A ROSE BY ANY OTHER NAME...

The child or "infant" in this case is approximately 14 years old and the mother wants to change the last name from father's to mother's.

Matter of A. Sve, Date filed: 2021-07-21, Court: Civil Court, Queens, Judge: Judge Wendy Changyong Li, Case Number: NC-000058-20/QU:

"Background 

A. Sve (“Petitioner”) sought to change the name of her son, Jon. Spe (“Infant”), to Jon. Sve. Infant’s father, M. Spe (“Father”), objected to the name change. This matter was previously adjourned before other courts and was subsequently assigned to this Court on May 27, 2021, on which day, this Court conducted a name change hearing where the Petitioner, the Infant, and the Father appeared via Microsoft Teams live video, pursuant to a hearing schedule established by the prior courts. 

Discussion

Civil Rights Law states that:

If the court to which the [name change] petition is satisfied thereby, or by the affidavit and certificate presented therewith, that the petition is true, and that there is no reasonable objection to the change of name proposed, and if the petition be to change the name of an infant, that the interests of the infant will be substantially promoted by the change, the court shall make an order authorizing the petitioner to assume the name proposed.

Civ. Rts Law §63.

The first prong of evaluating a child’s name change petition is the absence of a reasonable objection to the name change. Objections to the name change must relate to the infant’s best interests or the objecting parent’s relationship with the infant (Matter of Eberhardt, 83 AD3d at 123; Matter of Kobra [Hossain], 46 Misc 3d 54, 56 [App. Term 2d Dept 2014]). In our modern society, a child need not assume a father’s last name, may take a mother’s last name, and in adulthood, may choose another name altogether as adherence or non-adherence to old tradition does not necessarily impact either the infant’s interest or parent-child relations (see Matter of Eberhardt, 83 AD3d at 123; Matter of Kobra [Hossain], 46 Misc 3d at 56). In our instant matter, the Father testified to various conflicts with the Petitioner arising from their contested divorce. The Father’s only testimony that pertained to the name change was that the Petitioner, not the Infant, was behind the request for the name change, and that having the Infant to carry his name was all the Father had left. However, the Petitioner and the Infant both testified that the Infant was the one requesting the name change. The Father did not answer the Court’s specific inquiry as to the significance of the Infant having the Father’s last name, and instead referred to a discussion with the Infant regarding hyphenating the last names of the Petitioner and the Father. The Infant spontaneously denied such a discussion and denied it again in later testimony. The Infant specifically rejected hyphenating the names on the ground that it would contain the Father’s last name. The Father identified no specific benefit to the Infant for keeping the Father’s last name nor any specific detriment to the Infant for taking the Petitioner’s last name. To the extent the Father raised any objections to the name change, they were unrelated to the Infant’s best interests and related instead to concerns for himself and the contentious relationship between the Father and the Petitioner (see Matter of Eberhardt, 83 AD3d at 121-22).

Failing to visit the Infant is a further ground for rejecting the Father’s objections (see Matter of Eberhardt, 83 AD3d at 124; In re Cruz, 49 Misc 3d 155[A], 2015 NY Slip Op 51805[U] *1 [App Term 2d Dept 2015]). Although the Father generally suggested that the Petitioner interfered with his visitation, the Petitioner testified that she did not prevent the Infant from contacting the Father and that the Father had only seen the now 13 year old Infant four (4) times since the Infant was two years old. The Infant also testified that the Father had not been a part of his life.

Under the second prong, this Court may change an infant’s name only upon finding that the “interests of the infant will be substantially promoted by the change” (Matter of Stone v. Weinberg, 189 AD3d 1425, 1426 [2d Dept 2020]; Matter of Rudder v. Garber, 164 AD3d 511, 511 [2d Dept 2018]; Matter of Eberhardt, 83 AD3d 116, 121 [2d Dept 2011]; Matter of John Phillip M.-P., 41 AD3d 720, 721 [2d Dept 2007]); Matter of Siira, 7 AD3d 803, 803 [2d Dept 2004]). The court must evaluate the infant’s best interests in the totality of the circumstances (Matter of Stone v. Weinberg, 189 AD3d at 1426; Matter of Eberhardt, 83 AD3d at 123). Neither parent has a superior right to determine their child’s name (Matter of Stone v. Weinberg, 189 AD3d at 1426; Matter of Eberhardt, 83 AD3d at 123). Here, the Infant’s sharing the last name of his mother, the Petitioner, with whom he lives, is a valid concern as it would reduce embarrassment, harassment, and confusion in educational and social scenarios as the Infant testified during the hearing (Matter of John Phillip M.-P., 307 AD2d 318. 318-19 [2d Dept 2003]). The Infant testified that his mother, the Petitioner, raised him and that having his Father’s last name was like having a “random stranger’s name” (Transcript at 13). In addition, the Infant testified that his cousins often told him that he was “not part of the family because [he had a] different last name” than his cousins, which was Sve (Id. at 20). Using the Microsoft Teams breakout room feature, this Court separately spoke to the Infant outside the presence of both the Petitioner and the Father. The Infant alone testified that he considered his grandfather to be his father because he drove him to practice and that the family members with whom he spent time were Sve(s). The Infant testified several times that having a different name from his mother, the Petitioner, and the family with whom he spent time felt “weird” (Transcript at 19-20, 22). The Infant testified that he wanted the same last name as his mother, the Petitioner, for a sense of community.

Based upon the testimonies of the Petitioner, the Father and the Infant during the hearing, this Court finds that the Father had minimal contact with the Infant since he left the household, that Infant had substantial, ongoing contact with the Petitioner’s family who shared the Petitioner’s surname, and was potentially exposed to embarrassment and confusion by having his Father’s surname, while residing with his mother, the Petitioner. Under these circumstances, the name change would substantially promote the Infant’s interests (see Matter of Eberhardt, 83 AD3d at 124-25, see In re Cruz, 2015 NY Slip Op 51805[U] *1). Therefore, this Court grants Petitioner’s petition."

WHAT IS A CONSENT TO SERVICE FOR JURISDICTION PURPOSES

NEW YORK DANGEROUS LLC v. LIBROT, 2021 NY Slip Op 50584 - NY: Supreme Court June 24, 2021:

"Plaintiffs served Librot with the summons in this action by e-filing the summons on the New York courts' NYSCEF e-filing system. Librot argues that this was not proper service, and therefore that the action is subject to dismissal under CPLR 3211(a)(8) for lack of personal jurisdiction. This court agrees.

New York State ordinarily requires that service on a natural person be effected through a form of personal delivery: whether directly to the defendant or to the defendant's designated agent (see CPLR 308[1], [3]); by leave-and-mail (see CPLR 308[2]); or by nail-and-mail (see CPLR 308[4]). Absent the agreement of the party to be served, resort to service through e-filing on NYSCEF—like other methods of expedient service—requires court authorization. (See CPLR 308[5]; 22 NYCRR 202.5-b[f][1]; accord Wimbledon Financing v Laslop 169 AD3d 550, 550 [1st Dept 2019].) Plaintiffs did not obtain either Librot's agreement or court authorization here.

Plaintiffs argue that Librot has consented to service by e-filing in this action because he previously consented to e-filing in the first case. As this court has already held (see NYSCEF No. 25), that argument is without merit. Consent to e-filing generally must be obtained separately in each new action involving a given party. (See 22 NYCRR] 202.5-b[b][2][i].) And a party must additionally consent to e-filed service of initiating documents, in particular. (See 22 NYCRR 202.5-b[f][1].)

Plaintiffs also argue that Librot has waived his personal-jurisdiction defense by appearing in this action. This court disagrees. Librot has not filed a formal notice of appearance. Neither Librot's filing of a demand for the complaint, nor his later execution of adjournment stipulations, constituted an informal appearance. (See CPLR 3012[b] [demand for complaint]; Rich v Lefkovits, 56 NY2d 276, 278 [1982] [stipulations].) And Librot's sole other form of participation in this action before moving to dismiss was opposing plaintiffs' motion for default judgment, in part on jurisdictional grounds. (See NYSCEF No. 18 at 2.) Filing that affirmation was not the sort of participation in this action on the merits that might constitute an informal appearance—particularly since Librot is pro se. (See HSBC Bank USA v A & R Trucking Co., 66 AD3d 606, 607 [1st Dept 2009] [holding that defendant did not waive her jurisdictional objections by moving to vacate a default judgment on the ground of improper service].)"

WHEN AN ATTORNEY DIES OR IS OTHERWISE DISABLED DURING LITIGATION

There are certain protections given under CPLR 321 (c) but these can be waived.

WELLS FARGO BANK, NA v. KURIAN, 2021 NY Slip Op 4509 - NY: Appellate Div., 2nd Dept. July 21, 2021:

"....There are times in litigation when a party's attorney dies, becomes physically or mentally incapacitated, is removed or suspended from the practice of law, or otherwise becomes disabled. These events occur through no fault of the party. Professor Vincent C. Alexander has summarized the disabling events within the scope of CPLR 321(c) as circumstances of force majeure (see Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C321:3).

Here, the defendant's loss of counsel was occasioned by the attorney's suspension from the practice of law. The number of attorneys who are suspended from practicing law is, thankfully, limited. However, when it occurs, as with an attorney's death, incapacitation, removal from an action, or other disability, CPLR 321(c) protects the client by automatically staying the action from the date of the disabling event. The obvious purpose of the stay is to vest the party who has lost counsel with a reasonable opportunity to obtain new counsel before further proceedings are taken (see Moray v Koven & Krause, Esqs., 15 NY3d 384, 389; Matter of Cassini, 182 AD3d 13, 41; Hendry v Hilton, 283 App Div 168, 171; Franklin Natl. Bank v Lake Credit Corp., 58 Misc 2d 981, 982 [Sup Ct, Nassau County]) and thereby avoid prejudice that might conceivably arise from the absence of counsel in the interim (see Fusco v Shailya Taxi Corp., 267 AD2d 86, 88). Orders or judgments that are rendered in violation of the stay provisions of CPLR 321(c) must be vacated (see Duandre Corp. v Golden Krust Caribbean Bakery & Grill, 140 AD3d 481; Soldovieri v Flack, 106 AD3d 717, 719; Galletta v Sui-Mei Yip, 271 AD2d 486; McGregor v McGregor, 212 AD2d 955, 956; Brogan v Mary Immaculate Hosp. Div. of Catholic Med. Ctr. of Brooklyn & Queens, 209 AD2d 663, 664; Feola v Moore McCormack Lines, 101 AD2d 784, 784-785).

The express language of CPLR 321(c) sets no particular time limit to the stay of proceedings that is automatically triggered by a qualifying event. Of course, the shield of a stay should not be used as an indefinite sword against any continuation of the action. CPLR 321(c) therefore provides any adversary party with a mechanism for lifting a stay—by serving a notice upon the nonrepresented party to obtain a new attorney. The notice is to be served personally or in such other manner as the court directs (see CPLR 321[c]). Once the notice contemplated by CPLR 321(c) is properly served (see Matter of Allstate Ins. Co. v Phillips, 128 AD2d 518, 519), the automatic stay of the action remains in effect for another 30 days, but is then lifted upon the expiration of that period. Thus, there are actually two ways in which a CPLR 321(c) stay may be lifted. One way is if the party that lost its counsel retains new counsel at its own initiative, or otherwise communicates an intention to proceed pro se (see Small Bus. Admin. v Mills, 203 AD2d 654, 655; Telmark, Inc. v Mills, 199 AD2d 579, 580-581). The second way is by means of the above-described notice procedure pursuant to CPLR 321(c) (see Matter of Cassini, 182 AD3d at 41; Leonard Johnson & Sons Enters. v Brighton Commons Partnership, 171 AD2d 1059, 1060; Carder v Ramos, 163 AD2d 732, 733).

Here, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference on April 8, 2014, at a time when no event allowing for the lifting of the CPLR 321(c) stay had yet occurred. No new attorney had yet appeared on behalf of the defendant, and there is no indication that the defendant had elected to proceed pro se in the action during that time. Moreover, the plaintiff moved for summary judgment without having served a CPLR 321(c) notice demanding the appointment of new counsel and without abiding by the statutorily mandated 30-day waiting period that follows the notice.

Nevertheless, the defendant's new counsel formally appeared in the action six days after the plaintiff's summary judgment motion was filed, submitted papers in opposition to that motion, and cross-moved to dismiss the complaint insofar as asserted against the defendant, all within the original or adjusted briefing schedule. The defendant's opposition papers and cross motion were considered by the Supreme Court on the merits. As a result, the protection afforded to parties under CPLR 321(c) when attorneys die or are incapacitated, removed, suspended, or otherwise disabled was no longer necessary or relevant, as the defendant had obtained counsel who timely opposed the plaintiff's summary judgment motion and who sought affirmative relief by means of a cross motion to dismiss the complaint. The appearance and activities of the defendant's new counsel operated, in effect, as a waiver of the protections otherwise afforded to the defendant by CPLR 321(c) (cf. Elmhurst Iron Works v Alfieri Gen. Contr. Co., 45 AD2d 971, 972).

Waiver has long been defined as the voluntary and intentional relinquishment of a known right (see Clark v West, 193 NY 349, 360). It is a doctrine of general application confined to "no particular class of cases" but which "implies an election to dispense with something of value, or forego some advantage which the party waiving it might at its option have demanded or insisted upon" (id. at 360). Here, the defendant retained new counsel while the CPLR 321(c) stay of proceedings was in effect, and timely opposed the plaintiff's motion for summary judgment. Under such circumstances, the defendant elected to forego the protections afforded by CPLR 321(c).

Therefore, we hold that even in the absence of service of a notice to appoint new counsel upon the unrepresented party as procedurally required by CPLR 321(c), a continuing stay under the statute may be waived by the unrepresented party's affirmative conduct of retaining new counsel, effective as of the time that new counsel formally appears in an action. Here, since the defendant's waiver of the stay occurred before her opposition papers were due in response to the plaintiff's motion, inter alia, for summary judgment and for an order of reference, the fact that the plaintiff filed its motion on an earlier date, when the stay was still in effect, is of no moment. Further, in regards to the suspension of the original attorney of record, the defendant's opposition papers and cross motion did not include any argument, at that time, that the motion before the Supreme Court violated the stay provisions of CPLR 321(c), further bolstering our conclusion that any issue regarding the existence of a stay had been waived (see Matter of Cassini, 182 AD3d 53).

The facts of this appeal are distinguishable from Livore v Malik (305 AD2d 641), as relied upon by the defendant. In Livore, the Supreme Court granted a defendant's unopposed motion for summary judgment when neither the court nor the parties were aware that the plaintiff's attorney had been suspended from the practice of law. This Court held that an order and a judgment of the Supreme Court must be vacated, as they were entered in violation of CPLR 321(c) (see Livore v Malik, 305 AD2d at 641). In Livore, an order and a judgment were entered in violation of CPLR 321(c) while the action was stayed, whereas here, the appearance and participation of the defendant's new counsel operated as a waiver of the statutory stay. Thus, Livore does not control the result here.

..."

EMAILS AND STIPULATIONS

T

This case was also reported in today's NYLJ.

MATTER OF PHILADELPHIA INS. INDEM. CO. v. Kendall, 2021 NY Slip Op 4284 - NY: Appellate Div., 1st Dept. 2021"

"CPLR 2104, entitled "Stipulations," reads in pertinent part: "An agreement between parties or their attorneys relating to any matter in an action . . . is not binding upon a party unless it is in a writing subscribed by him or his attorney. . . ." The Court of Appeals has said that "[t]he plain language of the statute directs that the agreement itself must be in writing, signed by the party (or attorney) to be bound" (Bonnette v Long Is. Coll. Hosp., 3 NY3d 281, 286 [2004]).^[2]

The Court of Appeals has not opined on whether emails can satisfy CPLR 2104. In 1996, the Court of Appeals did find that a preprogrammed name on a fax transmission did not fulfill the subscription requirement (see Parma Tile Mosaic & Marble Co. v Estate of Short, 87 NY2d 524 [1996]). However, the Parma court wrote in a different era, when paper records were still an important modality, maybe the most important modality, of recording information in law and business. Since that time, the electronic storage of records has become the norm, email has become ubiquitous, and statutes allowing for electronic signatures have become widespread.^[3] For these reasons, and those that follow, we find that Parma is not controlling.

Supreme Court relied on the Second Department's decision in Forcelli v Gelco Corp. (109 AD3d 244 [2d Dept 2013]). Forcelli is in accord with this Court's precedent, and we have cited it as persuasive authority (see Jimenez v Yanne, 152 AD3d 434, 434 [1st Dept 2017]). In Forcelli the plaintiff reached an agreement with the defendant to settle his personal injury case while the latter's summary judgment motion was pending, and the parties' counsel exchanged emails confirming that the plaintiff's counsel had accepted the offer and would prepare the release for the plaintiff to sign (109 AD3d at 245-246). The same day that the court granted the defendant's motion for summary judgment dismissing the case, the plaintiff's counsel sent the requested documents to the defendant's counsel (id. at 246-247). The defendant then refused to proceed with the settlement (id. at 247).

The Second Department held that the parties' counsels' emails created a binding settlement agreement (id. at 248-251). As for CPLR 2104's subscription requirement, the Court held that the defendant's counsel's email containing her printed name at the end thereof supported the conclusion that she effectively signed the email message:

"we note that the subject email . . . ended with . . ., `Thanks Brenda Greene,' which appears at the end of the email text. This indicates that the author purposefully added her name to this . . . email message, rather than a situation where the sender's email software has been programmed to automatically generate the name of the email sender, along with other identifying information, every time an email . . . is sent" (id. at 251). The rule espoused by Forcelli and our own precedent is that an email in which the party's or its attorney's name is retyped at the end of an email is sufficiently subscribed for purposes of CPLR 2104.

Conversely, cases have found that an email in which a party's or its attorney's name is prepopulated in the email is not sufficiently subscribed for purposes of CPLR 2104 (see Bayerische Landesbank v 45 John St. LLC, 102 AD3d 587, 587 [1st Dept 2013], lv dismissed 22 NY3d 926 [2013]; see also LIF Indus., Inc. v Fuller, 2015 WL 1744814, *6 [Sup Ct, NY County, Apr. 16, 2015, Scarpulla, J., index No. 116411/10]).

We now hold that this distinction between prepopulated and retyped signatures in emails reflects a needless formality that does not reflect how law is commonly practiced today. It is not the signoff that indicates whether the parties intended to reach a settlement via email, but rather the fact that the email was sent. Since 1999, New York State has joined other states in allowing, in most contexts, parties to accept electronic signatures in place of "wet ink" signatures. Section 304(2) of New York's Electronic Signatures and Records Act (ESRA) provides: "unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand." Moreover, the statutory definition of what constitutes an "electronic signature" is extremely broad under the ESRA, and includes any "electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record" (State Technology Law § 302[a]). We find that if an attorney hits "send" with the intent of relaying a settlement offer or acceptance, and their email account is identified in some way as their own, then it is unnecessary for them to type their own signature. This rule avoids unnecessary delay caused by burden-shifting "swearing contests over whether an individual typed their name or it was generated automatically by their email account" (Princeton Indus. Prods., Inc. v Precision Metals Corp., 120 F Supp 3d 812, 820 [ND Ill 2015]).

An intuitive concern expressed by some courts is that email's ubiquity and ease appears to undercut its intentionality. The Second Department in Forcelli, and other courts that have required a retyped signature (see Rawald v Dormitory Auth. of the State of N.Y., 70 Misc 3d 1217[A] 2021 NY Slip Op 50114 [u] [Sup Ct, NY County 2021]), have expressed unease about the casual nature of email. It is fair to say that most email users have on occasion sent emails that they did not mean to transmit, or that they regretted soon after transmission. However, here we are considering a specific subcategory of email on a subject freighted with ethical obligations. A lawyer has ethical obligations to communicate all settlement offers to a client and to counsel the client on the consequences of settlement. New York's Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.2(a) states that "[a] lawyer shall abide by a client's decision whether to settle a matter." Rule 1.4(a)(iii) requires a lawyer to "promptly inform the client of . . . material developments in the matter including settlement or plea offers." These ethical obligations help to ensure that an attorney considers their authority before communicating settlement offers and acceptances to opponents, whatever the mode of communication.^[4]

While we jettison the requirement that a party or a lawyer retype their name in email to show subscription, that does not mean that every email purporting to settle a dispute will be unassailable evidence of a binding settlement.

First, there may be issues of authentication. Email accounts can be hacked. An email from an attorney's account is presumed to be authentic, but that is a rebuttable presumption. Just as a party may attack a hardcopy settlement offer or acceptance as a forgery, a party that claims an email was the product of a hacker (or of artificial intelligence, or of some other source) may rebut its authenticity.

Second, an email settlement must, like all enforceable settlements, set forth all material terms. That condition is satisfied here where the sole issue is how much respondent would accept in settlement of her SUM claim. Respondent argues that the settlement was conditioned on the respondent signing the release. We disagree. The Release and Trust Agreement was to be further documentation of the binding agreement constituted by the parties' counsel's emails agreeing to settle respondent's claim for $400,000 (see Kowalchuk v Stroup, 61 AD3d 118, 123 [1st Dept 2009]), rather than something on which that binding agreement was contingent (see Trolman v Trolman, Glaser & Lichtman, P.C., 114 AD3d 617, 618 [1st Dept 2014], lv denied 23 NY3d 905 [2014]; Shah v Wilco Sys., Inc., 81 AD3d 454 [1st Dept 2011], lv dismissed 17 NY3d 901 [2011]). The material term of the parties' agreement to settle respondent's claim being the sum of money that petitioner would pay respondent, respondent's execution of a general release was essentially a ministerial condition precedent to payment (see CPLR 5003-a[a]; Anghel v Utica Mut. Ins. Co., 164 AD3d 1294, 1296 [2d Dept 2018]; compare Teixeira v Woodhaven Ctr. of Care, 173 AD3d 1108 [2d Dept 2019] [email exchange that included "`consider it settled'" did not show mutual accord where settlement was subject to resolution of related proceeding in Surrogate's Court]).

Respondent's remaining arguments are without merit. Her reliance on Philadelphia's counsel's email urging speed in executing the release to avoid respondent "reneging" is misplaced. The email exchange exhibits offer and acceptance; in this context, an expression of concern that a party might renege presupposes the existence of an agreement. Additionally, the doctrine of mutual mistake is not applicable where the existence of an arbitral award was easily ascertainable before entering into the settlement (see P.K. Dev. v Elvem Dev. Corp., 226 AD2d 200 [1st Dept 1996])."

MEDIATION & ARBITRATION

 

CHILD CUSTODY - RELOCATION PERMITTED WITHOUT HEARING AND THE "SUBURBAN FACTOR"

H.K. v. R.C., Date filed: 2021-07-15, Court: Supreme Court, New York, Judge: Justice Matthew Cooper, Case Number: 305890/13:

"In the wake of the COVID-19 pandemic, there has been a marked return to a demographic shift that has occurred at various times in our city’s history: the move to the suburbs by families with young or school-age children. As a result, this court has seen a significant increase in the number of cases where a divorced or divorcing parent is seeking to leave New York City and relocate with the children over the objection of the other parent. In many instances, the proposed move is to suburban towns in surrounding metropolitan areas like Westchester, Long Island or New Jersey; in others it is to suburban communities in more distant locales like North Carolina or Pennsylvania. In this post-judgment divorce motion, the plaintiff-mother requests permission to relocate with the parties’ nine-year-old child to the village of Scarsdale, in Westchester County. Scarsdale is approximately 10 miles from the New York City border and 20 miles from her current residence in Manhattan’s Upper West Side. The defendant-father, who himself lives in the suburbs, albeit in Northeastern New Jersey, opposes the move.

The resolution of the motion requires the court to make two related but distinct determinations. The first is whether the move to Scarsdale is in the child’s best interests, with the focus on how the relocation will benefit the child weighed against how it will impact the child’s contact with defendant. The second is whether this “best interests” determination can be made summarily on the motion papers and oral argument alone. Although summary disposition offers the only path to a decision being rendered in time for the child to start the new school year, it would represent a major departure from the standard process employed by this court in relocation cases. That process generally includes appointing an attorney for the child, ordering a forensic evaluation, holding an evidentiary hearing, and, if warranted, conducting an in camera interview with the child.

BACKGROUND

The parties have a parenting agreement dated October 28, 2015 (the “Agreement”), which was incorporated into the Judgment of Divorce that was signed on September 19, 2016. Under its terms, the parties have joint legal custody of the child, but it is specified that the child is to “reside primarily with the Mother.” The Agreement provides defendant with a regular access schedule of alternate weekends from Friday at 7:00 p.m. until Sunday at 5:30 p.m., along with one weekly weekday dinner from 6:00 p.m. to 8:00 p.m. It also entitles him to substantial holiday and vacation parenting time.

At the time the parties entered into the Agreement, the plaintiff and child were residing in the Upper West Side apartment where the parties lived during the marriage, while defendant had already chosen to leave Manhattan to live in Livingston, New Jersey, a suburban community some 25 miles west of New York. Plaintiff continues to reside with the child in the Manhattan apartment, and defendant continues to reside in his home in Livingston. Plaintiff’s alternate weekend access takes place in Livingston, requiring him to drive back and forth each time to do the pick-ups and drop-offs. The weekly dinners occur in Manhattan. Plaintiff contends, and defendant does not seriously dispute, that although defendant regularly exercises his weekend and dinner access, he does not avail himself of much of the holiday and vacation time to which he is entitled and rarely partakes in the child’s everyday activities.
Included in the Agreement is a “relocation clause.” It states that “the Mother shall not relocate her residence outside of Manhattan without the Father’s consent, or an order of the Court.” It further provides that plaintiff must give defendant 60 days’ notice of her intent to relocate, and that the notice shall include “proposed modifications of the pick-up and drop-off provisions.”

On January 4, 2021, plaintiff sent an email to defendant advising him of her intent to relocate to Scarsdale. She prefaced the email by stating that the COVID-19 pandemic “has devasted NYC” and that “thousands of families have already left the city, including more than 100 students from [the child's school] alone.” Plaintiff went on to say that she feared that this “exodus out of the city” would result in lasting damage to the public school system and otherwise “negatively impact [the child] and his future.”

Plaintiff included in her email an explanation as to why she believed Scarsdale was the place that could best meet the needs of their growing child — educationally, socially, and in terms of overall quality of life — while at the same time affording her the short work commute into Manhattan necessary to balance her employment and parenting duties. With regards to the commute, she pointed out that Scarsdale has frequent and direct train service to Grand Central Station and that her office immediately adjoins the station.

In her email to defendant, plaintiff further emphasized that the driving time between defendant’s home in New Jersey and Scarsdale was only slightly longer than that between the Upper West Side, thereby ensuring that there would be little, if any, interference with his access. Additionally, as an accommodation to defendant, plaintiff offered to modify the pick-up and drop-off provisions of the Agreement by assuming responsibility for transporting the child to and from Livingston on one of the alternate access weekends each month.

Defendant responded to plaintiff by email on January 12, 2021. In his email, he informed plaintiff that he did not agree to her relocating to Scarsdale “or any location outside of Manhattan other than Northeastern New Jersey.” Plaintiff subsequently explained that a relocation to New Jersey would be impractical as the lengthy commute would severely interfere with her ability to attend to the child’s needs the way she always has.

Upon defendant’s refusal to consent to her plan for the relocation to Scarsdale, plaintiff sought court permission to do so by way of the instant motion, which was brought by Order to Show Cause on March 8, 2021. After having had the matter fully briefed and the parties engage in protracted but ultimately unsuccessful settlement talks, the court heard oral argument on June 15, 2021. This decision follows.

DISCUSSION

Is the Proposed Move in the Child’s Best Interests?

Any discussion of parental relocation invariably cites, as it should, the landmark decision by our Court of Appeals in Matter of Tropea v. Tropea, 87 NY2d 727 (1996). The reasons for this are twofold. One is that Judge Titone’s decision contains an abundance of memorable and oft quoted passages that, despite the profound changes that have occurred in the way we look at families and deal with parenting, ring as true today as they did 25 years ago. These include the hard-truth description of the impact divorce has on parenting: “[l]ike Humpty Dumpty, a family, once broken by divorce, cannot be put back together in precisely the same way” (id. at 740); the recognition of the supremacy of children’s interest over those of a parent in matters such as this: “[c]hildren are not chattel, and custody and visitation decisions should be made with a view toward what best serves their interests, not what would reward or penalize a purportedly ‘innocent’ or ‘blameworthy’ parent” (id. at 742); the emphasis on the unique nature of every relocation case (“…each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominate emphasis being placed on what outcome is most likely to serve the best interests of the child” (id. at 739); and finally, the acknowledgment of just how difficult these disputes are for those who must decide them: (“[r]elocation cases…present some of the knottiest and most disturbing problems that our courts are called upon to resolve” (id. at 736).

The other reason Matter of Tropea remains so essential is that it singlehandedly changed the standard for relocation. Previously, courts had applied a formulaic approach whereby if it could be shown that the non-moving parent would suffer a disruption of “regular and meaningful access” with the child as a result of the relocation, the parent seeking it would have to demonstrate “exceptional circumstances” to justify the move. Tropea directed courts to take a more multifaceted “best interests” approach requiring the consideration of a wide range of factors, with those most affecting the “rights and needs of the children [to be] accorded the greatest weight” (id. at 739). While many of the factors are enumerated, such as “each parent’s respective reasons for moving and opposing the move” and “the degree to which the custodial¹ parent’s and the child’s life may be enhanced economically, emotionally, and educationally” (id. at 741), the decision makes it clear that courts are free to consider such other factors as the circumstances of the case may require in order to determine what is in the child’s or children’s best interests.

In making her case for moving to Scarsdale, plaintiff relies initially on two factors that are not to be found in Tropea: one that might be called the “COVID factor” and the other the “suburban factor.” With regards to COVID, plaintiff, both in her email to defendant and her moving papers, paints a dispiriting view of New York City as it appeared at the time: schools closed and businesses shuttered, and with people fortunate enough to have the ways and means to do so fleeing the city in droves. Happily, plaintiff’s apocalyptical fears were transitory. With mass vaccination and other measures bringing the virus more under control, the New York of now — schools open, businesses resuming, and the population returning — is far different from that of January 4, the date plaintiff gave notice of her intent to move, or even March 8, the date she brought her relocation motion. Accordingly, the COVID-19 pandemic, as things stand now, cannot be viewed as a factor favoring the relocation.

The “suburban factor,” which most often includes an educational enhancement component, is more availing. As raised here and asserted in similar cases before this court and others, it can be summarized succinctly as this: the prospect of good public schools, backyard barbeques, bicycles in the driveway, and carpools (see e.g. Matter of S.F. v. G.F., 26 Misc 3d 1207(A) [Fam Ct NY County, 2009]). The problem with using this factor as a justification for a relocation is that it calls upon the court to make what is, in effect, a value judgment as to the relative merits of suburban life versus city life, something that courts are rarely in the position to do or, for that matter, should do. It also requires a court to assess the quality of one school system compared to another, again something that courts in a case like this are generally not in a position to do (see Pamela T. v. Marc B., 33 Misc 3d 1001, 1011 [Sup Ct NY County, 2011]). Fortunately, this court need not wrestle in this instance with those thorny issues. This is because defendant, having himself chosen to accept the benefits of suburban life, is scarcely in the position to complain that plaintiff wants those same benefits for the child and herself.

Next to be considered in this best-interests analysis is each parent’s respective reasons for seeking or opposing the move, one of the factors specifically mentioned in Tropea. This factor is decidedly in plaintiff’s favor. Even if one might question whether a move to a suburban community like Scarsdale would, in the end, prove as beneficial as plaintiff hopes, plaintiff clearly believes that it will. In fact, she appears so committed to doing what she perceives to be the best course of action for the child that she is willing to modify the pick-up and drop-off provisions of the Agreement in defendant’s favor.

Defendant’s reason for opposing the move, on the other hand, seem far more focused on his own needs rather than the child’s. Other than voicing the opinion that the child is “doing well” in his current school and home, and suggesting that the city offers a richer, more multicultural, experience than Scarsdale (a suggestion that sounds particularly disingenuous coming from someone living in Livingston, New Jersey with young children of his own), his major concern centers on the increased length of his commute. Although the change might very well make defendant’s life somewhat more difficult, especially considering that he is a doctor with a practice in New Jersey and that he now has a second family there, there is nothing to indicate that it would make it unduly difficult. Whatever increase there is in the driving time as a result of the relocation from Manhattan to Scarsdale can be measured in minutes rather than hours, and plaintiff has shown that she is prepared to relieve defendant of a good part of that driving. If Tropea teaches us anything, it is that striving to do what is best for a child of divorce requires significant sacrifice from both parents.

In the final analysis, the proposed move here of 20 miles will have little to no impact on either the quality or quantity of defendant’s parenting time with the child. Defendant cites to cases where courts have disallowed even very short child relocations (see e.g. Lipari v. Lipari, 146 AD3d 870 [2d Dept 2017); Schwartz v. Schwartz, 70 AD3d 923 [2d Dept 2010]). These cases, as well as the above referenced Matter of S.F. v. G.F (relocation denied from Manhattan to Scarsdale where father was “hands-on” and had “day to day involvement” with the child), share one salient fact: the move threatened to change the fundamental nature of the non-moving parent’s relationship with the child, a relationship characterized by the parent’s deep involvement in the child’s everyday life. While defendant by all indications is a good and loving father, there is no indication that he has that level of everyday involvement. Instead he has always been a parent who sees his child largely on alternate-weekends and for one midweek dinner.

The record clearly demonstrates that the child’s move to Scarsdale will not alter defendant’s access schedule in any measurable way. Coupled with the other factors that have been discussed, this compels the court to conclude that the proposed location is in the child’s best interests and should be allowed.

Is the Court Able to Permit the Relocation Without a Hearing?

Ordinarily, a hearing is required where matters of custody are concerned. This is because such “determinations require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal results for the child (S.L. v. J.R., 27 NY3d 558, 563 [2016]).” This is equally true for relocation cases, where the “weight of the interests as stake” (id.) can be every bit as high as in any child custody proceeding (see Matter of Conroy v. Vaysman, 191 AD3d 977, 980 [2d Dept 2021] ["(t)he court erred in not conducting a best interests analysis under Matter of Tropea. Further, as facts essential to the best interests analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required"]).

Inasmuch as relocation cases generally involve hotly contested factual scenarios, which often include disputes as to the child’s needs and wishes, not only is a hearing necessary, but so is the appointment of an attorney for the child and a forensic evaluator. Without their input, the court would be unable to make the required “careful and comprehensive” determination as to the child’s best interests.

This case, however, illustrates the overriding principle that there are “no absolutes” in child custody cases (Friederwitzer v. Friederwitzer, 55 NY2d 89, 93 [1982]). Here, there simply are no disputes as to “facts essential to the best interests analysis and the circumstances surrounding such facts” that rise to the level of requiring an attorney for the child, a forensic evaluation, or a hearing. All that the court needs to know — be it distances, driving times, the parties’ respective reasons for seeking or opposing the move, and the role each parent plays in the child’s life — can readily be ascertained from the motion papers alone. Thus, this is one of those rare instances where the determination on relocation can be made without the need for further proceedings.

CONCLUSION

Having determined that the proposed move to Scarsdale from Manhattan will not unduly interfere with defendant’s rights of parental access with the child and that the move is in the child’s best interests, the court grants plaintiff’s motion seeking relocation upon the terms she proposes. Plaintiff is directed to submit an order to this effect.

Footnotes

1. Tropea and relocation cases both prior and subsequent generally refer to the parent who is seeking to relocate as the "custodial" parent and the parent who is remaining behind as the "noncustodial" parent. With joint custody becoming as prevalent as it is now (this case being one of them), the references to custodial status are becoming increasingly less applicable."

DEATH AND DIVORCE

Robert Woodruff Anderson wrote in the play I Never Sang for My Father that “Death ends a life, but it does not end a relationship, which struggles on in the survivor’s mind toward some final resolution, some clear meaning, which it perhaps never finds.”  Does this also hold true in a divorce when a party passes during the proceeding?

Bomer v. Dean, 2021 NY Slip Op 3937 - NY: Appellate Div., 4th Dept. June 7, 2021:

"Defendant and Joyce B. Dean (decedent) were married in 1997. Although they had no children together, decedent had two children from a prior marriage, one of whom is plaintiff. Defendant and decedent moved from Texas to Monroe County in March 2013. Shortly thereafter, decedent visited plaintiff in Texas, but never returned. A few months later, she removed defendant as her power of attorney, appointing plaintiff in defendant's stead. In March 2014, decedent commenced a divorce action against defendant. In July 2016, Supreme Court dismissed most of the 2014 divorce action on jurisdictional grounds and converted the remaining aspects of that action—i.e., requests for maintenance, medical and dental coverage, and medical expenses—into a spousal support proceeding under Family Court Act article 4 (2014 support action).

Shortly thereafter, decedent commenced another divorce action (2016 divorce action) that was practically identical to the action commenced in 2014. In May 2019, decedent died while both the 2016 divorce action and the 2014 support action were still pending. Several months later, decedent's attorney moved to substitute plaintiff—who served as decedent's executor in a probate proceeding in Texas—as plaintiff in both the 2014 support and the 2016 divorce actions so that he could pursue decedent's claims for retroactive spousal support and attorneys' fees. Defendant opposed the motion and made an oral cross motion to dismiss the claims for retroactive spousal support and attorneys' fees in the 2014 support and 2016 divorce actions, which he maintained had both abated upon decedent's death. In his written cross motion, he also sought, inter alia, sanctions against decedent's estate pursuant to 22 NYCRR 130-1.1. Defendant appeals from an order insofar as it effectively granted the motion to substitute plaintiff in both actions and denied those parts of the cross motion with respect to decedent's claims for spousal support under Family Court Act article 4 and attorneys' fees in both actions, and we reverse the order to that extent.

We agree with defendant that, under the circumstances of this case, both the 2014 support action and the 2016 divorce action abated upon decedent's death, precluding the court from taking any further measures in either action. It is well settled that a divorce action abates upon the death of either party to the action because the marital relationship ceases to exist at that time (see Cornell v Cornell, 7 NY2d 164, 169 [1959], rearg denied 7 NY2d 995 [1960], mot to amend remittitur granted 7 NY2d 996 [1960]; Adams v Margulis, 191 AD3d 1478, 1480 [4th Dept 2021]; First Metlife Invs. Ins. Co. v Filippino, 170 AD3d 672, 674 [2d Dept 2019]). When abatement occurs, the court lacks jurisdiction to act (see First Metlife Invs. Ins. Co., 170 AD3d at 674; Bordas v Bordas, 134 AD3d 660, 660 [2d Dept 2015]; King v Kline, 65 AD3d 432, 433 [1st Dept 2009]). The abatement rule also typically applies to ancillary issues, such as maintenance and attorneys' fees sought in a divorce action, which are "necessarily dependent on the existence of a divorce action" (King, 65 AD3d at 433) and, with respect to those issues, applies regardless of which spouse—payee or payor—has died (see generally id.; Flaherty v Lynch, 292 AD2d 340, 341 [2d Dept 2002], lv denied 99 NY2d 529 [2002]).

There are, however, some exceptions to the rule that divorce actions abate upon the death of a party. Specifically, courts have recognized that abatement does not occur when a party's rights have vested prior to the death or when all that remains to be done in the action following a party's death is for the court to effectuate a ministerial act (see e.g. Cornell, 7 NY2d at 169-170; Charasz v Rozenblum, 128 AD3d 631, 632 [2d Dept 2015]; Matter of Agliata, 222 AD2d 1025, 1025 [4th Dept 1995]).

Here, neither exception applies with respect to the 2016 divorce action inasmuch as decedent had not acquired any vested rights with respect to maintenance or attorneys' fees, nor were only ministerial acts remaining in that action. Consequently, we conclude that, despite properly concluding that the maintenance and equitable distribution relief sought in the 2016 divorce action abated upon decedent's death, the court erred to the extent that it granted that part of the motion to substitute plaintiff in that action and to the extent that it converted any portion thereof into a proceeding for spousal support. Thus, the court also erred in denying the cross motion with respect to the claim for attorneys' fees asserted in the 2016 divorce action, which also abated upon decedent's death. In short, once the 2016 divorce action abated upon decedent's death, the court lacked power to do anything in that action (see generally Bordas, 134 AD3d at 660; King, 65 AD3d at 433).

Similarly, we conclude that the 2014 support action, including any related claim for attorneys' fees, also abated upon decedent's death and should have been dismissed. Akin to the abatement rule that applies in the context of a divorce action, we note that any order of support terminates upon the death of either party (see Family Ct Act § 412[10][d]). Inasmuch as no order of support was ever entered on decedent's behalf with respect to the 2014 support action, we conclude that decedent did not acquire any vested rights to spousal support or any other ancillary relief in that action prior to her death, and therefore that action fully abated upon decedent's death (see generally Sperber v Schwartz, 139 AD2d 640, 642 [2d Dept 1988], lv dismissed 73 NY2d 871 [1989], lv denied 74 NY2d 606 [1989]; cf. generally Peterson v Goldberg, 180 AD2d 260, 263-264 [2d Dept 1992], lv dismissed 81 NY2d 835 [1993]).

Indeed, to conclude otherwise would essentially convert an unresolved and unliquidated spousal support claim into a vested right to the same. In substance, that would elevate that claim over any right to maintenance in the 2016 divorce action, which the court properly concluded had abated upon decedent's death. Absent legislation to the contrary, we decline to adopt that view. Also supporting our conclusion that unresolved and unliquidated spousal support claims abate upon the death of a party, much like maintenance claims do, we note that legislative revisions to the statute governing the computation of spousal support suggest that it should be treated identically to maintenance claims (see Merril Sobie, Supp Practice Commentaries, McKinney's Cons Laws of NY, 2015 Electronic Update, Family Ct Act § 412). Consequently, the court erred in granting that part of the motion to substitute plaintiff in the 2014 support action and in denying those parts of the cross motion with respect to the claims for spousal support and attorneys' fees asserted in that action.

Finally, we agree with plaintiff that defendant's contention with respect to sanctions is not properly before us because defendant did not appeal from that part of the order denying his cross motion insofar as it sought sanctions (see generally CPLR 5515[1]; Matter of Long Is. Pine Barrens Socy., Inc. v Central Pine Barrens Joint Planning & Policy Commn., 113 AD3d 853, 855 [2d Dept 2014]; City of Mount Vernon v Mount Vernon Hous. Auth., 235 AD2d 516, 517 [2d Dept 1997])."

EVERY THURSDAY - LIVE NY COURT "SPECIAL TERM"

The NYS Academy of Trial Lawyers announced the premiere of "Special Term," a live stream of virtual court proceedings, which started Thursday, July 15, 2021, featuring civil motion arguments from the Courtroom of Hon. Catherine Nugent Panepinto of Erie County Supreme Court, with the first session beginning at  9:30 AM and the second session starting at 11 AM.  

The Academy's Associate Board of Directors Introduces Special Term

 

POOR JOB PERFORMANCE OR DISCRIMINATION?

BASELICE v. ASTRAZENECA LP, No. 19-CV-4931 (JPO), United States District Court, S.D. New York, July 8, 2021:

"OPINION AND ORDER

J. PAUL OETKEN, District Judge.

Plaintiff Mary Baselice brings this case against Defendant AstraZeneca LP, her former employer, claiming that AstraZeneca violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., when it terminated her based on her pregnancy.¹ On September 17, 2020, AstraZeneca moved for summary judgment on Plaintiff's claim. For the reasons that follow, AstraZeneca's motion is granted.

I. Background

In October 2010, Plaintiff joined AstraZeneca as a Pharmaceutical Sales Specialist. (Dkt. No. 42 ¶ 1.) In this role, Plaintiff was responsible for making sales calls to healthcare providers, including doctors and pharmacies, to encourage them to sample and ultimately use AstraZeneca products. (Dkt. No. 42 ¶¶ 7-11). Plaintiff was expected to "engage[] in selling activities" for 7.5 hours each day, starting at 8:30 A.M. (Dkt. No. 42 ¶ 13.) She was further expected to log her sales calls in a program called "Veeva," AstraZeneca's customer relationship management system. (Dkt. No. 42 ¶¶ 16-18.)

From August 2016 to the date of Plaintiff's termination, Plaintiff's direct manager was Beth Rumore, a District Sales Manager. (Dkt. No. 42 ¶ 4.) Rumore, in turn, reported to Andrew Strow, a Commercial Business Director. (Dkt. No. 42 ¶ 6.)

In 2016 and 2017, Rumore awarded Plaintiff "positive" year-end reviews, assessing that Plaintiff "meets expectations" and could be "proud" of her work. (Dkt. No. 50 ¶¶ 16-17, 18-19.) Still, across these years, Rumore on occasion spoke with Plaintiff about certain problems with Plaintiff's performance. As early as August 2016, Rumore spoke with Plaintiff about her failure to enter calls in Veeva and to maintain standard work hours. (Dkt. No. 41-11.) Rumore reminded Plaintiff that unentered calls "are not completed and don't count toward [her] execution" of job duties. (Id.) In April 2017, Rumore asked Plaintiff to "please make sure [she is] closing AND submitting [her] calls as they happen." (Dkt. No. 41-13 at 3.) Again in May 2017, Rumore told Plaintiff that her "execution is a bit baffling" and urged that Plaintiff "keep an eye on it . . . and continue to save and submit all of [her] calls as they happen on the day that they happen as [was] discussed." (Dkt. No. 41-14 at 5.)

Given her concerns about Plaintiff's entry of calls, Rumore flagged Plaintiff's performance for AstraZeneca's Human Resources department in May 2017. (Dkt. No. 41-15 at 2.) After reviewing Plaintiff's activity report, Human Resources concluded that Rumore's concerns were substantiated. (Dkt. No. 41-15 at 4.) In June 2017, Plaintiff was provided with coaching, a form of corrective discipline. (Id.; Dkt. No. 50-13 at 4 ("In the workplace, discipline may be in the form of warnings that correct misconduct or coaching aimed at increasing one[`s] knowledge or improving one[`s] skills (i.e., performance).").)

Despite the coaching, Plaintiff did not improve her work practices. On Friday, January 19, 2018, Rumore reviewed Plaintiff's Veeva calendar and saw that no calls had been entered for the entire week. (Dkt. No. 42 ¶ 54.) Rumore was "flabbergasted." (Id.) Rumore called Plaintiff to discuss the missing entries but was unable to get ahold of Plaintiff. (Dkt. No. 42 ¶¶ 55-56.) Shortly after the missed call, Rumore re-checked Plaintiff's Veeva calendar and noticed that Plaintiff had back-entered her activity for the week. (Dkt. No. 42 ¶ 57; Dkt. No. 41-17.) Of the back-entered calls, several were scheduled for June 15, 2018, Martin Luther King Jr. Day and a company holiday. (Dkt. No. 41-17.)

After back-entering her activity, Plaintiff returned Rumore's call. (Dkt. No. 42 ¶ 58.) In addition to attempting to justify her work practices, Plaintiff informed Rumore that she was pregnant. (Id.) Later that day, Rumore took time to "process[] everything" and raised Plaintiff's performance issues with Strow. (Dkt. No. 41-18; Dkt. No. 42 ¶ 59.) The following Monday, January 22, 2018, Rumore emailed Human Resources about Plaintiff's failure to enter calls contemporaneously and her back-entry of calls, including on Martin Luther King Jr. Day. (Dkt. No. 41-18.) The email did not mention Plaintiff's pregnancy. (Id.)

In response to Rumore's email, Human Resources reviewed Plaintiff's work activity from November 2017 to January 2018. (Dkt. No. 42 ¶¶ 62-63.) Human Resources found that, of the 39 business days in the period, Plaintiff had back-entered morning calls for 24 days, had failed to complete certain job duties before noon for 33 days, and had failed to complete other job duties before noon for all 39 days. (Dkt. No. 41-23 at 4.) Additionally, Human Resources determined that Plaintiff started her workday at 1:05 P.M., on average. (Id.) From this, Human Resources concluded that Plaintiff "has ignored the direction and coaching from her manager" and that Plaintiff likely "is not working during the morning hours." (Id.) Strow reached the same conclusion, assessing Plaintiff's record as "probably one of the worst" he had seen in years. (Dkt. No. 41-21 at 2; Dkt. No. 42 ¶ 69.)

On February 15, 2018, Plaintiff was given an opportunity to respond to these findings and conclusions, but she neither contested nor justified, to her supervisors' or to Human Resources' satisfaction, her lack of activity in the mornings or her practice of back-entering calls. (Dkt. No. 42 ¶¶ 72-74.) With the agreement of Strow, Rumore, and Human Resources, Plaintiff was terminated. (Dkt. No. 42 ¶¶ 77-78.)

On July 26, 2018, Plaintiff filed a charge of discrimination with the New York State Division of Human Rights, alleging that she had been terminated because of her pregnancy. (Dkt. No. 42 ¶ 86.) The state agency investigated Plaintiff's claim and on February 24, 2019, determined that there was no probable cause to believe that AstraZeneca had engaged in pregnancy discrimination. (Dkt. No. 42 ¶ 87.) On May 28, 2019, Plaintiff filed this case. (Dkt. No. 1.) AstraZeneca moved for summary judgment on September 17, 2020. (Dkt. No. 39.)

II. Legal Standard

Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "On summary judgment, the party bearing the burden of proof at trial must provide evidence on each element of its claim or defense." Cohen Lans LLP v. Naseman, No. 14-cv-4045, 2017 WL 477775, at *3 (S.D.N.Y. Feb. 3, 2017) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). "If the party with the burden of proof makes the requisite initial showing, the burden shifts to the opposing party to identify specific facts demonstrating a genuine issue for trial, i.e., that reasonable jurors could differ about the evidence." Clopay Plastic Prods. Co. v. Excelsior Packaging Grp., Inc., No. 12-cv-5262, 2014 WL 4652548, at *3 (S.D.N.Y. Sept. 18, 2014). The Court must view all evidence "in the light most favorable to the non-moving party and draw all reasonable inferences in its favor," and summary judgment may be granted only if "no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (internal quotation marks and citations omitted).

III. Discussion

Title VII, as amended by the Pregnancy Discrimination Act, prohibits discrimination on the basis of pregnancy. Young v. United Parcel Serv., Inc., 135 S.Ct. 1338, 1343 (2015). In the absence of "direct evidence of discrimination," Title VII claims are assessed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Forde v. Beth Israel Med. Ctr., 546 F.Supp.2d 142, 149 (S.D.N.Y. 2008) (Chin, J.). In stepwise fashion, (1) the plaintiff "must first demonstrate a prima facie case of discrimination"; (2) the defendant "must then rebut the presumption by offering legitimate and non-discriminatory reasons for the adverse employment action"; and (3) "the burden then shifts back to the plaintiff to prove intentional discrimination by a preponderance of the evidence." Risco v. McHugh, 868 F.Supp.2d 75, 98-99 (S.D.N.Y. 2012).

Because the burden a plaintiff or defendant must carry at steps (1) and (2) is "minimal," id., courts often assume, arguendo, that these steps have been satisfied. See, e.g., Forde, 546 F. Supp. 2d at 150. The Court takes that approach here. The remaining issue, then, is "whether [Plaintiff] has presented sufficient evidence from which a reasonable jury could find that she was discriminated against because of her pregnancy." Id. Put differently, Plaintiff must show "that the employer's proffered reasons . . . were not the only reasons [for her termination] and that [pregnancy discrimination] was at least one of the motivating factors." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995). The record, considered as a whole, reveals that Plaintiff has not made this showing. See Stern v. Trustees of Columbia Univ. in City of New York, 131 F.3d 305, 314 (2d Cir. 1997) (explaining that courts should "view the evidence as a whole in assessing whether there was impermissible discrimination and whether the [defendant's] proffered explanation is a pretext for that discrimination").

To start, Plaintiff's evidence of discrimination is sparse. She names several non-pregnant AstraZeneca employees who supposedly back-entered calls but were not disciplined. But Plaintiff fails to show that these employees were "similarly situated" to her and that she was targeted for discipline. Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000). Plaintiff identifies no evidence that the other employees skipped most or all of their morning work hours. Id. at 42 ("[T]o be similarly situated, [the comparators and the plaintiff] must . . . have engaged in conduct of comparable seriousness."). Furthermore, Plaintiff admits that AstraZeneca may not have been aware of the other employees' practice of back-entering calls. (Dkt. No. 2 at 115:13-16.)

Plaintiff's attempt to show discrimination by pointing to the temporal proximity of her supervisor's learning about her pregnancy and her termination also falters. Temporal proximity alone is "insufficient" to demonstrate that Plaintiff's termination was motivated by animus. See Kennebrew v. New York City Housing Auth., No. 01-cv-1654, 2002 WL 265120, at *16 (S.D.N.Y. Feb. 26, 2002); Forde, 546 F. Supp. 2d at 152. The insufficiency is particularly pronounced in this case, where the events that precipitated Plaintiff's termination — Plaintiff's non-entry of calls for the entire week preceding January 19, 2018, and her erroneous back-entry of calls for a company holiday — preceded the announcement of her pregnancy. See Bernard v. J.P. Morgan Chase Bank N.A., No. 08-cv-4784, 2010 WL 423102, at *17 (S.D.N.Y. Feb. 5, 2010) ("When discipline or expressed dissatisfaction with job performance has taken place before the plaintiff [could be discriminated against], a causal nexus does not exist between the [potential basis for discrimination] and a subsequent adverse action.").

Finally, Plaintiff suggests that the strong performance reviews she received in 2016 and 2017 undermine AstraZeneca's position that she was terminated for performance issues. The law, however, "is clear that a claimant cannot merely point to prior favorable evaluations to satisfy her burden," particularly where "the prior favorable review[s] foresaw at least some problems with the claimant's performance." E.E.O.C. v. Bloomberg L.P., 967 F.Supp.2d 816, 858 (S.D.N.Y. 2013). The positive 2016 and 2017 reviews do not negate the seriousness of Plaintiff's performance issues, the extent and persistence of which Rumore discovered only after those reviews were submitted.

In contrast to Plaintiff's lackluster evidence, AstraZeneca provides compelling evidence that Plaintiff's performance was unsatisfactory and led to her termination. The companywide Work Expectations for AstraZeneca Sales Professionals specify that the workday begins at 8:30 A.M. and that calls should be "logged as they occur throughout the day." (Dkt. No. 41-10.) Plainly, Plaintiff did not abide by these Work Expectations. Indeed, her conduct deviated so far from the Work Expectations that Human Resources developed a "reasonable suspicion that she wasn't working" and that she would not be responsive to additional coaching. (Dkt. No. 6 at 120:10-25, 121:2-4.) Internal emails show that Strow reached the same conclusion.² (Dkt. No. 41-21 at 2 ("As I reviewed all of the e-mails and data, I frankly see no evidence that [Plaintiff] has been working in the mornings for over the last six months. . . . This is particularly disappointing as [Rumore] has had several conversations in 2017 about her work activity and call documentation.").) The record suggests that other AstraZeneca employees have been terminated for "the same or substantially similar reasons" (Dkt. No. 41-4 at 18; Dkt. No. 42 ¶¶ 80-85), and Plaintiff offers no explanation for why her own failure to meet work expectations could not have been "the true reason for the employment decision," Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

As if more were needed, AstraZeneca also provides undisputed evidence that it accommodates pregnant employees. Strow, who recommended Plaintiff's termination, had been her senior manager during her first pregnancy in 2015. (Dkt. No. 42 ¶¶ 25, 27.) And Rumore permitted Plaintiff to go home during work hours to pump breastmilk after Plaintiff returned from maternity leave in 2016. (Dkt. No. 42 ¶ 29.) It is "difficult to reconcile" Strow and Rumore's willingness to accommodate Plaintiff in 2015 and 2016 with Plaintiff's current stance that Strow and Rumore discriminated against her on the basis of her pregnancy in 2018. Muhleisen v. Wear Me Apparel LLC, 644 F.Supp.2d 375, 386 (S.D.N.Y. 2009). AstraZeneca's accommodation of Plaintiff's first pregnancy, as well as its accommodation of other pregnant employees in the Pharmaceutical Sales Specialist role (Dkt. No. 42 ¶ 85), "weighs strongly against finding that [AstraZeneca] was motivated by bias against pregnant women." Chow v. Stride Rite Corp., No. 05-cv-2417, 2009 WL 196030, at *10 (S.D.N.Y. Jan. 27, 2009).

Viewing the record as a whole, it is apparent that Plaintiff has not presented evidence from which a reasonable jury could conclude that her termination was motivated by pregnancy-based animus. AstraZeneca is entitled to summary judgment.

IV. Conclusion

For the foregoing reasons, AstraZeneca's' motion for summary judgment is GRANTED. The Clerk of Court is directed to close the motion at Docket Number 39 and to close this case.

SO ORDERED.

FootNotes

1. Plaintiff initially brought claims under the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 296 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code §§ 8-107 et seq., as well. Plaintiff voluntarily withdrew those claims on October 23, 2019. (Dkt. No. 40 at 11.)

2. In her opposition to the present motion, Plaintiff suggests that AstraZeneca has changed its explanation for why she was terminated and that this inconsistency raises questions about any explanation's veracity. (Dkt. No. 51 at 16.) Specifically, Plaintiff recounts that Rumore said she was terminated for back-entering calls; Strow said she was terminated for not working during morning hours; and a Human Resources representative said that she was terminated for falsifying data entries. (Id.) Despite Plaintiff's efforts, the Court perceives no inconsistency in these explanations. The record shows that the three listed reasons are one and the same: The back-entered calls were, in at least several instances, falsified data entries that Plaintiff used to conceal her lack of activity during morning hours."

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LITIGATING LANDLORD TENANT DISPUTE IN SUPREME COURT

25-86 41st St. LLC v. Chong, Date filed: 2021-07-09, Court: Supreme Court, Queens, Judge: Justice Robert McDonald, Case Number: 704854/2021:

"Plaintiff commenced this action by filing a summons and complaint on March 2, 2021. The complaint alleges that defendant has a month-to-month landlord-tenant relationship with plaintiff pursuant to which defendant rents the ground floor apartment at 25-86 41st Street, Astoria, New York 11103 for $2,400 a month. The relationship began in 2016. At the end of February 2021, defendant disappeared without surrendering the Apartment, leaving behind Christine Guzman. The complaint further alleges that plaintiff has no relationship with Guzman, and plaintiff did not give defendant consent to admit Guzman to the apartment. Further, the complaint alleges that defendant is not in a position to surrender the Apartment until he has removed Guzman and any other of his subtenants, licensees and invitees. Based on the allegations, plaintiff asserts claims for breach of month-to-month tenancy, trespass to land, nuisance, prima facie tort, and waste. Defendant now moves to dismiss the complaint for failure to state a claim upon which relief may be granted and based upon documentary evidence.

“To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim” (Teitler v. Pollack & Sons, 288 AD2d 302 [2d Dept. 2001]). A motion to dismiss a complaint based on documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Stein v. Garfield Regency Condominium, 65 AD3d 1126 [2009], quoting Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314 [2002]).

On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314 [2002]; Leon v. Martinez, 84 NY2d 83 [1994]; Greer v. National Grid, 89 AD3d 1059 [2d Dept. 2011]; Prestige Caterers, Inc. v. Siegel, 88 AD3d 679 [2d Dept. 2011]). “If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211(a)(7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action” (Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 46 AD3d 530, 530 [2d Dept. 2017]).

In support of the motion, defendant submits an affidavit dated May 4, 2021, affirming that in 2016, he moved into the subject premises with Daniel Flores, the former actual tenant of plaintiff. He never signed a formal lease with plaintiff. He was a subtenant of Flores and paid $600.00 of the monthly $1,200 rent pursuant to a month-to-month roommate agreement signed with Flores. He had no interaction with plaintiff until Flores moved out. He was given the rental payment instructions and contact information. Since he moved into the subject premises, he has had three roommates. None of the roommates were ever interviewed by plaintiff. He did not have any issues with any of the roommates during their tenancy. On August 2019, Guzman moved into the premises after she responded to the Craiglist ad. Plaintiff was aware that Guzman moved into the premises, yet never requested any of Guzman’s personal information. Plaintiff never objected to Guzman moving in. As a result of COVID-19, on March 13, 2020, he began to work from home on a permanent basis. Guzman lost her job. In May 2020, he discussed the possibility of signing a lease with plaintiff. The lease was never signed. From the month of July and onwards, Guzman was unable to fulfill her half of the rent, leaving him to cover the full rental payment on his own. His roommate relationship with Guzman became hostile. On August 23, 2020, he got into an argument with Guzman that resulted in her throwing a magnetic bottle opener at him. Plaintiff was aware of the situation. On September 2, 2020, he hired Tommy Sgouras, Esq. to begin eviction proceedings against Guzman. On September 16, 2020, Guzman was served with a 60-day Termination of Tenancy Notice. Guzman threatened, harassed, insulted, and physically assaulted him. On September 25, 2020, Guzman aggressively shoved and slammed a door at him. Guzman was arrested for assault, and he was issued a temporary order of protection. On September 28, 2020 Guzman came to the apartment with a police escort to remove some of her belongings. On January 26, 2021, plaintiff sent him a text message advising him that he is better off getting Guzman’s belongings out of the building. On February 4, 2021, he received a call from plaintiff. Plaintiff then forwarded him information for a moving company. Gaitri Boodhoo, Esq., of The Brualdi Law Firm P.C., is the individual who provided him with the moving company information. He booked the moving company. Plaintiff stated that it would pay half of the moving expenses. On February 9, 2021, the moving company removed Guzman’s belongings. He has not been reimbursed for plaintiff’s half of the moving expenses. On February 19, 2021, a process server came to the premises to serve Guzman. On February 23, 2021, he received a call from plaintiff asking if he read the complaint, and that plaintiff would like him to be a witness in the Guzman lawsuit. Throughout the conversation, plaintiff went into extensive detail about the legal strategy against Guzman and advised him to reactivate his efforts to terminate Guzman’s tenancy. Plaintiff told him that if he served a second termination of tenancy, the 60-day notice would expire in May, which would put him in a better position in housing court. Plaintiff told him that he would pay half of the fee for a housing court lawyer. Plaintiff told him that the first question to the attorney should be if he needs to re-serve the termination of tenancy. Plaintiff encouraged him to change the locks since he has the Order of Protection. On February 24, 2021, he moved out of the premises.

Based on defendant’s affidavit and plaintiff’s admissions in the action commenced against Guzman, defendant contends that this action must be dismissed.

In opposition, Richard B. Brualdi, the principal of plaintiff, submits an affidavit dated June 30, 2021. Mr. Brualdi affirms that at some point in late 2015 or early 2016, Flores moved out, and with plaintiff’s consent, defendant established his own month-to-month tenancy with plaintiff. The rent had been $2,100 per month, but rose to $2,400 per month effective April 2016. At all points thereafter, the entirety of the rent was paid to plaintiff by defendant through a check defendant arranged to be sent directly to plaintiff. The checks had the legend “Apply to Account of Rent of Brian Chong” on them. For the months of September, October, and November 2020, plaintiff charged defendant a reduced rent of $1,300 because defendant had explained to him that Guzman was no longer staying with him. Beginning in December 2020, defendant began paying his full $2,400 rent again, which he did for December 2020 and January 2021. Thereafter, defendant disappeared, leaving Guzman and others in the apartment and failing to pay further rent.

Based on Mr. Brualdi’s affidavit, plaintiff contends that the motion to dismiss is meritless as defendant admits to leaving the premises with Guzman, his chosen roommate, still there.

The Court will address each cause of action separately herein.

Breach of Month-to-Month Tenancy:

The first cause of action is for defendant’s breach of the month-to-month tenancy by vacating the premises.

It is undisputed that a month-to-month tenant has a right to terminate the tenancy at any time. While the provisions of the original lease are binding on a holdover tenant, here there is no lease between plaintiff and defendant (see Visken v. Oriole Realty Corp., 305 AD2d 493 [2d Dept. 2003]). Thus, by vacating the premises, defendant did not breach any obligation.

Accordingly, the first cause of action for breach of the month-to-month tenancy shall be dismissed.

Trespass to Land:

The second cause of action is for trespass to land.

“The elements of a cause of action sounding in trespass are an intentional entry onto the land of another without justification or permission” (Volunteer Fire Assn. of Tappan, Inc. v. County of Rockland, 101 AD3d 853, 855 [2d Dept. 2012]).

The complaint alleges that since defendant permitted Guzman to enter the apartment, defendant is trespassing on plaintiff’s premises. It is undisputed that defendant himself is no longer in possession of the premises.

Viewing the facts in the light most favorable to plaintiff, this Court finds that plaintiff has sufficiently stated a cause of action for trespass against defendant since a tenant in possession has a duty to landlord to exercise ordinary care against even the acts of third parties (see Granger University Ave. Corp. v. First State Ins. Co., 99 AD2d 1022 [1st Dept. 1984]).

Accordingly, the cause of action for trespass shall remain.

Nuisance:

The third cause of action is for nuisance.

“The elements of a private nuisance cause of action are an interference (1) substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failing to act” (Aristides v. Foster, 73 AD3d 1105, 1106 [2d Dept. 2010]). “[E]xcept for the issue of whether the plaintiff has the requisite property interest, each of the other elements is a question for the jury, unless the evidence is undisputed” (Weinberg v. Lombardi, 217 AD2d 579, 579 [2d Dept. 1995]).

Here, the complaint alleges that plaintiff has substantially, intentionally, and unreasonably committed conduct that interfered with plaintiff’s right to use its premises by permitting Guzman to enter the apartment. Although defendant is no longer at the premises, this Court finds that the complaint sufficiently states a cause of action for nuisance as defendant intentionally permitted Guzman to enter the subject premises and has failed to remove Guzman.

Prima Facie Tort:

The forth cause of action alleges prima facie tort.

The elements for a cause of action for prima facie tort are intentional infliction of harm resulting in special damages, without excuse or justification, and by an act or series of acts that would otherwise be lawful (see Burns Jackson Miller Summit & Spitzer v. Lindner, 59 NY2d 314 [1983]). There is no recovery in prima facie tort unless malevolence is the sole motive for the defendant’s unlawful act (see American Bank & Trust Co. v. Federal Reserve Bank of Atlanta, 256 US 350 [1921]; Burns Jackson Miller Summit & Spitzer v. Lindner, 59 NY2d 314 [1983]).

Here, the complaint fails to allege that defendant’s sole motivation was disinterested malevolence (see American Bank & Trust Co. v. Federal Reserve Bank of Atlanta, 256 US 350 [1921]). Moreover, the complaint does not allege any special damages.

Accordingly, the cause of action for prima facie tort shall be dismissed.

Waste:

The fifth cause of action alleges waste.

“Waste is any destruction, misuse, alteration, or neglect of the premises by one lawfully in possession thereof to the prejudice of the interest in that property to another” (Gilman v. Abagnale, 235 AD2d 989 [3d Dept. 1997][internal quotation marks omitted]).

The complaint alleges that defendant and/or Guzman have intentionally, purposefully, recklessly or negligently damaged plaintiff’s property, including two bedroom doors, and as a result, plaintiff has suffered damages of $1,200 to date.

Here, the complaint sufficiently states a cause of action for waste against defendant.

Regarding defendant’s arguments that this action should be dismissed based on the complaint filed in the action commenced between plaintiff and Guzman, which arises out of the same transactions and occurrences as this action, at this stage in the litigation, there is no issue with plaintiff pleading inconsistent and alternative causes of action (see CPLR 3014, 3017; Gold v. 29-15 Queens Plaza Realty, LLC, 43 AD3d 866 [2d Dept. 2017]).

Defendant also seeks to disqualify plaintiff’s counsel. A party seeking to disqualify a law firm bears the burden of demonstrating the need for disqualification and of showing sufficient proof to warrant such determination (see Gulino v. Gulino, 35 AD3d 812 [2d Dept. 2006]). Whether to disqualify a law firm is a matter which rests in the sound discretion of the court (see id. at 812). Additionally, a “party’s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted” (Matter of Dream Weaver Realty, Inc. [Poritzky --- DeName], 70 AD3d 941 [2d Dept. 2010], quoting Aryeh v. Aryeh, 14 AD3d 634 [2d Dept. 2005]; see Goldman v. Goldman, 66 AD3d 641 [2d Dept. 2009]).

Here, defendant failed to sustain his burden of demonstrating that disqualification is warranted. Defendant first contends that plaintiff’s counsel discussed the substance of the Guzman lawsuit with him. However, since defendant fails to demonstrate that there was an undertaking by Mr. Brualdi to perform a specific legal task for defendant, there was no existence of a prior attorney-client relationship between defendant and Mr. Brualdi (see Pellegrino v. Oppenheimer & Co., 49 AD3d 94 [1st Dept. 2008]). Defendant also contends that plaintiff’s counsel will be a witness in this matter, and thus, must be disqualified. It is undisputed that Mr. Brualdi will likely be a witness in this matter. However, Mr. Brualdi has not entered an appearance in this matter. Thus, defendant has failed to demonstrate, among other things, that Mr. Brualdi will be acting as the advocate."