CHILD CUSTODY - CONSEQUENCES OF "BAD PARENTING"

In this case, the father, allegedly in recovery from substance abuse, still is dealing with anger, a luxury he cannot afford if he wants unsupervised visitation. 

MATTER OF NICOLE J. v. JOSHUA J., 2022 NY Slip Op 3780 - NY: Appellate Div., 3rd Dept. 2022:

"CLARK, J.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of a child (born in 2018). Following the parties' separation in March 2020, the mother commenced a Family Ct Act article 6 proceeding, seeking an initial custody determination. The father subsequently sought a temporary order granting him supervised parenting time with the child,^[1] and, by temporary order entered in December 2020, Family Court ordered that the father was to have supervised parenting time once a week for a period of up to six hours, with such parenting time to be supervised by a certain individual. Less than a week later, following an incident during the father's supervised parenting time with the child, the mother commenced a Family Ct Act article 8 proceeding, alleging that the father had committed the family offenses of disorderly conduct, harassment in the first or second degree, menacing in the second or third degree and/or attempted assault. Following a hearing on the mother's petitions, Family Court awarded the mother sole legal and primary physical custody of the child and directed that the father have supervised parenting time for "at least two hours" per week at the Parents as Leaders Resource Center, along with phone or electronic communication with the child and access to the child's educational, health care and religious records. Because the initial supervisor was no longer willing to supervise the father's parenting time, Family Court designated the child's maternal uncle as the supervisor, but stated that the parties could agree to an alternate supervisor from time to time. As for the mother's family offense petition, Family Court found that the father committed the family offense of disorderly conduct and, consequently, issued an order of protection in favor of the child and the mother. The father appeals.^[2]

Contrary to the father's contention, Family Court's determination to award the mother sole legal custody of the child has a sound and substantial basis in the record. Although joint legal custody is "an aspirational goal in every custody matter" (Matter of Clupper v Clupper, 56 AD3d 1064, 1065 [2008]; see Matter of Elizabeth B. v Scott B., 189 AD3d 1833, 1835 [2020]), joint legal custody may not be feasible or appropriate in cases where the parents are unable to "effectively and directly communicate with one another to care for the child's needs" (Matter of David J. v Leeann K., 140 AD3d 1209, 1211 [2016]; see Matter of Amanda YY. v Faisal ZZ., 198 AD3d 1125, 1126 [2021]). "We accord great deference to Family Court's factual findings and credibility determinations given its superior position to observe and assess the witnesses' testimony and demeanor firsthand, and will not disturb its custodial determination if supported by a sound and substantial basis in the record" (Matter of Daniel TT. v Diana TT., 127 AD3d 1514, 1515 [2015] [citations omitted]; see Matter of Derek KK. v Jennifer KK., 196 AD3d 765, 767 [2021]).

The hearing evidence demonstrated that the father has perpetrated multiple, escalating acts of physical domestic violence against the mother. Additionally, the evidence reflected that the parties' attempts to communicate routinely deteriorated into argument and that they have been unable to communicate about, or for the good of, the child. Considering this evidence, we find that a sound and substantial basis exists in the record to support Family Court's determination that an award of sole legal custody to the mother is in the child's best interests (see Matter of Nicole V. v Jordan U., 192 AD3d 1355, 1357-1358 [2021]; Matter of Samantha GG. v George HH., 177 AD3d 1139, 1140-1141 [2019]; Matter of Adam E. v Heather F., 151 AD3d 1212, 1214 [2017]).

The father also argues that he should have been granted unsupervised and more expansive parenting time. "Generally, Family Court must fashion a parenting time schedule that accords the noncustodial parent frequent and regular access to the child[], unless there is evidence that frequent parenting time would be contrary to the child[]'s best interests" (Matter of Nicole Y. v Joshua X., 183 AD3d 996, 997 [2020]; see Matter of Aida B. v Alfredo C., 114 AD3d 1046, 1049 [2014]). However, Family Court may order supervised parenting time if it determines that the "parent `is either unable or unwilling to discharge his or her parental responsibility properly'" and that, therefore, unsupervised parenting time would be "detrimental to the child's safety" (Matter of Taylor v Fry, 63 AD3d 1217, 1218-1219 [2009], quoting Matter of Kathleen OO., 232 AD2d 784, 786 [1996]; see Matter of Damon B. v Amanda C., 195 AD3d 1107, 1108 [2021]).

The evidence established that, in addition to perpetrating acts of domestic violence against the mother, the father frequently became frustrated with the child and would yell and curse at her. For example, during the incident that prompted the mother to file the instant family offense petition, the father had difficulty managing the then two-year-old child's desire to play with toys in an adjoining room. The father "yell[ed]" and, according to the initial supervisor, "grabbed [the child] by the arm and threw her on a chair. .. pretty aggressively," causing her to cry for an extended period of time. The father then cursed at the child, called her names and likened her to her mother in a disparaging way. There was evidence that the father had been similarly impatient and physically aggressive with the mother's other children. Further, the interim report resulting from a Family Ct Act § 1034 investigation, which was admitted into evidence, stated that there were child protective concerns related to the father's temper.

As for the father's alleged substance abuse, the father admitted that he had previously been addicted to heroin but asserted that he had been sober for years and was engaged in multiple forms of treatment. However, the father did not offer treatment records or any other documentation to support his claim of sobriety, despite having multiple opportunities to do so (see Matter of Vincente X. v Tiana Y., 154 AD3d 1113, 1114 [2017]; Matter of Menhennett v Bixby, 132 AD3d 1177, 1180 [2015]). Family Court, having had the opportunity to hear the father's testimony and evaluate his credibility, found the father to be untruthful and instead credited the testimony of those who were familiar with the father's appearance and behavior while he was using heroin.

Considering all of the foregoing evidence, we find that there is a sound and substantial basis in the record to support Family Court's determination to direct supervised parenting time for the safety of the child (see Kimberly C. v Christopher C., 155 AD3d 1329, 1335-1336 [2017]; Matter of Adam E. v Heather F., 151 AD3d at 1214-1215), as well as its determination to grant the father "at least two hours" of supervised parenting time per week at the Parents as Leaders Resource Center (see Matter of Carin R. v Seth R., 196 AD3d 776, 778 [2021]). Although two hours of weekly parenting time is limited, Family Court allowed for additional parenting time as the parties could agree (see Matter of Derek KK. v Jennifer KK., 196 AD3d at 768). Further, given certain evidence demonstrating that she would not be a suitable supervisor, we discern no abuse of discretion in Family Court's determination to reject the father's proposal that the child's paternal aunt supervise parenting time (see Matter of Vincente X. v Tiana Y., 154 AD3d at 1115; see generally Matter of Carl KK. v Michelle JJ., 162 AD3d 1273, 1275 [2018]).

Turning to the mother's family offense petition, we agree with the father that there was insufficient evidence to establish that he possessed the requisite culpable mental state for disorderly conduct — that is, the "intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof" (Penal Law § 240.20; see Family Ct Act § 812 [1]). "[C]ritical to a charge of disorderly conduct is a finding that [a respondent's] disruptive statements and behavior were of a public rather than an individual dimension" (People v Baker, 20 NY3d 354, 359 [2013]; see Matter of Cassie v Cassie, 109 AD3d 337, 341-342 [2013]). Here, the subject incident took place in a private room with a partially closed door at a location dedicated to visitation with young children and there was no evidence as to the number of people near the room at the time of the incident (see generally People v Baker, 20 NY3d at 360). Although an employee of the Parents as Leaders Resource Center checked in on the room shortly after the incident, there was no evidence as to that employee's response to the incident. Accordingly, Family Court erroneously concluded that the father committed the family offense of disorderly conduct (see Matter of Smith v Morrison, 196 AD3d 772, 774 [2021]; Matter of Sharon D. v Dara K., 130 AD3d 1179, 1181 [2015]).

Nonetheless, this Court may "independently review the record to determine whether a fair preponderance of the evidence supports a finding that the father committed one of the qualifying family offenses" (Matter of Debra SS. v Brian TT., 163 AD3d 1199, 1203-1204 [2018]; see Matter of Maureen H. v Bryon I., 140 AD3d 1408, 1410 [2016]). Upon exercise of that review power, we find that the proof established that the father committed the family offense of harassment in the second degree and that he is not entitled to a justification defense. As relevant here, "[a] person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person. .. [h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same" (Penal Law § 240.26 [1]; see Family Ct Act § 812 [1]). However, "[a] child's caretaker may use reasonable physical force for the purpose of discipline" (Matter of Anthony J. v David K., 70 AD3d 1220, 1221 [2010]; see Penal Law § 35.10 [1]). "In determining whether a parent's belief regarding the need to use physical force to maintain discipline was reasonable, the trier of fact must consider whether a reasonable person in the same position as the parent would have believed that such force was necessary" (People v Kearns, 56 AD3d 1047, 1049 [2008] [internal quotation marks and citations omitted], lv denied 12 NY3d 784 [2009]).

As discussed, the evidence demonstrated that the father used an "aggressive" amount of physical force to grab the two-year-old child by her arm and "thr[o]w" her in a chair, after which he yelled profane and disparaging insults at the child. In our view, the father's conduct and language toward the child — which did not constitute reasonable disciplinary measures — evince an intent to alarm the child (compare Matter of Kristie GG. v Sean GG., 168 AD3d 25, 29 [2018]; Matter Anthony J. v David K., 70 AD3d at 1221). Accordingly, we find that the proof adduced at the hearing sufficiently established, by a preponderance of the evidence, that the father committed the family offense of harassment in the second degree (see Penal Law § 240.26 [1]; Family Ct Act § 812[1]).

Turning lastly to his claim of ineffective assistance of counsel, the father has failed to demonstrate the absence of strategy or legitimate explanations for counsel's alleged shortcomings, including counsel's failure to marshal documentary proof of the father's purported sobriety, and, viewing the record in its totality, we are satisfied that he was provided meaningful representation (see Matter of Jeffrey VV. v Angela VV., 176 AD3d 1413, 1417 [2019]; Matter of Brent O. v Lisa P., 161 AD3d 1242, 1246-1247 [2018]; Matter of Bennett v Abbey, 141 AD3d 882, 884-885 [2016]; Matter of Robinson v Bick, 123 AD3d 1242, 1242-1243 [2014]; Matter of Elizabeth HH. v Richard II., 75 AD3d 670, 671 [2010]).

Egan Jr., J.P., Reynolds Fitzgerald, Fisher and McShan, JJ., concur.

ORDERED that the order is affirmed, without costs.

[1] As a result of a no-contact order of protection issued in favor of the mother and the child, the father had not had any contact with either since March 2020.

[2] The attorney for the child, like the mother, argues for affirmance."

MORTGAGE FORECLOSURE - NO GOOD FAITH UNDER CPLR 3408

Although the mortgage and note is not extinguished, and the property may still be subject to a foreclosure sale, the sanctions imposed under CPLR 3408 may reduce the amount of monies due and owing.

MTGLQ INVS., LP v. BEERSINGH, 2022 NY Slip Op 31456 - Queens Co. Supreme Court 2022:

"II. Plaintiff's Duty to Negotiate in Good Faith

Pursuant to CPLR 3408(f), the parties at a mandatory foreclosure settlement conference are required to negotiate in good faith to reach a mutually agreeable resolution (see Wells Fargo Bank, N.A. v Meyers, 108 AD3d 9, 11, 966 NYS2d 108 [2013]). "The purpose of the good faith requirement ... is to ensure that both plaintiff and defendant are prepared to participate in a meaningful effort at the settlement conference to reach resolution" (US Bank N.A. v Sarmiento, 121 AD3d 187, 200, 991 NYS2d 68 [2d Dept. 2014] [internal quotation marks omitted]). Compliance with the good faith requirement is measured by the totality of the circumstances and whether the party's conduct demonstrates a meaningful effort at reaching a resolution (see id at 203; CPLR 3408[f]); Aurora Loan Servs., LLC v Diakite, 148 A.D.3d 662, 663-664, 48 N.Y.S.3d 490, 492, 2017 N.Y. App. Div. LEXIS 1511, *4-5, 2017 NY Slip Op 01528, 2, 2017 WL 776993 [2d Dept. 2017]).

CPLR Rule 3408 controls mandatory settlement conference(s) in residential foreclosure actions and sets the statutory requirements of foreclosure scheduling (McKinney's CPLR 3408). CPLR 3408(f) requires that the parties "... must negotiate in good faith to reach a mutually agreeable resolution..."

The concept of "good faith" sounds in equity and is a requirement of negotiation is a residential foreclosure case. Good faith is examined and determined through a totality of the circumstances standard, (U.S. Bank National Association v. Sarmiento, supra at 991 NYS2d 68 [2d Dept 2014]; see PNC Bank National Association v. Campbell, 142 AD3d 1147, 38 NYS3d 234 [2d Dept 2016]; One W. Bank v Coffey, 2018 N.Y. Misc. LEXIS 3572, *3-4, 2018 NY Slip Op 32012(U) 2-3 [Sup. Ct. Suff. Co. 2018]). In Sarmiento, the Court Attorney Referee reported that over a three (3) year period of time the Plaintiff/Mortgagee had engaged in three (3) unsuccessful settlement conferences. The Referee contended that Plaintiff had failed to negotiate in good faith. (Id. at 195, 73). The Court determined that plaintiff's communication with defendant "had sown confusion, distress, and doubt, by including, among other things, confusing and vague rejection notices and requests for duplicative documents." (Id. at 197, 75).

Dilatory conduct by making piecemeal document requests, providing contradictory information, and repeatedly requesting documents that had already been provided will not constitute good faith (see LaSalle Bank, N.A. v Dono, 135 AD3d 827, 829, 24 NYS3d 144 [2d Dept. 2016]; Onewest Bank, FSB v Colace, 130 AD3d 994, 996, 15 NYS3d 109 [2d. Dept. 2015]; US Bank N.A. v Sarmiento, supra at 204).

III. Cases Dealing With the Failure to Negotiate in Good Faith

Notwithstanding the failure of Plaintiff's counsel to provide even a single case on the specific issue of his client's duty to negotiate in good faith, as requested by this Court, there are many cases, holding in different directions, which are germane to the issue. The following cases demonstrate the situations in which the duty to negotiate in good faith has been breached.

For example in Aurora Loan Servs., LLC v Diakite, 148 A.D.3d 662, 663-664, 48 N.Y.S.3d 490, 492, 2017 N.Y. App. Div. LEXIS 1511, *4, 2017 NY Slip Op 01528, 2, 2017 WL 776993 [2d Dept. 2017], cited by counsel for the defendant-borrower, the Second Department held:

Pursuant to CPLR 3408(f), the parties at a mandatory foreclosure settlement conference are required to negotiate in good faith to reach a mutually agreeable resolution (see Wells Fargo Bank, N.A. v Meyers, 108 AD3d 9, 11, 966 NYS2d 108 [2013]). "The purpose of the good faith requirement ... is to ensure that both plaintiff and defendant are prepared to participate in a meaningful effort at the settlement conference to reach resolution" (US Bank N.A. v Sarmiento, 121 AD3d 187, 200, 991 NYS2d 68 [2014] [internal quotation marks omitted]). Compliance with the good faith requirement is measured by the totality of the circumstances and whether the party's conduct demonstrates a meaningful effort at reaching a resolution (see id. at 203; CPLR 3408[f]).

Here, the totality of the circumstances supports the finding that the plaintiff failed to negotiate in good faith. The hearing evidence demonstrated that the plaintiff, among other things, engaged in dilatory conduct by making piecemeal document requests, providing contradictory information, and repeatedly requesting documents that had already been provided (see LaSalle Bank, N.A. v Dono, 135 AD3d 827, 829, 24 NYS3d 144 [2016]; Onewest Bank, FSB v Colace, 130 AD3d 994, 996, 15 NYS3d 109 [2015]; US Bank N.A. v Sarmiento, 121 AD3d at 204) (emphasis supplied).

Plaintiff's argument is that "[i]t is not negotiating in "bad faith" to request industry standard documents for a loan modification application, and follow-up for over 19 months in an attempt to complete the application for review. If anything, it is "bad faith" to avoid producing the required documentation to the servicer in a timely manner all while living in or renting a house while paying none of the carrying costs." (Memorandum of Christopher M. McKniff, Esq., at page 9).

Here, it is uncontested that the Plaintiff requested and insisted upon receiving only a quitclaim deed from the borrower's former spouse, after the borrower had received a recorded bargain and sale deed from her former spouse assigning to her his interest in the property. The need for a quitclaim deed was obviated because her erstwhile husband, Euron Burns, had already relinquished his interest in the property by bargain and sale deed more than four years prior to the commencement of this foreclosure action. That document was duly recorded and was therefore public notice of her ownership interest in the subject property which could have easily been discovered by the Plaintiff. Characterizing an unnecessary document as "industry standard"^[2] is specious, and tantamount to saying "we always require that" irrespective of whether it is necessary or not. In addition, the borrower was again requested to provide her W-2 statements, which had already been provided. The Court finds as in Aurora, the insistence upon unnecessary documentation constitutes a dilatory tactic on the plaintiff's part, in its failure and derogation of plaintiff's duty to negotiate in good faith.

Similarly, in LaSalle Bank, N.A. v Dono, 135 A.D.3d 827, 829, 24 N.Y.S.3d 144, 147, 2016 N.Y. App. Div. LEXIS 336, *4-5, 2016 NY Slip Op 00340, 2 [2d Dept. 2016]) the Second Department stated:

Here, contrary to the Bank's contention, the totality of the circumstances support the Supreme Court's conclusion that it failed to negotiate in good faith. The homeowner's submissions demonstrated that the Bank, among other things, engaged in dilatory conduct by "making piecemeal document requests, providing contradictory information, and repeatedly requesting documents which had already been provided" (Onewest Bank, FSB v Colace, 130 AD3d 994, 996, 15 NYS3d 109 [2015]; see US Bank N.A. v Sarmiento, 121 AD3d at 204). The Bank failed to offer any evidence in opposition to the homeowner's motion and did not controvert the homeowner's account of the mandatory settlement negotiations. Accordingly, under the circumstances, the Supreme Court properly concluded that the Bank violated CPLR 3408(f) by failing to negotiate in good faith (see U.S. Bank N.A. v Smith, 123 AD3d at 916; US Bank N.A. v Williams, 121 AD3d 1098, 1102, 995 NYS2d 172 [2014]; US Bank N.A. v Sarmiento, 121 AD3d at 204-205; see also Onewest Bank, FSB v Colace, 130 AD3d 994, 996, 15 NYS3d 109 [2015])...

Here, the Supreme Court providently exercised its discretion in imposing a sanction that abated all interest, disbursements, costs, and attorney's fees that had accrued during the period between October 1, 2010, and August 12, 2014, the date of the order, since that period corresponds to the period during which the Supreme Court concluded that the Bank had failed to negotiate in good faith (see U.S. Bank N.A. v Smith, 123 AD3d at 917; US Bank N.A. v Williams, 121 AD3d at 1102) (emphasis supplied).

Presently, there was apparently an approximately 30-month delay during which the unnecessary quitclaim deed along with salary information, which had been provided, was requested again— needlessly. There was a recorded bargain and sale deed which was easily accessible to the plaintiff, which they fail to address in their papers. Under the totality of the circumstances, it can hardly be gainsaid that the plaintiff's conduct demonstrated a lack of good faith.

Likewise, U.S. Bank N.A. v Smith, 123 A.D.3d 914, 916-917, 999 N.Y.S.2d 468, 470, 2014 N.Y. App. Div. LEXIS 8747, *5-6, 2014 NY Slip Op 08832, 2-3 [2d Dept. 2014]), the Second Department found that:

Here, the totality of the circumstances supports the referee's finding that the plaintiff failed to negotiate in good faith. The referee's finding was based, in part, upon the plaintiff's failure to follow guidelines pursuant to the federal Home Affordable Mortgage Program (hereinafter HAMP)...

Courts are authorized to impose sanctions for violations of CPLR 3408(f) (see US Bank N.A. v Sarmiento, 121 AD3d 187, 991 NYS2d 68 [2014]). However, "CPLR 3408(f) does not set forth any specific remedy for a party's failure to negotiate in good faith" (Wells Fargo Bank, N.A. v Meyers, 108 AD3d at 19). In such absence, "courts have resorted to a variety of alternatives in an effort to enforce the statutory mandate to negotiate in good faith" (id. at 20). The sanction imposed in this case, to wit, barring the plaintiff from collecting interest on the mortgage loan for the period between October 5, 2012, and July 5, 2013, was a provident exercise of the Supreme Court's discretion (see US Bank N.A. v Williams, 121 AD3d 1098, 995 NYS2d 172 [2014]; see generally Norw est Bank Minn., NA v E.M.V. Realty Corp., 94 AD3d 835, 837, 943 NYS2d 113 [2012]; Deutsche Bank Trust Co., Ams. v Stathakis, 90 AD3d 983, 984, 935 NYS2d 651 [2011]; Preferred Group of Manhattan, Inc. v Fabius Maximus, Inc., 51 AD3d 889, 890, 859 NYS2d 236 [2008]) [emphasis added]).

The same outcomes were reached in US Bank v Gottlieb, 2019 Misc LEXIS 1002 *; 2019 NY Slip Op 30586(U) ** [Sup. Ct. Suffolk Co. 2019]), (the plaintiff failed to act reasonably and make a meaningful effort to reach resolution); One W. Bank v Coffey, 2018 NY Misc LEXIS 3572 *; 2018 NY Slip Op 32012(U) ** [Sup. Ct. Suffolk Co. 2018]) (plaintiff offers only excuses, not reasons for its inordinate delay in processing the aspects of the case which were within its power)]

IV. Cases Cited By Plaintiff's Counsel

Plaintiff's counsel submitted five cases in response to this Court's direction that apposite case law be provided:

(1) Bankers Trust Co. v. Hoovis, 263 A.D.2d 937, 694 N.Y.S.2d 245, 1999 N.Y. App. Div. LEXIS 8452, a 1999 Third Department case, which held "where plaintiff was the assignee of a mortgage at the time of service of the complaint, plaintiff had standing and was entitled to commence a proceeding in its own name. Further, a mortgagee was not required to accept an insufficient tender of payment of arrears and after issuing notification to the mortgagor of acceleration of the entire debt, a mortgagee had the right to reject payment of partial or full arrears, even where a foreclosure action had not been commenced. Denial of defendant's motion for summary judgment was affirmed;"

(2) EMC Mortg. Corp. v. Stewart, 2 A.D.3d 772, 769 N.Y.S.2d 408, 2003 N.Y. App. Div. LEXIS 14187, a 2003 Second Department case holding that the borrower "failed to demonstrate the existence of a triable issue of fact. The appellant's pleadings not only raised no valid defenses, but acknowledged the default and debt owed. It is well settled that once a mortgagor defaults on loan payments, a mortgagee is not required to accept less than the full repayment as demanded;"

(3) Home Say. of Am. v. Isaacson, 240 A.D.2d 633, 659 N.Y.S.2d 94, 1997 N.Y. App. Div. LEXIS 6798 in which the Second Department, in 1997, held that "the appellants did not tender sufficient sums within the relevant time parameters so as to stave off foreclosure. Prior to the effective date of the notice of default and acceleration, they did not tender all arrears plus interest and late charges, and after acceleration they did not tender the entire balance due. Thus, clearly they have no defense of tender as would warrant denial of the plaintiff's summary judgment motion;"

(4) Levine v. Infidelity, Inc., 285 A.D.2d 629, 728 N.Y.S.2d 670, 2001 N.Y. App. Div. LEXIS 7688, a 2001 Second Department decision, in which the court held that "[t]he Supreme Court properly granted the plaintiff's motion for summary judgment upon reargument;"

(5) Nassau Trust Co. v. Montrose Concrete Products Corp., 56 N.Y.2d 175, 436 N.E.2d 1265, 451 N.Y.S.2d 663, 1982 N.Y. LEXIS 3327, a 1982 Court of Appeals case that held in principal part that "in a mortgage foreclosure action based upon nonpayment, an alleged oral waiver by the mortgagee of the right to accelerate the principal and foreclose in order to give the delinquent mortgagor a reasonable opportunity to negotiate an unforced sale of the mortgaged premises, constitutes a valid affirmative defense to foreclosure."

In this Court's reading, none of the above decisions discusses the issue of the bank's duty to negotiate in good faith under CPLR 3408(f). Given the rich variety of case law which is on point, disclosed by the Court's research, and the nature of the jointly agreed-upon facts which point to delays on the part of the Plaintiff in seeking unnecessary documents, this Court is surprised at the unwillingness of Plaintiff's counsel to make a yeoman's effort, or at least a minimally sincere effort when requested to negotiate this matter to avoid a punitive outcome to his client. It is with displeasure that this Court is constrained to make findings of a lack of good faith from the time of the original settlement conferences in this matter to present. Moreover, the Court is dismayed at Plaintiff's counsel's failure to follow simple instructions requiring the submission of factually apposite case law.:

MARRIED 45 YEARS BUT HAVEN'T LIVED TOGETHER FOR PAST 30 YEARS

 King v. King, 202 AD 3d 1383 - NY: Appellate Div., 3rd Dept. 2022:

"Plaintiff (hereinafter the husband) and defendant (hereinafter the wife) were married in 1977 and, in 1989, plaintiff moved out of the marital residence. After the wife moved for a spousal support order in Family Court, the parties consented to the entry of an order pursuant to which the husband would pay the wife $550 biweekly. In 1993, the husband filed for divorce on the ground of cruel and inhuman treatment, but the complaint was subsequently dismissed. In 2011, after the 1384*1384 husband fell behind on spousal support payments, another support order was entered by Family Court, reducing the husband's obligation and providing for the payment of arrears.

Then, in July 2016, after the wife sought to modify the support payments, the husband commenced this action for divorce based on irretrievable breakdown of the marriage for a period of six months or more. The wife opposed, and the husband subsequently moved for summary judgment for divorce, which was granted; the judgment was held in abeyance pending a decision on other issues, including maintenance and equitable distribution. A two-day trial ensued, after which Supreme Court determined that the wife was not entitled to equitable distribution of the husband's 401(k) and retirement plans and declined to impose any postdivorce maintenance. The wife appeals.

Initially, the wife's contention that Supreme Court erred in not permitting her to contest the ground for divorce at trial is unpreserved given that the wife did not object at trial when Supreme Court inquired as to this issue (see Kimberly C. v Christopher C., 155 AD3d 1329, 1331 [2017]). The wife also asserts that Supreme Court erred in terminating her "lifetime" spousal support award. "In any matrimonial action, the court, upon application by a party, shall make its award for postdivorce maintenance pursuant to the guidelines set forth in [Domestic Relations Law § 236(6)]. The court shall order the post-divorce maintenance obligation up to the income cap in accordance with the statutory formula, unless the court finds that the post-divorce maintenance guideline obligation is unjust or inappropriate, which finding shall be based upon consideration of any one or more of the specifically enumerated factors set forth in the statute" (Harris v Schreibman, 200 AD3d 1117, 1120 [2021] [internal quotation marks, brackets and citations omitted]). "The amount and duration of a maintenance award, if any, are a matter within the sound discretion of Supreme Court, and the award will not be disturbed so long as the statutory factors and the parties' predivorce standard of living were properly considered" (Hughes v Hughes, 198 AD3d 1170, 1173 [2021] [internal quotation marks, brackets and citation omitted]). There are 15 factors to contemplate under the statute. Although "[t]he court need not articulate every factor it considers, ... it must provide a reasoned analysis of the factors it ultimately relies upon in [determining] maintenance" (Pfister v Pfister, 146 AD3d 1135, 1137 [2017] [internal quotation marks and citation omitted]; see Domestic Relations Law § 236[B][6][e][1]). Further, the court need not rely on the 1385*1385 parties' representations of their respective finances, "but may exercise its discretion by imputing income based upon such factors as [a] party's education, qualifications, employment history, past income, and demonstrated earning potential" (Mack v Mack, 169 AD3d 1214, 1217 [2019] [internal quotation marks and citation omitted]; see Harris v Schreibman, 200 AD3d at 1121).

Testimony at trial established that the husband was 63 years old and in good health at the time of trial. The husband indicated that his highest level of education is a GED and he has been employed in various positions throughout the length of the marriage. When the parties were married, the husband was working as a driver and salesperson, and the wife was working at an insurance company in an administrative capacity. There was a period of unemployment prior to the husband securing employment in 2005 at the Golub Corporation, where he worked until 2016. He testified that he was earning $65,000 per year when he left. At the time of trial, the husband indicated that was working as a sales supervisor earning $48,000 per year. For additional income, the husband was driving for Uber earning, on average, $250 per week, but he is not compensated for gas mileage or wear and tear on his vehicle. In 1985, the wife purchased property located in the hamlet of Feura Bush, Albany County and the husband was later added to the deed. In 1986, the parties received a $66,000 loan and secured same with a mortgage on the property, the payments for which were paid through a joint bank account. Three years later, the husband transferred his interest in the property to the wife.

The husband testified that, in 1989, he moved out of the marital residence and into an apartment. According to the husband, the parties briefly attempted to reconcile, at which time the husband moved back into the residence, but, in 1991, he moved out and did not return. He was then served a petition seeking spousal support, in which he was ordered to pay the wife $550 biweekly. The husband admitted that he had been in arrears on his support payments in the past. The husband testified that, since 1991, he has been in a long-term romantic relationship with another woman, with whom he has a child. He indicated that he lives with this woman and that they split household expenses. The husband testified to certain information contained in his statement of net worth. He also indicated that he had credit card debt amounting to $2,600. At one point he did owe $16,400 in back taxes, but he has reduced that amount to $500.

1386*1386 At the time of trial, the wife was also 63 years old, in good health and was residing in the marital residence. The wife testified that she has an Associate's degree in secretarial science. At first, she could not explain her prior work history with certainty, but she submitted her resume. Most of her work has been administrative in nature and she admitted that she has often worked in a part-time capacity. She was not employed at the time of trial, having retired, and was receiving $750 monthly through Social Security benefits. She stated that one of the reasons that she was not working was to take care of the divorce action. She testified that she believed that the last time she worked was in 2015, but her resume reflects employment in 2016 and her 2016 tax return indicates that she earned $6,878 in income that year. The wife could not explain why her earnings were low considering her employment history. Her resume indicates that she has various computer skills, which she has retained. The wife indicated that she has received insurance through Medicaid. She does not have any retirement or pension accounts, but she does have a savings account, which was not reflected on her statement of net worth. The savings account statements reflect varying balances in excess of $2,000, which the wife alleges was an error. When asked to explain certain deposits into her account, the wife was unable to state who deposited the funds. When counsel inquired further, the wife stated, "My supports." The wife heavily relies on spousal support payments and receives Supplemental Nutrition Assistance Program payments. The wife indicated that she has not applied for any jobs recently, but there is no reason that she cannot work in certain positions.

Although the details did not completely corroborate the husband's testimony, the wife testified similarly regarding the attempted reconciliation between the parties. The wife corroborated the husband's testimony concerning the house and its ownership. She testified that, in approximately 2001, a family friend paid off the mortgage and now owns the residence but she is still listed on the deed. She stated that she has certain maintenance payments for the house and pays the homeowners' insurance, but the owner takes care of most expenses. Although she testified that she has not paid rent since 2005, her financial affidavit reflects rent or mortgage payments of $550. This same family friend assisted with the wife's counsel fees.

Because there was no evidence that she could not work, Supreme Court imputed income to the wife based on her administrative skill set and her ability to earn $10 per hour on 1387*1387 a part-time basis. Based on the wife's imputed income and the husband's income, the court calculated the presumptive postdivorce maintenance obligation and then, after reviewing the statutory factors in Domestic Relations Law § 236(B)(6)(e)(1), determined that this award was unjust and inappropriate. We discern no error. In articulating its reasoning for deviating from the presumptive maintenance amount, the court considered the statutory factors and ultimately relied on the length of the marriage and the length of time the parties lived apart, the present and future earning capacity of the parties, the existence and duration of a premarital joint household or a predivorce separate household and equitable distribution of the marital property (see Domestic Relations Law § 236[B][6][e][1][a]-[o]; Pfister v Pfister, 146 AD3d at 1137-1138). The court also determined that the wife could support herself through her Social Security income and food stamps, her ownership of the marital residence, her support from family and friends and her ability to work. This deviation is supported by the record, especially considering that the wife conceded that the spousal support payments were for the mortgage and the mortgage has since been paid in full. Based on these facts, we do not find that Supreme Court abused its discretion in declining to award maintenance to the wife (see generally Harris v Schreibman, 200 AD3d at 1120-1121; Hughes v Hughes, 198 AD3d at 1173).^[*]

The wife also contends that Supreme Court erred in denying her any portion of the husband's retirement accounts because the court did not consider certain statutory factors outlined in Domestic Relations Law § 236(B)(5)(d), and, instead, only considered that the parties were physically separated when the husband commenced employment and that the wife was awarded the marital residence. "It is well established that equitable distribution of marital property does not necessarily mean equal, and Supreme Court has substantial discretion in fashioning an award of equitable distribution" (Allen v Allen, 179 AD3d 1318, 1319 [2020] [internal quotation marks and citation omitted]; see Martin v Martin, 178 AD3d 1339, 1341 1388*1388 [2019]). Domestic Relations Law § 236(B)(5)(d) sets forth the statutory factors that must be weighed and directs that "the court shall set forth the factors it considered and the reasons for its decision and such may not be waived" (Domestic Relations Law § 236[B][5][g]). However, "[the factors] do not have to be specifically cited when the factual findings of the court otherwise adequately articulate that the relevant statutory factors were considered" (Ramadan v Ramadan, 195 AD3d 1174, 1175 [2021] [internal quotation marks and citation omitted]; see Lurie v Lurie, 94 AD3d 1376, 1378 [2012]). Notably, "[the court's] award will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors under Domestic Relations Law § 236(B)(5)(d)" (Martin v Martin, 178 AD3d at 1341 [internal quotation marks and citations omitted]).

The record reveals that, as a result of his employment at the Golub Corporation from 2005 to 2016, the husband received retirement benefits, including a 401(k) plan and a pension. As of June 2018, defendant's 401(k) account had just over $10,000. According to the husband, this account reflects his accumulated earnings while employed at the Golub Corporation, and he does not have another 401(k) account nor any IRA accounts. He also has a pension plan that will pay him $500 per month, contingent on the stock, when he reaches the age of 65. The husband testified that he did have two IRA accounts in the 1980s, which totaled $24,000, but those accounts no longer exist as he cashed them out in 1991 after he left the marital residence. In its order, Supreme Court explicitly stated each factor it must consider under Domestic Relations Law § 236(B)(5)(d) and then analyzed each factor that was relevant, while indicating what factors it deemed irrelevant to the analysis.

After analyzing each factor, Supreme Court looked at each asset to determine what distribution would be appropriate and found it appropriate to award the entirety of the retirement assets to the husband. With that being said, the court awarded the entire marital residence to the wife and any other property not discussed was distributed to "the party holding title or possession." In support of its determination, the court stated that "it is appropriate, equitable and just to award the husband [the retirement] assets in light of the fact that the parties had been physically and financially separated for at least 14 years when the husband started working at Golub [Corporation] and in light of the [c]ourt's award of the marital residence to the wife without any distribution to the husband of a portion of the equity." Although the court did not explicitly state which factors 1389*1389 contributed to the decision regarding the retirement assets, the order expressly states each factor and assesses its relevance against the facts and circumstances of the case, and it is clear from the order that the parties' respective incomes, the duration of the marriage and other financial circumstances were heavily considered (see Ramadan v Ramadan, 195 AD3d at 1175). Based on the foregoing, it cannot be said that the court abused its discretion in awarding the husband 100% of his retirement assets (see Domestic Relations Law § 236[B][5][d]). We have examined the wife's remaining contentions and, to the extent not specifically addressed herein, find them to lack merit.

Ordered that the order and judgment are affirmed, without costs.

[*] The wife, citing to Domestic Relations Law § 236(B)(9)(b), contends that Supreme Court erred in modifying the spousal support order without a showing of a substantial change in circumstances. This assertion is without merit. This was not a proceeding in Family Court to modify the support order (see Family Ct Act § 412[10]), but an action for divorce in Supreme Court. Moreover, "[u]pon the entry of the divorce judgment by Supreme Court, all prior support orders of Family Court became null and void in the absence of Supreme Court's adoption and incorporation of those orders in the divorce judgment" (Matter of Lanese v Lanese, 210 AD2d 755, 756 [1994], lv denied 85 NY2d 805 [1995]; see Family Ct Act § 412[10][c]).

THE SCOPE OF REPRESENTATION AND LEGAL MALPRACTICE

Ressler v. FARRELL FRITZ, PC, 2022 NY Slip Op 31706 - NY Co. Supreme Court 2022:

"...Legal malpractice concerns whether an attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" (AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). A cause of action for legal malpractice requires the plaintiff to plead and prove the attorney's negligence, that the attorney's negligence was the proximate cause of plaintiff's damages, and actual damages (Federal Ins. Co. v North Am. Specialty Ins. Co., 47 AD3d 52, 59 [1st Dept 2007]). To establish proximate cause, the "plaintiff must demonstrate that `but for' the attorney's negligence, plaintiff would either have prevailed in the matter at issue, or would not have sustained any `ascertainable damages' (Leder v Spiegel, 31 AD3d 266, 268 [1st Dept 2006], affd 9 NY3d 836 [2007], cent denied sub nom. Spiegel v Rowland, 522 US 1257 [2008] [citations omitted]).

It is well settled that "[a]n attorney may not be held liable for failing to act outside the scope of the retainer" (Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last & Spellane, LLC, 157 AD3d 479, 482 [1st Dept 2018], citing Ambase Corp. v Davis Polk & Wardell, 8 NY3d 428 [2007]). Here, plaintiffs have not dispelled all questions of material fact as to whether they had engaged defendants to monitor DART for changes to the four tidal wetlands permits issued to Village People and to commence Article 78 proceedings challenging potential modifications to those permits. In defining the scope of defendants' representation, the Engagement Letter states that "[Farrell Fritz] will represent you in connection with the commencement of an action against Village People LLC, and its principal, John Zaccaro, Jr. asserting possible adverse possession and other claims relating to real property located at Pennant Walk" (NYSCEF Doc No. 39 at 1). The letter further states that defendants shall provide legal services "in connection with potential litigation involving title to real property located in Saltaire" (id.). While the phrase "and other claims" is ambiguous, the Engagement Letter does not mention the DEC, the permits issued to Village People or the commencement of any proceeding to challenge future modifications or amendments to those permits. Further, the DEC issued the permits to Village People in 2017, and the time within which to challenge that determination expired long before plaintiffs executed the Engagement Letter. Plaintiffs have not shown whether the Engagement Letter was ever modified to expand the scope of defendants' obligations to include continually monitoring the four permits issued to Village People and authorizing defendants to commence legal proceedings if DEC were to modify those permits. Given plaintiffs' failure to meet their prima facie burden, the branch of the motion seeking partial summary judgment on the issue of defendants' negligence is denied without regard to the sufficiency of defendants' opposition."

NEW YORK COURT PROTOCOLS CHANGE WAS EFFECTIVE JUNE 16

Effective June 16, the new mask protocols can be found at this link:

Modifications to COVID-19 Protocols

NEW RULES ON DEFAULT JUDGMENTS IN CONSUMER DEBT

The new Consumer Credit Fairness Act (S.153/A.2382) is now fully in effect in New York.  The Consumer Credit Fairness Act (CCFA), which was signed by Gov. Kathy Hochul on November 8, 2021, strengthens consumer protections in debt collection proceedings.   One aspect of the law was made effective on May 6: when a third-party debt collector seeks a default judgment collecting upon a consumer debt, the application for default judgment must now include affidavits from 1) the original creditor; 2) any subsequent assignors or sellers of the debt; and 3) a witness who can verify the chain of title of the debt.  Additionally, all parties requesting the default judgment must also attach an affidavit stating the statute of limitations on collecting the debt has not expired.  

WHO IS RESPONSIBLE FOR THE ADOPTED CHILD'S "EMANCIPATION"

 

MATTER OF JERNIGAN-LEYSATH v. LEYSATH, 2022 NY Slip Op 50396 - NY: Family Court 2022:

"HASA A. KINGO, J.

On April 18, 2022, petitioner Edward Jernigan-Leysath ("Petitioner") timely filed an objection to an order entered by Support Magistrate Kevin Mahoney (the "Support Magistrate") on March 22, 2022 (the "March 22, 2022 Order"). Petitioner submitted proof of service of the objection upon the respondents Rhonda Leysath ("Rhonda") and Robbie Leysath ("Robbie") (collectively "Respondents"), who are unrepresented by counsel, with his objection papers. No rebuttal was submitted. Upon reviewing the record, including Petitioner's objection and exhibits thereto, the orders of dismissal and findings of fact issued by the Support Magistrate in both dockets, and the recordings of the hearing held on September 8, 2021, November 22, 2021, and March 22, the court finds that there is insufficient evidence to support the Support Magistrate's finding that Respondents met their burden of establishing constructive emancipation and the objection is granted and the matter is remanded to the Support Magistrate for additional fact finding.

Background

Petitioner was a foster child in Respondents' home and was subsequently adopted by them in 2016, at the age of fourteen or fifteen.^[1] On March 4, 2020, Petitioner filed the instant petition seeking to establish support for himself (Docket No. F-02506-20 & F-09264-20).^[2] Specifically, petitioner alleges that he no longer resides with Respondents, who "currently receive an adoption subsidy for [his] care since [he] was adopted at age 14 though I no longer reside with them." Petitioner cites to Barbara T. v. Acquinetta M., 164 AD3d 1 [1st Dept 2018]) in support of his request for an order of support directing Respondents to pay fair and reasonable support in the amount of the adoption subsidy that they receive and that they be required to exercise the option of additional coverage for health insurance in Petitioner's favor.

A hearing was held on September 8, 2021, November 22, 2021, and March 22, 2022 on the question of whether Petitioner had constructively emancipated himself. Petitioner was represented by counsel at the hearing and both Respondents waived their right to counsel and proceeded pro se. Petitioner testified and was cross-examined by each Respondent, and Robbie briefly testified regarding Petitioner's relationship with his counsel and various social workers during and after the adoption proceeding. Rhonda declined to testify on her own behalf. The Support Magistrate thereafter issued findings of fact and orders of dismissal on March 22, 2022.^[3] The findings of fact indicate that "the basis of Petitioner's request for support is his claim that he had no other choice but to leave the Leysath's home when he was 18 years old, and is thus entitled to a support order paid directly to him by Respondent." The Support Magistrate determined the following:

The testimony of both parties made it clear to the Court that the Petitioner was being raised in a home as a teenager which required him to act accordingly and contribute in an age appropriate way through chores and other household responsibilities. The Court did not find Petitioner credible in his claim that he never felt truly loved by his adoptive family. The Court also notes that there has been no allegation of physical abuse of Petitioner made in this case.

Similarly, Petitioner's complaints of nothing being "fair" in Respondent's home as far as he was concerned, as well as a claim that Respondent did not cook "anything" are found by the Court to be typical responses from a teenager faced with age appropriate discipline. The Court notes that no other witnesses were called by Petitioner to confirm any alleged "mistreatment" of Petitioner by Respondent, and there was no evidence that Petitioner had alerted any social workers of any issues within the home, despite the fact that he had contact with several.

(Lew affirmation, exhibit A, Docket F-02506-20). The findings of fact for Robbie reiterate these points, with the addition that Petitioner's claim that Robbie's "didn't give him a chance to speak," was found to be a typical response from a teenager faced with age-appropriate discipline (Lew affirmation, exhibit A, Docket F-09264-20).

Upon these findings of fact, the Support Magistrate determined that Petitioner had constructively emancipated himself from the household and both petitions were dismissed for failure to state a cause of action. Petitioner thereafter filed his objections.

Standard of Review

Family Court Act § 439(a) empowers Support Magistrates "to hear, determine and grant any relief within the powers of the Court," in proceedings properly before them. FCA § 439(e) provides that the Support Magistrate's determination "shall include findings of fact and. .. a final order." The parties are permitted by statute to submit "specific written objection," to the order for "review" by a Family Court judge. The review of the Support Magistrate's order is essentially equivalent to an appellate review of such an order (see Matter of Cherrez v Lazo, 102 AD3d 781, 782 [2d Dept 2013]). The scope of that review, however, is narrow, and confined to whether the Support Magistrate, as the trier of fact, has made the necessary findings of fact and whether, upon review of the record, the findings of fact present a reasonable basis for that order. The determination of the Support Magistrate should not be disturbed unless no fair interpretation of the evidence can support the findings (see Matter of Stone v Stone, 236 AD2d 615, 615 [2d Dept 1997]; Matter of Reed v Reed, 240 AD2d 951, 952 [3d Dept 1997]). In applying these legal principles, the scope of the Family Court judge's review consists primarily of an inquiry as to whether the Support Magistrate has made the necessary findings of fact and conclusions of law, and whether upon review of the record, there was a reasonable basis for the Support Magistrate's order. In reviewing an objection to a decision of a Support Magistrate, the Court may remand one or more issues of fact to the Support Magistrate, make its own findings of fact and its own order, with or without an additional hearing, or deny the objection altogether (FCA § 439 [e]).

Discussion

Petitioner argues that the Support Magistrate "incorrectly and wrongly focused on whether the Petitioner emancipated himself by leaving the adoptive home when he turned 18 years old" (Lew affirmation ¶¶ 6-8). Instead, Petitioner relies on Matter of Barbara T. v Acquinetta M., 164 AD3d 1 [1st Dept 2018]), and argues that any adoption subsidy received by Respondents attaches to the adoptive child, and he is therefore entitled to receive any subsidy received by Respondents from the time Petitioner left the home or, failing that, from the time he filed the petition for support. Petitioner also argues that, in any event, the evidence presented demonstrates that Petitioner was "kicked out" of the adoptive home by his adoptive parents and did not willingly abandon the home (Lew affirmation ¶¶ 6-8).

It is a fundamental public policy in the State of New York that a parent is obligated to support his or her child until that child reaches the age of twenty-one (FCA § 413 [1][a]; Matter of Roe v Doe, 29 NY2d 188, 192-193 [1971]). When a child is adopted, the natural parents are relieved of this responsibility and the adoptive parents become liable for the child's support (DRL § 110; DRL § 117 [1][a]; see also Barbara T., 164 AD3d at 2 ["Adoptive parents, just like biological parents, remain legally responsible for the support of their children until they are 21"]). Nevertheless, emancipation suspends the parent's support obligation (Roe v Doe, 29 NY2d at 192-193). "Children are emancipated if they become economically independent of their parents through employment, entry into military service, or marriage, and may also be deemed constructively emancipated if, without cause, they withdraw from parental control and supervision" (Matter of Alice C. v Bernard G.C., 193 AD2d 97, 105 [2d Dept 1993]).

The burden of proving emancipation is on the party asserting it (O'Sullivan v Katz, 81 AD3d 480, 480 [1st Dept 2011]). "A child of employable age and in full possession of their faculties who voluntarily and without cause abandon their home, against the will of their parents and for the purpose of avoiding parental control, forfeit their right to demand support even if they are not financially self-sufficient" (Matter of Bailey v Bailey, 15 AD3d 577 [2d Dept 2005]; Roe, 9 NY2d at 192-193; Alice C., 193 AD2d at 105). However, where the parent causes the breakdown in communication with the child, contributes to the deterioration of the relationship, or has made no genuine effort to contact the child, the child will not be deemed to have abandoned the parent (Jose R. v Yvette-Ortiz M., 123 AD3d 412, 413; [1st Dept 2014]; Matter of Gansky v Gansky, 103 AD3d 894, 895 [2d Dept 2013]; Matter of Dewitt v Giampietro, 66 AD3d 773, 774 [2d Dept 2009]; Alice C., 193 AD2d at 109; Lipsky v Lipsky, 115 AD2d 361, 361 [1st Dept 1986]). Furthermore, if the parent-child relationship deteriorates in whole or in part due to the parent's actions, they must actively try to repair the relationship (Jose R., 123 AD3d at 413; Matter of Chamberlin v Chamberlin, 240 AD2d 908, 910 [3d Dept 1997]). Reluctance on the child's part to contact the parent does not constitute abandonment which would relieve the parent of their support obligation (O'Sullivan, 81 AD3d at 480; Dewitt, 66 AD3d at 775).

Notwithstanding the deference this court gives to the findings of the Support Magistrate, who is in the best position to assess the credibility of the witnesses, the court finds that even if believed, Respondents have failed to meet their burden of establishing constructive emancipation. Petitioner testified at the hearing that he left Respondents' home in November 2018, shortly after his eighteenth birthday. Without objection from either Respondent, Petitioner submitted a text message into evidence that Robbie sent to Petitioner on September 26, 2018 in which Robbie stated, "U just fucked yourself and ya don't even kno it u remind me of a couple of other idiots I kicked to the fucking curb u never kno how good u had it until ya lose it [laughing emoji]," and "Nobody breathes for free" (Lew affirmation, exhibit B). Petitioner testified that the text exchange took place after he cleaned the kitchen in the home and Robbie was unhappy with the job he did, and that he left the home a few weeks after this exchange and was told by Respondents he could never come back and was not welcome in the home. Petitioner also testified that he returned to the home in either February or March of 2019 to retrieve some of his sneakers and other belongings. When Petitioner entered the home by the garage, Robbie confronted him and again told him he was not welcome in the home, and threatened to call the police to charge him with trespassing.

The September 26, 2018, text message and Petitioner's testimony that he was told he could never return to the home indicate that either Robbie or both Respondent's actions contributed to the deterioration of the relationship with Petitioner. Nevertheless, there was no testimony elicited by Respondents on this issue, and the Support Magistrate made no findings of fact regarding whether either Respondent made any effort to maintain a relationship with Petitioner or attempted to repair the relationship with Petitioner after he left the home (see Jose R., 123 AD3d at 413; Gansky, 103 AD3d at 895; Dewitt, 66 AD3d at 774; Alice C., 193 AD2d at 109; Lipsky, 115 AD2d at 361; Chamberlin, 240 AD2d at 910). Indeed, Respondents did not proffer any evidence of attempts to maintain contact with Petitioner, offers for him to return to the home, or any attempts to repair the relationship between them. Additional fact finding is, therefore, needed on these issues (see Melgar v. Melgar, 132 AD3d 1293, 1294 [4th Dept 2015] [Further hearing needed where the cause of the breakdown in communication has not been established]).

Petitioner also argued in his petition, at the hearing, and in his objection that Respondents receive an adoption subsidy for Petitioner's care, which he contends should be awarded to Petitioner. "New York has offered an adoption subsidy in some form since 1977 in order to `eliminate, or at the very least substantially reduce, unnecessary and inappropriate long-term foster care situations,' which are both costly to the state and contrary to the best interests of children who are difficult to place due to physical or mental disabilities, age, or for other reasons" (Barbara T., 164 AD3d 1, 9, citing Social Services Law § 450). "In 1980, Congress passed the Adoption Assistance and Child Welfare Act (42 USC §§ 670-676) `to encourage greater efforts to find permanent homes for children' by, inter alia, subsidizing the adoption of special needs children. New York's adoption subsidy program comports with the federal requirements, and is administered in New York City by ACS" (id. at 9).

Payment of the adoption subsidy is regulated by 18 NYCRR 421.24. Although the statute does not provide for payment of the subsidy directly to the child, or anyone other than the adoptive parent, New York courts have acknowledged that the subsidy is a resource of the child and is paid for the care and maintenance of the child (Barbara T., 164 AD3d at 8 ["For the reasons discussed below, we find that Family Court properly determined that an adoption subsidy should be considered as a resource of the child when determining child support[.]; A.E. v J.I.E., 179 Misc 2d 663, 665-666 [Sup Ct Bronx County 1999] ["[S]uch payments are treated as resources of the child, to be considered in determining whether the parent's support obligation is unjust or inappropriate.. . DSS pays this subsidy for the care and maintenance of the child[.]; Comm'r of Soc. Servs. ex rel. Smith v Smith, 75 AD3d 802, 802 [3d Dept 2010] [Appellate court declined to vacate order directing non-custodial adoptive mother to turn over monthly adoption subsidy to Commissioner of Social Services for reimbursement of the cost of the child's care]).

In order to receive the adoption subsidy, foster parents must apply for the subsidy prior to adoption (18 NYCRR 421.24 [b] [1]), and sign a contract with ACS (18 NYCRR 421.24 [b] [2]). The minimum provisions of such contracts are set by regulation (18 NYCRR 421.24 [c] [3]; see also New York State Office of Children and Family Services, Adoption Subsidy and Non-Recurring Adoption Expenses Agreement, available at https://www.ocfs.ny.gov/main/Forms/adoption/LDSS-4623A%20Adoption%C20Subsidy%C20and%20Non-Recurring%20Adoption%C20Expenses%C20Agreement%20-%20Initial%20Application.pdf, cached at http://www.nycourts.gov/reporter/webdocs/LDSS-4623A-Adoption-Subsidy-Non-Recurring-Adoption-Expenses-Agreement-Initial-Application.pdf). The applicable regulations further provide the following:

The written agreement authorizing monthly payments will remain in effect until the child's 21st birthday. No payments may be made if the social services official determines that the adoptive parents are no longer legally responsible for the support of the child or the child is no longer receiving any support from such parents. Such written agreement must state that it will be the responsibility of the adoptive parent(s) to inform the appropriate State or local official when they are no longer legally responsible for the child or no longer providing any support to the child.

(18 NYCRR 421.24 [c] [5] [emphasis added]). The statute further provides:

The social services official on an annual basis in a written notification must remind the adoptive parents of their obligation to support the adopted child and to notify the social services official if the adoptive parents are no longer providing any support or are no longer legally responsible for the support of the child. Where the adopted child is school age under the laws of the state in which the child resides, such notification must include a requirement that the adoptive parents must certify that the adopted child is a full-time elementary or secondary student or has completed secondary education.

(18 NYCRR 421.24 [c] [19] [emphasis added]).

Petitioner testified at the hearing that he did not receive any financial support from Respondents after he left the home in November 2018 and stated that he lived in a shelter for a period of time after leaving the home. Respondents, therefore, had a contractual and statutory obligation to inform ACS at that time that they were no longer providing any support to Petitioner (id.). It would be inappropriate, if not illegal, for Respondents to continue receiving a subsidy if they were no longer providing care to Petitioner. Therefore, if Respondents continued to receive the adoption subsidy after Petitioner left the home, in contradiction with their agreement with the social services official and in violation of 18 NYCRR 421.24 [c] [5], this suggests that Petitioner was not emancipated and that Respondents had a continuing obligation to provide support to him (see J.M. v. R.M., 52 Misc 3d 1212 [A] [NY Fam Ct 2016] [Family Court weighed non-custodial mother's continued receipt of adoption subsidy as a factor in determining whether child was constructively emancipated]). The record is devoid of information regarding the amount of any subsidy received and dates of receipt of same.

Pursuant to Family Court Act Section 439(e), a support magistrate is required to set forth detailed "findings of fact" and in the absence of such findings, the matter shall be remitted (see Vizcaino v Butler, 248 AD2d 478 [2d Dept 1998]). The support magistrate must consider the evidence presented to make the necessary findings of fact and must state the reasons therefor (see Parietti-Fogarty v Fogarty, 141 AD3d 512 [2d Dept 2016]). "Appropriate findings of fact. .. should be made on each issue" (Manning v Manning, 115 AD2d 318 [4th Dept 1985]), and the failure of a support magistrate to make specific findings of fact on each issue makes intelligent judicial review impossible, requiring remittitur (see Hamilton v Irlbacher, 96 AD2d 726 [4th Dept 1983]). In the instant matter, the Support Magistrate failed to issue specific findings of fact as to what contribution Respondents made to the deterioration of the parent-child relationship, what efforts they made to repair the relationship, the amount of any adoption subsidy received by Respondents in connection with their adoption of Petitioner, and the dates of receipt of the subsidy. Therefore, the objection is granted and the matter is remanded to the Support Magistrate for additional fact finding on these issues.

This constitutes the decision and order of the court.

Notify parties.

Notify Support Magistrate Mahoney.

[1] The record is unclear regarding the precise date of adoption.

[2] The March 4, 2020 petition named both Respondents, but only one docket was assigned for both Respondents. A second docket number was assigned on April 12, 2021 (F-09264-20).

[3] The orders of dismissal and findings of fact issued in each docket are largely identical. Therefore, they will be addressed together for the purposes of this Decision and Order, except where otherwise noted."

WHICH TOLLING STATUTES GOVERN IN FORECLOSURE

Batavia Townhouses, Ltd. v. Council of Churches Hous. Dev. Fund Co., Inc., 2022 NY Slip Op 3361 - NY: Court of Appeals 2022:

".....

In May 2019, the limited partners brought this derivative action, on behalf of the Partnership, against Council seeking a declaration that the wraparound mortgage was unenforceable because the six-year limitations period for foreclosure had expired in March 2018. Council responded that the statute of limitations had been tolled under General Obligations Law §§ 17-101 or 17-105 because the Partnership's annual financial statements and tax returns for 2012 to 2018 listed the mortgage as an outstanding liability. Section 17-101 provides that an "acknowledgment" of a contractual debt is "competent evidence of a new or continuing contract" that tolls the limitations period for commencing actions "other than an action for the recovery of real property." Section 17-105(1) states, "A waiver of the expiration of the time limited for commencement of an action to foreclose a mortgage of real property . . . or a promise to pay the mortgage debt . . . by the express terms of a writing signed by the party to be charged is effective . . . to make the time limited for commencement of the action run from the date of the waiver or promise." Supreme Court, among other things, granted plaintiffs' motion for summary judgment seeking to cancel and discharge the wraparound mortgage. As is pertinent, the court ruled that the action to foreclose on the mortgage was time barred pursuant to CPLR 213 (4) and the six-year statute of limitations was not tolled or revived under General Obligations Law § 17-105.

The Appellate Division modified the Supreme Court order insofar as appealed from by remitting the matter to Supreme Court for the grant of an appropriate judgment declaring the rights of the parties and otherwise affirmed. The court agreed with Supreme Court that only General Obligations Law § 17-105(1) "applies to the type of action brought here under RPAPL § 1501(4), which requires the party bringing such an action to establish that the limitations period for the commencement of a mortgage foreclosure action has expired" (189 AD3d 20, 25 [2021]). The Court reached that conclusion based on the "plain language" and legislative history of sections 17-101 and 17-105 (id. at 25-26). The Court explained that, although section 17-101 allows a "mere `acknowledgment'" to extend the statute of limitations for "contractual debts," section 17-105(1) "was enacted specifically to address the waiver of the statute of limitations applicable to mortgage debt and . . . provided that an express promise to pay such debt . . . would be sufficient to revive the otherwise expired statute of limitations" (id.). As a result, the Appellate Division unanimously concluded that the Partnership's financial statements and tax returns could not revive the limitations period because they "do not constitute an express promise to pay the mortgage debt" (id. at 28). We granted leave to appeal (36 NY3d 906 [2021]), and we now affirm.

In pertinent part, RPAPL § 1501(4) provides as follows:

"Where the period allowed by the applicable statute of limitation for the commencement of an action to foreclose a mortgage, or to enforce a vendor's lien, has expired, any person having an estate or interest in the real property subject to such encumbrance may maintain an action against any other person or persons, known or unknown, including one under disability as hereinafter specified, to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the plaintiff in such real property to be free therefrom" (RPAPL § 1501[4] [emphasis added]).

Thus, a party seeking to cancel or discharge a mortgage must first establish that the limitations period for enforcement by way of foreclosure has already expired. Here, it is undisputed that the six-year statute of limitations to foreclose on Birchwood expired on March 2, 2018, pursuant to CPLR 213(4), unless it was extended or revived by one of the means set forth in either General Obligations Law §§ 17-101 or 17-105. The question we must answer is whether both or only one of those sections of the General Obligations Law applies here.

Despite what Council contends, General Obligations Law § 17-105, by its express terms, is the sole statute governing the tolling or revival of the statute of limitations for an action to foreclose a mortgage. Section 17-105(1) states that, among other things, a "promise to pay the mortgage debt, if made after the accrual of a right of action to foreclose the mortgage . . . by the express terms of a writing signed by the party to be charged is effective . . . to make the time limited for commencement of the action run from the date of the . . . promise" (emphasis added). The statute further states that "[e]xcept as provided in subdivision five, no acknowledgment, waiver or promise has any effect to extend the time limited for commencement of an action to foreclose [a] mortgage for any greater time or in any other manner than that provided in this section, nor unless it is made as provided in this section" (§ 17-105[4] [emphasis added]). Moreover, section 17-101 excludes itself—and by implication its allowance for a mere acknowledgment to toll or revive the statute of limitations—because it indicates that it does not apply to "actions for the recovery of real property."

Council further argues that General Obligations Law §§ 17-101 and 17-105 both apply to mortgage foreclosure actions based on this Court's precedent in Petito v Piffath (85 NY2d 1 [1994]), in which we considered both statutes in concluding that a time-barred foreclosure had not been revived. However, Petito is distinguishable from the present case because the record in that case reveals that, unlike the present case, the parties did not present this Court with the threshold question of which section of the General Obligations Law applied in a mortgage foreclosure action.

Under General Obligations Law § 17-105(1), the Partnership's actions in this case could only toll or revive the statute of limitations for the Council to bring a foreclosure action if the Partnership made an "express" "promise to pay the mortgage debt." Accordingly, the Appellate Division correctly concluded that the Partnership's delivery of its financial statements and tax returns to Council did not meet the requirements of section 17-105(1) because they were not express promises to pay the mortgage debt (189 AD3d at 28).^[1]

Council seeks, however, to draw a distinction between an "express promise" and General Obligations Law § 17-105(1)'s requirement of a "promise . . . made . . . by the express terms of a writing." According to Council, a mere acknowledgment meets that requirement. Section 17-105(1), however, does not use the word "acknowledgement," and it instead refers to a "promise" or "waiver" made "by the express terms of a writing." The logical reading is that, whereas section 17-101 allows for a written and signed "acknowledgement [of] or promise" to pay a contractual obligation to toll or revive the statute of limitations, section 17-105(1) requires the mortgage debtor to make an "express" "promise to pay the mortgage debt." To instead construe the word "promise" to refer both to an "acknowledgement" and a "promise" would render meaningless the distinction between an "acknowledgment or a promise" made in section 17-101. Treating an "acknowledgment" as being something different than a "promise" abides by the rule of statutory construction that "[w]hen different terms are used in various parts of a statute or rule, it is reasonable to assume that a distinction between them is intended" (Matter of Albano v Kirby, 36 NY2d 526, 530 [1975]). Additionally, section 17-105(4)'s statement that outside of the provisions of that section "no acknowledgment, waiver or promise has any effect to extend the time" indicates that the legislature didn't intend for a mere acknowledgment to revive or toll the statute of limitations for a foreclosure action.

The legislative history further demonstrates that the purpose behind General Obligations Law section 17-105 was to require more express actions by a mortgage debtor to toll or revive the statute of limitations so as to prevent "[s]erious impairment of titles to land and hindrance of real property financing" (1961 Law Rev Commn., Acts, Recommendation and Study Relating to Transaction Affecting the Time Limited for an Action to Foreclose a Mortgage of Real Property at 112). It would conflict with that legislative intent to allow an acknowledgment (i.e., an implied promise), as opposed to an express promise, to toll or revive the statute of limitations for a mortgage foreclosure action. Council's remaining arguments are lacking in merit.^[2]

Accordingly, the order of the Appellate Division should be affirmed, with costs.

[1] Because we conclude that General Obligations Law § 17-105(1) governs the tolling or revival of the statute of limitations for an action pursuant to RPAPL § 1501(4), we have no occasion to decide whether the Partnership's delivery of its financial statements and tax returns to Council constituted "acknowledgment[s]" under General Obligations Law § 17-101.

[2] The partial dissent's analysis addresses arguments that were neither preserved for review by any party nor raised in this Court (see Misicki v Caradonna, 12 NY3d 511, 518-520 [2009]). Although the parties dispute which tolling provisions apply (and what they require), there is no suggestion that the note and mortgage could or should be treated separately for tolling purposes. Indeed, in its brief, Council repeatedly suggests just the opposite, directing its tolling arguments to the enforceability of "the WrapAround Note and Mortgage," also referred to as the "mortgage obligation" (App Br at 11, 26, 29). Council does not contend that a triable issue of fact precluded summary judgment but, to the contrary, noted that the parties "agreed that the matter is appropriate for resolution by summary judgment" (App Br at 11)."