CHILD SUPPORT - WHEN BOTH PARENTS HAVE EQUAL PARENTING TIME

Smisek v. DeSantis, 209 AD 3d 142 - NY: Appellate Div., 2nd Dept. 2022:

"We conclude, to the contrary, that the court-ordered custody arrangement in this case splits the parents' physical custody of the children in such a manner that "neither can be said to have physical custody of the children for a majority of the time" (Baraby v Baraby, 250 AD2d 201, 204 [1998]). In such circumstances, the parent having the higher income and thus bearing the greater pro rata share of the child support obligation, here, allegedly, the father, is deemed the noncustodial parent for child support purposes (see Matter of Conway v Gartmond, 144 AD3d 795 [2016]; Baraby v Baraby, 250 AD2d 144*144 at 204)."

COLLECTING RENT IN A MULTIPLE DWELLING WITH SERIOUS VIOLATIONS

Here, the violations were not on tenant's apartment yet they were serious violations in the building.

936 TYH RM BRONX LLC v. Brujan, 2022 NY Slip Op 33642 - NY: County Court, Civil Court 2022:

"Respondent's argument is simple. From January 1, 2020 through March 1, 2022, a violation existed for "occupancy contrary to that allowed by" the certificate of occupancy. (see NYSCEF Doc. 13 at p. 10, referencing OATH/ECB Violation #35465505N; see also NYSCEF Doc. 18). According to the respondent, this non-conforming use means petitioner was not in compliance with Multiple Dwelling Law (MDL) § 301. MDL § 301(1) states, in relevant part,

No multiple dwelling shall be occupied in whole or in part until the issuance of a certificate by the department that said dwelling conforms in all respects to the requirements of this chapter, to the building code and rules and to all other applicable law, except that no such certificate shall be required in the case of: (a). Any class B multiple dwelling existing on April, eighteenth, nineteen hundred twenty-nine, for which a certificate occupancy was not required before such date and which no changes or alterations have been made except in compliance with this chapter...

MDL § 302, in turn, states that in a "dwelling or structure... occupied in whole or in part for human habitation in violation of" § 301, "[n]o rent shall be recovered by the owner...for said period, and no action or special proceeding shall be maintained therefor, or for possession of said premises for nonpayment of such rent."

Respondent argues dismissal is required because the rent demand seeks rent petitioner cannot collect in this proceeding.

Petitioner counters that respondent's argument is entirely incorrect because she relies on a misfiled certificate of occupancy to conclude the premises were somehow converted from (2) stories to the current (6) stories. Critically, however, petitioner's opposition concedes the OATH/ECB violation issued on January 3, 2020. (see NYSCEF Doc. 25 at par. 4). Petitioner argues that respondent misinterprets the MDL provisions. Petitioner states the violation is not for respondents' unit, and that the violation [which was in the cellar] did not affect any other legal unit. (id. at par. 6). Indeed, the summons indicates, and the parties agree, that the violation is for an illegal unit in the cellar.^[2]

On a motion to dismiss the complaint pursuant to CPLR § 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. (Leon v Martinez, 84 NY2d 83, 87 [1994]; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704, 864 NYS2d 70 [2nd Dept 2008]). However, where evidentiary material is submitted and considered on a motion to dismiss a pleading pursuant to CPLR § 3211(a)(7), the question becomes whether the proponent of the pleading has a cause of action, not whether the proponent has stated one. (see Guggenheimer v Ginzburg, 43 NY2d 268, 275, 401 NYS2d 182 [1977]). Dismissal is inappropriate unless the movant can show that a purported fact is no fact at all. (see Cajigas v Clean Rite Centers, LLC, 187 AD3d 700, 701, 132 NYS3d 428 [2nd Dept 2020]).

The undisputed OATH/ECB violation requires dismissal of this case.^[3]

When a violation exists for occupancy at odds with the certificate of occupancy, the building, essentially, lacks a certificate of occupancy. (see 12 East 88th LLC v Fox, 72 Misc. 3d 1221(A), *4, 2021 NY Slip Op 50815(U) [Sup Ct, New York County 2021]). No rent may be collected during any period the dwelling's occupancy is at odds with the certificate of occupancy. (see MDL § 302; GVS Properties LLC v Vargas, 172 AD3d 466, 466, 100 NYS3d 230 [1st Dept 2019]; 742 Realty LLC v Zimmer, 46 Misc. 3d 1204(A), *1, 2014 NY Slip Op 51845(U) [Civ Ct, Kings County 2014]).

Petitioner's arguments must fail because rent is barred even if the tenant's unit is not the illegal unit. (see West 47th Holdings LLC v Eliyahu, 64 Misc. 3d 133(A), *1-2, 2019 NY Slip Op 51066(U) [App Term, 1st Dept 2019]; 49 Bleecker, Inc. v Gatien, 157 AD3d 619, 620, 69 NYS3d 863 [1st Dept 2018] ("The owner of a `dwelling or structure ... occupied in whole or in part for human habitation in violation of [§ 301]' may not recover rent for the period during which there is no certificate of occupancy for `such premises'); see also 1165 Fulton Ave. HDFC v Goings, 65 Misc. 3d 1210(A), 2019 NY Slip Op 51567(U) [Civ Ct, Bronx County 2019] (noting the change in how courts in this department apply MDL 302 after the Court of Appeals holding in Chazon LLC v Maugenest (19 NY3d 410, 948 NYS2d 571 [2012]). In Goings, the petitioner argued that the violation for use contrary to the certificate of occupancy involved a room in the basement that had no impact on the tenant's unit. (see 65 Misc. 3d 1210(A), *2). Dismissal was still required. Petitioner here makes the same argument, and the same outcome is required.

The rent demand in this proceeding is clearly defective because it seeks rent petitioner is barred from collecting. A rent demand, of course, must fairly afford the tenant actual notice of the alleged amount due and of the period for which such claim is made. (542 Holding Corp. v Prince Fashions Inc., 46 AD3d 309, 311, 848 NYS2d 37 [1st Dept 2007] citing Schwartz v Weiss—Newell, 87 Misc. 2d 558, 561, 386 NYS2d 191 [Civ Ct, New York County 1976]). A proper rent demand is a prerequisite to maintain a non-payment proceeding. (RPAPL § 711(2); see Vartarian v Brady, 184 Misc. 2d 333, 707 NYS2d 285 [Civ Ct, New York County 1999]; EOM 106-15 217th Corp. v Severine, 62 Misc. 3d 141(A) [App Term, 2nd Dept 2019]).

The rent demand seeks rent portions for twenty (20) different months. Petitioner may only collect rent for one (1) of those months (March 2022). Under these circumstances, the case must be dismissed. (see 3463 Third Avenue Realty LLC v Vasquez, 59 Misc. 3d 1224(A), *2, 2018 NY Slip Op 50674(U) [Civ Ct, Bronx County 2018]; see also CPLR 409(b) (requiring summary determination at any stage of the proceeding when no issues of fact are raised)).

CONCLUSION

Based on the foregoing, it is Ordered, judgment shall enter in respondents' favor dismissing the petition.^[4] This constitutes the Decision and Order of the court. It will be posted on NYSCEF.

SO ORDERED.

[1] On information and belief, the matter was not calendared due to a pending ERAP application.

[2] The summons speaks for itself. (see NYSCEF Doc. 25). It is not disputed. Petitioner acknowledges it had to correct the condition and pay a fine. Petitioner may not relitigate the summons/violation here.

[3] The violation is a "Class 1" violation. Class 1 violations are "immediately hazardous": "those where the violating condition(s) poses a threat that severely affects life, health, safety, property, the public interest, or a significant number of persons so as to warrant immediate corrective action..." (see What is an OATH Summons? — Buildings (nyc.gov) [last accessed on October 23, 2022]).

[4] Petitioner's motion is denied as moot."

RIGHTS OF UNMARRIED PARENTS EXPANDED

Signed into law on December 30, 2022:

"BILL NUMBER: S6389

SPONSOR: BRISPORT
 
TITLE OF BILL:

An act to amend the domestic relations law and the social services law,
in relation to the rights of non-marital parents in adoption, surrender,
and termination of parental rights proceedings in family court and
surrogate's court; and to repeal subdivision 12 of section 384-b of the
social services law relating thereto

 
SUMMARY OF PROVISIONS:

Section one provides full parental rights to fathers of children in
foster care who have been adjudicated or are in the process of being
adjudicated a parent, have executed an unrevoked acknowledgement of
parentage, or have filed an unrevoked notice of intent to claim parent-
age.

Section two rescinds the requirement of notice of adoption proceedings
to fathers of children in foster care who do not have full parental
rights.

Sections three through twelve modify relevant provisions of the Social
Services Law and the Domestic Relations Law to make them consistent with
the modifications made by sections one and two.

Section thirteen would make the bill effective immediately.

 
JUSTIFICATION:

New York State has a clear policy in favor of prioritizing the preserva-
tion and reunification of families. However, current law fails to abide
by this policy, and fails to keep families together, in cases of
"public" adoptions resulting from state intervention. As a result of
certain peculiarities in New York law, unmarried fathers may have their
parental rights prematurely terminated without a proper hearing.

Under the Domestic Relations Law, in cases of "public" adoptions, only
certain fathers have the right to consent to or prevent the adoption of
their child. The only fathers who have "consent" rights if the child was
placed for adoption at over six months of age are (1) those who were
married to the child's mother at the time of the child's birth; (2)
those who lived with the child for at least six months of the year
preceding the child's placement for adoption and "openly held "them-
selves out to be the father of the child"; and (3) those who otherwise
"maintained substantial and continuous contact with the child" both by
regularly visiting or communicating with them and by paying "a fair and
reasonable sum" to support them. If a father meets these criteria, then
the state is compelled to establish a basis for termination of parental
rights by clear and convincing evidence.

With respect to unmarried fathers and "public" adoptions, it is neces-
sarily impossible to prove that they have been married to the child's
mother, and it is highly unlikely that the father has been living with
the child for six months of the previous year if the child is in foster
care and the foster care agency is considering adoption. Therefore, the
only option for an unmarried father to preserve "consent" rights is to
demonstrate that the father "maintained substantial and continuous
contact with the child" both by regularly visiting or communicating with
them and by paying "a fair and reasonable sum" to support them. In cases
of "public" adoptions this rule leads to peculiar results because New
York case law has interpreted the duty to pay "a fair and reasonable
sum" in cases of "public" adoptions to require that the unmarried father
- who may not have even known of such an obligation - to have made
payments to the foster care agency that had been caring for the child. A
father who fails to make these payments can permanently lose his
parental rights. This is particularly egregious because there is no
requirement that foster care agencies inform fathers of the requirement
to pay support to the agency, nor even a requirement th at agencies
provide a means by which fathers may do so. Indeed, a significant
percentage of fathers are never provided an option by which they could
pay child support while their children are in foster care in New York.

With respect to "public" adoptions, and the termination of parental
rights for failure to make payments to foster care agencies, current law
has a disproportionate impact on fathers and children of color.  Lawyers
for fathers of children in foster care regularly challenge the constitu-
tionality of the current practice described above.  However, regardless
of the outcome of this litigation, legislation can remedy this issue and
further New York's policy of prioritizing the preservation and reunifi-
cation of families.

In order to remedy this issue, this legislation broadens the definition
of "consent" fathers in cases of "public" adoptions, so that fathers who
have been legally adjudicated to be the parent of the child or have
timely executed a formal acknowledgment of parentage have full parental
rights. This law does not affect "private" adoptions in any way. Rather,
it applies only to adoptions that occur after a child has been involun-
tarily separated from their family by the state, and the state seeks to
take the step of severing the parent-child relationship for an unmarried
father. The state will still be able to terminate such an unmarried
father's parental rights in appropriate cases on the grounds of abandon-
ment, permanent neglect, mental illness, intellectual disability, and
severe and repeated abuse, just as it would in the case of a mother or
married father who failed to meet those obligations. The local child
protective agencies will similarly still have the ability to seek child
support from the parents of children in foster care, if they choose to
do so. This legislation simply alters the potential consequence of an
unmarried father's failure to comply with his (often hidden) obligation
to pay support to a third party agency, so that his continued relation-
ship to his child does not hinge on such payment alone."

PARENT LIMITED IN RIGHT TO USE CHILD'S PERSONAL INJURY SETTLEMENT

David M. v. DM, 2022 NY Slip Op 51045 - NY: Supreme Court, Rensselaer 2022:

"In this personal injury action, and following an October 21, 2021 Infant Compromise Order — which resolved and settled all claims for personal injuries sustained by the Infant arising out of a dog bite incident that occurred in February 2019 — the Infant's parent now petitions the Court for an Order authorizing him to withdraw $7,763.00 from the settlement funds to pay for the Infant's tuition a private Catholic school.

For the reasons that follow the Court denies Petition in its entirety.

As background, on February 1, 2019 the Infant, then age 10 months, sustained a dog bite injury, including bites to her right forehead and eyebrow, and now has two permanent facial scars as a result of the dog bite. The Infant's claim was settled before trial, with the balance of the settlement ($102,849.14) paid to the Infant's parent "to be held for the sole use and benefit of said infant, jointly with an officer of Pioneer Bank, Troy, New York . . . subject to the Order of this Court . . . (and paid over to the Infant) without further Court Order when the infant reaches the age of 18 years."

Now, the Infant's parent asks the Court to authorize the payment to him of $7,763.00 from the settlement funds so that he may pay his daughter's first year tuition for full day pre-school at a private Catholic school. He also tells the Court that he does "not wish to send her to public school . . . (and wishes) to send her to a private Catholic school that will give her a good base education while teaching her religion as well."

To be clear, the Court takes no issue with the petitioner's wish to send his child to a private religious school, and certainly credits his goal of advancing her best interests.

This said, the Court is mindful that an infant's settlement funds "belong to the child alone. . . . awarded to compensate for (her) pain, (her) suffering and (her) incapacity . . . (and are not a substitute) for the necessities of life for which parents are responsible, absent specific proof of financial distress . . . (and a parent's) duty should not be shifted to the Infant" (Joyner-Pack v State of New York, 30 Misc 3d 903, 9135 [Ct Cl, 2012], quotations and citations omitted). Further, any application for approval of an expenditure of an infant's settlement funds must comply with Uniform Rule 202.67(f) — which must include "a statement that the family of the infant is financially unable to afford the proposed expenditures."

However viewed, the record simply does not support the petitioner's request to shift the cost of pre-school to the Infant, however well intended the private religious education maybe. Particularly absent is any plan for the continuing costs of the private education post the proposed pre-school, or a statement of net worth or admissible proof setting out the petitioner's inability to meet his parental obligations.

Lastly, given the nature of the injuries sustained by the Infant, including facial scarring, in the Court's view the Infant's settlement funds are better preserved and should remain intact until she attains majority, rather than be expended by a likely series of continuing requests to spend her moneys for the necessities of life (Serrant v Mossi, 40 Misc 3d 1224(A) [Sup Ct, Bronx County 2013]) — here defined by the petitioner as a private school education."

ARTICLE 17-A GUARDIANSHIP NO LONGER NECESSARY

And note that the same reasoning will also apply when one i seeking an Article 17-A Guardianship as noted in an earlier post:  A Lawyer's Blog - Jon Michael Probstein, Esq.: FOR ADULTS WITH INTELLECTUAL DISABILITIES, A GUARDIAN IS NOT ALWAYS NEEDED (jmpattorney.blogspot.com)

MATTER OF RICHARD SH, 2022 NY Slip Op 22328 - NY: Surrogate's Court, Westchester 2022:

"SCPA article 17-A guardianship is plenary, resulting in a total deprivation of an individual's liberty (see SCPA §§1750, 1750-a, 1750-b; see also Matter of Michael J.N., 58 Misc 3d 1204[A], 2017 NY Slip Op 51925[U] [Sur Ct, Erie County 2017]; Matter of Caitlin, NYLJ, April 29, 2017 at 31 [Sur Ct, Kings County 2017]).^[1]

The standard for whether a decree of guardianship should issue in the first instance for an intellectually and/or a developmentally disabled person is set forth respectively in SCPA §§1750 and 1750-a. In accordance with the statutory provisions, a determination must be made by the court that the individual has an "impaired ability to understand and appreciate the nature and consequences of decisions which result in such person being incapable of managing himself and/or his affairs by reason of intellectual disability [and/or developmental disability] and that such condition is permanent in nature or likely to continue indefinitely."

SCPA §1759 states that a person for whom an article 17-A guardianship has been established may petition the court to have the guardianship dissolved. To have guardianship letters revoked, an article 17-A ward, such as Reed, bears the burden of establishing that the guardianship is not in his best interest, with the determination of what is in his best interest committed to the court's discretion (see SCPA §1751; SCPA §1750-a; see also Matter of Michael J.N., 58 Misc 3d 1204).

In determining whether the termination of a guardianship is in the best interest of the individual, courts have considered whether it is the least restrictive means to preserve and protect the rights of the person (see Matter of Michael J.N., 58 Misc 3d 1204).^[2]

There are only a few reported cases in which a decree of §17-A guardianship has been revoked and an individual restored to his full rights under the law. For example, in Matter of Stephen S.C., 63 Misc 3d 725 [Sur Ct, Westchester County 2019]), this court found that SPCA §17-A guardians were no longer warranted for an intellectually and developmentally disabled man because less restrictive means for support were appropriate and available. The record demonstrated that Stephen had gained greater independence since moving to a group home, demonstrated in the record by his ability to obtain and sustain employment, manage a bank account, maintain a social life, travel independently, take care of his hygiene, and engage with a supported decision-making network.

Even more recently in Matter of Robert C.B. (68 Misc 3d 704 [Sur Ct, Dutchess County 2019], reversed in part, 207 AD2d 464 [2d Dept 2022]), the court terminated the SCPA §17-A of the guardianship over the person of Robert, a 23-year-old man with Asperger's Syndrome, finding that it was in his best interest to restore his right to manage his personal affairs without the oversight or control of a guardian of the person. There, the record reflected, among other things, that: (1) Robert graduated from high school with a Regents diploma; (2) he successfully transitioned to independent living; (3) he held down two jobs where he operated with minimal supervision; (4) he managed his personal schedule without assistance; (5) he did his own shopping and meal preparation; and (6) he managed his medical appointments and medication The court, in its discretion, based on the record before it, denied that part of the petition which requested termination of the property guardianship.

However, the order was appealed, and in Matter of Robert C.B. (207 AD3d 464 [2d Dept 2022]), the Second Department found that the Surrogate's Court erred in not granting that part of the application which requested termination of Robert's property guardianship. In doing so, the court wrote:

The petitioner established that he did not have a disability as defined in SCPA article 17-A, as his evidence showed that his ability to "understand and appreciate the nature and consequences of decisions" was not impaired (citations omitted).

* * *

As to managing his finances, at the time of his testimony, his bills were all up to date. . . . [He] demonstrated that he understood and was able to manage his own finances despite having made a poor decision in purchasing a car with an inflated purchase price and exorbitantly high interest rate.

* * *

Rather than showing that the petitioner lacked an understanding of consequences, this evidence showed that he evaluated his circumstances, researched the options available to him under those circumstances, learned through experience that he had made a poor financial decision, and took steps to minimize the negative consequences arising from that decision.

(Matter of Robert C.B., 207 AD3d at 466-67).

In Matter of Dameris L. (38 Misc 3d 570 [Sur Ct, NY County 2012]), the husband/co-guardian of a §17-A ward petitioned the court to revoke the guardianship letters issued to him and to the ward's mother. Because the record before it reflected that Dameris L. was able to make her own decisions (albeit sometimes with the assistance of family and community support), the court terminated the guardianship and restored her legal rights.

In doing so, Surrogate Glen wrote that "New York courts have embraced the principle of least restrictive alternatives" and that the

legislature finds that it is desirable for and beneficial to persons with incapacities to make available to them the least restrictive form of intervention which assists them in meeting their needs but, at the same, time permits them to exercise the independence and self-determination of which they are capable.

(Matter of Dameris L., 38 Misc 3d at 577 [citations omitted]). The court also noted that the "legal remedy of guardianship should be the last resort for addressing an individual's needs because it deprives the person of so much power and control over his or her life" (id., [citations omitted]).

In Matter of Michael J.N. (58 Misc 3d 1204, 2017 NY Slip Op 51925[U]), the Surrogate's Court found that vacatur of the decree of guardianship and revocation of the letters issued to Michael's parents were in Michael's best interest. In vacating the decree, the court relied on the record before it, which demonstrated that Michael's adaptive skills, as supported by his placement in a group home, enabled him to make health care decisions and to perform his daily living tasks without a guardian. The court noted that an individual's best interest must include an assessment of his functional capacity and what he can or cannot do in managing daily affairs (see also Matter of Gulielmo (NYLJ, Nov. 13, 2006 at 23, col.1 [Sur Ct, Suffolk County] [article 17-A guardianship dissolved where the record demonstrated that the individual currently was capable of conducting all activities of daily living]).

Cases where courts have refused to appoint an article 17-A guardian in the first instance also are instructive on this issue. In Matter of Caitlin (NYLJ, April 13, 2017 at 31), the court, in denying the petition for SCPA 17-A guardianship, stated that, where less restrictive alternatives were available, such as a durable power of attorney, a health care proxy, and community support services, it was not in Caitlin's best interest to have a guardian appointed for her and to have her "decision-making authority supplanted, regardless of good intentions and a desire by [her] family to protect [her]." In Matter of Hytham (52 Misc 3d 1211[A], 2016 NY Slip Op 5113[U] [Sur Ct, Kings County]), a petition for guardianship was dismissed where the individual, although intellectually in the borderline delayed range, was able to independently handle, among other things, money, purchases, grooming and cooking.

The record before this court demonstrates that Reed has made extraordinary progress since 2015. He has not only graduated from an accredited college but he is obtaining a master's degree from a renowned university, and he is excelling there. Reed has been able to obtain and sustain employment, manage his daily affairs, and engage with a supported decision-making network. Since Reed has made these remarkable strides and because he has a system of supported decision making in place (and knows when he should rely upon it), lesser restrictive alternatives are available to plenary guardianship.

Based on the substantial record before this court which demonstrates that Reed has successfully met his burden that the guardianship is no longer in his best interests, the petition is granted, and the decree dated May 3, 2016, is vacated; the SCPA § 17-A guardianship of Reed is terminated; the letters of guardianship issued to Richard and Elisabeth are revoked; and Reed's full legal capacity is restored.

Richard, Elisabeth and Reed now should proceed to put the health care proxy and the power of attorney in place, and Richard and Elisabeth are directed to account for their proceedings as guardian of Reed's property in an expeditious manner."

MORTGAGE FORECLOSURE - RPAPL 1304 AND FDCPA ISSUE

DEUTSCHE BANK NATL. TRUST CO. v. ABER, 2022 NY Slip Op 51036 - NY: Supreme Court, Rockland Co. 2022:

"Turning to the merits of the RPAPL 1304 defense itself, the Court need not belabor the issues. Strict compliance with the requirements of RPAPL 1304 is a condition precedent to the commencement of a foreclosure action (Kessler, 202 AD3d at 14; see CV XVII, LLC v Trippiedi, 187 AD3d 847, 850 [2d Dept 2020]; US Bank, N.A. v Haliotis, 185 AD3d 756, 758 [2d Dept 2020]). Plaintiff's RPAPL 1304 notice included extensive language that RPAPL 1304(1) does not specify for inclusion in a pre-commencement notice. Plaintiff does not dispute that the envelope conveying plaintiff's RPAPL 1304 notice transmitted this additional language. RPAPL 1304(2) is clear that the pre-commencement notice "required by this section shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice." Additional language not "required by this section" violates the separate-envelope requirement as Kessler and its progeny have construed it over a dozen times in recent months (see e.g. JPMorgan Chase Bank, N.A. v Dedvukaj, ___ AD3d ___, 2022 NY Slip Op 04541 [2d Dept, Jul 13, 2022]; U.S. Bank, N.A. v Lanzetta, ___ AD3d ___, 2022 NY Slip Op 04322 [2d Dept, Jul 6, 2022]; Wells Fargo Bank, N.A. v Bedell, 205 AD3d 1064 [2d Dept, May 25, 2022]; HSBC Bank USA, N.A. v Hibbert, 205 AD3d 783, 784 [2d Dept, May 11, 2022]; US Bank, N.A. v Drakakis, 205 AD3d 756, 757 [2d Dept, May 4, 2022]; Bank of NY Mellon v Govan, 204 AD3d 878 [2d Dept, Apr. 20, 2022]; HSBC Bank USA, N.A. v Jahaly, 204 AD3d 648 [2d Dept, Apr. 6, 2022]; US Bank, N.A. v Hinds, 203 AD3d 1210 [2d Dept, Mar. 30, 2022]; Deutsche Bank Natl. Trust Co. v Bancic, 203 AD3d 1130 [2d Dept, Mar. 30, 2022]; Deutsche Bank Natl. Trust Co. v Salva, 203 AD3d 700 [2d Dept, Mar. 2, 2022]; US Bank, N.A. v Kaplan, 202 AD3d 1144 [2d Dept, Feb. 23, 2022]; Sirianni, 202 AD3d at 702; DeFeo, 200 AD3d at 107; Dente, 200 AD3d at 1025). As such, defendant carries his prima facie burden to demonstrate entitlement to judgment sustaining his RPAPL 1304 affirmative defense and, on that basis, obtain summary judgment dismissing this action.

In opposition, plaintiff argues that an additional notice conveying federally required materials inside an RPAPL 1304 envelope cannot violate Kessler and its progeny under two recent cases sounding in federal preemption (see CIT Bank, N.A. v Neris, ___ F Supp 3d ___, 2022 WL 1799497 [SD NY, Jun 2, 2022]); Bank of NY Mellon v Luria, ___ Misc 3d ___, 2022 NY Slip Op 22218 [Sup Ct Putnam Co, Jul 18, 2022] ["Luria"]). The thrust of Neris and Luria was that a residential foreclosure plaintiff is a debt collector under the Federal Debt Collection Practices Act ("FDCPA") (see 15 USC § 1692a[6][A], [F]; see also Cohen v Rosicki, Rosicki & Assocs., 897 F3d 75 [2d Cir 2018], cf. Obduskey v McCarthey & Holthus LLP, ___ US ___, 139 S Ct 1029 [2019]), and therefore must issue a so-called FDCPA "mini-Miranda" warning on its "initial communication" to the debtor to collect on that debt (see 15 USC § 1692e[11]; cf. 15 USC § 1692a[11] [excluding formal pleadings from FDCPA "mini-Miranda" requirement]). The argument continues that an RPAPL 1304 notice constituting a debt-collection communication therefore must convey this "mini-Miranda" warning, so under the Supremacy Clause (see US Const, art VI, cl 2), the separate-envelope requirement of RPAPL 1304(2)—and Kessler and its progeny construing it—must yield to the FDCPA.

Plaintiff's argument fails for numerous reasons. One is that the extraneous language in plaintiff's RPAPL 1304 notice far exceeds the FDCPA "mini-Miranda" warning by including advisories about efforts by the State and City of New York to expand homeowner counseling services, and other advice having nothing to do with the FDCPA. Another is that plaintiff fails to show that anything in RPAPL 1304, or any other statute whether federal or state, requires that the 90-day pre-commencement notice of RPAPL 1304(1) must be the first debt-collection notice that a plaintiff sends in connection with an impending foreclosure. By its terms, the FDCPA preempts inconsistent state laws only to the extent of the inconsistency (see 15 USC § 1692n). Because a foreclosure plaintiff can comply with the FDCPA "mini-Miranda" warning prior to sending an RPAPL 1304 notice, there is no facial conflict between the two statutes so as to preempt RPAPL 1304.

Even if, theoretically, there could be a facial conflict between the FDCPA's "mini-Miranda" requirement and and RPAPL 1304, plaintiff fails to show the further preemption requirement of FDCPA remedial superiority. While the contours of FDCPA preemption have been hotly contested (see generally Arellano v Clark County Collection Serv., LLC, 875 F3d 1213 [9th Cir 2017]; Aker v Americollect, Inc., 854 F3d 397 [7th Cir 2017]), one clear agreement among the cases takes on face value the FDCPA's explicit language, and thus congressional intent, not to preempt any state law whose protection "affords any consumer [] greater than the protection provided by [the FDCPA]" (15 USC § 1692n). Thus, the typical section 1692n preemption analysis turns on which law accords superior protection to the class of consumers who are the respective laws' intended beneficiaries (see e.g. McDermott v Marcus, Erico, Emmer & Brooks, P.C., 775 F3d 109 [1st Cir 2014]; Desmond v Phillips & Cohen Assocs., Ltd., 724 F Supp 2d 562 [WD Pa 2010]; Yang v DTS Fin. Group, 570 F Supp 2d 1257, 1261 [SD Cal 2008]; Alkan v Citimortgage, Inc., 336 F Supp 2d 1061 [ND Cal 2004]).

Here, plaintiff fails to show that the FDCPA accords superior consumer protection relative to RPAPL 1304 to the class of residential foreclosure defendants who are the statute's intended beneficiaries. Moreover, this Court is skeptical that any residential foreclosure plaintiff could make that showing. The FDCPA "mini-Miranda" warning requires only that a debt collector specify on "initial communication" with the alleged debtor "that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose," and that future communications specify their origin from a debt collector attempting to collect a debt (15 USC § 1692e[11]). These forced disclosures inform debtors about who the collector is and the purpose for which information will be used. By sharp contrast, the RPAPL 1304 notice gives alleged mortgage debtors concrete tools to avoid litigation and keep their homes—including a payoff amount, a 90-day period in which to make workout options, a list of free and trained housing counselors in their area prepared to offer assistance, contact information for the Department of Financial Services and Office of the Attorney General, and a list of specific rights (see RPAPL 1304[1]). The numerosity and breadth of these RPAPL 1304 protections accord far greater consumer protections than the FDCPA "mini-Miranda" warning alone, and thus, this Court finds that the FDCPA does not preempt RPAPL 1304 under the FDCPA's own terms (see 15 USC § 1692n).

To be sure, two courts have credited the argument that RPAPL 1304 does not accord greater protections than the FDCPA in relation to mortgage debt collection, and therefore the latter preempts the former (see CIT Bank, N.A. v Neris, ___ F Supp 3d ___, 2022 WL 1799497 [SD NY, Jun 2, 2022]); Bank of NY Mellon v Luria, ___ Misc 3d ___, 2022 NY Slip Op 22218 [Sup Ct Putnam Co, Jul 18, 2022] ["Luria II"]). Leaving aside that plaintiff does not make a substantial record showing on this issue but mainly cites to these two cases, this Court finds substantial prudential reasons why it could not follow Neris and Luria even were it inclined to do so.

Before the Luria II court was the volume of Kessler case law binding on the trial courts of the Second Department, including Kessler itself, which addressed the FDCPA mini-Miranda issue in relationship with the RPAPL 1304(2) separate-envelope requirement. Following fast on Kessler's heels, Lanzetta, Siriani and Drakakis consistently reaffirmed that RPAPL 1304 notices transmitting the FDCPA "mini-Miranda" warning, or consumer information about bankruptcy, thereby violate the separate-envelope requirement. Neither plaintiff here, nor Luria II, addressed the prudential issues that would arise if this Court, or any others bound to apply clear Appellate Division precedents, could set aside those precedents in the manner plaintiff requests.^[2]

As for Neris, if federal preemption considerations are to pull Kessler and its progeny from the ground root and branch, only the New York Court of Appeals can do so—a result the Kessler court itself invited that Court to consider (see NY Const, art VI, § 3[b][6]; CPLR 5602[a][1][i]). It is not for this Court to predict how the Court of Appeals might decide the pending Kessler appeal much less predict that the Court of Appeals will overturn Kessler. That prerogative lies with federal courts that, in applying New York law, properly may disregard Appellate Division decisions "upon persuasive evidence that the New York Court of Appeals, which has not ruled on [the issues presented], would reach a different conclusion" (AEI Life LLC v Lincoln Benefit Life Co., 892 F3d 126, 139 n15 [2d Cir 2018], quoting Pahuta v Massey-Ferguson, Inc., 170 F3d 125, 134 [2d Cir 1999]). Such is precisely what the U.S. District Court did in Neris, which predicted that the New York Court of Appeals would overturn Kessler and, on that basis, declined to follow Kessler and instead held that the FDCPA preempts the RPAPL 1304(2) separate-envelope requirement (see Neris, ___ F Supp 3d ___, 2022 WL 1799497 at *5-6). Whether or not Neris was correct, this Court must follow Kessler and its progeny unless and until the New York Court of Appeals determines otherwise.

For the above reasons, this Court respectfully parts ways with Luria II and prudentially cannot follow Neris. Applying the law that this Court is bound to follow, this Court cannot grant plaintiff's preemption argument. Instead, under Kessler and its progeny, this Court concludes that plaintiff's RPAPL 1304 notice is fatally defective for failure to satisfy the separate-envelope requirement of RPAPL 1304(2). Defendant therefore is correct that plaintiff cannot carry its burden to prove strict compliance with RPAPL 1304. Because plaintiff's proof of such strict compliance is a condition precedent to commence this action, defendant's cross motion granting summary judgment on his RPAPL 1304 defense is granted, and this action must be dismissed (see DeMarco, 205 AD3d at 945; Dennis, 181 AD3d at 866; Offley, 170 AD3d at 1241; DePasquale, 113 AD3d at 596). It follows that plaintiff's summary judgment motion must be denied as moot."

ADOPTIONS - CAN MOTHER REVOKE THE SURRENDER OF THE CHILD

MATTER OF J./E., 2022 NY Slip Op 51325 - NY: Family Court 2022:

"A surrender document may be voided if it was obtained through duress, coercion, or fraud. Social Services Law § 384(5). "To void a consent based upon duress, it is necessary to find that the natural mother was not able to exercise her free will because of the actions of people around her. (Kazaras v Manufacturers Trust Co., 4 AD2d 227, affd 4 NY2d 930). Coercion would involve actual physical force being used or threatened. Duress and coercion are difficult to prove and emotional stress is not considered duress. (Matter of E.W.C., 89 Misc 2d 64)." Matter of Baby Boy, 175 Misc 2d 7 (Surrogate's Court, Monroe County 1997). "Contemplation of the surrender of one's own child is in many, if not all, cases a cause of emotional and mental stress No statute has said that surrenders are valid only if executed free from emotion, tensions, and pressures caused by the situation. No principle of law requires the rule. A balance of the interests of the persons concerned and of society weighs strongly against it." Matter of Baby Boy L., 144 AD2d 674, 676 (2nd Dept. 1988) quoting from Matter of Surrender of Minor Children, 344 Mass. 230, 181 N.E.2d 836, 839.

In this case, the Court finds that the extrajudicial surrender was properly executed. The agreement was an exercise of the Petitioner's free will. There was no duress, coercion, or fraud. Her consent was knowing, voluntary, and intelligent. She sought out Family Connections, Inc., to make an adoption plan one week prior to giving birth. She was represented and advised by legal counsel throughout the process, and her attorney was at her side when she executed the surrender. The Petitioner acknowledged that she had not been given any narcotic drugs during her delivery. Even assuming she was tired, overwhelmed, and experiencing pain, these conditions do not rise to the requisite level to invalidate the surrender based upon duress, coercion, or fraud. Indeed, the mother in Matter of Baby Boy, supra, had also executed an extrajudicial surrender several hours after her child's birth, and she, too, testified about her distress, fatigue, discomfort, receipt of pain medication, and the pressure she felt to leave the hospital the same day. The Court in that case, while it ultimately invalidated the surrender based upon the technical failure to provide the natural mother with a copy of the consent upon execution, held that those circumstances did not rise to the level of duress or coercion.

Furthermore, Courts have cited to a natural mother's conduct after executing an extrajudicial surrender as manifesting her consent. See Matter of Collin, 92 AD3d 1283, 1284 (4th Dept. 2012); see also Matter of Jarrett, 224 AD2d 1029, 1031 (4th Dept. 1996). Here, as in those cases, the Petitioner's post-surrender conduct manifested her consent to the agreement. She left E. in the care and custody of B.P. and M.P. after she was discharged from the hospital. The same day, she texted them, "I'm so happy he has you both in his life." (January Hearing Respondents' Exhibit A). Two days later, on August 27, 2021, when B.P. and M.P. notified the Petitioner that she did not have to return to the hospital to sign additional paperwork, she responded, "Yes omg I'm so happy!!! Thank you for everything." (January Hearing Respondents' Exhibit A). On the same date, the Petitioner notified Family Connections, Inc., "Omg thank you to much I'm happy they can take him home now." (Respondent's Exhibit M). The Petitioner's multiple written statements to multiple people that she was "happy" with her decision as much as two days later evince her consent to the surrender. For all of the reasons set forth above, the surrender agreement is lawful and valid, and it should not be voided.

If a parent timely revokes a surrender, and the adoptive parents oppose the revocation, a best interests hearing must be held. Social Services Law § 384(5) and (6). Social Services Law § 384(6) provides:

In an action or proceeding to determine the custody of a child not in foster care surrendered for adoption and placed in an adoptive home or to revoke or annul a surrender instrument in the case of such child placed in an adoptive home, the parent or parents who surrendered such child shall have no right to the custody of such child superior to that of the adoptive parents, notwithstanding that the parent or parents who surrendered the child are fit, competent and able to duly maintain, support and educate the child. The custody of such child shall be awarded solely on the basis of the best interests of the child, and there shall be no presumption that such interests will be promoted by any particular custodial disposition.^[11]

Among the factors to be considered at a best interests hearing are the parties' relative "financial status, character, mental and physical health, ability to provide for the child's needs, available support from extended family members, continuity and stability, and capacity to accept the child" Matter of Sarah K., 66 NY2d 223, 233 (NY 1985). The Court in Matter of Sarah K. reiterated that the biological parents are not entitled to "primacy of status over the adoptive parents" as that would be "precisely contrary to the very purposes for which the statute was enacted." Id. at 235. Rather, courts must analyze the relative abilities of the birth parent(s) and adoptive parents to provide for the child and nurture his or her emotional and intellectual development. Matter of Baby Girl XX., 172 AD3d 1476, 1477 (3rd Dept. 2019); Matter of Baby Boy O., 162 AD3d 1586, 1587 (4th Dept. 2018); Matter of Anya W., 156 AD3d 709 (2nd Dept. 2017); Matter of Collin, 92 AD3d 1283, 1284 (4th Dept. 2012).

Further, the Third Department found that the risk of separating a child who was already bonded to her adoptive parents outweighed the potential bond with a biological sibling. George L. v. Commissioner of Fulton County Dept. of Social Services, 194 AD2d 955, 956 (3rd Dept. 1993). The Court held that, "[t]he psychological trauma of removal can be grave enough to threaten the destruction of a child (Matter of Bennett v Jeffreys, 40 NY2d 543, 550)." Id. at 957. It is important for courts to distinguish whether and to what extent a pre-existing relationship exists between biological siblings. See Matter of Willa, Albany County Family Court File No. 42090, 1/17/17 (Maney, J.). (Exhibit 1 of Memorandum of Law in Opposition to Petitioner's Order to Show Cause filed January 24, 2022).

Applying the factors above, there is no question that it is in E.'s best interests to remain with and be adopted by Respondents B.P. and M.P. B.P. and M.P. are a highly intelligent, mature, stable, and loving couple. They have been married for five years and together for ten years. They are both in good physical health. They have a strong network of extended family members who love, help care for, and regularly visit E. Both of their fathers testified at the July hearing to show their support. B.P. and M.P. both have successful careers and will soon be earning a combined household income of $285,000. In addition, they have approximately $60,000 in checking/savings, approximately $90,000 in retirement accounts, reciprocal life insurance policies for $1 million each, and medical and dental insurance which covers E. They own two vehicles and a five-bedroom home which includes a beautifully decorated nursery for E. With this financial security, B.P. and M.P. are more than capable of providing for E. and meeting his every need.

They are both taking steps to ensure that E., who is of African American and Hispanic descent, learns about his cultures and regularly sees others who look like him. The volunteer work that both B.P. and M.P. have done for many years for minority communities underscores their good character. They will surely pass on important values to their children. They have proven to be responsible and attentive parents and have already exposed E. to a wealth of healthy and diverse activities that enrich his life.

By contrast, the Petitioner and B.L. have not yet matured. They have not demonstrated longevity as a couple, and they are not married to one another. Worse, this Court finds that B.L. abused the Petitioner during their initial five-month relationship, and the abuse was so severe that she kept her pregnancy hidden from him for its entire duration. They lack extended family supports. No family members appeared to give testimony at the July hearing. The Petitioner had no one to care for her daughters while she gave birth to E., and she had no one other than B.L. to care for her daughters during the July hearing. Her lack of extended family support forced her to live in a homeless shelter with her daughters while pregnant with E.

The Petitioner and B.L. are not financially secure. The Petitioner has a history of unemployment. B.L. has a felony conviction for which he was incarcerated. At the July hearing, the Petitioner gave incredible testimony about a sudden combined income exceeding $200,000 which was unsupported by any proof. They lack stable housing. The Petitioner has moved numerous times in the past two years. In short, an application of the factors listed above makes it clear that the Petitioner, with or without B.L., simply cannot provide E. with a life comparable to that which B.P. and M.P. are already providing him.

Furthermore, E. has already bonded strongly with B.P. and M.P. and their daughter R. who is only 11 months his senior. This is the only family E. knows, and he has lived with them — and thrived with them — for his entire 11 months of life. B.P. and M.P. gave testimony about E.'s close sibling relationship with R. They spend every day together and are the "best of friends." By contrast, E. does not have a strong relationship with the Petitioner's daughters. He only met them for the first time in February of 2022, his only contact with them has been during the monthly supervised visits, and he has spent far less than a total of 40 hours with them due to the Petitioner's routine tardiness resulting in the loss of many hours of visitation. To pull E. away from B.P., M.P., and R., the only family he knows, would be psychologically traumatic and would be against his best interests." 

FOIL LITIGATION

I have been receiving various questions on this issue. Only after all administrative remedies have been fully exhausted, may an Article 78 proceeding be entertained. And as noted by the 2nd Dept:

"FOIL requires that public agencies `make available for public inspection and copying all records' except where they fall within one of the statute's enumerated exemptions" (Matter of Kosmider v Whitney, 34 NY3d 48, 54 [2019], quoting Public Officers Law § 87[2]; see Matter of New York Times Co. v District Attorney of Kings County, 179 AD3d 115, 121 [2019]). Public Officers Law § 89(3)(a) provides, in pertinent part: "Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied.... An agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover.... If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part. Upon payment of, or offer to pay, the fee prescribed therefor, the entity shall provide a copy of such record and certify to the correctness of such copy if so requested, or as the case may be, shall certify that it does not have possession of such record or that such record cannot be found after diligent search" (emphasis added)."

MATTER OF LEPPER v. Village of Babylon, 190 AD 3d 738 - NY: Appellate Div., 2nd Dept. 2021

NOT THE NORM BUT ENCOURAGING TO KNOW

There are many pros and cons of the child welfare system regarding foster care, etc. and, in my work in Massachusetts in Child Requiring Assistance cases, these pros and cons are pretty much self-evident because there are just no guarantees on the future.

But actor Barry Keoghan received an Academy Award for Best Supporting Actor nomination for his role in the 2022 film The Banshees of Inisherin. And according to Wikipedia:

"Keoghan was born on 18 October 1992, and grew up in Summerhill, Dublin, Ireland. His mother struggled with drug addiction throughout her adult life and died when he was 12. With his brother Eric, he spent seven years in foster care, in 13 foster homes before they were raised by their grandmother, aunt, and older sister Gemma."

PRO BONO