sup. Magistrate Nicholas J. Palos). That decision, after reviewing the evidence, held that respondent had willfully failed to satisfy his support obligations and that no downward modification of those obligations was warranted. The decision fixed back child support payments due in the amount of $23,650 and implemented certain remedies on the basis of respondent's willful violation of his duty to support.

On her motion, petitioner further relies on statements from the Office of Child Support Enforcement, as of May 11, 2016, some two months after decedent's death in March 2016. The statements show a total amount of $74,294.49 in child support and interest due from respondent, and they further show payments of only $3,955 during the "relevant review period" (listed as April 25, 2011 to May 11, 2016), resulting in a total of child support arrears of $70,339.49.

EPTL 4-1.4 provides: "a) No distributive share in the estate of a deceased child shall be allowed to a parent if the parent, while such child is under the age of twenty-one years: (1) has failed or refused to provide for the child ... whether or not such child dies before having attained the age of twenty-one years, unless the parental relationship and duties are subsequently resumed and continue until the death of the child." Courts interpreting this statutory provision have found it appropriate to reference support obligations as determined under Family Court Act section 413 (also known as the Child Support Standards Act or CSSA) (Matter of Ball, 24 AD3d 1062 [3d Dept 2005]; Matter of Zakiya Kennedy, NYLJ, June 21, 2011, at 26, col 6 [Sur Ct, NY County]).

Such reference, however, is not conclusive of the disqualification issue here in that this EPTL section further requires the court to examine whether the parent resumed payment of support to the extent of his ability prior to the child's death (EPTL 4-1.4[a][1]; see Matter of Musczak, 196 Misc 364, 366 [Sur Ct, NY County 1949]). But, on this point, movant has also established entitlement to judgment as a matter of law by providing proof of only sporadic, partial payments by respondent, well below the established support obligation and below his means (see Matter of Wright, 271 AD2d 201 [1st Dept 2000]; Matter of Baecher, 198 AD2d 221 [2d Dept 1993]; Matter of Zakiya Kennedy, NYLJ, June 21, 2011, at 26, col 6, supra).

In opposition, respondent seeks primarily to reargue and have this court re-determine the issues decided in the prior decision of the Family Court. That effort is insufficient to raise a question of material fact on the proper amount of support and his ability to pay it (see Matter of O'Hara, 85 AD2d 669, 671 [2d Dept 1981]).

Respondent's opposition focuses on three essential points: one, that the Family Court finding was incorrect, in view of his income or the lack thereof, and that he paid what he could during difficult economic times and after having spent several years in an Afghani prison (from which he was released in May of 2006), during which time he could not work or earn income; two, that petitioner waged a vigorous campaign of seeking to alienate him from decedent; and three, that the prior court was biased against him as a gay man, a fact that petitioner knew, he states, when they entered into a relationship that led to the birth of decedent.

As discussed above, respondent cannot have this court re-visit the issues as to the amount of support to be paid or his ability to pay the amounts as ordered, when he had a full and fair opportunity to litigate the issues in Family Court (see Pierce v Pierce, 291 AD2d 251 [1st Dept 2002]). Respondent provides nothing to demonstrate that the issues in Family Court were different from those which he asks this court to now determine again, nor that the standard of proof in this court varies materially from the standard applied in the prior action (see Ginezra Assoc. LLC v Ifantopoulos, 70 AD3d 427, 429 [1st Dept 2010]). Indeed, much of his opposition is directed solely to arguing that the Family Court's determination was incorrect. Such argument is insufficient to avoid application of collateral estoppel to prevent re-litigation of the same issues that were necessarily determined in Family Court (Casson v Casson, 107 AD2d 342, 344 [1st Dept 1985]).

This is not to say that the analysis of the applicability of res judicata, generally, lacks flexibility. Indeed, the court may examine a variety of non-exclusive factors to determine the preclusive effect, if any, of a prior judgment (see Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147, 153 [1988]; Schwartz v Public Adm'r of County of Bronx, 24 NY2d 65, 72 [1969]). A change in applicable law may serve as such a factor (John P. v Whalen, 54 NY2d 89 [1981]; Schwartz v Public Adm'r of Bronx County, 24 NY2d at 72; Restatement [Second] of Judgments, section 28[2]), and the court has taken note of a significant change in the law since the Family Court decision was issued.

In 2010, the legislature superseded the decision of the Court of Appeals in Knights v Knights, (71 NY2d 865 [1988]), by amending Family Court Act section 451(3)(a) to read in part: "Incarceration shall not be considered voluntary unemployment and shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of nonpayment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment" (see L 2010, ch 182, § 6). In its 2008 decision, Knights and its progeny had required the Family Court to hold that respondent's imprisonment in Afghanistan — for reasons wholly unrelated to the petitioner or decedent — provided no grounds on which to modify respondent's support obligations, despite the legislative policy expressed in the CSSA that support obligations were to be based on means and ability to pay and despite respondent's de facto inability to earn income while imprisoned.

The 2010 amendment of the Family Court Act (FCA), the courts have determined, should be applied prospectively only (Baltes v Smith, 111 AD3d 1072 [3d Dept 2013]). But at least as relevant for present purposes is the first subsection of Family Court Act 451. That subsection provides that support modifications can be made retroactively only to the date of filing of the petition to modify (FCA 451[1]; see Zaid S. v Yolanda N.A.A., 24 AD3d 118 [1st Dept 2005] ["Under Family Court Act § 451, the court has no discretion to cancel, reduce or otherwise modify child support arrears accrued prior to the making of an application for such relief."]; Schiffer v Schiffer, 16 AD3d 662 [2d Dept 2005]). Although respondent, prior to decedent's death, filed petitions to modify the 2008 support determinations, he never followed through, and they were dismissed. Consequently, this court has no ability to re-visit and modify the support arrears as determined by the Family Court in 2008, despite the intervening change of law. In other words, the change in the law regarding incarceration,^[4] in this instance, provides no basis for this court, constrained by FCA 451(1) and precedent determining that statute's applicability, to conclude that res judicata should not apply here.

Respondent's remaining arguments fare no better. The claim that the Family Court was biased against him based on his sexual orientation or that his support obligations should have been reduced in view of petitioner's alienation of decedent against him should have been raised in Family Court or in an appeal of that court's order, rather than first raised here to attack the validity of the 2008 determination (Berg v Berg, 166 AD3d 763, 765 [2d Dept 2018] [party claiming court bias should preserve an objection and move for the court to recuse itself]; Matter of Sullivan v Plotnick, 145 AD3d 1018, 1021 [2d Dept 2016] [parental alienation as basis to modify support cognizable in Family Court]; see John Street Leasehold v Brunjes, 234 AD2d 26, 26 [1st Dept 1996]). Consequently, these claims are precluded from being litigated here because they could have been raised incident to the prior determination (see Paramount Pictures Corp., 31 NY3d at 72).

Additionally, the cases determining that ability to pay must be resolved only after a hearing are distinguishable from this case in that, in those cases, there had been no prior adjudication of that issue (see Matter of Martirano, 172 AD3d 1610 [3d Dept 2019]; Eddy v Eddy, 175 AD3d 1726 [3d Dept 2019]). Finally, to the extent that respondent suggests that decedent was well taken care of because petitioner had adequate resources to do so, such a circumstance provides no defense against his support obligations (Matter of Brennan, 169 AD2d 1000 [3d Dept 1991]).

Accordingly, petitioner's motion for summary judgment is granted, and respondent Edward Caraballo is disqualified from taking an intestate share of decedent's estate pursuant to EPTL 4-1.4(a)(1).

This decision constitutes the order of the court.

[1] The record indicates that decedent may have been a gender non-conforming or transgender individual and also used or did use the name "Alex." The portion of EPTL 4-1.4(a)(1) which provides for disqualification on the ground of abandonment is not at issue in this proceeding, and no question is raised here regarding respondent's affection for his child or his desire to participate in his child's life.

[2] Although movant failed to provide all the pleadings, specifically respondent's answer, as required by CPLR 3212(b), on her motion, respondent did not oppose the motion on that basis, and he therefore is deemed to have waived the defect (Mew Equity, LLC v Sutton Land Services LLC, 144 AD3d 874 [2d Dept 2016]).

[3] As explained in Paramount Pictures Corp. v Allianz Risk Transfer AG (31 NY3d 64, 72 [2018]):

"The preclusive effect of a judgment is determined by two related but distinct concepts—issue preclusion and claim preclusion—which collectively comprise the doctrine of `res judicata'.... Issue preclusion, also known as collateral estoppel, bars the relitigation of `an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment' (New Hampshire v Maine, 532 US 742, 748-749 [2001]; see also Restatement [Second] of Judgments § 27).

"While issue preclusion applies only to issues actually litigated, claim preclusion (sometimes used interchangeably with `res judicata') more broadly bars the parties or their privies from relitigating issues that were or could have been raised in that action (Cromwell v County of Sac, 94 US 351, 352 [1877])"

Both issue preclusion and claim preclusion are at issue here.

[4] Parental support obligations during imprisonment have been the subject of much analysis. See, e.g., Daniel L. Hatcher, Forgotten Fathers, 93 BUL Rev 897 (2013); Tonya L. Brito, Fathers Behind Bars: Rethinking Child Support Policy Toward Low-Income Noncustodial Fathers and Their Families, 15 J. Gender Race & Just. 617 (2012); Ann Cammett, Deadbeats, Deadbrokes, and Prisoners, 18 Geo. J. on Poverty L. & Pol'y 127 (2011); Solangel Maldonado, Deadbeat or Deadbroke: Redefining Child Support for Poor Fathers, 39 U.C. Davis L. Rev. 991 (2006)."

SEEKING ATTORNEY FEES IN FAMILY COURT CUSTODY VIOLATION

Matter of S.M. v. L.M., NYLJ| April 09, 2021, Date filed: 2021-03-19, Court: Family Court, Nassau, Judge: Judge Linda Mejias:

"It is unrefuted that the Petitioner failed to comply with Article XXX of the Stipulation, which requires proper notice of any alleged default in the parties’ custody arrangement to be sent in writing to the defaulting party, and served by mail, return receipt requested, within twenty (20) days of said default. Though the provision does not set forth an explicit waiver of the right to seek fees under a relevant statute, provisions such as these are aimed at reducing the parties’ need for court intervention thereby limiting their exposure to unnecessary legal fees. While no one can guarantee that a non-compliant party will cure a default, the hope is that they will and that litigation will therefore not be necessary.

Generally, “[w]here the parties have agreed to provisions in a settlement agreement which govern the award of attorney’s fees, the agreement’s provisions, rather than statutory provisions, control” (Matter of Berns v. Halberstam, 46 A.D.3d 808, 809, 848 N.Y.S.2d 323 [2007]; accord Matter of Tanenbaum v. Caputo, 81 A.D.3d 839, 839, 916 N.Y.S.2d 811 [2011]; see Gardo v. Radominski, 252 A.D.2d 971, 972, 676 N.Y.S.2d 371 [1998]). “However, a party may seek the recovery of fees under both the statute and an agreement, unless the agreement contains an express waiver of the right to apply under the statute…, [and] provided that the party may not recover twice for the same fees” (Alan D. Scheinkman, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 14, Domestic Relations Law §237 at 19; see generally Millard v. Millard, 246 A.D.2d 349, 350, 667 N.Y.S.2d 714 [1998]; Canick v. Canick, 122 A.D.2d 767, 768-769, 505 N.Y.S.2d 652 [1986]). Where there is no express waiver, a statutory award of counsel fees remains discretionary (see Canick v. Canick, 122 A.D.2d at 769, 505 N.Y.S.2d 652).

Notwithstanding his failure to comply with the Stipulation, the Court is compelled to apply D.R.L. §238 given the absence of an express waiver. Domestic Relations Law §238, provides, in relevant part, as follows:

In any action or proceeding to enforce or modify any provision of a judgment or order entered in an action for divorce…the court may in its discretion require either party to pay counsel fees…to the attorney of the other party to enable the other party to carry on or defend the action or proceeding as, in the court’s discretion, justice requires having regard to the circumstances of the case and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In any such action or proceeding, applications for fees and expenses may be maintained by the attorney for the respective parties in counsel’s own name and in counsel’s own behalf…Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their representative attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section [emphasis added].

Now, applying the foregoing to the instant application, the Petitioner’s motion must still be denied. The statute is clear that applications must be made prior to the final judgment. Here, the instant motion was filed well after the petition was settled on consent. It is noteworthy that at no time during any settlement conferences did Petitioner’s counsel express an intent to seek an award of counsel fees by motion nor did counsel explicitly preserve her right to seek such fees. Though the retainer annexed to the moving papers includes seeking reimbursement for legal fees within the description of services to be rendered, same does not constitute an affirmative preservation of the right to seek fees. Next, the statute also explicitly requires that an application for counsel fees include an affidavit from the parties and their respective counsel outlining, inter alia, the amount of the retainer and the hourly rate to be charged by the attorney. No such affidavit was filed with the Petitioner’s motion and attaching a retainer agreement is insufficient.

To take the analysis one step even further, it is well-settled that the Family Court has the authority to award counsel fees in a custody proceeding, when warranted under the particular circumstances of the case (see, Domestic Relations Law §237[b]; Family Ct. Act §651[b]; Luo v. Yang, 104 A.D.3d 852 [2nd Dept. 2013]), having regard for the complexities of the case, the relative merits of the parties’ positions, as well as the parties’ respective financial positions (see, DeCabrera v. Cabrera-Rosete, 70 NY2d 879, 881; Catto v. Howell, 144 A.D.3d 1146 [2nd Dept. 2016]; Liebenstein v. Irani 125 A.D. 3d 970 [2nd Dept. 2015]). Here, this matter was not protracted, a trial was not conducted, and the actual time spent resolving this matter on consent was reasonable in view of the nature of the proceedings. Further, both the record and the instant motion are devoid of any documentation to support the Petitioner’s contention that he cannot afford to pay his own legal fees. Although Petitioner’s counsel claims that she performed “numerous hours of legal work”, her barebones statement is completely unsupported by any billing/time statements, a detailed affirmation of services.

Now, therefore, after having thoroughly read and considered the papers submitted by the parties relative to the instant motion, and after thoughtful consideration of the circumstances of this case, this Court, as within its discretion and for all the reasons set forth herein above, finds that an award of counsel fees would be unjust and inappropriate (see, Sawyer v. Yuan, 95 A.D.3d 1133 [2nd Dept. 2012], Detouche v. Shepherd, 42 A.D.3d 453 [2nd Dept. 2007], Pane v. Pane, 26 A.D.3d 386 [2nd Dept. 2006]), as the record is devoid of any legal or factual basis for such an award. "

THE VIRTUAL EVIDENCE COURTROOM

The Virtual Evidence Courtroom (VEC) has been created to allow for the submission of evidence electronically in NYSCEF cases for virtual and hybrid trial settings Currently, the VEC functionality is available solely for matrimonial matters in Supreme Civil court and only to parties participating in NYSCEF 

Instructions can be found at this link: 

https://iappscontent.courts.state.ny.us/NYSCEF/live/help/EvidenceSubmission.pdf