VICTIMS OF IDENTITY THEFT/DOMESTIC VIOLENCE AND SOCIAL SECURITY

Whether it is domestic violence that requires this, or you are a victim of identity theft, it may be best to change your social security number. Social Security (SSA) will address this for you. After providing a statement explaining why you need a new number, you must provide credible, third-party documentation of your reason, including medical, legal, or police documents regarding identity theft, abuse, or harassment.

There are several other reasons that the SSA will issue a new number. For example, it may approve a change if similar numbers within a family unit cause confusion or if two identical numbers have been issued in error. If you have a religious objection to a certain number or sequence of numbers in your current SSN, you may also qualify for a change.

To change your SSN for any reason, you must apply at a local Social Security office. 

TODAY FOR NASSAU COUNTY RESIDENTS

 

AN LLC DISPUTE

Greenman v. Miller, 2022 NY Slip Op 33355 - NY Co. Supreme Court 2022:

"For approximately forty years, Larry Miller ("Defendant" or "Miller") and Charles Greenman ("Charles") were close friends and successful business partners. Charles, a partner at the Troutman Sanders, LLP law firm, and Miller, an entrepreneur and investor, joined in numerous business ventures which they conducted through Millman LLC ("Millman"), 392 Columbus Avenue LLC ("392 Columbus"), and SDMJD Next Generation LLC ("SDMJD") (the "Entities") and other vehicles. In 2014, Charles passed away, and his spouse, Jane Greenman ("Plaintiff" or "Jane") was left to sort out and manage Charles' estate and her family's finances. Miller assumed control of all three entities.

In this action, Jane alleges that Miller began almost immediately to ignore or trample her rights as a passive minority investor with no management powers and disregarded the restrictions imposed on him by the entities' operating agreements and his fiduciary duties by looting the entities for his own benefit to the detriment of both the entities and Jane. The counterclaims filed by Miller allege, among other things, that Jane, as Executrix of Charles' estate, engaged in misconduct as a fiduciary and avoided honoring the deals that Miller made with Charles for the benefit of the Greenman family to the tune of millions of dollars. Both parties now seek summary judgment in their favor. For the following reasons, the motions are granted in part and denied in part.

DISCUSSION

It is well settled that "[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

I. Motion 006: Defendant's Motion for Partial Summary Judgment.^[1]

A. Breach of Contract and Breach of Fiduciary Duty Claims Relating to Millman (First through Fourth Cause of Action).

The first two claims of Plaintiff's Amended Complaint are breach of the Millman Agreement and breach of fiduciary duty brought derivatively on behalf of Millman. The third and fourth claims are breach of the Millman Agreement and breach of fiduciary duty brought individually on behalf of Plaintiff.

As an initial matter, Miller is the Entities' managing member and he has the exclusive authority to manage the Entities. "As a result, his decisions are subject to significant deference under the business judgment rule" (Barry v Clermont York Assoc. LLC, 50 Misc 3d 1203(A) [Sup Ct, NY County 2015], affd as mod, 144 AD3d 607 [1st Dept 2016]; Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 537-38 [1990]), unless he engages in fraud of self-dealing (Wolf v Rand, 258 AD2d 401, 404 [1st Dept 1999]; see also Birnbaum v Birnbaum, 73 NY2d 461, 466 [1989]). Here, the business judgment rule precludes Jane's allegations relating to Miller's decision to cancel swap agreements to which the entity had been a party. Miller submits that this was justified because of future cost savings which exceeded the up-front penalty. While this may or may not have been a good decision, Jane does not allege Miller engaged in fraud or self-dealing as related to this claim. Thus, summary judgment in favor of Miller is granted on this claim.

Summary judgment is also granted in favor of Miller on Jane's claim regarding salary payments Miller made to himself in 2015 and 2016 purportedly in violation of the Millman Agreement. Jane's expert's report acknowledges that Miller repaid the $325,000 in full on November 1, 2016, approximately one month after he received the last salary payment (NYSCEF 430 at Exhibit 13C [page 69]). Jane thus only seeks interest on these amounts, which does not state a viable claim for relief (Ajdler v Province of Mendoza, 33 NY3d 120, 126 [2019] ["[A]bsent contractual language to the contrary, `the receipt of the principal bars a subsequent claim for the interest for the reason that in such cases interest being a mere incident, cannot exist without the debt, and the debt being extinguished the interest must necessarily be extinguished'"]; see also Fed. Natl. Mtge. Assn. (Fannie Mae) v Tortora, 188 AD3d 70, 77 [4th Dept 2020]). As Jane points to no contractual language supporting her claim of interest, summary judgment on this claim in favor of Miller is granted.

The remaining issues on the breach of contract and breach of fiduciary duty claims raise fact issues that cannot be resolved on summary judgment.^[2]

B. Breach of Contract relating to SDMJD (derivatively on behalf of SDMJD) (Eighth Cause of Action).

It is undisputed that section 4.3(b) of the SDMJD operating agreement does not provide a deadline for distributing monies received by 90 Hudson LLC derived from a sale or refinancing. Further, Miller made distributions when requested by Jane. Although Jane argues that Miller improperly delayed distribution, and seeks interest based on the delay, Jane provides no support for what the appropriate window of time might have been. Furthermore, as stated above, unless a contract provides otherwise, a claim for interest only fails as a matter of law. Thus, summary judgment in favor of Miller is granted on this claim as well.

C. Judicial Dissolution Pursuant to LLC Law § 702 (Ninth Cause of Action).

Summary judgment in favor of Miller is granted as Jane is unable to show that Miller has acted contrary to the purpose of Millman, which is needed to pursue a derivative claim for dissolution against a manager (In re 1545 Ocean Ave., LLC, 72 AD3d 121, 131 [2d Dept 2010]; Goldstein v Pikus, 2015 NY Slip Op 31483[U] [Sup Ct, NY County 2015]). Further, Jane failed to show that the Company is presently unable to fulfill its stated purpose simply because Miller, in his discretion as the sole manager, decided to discontinue Millman's loan business. Millman continues to invest in "real estate, private equity, and/or hedge fund investments" (Pl.'s Am. Compl. ¶ 100). Further, "[d]isputes between members are not sufficient to warrant the exercise of judicial discretion to dissolve an LLC that is operated in a manner within the contemplation of it[s] purposes and objections as defined in its articles of organization and/or operating agreement" (Huggins v Scott, 2019 NY Slip Op 33506[U], 4-5 [Sup Ct, NY County 2019]).

Because Jane is unable to show that Miller has acted contrary to the purpose of Millman, her allegations of breach of contract, even if proved at trial, are insufficient to establish grounds for dissolution of Millman.

II. Motion 007: Plaintiff's Motion for Summary Judgment on Defendant's Counterclaims I-V.

A. Breach of Contract and Breach of Fiduciary Duty Relating to 392 Columbus (First and Second Counterclaims).

Jane has met her prima facie burden for summary judgment on Miller's first and second counterclaim for breach of 392 Columbus Operating Agreement and Breach of Fiduciary Duty regarding 392 Columbus for distributions under the 392 Columbus operating agreement. Jane has submitted a copy of the notarized amended 392 Columbus operating agreement (NYSCEF 253), executed by both herself and by Miller. Schedule A in this agreement amended the original agreement, which split ownership two-thirds to Miller and one-third to Charles (NYSCEF 230). In the amended agreement, Miller's percentage interest is 50% and Jane's percentage interest is 25% and Jane's children's collective interest is 25% (8-1/3% each). The operating agreement was signed February 29, 2012, and states that it is "dated as of August 28, 1998, by and among each of [its] parties" (NYSCEF 253).

While Miller argues that it is unclear when the amended operating agreement was to go into effect and whether it was to apply to the distribution at issue, which occurred earlier in February 2012 before the signing of the amended agreement, the parties indicated that it was dated "as of August 1998. "It is fundamental that where parties to an agreement expressly provide that a written contract be entered into `as of' an earlier date than that on which it was executed, the agreement is effective retroactively `as of' the earlier date and the parties are bound thereby accordingly" (Colello v Colello, 9 AD3d 855, 857 [4th Dept 2004]).

Moreover, Jane submitted correspondence from Millman's accountant, Block, from June 2012 and August 2012, which indicates that the distributions from 392 Columbus were intended to be 50/50 (NYSCEF 447, 448). Miller fails to present any communications or documentation that indicate an intention to the contrary. Thus, Miller fails to raise any issues of material fact. Accordingly, summary judgment is granted in favor of Plaintiff on this claim.

B. Legal Fees (First, Second, and Fourth Counterclaims).

Fact issues preclude summary judgment on the issue of Charles' legal fees in the First, Second, and Fourth Counterclaims. Jane's argument that the statute of limitations bars these claims raises factual issues as to when Miller discovered the purported fraud or when he was on notice of it (Epiphany Community Nursery School v Levey, 171 AD3d 1, 7 [1st Dept 2019] [citations omitted] ["The issue of when a plaintiff, acting with reasonable diligence, could have discovered an alleged fraud ... involves a mixed question of law and fact, and, where it does not conclusively appear that a plaintiff had knowledge of facts from which the alleged fraud might be reasonably inferred, the cause of action should not be disposed of summarily on statute of limitations grounds. Instead, the question is one for the trier-of-fact"]).

C. Conversion (Third Counterclaim).

Fact issues also preclude summary judgment on the Third Counterclaim for Conversion of Books and Records and Legal Files Against Jane Individually. The record presented has not established summary judgment in favor of Jane as there remains a question of what files Jane possesses, and whether Miller has established his possessory right or interest in the documents not related to Miller-managed entities (Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 49-50 [2006]).

D. Breach of Contract Relating to 12000 Biscayne (Fifth Counterclaim).

Finally, fact issues preclude summary judgment on the Fifth Counterclaim for Breach of Contract against Jane as Executrix relating to the 12000 Biscayne investment. Miller has not conclusively established the existence of an oral agreement between himself and Charles to split the income from Miller's loan and Charles' profits from this investment, nor has he established his own performance under this alleged agreement. Even if he could, Jane also raises issues of fact as to whether there was any breach of this alleged agreement or whether Miller repudiated the agreement before Jane's obligation under the alleged deal arose.

Accordingly, it is

ORDERED that Miller's Motion for Partial Summary Judgment (Mot. Seq. 006) is granted in part and denied in part; and it is further

ORDERED that Jane's Motion for Summary Judgment Dismissing the Counterclaims (Mot. Seq. 007) is granted in part.

This constitutes the Decision and Order of the Court.

[1] Miller does not move to dismiss Plaintiff's Fifth, Sixth, or Seventh Causes of Action.

[2] Plaintiff will need to streamline these issues and clearly identify which claims she is pursuing derivatively and which she is pursuing directly, and which claims are a breach of contract and which are breach of fiduciary duty in her pre-trial memorandum."

MORE DOG LAW

LAZOVIK v. PUPPY BOUTIQUE, 2022 NY Slip Op 50979 - NY: City Court, Kings Civil Court 2022:

"DEREFIM B. NECKLES, J.

Claimant Tatsiana Lazovik ("claimant") commenced this small claims action against defendant Puppy Boutique a/k/a puppypetite.com ("defendant"), alleging causes of action sounding in breach of contract and breach of warranty. Claimant alleged that defendant sold her an unhealthy puppy and, as a result, she incurred veterinary expenses due to its condition. A small claims trial was held wherein claimant sought to recover damages in the amount of $9,612.00. At the trial, claimant appeared pro se, and defendant appeared by counsel. After considering the testimony of the parties and the documentary evidence submitted at trial, the court makes the following findings of fact and conclusions of law.

Testimony of the Parties

Claimant testified that on November 2, 2019, she purchased a five-month-old female Maltese puppy (the "puppy") from defendant at a cost of $1,357.00. She purchased the puppy for the purpose of breeding and for companionship. Within two months of purchase, the puppy became ill and needed immediate care. On January 17, 2020, claimant took the puppy to her primary care veterinarian at World of Animals of Bethayres in Pennsylvania. Upon examination of the puppy, the veterinarian referred claimant to a Veterinary Specialty and Emergency Center (VSEC) in Levittown, Pennsylvania, for further evaluation of the puppy. After various tests, the veterinarian at VSEC diagnosed the puppy with congenital portosystemic liver shunt and performed surgery on January 30, 2020 to correct the problem. Claimant testified that sometime thereafter, she telephoned defendant regarding the veterinary expenses she incurred. In response, she was advised that the puppy had to be taken to defendant's veterinarian for examination. Claimant further testified that she took the puppy to a local veterinarian facility for treatment because it was very sick and needed immediate attention. She stated that the surgery was necessary to save the puppy's life. She alleged that defendant sold her the puppy knowing that it had a genetic malformation, and despite defendant's representation that it was in good health.

Claimant produced in evidence a report dated January 27, 2020 from VSEC. The report contains the puppy's history, breed, age, and weight. The report also details the different diagnostic examinations performed, and recommended treatments. The report lists under diagnosis and recommendation "[s]olitary congenital portosystemic (splenocaval) liver shunt, mild microhepatia, renomegaly and urine sediment (suspect urates) secondary to shunt." Claimant contended that she is entitled to recover the purchase price of the puppy in the amount of $1,357.00, as well as the cost of the veterinary expenses she incurred in the amount of $8,255.00, for a total sum of $9,612.00.

Defendant's general manager, Benjamin Santiago testified at trial that he sold the puppy to claimant on November 2, 2019. He testified that claimant called the defendant's store and spoke to the receptionist about the veterinary bills and was advised that she could either get a replacement puppy or a refund of the purchase price. The general manager asserted that claimant is not entitled to a reimbursement for the veterinary expenses as she did not comply with the terms of the contract of sale.

The contract of sale between claimant and defendant, dated November 2, 2019, admitted in evidence, provides, inter alia:

"In the event a puppy is found unfit for sale: we request the puppy be produced at our office for further evaluation. (No reimbursements/refunds will be granted until [] veterinarian concludes that there is such unfitness)."

"All puppies are sold as pet quality only; Not for Breeding Purposes."

"NYS General Business Law Section 753 provides that if a pet dealer The Puppy Boutique, the seller wishes to contest a demand for a refund, exchange or reimbursement made by a consumer You, such pet dealer shall have the right to require the consumer You, the purchaser to produce the animal for examination by a licensed veterinarian designated by such dealer The Puppy Boutique, the seller . . . I the purchaser understand. X [claimant's] Initial"

The contract lists the puppy as having "no known disease, illness or congenital or hereditary condition adversely affects the health of the animal at the time of sale."

Relying on General Obligations Law § 753, defendant asserted that claimant is entitled to either a replacement puppy or a refund of the purchase price.

General Business Law § 753

Article 35—D of the General Business Law ("GBL") governs the sale of cats and dogs. GBL § 753(1) provides, in pertinent part, that a pet dealer shall afford the consumer the right to choose one of the following options provided in the statute if, within 180 calendar days following the sale of the pet, a licensed veterinarian certifies that the pet is unfit for purchase due to a congenital malformation which adversely affects the health of the animal:

"(a) The right to return the animal and receive a refund of the purchase price including sales tax and reasonable veterinary costs directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section;

(b) The right to return the animal and to receive an exchange animal of the consumer's choice of equivalent value and reasonable veterinary costs directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section; or

(c) The right to retain the animal and to receive reimbursement from a pet dealer for veterinary services from a licensed veterinarian of the consumer's choosing, for the purpose of curing or attempting to cure the animal. The reasonable value of reimbursable services rendered to cure or attempting to cure the animal shall not exceed the purchase price of the animal. The value of such services is reasonable if comparable to the value of similar services rendered by other licensed veterinarians in proximity to the treating veterinarian. Such reimbursement shall not include the costs of initial veterinary examination fees and diagnostic fees not directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section.

The commissioner by regulations shall prescribe a form for, and the content of, the certification that an animal is unfit for purchase, which shall be provided by an examining veterinarian to a consumer upon the examination of an animal which is subject to the provisions of this section. Such form shall include, but not be limited to, information which identifies the type of animal, the owner, the date and diagnosis of the animal, the treatment recommended if any, and an estimate or the actual cost of such treatment. Such form shall also include the notice prescribed in section seven hundred fifty-four of this article."

GBL § 753(2) provides the following:

"The refund and/or reimbursement required by subdivision one of this section shall be made by the pet dealer no later than ten business days following receipt of a signed veterinary certification as herein required. Such certification shall be presented to the pet dealer not later than three business days following receipt thereof by the consumer."

Further, GBL § 753(5) states:

"Nothing in this section shall in any way limit the rights or remedies which are otherwise available to a consumer under any other law."

Analysis

At trial, claimant did not submit a valid certification from a veterinarian in a form as prescribed by the commissioner, stating that the puppy was unfit for purchase as required by GBL § 753(1). As such, claimant is not entitled to avail herself of the remedies afforded by GBL § 753 (see Sacco v Tate, 175 Misc 2d 901, 902 [App Term, 2nd Dept 1998] [holding that plaintiffs could not recover damages under GBL § 753 due to her failure to comply with the statute]).

However, GBL § 753 does not "limit the rights or remedies which are otherwise available to a consumer under any other law." Another theory under which claimant could recover damages is pursuant to section 2-314 of the Uniform Commercial Code ("UCC"). That section provides that "[u]nless excluded or modified . . . a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind." Dogs have been held to fall within the definition of "goods" as defined in UCC 2-105 and defendant, a dog seller, is a "merchant" within the meaning of UCC 2-104(1) (see Saxton v Pets Warehouse, Inc., 180 Misc 2d 377, 378 [App Term, 2nd Dept]; see also Appell v Rodriguez, 14 Misc 3d 131 [A] [App Term, 9th & 10th Jud Dists 2007]; Badillo v Bob's Pet Center, Inc., 40 Misc 3d 137 [A] [App Term, 2nd, 11th and 13th Jud Dists 2013]).

In the instant case, claimant demonstrated that defendant breached the implied warranty of merchantability under UCC 2-314. The evidence adduced at trial established that defendant sold claimant a puppy that suffered from a congenital condition, which by its nature, had to have existed at the time of sale (see Appell v Rodriguez, 14 Misc 3d 131[A]). Claimant submitted proof establishing that she incurred $8,255.00 in veterinary expenses relating to the treatments of the puppy, including hospitalization and surgery due to its congenital condition. As such, claimant is entitled to recover damages pursuant to UCC 2-314 and 2-714 (see Budd v Quinlan, 19 Misc 3d 66, 68 [App Term, 9th & 10th Jud Dists 2008] ["substantial justice requires . . . [an] award to plaintiff as against defendant, representing the amount she paid to the veterinarian to treat the dog"]; see also Sacco v Tate, 175 Misc 2d at 902; Lombardo v Empire Puppies, 50 Misc 3d 143 [A] [App Term, 2nd, 11th and 13th Jud Dists 2016]). However, since claimant retained possession of the puppy, she is not entitled to a refund of the purchase price.

Conclusion

Based on the forgoing, the court finds in favor of claimant. Damages is awarded to claimant in the amount of $8,255.00.

Accordingly, it is hereby ORDERED that the Clerk is directed to enter judgement in favor of claimant Tatsiana Lazovik against defendant Puppy Boutique a/k/a Puppypetite.com in the amount of $8,255.00, without interest and cost.

This constitutes the decision and order of the court."

A DOG OF DIVORCE

L.B. v C.C.B. 2022 NY Slip Op 22320 Decided on October 6, 2022 Supreme Court, Kings County Quiñones, J.:

"Companion Dogs

The sole significant asset contested by the parties is custody and possession of their two dogs €" three-year old Rottweilers named Kane and Cleo. To be sure, the issue of who gets custody of the family pet following a divorce is often "no less contentious" than that of who gets custody of the minor children (see George Heymann, The 'Humanization' of Animals and the Custody of Companion Pets When Couples Separate or Divorce, NYLJ, Mar. 22, 2022). As stated by retired Justice Matthew F. Cooper, "[p]eople may stop loving their spouse at some point, but they never stop loving their dogs" (Susan Lehmann, The New Yorker, The Bench, A Voice For The Yorkies and Doodles When Mom and Dad Split Up, https://www.newyorker.com/magazine/2021/11/22/a-voice-for-the-yorkies-and-doodles-when-mom-and-dad-split-up [Nov. 22, 2021]).

For years, courts have grappled with the proper standard to apply in pet custody matters (see e.g. Raymond v Lachmann, 264 AD2d 340 [1st Dept 1999] [courts have a "limited ability" to satisfactorily resolve pet custody disputes]; Travis v Murray, 42 Misc 3d 447, 449 [Sup Ct, [*4]NY County 2013] ["courts are left with little direction with respect to questions surrounding dog custody"). Because dogs were treated as chattel, "it [was] the property rights of the litigants, rather than their respective abilities to care for the dog or their emotional ties to it, that [were] ultimately determinative" (Travis, 42 Misc 3d at 453). However, in Raymond v Lachmann, supra, the First Department, "[c]ognizant of the cherished status accorded to pets in our society [and] the strong emotions gendered by disputes of this nature," applied an in the "best for all concerned" standard in awarding custody of the family pet, a nearly 10-year-old cat named Lovey (id. at 341). In determining that Lovey should "remain where he has lived, prospered, loved and been loved for the past four years," the court considered factors such as Lovey's age, life expectancy and his physical and emotional well-being (id. at 341).

Almost 15 years later, in Travis v Murray, supra, a matrimonial trial court considered whether the court should employ a "best interests of the canine" standard in determining custody of a couple's 2½-year-old miniature dachshund named Joey (Travis, 42 Misc 3d at 456). Recognizing the treasured and valued "place [that pets] have in our hearts, minds and imaginations," the court found that "a strict property analysis [in determining a pet dispute] is neither desirable nor appropriate" (Travis, 42 Misc 3d at 451-456). After a thorough analysis of pet ownership and possession cases from across the country, the trial court ultimately directed a hearing to resolve the dispute with the applicable standard being the "best for all concerned" standard promulgated in Raymond v Lachmann, supra. The court further stated,

In accordance with that standard, each side will have the opportunity to prove not only why she will benefit from having Joey in her life but why Joey has a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other. To this end, the parties may need to address questions like: Who bore the major responsibility for meeting Joey's needs (i.e., feeding, walking, grooming and taking him to the veterinarian) when the parties lived together? Who spent more time with Joey on a regular basis? Why did plaintiff leave Joey with defendant, as defendant alleges, at the time the couple separated? And perhaps more importantly, why has defendant chosen to have Joey live with her mother in Maine, rather than with her, or with plaintiff for that matter in New York?

(Travis, 42 Misc 3d at 460). Notwithstanding its adoption of the "best for all concerned" standard, it is clear from the court's questions that that which was in the "best interest of the pet" was also considered (cf. Eschbach v Eschbach, 56 NY2d 167, 171 [1982] ["Any court in considering questions of child custody must make every effort to determine 'what is for the best interest of the child, and what will best promote its welfare and happiness' "]; Yu Chao Tan v Hong Shan Kuang, 136 AD3d 933, 934 [2d Dept 2016] [The determination of custody can only be resolved after a full hearing and careful analysis of the factors that would further the child's best interest including "the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent"]).

In another pet dispute case, this time involving neighbors and not domestic partners, the trial court utilized the "best for all concerned" standard in awarding the defendant possession of Sylvester/Marshmallow, a four-year-old cat that had wandered away from the defendant's home and was cared for by the plaintiff for a period of several months (Finn v Anderson, 64 Misc 3d [*5]273, 278 [City Ct, Chautauqua County 2019]). In its decision, the court, while "not persuaded that a court could not evaluate the 'best interests' of a pet," nevertheless opined that a strict best interests standard was not appropriate in pet dispute cases because unlike a child, which the court has a responsibility "to ensure is nurtured into independent adulthood," "a pet never becomes an independent being apart from the owner" (id. at 277 [emphasis added]). While a pet may never become an independent being apart from its owner, it appears that a trial court can, and in fact now must, evaluate the "best interests of a pet."

Effective October 25, 2021, New York matrimonial courts no longer have to grapple with how to decide pet custody cases. The issue of the applicable standard to apply in pet custody cases has finally been put to rest with the enactment of law which requires courts to consider "the best interest" of a companion animal when awarding possession in a divorce or separation proceeding (DRL § 236 [B] [5] [d] [15]). In its justification for the bill, the NY legislature reasoned, "For many families, pets are the equivalent of children and must be granted more consideration by courts to ensure that they will be properly cared for after a divorce" (NY Committee Report, 2021 NY Senate Bill No. 4248 [Feb. 6, 2021]).

In determining the best interests of a companion animal under DRL section 236 [B] [5] [d] [15], the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal. Salient factors for a court to consider include: the involvement, or absence, of each party in the companion animal's day-to-day life; the availability and willingness of each party to care for the companion animal; each party's involvement in health and veterinary care decisions; the quality of each party's respective home environment; the care and affection shown towards the companion animal; and each party's fitness and caretaking abilities. No single factor is dispositive.

Accordingly, in determining equitable distribution of the parties' companion animals, the court will be guided by what is in Kane and Cleo's best interest. In weighing the factors relevant to Kane and Cleo's best interest, the court must also evaluate the testimony, character, and sincerity of all the parties involved (see generally Eschbach, 56 NY2d at 173).

The story told at trial regarding how the parties located and welcomed Kane and Cleo into their family reflected, to this court, the level of each party's love and affection for the dogs at the outset. According to Plaintiff, he found the dogs online and the parties then drove to Pennsylvania together to pick them up (tr at 44). When asked on cross-examination how Kane and Cleo were specifically chosen, Plaintiff explained, "We were both there and whoever jumped towards us, right, are the dogs that we got on that day. But I paid for them" (tr at 44). On the other hand, Defendant shared a more vivid, reflective story of how Kane and Cleo came into their lives. She stated,

"We went together to get Kane and Cleo and we had €" we went to get Kane, let me correct you. We went to get Kane and Cleo suckered her €" she's all love, she is a big Rottweiler but she wants love and she came into my arms and that was it. So we didn't go to get Cleo, Cleo picked us, that's how she came. We went to get one Rottweiler and came back with two"
(tr at 55-56). Defendant acknowledged that Plaintiff paid for the dogs, but submitted that he got them for her because "it was hard for [her] to be alone" after the loss of their previous pet, a dog named Jake (tr at 55).

It is undisputed that during the course of the marriage, the parties shared in the caretaking duties of Kane and Cleo (tr at 36, 57). Plaintiff testified that he trained them and that he was [*6]responsible for walking and feeding them until the parties "started to fall out" (tr at 44). He nonetheless reminded this court that he "can't walk them and feed them if [the parties] are having problems in the house and [he is] not there" (id.). Notwithstanding his contention that he cannot walk and feed the dogs because he is no longer in the home, Plaintiff later claimed that since the breakdown of the parties' marriage, he "walk[s] them; feed[s] them; [has] taken them to the vet makes[s] sure that they are covered in terms of the house insurance;" and up until last year, paid for their vet bills (tr at 46).

Defendant admitted that Plaintiff helped raise and train Kane and Cleo, but asserted that she has always been the dogs' primary caretaker (tr at 56). She stated that other than the liability insurance which Plaintiff covers, she is the "sole provider" of "their daily needs, everything, their health, their food, everything" and that since last year, she has been paying for their health insurance (tr at 57).

White it is undisputed that the parties shared in the caretaking duties during the marriage, Defendant has borne almost sole responsibility for Kane's and Cleo's day-to-day care. Plaintiff is out of the house which rendered Defendant the de facto custodial caretaker during the separation. According to Defendant, Plaintiff stopped the daily care of feeding and walking the dogs "even before" he left the marital residence, and since he left in March or April of 2021 has only walked them "about three times" (tr at 56). On cross-examination, when pressed as to how Defendant could know whether Plaintiff walked the dogs when she was not home, Defendant answered, "I know how many times they poop in the morning, how many times they poop in the afternoon. I know their bowel movements. I know them and how they — I know everything about them. So if he would have walked them while I wasn't there, if he would have moved the leash while I wasn't there, I would know" (tr at 64-65).

Both parties also testified in some respect regarding maintaining the health of the dogs. Plaintiff stated that he makes sure the dogs are covered under the home insurance and has taken them to the vet. Defendant also acknowledged that a month or two before the trial, Plaintiff helped her by taking Kane to the doctor because "we have problems with shots because [Kane] is afraid of needles" (tr at 56-57). The court notes that Plaintiff's statement of net worth, sworn to on April 21, 2022, does not reflect any veterinarian/pet expenses, whereas Defendant's statement of net worth, sworn to on October 20, 2021, reflects veterinarian/pet expenses in the amount of $4,000 (Plaintiff's Exhibit 1; Defendant's Exhibit A).

With respect to his relationship with the dogs, Plaintiff, after acknowledging that he is unable to tend to the dogs' daily needs because he is not in the home, asserted that "but when I come back there is no question that they gravitate towards me" (tr at 44). When asked what should be done with the dogs, Plaintiff responded, "My intention was to let her take the Rottweilers if we resolve the case. If we don't resolve the case, then we have to talk about what that looks like" (tr at 37). When asked again whether he would be seeking custody of the dogs, Plaintiff again emphasized that if the parties resolved the case, he was "willing to part with them" (id.). When advised, "[y]ou're at trial now," Plaintiff nonchalantly responded, "[w]ell, we can split those two" (id.).

Unlike Plaintiff's response, Defendant's position on what should happen with the dogs was impassioned and heartfelt. She did not refer to the dogs as possessions or chattels, but as her "family" and "emotional support" and asserted that removing them from her would be "devastating" (tr at 57). While recognizing that "they are not sentient beings legally," she stressed that the dogs have feelings and that "their love is unconditional" (tr at 66-67). She [*7]conceded that the dogs love Plaintiff and that "they are having problems with him not being around now, particularly Cleo 'cause she's really attached to him," but that Cleo "is getting used to it, his not being in her life" (tr at 66, 70). She emphasized that dogs need consistency, "like kids" (tr at 66-67).

Here, after weighing the factors that would further Kane and Cleo's best interest, including factors such as which party is primarily responsible for their day-to-day needs and for maintaining their health and veterinary care; which party, if any, spends more time with the dogs on a regular basis; and the quality of the home environment as one in which the dogs would "live, prosper, love and be loved," as well as evaluating the testimony, character and sincerity of the parties, the court finds that it is in Kane and Cleo's best interest to remain together in Defendant's sole care. Accordingly, care and custody of the parties' Rottweilers, Kane and Cleo, is awarded to Defendant."

BAD ROLE MODEL IS NOT ABUSE AND NEGLECT

If this was a dispute in a parent custody battle, Mr. V's behavior could lead a court to say that the other parent should have primary or even sole custody and Mr. V can have parenting time (and it could also be supervised visitation). But in a neglect case, the problem a court faces is that if there is no other responsible family to take care of the child, the child goes into the foster care system.

MATTER OF ARMANI, 2022 NY Slip Op 50898 - Kings Co. Family Court 2022:

"By petition dated April 15, 2021, ACS alleges that Peter V. is a person legally responsible for his nephew Armani and that he neglected him by 1) providing inadequate supervision and guardianship due to bizarre behaviors; and 2) neglecting his education. On or about January 22, 2022, petitioner notified respondent and the AFC that it would seek to conform the pleadings to the proof, pursuant to FCA 1051(b), essentially adding a claim of excessive corporal punishment.

Fact-finding on this petition took place on January 11, May 17, May 27, June 22, August 3, and August 30, 2022. The record consisted of Petitioner's Exhibits 1-3 and 5A and 5B; the testimony of Isabelle F., Stacy Levine, and Yola Slowe-Richards; and the testimony of Peter V. The AFC opposes a finding.

Based on the testimony of all the witnesses which the Court credits as credible on this point, the Court finds that Mr. V. was a person legally responsible for his nephew Armani at relevant time periods, as he lived together with Armani and Armani's mother (Mr. V.'s sister, Szabina V.) and other relatives as one family unit for many years. When Ms. V. was sent to federal prison, Mr. V. took on primary caretaking for Armani.

As a preliminary matter, regarding Pet Ex's 1-3, the Court listened to them again, and studied the text message portions of Ex.'s 2 and 3 carefully, but could not glean much more in terms of content than seemed apparent when listening on the record initially. The Court does find them admissible under People v. Goldman, 35 NY3d 582 (2020). They are offered to show the respondent behaving in a particular way, not the truth of anything that anyone said; there is thus no need to authenticate that the recordings are complete and unaltered, which the witness who laid the foundation could not do. All she did, and all she needed to do, was identify the respondent's voice, and he himself conceded it is his. Of course, without more, it is unknown when exactly the recordings were made and under what circumstances, or even who the intended recipient was. And all of that thus goes to weight, not admissibility.

Here, based on the totality of the record, the Court finds that Mr. V. did not neglect Armani under any of the three theories alleged by ACS.

First, regarding excessive corporal punishment, the only evidence offered was the testimony of Ms. F. during her direct examination. However, Ms. F. recanted that story during her cross-examination and re-direct examination. Clearly, the relationship between Ms. F. and Mr. V. is complicated and the Court cannot surmise what might have led to her change in story. However, there is simply insufficient evidence to establish that Mr. V. inflicted excessive corporal punishment on Armani. Most of Ms. F. testimony consisted of Armani's out-of-court statements. Her own initial claim of having suffered corporal punishment from Mr. V. years earlier when she was a minor living with him — later recanted — is not enough to corroborate those statements.

Second, regarding education neglect, the Court fully credits Ms. Levine's testimony. The Court notes that for many students in New York City and throughout the United States, the 2020-21 school year was a struggle due to COVID and the remote education plans at most schools. Armani was not alone in being challenged by the social conditions around remote schooling. Unquestionably, Mr. V. could have done more to ensure that he was connected to the internet and to his remote classroom, by taking advantage of the mobile hotspots being offered by the school free of charge. However, as Ms. Levine testified, Mr. V. was within his rights to opt Armani out of his special education services due to their virtual nature, and the school also had challenges with keeping accurate attendance records during the remote schooling period. Moreover, Armani ultimately attended school in person starting in May 2021, whereupon he passed all his classes except for art. There is no evidence in the record that the school encouraged Mr. V. to switch Armani to in-person learning prior to that time. The Court finds that part of the school district's obligations to ameliorate education neglect, as defined by Family Court Act section 1012(f)(1)(A), is to encourage a family struggling with remote schooling to switch to in-person. In any event, ACS stepped in and encouraged the switch, so with or without the child's removal in this case, it does appear that he would have ultimately attended school in person, where he succeeded. Thus, ACS has failed to establish the impairment prong of the neglect statute.

Finally, regarding bizarre behavior by Mr. V., alleged by ACS to have put Armani at risk, the Court finds the evidence insufficient to establish neglect under the law, despite fully crediting Ms. Slowe-Richards's testimony and despite rejecting respondent's non-credible assertion that his identity was stolen and the voice recordings were deep fakes. His threats towards his nieces and nephew Louie were distasteful, but they were so outlandish as to be not credible. They appear to be perfectly within the protected zone of the First Amendment, as they were not backed up by any particular actions on Mr. V.'s part. See, e.g., U.S. v. Valle, 807 F.3d 508, 520-22 (2d Cir. 2015) (finding no criminal intent where alleged plot was "fantastical"). Clearly, Mr. V. was also very angry at ACS. There were multiple investigations of him and his home, including at least one that should have been screened out by the State Central Registry and not assigned for investigation (alleging that the home was "freezing cold" in the middle of April).

Mr. V. used derogatory language towards ACS workers, in front of Armani, who mimicked his uncle's belligerent style of communication and styled himself a gangster-in-training. The Court rejects Mr. V.'s claim that he does not use derogatory language in front of Armani as being not credible. Cultivating a minimum degree of respect for authority is a basic parenting duty. However, teaching children to stand up for their rights and to protest government action they disagree with is not unreasonable. There is a large range of acceptable parenting when it comes to the development of the child's civic responsibilities. Critically, as Ms. Slow-Richards testified, though Mr. V. was very angry when Armani was removed with police assistance in April 2021, Armani himself agreed to walk out without much of a fuss. Had he done more than use inappropriate language, the outcome here might have been different, but these were not the Branch Davidians, and this is not a family where the child was being taught to respond violently to law enforcement or otherwise take basic First Amendment rights to an unreasonable, unlawful extreme. That most people might find Mr. V.'s behavior to be offensive and wrong does not mean he neglected Armani.

No evidence was offered that Mr. V. has a documented history of mental illness or psychiatric problems. The Court notes that the initial allegations in the petition included an assertion that Mr. V. was abusing prescribed oxycodone. No evidence was presented in support of this claim either. It may be that much of his bizarre behavior could have been attributable to substance misuse, but the record does not establish this fact.

The Court further notes that the allegations contained in an unsworn ACS report dated June 28, 2021, were never made part of this fact-finding record. They are deeply troubling, but the Court assumes that ACS more fully vetted them subsequent to the report's submission and determined them to be unfounded.

Finally, the Court notes that ACS never alleged that Mr. V. neglected Armani by allowing Ramona V. to live in the family home at a time that she was prohibited by court order from being there.

Petition dismissed with prejudice; all prior orders vacated.

Enforcement of this order is hereby stayed until 3pm on Friday, September 2, 2022."

AN ERPO RED FLAG CASE - PROCEDURE AND SUBSTANCE

Duguid v. KATHAN, 2022 NY Slip Op 32972 - NY: Supreme Court, Saratoga 2022:

"Petitioner, a New York State Police Investigator ("State Investigator"), commenced this proceeding pursuant to CPLR Article 63-A, seeking an extreme risk protection order ("ERPO") against Respondent, Brandon W. Kathan ("Respondent"). The petition seeks to prohibit Respondent from purchasing or possessing a gun for a period of up to one year.

According to the petition and supporting papers, on July 14, 2022, the victim (Nicole) informed Respondent (then 21 years old) that her sister (Tristan) was no longer paying for the insurance on a pickup truck that he drove. In response, Respondent became enraged. He threatened to have his girlfriend and her family beat her up. He then obtained a metal baseball bat from the pickup truck and swung it at her while stating that he was going to "smash [her] head in." During the encounter, Respondent hit the deck railing with the bat, damaging it, and later punched the tailgate of the pickup truck with his fist. Respondent was reportedly "out of control" and caused the victim to be "in fear of [her] life and safety."

After the encounter, Respondent continued to harass the victim. He called 911 and reported that the victim had fired multiple rounds from a rifle at him. Respondent, however, later admitted to the police that he made up the part about the victim shooting at him. He stated that no guns were involved in the incident. He made statements that he was not in a good state of mind and needed mental help. He allegedly told the police officers, "I'm not ok, I'm not ok. I don't really know why I am acting the way I am. I never do this. I'm not myself."

Respondent was arrested in connection with the incident for Menacing in the 2nd Degree, Criminal Possession of a Weapon in the 4th Degree, and Falsely Reporting an Incident in the 3rd Degree. While in custody, he appeared to be distraught with multiple threats of self-harm and requested to speak with a mental health professional. He was later transported to Saratoga Hospital for a mental health evaluation.

Based on the petition and supporting papers, the Court determined that probable cause existed to grant temporary relief. As a result, on July 15, 2022, the Court issued a temporary extreme risk protection order ("TERPO") and scheduled a hearing for July 22, 2022 (see CPLR 6342; 6343). On July 16, 2022, Respondent was notified of the hearing date/time and acknowledged service.

Prior to the hearing, Petitioner conducted a background investigation into Respondent and reported the results to the Court to consider on the application, as required by the applicable statute (see CPLR 6342[9]). The background investigation revealed that Respondent had been previously arrested for Criminal Mischief in the 4th Degree on May 30, 2022 and April 15, 2021. In one instance, his aunt (Charlene) allegedly observed him throw an object at her pickup truck, damaging the front fender. When confronted, he allegedly stated to her, "how do you like that bitch." In the other instance, Respondent was allegedly caught on camera and later admitted to picking up the neighbors' chairs and planter and throwing them at 12:30 a.m. in the morning, damaging these items.

Respondent is also the subject of two orders of protection. The first is out of Hadley Town Court expiring on January 6, 2023, and the second is out of Lake Luzerne Town Court expiring May 11, 2023. He is also a listed subject on 12 separate Domestic Incident Reports from March 23, 2012 to the present.

Most of the prior reported incidents involved verbal and physical arguments with close family members. In March 2012, Respondent was reportedly "out of control," acting verbally abusive and throwing things around the house. The following year, Respondent threw a screwdriver in the general direction of his sibling. More recently, in June 2017, after his mother told him she could not drive him to the DMV that day, Respondent exhibited uncontrollable anger and punched an outdoor grill numerous times causing his hand to bleed, and then he threatened to kill everyone with a knife when they fell asleep. When a household member attempted to calm him down, Respondent slapped him in his face.

Between 2019 and 2021, Respondent's uncontrolled behavior resulted in a damaged windshield in one instance and verbal arguments easily escalating into physical violence in other instances. Further, in April 2021, Respondent reportedly told his girlfriend that if he had a firearm, he would kill himself.

In advance of the hearing, Petitioner advised the Court that the New York State Attorney General would not be representing him in this matter. By letter dated July 21, 2022, the Court informed Petitioner that if he did not have counsel, the hearing would be conducted within the parameters permitted by law. Specifically, the Court informed Petitioner that it would not allow an unrepresented investigator to present witnesses or cross examine any witnesses produced by Respondent. Subpoenaed witnesses (specifically, the victim(s) and witness(es) with personal knowledge of the underlying event) would be permitted to take the stand to tell the Court about their recollection of events in the form of a narrative. The Court advised Petitioner that it would nevertheless hear the petition and consider the papers submitted, together with any additional information gleaned from any narrative testimony from the subpoenaed witnesses.

At the hearing, Petitioner was not represented by counsel. Respondent and the two subpoenaed witnesses (the victim and her sister) did not appear. The Court then proceeded with the hearing and considered only the petition, the materials submitted in support of the petition, and the background investigation report (see CPLR 6343[2]). In accordance with the prior letter ruling, Petitioner was prohibited from calling witnesses, introducing exhibits into evidence, and making legal arguments.

At the conclusion of the hearing, the Court reserved decision on whether the proof was sufficient to grant the petition.

The Absence of Counsel

Prior to addressing the merits, the Court will first discuss the reasons underlying its prior rulings related to the absence of counsel. As in many other cases, the police officer was statutorily required to file an ERPO petition (see CPLR 6341). However, the State (as his employer) did not provide him with legal representation. This raises the issue of whether a non-attorney police officer may appear on behalf of the State in a court of record in the absence of a counsel and, if so, the extent to which the petitioner may pursue the State's cause without counsel.

Generally, a petitioner may plead and prosecute his or her own cause personally or through counsel (see CPLR 105[c]; 321[a]; Herczl v Feinsilver, 153 AD3d 1336, 1337 [2d Dept 2017]; Matter of Mulligan v Mulligan, 175 AD2d 335, 336 [3d Dept 1991]). This right is expressly articulated in CPLR 321(a), which governs civil proceedings before this Court.

CPLR 321(a), however, is limited to a situation in which a party is prosecuting or defending his or her own individual interests/rights (see e.g. Alaina Simone Inc. v Madden, 200 AD3d 589, 590-591 [1st Dept 2021]). It does not authorize or address the situation of a State employee who has commenced a lawsuit in his representative or official capacity (see id).

Further, where a person has sought to appear or prosecute a cause for another person or entity, the courts have generally not allowed the case to proceed in the absence of counsel (see Alaina Simone Inc., 200 AD3d at 590-591 ["estate representatives cannot act pro se because their own individual liberty or property interests are not involved"]; Gershon v Cunningham, 135 AD3d 816, 817 [2d Dept 2016] [defendant could not file a notice of appeal on behalf of another defendant]; Blunt v Northern Oneida County Landfill [NOCO], 145 AD2d 913, 914 [4th Dept 1988] [husband could not appear on behalf of his wife]; Matter of Trentin v Civetta Contr., 10 AD2d 595, 595 [3d Dept 1960] [Workmen's compensation representative who was not a lawyer could not appear for a party in the Appellate Division]; Park v Song, 61 Misc 3d 1047, 1049 [Sup Ct, New York County 2018] [derivative plaintiff asserting the rights of the corporation/LLC had to be represented by counsel]). "These limits on pro se representation serve the interests of the represented party as well as the interests of adversaries and the court" (Pridgen v Andresen, 113 F3d 391, 393 [2d Cir 1997]).

In fact, the Judiciary Law makes it unlawful for a person who is not a licensed attorney "to practice or appear as an attorney-at-law ... for a person other than himself or herself in a court of record in this state" (Judiciary Law § 478 [emphasis added]; see also Judiciary Law § 484 [prohibiting any natural person who is not a licensed attorney from asking or receiving, "directly or indirectly, compensation for appearing for a person other than himself as attorney in any court" (emphasis added)]). "[T]his prohibition is intended to protect citizens `against the dangers of legal representation and advice given by persons not trained, examined and licensed for such work'" (Jemzura v McCue, 45 AD2d 797, 797 [3d Dept 1974] [citation omitted]).

There are certain exceptions to these rules. For example, in People v Black (156 Misc 516 [County Court, Otsego County 1935]), the defendant was convicted of a violation of the game laws, a misdemeanor. On appeal, the defendant contended that the case was improperly prosecuted by an inspector of the Conservation Department, a person not licensed to practice law. In affirming the judgment, the court rejected the defendant's contention, explaining:

"We do not believe that the Legislature of this State sought to bring about so absurd a situation as is here presented. If it were intended that every time a rabbit be snared or a frog speared after dark that the heavy artillery of the offices of the Attorney-General or the district attorney be wheeled into action, then the said Legislature was flying in the face of common sense and upsetting a century-old institution."

Similarly, the Court of Appeals, as well as the courts of other states, have held that a police officer may prosecute minor offenses (see People v Soddano, 86 NY2d 727, 728 [1995]; People v Van Sickle, 13 NY2d 61, 62-66 [1963]; People v Czajka, 11 NY2d 253, 254 [1962]; State v Sossamon, 298 SC 72, 378 SE2d 259 [South Carolina 1989]; State v La Palme, 104 NH 97, 179 A2d 284 [New Hampshire 1962]).

The reasoning expressed (if anything) for allowing a non-attorney to prosecute or present a case is often necessity, statutory authority, the simplicity and informal nature of the proceedings, and/or the long history of such practice (see People v Black, 156 Misc at 516; see also State v Barlow, 372 SC 534, 643 SE2d 682 [South Carolina 2007]; Leverette v State, 248 Ga App 304, 546 SE2d 63 [Georgia Ct App 2001]; Noethtich v State, 676 NE2d 1078 [Indiana Ct App 1997]).

Notwithstanding, such matters have still been the subject of some debate. In State ex rel. McLeod v Seaborn (270 SC 696, 244 SE2d 317 [South Carolina 1978]), for example, the dissenting opinion discusses the dangers of such a practice given the complexity of the law and the various ethical issues that arise from allowing police officers to act as prosecutors.

In addition to the exceptions decided under the case law, there are also additional exceptions expressly set forth in varying statutes (see Judiciary Law § 478; N-PCL § 1403[b][2] [providing statutory authority for a not-for-profit corporation for the prevention of cruelty to animals to represent itself in certain cases]; Workers' Compensation Law § 24-a [requiring non-attorney representative to be licensed by the Workers' Compensation Board]; Labor Law § 538 [requiring authorized agents to be registered in order to represent individuals in proceedings before the appeal board]; State Administrative Procedure Act § 501 ["Nothing herein shall be construed either to grant or to deny to any person who is not a lawyer the right to appear for or represent others before any agency."]; see also Matter of Board of Educ. of Union-Endicott Cent. School Dist. v New York State Pub. Empl. Relations Bd., 233 AD2d 602 [3d Dept 1996] [holding that the representation of an association by a non-attorney during an administrative hearing did not violate Judiciary Law § 478, which applies only to courts of record]).

In determining whether statutory authority exists for an exception, the decision in Matter of Sharon B (72 NY2d 394, 396-401 [1988]) is most informative. There, the Court of Appeals held that a not-for-profit corporation for the prevention of cruelty to children could file a complaint and represent itself during the proceedings, without having to retain counsel. The applicable statutes at the time provided that these societies could "prefer a complaint" before the court and "may aid in presenting the law and facts to such court[.]" The Court noted that "prefer" is commonly defined to include not only instituting a case but also prosecuting, trying and proceeding with such. In addition, the Court relied on the plain language of Judiciary Law §§ 478 & 484, which at the time exempted from its general prohibition certain cases brought by "officers of societies for the prevention of cruelty" (Matter of Sharon B., 72 NY2d at 399).^[1]

Considering the circumstances of this case, the Court finds that CPLR 321(a) does not authorize the Petitioner to proceed with prosecuting this matter as if he were a party acting on his own behalf. The Petitioner is not actually representing himself in his individual capacity. Rather, he is suing in his official capacity and representing the larger interests of the State to promote the health, safety, and welfare of the public.

As discussed above, the Petitioner's right to file this petition derived solely from his status as a police officer and his duty to file a petition as a police officer (see CPLR 6341). Petitioner, moreover, has also received compensation from his employer for engaging in this litigation. He is not acting out of his own sense of personal responsibility. The State could have also certainly tendered counsel for his representation, however, it simply chose not to do so in this case (see Executive Law § 63[1]).^[2]

Notwithstanding, the Petitioner most certainly had the capacity and standing to commence this proceeding. The CPLR denominates a police officer as a proper party to the case (see CPLR 6340; 6341). In fact, police officers are not only authorized to file such petitions, but they are in fact required to do so when probable cause exists to support such applications (see CPLR 6341). The CPLR further requires the courts to adopt forms that may be used by police officers for these applications, and the standard forms have a line expressly for a petitioner to sign rather than his or her counsel, if any (see id.).

The superintendent of state police is also required to provide all members of the New York State Police with written policies and procedure and educational materials regarding the availability of and procedure for filing ERPOs, including the requirements for police officers to do so when probable cause exists (see Executive Law § 214-h). The CPLR also permits the Court to grant a temporary order based solely on the initial petition and other supporting materials submitted with it, without a hearing (CPLR 6342). The CPLR further permits the Court to grant a final order based on the petition, the supporting papers, and the background investigation report, even when no other evidence is presented at the hearing (CPLR 6343).

When considering these circumstances, along with the urgency of these petitions and the short time periods involved in such cases, the Court concludes that the Legislature has in fact authorized the Petitioner to file his petition without counsel and that the Court may reach the merits of the petition even in the absence of a prosecutor/counsel in the case (compare Salt Aire Trading LLC v Sidley Austin Brown & Wood, LLP, 93 AD3d 452 [1st Dept 2012]).

Moreover, given the circumstances, the Court does not find that the police officer engaged in the practice of law by completing the official forms and filing them with the Court. Nor was it the practice of law when the police officer provided his investigation materials to the Court to consider in connection with the petition, as they are materials which are normally prepared by police officers in the performance of their duties.

Glaringly absent, however, is any statutory language authorizing the non-attorney police officer to act as the prosecutor in the case or otherwise serve as the State's legal representative (compare Matter of Sharon B., 72 NY2d at 396-401; Matter of Darlene C., 247 Conn 1, 717 A2d 1242 [Connecticut 1998]). The Court finds that this deficiency is critical. Indeed, if the Legislature had intended to allow a police officer to fully prosecute a red flag case and act in the same manner as an attorney during the evidentiary hearing, the Legislature should have specifically stated that to be the case.

The statutes at issue for example do not use the much broader language in Matter of Sharon B. Rather, the statutes at issue use the word "file" rather than "procure" and omit any reference to "aid[ing] in presenting the law and facts to [the] court[.]" In addition, the Judiciary Law also does not carve out an exception for a non-attorney police officer to prosecute a civil case. Nor is there any long-standing body of case law allowing a police officer to engage in such conduct.

Further, the benefit and need for a prosecutor should not be lightly set aside. Unlike a case involving a traffic ticket or petty crime in local criminal court, a red flag case involves a civil proceeding in the highest trial-level court for civil cases in this State's court system. There are also significant liberty interests at stake, namely, a respondent's fundamental constitutional right to keep and bear arms (see US Const, 2nd Amend). A respondent is entitled to a full evidentiary hearing and the right to cross examine witnesses (see CPLR 6343). The proceedings may require motion practice, in person testimony, cross examination, and the presentation of legal arguments. A petitioner is also required to prove his or her case by clear and convincing evidence to obtain the relief requested (see CPLR 6343[2]).

A non-attorney police officer (even if highly competent such as the Petitioner in this case) is not trained to handle such legal matters, just as an attorney is not trained to make arrests and conduct police investigations. When such legal matters arise, this Court must therefore limit a police officer's participation in the case to avoid a violation of Judiciary Law §§ 478 & 484. This of course places a petitioner at a significant disadvantage, especially in a case where the respondent retains counsel or elects to testify on his or her own behalf. Notwithstanding, even in the absence of counsel, the Court will still entertain the petition and decide the case on its merits.

Merit Analysis

Notwithstanding the lack of any witnesses called to testify, as indicated above, the statute permits the Court to base its decision on the contents of the petition, supporting papers, and background investigation report (see CPLR 6343[2]). The Court must therefore consider whether these materials are sufficient to grant the petition.

To obtain a final ERPO for a period of up to one year, the petitioner must establish that the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others (see CPLR 6343[2]).^[3] There must be either, "1. substantial risk of physical harm to himself [or herself] as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he [or she] is dangerous to himself [or herself], or 2. a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm" (Mental Hygiene Law § 9.39 [a]; see CPLR 6343[2]).

In deciding the issue, the Court must consider various factors or so-called red flags, taking into consideration the date when the event(s) occurred and the age of the person at the time (see CPLR 6342[2]; 6343[2]). Such red flags include, but are not limited to, the following acts of the respondent:

"(a) a threat or act of violence or use of physical force directed toward self, the petitioner, or another person;

(b) a violation or alleged violation of an order of protection;

(c) any pending charge or conviction for an offense involving the use of a weapon;

(d) the reckless use, display or brandishing of a firearm, rifle or shotgun;

(e) any history of a violation of an extreme risk protection order;

(f) evidence of recent or ongoing abuse of controlled substances or alcohol; or

(g) evidence of recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor" (CPLR 6342[2]).

Unlike a temporary order (TERPO), a petitioner seeking a final order (ERPO) has the burden of proving his or her case by clear and convincing evidence (see CPLR 6343[2]). This is a higher and more demanding standard than the preponderance of the evidence standard (see Matter of Duane II. [Andrew II.], 151 AD3d 1129, 1130-1131 [3d Dept 2017]).

To satisfy this standard, the evidence must make it "highly probable that what [he or she] claims is what actually happened" (PJI 1:64; see Matter of Duane II. [Andrew II.], 151 AD3d at 1130-1131; Prince, Richardson on Evidence § 3-205 [11th ed]). This requires "evidence that is neither equivocal nor open to opposing presumptions, and it forbids relief whenever the evidence is loose, equivocal, or contradictory" (Matter of Monto v Zeigler, 183 AD3d 1294, 1295 [4th Dept 2020] [internal quotation marks and citations omitted]; see Matter of Duane II. [Andrew II.], 151 AD3d at 1130-1131).

Here, the proof was clear that Respondent is and has been for quite some time violent and mentally unstable. Last month, in a fit of rage, he acted irrational and displayed uncontrollable anger when he threatened to bash his family member's head in with a baseball bat. He aggressively advanced towards the victim with the metal bat, swung it at her, and hit the deck railing with it. In the victim's words, Respondent was "out of control" and caused her to be "in fear of [her] life and safety."

Afterwards, Respondent further confirmed his own mental instability by acknowledging that he was not in a good state of mind and needed mental help. He made multiple threats of self-harm and told the police officers, "I'm not ok, I'm not ok. I don't really know why I am acting the way I am. I never do this. I'm not myself"

In addition to the incident last month, Respondent currently has two current orders of protection against him, with pending charges for other recent crimes resulting from the intentional destruction of personal property. He has used abusive and threatening language toward his victims, calling his aunt in one instance a "bitch." He has been involved in multiple instances over the years involving verbal arguments that easily escalated into physical violence. He has thrown items at people, hit them, threatened them, punched objects, and destroyed property. In one instance, he went so far as to threaten to kill everyone with a knife when they fell asleep. As recently as April 2021, he also commented that if he had a firearm, he would kill himself

Now, just last month, the Court is presented with a situation in which Respondent has once again displayed uncontrollable anger and unprovoked violent behavior, threatening to murder the victim. Again, just last month, he has expressed threats of self-harm and complaints of mental instability.

In response to the evidence against him, Respondent has failed to dispute the circumstances surrounding the current incident or any of the prior instances. Nor does he dispute that he has two pending orders of protection against him and pending criminal charges against him involving violence. As such, the allegations are unrefuted.

Based on the record, the Court finds that the evidence in this case was strong enough to satisfy the high standard of proof required. The petition is therefore granted. Nevertheless, the Court cautions that this may not have been the final decision in this case had Respondent appeared, retained counsel, testified, presented evidence, or otherwise defended against the allegations made against him.

[1] Notably, the Legislature later amended these statutes (see L 1993, ch 201). The exception for "societies for the prevention of cruelty" in Judiciary Law §§ 478 & 484 is now limited to "societies for the prevention of cruelty to animals" (emphasis added). In addition, N-PCL § 1403(b)(2), in its current form, provides that "[a] corporation formed for the purpose of preventing cruelty to children, when represented by an attorney duly admitted to the practice of law, may prosecute a complaint before any court ..., and may aid in presenting the law and facts to such court ..." (emphasis added).

[2] The Attorney General's Office has represented police officers (employees of the New York State Police) during red flag hearings conducted before this Court in two other cases. In contrast, counties and cities are responsible for providing representation for their police officers (see e.g. County Law § 501 ["The county attorney shall be the legal advisor to ... every officer whose compensation is paid from county funds in all matters involving an official act of a civil nature. The county attorney shall prosecute and defend all civil actions and proceedings brought by or against the county, the board of supervisors and any officer whose compensation is paid from county funds for any official act...."]).

[3] This one-year period may be extended for an additional period upon application (see CPLR 6345)."

FOR NASSAU COUNTY RESIDENTS

 

FOR VETERANS IN LONG ISLAND

 

MORTGAGE FORECLOSURE - RPAPL 1304 AND ERAP

BCMB1 TRUST v. Rubio, 2022 NY Slip Op 50760 - NY: Supreme Court Suff. Co. 2022:

"This foreclosure action involves a note in the sum of $45,000.00 delivered to Concord Mortgage Corp, the plaintiff's predecessor-in-interest, on January 31, 2007 by defendants, Maria M. Rubio and Pascual N. Rubio. As security for the repayment of the note, defendants executed and delivered a mortgage secured by the real property located at 7 Norma Place, Amityville. Several assignments of mortgage was subsequently recorded. The defendants defaulted on the terms of the Note and Mortgage by failing to make the mortgage payment that was due November 1, 2010 and each subsequent payment. The plaintiff commenced this foreclosure action on July 31, 2021 and the defendants timely answered. Presently, the plaintiff has moved for summary judgment on the complaint claiming that it has established the elements of the default and all condition precedent. Defendants has cross moved for summary judgement claiming that the plaintiff failed to comply with RPAPL §§1303 and 1304.

The defendants argue that the notice violated the rule of Wells Fargo Bank, N.A. v. Yapkowitz, 199 AD3d 126 [2nd Dept. 2021]). Furthermore, the defendants argue that the inclusion of the Hardship Declaration violated the rule that "inclusion of any material in the separate envelope sent to the borrower under RPAPL 1304 that is not expressly delineated in these provisions constitutes a violation of the separate envelope requirement of RPAPL 1304(2)" (Bank of America, N.A. v. Kessler, 202 AD3d 10, 14 [2d Dept 2021], lv. granted ___ AD3d ___ [May 23, 2022]^[1]; see Wells Fargo Bank, N.A. v DeFeo, 200 AD3d 1105 [2d Dept, 2021]; Citimortgage, Inc. v Dente, 200 AD3d 1025 [2d Dept 2021])).

Initially, Yapkowitz holds that the mailing to two defendants must be in two separate envelopes. Here the plaintiff established that the notices were mailed in separate envelopes. The defendant claims that the fact that the notices have both names should be a violation of Yapkowitz. However, a reading of Yapkowitz is limited to the mailing methodology required pursuant to RPAPL §1304. Therefore, the defendants' claim that the plaintiff violated this Second Department precedent must be rejected.

Furthermore, as the plaintiff correctly notes, the Emergency Eviction and Foreclosure Prevention Act of 2020 (L2020 ch 381) requires for the hardship declarations to be included "with every notice provided to a mortgagor pursuant to [RPAPL] 1304[.]" In construing this statute, the Court is mindful of the canon that a "subsequent act in pari materia may be considered as an aid in the construction of an earlier statute or section (Statutes §223; see Deutsche Bank National Trust Company v. Lubonty, ___ AD3d ___, 2022 WL 2443859 [2nd Dept. July 6, 2022]). Furthermore, a statute should be construed according to its plain meaning (Matter of DaimlerChrysler Corp. v. Spitzer, 7 NY3d 653 [2006]). Here, the plain language of the statute required the Hardship Declaration be included with the RPAPL §1304 notice. Moreover, the statute provides that a court shall not accept for filing any action to foreclose a mortgage unless the foreclosing party or an agent of the foreclosing party files an affidavit, indicating that the Hardship Declaration was provided with the 1304 notice.^[2] Therefore, reading the statutes in pari materia and its plain unambiguous language, the inclusion of the Hardship Declaration does not violate the strict requirements of Kessler.

As the Statement of Material Facts has not be rebutted, as plaintiff argues, the facts are deemed admitted (see 22 NYCRR 202.8-g; Part 27 Rules). Therefore, the plaintiff has established prima facie the mortgage, note and default, against the answering defendants ((Deutsche Bank Natl. Trust Co. v. Abdan, 131 AD3d 1001 [2nd Dept. 2015]). Consequently, the motion for summary judgment is granted and the cross motion is denied.

The foregoing constitutes the decision and order of the Court.

[1] Plaintiff's statement that Kessler is misguided does not alter the legal principle of stare decisis, which binds this court unless the New York Court of Appeals holds otherwise.

[2] The legislative intent of the law was "to avoid as many evictions and foreclosures as possible for people experiencing a financial hardship during the COVID-19 pandemic or who cannot move due to an increased risk of severe illness or death from COVID-19."As such, it is necessary to temporarily allow people impacted by COVID-19 to remain in their homes. A limited, temporary stay is necessary to protect the public health, safety and morals of the people the Legislature represents from the dangers of the COVID-19 emergency pandemic"(L 220 ch 381). Getting the Hardship Declaration as quickly to the borrowers would clearly be in harmony with intent. Of course, the 1304 notice is the earliest statutory time to provide the Hardship Declaration."