NEW YORK AND PAD

A Psychiatric Advance Directives (PAD) is a legal document like a Health Care Proxy and/or Power of Attorney that details a person’s preferences for future mental health treatment or names an individual to make treatment decisions if the person is in a crisis and unable to make decisions.  Currently, only 25 states have laws that specifically allow them and New York is not one of them.

However, an individual can still draft a PAD in New York under the more general statutes connected to health care directives or living wills. See Article 29-C - (Public Health) HEALTH CARE AGENTS AND PROXIES.

DIVORCE AND TAX DEBT

C.C. v. R.C., Date filed: 2022-01-10, Court: Supreme Court, Richmond, Judge: Justice Ralph Porzio, Case Number: 55103/2020:

"...During most of the marriage, the Defendant was the sole income earner. The Plaintiff and Defendant filed joint taxes throughout the marriage; however, they failed to report and pay state and federal taxes for a number of years. This failure has resulted in hundreds of thousands of dollars being owed, fees and interest being assessed, and liens being placed on the marital residence. At the time of trial, the balance due on federal and state taxes is approximately $700,000 per the parties’ testimony.

The Plaintiff alleges that this tax debt is a wasteful dissipation of marital assets. The Plaintiff testified that during the marriage the parties filed joint taxes, that she signed the joint tax returns, and that she acknowledged that the tax liabilities owed to the IRS and the State of NY are owed by her and the Defendant. Notably, despite this crippling debt held by the parties, the Plaintiff never filed for innocent spouse status with the IRS and neither party has filed for bankruptcy. The Defendant acknowledged the debt but as he stated, the parties were “encouraged just to keep spending money, sometimes not even care about the credit card bills.” See Transcript dated 8/30/2021, page 38. During the trial, both parties admitted to being convicted of falsifying business records in order to obtain Medicare coverage during the marriage. The Court finds this information persuasive regarding their combined financial history.

As the Plaintiff has shared in the benefits derived from the parties’ failure to pay their taxes, she must also share in the financial liability arising out of tax liability. See Conway v. Conway, 29 AD3d 725, [2d Dept. 2006]. Based upon the foregoing, considering the equitable distribution factors, wasteful dissipation, the credibility of the parties, and the testimony of the Plaintiff’s expert, Richard Gabor, the Court finds that the IRS federal tax debt and the New York State tax debt is the responsibility of both parties, jointly and severally, and this Court will not apportion liability to one party over the other."

REVERSE MORTGAGES AND CO-OPS

A new law permitting reverse cooperative apartment unit loans for persons seventy years of age or older was signed by the Governor on December 1, 2021 to be effective in 180 days therein:

"BILL NUMBER: S760

SPONSOR: BIAGGI
 
TITLE OF BILL:

An act to amend the banking law, the uniform commercial code and the
civil practice law and rules, in relation to reverse cooperative apart-
ment unit loans

 
PURPOSE:

This bill would give owners of co-op apartments who are over the age of
62 the ability to obtain reverse mortgages on their cooperative apart-
ment unit loans.

 
SUMMARY OF PROVISIONS:

Section 1 amends the banking law by adding a new section, 6-n providing
definitions for reverse cooperative apartment unit loan, loan payout
options, authorized lender, borrower, superintendent, department, and
third-party contact.

Subsection 2 of section 1 states what the cooperative apartment unit
loan would be subject to.

Subsection 3 of section 1 explains what a reverse cooperative apartment
unit loan may do.

Subsection 4 of section 1 states that the superintendent shall adopt the
rules and regulations as it considers appropriate to govern reverse
cooperative apartment unit loan if it conforms to the requirements of
the section, and explains the requirements to authorize a reverse coop-
erative apartment unit loan.

Subsection 5 of section 1 prohibits authorized lenders from any unfair
or deceptive practices when marketing or offering reverse cooperative
unit loans, including using language "public service announcement," or
"government insured," or any similar language; nor can they represent
the loan as anything other than a commercial product.

Subsection 6 of section 1 requires authorized lenders to include supple-
mental consumer protection materials deemed appropriate by the super-
intendent alongside any solicitation for reverse cooperative unit loan
products mailed to a physical address within the state.  Lenders are
also required to provide applicants or potential applicants with the
telephone number and website (HUD).

Subsection 7 of section 1 requires authorized lenders and their agents
provide monthly account statements with specified requirements in addi-
tion to notice of information requirements regarding clients home equity
line of credit.

Subsection 8 of section 1 states that upon a lender's determination that
a reverse cooperative apartment unit loan is in default and before a
lender can take up action to foreclose, they must call or visit the
borrower, the lender must provide clear information about the intent of
the call or visit and then wait 30 days after successful contact with
the borrower. Once these steps are taken, the lender may act on the
foreclosure process.
Subsection 9 of section 1 sets the priority of the lien.

Subsection 10 of section 1 states that any other mortgage, deed of
trust, encumbrance or lien filed prior to the effective date of this
section shall not be limited.

Subsection 11 of section 1 if the reverse cooperative unit loan is sold
or transferred to a person other than the original borrower, the reverse
loan shall be terminated.

Subsection 12 of section 1 sets a person's ability to bring an action.

Subsection 13 of section 1 sets conditions for a complete defense.

Section 2 adds a new paragraph 1-a to subsection (f) of section 9-611 of
the uniform commercial code which states that upon default of a reverse
cooperative apartment unit loan, a notice shall be given to the borrower
at least 45 days in advance of an agent disposing of its collateral.

Section 3 adds a new rule 3410 to civil practice law and rules pertain-
ing to face-to-face meetings for foreclosure of reverse cooperative
apartment unit loans.

Section 4 states that the superintendent of financial services shall
convene a working group comprised of industry and consumer represen-
tatives to study the availability of reverse mortgage counselors.

Section 5 sets forth the effective date.

 
JUSTIFICATION:

As of today, HUD continues to deny co-op owners from applying for
reverse cooperative apartment unit loans. With the correct regulations
and liability protection, aging populations should be permitted to
obtain such loans, instead of being forced to relocate from their homes.

With this bill, extended consumer protections will be added to the proc-
ess of acquiring a reverse cooperative apartment unit loan and will
ensure that the elderly community that so desperately wishes to stay in
their homes will be able to do so."

CHRONIC RENT DELINQUENCY

Spencer Scott Group LLC v. Nahas, Date filed: 2022-01-24, Court: Civil Court, Richmond, Judge: Judge Remy Smith, Case Number: LT-300023-20/RI:

"Chronic Rent Delinquency

Courts have found that the commencement of frequent non-payment proceedings in a short amount of time, due to a tenant’s unjustified failure to pay rent is a viable claim for eviction based on chronic non-payment of rent. See Adam’s Tower Ltd. Partnership v. Richter, 186 Misc.2d 620 (App. Term 1st Dept. 2000) (the court considered the tenant’s “‘long term, unjustified and persistent failure’ to pay rent as it became due” supported an eviction based upon the chronic non-payment of rent because there were nine non-payment proceedings in three years), citing Sharp v. Norwood, 223 A.D.2d 6 (A.D. 1st Dept. 1996); aff’d 89 N.Y.2d 1068 (1997)). See also, Definitions Personal Fitness v. 133 E. 58th St., 107 A.D.3d 617 (1st Dept. 2013) (ten non-payment proceeding in seven years); 2564 Co. v. D’Addario, 35 Misc.2d 176 (App. Term 1st Dept. 2000) (eleven non-payment proceedings in one and a half years).

Here, there is no evidence that petitioner previously commenced nonpayment rent proceeding(s) before commencing this holdover. Given the lack of a history of nonpayment proceedings against respondents, chronic rent delinquency cannot be the basis for commencement of this holdover. Although there is no magic number of proceedings required to maintain a chronic rent delinquency, there must be a history of more than one. See also Sharp v. Norwood, 223 A.D.2d 6 (A.D. 1st Dept. 1996) (In a chronic non-payment of rent holdover proceeding, “there is no ‘magic number’ of prior proceedings required, as each case is sui generis.); 25th Realty Associates v. Griggs, 150 A.D.2d 155 (1st Dept. 1989) (a single non-payment proceeding cannot be the basis of a chronic delinquent holdover)."

GIFT OF CHECK NOT COMPLETE UNTIL FUNDS CLEARED?

Estate of Oakley, Date filed: 2022-02-09, Court: Surrogate's Court, Ulster, Judge: Surrogate Sara McGinty, Case Number: 2018-346/B:

"...The objectants contend that $95,000 transferred from decedent to executor in the last few days of his life were not gifts, but were engineered by the executor for his exclusive benefit.

The requirements for a valid inter vivos gift are (1) an intent on the part of the donor to make a gift; (2) acceptance by the donee, and (3) delivery of the gift (Matter of Szabo, 10 NY2d 94 at 98 [1961]). A donee who claims an inter vivos gift of an asset that would otherwise be part of an estate faces a heavy burden: “[t]he proof must be of great probative force and must clearly establish every element of a valid gift” (Matter of Kennedy, 36 A D 2d 549 [1971]).

The $95,000 gift was accomplished by means of 2 checks drawn on decedent’s accounts.1 When a payment or gift is made by check, an agency relationship is created: the payee of the check is authorized, as the payor’s agent, to deposit the check to complete the transfer of funds. The moneys are not “delivered” and payment is not deemed complete until the payee’s bank credits it to their account. Death of the principal terminates the agency. A gift by check is thus complete only if the check has been deposited and credited to the payee/donee’s account during the lifetime of the payor/donor (Matter of Mead, 90 Misc 263 [Sur Ct NY Cty 1915]; aff’d 173 Ad 982 [1916]; aff’d 221 NY 645[1917]); see, also Estate of Horowitz, 2006 NY MIsc LEXIS 6597 [Sur Ct West Cty 2006]). Where such a check is not so delivered prior to the payor/donor’s death, “the gift is incomplete and no valid transfer of the fund is effectuated” (Braunstein v. Russo, 2014 NY Misc LEXIS 1048, *3 [2d Dept 2014]; quoting Matter of Grauds, 43 NYS2d 803, 817 [Sur Ct NY County 1943]).

The bank records offered into evidence reflect that a $45,000 check drawn on decedent’s account was deposited into the executor’s personal KeyBank account on May 30, 2017.2 KeyBank did not credit it to his account until May 31, 2017, five days after his father’s death. This gift was therefore not complete at the decedent’s death and the proceeds must be returned to the estate.

The executor testified that the $50,000 transfer was also accomplished by check. The KeyBank records indicate that the check was deposited at the branch on May 26, 2017, the day his father died. The transfer was not credited to the executor’s account on that date. The Court has not been provided with a record of when the $50,000 was actually credited to the executor’s account, but it must have occurred after May 26th. This payment, too, reflects an incomplete gift and must be reversed by the executor’s payment to the estate in this amount.

Even if the checks had been “delivered” by being deposited and credited to the executor’s personal account before the decedent’s death, the executor has not met the burden of proving that his father was possessed of donative intent when the putative checks were signed (Mirvish v. Mott, 18 NY3d 510, 518 [2012]). When, as here, the donee claims “title to property through a gift inter vivos as against the estate of a decedent,” the clear and convincing standard of proof must be supported by evidence of “great probative force” (Estate of Kennedy, 36 AD2d 549, 550 [3d Dept 1971]). At trial, the executor had the opportunity to meet the elevated burden of proof as to donative intent, but offered nothing other than say it was his father’s desire to make gifts to him for the renovation of the old farm house and to compensate him for his care-giving. No details were offered as to the manner, place or time in which his father expressed the desire to make these gifts. Nor did the executor describe any renovation work he performed or detail the extent and nature of his caregiving responsibilities. The executor’s sister, MaryEllen Van Gordon, who he claimed assisted in the transfer of funds to him, was not called upon to testify.

The transfers themselves were apparently accomplished with only minimal involvement from the decedent: prepared in the final 5 days of decedent’s life, the executor drafted personal checks to himself for $45,000 and $50,000, both from decedent’s bank accounts. His father signed the checks.

In the absence of proof as to decedent’s role in the transfer — and his donative intent — the Court can only conclude that they were completed “not at decedent’s direction, but on [the executor's] own initiative” (Estate of Magacs, 227 AD2d 760, 762 [3d Dept 1996]).

The Court therefore finds that the $95,000 transferred to the executor from his father’s accounts were incomplete gifts at best. The proceeds of these transactions are estate assets and must be returned by the executor to the estate, with interest at the rate of 3 percent per annum from the decedent’s date of death.

..."

EXEMPTING PARTY FOR HIS OWN NEGLIGENCE PROHIBITION HAS AN EXCEPTION

TITUMIR v. BARKER AVE. ESTATES LLC, 2022 NY Slip Op 50073 - Bronx Supreme Court 2022:

"In this action for, inter alia, breach of a non-delegable duty, defendants move seeking an order granting them summary judgment. Saliently, defendants aver that the lease between the parties precludes liability for the alleged water leak in the complaint, such that summary judgment is warranted. Plaintiff opposes the instant motion, procedurally asserting that discovery is not yet complete such that the instant motion is premature. Substantively, plaintiff contends that the portion of the lease upon which defendants rely does not bar liability against defendants, because to the extent it bars liability for defendants' negligence, General Obligations Law § 5-321 renders the relevant portion of the lease unenforceable.

For the reasons that follow hereinafter, defendants' motion is granted.

The instant action is for money damages arising from the failure to maintain a premises. The complaint alleges that the plaintiff and defendants' predecessor in both ownership and interest entered into a commercial lease for the premises located at Store No.7DE, 671 Allerton Avenue, Bronx NY 10467 (Store #7DE), whose term was from December 1, 2007 to November 30, 2022. Plaintiff was a merchant of discount hardware, discount housewares, a paint supplier and a seller of household goods, who would operate a store at Store #7DE. On July 24, 2017, water began to leak from apartments above Store #7DE, causing the store's ceiling to collapse and causing water to enter the store. The water flooded the store causing damage to plaintiff's goods, merchandise, the floor, the electrical wiring, the pipes and the light fixtures. As a result, plaintiff was forced to close the store, causing a loss of business. Plaintiff notified defendants, who after a protracted period of time attempted to fix the leak. Despite the repair, water nonetheless continued to leak into the store. Based on the foregoing plaintiff alleges that defendants failed to comply with their non-delegable duty to maintain and make repairs within Store #7DE (First Cause of Action). Plaintiff also alleges that based on the foregoing, despite having to close the store, he nevertheless continued to pay rent such that defendants breached the implied warranty of quiet enjoyment (Second Cause of Action). Lastly, plaintiff alleges that despite notifying defendants of the water condition within Store #7DE, defendants nonetheless failed to repair the same and then when they made repairs, they failed to ameliorate the condition. As such, plaintiff alleges that defendants were negligent (Third Cause of Action).

Standard of Review

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v City of New York, 67 AD3d 21, 25 [1st Dept 2009]). Notably, the court can consider otherwise inadmissible evidence, when the opponent fails to object to its admissibility and instead relies on the same (Niagara Frontier Tr. Metro Sys. v County of Erie, 212 AD2d 1027, 1028 [4th Dept 1995]).

Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. As noted by the Court of Appeals, [t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense `sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must `show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case (Friends of Animals v Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 [1979] [internal citations omitted]). Accordingly, generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit evidence in admissible form (Johnson v Phillips, 261 AD2d 269, 270 [1st Dept 1999]).

When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v Talman (278 AD2d 811, 811 [4th Dept 2000]), [s]upreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial(see also Yaziciyan v Blancato, 267 AD2d 152, 152 [1st Dept 1999]; Perez v Bronx Park Associates, 285 AD2d 402, 404 [1st Dept 2001]). Accordingly, the Court's function when determining a motion for summary judgment is issue finding, not issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957]). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v Goodson, 8 NY2d 8, 12 [1960]).

Contract Law and Leases

It has long been held that absent a violation of law or some transgression of public policy, people are free to enter into contracts, making whatever agreement they wish, no matter how unwise they may seem to others (Rowe v Great Atlantic & Pacific Tea Company, Inc., 46 NY2d 62, 67-68 [1978]). Consequently, when a contract dispute arises, it is the court's role to enforce the agreement rather than reform it (Grace v Nappa, 46 NY2d 560, 565 [1979]). In order to enforce the agreement, the court must construe it in accordance with the intent of the parties, the best evidence of which being the very contract itself and the terms contained therein (Greenfield v Philles Records, Inc., 98 NY2d 562, 569 [2002]). It is well settled that "when the parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms" (Vermont Teddy Bear Co., Inc. v 583 Madison Realty Company, 1 NY3d 470, 475 [2004] [internal quotation marks omitted]). Moreover, "a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield at 569). Accordingly, courts should refrain from interpreting agreements in a manner which implies something not specifically included by the parties, and courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing (Vermont Teddy Bear Co., Inc. at 475). This approach serves to preserve "stability to commercial transactions by safeguarding against fraudulent claims, perjury, death of witnesses [and] infirmity of memory" (Wallace v 600 Partners Co., 86 NY2d 543, 548 [1995] [internal quotation marks omitted]).

The proscription against judicial rewriting of contracts is particularly important in real property transactions, where commercial certainty is paramount, and where the agreement was negotiated at arm's length between sophisticated, counseled business people (Vermont Teddy Bear Co., Inc. at 475). Specifically, in real estate transactions, parties to the sale of real property, like signatories of any agreement, are free to tailor their contract to meet their particular needs and to include or exclude those provisions which they choose. Absent some indicia of fraud or other circumstances warranting equitable intervention, it is the duty of a court to enforce rather than reform the bargain struck (Grace v Nappa, 46 NY2d 560, 565 [1979]).

Leases are nothing more than contracts and are thus subject to the rules of contract interpretation, namely, that the intent of the parties is to be given paramount consideration, which intent is to be gleaned from the four corners of the agreement, and that of course, the court may not rewrite the contract for the parties under the guise of construction, nor may it construe the language in such a way as would distort the contract's apparent meaning (Tantleff v Truscelli, 110 AD2d 240, 244 [2d Dept 1985]).

In the absence of fraud or other wrongful act, a party who signs a written contract is presumed to know and have assented to the contents therein (Pimpinello v Swift & Co., 253 NY 159, 162 [1930]; Metzger v Aetna Ins. Co., 227 NY 411, 416 [1920]; Renee Knitwear Corp. v ADT Sec. Sys., 277 AD2d 215, 216 [2d Dept 2000]; Barclays Bank of New York, N.A. v Sokol, 128 AD2d 492, 493 [2d Dept 1987]; Slater v Fid. & Cas. Co. of NY, 277 AD 79, 81 [1st Dept 1950]). In discussing this long-standing rule the court in Metzger stated that [i]t has often been held that when a party to a written contract accepts it as a contract he is bound by the stipulations and conditions expressed in it whether he reads them or not. Ignorance through negligence or inexcusable trustfulness will not relieve a party from his contract obligations. He who signs or accepts a written contract, in the absence of fraud or other wrongful act on the part of another contracting party, is conclusively presumed to know its contents and to assent to them and there can be no evidence for the jury as to his understanding of its terms. This rule is as applicable to insurance contracts as to contracts of any kind. (Metzger at 416 [internal citations omitted]).

Generally, pursuant to GOL § 5-321, a provision in a lease seeking to exempt a party for his own negligence is void and unenforceable as against public policy (Great N. Ins. Co. v Interior Const. Corp., 18 AD3d 371, 372 [1st Dept 2005], affd, 7 NY3d 412 [2006]; Tormey v City of New York, 302 AD2d 277, 278 [1st Dept 2003]; Gibson v Bally Total Fitness Corporation, 1 AD3d 477, 479 [2d Dept 2003]; Radius, Ltd. v Newhouse, 213 AD2d 614, 615 [2d Dept 1995]). To be sure, GOL § 5-321 states that

[e]very covenant, agreement or understanding in or in connection with or collateral to any lease of real property exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the demised premises or the real property containing the demised premises shall be deemed to be void as against public policy and wholly unenforceable.

However, case law has carved an exception to the prohibition described in the GOL §5-321. Specifically, it is well settled that an indemnification agreement in a lease shall be enforceable even if the lessor seeks to have the lessee indemnify him for his own negligence when the lease is the product of "sophisticated parties negotiating at arm's length," and "have agreed to allocate the risk of liability to third parties between themselves, essentially through the employment of insurance" (Great N. Ins. Co. at 372; see Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153, 161 [1977]. In explaining why GOL §5-321 does not apply in the foregoing circumstances, the court in Hogeland stated that [t]he legislative history and the statute's express invalidation of any agreement `exempting the lessor from liability for damages for injuries resulting from the negligence of the lessor' strongly suggests that is was directed primarily to exculpatory clauses in leases whereby lessors are excused from direct liability for otherwise valid claims which might be brought against them by others. It and several parallel provisions prohibit agreements which free landlords (or others in comparable relationships) from all responsibility to a tenant (or others) for negligence; the former are thus compelled at their own peril to retain the incentive to act prudently. It is against this background of declared purpose that the indemnification clauses before us must be considered. So analyzed, Berenson is not exempting itself from liability to the victim for its own negligence. Rather, the parties are allocating the risk of liability to third parties between themselves, essentially through the employment of insurance. Courts do not, as a general matter, look unfavorably on agreements which, by requiring parties to carry insurance, afford protection to the public (internal citations omitted)(Hogeland at 160-161). Thus, in both Hogeland and Great N. Ins. Co., the lessees were obligated to indemnify the lessors, even though they had been found negligent Hogeland at 158; Great N. Ins. Co. at 372).

Discussion

Defendants' motion seeking summary judgment is granted. Significantly, on this record, defendants establish that the lease and rider which bind the parties contains a provision which exempt defendants from any liability arising from the water leak alleged in the complaint. The record also establishes that insofar as this is a commercial tenancy, the lease falls within the ambit of the exception to the rule prescribed by GOL § 5-321, which renders unenforceable a lease provision such as the one in the lease and rider between the parties, which exempts defendants from all liability, which necessarily includes their negligent acts.

In support of the instant motion, defendants submit an affidavit by Arie Weissman (Weissman), defendants' Managing Agent, who states that the lease and rider appended to defendants' motion are true and accurate.

Defendants provide the lease and rider between the parties^[1]. The lease is dated November 29, 2007, is between plaintiff and Solomon Management Co., LLC., and is for Store #7DE^[2]. Paragraph two of the lease makes plaintiff responsible for the maintenance of the "premises, fixtures, and appurtenances," requiring that plaintiff "make all repairs in and about the same necessary to preserve them in good order and condition." Paragraph thirteen of the lease states that

[t]he Landlord shall not be liable for any failure of water supply or electrical current, sprinkler damage, or failure of a sprinkler service, nor for injury or damage to a person or property caused by the elements or by other tenants or persons in said building, or resulting from steam, gas, electricity, water, rain or snow, which may leak or flow form any part of said building, or from pipes, appliances or plumbing works of the same, or from the street or sub-surface, or from any other place nor for interference with light or other incorporeal hereditaments by anybody other than the Landlord, or caused by operations by or for a government authority in construction of any public or quasi-public work, neither shall the Landlord be liable for any latent defect in the building.

The rider is also dated November 29, 2007. Paragraph 13 of the rider reiterates paragraph two of the lease and paragraph 10 of the rider reiterates paragraph thirteen of the lease. Significantly, paragraph 2 of the rider states that

[t]he Tenant shall, at-his own cost and expense, during the whole term of this Lease and of any renewal agreements, have ready before the commencement of this Lease his own fire and liability insurance including the Broad Form Comprehensive Liability endorsement covering the demised premises; general public liability insurance with limits of not less than $750,000 with respect to death or personal injury to any one person and any one occurrence; for bodily injury and property damage, in the amounts not less than $350,000; and shall maintain the same in full force and effect throughout the entire term of this Lease and of any renewal thereof.

Based on the foregoing, defendants establish prima facie entitlement to summary judgment.

Preliminarily, contrary to plaintiff's assertion, he fails to establish that the instant motion is procedurally premature pursuant to CPLR § 3212(f) on grounds that discovery has not yet been completed.

Pursuant to CPLR § 3212(f), a motion for summary judgment will be denied if it appears that facts necessary to oppose the motion exist but are unavailable to the opposing party. Denial is particularly warranted when the facts necessary to oppose the motion are within the exclusive knowledge of the moving party (Franklin National Bank of Long Island v De Giacomo, 20 AD2d 797, 797 [2d Dept 1964]; De France v Oestrike, 8 AD2d 735, 735-736 [2d Dept 1959]; Blue Bird Coach Lines, Inc. v 107 Delaware Avenue, N.V., Inc., 125 AD2d 971, 971 [4th Dept 1986]). However, when the information necessary to oppose the motion is wholly within the control of the party opposing summary judgment and could be produced via sworn affidavits, denial of a motion for summary judgment pursuant to CPLR § 3212(f) will be denied (Johnson v Phillips, 261 AD2d 269, 270 [1st Dept 1999]).

A party claiming ignorance of the facts critical to defeat a motion for summary judgment is only entitled to further discovery and denial of a motion for summary judgment if he or she demonstrates that reasonable attempts were made to discover facts which, as the opposing party claims, would give rise to a triable issue of fact (Sasson v Setina Manufacturing Company, Inc., 26 AD3d 487, 488 [2d Dept 2006]; Cruz v Otis Elevator Company, 238 AD2d 540, 540 [2d Dept 1997]). Implicit in this rationale is that the proponent of further discovery must identify facts, which would give rise to triable issues of fact. This is because a court cannot condone fishing expeditions and as such, "[m]ere hope and speculation that additional discovery might uncover evidence sufficient to raise a triable issue of fact is not sufficient" (Sasson at 501). Thus, additional discovery should not be ordered where the proponent of the additional discovery has failed to demonstrate that the discovery sought would produce relevant evidence (Frith v Affordable Homes of America, Inc., 253 AD2d 536, 537 [2d Dept 1998]).Notwithstanding the foregoing, CPLR § 3212(f) mandates denial of a motion for summary judgment when a motion for summary judgment is patently premature, meaning when it is made prior to the preliminary conference, if no discovery has been exchanged (Gao v City of New York, 29 AD3d 449, 449 [1st Dept 2006]; Bradley v Ibex Construction, LLC, 22 AD3d 380, 380-381 [1st Dept 2005]; McGlynn v Palace Co., 262 AD2d 116, 117 [1st Dept 1999]). Under these circumstances, the proponent seeking denial of a motion as premature need not demonstrate what discovery is sought, that the same will lead to discovery of triable issues of fact or the efforts to obtain the same have been undertaken (id.). In Bradley, the court denied plaintiff's motion for summary judgment as premature, when the same was made prior to the preliminary conference (Bradley at 380). In McGlynn, the court denied plaintiff's motion seeking summary judgment, when the same was made after the preliminary conference but before defendant had obtained any discovery whatsoever (McGlynn at 117).

Here, the parties attended a preliminary conference on January 25, 2021, which resulted in an order prescribing discovery that very day. Thus, the instant motion is not premature on grounds that no discovery conferences have yet been held. Moreover, to the extent that plaintiff's sole assertion on this issue is merely that "[d]iscovery has not been completed," he fails to establish, as required, what attempts were made to discover the facts he needs, which are critical to defeat this motion, and which are in defendants' possession (Sasson at 488; Cruz at 540).

Substantively, defendants establish that the commercial lease between the parties bars any liability as against defendants for the water leak alleged in the complaint. As noted above, leases are nothing more than contracts and are thus subject to the rules of contract interpretation, namely, that the intent of the parties is to be given paramount consideration, which intent is to be gleaned from the four corners of the agreement, and that of course, the court may not rewrite the contract for the parties under the guise of construction, nor may it construe the language in such a way as would distort the contract's apparent meaning (Tantleff at 244).

Here, paragraph two of the lease and 13 of the rider establish that plaintiff agreed to completely maintain Store #7DE. More significantly, paragraph 13 of the lease and 10 of the rider establishes that with regard to water leaks emanating from pipes within Store #7DE, and causing damage, as alleged in the complaint, defendants would bear no liability whatsoever. Thus, per the clear and unambiguous language of the lease and rider, the instant action is barred.

While it is true that pursuant to GOL § 5-321, a provision in a lease seeking to exempt a party for his own negligence is void and unenforceable as against public policy (Great N. Ins. Co. at 372; Tormey at 278; Gibson at 479; Radius, Ltd. at 615), it is equally true that an indemnification agreement in a lease shall be enforceable even if the lessor seeks to have the lessee indemnify him for his own negligence when the lease is the product of "sophisticated parties negotiating at arm's length," and "have agreed to allocate the risk of liability to third parties between themselves, essentially through the employment of insurance" (Great N. Ins. Co. at 372; see Hogeland at 161).

Here, while a fair reading of paragraph thirteen of the lease and 10 of the rider clearly insulates defendants from all liability from the conditions alleged therein, such that liability is barred for their own negligent conduct, paragraph 2 of the rider brings paragraph thirteen of the lease and 10 of the rider within the ambit of the exception to GOL § 5-321. To be sure, insofar as paragraph 2 of the rider mandates that plaintiff purchase insurance insuring it for property damage, it is clear that the parties to this commercial lease sought to allocate plaintiff's risk, the very same for which he sues, to a third-party, namely the insurance company.

Accordingly, defendants establish that even if they were negligent in the maintenance of the Store #7DE, the lease between the parties bars this action (Great N. Ins. Co. at 372; see Hogeland at 161). By operation of law, this is necessarily true for the second cause of action for breach of the implied warranty of quiet enjoyment, since to hold otherwise, would render paragraph 13 of the lease and 10 of the rider meaningless. Indeed, a violation of the implied warranty of quiet enjoyment would impose the very liability upon defendants that they sought, through negotiation, to avoid.

The Court also holds, as urged by defendants, that the first cause of action, premised on an alleged non-delegable duty requiring defendants to maintain Store #7DE, fails as a matter of law. As noted by the lease and rider, the tenancy at issue is commercial and not residential. As such, the non-delegable duty pleaded by plaintiff and the legal authority for which he never identifies, does not exist. To be sure, while Multiple Dwelling Law § 78(1) states that "[e]very multiple dwelling, including its roof or roofs, and every part thereof and the lot upon which it is situated, shall be kept in good repair. .. [and that] [t]he owner shall be responsible for compliance with the provisions of this section," Multiple Dwelling Law § 4(4) defines a "dwelling" as "any building or structure or portion thereof which is occupied in whole or in part as the home, residence or sleeping place of one or more human beings." Thus, while it is true that the duty imposed by MDL § 78 (1) is non-delegable (Mas v Two Bridges Assoc. by Nat. Kinney Corp., 75 NY2d 680, 687 [1990]), by the express language of the statute, it does not apply to commercial tenancies(Ortiz v CEMD El. Corp., 123 AD3d 463, 464 [1st Dept 2014] ["Multiple Dwelling Law § 78 is inapplicable because the building at issue is not a multiple dwelling but a commercial building."]).

For the same reasons, the New York City Administrative Code does not impose a duty upon defendants to keep a commercial premises such as Store #7DE in good repair. While pursuant to the New York City Administrative Code, "[t]he owner of a multiple dwelling shall keep the premises in good repair" (New York City, NY, Code § 27-2005[a]), NY, Code § 27-2004[a][3] defines a dwelling as "any building or structure or portion thereof which is occupied in whole or in part as the home, residence or sleeping place of one or more human beings."

Nothing submitted by plaintiff in opposition raises an issue of fact sufficient to preclude summary judgment. It is hereby

ORDERED that the complaint be dismissed with prejudice. It is further

ORDERED that defendants serve a copy of this Order with Notice of Entry upon plaintiff within thirty days (30) hereof.

This constitutes this Court's decision and Order.

[1] In light of Weissman's affidavit, which establishes the authenticity of the lease and rider, they are before the Court in admissible form. To be sure, leases are nothing more than contracts (Tantleff at 244). A contract "has independent legal significance and need only be authenticated to be admissible" (Brand Med. Supply, Inc. v Infinity Ins. Co., 51 Misc 3d 145(A) [App Term 2016]; All Borough Group Med. Supply, Inc. v GEICO Ins. Co., 43 Misc 3d 27, 28 [App Term 2013]; see, Fairlane Fin. Corp. v Greater Metro Agency, Inc., 109 AD3d 868, 870 [2d Dept 2013] ["A private document offered to prove the existence of a valid contract cannot be admitted into evidence unless its authenticity and genuineness are first properly established."]; NYCTL 1998-2 Tr. v Santiago, 30 AD3d 572, 573 [2d Dept 2006]).

[2] The complaint concedes that the lease and rider in question binds defendants insofar as the instant premises changed ownership after the foregoing documents were executed."

MORTGAGE FORECLOSURE - FOLLOWING THE NEW RULES ON REVOCATION OF ACCELERATION OF DEBT

DEUTSCHE BANK NATL. TRUST CO. v. Weininger, 2022 NY Slip Op 22033 - Westchester Supreme Court 2022:

"In support of its motion to renew, the plaintiffs argue that since this Court's March 10, 2020 Decision and Order, the Court of Appeals has reversed and abrogated precedent and then controlling law relied on by this Court. In short, the Court of Appeals held that "where acceleration occurred by virtue of the filing of a complaint in a foreclosure action, the noteholder's voluntary discontinuance of that action constitutes an affirmative act of revocation of that acceleration as a matter of law, absent an express, contemporaneous statement to the contrary by the noteholder." (Freedom Mtge. Corp. v Engel, 37 NY3d 1, 32 [2021]; contra Ditech Fin., LLC v Naidu, 175 AD3d 1387 [2d Dept 2019]).

Here, as previously held and as is undisputed, the filing of the first foreclosure action in October 2010 accelerated the mortgage debt and the statute of limitations began to run (see EMC Mtge. Corp v Patella, 279 AD2d 604 [2001]). The plaintiff moved to discontinue the first foreclosure action, and an order was entered on August 5, 2016 granting the motion (Scheinkman, J.) within the six-year time period. As there is no evidence of an express, contemporaneous statement to the contrary by the noteholder, the plaintiff's voluntary discontinuance of the first foreclosure action is an affirmative act of revocation of the acceleration as a matter of law (Freedom Mtge. Corp., 37 NY3d 1). The plaintiff's reason for discontinuing the 2010 action is not relevant (id. at 36 ["A noteholder's motivation for exercising a contractual right is generally irrelevant"]). Even if plaintiff's second foreclosure action, commenced in 2015, accelerated the debt, the commencement of this action on March 24, 2017, was timely."

NEW EVIDENCE RULE ON HEARSAY

Effective December 31, 2021, is CPLR 4549:

" § 4549.  Admissibility of an opposing party's statement. A statement

  offered against an opposing party shall not be excluded from evidence as

  hearsay if made by a person whom the opposing party authorized to make a

  statement on the subject or by the opposing party's agent or employee on

  a matter within the scope of that relationship and during the existence

  of that relationship."

According to the Senate Bill:

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation if his Advisory
Committee on Civil Practice.

This measure would relax the common law exclusion of the hearsay state-
ment of a party's agent or employee, provided that the statement was on
a matter within the scope of that employment or agency relationship, and
made during the existence of the relationship. The measure would add a
new CPLR 4549, and cause New York's hearsay exception to follow the
approach of Federal Rule of Evidence 801(d)(2)(D).

The measure is intended to change the extent of authority that a propo-
nent must show in order to make the hearsay statement of an opposing
party's agent or employee admissible. While under current law it appears
clear that a hearsay statement will be admissible if there was actual

authority to speak on behalf of the party, such authority often may be
shown only by implication in light of the circumstances of the employ-
ment or agency relationship. In practice, this tends to limit "speaking
authority" to only the high levels of management.

Professor Michael J. Hutter has analyzed several Appellate Division
cases that take a very strict view of the predicate proof for speaking
authority, and these cases indicate that an employee or agent who is not
in charge of the business will have no implied authority to speak on
behalf of the employer -- even if the statement made relates to an
activity the person was charged to undertake.  Instead, the proponent of
the hearsay statement may need to make the difficult showing of express
authority to speak on behalf of the employer. See Boyce v GumleyHaf t,
Inc., 82 AD3d 491  
1ST DEPT 2011; Scherer v Golub Corp., 101 AD3d 1286
 
3D DEPT 2012; Hutter, "Speaking Agent Hearsay Exception: Time to Clar-
ify, if Not Abandon," New York Law Journal, June 6, 2013, Pg. 3, col. 1,
Vol. 249, No. 108.

We believe a strict requirement to demonstrate such authority to speak
may exclude reliable proof of an event, even though the employer as a
party might not be treated unfairly by admissibility, either because the
statement is true and made by a person with relevant knowledge, or
because the employer is able to introduce other proof in opposition to
the implications of the hearsay statement. As noted above, the current
strict requirement to show speaking authority is contrary to Federal
Rule of Evidence. See Barker and Alexander, Evidence in New York State
and Federal Courts (2d ed.) 8:26, p. 148.

We further believe that the rule is unlikely to change without legisla-
tive action. (See, Loschiavo v Port Auth. of New York & New Jersey, 58
NY2d 1040, 1041  
1983  
"WE DECLINE PLAINTIFF'S INVITATION TO CHANGE
THIS WELL-SETTLED, ALBEIT WIDELY CRITICIZED RULE OF EVIDENCE BUT NOTE,
IN THIS CONNECTION, THAT A PROPOSAL FOR MODIFICATION OF THE HEARSAY RULE
IN THIS STATE IS NOW BEFORE THE LEGISLATURE").


An example of statements excluded under the current rule include an
employee-driver's admissions of negligence, unless the driver was
authorized by the employer to speak about the subject accident. In
Schner v Simpson, (286 AD 716, 718  
1ST DEPT 1955), an employee's
statement "I am sorry that I knocked you down, but I think you will be
able to get up" was held inadmissible on the ground that " 
Generally
speaking, employment does not carry authority to make either declara-
tions or admissions."(See, also, Jankowski v Borden's Condensed Milk
Co., 176 AD 453  
2D DEPT 1917  
DRIVER'S STATEMENT THAT IT WAS HIS FAULT
HELD NOT ADMISSIBLE; and Raczes v Home, 68 AD3d 1521, 1522-1523  
3D
DEPT 2009  
MAINTENANCE WORKER'S STATEMENT:  "THIS IS THE THIRD TIME
THAT I FIXED THIS RAILING AND I'M GETTING SICK OF IT," NOT COMPETENT TO
ESTABLISH NOTICE ON THE PART OF EMPLOYER).

However, such employee statements generally are admissible in Federal
court and would be admissible under this measure. (See Corley v Burger
King Corp., 56 F3d 709, 710  
5TH CIR 1995; Martin v Savage Truck Line,
121 F Supp 417, 419  
DDC 1954). On the other hand, an employee's state-
ment would not be admissible against the employer where it concerned a
matter that was not within the employee's scope of employment. (See,
e.g., Wilkinson v Carnival Cruise Lines, Inc., 920 F2d 1560  
11TH CIR
1991; Hill v Spiegel, Inc., 708 F2d 233, 237  
6TH CIR 1983).

We believe that the Federal approach is an improvement over the current
state of New York decisional law, and that trial judges will exercise
appropriate discretion to exclude such hearsay evidence when there is
inadequate foundation or indicia of reliability.

This measure, which would have no fiscal impact, would take effect imme-
diately and apply to all actions pending on or after such effective
date.

NASSAU COUNTY DIVORCE - NEW UNIFORM PART RULES

These rules are in addition to the Uniform Rules for New York State Trial Court and the Local Rules of Court. Failure to comply with any rules or orders of this Court may result in preclusion and/or sanctions without further notice.

See https://www.nycourts.gov/LegacyPDFS/COURTS/10JD/nassau/Forms/Mat/Forms/MCUniformRules.pdf

CHILD OF DIVORCE WANTS TO CHANGE HER LAST NAME

Here the parent/child relationship was so estranged that the child, now a teenager, wanted to have her last name changed.

MATTER OF DZ (" G"), 2021 NY Slip Op 21282 - Suff. Co. Supreme Court 2021:

"The Petitioner and Respondent have two different last names that both begin with the letter Z. To preserve the privacy of the parties, they will be referred to as Ms. DZ and Mr. SZ. Their daughter will be referred to as "G."^[1]

The matter at hand is a petition brought by Ms. DZ to change the surname of "G" to Ms. DZ's current married name (Civil Rights Law Sec.60 et. seq.). Additionally, the Petition seeks to change "G's" middle name. The Petitioner Ms. DZ and the Respondent Mr. SZ were married in 2006 and divorced in 2008. Prior to their separation, however, the couple was blessed with a daughter "G" who is now 14½ years old. On her Birth Certificate the child was given the Respondent's surname. "G's" Father, Mr. SZ has opposed the application.

The differing averments of the Petitioner and Respondent could only be resolved in an evidentiary hearing (In re Kobra, 46 Misc 3d 54, 56, 2 N.Y.S.3d 313, 314 [App. Term. 2nd Dept. 2014]). On August 20th, 2021 the Parties appeared before the Court and gave testimony. Prior to hearing from Ms. DZ and Mr. SZ, however, the Court heard the testimony of "G".

The Court was concerned that asking "G" to speak in front of her Parents would place an inordinate emotional burden on her. It has long been established that in custody proceedings the trial Court possesses the authority to interview a child outside of the presence of their parents (Lincoln v. Lincoln, 24 NY2d 270, 247 N.E.2d 659, 661 [1969]). In the case In re Eberhardt, 83 AD3d 116, 920 N.Y.S.2d 216 (2nd Dept. 2011), this rule was expanded to include name change petitions.

"Pietas erga parentes"^[2] or in the modern tongue "reverence towards one's parents" is a timeless virtue despite it being described by the immortal Cicero in antiquity. The Court notes this because "G's" testimony (which has been sealed pursuant to a companion Order) revealed a young person who possesses this virtue in abundance. She loves her parents very much and is also highly intelligent. Her outstanding academic achievements are a credit to them. In a lengthy interview, she was able to clearly articulate her observations and feelings concerning the petition.

Ms. DZ testified in open Court after her daughter spoke in camera (Transcript p.60). She stated, inter alia, that she and her current husband Mr. JZ, have raised "G" from "when she was a toddler" and identifies as a member of his family (Transcript p.60). It was detailed that it's upsetting for "G" to have to explain her different last name on her passport. "G" uses her mother's current married name at home and wants to start High School with the same last name as her half siblings in the custodial household. Ms. DZ spoke of her husband's fatherly interaction with "G." By way of example, Mr. JZ has attended all of "G's" soccer matches, taught her to ride a bicycle and taken her fishing (Transcript p.64). Ms. DZ emphasized that her marriage with Mr. SZ only lasted six months. After the marriage ended, Mr. SZ had supervised visitation for a period of time which was exercised in an "inconsistent" fashion (Transcript p.66). "G's" first sleep over with her Father occurred when she was 10 (ten) years old and the child has expressed a reluctance since that time for visits with Mr. SZ. She also indicated that Mr. SZ never regularly paid child support and is now $8,500.00 in arrears. Ms. DZ also submitted documents for the Court's review (Petitioner's Exhibits 1, 2 and 3).

Petitioner's Exhibit 1 is a printout of a series of text messages between the Petitioner and Respondent. It demonstrates the acrimonious relationship between the former spouses. They read in pertinent part:

(The following dialogue took place after Ms. DZ communicated "G's" wish to have her surname changed):

Ms. DZ: "This is "G's" wish."

Mr. SZ: "So you want me to pay 1200/month Not see or hear from her and have her change her last name." (sic)

Ms. DZ: "Nothing to do with what I want. If you don't consent the paper work is being filed but it would be great to get your consent for "G."

Mr. SZ: "Take me off child support and I'll sign it. I guess you have your answer then."

Petitioner's Exhibit 2 is a document indicating that Mr. SZ is $8,500.00 in arrears for his child support payments.

Petitioner's Exhibit 3 was a printout of Mr. SZ's criminal record. It indicated that on August 31st, 2006 he had committed the Misdemeanor of Assault 3rd Degree and pled guilty to same on May 23rd, 2007. The Exhibit also indicated that on January 30th, 2007 he had committed the Misdemeanor of Reckless Endangerment in the 1st Degree, to which he also pled guilty onMay 23rd, 2007. There is also a more recent conviction (by plea of guilt) to the Misdemeanor of Reckless Driving. All of these offenses occurred in our sister State of Connecticut. Ms. DZ contends that there was a history of domestic violence between herself and Mr. SZ during their brief marriage.

Mr. SZ did not object to these documents being received into evidence.

Mr. SZ then offered his testimony before the Court. He also submitted documentary Exhibits consisting of papers attached to his written opposition to the Petition. They were considered, over Petitioner's objection as Respondent's evidence.

Mr. SZ strongly objected to "G's" last name being changed. He stated:

"I don't want to give up on my daughter. I don't want her to say, oh, Dad, where were you? But it's become so just difficult. I've been to Court, hired lawyers, seen therapists, drug counselors, police, jail. It's like when is it ever going to end? It's like the nightmare that doesn't go away. So, I don't want to leave "G" I don't want her not to know me. She doesn't refer to me as Dad. She calls me [by his first name]. And, I guess I put her in the situation, so I can't be that upset. But, her mother just makes it worse" (Transcript p.85-86).

Mr. SZ gave instances of his attempts to contact his daughter which were blocked by his ex-wife. This culminated (in 2020) in his bringing an action to hold Ms. DZ in contempt of Judge Budd's Order of Custody and Visitation dated May 31st, 2012. His documentary Exhibit, however, does not support his allegation of wrong doing on Ms. DZ's behalf. The submitted papers are silent on the topic of parental alienation. Instead, they demonstrate that Mr. SZ was subjected to supervised visitation, under the aegis of Dr. Vanessa Gomez, being Ordered by the Court (Transcript pp.8-11).

These documents included the following:

(1) The Judgment of Divorce granted in Connecticut on May 2nd, 2008 by Justice Mary Louise Black. The Judgment incorporated a Separation Agreement with provisions for custody and visitation;

(2) The Custody and Visitation Order from Suffolk County Family Court (Judge Marlene Budd) dated May 31st, 2012. The Court awarded custody to Ms. DZ but provided for alternate weekend visitation as well as certain other Holidays. This Order also provided, inter alia, that Ms. DZ had to consult with Mr. SZ for all significant (e.g. health, education) decisions and;

(3) motion papers dated May 13th, 2020 from Suffolk County Family Court reflecting an application by Mr. SZ to have Ms. DZ punished for contempt of the 2012 Custody and Visitation Order. This was resolved in supervised visitation for Mr. SZ being Ordered by the Court (Transcript pp.8-11).

Regarding the significance of Mr. SZ's criminal convictions brought to the Court's attention he stated: "Most of my criminal record there that you see in your paperwork is when she's called the police on me. And some of it's true, some of it's not true" (Transcript p.85 line 10). To this the Court responds "Habemus optimum testem, confitentem reum" (1 Phil. Ev. 397) (1). "We have the best evidence, a confessing defendant." We respectfully remind Mr. SZ that his confession to the criminal behavior listed above was made before a Judge, historically the most favored form of admission (see Sir Michael Foster, Discourse on High Treason, Article 3, Section 3, Clauses 1 and 2 [1762]). The Court was concerned when Mr. SZ volunteered that the incidents involved Ms. DZ. Far from being a mitigating factor, they weigh against the Respondent. Having sat in the Matrimonial Part, the Court is sadly aware of the circumstances which precipitate a failed marriage. Disagreement and discord are understandable. Domestic abuse, however, is not, nor is it tolerable.

As to the issue of Mr. SZ's child support arrears, he offered the following explanation:

"I've been paying my child support. I don't pay now because I'm so fed up with it and so angry. She doesn't let me talk to her; she doesn't let me see her. When she refers to me, she calls me. I'm not good enough for her, her mother, whatever it is. So, I'm-I'm liable to pay every month. My money is good enough to take, but I'm not good enough to let her let me see her. So, that's why I don't feel like paying" (Transcript p.87 line 9-19).

Mr. SZ said that Ms. DZ had improperly influenced "G" against him and that this Petition was the product of his ex-wife's manipulation of their child. Mr. SZ then stated that he had, in fact been paying his child support payments for years and that "there's always been money" in the bank account set up for that purpose (Transcript p.90 line 19). This prompted a question from the Court:

"The Court: So, are you in arrearages or not?"

Mr. SZ: "I'm in arrearage, yes, but that's only because she got me so aggravated that I don't feel like paying."

The Court: "Have you been able to pay?"

Mr. SZ: "Yeah, I've been able to pay." (Transcript pp.90-91).

Since the testimony of the Petitioner and the Respondent are at a variance, the Court must sift the differing averments and find the truth.

Determination of the credibility of witnesses is viewed as the province of the Trial Judge (Morales v. Inzerra, 98 AD3d 484, 949 N.Y.S.2d 433 [2nd Dept. 2012]; Tornheim v. Blue & White Food Prod. Corp., 88 AD3d 867, 931 N.Y.S.2d 340 [2nd Dept. 2011]). Based upon the estrangement between Petitioner and Respondent, the Court is cognizant of the bias that informs both of their sworn statements. Each testified as truthfully as they could, but it is understandable that they remember their interactions with advantages. The documentary proof submitted by both the Parties, however, serves to support the contentions of Ms. DZ more than Mr. SZ.

In deciding whether to grant a Name Change Petition the Court must make the following determination: "that the petition is true, and that there is no reasonable objection to the change of name proposed, and if the petition be to change the name of an infant, that the interests of the infant will be substantially promoted by the change" (Civil Rights Law § 63).

In re Eberhardt, supra. offers great guidance to the Court: "As in any case involving the bests interests standard, whether a child's best interests will be substantially promoted by a proposed name change requires a court to consider the totality of the circumstances." (Id. at 221) citing Matter of John Phillip M.-P., 41 AD3d 720, 721, 839 N.Y.S.2d 502 [2nd Dept.2007]; Matter of David Robert T., 10 AD3d 453, 780 N.Y.S.2d 912 [2nd Dept.2004]; Matter of Cinquemani v. Guarino, 290 AD2d 554, 736 N.Y.S.2d 623 [2nd Dept.2002]; see generally Eschbach v. Eschbach, 56 NY2d 167, 171, 451 N.Y.S.2d 658, [1982]).

What does totality of the circumstances mean? The Eberhart Court counseled the lower Court as follows:

"Among the myriad of factors or circumstances that a court may consider in determining whether a proposed name change substantially promotes the child's best interests, there are several that warrant special mention:

(1) the extent to which a child identifies with and uses a particular surname;

(2) the child's expressed preference, if of sufficient age and maturity to articulate a basis for preferring a particular surname;

(3) whether the child's surname differs from the surname of the custodial parent;

(4) the effect of the proposed name change on the child's relationship with either parent;

(5) whether the child's surname is different from any of her siblings and the degree to which she associates and identifies with siblings on either side of her family;

(6) whether the child is known by a particular surname in the community;

(7) the misconduct, if any, of a parent, such as the failure to support or visit with the child; and

(8) the difficulties, harassment, or embarrassment that the child may experience by bearing the current or proposed surname." (Id. at 221).

In setting forth these factors, the Eberhardt Court noted that these were non-exhaustive and relied (as do we) on the authority found in Matter of John Phillip M.-P., supra. at 318-319; Gubernat v. Deremer, 140 N.J. at 141-142, 657 A.2d 856; In re Wilson, 162 Vt. 281, 285, 648 A.2d 648; In re Change of Name of Andrews, 235 Neb. 170, 177, 454 N.W.2d 488; Bobo v. Jewell, 38 Ohio St.3d 330, 335, 528 N.E.2d 180; In re Marriage of Schiffman, 28 Cal.3d at 647, 169 Cal.Rptr. 918, 620 P.2d 579).

It must be decided if Mr. SZ's objection to the Petition is a reasonable one. The Court is aware of a body of case law which holds that the Father's name is to be considered preeminent (see Matter of Goldstein, 104 AD2d 616, 479 N.Y.S.2d 385 [2nd Dept. 1984]; Matter of Pollack, 2 AD2d 756, 756, 153 N.Y.S.2d 282 [2nd Dept. 1956]; In re Petras, 123 Misc 2d 665, 672, 475 N.Y.S.2d 198, 203-04 (Civ. Ct. Queens Cty 1984]). These cases bear examination. The Court in Matter of Goldstein opined that:

"Depriving a child of his or her father's surname is normally a far-reaching action [cite omitted] Applications for the change of an infant's surname are usually granted only where the natural father is guilty of misconduct, abandonment, or lack of support (Id.at 616) citing Matter of Williams, 86 Misc 2d 87; Matter of Robinson, 74 Misc 2d 63; Matter of Fein, 51 Misc 2d 1012; Matter of Baldini, 17 Misc 2d 195; Matter of Wittlin, 61 NYS2d 726, 728." (Id. At 616)

Matter of Pollack, supracautioned that: "To deprive a son of his father's surname is a serious and far-reaching action." (Id. at 756)

In re Petras, 123 Misc 2d 665, 672, 475 N.Y.S.2d 198, 203-04 (Civ. Ct. Queens Cty 1984) echoed Pollack's declaration that: "Deprivation of a father's surname is a serious and far reaching action." The Petras Court added the rationale: "More so in our American society with respect to a male child that normally carries a surname throughout life." (Id. at 672).

The Court notes that the aforementioned cases are not of recent vintage and reflect a bias in favor of the patronymic. Such a cultural practice, when privately agreed upon, will not be disturbed. When haled into Court, however, the neutral appraisal of the law cannot countenance what is simply gender discrimination. As stated in In Re Eberhardt:

"To the extent the father's objection was based on traditional values, meaning that it is Anglo-American custom to give a child the father's name (see Gubernat v. Deremer, 140 N.J. 120, 129-137, 657 A.2d 856; In re Marriage of Schiffman, 28 Cal.3d 640, 643, 169 Cal.Rptr. 918, 620 P.2d 579; Rio v. Rio, 132 Misc 2d 316, 317-322, 504 N.Y.S.2d 959), the objection is not reasonable, because neither parent has a superior right to determine the surname of the child (see Swank v. Petkovsek, 216 AD2d 920, 629 N.Y.S.2d 129; Matter of Bell v. Bell, 116 AD2d 97, 99, 500 N.Y.S.2d 387; Matter of Cohan v. Cunningham, 104 AD2d 716, 480 N.Y.S.2d 656; Rio v. Rio, supra. at 319." (Id. at 123).

When the enumerated Eberhardt factors are applied against a fair reading of the submitted proof, all favor the Petitioner's request and bear no further discussion save two: the effect of the proposed name change on the child's relationship with either parent and the misconduct, if any, of a parent, such as the failure to support or visit with the child. These will be analyzed ad seriatim.

As noted above, the corroborated testimony of Ms. DZ show that "G" identifies as a member of Mr. JZ's family and wishes to have the same name as her half-siblings. As Justice Luft wrote in her eloquent opinion Matter of Mark L.S., 66 Misc 3d 343, 115 N.Y.S.3d 627 (Sup. Ct. Suffolk Cty 2019): "As a rule, feelings of embarrassment or alienation are considered extremely pertinent factors in the best interests analysis" (Id. at 346; citing In re Altheim, 12 AD3d 993, 784 N.Y.S.2d 910[3d Dept. 2004]).

Matter of Mark L.S. is in accord with the holding in Matter of Caraballo, 13 Misc 3d 1229(A), NY Slip Op. 52054(U), 2006 WL 3041684 [Civ. Ct. NY Cty 2006] wherein the Court stated that sharing the surname by the child with the custodial parent "is a legitimate point of concern because it minimizes embarrassment, harassment and confusion in school and social contacts" (Id. citing Matter of Shawn Scott C., 134 AD2d 345, 520 N.Y.S.2d 821 [2d Dept., 1987]; Learn by Houck v. Haskell, 194 AD2d 859, 598 N.Y.S.2d 595 [3d Dept., 1993]; Mercado v. Townsend, 225 AD2d 555, 638 N.Y.S.2d 762 [2d Dept., 1996]; see also In re Kobra, 37 Misc 3d 1216(A), 961 N.Y.S.2d 358 [Civ. Ct. Kings Cty 2012], appeal granted, order rev'd, 46 Misc 3d 54, 2 N.Y.S.3d 313 [App. Term. 2014]).

It must be conceded that the Court in Trevellian v. Wilson, 19 Misc 3d 137(A), 866 N.Y.S.2d 96 [App. Term 2008] reached a contrary conclusion on the basis that: "[i]t is no longer uncommon in today's society for a child to have a different surname than that of a parent, and, to the contrary, it has become commonplace for siblings to have different surnames." (Id.). This Court finds the facts of the instant case to be distinguishable from those presented in Trevellian and thus declines to adopt its holding.

The question of misconduct on the part of Mr. SZ mandates close review because he has earnestly and believably expressed deep love for "G" during this proceeding. He has not had the visits with his daughter that he would wish. It appears that this was occasioned both by his own behavior and the actions of his ex-wife. The fact remains that at a critical point in her young life, "G" formed a stronger parental bond with Mr. JZ than with him. Mr. SZ's anguished testimony acknowledges this state of affairs. The ultimate factor, however, is "G's" well-being.

Mr. SZ's testimony regarding the financial support for "G" considerably undermines his position. In the case of Matter of Pollack, supra., the Court was impressed by the Father's promise to pay arrearages in child support when permitted visitation. Here Mr. SZ has made it clear that his good name may be alienated for a price-no further child support. The Court had hoped that this accusation by Petitioner would be denied or explained. Instead, Mr. SZ let it stand unrefuted, thus indicating his agreement. This was corroborated by his words from the witness stand in which he acknowledged both his ability to pay child support and willful refusal to do so based upon his ex-wife's behavior. It is readily apparent that only his daughter suffered as a result of this treatment. To use such behavior in the form of a threat to hang as a financial Sword of Damocles over "G's" head can only be considered misconduct for the purposes of the application. We find this to be a "justifiable basis for changing a child's surname" (In re Cruz, 49 Misc 3d 155[A], 29 N.Y.S.3d 846 [App. Term. 2nd Dept. 2015]).

Considering all of these factors the Court is constrained to find that the forgoing has proven both that there is no reasonable objection to the proposed name change and that "G"'s best interest will be substantially by allowing her to change her middle name and surname this time.

Accordingly, the Petition must be granted.

Simultaneously with the signing of this order, the Court is executing a Name Change Order (Civil Rights Law Sec. 63) and a further Order partially sealing the record pertaining to "G's" testimony (22 NYCRR Sec.216.1).

This Memorandum is also the Order of the Court.

[1] The names have been abbreviated to protect the child's identity

[2] On Moral Duties (De Officiis) Marcus Tullius Cicero. The term "pietas can also be translated as: piety; dutifulness; affection, love; loyalty; gratitude" (Pocket Oxford Latin Dictionary)."

A MASSACHUSETTS CRA CASE

"MATTER OF BERTRAND, 486 Mass. 1004 - Mass: Supreme Judicial Court 2020:

"The petitioner, a child who was the subject of a child requiring assistance (CRA) petition, see G. L. c. 119, § 39E, filed by his mother in the Juvenile Court, appeals from the judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3, seeking review of certain orders issued by the Juvenile Court. We affirm.

In addition to seeking review of the Juvenile Court's orders in the CRA case, the child also sought an order from the single justice directing the Juvenile Court to dismiss the CRA petition. He also requested that a committee be formed to promulgate procedural rules concerning CRA cases. Before filing his petition in the county court, however, the child had already sought and been denied substantially the same relief from a single justice of the Appeals Court by means of an appeal filed pursuant to G. L. c. 119, § 39I. See Millis Pub. Schs. v. M.P., 478 Mass. 767, 775 (2018). The child had thus already pursued the remedy that the Legislature has provided for parties aggrieved by orders in CRA cases. Further, while this matter has been pending before this court, the underlying CRA petition was dismissed in the Juvenile Court, on the mother's motion and with the child's agreement.^[2]

The single justice did not err or abuse his discretion when he elected not to exercise the court's extraordinary power of general superintendence in these 1005*1005 circumstances. A single justice is not required to employ the court's extraordinary superintendence power when there is an adequate alternative remedy. Such a remedy existed here, namely, an appeal to a single justice of the Appeals Court as provided by G. L. c. 119, § 39I, and indeed the child pursued it. The fact that he did not win the relief he sought in that appeal does not render the legislatively prescribed remedy inadequate, nor does it entitle him to further review as a matter of right pursuant to G. L. c. 211, § 3. Where the child has failed to demonstrate any inadequacy in the statutory appeal framework, the single justice was warranted in denying review.^[3]

Judgment affirmed.

[1] A pseudonym. The parties to this appeal are the child and his mother. The Juvenile Court Department of the Trial Court was also named as a party in the child's G. L. c. 211, § 3, petition, but it is a nominal party only. See S.J.C. Rule 2:22, 422 Mass. 1302 (1996).

[2] We need not and therefore do not decide whether a child's appeal pursuant to G. L. c. 119, § 39I, from a CRA adjudication becomes moot when the CRA petition is dismissed in the trial court during the pendency of the appeal. Cf. Matter of F.C., 479 Mass. 1029, 1029-1030 (2018) (addressing mootness argument in context of appeal from civil commitment order). That is not what happened here. The appeal was decided by the Appeals Court single justice before the parties agreed to dismiss the CRA petition.

[3] A single justice of the Appeals Court has the discretion to report to a panel of the Appeals Court any appeal that presents novel, systemic, or otherwise important issues. See, e.g., Millis Pub. Schs. v. M.P., 478 Mass. 767, 775 (2018). The Appeals Court single justice in this case expressly considered but declined to exercise that option; he was well within his discretion to do so."

CONTRACT CONSTRUCTION WITH AN "AMBIGUOUS" LLC OPERATING AGREEMENT

YMSF Family P'ship LP v. Beitel, Date filed: 2022-01-25, Court: Supreme Court, Kings, Judge: Justice Leon Ruchelsman, Case Number: 514791/17:

"The plaintiff has moved seeking summary judgement pursuant to CPLR §3212. The defendant opposes the motion. Papers were submitted by the parties and arguments held. After reviewing all the arguments' this court now makes the following determination.

In September 2013 the plaintiff and the defendants entered into an operating agreement whereby the plaintiff paid $80.0, 000 "towards purchase of equity interest" and was given a 49.9% share In an entity called 5309, 18^th Ave Besatya LLC. The defendant Beitel maintained a 50.1% share of the entity. Thereafter the plaintiff sought access to the. entity's books and records and such request was denied numerous times. On July 31., 2017 the plaintiff brought this action, seeking, a declaratory judgement that they are a member of the entity and have all rights, of membership. The plaintiff has now moved seeking summary judgement arguing that there are no questions of fact the operating agreement has conferred ownership interests upon the plaintiff and that pursuant to those interests they are entitled to the books and records. The defendants have opposed the motion arguing that the operating agreement did not intend to provide any ownership, interest to the plaintiff. Rather, the transaction was. only one. of a loan provided: by the: plaintiff and the operating agreement was worded in that, fashion to avoid, the appearance of an interest bearing lean prohibited by Jewish law. The defendants assert that the principles of the plaintiff as well as the defendant are all Orthodox Jews and purposefully and. intentionally crafted the transaction as an Operating agreement as such to avoid the appearance of a prohibited interest bearing loan. Therefore, the defendants argue there are surely questions of fact whether the plaintiff is an owner of. the entity and consequently summary, judgement must be denied.

Conclusions of Law

It is well settled that an agreement that is clear and unambiguous on its face shall be enforced according to its plain terms (Greenfield v. Philies Records Inc. 98 N.Y.2d 562, 750 N.Y.S.2d 565 [2002]). Extrinsic evidence demonstrating the true intent of the parties is generally inadmissible (Pentacon LLC v. 422 Knickerbocker LLC, 165A.D.3d 829, 86 N.Y.2d 177 [2d Dept., 2018]}. Such extrinsic evidence may be admissible if an ambiguity exists and whether such ambiguity exists is a. question of law (MRT Mew York, LLC. Brown, 167 A.D.3d 764, 89 N.Y.S.3d 695 [2d Dept., 2018]).

Further, extrinsic evidence may not be submitted to create an ambiguity (Brad H. v. City of New York, 17 N.Y.3d 180, 921 N.Y.S.2d 221 [2017]). A contract will be considered ambiguous if susceptible to more than one interpretation (id)..

The terms Of the operating agreement are clear and are not ambiguous in any manner. The operating agreement provides that the purpose of the entity is engage "in any Lawful act or activity for which limited liability companies may be formed under the LLCL and engaging in all activities- necessary or incidental to the foregoing" (see. Operating. Agreement, ¶2). The agreement further provides that "the Membership interests and contributions of the Members as of the date hereof ere as follows: Binyamin Beitel: 50, 1%., YMSF Family Partnership L. P. 49.9% $800, 000 (paid towards purchase of entity interest)" (see., Operating Agreement, ¶4), In addition the agreement provides that, "the Members shall have, the power to do, any and all acts necessary or convenient to or for the furtherance of the purposes described herein..” (see. Operating Agreement., ¶6)... These provisions plainly and unmistakably afford the plaintiff with membership interests in the entity. The defendants argue that an unproduced document evidencing a loan exists which undermines the. .unambiguous terms of the operating agreement... Specifically, the defendants assert that a heter iska, a religious document utilized to circumvent the Jewish prohibition against interest by treating all loans as^: partnerships or business ventures was entered into between the parties (see. In re Venture Mortgage Fund: L, P, , 245 BR 460 [S.D.N.Y. 2000]) and thus the operating agreement merely evidenced a loan without any membership interests on the part of the. plaintiff. However., that argument really seeks a determination that despite the unambiguous language of the operating agreement such ambiguity exists and the ambiguity is resolved by completely altering, the terms of the operating agreement. Thus, as noted without any ambiguity the plain meaning of the contract terms control (Goetz y. Trinidad, 168 A.D.3d 688, 91 N.Y.S.3d 513 [2d Dept., 2019]). This is especially true in this case where there is no, heter is.ka agreement presented.

Further, the affidavit of Rabbi Avrohom Moshe Lewanoni who stated, that he was consulted by the plaintiff because the plaintiff "wanted to loan Binyamin Beitel money" (see; Affirmation of Rabbi Lewanoni., January 20, 2020., ¶13) does hot raise any questions of fact. First, even if true such a consultation occurred it has no bearing on the actual operating agreement signed in 2013 which is clearly a membership agreement. Further., in a subsequent affirmation dated;February 18, 2020 Rabbi Lewanoni explained that he never consulted with the plaintiff concerning the specific property that is the subject of the operating agreement (see, Affirmation of Rabbi Lewanoni., February 18, 2020, 16). Thus, the second affidavit which may appropriately be considered in Reply surely diminished "the limited value of the first- affidavit. In any event,, even if the second affidavit would not be considered, the first affidavit does not create any question of fact because the operating agreement contains no ambiguity that would permit such extrinsic evidence.

Moreover, it is not proper to utilize parol evidence in the religious context to establish the substance of a secular agreement (see. In re Marriage of Shaban, 88 Cal App. 4th 398, 105 Cal.Rptr2d. 863 [Court of Appeal, 4^th District, Division 3, California 2001]).

Lastly, there is no merit to the argument any buy-back provision further supports the argument the operating agreement is really a loan since in any event the defendants failed to exercise the buy-back provision in the requisite time frame: further supporting the conclusion the plaintiff is a member of the entity.

For these reasons the motion is not premature. Further discovery or depositions will have no impact and cannot alter the plain language of the operating agreement. Similarly, the defendant's counterclaims are; all dismissed.

Thus, based on the foregoing the motion seeking summary judgement on the three causes of action of the complaint is granted.

So ordered."