As you know, I was recently admitted to practice in Massachusetts where I also have a residence. This month, I have been certified as a private attorney for the Children and Family Law Division (for child welfare cases) as part of the Massachusetts Committee for Public Counsel Services.
Yesterday I began my first court appointment. Of course, my practice in NY continues.
"DUFFY, J.
This appeal requires this Court to address the issue of how exacting the requirement of strict compliance is with respect to the "separate envelope" mandate of RPAPL 1304; to wit, in a mortgage foreclosure action, how should the "separate envelope" requirement of RPAPL 1304(2), which provides that "notices required by this section shall be sent . . . in a separate envelope from any other mailing or notice," be construed?
For the reasons that follow, we find that the Supreme Court properly determined that the plaintiff failed to comply with the strict requirements of RPAPL 1304, and thus, a condition precedent to this foreclosure action was not met. As such, the court properly denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Andrew Kessler and Reiko Kessler (hereinafter together the defendants), for summary judgment dismissing the defendants' second, third, and fourth affirmative defenses, and for an order of reference, and granted Andrew Kessler's cross motion for summary judgment dismissing the complaint insofar as asserted against him.
As is relevant to this appeal, in March 2014, the plaintiff commenced this action against, among others, the defendants to foreclose a mortgage on real property located in Croton-on-Hudson, Westchester County. The plaintiff alleged, among other things, that it was the owner and holder of the note and the mortgage at issue and that Andrew Kessler defaulted in payment of the mortgage as of September 2013. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, for summary judgment dismissing the defendants' second, third, and fourth affirmative defenses, and for an order of reference. Andrew Kessler opposed the plaintiff's motion and cross-moved for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff failed to comply with RPAPL 1304. In an order dated November 30, 2017 (hereinafter the November 2017 order), the Supreme Court denied the plaintiff's motion and granted Andrew Kessler's cross motion. The plaintiff appeals from so much of the November 2017 order as denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants, for summary judgment dismissing the defendants' second, third, and fourth affirmative defenses, and for an order of reference, and granted Andrew Kessler's cross motion. We affirm.
In matters of statutory interpretation, the primary consideration is to discern and give effect to the Legislature's intention (see Yatauro v Mangano, 17 NY3d 420, 426). "[T]he text of a provision `is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning'" (Matter of Albany Law School v New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 120, quoting Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660; see Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583). "When the plain language of the statute is precise and unambiguous, it is determinative" (Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 565; see Loehr v New York State Unified Ct. Sys., 150 AD3d 716, 720). Here, the language of the statute is clear, precise, and unambiguous.
Specifically, RPAPL 1304, in effect at the time this action was commenced, provides as follows:
"Required prior notices.
"1. Notwithstanding any other provision of law, with regard to a home loan, at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, or borrowers at the property address and any other address of record, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower in at least fourteen-point type which shall include the following:
. . .
"2. The notices required by this section shall be sent by such lender, assignee (including purchasing investor) or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage. The notices required by this section shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice. Notice is considered given as of the date it is mailed. The notices required by this section shall contain a current list of at least five housing counseling agencies serving the county where the property is located from the most recent listing available from department of financial services. The list shall include the counseling agencies' last known addresses and telephone numbers. The department of financial services shall make available on its websites a listing, by county, of such agencies. The lender, assignee or mortgage loan servicer shall use such lists to meet the requirements of this section" (emphasis added).
RPAPL 1304 "contains specific, mandatory language in keeping with the underlying purpose of [the Home Equity Theft Prevention Act] to afford greater protections to homeowners confronted with foreclosure" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 103), and the language in RPAPL 1304(2) with regard to the manner of service of the required notices "in a separate envelope from any other mailing or notice" "is equally precise" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 104 [internal quotation marks omitted]). Strict compliance with the requisite RPAPL 1304 notices to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action (see CV XXVII, LLC v Trippiedi, 187 AD3d 847, 850; USBank N.A. v Haliotis, 185 AD3d 756, 758). The plaintiff has the burden of establishing its strict compliance with this condition (see USBank N.A. v Haliotis, 185 AD3d at 758; Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 106). Since, among other requirements, such notice must be sent "in a separate envelope from any other mailing or notice" (RPAPL 1304[2]), we hold that inclusion of any material in the separate envelope sent to the borrower under RPAPL 1304 that is not expressly delineated in these provisions constitutes a violation of the separate envelope requirement of RPAPL 1304(2).
This strict approach precluding any additional material in the same envelope as the requisite RPAPL 1304 notices not only comports with the statutory language, it also provides clarity as a bright-line rule to plaintiff lenders and "promotes stability and predictability" (Freedom Mtge. Corp. v Engel, 37 NY3d 1, 20) in foreclosure proceedings.
We note that this strict interpretation of the "separate envelope" requirement is consistent with the Legislature's intent. RPAPL 1304 was first enacted by the New York Legislature and signed by the Governor of New York in 2008, along with a series of additional amendments to laws governing mortgage foreclosure proceedings (see L 2008, ch 472, § 2 [eff Sept. 1, 2008]). The statute requires that, at least 90 days prior to the commencement of a foreclosure action, a lender must give a borrower certain written notice (see RPAPL 1304[1]). Subdivision (1) of the statute sets forth the specific language that the 90-day notice "shall include" (id.), and subdivision (2) specifies how the requisite RPAPL 1304 notices must be sent (see id. § 1304[2]). In 2009, several amendments to RPAPL 1304 were enacted, effective in January 2010, which added a new sentence to RPAPL 1304(2) to include the requirement that the requisite RPAPL 1304 notice shall be sent in "a separate envelope from any other mailing or notice" (id. § 1304[2]; see L 2009, ch 507, § 1-a [eff Jan. 14, 2010]). Notably, the "separate envelope" requirement of RPAPL 1304 appears to be exclusive to this section and is not found in other notice provisions applicable to mortgage foreclosure proceedings (see e.g. RPAPL 1303, 1305; see also UCC 9-611). Although RPAPL 1304 has been amended since its adoption in 2008, the "separate envelope" provision which was added to RPAPL 1304 in 2009 has consistently remained (see e.g. L 2009, ch 507, § 1-a [eff Jan. 14, 2010]; L 2011, ch 62, part A, § 104 [eff Oct. 3, 2011]; L 2012, ch 155, § 84 [eff July 18, 2012]; L 2012, ch 155, § 85; L 2016, ch 73, part Q, §§ 6, 7 [eff Dec. 20, 2016]; L 2017, ch 58, part FF, § 1 [eff Dec. 20, 2016]; L 2018, ch 58, part HH, §§ 1, 5 [eff Apr. 12, 2018, deemed eff Apr. 20, 2017]; L 2018, ch 58, part HH, §§ 3, 4 [eff May 12, 2018]). Moreover, we note that, since its enactment, RPAPL 1304 has expressly set forth in detail the content and the nature of how the notices are required to be sent pursuant to its terms (see e.g. L 2008, ch 472, § 2 [eff Sept. 1, 2008], as amended by L 2009, ch 507, § 1-a [eff Jan. 14, 2010]; L 2011, ch 62, part A, § 104 [eff Oct. 3, 2011]; L 2012, ch 155, § 84 [eff July 18, 2012]; L 2012, ch 155, § 85; L 2016, ch 73, part Q, §§ 6, 7 [eff Dec. 20, 2016]; L 2017, ch 58, part FF, § 1 [eff Dec. 20, 2016]; L 2018, ch 58, part HH, §§ 1, 5 [eff Apr. 12, 2018, deemed eff Apr. 20, 2017]; L 2018, ch 58, part HH, §§ 3, 4 [eff May 12, 2018]).
Construing the "separate envelope" requirement of RPAPL 1304 as exacting also addresses recent concerns articulated by the Court of Appeals when it "[a]dopt[ed] a clear rule that will be easily understood by the parties and can be consistently applied by the courts" in mortgage foreclosure cases involving statute of limitations issues (Freedom Mtge. Corp. v Engel, 37 NY3d at 19). In Freedom Mtge. Corp. v Engel, the Court of Appeals set forth a bright-line rule in mortgage foreclosure cases that a lender's voluntary discontinuance of a prior foreclosure action constitutes a revocation of its election to accelerate the debt, absent a contemporaneous statement by that noteholder to the contrary (see id.). In its discussion of the application of the statute of limitations, the Court of Appeals "emphasized the need for reliable and objective rules permitting consistent application" (id. at 20). More significantly, with respect to evaluating the import of RPAPL 1304, the Court of Appeals expressly recognized that "the legislature has imposed exacting standards for bringing a foreclosure claim—e.g., prescribing the precise method of providing pre-suit notice to the borrower (see RPAPL 1304)" (Freedom Mtge. Corp. v Engel, 37 NY3d at 23, n 4).
This Court, in USBank N.A. v Haliotis (185 AD3d at 758-759), as well as our sister court, the Appellate Division, Third Department, in Tuthill Fin., a Ltd. Partnership v Candlin (129 AD3d 1375, 1376), have already implemented this strict compliance approach with respect to the separate envelope requirement. In each case, this Court and the Third Department, respectively, found that the plaintiff lender failed to establish its requisite compliance with the RPAPL 1304 notice requirements because, among other things, the records did not show that the RPAPL 1304 notice was "served in an envelope that was separate from any other mailing or notice" (USBank N.A. v Haliotis, 185 AD3d at 758-759; see Tuthill Fin., a Ltd. Partnership v Candlin, 129 AD3d at 1376; see e.g. Emigrant Mtge. Co., Inc. v Persad, 117 AD3d 676, 677).
In articulating this bright-line rule that compliance with the "separate envelope" requirement of RPAPL 1304 mandates that no material other than the notices specifically described in RPAPL 1304 be contained in that envelope, we expressly reject the position of the plaintiff that an analysis undertaken by certain trial courts in New York should apply; to wit, that a court should evaluate whether the additional material contained in the envelope sent by the lender pursuant to RPAPL 1304 prejudices or assists the borrower when ascertaining the lender's compliance with the "separate envelope" requirement of RPAPL 1304 (see e.g. Deutsche Bank Natl. Trust Co. v Delisser, Sup Ct, Suffolk County, Sept. 14, 2017, Heckman, J., Index No. 8685/13 [no violation of RPAPL 1304 where defendant failed to show prejudice from lender's inclusion of notice to veterans and notice regarding consumer rights]). Nor do we agree with our dissenting colleague's assertion, and some trial courts that have found, that the language of RPAPL 1304(1) is nonexclusive with respect to other information that can be included in the envelope as long as the information in the envelope also contains the specific language set forth in the statute (see e.g. Citimortgage, Inc. Sbm ABN Amro Mortgage Group, Inc. v Bunger, 58 Misc 3d 333, 341 [Sup Ct, Suffolk County] [inclusion of additional notice referring to quality controls on phone calls, advisement to give the letter to the party's attorney, and language setting forth debtors' rights in bankruptcy in same envelope with the requisite RPAPL 1304 notices did not violate RPAPL 1304(2)]). We also reject the fact-intensive analyses adopted by some trial courts which focus on whether the additional information in the RPAPL 1304 envelope is included as a separately paginated sheet of paper or some other physical demarcation of the information exists, or whether the additional information is on the same page as the requisite notice—suggesting that the latter would preclude a finding that the separate envelope requirement was not complied with but the former would not (see e.g. Beneficial Homeowner Serv. Corp. v Jordon-Thompson, 57 Misc 3d 1213[A], 2017 NY Slip Op 51424[U], *4 [Sup Ct, Suffolk County]). Likewise, we reject the plaintiff's contention that this Court should follow the determination of some trial courts in concluding that the inclusion of additional notices in the envelope along with the requisite RPAPL 1304 notice is a de minimis deviation from the requirements of the statute and, thus, does not constitute a failure to comply with the separate envelope requirement (see e.g. Deutsche Bank Natl. Trust Co. v Bonal, Sup Ct, Suffolk County, Oct. 23, 2017, Heckman, J., Index No. 61217/13). We also disagree with our dissenting colleague's contention that "clarifying language" that a plaintiff includes in the envelope with the requisite RPAPL 1304 notice, such as language concerning the rights of a debtor in bankruptcy or in the military service, or any language that may be relevant to the warnings in RPAPL 1304, falls within the prescriptions of RPAPL 1304 and does not require a separate envelope.
As an initial matter, we find that such approaches could entirely vitiate the unambiguous requirement imposed by the Legislature of a "separate envelope" for the purposes of mailing the requisite notice under RPAPL 1304. Such a requirement could also place the burden on a defendant to show a lack of prejudice or show that the information is not relevant to the notice mandated under RPAPL 1304, rather than on the plaintiff to show compliance. Moreover, such analyses, which purport to interpret what the Legislature intended, rather than what it said, would require courts to engage in exactly the type of judicial scrutiny that the Court of Appeals has recently rejected in mortgage foreclosure cases (see Freedom Mtge. Corp. v Engel, 37 NY3d at 30-31). In Freedom Mtge. Corp. v Engel, the Court of Appeals, holding that a lender's voluntary discontinuance of an action, without more, constitutes a revocation of the lender's election to accelerate the debt, determined that an exploration of the lender's intent and scrutinization of "the course of the parties' post-discontinuance conduct and correspondence" was "unworkable from a practical standpoint" and would require a court to engage in an "exhaustive examination" of the parties' conduct (id. at 30). This same sort of unworkable exercise would be required in order for a court to ascertain whether the additional material included by a lender in the envelope with the requisite notice under RPAPL 1304 constitutes information relevant, helpful, or prejudicial to the borrower. Under such analyses, a lender could argue that any additional material included in the envelope that may be construed as helpful or is neither deceptive nor prejudicial to the borrower meets the requirements of RPAPL 1304. In opposition, the borrower could argue that the myriad of information provided by the lender in the envelope overshadowed the requisite notice under RPAPL 1304 such that the borrower failed to recognize its import or did not even see it in the pages sent. Such analyses into the parties' subjective perceptions are impracticable. Moreover, to the extent that the Legislature adopted the "separate envelope" requirement to obviate a borrower becoming confused or distracted by extraneous information, such analyses are inconsistent with the legislative intent and plain language of RPAPL 1304. Indeed, we find that the approach taken by the Court of Appeals in Freedom Mtge. Corp. v Engel is instructive in analyzing compliance with RPAPL 1304(2): "The determinative question is not what the [lender] intended or the borrower perceived" (Freedom Mtge. Corp. v Engel, 37 NY3d at 23), nor for the court to decide what other additional notices might or might not be permissible, but rather, given the clear and unambiguous language of the statute, whether the lender complied with the separate envelope requirement of RPAPL 1304(2).
Nor will our determination as to strict compliance with the dictates of RPAPL 1304(2) undermine the legislative goal of providing information about additional protections and foreclosure prevention opportunities to homeowners at risk of losing their homes (see Senate Introducer's Mem in Support, Bill Jacket, L 2008, ch 472 at 7), as nothing in RPAPL 1304 prohibits a lender from mailing, in other envelopes, notices to a borrower—whether such notices be federally mandated or consist of any other notice or information that may assist a homeowner to avoid foreclosure. RPAPL 1304(2) simply requires that the notices required by its provisions be mailed in a separate envelope from those other notices.
Here, the plaintiff acknowledged that the envelope that it sent to the defendants, which contained the requisite notice under RPAPL 1304, also included other information in two notices pertaining to the rights of a debtor in bankruptcy and in military service. Since the plaintiff failed to establish, prima facie, that it strictly complied with the requirements of RPAPL 1304, the Supreme Court properly denied those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendants, for summary judgment dismissing the defendants' second, third, and fourth affirmative defenses, and for an order of reference (see e.g. USBank N.A. v Haliotis, 185 AD3d at 758-759; Citibank, N.A. v Conti-Scheurer, 172 AD3d 17, 21). Further, on his cross motion, Andrew Kessler established his prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him by showing that the plaintiff failed to comply with RPAPL 1304 when it sent additional material in the same envelope as the requisite notice under RPAPL 1304. In opposition, the plaintiff failed to raise a triable issue of fact.
The plaintiff's remaining contentions are without merit.
Accordingly, for the reasons set forth herein, the Supreme Court properly denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants, for summary judgment dismissing the defendants' second, third, and fourth affirmative defenses, and for an order of reference, and properly granted Andrew Kessler's cross motion for summary judgment dismissing the complaint insofar as asserted against him.
The order is affirmed insofar as appealed from.
LASALLE, P.J., and MASTRO, J., concur.
ORDERED that the order is affirmed insofar as appealed from, with costs.
MILLER, J., dissents, and votes to reverse the order insofar as appealed from, on the law, grant those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants Andrew Kessler and Reiko Kessler, for summary judgment dismissing the second, third, and fourth affirmative defenses of those defendants, and for an order of reference, and deny the cross motion of the defendant Andrew Kessler for summary judgment dismissing the complaint insofar as asserted against him, with the following memorandum:
The additional language included on page seven of the RPAPL 1304 notice that was received by the borrower in this case did not violate any of the content provisions of that statute (see id. § 1304[1]). Nor did the additional language frustrate the statute's overarching purpose or intent. Since the additional language was relevant to, and in fact clarified, the warnings and instructions mandated by the statute, it did not constitute a separate "mailing or notice" (id. § 1304[2]), and was properly included in "[t]he notice[ ] required by this section" (id.). In the absence of an explicit prohibition against such additional language in a valid RPAPL 1304(1) notice, the statute should not be extended beyond its plain language in a manner that renders every inconsequential addition fatal. Both common sense and settled principles of statutory construction support this view. For although the requirements of the statute must be strictly complied with, the statute itself must be strictly construed in the first instance. The failure to do so here is error, as a matter of law. Accordingly, I must respectfully dissent.
On September 11, 2009, the defendant Andrew Kessler (hereinafter the borrower) executed a note in which he promised to repay a loan in the principal sum of $590,302, plus interest. The note was secured by a mortgage of the same date, encumbering certain real property located in Croton-on-Hudson, New York. The mortgage was executed by the borrower and the defendant Reiko Kessler (hereinafter together the homeowners).
By summons and complaint, both dated March 27, 2014, the plaintiff commenced this action against the homeowners and another defendant to foreclose the mortgage. The complaint alleged that the borrower had defaulted under the terms of the note and mortgage by failing to make the required monthly payment that was due on September 1, 2013, and by failing to make all of the required monthly payments due thereafter. Copies of the note and mortgage were annexed to, and referenced in, the complaint.
In a paper denominated "Proposed Amended Answer," the homeowners "den[ied] knowledge or information sufficient to form a belief as to the truth of the allegations contained in each and every paragraph [of the] Plaintiff's Complaint." In addition to this blanket denial, the homeowners asserted four affirmative defenses. As relevant here, the fourth affirmative defense alleged, inter alia, that the plaintiff failed to comply with RPAPL 1304.
The plaintiff subsequently moved for, among other relief, summary judgment on the complaint insofar as asserted against the homeowners, summary judgment dismissing the homeowners' second, third, and fourth affirmative defenses, and for an order of reference. The borrower cross-moved for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiff failed to comply with RPAPL 1304.
In an order dated November 30, 2017, the Supreme Court concluded that the plaintiff had sustained its prima facie burden in support of its motion, but that, in opposition and in support of his cross motion, the borrower had successfully demonstrated that the plaintiff failed to comply with RPAPL 1304. Accordingly, the court denied the plaintiff's motion and granted the borrower's cross motion. The plaintiff appeals. On appeal, the plaintiff contends, inter alia, that the court erred in concluding that the plaintiff failed to comply with RPAPL 1304. The plaintiff is correct.
"[A]n RPAPL 1304 notice is a notice pursuant to the Home Equity Theft Prevention Act (Real Property Law § 265-a; hereinafter HETPA), the underlying purpose of which is `to afford greater protections to homeowners confronted with foreclosure'" (Bank of N.Y. Mellon v Forman, 176 AD3d 663, 665, quoting Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 103; see generally 264 Siegel's Practice Review, When Does P's Proof of Service Suffice to Make D's Mere Denial of Receipt Ineffective? Treatment of Service Inadequacies in Foreclosure Cases Turns Into Broader Treatment for All Cases at 1 [Dec. 2013]).
"Where a loan is a home loan for the borrower's principal residence, the mortgage creditor contemplating a mortgage foreclosure action is required, pursuant to RPAPL 1304, to serve the borrower with notice of his or her default in a specified form by registered or certified mail and first class mail at least 90 days prior to the commencement of the action" (Flagstar Bank, FSB v Jambelli, 140 AD3d 829, 830 [citation omitted]; see RPAPL 1304[1], [2], [6][a][1][iii]).
RPAPL 1304(1) provides that the relevant
"lender, assignee or mortgage loan servicer shall give notice to the borrower in at least fourteen-point type which shall include the following:
`YOU MAY BE AT RISK OF FORECLOSURE. PLEASE READ THE FOLLOWING NOTICE CAREFULLY'
`As of ___, your home loan is ___ days and ___ dollars in default. Under New York State Law, we are required to send you this notice to inform you that you are at risk of losing your home.
Attached to this notice is a list of government approved housing counseling agencies in your area which provide free counseling. You can also call the NYS Office of the Attorney General's Homeowner Protection Program (HOPP) toll-free consumer hotline to be connected to free housing counseling services in your area at 1-855-HOME-456 (1-855-466-3456), or visit their website at http://www.aghomehelp.com/. A statewide listing by county is also available at http://www.dfs.ny.gov/consumer/mortg nys np counseling agencies.htm. Qualified free help is available; watch out for companies or people who charge a fee for these services.
Housing counselors from New York-based agencies listed on the website above are trained to help homeowners who are having problems making their mortgage payments and can help you find the best option for your situation. If you wish, you may also contact us directly at _________ and ask to discuss possible options.
While we cannot assure that a mutually agreeable resolution is possible, we encourage you to take immediate steps to try to achieve a resolution. The longer you wait, the fewer options you may have.
If you have not taken any actions to resolve this matter within 90 days from the date this notice was mailed, we may commence legal action against you (or sooner if you cease to live in the dwelling as your primary residence).
If you need further information, please call the New York State Department of Financial Services' toll-free helpline at (show number) or visit the Department's website at (show web address).[']"
"The notice warns the homeowner, in essence, that their mortgage is in default, placing the homeowner at risk of losing the home, and specifying the amount of arrears that needed to be paid in order to cure the default" (Mark C. Dillon, Unsettled Times Make Well-Settled Law: Recent Developments in New York State's Residential Mortgage Foreclosure Statutes and Case Law, 76 Alb L Rev 1085, 1110 [2012-2013]). "[T]he notice advises that if the default issues are not resolved within ninety days, a foreclosure action may be commenced against the homeowner" (id. at 1110).
"The notice must also inform the homeowner of government approved housing counseling agencies that provide free or low-cost housing advice" (id.). "The number of government approved housing counselors identified in the notice shall be at least five, along with their last known addresses and telephone numbers" (id. at 1110-1111; see USBank N.A. v Haliotis, 185 AD3d 756, 758). "The notice must also encourage the homeowner to contact one of the counseling agencies" (Mark C. Dillon, Unsettled Times Make Well-Settled Law: Recent Developments in New York State's Residential Mortgage Foreclosure Statutes and Case Law, 76 Alb L Rev at 1110).
As indicated, "[t]he notices required by [RPAPL 1304] shall be sent by such lender, assignee . . . or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage" (RPAPL 1304[2]). The statute further provides that "[t]he notices required by this section shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice" (id.).
The "[c]ontent, timing, and service provisions of RPAPL 1304 are very specific and couched in mandatory language" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 103-104; see H & R Block Bank, FSB v Liles, 186 AD3d 813, 815-816). Where applicable, "proper service of the RPAPL 1304 notice containing the statutorily-mandated content is a condition precedent to the commencement of the foreclosure action" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 103; see Flagstar Bank, FSB v Jambelli, 140 AD3d at 830 [citing RPAPL 1302]). "Strict compliance with RPAPL 1304" is required (Citibank, N.A. v Conti-Scheurer, 172 AD3d 17, 20; see Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 103), "and the plaintiff has the burden of establishing satisfaction of this condition" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 106 [citing RPAPL 1302]).
However, a "failure to comply with RPAPL 1304 is not jurisdictional" (Flagstar Bank, FSB v Jambelli, 140 AD3d at 830; see Pritchard v Curtis, 101 AD3d 1502, 1504). "Statutorily, violation of the provisions of RPAPL 1304 constitutes a defense to a home loan mortgage foreclosure action" (Pritchard v Curtis, 101 AD3d at 1504 [citing RPAPL 1302]; see Flagstar Bank, FSB v Jambelli, 140 AD3d at 830 [same]). Where the defense is properly raised, "compliance with RPAPL 1304 [is] a component of [the plaintiff's] prima facie burden" (H & R Block Bank, FSB v Liles, 186 AD3d at 817; see USBank N.A. v Haliotis, 185 AD3d at 758; Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 106).
Here, on his cross motion for summary judgment dismissing the complaint insofar as asserted against him, the borrower contended, among other things, that the plaintiff failed to strictly comply with "the form and content" requirements of RPAPL 1304. The borrower argued that the plaintiff failed to strictly comply with the requirements of RPAPL 1304 because the notice that was sent to him by the plaintiff included additional language, in both English and Spanish, which was not explicitly required by RPAPL 1304.
In support of his cross motion, the borrower submitted, inter alia, his own affidavit and a copy of the RPAPL 1304 notice that he allegedly received from the plaintiff . The borrower conceded that he had received the RPAPL 1304 notice sent to him by the plaintiff, and the notice as reflected in the record included the applicable language set forth in RPAPL 1304(1). However, the borrower contended that the RPAPL 1304 notice that he received from the plaintiff included language in addition to the language that was required by RPAPL 1304(1). The borrower contended that the inclusion of this additional language constituted a separate notice within the meaning of RPAPL 1304(2), and therefore violated the "separate envelope" requirement imposed in that subdivision (id.).
The Supreme Court accepted the borrower's argument and concluded that "as it is undisputed that plaintiff provided additional information in the envelope along with the statutorily required information, this Court finds that plaintiff did not strictly comply with RPAPL § 1304 and thus, a condition precedent to the foreclosure action was not met."
In affirming the order insofar as appealed from, my colleagues in the majority now similarly "hold that inclusion of any material in the separate envelope sent to the borrower under RPAPL 1304 that is not expressly delineated in these provisions constitutes a violation of the separate envelope requirement of RPAPL 1304(2)."
Although these formulations use the terms "information" and "material," respectively, those designations both refer to additional language which appeared on page seven of the RPAPL 1304 notice that was received by the borrower. Under this construction of the statute, any language (i.e., any word, sentence, or paragraph) that is not explicitly required by RPAPL 1304(1) constitutes, as a matter of law, a separate "mailing or notice" within the meaning of RPAPL 1304(2). The plain language of the statute does not support this construction.
Rather, as quoted above, the plain language merely provides that a "lender, assignee or mortgage loan servicer shall give notice to the borrower . . . which shall include the following [language]" (id. § 1304[1] [emphasis added]). The statute positively sets forth the language that must be included in a valid RPAPL 1304 notice (see id.). The plain language does not purport to restrict the content of a valid notice, or prohibit the inclusion of any other language beyond that which is explicitly required (see id.).
Indeed, this Court has recognized that "the word `includes' is usually a term of enlargement, and not of limitation . . . it therefore conveys the conclusion that there are other items includable, though not specifically enumerated by the statutes" (Matter of Willow Wood Rifle & Pistol Club v Town of Carmel Zoning Bd. of Appeals, 115 AD2d 742, 744 [alterations and internal quotation marks omitted]). The Court of Appeals has similarly recognized that the term "`[i]ncluding' may be used to bring into a definition something that would not be there unless specified, or it may be used to show the meaning of the defined word by listing some of the things meant to be referred to, but not by such listing excluding others of the same kind" (Red Hook Cold Stor. Co. v Department of Labor of State of N.Y., 295 NY 1, 8 [emphasis added]).
If it had been the Legislature's intent to restrict or proscribe additional language in a valid RPAPL 1304 notice, that intent "would have been expressed" (Burnside v Whitney, 21 NY 148, 149). The statute could have stated that a valid RPAPL 1304(1) notice shall only include certain language, but the Legislature chose not to employ any such words of limitation. In its present form, there is no statutory basis to conclude that any language beyond that which is required by RPAPL 1304(1), however slight or innocuous, constitutes a separate "mailing or notice" within the meaning of RPAPL 1304(2) (see id. § 1304[1]; Red Hook Cold Stor. Co. v Department of Labor of State of N.Y., 295 NY at 8; Matter of Willow Wood Rifle & Pistol Club v Town of Carmel Zoning Bd. of Appeals, 115 AD2d at 744-745). In the absence of a specific statutory proscription against additional content in a valid RPAPL 1304(1) notice, basic principles of statutory construction counsel against reading such a prohibition into the statute.
The courts of this state have long recognized that a statute in derogation of the common law, or which infringes upon an existing common right, must "be strictly construed" (Hayes v Davidson, 98 NY 19, 22; see Transit Commn. v Long Is. R.R. Co., 253 NY 345, 355; People v Phyfe, 136 NY 554, 559; Taylor v Mayor of City of N.Y., 82 NY 10, 10; Burnside v Whitney, 21 NY at 149; see generally McKinney's Cons Laws of NY, Book 1, Statutes §§ 301, 311). In addition, "[i]t is a well-settled rule . . . that a party has a right to sue on any cause of action which he [or she] holds, and any statutory exception to that right must be distinctly expressed" (Saxe v Peck, 139 App Div 419, 420; see Salters v Tobias, 3 Paige Ch 338 [Ch Ct 1832]).
Here, as already observed, strict compliance with RPAPL 1304 is a "condition precedent" to the commencement of such an action (Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 103), and "a component of [the plaintiff's] prima facie burden" (H & R Block Bank, FSB v Liles, 186 AD3d at 817; see Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 106). These statutory requirements, which presently constitute "the most-litigated issue in residential mortgage foreclosure [actions]" (Dan M. Blumenthal, 2020 Supp Practice Commentaries, McKinney's Cons Laws of NY, RPAPL 1304), plainly "limit[ ] a mortgage holder's right to commence an action to foreclose on its mortgage" (1 Bergman on New York Mortgage Foreclosures § 4.04B). Case law from this Court indeed reflects that "the foreclosure provisions of RPAPL Article 13 must be strictly construed . . . because the statute is in derogation of a plaintiff's/mortgagee's common-law right to commence an action in foreclosure and to recover the mortgage debt" (id.; see Valley Sav. Bank v Rose, 228 AD2d 666, 667; Dollar Dry Dock Bank v Piping Rock Blders., Inc., 181 AD2d 709, 710).
In this case, the RPAPL 1304 notice was sent by the plaintiff and received by the borrower within the prescribed time period. The notice itself did, in fact, "include" all of the language that the statute required (id. § 1304[1]). Accordingly, there was "strict compliance with statutory commands as to matters of prescribed content" (Matter of Hutson v Bass, 54 NY2d 772, 774; see Red Hook Cold Stor. Co. v Department of Labor of State of N.Y., 295 NY at 8; Matter of Willow Wood Rifle & Pistol Club v Town of Carmel Zoning Bd. of Appeals, 115 AD2d at 744-745). Inasmuch as the statute does not expressly prohibit any additional language in "[t]he notices required by this section" (RPAPL 1304[2]), the additional language included on page seven of the RPAPL 1304 notice here did not violate the content provisions of RPAPL 1304(1).
Statutory support for such a prohibition is also absent from RPAPL 1304(2). That subdivision does not purport to set any restrictions on the content of "[t]he notices required by this section" (id.). Nor does it define the facts or circumstances that would constitute a separate "mailing or notice" for the purposes of the "separate envelope" requirement (id.). In the absence of such language, there is no statutory basis to conclude that the "separate envelope" requirement is applicable to the additional language that was included in the otherwise valid RPAPL 1304 notice received by the borrower here (id.).
The allegedly separate "mailing or notice" in this case was additional clarifying language, in Spanish and English, which appeared on page seven of the RPAPL 1304 notice, after the statutorily mandated language. The additional language advised the borrower that if he was in bankruptcy, he was "not obligated to discuss [his] home loan with [the plaintiff] or enter into a loan modification or other loan-assistance program." Additional language on that page further advised the borrower that if he or his spouse was "a member of the military," he should contact the plaintiff "immediately" as such status could confer "significant protections and benefits."
"The content of [an] RPAPL 1304 notice furthers the legislative intent `to provide a homeowner with information necessary . . . to preserve and protect home equity'" (Bank of N.Y. Mellon v Forman, 176 AD3d at 665-666, quoting Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 107 [internal quotation marks omitted]; see Real Property Law § 265-a[1][d]). The "manifest purpose [of the RPAPL 1304 notice] is to aid the homeowner in an attempt to avoid litigation" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 107; see Bank of N.Y. Mellon v Forman, 176 AD3d at 666). As set forth above, the additional language included in the RPAPL 1304(1) notice in this case furthered these general legislative purposes.
Indeed, the additional language contained at the end of the RPAPL 1304 notice provided information which, if applicable, superseded the statutorily mandated language. The additional language was clear and unambiguous, and did not serve to negate, confuse, or otherwise impair any of the information that the statute requires to be included in the notice to the homeowner (see id. § 1304[1]). The additional language was relevant to, and clarified, the statutorily mandated language. Where, as here, the plain language of the statute has not been violated, and where the spirit and intent of the law has not been frustrated, the statute should not be extended in a way that transforms every inconsequential addition into a new dispositive issue. "That seems to [me] to be the common sense of the matter; and common sense often makes good law" (Peak v United States, 353 US 43, 46 [Douglas, J.]).
Since the additional language in this case was relevant to, and clarified, the warnings required by RPAPL 1304(1), it did not constitute a separate "mailing or notice" (id. § 1304[2]), and was properly included in "[t]he notice[ ] required by this section" (id.). The Supreme Court's failure to strictly construe the plain language of the statute in this case constituted legal error. Under the circumstances, the order must be reversed insofar as appealed from, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the homeowners, for summary judgment dismissing the homeowners' second, third, and fourth affirmative defenses, and for an order of reference must be granted, and the borrower's cross motion for summary judgment dismissing the complaint insofar as asserted against him must be denied."
"The father and the mother, who have one child, were divorced in December 2006. The father's child support obligation was set at the sum of $1,500 per month.
In the instant proceedings, the mother petitioned to recover child support arrears, and the father petitioned for a downward modification of his child support obligation. After a hearing on the parties' petitions, the Support Magistrate determined that the father willfully failed to pay child support, and calculated the amount of child support arrears to be the sum of $39,225.59 as of November 13, 2019. The Support Magistrate also granted the father's petition for a downward modification of his child support obligation, and set a new obligation of $978 per month.
The father filed objections to the Support Magistrate's orders on the ground that his child support arrears should have been capped at the sum of $500 because his income fell below the poverty income guidelines for a single person as reported by the United States Department of Health and Human Services (see Family Ct Act § 413[1][g]). The mother, inter alia, objected to the downward modification of the father's child support obligation. In the order appealed from, the Family Court, among other things, denied the father's objections, granted certain of the mother's objections, denied the father's petition for a downward modification of his child support obligation, and directed entry of a money judgment in favor of the mother and against the father in the principal sum of $40,327 for child support arrears. The father appeals.
As the Family Court correctly found, the father earned a sufficient amount during 2016 so that the $500 limitation on child support arrears provided by Family Court Act § 413(1)(g) does not apply (see Matter of Giordano v Giordano, 259 AD2d 701 [1999]). The record demonstrated that the father's characterization of the monies he received from the child's paternal grandfather as loans was incredible, and the paternal grandfather's testimony contradicted the father's claim that he fell 994*994 below the poverty income guidelines in 2016 (see Matter of Martin v Cooper, 96 AD3d 849 [2012]).
In 2017, the father worked part-time as a store clerk, and part-time as a commercial real estate agent, and maintained a real estate license held by a commercial real estate broker. At the hearing, the father first testified that he was able to pay his living expenses through the commissions he received, but later testified that he was able to pay his living expenses through money he received from the child's paternal grandfather. The Family Court noted the inconsistencies in the father's testimony, and concluded that he had "no credibility." Accordingly, the evidence failed to establish that the father's income fell below the poverty level in 2017, and there was an insufficient basis to cap his support arrears at $500 (see Family Ct Act § 413[1][g])."
See Senate Bill S2628, signed by Governor on November 8, 2021.
"The first issue is whether this Court may take judicial notice of loan documents recorded on ACRIS. "To be sure, a court may take judicial notice of facts which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy" (Hamilton v Miller, 23 NY3d 592, 603 [2014], quoting People v Jones, 73 NY2d 427, 431 [1989] [internal quotation marks omitted]). The Court has discretion to take judicial notice of public documents that are generated in a manner which assures their reliability such as material derived from official government websites (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 19 [2d Dept 2009]). The law ". . . recognizes generally two disjunctive circumstances where information may be judicially noticed. The first is when information "rests upon knowledge . . . [that is] widely accepted" (Ptasznik v Schultz, 247 AD2d 197, 198 [2d Dept 1998] [emphasis added]) such as calendar dates, geographical locations, and sunrise times (id. at 199). The second "rests upon . . . sources [that are] widely accepted and unimpeachable" (id. at 198 [emphasis added]), such as reliable uncontested governmental records" (Kingsbook, 61 AD3d at 19). Here, although the Security Instrument was recorded against the property and available on ACRIS, it is not the kind of information that rests upon knowledge that is widely accepted or sources widely accepted and unimpeachable. Therefore, the Court declines to take judicial notice of the loan documents filed on ACRIS...."
"DECISION & ORDER
ORDERED that the interlocutory judgment is modified, on the law, by deleting the provision thereof directing that the plaintiff, during her periods of parental access, "shall not take the child to a place or expose the child to an activity that violates rules, practices, traditions and culture of the child's Orthodox Jewish Chasidic Faith"; as so modified, the interlocutory judgment is affirmed insofar as appealed from, without costs or disbursements.
The parties were married in 2005. There is one child of the marriage, born in 2006. The child was raised in accordance with the parties' Orthodox Jewish Chasidic faith and attended an Orthodox Chasidic yeshiva from the age of two. In March 2015, the plaintiff commenced this action for a divorce and ancillary relief. The plaintiff identifies as a member of the LGBTQ community, and considers herself an Orthodox Jew. Following a trial on the issues of custody and parental access, the Supreme Court issued a decision awarding the defendant sole custody of the child, with the plaintiff to have specified periods of parental access. The court imposed certain restrictions on the plaintiff's periods of parental access, including a requirement that: "The [plaintiff] shall not take the child to a place or expose the child to an activity that violates rules, practices, traditions and culture of the child's Orthodox Jewish Chasidic Faith. Thus, the [plaintiff] shall ensure that the child is able to abide by the laws and rules of the Shabbat, Jewish Holidays, Kosher Chasidic and Glatt Kosher food requirement, and the rules of the Mosdos Chasidic Square."
An interlocutory judgment dated February 13, 2020, was issued, incorporating the provisions of the decision after trial. The plaintiff appeals, challenging only the Supreme Court's failure to award her decision-making authority on the issue of the child's education, and the first sentence of the restriction quoted above.
Ordinarily, absent an agreement, the custodial parent has the right to make educational decisions for a child (see Matter of De Luca v De Luca, 202 AD2d 580, 581). Nevertheless, "it may be appropriate, depending upon the particular circumstances of the case, to award some custodial decision-making authority to the noncustodial parent" (Matter of E.D. v D.T., 152 AD3d 583, 584 [internal quotation marks omitted]; see Cohen v Cohen, 177 AD3d 848, 851-852; Chamberlain v Chamberlain, 24 AD3d 589, 591). Here, there was a sound and substantial basis for the Supreme Court's determination to award the defendant decision-making authority on the issue of the child's education (see Matter of E.D. v D.T., 152 AD3d at 584). The child had been enrolled in the same yeshiva since he was two years old, where he was doing well socially and academically, and the plaintiff failed to establish that her desired plan of enrolling the child in a different type of yeshiva or a public school would be in the child's best interests (see Weisberger v Weisberger, 154 AD3d 41, 54).
However, we agree with the plaintiff that the Supreme Court's direction that, during her periods of parental access, she "shall not take the child to a place or expose the child to an activity that violates rules, practices, traditions and culture of the child's Orthodox Jewish Chasidic Faith" must be vacated.
In the absence of a written agreement, the custodial parent may determine the religious training of a child (see Cohen v Cohen, 177 AD3d at 853; Matter of Cook v Rabinowitz, 5 AD3d 594, 594; Matter of De Luca v De Luca, 202 AD2d at 581). Consistent with the children's best interests, courts may properly direct noncustodial parents, during periods of parental access, to respect the children's religious beliefs and practices and make reasonable efforts to ensure the children's compliance with their religious requirements (see Cohen v Cohen, 177 AD3d at 853; Matter of Indig v Indig, 90 AD3d 1050, 1051; Matter of Ervin R. v Phina R., 186 Misc 2d 384, 393 [Fam Ct, Kings County]). However, as this Court explained in Weisberger v Weisberger (154 AD3d at 53), a court oversteps constitutional limitations when it purports to compel a parent to adopt a particular religious lifestyle. "To the contrary, `[i]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise'" (id., quoting Lee v Weisman, 505 US 577, 587; see Cohen v Cohen, 182 AD3d 545, 547). A religious upbringing provision "should not, and cannot, be enforced to the extent that it violates a parent's legitimate due process right to express oneself and live freely" (Weisberger v Weisberger, 154 AD3d at 53, citing Obergefell v Hodges, 576 US 644, Lawrence v Texas, 539 US 558, 574, and Planned Parenthood of Southeastern Pa. v Casey, 505 US 833, 851). Thus, where the effect of a religious upbringing provision is to compel a parent to himself or herself practice a religion, rather than merely directing the parent to provide the child with a religious upbringing, the provision must be stricken (see Cohen v Cohen, 182 AD3d at 547; Weisberger v Weisberger, 154 AD3d at 53).
Here, the challenged restriction does not expressly require the plaintiff to herself comply with the rules of the child's Orthodox Jewish Chasidic faith during periods of parental access. Nonetheless, we agree with the plaintiff that the breadth of the provision in forbidding her to "expose" the child to any activities which violate the child's Orthodox Jewish Chasidic faith has the same effect as the provisions this Court struck down in Cohen v Cohen (182 AD3d at 547) and Weisberger v Weisberger (154 AD3d at 53). The only way for the plaintiff to ensure her compliance with the restriction is for her to comply with all religious requirements of the child's faith during her periods of parental access, lest she "expose" the child to activities not in keeping with those religious requirements. The defendant's testimony at the trial supports this conclusion and demonstrates that he expected the plaintiff to "conduct herself in [the child's] presence according to the rules" of the child's faith. The defendant was especially concerned that the child would be exposed to people involved in a "gay lifestyle" and testified that, if the plaintiff became involved in a relationship with or married a woman, he would request that the partner not be present during periods of parental access because same-sex relationships are inconsistent with Chasidic religious principles. Such restrictions on a parent's ability to "express oneself and live freely" go beyond requiring a noncustodial parent to support and enable the child's religious practices, and impermissibly infringe on the noncustodial parent's rights (Weisberger v Weisberger, 154 AD3d at 53).
The plaintiff does not challenge the Supreme Court's direction that, during periods of parental access, she "shall ensure that the child is able to abide by the laws and rules of the Shabbat, Jewish Holidays, Kosher Chasidic and Glatt Kosher food requirement, and the rules of the Mosdos Chasidic Square." That provision effectively addresses the plaintiff's obligation to ensure the child's compliance with his religious requirements during her periods of parental access (see Cohen v Cohen, 177 AD3d at 853). Accordingly, we modify the interlocutory judgment to delete the challenged restriction.
Motion by the respondent to strike stated portions of the appellant's reply brief on an appeal from an interlocutory judgment of the Supreme Court, Kings County, dated February 13, 2020, on the ground that they refer to matter dehors the record. By decision and order on motion of this Court dated June 28, 2021, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is
ORDERED that the motion is denied.
DILLON, J.P., HINDS-RADIX, CHRISTOPHER and ZAYAS, JJ., concur."
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"JEFFREY S. SUNSHINE, J.
The parties were married on February 21, 2017. Plaintiff commenced this action for divorce on August 20, 2019. He is a police officer employed by the New York Police Department and owns and operates a coffee shop. Defendant is employed full-time at a grocery store. She appears in this litigation with the services of a Spanish interpreter. There is one (1) child of the marriage, a daughter, who is currently 4 years old. There have been extensive delays in this matter in part due to plaintiff's late appearances, non-appearances and failure to cooperate with discovery and court orders. He has consistently impeded the judicial process and his actions, and inaction, have resulted in substantial motion practice.
Plaintiff filed an Order to Show Cause (motion sequence #4) on April 29, 2021[1] seeking an Order of the Court:
"a. Vacating the existing order for the Plaintiff's payment of spousal support/maintenance dated December 21, 2020; b. Determining that Plaintiff has paid spousal maintenance in accordance with statutory guidelines which is 4 to 9 months and that no further payment of maintenance beyond the guidelines is required; c. Vacating the order dated December 21, 2020 because it puts Plaintiff below the self-support reserve, which is $17,226.00 for 2020; d. Vacate arrears which reflect payment of maintenance beyond the terms set by statutory guidelines which is 4 to 9 months;e. SCU be directed to discontinue the collection of maintenance. f. Directing that the child of the parties, M.D. born on [REDACTED] temporarily reside with the Plaintiff for the pendency of the proceedings. g. Ordering a forensic mental health evaluation of both the Defendant and the child. Granting such other and further relief as to this Court may seem just and proper."
Plaintiff filed a Notice of Motion (motion sequence #6) on April 28, 2021 seeking an order of the Court "granting the Plaintiff an order quashing the Defendant's Deposition Subpoena and Subpoena Duces Tectum to (a certain individual and a corporation) per CPLR Section 2304, together with such other and further relief as to this Court may seem just and proper."
Defendant filed a notice of cross-motion (motion sequence #7) on May 13, 2021 seeking an Order:
"Pursuant to CPLR 308 (2) permitting Defendant to serve a Deposition Subpoena for Testimony and Production of Documents upon Plaintiffs Tax Preparer (name omitted) employed at (name omitted), by serving a person of suitable age and discretion at (name omitted). and then mailing a copy of the Subpoena to (name omitted) at (name omitted) in an envelope which does not show that it is from an attorney.
The documents which will be noticed for production are:
1. Regarding (Name Omitted) produce:
a. The Accountant work papers in connection with the preparation of the 2018 and 2019 (Name Omitted) partnership tax returns and K-ls; and
b. Copies of the documents used to prepare the 2018 and 2019 (Name Omitted) partnership tax returns and K-ls, whether said documents were electronic, digital, paper or other format.
c. Copies of the emails exchanged between Enmanuel D. and (name omitted) and attachments to those emails in connection with the preparation of the 2018 and 2019 (Name Omitted) partnership tax returns and K-l's; and
2. Regarding Plaintiff Enmanuel D.2019 and 2020 personal tax returns, produce:
a. a true copy of Plaintiff Enmanuel D. Federal and New York State tax returns filed in 2019, and any 1099-R for 2019 that was provided to (name omitted).
and
b. A true copy of Plaintiff Emmanuel D. filed 2020 personal Tax Returns, if filed.
and granting such other and further relief as the Court may deem just and proper."
Plaintiff represents that he earned gross salary as a police officer of $106,853.04 in 2019 and $107,793 in 2020; however, he contends in his affidavit dated April 22, 2021 that, because of income garnishments: "I only had net take home pay of $28.19 on my January 2021 NYPD paystub, net take home pay of $14.55 on my August 21, 2020 paystub, and $39.74 on my August 8, 2020 Paystub". He argues that after the numerous income garnishments he is subject to his income falls below the self-support level of $17,388 established by the New York State Office of Temporary and Disability Assistance Division of Child Support Services and, therefore, he contends he should not have to pay pendente lite maintenance.[2]
Defendant avers that until March 15, 2020, immediately before the COVID-19 pandemic shelter-in-place policies went into effect in New York City, she worked at a grocery store. She avers that she is currently on an extended "leave of absence" from that job because she had to be at home with the parties' child, who is currently four (4) years old. Defendant attached her 2020 and 2019 personal income tax returns reporting gross 2020 income of $26,025, inclusive of pandemic unemployment; and 2019 gross income of $20,416.
Plaintiff argues that defendant is underemployed: he represents that the defendant is a licensed attorney in Colombia and that she should secure employment in the legal field in New York City as a legal assistant. It is undisputed that defendant participates in court proceedings utilizing a Spanish interpreter. Plaintiff has not previously challenged defendant's representation that she needs interpreter services to understand the proceedings conducted in English. He contends that between her income and the child support he pays for the parties' child that defendant enjoys gross income exceeding the net income he has for himself after his income garnishments. Plaintiff's contention that child support is income is misplaced and not supported by law.
Pursuant to the Court's order of January 28, 2020, plaintiff was ordered to pay defendant $475.00 monthly for pendente lite spousal maintenance and $1,400 monthly for pendente lite basic child support. He avers that these arrears are due to an inability to pay, not an unwillingness to pay. Defendant contends that plaintiff almost immediately stopped paying pendente lite maintenance after the Court issued the January 2020 pendente lite support order. Plaintiff concedes that, as of the December 29, 2020 statement from the Support Collection Unit (SCU) his total support arrears is $4,300.02. Defendant has made enforcement applications to the Court because plaintiff has failed to comply with his court-ordered pendente lite maintenance obligation. As a result of his continued and blatant non-compliance, on December 21, 2020 this Court issued a written order directing SCU to "immediately begin collecting the court-ordered spousal support and shall calculate any arrears". As such, the Court notes that it is disingenuous for plaintiff to contend that SCU increased his monthly deductions in December 2020: it is clear from the record that SCU did so in compliance with this Court's written order.
Plaintiff requests that the Court immediately terminate his pendente lite maintenance obligation, arguing that he should not still be paying pendente lite spousal support 26 months after filing for divorce when the parties were only married for 16 months. According to plaintiff, the New York State Guideline Duration of Post-Divorce Maintenance calculation provides a guideline duration of maintenance of 4 months to 9 months.
Plaintiff asserts that he is unable to pay court ordered pendente lite maintenance because he is paying child support for two (2) children — the child of this marriage and another child from a prior marriage. Plaintiff contends that he is paying child support for each child at a rate of 17% of his income; however, he alleges that he voluntarily pays $1,000 monthly to support that child from a prior relationship where there is no court order.
Plaintiff contends that his pendente lite support obligations, income garnishments resulting from civil judgments and his own living expenses have forced him into debt and that he is at risk of declaring bankruptcy. In his affidavit dated April 22, 2021, plaintiff avers that his income is being used to support others and that he does not have sufficient income to support himself and that he is, in effect, living under the self-support reserve. He contends that as a result, in part, of his pendente lite support arrears, SCU has the authority to seek to suspend his driver's license and, he contends, if SCU does so he may lose his job with the NYPD and then he will be unable to pay any child support for either of his children.
Defendant argues that plaintiff has a long history of engaging in financial practices designed to defraud creditors and obfuscate his financial resources and that his representations of financial troubles are not truthful. Plaintiff, in his affidavit dated April 22, 2021, concedes that he has changed banks multiple times during the last few years attempting to avoid seizures of assets resulting from his indebtedness.
Defendant states that Plaintiff incorrectly sets forth and relies upon the duration requirements for Post-Divorce Maintenance found at DRL 236 B(6) rather than the correct applicable time frame for the duration of Temporary Spousal Maintenance found at DRL 236 B(5-a) (f) and (g). DRL 236 B(5-a) (f) and (g) provides as to duration of Temporary Maintenance and the Courts discretion: The court shall determine the duration of temporary maintenance by considering the length of the marriage; and Temporary maintenance "shall terminate no later than the issuance of the judgment of divorce or the death of either party, whichever occurs first [emphasis added by the Court]".
Defendant argues that it is well-settled in New York that, except for the most egregious temporary support orders, the remedy for perceived inadequate pendente lite awards is a speedy trial and that based on his failure to comply with discovery demands and his concession that he purposefully concealed at least one bank account to obfuscate his finances, he should not be permitted to seek a downward modification of his pendente lite support obligation. She argues that but for plaintiff's delays and failure to comply with discovery this matter would have been completed many months ago by settlement or after a trial so it is improper for plaintiff to engage in dilatory tactics and then attempt to avoid his pendente lite support obligations.
Defendant disputes plaintiff's representation that his pendente lite support obligations result in his inability to financially support himself or that they are a significant contribution to his decreased paycheck take-home pay: she represents that in making this representation, plaintiff failed to disclose to the Court that he defers a significant portion of his NYPD income each pay period, which does not appear in the "net pay" portion of his paystub. Plaintiff's 2019 and 2020 W-2s show that he continues to contribute directly to his deferred compensation savings accounts: deferred savings of $17,273 in 2019; and $9,887 in 2020. Defendant argues that if plaintiff could defer thousands of dollars and still pay his travel, restaurant and other discretionary personal bills shown on his attached bank statements then his representation that he is, in effect, "broke" is disingenuous. She contends that plaintiff defers as much of his income as he does to avoid collection by his creditors, including by the Support Collection Unit.
Additionally, she argues that each year from 2017 to present his tax returns show that he had the NYPD significantly over-withhold his Federal, State and City income taxes so that he receives sizable tax refunds each year. In support of this representation, defendant provided plaintiff's personal tax returns showing tax refunds for overpayment as follows: (i) 2017 Federal and State Tax Refund total: $20,843; (ii) 2018 Federal and State Tax Refund total: $14,737; (hi) 2019 Federal and State Tax Refund total: $12,089. Defendant represents that although plaintiff has not yet filed his 2020 personal tax returns, a comparison of his 2019 W2 and 2020 W2 show that his tax withholding increased.
Defendant argues that plaintiff is taking loans against his pensions in violation of the automatic orders. Plaintiff contends that without loans from financial institutions, against his pensions and additional financial support from his family and friends he would not be able to meet his financial obligations or pay his daily living expenses. Plaintiff argues that due to the SCU garnishments he was unable to continue repayments toward his pension plan loans in January 2021.
In addition to his alleged failure to comply with financial disclosure, defendant contends that plaintiff has failed to provide other basic business and personal records relating to his personal lifestyle expenditures, including his Passport, at the time of making of the instant motion. Plaintiff maintains the position that production of his passport is irrelevant to this financial litigation. Defendant avers that at his deposition on April 16, 2021, plaintiff used his United States Passport for identification; however, when asked to produce the passport for disclosure purposes, he refused. Defendant argues that examination of plaintiff's passport would document his travel at times when he claimed he had no financial resources for personal expenditures, including seeking to terminate his pendente lite maintenance and to decrease his child support obligation. During oral argument, the Court directed plaintiff's passport to be uploaded to NYSCEF. The Court notes that plaintiff's passport, inter alia, reveals that he traveled to least three (3) international destinations, including two (2) trips to the Dominican Republic and one (1) trip to Costa Rica, between February 2021 and April 2021 during the same time when he claims he was unable to afford pendente lite maintenance.
In addition to his income as a NYPD police officer, defendant concedes that he opened a coffee shop during the marriage, which he continues to operate. Plaintiff states that the coffee shop has never been profitable and that the losses have increased during the pandemic. Plaintiff states that when he opened the coffee shop he wanted defendant to work there but that shortly after he started the business defendant, in effect, "left the marriage".
According to the plaintiff, in 2019 the coffee shop reported losses of -$33,699.00. He also contends that a $30,698.18 civil lawsuit judgment against him related to coffee shop obligations is currently being garnished from his salary at the sum of $448.42 every pay period.
Plaintiff, through counsel, on the record conceded that he opened a bank account in New Jersey at Valley Bank in his brother-in-law's name and using his brother-in-law's Social Security number to use for coffee shop transaction specifically to avoid creditors. Defendant notes that plaintiff allegedly did this in the same month that he commenced this divorce action: she also contends that plaintiff diverting his business income to the bank account in his brother-in-law's name violates the Automatic Orders. She asserts that plaintiff did not include this Valley Bank account on his December 2019 Statement of Net Worth and then he denied the account existed during numerous court conferences until January 28, 2021. She contends that his failure to disclose this account evidences a clear intention to conceal this financial account from her and from the Court. In effect, she contends that plaintiff would not try so hard to conceal this account if there was nothing to "hide". Plaintiff has argued at various times that he does not have direct access to this account inasmuch as it is not held in his name.
Defendant argues that Banking Law requires all banking institutions to provide their account holders with their own bank account and credit card records and under Federal and State banking laws bank statements, canceled checks and deposited items must be retained by the banks and available to the account holder for a fee, not only in matrimonial actions but in tax audits and any other circumstance where the customer seeks the records. She avers that Federal banking laws mandate that bank account records be kept and available to account holders for at least five (5) years, yet plaintiff never obtained the Valley Bank account missing account records nor did he establish that his brother-in-law made any efforts to do so.
Defendant questions the losses reported by plaintiff on the business tax returns. She contends that plaintiff, without substantiation, maintains that the coffee shop has never been profitable and that only his NYPD income should be considered on this motion and for CSSA support formula purposes. Plaintiff's 2019 business tax return reported gross receipts of $319,700 with expense write-offs totaling $352,409 creating an alleged business loss, for tax purposes, of -$33,699; however, plaintiff has refused to disclose during discovery documents needed to determine the accuracy of his 2019 business tax return entries, including documentation supporting his alleged business expense deductions.
Defendant took plaintiff's deposition on April 16, 2021 yet, she alleges, the Deposition Document Production Rider has not been complied with and she asserts any supporting proof of the substantial loss reported on the tax returns is pivotal to determining plaintiff's true income. Because plaintiff has refused to provide these documents, defendant contends that she had no option but to subpoena the records and seek to depose the accountant.
Defendant avers that despite his assertion that he has provided "hundreds" of pages of documents, plaintiff has not produced the 2019 business bank account records for the period from August 1, 2019 to December 30, 2019; refusing to disclose canceled checks for that account; refusing to produce business invoices and Venmo statements; and not producing other such business records to substantiate the business deductions claimed on his 2019 tax return. She contends that these records are necessary to test and substantiate the income and deductions reported on plaintiff's 2019 business tax return. Defendant contends that when asked at his deposition for the supporting records which presumably were provided to his accountant prior to completion of his 2019 business tax return, plaintiff allegedly stated that it was, in effect, "too time consuming".
Defendant posits that plaintiff has been non-compliant with her discovery demands as to financial accounts that "matter" and that plaintiff has "picked and chosen" what he produced to mislead the Court and to obfuscate his true income and lifestyle. She contends that she has repeatedly attempted to enforce her discovery demands, including having moved for contempt and other enforcement remedies in June 2020.[3] Defendant argues that plaintiff's non-compliance with financial disclosure amounts to the level of a finding he has unclean hands and, therefore, he should be precluded from objecting to procedural objections to her subpoenas. It is well-established that full financial disclosure is a basic tenet of matrimonial litigation in New York: DRL 236B (4) mandates that: "In all matrimonial actions and proceedings in which alimony, maintenance or support is in issue, there shall be compulsory disclosure by both parties of their respective financial slates".
On April 13, 2021, defendant served a Deposition Subpoena and Subpoena Duces Tectum for "M.A." Defendant filed an Affidavit of Service on April 15, 2021 providing that these subpoenas were served on N.D., the manager at the tax preparation business, not on M.A. who is an employee of that business. Plaintiff argues that the Court should find that the Deposition Subpoena and Subpoena Duces Tectum served by defendant are procedurally defective pursuant to CPLR 2303 because they were not personally served on M.A. He further contends that subpoenas are unnecessary because he previously provided the 2018 and 2019 partnership tax returns, copies of his personal tax returns, and copies of his 2019 and 2020 W-2s to defendant. Defendant contends that plaintiff has not provided her with full access to the alleged documents supporting his claimed business expenses that resulted in his reported business losses at the coffee shop. Plaintiff does not directly dispute that he has not provided all supporting documents associated with his business tax return filings; however, he argues that additional discovery is unnecessary because he has provided "hundreds of pages" of financial documents to defendant in discovery. He asserts that his 2020 tax return has not been filed yet but that he will provide it to defendant when it is filed. Plaintiff represented that he filed extensions of his 2020 business tax returns until October 15, 2021. Said copies should be provided by October 21, 2021. They must be accompanied by a sworn affidavit that they are a true and accurate copy given the allegations herein.
Plaintiff filed a notice of motion seeking to quash defendant's deposition subpoena and subpoena duces tectum for plaintiff's tax accountant [motion sequence #6]. The Court notes that plaintiff's motion to quash is itself procedurally defective for failure to give sufficient notice as provided in CPLR 2214. Plaintiff's notice of motion was filed on April 28, 2021 and noticed for the following day, April 29, 2021. CPLR 2214(b) requires:
(b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard [emphasis added]. Answering affidavits shall be served at least two days before such time. Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least sixteen days before such time so demands; whereupon any reply or responding affidavits shall be served at least one day before such time.
In her cross-motion [motion sequence #7], defendant, requests, in effect, that the Court retroactively authorize the subpoenas to be served by delivery to a person of suitable age and discretion at the witness' place of business and mailing to the witness at her place of business, in accordance with CPLR 308 (2) in lieu of personal service based upon plaintiff's non-compliance.
Defendant argues that she needs the copies of returns and substantive underlying documents from the accountant because the plaintiff has a history of misrepresentation on his tax returns: in support, she argues that plaintiff conceded during his deposition that he filed a joint 2016 tax return as "married filing jointly" although he was not married.[4] Defendant argues that plaintiff also misreported on his 2019 personal tax returns because he failed to report his 1099-R income of $60,000.
In support of his request for temporary custody, plaintiff avers that on numerous occasions the parties' daughter has stated that the paternal grandmother is "not family". Plaintiff contends that defendant is trying to alienate their daughter from him and his family. Plaintiff further avers that defendant has manufactured a storyline about their daughter sleeping with him and his girlfriend, trying to "program their daughter with lies".
He also accuses defendant of interfering with his parenting time claiming that defendant refused him access to their daughter during the week of February 15, 2021 and the week of February 22, 2021. He avers that defendant, in effect, "made excuses" at that time to keep him away from their daughter.
In her affidavit in opposition dated May 12, 2021, defendant vehemently disputes plaintiff's allegation that she has interfered with the child's time with him. She avers that she has regularly and frequently adjusted and been flexible to accommodate plaintiff's frequent requests to change the access schedule. She avers that she has not denied plaintiff access to the child and that she has encouraged him to follow the access schedule set forth by the parties' January 2020 So-Ordered Stipulation and that even when he arrives hours late, she does not deny him access to the child. In support, defendant represents that on Tuesday, March 23, her lawyer received an e-mail from plaintiff's attorney stating that plaintiff was canceling, without explaining any reason, his visits with the child for the weeks between March 22 and April 4 and from the date of his last access time on Thursday March 18, until Thursday, April 8, when he picked the child. She contends that in those three (3) weeks plaintiff made no attempt to have any contact with the child. Defendant further posits that on April 9, 2021, plaintiff failed to arrive for his access time at 1:00 p.m. and that because she had a medical appointment at 2:00 p.m. she had to take the child with her unexpectedly and that the plaintiff finally showed up for his parenting time at 4:00 p.m. — three (3) hours late — allegedly because he was out shopping. Defendant contends that these are just a few examples of plaintiff's course of conduct related to exercising his parenting time.
Defendant avers that on Mother's Day 2021, the regular schedule was for Plaintiff to be with the child from 1:00 p.m. to 6:00 p.m. on Sunday and the same time on Monday and in order to not get into the difficulties of changed access times, the Defendant did not ask for any change on Mother's Day as she would at least have the morning together with the child. The Defendant further states that the Plaintiff used Mother's Day to seek changes to the schedule and when the Defendant stuck with the schedule Plaintiff decided to intimidate and bully the Defendant by emailing about this directly to all of the attorneys to make himself out as the victim. Defendant states that Plaintiff then failed to appear for his May 10 parenting time, even though that time, from 1:00 p.m. to 6:00 p.m., was scheduled and discussed at length in the very e-mail he had sent directly to the attorneys.
Defendant contends that on Monday, January 25, 2021 plaintiff was not working, according to his NYPD schedule, so in compliance with the parenting time schedule the child was waiting for him at 1:00 p.m. but at 1:15 p.m. when he had not arrived and that when she texted him to ask if he was coming the plaintiff allegedly answered that he was working and that he would notify her about his "new" schedule; however, plaintiff then said that he would pick-up the child in 10 minutes. Defendant says that plaintiff then returned the child an hour later than the parenting time schedule specified. She contends, in effect, that these unpredictable and unilateral changes by plaintiff are disruptive to her and confusing for the child.
Defendant posits that less than a week later, on January 31, the same issue occurred: 1:15 p.m. came, she texted plaintiff about whether he was coming for his 1:00 p.m. pick-up time and around 3:00 p.m. he responded that he "was sleeping" and he eventually picked up the child at 4:00 p.m., three (3) hours late, and then returned the child around 8:30 p.m. without her knowledge or consent, in effect, unilaterally making up the time she voluntarily did not exercise earlier in the day and at the expense of the child's routine and schedule. Defendant avers that a similar situation occurred on February 7, 2021 when plaintiff arrived at 1:30 p.m. for his visitation which was scheduled to start at 10:00 a.m. without prior notification or her consent.
Defendant alleges that in mid-February plaintiff threatened not to take the child for her regular parenting time unless defendant agreed to substantial changes to the schedule for the following week. Defendant contends that when she said she needed time to review the proposed new schedule he left without the child even though the child was at the door ready to go with him.
Defendant avers that again on March 9, plaintiff did not return the child at 6:00 p.m. pursuant to the parenting schedule and that when she texted him to find out where he was he allegedly responded that he was keeping the child for an overnight and then did not answer defendant's in-coming calls. Defendant states that she did not pack the child's regular overnight bag that day and that plaintiff did not ask for the overnight bag at the parenting exchange providing no hint that he was not returning the child at 6:00 p.m. as scheduled nor had there been any discussion about him keeping the child overnight. She avers that she was distraught because she did not know where he was living so she went to her local police precinct and filed a report of plaintiff's violation of the Court's Access Order and when the Precinct Captain called plaintiff he allegedly reported that he was in "upstate New York" with the child. Defendant avers that the Captain directed plaintiff to immediately return the child to the precinct and plaintiff arrived approximately two (2) hours later with the child.
The Defendant posits that she has made every effort to include Plaintiff, but he shows no interest in the child's school and other activities and she encourages the child's time with the Plaintiff no matter how late or erratic his pick-up and return times have been. She contends that she has kept plaintiff advised about school and medical issues in the hope that he will participate and show some interest, but he does not.
Defendant posits that the plaintiff's repeated failure to pick-up the child on time evidences his disinterest in daily parenting. She also contends that plaintiff makes almost no attempts to have contact or involvement with the child when he is not exercising his parenting time with her. She contends that her attempts to gain co-parenting support from plaintiff result in plaintiff ignoring her or verbally abusing her. She also avers that she has asked the plaintiff not to confuse the child by not interfering with the paternal grandmother's alleged insistence that the child call her "mother".
Defendant further alleges that the plaintiff continues to allow the child to sleep with him and his girlfriend, despite the Court Order dated August 14, 2020 which prohibits this.
The Defendant posits that the child should no longer be bathing with her father. The Defendant further posits that her attorney notified the other attorneys at the time requesting that plaintiff not bathe with the child and ensure that his privacy is preserved whenever the child may be present.
Defendant avers that plaintiff does not involve himself even in the child's speech therapy to address the child's stuttering. She avers that based on advice of the child's pediatrician, her teacher and her school principal, the child was evaluated which resulted in a recommendation that she have speech therapy. Defendant contends that she sent plaintiff the resume of a highly credentialed therapist who takes their insurance, but that plaintiff would not approve the speech therapy and did not want his contact information given to the therapist. Defendant contends that she told the plaintiff that she was open to another professional evaluation for the child's stuttering if he would arrange it but avers that he never responded.
Plaintiff did not file any response to these representations in defendant's affidavit. The attorney for the child did not file any affirmation in response to plaintiff's application or address these allegations on the record.
Plaintiff requests that this Court order a forensic mental health evaluation of the defendant and the child. He does not indicate that this proposed forensic evaluation would also include an evaluation of himself. In support of this application, plaintiff avers, in his affidavit dated April 22, 2021, that during a parenting exchange defendant "attacked" his vehicle "hanging from the open window screaming and causing a scene" in front of their daughter and that he should be granted temporary custody while a forensic evaluation is conducted based on her conduct.
Defendant denies plaintiff's allegations that she "attacked" his car at any time. She contends that on one occasion plaintiff arrived to pick-up the parties child and she saw he was driving his girlfriend's car. She avers that she approached the car hoping to introduce herself to the girlfriend in an attempt to "ease" things between them and find common ground because the girlfriend has three (3) young children. She avers that when she approached the car a young girl — approximately 4 or 5 years old — stood on the backseat and talked to her because she was not secured in a car seat restraint. Defendant alleges that plaintiff, while carrying the parties' child, called the Defendant "stupid" and told her to stay out of "his business". The Defendant avers that the plaintiff placed their child next to the other child in the car without child seats and rushed off.
Defendant's counsel opposes plaintiff's request for a forensic examination of defendant and the parties' child. She contends that plaintiff has not raised any legitimate concerns or alleged any situations that may warrant a forensic examination. She argues that a forensic of the child which would unnecessarily involve the child in this litigation. She also argues that forensic examinations are expensive and questions how plaintiff, who is the monied spouse, would pay for such an examination where he — in the same motion — avers that he cannot afford to pay pendente lite maintenance. Defendant requests that if the Court orders a forensic evaluation that both parties be evaluated not just, as plaintiff requests, that it she and the child be evaluated.
The attorney for the child does not support a forensic evaluation of the family.
Domestic Relations Law Section 236(5c) states:
"c. Where the payor's income is lower than or equal to the income cap, the court shall determine the guideline amount of temporary maintenance as follows:
(1) Where child support will be paid for children of the marriage and where the payor as defined in this subdivision is also the non-custodial parent pursuant to the child support standards act:
(a) the court shall subtract twenty-five percent of the payee's income from twenty percent of the payor's income.
(b) the court shall then multiply the sum of the payor's income and the payee's income by forty percent.
(c) the court shall subtract the payee's income from the amount derived from clause (b) of this subparagraph.
(d) the court shall determine the lower of the two amounts derived by clauses (a) and (c) of this subparagraph.
(e) the guideline amount of temporary maintenance shall be the amount determined by clause (d) of this subparagraph except that, if the amount determined by clause (d) of this subparagraph is less than or equal to zero, the guideline amount of temporary maintenance shall be zero dollars.
(f) temporary maintenance shall be calculated prior to child support because the amount of temporary maintenance shall be subtracted from the payor's income and added to the payee's income as part of the calculation of the child support obligation.
(2) Where child support will not be paid for children of the marriage, or where child support will be paid for children of the marriage but the payor as defined in this subdivision is the custodial parent pursuant to the child support standards act:
(a) the court shall subtract twenty percent of the payee's income from thirty percent of the payor's income.
(b) the court shall then multiply the sum of the payor's income and the payee's income by forty percent.
(c) the court shall subtract the payee's income from the amount derived from clause (b) of this subparagraph.
(d) the court shall determine the lower of the two amounts derived by clauses (a) and (c) of this subparagraph.
(e) the guideline amount of temporary maintenance shall be the amount determined by clause (d) of this subparagraph except that, if the amount determined by clause (d) of this subparagraph is less than or equal to zero, the guideline amount of temporary maintenance shall be zero dollars.
(f) if child support will be paid for children of the marriage but the payor as defined in this subdivision is the custodial parent pursuant to the child support standards act, temporary maintenance shall be calculated prior to child support because the amount of temporary maintenance shall be subtracted from the payor's income pursuant to this subdivision and added to the payee's income pursuant to this subdivision as part of the calculation of the child support obligation."
Domestic Relations Law Section 236(5e-n) states:
e. Notwithstanding the provisions of this subdivision, where the guideline amount of temporary maintenance would reduce the payor's income below the self-support reserve for a single person, the guideline amount of temporary maintenance shall be the difference between the payor's income and the self-support reserve. If the payor's income is below the self-support reserve, there shall be a rebuttable presumption that no temporary maintenance is awarded.
f. The court shall determine the duration of temporary maintenance by considering the length of the marriage.
g. Temporary maintenance shall terminate no later than the issuance of the judgment of divorce or the death of either party, whichever occurs first.
h. (1) The court shall order the guideline amount of temporary maintenance up to the income cap in accordance with paragraph c of this subdivision, unless the court finds that the guideline amount of temporary maintenance is unjust or inappropriate, which finding shall be based upon consideration of any one or more of the following factors, and adjusts the guideline amount of temporary maintenance accordingly based upon such consideration:
(a) the age and health of the parties;
(b) the present or future earning capacity of the parties, including a history of limited participation in the workforce;
(c) the need of one party to incur education or training expenses;
(d) the termination of a child support award during the pendency of the temporary maintenance award when the calculation of temporary maintenance was based upon child support being awarded and which resulted in a maintenance award lower than it would have been had child support not been awarded;
(e) the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
(f) the existence and duration of a pre-marital joint household or a pre-divorce separate household;
(g) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
(h) the availability and cost of medical insurance for the parties;
(i) the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity;
(j) the tax consequences to each party;
(k) the standard of living of the parties established during the marriage;
(l) the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage; and
(m) any other factor which the court shall expressly find to be just and proper.
(2) Where the court finds that the guideline amount of temporary maintenance is unjust or inappropriate and the court adjusts the guideline amount of temporary maintenance pursuant to this paragraph, the court shall set forth, in a written decision or on the record, the guideline amount of temporary maintenance, the factors it considered, and the reasons that the court adjusted the guideline amount of temporary maintenance. Such decision, whether in writing or on the record, shall not be waived by either party or counsel.
(3) Where either or both parties are unrepresented, the court shall not enter a temporary maintenance order unless the court informs the unrepresented party or parties of the guideline amount of temporary maintenance.
i. Nothing contained in this subdivision shall be construed to alter the rights of the parties to voluntarily enter into agreements or stipulations as defined in subdivision three of this part which deviate from the presumptive award of temporary maintenance.
j. When a payor has defaulted and/or the court is otherwise presented with insufficient evidence to determine income, the court shall order the temporary maintenance award based upon the needs of the payee or the standard of living of the parties prior to commencement of the divorce action, whichever is greater. Such order may be retroactively modified upward without a showing of change in circumstances upon a showing of newly discovered evidence.
k. In any action or proceeding for modification of an order of maintenance or alimony existing prior to the effective date of this subdivision, brought pursuant to this article, the temporary maintenance guidelines set forth in this subdivision shall not constitute a change of circumstances warranting modification of such support order.
l. In any action or proceeding for modification where the parties have entered into an agreement providing for maintenance pursuant to subdivision three of this part entered into prior to the effective date of this subdivision, brought pursuant to this article, the temporary maintenance guidelines set forth in this subdivision shall not constitute a change of circumstances warranting modification of such support order.
m. In determining temporary maintenance, the court shall consider and allocate, where appropriate, the responsibilities of the respective spouses for the family's expenses during the pendency of the proceeding.
n. The temporary maintenance order shall not prejudice the rights of either party regarding a post-divorce maintenance award."
Domestic Relations Law Section 236(6f) states:
"f. The duration of post-divorce maintenance may be determined as follows:
(1) The court may determine the duration of post-divorce maintenance in accordance with the following advisory schedule:
Length of the marriage
Percent of the length of the marriage for which maintenance will be payable
0 up to and including 15 years
15%-30%
More than 15 up to and including 20 years
30%-40%
More than 20 years
35%-50%
(2) In determining the duration of post-divorce maintenance, whether or not the court utilizes the advisory schedule, it shall consider the factors listed in subparagraph one of paragraph e of this subdivision and shall set forth, in a written decision or on the record, the factors it considered. Such decision shall not be waived by either party or counsel. Nothing herein shall prevent the court from awarding non-durational maintenance in an appropriate case.
(3) Notwithstanding the provisions of subparagraph one of this paragraph, post-divorce maintenance shall terminate upon the death of either party or upon the payee's valid or invalid marriage, or upon modification pursuant to paragraph b of subdivision nine of this part or section two hundred forty-eight of this article.
(4) Notwithstanding the provisions of subparagraph one of this paragraph, when determining duration of post-divorce maintenance, the court shall take into consideration anticipated retirement assets, benefits, and retirement eligibility age of both parties if ascertainable at the time of decision. If not ascertainable at the time of decision, the actual full or partial retirement of the payor with substantial diminution of income shall be a basis for a modification of the award."
Domestic Relations Law 236(m) clearly states that "In determining temporary maintenance, the court shall consider and allocate, where appropriate, the responsibilities of the respective spouses for the family's expenses during the pendency of the proceeding." At this time, the Court has determined based on both parties' income that temporary maintenance is to remain in effect. It is well established that any perceived inequities in the pendente lite award can be best remedied by a speedy trial, at which the parties' financial circumstances can be fully explored (see Sinanis v Sinanis, 67 AD3d 773, 888 N.Y.S.2d 606 [2nd Dept. 2009]; Swickle v Swickle, 47 AD3d 704, 705, 850 NYS2d 487 [2 Dept., 2008]; Stubbs v Stubbs, 41 AD3d 832, 833 [2 Dept., 2007]; Barone v Barone, 41 AD3d at 624 [2 Dept., 2007]). The Court at the time of trial has the discretion to retroactively modify pendente lite maintenance, after hearing the facts and circumstances established at trial. Had plaintiff complied with discovery in a timely manner it is likely that this matter would have previously settled or the issues would have been adjudicated after a trial. The Court rejects plaintiff's attempt to obfuscate his financial circumstances and income while simultaneously attempting to avoid his pendente lite support obligation.
Plaintiff's request that the Court determine that he has paid spousal maintenance in accordance with statutory guidelines and that no further payment of maintenance beyond the guidelines is required is denied. Plaintiff incorrectly sets forth and relies upon the duration requirements for Post-Divorce Maintenance found at DRL 236 B (6) rather than the correct applicable time frame for the duration of Temporary Spousal Maintenance found at DRL 236 B(5-a)(f) and (g). Domestic Relations Law Section 236(f) is advisory and only refers to the length of post-divorce maintenance. Pursuant to Domestic Relations Law 236(m), temporary maintenance can continue during the pendency of the proceeding. Domestic Relations Law 236(n) also states that: "The temporary maintenance order shall not prejudice the rights of either party regarding a post-divorce maintenance award." As such, it is possible that a final award of maintenance in a case for the full guideline duration, or longer, could be awarded under certain facts and circumstances even where there has been a continuing award of pendente lite maintenance during the litigation.
Plaintiff's request that the Court vacate the pendente lite maintenance order based on his theory that it allegedly places him below the self-support reserve is denied. Domestic Relations Law Section 236(e) provides that:
"where the guideline amount of temporary maintenance would reduce the payor's income below the self-support reserve for a single person, the guideline amount of temporary maintenance shall be the difference between the payor's income and the self-support reserve. If the payor's income is below the self-support reserve, there shall be a rebuttable presumption that no temporary maintenance is awarded."
However, Domestic Relations Law Section 236(h) states:
h. (1) The court shall order the guideline amount of temporary maintenance up to the income cap in accordance with paragraph c of this subdivision, unless the court finds that the guideline amount of temporary maintenance is unjust or inappropriate, which finding shall be based upon consideration of any one or more of the following factors, and adjusts the guideline amount of temporary maintenance accordingly based upon such consideration:
(a) the age and health of the parties;
(b) the present or future earning capacity of the parties, including a history of limited participation in the workforce;
(c) the need of one party to incur education or training expenses;
(d) the termination of a child support award during the pendency of the temporary maintenance award when the calculation of temporary maintenance was based upon child support being awarded and which resulted in a maintenance award lower than it would have been had child support not been awarded;
(e) the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
(f) the existence and duration of a pre-marital joint household or a pre-divorce separate household;
(g) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
(h) the availability and cost of medical insurance for the parties;
(i) the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity;
(j) the tax consequences to each party;
(k) the standard of living of the parties established during the marriage;
(l) the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage; and
(m) any other factor which the court shall expressly find to be just and proper.
The Court notes that as of September 2021, the self-support reserve is $17,388. In 2019, plaintiff deferred income of $17,273 nearly the same amount as the self-support reserve. It is audaciously disingenuous for plaintiff to claim he earns less than the Self-Support Reserve. This is especially egregious where he has constantly deferred income through substantial tax refunds and claims a gross profits net loss ratio that is nearly negative while diverting money from his coffee shop business to his brother-in-law's bank accounts to, by his own representation, avoid judgment creditors.
Pursuant to the CSSA definition of income, which is used to determine temporary spousal maintenance as set forth at DRL 236 B (5-a) and DRL 240, plaintiff's 2020 NYPD income of $107,793, less FICA and NYC tax, results in CSSA income of $95,867. This is well above the self-support reserve. Plaintiff has significantly greater income than defendant who 2020 income was $26,025.
"In determining a party's maintenance or child support obligation, a court need not rely upon the party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential." Brown v. Brown, 239 AD2d 535, 535, 657 N.Y.S.2d 764, 765 (1997). Here, it is evident to the Court that plaintiff is attempting to manipulate his "take home" income in a manner designed to decrease his potential support obligation(s).
DRL 236 B(4) unequivocally mandates that:
"In all matrimonial actions and proceedings in which alimony, maintenance or support is in issue, there shall be compulsory disclosure by both parties of their respective financial states [emphasis added]".
The Maintenance Guideline Law specifically provides that if the Court is provided with insufficient evidence to determine a party's gross income, the Court has authority to determine temporary maintenance based on the needs of the payee or the payee's lifestyle, whichever is greater: When a Court is unable to perform the calculation established by Domestic Relations Law § 236(B)(5-a)(c) as a result of being "presented with insufficient evidence to determine gross income, the court shall order the temporary maintenance award based upon the needs of the payee or the standard of living of the parties prior to commencement of the divorce action, whichever is greater" (Domestic Relations Law § 236 [B] [5-a] [g]).
Here, plaintiff has willfully and egregiously violated the compulsory financial disclosure rules by failing to respond to demands for the financial documentation substantiating the business loses he reported on his business tax returns and may have violated the Automatic orders by secreting from defendant and from the Court, his 2019 business bank account records for the period from August 1, 2019 to December 30, 2019. Plaintiff's refusal to disclose canceled checks, invoices, Venmo statements and any other such financial records supporting his business deductions claimed on his 2019 tax return has no basis in law. Furthermore, plaintiff's refusal to provide other basic business and personal records relating to his lifestyle expenditures and, until directly ordered by the Court, his refusal to present his passport which would document his travel at times when he has claimed he has no resources for personal expenditures and is taking loans against his pension is without basis in law. The fact that defendant's counsel had to seek judicial intervention to obtain these records and basis discovery demands must clearly be considered by the Court. The alleged defense that hundreds of pages of documents have been provided rings hallow unless providing those documents allows defendant to ascertain plaintiff's true income from all sources.
A final resolution of this case has been unnecessarily delayed directly as a result of plaintiff's litigation tactics that have no basis in law and are indefensible as anything other than obstructive and dilatory tactics designed to prevent examination and analysis by defendant's counsel of his business tax returns. The Court further notes that on numerous occasions plaintiff has been admonished to produce and to pay for his pension evaluations which, given the nature of the pensions involved, are time intensive processes that have further delayed by his recalcitrance.
Plaintiff's request that the Court vacate the existing temporary order for the Plaintiff's payment of spousal support/maintenance is denied.
Plaintiff's request that the SCU be directed to discontinue the collection of maintenance is denied as the Court determined above that temporary maintenance is not to end until the conclusion of the proceedings and a determination of final maintenance, if any.
Plaintiff's request for a change of temporary custody of the child for the pendency of the proceedings is denied: final legal and residential custody will be determined after trial if there is no final parenting agreement on consent before that time as there is no basis to change the residential custody of the child from the routine and circumstances she is accustom to since this litigation commenced in August of 2019.
Plaintiff's request to order a forensic mental health evaluation of the defendant and the child is denied. As held by the Appellate Division, Second Department in Cook v Cook, "[t]he Supreme Court providently exercised its discretion in denying that branch of the mother's motion which was to appoint a forensic evaluator to conduct evaluations of the parties and the children, as the court possessed sufficient information to render an informed decision regarding custody consistent with the subject children's best interests (internal citations omitted)" Cook v Cook, 142 AD3d 530, 533, 36 N.Y.S.3d 222, 226 [2 Dept., 2016].
Plaintiff has proffered no demonstrable cause or alleged any issue(s) in support of his application for defendant and the child to undergo a forensic evaluation other than his clearly intense disdain of defendant. It appears, based on the complete lack of any alleged basis, that plaintiff's forensic application is an attempt to punish defendant rather than based on any genuine concern or even allegation that he believes the child is not safe in defendant's care. The request for a forensic is denied at this time without prejudice. Not all custody litigations require a forensic evaluation: this Court, at this time, believes that the information needed to determine the best interests of this child is readily available without the need for a forensic evaluation, at this time. This Court will, simultaneous herewith, issue a request from the Administration for Children's Service for a court ordered investigation.
The trial on custody shall commence in-person on October 14, 2021 from 9:30 A.M. to 4:30 P.M.. Additional in-person trial dates will be selected, if necessary, at that time on the record.
It is undisputed that on April 15, 2021, defendant's process server served her Deposition Subpoena and Subpoena Duces Tectum for M.A., plaintiff's tax accountant, on N.D., the manager at plaintiff's the tax preparers, not on M.A.
New York CPLR § 2303 (2012) states, as relevant hereto:
(a) A subpoena requiring attendance or a subpoena duces tecum shall be served in the same manner as a summons[emphasis added], except that where service of such a subpoena is made pursuant to subdivision two or four of section three hundred eight of this chapter
New York CPLR §308 (2012) states, as relevant hereto:
Personal service upon a natural person shall be made by any of the following methods:
1. by delivering the summons within the state to the person to be served; or
2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law [emphasis added]; or
Domestic Relations Law § 232 states:
a. In an action to annul a marriage or for divorce or for separation, if the complaint is not personally served with the summons, the summons shall have legibly written or printed upon the face thereof: "Action to annul a marriage", "Action to declare the nullity of a void marriage", "Action for a divorce", or "Action for a separation", as the case may be, and shall specify the nature of any ancillary relief demanded. A judgment shall not be rendered in favor of the plaintiff upon the defendant's default in appearing or pleading, unless either (1) the summons and a copy of the complaint were personally delivered to the defendant; or (2) the copy of the summons (a) personally delivered to the defendant, or (b) served on the defendant pursuant to an order directing the method of service of the summons in accordance with the provisions of section three hundred eight or three hundred fifteen of the civil practice law and rules, shall contain such notice.
b. An affidavit or certificate proving service shall state affirmatively in the body thereof that the required notice was written or printed on the face of the copy of the summons delivered to the defendant and what knowledge the affiant or officer who executed the certificate had that he was the defendant named and how he acquired such knowledge. The court may require the affiant or officer who executed the affidavit or certificate to appear in court and be examined in respect thereto.
In this matrimonial action, defendant's Deposition Subpoena and Subpoena Duces Tectum for M.A. should have been personally served in accordance with CPLR §308(1) and DRL §232 where there had been no order of the Court allowing substituted service.
Defendant's counsel did not request, nor did this court grant an order allowing Defendant to serve M. A. via any other method other than personal service and this Court cannot adopt defendant's legally unsupportable theory that the Court can, in effect, "cure" procedurally defective service by subsequent order. In Evans v Evans, the Appellate Division, Second Department found that plaintiff's failure to procure an order for substituted service other than personal service, before serving summons, complaint and motion papers on defendant in another state in action for divorce, rendered service invalid (273 A.D. 895, 77 N.Y.S.2d 320 [2 Dept., 1948]).
The subpoenas as served are defective. Defendant shall have the right to reserve the subpoenas. The Court notes plaintiff's asserted desire to limit his pendente lite maintenance obligation as reflected in his application to terminate that obligation herein-above: to expedite this outstanding discovery production, plaintiff may provide releases to defendant for the requested documentation from his tax accountant within five (5) days of service of this decision and order with notice of entry that release record books, copies of his actual business and personal returns and all back up and supporting documents used to prepare any and all such tax returns together with any of the financial records detailed in defendant's motion sequence #7 in the accountant's possession. If plaintiff declines to avail himself of this authorization method of expediting this discovery, which would likely expedite this matter being ready for meaningful settlement negotiations and/or trial, the defendant's application to serve the subpoena duces tecum pursuant to CPLR 308(2) is granted without need for further application.
If, after production of these documents by authorization or subpoena, a deposition of the accountant is necessary, defendant's application that she may provide notice of deposition pursuant to CPLR 308(2) is hereby granted.
This Court is concerned that the plaintiff, who has almost systematically delayed this matter from the time he commenced it, would move to terminate pendent lite maintenance under the guise that the action has not been completed. He has delayed many court appearances, as noted on the record, by appearing late or failing to appear entirely. Initially after commencing this litigation, he asserted that he could not cooperate due to the impact of protests in New York City and his obligations to the NYPD. He subsequently was non-compliant with the Court's pendent lite maintenance order and defendant only began to receive the Court ordered support when SCU garnished his salary.
Plaintiff has taken legally unsupportable litigation positions such as incorrectly attempting to define the child support defendant receives as income to her for the purposes of calculating his future child support obligation; asking the Court to consider alleged payments of money to a child not of this marriage when there is no court order in calculating his future child support obligation; alleging that his income does not include the large sums of compensation he defers; providing stale financial information during discovery; and conceding that he participated in the creation of a "secret" bank account the name of another to use for business income to avoid creditors and then concealing that account from defendant and this Court and that was omitted from his affidavit of net worth.
Plaintiff's rendition of his income thus far clearly warrants further discovery and inquiry and he has offered no credible explanation for his refusal to fully comply with defendant's discovery demands. His significant tax refunds during the marriage based upon his withholding elections and his admissions of past financial indiscretions only add to the need for careful financial review especially considering his recent concession about creating and using a "secret" bank account in someone else's name and his efforts to move money from bank to bank to escape judgment creditors.
The best remedy for a perceived improper pendent lite award is a speedy trial. It is well-established that, any perceived inequities in the pendente lite award can be best remedied by a speedy trial, at which the parties' financial circumstances can be fully explored (see Sinanis v Sinanis, 67 AD3d 773, 888 N.Y.S.2d 606 [2 Dept., 2009]; Swickle v Swickle, 47 AD3d 704, 705, 850 NYS2d 487 [2 Dept., 2008]; Stubbs v Stubbs, 41 AD3d 832, 833 [2 Dept., 2007]; Barone v Barone, 41 AD3d at 624 [2 Dept., 2007]). Here, once plaintiff complies with discovery, this matter can be tried if the parties are unable to settle the issues between them. In the meantime, plaintiff's refusal to comply with full financial discovery is not a basis to terminate the Court ordered pendente lite maintenance.
The Court recognizes that plaintiffs' counsel, who was retained after commencement and a period of time when plaintiff delayed this proceeding, has assisted in attempting to provide discovery and that defendant's counsel has grown increasingly frustrated by plaintiff's lack of candor during this litigation that he commenced. The Court admonishes the parties that compliance with discovery and court orders will allow this matter to reach a conclusion in an expeditious manner.
Motion sequence #4 is denied in its entirety.
Motion sequence #6 is denied.
Motion sequence #7 is granted to the extent detailed herein.
All other relief not herein granted is denied.
This shall constitute the decision and order of the Court.
[1] This application was originally filed on April 22, 2021; however, it was returned for corrections. It was signed upon correction on April 29, 2021.
[2] As of September 2021, the Self-Support Reserve is $17,388.
[3] The Court notes that during this litigation the Court has made numerous rulings on the record and directed defendant's counsel to settle orders on notice as to those rulings but that the Court has repeatedly had to return proposed orders for procedural defects and/or non-conformity with the record and informed counsel of such on the record. Counsel asserted those motions are "open: they have been decided but defendant's counsel has not proffered an order in proper form based on the oral decision on the record.
[4] It is undisputed that at that time defendant had been in the United States for just four (4) months."
