AN ABUSE OF SERVING PROCESS?

In today's news: a celebrity is served with custody proceeding papers "while on stage in front of 4,100 people."

It can be difficult to personally serve process on a party. especially with a celebrity. And some actions, such as a matrimonial action, may require actual personal delivery. DRL 232. In New York, CPLR § 308(1) provides that "[p]ersonal service upon a natural person shall be made . . . by delivering the summons within the state to the person to be served." Such service "must be clear and unequivocal so that a reasonable defendant knows he or she has been served with process." Weiss v. Glemp, 792 F. Supp. 215, 224 (S.D.N.Y. 1992). "New York courts have interpreted the delivery requirement of § 308 strictly." Id. at 224. Consequently, the requirement that the summons and complaint be delivered "to the person to be served has been applied in accordance with its plain and literal language." Dorfman v. Leidner, 76 N.Y.2d 956, 957 (1990) (internal quotation marks omitted).

NOTE: To avoid raising the temperature in any family litigation (or for that matter in any litigation), consider a notice to the other party of your intention to serve and ask if they will accept service. Of course, you may risk avoidance and that may increase costs.

NURSING HOME DENIED GUARDIANSHIP

In this case, it appears that the POA was found after the proceeding was commenced.

MATTER OF GREENFIELD, 2022 NY Slip Op 22094 - Suff. Co. Supreme Court 2022:

"This matter was commenced by petitioner Elimelech Greenfield, Administrator of Hilaire Rehabilitation and Nursing ("Hilaire" or "Petitioner") by Order to Show Cause, dated November 24, 2021, seeking an Order pursuant to Article 81 of the Mental Hygiene Law ("MHL") for the appointment of a guardian for both the person and property of the alleged incapacitated person D.C. ("D.C." or "AIP"). Upon signing the Order to Show Cause, the Court appointed Mental Hygiene Legal Service as counsel for the AIP.

EVIDENTIARY HEARING

A hearing on the merits was conducted on February 28, 2022. The AIP is sixty-three (63) years-old and has been residing at Hilaire since in or about July 2020. He suffers from schizophrenia, dementia and an altered mental status, and requires assistance with daily life activities. The testimony further demonstrated that the AIP suffers from additional cognitive deficiencies, including memory loss, and is unable to either make medical decisions on his own behalf or manage his finances. It was uncontroverted that at Hilaire the AIP's day-to-day care and personal needs are being adequately met by Hilaire in concert with Do.C., the daughter of the AIP, who is making personal decisions on behalf of the AIP pursuant to the Family Health Care Decisions Act ("FHCDA").

During the hearing, Do.C. introduced a durable general power of attorney ("POA"), executed by the AIP on June 11, 2020 (Exhibit 2). The POA appoints Do.C. to act as her father's attorney-in-fact.

At the conclusion of the testimony, the Court granted Petitioner's request to keep the hearing open to the extent that counsel may explore any collateral issues pertaining to the POA. Counsel was further permitted an opportunity to submit additional information for the Court's consideration on or before March 11, 2022. To date, neither counsel for the Petitioner nor the AIP has submitted additional documentation or requested leave to elicit additional testimony regarding the POA or any other matter related to the Petition. By e-mail dated March 24, 2022, counsel for the AIP requested that the hearing be closed.

LEGAL STANDARD

In order to prevail on its application for the appointment of a personal needs guardian or a property management guardian, the Petitioner must satisfy a two-pronged standard (see MHL §81.02[a]; Matter of Aurelia S., 186 AD3d 715, at 716-17, 127 N.Y.S.3d 301,302 (2d Dep't 2020); Matter of Linda H.A., 174 AD3d 704, 102 N.Y.S.3d 685 (2d Dep't 2019); Matter of Agam S.B.-L, 169 AD3d 1028, 1030, 93 N.Y.S.3d 415(2d Dep't 2019)). Initially, the Court must make a determination whether "the appointment is necessary to provide for the personal needs of [the AIP], including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of [the AIP]" (MHL §81.02[a][1)]). If the appointment of a guardian is deemed necessary, then the Court must decide whether the AIP "agrees to the appointment, or that the person is incapacitated" (Id. at §81.02[a][2]). A finding of incapacity requires "a determination that a person is likely to suffer harm because (1) the person is unable to provide for [his or her] personal needs and/or property management and (2) the person cannot adequately understand and appreciate the nature and consequences of such inability" (Id. at § 81.02[b]; see Matter of Carolyn S., 192 AD3d 1114, 141 N.Y.S.3d 358 (2d Dep't 2021); Matter of Carole L., 136 AD3d 917, at 918-19, 26 N.Y.S.3d 133 (2d Dep't 2016)).

In reaching its determination, the Court notes that the burden of proof remains with the Petitioner by clear and convincing evidence. "[P]rimary consideration [shall be given] to the functional level and functional limitations of the person" (see MHL § 81.02[c]). If the Petitioner satisfies its burden, any guardian appointed may only be granted "those powers which are necessary to provide for personal needs and/or property management of the incapacitated person in such a manner as appropriate to the individual and which shall constitute the least restrictive form of intervention" (Id. at§81.02[a][2]).

CONCLUSIONS OF LAW

Here, the Petitioner established by clear and convincing evidence that the AIP is incapacitated as defined in Article 81 of the Mental Hygiene Law (see MHL § 81.02[b]). However, the Court may only appoint a guardian where one (1) or more of the incapacitated person's personal or management needs are not adequately being cared for due to the functional limitations and the incapacitated person's lack of understanding or appreciation for his limitations.

The Court concludes that the appointment of a guardian to protect the personal needs and/or property management of the AIP is not necessary in the instant matter, and, as a result, the application is denied. The evidence failed to demonstrate that the AIP is likely to suffer harm due his functional limitations, his inability to provide for his own personal needs or his lack of capacity to manage his affairs. To the contrary, the AIP's needs are presently being adequately managed by Do.C., the AIP's daughter, pursuant to both the duly executed POA and the FHCDA (see Public Health Law, Article 29-cc (2010)).

Accordingly, the Petitioner is unable to satisfy its burden since the AIP is not likely to suffer harm due to his functional limitations. The Appellate Division, Second Department has held that "[e]ven if all of the elements of incapacity are present, a guardian should be appointed only as a last resort and should not be imposed if available resources or other alternatives will adequately protect the person" (Matter of Maher, 207 AD2d 133, at 140, 621 N.Y.S.2d 617 (2d Dep't 1994)). Moreover, where prior to becoming incapacitated, the AIP executes advanced directives, the Court will not appoint a guardian because the AIP "effectuated a plan for the management of his affairs which obviate[s] the need for a guardian" (Id.; Matter of Crump, 230 AD2d 850, 646 N.Y.S.2d 825(2d Dep't 1996); Matter of O'Hear, 219 AD2d 720, 631 N.Y.S.2d743 (2d Dep't 1995) (guardian not necessary for an incapacitated person who had appointed adult son power of attorney and executed living will and health care proxy)).

Based on the foregoing, the Court finds that the appointment of a guardian is not necessary to care for the personal needs or property management of the AIP. The evidence adduces that the AIP previously executed a POA that is valid and enforceable, and the AIP's daughter is further making medical decisions on behalf of the AIP which the Petitioner has indicated it will continue to honor. The Court finds persuasive and adopts the reasoning in the Matter of Stephanie Z. where the Chemung County Supreme Court denied the application and dismissed the Article 81 Petition because, similar to the instant matter, the AIP had "sufficient resources in place to address [his] limitations, through [his] placement at the Facility, the existing power of attorney and the Family Health Care Decisions Act" (see 150 N.Y.S.3d 569 (Chemung Cnty. Sup. Ct. 2021)).

In rendering the herein decision, the Court affords tremendous weight to the testimony of the court evaluator who deviated from his written recommendations after the POA was introduced for the first time at the hearing and is of the opinion that the appointment of a guardian is unnecessary. Accordingly, it is hereby,

ORDERED that the application for the appointment of a guardian for the AIP is DENIED; and it is hereby further

ORDERED that the Petition is DISMISSED; and it is hereby further

ORDERED that the court appointees shall submit a proposed order and detailed affirmation of services with thirty (30) days of the date of the herein Decision and Order."

ADOPT A SIBLING?

If an unstable parent cannot maintain custody of a child, as an alternative to foster care, etc., another family member is first sought. But if the only family member was an adult sibling, may this adult sibling formally adopt their younger siblings or is guardianship the only relief available?

Massachusetts was previously one of just two states to prohibit sibling adoption. Effective July 7, 2022, Mass. General Laws c.210, § 1 is amended to allow same.

ARBITRATION OF CONSTRUCTION DISPUTE AND MECHANICS LIEN

Tozzi v. McLoughlin Constr. Corp., Date filed: 2022-03-24, Court: Supreme Court, Suffolk, Judge: Justice Christopher Modelewski, Case Number: 615869/2021:

"This is an action sounding in claims for breach of contract, conversion, accounting, fraud, fraud in the inducement, and willful exaggeration of a mechanic’s lien. Plaintiff commenced this action by the filing of a summons and complaint on August 18, 2021. The complaint alleges that defendant McLoughlin Construction Corp. (“MCC”) breached a construction contract for the improvement of real property located at 77 Dune Road, Bridgehampton, New York (the “subject property”). The complaint alleges that plaintiff is a resident of the State of Wyoming and is also the owner of the subject property. The complaint further alleges that plaintiff acquired the subject property “with the intent of demolishing the existing home and constructing a new beach front summer home” (the “project”). The complaint further alleges that MCC and defendant James McLoughlin (“McLoughlin”) made certain representations regarding their skills, expertise, and experience in high-end home building to induce plaintiff to enter into a contract with MCC for the construction of the Project. The complaint further alleges that plaintiff and MCC entered into a contract dated August 2, 2018 for the improvement of the subject property by the construction of a two-story single-family residence (the “contract”). By submissions filed on September 29, 2021, MCC and McLoughlin filed a verified answer, third-party complaint, and moved to compel plaintiff to arbitrate his claims pursuant to §§6.1 and 6.2 of the contract (collectively referred to herein as “the arbitration clause”). MCC and McLoughlin argue that the arbitration clause requires this dispute to be resolved by arbitration pursuant to the American Arbitration Association Construction Industry Arbitration Rules. Plaintiff opposes the motion and argues that the arbitration clause in the contract is unenforceable and void under §399-c of the General Business Law (“GBL 399-c”), that MCC and McLoughlin failed to proceed to mediation, which is a condition precedent to arbitration, and that arbitration should not be compelled because not all claims are arbitrable. MCC and McLoughlin reply.

New York State “has a long and strong public policy favoring arbitration” (Matter of Smith Barney Shearson v. Sacharow, 91 NY2d 39, 49, 666 NYS2d 990 [1997]; see also Matter of Nationwide Gen. Ins. Co. v. Investors Ins. Co. of Am., 37 NY2d 91, 371 NYS2d 463 [1975]). “Any doubts as to whether an issue is arbitrable will be resolved in favor of arbitration” (State of New York v. Philip Morris Inc., 30 Ad3d 26, 813 NYS2d 71 [1st Dept 2006] affd 8 NY3d 574, 838 NYS2d 460 [2007]). CPLR 7501 confers jurisdiction on courts to enforce written arbitration agreements (Crawford v. Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d 291, 299 [1974]; see also Flores v. Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 370 [2005]). Specifically, a “written agreement to submit any controversy…to arbitration is enforceable without regard to the justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award” (CPLR 7501). “Where there is no substantial question whether a valid agreement was made or complied with…the court shall direct the parties to arbitrate” (CPLR 7503; see also Degraw Const. Group, Inc. v. McGowan Builders, Inc., 152 AD3d 567, 58 NYS3d 152 [2d Dept 2017]). The arbitration agreement need not be signed “so long as there is other proof that the parties actually agreed on it” (God’s Battalion of Prayer Pentecostal Church, Inc., v. Miele Associates, LLP, 6 NY3d 371, 374, 812 NYS2d 435 [2006]). On a motion to compel arbitration, it must be determined “in the first instance…whether the parties have agreed to submit their disputes to arbitration and, if so, whether the disputes generally come within the scope of their arbitration agreement” (Matter of Norrtheast & Central Contractors, Inc. v. Quanto Capital, LLC, ___AD3d ___, ___NYS3d ___, 2022 WL 791296, 2022 NY Slip Op 01791 [2d Dept 2022] quoting Revis v. Schwartz, 192 AD3d 127, 140 NYS3d 68 [2d Dept 2020]; see also Degraw Const. Group, Inc. v. McGowan Builders, Inc., supra at 569, 58 NYS3d 152 quoting Sisters of St. John the Baptist, Providence Rest Convent v. Geraghty Constructor, 67 NY2d 997, 998, 502 NYS2d 997 [1986]; Highland HC, LLC v. Scott, 113 AD3d 590, 978 NYS2d 302 [2d Dept 2014]). Indeed, “arbitration is a matter of contract” and an “arbitration clause is a contractual right” (Degraw Const. Group, Inc. v. McGowan Builders, Inc., supra at 569, 58 NYS3d 152). A party to an agreement will not be compelled to arbitrate its dispute with another unless the evidence establishes the parties’ “clear, explicit and unequivocal” agreement to arbitrate (God’s Battalion of Prayer Pentecostal Church, Inc., v. Miele Associates, LLP, 6 NY3d 371, 373, 812 NYS2d 435 [2006]).

In determining the rights and obligations of the parties to a contract, it is well-established that “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Greenfield v. Philles Records 98 NY2d 562, 569, 750 NYS2d 565 [2002]; R/S Assoc. v. N.Y. Job Dev Auth., 98 NY2d 29, 32, 744 NYS2d 358 [2002]). “In construing a contract, one of a court’s goals is to avoid an interpretation that would leave contractual clauses meaningless” (Two Guys from Harrison-N.Y. v. S.F.R. Realty Assoc., 63 NY2d 396, 403, 482 NYS2d 465, 468 [1984]). The aim of the court when interpreting a contract is to arrive at a construction that gives fair meaning to all of its terms and provisions, and to reach a “practical interpretation of the expressions of the parties so that their reasonable expectations will be realized” (see Pellot v. Pellot, 305 AD2d 478, 759 NYS2d 494 [2d Dept 2003]; Gonzalez v. Norrito, 256 AD2d 440, 682 NYS2d 100 [2d Dept 1998]; Joseph v. Creek & Pines, Ltd., 217 AD2d 534, 535, 629 NYS2d 75 [2d Dept], lv denied 89 NY2d 804, 653 NYS2d 543 [1996]; see also Matter of Matco-Norca, Inc., 22 AD3d 495, 802 NYS2d 707 [2d Dept 2005]; Tikotzky v. City of New York, 286 AD2d 493, 729 NYS2d 525 [2d Dept 2001]; Partrick v. Guarniere, 204 AD2d 702, 612 NYS2d 630 [2d Dept], lv denied 84 NY2d 810, 621 NYS2d 519 [1994]). As it is a question of law whether or not a contract is ambiguous (W. W. W. Assoc. v. Giancontieri, 77 NY2d 157, 565 NYS2d 440 [1990]), a court must first determine whether the agreement at issue on its face is reasonably susceptible to more than one interpretation (see Chimart Assoc. v. Paul, 66 NY2d 570, 498 NYS2d 344 [1986]). “If the language of the agreement is free from ambiguity, its meaning may be determined as a matter of law on the basis of the writing alone without resort to extrinsic evidence” (Salerno v. Odoardi, 41 AD3d 574, 575, 838 NYS2d 156 [2d Dept 2007]).

Here, there is no dispute that the contract includes an arbitration clause, which reads, in pertinent part, that

[i]f a dispute arises from or is related to this Agreement or a breach thereof, the parties shall endeavor in good faith to solve the dispute through direct negotiations. The Parties hereto agree in the event of a dispute arising stemming from or relating to this Agreement or a breach thereof, they will submit for resolution their dispute to their named designated private arbitrator…. If a dispute cannot be settled through direct negotiations, the parties agree to endeavor to settle the dispute through mediation administered by a mutually acceptable mediator…. If the dispute is not resolved within 10 days of being submitted to mediation, the parties further agree that the unresolved controversy or claim shall be settled through binding arbitration using the American Arbitration Association Construction Industry Arbitration Rules…. Any arbitration decision and/or award is final and binding and may be enforced in the courts of Suffolk County, New York.

The arbitration clause is clear and unambiguous and no party herein is arguing that the clause contains an ambiguity. Further, the arbitration clause is broadly worded and pertains to all claims arising from or relating to the contract. The Court of Appeals has determined that “an arbitration clause is generally separable from substantive provisions of a contract, so that an agreement to arbitrate is valid even if the substantive provisions of the contract are induced by fraud” (Ferrarella v. Godt, 131 AD3d 563, 566, 15 NYS3d 180 [2d Dept 2015] citing Matter of Weinrott (Carp), 32 NY2d 190, 344 NYS2d 848 [1973]). Thus, as a general rule, the issue of fraud in the inducement should be determined by the arbitrator, except where the arbitration clause specifically excludes fraud in the inducement from the issues to be determined by arbitration” (Anderson St. Realty Corp. v. New Rochelle Revitalization, LLC, 78 AD3d 972, 974, 913 NYS2d 114 [2d Dept 2010] citing GAF Corp. v. Werner, 66 NY2d 97, 105, 495 NYS2d 312 [1985] after remand 115 AD3d 1021 [1986] cert denied 475 US 1083 [1986]). Here, the fraud claims are not specifically excluded from arbitration. Further, fraud claims only affect the validity of the arbitration clause when the fraud relates to the arbitration provision itself. Here, there are no allegations “that the agreement was not the result of an arm’s length negotiation, or that the arbitration clause was inserted into the contract to accomplish a fraudulent scheme” (Ferrarella v. Godt, supra 131 AD3d at 566-67; Anderson St. Realty Corp. v. New Rochelle Revitalization, LLC, supra at 974, 913 NYS2d 114). Based upon the foregoing, the breach of contract, conversion, accounting, and fraud claims are to be determined by the arbitrator. There is no dispute that the mechanic’s lien claim is not arbitrable; such liens falling within the exclusive jurisdiction of the Court (see Lien Law §41). Despite plaintiff’s claims to the contrary, GBL 399-c (1)(a) does not apply herein. That statute defines a consumer as a natural person residing in New York. Plaintiff admits in his complaint that he is a resident and citizen of the state of Wyoming. Therefore, he cannot be considered a consumer subject to the provisions of GBL 399-c, which prohibits arbitration clauses in contracts for the sale or purchase of consumer goods. Due to this finding that the prohibitions of GBL 399-c do not apply, the Court need not reach the issue of whether GBL 399-c is preempted by the Federal Arbitration Act (9 USC §1 et seq.). Further, the argument that MCC was required to engage in mediation as a condition precedent to arbitration and that MCC’s failure to mediate precludes it from compelling arbitration are not issues for this Court to decide. Indeed, the issue of whether plaintiff and/or MCC waived mediation or whether MCC waived arbitration, are procedural questions for the arbitrator to decide under the subject arbitration clause (see Matter of Barbalious v. Exterior Wall Sys., Inc., 14 AD3d 508, 787 NYS2d 715 [2d Dept 2005]; Chain Sales Mktg., Inc. v. Roach, 65 Misc3d 1232 (A), 119 NYS3d 829 [Sup. Ct. Suffolk County 2019]; 33 Calvert Props. LLC v. AMEC LLC, 70 Misc.3d 295, 310, 135 NYS3d 767, 779 (Sup. Ct. Westchester County 2020]). The Court has considered the remaining arguments of plaintiff and finds that they lack merit.

Accordingly, the motion by defendants/third-party plaintiffs McLoughlin Construction Corp. and James McLoughlin is granted except as to the mechanic’s lien claim."

MASSACHUSETTS LAW - CRA AND TRUANCY - DOES THE SCHOOL NEED AN ATTORNEY

 

LEXINGTON PUBLIC SCHOOLS v. KS, Mass: Supreme Judicial Court 2022:

"In this case we are asked to decide whether an employee of a school district who is not an attorney, here an assistant school principal, may on behalf of a school district file and advocate for a petition under G. L. c. 119, § 39E, asserting that a child requires assistance, where the child has been "habitually truant" from school, see G. L. c. 119, § 21, and other efforts to encourage the child's attendance have been unsuccessful. We conclude that the assistant principal, who was also the supervisor of attendance, see G. L. c. 76, § 19, of a middle school in the Lexington public schools did not engage in the unauthorized practice of law in filing and pursuing such a petition. Accordingly, we affirm the Juvenile Court judge's order denying the child's motion to dismiss the petition on the ground that the assistant principal had engaged in the unauthorized practice of law.

1. Background.

In April of 2021, an assistant principal and attendance supervisor of a middle school in the Lexington public schools filed a petition under G. L. c. 119, § 39E, the child requiring assistance (CRA) statute, in the Juvenile Court, asserting that the twelve year old child needed assistance because he had "excessive absences" and willfully had failed to attend school for forty-eight days that school year. The petition asserted that in addition to his absences from school, the child had not attended two meetings the school undertook with his parents by audio-visual conference, and the child and his family had not participated in a truancy prevention program.

At a preliminary hearing later that month,^[1] a Juvenile Court judge accepted the petition pursuant to G. L. c. 119, § 39E, and concluded that a fact-finding hearing was necessary. The child subsequently moved to dismiss the petition on the ground that, by pursuing the petition on behalf of the school district, the assistant principal, a nonattorney, was engaging in the unauthorized practice of law.

A remote hearing on the child's motion to dismiss was conducted in May of 2021, prior to the previously scheduled fact-finding hearing. See G. L. c. 119, § 39E. The assistant principal, the probation officer who had conducted the initial, statutorily mandated inquiry, a social worker with the Department of Children and Families (DCF) who had been involved with the family, the child and his attorney, and the child's mother and father were present electronically.

During the hearing, counsel for the child presented the child's position that "a liquid entity such as a school district . . . is required to be represented by an attorney." The judge then asked the assistant principal whether she "wish[ed] to speak [with] respect to that." The assistant principal responded:

"General Laws [c. 119, § 39G,] actually does allow me, as a petitioner, to file, and throughout . . . the statute it particularly refers to the school district representative. It does not say attorney or counsel. Almost implying that the legislature when they created the law knew that requiring an attorney for every CRA would almost deter us from filing them and helping children."

Observing that "historically . . . school officials have been authorized to file and that's been the way these petitions have been handled,"^[2] the judge denied the motion to dismiss.

At the ensuing fact-finding hearing, which followed immediately upon the judge's ruling, the assistant principal testified as the sole witness for the school, and also represented the school district. By that point, the child had eighty-three absences from school, seventy-four of which were unexcused, and approximately six weeks of which were because his father had not enrolled him in school until mid-October. The assistant principal testified that the father had "worked very hard" to get the child enrolled in school, over obstacles; the father then had worked with the school to develop a plan to ensure the child's attendance; and "it went well for a little while and then it started to go down hill, again." The school then met with the mother, the child, the social worker, and the school counselor, forming another plan that worked briefly and then "went south." School social workers and school counselors also had "reached out multiple times trying . . . multiple different plans," including having a social worker go with the child to school, "even to just get [the child] in for a portion of the day," but none had succeeded. Early in the school year, the child was to have attended school in a hybrid fashion, partly in person and partly through remote learning, due to the COVID-19 pandemic. When the school returned to full-time, in-person classes on April 28, 2021, the child did not return to class.

Eventually, after the child was tested and found not to have any learning disabilities that might require an individual education plan, the school psychologist conducted a "school refusal assessment" to identify the reasons for the child's excessive absences. The assessment revealed that the child experienced school as stressful in part because of all the schooling he had missed. In addition, when the child was not in class, "he [was] allowed to play video games, ride his bike and do things that he really enjoy[ed] doing."

DCF had been involved with the family beginning in approximately November of 2020, apparently due to the child's absences from school. According to DCF, the fraught relationship between the child's parents, and their lack of communication, contributed heavily to the child's negative emotions toward attending school. The family's DCF worker had reported that the child required therapy and was experiencing emotional issues; therapy had begun but had been discontinued. DCF had sent a family intervention specialist to the child's home multiple times a week, "without any result."

The child did not offer any documentary evidence or present any witnesses. At the close of the evidence, the judge determined that the allegations in the CRA petition had been proved "beyond a reasonable doubt." Specifically, he found that the child was between the ages of seven and seventeen, the child had missed more than eight days of school in the current quarter, and the child's refusal to attend school was willful. The judge therefore ruled that the child required assistance.

At the time of the hearings, the child's parents were separated. They shared legal custody of the child and his younger sibling, but the child's father had physical custody, and the child resided with his father in Fitchburg; his mother lived in Lexington. The child continued to be enrolled in the Lexington public schools through the provisions of the McKinney-Vento Homeless Education Assistance Act, because "he [was] considered homeless under those provisions and his last residence was in Lexington."^[3] The probation officer characterized the parents' relationship as "fractured" and having "a lasting impact on [the child] and the behaviors."

At various times in the past, the child's father had refused to communicate with the child's mother, putting the child and his younger sibling in the middle of their parents' relationship and causing emotional issues for both children. As stated, a DCF worker cited the fraught relationship between the child's parents, and their lack of communication, as being specifically detrimental to the child, as well as to his younger sibling, and as contributing heavily to the child's aversion to attending school.

The parents' vitriolic relationship, and their hostility towards each other, is abundantly evident in their statements to the judge, often about each other. At one point during the fact-finding hearing, the judge asked the child to leave the room so that he could address the adults, and then he told the parents, repeatedly and in no uncertain terms, that, based on his observations of their interactions during the two hearings, their continual "sniping" with each other and inability to speak civilly to one another, or to communicate at all, was "absolutely destructive to [their children's] emotional well being and their ability to grow up and mature."

According to DCF records, the child's father reported that the child would not "listen to him" and would not go to school. DCF records also indicated that the child was reported to "sneak[ ] out of the house when dad turns his back" and "refuse[ ] to comply with his [father's] rules." Although she was not called as a witness, the child's mother told the judge that the child attended school and did his homework when he was staying with her, which he had done apparently for approximately one month. The mother also said that, during the time that he was with her, the child had begun to refuse to attend school, at which point she said that she would "push[ ] forward [the] CRA just so he knows that this is a serious thing." The mother maintained that the child was "absolutely 110 percent responsible for himself," and urged that the child be placed in DCF custody, in the apparent belief that, thereafter, DCF immediately would return the child to her custody. It appeared to have been difficult for both parents to monitor the child's school attendance, particularly when the child was attending school remotely. Even when the child did attend classes, he did not engage in class discussions or produce any written assignments.

The probation officer who had conducted the initial inquiry recommended that the child be placed in DCF custody. Once this recommendation was made, the judge informed the child's parents that they had the right to counsel at any hearing at which custody may be at issue, and he inquired whether they wished to be appointed counsel; they both responded affirmatively. The mother again asserted that she supported placing the child in DCF custody. The child's attorney objected to placement in DCF custody before the final hearing on disposition, and the child agreed that he would attend school prior to the hearing on disposition, without the need for DCF intervention.

The judge scheduled a hearing on disposition for the following week. The judge then admonished the child, "I'm very close to placing you in the custody of DCF. I'm going to give you the week to show us that you're good to your word." The child sought relief from the denial of his motion to dismiss from a single justice of the Appeals Court, pursuant to G. L. c. 119, § 39I, and G. L. c. 231, § 118. The single justice allowed the appeal to proceed before a panel of the Appeals Court, and we allowed the child's petition for direct appellate review.

2. Statutory provisions governing CRA proceedings.

The Legislature has enacted a comprehensive scheme mandating the attendance of children at school and requiring school districts to enforce their attendance and to investigate every case where a child living in the district is not enrolled in or attending school. School districts or attendance supervisors also are required to make detailed reports on each child in the city or town's registration and attendance.

The school attendance provisions in G. L. cc. 72, 76, and 119^[4] mandate that the school committee of each municipality is responsible for enforcing the attendance at school of "all children" who reside in that municipality, G. L. c. 76, § 1;^[5] define the roles and responsibilities of the supervisor of attendance, G. L. c. 76, § 19; authorize the supervisor of attendance to file CRA petitions where children are not complying with attendance requirements; and, if the court so orders, authorize that supervisor of attendance to have "oversight" over such children, G. L. c. 76, § 20.

To facilitate its duty to enforce school attendance, each school committee "shall appoint . . . one or more supervisors of attendance." See G. L. c. 76, § 19. "Supervisors of attendance, under the direction of the committee and superintendent of schools, shall have charge of the records required by [G. L. c. 72, § 2], shall be responsible for their completeness and accuracy, and shall receive the co-operation of principals, teachers and supervisory officers in the discharge of their duties hereunder." G. L. c. 72, § 2. Among other required reports, supervisors of attendance, under the direction of the school committee, must maintain a record of all school-age children residing in the town and must "examine carefully into all cases where children of school age are not enrolled in, and attending school, as required by [G. L. c. 76, § 1]." G. L. c. 72, § 2.

The school committee of each town is charged with enforcing the legislative mandate that children attend school "during the number of days required by the board of education in each school year." G. L. c. 76, § 1. Supervisors of attendance "shall inquire into all cases" where a child is habitually absent from school and "may apply for petitions under the provisions of [G. L. c. 119, § 39E]." G. L. c. 76, § 20. Pursuant to G. L. c. 119, § 39E,

"A school district may initiate an application for assistance in [the Juvenile Court] stating that said child is not excused from attendance in accordance with the lawful and reasonable regulations of such child's school, has willfully failed to attend school for more than [eight] school days in a quarter or repeatedly fails to obey the lawful and reasonable regulations of the child's school. The application for assistance shall also state whether or not the child and the child's family have participated in the truancy prevention program, if one is available, and a statement of the specific steps taken under the truancy prevention program to prevent the child's truancy; and if the application for assistance states that a child has repeatedly failed to obey the lawful and reasonable regulations of the school, a statement of the specific steps taken by the school to improve the child's conduct."

Moreover, G. L. c. 76, § 20, provides that, "if the court so orders," supervisors of attendance shall

"have oversight of children placed on probation . . . and of children admitted to or attending shows or entertainments in violation of [G. L. c. 140, § 197]. They may apprehend and take to school without a warrant any truant or absentee found wandering in the streets or public places."

When a CRA petition is presented for filing, the statute encourages attempting to resolve the matter without proceeding with the filing, and requires the clerk to "inform" the petitioner that "the petitioner may delay filing the request and choose to have the child and the child's family referred to a family resource center, community-based services program or other entity designated by the secretary of health and human services to provide community-based services . . . and return to court at a later time to file an application for assistance, if needed." G. L. c. 119, § 39E. The statute also mandates that the clerk "prepare, publish and disseminate to each petitioner educational material relative to available family resource centers, community-based services programs and other entities designated by the secretary of health and human services." Id.

Upon the filing of an application under G. L. c. 119, § 39E, the clerk "shall request the chief probation officer or a designee to conduct an immediate inquiry to determine whether in the officer's opinion the best interest of the child require that assistance be given." A preliminary hearing must be held "as soon as possible," and no later than fifteen days after the filing "to determine whether assistance is needed." Id. At the preliminary hearing, a Juvenile Court judge "shall receive the recommendation of the probation officer" who conducted the inquiry. Id. The judge then may

"(i) decline to accept the application for assistance because there is no probable cause to believe that the child and family are in need of assistance; (ii) decline to accept the application for assistance because it finds that the interests of the child would best be served by informal assistance, in which case the court shall, with the consent of the child and the child's parents or guardian, refer the child to a probation officer for assistance; or (iii) accept the application for assistance and schedule a fact-finding hearing."

Id.

If, after a fact-finding hearing, a judge determines that the statements in the petition have been proved beyond a reasonable doubt, the judge may deem the child to be in need of assistance. G. L. c. 119, § 39G. The judge then must convene a conference to receive recommendations "as to the best disposition" of the matter from the probation officer who conducted the initial inquiry, the child and the child's attorney, a representative from DCF if DCF is involved with the family, a representative of any community-based services program that is involved with the family, a representative from the child's school, the petitioner, the child's parent or legal guardian, and "any other person who may be helpful in determining the most effective assistance available to be offered to the child and family." Id. See G. L. c. 119, § 39F. The judge may decide to allow the child to remain with his or her parents or legal guardian, place the child in the care of another adult or private organization qualified to care for the child, or place the child in the custody of DCF. G. L. c. 119, § 39G.

The child has the right to counsel at all hearings, must be present at the fact-finding hearing and the subsequent conference on disposition, and has the right to be heard. G. L. c. 119, §§ 39F, 39G. The parents or legal guardians of the child have the right to notice and to be heard and the right to counsel if custody of the child is at issue. Id. A judge may allow a motion to dismiss upon a filing by one of the parties or the probation officer if the judge determines that dismissal would be in the best interests of the child, or by agreement of the parties. G. L. c. 119, § 39G.

3. Discussion.

The child argues that the CRA adjudication should be vacated and the matter remanded to the Juvenile Court with instructions to dismiss because the school district was represented by a nonlawyer, the assistant principal, who engaged in the unauthorized practice of law. The crux of the child's argument is that a school district is a corporation under G. L. c. 71, § 16, and therefore is required, under G. L. c. 221, § 46, and the common law, to be represented in court by an attorney. Both statutory interpretation and determinations under common law are legal questions that the court reviews de novo. See Concord v. Water Dep't of Littleton, 487 Mass. 56, 60 (2021).

The child maintains that, regardless of whether the CRA statute permits a school district to be represented in court by a supervisor of attendance who is not an attorney, "[t]he assistant principal does not have the legal authority to . . . prosecute an action on behalf of the Lexington School Department." Although the child acknowledges that G. L. c. 119, § 39E, on its face permits a "school district" to "initiate" a CRA petition, in his view either G. L. c. 221, § 46, or the common law, preclude a supervisor of attendance from pursing a CRA petition in court, because to do so would constitute the unauthorized practice of law.

a. Unauthorized practice of law.

As the child argues, the consequences of nonlawyers engaging in the practice of law are well known and have been discussed in detail in our prior decisions. "Long experience has demonstrated that such activities [i.e., those that constitute `practicing law'] cannot be carried on with fairness to the persons whose rights are involved . . . except by those who have specially fitted themselves for the task by long study and preparation, who are subject to professional discipline. . . ." Matter of the Shoe Mfrs. Protective Ass'n, 295 Mass. 369, 372 (1936) (Matter of Shoe). The ultimate purpose of the prohibition against nonlawyers practicing law is to protect the public welfare, so that people are not "advised and represented in legal matters by incompetent and unreliable persons, over whom the judicial department could exercise little control." See Lowell Bar Ass'n v. Loeb, 315 Mass. 176, 180 (1943) (Loeb).

"The judicial department is necessarily the sole arbiter of what constitutes the practice of law." Id. We have long recognized that "[i]t is not easy to define the practice of law," as members of other professions engage in many of the same, or similar, activities as lawyers. Id. See Real Estate Bar Ass'n for Mass. v. National Real Estate Info. Servs., 459 Mass. 512, 518 (2011). For instance, "accountants routinely provide advice to their clients that requires knowledge and understanding of the law and that also has legal ramifications." Real Estate Bar Ass'n for Mass., supra at 518 n.9. Similarly, "[p]olice prosecutors, who normally are not members of the bar, customarily prosecute offenses . . . in the District and Municipal Courts of the Commonwealth." Furtado v. Furtado, 380 Mass. 137, 148 (1980). Thus, "[w]hether a particular activity constitutes the practice of law `must be decided upon its own particular facts' because `it is impossible to frame any comprehensive and satisfactory definition' of the term." Real Estate Bar Ass'n for Mass., supra at 517, quoting Matter of Shoe, 295 Mass. at 372.

While "[c]ourts are the ultimate arbiters of who may practice law before them, . . . we give substantial deference to the views of the Legislature on such a subject." Furtado, 380 Mass. at 147-148. Here, the Legislature has determined that a school district "may initiate an application for assistance in [the Juvenile Court] stating that [a] child is not excused from attendance in accordance with the lawful and reasonable regulations of such child's school, [and] has willfully failed to attend school for more than [eight] school days in a quarter." G. L. c. 119, § 39E. Similarly, a school supervisor "may apply for [CRA] petitions under the provisions of [G. L. c. 119, § 39E]." G. L. c. 76, § 20.

The child does not address the specific statutory provisions under G. L. c. 76, § 20, and G. L. c. 119, § 39E, giving school supervisors authority to file CRA petitions, nor does he acknowledge that the Legislature may abrogate the common law. "[A] statutory repeal of the common law will not be lightly inferred," see Passatempo v. McMenimen, 461 Mass. 279, 290 (2012), "[b]ut a common-law rule may be replaced or amended by the Legislature even where `there is no indication of legislative intent to preempt the common law' if the enacted statute preempts the common law by `necessary implication'" (citation omitted), Chelsea Hous. Auth. v. McLaughlin, 482 Mass. 579, 591 (2019).

Because the Legislature has expressly authorized both a school district, G. L. c. 119, § 39E, and a supervisor of attendance, G. L. c. 76, § 20, to apply for CRA petitions, we turn to consideration of the statutory provisions governing CRA proceedings to determine whether they purport to allow a supervisor of attendance to engage in the unauthorized practice of law by doing so.

b. Statutory authority to pursue a CRA petition.

"A fundamental principle of statutory interpretation `is that a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved use of the language, considered in connection with the cause of its enactment . . . and the main object to be accomplished. . . ." Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 749 (2006), quoting Hanlon v. Rollins, 286 Mass. 444, 447 (1934). Where the language of a statute is "clear and unambiguous," the plain meaning of the language must be given effect, as the key insight into legislative intent. See Cohen v. Commissioner of the Div. of Med. Assistance, 423 Mass. 399, 409 (1996), cert. denied sub nom. Kokoska v. Bullen, 519 U.S. 1057 (1997). See also Furtado, 380 Mass. at 147-148. The plain meaning of words is to be derived from "their use in other legal contexts and dictionary definitions." Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977). "Only if the legislative history compelled a different conclusion might we depart from the plain meaning of the statute." Cohen, supra. If the statutory language is ambiguous, however, then a court turns to external sources, particularly the legislative history, to derive legislative intent. See Telesetsky v. Wight, 395 Mass. 868, 872 (1985).

We begin with the observation that the CRA statute, G. L. c. 119, § 39E, provides an avenue for a school district to address the root causes of a child's excessive absences from school. The initiation of CRA proceedings in the Juvenile Court facilitates a family's access to community resources and services, and ultimately may allow the Juvenile Court to "intervene in the custody arrangements" of the child. See Millis Pub. Sch. v. M.P., 478 Mass. 767, 781 (2018) (Millis); G. L. c. 119, § 39E. The Legislature's decision to allow a school district to pursue a CRA petition without counsel was made in furtherance of the Commonwealth's strong interest in ensuring the education of children through their consistent attendance at school. See Care & Protection of Charles, 399 Mass. 324, 334 (1987) (discussing "the substantial State interest in the education of its citizenry"); Attorney Gen. v. Bailey, 386 Mass. 367, 377, 380-381, cert. denied, 459 U.S. 970 (1982) (State's interest in compulsory education is "compelling"). The language of G. L. c. 119, § 39E, and G. L. c. 76, § 20, is clear and unambiguous as to the authority of the school district and the supervisor of attendance to apply for CRA petitions, and consistent with this purpose.

Nothing in the statutory language, however, suggests that pursuing a CRA petition in the Juvenile Court requires the practice of law. To the contrary, the Legislature plainly intended that individuals other than attorneys may apply for such petitions, and that the court should provide materials to help them during their appearance in court. In addition to a school district or attendance supervisor, the Legislature authorized a parent, custodian, or legal guardian to file a CRA petition. See G. L. c. 119, § 39E; G. L. c. 76, § 20. "If the petitioner is a parent, legal guardian or custodian the clerk shall provide to the petitioner informational materials, prepared by the court that explain the court process and shall include the types of orders that the court may issue and the possibility of changes in the custody of the child and may include an explanation of the services available through the court process, including language translation services and the manner in which those services are delivered." G. L. c. 119, § 39E. For all petitioners, when a petition is presented, the clerk is obligated, before accepting it for filing, to notify the petitioner "that the petitioner may delay filing the request and choose to have the child and the child's family referred to a family resource center, community-based services program or other entity designated by the secretary of health and human services . . . and return to court at a later time to file an application for assistance, if needed." Id. In addition, for all petitioners, the clerk is to "prepare, publish and disseminate to each petitioner educational material relative to available family resource centers, community-based services programs and other entities designated by the secretary of health and human services. Id.

CRA proceedings are intended to be relatively informal. In 2012, the Legislature replaced the children in need of services (CHINS) statute, which it had adopted in 1973, with the CRA statute, with the goal of making such proceedings "less adversarial." See Millis, 478 Mass. at 778-779; An Act regarding families and children engaged in services, St. 2012, c. 240. Among other modifications, the Legislature removed the requirement of a jury trial and replaced it with a fact-finding hearing by a judge, if the judge determines that such a hearing is in the best interests of the child. See Millis, supra at 779 n.13, citing R.L. Ireland & P. Kilcoyne, Juvenile Law § 4.1 (Supp. 2017); G. L. c. 119, § 39E. The determinations the judge must make at such hearings are heavily fact-intensive: whether the child is between six and eighteen years of age (exclusive), whether the child has had more than eight unexcused absences in a quarter, and, if so, whether those absences were willful. G. L. c. 119, § 39E.

The Juvenile Court has adopted and promulgated a short and simple form to be used by a school district in initiating a CRA petition, titled "School District Application for Child Requiring Assistance"; the school superintendent here used such a form to submit her petition. See Juvenile Court Standing Order 3-21, "Child Requiring Assistance Proceedings" ("This new standing order sets forth a standard statewide process in the Juvenile Court for child requiring assistance [CRA] proceedings that is in keeping with the mission of the Juvenile Court to assist children and strengthen families"). The fact-finding hearing on an accepted petition is described in the standing order as "flexible" in nature, and the order states that, due to this flexibility, hearsay evidence should be admitted. See id. Consequently, a school official representing a school district in CRA proceedings need not possess a "thorough familiarity with procedural and substantive rules of law." See Varney Enters., Inc. v. WMF, Inc., 402 Mass. 79, 81 (1988).

Moreover, while the child must be represented by an attorney at all CRA proceedings, and the parent or legal guardian is entitled to an attorney if the question of custody arises, a school district may "initiate" a CRA application and "may be represented by counsel" (emphasis added), but, as a petitioner, a school district "shall" be present at the proceedings (emphasis added). See G. L. c. 119, § 39E, 39G; Juvenile Court Standing Order 3-21. Neither the statutory provisions nor the Juvenile Court order states that a school district "must" be represented by counsel at such proceedings. The judge's comment at the fact-finding hearing that "historically . . . school officials have been authorized to file and that's been the way these petitions have been handled" is consistent with these provisions.

This practice furthers the legislative purpose to ensure that children attend school for the mandatory number of days each year. Interpreting the filing of a CRA petition otherwise, as the practice of law, would require school districts instead to retain attorneys to represent them at CRA proceedings, and would disrupt this established practice in a manner that likely would be detrimental to children. "[C]ustom and practice may play a role in determining whether a particular activity is considered the practice or law." Real Estate Bar Ass'n for Mass., 459 Mass. at 518.

We have, in other circumstances, approved the prosecution of complaints by individuals who are not members of the bar, particularly where the individual acts "pursuant to his statutory duties." See Furtado, 380 Mass. at 147. In Furtado, for example, we held that a probation officer permissibly could appear in the Probate and Family Court to pursue a contempt proceeding for nonpayment of child support without engaging in the unauthorized practice of law. We noted that a probation officer is statutorily mandated to "bring into court when necessary . . . all persons who are delinquent in making payments ordered or decreed by the court" and possesses full power to "do each and every[ thing] necessary, including initiating contempt proceedings, to collect any and all delinquent payments." Id., quoting G. L. c. 276, §§ 85A, 85B. Because "[t]he State's interest in compliance with support orders is substantial," and probation officers are charged with ensuring that support payments are made, we concluded that it would not be improper for a probation officer to prosecute a contempt complaint. Furtado, supra at 147-148. Similar reasoning supports a conclusion that the assistant principal did not engage in the unauthorized practice of law by filing the CRA petition and pursuing it in the Juvenile Court.

In filing a CRA petition, a supervisor of attendance is undertaking the enforcement actions that are statutorily mandated for the position. A supervisor of attendance is obligated to monitor the enrollment of children in school and their daily school attendance, see G. L. c. 72, § 2 ("Supervisors of attendance . . . shall have charge of the records [of school registration]" and "shall be responsible for their completeness and accuracy"); G. L. c. 76, § 20 (supervisor of attendance "shall inquire into all cases arising under" statutory sections pertaining to school registration and daily attendance). Thus, the Legislature reasonably expected that a supervisor of attendance often would be the one to pursue a CRA petition.^[6]

We have recognized the difficulty in providing a precise definition of the practice of law, because members of other professions engage in many of the same, or similar, activities as lawyers, such as making "legally binding obligations and commitments." Real Estate Bar Ass'n for Mass., 459 Mass. at 518. A determination whether an individual's actions constitute "practicing law" is a fact-specific inquiry. Matter of Shoe, 295 Mass. at 372. An action "generally [must] fall `wholly within' the practice of law" in order for nonlawyers to be prohibited from engaging in it (citation omitted). See Real Estate Bar Ass'n for Mass., supra.

For instance, "[f]illing out standard government forms for others is not necessarily the practice of law." Id. at 525, citing Loeb, 315 Mass. at 185. See LAS Collection Mgt. v. Pagan, 447 Mass. 847, 850 (2006) ("there are circumstances where the mere preparing of forms is not the practice of law"). Here, as the school district asserts, all that the assistant principal did to apply for the CRA petition was "complet[e] a simple form provided by the Trial Court's Juvenile Court Department." See Furtado, 380 Mass. at 147 (filing complaint is not unauthorized practice of law where it is done "pursuant to . . . statutory duties"). See also Real Estate Bar Ass'n for Mass., 459 Mass. at 525, and LAS Collection Mgt., supra (simple act of filing form is not necessarily unauthorized practice of law).

Although her claim was filed on a form explicitly created for that purpose, in filing the CRA petition, the outcome of which affects the rights of the child and his parents, and in representing the school district at the hearing, the assistant principal indeed did "direct[ ] and manag[e] the enforcement of legal claims" and "draft[ ] documents by which such [legal] rights are created, modified, surrendered or secured." See Matter of Shoe, 295 Mass. at 372. "[I]n general the practice of directing and managing the enforcement of legal claims and the establishment of the legal rights of others, where it is necessary to form and act upon opinions as to what those rights are and as to the legal methods which must be adopted to enforce them, . . . and the practice . . . of drafting documents by which such rights are created, modified, surrendered or secured are all aspects of the practice of law." Id. At the same time, the assistant principal's conduct at the fact-finding hearing involved only presenting information about the child's attendance and the efforts that the school had undertaken to ameliorate his ongoing absence from school, and responding to questions from the judge and the child's attorney. As the school district maintains, these actions do not constitute "the type of legal representation and/or prosecution activity reserved for members of the bar." See LAS Collection Mgt., 447 Mass. at 849-851; Loeb, 315 Mass. at 183. Because the assistant principal's actions did not fall "`wholly within' the practice of law," Real Estate Bar Ass'n for Mass., 459 Mass. at 518, her conduct cannot be described as the unauthorized practice of law.

Fundamentally, a CRA proceeding is not a legal proceeding where the parties necessarily are on opposing sides of a legal outcome. All sides are to be guided by what services are available to best meet the needs of the child, to allow a child to obtain an education, G. L. c. 119, § 39E, and thereby be positioned to become a contributing member of society. Indeed, the Legislature clearly contemplated that such petitions often will be filed by parents or legal guardians themselves, seeking assistance for their child. Recommendations submitted by social workers, mental health professionals, parents, and teachers pursuant to G. L. c. 119, § 39E, which a judge may consider in reaching a disposition, are decidedly not suggestions of legal strategies to follow in order to prevail in a complaint. The provisions of G. L. c. 119, § 39E, permit those who know the child best to offer their guidance as to how best to help the child attend school. They are suggestions that the judge may accept and consider in his or her discretion. Nothing in this type of proceeding indicates that a petitioner filing and pursing a CRA petition is practicing law.

The child argues that a nonlawyer would be less likely to "understand and present to the court the custody status of the child," and therefore less able to comply with the requirement of G. L. c. 119, § 39E, that a description of the child's custody status be provided. The statute also requires, however, that a probation officer be assigned as soon as a petition is filed, to conduct an inquiry and provide a recommendation to the court. See G. L. c. 119, § 39E. In addition, the statute mandates that DCF, if it is involved with the child, be present at the hearing to determine whether the child is in need of services, as well as at the hearing on disposition, and DCF, the school, and the probation officer all have a right to present recommendations as to disposition. See id. Thus, the judge would have access to reports and recommendations from all of the experts who have been involved with the child, and also could call on "any other person" whose information might "be helpful in determining the most effective assistance available to be offered to the child and family." See G. L. c. 119, § 39G. Otherwise put, any risks attendant to nonlawyers filing and pursing a CRA petition are mitigated by express statutory provisions. Moreover, the statute also requires that a petitioner file with a petition all of the steps that the school took to ameliorate the situation and have the child present in school. G. L. c. 119, § 39E. A school official from the child's school likely would be in the best position to have that knowledge and to be able to provide it cogently to the judge, whereas parents filing such petitions might experience emotional burdens that could detract from an accurate and objective presentation of the relevant facts.

Although the child goes to great lengths to point out the "complexity" of the legal and factual issues that arise at such proceedings, CRA proceedings are specifically designed not to be adversarial. See Millis, 478 Mass. at 778-779; St. 2012, c. 240. As this court emphasized in Millis, supra at 784, "a finding of wilfulness is a fact-based inquiry that will depend on the circumstances of each case. . . . Each child's purpose or reasons for missing school should be examined individually in order to determine whether the absences are wilful beyond a reasonable doubt." A CRA proceeding on truancy is relatively straightforward and requires little by way of legal argument; the sole determination to be made, by the judge, is whether the child is in need of assistance as the statute defines it and, if so, what disposition, including remaining with the parents, would be in the child's best interests. See G. L. c. 119, § 39E. A determination of the child's best interests is made without reference to any other case or any specific guidelines. The individuals who may be present at the hearing, and who may recommend the appropriate disposition, are clearly nonlawyers. In addition to the child and the parents, legal guardian, or custodian, they include a DCF social worker or representative, the school district, and the probation officer who conducted the mandatory initial inquiry. Moreover, as stated, "any other person" may be asked to make a recommendation, or, as happened at this hearing, the parents may request that another individual be present and make a recommendation as to disposition. See G. L. c. 119, §§ 39F, 39G.

The child also argues that having an attorney at a CRA fact-finding proceeding would help to ensure that "the court has better evidence because lawyers know how to operate within the rules of court, producing more reliable evidence," and that "[h]aving legal counsel could also promote settlement of cases outside of court." With respect to the efforts that have been attempted to bring the child into school, and the reasons that those have not been successful, the school representatives who engaged in the efforts will be familiar with the efforts undertaken by the school district and will be able to present them straightforwardly as facts on the ground, rather than as an advocate. Additionally, the statute contains multiple provisions encouraging not filing a CRA petition at all, and requirements that the court clerk advise the parties of alternatives and the possibility of a delay in filing; nothing in this shows that having an attorney would be more likely to allow the parties to reach a "settlement" outside of court. In any event, the child's arguments are policy suggestions that the Legislature could have, but did not, choose to implement.

The child also argues that the petitioner's representation by an attorney "would help to ensure" that the constitutional requirements of notice, such as to the parents, are met. Under the plain terms of G. L. c. 119, § 39E, however, parents and guardians, as well as the child, are entitled to notice at each stage of the proceeding, notice that presumably is sent by the clerk upon the filing of the petition and the scheduling of hearings, just as the clerk must ask the chief probation officer or designee to conduct the relevant investigation. See id.

The conclusion that filing a CRA petition and pursuing it in the Juvenile Court is not the practice of law comports with the legislative purpose in enacting the CRA provisions. The school district argues in its brief that "requiring a lawyer for every CRA Application may very well deter the filing of such applications and would allow parents and children to miss school without consequence." The assistant principal testified at the fact-finding hearing that a requirement that an attorney represent a school in a CRA proceeding could discourage school districts from filing such petitions due to the time and expense involved, as well as potential unwelcome publicity.

Public school districts, as the Legislature undoubtedly is aware, do not have unlimited funding, and retaining an attorney to prosecute every CRA petition would be prohibitively costly for many districts. For example, in 2019, school districts in Suffolk County alone filed 503 CRA petitions related to truancy. See Juvenile Court & Probation Service, Child Requiring Assistance Periodic and Annual Report, January 1, 2019 — December 31, 2019 (Jan. 28, 2021).^[7] As the mother argues, an interpretation of G. L. c. 119, § 39E, that resulted in such deterrence ultimately would be inconsistent with the Commonwealth's "clear public policy that highlights the importance of a child's education and attendance at school, which is reflected in the compulsory attendance law." See Care & Protection of Charles, 399 Mass. at 335; Bailey, 386 Mass. at 377, 380-381. Because the Legislature has concluded that obtaining an education is in a child's best interests, and because the best interests of the child are a guiding factor in CRA proceedings, an interpretation requiring attorney representation of petitioning schools at such proceedings, and the consequent potential deterrent effect, could result in harm to the very students the Legislature sought to protect.

c. School district as corporation.

In addition to his implicit argument that G. L. c. 119, § 39E, improperly attempts to extend the practice of law by allowing school districts and supervisors of attendance to initiate and pursue CRA petitions, the child contends that, as a corporation, the school district was statutorily precluded from appearing in court without being represented by an attorney. See G. L. c. 221, § 46. The child also relies on the common-law rule that a corporation "must appear and be represented in court, if at all, by attorneys." See Varney Enters., Inc., 402 Mass. at 82.

Because we have concluded that a supervisor of attendance who files and pursues a CRA petition under G. L. c. 119, § 39E, does not engage in the unauthorized practice of law, we need not reach these arguments. Nonetheless, a few observations are in order.

A school district, under G. L. c. 70, § 2, is defined as, inter alia, "the school department of a city or town" or "a regional school district." Pursuant to G. L. c. 40, § 1, cities and towns are deemed "bodies corporate, and, except as otherwise expressly provided, shall have the powers, exercise the privileges and be subject to the duties and liabilities provided in the several acts establishing them and in the acts relating thereto." Moreover, as defined in G. L. c. 71, § 16, "[a] regional school district established under the provisions of the preceding section shall be a body politic and corporate with all the powers and duties conferred by law upon school committees."

Thus, while a school district indeed is a corporate body, it is first and foremost a municipal corporate body. Municipal bodies are governed by an entire chapter of law that is distinct from the statutory provisions governing corporations. See G. L. c. 39, "Municipal Government." There are sound reasons for different requirements to apply to "public or municipal corporations" and to "private or moneyed corporations." See O'Donnell v. North Attleborough, 212 Mass. 243, 245-246 (1912). The school district notes that "each of the cases [the child] cites deals with private, commercial enterprises and activities," entities that are subject to different statutory provisions from municipal corporations.^[8]

General Laws c. 221, § 46, provides that "[n]o corporation or association shall practice or appear as an attorney for any person other than itself in any court in the commonwealth" (emphasis added). In filing the CRA petition, the school district performed its statutorily mandated duty to enforce school attendance, part of "its lawful business." See G. L. c. 221, § 46. Even if there were any doubt whether the provisions applicable to legal representation with respect to for-profit corporations also are applicable to municipal corporations, the more specific CRA statutes, G. L. c. 76, § 20, and G. L. c. 119, § 39E, would control over the more general corporate statute. See Pereira v. New England LNG Co., 364 Mass. 109, 118 (1973) ("If a general statute and a specific statute cannot be reconciled, the general statute must yield to the specific statute").

Most significantly, as O'Donnell, 212 Mass. at 245-246, makes clear, given the distinction between "private or moneyed corporations" and "public . . . municipal corporations," a statutory requirement that applies to the former is applicable to the latter only where such a requirement is "express[ly] enact[ed]" by the Legislature. See, e.g., Mrugala v. Boston, 330 Mass. 707, 708 (1953); New Bedford v. New Bedford, Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 329 Mass. 243, 250 (1952). Nothing in the language of G. L. c. 221, § 46, provides that it is applicable to municipal corporations, in addition to private, moneyed corporations.

Order denying motion to dismiss affirmed.

[1] General Laws c. 119, § 39E, requires that a preliminary hearing be conducted no more than fifteen days after the filing of the petition.

[2] See G. L. c. 76, § 20 (providing that supervisors of school attendance "may apply for petitions under the provisions of [G. L. c. 119, § 39E]"); Juvenile Court Standing Order 3-21(a) commentary ("supervisors of school attendance may file applications [on behalf of the school district] alleging that the child is truant").

[3] The McKinney-Vento Homeless Education Assistance Act was enacted to "ensure the enrollment, attendance and the opportunity to succeed in school for homeless children and youth." Department of Elementary and Secondary Education, https://www.doe.mass.edu/sfs/mv [https://perma.cc/25KK-MGFJ]. Homeless children who are covered under the McKinney-Vento provisions are allowed to stay in their "school of origin for the duration of homelessness and until the end of the academic year in which they obtain permanent housing, if it is in their best interest." SchoolHouse Connection, McKinney-Vento Act: Quick Reference, https://schoolhouseconnection.org/mckinney-vento-act/?gclid=EAIaIQobChMI1b_zmqPs8wIV4QmICR0l_AP2EAAYASAAEgK_WvD_BwE#_edn18 [https://perma.cc/K5PF-5JA6]. Both State educational agencies and local education agencies "must develop, review, and revise policies to remove barriers to the identification, enrollment, and retention of homeless students in school, including barriers due to fees, fines, and absences." Id.

[4] See G. L. c. 119, §§ 21, 39E-39I; G. L. c. 72, §§ 2, 2A, 3; G. L. c. 76, §§ 1, 19, 20.

[5] General Laws c. 76, § 1, requires "[t]he school committee of each town [to] provide for and enforce the school attendance of all children actually residing therein."

[6] Prior to the 2012 overhaul of the CHINS system, G. L. c. 119, § 39E, provided that "[a]ny supervisor of attendance" could initiate a CRA petition alleging habitual truancy or school disobedience. See St. 1973, c. 1073, § 5. The current version, by contrast, provides that "a school district" may initiate a CRA petition for such reasons. See G. L. c. 119, § 39E. Notably, the Legislature in 2012 made no changes to the language of G. L. c. 76, § 20, which was enacted in 1973 along with the original G. L. c. 119, § 39E. General Laws c. 76, § 20, continues to permit a supervisor of attendance to "apply for" CRA petitions. See St. 1973, c. 1073, § 1. Thus, the Legislature's use of the words "school district" in place of "supervisor of attendance" in the text of G. L. c. 119, § 39E, was not meant to revoke the power of supervisors of attendance to file and pursue CRA petitions. To the contrary, the language appears to authorize other school officials, in addition to the supervisor of attendance, to represent a school district at CRA proceedings.

It is reasonable for the Legislature to have authorized other school officials to represent a school district in CRA proceedings. There may be another individual at a school who has worked more closely with the child and is more familiar with the child's circumstances than the supervisor of attendance. It would make sense for this individual to participate in CRA proceedings instead of the supervisor of attendance, as this individual would likely have a better understanding of the child and family's needs.

[7] Available at https://www.mass.gov/doc/2019-child-requiring-assistance-court-report/download [https://perma.cc/N4AM-VFZ8].

[8] LAS Collection Mgt., 447 Mass. at 847, involved a property management company; Loeb, 315 Mass. at 177, involved tax preparation services for individuals; and Matter of Shoe, 295 Mass. at 370, involved a business in the collection and adjustment of commercial accounts for goods sold, mainly on behalf of wholesale merchants and manufacturers in the shoe business. Real Estate Bar Ass'n for Mass., 459 Mass. at 513-514, involved certain real estate settlement services to mortgage lenders. Rental Prop. Mgt. Servs. v. Hatcher, 479 Mass. 542, 543 (2018), involved a property manager who brought a summary process action in the Housing Court in the name of his sole proprietorship, which was not the owner or lessor of the property. Varney Enters., Inc., 402 Mass. at 80, involved a small claims action between two corporations."

WHEN LAWYERS THROW MUD AT EACH OTHER ONLINE

Mor v. IMBESI LAW PC, 2022 NY Slip Op 30799 - NY: Supreme Court March 10, 2022:

"In this action, inter alia, to recover damages for libel, defendants Imbesi Law P.C. (Imbesi Law), Vincent James Imbesi (Imbesi), and Brittany Sloane Weiner (Weiner), move, pursuant to CPLR 3211(a)(1) and (7), to dismiss the amended complaint insofar as asserted against them.

BACKGROUND

From October 2017 to October 2018, plaintiff Ariel Mor Esq. (aka Ari Mor) and his law firm plaintiff Ari Mor Esq., P.C. (together Mor) subleased an office space from Imbesi Law pursuant to two separate lease agreements (Lease Agreements, NYSCEF Doc. Nos. 12, 13). The space subleased by Mor was part of a larger office suite utilized by Imbesi Law.

According to Mor, the phone lines in his subleased space never operated and Imbesi Law effectively blocked him from accessing interne and printing services (Amended Complaint at ¶ 13, NYSCEF Doc. No. 46). Additionally, Mor alleges that the air conditioning units in the subleased space failed on a consistent basis and that Imbesi intentionally turned off the power to the unit, making it impossible for Mor to work there for more than two hours at a time (id. at ¶¶ 14, 16). Further, Mor asserts that Imbesi posted notices throughout the office suite meant to embarrass and harass Mor and to prevent him from being able to conduct business at the premises (id. at ¶ 17). Collectively, the notices indicated that Mor failed to pay his rent for May and June 2018 and failed to pay his share of the electricity bill from February to July 2018 (id. at Exh 6).

Mor acknowledges that he stopped paying rent in May of 2018, but claims he stopped doing so because of the aforementioned allegations, which he asserts amounted to a constructive eviction (id. at ¶ 18-19). Mor alleges that after he refused to pay rent, John and Jane Does #1-100 (the Doe defendants), who Mor believes to be Imbesi and/or his law partner Weiner, began posting "numerous and repeated false and defamatory statements" on various websites, including Yelp.com (id. at ¶ 18-20). The Yelp reviews, some of which Mor reproduces in his amended complaint, are purported to be made by individuals who retained and/or did business with Mor (id. at ¶ 20).

According to Mor, he never did business with any of these individuals and the statements posted by them "anonymously under fake aliases" are fabricated (id. at ¶¶ 19, 22-35). Mor believes that Imbesi and/or Weiner created fake accounts in order to post these "defamatory reviews" (id. at ¶ 34).

Mor asserts that the statements posted in these Yelp reviews ruined his reputation and "had the effect of lowering [his] good will and worthiness in the estimation of the community, deterring others from associating or dealing with [him], and otherwise exposing [him] to contempt and ridicule" (id. at ¶¶ 139-140). He alleges that "[a]ny client or prospective client who investigates and/or searches [him] on, inter alia, www.Google.com and/or www.Yelp.com [would quickly find] the Defamatory Statements" (id. at ¶ 142).

On September 4, 2018, Mor commenced the instant action against Imbesi Law, Imbesi, Weiner, and the Doe defendants, alleging causes of action for: libel; libel per se; injurious falsehood; tortious interference with prospective business advantages, opportunities and relations; fraud; violation of section 349 of the General Business Law (General Business Law 349); breach of contract; commercial tenant harassment under section 22-902 of the Administrative Code of the City of New York (Administrative Code 22-902); partial constructive eviction; and for a declaration that the statements posted on the interne are defamatory and/or defamatory per se (Original Complaint, NYSCEF Doc. No. 1).

In the interim, Imbesi Law initiated a summary non-payment proceeding in the New York City Civil Court against Mor, entitled Imbesi Law P.C. v Law Offices of Ari Mor, Esq., P.C. (L&T Index No. 064133/2018). On September 4, 2018, Mor moved by order to show cause to remove the non-payment proceeding and to consolidate it with the instant action. On October 29, 2018, this court granted Mor's motion (Order [Mot. Seq. No. 001], NYCEF Doc. No. 24).

Thereafter, Imbesi Law, Imbesi and Weiner moved to dismiss the original complaint insofar as asserted against them. By order dated May 8, 2020 (the prior order), this court granted their motion to the extent of (1) dismissing the causes of action alleging violation of General Business Law 349 and commercial harassment under Administrative Code 22-902, and (2) dismissing the causes of action for libel, libel per se, breach of contract, and a declaratory judgment with leave to replead these claims with specificity and serve an amended complaint as to those causes of action within 30 days (Order [Mot. Seq. No 002], NYSCEF Doc. No. 44). The court denied, as moot, those branches of the motion which were to dismiss the causes of action for injurious falsehood, tortious interference, fraud, and partial constructive eviction, on the ground that those causes of action were withdrawn by Mor in opposing the motion (id.).

On June 7, 2020, Mor filed an amended complaint against the same defendants asserting causes of action for (1) libel, (2) libel per se, (3) breach of implied covenant of good faith and fair dealing, (4) commercial tenant harassment under Administrative Code 22-902, and (5) seeking a declaration that defendants have committed libel and/or libel per se (Amended Complaint, NYSCEF Doc. No. 46).

Now before the court is a motion by Imbesi Law, Imbesi, and Weiner (hereinafter the moving defendants) to dismiss the amended complaint as against them pursuant to CPLR 3211(a)(1) and (7). For the following reasons, their motion is denied.

DISCUSSION

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction" and the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). On a CPLR 3211(a)(1) motion to dismiss based on documentary evidence, "a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law. In assessing a motion under CPLR 3211(a)(7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (id. at 88 [internal quotation marks and citations omitted]).

Libel and Libel Per Se

"The essence of the tort of libel is the publication of a statement about an individual that is both false and defamatory" (Brian v Richardson, 87 NY2d 46, 50-51 [1995]). A defamatory statement is one that "tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace" (Davis v Boeheim, 24 NY3d 262, 268 [2014] [internal quotation marks and citations omitted]).

A complaint alleging defamation "must set forth the particular words allegedly constituting defamation (see CPLR 3016[a]), and it must also allege the time when, place where, and manner in which the false statement was made, and specify to whom it was made" (Epifani v Johnson, 65 AD3d 224, 233 [2d Dept 2009][quotation marks and citations omitted]).

The Court of Appeals has stated:

"In determining the sufficiency of a defamation pleading, we consider whether the contested statements are reasonably susceptible of a defamatory connotation [and] [i]f, upon any reasonable view of the stated facts, plaintiff would be entitled to recovery for defamation, the complaint must be deemed to sufficiently state a cause of action. We apply this liberal standard fully aware that permitting litigation to proceed to discovery carries the risk of potentially chilling free speech, but do so because, as we have previously stated, we recognize as well a plaintiffs right to seek redress, and not have the courthouse doors closed at the very inception of an action, where the pleading meets [the] minimal standard necessary to resist dismissal of [the] complaint"

(Davis v Boeheim, 24 NY3d 262, 268 [2014][internal quotation marks and citations omitted]).

In the prior order, this court dismissed the causes of action for libel and libel pers se on the ground that the original complaint failed to set forth "the particular words complained of (CPLR 3016[a]). The court noted that while Mor alleged in the complaint that defendants made numerous false and defamatory statements on the internet, and annexed copies of various Yelp reviews as exhibits to the complaint, Mor failed to delineate in the complaint exactly which statements were defamatory. The court granted Mor leave to replead these causes of action to specify which statements in each Yelp review are alleged to be defamatory.

The causes of action in the amended complaint alleging libel and libel per se now describe the alleged defamatory statements with the requisite specificity. In paragraph 20 of the amended complaint (NYSCEF Doc. No. 46), Mor reproduces the following Yelp reviews, which he collectively refers to as "the Defamatory Statements," and delineates the words that are alleged to be defamatory, which appear below in bold:^[1]

(1) A one-star (out of five) review, dated "5/15/18," posted by user "JR," which states:

"I had a truly horrible experience with Ari Mor. He is an unscrupulous character who did very little, avoided any contact, and bullied us into giving him money after he did almost nothing. He is a predatory con artist and is a sleazy lawyer. Also, he went to Thomas Jefferson Law School, which you should PLEASE google. It is a factory mill degree law school that is also incredibly unscrupulous. Here is the link to a NYTimes article on it:

NYtimes.com/2016/03/07/b...

I am traumatized from my experience with Ari Mor and do not wish him on anybody. He is not an experienced lawyer. Instead, he is a smooth talking con artist who knows little about NYC housing law and does a lot of pomp and circumstance to swindle desperate people. Please beware."

(2) A zero-star review, dated "Jun 29, 2018," posted by user "Sally S.," which states:

"This guy went crazy in a law office I was at. He was cursing and screaming and banging walls. You would not believe how unprofessional he was. I think he did not pay his rent for 50 days and was upset. Not sure what his problem is."

(3) A one-star review, dated "8/6/2018," posted by user "Janie H.," which states:

"We contracted with this guy. He seemed ok at first BOY were we wrong. He literally attacked a lawyer — yelling `fucking faggot' among other slurs. I think he is being evicted from his law office (at least I saw a legal document trying to evict him for failing to pay his rent.) The office is SUPER convenient. So that is a plus.

I am not sure what causes him to go off and attack people using anti gay slurs. Not cool with me. He is a loose cannon. See the lawsuit filed against his law firm. It claims to have video of this dope attacking a lawyer while threatening to kill him (you cannot make this stuff up! !)

Please do your own diligence. Maybe he was having a bad day?"

(4) A zero-star review, dated "Aug 10, 2018," posted by user "Shana F.," which states:

"I never write reviews but need to warn public of my opinion. Contracted with Ari Mor law firm months ago. I now find out his landlord has filed to evict him for failing to pay!!!! The legal docs again this guy claim he threatens others around him including using anti gay comments. He appears to bully anyone that speaks out against him though this dog appears to be all bark and no bite in my opinion. Check out all of the yelp reviews he has deleted — huge indication of insecure man. Read the legal documents filed AGAINST Ari Mor's law firm and make your own decision. Yes, Mr. Mor you can try to sue me for defamation, but truth is defense, so good luck."

(5) A two-star "updated review," dated "8/24/2018," posted by user "G.F.," from Manhattan, which is identical to the review posted by user "JR" on "5/15/18." Below the "updated review," is a one-star review, denominated "previous review," dated "8/17/2018," that is also identical to the review posted by "JR" on "5/15/18."

(6) A one-star review, dated "8/22/2018," posted by user "Fran F.," from Montclair, NJ, that is also identical to the review posted by "JR" on "5/15/18."

(7) A one-star review, dated "8/24/2018," posted by user "Gina G.," from Towaco, NJ, which states:

"It was coo coo crazy, mean and creepy all at the same time. Do you think his reviews are real? My opinion is NO WAY. The fact is that, attorneys don't usually get many reviews. Maybe 1-3 at the most over a period of 10 years. This guy is wet behind the years. Just 4 years out of school, and can't even make a phone call. There are many great attorneys with long careers and absolutely no reviews, because an attorney is not the sort of business that most people write reviews about. I certainly wouldn't have thought to do it if he hadn't texted my about how great he is on YELP.

I called Ari Mor & left message on various days but didn't hear back. I tried again a week later on 6/21, and he actually answered quickly told me I could email all the case information and got off the phone. I immediately emailed everything & didn't hear back. I called & left messages and sent a text on 6/27. Finally, on 6/28 he emails stating, `Can we speak tomorrow afternoon'. I immediately responded letting him know that I would be having medical therapy & asked if we could speak in the evening instead. He didn't respond. When I came home from the doctor I felt very ill and tried to email him again. I asked, `Can we speak some time tomorrow?' He didn't respond and when I called the next day there was no answer. I tried to call his # numerous times but never received any call back. On 7/7 I texted again and he responded by text stating that he had been on vacation. He claimed that we had had a time to speak but that I never called (total lie). I texted back, `I usually assume that if I am not able to correspond back timely other counsel will be pursued.' I then asked if he had ever looked over my documents. He responds, `I had which is why we had scheduled the last call time.' (We had no call time scheduled). What he texted after was disturbing. He texted first, "I was contemplating your request to take the matter on contingency basis.' Then his next text, "I'm unable to do that at the moment.' Then another text, `I don't work on Contingency. My fee for Article 78 is $5k & 25%.' Followed by text stating, "My fees are set & there are many people happy to pay them for my work. I urge you to read my Yelp reviews.' (Yes he actually wrote this!) Then he went on sending 5 more babbling text to me and then a last one which stated, `I had asked a few of my colleagues if they were interested in picking up your matter on contingency & I had no response btw."

(8) A one-star review, dated "9/2/2018," posted by user "Gore G.," from Cliffside Park, NJ, which states:

"OK — Everyone this con artist pays for reviews. I have wondered how such a disgusting person could have so many positive reviews. He hired a service that writes fake reviews (check out how a positive review arrives when anyone writes a negative review).

The service pays for posts from San Francisco then changes the location of the fake review.

I posted this review several times since 2017.

Here it is:

I am traumatized from my experience with Ari Mor and do not wish him on anybody. He is not an experienced lawyer. Instead, he is a smooth talking con artist who knows little about NYC housing law and does a lot of pomp and circumstance to swindle desperate people. Please beware.

I had a truly horrible experience with Ari Mor. He is an unscrupulous character who did very little, avoided any contact, and bullied us into giving him money after he did almost nothing. He is a predatory con artist and is a sleazy lawyer. Also, he went to Thomas Jefferson Law School, which you should PLEASE google. It is a factory mill degree law school that is also incredibly unscrupulous. Here is the link to a NYTimes article on it:

NYtimes.com/2016/03/07/b..."

(9) A two-star review, dated "9/2/2018," posted by user "Turner T.," from Manhattan, NY, that is nearly identical to the one-star review posted by user "Gina G." on "8/24/2018."

(10) A one-star review, dated "9/3/2018," posted by user "Edgar E.," from Kearny, NJ, which states:

"I wrote back in early 2018 and checked back. I noticed the fake reviews too but never put two and two together. It confused me that anyone would write anything positive about a man with an obvious mental disorder. How did this derelict get into law school?

Old Review: I was facing an illegal eviction where my landlord terminated my lease and wanted me out of my apartment of 6 years. I was going thru a stressful time thinking that I was going to lose my apt. I decided to search on Yelp for some good Housing Attorneys. Upon my search I ran across Ari Mor. This guy had so many positive reviews. I went thru them most. i was sure i found the right attorney to represent my case.

I called Mr. Mor. He asked me to send him all the documents i had including all letters sent by my landlord. He immediately told me that it will cost me $500 via QP. In addition he said he would take my case on contingency. This meant that he would receive a percentage of whatever monies were awarded thru this case. Mr. Ari Mor sent the letter over to my landlord. Days went by i reached out to Mr. Mor to see if he had heard back from the landlord regarding the letter we submitted in response their termination. He claimed he called, left a message and didn't hear back. Days went by and we haven't gotten a reply to our letter. I reached out to Mr. Mor numerous occasions and he was always unavailable or was on vacation. Each time i called and texted i had to wait days before he replied.

I decided to take matters in to my own hands and gave my landlord's attorney a call to see if they had received this `Demand Letter' sent by Ari Mor. While on the phone I may have heard some laughter in the background then the person answered that Yes in fact they reviewed it but cannot discuss anything with me but only my attorney and he hadn't called.

My first court appearance arrived and the day before Mr. Ari Mor told me that wouldn't be available to appear in court due to family emergency. And that i should call back after court. I was under the impression i had an attorney hired. I went to court and got an adjournment to seek an attorney. Mr. Mor had never signed up on the website as my attorney. So i had none listed. I immediately fired Mr. Mor via email, text. Had i not fired Ari Mor and hired a new attorney, i would have been evicted at this very moment.

I am now out of $500 for a dumb letter suggested by Mr. Mor but thank god i still have my apt no thanks to him. my new attorney won our case."

The moving defendants point out that the amended complaint alleges that the persons who posted these Yelp reviews are the "Named Defendants/DOE Defendant(s) (believed to be Defendant Vincent James Imbesi, Esq. and/or Defendant Brittany Sloane Weiner, Esq.)" (Amended Complaint at ¶ 18, NYSCEF Doc. No. 46), and thus fails to specifically identify which defendant actually made the challenged statements. They cite support for the proposition that this warrants dismissal of Mor's defamation claims (see Jackie's Enters., Inc. v Belleville, 165 AD3d 1567, 1571 [3d Dept 2018]["the complaint does not sufficiently identify the specific third persons to whom the statements were allegedly made or identify which of the three defendants made any of the alleged statements"][emphasis added]; Murphy v City of New York, 59 AD3d 301, 301 [1st Dept 2009]["The complaint failed to establish all the elements of defamation, inasmuch as plaintiff did not allege the time, the manner and the persons to whom the publication was made, nor did he identify the person who made it"] [emphasis added and citation omitted]; Trakis v Manhattanville Coll., 51 AD3d 778, 781 [2d Dept 2008][plaintiff "never identified who spoke the remarks"]).

However, as Mor points out, the First Department has held that a plaintiffs failure to identify exactly which defendant made a particular defamatory statement is not necessarily fatal to a defamation claim (see Cedeno v Pacelli, 192 AD3d 533, 534 [1st Dept 2021][plaintiffs' failure to specify exactly what words were spoken by which defendant was not fatal to defamation claim "since the amended complaint contain(ed) the dates, text, context, URLs, and other information about the defamatory statements(,) allege(d) that the (named defendants) were responsible for authoring, publishing, or causing others to publish them(, and t)here (were) no allegations that the John Does acted independently of the (named defendants)"[citation omitted]; see also Fletcher v Dakota, Inc., 99 AD3d 43, 55 [1st Dept 2012]["While some of these allegations do not specify exactly which of the defendants made a particular statement, that is not a fatal defect"]).

The moving defendants also assert that the defamation causes of action should be dismissed because Mor did not sufficiently allege the time these publications were made. This argument is unavailing because each Yelp review indicates the date on which it was posted.

Additionally, the moving defendants unpersuasively argue that the defamation claims should be dismissed because the alleged defamatory statements are true. While truth is an absolute defense to a defamation claim (see Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 [1st Dept 2014]), the moving defendants have not established that the alleged defamatory statements are true.

The court also disagrees with the moving defendants' contention that the statements complained of constitute non-actionable statements of opinion. "Since falsity is a necessary element of a defamation cause of action and only facts are capable of being proven false, only statements alleging facts can properly be the subject of a defamation action" (Davis v Boeheim, 24 NY3d at 268 [internal quotation marks and citations omitted]). "Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation" (Mann v Abel, 10 NY3d 271, 276 [2008][internal citations omitted]). "Distinguishing between fact and opinion is a question of law for the courts, to be decided based on what the average person hearing or reading the communication would take it to mean" (Davis v Boeheim, 24 NY3d at 269 [internal quotation marks and citations omitted]). The inquiry "is whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff" (id. at 269-270 [internal quotation marks and citations omitted]).

"While a pure opinion cannot be the subject of a defamation claim, an opinion that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, ... is a mixed opinion and is actionable" (id. at 269 [internal quotation marks and citations omitted]). "What differentiates an actionable mixed opinion from a privileged, pure opinion is the implication that the speaker knows certain facts, unknown to [the] audience, which support [the speaker's] opinion and are detrimental to the person being discussed" (id. at 269 [2014][internal quotation marks and citations omitted]).

In deciding whether statements are assertions of fact as opposed to nonactionable expressions of opinion, the court must consider:

"(1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal ... readers or listeners that what is being read or heard is likely to be opinion, not fact"

(Davis v Boeheim, 24 NY3d at 276 [quotation marks and citations omitted]). The third factor "requires that the court consider the content of the communication as a whole, its tone and apparent purpose" (id. at 270). "Rather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the court should look to the over-all context in which the assertions were made and determine on that basis whether the reasonable reader would have believed that the challenged statements were conveying facts about the ... plaintiff" (id. [internal quotation marks and citations omitted]). For example, "[e]ven apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in public debate, heated labor dispute, or other circumstances in which an audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole" (Sandals Resorts Intl. Ltd. v Google, Inc., 86 AD3d 32, 41-42 [1st Dept 2011][internal quotation marks and citations omitted]).

Here, some of the statements proffered as a basis for Mor's defamation claim are actionable and some are non-actionable. The statements characterizing Mor as "unscrupulous," "a predatory con artist," and a "sleazy lawyer," and describing him as "a smooth talking con artist who knows little about NYC housing law and does a lot of pomp and circumstance to swindle desperate people" are non-actionable in that they suggest that the authors were merely expressing their opinion based on "negative business interaction[s] with" Mor (Torati v Hodak, 147 AD3d 502, 503 [1st Dept 2017]; see Crescendo Designs, Ltd. v Reses, 151 AD3d 1015, 1016 [2d Dept 2017] ["given the context in which the challenged statements were made and viewing the content of the review as a whole, a reasonable reader would have believed that the writer of the review was a dissatisfied customer who utilized the Yelp website to express an opinion"]). In addition, terms such as "smooth talking" and "sleazy" do not have a precise meaning and are incapable of being proven true or false (see Board of Mgrs. of Brightwater Towers Condominium v Shlivko, 186 AD3d 553, 554 [1st Dept 2020]).

However, the following statements are actionable as factual assertions: that Mor has a "mental disorder," "bull[ies] anyone that speaks out against him," "went crazy" in his office by "cursing and screaming and banging the walls," attacked another attorney by "yelling `fucking faggot' among other slurs," posted fake Yelp reviews, and hired a service to write fake Yelp reviews. Therefore, contrary to the moving defendants' contention, Mor sufficiently alleges a cause of action for libel. The moving defendants argue that these alleged false factual accusations should nevertheless be considered non-actionable expressions of opinion in that they were anonymously posted on a consumer review website. In this regard, they rely on a number of cases which they contend stand for the proposition that a comment made in the context of an online review is not actionable (citing Torati v Hodak, 147 AD3d 502, 503 [1st Dept 2017] [finding that statements in anonymously posted on-line reviews were not actionable because while they contained "elements of both fact and opinion, when viewed in context, they suggest to a reasonable reader that the author was merely expressing his opinion based on a negative business interaction with plaintiffs," and noting that readers give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts]; Crescendo Designs, Ltd. v Reses, 151 AD3d 1015, 1016 [2d Dept 2017]["given the context in which the challenged statements were made and viewing the content of the review as a whole, a reasonable reader would have believed that the writer of the review was a dissatisfied customer who utilized the Yelp website to express an opinion"]; Stolatis v Hernandez, 161 AD3d 1207 [2d Dept 2018] ["given the context in which the statements ... were made, and viewing the content of the post as a whole, as well as the content of the other contemporaneous posts on the same Facebook pages, a reasonable reader would have believed that the defendant was communicating his opinion"]; Matter of Woodbridge Structured Funding, LLC v Pissed Consumer, 125 AD3d 508, 509 [1st Dept 2015]["Although some of the statements are based on undisclosed, unfavorable facts known to the writer, the disgruntled tone, anonymous posting, and predominant use of statements that cannot be definitively proven true or false, supports the finding that the challenged statements are only susceptible of a nondefamatory meaning, grounded in opinion"]).

However, these cases do not establish a blanket rule that all statements posted anonymously on Yelp, or other on-line review websites, are automatically insulated from liability for defamation. None of them hold that these websites confer "a license to make false factual accusations and thereby unjustly destroy individuals' reputations" (Brian v Richardson, 87 NY2d 46, 52 [1995]["an article's appearance in the sections of a newspaper that are usually dedicated to opinion does not automatically insulate the author from liability for defamation"]). Indeed, the Court of Appeals has "repeatedly emphasized that the forum in which a statement has been made, as well as the other surrounding circumstances comprising the `broader social setting,' are only useful gauges for determining whether a reasonable reader or listener would understand the complained-of assertions as opinion or statements of fact" (id.).

Here, the writers were not utilizing Yelp just to communicate an opinion. Significantly, a reasonable reader could believe accusations that plaintiff was "cursing and screaming and banging walls" in his office, the he paid a service to write fake Yelp reviews, and that he attacked another attorney by "yelling flicking faggot among other slurs," do not represent opinions or hyperbole, but are conveying facts about the plaintiff (see Davis v Boeheim, 24 NY3d at 269-270 ["The dispositive inquiry ... is whether a reasonable [reader] could have concluded that [the statements were] conveying facts about the plaintiff"][internal quotation marks and citations omitted]).

As to the cause of action for libel per se, a defamation plaintiff must plead and prove that he or she suffered special damages unless the defamation falls into one of four per se categories (see Epifani v Johnson, 65 AD3d at 233-234). "When statements fall within one of these categories, the law presumes that damages will result, and they need not be alleged or proven" (id. at 234). The four per se categories include "statements that tend to injure the plaintiff in her trade, business or profession" (Nolan v State of New York, 158 AD3d 186, 195 [1st Dept 2018]). Since the statements at issue tend to injure Mor in his trade, business, or profession, they are actionable as libel per se.

Thus, this branch of the motion is denied.

Breach of the Implied Covenant of Good Faith and Fair Dealing

In the prior order, this court dismissed, with leave to replead, the cause of action for breach of contract on the ground that the original complaint did not specify which provisions of Mor's rental agreements Imbesi Law breached. In his amended complaint, Mor does not plead a cause of action for breach of contract. Instead, he asserts a cause of action for breach of the implied covenant of good faith and fair dealing against Imbesi Law.

"In New York, all contracts imply a covenant of good faith and fair dealing in the course of performance. This covenant embraces a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract" (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 153 [2002][internal quotation marks and citations omitted]; see Moran v Erk, 11 NY3d 452, 456 [2008]).

Here, the amended complaint alleges that Imbesi Law breached the implied covenant of good faith and fair dealing by turning off the power to Mor's office space while Mor was trying to conduct client meetings. It further alleges that the phone lines to Mor's office space were not operational and that Imbesi blocked him from accessing internet and printing services.

The subleases, which are annexed to the amended complaint, do not include any terms obligating Imbesi to provide phone, internet or printing services (see Vanlex Stores, Inc. v BFP 300 Madison II LLC, 66 AD3d 580, 581 [1st Dept 2009]["the implied covenant of good faith and fair dealing inherent in every contract cannot be used to create terms that do not exist in the writing"]; Fesseha v TD Waterhouse Inv. Servs., 305 AD2d 268, 268 [1st Dept 2003]["While the covenant of good faith and fair dealing is implicit in every contract, it cannot be construed so broadly as effectively to nullify other express terms of a contract, or to create independent contractual rights"]). However, Mor is also alleging that by turning off the power to his office space when he met with clients, Imbesi Law's actions undermined Mor's ability to conduct business there, which was the fundamental objective of Mor's subleases with Imbesi Law. Thus, the allegations in the amended complaint plead a cause of action for breach of the implied covenant of good faith and fair dealing. The court's role in deciding this motion is not to determine whether Mor will ultimately succeed on the claim.

The moving defendants argue that this claim should be dismissed because it is merely a substitute for a non-viable breach of contract claim. However, "[a] party may be in breach of its implied duty of good faith and fair dealing even if it is not in breach of its express contractual obligations" (Chase Manhattan Bank, N.A. v Keystone Distributors, Inc., 873 F Supp 808, 815 [SDNY 1994]).

The cases relied upon by the moving defendants in this regard are distinguishable. In Phoenix Capital Invs. LLC v. Ellington Mgt. Group, L.L.C., the court dismissed the breach of implied covenant of good faith and fair dealing claim because enforcing it would have been inconsistent with the provisions of the contract, which is not the case here (Phoenix Capital Invs. LLC v. Ellington Mgt. Group, L.L.C., 51 AD3d 549, 550 [1st Dept 2008]).

The moving defendants' reliance on Triton Partners v Prudential Sec. (301 AD2d 411, 411 [1st Dept 2003]) is similarly misplaced. In that case the plaintiff pleaded a breach of contract claim seeking to enforce the terms of an oral agreement pursuant to which defendant purportedly promised to proceed with the terms of the transaction at issue. The court held that the breach of contract claim was correctly dismissed inasmuch as the terms of the oral agreement plaintiff was seeking to enforce conflicted with the terms of an engagement letter that permitted the defendant to terminate the contract without cause on ten days notice. The court held that the breach of the covenant of good faith and fair dealing claim was properly dismissed "since it was merely a substitute for a nonviable breach of contract claim" and that "[a] party has an absolute, unqualified right to terminate a contract on notice pursuant to an unconditional termination clause without court inquiry into whether the termination was activated by an ulterior motive" (id. at 411 [quotation marks and citations omitted]). The instant case is distinguishable because the breach of implied covenant of good faith and fair dealing claim is not inconsistent with a clause in the lease agreements Mor sought to enforce in his breach of contract claim. Sheth v New York Live Ins. Co. (273 AD2d 72, 73 [1st Dept 2000]), is distinguishable on the same basis.

Thus, this branch of the motion is denied.

Commercial Tenant Harassment under Administrative Code 22-902

Administrative Code 22-902 prohibits a landlord from engaging in "commercial tenant harassment," which is defined as "any act or omission [that] would reasonably cause a commercial tenant to vacate covered property, or to surrender or waive any rights under a lease or other rental agreement or under applicable law in relation to such covered property." Such conduct includes, "causing repeated interruptions or discontinuances of one or more essential services," "causing an interruption or discontinuance of an essential service for an extended period of time," "causing an interruption or discontinuance of an essential service where such interruption or discontinuance substantially interferes with a commercial tenant's business," and "engaging in any other repeated or enduring acts or omissions that substantially interfere with the operation of a commercial tenant's business" (Administrative Code 22-902 [a] [ii] [2-4], [10]).

In the prior order, this court dismissed Mor's claim for commercial tenant harassment under Administrative Code 22-902 on the ground that Mor failed to annex a copy of the rental agreement to the complaint and as such, failed to adequately plead a violation section 22-902.

Now, Mor has annexed the rental agreements to his amended complaint and alleges that the following constitutes commercial harassment under the statute: (1) Imbesi Law turned off the power to his unit while he was meeting with clients or otherwise conducting business therein, making it impossible for him to be in the unit for more than an hour or two at a time, and (2) Imbesi Law annoyed Mor and disrupted his ability to meet clients/conduct business within the subject premises by posting harassing notices all over the office so as to annoy harass, and cause embarrassment to Mor and to prevent him from being able to meet clients or conduct business within the subject premises.

The moving defendants point out that in the prior order, the court did not dismiss the commercial tenant harassment claim with leave to replead. Therefore, they assert, it was improper for Mor to again include this claim in the amended complaint.

In the prior order, the court dismissed this cause of action solely for failure to annex the lease agreement to the complaint. Not dismissing the cause of action with leave to replead was inconsistent with the intent of the court as demonstrated by the court dismissing the breach of contract claim with leave to replead on the same basis (see CPLR 5019[a]; Johnson v Societe Generale S.A., 94 AD3d 663, 664 [1st Dept 2012][a correction under CPLR 5019(a) is permitted even were a substantial right of a party is affected, where the error "is clearly inconsistent with the intentions of the court and the parties as demonstrated by the record"]).

The moving defendants assert that dismissal of this cause of action is also warranted on the merits. In so arguing, they refer the court to the contentions raised by them in support of their first motion to dismiss. In support of their first motion to dismiss, the moving defendants argued that Mor improperly pleaded the commercial tenant harassment claim against Weiner and Imbesi because they were not parties to the lease agreements and cannot be liable for Imbesi Law's contractual obligations. However, in the amended complaint, Mor pleads this claim against Imbesi Law only. In support of their prior motion, the moving defendants did not set forth a basis for dismissing the commercial tenant harassment claim against Imbesi Law and set forth no basis for doing so on the merits in support of the instant motion.

Thus, this branch of the motion is denied.

Declaratory Judgment

In the fifth cause of action, Mor is seeking a judgment declaring that the purported "Defamatory Statements are defamatory/libelous and/or defamatory/libelous per se" (Amended Complaint at ¶ 258, NYSCEF Doc. No. 46). Given that Mor's libel and libel per se causes of action are viable, the court declines to dismiss this cause of action.

CONCLUSION

In accordance with the foregoing, it is hereby

ORDERED that the motion by defendants Imbesi Law P.C., Vincent Imbesi, and Brittany Weiner to dismiss the amended complaint against them is denied.

This constitutes the decision and order of the court.

[1] Other than adding bold type to denote the precise words Mor alleges to be defamatory, the spelling, punctuation, capitalization, and spacing in these reviews is quoted as it appears in the amended complaint."