COVID TREATMENTS AND THE COURT

Cammarano v. Staten Island University Hosp., Date filed: 2021-09-20, Court: Supreme Court, Richmond, Judge: Justice Ralph Porzio, Case Number: 85169/2021:

"HISTORY

This action was brought by Donald James Cammarano, (hereinafter “Plaintiff/advocate”) as the son and advocate for Donald Anthony Cammarano (hereinafter “Patient”) on September 7, 2021, seeking a medical declaratory judgment and emergency order compelling Staten Island University Hospital- Northwell Health (hereinafter “SIUH/Northwell”) to comply with a prescription for Ivermectin to treat the patient’s COVID-19. According to Plaintiff/advocate, his father, the patient, tested positive for COVID-19 on or about July 23, 2021 and was admitted to SIUH/Northwell on July 28, 2021. While in the ICU, the patient received the hospital’s COVID-19 treatment protocol of Remdesivir, antibiotics, and steroids. Plaintiff/advocate stated in his affidavit that on August 11, 2021 the patient, his father, stated that he wanted to be prescribed Ivermectin. The following day, August 12, 2021, Plaintiff/advocate stated that Dr. Michael Chalhoub, the Chief of the ICU at Staten Island University Hospital, agreed to prescribe Ivermectin for the patient. Despite this, the Plaintiff/advocate was subsequently informed that the hospital refused to prescribe and administer the prescription. Instead, Dr. Michael Turner, MD, a doctor from Washington State and not associated with Northwell Health, prescribed Ivermectin for the patient. However, SIUH/Northwell refuses to administer the prescription as they claim Ivermectin is not the appropriate course of treatment for the patient.

SPECIAL PROCEEDING

The Plaintiffs brought this Special Proceeding and Order to Show Cause for a medical declaratory judgment and emergency preliminary injunction on September 7, 2021 asking this Court to compel SIUH/Northwell to administer Ivermectin to the patient. This Court initially denied the interim relief which sought SIUH/Northwell to administer Ivermectin as “ordered by his treating physicians” based upon the failure to timely file an affirmation pursuant to 22 NYCRR 202.7. The Court heard the matter on September 9, 2021, and again did not order SIUH/Northwell to administer Ivermectin. The matter was adjourned for full briefing and oral arguments of the Order to Show Cause on September 14, 2021.

Though the Court is sympathetic to the Plaintiffs, there has been no admissible evidence submitted that Ivermectin is an effective or an approved treatment for COVID-19. The Plaintiffs failed to present any affidavits from Dr. Michael Turner, the prescribing physician, or any other expert, recommending Ivermectin to the patient or attesting to Ivermectin as an effective treatment for COVID-19. Plaintiffs, in support of the application, submitted inadmissible news articles and orders from similar cases, without any statutory or case law authority. This decision will address the preliminary injunction, the fundamental right to medication, the right to try and the compassionate use of medication.

The Preliminary Injunction

In order for the Court to grant a preliminary injunction, the Plaintiff must show (1) a likelihood of success on the merits; (2) irreparable harm in the absence of the preliminary injunction; and (3) the balance of the equities in favor of the Plaintiff. See W. T. Grant Co. v. Srogi, 52 NY2d 496, 517 (1981). “A mandatory injunction, which is used to compel the performance of an act, is an extraordinary and drastic remedy which is rarely granted and then only for unusual circumstances where such relief is essential to maintain the status quo pending trial of the action. Matos v. City of New York, 21 A.D.3d 936, 937 [2d Dept. 2005].

It is the Plaintiffs’ burden to show a likelihood of success on the merits of the case and it must be clear from undisputed facts. See McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan & Co., 114 AD2d 165, 173 [2d Dept. 1986]; Family Affair Haircutters, Inc. v. Detling, 110 AD2d 745, 747 [2d Dept. 1985]. The Plaintiffs have failed to show a likelihood of success on the merits, as they have not shown that Ivermectin would be effective in treating the patient, nor have they shown that the Court has any legal authority to order their requested relief.

Further, Plaintiffs have failed to show that they would suffer irreparable harm in the absence of the preliminary injunction. The alleged harm must be shown by the Plaintiff to be “imminent, not remote or speculative.” See Golden v. Steam Heat, 216 AD2d 440, 442 [2d Dept. 1995]. In this case, Plaintiffs have only speculated that the Ivermectin treatment would be effective for the patient. The Court, on speculation alone, cannot find that the patient would suffer irreparable harm in the absence of the preliminary injunction.

Finally, the Plaintiffs have failed to show a balance of the equities in their favor, as they must show that the irreparable harm will outweigh the harm to the defendants. See McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan & Co., 114 AD2d 165, 174 [2d Dept. 1986]. This Court agrees that “public policy should not and does not support allowing a physician to try any type of treatment on human beings. Rather, public policy supports the safe and effective development of medications and medical practices.” See Smith v. W. Chester Hosp. LLC, 2021 Ohio Misc. LEXIS 103 [Ohio Court of Common Pleas Gen. Div. Butler Cty. September 6, 2021]. The goal of providing assistance to patients during the COVID-19 pandemic should not “overcome thoughtful, evidence-based judgment…” American Medical Association, Prescribing Medications Responsibly in a Pandemic, Code of Medical Ethics Opinion 1.2.11 (August 21, 2021), available at www.ama-assn.org/delivering-care/ethics/prescribing-medications-responsibly-pandemic [last accessed Sept. 20, 2021]. This Court will not overrule the clinical judgment of the patient’s physicians, as doing so may cause severe harm to those physicians, SIUH and Northwell Health.

Fundamental Right to Medication

The news surrounding the use of Ivermectin to treat COVID-19, without any data or peer-reviewed proof, reminds this court of the use of Laetrile, a drug that gained popularity, but was not federally approved for the treatment of cancer. Laetrile, also known as amygdalin, is made from the pits of fruits and is found naturally in plants. The drug was ultimately banned by the United States Food and Drug Administration (hereinafter “FDA”) as it showed no anticancer activity, and the side effects mirror the symptoms of cyanide poisoning. (“Laetrile/Amygdalin (PDQ®)-Health Professional Version,” National Institute of Health, National Cancer Institute, www.cancer.gov/about-cancer/treatment/cam/hp/laetrile-pdq, [last accessed Sept. 20, 2021]). The use of the unapproved drug Laetrile for terminally ill patients was addressed by the United States Supreme Court in United States v. Rutherford.

In 1975, terminally ill cancer patients brought an action to “enjoin the Government from interfering with the interstate shipment and sale of Laetrile, a drug not approved for distribution under the act.” United States v. Rutherford, 442 US 544, 556 [1979]. The question addressed in the Rutherford case was “whether the Federal Food, Drug and Cosmetic Act precludes terminally ill cancer patients from obtaining Laetrile, a drug not recognized as ‘safe and effective’…” Id. at 546. The Court stated, “for the terminally ill, as for anyone else, a drug is unsafe if its potential for inflicting death or physical injury is not offset by the possibility of therapeutic benefit…” Id. at 556. The Supreme Court in Rutherford ultimately held that there was no explicit exception for terminally ill patients to use a drug that was not approved as safe or effective. Id.

The Supreme Court, in analyzing a drug’s effectiveness under the Federal Food, Drug and Cosmetic Act, noted:

“Moreover, there is a special sense in which the relationship between drug effectiveness and safety has meaning in the context of incurable illnesses. An otherwise harmless drug can be dangerous to any patient if it does not produce its purported therapeutic effect. See 107 Cong. Rec. 5640 (1961) (comments of Sen. Kefauver). But if an individual suffering from a potentially fatal disease rejects conventional therapy in favor of a drug with no demonstrable curative properties, the consequences can be irreversible. See, e. g., 42 Fed. Reg. 39768, 39787 (1977) (statement of Dr. Carl Leventhal, Deputy Director of the Bureau of Drugs, FDA, and Assistant Professor of Neurology and Pathology at Georgetown University).” United States v. Rutherford, 442 US 544, 556 [1979].

The United States Court of Appeals for the District of Columbia Circuit addressed drug regulation and the use of unapproved drugs for the terminally ill in its decision in Abigail Alliance for Better Access to Dev. Drugs v. Von Eschenbach, 378 US App DC 33, 495 F3d 695, 702 [2007]. In Abigail the Court noted that the FDA and Congress had programs available for terminally ill patients, to “provide early access to promising experimental drugs when warranted.” The use of investigational drugs by patients not participating in clinical trials may be approved for the treatment of “serious or immediately life-threatening diseases if there exists no comparable or satisfactory alternative drug or other therapy.” The Court analyzed the FDA’s procedure for access to experimental drugs, but in citing Rutherford, stated that someone in desperate need of curative treatments can have their death “hastened by the use of a potentially toxic drug with no proven therapeutic benefit.” Abigail at 713. The FDA’s policy of limiting access is rationally related to a legitimate state interest in protecting patients from “potentially unsafe drugs with unknown therapeutic effects.” Abigail at 713. In Abigail, the Court ultimately held that terminally ill patients had no fundamental due process right to access experimental drugs.

Ivermectin and Off-Label Use

Upon the Court’s research, the FDA has only approved Ivermectin to treat people with intestinal strongyloidiasis and onchocerciasis, conditions that are caused by parasitic worms. (Why You Should Not Use Ivermectin to Treat or Prevent COVID-19, U.S. Food & Drug Administration,_www.fda.gov/consumers/consumer-updates/why-you-should-not-use-ivermectin-treat-or-prevent-covid-19 [last accessed Sept. 17, 2021]). In the instant matter, Ivermectin is being prescribed to treat the patient’s COVID-19 as an off-label use. Unapproved use of an FDA approved drug is often called “off-label” use, meaning that the drug is being used for a disease or condition that it is not approved to treat. (“Understanding Unapproved Use of Approved Drugs Off Label,” U.S. Food & Drug Administration, www.fda.gov/patients/learn-about-expanded-access-and-other-treatment-options/understanding-unapproved-use-approved-drugs-label [last accessed Sept. 20, 2021]). Doctors often have the ability to prescribe drugs to their patients for “off-label use” if they feel that it may benefit a patient. (“What to Know About Off-Label Drug Use,” Medical News Today, www.medicalnewstoday.com/articles/off-label-drug-use#reasons-for-use, [last accessed Sept. 20, 2021]).

Off-label prescriptions are an “integral part of contemporary medicine,” however, these prescriptions can harm patients when “an off-label use lacks a solid evidentiary basis.” (“Off-Label Prescribing: A Call for Heightened Professional and Government Oversight,” J Law Med Ethics, www.ncbi.nlm.nih.gov/pmc/articles/PMC2836889/ [last accessed Sept. 20, 2021]). Responsible off-label prescribing requires physicians to “(1) evaluate whether there is sufficient evidence to justify an off-label use; (2) press for additional information and research when adequate evidence is lacking; and (3) inform patients about the uncertainties and potential costs associated with off-label prescribing.” Id. When uncertainty exists about the benefits of off-label applications, “patients are at risk of receiving harmful or ineffective treatments.” Id. The FDA has not “authorized or approved Ivermectin for use in preventing or treating COVID-19.” (Why You Should Not Use Ivermectin to Treat or Prevent COVID-19, U.S. Food & Drug Administration,_www.fda.gov/consumers/consumer-updates/why-you-should-not-use-ivermectin-treat-or-prevent-covid-19 [last accessed Sept. 17, 2021]). The alleged successes of Ivermectin are merely anecdotal at this time, however, the FDA confirms that “currently available data do not show Ivermectin is effective…” Id.

The Court finds the affidavits submitted on behalf of SIUH/Northwell by its employees, Dr. Neville Mobarakai and Dr. Dany Elsayegh, to be persuasive and notes that the patient is not suffering from an active COVID-19 infection, but rather complications from COVID-19, specifically bacterial pneumonia. Per these doctors, bacterial pneumonia is not treated by Ivermectin. In fact, both doctors claim that since Ivermectin is not clinically warranted for the patient’s current condition, “it would be unethical to provide such treatment to Donald Anthony Cammarano.” See Defendants’ Exhibits A and B. Further, this Court understands that deviation from accepted medical practices is an essential element of medical malpractice and per the FDA, there is no current evidence to justify off-label use of Ivermectin at this time. See Poter v. Adams, 104 AD3d 925, 926, 961 NYS2d 556, 558 [2d Dept. 2013] and (Why You Should Not Use Ivermectin to Treat or Prevent COVID-19, U.S. Food & Drug Administration,_www.fda.gov/consumers/consumer-updates/why-you-should-not-use-ivermectin-treat-or-prevent-covid-19 [last accessed Sept. 17, 2021]). As such, this Court will not require any doctor to be placed in a potentially unethical position wherein they could be committing medical malpractice by administering a medication for an unapproved, alleged off-label purpose.

Right to Try and Expanded Access

Though not expressly argued by the parties in this matter, the Court has considered options available to the patient through the Right to Try Act and the FDA’s expanded use program. The “Right to Try Act” was signed into law on May 30, 2018. The law permits patients who have been diagnosed with life-threatening diseases or conditions who have tried approved treatment options and are not able to participate in a clinical trial to access unapproved medical treatments. The FDA allows patients to have access to “eligible investigational drugs” if they meet certain criteria, such as, being diagnosed with a life-threatening disease, they’ve exhausted approved treatment options, and they provide written informed consent. (“Right to Try,” US. Food and Drug Administration, www.fda.gov/patients/learn-about-expanded-access-and-other-treatment-options/right-try [last accessed Sept. 20, 2021]).

In addition to “Right to Try,” patients may have access to expanded use, also known as compassionate use, of experimental or unapproved medical products outside of clinical trials. This is available when there is “no comparable or satisfactory therapy options” available. Expanded use may be available to a patient when a patient has a serious, life threatening disease or condition; there is no comparable drug or therapy; a clinical trial is not possible; the benefit justifies the potential risks of treatment; and providing the product will not interfere with investigational trials. (“Expanded Access,” US. Food and Drug Administration, www.fda.gov/news-events/public-health-focus/expanded-access [last accessed Sept. 20, 2021]).

After careful consideration, this Court finds that these programs to try medications are not applicable in this case. Per the affidavits provided by SIUH/Northwell, the patient is currently diagnosed with bacterial pneumonia and does not have an active COVID-19 infection. There was no evidence submitted that the patient attempted to obtain drugs undergoing clinical trials, pursuant to the Right to Try Act or under the FDA’s expanded use program. In any event, as the Courts have previously found that there is not a fundamental right for a patient to use new or experimental drugs, this Court will not interfere with the regulations of the FDA and order the administration of Ivermectin to the patient over the objection of the Defendants.

CONCLUSION

This Court is not commenting on whether Ivermectin will ever be an effective or approved treatment for COVID-19, nor will it medicate from the bench. This Court will not order a hospital to provide a patient with an unproven, unapproved treatment that could potentially have detrimental effects on him due to his fragile health. The Plaintiffs have failed to present expert support for the off-label use of Ivermectin to treat the patient’s current condition. Based upon the foregoing, the Plaintiffs’ request for a declaratory judgment and order to compel Staten Island University Hospital- Northwell Health administer Ivermectin is denied."

WHEN SANCTIONS ARE IMPOSED IN DISCOVERY

According to Merriam-Webster: Definition of contumacious: stubbornly disobedient : REBELLIOUS

Ambroise v Palmana Realty Corp., 2021 NY Slip Op 05018, Decided on September 22, 2021. Appellate Division, Second Department:

"Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading, where a party "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126[3]). "The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court's discretion" (Crupi v Rashid, 157 AD3d 858, 859). "Although public policy strongly favors that actions be resolved on the merits when possible, a court may resort to the drastic remedies of striking a pleading or precluding evidence upon a clear showing that a party's failure to comply with a disclosure order was the result of willful and contumacious conduct" (Nationstar Mtge., LLC v Jackson, 192 AD3d 813, 815). "A court can infer that a party is acting willfully and contumaciously through the party's repeated failure to adequately respond to discovery demands or to comply with discovery orders" (Cobo v Pennwalt Corp. Stokes Div., 185 AD3d 650, 652).

Here, the Supreme Court improvidently exercised its discretion in, sua sponte, directing dismissal of the complaint pursuant to CPLR 3126, since there was no showing that the plaintiff willfully and contumaciously failed to adequately respond to discovery demands or to comply with court orders for disclosure (see Ramirez v Reyes, 171 AD3d 1114, 1115-1116). On July 3, 2019, less than a month after the defendant moved, inter alia, to compel responses to certain discovery demands, the court directed the defendant to settle an order, among other things, striking the complaint. However, no prior order had been issued directing the plaintiff to comply with discovery demands. Moreover, shortly after the court directed the defendant to settle the order, the plaintiff produced documents on July 19, 2019, as requested, with regard to his financial ability to close, including "all the responsive documents in [the plaintiff's] custody and control" which he could locate. Under these circumstances, the record is insufficient to establish that the plaintiff engaged in willful and contumacious conduct warranting the drastic remedy of dismissal of the complaint.

In light of our determination, we need not reach the plaintiff's remaining contentions.

Accordingly, the Supreme Court erred by, sua sponte, directing dismissal of the complaint pursuant to CPLR 3126, and we remit the matter to the Supreme Court, Kings County, to set an appropriate schedule for the completion of discovery."

NEW RULES COMING ON ERAP TO ASSIST LANDLORDS

As noted on Office of Temporary and Disability Assistance website: "Recent legislation created another new program to provide rental assistance for landlords whose tenants have left their rental property or who are unwilling to apply for ERAP. Additional details regarding this program, including an opening date and documentation requirements, will be posted on the OTDA website as they become available."

See https://otda.ny.gov/programs/emergency-rental-assistance/

MORTGAGE FORECLOSURE AND CPLR 3215(g)(1)

 

CPLR 3215(g)(1) provides: "Except as otherwise provided with respect to specific actions, whenever application is made to the court or to the clerk, any defendant who has appeared is entitled to at least five days' notice of the time and place of the application, and if more than one year has elapsed since the default any defendant who has not appeared is entitled to the same notice unless the court orders otherwise.  The court may dispense with the requirement of notice when a defendant who has appeared has failed to proceed to trial of an action reached and called for trial."

21st Mtge. Corp. v Raghu, 2021 NY Slip Op 05016, Decided on September 22, 2021, Appellate Division, Second Department:

"This action to foreclose a mortgage was commenced in 2007 against, among others, Anil Raghu (hereinafter the borrower) and Mortgage Electronic Registration Systems, Inc., as nominee for Fremont Investment and Loan (hereinafter Fremont). The amended complaint alleged that in 2006, the borrower had executed a note in the amount of $580,000, which was secured by a mortgage on real property located in Queens. The amended complaint further alleged that the borrower defaulted under the terms of the note and mortgage, and asserted a cause of action to foreclose the mortgage. The amended complaint alleged that Fremont had, or claimed to have, an interest in the subject property, or a lien upon it.

As relevant here, Fremont failed to interpose an answer or otherwise appear in the action. An order was entered on July 11, 2007, inter alia, appointing a referee to compute the amount due to the plaintiff. Sometime in 2016, after adding additional defendants to the action, and serving a supplemental summons and amended complaint, the plaintiff moved, among other things, for leave to enter a default judgment and for an order of reference. The plaintiff's motion was granted in an order entered July 19, 2016. In an order entered April 27, 2017, the Supreme Court, inter alia, appointed a referee to ascertain and compute the amount due to the plaintiff.

The referee issued a report dated June 6, 2017. By notice of motion dated June 14, 2017, the plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale. The Supreme Court granted the plaintiff's motion, and an order and judgment of foreclosure and sale was entered on May 22, 2018. Based upon, among other things, the referee's report, the court determined that the sum of $1,191,777.18 was due as of June 1, 2017, and directed the sale of the subject property.

By order to show cause signed on September 28, 2018, Courchevel 1850, LLC (hereinafter Courchevel), as successor in interest to Fremont, moved pursuant to CPLR 5015 to vacate the order and judgment of foreclosure and sale, and for other relief. As relevant here, Courchevel asserted that the plaintiff failed to comply with the notice requirements of CPLR 3215(g)(1) when it moved to confirm the referee's report and for a judgment of foreclosure and sale, and that this failure deprived the Supreme Court of jurisdiction to enter the order and judgment of foreclosure and sale.

The plaintiff opposed Courchevel's motion. The plaintiff argued that Courchevel's predecessor in interest (Fremont) had been served with the order entered April 27, 2017, granting the plaintiff leave to enter the default judgment against Fremont. The plaintiff asserted that Fremont had also been served with the notice of sale regarding the auction sale of the property, which was scheduled after the order and judgment of foreclosure and sale had been entered.

In an order entered May 23, 2019, the Supreme Court denied Courchevel's motion, among other things, to vacate the order and judgment of foreclosure and sale. As relevant here, the court concluded that the notice required by CPLR 3215(g)(1) was not applicable to the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale. The court determined that, under the statute, Fremont was only entitled to receive notice of the plaintiff's application for leave to enter a default judgment and for the appointment of a referee, and that Fremont was not entitled to notice of the later application to, inter alia, confirm the referee's report. The court concluded that Courchevel had not demonstrated sufficient grounds to warrant vacatur of the order and judgment of foreclosure and sale pursuant to CPLR 5015. Accordingly, the court denied Courchevel's motion, among other things, to vacate the order and judgment of foreclosure and sale.

Courchevel appeals from the order entered May 23, 2019. On appeal, Courchevel contends, inter alia, that the Supreme Court should have granted that branch of its motion which was to vacate the order and judgment of foreclosure and sale. Courchevel asserts that pursuant to CPLR 3215(g)(1), Fremont was entitled to notice of the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, and that the court's determination to the contrary was error as a matter of law.

The plaintiff contends that the Supreme Court's determination was correct, and that "[o]nce [Fremont] was properly served with a motion for default in accordance with the requirements of CPLR 3215(g)(1), there was no necessity to serve Courchevel's predecessor with any further motions or pleadings." The plaintiff argues that CPLR 3215(g)(1) "only applies to notice regarding a defendant's [initial] default."

For the reasons that follow, we affirm the order entered May 23, 2019. CPLR 3215(g)(1) did not require the plaintiff to give Fremont notice of its motion to confirm the referee's report and for a judgment of foreclosure and sale. Since Courchevel failed to demonstrate sufficient grounds for vacating the order and judgment of foreclosure and sale, the Supreme Court properly denied its motion, inter alia, pursuant to CPLR 5015(a) to vacate the order and judgment of foreclosure and sale.

"After having been served with process, the defendant who wants to avoid a default must respond in a proper and timely manner" (Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d 1006, 1008 [internal quotation marks omitted]; see generally Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C320:1). A defendant must appear within 20 days of service of a summons, or within 30 days of service where service was made by delivering the summons "to an official of the state authorized to receive service in his [or her] behalf" (CPLR 320[a]; see Duncan v Emerald Expositions, LLC, 186 AD3d 1321, 1323).

The CPLR sets forth three ways that a defendant may appear in the action: "[t]he defendant appears [1] by serving an answer or [2] [by serving] a notice of appearance, or [3] by making a motion which has the effect of extending the time to answer" (CPLR 320[a]; see U.S. Bank [*2]N.A. v Gilchrist, 172 AD3d 1425, 1426). "A defendant's failure to respond to a summons and complaint [in one of the three ways specified in CPLR 320(a)] 'amounts to what CPLR 3215 . . . calls a failure to appear'" (Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d at 1008, quoting Siegel & Connors, NY Prac § 293 [6th ed]; see U.S. Bank N.A. v Gilchrist, 172 AD3d at 1427).

The first way for a defendant to appear within the meaning of the statute is by serving an answer (see CPLR 320[a]). An answer "is [the] defendant's pleading in response to a complaint" (Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d at 1008 [internal quotation marks omitted]; see CPLR 3011; 3018). The failure to interpose a timely answer constitutes a default in pleading, an independent default basis that is analytically "distinct from a failure to appear" (Siegel & Connors, NY Prac § 293 [6th ed]). "A defendant who has defaulted in answering admits all traversable allegations in the complaint, including the basic allegation of liability" (Glenwood Mason Supply Co., Inc. v Frantellizzi, 138 AD3d 925, 926; see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730; Cole-Hatchard v Eggers, 132 AD3d 718, 720).

A notice of motion pursuant to CPLR 3211(a) is the second way that a defendant may appear in the action (see CPLR 320[a]). Service of a notice of motion to dismiss a complaint pursuant to CPLR 3211(a) extends a defendant's time to answer the complaint (see id. § 3211[f]). Such a motion must be made "before service of the responsive pleading is required" (id. § 3211[e]), or it is untimely (see Bennett v Hucke, 64 AD3d 529, 530).

Service of "a notice of appearance" is the third way in which a defendant may appear in an action pursuant to CPLR 320(a). The recursive nature of the terminology used in CPLR 320(a) provides an obvious opportunity for confusion. However, in this context, a notice of appearance is "a simple document that notifies the plaintiff that defendant is appearing in the action" (Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d at 1008 [internal quotation marks omitted]; see Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C320:1).

A notice of appearance "is the response generally reserved for the situation in which the plaintiff's process consisted of a summons with notice as authorized by CPLR 305(b)" (Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d at 1008 [internal quotation marks omitted]; see Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C320:1). Although a defendant "appears" within the meaning of CPLR 320(a) by merely serving a notice of appearance, service of a notice of appearance does not "absolve a defendant from complying with the time restrictions imposed by CPLR 320(a) which govern the service of an answer or the making of a motion pursuant to CPLR 3211" (Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d at 1009-1010).

Accordingly, a defendant who serves a timely notice of appearance may nevertheless default in answering (see Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d at 1009). More generally, "[a] defendant who has duly appeared can be guilty of a default at [any] later stage of the action, such as by failing to show up at the trial at the scheduled time" (Siegel & Connors, NY Prac § 293 [6th ed]; see CPLR 3215[a]; see also Kraus Bros. v Hoffman & Co., 99 AD2d 401, 402; see generally 7 Weinstein-Korn-Miller, NY Civ Prac: CPLR ¶ 3215.00).

Again, a defendant's failure to respond to a summons and complaint in one of the three ways enumerated in CPLR 320(a) "'amounts to what CPLR 3215 . . . calls a failure to appear'" (Deutsche Bank Natl. Trust Co. v Hall, 185 AD3d at 1008, quoting Siegel & Connors, NY Prac § 293 [6th ed]; see U.S. Bank N.A. v Gilchrist, 172 AD3d at 1427). The consequences of a total failure to appear in an action are more significant than the consequences that stem from other species of default.

For example, with limited exception, CPLR 2103(e) requires that "[e]ach paper served on any party shall be served on every other party who has appeared" (emphasis added). Accordingly, that subdivision "requires service on a party who has appeared in the action whether or not [that party] has subsequently defaulted" (Kraus Bros. v Hoffman & Co., 99 AD2d at 402; see CPLR 2103[e]; Carr & Hobson [Ltd.] v Sterling, 114 NY 558, 563).

As relevant here, in the context of an action to foreclose a mortgage, a defendant that appears in the action is "entitled to service of all papers in the action, including the report of the Referee, the judgment of foreclosure and sale and the notice of sale" (Pol-Tek Indus. v Panzarella, 227 AD2d 992, 992; see Deutsche Bank Natl. Trust Co. v Khan, 189 AD3d 1538, 1539; Wells Fargo Bank, N.A. v Ramphal, 172 AD3d 1280, 1281; see also Martine v Lowenstein, 68 NY 456, 458).

By contrast, a defendant that fails to appear in the action within the meaning of CPLR 320(a), without more, is "not entitled to service of additional papers in the action" (NYCTL-1 Trust v Liberty Bay Realty Corp., 21 AD3d 1013, 1014; see CPLR 2103[e]), including, as relevant here, "notice of any subsequent judgment or sale" (Nationstar Mtge., LLC v Azcona, 186 AD3d 614, 616; see Alaska Seaboard Partners Ltd. Partnership v Grant, 20 AD3d 436, 437; Olympia Mtge. Corp. v Ramirez, 9 AD3d 401, 401; Bank of N.Y. v Agenor, 305 AD2d 438, 438; Colombi v RWL Constr. Corp., 278 AD2d 191, 191; Polish Natl. Alliance of Brooklyn v White Eagle Hall Co., 98 AD2d 400, 403).

CPLR 3215(a) authorizes a party to make an application for a default judgment "[w]hen a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed" (see Duncan v Emerald Expositions, LLC, 186 AD3d at 1323; see generally Siegel & Connors, NY Prac § 293 [6th ed]; 7 Weinstein-Korn-Miller, NY Civ Prac: CPLR ¶ 3215.02).

CPLR 3215(a) sets forth two separate procedures for securing a default judgment: (1) entry by the clerk, and (2) entry by a judge (see generally Siegel & Connors, NY Prac § 293 [6th ed]; 7 Weinstein-Korn-Miller, NY Civ Prac: CPLR ¶ 3215.00). "If the plaintiff's claim is for a sum certain or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default" (CPLR 3215[a]). "The term 'sum certain' in this context contemplates a situation in which, once liability has been established, there can be no dispute as to the amount due, as in actions on money judgments and negotiable instruments" (Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572). "Obviously, the clerk then functions in a purely ministerial capacity" (id. at 572).

"Where the case is not one in which the clerk can enter judgment, the plaintiff shall apply to the court for judgment" (CPLR 3215[a]). With limited exceptions, "[o]n any [such] application for judgment by default, the applicant shall file proof of service of the summons and the complaint . . . and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party" (id. § 3215[f]; see L & Z Masonry Corp. v Mose, 167 AD3d 728, 729; Liberty County Mut. v Avenue I Med., P.C., 129 AD3d 783, 784-785; see also CPLR 3101[a][1] [defining the term "party" to include any "member, agent, or employee of a party"]).

Upon such an application, "[t]he court, with or without a jury, may make an assessment or take an account or proof, or may direct a reference" (CPLR 3215[b]). Accordingly, the statute grants the court some measure of discretion, permitting a court to conduct its inquiry into the damages claimed by the plaintiff in an application for a default judgment with an assessment (popularly called an "inquest"), with or without a jury, or with the appointment of a referee (see generally Siegel & Connors, NY Prac § 293 [6th ed]; cf. CPLR 4212).

The nature of the proceedings selected by the court may turn on whether the defaulted defendant participates in the determination of damages (see generally 7 Weinstein-Korn-Miller, NY Civ Prac: CPLR ¶ 3215.26). For "an allegation of damage is not a traversable allegation and, therefore, a defaulting defendant does not admit the plaintiff's conclusion of damages but may, at an inquest, offer proof in mitigation of damages if it involves 'circumstances intrinsic to the transactions at issue' in the plaintiff's complaint" (Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880, quoting Rokina Opt. Co. v Camera King, 63 NY2d at 731; see McClelland v Climax Hosiery Mills, 252 NY 347, 351; see generally 7 Weinstein-Korn-Miller, NY Civ Prac: CPLR ¶¶ 3215.00, 3215.26).

CPLR 3215 requires a party making an application to the court for a default judgment [*3]to provide notice of the application to any defendant that has appeared in the action: "whenever application is made to the court or to the clerk, any defendant who has appeared is entitled to at least five days' notice of the time and place of the application" (CPLR 3215[g][1]). The statute goes on to state that "if more than one year has elapsed since the default any defendant who has not appeared is entitled to the same notice unless the court orders otherwise" (id.; see 7 Weinstein-Korn-Miller, NY Civ Prac: CPLR ¶ 3215.32).

Regardless of whether a defaulting defendant is entitled to the notice specified in CPLR 3215(g)(1), CPLR 3215(g)(2) provides a defendant who has failed to appear in an action with an independent basis to participate in any reference or assessment ordered on the application for the default judgment (see generally 7 Weinstein-Korn-Miller, NY Civ Prac: CPLR ¶ 3215.38). That subdivision states that "[w]here an application for judgment must be made to the court, the defendant who has failed to appear may serve on the plaintiff at any time before the motion for judgment is heard a written demand for notice of any reference or assessment by a jury which may be granted on the motion" (CPLR 3215[g][2]). "Such a demand does not constitute an appearance in the action" (id.). "Thereupon at least five days' notice of the time and place of the reference or assessment by a jury shall be given to the defendant by service on the person whose name is subscribed to the demand, in the manner prescribed for service of papers generally" (id.).

Finally, CPLR 3215(g)(3) sets forth circumstances under which "additional notice" is required, and CPLR 3215(g)(4) sets forth circumstances when "additional service" is required. By the plain language of the statute, however, the additional requirements prescribed in subdivisions (3) and (4) of CPLR 3215(g) are not applicable to this action to foreclose a mortgage (see id. § 3215[g][3][iii]; [4][iii]; NYCTL-1 Trust v Liberty Bay Realty Corp., 21 AD3d at 1014; Alaska Seaboard Partners Ltd. Partnership v Grant, 20 AD3d at 437 [applying CPLR 3215(g)(3)(iii)]; FGB Realty Advisors v Norm-Rick Realty Corp., 227 AD2d 439, 440; see also Nationstar Mtge., LLC v Azcona, 186 AD3d at 616 [applying Alaska Seaboard Partners Ltd. Partnership v Grant, 20 AD3d 436]).

In addition to the notice required to be given in connection with an application for a default judgment, CPLR 3215 also sets forth the procedure to be followed by a court in reviewing the issue of damages on such an application (see id. § 3215[b]; see also 22 NYCRR 202.46). As relevant here, "[w]hen a reference is directed, the court may direct that the report be returned to it for further action or, except where otherwise prescribed by law, that judgment be entered by the clerk in accordance with the report without any further application" (CPLR 3215[b]; see generally 22 NYCRR 202.43[c]).

These provisions of CPLR 3215 fit within the general provisions in the CPLR which distinguish an order of reference directing a referee to "hear and determine" (Seabring, LLC v Elegance Rest. Furniture Corp., 188 AD3d 744, 746; see generally Mark C. Dillon, 2019 Supp Practice Commentaries, McKinney's Cons Laws of NY, CPLR 4301), from an order of reference directing a referee to "hear and report" (Pulver v Pulver, ___ AD3d ___, ___, 2021 NY Slip Op 04727, *1 [2d Dept]; see generally Mark C. Dillon, 2019 Supp Practice Commentaries, McKinney's Cons Laws of NY, CPLR 4201). As relevant here, the CPLR provides that "[u]pon the motion of any party or on [its] own initiative, the [court] required to decide the issue may confirm or reject, in whole or in part . . . the report of a referee to report" (CPLR 4403; see 22 NYCRR 202.44[a], [b]).

Finally, CPLR 3215 specifies that "[e]xcept in a matrimonial action, no finding of fact in writing shall be necessary to the entry of a judgment on default" (see id. § 3215[b]). However, "[t]he judgment shall not exceed in amount or differ in type from that demanded in the complaint or stated in the notice served pursuant to [CPLR 305(b)]" (id. § 3215[b]).

In this case, Courchevel moved, inter alia, pursuant to CPLR 5015(a) to vacate the order and judgment of foreclosure and sale. Courchevel contended, among other things, that the plaintiff failed to comply with notice requirements of CPLR 3215(g)(1) when it moved to confirm the referee's report and for a judgment of foreclosure and sale. On appeal, Courchevel contends, inter alia, that the Supreme Court erred when it concluded that Fremont was only entitled to receive [*4]notice of the plaintiff's application for leave to enter a default judgment and for the appointment of a referee, and that Fremont was not entitled to notice of the plaintiff's subsequent application to confirm the referee's report and for a judgment of foreclosure and sale. Courchevel contends that the failure to comply with the notice provisions of CPLR 3215(g)(1) deprived the court of jurisdiction to enter the order and judgment of foreclosure and sale, and warrant vacatur pursuant to CPLR 5015(a).

CPLR 5015(a) authorizes a court to relieve a party from an order or judgment, on motion, based on the existence of specified grounds including, among other things, excusable default (see id. § 5015[a][1]); newly discovered evidence (see id. § 5015[a][2]); fraud, misrepresentation, or other misconduct of an adverse party (see id. § 5015[a][3]); lack of jurisdiction (see id. § 5015[a][4]); or reversal, modification, or vacatur of a prior judgment or order upon which it is based (see id. § 5015[a][5]; see U.S. Bank N.A. v Mitchell, 191 AD3d 731).

"When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4) and also seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), a court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1)" (Wells Fargo Bank, NA v Besemer, 131 AD3d 1047, 1047; see Deutsche Bank Natl. Trust Co. v Hossain, 187 AD3d 986, 987; Ross v Sunrise Home Improvement, 186 AD3d 633, 633).

As a general matter, "improper service of a motion provides a complete excuse for default on [that] motion" (Paulus v Christopher Vacirca, Inc., 128 AD3d 116, 124-125 [Opinion by Cohen, J.]; see Golden v Romanowski, 128 AD3d 1009, 1010; Crown Waterproofing, Inc. v Tadco Constr. Corp., 99 AD3d 964, 965; Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d 747, 748). Accordingly, the failure to serve a party who has appeared in the action with notice of a motion requires vacatur of any subsequent order that grants any of the relief that was sought in that un-noticed motion (see CPLR 5015[a][1]; Wells Fargo Bank, N.A. v Whitelock, 154 AD3d 906, 907; Crown Waterproofing, Inc. v Tadco Constr. Corp., 99 AD3d at 964-965; Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d at 748).

"This Court has also held that the failure to provide a defendant with proper notice of a motion renders the resulting order and judgment entered upon that order nullities, warranting vacatur pursuant to CPLR 5015(a)(4)" (Paulus v Christopher Vacirca, Inc., 128 AD3d at 125). This Court explained that "[t]he failure to provide proper notice of a motion can readily be viewed as a fundamental [jurisdictional] defect because it deprives the opposing party of a fair opportunity to oppose the motion" (id.; cf. Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d 200, 203-204; Lacks v Lacks, 41 NY2d 71, 75).

As previously observed, CPLR 3215(g)(1) requires a party making a default application to give notice to certain defaulted defendants. Pursuant to that subdivision, "where [a] defendant appears but fails to answer timely, [that defendant] is entitled to five days' notice of the default application" (Kraus Bros. v Hoffman & Co., 99 AD2d at 402; see CPLR 3215[g][1]). Furthermore, where "more than one year elapsed since the defendant's default" (Wilmington Sav. Fund Socy., FSB v Hakam, 170 AD3d 924, 925), the defendant is "entitled to notice of the motion for an order of reference under CPLR 3215(g)(1)" (id. at 925; see CPLR 3215[g][1]; Citimortgage, Inc. v Reese, 162 AD3d 847, 848; Astron Steel Fabrications v Kent Restoration, 283 AD2d 381, 381-382).

This Court has stated that "[t]he plaintiff's failure to give the defendant notice of [a] motion as required under CPLR 3215(g)(1) deprive[s] the Supreme Court of jurisdiction to entertain the motion, and renders [any] order of reference and the ensuing judgment of foreclosure and sale void" (Wilmington Sav. Fund Socy., FSB v Hakam, 170 AD3d at 925; see Amaral v Smithtown News, Inc., 172 AD3d 1287, 1289; Citimortgage, Inc. v Reese, 162 AD3d at 848; Deutsche Bank Natl. Trust Co. v Gavrielova, 130 AD3d 674, 675-676; Paulus v Christopher Vacirca, Inc., 128 AD3d at 126 [Opinion by Cohen, J.]). This Court has explained that the failure to provide notice of a motion for leave to enter a default judgment as required by CPLR 3215(g)(1) deprives a defaulted defendant [*5]of the "opportunity to challenge the amount of damages sought by the plaintiffs" (Paulus v Christopher Vacirca, Inc., 128 AD3d at 126; cf. Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166; Kraus Bros. v Hoffman & Co., 99 AD2d at 402).

In this case, it is undisputed that Fremont failed to appear in the action (see CPLR 320[a]), which was commenced against it in 2007. In 2016, the plaintiff made a motion, among other relief, for leave to enter a default judgment and for an order of reference (hereinafter the 2016 motion). The 2016 motion constituted an "appl[ication] to the court for judgment" within the meaning of the statute (id. § 3215[a]), and it is undisputed that the application was made "more than one year . . . since [Fremont's] default" in failing to appear in the action (id. § 3215[g][1]). Accordingly, without more, the plaintiff was required to provide Fremont with notice "of the time and place of the application" for a default judgment and for an order of reference (id. § 3215[g][1]; see Amaral v Smithtown News, Inc., 172 AD3d at 1289; Wilmington Sav. Fund Socy., FSB v Hakam, 170 AD3d at 925; Citimortgage, Inc. v Reese, 162 AD3d at 848; cf. Kraus Bros. v Hoffman & Co., 99 AD2d at 402).

However, as the Supreme Court correctly observed, Courchevel does not contend that the plaintiff failed to provide Fremont with notice of the 2016 motion (accord Amaral v Smithtown News, Inc., 172 AD3d at 1289). As such, it cannot be said that Courchevel was "deprived . . . [of] an opportunity to challenge the amount of damages sought by the plaintiff[ ]" (Paulus v Christopher Vacirca, Inc., 128 AD3d at 125; see Amaral v Smithtown News, Inc., 172 AD3d at 1289; cf. Wilmington Sav. Fund Socy., FSB v Hakam, 170 AD3d at 925; Citimortgage, Inc. v Reese, 162 AD3d at 848; Astron Steel Fabrications v Kent Restoration, 283 AD2d at 382).

The plaintiff's 2016 motion was granted, unopposed, in an order entered July 19, 2016. In an order entered April 27, 2017, the Supreme Court, inter alia, appointed a referee to ascertain and compute the amount due to the plaintiff. The referee issued a report dated June 6, 2017. By notice of motion dated June 14, 2017, the plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale (hereinafter the 2017 motion).

Although Courchevel's underlying motion papers and appellate brief both include typographical errors and otherwise lack clarity (e.g. incorrectly referring to a "2018" motion but citing the 2017 notice of motion), Courchevel appears to contend that the plaintiff's failure to provide Fremont with notice of the 2017 motion deprived the Supreme Court of jurisdiction to enter the order and judgment of foreclosure and sale. This contention is without merit.

CPLR 3215(g)(1) applies "whenever application is made to the court or to the clerk." By its plain language, it merely requires the plaintiff to provide "notice of the time and place of the application" for a default judgment (id.), which application must be held in a location authorized by CPLR 3215(e), and supported by, among other things, "proof of . . . the amount due" (id. § 3215[f]). As already indicated, the purpose of the notice is to provide a defaulted defendant with the "opportunity to challenge the amount of damages sought by the plaintiffs" (Paulus v Christopher Vacirca, Inc., 128 AD3d at 125). Contrary to Courchevel's contention, CPLR 3215(g)(1) does not, once triggered, require a plaintiff to provide five days' notice of every subsequent motion or application in the action (see Q.P.I. Rests. v Slevin, 93 AD2d 767, 768).

The 2017 motion was not an "application" for a default judgment within the meaning of CPLR 3215(b). Rather, the 2017 motion sought confirmation of the referee's report and entry of a judgment of foreclosure and sale, relief predicated on CPLR 4403 (see 22 NYCRR 202.44). Since the 2017 motion was not an "application" within the meaning of CPLR 3215(b), the notice specified in CPLR 3215(g)(1) was inapplicable to the 2017 motion, and notice of that motion was instead governed by the general notice provisions applicable to all motions (see CPLR 2103[e]). As already observed, that section merely requires that notice be served on "every other party who has appeared" (id. [emphasis added]). Since, at the time of the 2017 motion, Fremont still had not made any appearance in the action, it was not, without more, entitled to notice of that motion (see id.; Nationstar Mtge., LLC v Azcona, 186 AD3d at 616; NYCTL-1 Trust v Liberty Bay Realty Corp., 21 AD3d at 1014; Alaska Seaboard Partners Ltd. Partnership v Grant, 20 AD3d at 437; Olympia Mtge. [*6]Corp. v Ramirez, 9 AD3d at 401; Bank of N.Y. v Agenor, 305 AD2d at 438; Colombi v RWL Constr. Corp., 278 AD2d at 191; Polish Natl. Alliance of Brooklyn v White Eagle Hall Co., 98 AD2d at 403; see generally Martine v Lowenstein, 68 NY 456, 458).

We recognize that dicta from this Court may be read to indicate that CPLR 3215(g)(1) notice is applicable to a motion to confirm a referee's report and for a judgment of foreclosure and sale (see Citimortgage, Inc. v Reese, 162 AD3d at 847-848). We now clarify that CPLR 3215(g)(1) merely applies to an application for a default judgment which must be made to determine the amount of damages due pursuant to CPLR 3215(a) or (b). Once notice of such an application is provided, CPLR 3215(g)(1) is satisfied, and, without more, the general notice provisions of CPLR 2103(e) revert back into operation to govern any future requests for relief.

In sum, Courchevel failed to demonstrate that it was entitled to notice of the plaintiff's 2017 motion. Since Courchevel failed to establish sufficient grounds for vacating the order and judgment of foreclosure and sale, the Supreme Court properly denied its motion, inter alia, pursuant to CPLR 5015(a) to vacate the order and judgment of foreclosure and sale."

THE ACTUAL DECISION

If you read the recent story of the Long Island man who hasn’t paid his mortgage in 23 years, here is the recent decision that was in the news.

Diamond Ridge Partners LLC v. Hanspal, Date filed: 2021-09-14, Court: District Court, Nassau, Judge: Judge William Hohauser, Case Number: LT-6528/17:

DECISION ON MOTION

A. Procedural History and Statement of Facts In or about 1998, respondent Guramit Hanspal (“Hanspal”) purchased the property located at 2468 Kenmore Street, East Meadow, NY 11554 (“Kenmore Street”), and obtained a mortgage loan in order to finance this purchase. Following Hanspal’s almost simultaneous default on payment of the mortgage note, in May 2000 the original mortgagee obtained a judgment of foreclosure and sale in Nassau County Supreme Court. In 2011, and then again in 2018, the then-Petitioners obtained judgments of possession against Hanspal in February 2011 and in April 2018.1 During the interim period, apparently in an effort to forestall entry and/or enforcement of the judgments of possession. Hanspal filed at least six (6) bankruptcy petitions, all of which were dismissed. Undeterred by these dismissals or either judgment of eviction. Hanspal filed another bankruptcy petition in 2019. which too was dismissed. In addition. Hanspal has filed numerous other complaints against Petitioner (or its predecessors in interest), both in federal and state courts, each of which has been dismissed.2 During 2019, another purported Kenmore Street occupant (but not “tenant,” as the term is legally defined), a Boss Chawla (“Chawla”), filed multiple bankruptcy petitions during 2019 alone, also ostensibly to remain in possession of the Kenmore Street premises to which he had no discernabie legal right of possession. Like each of Hanspal’s petitions before, Chawla’s petitions were dismissed outright. Chawla has at no time provided any evidence that he is a lawful occupant of the Kenmore Street premises. Similarly, respondent Bhagwant Srichawla (“Srichawla”) also has not provided any evidence that he is a lawful occupant of Kenmore Street.3 Respondent Paur has not made any appearance in this matter, to any extent.

Following the dismissal of the myriad bankruptcy petitions, Hanspal filed a second motion to vacate the 2018 judgment of this Court which granted possession to Petitioner. As the Court then aptly opined:

Respondent has failed to justify his default for [not] appearing at trial…. Respondent had the opportunity to attend the trial and present his evidence…. Respondent lost the foregoing opportunity by defaulting at the trial. This history of this case going on for approximately 20 years must come to an end…”

Apparently, Hanspal did not appreciate the irony inherent in his failure to appear on his motion to vacate a default for his non-appearance. Nevertheless, in November 2020, Hanspal filed another Order to Show Cause for rehearing; this too was denied, again for Hanspal’s failure to appear

As this matter continued winding its serpentine meandering through the state and federal court systems, in April 2021 respondents Hanspal and Srichawla submitted “Tenant’s Declaration of Hardship During the COVID-19 Pandemic” (“Covid Declaration”), filed pursuant to the COVID 19-Emergency Eviction and Foreclosure Prevention Act [L 2020, ch 382] (“CEEFPA”).. On each such Covid Declaration, Hanspal and Srichawla checked only Box “A,” indicating that they sustained only financial hardship during the pandemic period. Further, neither Hanspal nor Srichawla noted the location at which they resided pursuant to any defined financial obligation. This case comes before this Court upon Diamond Ridge’s motion to invalidate the Covid Declarations filed by Hanspal and Srichawla.4

This matter was presented for oral argument on August 5, 2021, at which time Diamond Ridge presented testimony from Mr. Max Sold, a former representative, who testified, among other assertions, that none of the individual respondents had a leasehold / ownership interest, or had made payments of any kind, including for use & occupancy, since Diamond Ridge acceded to ownership of Kenmore Street.5 Although counsel for respondents appeared, Hanspal failed to do so, and no factual evidence was submitted in rebuttal for the Court’s consideration.6

B Legal Analysis

In addressing the issue of whether the instant Respondents qualify as “tenants” or “lawful occupants,” a “tenant” may be defined as “one who holds or possesses [premises] by any kind of right or title…. [or] one who has the temporary use and occupation of real property owned by another person (called the landlord’), the duration and terms of [the] tenancy being usually fixed by an instrument called a “lease” Blacks Law Dictionary, 11th Ed. Courts defining the scope of “tenant” as contemplated by CEEFPA generally have been “intentionally expansive,” Tzifil Realty Corp. v. Mazrekaj, 2021 NY Misc. LEXIS 3438 (Kings Co. 2021). As a result, courts have “qualified” an individual asserting a colorable succession claim (The Realty Enter LLC v. Williams. 2021 NYLJ LEXIS 360 (Civ.Ct. Queens Co. 2021, Index No 53712/18), a terminated superintendent (Mazrekaj. supra), an occupant liable for paying use and occupancy (Silverstein v. Huebner. 2021 NY Misc. LEXIS 4268 (Civ. Ct. Kings Co 2021)).

In this regard, “lawful occupant” has been described as a “component” of the definition of “tenant.” CIT Bank, N.A. v. Schiffman, 36 NY3d 550 (2021). In ascertaining the legislative intent, Court turns to the prefatory paragraphs of CEEFPA, which include: “It is, therefore, the intent of this legislation to avoid as many evictions as possible for people experiencing a financial hardship during the COVID-19 pandemic…. [a] limited, temporary stay is necessary….” L.202, ch 381,§3. However, the specific stay provisions of CEEFPA limit its protections to “tenants,” as defined in the statute, but not to other classes of respondents in eviction proceedings Given the differing usages within the confines of CEEFPA, the Court must consider that the state legislature deliberately limited the umbra of CEEFPA-protected parties. See in re Warren A., 53 AD2d 400 (2d Dept 1976).

Furthermore, given the relative recency of CEEFPA, there is scant case law addressing the issue of whether the mere filing of Covid Declaration presents an absolute bar to a landlord from proceeding with an eviction. However, in a recent instructive decision from Suffolk County, that Court cited to the plain language of the Covid Declaration, to the effect that the COVID declaration would be effective if and only if it was filed by a “person responsible for paying rent…. or any other financial obligation under a lease or tenancy agreement” Accordingly, the protections of the Covid Declaration would inhere to tenants, but not to those who have no financial obligation, such as holdover tenants following a foreclosure, who at most could be considered occupants at “sufferance,” if not outright squatters. Bibow v. Bibow, LT-466-19 (Dist. Ct. Suffolk Co. July 28, 2021).

Continuing, the Bibow court was quite prescient in its analysis, opining further that by not providing the landlord with the ability to challenge the validity of the Covid Declaration, that portion of the enabling statute was violative of the landlord’s due process rights. Citing to Mullane v. Central Hanover Bank, 339 U.S. 306 (1950), the Court found that the landlord was denied the most basic opportunity to be heard. As the Bibow court reasoned, “it would be incomprehensible to find that the [state] legislature would vitiate the constitutional premise of due process to allow a party to obtain a unilateral stay of eviction without resort to a judicial forum to hear the landlord’s assertion of a ‘standing’ objection to the same.”7 See also Southern Acquisition Co. LLC v. TNT. LLC. 71 Misc. 3d 1002; 2021 Slip Op 21804 (Sup Ct. Ulster Co. 2021).8

Approximately two weeks following the Bibow decision, the United States Supreme Court issued its decision in Chrysafis v. Marks, 2021 U.S. LEXIS 2635 There, the Supreme Court specifically enjoined enforcement of only Part A of CEEFPA, finding that allowing a tenant to self-certify financial hardship and precluding a landlord from contesting that hardship, violates the “Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause,” citing In re Murchison, 349 U.S. 133, 136 (1955). Since the plain language of CEEFPA did not provide a landlord with such ability to challenge a tenant’s self-certification of financial hardship, the Supreme Court invalidated any COVID Declaration relying on Part A alone.9

C. Conclusion

Although the salutary import of CEEFPA and related statutes cannot be denied, the legislative history is clear that their enaction derived from a unique pandemic afflicting the state, commencing in late 2019. The various moratoria on eviction proceedings were designed to prevent undue hardships befalling on those harmed by the pandemic’s pervasive impact. Just as clearly, CEEFPA and related statutes were not promulgated to serve as a mechanism to delay further the administration of justice in cases, such as this, pending for decades.10

Here, none of the respondents qualifies for CEEFPA protection either as a “tenant” or, alternatively, as a “lawful occupant” owing any financial obligation to Petitioner, be it called rent or use and occupancy.11 If anything. Respondents behavior, which reflect no payments of any kind for decades, augurs strongly against any protection under the CEEFPA statute, as this could not be considered a temporary issue warranting interim protection.12

Accordingly, in order to forestall any further delays, the Court re-issues a judgment of possession and warrant of eviction, without stay.

Dated: September 14, 2021

Footnotes

1. In December 2018, this Court granted Diamond Ridge's application to be substituted as Petitioner in this matter.

2. On at least one such occasion, Hanspal has been the subject of a sanctions award as a result of what that Court termed frivolous conduct in prolonging this matter

3. The Court has been made aware that prior to argument on this motion, respondent Srichawla tragically was fatally injured in an automobile accident. As a result, the balance of this opinion primarily relates to respondent Hanspal.

4. Consistent with prior action (or more appropriately, inaction), respondent Paur has not filed a Covid Declaration.

5. Diamond Ridge obtained ownership of Kenmore Street after purchasing the underlying mortgage note in or about 2018, and was properly substituted on motion as Petitioner in this matter.

6. At argument counsel for Srichawia maintained that in light of Srichawla's demise, his estate must be joined as an indispensable party, citing to Watersview Owners, Inc., v. Pacimeo, 13 Misc 3d 130(A) (App. Term 2nd & 11th Dists 2006) and Ryerson Towers, Inc. v. Estate of Laura Brown, 160 Misc 2d 107 (App Term 2nd & 11th Dists. 1994) in support thereof However, each case is distinguishable from the instant situation. Ryerson involved Mitchell-Lama housing and a proceeding brought following the issuance of a certificate of eviction after the tenant had passed away in Watersview supra, the issue revolved around a proceeding against a cooperative lessee, who clearly possessed a tenancy interest. The Court finds neither case persuasive in this matter in which no tenancy has been proven.

7. In a parallel to the case at bar, the Bibow court noted that the person filing the Covid Declaration failed to appear at the hearing.

8. For a more fulsome description of the divination of legislative intent vis-a-vis occupants see Kalikow Family Partnership. L P. v. Doe, 2021 N.Y. Misc LEXIS 4310 (Civ Ct Queens Co 2021), in which the Court determined that the operative use of "tenant," rather than "respondent" within the relevant section of CEEFPA was quite significant and in that matter, held that licensees were not 'lawful occupants" and thus not tenants entitled to protection under the CEEFPA.

9. Of necessity, this decision does not implicate the protections afforded by the Tenant Safe Harbor Act ("THSA") 2020 N.Y. Laws Ch 127, §§1. 2{2)(a) The THSA affords protections to residential tenants facing eviction for non-payment of rent between March 2020 and the expiration or rescindment of Executive Orders pertaining to Covid-19 relating restrictions Those protections do not apply in holdover proceedings, such as that at bar.

10. With some dismay, the Court notes Srichawla's contention that Diamond Ridge "has (advanced) no real reason why it should be in front of all other landlords in evicting Respondents." in that Diamond Ridge and its predecessors have been waiting for more than two decades.

11. Not only does Hanspal possess no leasehold interest, but he has been subject to two adverse judgments of possession in this matter's long history.

12. While this motion was sub judice, the on September 1 2021 New York State Legislature passed an extension/modification to CEEFPA S50001 which seeks to remedy the deficiency found in CEEFPA with regards to the perceived inability of a landlord to challenge a tenants self-certification of financial hardship Given that this Court finds that the instant Respondents fail to qualify either as "tenants" or "lawful occupants" within the meaning of CEEFPA or its recent modification, the Counrt further concludes that the protections included in the most current iteration of the moratorium do not inure to respondents benefit."

NEIGHBOR DISPUTES - TREE ROOTS

5 years in the court system over a $5000 claim.

BENJAMINOV v. Zheng, 2021 NY Slip Op 50832 - NY: Appellate Term, 2nd Dept. 2021:

"In this small claims action, commenced in December of 2016, plaintiff seeks to recover the sum of $5,000, alleging that her concrete patio and fence were damaged by the roots of a tree located on defendant's property. At a nonjury trial, it was established that defendant had purchased his property in January of 2016 and has since removed the offending tree. The tree had already been in existence when plaintiff moved into her property over 20 years ago. Following the trial, the court awarded plaintiff the principal sum of $5,000.

In a small claims action, our review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (CCA 1807; see CCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]).

It appears that plaintiff seeks to recover based on trespass, nuisance and/or negligence causes of action. In order for plaintiff to prevail based on trespass, her burden extends beyond proof of an invasion of her right to exclusive possession of her land to proof that such invasion or intrusion is the result of an act either intentionally done or so negligently done that such intent will be presumed (see Zimmerman v Carmack, 292 AD2d 601 [2002]; see Turner v Coppola, 102 Misc 2d 1043 [Sup Ct, Nassau County 1980], affd 78 AD2d 781 [1980]). The trespass may not be based on a mere nonfeasance or an omission to perform a duty (see Loggia v Grobe, 128 Misc 2d 973 [Dist Ct, Suffolk County 1985]). Here, there was no proof of an intentional intrusion or that defendant was even aware of root intrusion prior to notification by plaintiff of the alleged damages.

To the extent that her action was based on nuisance, plaintiff similarly could not prevail. Even if plaintiff could establish property damage due to an interference with the use and enjoyment of her land amounting to an injury in relation to a right of ownership in that land (see Kavanagh v Barber, 131 NY 211 [1892]; Turner v Coppola, 102 Misc 2d 1043, affd 78 AD2d 781), the facts and circumstances required that plaintiff resort to self-help in the first instance (see Ferrara v Metz, 49 Misc 2d 531 [Sup Ct, Suffolk County 1966]). However, plaintiff never availed herself of her right to self-help by removing those roots on her own land (see Iny v Collum, 13 Misc 3d 75 [App Term, 2d Dept, 9th and 10th Jud Dists 2006, Lippman, J., dissenting]; Ahmed v Zoghby, 63 Misc 3d 866 [Middletown City Court, Orange County 2019]; Ferrara v Metz, 49 Misc 2d 531; Colombe v City of Niagara Falls, 162 Misc 594 [Sup Ct, Niagara County 1937]; but see Norwood v City of New York, 95 Misc 2d 55 [Civ Ct, NY County 1978]), and there was no evidence that self-help would have been unreasonable and unrealistic.

Similarly, plaintiff's case fails as an action based on negligence. There is no proof that the injury arose due to the fault or negligence of defendant in the removal of the tree (see Turner v Coppola, 102 Misc 2d 1043, affd 78 AD2d 781). Plaintiff presented no before and after photographs and there was no expert testimony with respect to the cause of any damage (see Loggia v Grobe, 128 Misc 2d 973).

In view of the foregoing, the judgment in favor of plaintiff failed to render substantial justice between the parties according to the rules and principles of substantive law (see CCA 1804, 1807).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the action.

ALIOTTA, P.J., and WESTON, J., concur.

TOUSSAINT, J., dissents and votes to affirm the judgment in the following memorandum:

"The standard of review on an appeal of a small claims judgment is whether substantial justice has . . . been done between the parties according to the rules and principles of substantive law ([CCA] 1807). The decision of a fact-finding court should not be disturbed on appeal unless it is obvious that its conclusions could not be reached under any fair interpretation of the evidence, particularly when the findings of fact rest in large measure on considerations relating to the credibility of witnesses. This principle applies with greater force to judgments rendered in small claims proceedings, given the limited scope of review" (Nunes v 1320 Heritage Place, LLC, 13 Misc 3d 144[A], 2006 NY Slip Op 52323[U], *1[App Term, 2d Dept, 9th & 10th Jud Dists 2006] [internal quotation marks omitted]; see Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]).

In this case, plaintiff claimed that, after moving in, defendant fixed his own property and not hers, and in the process, damaged her property even more. Plaintiff explained at trial that, when defendant took down a tree, both the fence and concrete porch were further damaged. Significantly, plaintiff produced two photographs taken after the tree was removed and submitted three separate estimates for the cost of repair. This case is therefore distinguishable from the case of Reed v Pilgrim (68 Misc 3d 126[A], 2020 NY Slip Op 50844[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]) wherein this court stated:

"Plaintiff failed to show that the portion of the chain link fence that defendants had removed was on plaintiff's property, and, in any event, plaintiff failed to establish any damages caused by defendants. Significantly, plaintiff failed to submit two estimates or itemized paid bills, which are deemed to be prima facie evidence of the reasonable value and necessity of any services and repairs."

Here, plaintiff provided prima facie evidence in the form of three estimates. There is no dispute that defendant's removal of the subject tree caused damage to plaintiff's fence and porch. Defense counsel was only concerned that the estimates included work not caused by the tree removal. That point of contention was resolved by the Civil Court's decision which specifically acknowledged "that claimant's estimates included work not caused by the repair and tree removal, thus the award to claimant does not include them."

The majority opinion focuses on the fact that the subject tree was present when plaintiff took residence in the adjacent home over 20 years ago; that plaintiff failed to resort to self-help or to procure an expert on root and tree propensity to show that self-help would have been unreasonable for a nuisance claim; and that plaintiff did not produce before and after photos for a negligence claim. Plaintiff presented photos of the damage after the tree removal and the court accordingly decided what award would effectively cover the damage caused by the tree removal distinguished from other damages within the estimates. Plaintiff is not seeking relief for the long-term damage caused by the roots but for the contemporaneous damage caused by the removal of the subject tree. Further, the majority states that there is no proof that defendant was aware of root intrusion of the tree, which was on both properties, prior to notification by plaintiff of the alleged damages. The majority ignores the fact that the cause of the damage is undisputed by defendant.

The credibility of plaintiff's statements and testimony is best observed and evaluated by the trial court. "Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility" (Reed v Pilgrim, 68 Misc 3d 126[A], 2020 NY Slip Op 50844[U], *1-2; see Vizzari v State of New York, 184 AD2d 564 [1992]). "Accordingly, a small claims judgment may not be overturned simply because the determination appealed from involves an arguable point on which an appellate court may differ; the deviation from substantive law must be readily apparent and the court's determination clearly erroneous" (Schiffman v Deluxe Caterers of Shelter Rock, 100 AD2d 846, 846-847 [1984]). The Civil Court decided that the appropriate remedy was an award of damages in the amount necessary to repair the damage caused by the removal of the subject tree, and not the long-term damage caused by its roots. It cannot be said that the determination of the Civil Court was so clearly erroneous or shocking as to fail to render substantial justice between the parties (see CCA 1807, 1804). The Civil Court did not improvidently exercise its discretion in awarding limited damages.

Accordingly, I respectfully dissent and vote to affirm the judgment."

ALTERNATIVE DISPUTE RESOLUTION SERVICES

 

CAN A FOSTER PARENT SEEK VISITATION AFTER FOSTER CARE TERMINATED?

While under certain circumstances a former foster parent may seek custody, the rights of the foster parent, as a third party non-parent, are limited with respect to visitation.

Matter of J.W. v. K.M • Date filed: 2021-09-02 • Court: Family Court, Franklin • Judge: Judge Robert Main Jr. • Case Number: V-00338-17/20C:

"The Court is asked, in this visitation modification proceeding, to determine the future relationship between a young boy and the woman who was his foster mother for a number of years and who had ongoing, judicially sanctioned, visitation with him following his return to his father and until recently. The child’s father seeks here to terminate the visitation previously judicially awarded, upon that father’s consent, thereby severing contact between the boy and the woman he regards as one of his three mothers. The law compels the Court to grant the father’s modification petition. Nonetheless, the Court finds that such a result is contrary to the child’s best interests, a determination this Court is precluded from reaching judicially. On August 21, 2015, St. Lawrence County Family Court entered an order, upon consent, which awarded the petitioning father the sole legal and physical custody of the child C.M. (born on XX/XX/2012). The mother, K.M., a respondent, was awarded supervised visitation. The former foster mother, K.B., also a respondent, was awarded visitation.

In the prior order, upon consent, St. Lawrence County Family Court accepted the parties’ stipulation that extraordinary circumstances existed to support visitation by the former foster mother, respondent K.B. No specific extraordinary circumstances were identified. By its specific language, the order provided that the stipulated determination of extraordinary circumstances, as to visitation, would not be applied to any subsequent custody petition.

On June 24, 2020, petitioner father, filed a petition in this Court to terminate respondent K.B.’s visitation. On July 10, 2020, respondent K.B. filed a petition in this Court seeking sole legal and physical custody of the child (K.B v. K.M. and J.W., Docket No. V-00342-20/20A).

Fact finding commenced on March 19, 2021, and continued on April 16, 2021, May 11, 2021, and July 27, 2021. A Lincoln hearing was held on July 30, 2021. During the course of the fact finding, respondent K.B. withdrew her petition for sole legal and physical custody of the child, leaving only the father’s petition to terminate the former foster mother’s visitation rights for this Court to determine.

The biological mother did not take an active role in the fact finding and does not take a position regarding the father’s petition. The St. Lawrence County Department of Social Services did not actively participate in the fact finding either and sought leave not to participate midway through the fact finding. Such leave was granted.

It is clear from the fact finding evidence that the father and the former foster mother have had an acrimonious relationship over the past several years. Both have filed child abuse reports against the other, most of which have been unfounded. None of them led the St. Lawrence County Department of Social Services to take any further action beyond indication. At fact finding, both the father and the former foster mother failed to prove any of their specific allegations, including the facts surrounding the single indicated report against the father’s live-in companion. The caseworker indicated a report for cuts and bruises on the child allegedly inflicted by the father’s companion, even though that caseworker admitted that she had not seen any cuts or bruises on the child.

The testimony established two general facts which are critical to this Court’s determination. First, the relationship between the father and the former foster mother is, unfortunately, irretrievably broken. Secondly, the child, who loves all three “mothers” in his life, is in the middle of a maelstrom of maternal identification. He appropriately refers to his biological mother as his mother, but he also refers to both the former foster mother and the father’s current companion by that same term. This is undoubtedly due to the fact that each, in some way or another, has acted as a mother to him. It will not unduly strain the confidentiality of the Lincoln hearing to indicate here that C.M. loves all three, values the role each plays in his life, does not fear any of them or see any of them as any type of a threat, wants to spend time with all of them, and will be devastated and adversely affected by this result.

The Court directed the parties to submit written closing arguments to assist it in rendering a decision following the close of all proof. The mother and the St. Lawrence County Department of Social Services did not submit a written closing.1

The former foster mother’s written closing argues that the father has failed to prove a change in circumstances and that his petition, therefore, should be dismissed.

The father argues that the best interests of the child are better served by removing the former foster mother from the child’s life. Although he does not use the words “change in circumstances” in his closing, it is clear from his factual assertions that the alleged changes in circumstances are the deteriorated relationship between himself and the former foster mother, the unfounded hotline report, the poorly supported report that was indicated, the poor behavior of the child, and his improving behavior since his visitation with his former foster mother was temporarily terminated at the commencement of this proceeding.

The attorney for the child agrees that the animosity between the adult parties constitutes a change in circumstances. However, the attorney for the child argues that the best interests of the child will be served by continued visitation with the former foster mother due to the affection that the child feels for her after his long association with her and with her family. In order to support continued visitation by a nonparent, the attorney for the child argues that extraordinary circumstances have been established. The extraordinary circumstances argued are the fact that the former foster mother had court ordered visitation from 2015 until this Court temporarily suspended that visitation in 2020, upon the filing of the father’s petition.

Testimony during fact-finding, and evidence presented at the Lincoln hearing, have convinced the Court that the best interests of the child would be best served by allowing respondent K.B. to have continued visitation with the child.

However, the Court lacks the authority to mandate the father to provide such visitation. The father has met his threshold requirement of proving that there has been a change in circumstances because of the extreme animosity between him and the former foster mother largely stemming from their exchange of abuse or neglect allegations.

The custodial father no longer wants his child to visit with the former foster mother. Although the Court may disagree with the father’s choice, Family Court is loathe to micro-manage a custodial parent’s decisions about whom their child should associate with. Here, the former foster mother voluntarily withdrew her petition for custody. She is no longer challenging the father’s right to sole legal and physical custody. She is simply opposing his petition to terminate her right to visitation with his child.

“In this case, no one questions the [father's] fitness to raise [his] child and no one seeks to change custody. Thus, the Bennett rule2 has no application to the situation before us, and our inquiry is directed solely to the State’s power to interfere with the right of this [father] to choose those with whom [his] child associates. The State may not interfere with that fundamental right unless it shows some compelling State purpose which furthers the child’s best interests (see, Stanley v. Illinois, 405 US 645, 651). No such compelling purposes are present in this case” (Ronald FF. v. Cindy GG., 70 NY2d 141, 144-45 [1987]).

The law clearly distinguishes between the rights of a non-parent who seeks custody as opposed to a non-parent who seeks only visitation. A former foster parent lacks standing to petition for visitation (see Cindy P v. Danny P, 206 AD2d 615 [3d Dept 1994]; In the Matter of Hayley PP, 77 AD3d 1133 [3d Dept 2010]). However, a former foster parent may gain standing to petition for custody if she satisfies the heavy burden of proving that extraordinary circumstances support the custody petition (see, Brown v. Comer, 136 AD3d 1173 [3d Dept 2016]).

In explaining this distinction, the Court of Appeals stated:

“To be sure, visitation is a subspecies of custody, but the differences in degree in these relational categories is so great and so fundamental that rules like the Bennett rule, which have been carefully crafted and made available only to custody disputes, should not be casually extended to the visitation field. Thus, we expressly decline to do so” (Ronald FF. v. Cindy GG., 70 NY2d 141, 144 [1987]).

The existence of a prior order, upon consent, which granted respondent K.B. visitation rights, does not change this analysis.

“Contrary to respondent’s analysis, we conclude that the issue is governed by the decisions of the Court of Appeals in Matter of Ronald FF. v. Cindy GG. (70 NY2d 141) and Matter of Alison D. v. Virginia M. (77 NY2d 651). In Matter of Ronald FF. v. Cindy GG. (supra, at 142), the Court held that ‘[v]isitation rights may not be granted…to a biological stranger where the child, born out of wedlock, is properly in the custody of his mother’. Although, as pointed out by respondent, that case may be distinguished by the absence of a voluntary agreement, in Matter of Canabush v. Wancewicz (193 AD2d 260), this Court extended the analysis of Matter of Ronald FF. v. Cindy GG. (supra) to a case where a nonparent’s custody rights arose out of an agreement, applying the rationale that a parent may not stipulate away a child’s right to be reared by its biological parent (Matter of Canabush v. Wancewicz, supra, at 262). Because that rationale strikes us as no less applicable in the case of visitation, we conclude that a voluntary agreement, alone or as incorporated into a court order, will not of itself confer standing upon a person not related by blood to assert a legal claim to visitation” (Cindy P. v. Danny P., 206 AD2d 615, 616 [3d Dept 1994]).

In another, similar case, Judge Duggan wrote that

“[t]he court retained jurisdiction of the case to facilitate the transition of the child from his foster home to that of the father. As a result, the court entered a series of visitation orders which gradually decreased the time the child spent with the foster mother and increased the time spent with the father. At this point in time, the father has full custody and the foster mother has weekly Sunday visits. The foster mother now seeks to maintain that time and the father wishes to terminate court-ordered contact between the foster mother and the child.

***

Based on Bennett v. Jeffreys (supra) and its progeny, it is clear that the foster mother has no statutory or common-law right to visitation with a former foster child and her petition must be denied on these grounds” (Webster v. Ryan, 187 Misc 2d 127, 129 and 137 [Fam Ct Albany County 2001]).

The rule against non-parents seeking visitation has been relaxed due to evolving concepts about who may be defined as a parent. However, those cases deal with situations where the parties agreed to raise a child together. In such cases, a non-biological, non-adoptive partner may have standing to seek visitation.3 This exception to the rule has been described as “narrow.”

“Our holding that Domestic Relations Law §70 permits a non-biological, non-adoptive parent to achieve standing to petition for custody and visitation requires us to specify the limited circumstances in which such a person has standing as a ‘parent’ under Domestic Relations Law §70 (see Alison D., 77 NY2d at 661 [Kaye, J., dissenting]; Troxel, 530 U.S. at 67, 120 S.Ct. 2054). Because of the fundamental rights to which biological and adoptive parents are undeniably entitled, any encroachment on the rights of such parents and, especially, any test to expand who is a parent, must be, as Judge Kaye acknowledged in her dissent in Alison D., appropriately narrow” (Brooke S.B. v. Elizabeth A.C.C., 28 NY3d 1, 27 [2016]).

There is no precedent for expanding the definition of “parent” to include a former foster parent who, for five years, had been awarded visitation as, essentially, a friend of the child. Respondent K.B. is not a parent by estoppel as contemplated by Brook S.B., supra.

For a non-parent to overcome the fundamental right of a custodial parent to determine whom his child may associate with, a right of constitutional dimension, the non-parent must establish a “compelling state purpose” (Ronald FF. v. Cindy GG., 70 NY2d 141, 144-45 [1987]). No compelling state purpose was established at the fact finding.

Paraphrasing the Court in Matter of Melissa M., 101 Misc 2d 407, 413 (Fam Ct NY County 1979), State intervention would be unjustified because the father has shown himself to be adequate to address the child’s needs. While respondent K.B.’s heartbreak at her complete severance from C.M. is poignant and unfair in view of her early care of C.M. and the subsequent visitation, the father has the right to make that decision. The Court concludes that the father’s decision to sever the relationship between respondent K.B. and C.M. is not in C.M.’s best interest. However, the Court lacks the authority to prevent that from happening. The Court can only hope that the father will reconsider his decision lest, in the long run, he snatch defeat from the jaws of victory.

NOW, THEREFORE, for the reasons set forth herein, it is

ORDERED that the petition of J.W. for modification of a prior order of the Family Court be, and the same hereby is, granted; and it is further

ORDERED that J.W. be, and he hereby is, relieved of the obligation to provide visitation between the child, C.M., and respondent, K.B.; and it is further

ORDERED that the attorney for the child shall remain in that status, for a period of twelve (12) months, and may take such legal action as she may deem fit on behalf of the child without need of further formal appointment.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. WHEN SERVICE OF THE ORDER IS MADE BY THE COURT, THE TIME TO TAKE AN APPEAL SHALL NOT COMMENCE UNLESS THE ORDER CONTAINS SUCH STATEMENT AND THERE IS AN OFFICIAL NOTATION IN THE COURT RECORD AS TO THE DATE AND THE MANNER OF SERVICE OF THE ORDER.

Dated: September 2, 2021

Footnotes

1. A written closing was not expected from the Department of Social Services.

2. Referring to Matter of Bennett v. Jeffreys, 40 NY2d 543 (1976).

3. The principle of equitable estoppel may also require a biologically non-parent to pay child support"