ALTERNATIVE DISPUTE RESOLUTION SERVICES AVAILABLE

 

ERAP FOR LANDLORDS WITH CAVEATS TO CONSIDER

The New York State Emergency Rental Assistance Program (ERAP) will provide significant economic relief to help low and moderate-income households at risk of experiencing homelessness or housing instability by providing rental arrears, temporary rental assistance and utility arrears assistance.

Seven communities that received funding for emergency rental assistance directly from the federal government opted to administer their own programs. Residents of City of Rochester and Monroe County, the City of Yonkers, Onondaga County and the towns of Hempstead, Islip and Oyster Bay must apply with their local programs for emergency rental assistance and are ineligible for assistance from the state-administered Emergency Rental Assistance Program.

NOTE: Landlords can also make an application, agreeing that the information provided, including the amount of rental arrears owed, is accurate and does not duplicate a payment received from another program. However, the property owner or authorized property management company must also agree to the following terms as a condition of accepting rental arrears payments:

    1) The ERAP payment satisfies the tenant’s full rental obligations for the time period covered by the payment.

    2) Waive any late fees due on any rental arrears covered by the ERAP payment.

    3) Not increase the monthly rental amount above the monthly amount due at the time of application for ERAP assistance for months for which rental assistance is received and for one year from receipt of the ERAP payment.

    4) Not evict the household on behalf of whom the ERAP payment is made for reason of expired lease or holdover tenancy for one year from the receipt of the ERAP payment. An exception to this requirement shall be made if the dwelling unit contains four or fewer units and the property owner or owner’s immediate family members intend to immediately occupy the unit for use as a primary residence.

NO CERTIFICATE OF CONFORMITY IN LITIGATION?

CPLR 2309 (c) provides "(c) Oaths and affirmations taken without the state. An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation."

RPP 299-A provides the requirements for an  acknowledgment to conform to the law of New York or of place where taken and for a certificate of conformity.

What is the effect if, in your motion, the affidavit is notarized out of state but does not contain the certificate of conformity?

GREENWAY MED. SUPPLY CORP. v. DOLLAR RENT A CAR, 2021 NY Slip Op 50439 - NY: Appellate Term, 2nd Dept. May 14, 2021:

"In support of its motion, defendant submitted an affidavit from its third-party claims examiner which was sufficient to establish, prima facie, defendant's lack of coverage defense (see New Way Med. Supply Corp. v Dollar Rent A Car, 49 Misc 3d 154[A], 2015 NY Slip Op 51794[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). To the extent the claims examiner's affidavit, which was notarized outside the State of New York, failed to conform to the requirements set forth in CPLR 2309(c) and Real Property Law § 299-a regarding the submission of a certificate of conformity, the absence of a certificate of conformity is not a fatal defect (see Fuller v Nesbitt, 116 AD3d 999 [2014]; Fredette v Town of Southampton, 95 AD3d 940 [2012]; see also Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), as the defect may be disregarded pursuant to CPLR 2001 where a substantial right of a party is not prejudiced (see Midfirst Bank v Agho, 121 AD3d 343 [2014]; Rivers v Birnbaum, 102 AD3d 26 [2012]). In the present case, plaintiff failed to make any showing of prejudice. In opposition to defendant's prima facie showing, plaintiff failed to demonstrate the existence of a triable issue of fact."

NOTE: New York also permits the filing of a certificate of conformity nunc pro tunc, by which the affidavits could be rendered admissible. See Matos v. New York City Health & Hosps. Corp., 2021 NY Slip Op 30906 - NY Co. Supreme Court March 12, 2021

INJUNCTIONS, SON OF SAM LAW, DIVORCE

There is a lot going on in this decision which highlights the devastating effect on families when a family member commits a crime against another family member.

PM v. NM, 2021 NY Slip Op 21095 - Orange Co.: Supreme Court April 14, 2021:

"It is ORDERED that the motions are disposed of as follows:

I.Factual and Procedural Background

This is an action for divorce. Plaintiff PM and defendant NM, formerly a police officer employed by the NYC Police Department, were married on March 23, 1998. There are three children of the marriage, presently aged 17, 13 and 9. On August 23, 2017, NM was arrested on charges that he had sexually abused DB and HD over a period of years. On April 11, 2018, he pleaded guilty to two counts of Rape in the First Degree and was sentenced to incarceration for a period of not less than 18 years.

A. The Nassau County CVA Lawsuit

On March 13, 2020, DB and HD commenced an action against NM under the Child Victims Act seeking compensation for their injuries. The action is pending before the Hon. Steven M. Jaeger in Supreme Court, Nassau County. On August 5, 2020, Judge Jaeger issued an order directing PM and NM and specified third parties to show cause why a temporary restraining order should not be issued pursuant CPLR §6313 and Executive Law §632-a against personal and real property of the M's. Judge Jaeger granted interim relief, as follows:

ORDERED, that pending the hearing of this motion, NM, PM, the New York State Deferred Compensation Plan (aka 457 Plan); the Lieutenants Benevolent Association of the City of New York; the New York City Police Pension Fund; and the New York State Department of Corrections and Community Supervision Inmate Accounts are forbidden to make or suffer any sale, assignment or transfer of, or any interference with, any property in defendant NM's name, title, possession, custody or control in which the aforementioned garnishees know or have reason to believe that defendant NM has an interest, or pay over or otherwise dispose of any debts said garnishees owed to the defendant in particular, but not limited to,

Certain real property located at... New York...;

Certain personal property contained within a pension in NM's name with the Lieutenants Benevolent Association of the City of New York;

Certain personal property contained within a pension in NM's name with the New York City Police Pension Fund; and

Certain personal property contained within a commissary fund in NM's name with the New York State Department of Corrections and Community Supervision Commissary.

Approximately one week later, on August 13, 2020, Judge Jaeger vacated a portion of the interim relief — to wit, that pertaining to NM's NYC police pension — as follows:

ORDERED, that the portion of the temporary restraining order dated August 5, 2020 that restrained "certain personal property contained within a pension in NM's name with the New York City Police Pension Fund" is vacated effective this date, pending further Order of the Court.

B.The Matrimonial Action and Proposed Intervenors' Application for a Stay of Judgment of Divorce and Restraint of Defendant's Property

The above captioned action for divorce was commenced on August 31, 2020. Presently pending before this Court is PM's application for a Judgment of Divorce based on a marital settlement agreement entered into by NM and PM on July 29, 2020. By Amended Order to Show Cause, DB and HD seek an order:

(1) permitting them to intervene in this matrimonial action;

(2) staying the issuance of the Judgment of Divorce herein; and

(3) granting them a preliminary injunction restraining assets of defendant husband NM.^[1]

More specifically, DB and HD seek an order:

a. Permitting DB and HD to intervene as third-party plaintiffs pursuant to CPLR §§ 1012(a)(3) or 1013;

b. Staying the issuance of a judgment of divorce and a determination as to the division and/or rights to marital assets and/or obligations to pay spousal maintenance with regards to assets and/or property owned, held devised and/or transferred as between plaintiff PM and defendant NM until such a time as a determination has been made by the Court as to whether Intervenors/Crime Victims DB and HD possess superior claim(s) to such assets and/or property held, owned and/or titled to NM as specified underExecutive Law §632-a(1)(c) & (6)(a);

c. Granting Intervenors/Crime Victims DB and HD a preliminary injunction restraining plaintiff PM and defendant NM; the New York City Deferred Compensation Plan (a/k/a 457 Plan); the Lieutenant's Benevolent Association of the City of New York; the New York City Police Pension Fund; the New York State Department of Corrections and Community Supervision; and its employees and assigns from in any way disbursing, distributing, encumbering or assigning such funds, assets and/or properties except those sums which constitute child support and earned income until such a time as the litigation brought by the Intervenors/Crime Victims...is finally determined as authorized by Executive Law §632-a(6) and CPLR §§ 6301 & 5205(k)....

In their "Proposed Intervenor Third-Party Complaint," DB and HD invoke Executive Law §632-a. They contend that Section 632-a entitles them to a stay of the matrimonial action and a preliminary injunction restraining NM's assets pending a final determination in their Child Victims Act lawsuit against him. They seek this relief in order to prevent the equitable distribution of marital property between NM and PM pursuant to the Judgment of Divorce — that is, to prevent PM's inchoate interest in marital property from ripening into a vested right of ownership. According to the Proposed Intervenors, Executive Law §632-a entitles them, as crime victims, to freeze those marital assets prior to securing a judgment against NM so that the assets remain available to satisfy a prospective judgment in their Child Victims Act lawsuit.

II.Legal Analysis

A.Executive Law §632-a

Determination of the issue before the Court requires an exposition of the tortured history of Executive Law §632-a. The statute, nicknamed the "Son of Sam" Law, was originally enacted in 1977 to permit crime victims to recover any profits earned by convicted criminals as a result of their crimes. The statute was declared unconstitutional by the United States Supreme Court in Simon & Schuster v. Members of NY State Crime Victims Board, 502 U.S. 105 (1991). A new version of Section 632-a was enacted in 1992, and substantively amended in 2001. Minor amendments thereafter made in 2010 and 2011 have no bearing on the case at bar.

1. The Original "Son of Sam" Law

Executive Law §632-a (L. 1977, ch. 823) was entitled "[d]istribution of moneys received as a result of the commission of crime." In substance, the statute provided as follows:

(a) Anyone contracting with a person "accused of a crime in this state, with respect to the reenactment of such crime, by way of a movie, book, magazine article, radio or television presentation, live entertainment of any kind, or from the expression of such person's thoughts, feelings, opinions or emotions regarding such crime, shall pay over to the [crime victims] board^[2]

any moneys which would otherwise, by the terms of such contract, be owing to the person so convicted..."

(Executive Law §632-a[1])

(b) "The [crime victims] board shall deposit such moneys in an escrow account for the benefit of and payable to any victim of crimes committed by such person, provided that such person is eventually convicted of the crime and provided further that such victim, within 5 years of the date of the crime, brings a civil action in a court of competent jurisdiction and recovers a money judgment against such person..." (Id., §632-a[1])

This statute, per the Second Department in Barrett v. Wojtowicz, 66 AD2d 604 (2d Dept. 1979), created a new in rem cause of action directed exclusively to the escrow account, funded by profits of the crime, maintained by the Crime Victims Board:

...here the Legislature has created a new cause of action pointed, as the title of the section indicates, towards "Distribution of moneys received as a result of the commission of crime", and in connection therewith has created its own Statute of Limitations. Although the action here is generally grounded on assault and wrongful imprisonment it is based on a statute creating a new in rem cause of action that is not limited to these willful torts but more generally "to any victim of crimes committed by (the accused)". The Legislature had the right to provide for the same limitation period, no matter what the crime, where the victim seeks the proceeds from listed sources that would otherwise be retained by the criminal....

However, a caveat must be noted. There is no question here that the one-year limitation of CPLR 215 (subd. 3) barred the traditional in personam actions for assault and false imprisonment. Accordingly, any judgment that may be recovered by plaintiff should be deemed one in rem and be limited by the court to a recovery of the pro rata amount which is found to be payable to him from the escrow account held by the Crime Victims Compensation Board for the benefit of all the victims of the defendant's crime and such judgment should not be deemed a judgment in personam against any other assets of the defendant.

Barrett v. Wojtowicz, supra, 66 AD2d at 615 (emphasis added).

2.The 1992 Statute

Executive Law §632-a (L. 1992, ch. 618, §10) provided in substance as follows:

(a) Anyone who "knowingly contracts for, pays, or agrees to pay, any profit from a crime...to a person charged with or convicted of that crime shall give written notice to the crime victims board of the payment, or obligation to pay as soon as practicable after discovering that the payment or intended payment is a profit from a crime." (Executive Law §632-a[2][a])

(b)"The board, upon receipt of notice of a contract, an agreement to pay or payment of profits of the crime shall notify all known victims of the crime of the existence of such profits at their last known address." (Id., §632-a[2][b]).

(c)"...any crime victim shall have the right to bring a civil action in a court of competent jurisdiction to recover money damages from a person convicted of a crime of which he or she is a victim...within three years of the discovery of any profits of the crime....Any damages awarded in such action shall be recover-able only up to the value of the profits of the crime...." (Id., §632-a[3])

(d)"Upon filing an action pursuant to subdivision 3 of this section, the victim shall give notice to the crime victims board of the filing by delivering a copy of the summons and complaint to the board. The victim may also give such notice to the board prior to filing the action so as to allow the board to apply for any appropriate provisional remedies which are otherwise authorized to be invoked prior to the commencement of an action." (Id., §632-a[4])

(e)"Upon receipt of a copy of a summons and complaint, the board shall immedi-ately take such actions as are necessary to: (a) notify all other known victims of the crime of the alleged existence of profits of a crime... (b) publish...a legal notice...advising any crime victims of the existence of profits of a crime...

(c) avoid the wasting of the assets identified in the complaint as the newly discovered profits of the crime, in any manner consistent with subdivision 6 of this section." (Id., §632-a[5])

(f)"The board, acting on behalf of the plaintiff and all other victims, shall have the right to apply for any and all provisional remedies that are also otherwise available to the plaintiff. (a) The provisional remedies of attachment, injunction, receivership and notice of pendency available to the plaintiff under the Civil Practice Law and Rules, shall also be available to the board in all actions under this section. (b)...."(Id., §632-a[6])

Unlike the original Son of Sam Law, which required the payment of profits of a crime to the Crime Victims Board, the 1992 version of the statute provided for notice to the Board of a payment or intended payment of such profits and authorized the Board to take action "to avoid the wasting of the assets" by resorting to available provisional remedies. Construing the 1992 statute, the First Department in NYS Crime Victims Board v. T.J.M. Productions, Inc.,

265 AD2d 38 (1st Dept. 2000) wrote:

It is clear that the amended Son of Sam Law does not provide any new remedies, but consigns the victim, and the Crime Victims Board acting on behalf of the crime victim and other victims, to the remedies already available to the plaintiff under the Civil Practice Law and Rules....

The Son of Sam Law, as revised, grants no additional substantive remedies to the crime victim but provides that the Crime Victims Board will lend assistance by acting to avoid the wasting of assets.

Id., 265 AD2d at 45 (emphasis added). In another respect, the 1992 statute was similar to the original Son of Sam Law: it limited the plaintiff's recovery to "the value of the profits of the crime."

3.The 2001 Statute

Executive Law §632-a (L. 2001, ch. 62, §1) modified the 1992 Son of Sam Law in two critical respects.

First, the 2001 Law encompasses not only profits of a crime, but "any funds of a convicted person", which is statutorily defined to mean "all funds and property received from any source by a person convicted of a specified crime, ... excluding child support and earned income."

See, Executive Law §632-a(1)(c).

Second, the 2001 Law eliminated the provision in Executive Law §632-a(3) that "[a]ny damages awarded in such action shall be recoverable only up to the value of the profits of the crime." There is no extant limitation on a plaintiff's recovery in a cause of action brought under

Executive Law §632-a(3).

In all other material respects, the 2001 Law is the same as the 1992 law. It is this 2001 version of the Son of Sam Law (with immaterial amendments subsequently enacted in 2010 and 2011) that governs the proceedings herein.

B.Preliminary Injunctions

CPLR §6301 provides in pertinent part:

A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff....

In Credit Agricole Indosuez v. Rosslyskiy Kredit Bank, 94 NY2d 541 (2000), the Court of Appeals held that preliminary injunctions are not available to unsecured creditors to restrain a debtor's asset transfers during the pendency of an action for money damages. The Court wrote:

In applying provisional equitable remedies under civil procedure codes, from as early

as 1892 in Campbell v. Ernest, 64 Hun. 188, 19 NYS 123, our courts have consistently refused to grant general creditors a preliminary injunction to restrain a debtor's asset transfers that allegedly would defeat satisfaction of any anticipated judgment.

In Campbell v. Ernest, just as here, plaintiff averred that the "defendant herein will, during the pendency of this action, dispose of his property *** with intent to defraud the plaintiff herein, and to render nugatory any proceeding or effort by this plaintiff to obtain payment of his claim in this action" (id., at 189...). At the time, Section 604(2) of the Code of Civil Procedure authorized a preliminary injunction where the "defendant, during the pendency of the action, threatens or is about to remove or dispose of his property, with intent to defraud the plaintiff." The Campbell court held that Section 604(2) did not apply "to an action of this character, where a moneyed judgment only is sought" (id., at 192...). Rather, provisional injunctive relief was limited to equitable actions where the defendant threatened to violate the rights of the plaintiff "respecting the subject of the action, which would tend to render the judgment ineffectual" (id....). Campbell explained that, in a pure contract money action, there is no right of the plaintiff in some specific subject of the action; hence, no prejudgment right to interfere in the use of the defendant's property; and no entitlement to injunctive relief pendente lite.

"In no proper or legal sense can a defendant do or permit any act in violation of the plaintiff's rights respecting the subject of the action, in an action on contract for the recovery of money only. The plaintiff in such an action has no rights as against the property of the defendant until he obtains a judgment, and until then he has no legal right to interfere with the defendant in the use and sale of the same" (id....).

More than 100 years after the Campbell v. Ernest decision, the United States Supreme Court, in Grupo Mexicano de Desarrollo v. Alliance Bond Fund, 527 U.S. 308...came to the very same conclusion — that an unsecured creditor suing to collect a debt was not entitled to preliminary injunctive relief to prevent the debtor's dissipation of assets prior to judgment....

....Precisely as the New York court reasoned in Campbell, the Supreme Court majority in Grupo Mexicano concluded that no provisional injunctive remedy was available because of "the substantive rule that a general creditor (one without a judgment) had no cognizable interest, either at law or in equity, in the property of his debtor, and therefore could not interfere with the debtor's use of that property" (id., at 318-320...).

It is well worth noting that, in support of that holding, Justice Scalia, writing for the majority, invoked a venerable New York authority on general principles of equity jurisdiction:

"As stated by Chancellor Kent: `The reason of the rule seems to be, that until the creditor has established his title, he has no right to interfere, and it would lead to an unnecessary, and, perhaps, a fruitless and oppressive interruption of the exercise of the debtor's rights'" (id., at 318-22...).

Our courts have uniformly followed the precept of Campbell v. Ernest, supra, both before and after enactment of the CPLR [cit.om.].

Credit Agricole Indosuez v. Rosslyskiy Kredit Bank, supra, 94 NY2d at 545-547 (italics in original).

It appears, then, that Credit Agricole Indosuez v. Rosslyskiy Kredit Bank, supra, would preclude the issuance of a preliminary injunction restraining NM's asserts during the pendency of the Child Victims Act lawsuit to recover monetary damages only. Query whether, Credit Agricole Indosuez notwithstanding, Executive Law §632-a authorizes the issuance of a preliminary injunction at the behest of either (i) the Crime Victims Board (i.e., Office of

Victim Services, hereinafter "OVS"), or (ii) the Proposed Intervenors?

C.The Availability Of Preliminary Injunctive Relief

Under Executive Law §632-a

1.At the Behest of OVS

Executive Law §632-a(5)(c) provides in pertinent part:

Upon receipt of a copy of a summons and complaint, [OVS] shall immediately take such actions as are necessary to... (c) avoid the wasting of the assets identified in the complaint as the newly discovered profits of the crime or as funds of a convicted person, in any manner consistent with subdivision 6 of this section.

Executive Law §632-a(6) provides in pertinent part:

[OVS], acting on behalf of the plaintiff and all other victims, shall have the right to apply for any and all provisional remedies that are also otherwise available to the plaintiff. (a) The provisional remedies of attachment, injunction, receivership and notice of pendency available to the plaintiff under the Civil Practice Law and Rules, shall also be available to [OVS] in all actions under this section.

Construing these provisions in NYS Crime Victims Board v. T.J.M. Productions, Inc., 265 AD2d 38 (1st Dept. 2000), the First Department observed that "[i]t is clear that the amended Son of Sam Law does not provide any new remedies, but consigns the victim, and the Crime Victims Board [i.e., OVS] acting on behalf of the crime victim and other victims, to the remedies already available to the plaintiff under the Civil Practice Law and Rules." Id., at 45.

The Third Department did not find the matter so clear, and ruled to the contrary in New York State Crime Victims Board ex rel. Organek v. Harris, 68 AD3d 1269 (3d Dept. 2009). That Court wrote:

Respondent's argument that injunctive remedies are not available to [OVS] because they would not be available to a plaintiff suing for money damages (see CPLR 6301) is unpersuasive. While it is true that such remedies are generally unavailable in actions for damages (see Credit Agricole Indosuez v. Rosslyskiy Kredit Bank...), a crime victim does not stand in the same shoes as a potential ordinary creditor. Indeed, the Legislature went to great lengths to provide avenues to allow crime victims to recover from the convicted persons for the victim's damages resulting from the crimes. Thus, the interpretation of the statute urged upon by respondent to prevent [OVS] from obtaining injunctive relief pending the outcome of such a proceeding would render meaningless the provisions bestowing such authority upon [OVS] and would defeat the very purpose of the statute (see Executive Law §632-a[6]; see generally McKinney's Cons. Laws of NY, Book 1, Statutes §§ 111, 144; Matter of SIN, Inc. v. Department of Fin. of City of NY, 71 NY2d 616, 621-622...[1988]; Matter of Lewis Family Farm, Inc. v. New York State Adirondack Park Agency, 64 AD3d 1009, 1013-1014...[2009])....

Harris, supra, 68 AD3d at 1271-72.

The statute's purport is indeed unclear:

(1) OVS is required to take action "to avoid the wasting of the [convicted criminal's] assets..." See, Executive Law §632-a(5)(c).

(2) OVS's actions in this regard may be exercised "in any manner consistent with subdivision 6 of this section."See, id.

(3) Subdivision 6 accords OVS "the right to apply for any and all provisional remedies that are also otherwise available to the plaintiff." See, id., §632-a(6).

(4) Subdivision 6 further provides that "[t]he provisional remedies of...injunction... available to the plaintiff under the Civil Practice Law and Rules, shall also be available to [OVS] in all actions under this section." See, id., §632-a(6)(a).

(5) However, under longstanding New York law, reaffirmed by the Court of Appeals in Credit Agricole Indosuez v. Rosslyskiy Kredit Bank, supra, a preliminary injunction is not available to the plaintiff in an action for money damages.

In other words, Executive Law §632-a does, and does not, authorize OVS acting on behalf of crime victims to apply for a preliminary injunction.

In frank recognition of this conflict, the Harris Court resorted to McKinney's Statutes §§ 111 and 144, which state:

The courts may in a proper case indulge in a departure from literal construction and will sustain the legislative intention although it is contrary to the literal letter of the statute.

Statutes will not be construed to render them ineffective.

Harris, supra, 68 AD3d at 1271. Departing from the language the Legislature actually employed in the Son of Sam Law in order to effectuate what it conceived to be the Legislature's intent, the

Harris Court resolved the conflict by holding that Executive Law §632-a authorizes OVS to apply for a preliminary injunction even though that provisional remedy is not available to the crime victim herself. That is precisely how the Third Department itself has construed Harris.

In Waldman v. State of New York, 163 AD3d 1114 (3d Dept.), lv. denied 32 NY3d 910 (2018), the Third Department wrote:

OVS is empowered to "avoid the wasting of" the funds by applying for provisional remedies that would ordinarily be unavailable to an individual suing for money damages...

Waldman, supra, 163 AD3d at 1115 (citing Harris).

2.At the Behest of the Proposed Intervenors

Harris and its progeny are of no avail to the Proposed Intervenors. The Third Department has consistently followed Harris in upholding awards of preliminary injunctive relief granted at the behest of OVS. See, Waldman v. State of New York, supra; NYS Office of Victim Services v. Vigo, 162 AD3d 1335, 1336-37 (3d Dept. 2018); NYS Crime Victims Board v. Sookoo, 77 AD3d 1227, 1228 (3d Dept. 2010). However, Proposed Intervenors acknowledge that they have not invoked the assistance of OVS by giving notice of their lawsuit to OVS in accordance with Executive Law §632-a[4]. Moreover, they cite no authority — and the Court is aware of none — entitling them to a preliminary injunction in contravention of Credit Agricole Indosuez v. Rosslyskiy Kredit Bank, supra.

A review of extant authority yields the following.

The First Department, as noted above, has held that the Son of Sam Law creates no provisional remedies beyond those already available to plaintiffs under the Civil Practice Law and Rules. See, NYS Crime Victims Board v. T.J.M. Productions, Inc., supra, 265 AD2d 38, 45 (1st Dept. 2000).

The Second Department has yet to address the issue. In Thompson v. 76 Corp., 54 AD3d 844 (2d Dept. 2008), Supreme Court, Kings County issued a preliminary injunction at the behest of a crime victim in a Section 632-a case, but the Second Department held that the question of its propriety was not before the Court since the order granting it had not been appealed. See, id., 54 AD3d at 845. Kane v. Galtieri, 122 AD3d 582 (2d Dept. 2014), a police pension case upon which the Proposed Intervenors rely, is not apropos because it involved a pre-judgment attachment, not a preliminary injunction. See, id., at 584-585.

The pertinent Third Department authority is exclusively concerned with provisional remedies issued at the behest of the OVS; in not one case was a preliminary injunction awarded at the behest of an individual crime victim. See, Waldman v. State of New York, supra; NYS Office of Victim Services v. Vigo, supra; NYS Crime Victims Board v. Sookoo, supra; NYS Crime Victims Board ex rel. Organek v. Harris, supra; NYS Crime Victims Board v. Mitchell, 12 AD3d 870 (3d Dept. 2004); NYS Crime Victims Board v. Jackson, 4 AD3d 710 (3d Dept. 2004).

Those cases are, of course, predicated on Executive Law §632-a; and Section 632-a, insofar as it addresses the issue of provisional remedies, concerns only OVS's authority to take action to prevent the wasting of a convicted criminal's assets. See, id., §632-a(4)(5c)(6). The statute neither expands nor contracts individual crime victims' rights to pursue provisional remedies on their own. Those rights are defined instead by the Civil Practice Law and Rules.

Therefore, the Proposed Intervenors' reliance on Harris and its progeny is grievously misplaced. Neither is their cause advanced by Prindle v. Guzy, 179 AD3d 1269 (3d Dept. 2020), another police pension case. Prindle involved not a pre-judgment preliminary injunction but a post-judgment restraining notice issued pursuant to CPLR §5222(b). As such, it is not apropos.

Accordingly, the matter before the Court turns on whether CPLR §6301, as interpreted by the Court of Appeals in Credit Agricole Indosuez v. Rosslyskiy Kredit Bank, supra, authorizes the issuance of a preliminary injunction at the Proposed Intervenors' behest.

CPLR §6301, once again, provides that "[a] preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual..."

As to "the subject of the action", the Court of Appeals in Credit Agricole Indosuez wrote:

The Campbell court held that Section 604(2) did not apply "to an action of this character, where a moneyed judgment only is sought" (id., at 192...). Rather, provisional injunctive relief was limited to equitable actions where the defendant threatened to violate the rights of the plaintiff "respecting the subject of the action, which would tend to render the judgment ineffectual" (id....). Campbell explained that, in a pure contract money action, there is no right of the plaintiff in some specific subject of the action; hence, no prejudgment right to interfere in the use of the defendant's property; and no entitlement to injunctive relief pendente lite.

"In no proper or legal sense can a defendant do or permit any act in violation of the plaintiff's rights respecting the subject of the action, in an action on contract for the recovery of money only. The plaintiff in such an action has no rights as against the property of the defendant until he obtains a judgment, and until then he has no legal right to interfere with the defendant in the use and sale of the same" (id....).

Credit Agricole Indosuez, supra, 94 NY2d at 545-546. However, where a lawsuit involves claims by a plaintiff to a specific fund, that fund may rightly be regarded as "the subject of the action", making a preliminary injunction appropriate under the express wording of CPLR §6301.

See, id., 94 NY2d at 548.

The original Son of Sam Law, as construed by the Second Department in Barrett v. Wojtowicz, supra, 66 AD2d 604 (2d Dept. 1979), created an in rem action involving (1) the creation of a specific fund compromised of profits from a crime, and (2) recovery by crime victims exclusively from that fund. See, Executive Law §632-a (L. 1977, ch. 823); Barrett v.

Wojtowicz, supra, 66 AD2d at 615. That specific fund being the subject of the statutory action, preliminary injunctive relief would be authorized by CPLR §6301.

However, as set forth hereinabove (see, Point IIA), the original Son of Sam Law no longer exists, and its replacement has been extensively amended to eliminate all trace of the original in rem action. The present Son of Sam Law encompasses not only profits of a crime, but "all funds and property received from any source by a person convicted of a specified crime" (see, Executive Law §632-a [1c][2]); and the crime victim's recovery on the cause of action created by Executive Law §632-a(3) is no longer limited to any specific fund, such limitation having been eliminated by amendment in 2001 (see, Executive Law §632-a [L. 2001, ch. 62, §1]) Moreover, as the cases make clear, even the exclusion of "child support and earned income" from the statutory definition of "funds of a convicted person" creates no limitation on the crime victims' ability to recover on the cause of action created by Executive Law §632-a(3):

The distinction between earned and unearned income is relevant only to determine whether [OVS] must be notified, and has no effect on the ability of a crime victim or victim's representative to recover such income in a civil action.

NYS Office of Victim Services v. Vigo, supra, 162 AD3d 1335, 1336 (3d Dept. 2018); NYS Crime Victims Board v. Sookoo, supra, 77 AD3d 1227 (3d Dept. 2010).

In no meaningful sense, then, is there any specific fund that is the subject of the

Proposed Intervenors' action here. Accordingly, preliminary injunctive relief is not authorized by CPLR §6301.^[3]

D. Conclusion

In view of the foregoing, the Proposed Intervenors' application for an order permitting them to intervene in this matrimonial action, staying the issuance of the Judgment of Divorce herein, and granting them a preliminary injunction restraining assets of defendant NM is denied. Accordingly, the Court need not address plaintiff PM's cross motion for an order declaring Executive Law §632-a unconstitutional.

It is therefore

ORDERED, that the motion of Proposed Intervenors DB and HD is denied in its entirety, and the stay of this action is vacated, and it is further

ORDERED, that the cross motion of plaintiff PM is denied as moot.

The foregoing constitutes the decision and order of the Court.

[1] The Proposed Intervenors originally sought to restrain NM's assets by means of an order of attachment pursuant to CPLR §6201. However, since the remedy of attachment is not available in matrimonial actions (see, id.; Saladino v. Saladino, 103 AD3d 873 [2d Dept. 2013]), they withdrew that application and seek instead a preliminary injunction.

[2] The reference is to the New York State Crime Victims Board, now known as the New York State Office of Victim Services.

[3] NYS Crime Victims Board v. Majid, 193 Misc 2d 710 (Sup. Ct. Albany Co. 2002) involved the Crime Victim Board's application for a preliminary injunction with respect to a criminal's prison account. Referencing Barrett v. Wojtowicz, supra, the Majid Court suggested that the prison account could be deemed the "subject of the action" such that preliminary injunctive relief was available under Credit Agricole Indosuez, supra. See, id., 193 Misc 2d at 715. However, (1) the Majid Court did not take into account the wholesale revisions of the Son of Sam Law discussed above, and (2) the Third Department has not embraced the Majid Court's analysis. See, Waldman v. State of New York, supra; NYS Crime Victims Board ex rel. Organek v. Harris, supra. This Court declines to follow Majid he

CAN A LANDLORD BE "LOCKED OUT"?

Leagem Partners LLC v. Gallimore, Court: Civil Court, Queens, Judge: Judge Clifton Nembhard, Case Number: 301638/21:

 "Leagem Partners, LLC (“petitioner”) commenced this illegal lockout proceeding by order to show cause to be restored to possession of apartment #E1D3 located at 119-20 Union Turnpike, Kew Gardens (“subject premises”). The Civil Court declined to sign the order to show cause for among other reasons, petitioner did not allege that a residential occupancy was interfered with. The Appellate Term however signed the order to show cause upon petitioner’s CPLR 5704(b) application. This Court conducted a hearing on the matter on April 27, 2021. The following constitutes the Court’s findings of fact and conclusion of law following the hearing. Hearing
Petitioner called Jennifer Lora as its first witness. Lora is the Director of Resident Support at Rezi which was retained by petitioner to market and lease certain apartments in the subject building. Respondent Eva Gallimore (“Gallimore”) applied for the subject apartment on April 1, 2021. She signed a lease and paid a deposit which triggered Rezi’s due diligence process which includes verifying an applicant’s income. Soon thereafter Rezi informed Gallimore that it could not verify one of the three employers she listed on her application and requested additional information from her. Lora further testified that Gallimore made an appoint to see the apartment on April 6, 2021 and subsequently moved in with her family. When Rezi was not able to verify Gallimore’s employment it refunded her deposit and informed her that they were not moving forward with her application. Lora averred that Rezi never delivered possession of the subject premises to Gallimore, never countersigned the lease and never approved her moving in. Anish Mashettiwar is the general counsel for building’s property manager Advantage Property Management. He also testified the petitioner never entered into a lease agreement with respondents and didn’t authorize them to take possession of the subject apartment. Mashettiwar also stated that the apartment was last occupied by a tenant in May 2020 and had been in petitioner’s possession until Gallimore and her family moved in.

Petitioner then called Eva Gallimore who testified that she moved into the subject apartment on April 8, 2021 and is still in possession.

Keita deSouza, Rezi’s corporate counsel, then testified that the company never countersigned the lease and never delivered possession to Gallimore. On April 9, 2021 deSouza spoke with Gallimore and became aware that Gallimore, her sister Esther and possibly their mother are now occupying the apartment. During the phone call deSouza informed Gallimore that she was not approved for the apartment and gave her the option of moving out immediately or providing the information needed to approve her application. She then provided Gallimore with the number to Rezi’s support line. The next day deSouza called Gallimore who again told her she was not vacating the apartment. deSouza then went to the building and called the police. When the police arrived, she went with them to the subject apartment. Esther answered the door and told them that they were not moving out.

Eva Gallimore then testified on her own behalf and stated she paid the deposit and first month’s rent on April 1, 2021 after being approved for the apartment. However, a few days later Rezi started asking her for more information. On April 6, 2021, Lora called and asked for information regarding her income so she sent her a copy of her pay stub. That afternoon Esther spoke to Rezi’s agent Nicole and made an appointment to see the apartment. Nicole told her sister she could have the keys and referred to the apartment as theirs. On April 7, 2021, Alyson from the office called and asked for another image of the pay stub and her bank statement. Gallimore testified that she was confused by this request given that she was already approved for the apartment and refused to provide her bank statement. The following day she moved into the apartment with her sister and mother Gloria. Later that day she informed Lora that they’d moved in. She received a refund of her payments on April 8 or April 9, 2021 and immediately sent it back to petitioner. Gallimore spoke with Alyson and another agent Kay on April 10, 202. They told her that Lora wanted to approve her application but needed a guarantor because Rezi could not consider her sister’s income which she had included on her application. On April 12, 2021, Lora and Kay informed her that petitioner was not signing the lease and that she had to vacate the apartment. Gallimore also testified that she never received a countersigned copy of the lease and acknowledged that she never confirmed that the information she had provide on her application was accurate.
Esther Gallimore then testified that Rezi’s agent assured her that petitioner had rented the apartment to her family. On April 1, 2021 she made an appointment to see the apartment. On April 6, 2021, Nicole called her back and gave her the code to the lockbox which contained key to the apartment. During their conversation Nicole told her not to worry about putting the key back in the lockbox box because the apartment was theirs.
Rezi’s agent Nicole Parker testified on rebuttal that part of her duties include helping clients access the apartment keys from the lock box. She confirmed that Esther spoke with her on the morning of April 6, 2021 to schedule an appointment to see the apartment for the purpose of taking measurements. Parker denied telling Esther that she could keep the keys and averred that Esther assured her that she knew the process of returning it to the lockbox when she was done. She also explained that she referred to the apartment as respondents’ during her conversation with Esther because it was Rezi’s practice to remove an apartment from the market when it was conducting due diligence on a perspective tenant. Parker then introduced a recording of the conversation which supported her claim that she never told Esther to keep the keys.

Lora then testified that she never told Gallimore that her application had been approved. She also introduced e-mails she exchanged with Gallimore on April 6, 2021. In the first, Lora informs Gallimore that “[Rezi] would need all the documents to complete our due diligence process before finalizing the lease. Note, you would not be able to move in prior to us finalizing the lease.” Gallimore responds that Rezi’s website does not specify this and states that “I have already paid the 1st months [sp] rent so I need to make sure I will be duly compensated for that if I need more time to add more documents.”

Alyson Vivattanapa is Rezi’s Residential Support Associate. She testified that Gallimore failed to qualify for the apartment because of insufficient income information. Specifically, she noted that Gallimore’s application included her sister’s income information. Vivattanapa testified that she spoke with Gallimore on April 6, 2021 and told her that she was having trouble verify her income information. She requested pay stubs and bank statements from her but Gallimore never provided them.

Discussion

RPAPL §713 provides for the maintenance of a special proceeding where there is no landlord-tenant relationship between the parties. Petitioner seeks restoration pursuant to subsection 10 of the statue which involves cases where “[t]he person in possession has entered the property or remains in possession by force or unlawful means and he or his predecessor in interest was not in quiet possession for three years before the time of the forcible or unlawful entry or detainer and the petitioner was peaceably in actual possession at the time of the forcible or unlawful entry or in constructive possession at the time of the forcible or unlawful detainer”.

Here the credible evidence and testimony shows that a landlord-tenant relationship does not exist between petitioner and the Gallimore. It is axiomatic that “[t]he relation of landlord and tenant is always created by contract, express or implied, and will not be implied where the acts and conduct of the parties negative its existence.” Stern v. Equit. Trust Co. of New York, 238 NY 267 [Ct App 1924]. Gallimore insists that she became the tenant of the subject premises by virtue of signing the lease and paying the deposit. However, petitioner’s actions show that there was not a meeting of the minds. Petitioner never countersigned the lease and made it clear to Gallimore from the outset that her tenancy was contingent on it verifying her income. Before taking possession of the apartment three of petitioner’s agents told her (and her sister) that her application was incomplete and that she need to provide the requisite income information. Gallimore does not dispute the fact that she never provided this information. Thus, when she moved in she knew that petitioner had not agreed to have her do so. Despite her claims to the contrary, she also knew why. Petitioner’s actions after finding out that Gallimore moved in also evinced its belief that she was not its tenant. Their corporate counsel immediately informed Gallimore that she would have to vacate or complete the application process. When she failed to comply deSouza called the police to attempt to oust her. Having not completed the application process, Gallimore’s argument that she and petitioner entered into a landlord-tenant relationship is unavailing. This argument is also belied by the fact that Gallimore did not receive the keys to the apartment or insist on getting them on April 1, 2021 when she claims to have become the tenant.

The facts here show that the relationship between the parties was that of invitor-invitee. See, e.g., Potter v. Furniture Mfrs. Bldg., Inc., 26 NY2d 269 [Ct 1970]. Gallimore entered the premises with petitioner’s permission for the purpose of conducting business- to wit renting the subject apartment. Upon her failure to do so, Gallimore’s continued presence in the premises and refusal to vacate constituted an unlawful detainer. Since petitioner was in constructive possession of the premises prior to Gallimore and her family’s entry and since RPAPL §713(10) does not expressly limit said possession to residential occupancy, the Court finds that petitioner has standing to maintain this proceeding.

Conclusion

Based on the foregoing the Court finds that respondent’s actions have unlawfully deprived petitioner of possession of the subject premises. Accordingly, petitioner is awarded a final judgment of possession as against Eva Gallimore, Esther Gallimore, John Doe and Jane Doe. The warrant may issue and execute forthwith."

JUNE 2 AT 3:00PM

 

SEALING COURT FILINGS

Styles v. Podz Inc., Date filed: 2021-05-13, Court: Supreme Court, New York, Judge: Justice Arlene Bluth, Case Number: 652677/2021:

"The motion by plaintiff to seal the summons with notice filed by plaintiff is denied. Plaintiff alleges that she was fired for exposing and objecting to purportedly improper conduct by defendant Imbruce. She contends that she discovered that Imbruce was allegedly sending inappropriate messages using the company’s social media account and when she confronted Imbruce about these issues, he worsened his treatment of her. Plaintiff says she was a consultant for defendant Podz, Inc. and she was eventually promised money in exchange for keeping silent about Imbruce’s lewd acts while Podz was in negotiations to be acquired by another company for a substantial amount of money. However, that agreement was never formalized. The summons with notice also mentions witnesses, a phone call and a video recording which all allegedly substantiate plaintiff’s claim. Now plaintiff moves to seal this document on the ground that it was “prematurely filed” while negotiating a confidential settlement agreement with defendants. Plaintiff explains that the parties have agreed to a settlement in principle but that the settlement will not be finalized if this document remains in NYSCEF with public access. She claims that all sides agree that the document should be sealed. Plaintiff emphasizes that the parties were involved in a “private dispute.” “Under New York law, there is a broad presumption that the public is entitled to access to judicial proceedings and court records. This State has long recognized that civil actions and proceedings should be open to the public in order to ensure that they are conducted efficiently, honestly, and fairly” (Mosallem v. Berenson, 76 AD3d 345, 348, 905 NYS2d 575 [1st Dept 2010] [internal quotations and citations omitted]). “Confidentiality is clearly the exception, not the rule and the party seeking to seal court records has the burden to demonstrate compelling circumstances to justify restricting public access” (id. at 346). The Court denies the motion. As an initial matter, the Court rejects plaintiff’s claim that the filing should be sealed because it was “prematurely filed.” That makes no sense. The document plaintiff seeks to seal is the commencing document for the entire case. Not only did plaintiff upload the document, she paid the filing fee. That demonstrates a deliberate decision to upload the document and start a case. The fact that plaintiff later regrets filing the document or that defendants insist that it should be sealed as part of a settlement is of no concern to this Court. Plaintiff chose to file a document that contained serious allegations while apparently in the middle of what she now refers to as a “private dispute.” But it was plaintiff who made it a public dispute by starting the case and filing a publicly accessible document. The only reason this case is before the undersigned is because plaintiff chose to file the document. And, of course, if plaintiff was insistent on filing something, she could have filed a summons with notice that contained fewer details. The summons with notice at issue here is akin to a complaint. The Court recognizes that there are often good reasons to seal documents, such where the filings contain confidential information (like a Social Security number) or trade secrets. This is also not a situation where a party inadvertently files an exhibit that it promised to keep confidential or forgot to include redactions. Instead, plaintiff appears to want the document sealed so she can settle the case. That’s not a reason to restrict public access to court files, especially where the document at issue is the commencing document for the entire case."

IS THIS DOCUMENT A CONTRACT FOR SALE OF LAND

A family dispute in which Dad and his wife is trying to evict Son and his wife from their home. Son claims to be an "owner" of the property due to a writing which Son claims is a contract of sale. 

Templar v Templar, 2021 NY Slip Op 31611(U), May 14, 2021, Supreme Court, Wayne County, Docket Number: 84778, Judge: Daniel G. Barrett:

"The Plaintiffs, Kathleen and Paul Templar, have brought this action seeking to
evict the Defendants, Jeramie and Jessica Templar from 232 East DeZeng Street, Clyde,
New York. The parties are married to each other and Defendant, Jeramie Templar, is the
son of Plaintiff, Paul Templar.

Each of the Plaintiffs and Defendant, Jessica Templar, testified in this case.

Defendant Jeramie Templar, although present at the hearing, did not testify and no reason
was given for his non-participation in this hearing.

There is no dispute that the Plaintiffs are record owners of the property located at
232 DeZeng Street. The Defendants are relying upon a writing signed by all parties dated
December 1, 2016, as a land contract which prevents the Plaintiffs from evicting them.
This writing will be evaluated at a later point in this Decision.

The testimony of the Plaintiffs is consistent. Plaintiff Kathleen Templar moved to
her daughters house in Canastota in March of 2016 to help the daughter run her business.
This was a temporary move not a permanent relocation. She left various personal effects
at 232 East DeZeng Street including her mother's ashes, family antiques and other items.
She left these various articles of personal property in the first floor bedroom, parlor,
rooms upstairs and the attic. One of the rooms was locked.

In December 2016 Plaintiff Paul Templar moved to Canastota to be with his wife.
He, likewise, left various personal effects, family antiques, military documents and his
military uniform. These items were left in the same places as Kathleen Templar's
belongings-the first floor bedroom, parlor, rooms on the second floor and the attic. One
of these rooms was locked.

The Plaintiffs allowed the Defendants to move into 232 DeZeng Street when
Plaintiff, Paul Templar, temporarily moved to Canastota to be with his wife. The
Plaintiffs entertained the idea of maintaining a life use of the residence with the property
passing to the Defendants after their passing. This was simply a verbal discussion,
nothing was committed to in writing. The Plaintiffs clearly intended to return to 232
DeZeng Street to live.

The previously referenced writing dated December 1, 2016, was executed by all of
the parties and labeled as Exhibit 10 and duly admitted into evidence.

The house needed a new furnace. A grant program was available but it was not
available unless the applicant owned the premises. According to the Plaintiffs that is the
reason Exhibit 10 came into existence. The Plaintiffs testified they did not prepare
Exhibit 10. Defendant, Jessica Templar, testified the Plaintiffs had already executed the
writing before it was presented to her. Plaintiffs testified they signed Exhibit 1 O so that
the Defendant would qualify for the grant to replace the furnace. A new furnace, in fact,
was installed.

While residing in Canastota, at times unsolicited, Defendant Jeramie Termplar
would transport the Plaintiffs' personal property to Canastota on a regular basis. The
Plaintiffs did not request that he do that nor did they give him permission to empty their
house. Defendant, Jessica Templar, refuted this testimony. She testified that the
transport of the personal property was done at the request of the Plaintiffs.
While the Plaintiffs were residing in Canastota, Defendant, Jeramie Templar told
the Plaintiff, Paul Templar, he needed the key to the locked door so that the room could
be winterized. The key was not returned and the lock was replaced by the Defendants.
No key to open this door was ever presented to the Plaintiffs.

In June 2019 the Plaintiffs intended to move back into 232 DeZeng Street. They
were forbidden to do so by the Defendants. The Plaintiffs were barred from moving their
personal belongings back into the house and they have had to seek a residence elsewhere.
According to the Verified Complaint, the Plaintiffs served a 30 Day Notice to
Vacate on the Defendants on July 10, 2019.

The Defendants, per the testimony of Defendant Jessica Templar, asserted that
Exhibit 10 is a land contract. Exhibit 10 was not prepared to qualify for a new furnace
grant. It was her understanding she was purchasing an interest in land.

ANALYSIS
This case pivots on the legal significance of Exhibit 10. Exhibit 10 is very brief
and is reproduced here in its entirety:

Kathleen and Paul Templar have entered into a
rent to own agreement with Jessica and Jeramie
Templar. Jessica and Jeramie are living in the
house at 232 East DeZeng Street at this time, as
of December 1, 2016. Kathleen and Paul Templar
reside at 2990 State Route 31, Canastota.

The phrase in the first sentence "have entered into a rent to own agreement" gives
one the impression that there is a separate agreement that has already been executed. But
this is not the case. The next two sentences tell us where the Defendants and Plaintiffs
resided on December 1, 2016.

Since we are dealing with an interest in real property the Statute of Frauds has to
be satisfied. "The essential terms of a real estate contract typically include the purchase
price, the time and terms of payment, the required financing, the closing date, the quality
of title to be conveyed, the risk of loss during the sale period, and adjustments for taxes
and utilities ... [W]here a contract's material terms are not reasonable definite, the contract
is unenforceable" (Matter of Licata, 76 A.D. 3d 1076, 1077 [2 "d Dep't 2010] 443;
Jefferson Holdings, LLC v Sosa, 174 A.D. 3d 486, 487 [2"d Dep't 2019]).

It is argued that parol evidence will provide the missing links to save this contract.

In Pfiel v Cappiello, 29 A.D. 3d 1187, [3 rd Dep't 2006] quoting the following portion of
the decision in the case of Wacks v King shows this is not accurate:

GOL 5-703(2) provides, in relevant part, that a contract for
the sale of any real property, or interest therein, is void
unless the contract or some note or memorandum thereof,
expressing the consideration, is in writing, subscribed by the
party to be charged. To that end, the underlying instrument
must designate all parties, identify and describe the subject
matter and state all essential terms of a complete agreement.
Where as here, the subject matter of the agreement is real
property, the writing must describe the property involved
with such definiteness and exactness as will permit it to
be identified with reasonable certainty. Finally, the
determination of whether an instrument satisfies the
Statute of Frauds is based solely on the language of the
document itself, without consideration of parol evidence.

Also, to satisfy the Statute of Frauds, a memorandum subscribed by the party to be
charged, must designate the parties, identify and describe the subject matter, and state all
of the essential terms of a complete agreement. A writing is not a sufficient
memorandum unless the full intention of the parties can be ascertained from it alone,
without recourse to parol evidence, Dahan v Weiss, 120 A.D. 3d 540 [2"d Dep't 2014].
"Parol evidence, that is evidence outside the four corners of the document, is
admissible if a court finds an ambiguity in the contract. As a general rule, extrinsic
evidence is inadmissible to alter or add a provision to a written agreement." §3: 19 Statute
of Frauds, generally. 11 PT I West's McKinley's Forms Real Property.

It is also argued that this Court should look at the text messages between the
parties. This is not permissible because of parol evidence and it is not permissible as a
writing that would satisfy the Statute of Frauds, (see Vista Developers Corp. v VFP
Realty. LLC, 17 Misc. 3d 914, 847 N.Y.S. 2d 416).

All the parties who testified, Plaintiffs and Defendant Jessica Templar, testified
they did not prepare Exhibit 10. Defendant Jeramie Templar did not testify. The Court is
permitted to draw a negative inference as a result of his not testifying and find that he
prepared Exhibit I 0. In that event the contract can be interpreted against the interests of
the Defendants.

Based on the foregoing the Court finds that there is no contract for the sale of the
real property and the Plaintiffs are entitled to a warrant of eviction. Counsel for Plaintiffs
to prepare a warrant of eviction which may be served on or after June 25, 2021."

LANDLORD TENANT LAW - WHEN SEEKING SUBSTITUTED SERVICE AFTER A REFUSAL OF SERVICE

 

Latchman v. Hardnett, NYLJ April 28, 2021, Date filed: 2021-04-21,  Court: Civil Court, Queens, Judge: Judge Sergio Jimenez, Case Number: 51153/20:

"DECISION AND ORDER Petitioner, Seeraj Latchman, owns the premises located at 101-66 125th Street Apt. 4C in South Richmond Hill, New York 11419. Respondent (Mary Hardnett) has allegedly lived in the subject premises since 2013. Petitioner brought this holdover petition seeking possession of the premises following a termination of tenancy due to alleged improper conduct by respondent or her family. The proceeding was first on the court’s calendar on January 30, 2020 and was adjourned to February 27, 2020. On that date, it was set for settlement or trial on March 27, 2020. Before that appearance could take place, the court system was slowed by the global pandemic emergency. The proceeding was administratively stayed until January 22, 2021 where it was assigned to the HMP part which connected respondent with counsel and adjourned the proceeding to Part D on February 23, 2021. Thereafter, respondent filed the instant motion seeking dismissal and after being fully briefed, the court held virtual arguments on April 6, 2021. Following said argument, the court reserved decision. Respondent’s Motion and Petitioner’s Opposition

The instant motion seeks dismiss pursuant CPLR §3211(a)(7) and/or (8) the proceeding for failure to properly serve the notice of termination, notice of petition and petition correctly, for failure to serve a proper notice to cure, for failure to serve a proper notice of termination, partially dismissing the claim about fights and loud noises for not being in the notice to cure, dismissing the claim seeking money as a substantial obligation of the lease and, in the alternative, granting leave to file the included answer and granting discovery. Petitioner opposes all branches of the notice but withdraws the claim for money and does not oppose the answer being submitted and for discovery if what respondent seeks exists.

Respondent argues that the service was improper for two reasons. First, that the address read “Richmond Hill” not “South Richmond Hill,” and that, therefore, the service, as a matter of law, cannot be proper. She avers in her affidavit that she has never lived in Richmond Hill but rather all her correspondence has always come to “South Richmond Hill.” Respondent’s counsel states that there are separate post offices in Richmond Hill and in South Richmond Hill. Petitioner opposes this argument stating that they are interchangeable with the use of the correct zip code. In Rochdale Holding Corp. v. Neuendorf, 784 N.Y.S. 2d 924 (2004), the court held “the fact that the mail was addressed to zip code 10022, rather than zip code 10021, did not render service defective” where the correct street address and county were set forth. Here not only were the street and county correct but the zip codes also matched. The court agrees with petitioner, the United States Postal Service, which handles billions pieces of mail per year, has a mechanism for addressing these types of situations.

Secondly, respondent argues that the service did not comply with RPAPL §735 because it could not have been conspicuous placement service because the attempts to serve were both made outside of work hours and then not displayed, but rather slid under the door. It is undisputed that the service attempts were Friday night at 8:20pm and Saturday at 1:42pm, both done by Petitioner’s attorney. In the Second Department at least two attempts at personal service are required, one during normal working hours and one attempt when a person working normal business hours could reasonably be expected to be home are required to satisfy the reasonable application standard. See Martine Associates LLC v. Minck, 5 Misc3d 61 (App Term 2d Dept 9th & 10th Jud Dists, 2004); Gristmill Realty, LLC v. Roa, 69 Misc.3d 142(A) (App. Term 2d Dept, 9th & 10th Jud Dists, 2020); Tinker LTD Partnership v. Berg, 906 N.Y.S.2d 784 (2010). As such, the requirements for conspicuous service have not been satisfied.

Petitioner counters stating that due to a refusal of service, the standard shifts to a different one and becomes one of substituted service. Respondent’s attorney’s affidavit of service does not make a claim of substituted service. However, statements both on Petitioner’s affidavit in opposition to the motion to dismiss and the Petitioner’s attorney’s oral arguments raise a possible claim of substituted service. Respondent’s affidavit claims that on the second attempt, the knocking on the Respondent’s door resulted in an answer from inside the apartment, who refused to accept service. RPAPL 735 does not require consent to accept service and refusal will not vitiate a substitute service. However, appellate courts have found that a person being served must be aware that he is being served with process. Bossuk v. Steinberg, 58 NY2d 916 (1983); Spector v. Berman, 119 AD2d 565 (App Div 2d Dept, 1986); Hall v. Wong, 119 AD3d 897 (App Div 2d Dept, 2014); First Owner Corp. v. Riverwalk Garage Corp., 784 N.Y.S.2d 844 (2004). The claims of substituted service were not made on the affidavit of service nor did the Attorney who served the papers provide the court with an affirmation sustaining any possible claim of substituted service. Neither party could point to any specific exception to RPAPL §735 that would allow an exception to its strict mandates following a refusal of service. Therefore, a sole claim of refusal made by someone an unknown person to the server is insufficient as a matter of law to change the nature of the service itself.

Respondent also brought to the court’s attention that regardless of how service was effectuated that there would be a problem regarding the mailing because they allege that since it was marked as sent from the South Richmond Hill post office, that office was not open after the purported attempt at service and therefore must have been sent before the attempted service. However, as this was not raised in the papers, the court will not consider such an argument. It is undisputed that the service attempts were Friday night at 8:20pm and Saturday day at 1:42pm, both were done by petitioner’s counsel himself, both outside of working hours. Nothing presented converted this conspicuous placement service to substituted service as pled in the affidavit of service. As such, service was defective as a matter of law. No traverse hearing is required as the service attempts were facially defective. Doji Bak, LLC v. Alta Plastics, 51 Misc 3d 148(A)(App Term 2d Dept, 2016).

The court grants respondent’s motion in part and denies the motion in part. The court grants respondent’s motion to dismiss the proceeding on failure to serve the notices correctly as stated above. All other aspects of the motion are denied as moot or without merit. Petition is dismissed, the clerk is instructed to enter a judgment of dismissal in favor of the respondent. Nothing in this order precludes Petitioner from seeking remedy in this or another court following proper service. This constitutes the Decision and Order of the Court."

A RELOCATION REQUEST LEADS TO A CHANGE IN CUSTODY

 

MATTER OF HOLLY F. v. Daniel G., 2021 NY Slip Op 2575 - NY: Appellate Div., 3rd Dept. April 29, 2021:

"Pursuant to a 2017 order, Holly F. (hereinafter the mother) and Daniel G. (hereinafter the father) had joint legal custody of a child (born in 2009), with the mother having primary physical custody and the father having parenting time. In 2018, the mother commenced the first of these proceedings seeking permission to relocate with the child to West Virginia where her husband lived. The father opposed and cross-petitioned for primary physical custody of the child. Following fact-finding and Lincoln hearings, which were held over the course of 3½ months, Family Court, among other things, denied the mother's relocation request and granted the father primary physical custody of the child. The mother appeals. We affirm.

A change in circumstances exists based upon the mother's proposed relocation of the child and, therefore, the issue distills to whether the mother proved by a preponderance of the evidence that such relocation served the best interests of the child (see Matter of Kristen MM. v Christopher LL., 182 AD3d 658, 659 [2020]; Matter of Tanya B. v Tyree C., 168 AD3d 1154, 1154 [2019]). Family Court's findings and credibility assessments are accorded great deference and will not be disturbed when supported by a sound and substantial basis in the record (see Matter of James TT. v Shermaqiae UU., 184 AD3d 975, 977 [2020]; Matter of Michael BB. v Kristen CC., 173 AD3d 1310, 1311 [2019]).

In denying the proposed relocation, Family Court found that the mother gave little thought to the impact that relocation would have on the child's relationship with the father and that there was no evidence to support the mother's claim of improved financial circumstances in West Virginia. The hearing evidence discloses that the mother worked two days a week at a local veterinary clinic for minimum wage. During the middle of the hearing, the mother moved to West Virginia and left the child with the maternal grandparents. There was no indication that the mother was working in West Virginia, notwithstanding her earlier testimony that she had a job offer there. Indeed, the mother admitted that her husband was paying most of the bills. The mother's husband testified that he operated a crane business but he did not provide concrete testimony about his earnings.

The child, meanwhile, had been attending the same school in New York for three years and was doing well. There was also proof that the father had extended family in New York, who could assist him in taking care of the child, and that, when the mother previously relocated to Florida to pursue a different romantic interest before returning to New York, the father had followed the mother to Florida to maintain his relationship with the child. Because Family Court's findings are supported by a sound and substantial basis in the record, the determination denying the mother's proposed relocation request will not be disturbed (see Matter of Cook-Lynch v Valk, 126 AD3d 1062, 1064 [2015]; Matter of Julie E. v David E., 124 AD3d 934, 937 [2015]).

Regarding the issue of physical custody, once again, because there was a change in circumstances in view of the mother's proposed relocation, the issue is whether Family Court's determination to give the father primary physical custody was in the best interests of the child (see Matter of LeVar P. v Sherry Q., 181 AD3d 1008, 1009-1010 [2020]).^[1] The record discloses that the father could financially support himself and the child and he maintained suitable housing. Taking into account that the mother was financially dependent on her husband, as well as her various relocations, the court did not err in awarding the father primary physical custody of the child (see Matter of Smith v McMiller, 149 AD3d 1186, 1188 [2017]; Matter of Basden v Faison, 141 AD3d 910, 911-912 [2016]; Matter of Gentile v Warner, 140 AD3d 1481, 1483 [2016]). Finally, we note that, although not determinative, the court's determination is in accord with the position of the attorney for the child (see Matter of Coleman v Millington, 140 AD3d 1245, 1247 n [2016]).

Garry, P.J., Lynch, Clark and Colangelo, JJ., concur.

ORDERED that the order is affirmed, without costs.

[1] Although Family Court did not make any express findings as to whether awarding the father primary physical custody of the child furthered the best interests of the child, remittal is unnecessary because "the record is sufficiently developed for us to exercise our authority to make independent findings consistent with the best interests of the child" (Matter of Kathleen K. v Daniel L., 177 AD3d 1130, 1131-1132 [2019])."