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MATTER OF LEE v. AXA ADVISORS LLC, 2021 NY Slip Op 4518 - NY: Appellate Div., 3rd Dept. 2021:
"AXA Advisors LLC is a broker-dealer registered to sell life insurance
policies and annuities, stocks, mutual funds and other investment
products. Claimant began working for AXA under a three-year "training
allowance" agreement in 1993. After that agreement terminated in 1996,
claimant entered into a new agreement as a licensed agent, and he
continued working in that capacity until AXA terminated the agreement in
2015. Claimant's subsequent application for unemployment insurance
benefits was ultimately denied by the Unemployment Insurance Appeal
Board on the ground that claimant was not an employee of AXA under the
1996 agreement.[1]
As a result, the Board found that AXA was not liable for unemployment
insurance contributions on remuneration paid to claimant and those
similarly situated. Claimant appeals.
The record reflects that, under the 1996 agreement, claimant did not
have a set work schedule or work location, he was not assigned a sales
territory and did not have to turn in any reports. Claimant was not
supervised, could work from home and could use his own computer.
Claimant had to pay for the cost of his liability insurance and was not
paid for any expenses. AXA required reimbursement from claimant for the
cost of business cards and stationery and claimant had to pay for the
use of AXA's clerical staff and office space. Claimant was responsible
for developing his own client base and, although AXA would sometimes
provide a sales lead, claimant testified that he did not have to pursue
it. Claimant determined what products best suited his clients' needs and
he could sell the products of AXA's competitors. AXA did provide
claimant with promotional materials, and claimant was paid by
commission, with the commission rate set by AXA or whichever company
offered the product that he sold to the client.
A discussion of the below case takes the position that the court leaves open the possibility that a third party may interpose a statute of limitations defense in a foreclosure action. Below is the case and the key language in the decision is emphasized.
EMIGRANT BANK v. McDonald, 2021 NY Slip Op 4594 - NY: Appellate Div., 2nd Dept. 2021 (emphasis supplied):
""[T]he Statute of Limitations is generally viewed as a personal defense" (John J. Kassner & Co. v City of New York, 46 NY2d 544, 550), which is waived if it is not affirmatively pled (see CPLR 3018[b]; see also John J. Kassner & Co. v City of New York, 46 NY2d at 552; see also 1 Weinstein-Korn-Miller, NY Civ Prac: CPLR ¶ 201.11 [2021]; cf. CPLR 3211[a][5]). When properly invoked, an action to foreclose a mortgage is subject to a six-year statute of limitations (see
CPLR 213[4]). However, an "understanding of the parties' respective
rights and obligations under . . . the note and the mortgage" is
required in order to determine when an action to foreclose a mortgage
accrued and whether it is timely (Freedom Mtge. Corp. v Engel, 37 NY3d 1, 20).
In general, "[w]ith respect to a mortgage payable in installments,
separate causes of action accrue for each installment that is not paid,
and the statute of limitations begins to run on the date each
installment becomes due" (U.S. Bank Trust, N.A. v Aorta, 167 AD3d 807, 808).
However, "residential mortgage contracts . . . typically provide[ ]
noteholders the right to accelerate the maturity date of the loan upon
the borrower's default, thereby demanding immediate repayment of the
entire outstanding debt" (Freedom Mtge. Corp. v Engel, 37 NY3d at 21).
When the holder of such a note elects to exercise that remedy, "a cause
of action to recover the entire balance of the debt accrues at the time
the loan is accelerated, triggering the six-year statute of limitations
to commence a foreclosure action" (id.; see CPLR 203[a]; 213[4]).
Here, the subordinate note holder contended that the plaintiff
commenced a prior foreclosure action to enforce the subject note and
mortgage in March 2007 (hereinafter the 2007 action). The subordinate
note holder alleged that the plaintiff elected to accelerate the
mortgage debt when it commenced the 2007 action, and that more than six
years had elapsed since that debt had been accelerated (see CPLR 213[4]).
Here, assuming, without deciding, that the statute of limitations
defense was properly interposed, the subordinate note holder conceded
that the 2007 action was discontinued less than six years after it was
commenced (see Freedom Mtge. Corp. v Engel, 37 NY3d 1).
In any event, contrary to the subordinate note holder's contention, the
plaintiff's submissions, which included a loan modification agreement
entered into between the plaintiff and the borrowers, demonstrated,
prima facie, that the plaintiff revoked its prior election to accelerate
the mortgage debt less than six years after the commencement of the
2007 action (see Goshen Mtge., LLC v DePalma, 186 AD3d 1203, 1206; U.S. Bank Trust, N.A. v Rudick, 172 AD3d 1430, 1431; see also Golden v Ramapo Improvement Corp., 78 AD2d at 650).
Since the subordinate note holder failed to raise a triable issue of
fact in response to the plaintiff's prima facie showing, the Supreme
Court properly granted that branch of the plaintiff's motion which was
for summary judgment striking the subordinate note holder's statute of
limitations defense, and properly denied that branch of the subordinate
note holder's cross motion which was, in effect, for summary judgment
dismissing the complaint insofar as asserted against him as time-barred (see Freedom Mtge. Corp. v Engel, 37 NY3d 1; see generally CPLR 3212[b]; Hart v DiPiazza, 262 AD2d 283, 283)."
David v. Stephanie, Date filed: 2021-07-17, Court: Supreme Court, New York, Judge: Justice Douglas Hoffman:
"DECISION + ORDER
This matrimonial action comes before the court primarily upon [motions by both parents for custody and exclusive possession of the marital residence, at a time when both parents are living in the same residence and Defendant Wife seeks an order permitting her to relocate with the parties two minor children to the west coast; Plaintiff Father opposes, and seeks an equal parenting-time schedule with the children in New York and joint legal custody]. [redacted] Prior to analyzing the trial testimony, the court sets forth below the relevant standards concerning this custody determination. “Any court in considering questions of child custody must make every effort to determine what is in the best interest of the child, and what will best promote its welfare and happiness.” Eschbach v. Eschbach, 56 NY2d 167 [1982]. There “are no absolutes in making these determinations; rather, there are policies designed not to bind the courts, but to guide them in determining what is in the best interests of the child.” Id. In reaching its determination as to what is in [the children's] best interest, the court is not limited by a finite set of determinative factors. Id. Rather, the “court is guided by principles which reflect a ‘considered social judgment in this society respecting the family and parenthood.’” Matter of Bennett v. Jeffreys, 40 NY2d 543 [1976], citing Matter of Spence Chapin Adoption Serv. v. Polk, 29 NY2d 196 [1971]. Looking at the totality of circumstances, Eschbach, supra; Bartholomew v. Marano, 174 AD3d 893 [2d Dept 2019]; In Re Xiomara M., 102 AD3d 581 [1st Dept 2013], the court may consider each parent’s ability to provide stability in the children’s lives, and his or her ability to provide for the children’s physical, emotional and educational needs. Evelyn B. v. Vishnu P.A., 170 AD3d 625 [1st Dept 2019]; Melissa C.D. v. Rene I.D., 117 AD3d 407 [1st Dept 2012]; St. Clement v. Cascale, 29 AD3d 367 [1st Dept 2006]. The court may also delve into the children’s lives to ascertain their relationships and activities, Eschbach, supra, assess the quality of the children’s home environment with each parent “and the parental guidance the custodial parent provides for the child[ren].” Id. at 172. See also Matter of Louise E.W. v. W. Stephen S., 64 NY2d 946 [1985]; Dariel M. v. Aurelyn Z.G., 179 AD3d 569 [1st Dept 2020]; Matter of Calvin B. v. Tikema M., 161 AD3d 521 [1st Dept 2018] (citations omitted); Evelyn B. v. Vishnu P.A., supra; Matter of Ramsezs L., 157 AD3d 410 [1st Dept 2018]. This court must also consider which parent, if either, will ensure that [the children] maintain a meaningful relationship with the other parent. Matter of Bliss v. Ach, 56 NY2d 995 [1982]; Dave D. v. Cara C., 179 AD3d 560 [1st Dept 2020]; Valentin v. Valentin, 176 AD3d 1083 [2d Dept 2019]; Melissa C.D. v. Rene I.D., supra. [redacted]. With respect to the possibility of joint legal custody, such an arrangement is appropriate between “relatively stable, amicable parents behaving in mature civilized fashion.” Braiman v. Braiman, 44 NY2d 584, 589-90 [1978], with “trust” as a suggested pre-condition for joint custody. Id. at 584. Usually, a joint custody arrangement can only work “where there is harmony and cooperation between the parents; it should not be continued where the parties are unable to cooperate with each other with respect to their parental obligations such that joint custody is more harmful than beneficial to the child.” Hudson v. Hudson, 163 AD3d 537 [2d Dept 2018] (citation omitted). See also Deanna V. v. Michael C., 179 AD3d 445 [1st Dept 2020] (citation omitted). Although the focus of the trial was relocation, this is an initial child custody determination. In a “pure” relocation case, the parent seeking relocation of the children bears the burden of proving that the relocation is in the children’s best interests. Wells v. Dellago, 144 NYS3d 640, 2021 NY Slip Op. 03459 [2d Dept Jun. 2, 2021] (citations omitted). The established factors relevant to a relocation determination would include the reasons each parent favors or opposes the relocation, the quality of the relationships between the subject children and the custodial and non-custodial parent, the degree to which the children and the custodial parent’s lives would be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving or further developing the relationship between the noncustodial parent and the children through suitable parenting time arrangements. Tropea v. Tropea, 87 NY2d 727, 740-41 [1996]. The impact of the potential relocation upon the noncustodial parent and the subject children remains a central concern when analyzing relocation. Gomez v. Martinez, 188 AD3d 682, 685 [2d Dept 2020], citing Tropea, supra at 739. As this custody trial requires an initial custody determination, where the custodial responsibilities of each parent have not yet been defined by the court or by written agreement of the parties, or by de facto actions, the Tropea relocation factors need not strictly be applied, Mathiew v. Michels, 180 AD3d 403 [1st Dept 2020], and the effect of one parent’s relocation is only one factor that the court may consider in its custody determination. Lawrence v. Mattry, 179 AD3d 687, 688-89 [2d Dept 2020] (citations omitted). Indeed, the Tropea factors could not be strictly applied here, given the disputes between the parties as to who was, is and should be the primary custodial parent. The paramount concern remains what is in the overall best interests of the children based upon the totality of circumstances, including the proposed relocation.
[redacted]
PROSPECTIVE CUSTODY DETERMINATION
Although no party or attorney raised this issue, the court is constrained to address what may appear to be a “Catch-22″ with respect to the procedural and substantive posture of this case. As noted above, as the primary and very urgent issue in this custody trial is relocation of the children to San Francisco [redacted] and, as an initial child custody determination, the court must consider [redacted] totality of circumstances defining the best interest of each subject child. The conundrum here is that the parties are living together and were doing so at the time of the commencement of the custody-related motions and [some intermediate appellate and trial level courts have interpreted a Court of Appeals decision, People ex rel. Sisson v. Sisson, 271 NY 285, 286-88 [1936], to mean that a court may not make a custody determination when the parties are living together, unless the children’s needs are not being met. [id.].
The Sisson court held that courts cannot “regulate by its processes the internal affairs of the home. Dispute between parents when it does not involve anything immoral or harmful to the welfare of the child is beyond the reach of the law. The vast majority of matters concerning the upbringing of children must be left to the conscience, patience and self-restraint of father and mother. No end of difficulties would arise should judges try to tell parents how to bring up their children. Only when moral, mental and physical conditions are so bad as seriously to affect the health or morals of children should the courts be called upon to act.” Id. at 287-88. All agree in the instant case that the children’s needs are being met. Many courts have interpreted Sisson in such a manner that some courts have almost considered it axiomatic that when parents are living together and the children’s needs are being met, the court may not issue a child custody determination. See, e.g., Ijeoma F.A. v. Okechukwu D., 58 Misc. 3d 605, 607-08 [Fam Ct Q Cnty 2011].
It is important to recognize the realities of modern day family life, as well as fundamental changes in matrimonial and family law and litigation in New York, and to hold that under circumstances such as those in the instant case, it is entirely appropriate to consider issuing necessary prospective custody determinations in a variety of circumstances, including where, as in the instant case, parents live essentially separately under the same roof and both parents consent to a custody determination, indeed, ask for one, and need that determination so that they may formally move to separate dwellings without great risk to their litigation position, no less their well-being, and in a manner consistent with the best interests of the children.
Sisson did not even involve a case in which the parents were divorcing or separating. For the past generation or two, certainly in this most recent generation, many parents, regardless of gender, actively and credibly seek primary or joint custody, and neither parent is seemingly willing, or advised, to move out lest they “cede” custody, no less the marital residence, to the other parent, until such time as there is an acceptable custody and parenting schedule.
Moreover, in 2010 the Legislature amended the Domestic Relations Law to permit no fault divorces based upon an irretrievable breakdown of the marital relationship, DRL §170(7). This statute means that even if only one spouse seeks a divorce and states that there was an irretrievable breakdown of the marital relationship for at least six months prior to the commencement of the matrimonial action, the court may not refuse to grant them a divorce if other prerequisites are satisfied. Very importantly, DRL §170(7) also mandates that all ancillary issues, including custody, be resolved before the court may grant a divorce. If a court refuses to adjudicate custody after one spouse has filed for divorce pursuant to DRL §170(7) (by far the vast majority of divorce complaints rely upon this provision) and a spouse does not move out (often for the reasons discussed above, including not wanting to cede parenting without a schedule), the court would deny a plaintiff that ability to have a timely divorce that the Legislature has said they are allowed to have, regardless of grounds, and instead, effectively would require parents to remain together until another ground for divorce, such as domestic violence-related conduct, is established, which other ground does not require resolution of custody and certain other ancillary issues, see DRL §170(1) (“The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well-being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant”) or until such time as one parent feels compelled to vacate the marital residence without a parenting schedule, possibly risking an inappropriate parenting schedule going forward.
Some courts appear to have permitted custody determinations when parents are living together, sometimes without directly addressing the issues raised above. In a pre-DRL §170(7) case, the Appellate Division, Second Department, affirmed a lower court order that in relevant part established a visitation schedule for a father with the child, although the parents resided together. Faber v. Faber, 159 AD2d 676 [2d Dept 1990]. The court stated, “…in light of the situation in wherein both feuding parents reside together in the marital residence, we conclude that the visitation schedule which accommodated the plaintiff’s desire to breast feed the child and the defendant’s need to spend time alone with the infant without the stress which appears to be rampant when the parties are together, was proper.” Id. at 676-77.
Very recently, the Appellate Division, Third Department, in Vickie F. v. Joseph G., 2021 NY Slip Op. 03488, 2021 WL 2230002 [3d Dept Jun. 3, 2021], upheld an award of primary physical custody to Wife where joint custody was not feasible: “Following commencement of the action, the parties continued to reside together in the marital residence, but their relationship deteriorated to the point where they were unable to effectively communicate with one another for the sake of the children, rendering a joint custodial arrangement unfeasible.” Id. at 3.
Although Vickie F. differs from the instant case in that the [parties here] are able to communicate effectively in the best interests of the children, and it could be said that the children’s needs were not being met in Vickie F., it is clear that some appellate courts may uphold prospective custody determinations under appropriate circumstances. There is no question but that courts are permitted to award exclusive possession of the marital residence under specified circumstances to one spouse while the divorce action is pending. Goldman v. Goldman, 185 AD3d 1012 [2d Dept 2020]. This may be done for a variety of reasons, including the prevention of domestic violence. Frequently, such applications are made when minor children live with the parents in the marital residence. When the court excludes one party from the marital residence, it may and often does establish a temporary parenting schedule. To require a parent to move out or, instead remain but wait until a dangerous event, such as domestic violence, occurs, possibly triggering an exclusion hearing and order, to issue a custody order, may run contrary to and at times be even dangerous to the best interests and well-being of the subject children.
In the instant case, the court must decide today those branches of motions and cross motions in which each spouse seeks an order awarding that spouse exclusive possession of the marital residence. The court must formally consider each such motion and, if such a motion is to be granted without formalizing a parenting schedule for each parent, that action would be deeply harmful to the best interests and perhaps even the emotional well-being of the children.
One potential objection to prospective custody determinations is that the court cannot predict what will be in the best interests of the subject children months from now. Every custody determination, however, is a prediction, based upon information the court has at the time of the decision, as to the probable best interests of the children, not only at the moment of decision, but in the future until there is a material change of circumstances. The court need not reach today the issue of the full scope of its authority to issue prospective custody determinations, as here both parents have every intention of separating at the first possible time, very likely almost immediately following this custody determination; both parties have not only consented to but demanded a prospective custody determination for a host of reasons [redacted], and both parties have sought a court order seeking exclusive possession of the marital residence, the granting of which would require a prospective child custody determination in the best interests of the children. Under these circumstances, the court holds that it has both the authority and duty to issue the prospective custody determination below.
[redacted; custody determination entered after full hearing]."
Matter of United Health Servs. Hosps., Inc. (Elias B.) 2021 NY Slip Op 50612(U) Decided on June 30, 2021 Supreme Court, Broome County Guy, J.:
"PROCEDURAL BACKGROUND
On May 18, 2021, United Health Services
Hospitals, Inc. (the "Hospital") filed a petition pursuant to Article 81
of the Mental Hygiene Law, seeking the appointment of a guardian of the
[*2]person and property of Elias B., an alleged incapacitated person
("AIP"). The Court issued an order to show cause dated May 20, 2021,
appointing Mental Hygiene Legal Service (3rd Dept.) as counsel to
represent Elias B. and scheduling the hearing in this matter for June
14, 2021. The hearing was rescheduled for June 16, 2021, at which time
the hearing convened via Microsoft Teams. Mental Hygiene Legal Service
(3rd Dept.), Kristin Snyder, Esq., of counsel, appeared on behalf of
Elias B.; Elias B. appeared; and Dunya Cullen, Esq., attorney for the
petitioner, appeared on behalf of the petitioner. Broome County
Department of Social Services, on notice of the proceeding as the
proposed guardian set forth in the petition, appeared by Kuredin V.
Eytina, Esq., Sr. Assistant County Attorney, DSS Legal Unit.
At the conclusion of petitioner's case, Ms. Snyder argued for the
petition to be dismissed. The Court reserved its decision and counsel
submitted written summations. Upon review and consideration of the
petition, testimony, written summations, and controlling authority, the
Court now issues this Decision.
THE HEARING
In support of the petitioner's case, Madeline Deloria-Mancini, Jenna
Dyer, and Mary Ellen B. testified. Elias B. did not testify or present
any witnesses but did participate in an initial conference with the
Court and his counsel, in the presence of his social worker, who
assisted with communication. Elias B. expressed his willingness to
accept assistance with discharge from the Hospital, but also his desire
to live independently in the community without a guardian.
Ms. Deloria-Mancini is a licensed master social worker in the care
management department at the Hospital. In that capacity she coordinates
community resources for patients admitted to the Hospital and develops
their discharge plans. Elias B. presented to the Hospital's emergency
department more than 100 times since September 2020 but was only
admitted on March 20, 2021, following a fall.
Elias B. bathes himself with reminder and encouragement; gets out of
bed on his own; and sometimes needs help using the toilet. He is
oriented to time and place but not the date. He can recognize when
someone calls to him. Elias B. is on a fluid restriction at the Hospital
because he sometimes drinks too much liquid, resulting in a significant
drop in his potassium levels and alteration of his mental state.
Medically, Elias B. has not required acute care since March 31, 2021 and
is at his baseline. He is ready for discharge from the Hospital. He
would not be admitted to the Hospital if he presented to the emergency
department in his current condition.
Ms. Deloria-Mancini testified that although Elias B. no longer
requires inpatient care at the Hospital, the Hospital has been unable to
effectuate a safe discharge plan for him.
According to Ms. Deloria-Mancini, a safe discharge plan for Elias B.
requires a referral to a skilled nursing facility, and she made
approximately 270 referrals to such facilities. She received a response
from only one facility, in New Jersey. Elias B. objects to the
appointment of a guardian or his placement in a skilled nursing
facility, and, according to Ms. Deloria-Mancini, a guardian is necessary
to effectuate Elias B. 's placement at the facility in New Jersey.
Elias B. was providing his own medical consent at admission. After
Elias B. refused the offered discharge to the New Jersey skilled nursing
facility, a psychiatrist at the Hospital determined Elias B. lacks the
capacity to effectuate his own discharge planning. The psychiatrist did
not testify, nor was his experience evaluating developmentally disabled
patients otherwise established.
Elias B.'s only income is from Social Security; he receives New York
State Medicaid and [*3]services through the Office for People with
Developmental Disabilities ("OPWDD"). Representative payee services,
provided by Catholic Charites of Broome County, are among those; no
evidence was offered of the need for a property guardian.
Jenna Dyer works as the care coordination supervisor for Southern
Tier Connects, and she has coordinated the services Elias B.'s receives
through OPWDD. Since 2017, Elias B. has been enrolled to receive
services through OPWDD such as community habilitation and nursing
services. Elias B. also receives services through the Office of Mental
Health, including medication administration when he has lived
independently. He has resided in individual residences and group homes.
Prior to Elias B.'s March admission to the Hospital, he resided at a
group home for a month or six weeks. Ms. Dyer testified Elias B. had an
incident with the group-home owner and was kicked out or left the home.
Catholic Charities, as Elias B.'s representative payee, stopped paying
rent on the boarding house in April 2021, after Elias B. was admitted to
the Hospital.
Ms. Dyer believes Elias B. needs assistance with medication
administration and daily living skills. Elias B. has lived in the
Binghamton area for the last two years and, prior to that, he resided in
Delaware County and Oneonta, New York. He has a history of leaving his
living situations and making his own plan for sleeping and eating. Prior
to the pandemic, he would regularly visit places in the community for
food and socialization, including the hospital emergency department.
Elias B. knows Ms. Dyer and how to contact her if he needs assistance.
He also knows how to get to the hospital if necessary. She acknowledged
that if he were to be placed at the facility in New Jersey, he could
voluntarily leave if he chose.
Ms. Dyer acknowledged on cross-examination that her agency was
seeking alternative housing for Elias B. when he fell and was admitted
to UHS, and that OPWDD has a "hard to place" program for individuals
like Elias B. for whom stable residential arrangements are a challenge.
She also confirmed that services through OPWDD would also stop if Elias
B. relocated to New Jersey.
Mary Ellen B. is Elias B. 's sister. Elias B. executed a health care
proxy in the past, naming her as his health care agent. She testified
she is willing to make health care and personal decisions for Elias B.
if needed.
LEGAL STANDARD
The Court may appoint a guardian for an AIP if the Court determines
that the "appointment is necessary to provide for the personal needs of
that person, including food, clothing, shelter, health care, or safety
and/or to manage the property and financial affairs of that person." MHL
§81.02(a)(1). The appointment must also be based on either the consent
of the person or a finding, by clear and convincing evidence, that the
person is incapacitated. MHL §81.02(a)(2). The determination of
incapacity hinges on whether the person is likely to suffer harm because
the "person is unable to provide for personal needs and/or property
management and the person cannot adequately understand and appreciate
the nature and consequences of such inability." MHL §81.02(b).
Under this analysis, the Court must give primary consideration to the
person's "functional level and functional limitations," including an
assessment of the person's ability to manage the activities of daily
living related to property management, such as money management and
banking; his understanding and appreciation of the nature and
consequences of any inability to manage these activities; his
preferences, wishes, and values regarding management of these affairs;
and the nature and extent of the person's property and finances, in the
context of his [*4]ability to manage them. See Matter of Maher, 207 AD2d
133 (2d Dept 1994); MHL §§ 81.02(c); 81.03(h). The Court must also
assess, in pertinent part, "the extent of the demands placed on the
person . . . by the nature and extent of that person's property and
financial affairs;" any mental disability and the prognosis of the
disability; "any medications with which the person is being treated and
their effect on the person's behavior, cognition and judgment;" and
"other relevant facts and circumstances." MHL §§ 81.02 (c)(4); (d).
The mandate of Article 81 is that the Court must consider the AIP's
personal wishes, preferences, and desires, allowing him to make the
decisions affecting his life, to the extent he is able to. MHL §81.01;
In re Matter of Cheryl B. K., 45 Misc. 1227 (A) (Sup Ct, Broome County
2012). The Court must be careful not to unduly substitute its judgment,
or that of others, for the AIP's judgment. Id.; Matter of Williams, 194
Misc 2d, 793 (Sup Ct, Suffolk County 2003). Article 81 cases are replete
with references to respecting the AIP's wishes to the extent possible.
Williams, supra; Cheryl B. K., supra; In re Pfluger, 181 Misc 2d, 294
(Sur Ct, New York County 1999). The Court should "approve any acts as
long as it falls within the range of reasonable actions for a given
situation." Pfluger, supra, at 299. Whether to appoint a guardian is a
matter of discretion requiring the Court to determine if the AIP
actually requires the assistance of a guardian. Matter of Daniel TT, 39
AD3d 94 (3rd Dept. 2007).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court makes the following findings of fact based on the clear and
convincing evidence proffered at the hearing. Elias B. is a 65-year old
developmentally disabled individual who began receiving services from
OPWDD in 2017, later in his life. He has lived in Binghamton for the
past two years and, prior to that, he lived in the Oneonta and Delaware
County areas. He was admitted to the Hospital on March 20, 2021 after
experiencing a fall. He is currently a social admission at the Hospital,
having returned to his baseline, and is medically ready for discharge.
Elias B. can manage many of his own activities of daily living but
requires assistance with medication administration and prompting for
bathing. The Hospital has determined the only safe discharge plan for
Elias B. is for his placement in a skilled nursing facility. The
Hospital sent referrals for Elias B. to approximately 270 such
facilities, and only one, in New Jersey, indicated they would accept
Elias B. as a resident. Following Elias B.'s refusal of this discharge,
the Hospital determined Elias B. lacks capacity to effectuate his own
discharge planning.
Immediately prior to his admission at the Hospital, Elias B. was
living unhoused. Elias B. has a history of unstable living situations
and elopement from housing coordinated through his service providers,
including OPWDD. He is familiar with the Binghamton area and knows how
to contact his care coordinator. He also knows locations in the
community to go for socialization and food and water, admittedly
including the Hospital's emergency department. Elias B.'s New York
State-based OPWDD services would be discontinued if he were to move to
the facility in New Jersey.
Elias B. has not consented to the appointment of a guardian, so any
guardianship appointment may only be made based on a finding of his
incapacity. MHL §81.02(b).
This case approaches the bounds and uses of an Article 81
guardianship proceeding.Elias B. clearly has some limitations which
impact his ability to fully attend to activities of daily living. He
attends to most activities on his own and needs some prompting for
bathing and medication administration. There was no testimony about his
medications and what risks he [*5]may suffer as a result of mismanaged
medication administration. The main limitations identified are Elias
B.'s history of an inability to maintain stable housing and his alleged
inability to currently effectuate his own discharge planning from the
Hospital. Petitioner's witnesses only testified to Elias B.'s potential
need for a guardian with respect to discharge planning. To date, Elias
B.'s housing needs have been addressed through the consensual services
of OPWDD, albeit somewhat imperfectly due to Elias B.'s inconsistency in
accepting those services.
Courts have consistently found that the threshold for appointment of
an Article 81 guardian is reasonable safety and undue risk. Matter of S.
B. (E. K.), 60 Misc 3d 735, 746 (Sup Ct, Chemung County 2018), aff'd as
modified by Matter of Elizabeth T. T., 177 AD3d 20 (3d Dept
2019);Matter of Jillian B (Benny D), 68 Misc 3d 1219(A) at *8 (Sup Ct,
Chemung Co, 2020); Cheryl BK, supra at *4. It is not disputed that Elias
B. is safe in his current placement. It is also true that his current
placement is not appropriate; it is not an appropriate use of community
acute care services and is inarguably not the least restrictive setting
for Elias B. The question becomes one of relative safety, or risk, of
the presented skilled nursing facility discharge and the presumptive
alternative of discharge to the community.
Elias B. has a history of elopement and unstable housing. Whether due
to personality conflicts, behavioral issues, or a conscious choice on
his part, Elias B. does not maintain steady, stable housing for
prolonged periods of time. With his history of elopement, there is a
reasonable probability he would leave the New Jersey facility if placed
there against his wishes. Authority to place is not authority to
restrain a person against his will. Jillian B (Benny D), supra, at *8.
Elias B. would be in a location foreign to him, with no services
established or any local contacts with whom he is familiar, placing him
at substantial risk of harm.
The presumptive alternative is Elias B. being discharged from the
Hospital into the Binghamton area, under the same circumstances as
existed prior to his hospital admission, with OPWDD continuing to
coordinate his housing locally, either in a group home or independent
living. Elopement and instability of housing remain a risk in the
Binghamton area, but here Elias B. is familiar with his services
coordinator, the Hospital, and other community resources and has
historically managed his existence. The Court finds that the discharge
plan currently put forth by the Hospital poses a greater risk of harm to
Elias B. than the alternative. Under these circumstances, the
appointment of a guardian would not obviate the risk of harm posed to
Elias B. due to his inability or unwillingness to remain in stable
housing, so is not the least restrictive alternative.
There is no risk-free solution to Elias B.'s situation; the Court's
decision is based on a relative assessment of the options and a
balancing of Elias B.'s right to maximum independence. Cheryl B., supra,
at *4. The Court acknowledges the decisions Elias B. has and may make
are not ones the petitioner, or most other people, would make. At the
same time the court should not unduly substitute its judgment for his.
Id.; Jillian G (Benny D), supra at *3. The fact remains that Elias B.
has successfully navigated the community and had his needs met, with
varying levels of acceptance of services, for years.
Other factors weigh in the Court's decision. Petitioner's proposal
that the Broome County Department of Social Services be appointed as
guardian, for a person sought to be placed out of state, imposes a
substantial burden on that Department. Testimony that the facility where
Elias B. would be placed would and could become his guardian is
speculative, and problematic under New York guardianship law, where a
care provider is presumptively precluded from appointment. MHL 81.19(e).
That would leave Elias B. under the legal control of his care
[*6]facility, without independent service coordination and hundreds of
miles from his home and only family support.
The testimony at the hearing also raised an issue, not fully
explored, with respect to OPWDD's efforts and ability to continue to
work with Elias B. on housing, his only clearly established limitation.
Elias B.'s capacity for decision making may also need further
exploration, within the framework of his qualification for OPWDD
services, and considering the testimony that Elias B. has returned to
the baseline at which he was initially allowed to provide his own
consent to care.
In furtherance of this Decision, it is hereby
ORDERED, that the request for the appointment of a guardian of the
person and/or property of Elias B. is DENIED, and the petition of United
Health Services Hospitals, Inc. is DISMISSED."
Richardson v Akelius Real Estate Mgt. LLC 2021 NY Slip Op 50788(U) Decided on August 9, 2021 Civil Court Of The City Of New York, New York County Baron, J. :
"Claimant Kemberly L. Richardson brought this small claims action
against Property Manager Akelius Real Estate Management LLC (Property
Manager or Akelius) and 5504-301 E. 21st Manhattan LLC (Landlord) to
recover $4,277.45 for being displaced from her apartment (premises) due
to building negligence after her apartment was damaged during a
rainstorm on August 22, 2019. At trial claimant amended her complaint to
$3,150.01, representing the 34 days she had to stay in a temporary
apartment, starting from September 5, 2019, at $113.16 per day, and
accounting for $697.34 in rent and relocation credits she received from
the Landlord.
Defendants concede that the building contractors failed to secure an
opening in the roof before the rainstorm on the night of August 22,
causing "tremendous" flooding in the building, and extensive water
damage to claimant's apartment (tr at 59), which necessitated prolonged
construction work to the premises and claimant's 34-day relocation to a
vacant apartment in her building provided by the Landlord. Defendants
acknowledge that overall it took 44 days from the initial damage to the
claimant's apartment to fix the premises. In December 2019 defendants
were further notified that there were problems with the quality of the
construction work in the apartment.
Defendants argue, nonetheless, that rent credits of 18% for the
34-day time period claimant stayed in the temporary apartment
sufficiently compensated claimant for the inconvenience of having her
apartment destroyed by water in the middle of the night, the 44 days the
apartment was damaged, and the claimant's necessary 34-day stay in the
temporary apartment. Defendants argue that the provided apartment was
superior to the premises. After trial, the Court awards $3,150.01 to the
claimant, representing the full amount she seeks against the Landlord
as discussed below. The Court dismisses the claim against the Property
Manager.
TRIAL EVIDENCE
The claimant testified that she lived in her building for nearly
twenty years before the [*2]incident. On August 22, 2019, around 2:30 in
the morning (tr at 9, 67-68), claimant woke up to the "sound of rushing
water" (tr at 9). When she turned on the light, she saw water "pouring
down" the door frames and walls throughout her 607-square-foot
one-bedroom apartment and water accumulating under plaster, forming
bubbles on the walls and ceilings (tr at 9-10). Claimant's mattress, box
spring, other belongings and furniture were full of water. Not knowing
what was going on, claimant called the doorman, and was told that there
was a leak in the roof and that "there was nothing that could be done"
(tr at 10). She was further instructed to "just put out buckets and
towels," which she did as she was "frantically trying to catch the
water" (id.). Claimant spent the rest of the night moving furniture and
doing "whatever [she] could do to minimize the damage" in her apartment
(id.). A few hours later she called the building manager and the
Property Manager. There was no testimony that anyone from the building
management went to claimant's apartment to ascertain the situation after
she called for help.
It is undisputed that there was extensive flooding in the building.
Jacob Washington, the Property Manager for the building (tr at 47;
exhibit 5), testified that the flood was "tremendous" as it rained
significantly that night (tr at 59). He acknowledged that the building
has a live-in handyman and an emergency line, which Mr. Washington
believed was called on the night of the storm. Mr. Washington could not
say what was going on in the penthouse above claimant's apartment; he
did not remember if the penthouse called the emergency line. He claimed
that from his experience "it's very likely that the water would have
just been dripping behind the . . . exterior of the walls and [got] down
to the [claimant's] apartment below without anyone noticing" (tr at
61). Mr. Washington further testified that management was not notified
of the leak inside claimant's apartment until the next morning. That
morning, Mr. Washington went to the building to "look at the leak damage
in multiple . . . apartments" (tr at 59-60) and "found the hole that
was left uncovered" by contractors that management no longer uses (tr at
61, 76). He acknowledged that in his years at Akelius, this was the
"only major leak that occurred in this fashion" (tr at 76).
In an email dated August 26, 2019, a representative of the Property
Manager emailed claimant, stating, inter alia, "I've spoken to my
construction manager who has given me a timeline for the repair work
that will be needed. The next steps for the leak are [w]ait for
effected areas to dry = 1-2 weeks . . . [s]crape damaged areas, apply
plaster, wait for plaster to dry = 3 hours + overnight dry . . . [s]and
and apply second coat of plaster, wait for plaster to dry = 3 hours +
overnight dry . . . [s]and and paint = 1 hour" (exhibit 5). Not
"realiz[ing] the extent of what was going to lie ahead" (tr at 10),
claimant stayed in the apartment, "sle[eping] on the dry side of the
mattress" until August 27 (tr at 10, 70). According to Mr. Washington,
claimant asked to stay in her apartment, and Akelius did not want to
"force" her out (tr at 70). Claimant testified that on the evening of
August 27 she learned that her father passed away and that she had to
leave for Boston.
In an email dated August 30, 2019, Mr. Washington told claimant that
the contractors could remove damaged plaster on September 3rd to speed
up the drying process and that if claimant was not at home, the "onsite
staff c[ould] give the contractors access" (exhibit 6). The email asked
claimant to confirm access (id.). It is undisputed that claimant allowed
access to her apartment. Mr. Washington acknowledged access
confirmation in an email dated September 3rd (exhibit 17). Nevertheless,
claimant testified that when she returned from her trip on September
[*3]4th, "everything remained the same, as it was when [she] left on
"August 27th" (tr at 11). The "previously white walls had turned brown
from the water damage" (id.), and "[t]here was a strong smell of
dampness" (tr at 12).
The evidence indicates that work began at some point on September
4th, because in an email dated September 4, at "4:20:06 PM," to Mr.
Washington, claimant stated that the "crew just about finished the
extensive scraping that needed to be done" and did a "good job cleaning
up the incredible amount of white dust" (exhibit 10). Claimant testified
that once the work in her apartment began "it was awful" and that she
had "never seen anything like this" (tr at 14). The evidence shows
substantial portions of plaster removed from walls and ceiling, piles of
removed plaster and paint on the floor, cracked and separating plaster
and paint on the walls, ceiling and doorways throughout the apartment,
and personal belongings and furniture covered in plastic. In the email
dated September 4, 2019, claimant reflected on the "mess" in the
apartment and indicated that she was "not comfortable staying" there
under the circumstances (exhibit 10). Defendants acknowledged at trial
that "[i]t would have been inconvenient to stay in [the apartment]
while work was done" (tr at 52). Claimant left her apartment in the
evening to stay with her sister on the Upper West Side.
While on her way to her sister's, claimant received a call from
management offering her a hotel room. No meal plan was offered. Claimant
declined the hotel room because it lacked a kitchen. The Property
Manager then offered claimant a vacant apartment in the same building
where she lived. The apartment was unfurnished and was not cleaned.
Claimant testified that she had to sweep and mop the apartment. The
apartment also lacked any air conditioning, which affected claimant
during "days of excessive heat" (tr at 14). Although management offered
to have an air conditioner installed (exhibit 12), by that point the
weather had cooled down, and claimant declined the offer. The unit's
washer and dryer never worked and the common laundry in the basement
area of the building was out of service as well. Although the temporary
unit was overall a little larger—887 square feet—and had a slightly
larger kitchen, while claimant's apartment was 607 square feet, the two
bedrooms in the temporary apartment were smaller than the one bedroom in
claimant's apartment. Claimant testified that she felt compelled to
accept the offered vacant apartment because she "was happy [she] had a
place to stay" (tr at 42). Defendants acknowledge that claimant
repeatedly complained that she was uncomfortable staying in the provided
apartment.
Mr. Washington testified that several units were available in the
building, although he did not remember how many. Nevertheless, claimant
was not offered any opportunity to select an apartment where she could
stay while her unit was being worked on. Mr. Washington testified that
the management team made "a collective decision" on which apartment was
going to be offered to claimant although he did not remember whether it
was him or the supervisor who had made that decision (tr at 63). In
their opinion the apartment that was selected for the claimant was
"above the market rate of [claimant's apartment]" (tr at 62-63).
Mr. Washington testified that he "assumed" it would have been
apparent on September 4th that it was going to take longer than the
initial 14-day timeframe provided on August 26th to fix the apartment
(tr at 66). He acknowledged that the provided timeline "was not correct"
(tr at 54), that "as the leak damage continued to dry, [defendants]
realized that it was going to be more extensive than the initial
timeframe provided" and that "the water took a very long time to dry"
[*4](tr at 65). Mr. Washington further testified that the work took
longer because they wanted to "finish the job properly" and "didn't want
to rush to fit into a timeline that had been provided without the
proper knowledge" (tr at 55).
It took 34 days for claimant to move back to her apartment on October
9, 2019 after she moved out on September 4th (exhibit 20; tr at 17).
Mr. Washington testified that "[defendants] did understand what an
inconvenience [being displaced] obviously was" for claimant (tr at 67).
However, there was no testimony indicating that management attempted to
use any specialized equipment, such as floor fans, to increase the air
circulation inside claimant's apartment to speed up the drying process.
Mr. Washington acknowledged that it was claimant who "was running the AC
unit and opening windows" (tr at 65).
After the work was completed "portions of the walls . . . bubbl[ed]
up" (tr at 16), as claimant notified the Landlord by email dated
December 13, 2019 (exhibit 16). The photographs admitted at trial show
extensive bubbling of paint on the walls, and a large crack in the
ceiling with visibly separating paint and plaster, which, according to
claimant, had just occurred the night before trial (tr at 45; exhibit
16).
It is undisputed that claimant's monthly rent for her leased
apartment was $3,442.10 (exhibit A). The ledger indicates that she paid
full rent of $3,442.10 for August, $4,603.00 in September, and $3,099.03
in October, totaling $11,144.13 (exhibit F), which is $817.83 more than
if she had paid the contracted-for rent of $3,442.10 for those three
months. Nonetheless, claimant only seeks reimbursement at the daily
rental rate of $113.16 for the 34-day period she lived in the temporary
apartment.
LAW
The crux of claimant's case is that she is seeking a rent credit in
the form of money damages for being forced out of her apartment after it
was destroyed by water, requiring extensive renovations that took a
prolonged time period. A landlord is obligated to maintain a residential
premises in habitable condition, and this duty cannot be delegated or
waived (see Real Property Law § 235-b; Park W. Mgt. Corp. v Mitchell, 47
NY2d 316, 327 [1979]). This warranty of habitability, implied in every
lease, extends to the "acts of third parties" (47 NY2d at 327). The
landlord warrants that the "premises are fit for human habitation," that
"the condition of the premises is in accord with the uses reasonably
intended by the parties" and that the "tenants are not subjected to any
conditions endangering or detrimental to their life, health or safety"
(id. at 325). "The obligation of the tenant to pay rent is dependent
upon the landlord's satisfactory maintenance of the premises in
habitable condition" (id.).
A "violation of a housing code or sanitary regulation is not the
exclusive determinant of whether there has been a breach" of the
warranty (id. at 328). Although a landlord is "not required to ensure
that the premises are in perfect or even aesthetically pleasing
condition" (id.), "[i]f, in the eyes of a reasonable person, defects in
the dwelling deprive the tenant of those essential functions which a
residence is expected to provide, a breach of the implied warrant[y] of
habitability has occurred" (id.).
In order for a tenant to recover for breach of the warranty of
habitability, the landlord must have actual or constructive notice of
the condition in need of repair (Matter of Moskowitz v Jorden, 27 AD3d
305, 306 [1st Dept 2006], lv dismissed 7 NY3d 783 [2006]; 386 Ft.
Washington Realty LLC v Brenes, 46 Misc 3d 150[A], 2015 NY Slip Op
50286[U] [Sup Ct, App [*5]Term, 1st Dept 2015]; 1050 Tenants Corp. v
Lapidus, 16 Misc 3d 70 [Sup Ct, App Term, 1st Dept 2007]; Wallace 18 LLC
v Tucker, 66 Misc 3d 1209[A], *7 [Civ Ct, Bronx County 2020]).
The proper measure of damages for breach of the warranty "is the
difference between the fair market value of the premises if they had
been as warranted, as measured by the rent reserved under the lease, and
the value of the premises during the period of the breach" (47 NY2d at
329). "The award may take the form of a sum of money awarded the tenant
in a plenary action or a percentage reduction of the contracted-for rent
as a setoff in [a] summary nonpayment proceeding" (id.). When
determining damages, the Court must "weigh the severity of the violation
and duration of the conditions giving rise to the breach as well as the
effectiveness of steps taken by the landlord to abate those conditions"
(id. at 330). Expert testimony is not required to determine the
diminished market value of the dwelling (id.).
ANALYSIS
Although it is undisputed that the water damage to claimant's
apartment occurred on the night of August 22, 2019, after a heavy
rainstorm, claimant is only seeking damages for the time she had to stay
in the temporary apartment while repairs were being made to her home.
It is undisputed that this period encompassed 34 days, from September 5,
2019 to October 9, 2019. Claimant accounted for the two rent credits
previously given by the Landlord and subtracted these amounts from the
damages she is seeking. Defendants did not argue that they lacked actual
or constructive notice of the conditions in the apartment, and the
Court finds that claimant met her burden of establishing notice.
Claimant testified that she contacted defendants during the rainstorm,
and numerous emails were submitted showing ongoing correspondence
between claimant and the Property Manager regarding the conditions and
work in the apartment. The Court finds that petitioner established that
the Landlord had notice of the conditions through its Property Manager
(see Windemere Chateau, Inc. v Hirsch, 22 Misc 3d 1108[A], 2008 NY Slip
Op 52614 [U], *4 [Civ Ct, NY County 2008][the landlord was on notice
"through its agents"]).
The Court also finds that claimant established, by a preponderance of
the evidence, that the conditions that persisted after August 22, 2019
breached the warranty of habitability. In a similar case involving
"cascading" water from an above apartment, the Civil Court determined
that the warranty had been breached, where repairs could not be made
until walls had dried, property was damaged, and goods had to be packed
and stored during the painting (Sargent Realtly Corp. v Vizzini, 101
Misc 2d 763 [Civ Ct, NY County 1979]). Although the Civil Court issued
only a 50% abatement in that case, there was no indication that the
tenant had relocated to another apartment. In a more recent case, the
Civil Court granted a full rent abatement for the three months the
tenant had granted the landlord access for repairs from water leaks and
before the apartment was rendered habitable; it is not clear from that
decision whether the tenant was living in the apartment during that time
period (de Socio v 136 E. 56th St. Owners, Inc., 61 Misc 3d 1220[A],
2018 NY Slip Op 51623[U] [Civ Ct, NY County 2018]).
Here, claimant was displaced from her apartment while the repairs
were being made, and the Court finds that the displacement was necessary
given the small size of the apartment, the nature of the construction
work that had to be performed, and the extensive time period the
apartment was under construction. Given the necessary relocation, Mr.
Washington's testimony that the defendants would have paid for a hotel
for that time period, that the repairs took longer than anticipated due
to no fault of claimant, that there are ongoing issues with water
damage, and [*6]that claimant does not seek damages for the time she was
living in the apartment after the storm (from August 22 to August 27),
the Court finds that claimant is entitled to damages in the amount of
$3,150.01 for the 34 days she had to stay in the temporary apartment.
The Court does not find any basis to hold the Property Manager
liable. The renewal lease is between claimant and the Landlord, not the
Property Manager (exhibit A) (tr at 80). As discussed above, the
Landlord is obligated to maintain the premises in habitable condition
and that duty is nondelegable (Park, 47 NY2d at 329).
Accordingly, the Court awards claimant $3,150.01 against the
Landlord, 5504-301 E. 21st St. Manhattan LLC, with statutory interest
from September 5, 2019, the date of the alleged breach (see CPLR 5001,
5004). The claim against the Property Manager, Akelius, is dismissed."
Section 233 of the New York State Real Property Law governs tenants’ rights in manufactured home parks. DHCR has the authority to enforce RPL 233. The Manufactured Homes Program was created to allow tenants to inquire about their rights under RPL 233 or initiate complaints if they feel their rights are being violated. DHCR trained staff work with park owners and tenants to resolve disputes in compliance with the requirements of the statute.
The official guide to Section 233 New York State Real Property Law Manufactured Homes Program can be found at this link: Guide to Section 233 RPL
ST v LT 2021 NY Slip Op 50792(U) Decided on August 16, 2021 Supreme Court, Nassau County Prager, J. :
"The Defendant moves by Notice of Motion for an Order disqualifying
the firm of TABAT, COHEN, BLUM, YOVINO & DIESA, P.C. as attorneys
for the Plaintiff.
BACKGROUND
The above-captioned action for
divorce was commenced on December 19, 2018 with the filing of the
Summons and Complaint. Plaintiff ST (the "Ex-Husband") and Defendant LT
(the "Ex-Wife") (together, the "Parties") entered into a Stipulation of
Settlement dated December 31, 2018 (the "Stipulation"), which resolved
all issues incident to the divorce. The Stipulation was incorporated,
but not merged, into the Judgment of Divorce entered on September 24,
2019 (the "Judgment").
Pursuant to the Stipulation, the Parties agreed that they would share
joint legal custody of their son GST (the "Son"), born June 30, 2011,
and that the Ex-Wife would have residential custody of the Son, subject
to the Ex-Husband's parenting time.
On January 7, 2020, the Ex-Husband filed a Petition for Modification
in the Nassau County Family Court seeking to expand his parenting time
with the Son. The Ex-Wife filed a [*2]post-judgment motion in the
instant action, seeking to remove and consolidate the Family Court
proceeding with the instant action, and for sole legal custody of the
son. The Parties stipulated to the removal and consolidation of the
Family Court proceeding. The Ex-Husband cross-moved for sole legal and
residential custody of the Son.
By Decision and Order dated September 21, 2020, by Hon. Thomas
Rademaker, J.S.C. (the "Decision & Order") (NYSCEF Doc. 107), the
Court (i) denied the Parties' respective applications for sole custody;
(ii) modified the Stipulation and Judgment so as to award final
decision-making authority to the Ex-Wife; and (iii) awarded legal fees
in the sum of $20,000 to the Ex-Wife.
On or before September 29, 2020, the Ex-Husband filed an appeal from
the Decision & Order in the Appellate Division, Second Department
(the "Appeal") (NYSCEF Doc. 115). To represent him in the Appeal, the
Ex-Husband retained Michael R. Gionesi, Esq., of the law firm of TABAT,
COHEN BLUM, YOVINO & DIESA, PC, (the "Firm"), who had not
represented him previously, either in the divorce action or in the
underlying post-judgment proceedings.
On or about November 2, 2020, the Ex-Wife moved to disqualify the
Firm from representing the Ex-Husband in the Appeal (NYSCEF Doc. 156).
By Decision dated February 8, 2021, the Appellate Division denied the
Ex-Wife's motion (NYSCEF Doc. 157).
On March 1, 2021, Mr. Gionesi, on behalf of the Firm, filed a Notice
of Appearance in the instant post-judgment proceeding (NYSCEF Doc. 145).
The instant motion to disqualify the Firm from representing the
Ex-Husband herein was filed on March 17, 2021. The matter was
conferenced by the undersigned, to whom the proceeding had been
reassigned, and was marked fully submitted on June 16, 2021.
DISCUSSION
The Ex-Wife seeks to disqualify the Firm from representing the
Ex-Husband in these post-judgment proceedings on the ground that she had
consulted with a member of the Firm prior to the commencement of the
divorce action, and had disclosed confidential information to him that
could be prejudicial to her in the instant proceedings.
In her Affidavit in Support (NYSCEF Doc. 147), the Ex-Wife avers that
prior to the commencement of the divorce action, in or about 2017, she
consulted with Robert A. Cohen, Esq., an attorney of the Firm. She
claims that the consultation lasted at least one and one-half (1½ )
hours, during which time she revealed several facts relating to the care
and custody of the Son. Specifically, she states:
"I expressed my fears and concerns as to Plaintiff's mental health,
conduct and his behavior towards our son and myself. I gave a detailed
account of specific events and incidents of Plaintiff's actions to
illustrate my fears. I advised counsel what I wanted and what I believed
my husband's reaction would be to my requests." Affidavit in Support,
¶4.
The Ex-Wife notes that after the initial consultation, she
did not retain Mr. Cohen. She does not indicate that she had any further
contact with Mr. Cohen.
Counsel for the Ex-Wife acknowledges that the Appellate Division
denied the Ex-Wife's motion to disqualify the Firm, but argues that the
circumstances herein are distinguishable. In the Appeal, counsel
asserts, the Appellate Court's consideration was limited to the Record
on Appeal. In the instant post-judgment proceedings, there is no such
limitation. Here, counsel contends that insofar as custody and
visitation remain at issue, any confidential information received by Mr.
Cohen is material to the instant proceedings and could be used by the
Firm to the Ex-Wife's detriment. Counsel argues that any doubts as to
the existence of a conflict of interest must be resolved in favor of
disqualification so as to avoid even the appearance of impropriety.
In opposition, the Ex-Husband submits the Affidavit of Robert A.
Cohen, Esq., sworn to on April 13, 2021 (NYSCEF Doc. 161), along with
Mr. Cohen's intake sheet and intake notes from his consultation with the
Ex-Wife (NYSCEF Docs. 159 and 160). Mr. Cohen states that the Ex-Wife
consulted with him on June 3, 2016. He states that he has no independent
recollection of the consultation. The intake sheet and intake notes (to
the extent that they are legible) appear to reflect basic information
about the spouses, including their age, employment, income, insurance,
and assets. According to Mr. Cohen, all of the information disclosed
during the consultation was required to be disclosed to opposing counsel
during the underlying matrimonial action. He states that the notes do
not reflect any information regarding the Ex-Husband's mental health or
conduct toward the Son, and that generally, if such information were
reported to him, it would be his practice to include it in his notes, as
it would be relevant to the issue of child custody.
Mr. Cohen also affirms and represents that, although he has no
information on this case other than what appears on the intake sheet and
intake notes, he will have no involvement or participation of any kind
in connection with the instant post-judgment matter (or the Appeal). He
notes that he works out of the Firm's offices in Hauppauge, whereas the
files on the instant matters are maintained exclusively in the Firm's
Garden City offices.
The Ex-Husband also submits the Affirmation of Michael Gionesi, one
of the Firm's attorneys handling this matter (NYSCEF Doc. 154). Mr.
Gionesi contends that the Appellate Division heard the identical
allegations, and considered the same arguments, as are now before the
Court with respect to the Firm's disqualification, and that there is
nothing new or different that would warrant a different result. As a
factual matter, he argues that the Ex-Wife's allegations concerning
confidential information revealed to Mr. Cohen are conclusory,
self-serving and unsubstantiated. As a legal matter, he argues that a
party's right to counsel of one's own choosing is a valued right that is
not easily overcome. The mere appearance of impropriety, standing
alone, is not sufficient for disqualification.
Mr. Gionesi asserts that there is no prejudice to the Ex-Wife in the
Firm's continuing to represent the Ex-Husband. He cites Mr. Cohen's
notes, which suggest that the 2016 consultation did not include a
discussion of the Ex-Husband's mental condition or any other information
relevant to the issues of custody and visitation. Moreover, Mr. Gionesi
argues, the consultation pertained to the underlying divorce action,
whereas the instant matter is a post-judgment proceeding. The
confidences allegedly revealed to Mr. Cohen five years ago, in
contemplation of the divorce action, are not relevant here. Finally, Mr.
Gionesi affirms that Mr. Cohen will have no involvement in the instant
post-judgment proceedings (or the Appeal), and he will have no
communication with any attorney, or access to any physical or computer
files, pertaining to this [*3]case.
In Reply, the Ex-Wife challenges the characterization of her
allegations as conclusory and self-serving. She argues that she cannot
be required to disclose the specific facts that she related to Mr.
Cohen, insofar as to do so would reveal the very confidences that she
seeks to protect. She reiterates her argument that disqualification is
necessary to avoid prejudice and the appearance of impropriety.
The disqualification of an attorney is a matter that rests within the
discretion of the Court. Lauder v. Goldhamer, 122 AD3d 908, (2d Dept.
2014). "A movant seeking disqualification of an opponent's counsel bears
a heavy burden. . . . A party has a right to be represented by counsel
of its choice, and any restrictions on that right must be carefully
scrutinized." Mayers v. Stone Castle Partners, LLC, 126 A.D.3d 1, 4
(1st Dept. 2015) (internal citations and quotation marks omitted). See
also Aryeh v Aryeh, 14 AD3d 634 (2d Dept. 2005). Such right "is a valued
right which will not be superseded absent a clear showing that
disqualification is warranted." Halberstam v. Halberstam, 122 AD3d 679
(2d Dept. 2014).
The right to counsel of one's choice is not absolute, however, and
must be balanced against a potential client's right to the protection of
his confidential disclosures. Mayers, supra. The duties of an attorney
with respect to a prospective client's disclosures are set forth in the
Rules of Professional Conduct [22 NYCRR 1200.0] Rule 1.18. Rule 1.18
provides, in relevant part:
(a) A person who discusses with a lawyer the possibility of forming a
client-lawyer relationship with respect to a matter is a 'prospective
client.'(b) Even when no client-lawyer relationship ensues, a lawyer who
has had discussions with a prospective client shall not use or reveal
information learned in the consultation, except as Rule 1.9 would permit
with respect to information of a former client.(c) A lawyer subject to
paragraph (b) shall not represent a client with interests materially
adverse to those of a prospective client in the same or a substantially
related matter if the lawyer received information from the prospective
client that could be significantly harmful to that person in the matter,
except as provided in paragraph (d). If a lawyer is disqualified from
representation under this paragraph, no lawyer in a firm with which that
lawyer is associated may knowingly undertake or continue representation
in such a matter, except as provided in paragraph (d).(d) When the
lawyer has received disqualifying information as defined in paragraph
(c), representation is permissible if:(1) both the affected client and
the prospective client have given informed consent, confirmed in
writing; or(2) the lawyer who received the information took reasonable
measures to avoid exposure to more disqualifying information than was
reasonably necessary to determine whether to represent the prospective
client; and(i) the firm acts promptly and reasonably to notify, as
appropriate, lawyers and nonlawyer personnel within the firm that the
personally disqualified lawyer is prohibited from participating in the
representation of the current client;(ii) the firm implements effective
screening procedures to prevent the flow of information [*4]about the
matter between the disqualified lawyer and the others in the firm;(iii)
the disqualified lawyer is apportioned no part of the fee therefrom;
and(iv) written notice is promptly given to the prospective client;
and(3) a reasonable lawyer would conclude that the law firm will be able
to provide competent and diligent representation in the matter.
In
weighing the competing interests, a time-worn principle, still adhered
to in certain circumstances, holds that any doubts about the existence
of a conflict of interest must be resolved in favor of disqualification,
and that the mere appearance of impropriety is sufficient to warrant
disqualification. See Cohen v Cohen, 125 AD3d 589 (2d Dept. 2015);
Halberstam v Halberstam, 122 AD3d 679 (2d Dept. 2014).
A line of authority has developed in recent years, however, that
reflects an evolving standard applicable to a motion to disqualify. As
discussed at length by Justice Dollinger in Lyons v Lyons 50 Misc 3d 876
(Sup. Ct. Monroe Cty 2015), and revisited two years later in EMB v AMB
55 Misc 3d 1202(A) (Sup. Ct. Monroe Cty, 2017), courts across the
appellate departments, in response to the flood of disqualification
cases and the adoption of the new Rules of Professional Conduct, are
tending to engage in a more fact-specific inquiry, and to require the
movant to show something more than the mere appearance of impropriety.
Justice Dollinger cites a long line of cases in which Courts articulate,
in various formulations, a standard requiring a fact-based "clear
showing" of potential prejudice to the party seeking disqualification.
See EMB v AMB, supra, and Lyons, supra; see, e.g., Lovitch v Lovitch ,
64 AD3d 710 (2d Dept. 2009) ("Absent actual prejudice or a substantial
risk thereof, the appearance of impropriety alone is not sufficient to
require disqualification of an attorney.") Justice Dollinger concludes:
"This court understands that 'the appearance of a conflict' - an
apprehension that a former attorney knows a secret that will be used
against his former client - is a powerful fear among litigants. But,
mere fear of disclosure - even when cloaked in the language of an
'appearance of a conflict' - is not enough: recent case law and changes
in the Rules of Professional Conduct require that there must be some
proof of the transfer of confidential information and a real risk of its
disclosure to the detriment of the current litigant before a court,
utilizing its discretionary powers, grants disqualification." EMB v AMB,
supra.
With respect to the case at bar, the Court is persuaded by the
reasoning of the latter line of cases, and is of the opinion that the
holdings therein strike the appropriate balance between a party's right
to representation by counsel of one's choice, and the movant's right to
protection from a former attorney or prospective attorney's breach of
duty to him or her.
A standard reflective of this recent trend was articulated by the
First Department in a context similar to the one at bar, where the
movant sought disqualification of his adversary's attorney on the basis
of having previously consulted with that attorney as a prospective
client. See Mayers v. Stone Castle Partners, LLC, 126 A.D.3d 1, 4 (1st
Dept. 2015). In Mayers, the Court held that, to prevail on a motion to
disqualify, the movant must make a "clear showing" that: (1) the matter
for which the attorney is presently retained is the same or
substantially related to the matter for which the prior consultation was
sought; (2) the interests of the party whom the attorney now represents
are adverse to those of the party seeking disqualification; and (3) the
information relayed in the prior consultation could be significantly
harmful to the party seeking [*5]disqualification in the present matter.
Mayers,126 A.D.3d at 5 (emphasis supplied). That is the rule which
this Court shall apply here.
As a preliminary matter, the Court finds that it is not bound by the
Appellate Division's decision denying the Ex-Wife's motion to
disqualify. As argued by the Ex-Wife herein, the circumstances are
distinguishable. The Appellate Division's consideration on the Appeal is
limited to the Record on Appeal, which includes only the documents,
papers, transcripts and other evidence filed in the proceedings before
Judge Rademaker. Insofar as the Firm did not represent the Ex-Husband in
those proceedings, no confidential information received by Mr. Cohen
could have been included in the Record on Appeal. There is no such
limitation on the record in the instant proceeding, and any facts known
to Mr. Cohen would not, as such, be kept outside the scope of these
proceedings.
In addition, for purposes of the instant determination, the Court
shall assume, without deciding, that the Ex-Wife's statements are true
regarding the subject matter of the information conveyed to Mr. Cohen in
her 2016 consultation.[FN1]
Insofar as Mr. Cohen states that he has no independent recollection of
the meeting, and given the Ex-Wife's concerns regarding disclosure of
the specific confidences she seeks to protect, a hearing on the issue
would be fraught with complications, and would not be sufficiently
fruitful to justify the further expense and delay in these proceedings.
See, generally, EMB v AMB 55 Misc 3d at 1202(A); Lyons v Lyons 50 Misc
3d at 876.
Turning to the proof required by Mayer [126 A.D.3d at 5], the Court
is unpersuaded by the Ex-Husband's suggestion that there is no
substantial relationship between the instant post-judgment proceedings
and the underlying divorce proceedings. At minimum, both matters concern
issues of child custody and visitation. Nonetheless, upon the record
presented, the Court does not find that the Ex-Wife has met her burden
to make a "clear showing" that disqualification is warranted. While she
is not required to spell out the claimed secrets she wishes to protect
in order to prevail, she must provide the Court with some information
that would permit the Court to conclude that there is a reasonable
likelihood that the disclosures allegedly made to Mr. Cohen could be
significantly harmful to her in the present litigation. See E.M.B. v
A.M.B., 55 Misc 3d 1202(A), quoting Jamaica Public Service Co. Ltd. v
AIU Ins. Co., 92 NY2d 631 (1998).
According to the Ex-Wife, she provided to Mr. Cohen information
relating to the following subject matter: (1) the Ex-Husband's mental
condition; (2) the Ex-Husband's conduct toward herself and the Son; and
(3) what she wanted in the litigation, and what she believed the
Ex-Husband's response would be to her requests.
The issues before the Court in these post-judgment proceedings fall
under the rubric of enforcement or modification of the terms of the
Stipulation and Judgment. With respect to [*6]enforcement, the onus is
on the moving party to demonstrate that the other party has not complied
with such terms. The facts and circumstances relevant to this inquiry
are those which occurred after the entry of the Stipulation and
Judgment. With respect to modification, the onus is on the moving party
to demonstrate that there has been a change of circumstances that
warrants a modification of such terms. The facts and circumstances
relevant to this inquiry are those that existed at the time of the
Stipulation and Judgment, and those that occurred thereafter.
The Ex-Wife does not explain, let alone demonstrate, how the facts
and circumstances existing in 2016, over 2-1/2 years before the entry of
the Stipulation and Judgment, are relevant to the instant post-judgment
proceedings. More particularly, she does not explain, or even offer a
theory, as to how the knowledge of such information by the Ex-Husband's
counsel could impact the instant litigation or affect her legal
status.[FN2]
The Court cannot be called upon to speculate on her behalf.
Here, it is not the lack of specificity regarding the information
allegedly provided to Mr. Cohen that is of concern to the Court. Rather,
it is a lack of clarity as to how the type of information allegedly
reported to Mr. Cohen in 2016 could significantly harm the Ex-Wife in
the present litigation. At minimum, some fact-based explanation is
required to withstand the strict scrutiny applied to a motion to
disqualify.
The Court is of the opinion that it would be an improvident exercise
of discretion to deprive the Ex-Husband of representation by counsel of
his choice on the basis of nothing more than the conclusory assertion of
prejudice. Moreover, the steps taken by the Firm to isolate Mr. Cohen
from any contact with this case going forward further attenuate any
claim of prejudice, and further militate against disqualification.
CONCLUSION
The Court has considered the remaining contentions of the parties and
finds that they do not require discussion or alter the determination
herein.
Based upon the foregoing, it is
ORDERED, that the Ex-Wife's motion for an Order disqualifying the
firm of TABAT, COHEN, BLUM, YOVINO & DIESA, P.C. as attorneys for
the Plaintiff is DENIED."
When the trial is over or the case settled, the litigation may continue nevertheless - but this time, it's between the lawyer and his/her client over the legal fees.
Part 137 of the Rules of the Chief Administrative Judge establishes the New York State Fee Dispute Resolution Program, "which
provides for the informal and expeditious resolution of fee disputes
between attorneys and clients through arbitration and mediation. In
accordance with the procedures for arbitration, arbitrators shall
determine the reasonableness of fees for professional services,
including costs, taking into account all relevant facts and
circumstances. Mediation of fee disputes, where available, is strongly
encouraged."
Matter of Chariss C. v Jose G. 2021 NY Slip Op 50757(U) Decided on August 6, 2021 Family Court, Kings County Vargas, J:
"Upon the foregoing papers, the evidentiary virtual bench trial
presided by the undersigned from August 28, 2020 to June 24, 2021, the
exhibits admitted into evidence and for the following reasons, the
Petition by Petitioner Chariss C. (hereinafter "Grandmother"), for sole
guardianship of the subject Children, is granted in accordance with the
following decision.
I.
The following facts are essentially
undisputed. While residing at the Grandmother's house, Respondent
Courtney C. (hereinafter "Mother") gave birth out-of-wedlock to the
subject Children, born in 2010 and 2013. The Father of the Children is
Respondent Jose G. (hereinafter "Father"), but he has rarely been
involved or provided for the Children. It has been the Grandmother and
her husband, Marion Jackson, who primarily provided for the Children's
support, food, housing and education. Although the Mother and the
Children were living with the Grandmother and her husband, the Mother
unexpectedly left the residence with the Children in September 2018
without divulging their whereabouts or permitting visitation with the
Children.
As a result, by Petitions for Appointment of Guardian of the Person
dated May 9, 2019, the Grandmother commenced the instant Guardianship
proceedings seeking to be appointed guardian for the Children, alleging
that she can provide a stable and loving environment for the Children
because they have always resided with her, the Mother "has mental issues
that are unresolved," and the Father "has not been part of their
lives." Both the Mother and Father initially appeared to answer and
opposed the Petitions, and County Law § 18B counsel were promptly
appointed to them as well as for the Children by the Children's Law
Center. However, the Father continuously declined to cooperate with his
counsel or fully participate in the proceedings and was eventually
defaulted. Commencing in June 2019, the Undersigned issued Temporary
Orders of Guardianship in favor of the Grandmother for her to make
residential, medical and educational decisions for the Children, while
providing for day visitation to the Mother, which the Court continued
throughout the proceedings. Problems arose based on the Mother's
repeated refusal to cooperate in enrolling the Children in school and in
providing their prescribed medications to the Grandmother, requiring
repeated court intervention.
In accordance with the requirements of the Surrogate's Court
Procedure Act, the Court received New York State Central Registry
results clearing the Grandmother and all persons over the age of 18
residing in the home of any child abuse or maltreatment. The Mother, who
had an indicated report for lack of medical care in 2013, was transient
during the proceedings, living with her Paternal Grandmother, Selena
Lofton, as of May 2019, then a maternal aunt in Long Island until
December 2020, and now with her cousin. Given the allegations made
against the Mother and the Grandmother, this Court ordered and received
two Court Ordered Investigations ("COI") dated September 18, 2019 and
September 25, 2020, prepared by the New York City Administration of
Children's Services. Among other things, both COI Reports reflect that
the [*2]Grandmother has been the primary caretaker of the Children, who
are thriving in her home, while the Mother had a history of domestic
violence allegations against her, the past indicated report of neglect,
and her residences could not be properly evaluated despite repeated
attempts.
While the case was sub judice, the terrible Covid-19 Pandemic
descended upon the World temporary paralyzing nonemergency matters
pending in all New York courts, and thereby requiring the implementation
of virtual proceedings and conferences using Skype and then Microsoft
Teams platforms. All counsel and parties in the Family Court became
proficient and began utilizing the virtual format for their pending
proceedings. Several conferences were held virtually in this case via
Teams before the Undersigned from home, Chambers and then from the empty
courtroom.
II.
Despite the Mother's inadequacies and failure to engage in visitation
with the Children, she recalcitrantly argued for sole custody and
guardianship of the Children. Hence, the highly contested hearing
between the Grandmother and the Mother commenced on August 28, 2020 in a
virtual fashion via Microsoft Teams, without objection. At the
commencement of the trial, the Grandmother testified virtually that the
Children have been living with her all their life and with the Mother in
their three-bedroom apartment. She resides there with her husband and
the Children, who each has his own bedroom. The Grandmother, who is
employed by the U.S. Postal Service, and her husband, a supervisor at a
real estate company, have financially supported the Children, given the
Mother's irregular and sporadic employment. In fact, the Grandmother
testified that the Mother has never financially supported the Children,
send them letters or cards, or bought them any clothes or food. She
analogized the Mother as merely a babysitter for the Children while
Grandmother worked. It was the Grandmother who enrolled the Children in
school full time and provided medical coverage for them.
The Grandmother further testified that early on she noticed that the
older Child was nonverbal, nor progressing or developing in a normative
way, and she made doctors' appointments and scheduled therapy sessions,
which eventually rendered a diagnosis of pervasive development disorder
and autism. The Mother will sometimes go to the appointments, but it was
the Grandmother who arranged for the Child to receive early
intervention, several speech and occupational therapies, and at home
services. Currently, the Older Child attends a special school, while the
younger graduated from special education to the regular educational
program at P.S. 156. Since March 2020, they were attending school
remotely and eventually will be attending in person as arranged by the
Grandmother. As for medical coverage, the Children receive Medicaid and
Health Plus insurance, more specifically Empire Blue Cross Blue Shield.
The Grandmother further testified that she continued to worry about
the Children after the Mother left her home in September 2018, without
divulging their new address. In fact, the Mother did not have a
permanent place for her Children to reside due to her transient nature —
she lived with the Paternal Grandmother, Elenore W., in East New York,
the Great Grandmother, and then recently with an aunt in Long Island
from where she was kicked out in [*3]December 2020. The Grandmother
further testified that Mother only calls her home to harass, curse and
accuse her of wrongfully taking her Children over "80 times," sometimes
more than once a day "depending on her mood." However, the Mother never
discussed the Children, their wellbeing and rarely visited them.
According to the Grandmother, the Mother gets fixated with things and
has exhibited signs of mental illness from the early age of 18, due to
her exposure as a child to high levels of lead. She has continuously
refused treatment or any help. The Grandmother surmised that the Mother
exposed herself to high levels of lead as a four-year-old child when she
ate dirt and paint chips, and "used Styrofoam cups." The Mother never
finished school, was not working for over seven years and rarely took
care of the Children.
Due to Mother's illness and her ongoing kidney infection, trial dates
scheduled during the Covid Pandemic for October and December 2020 did
not go forward. The trial resumed on February 11, 2021, with the
Grandmother testifying that she is concerned about the Mother's ability
to care for the Children because of her current health and mental
conditions, and her lack of patience to deal with them. Grandmother
explained that the "Mother has to take care of herself before taking the
Children." While she has encouraged and brought the Children to visit
with the Mother, the Mother failed to visit regularly and did not see
them for over six months at one time during the Pandemic. At the close
of Grandmother's case, she and the Attorney for the Child moved for a
directed verdict arguing that there is prima facie proof of guardianship
given the Mother's abandonment, but this Court denied the oral
application after oral argument.
Thereafter, the Mother began her testimony confirming that she left
the Grandmother's house with the Children in September 2018, but stating
that she always provided visits for the Grandmother. The Mother
testified that after Grandmother obtained temporary guardianship of the
Children, she made it difficult for the Mother to see and visit with the
Children, despite her coming 30 to 40 times to Brooklyn from Long
Island; she wanted to take the Children to Long Island. She moved out of
her Paternal Grandmother's house because they were not getting along
and that a similar situation arose with her Aunt in Long Island. She
acknowledged that she suffers from an illness of chronic inflammation of
the kidneys, Pyelonephritis, and has been hospitalized over nine times,
once during the trial. She denied having any mental difficulties and
proposed that the Father and other relatives could assist her with the
Children whenever medically or otherwise indisposed.
The virtual bench trial continued April 22, 2021, with the Mother
testifying that she wants the Children back in her care, even though she
has no stable housing. On cross examination, the Mother acknowledged
moving to three different places in two years, and that she had five
different jobs during the same time-period. Although Mother testified on
April 22nd that she is retail specialist manager, she appeared in
virtual court on June 24, 2021 in a grey uniform, testifying that she
was then a security guard. As for housing, Mother testified that she is
now living with her cousin in Brooklyn because Long Island was "not a
good environment for her." Relevantly, the Mother admitted to not
visiting the Children for a while, nor asking about or knowing where
they go to schools since 2019, their teachers or what therapies they are
currently receiving. She did not know Jeremy's school or whether he was
getting therapy and services at home.
The Mother further testified that since 2020, she has not had mental
health issues, but goes to a psychotherapist twice a week on a volunteer
basis to deal with her stress and lack of patience. On cross
examination, the Mother acknowledged that she saw the Children only two
or three times while living on Long Island, and did not visit or see
them at all during the Pandemic between March 2020 and August 2020.
Then, she contradicted herself by saying that she sees them "pretty
often" and electronically via video conferences. Once, she went to the
Child's school to get some documents to apply for an apartment for her
to live, but was asked to leave by school authorities after causing a
commotion for their refusal to provide her with the documents. The
Mother denied retaining any of the Children's benefits or food stamps,
and did not provide financial help to the Grandmother because she never
asked for the same. She claimed to have sent food and clothing for their
benefit. She then revealed that she is looking for an apartment but
does not want the Grandmother to know where she would be living.
In rebuttal, the Grandmother provided documentary evidence that the
Mother had retained some of the Children's disability benefits and food
stamps in June 2020, even though the Grandmother had guardianship and
was entitled to the benefits herself. After the rebuttal testimony, the
bench trial was concluded on June 24, 2021 with only the Mother and
Grandmother testifying. After oral summations, the Court reserved
decision. While each party predictably asks for guardianship for
themselves, the Attorney for the Child supports a grant of sole
guardianship to the Grandmother. This Court agrees.
III.
"As between a parent and a nonparent, the parent has the superior
right to custody that cannot be denied unless the nonparent establishes
that the parent has relinquished that right due to surrender,
abandonment, persistent neglect, unfitness, or other like extraordinary
circumstances" (Matter of Kaylub T. [Erik C.-Mandy C.], 150 AD3d 862
[internal quotation marks omitted]; see Matter of Bennett v Jeffreys, 40
NY2d 543, 549; Matter of Linda S.M. v. Demetrius W., 160 AD3d 860 [2nd
Dept. 2013). This standard applies where, as here, a parent opposes the
petition of a nonparent seeking guardianship (see generally Matter of
Joel T. v Miriam T., 163 AD3d 828 [2nd Dept. 2018]; Matter of Roberta W.
v Carlton McK., 112 AD3d 729 [2nd Dept. 2013]). "Whether extraordinary
circumstances exist involves the consideration of various factors,
including, among others, the length of time the child has lived with the
nonparent, the quality of that relationship and the length of time the
biological parent allowed such custody to continue without trying to
assume the primary parental role" (Matter of Thompson v Bray, 148 AD3d
1364, 1365 [3rd Dept. 2017]; see Matter of Samuels v Pegues, 173 AD3d
1040, 1041 [2nd Dept. 2019]). "The burden of proof is on the nonparent
to prove such extraordinary circumstances" (Matter of Rudy v Mazetti, 5
AD3d 777, 778 [2nd Dept. 2004]; see Matter of Rovenia G.M. v. Lesley
P.A., 44 AD3d 942 [2nd Dept. 2007]). "Once there is a finding of
extraordinary circumstances, a best interests determination is
triggered" (id. at 778; see Matter of Joel T. v Miriam T., 163 AD3d at
828). When considering guardianship appointments, the children's best
interests are paramount (see Surrogate Court Procedure Act § 1707;
Matter of Deven Meza F., 108 AD3d 701 [2nd Dept. 2013]).
Applying these principles to the matter at bar, the Grandmother has
sufficiently established the existence of extraordinary circumstances
and that she must be the Children's guardian. With her credible
testimony and exhibits, the Grandmother satisfied her burden of
[*4]establishing extraordinary circumstances on the basis of the
evidence of the Father and Mother's failure to provide for the
Children's emotional and financial needs, their failure to visit the
Children in a consistent way and their disregard for the Children's
education, housing stability and medical issues (see Matter of Dellolio v
Tracy, 35 AD3d 737, 738 [2nd Dept. 2006]; Matter of Campo v Chapman, 24
AD3d 439, 440 [2nd Dept. 2005]). The record reflects that the Mother
admitted to moving to three different places and navigating through five
different jobs in the last two years. She failed to consistently visit
with the Children, even declining to visit them for six whole months.
The Grandmother also credibly testified about — and this Court perceived
and observed — the Mother's apparent mental and chronic medical issues,
her undisputed child protective and domestic violence history, and her
concomitant inability to support and provide a stable environment for
the Children.
On the other hand, there is ample evidence that the Children have
developed a strong emotional bond with their Grandmother, who has
supported and cared for them almost uninterruptedly since their birth in
2010 (see Matter of Campo v Chapman, 24 AD3d at 439). Although the
Mother temporarily left the residence with the Children and disappeared
for a while without divulging her whereabouts in 2018, she eventually
returned them to the Grandmother essentially acknowledging that she
could not provide them with permanent housing. While the Children were
in Grandmother's care, the Mother contacted the Grandmother several
times, but only to harass her and insult her without really asking about
the Children. At the moment, the Mother is unable to provide any
housing, whether temporary or permanent, for her Children. Nor does she
have a stable and steady job which will permit her to financially
support the Children.
The Mother further appears ill equipped to care for the Children due
to her undisputed health issues. The Grandmother credibly testified that
the Mother has exhibited signs of mental illness and bizarre behavior -
observed by the Court throughout the proceedings - and has refused to
seek help. The record reflects that Mother has been hospitalized over
nine times in two years for physical reasons. The Court acknowledges
that Mother suffers from a chronic medical condition. However, it is
apparent that she has not made plans for the care of the Children should
she need to be hospitalized for an extended period of time. She
unrealistically suggested that the Father, who has not been involved in
the Children's lives and not shown any interest in these proceedings,
and her other relatives, whom she has alienated with her extended stays
and behavior, would somehow provide her with help. With respect to
Mother's mental condition, this Court referred Mother for a mental
health evaluation on at least two occasions, on August 28, 2020. To
date, Mother has not been evaluated as per this Court's directive. It is
clear from this record that Mother is not equipped to take care of her
Children because she does not have stable housing, a steady source of
income nor the mental capacity to care for them.
Moreover, the record and testimony reveal the Grandmother's
demonstrated stability and ability to care for the Children's special
needs. Granting the Grandmother permanent guardianship of the Children
is in their best interests because it is she who has taken the
responsibility of meeting the children's basic and special needs. The
Grandmother has taken care of the Children since birth, has financially
supported the children. In the Grandmother's care, the Children are
thriving, as they are enrolled in school full time, have medical
coverage and are addressing their special circumstances. During the
hearing, the Mother admitted to not knowing about the Children's
education, schools or activities. She candidly acknowledges that she has
not been to the Children's school since 2019 because she is not
welcomed at the school by the [*5]principal. The Grandmother is the only
one entitled to receive any social security benefits, child support,
public assistance, food stamps or any other payments wrongfully retained
by the Mother. To wit, Mother has never supported the Children, bought
them clothes or provided any financial support.
Thus, the Grandmother is fully capable of caring for the physical,
emotional, health and educational needs of the children. The Grandmother
not only provides stable housing, but comfort and safety and has a good
relationship with the Children. It is important to note that she wants
the Children to have a relationship with their Mother and has
facilitated that relationship. The Children visit their Mother on
weekends and during times when school is not in session.
IV.
In accordance with the foregoing, the Court finds extraordinary
circumstances, grants the Grandmother's Petition for Guardianship, and
determines that the best interests of the Children require that they be
placed in the permanent guardianship of the Grandmother until they turn
18 years of age.
The Grandmother shall be the sole permanent Guardian of the Children.
The Grandmother shall be solely responsible for decision-making
regarding the Children's education, religion, medical issues, residence,
and extracurricular activities.
The Mother shall continue to have liberal weekend visitation with the Children as agreed upon between the parties.
The Mother is not to interfere with the Grandmother's care and
custody of the Children, especially to refrain from taking the Children
out of school without authorization, making medical appointments or
changing their prescriptions.
The Mother is permitted to obtain the Children's school attendance
records, report cards, and information on parent/teacher's conferences.
The foregoing constitutes the Decision and Order of this Court.
Dated: August 6, 2021
Brooklyn, New York
NOTICE:
PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM
THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY
APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO
APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR
THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST."
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