HOUSE RULES IN CHILD CUSTODY DISPUTE REVISITED

In January of this year, I wrote about a case in which the court imposed "house rules" in a custody dispute where the custodial parent was ordered to impose consequences when the child refuses to see the non-custodial parent (see HOUSE RULES IN CHILD CUSTODY DISPUTE IMPOSED) but now the 4th Department has weighed in on this issue in another case to remind litigants that, although the non-custodial parent may be in favor of this, the court must still consider the child's best interests. Burns v. Grandjean, 2022 NY Slip Op 6577 - NY: Appellate Div., 4th Dept. 2022:

"Where there is "a dispute between divorced parents, the first concern of the court is and must be the welfare and the interests of the children" (Matter of Lincoln v Lincoln, 24 NY2d 270, 272 [1969]), and "[a]ny court in considering questions of child custody must make every effort to determine what is for the best interest of the child[ren], and what will best promote [their] welfare and happiness" (Eschbach v Eschbach, 56 NY2d 167, 171 [1982] [internal quotation marks omitted]). Consequently, visitation and "custody determinations should `[g]enerally' be made `only after a full and plenary hearing and inquiry'" (S.L. v J.R., 27 NY3d 558, 563 [2016], quoting Obey v Degling, 37 NY2d 768, 770 [1975]), "[u]nless there is sufficient evidence before the court to enable it to undertake a comprehensive independent review of" the children's best interests (Matter of Balls v Doliver, 72 AD3d 1618, 1619 [4th Dept 2010] [internal quotation marks omitted]).

....

With respect to the imposition of the court's house rules on the mother and the children, even assuming, arguendo, that the court had the authority to impose such rules (cf. Ritchie v Ritchie, 184 AD3d 1113, 1115 [4th Dept 2020]), we conclude that the record fails to demonstrate that the imposition of the house rules in this case was in the children's best interests."

MORE ON THE DEVELOPING PET CUSTODY LAW

Acosta v. Shaw, Date filed: 2022-12-16, Court: Supreme Court, Queens, Judge: Justice Lourdes M. Ventura, Case Number: 717310/2020:

"“Replevin is strictly a possessory action and plaintiff, to recover, must show a possessory right recognized by law” (Hofferman v. Simmons, 290 NY 449, 455 [1943]). However, when dealing with animals. Specifically, the Second Department, Appellate Division in Feger v. Warwick Animal Shelter, 59 AD3d 68, 72 [2d Dept 2008] recognized companion animals as a special category of property which consistent with the laws of this State and the underlying policy inherent in those laws to protect the welfare of animals. The court in Feger further acknowledged the “cherished status” accorded to pets in our society in awarding possession of a cat in a custody dispute based in large part on what was in the best interest of the animal (Raymond v. Lachmann, 264 AD2d 340, 341 [1999]).

An applicable standard dealing with pet custody cases was further developed in a matrimonial action under Travis v. Murray (42 Misc 3d 447 [Sup Ct, New York County 2013]). The Travis court concluded that in determining to whom a pet should be awarded, a “best for all concerned,” rather than a “best interests,” standard would be appropriate. This standard was subsequently adopted and applied by several courts in non-matrimonial actions dealing with causes of actions of replevin and right of possession (see, e.g. Mundo v. Weatherson, 74 Misc 3d 1215(A) [Civ Ct 2022] Mitchell v. Snider, 51 Misc 3d 1229[A][Civil Ct, New York County 2016]; Ramseur v. Askins, 44 Misc 3d 1209[A][Civ Ct, New York County 2014]; Hennet v. Allan, 43 Misc 3d 542 [Sup Ct, Albany County 2014])).
Since the Travis decision, Domestic Relation Law (“DRL”) §236 [B] [5] [d] [15]) was enacted requiring courts to consider “the best interest” of such animal when awarding possession in divorce or separation proceedings (L.B. v. C.C.B., 175 NYS3d 705, 710 [Sup Ct 2022]; DRL §236 [B] [5] [d] [15]).

While this court is aware that this action seeks causes of actions grounded in replevin and right of possession, which is distinguishable from divorce and separation proceedings, this Court would be remiss if it did not acknowledge that a determination regarding the custody of a pet, whether between two married persons or two previously co-habiting persons, should inherently consider the best interest of said animal as a factor to be consider during the court’s determination (L.B. v. C.C.B., 175 NYS3d 705, 710 [Sup Ct 2022]; DRL §236 [B] [5] [d] [15]). Thus, this court will apply the “best for all concerned” standard (see, e.g. Mundo v. Weatherson, 74 Misc 3d 1215(A) [Civ Ct 2022] Mitchell v. Snider, 51 Misc 3d 1229[A][Civil Ct, New York County 2016]; Ramseur v. Askins, 44 Misc 3d 1209[A][Civ Ct, New York County 2014]; Hennet v. Allan, 43 Misc 3d 542 [Sup Ct, Albany County 2014] and consider the “best interest” as a factor to be consider in the overall analysis (L.B. v. C.C.B., 175 NYS3d 705, 710 [Sup Ct 2022]; DRL §236 [B] [5] [d] [15]).

Based upon the credible testimony of the parties, it is undisputed that defendant Shaw paid for Waffles and it is clear that the monthly expenses were shared between the parties during their time living together. Plaintiff credibly acknowledged that when the three of them resided together they shared the walking responsibilities for Waffles anywhere from two to four times a day. This Court finds that both parties credibly testified about their love and devotion for Waffles, and both genuinely expressed an interest in doing what was in Waffles best interest. It is undisputed that since August 2020 Waffles has resided with defendant Shaw. Moreover, no evidence was adduced to controvert defendant Shaw’s account of Waffles current daily routine or care. Under Waffles’ current care, Waffles resides on a first floor of a duplex style house which has direct access to a backyard, has daily companionship with defendant Shaw, his live-in roommates and another dog named Savi.

Based upon the totality of the evidence, and the testimony adduced during the hearing, this Court finds that in considering the best interest of Waffles, and the best interest for all concerned, that Waffles remain with defendant Shaw."

WAIVING THE RIGHT TO BE RESTORED TO PREMISES AFTER ILLEGAL LOCKOUT

Vatel v. Wills, 74 Misc. 3d 566 - NY: City Court, Civil Court 2022:

"The relevant statutes considered in an illegal lockout are RPAPL 713(10), RPAPL 768, RPAPL 711, and Administrative Code of the City of New York § 26-521.

Under RPAPL 713(10), a special proceeding may be maintained where:

"The person in possession has entered the property or remains in possession by force or unlawful means and he or his predecessor in interest was not in quiet possession for three years before the time of the forcible or unlawful entry or detainer and the petitioner was peaceably in actual possession at the time of the forcible or unlawful entry or in constructive possession at the time of the forcible or unlawful detainer; no notice to quit shall be required in order to maintain a proceeding under this subdivision."

Further RPAPL 768(1)(a) indicates that

"[i]t shall be unlawful for any person to evict or attempt to evict an occupant of a dwelling unit who has lawfully occupied the dwelling unit for thirty consecutive days or longer or who has entered into a lease with respect to such dwelling except to the extent permitted by law pursuant to a warrant of eviction or other order of a court of competent jurisdiction or a governmental vacate order."

Similarly, Administrative Code § 26-521 provides:

"a. It shall be unlawful for any person to evict or attempt to evict an occupant of a dwelling unit who has lawfully occupied the dwelling unit for thirty consecutive days or longer ... except to the extent permitted by law pursuant to a warrant of eviction or other order of a court of competent jurisdiction or a governmental vacate order by:

"(1) using or threatening the use of force to induce the occupant to vacate the dwelling unit; or

"(2) engaging in a course of conduct which interferes with or is intended to interfere with or disturb the comfort, repose, peace or quiet of such occupant in the use or occupancy of the dwelling unit, to induce the occupant to vacate the dwelling unit including, 570*570 but not limited to, the interruption or discontinuance of essential services; or

"(3) engaging or threatening to engage in any other conduct which prevents or is intended to prevent such occupant from the lawful occupancy of such dwelling unit or to induce the occupant to vacate the dwelling unit including, but not limited to, removing the occupant's possessions from the dwelling unit, removing the door at the entrance to the dwelling unit; removing, plugging or otherwise rendering the lock on such entrance door inoperable; or changing the lock on such entrance door without supplying the occupant with a key." (Emphasis added.)

Additionally, RPAPL 711 provides that "[n]o tenant or lawful occupant of a ... housing accommodation shall be removed from possession except in a special proceeding," if he or she has been in possession for 30 consecutive days or longer.

Here, the petitioner has been in possession of the subject premises pursuant to a subtenancy arrangement with respondent that began in late 2016/early 2017. He had exclusive possession of the subject premises and paid monthly rent to respondent for either $1,100 or $1,300. This amount exceeded respondent's monthly rent to NYCHA by eight times. Based on these events, petitioner has been in lawful possession for 30 consecutive days or longer, namely over four years, at the subject premises. This was further supported by the disinterested and credible testimony of Janice Brooks who told this court that for at least four years of her living next door to petitioner, she thought petitioner was the tenant of record for the subject premises. She had not seen respondent until early 2021. Lastly, she testified that respondent told her that she was subletting the premises to petitioner.

Further, this court found incredible respondent's testimony that she did not have an agreement with petitioner to live at the subject premises but merely provided a key for him to provide access to NYCHA workers while she was away on her mission work, and that the PayPal and Venmo payments made by petitioner of $1,100 or $1,300 were donations to YogaStenics and Culcha Society for health and wellness services she provided to petitioner.

Moreover, the credible testimony of petitioner and evidence demonstrates that respondent on or about November 23, 2021, forcibly removed petitioner from the subject premises (RPAPL 571*571 713[10]). Respondent broke into the subject premises by drilling a hole into the entrance door lock. She placed a door chain to prevent petitioner from entering and barricaded herself inside. She only opened the door once the police interfered (Administrative Code § 26-521).

Accordingly, up until these above events of November 23, 2021, petitioner showed the elements of an illegal lockout pursuant to RPAPL 713(10), RPAPL 768 and Administrative Code § 26-521. However, the turning point occurred when petitioner told the police that "enough is enough" and "this has gone way too far," "I'm gonna leave," and "I am going to grab my stuff" (respondent's exhibit F in evidence—audio). Petitioner admitted that on that same day he went and got his laptop, Social Security card, and passport and left. However, he returned days later to remove his personal property from the premises. In fact, he made two trips on the same day to remove his property. On that same day, he spent hours packing and got his own U-Haul.

Waiver is a voluntary and intentional relinquishment of a known right (Albert J. Schiff Assoc. v Flack, 51 NY2d 692, 698 [1980]). "The doctrine of waiver, by its nature, ordinarily applies to all rights or privileges to which a person is legally entitled, provided such rights or privileges belong to the individual and are intended solely for that individual's benefit" (Hudsonview Co. v Jenkins, 169 Misc 2d 389, 392 [Civ Ct, NY County 1996]). Here, petitioner had a legal right to be restored to possession but voluntarily relinquished that known right when he indicated to the police and respondent that he was leaving, packed some of his belongings on November 23, 2021, then returned days later, after a cooldown period to voluntarily pack his own belongings.

Since petitioner waived his rights to maintain this proceeding, this court has no other option but to dismiss the petition without prejudice to petitioner's rights, if any, pursuant to RPAPL 768, RPAPL 853, and/or Administrative Code § 26-521, and subject to any defenses respondent may raise therein.

Respondent should in no way interpret the dismissal of this proceeding as an endorsement or approval of her actions in this matter. The credible testimony and evidence showed that respondent sublet her NYCHA apartment to petitioner for eight times what she was paying NYCHA. She disguised these payments as income by having petitioner make rent payments to a nonprofit organization and characterize it as a donation. Then, 572*572 instead of using court process and the rule of law to evict her subtenant, respondent illegally locked petitioner out of his apartment on several prior occasions. During the times when he regained possession of the premises with the assistance of the police, respondent would subsequently retaliate with violence and further break-ins. Respondent's behavior throughout has been shameful and despicable."

LIMITED REPRESENTATION AND CPLR 321 (d)

CPLR 321 (d):

"(d) Limited scope appearance. 1. An attorney may appear on behalf of a party in a civil action or proceeding for limited purposes. Whenever an attorney appears for limited purposes, a notice of limited scope appearance shall be filed in addition to any self-represented appearance that the party may have already filed with the court. The notice of limited scope appearance shall be signed by the attorney entering the limited scope appearance and shall define the purposes for which the attorney is appearing. Upon such filing, and unless otherwise directed by the court, the attorney shall be entitled to appear for the defined purposes. 

2. Unless otherwise directed by the court upon a finding of extraordinary circumstances and for good cause shown, upon completion of the purposes for which the attorney has filed a limited scope appearance, the attorney shall file a notice of completion of limited scope appearance which shall constitute the attorney's withdrawal from the action or proceeding."

According to the legislature (Senate Bill S6807, 2021-2022 Legislative Session):  

"According to the 2019 Report of the Advisory Committee on Civil Practice
to the Chief Administrative Judge of the Courts of the State of New
York, this new subdivision would codify authorization for attorneys to
provide limited scope legal assistance, known as a limited scope appear-
ance. In December 2016, the Chief Administrative Judge of the Courts
issued an Administrative Order authorizing limited scope representation
to enhance access to legal services. See A0/285/16.

A limited scope appearance is an attorney-client relationship in which,
by advance agreement of the parties, legal services in a civil action or
proceeding may be provided by attorney to client are limited in scope
and duration to a degree less than full service representation. The
purpose of the Administrative Order was to expand the use of limited
scope legal assistance by properly trained attorneys as a way to broaden
access to civil legal assistance to unrepresented litigants.

Under this proposal, when an attorney appears for a limited purpose, he
or she is required to file a signed notice of limited scope appearance
with the court, which shall define the purpose for which the attorney is
appearing. Upon completion of representation as outlined in the agree-
ment, the attorney must file a notice of completion of limited scope
appearance, which satisfies the attorney's completion and withdrawal
from representation. Such agreements are subject to the discretion of
the court to ensure they are appropriate and adequately satisfied.

The Committee recommended that the limited scope relationship be placed
into statute to help clearly define the scope of this relationship
between attorney and client, and to further encourage the 'use 'of such
an agreement.

Legal service organizations, especially those who utilize pro bono
volunteer attorneys, and their clients, would greatly benefit from this
bill."

ARE LOCAL "GOOD CAUSE EVICTION LAWS" VALID?

"ORDERED, that the GCEL enacted by the City of Poughkeepsie Common Council is deemed unconstitutional, thereby rendering it VOID and UNENFORCEABLE under New York State's "Preemption Doctrine"; and it is further"

LAKR KAAL ROCK, LLC v. Paul, 2023 NY Slip Op 23070 - Dutch Co. City Court 2023:

"As a preliminary matter, this Court is a court constitutionally enacted pursuant to the New York State Constitution [NY CONST. Art. IV, §17] with jurisdiction to adjudicate constitutional legal issues. People v. Jackson, 76 Misc 2d 872 affirmed 36 NY2d 726 (1975); People v. Zongone, 102 Misc 2d 265 (Yonkers City Court 1979)(court held that NY disorderly conduct statute was constitutional); People v. Milio, 112 Misc 2d 949 (Yonkers City Court 1982) citing National Psych. Assn. et al v. University of State of NY, 18 Misc 2d 722, 725-26 affirmed 10 AD2d 688 affirmed 8 NY2d 197 (court should declare statutes unconstitutional that affect life and liberty and where the invalidity of the statute is apparent on its face); People v. Jack Resnick and Sons, Inc., 127 Misc 2d 1031(Yonkers City Court 1985)(upholding local ordinance and finding that if the constitutional questions raised in a court of limited jurisdiction are debatable, the court must declare the ordinance constitutional, and must not substitute its judgment for that of the legislative body); People v. Trolio, 170 Misc 2d 1017 (Village of Scarsdale 1996)(finding code limiting leaf blowers constitutional).

Secondly, respondent incorrectly contends that petitioner is seeking declaratory relief from this Court. The instant proceeding was commenced by petitioner pursuant to R.P.A.P.L. § 711(1), and the constitutionality and enforceability of the GCEL is inextricably intertwined with the facts set forth within the instant summary proceeding and central to the issues.

Third, Corporation Counsel's Office was timely and properly notified pursuant to C.P.L.R. § 1012. There are no procedural timing requirements setting forth when or how notice must be provided under C.P.L.R. § 1012(b). Moreover, in local government challenges, there is nothing that even imposes the notice obligation on the party raising the constitutional issue. Rather it is only implied. The statutory requirement that a motion for intervention be "timely" under C.P.L.R. § 1012, adds an element of judicial discretion to the "right" to intervene. (Alexander Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C102:5) "The principal guideposts in the valuation of timeliness are whether disposition of the action will be unduly delayed and whether the original parties will be prejudiced." Id. citing Norstar Apts., Inc. v. Town of Clay, 112 AD2d 750, 751 (4th Dept. 1985). Cf. C.P.L.R. 1013. See, e.g., Halstead v. Dolphy, 70 AD3d 639 (2d Dept. 2010)(intervention was not sought until more than four years from action's commencement). Here, once petitioner constitutionally challenged the GCEL, the parties were ordered by this Court that Corporation Counsel's Office was to be notified by petitioner and provided an opportunity to intervene. It is undisputed that notice was timely provided by petitioner to Corporation Counsel's Office, and undisputed that Corporation Counsel consented to the documentation being emailed. O'Fallon affirmation, dated January 23, 2022 [sic], ¶ 1-14. Petitioner complied with this Court's Order, Corporation Counsel intervened on behalf of the City of Poughkeepsie, their papers have been considered, and the parties have not demonstrated prejudice in any way. Halstead v. Dolphy, supra (holding that intervention may occur at any time provided it does not unduly delay the action or prejudice existing parties).

Fourth, Corporation Counsel's erroneous claim that it has been deprived of its right to appeal an adverse decision as an intervenor^[3], is wrong. A successful intervenor acquires the same status as that of an original party. See, e.g., NY Central RR Co., v. Lefkowitz, 19 AD2d 548 (2d Dept. 1963)(holding that once intervenors become parties to an action, they are to all intents and purposes considered original parties); Halstead v. Dolphy, supra at 640; Berkoski v. Trustees of Inc. Village of Southampton, 67 AD3d 840 (2d Dept. 2009); Paez v. Varveris, 12 Misc 3d 101 (App. Term 2d Dept. 2006).

Fifth, the Court rejects the City's argument that petitioner has unclean hands.

Sixth, the Court rejects the City's argument that the motion should be decided without passing on the constitutionality of the GCEL. While courts must exercise judicial restraint, a court may not avoid a constitutional issue by interpreting a challenged statute in a manner that produces an absurd or unreasonable result. Matter of Shernise C., 91 AD3d 26 (2d Dept. 2011). Likewise, legislative enactments are to be construed so as to avoid constitutional issues if doing so is fairly possible. Matter of Waterways Dev. Corp. v. Town of Brookhaven Zoning Board of Appeals, 126 AD3d 708 (2d Dept. 2015). However, here, central to the proceeding, is the GCEL, and whether it is constitutional, or void and unenforceable. This Court cannot avoid addressing the legality surrounding the challenged statute without reaching an absurd result. A decision on this issue dictates the course of this proceeding. As such, the merits of the statute's constitutionality and enforceability are addressed below.

Finally, contrary to arguments made by Corporation Counsel [Longcore affirmation, dated January 4, 2023, ¶ 29], the function of the judicial branch is not to render decisions that ensure public debate and outcry, nor is it to ensure input from the media. Indeed, its role and decisions must be insulated from such things. The judiciary must exercise fairness and impartiality in its decisions. It must protect the rights of individuals, ensure equal justice, interpret and apply the law, and be a guardian of the Constitution. As such, to the extent that the City argues that the Court should decline to exercise its power to rule on this issue for these reasons, same is wholly rejected.

The GCEL's constitutionality and enforceability

The general rule of law is that municipalities have the right to enact ordinances that tend to preserve good order, peace, health, and the safety and welfare of its inhabitants. Second Class Cities Law § 30; Poughkeepsie City Code § 1-2. Questions as to the wisdom, need, or appropriateness of the statute are to be left to the Legislature. Olsen v. Nebraska, 313 U.S. 236, 246 (1941). Moreover, courts are bound to construe statutes as they have been drawn and are not to review the expediency, wisdom or propriety of a Legislature's actions if such matters are performed within its powers. Lawrence Construction Corp. v. State of New York, 293 NY 634, 639 (1944).

And while municipalities have broad authority to enact legislation that promotes the welfare of their constituents, the New York State Constitution limits that power to local governments to the extent that they may not adopt laws inconsistent with the provisions of the Constitution or any general law relating to its property, affairs, or government. NY Const. art. IX, 2(c). Pusatere v. City of Albany, Sup. Ct. Albany Co., June 30, 2022, Ryba, S.C.J. Index No. 909653-21, citing NY Const. art. IX, 2(c); Municipal Home Rule Law 10(1)(i), (ii); Nyack v. Daytop Vill. Inc., 78 NY2d 500, 505 (1991); see also, Albany Area Bldrs. Assn. v. Town of Guilderland, 74 NY2d 372, 377 (1989).

There is a strong presumption that a legislative statute is constitutional, and its invalidity must be demonstrated by the party opposing it beyond a reasonable doubt. People v. Pagnotta, 25 NY2d 333, 337 (1969). Only in rare cases should courts of the first instance — like here — find acts of the Legislature unconstitutional. People v. Zongone, supra citing People v. Mason, 99 Misc 2d 583, 587 (Richmond County 1979). Facial challenges to statutes are generally disfavored because legislative enactments carry a strong presumption of constitutionality. People v. Taylor, 9 NY3d 129, 150 (2007). Moreover, the burden of proof in demonstrating that the statute is unconstitutional rests with the one who seeks to invalidate it. People v. Bright, 71 NY2d 376, 382 (1988). And, in those instances, courts should declare statutes unconstitutional only as a last unavoidable resort. South Buffalo Ry. Co. v. Ahern, 303 NY 545, 555 affirmed 344 U.S. 367 (1953). Matter of Pratt v. Tofany, 37 AD2d 854 (2d Dept. 1971).

The Preemption Doctrine limits municipalities' law-making authority. People v. Torres, 37 NY3d 256, 265 (2021) citing Albany Area Bldrs. Assn., supra. Specifically, "Conflict Preemption" prohibits a local government from adopting any laws inconsistent with state law, while "Field Preemption" prohibits a local government from legislating in a field or area of the law where the "legislature has assumed full regulatory responsibility." People v. Torres, supra; Matter of Highway Super. Assn. of Rockland, Inc. v. Town of Clarkstown, 150 AD3d 731, 734 (2017).

Here, this Court finds that the GCEL passed by the City of Poughkeepsie is void and unenforceable under the New York State Constitution because the GCEL is inconsistent with duly enacted New York State Laws on eviction proceedings. NY Const., Art. IX, 2; Albany Area Builders Assn. v. Town of Guilderland, 74 NY2d 372, 377 (1989); People v. Torres, 37 NY3d 256, 265 (2021). Under the legal doctrine of Conflict Preemption, the GCEL is preempted by numerous New York State Laws. Pusatere v. City of Albany, Sup. Ct. Albany Co., June 30, 2022, Ryba, S.C.J. Index No. 909653-21.

The City of Poughkeepsie Common Council's GCEL, adopted in 2021, prohibits landlords from evicting tenants except under special circumstances. For example, it prevents landlords from evicting tenants who refuse to pay rent if they consider rent increases to be "unconscionable" — otherwise described as "predatory" rent increases. Moreover, the GCEL imposes a "good cause" requirement to institute a summary eviction proceeding; and it caps rental increases to 5% annually.

Under the legal doctrine of "Conflict Preemption," the GCEL is inconsistent with New York State Real Property Law § 226-c — which authorizes evictions based upon an expired lease or non-renewal lease — in that the GCEL precludes a landlord from evicting a tenant without good cause.

Moreover, the GCEL is inconsistent with New York State Real Property Law § 226-c(1)(a) — which authorizes rental increases of greater than 5% provided the tenant is given appropriate statutory notice — in that the GCEL prohibits a landlord from increasing rent by 5% in any twelve-month period without good cause.

In addition, the GCEL is inconsistent with New York State Real Property Law § 228 — which authorizes a landlord to evict based upon expiration of a tenancy — in that the GCEL requires a landlord to establish good cause to evict someone even if the lease has expired.

As well, the GCEL is inconsistent with New York State Real Property Actions and Proceedings Law § 711(1) — which authorizes a landlord to evict a tenant based upon an expired lease — in that the GCEL requires a landlord to establish good cause to evict someone even if the lease has expired.

"Conflict Preemption" — once again — prohibits a local government from adopting a law inconsistent with state law, and here the GCEL is in direct conflict with R.P.L. § 226-c(1)(a) and R.P.L. § 228, as well as R.P.A.P.L. § 711(1), because it strips a landlord's New York State statutorily enacted right to terminate, or otherwise not elect to renew a tenancy, without good cause. Moreover, it prohibits a landlord from increasing rent by more than 5% annually without good cause. Since the City of Poughkeepsie Common Council is prohibited from enacting a law inconsistent with general laws of New York State, the GCEL is void and unenforceable.

Even if this Court found that the GCEL was valid — which it has not — while respondent has the benefit of a strong presumption set forth in the GCEL, that presumption is rebuttable. Here, petitioner set forth sufficient evidence in admissible form to rebut the presumption that would have defeated respondent's motion to dismiss. In addition, even if this Court found the GCEL to be valid and enforceable, issues of fact have been raised in the papers, including market analysis of current rentals in several nearby apartment complexes, that would have defeated the motion to dismiss. Notwithstanding same, this Court would have had to reach an absurd result by not addressing these constitutional issues."

ON DISSOLVING A LLC

CHERNOMORDIK v. OCEAN SAND DEV., LLC, 2022 NY Slip Op 33846 - Kings Co. Supreme Court 2022:

"Concerning the causes of action, the first counts seek dissolution. In Matter of 1545 Ocean Avenue LLC, 72 AD3d 121, 893 NYS2d 590 [2d Dept., 2010] the court held that the sole basis for dissolution of a limited liability company were the grounds outlined in Limited Liability Company Law § 702, namely judicial dissolution upon proof that it is "not reasonably practicable to carry on its business in conformity with the articles of organization or operating agreement" (id). This is a more stringent standard than the dissolution of an ordinary corporation (Kassab v. Kasab, 195 AD3d 830, 145 NYS3d 836 [2d Dept., 2021]). Thus, the plaintiff must establish that "(1) the management of the entity is unable or unwilling to reasonably permit or promote the stated purpose of the entity to be realized or achieved, or (2) continuing the entity is financially unfeasible" (Long Island Medical & Gastroenterology Associates P.C. v. Mocha Realty Associates LLC, 191 AD3d 857, 143 NYS2d 56 [2d Dept., 2021]). Concerning disagreements among the members "it is only whore discord and disputes by and among the members are shown to be inimical to achieving the purpose of the LLC will dissolution under the "not reasonably practicable" standard imposed by LLC § 702 be considered by the court to be an available remedy to the petitioner" (Kassab v. Kasab, 60 Misc3d 1204(A), 109 NYS2d 832 [Supreme Court Queens County 2018]).

The operating agreement of the entity provides that its purpose is to "own, lease, develop, manage, and operate the premises located at Caberette, Dominican Republic (the "Property")" (see, Operating Agreement, `Preliminary Statement' [NYSCEF Doc. No. 43]) and formed the defendant entity to "purchase, lease or otherwise acquire, and to hold, develop, use, lease, licenses, maintain, sell, and otherwise deal with the Property" (id at ¶2.5(a)). Thus, the entity was formed fifteen years ago and the government of the Dominican Republic has rejected plans to develop the property three times. Therefore, the property has remained undeveloped ever since. The defendants assert that considering the impasse that exists the best option going forward is to "continue to hold the Property with the reasonable expectation that its value will skyrocket if and when the regulatory environment changes, as it tends to do from time to time in the Dominican Republic" (see, Memorandum of Law in Support, page 3 [NYSCEF Doc. No. 55]). However, that option is so speculative, so abstract and so theoretical and its success is not dependent upon the efforts of any of the parties but upon policy changes in a foreign government. While arguments the entity cannot conduct its business might be premature since the property is still being held by the entity, there can be no question the goal of the entity was not to hold the undeveloped property for such a long period of tithe. The defendants argue "the Operating Agreement does not even require Ocean Sand to do any development at all" and that the entity "is now holding on to it, biding its time and lying `dormant' so to speak, until Changing market conditions permit a sale or the government finally permits development" (see, Memorandum of Law in Support, page 5 [NYSCEF Doc. No. 55]). There can really be no dispute the entity has been forced to maintain the property in its current undeveloped state due to conditions beyond its control. That does not mean the entity is legitimately pursuing the goals of the operating agreement. Rather, the entity is trying to cope with the best of a bad situation. Therefore, there are surely questions whether the entity can ever achieve the goal of developing the property. Thus, the plaintiff may be able to establish the stated goal of the entity will never be achieved.

The defendants stress that dissolution would destroy any chance of ever recovering initial investments and that really the only option is to wait and hope for the ability to develop the property in the future. While that may be true, as noted, that may never happen. Thus, further discovery and an eventual trial is necessary to evaluate the ability to sell the property, the advantages that may be gained from owning the adjoining properties and the harsh reality the property may never be developed. Therefore, the motion seeking, to dismiss the dissolution claim is denied."

RESOLVING PARENTING TIME DISPUTE BETWEEN TWO PARENTS

SS v. MS, 2022 NY Slip Op 51090 - NY: Family Court 2022:

"In this custody and visitation proceeding brought under Article 6 of the Family Court Act, respondent M.S. ("Respondent") filed this motion pursuant to Domestic Relations Law ("DRL") 245, and articles 765, and 770 of the Judiciary Law seeking (1) a finding of contempt against Petitioner, (2) an Order of Commitment, (3) an award of sole legal and physical custody of the children to Respondent, (4) that Petitioner's parenting time be limited to supervised visitation only, and for such other and further relief as the court deems just and proper. This file was transferred to the undersigned by Referee Gail A. Adams due to the nature of the motion. Following review of the motion papers and exhibits cited above, procedural history, and court-maintained audio recordings of the proceedings, the motion is granted in part.

Background

Petitioner and Respondent are the parents of four children, born XX XX, 2013, XX XX, 2015, XX XX, 2017, and XX XX, 2021 (the "children"). Beginning on December 20, 2021, the parties have engaged in extensive litigation in this court and have filed multiple petitions including family offenses, petitions for enforcement of court orders, and petitions for custody. On December 20, 2021, Respondent filed a family offense petition against Petitioner (Docket no. O-06460-21) and a petition for custody of the children (Docket nos. V-06463-22, V-06464-22, V-06465-22, V-06466-22). On the same date, a full stay away temporary order of protection was issued in favor of Respondent and the children and against Petitioner. After an appearance before the court, the stay away provisions of the temporary order of protection were removed on December 22, 2022 and the court entered a temporary order of visitation that set a schedule for Petitioner to have parenting time with the children. The temporary order of visitation also orders that "[n]either parent is to remove the child[ren] from the New York City area during the pendency of this proceeding without prior approval of the court." Following another appearance before the court on January 13, 2022, the children were removed from the temporary order of protection and the temporary order of visitation was also continued.

On January 19, 2022, Petitioner filed a custody petition to enforce the temporary order of visitation and for sanctions against Respondent (Docket nos. V-06463-21/22A, V-06464-21/22A, V-06465-21/22A, V-06466-21/22A). Petitioner filed an amended petition to enforce the temporary order of visitation on March 21, 2022, in which she alleges that Respondent "has taken the children out of the New York City area to live on Long Island without notifying courts. He has since blocked me and refused to drop off our child [R.]. Our children also aren't in school." On March 22, 2022, Petitioner filed a motion, by order to show cause, to punish Respondent for contempt for allegedly withholding the children in Long Island and refusing to give Petitioner access to them. This matter was then referred to the undersigned. On March 29, 2022, at an appearance before this court, Respondent withdrew his custody petition and the motion for contempt was dismissed as moot.

On March 30, 2022, Petitioner filed the instant a petition seeking custody of the children (Docket nos. V-02267-22, V-02268-22, V-02269-22, V-02270-22) and filed a family offense petition against Respondent (Docket no. O-02261-22). On the same date, a full stay away order of protection was issued in favor of Petitioner and against Respondent. The temporary order of protection was continued on May 3, 2022.

On May 16, 2022, an on-the-record conference was held before Referee Brenes. At the appearance, Petitioner requested that any parenting time with Respondent be supervised. The attorney for the child opposed the request for supervised visits, noting that there were no safety concerns regarding Respondent's care of the children and the children expressed that they love their father and want to spend time with him. Referee Brenes denied the request, stating that there were no grounds for supervised visits, and ordered that beginning May 20, 2022, Respondent would have weekly parenting time with the children every Friday at 5:00 p.m. until Sunday at 6:00 p.m., with pickup to occur curbside at Petitioner's home.^[1] An order memorializing this direction was issued on May 16, 2022 (S.S. affidavit in support, exhibit A), but was not emailed to the parties until May 23, 2022, due to an administrative error. The written order states, in pertinent part, "[c]ommencing Friday, May 20, 2022, and every week thereafter, the father [] may have visits with the children ... commencing at 5pm until Sunday at 6pm."

On May 20, 2022, Respondent arrived at Petitioner's residence to pick up the children, but Petitioner refused to produce the children (id. ¶ 4). The police arrived and Respondent was arrested for violating the outstanding temporary order of protection (id.). On May 21, 2022, a criminal court temporary order of protection was issued in favor of Petitioner and against Respondent (S.S. affidavit in opp ¶ 6). The criminal court order contains orders that Respondent stay away from and refrain from all communication with Petitioner, except for communications or access permitted by a subsequent order issued by a family or supreme court in a custody, visitation or child abuse or neglect proceeding (Hazelwood affirmation in opp, exhibit A).

Petitioner also did not produce the children for the weekends of May 27, 2022, June 3, 2022, or June 9, 2022. She attests that she did not produce the children for parenting time on May 20, 2022 because she did not feel comfortable sending the children for parenting time without a copy of the court's order, and did not produce the children on the subsequent dates because of the criminal court order of protection (S.S. affidavit in support at 13).

Another conference was held with Referee Brenes on June 13, 2022. At the conference, Referee Brenes reiterated that Respondent was to have parenting time with the children and issued a second visitation order reflecting the same parenting time schedule set forth in the prior order. On June 14, 2022, there was another appearance before Referee Brenes for the purpose of assigning counsel to Petitioner. On June 17, 2022, Respondent picked up the children and exercised parenting time as directed in the order (S.S. affidavit in support ¶ 7). That weekend, Respondent took the children shopping and took the three older children to a salon, where they had their hair washed and cut (id.).

On June 24, 2022, June 25, 2022, and the weekends July 1, 2022 and July 8, 2022, Petitioner again refused to produce the children for parenting time with Respondent (S.S. affidavit in support ¶ 9).^[2] Petitioner argues that she did not send the children for parenting time on these dates for a variety of reasons. First, she attests that the children were very upset when they returned home from the June 17, 2022 visit with Respondent, and in particular M was upset that her hair was cut during the visit with Respondent (S.S. affidavit in support at 13). She offers no explanation regarding the June 24, 2022 visit. She attests that when she began preparing the children for the July 1, 2022 visit, the children reported that they did not want to visit with Respondent and Ivan had an anxiety attack when informed of the visit (S.S. affidavit in opposition ¶ 5). She then called ACS who purportedly stated she did not have to send the children to the visit if they did not want to go (id.). Petitioner further states that she did not send the children for parenting time with Respondent because she was waiting for the children to be interviewed by their attorney and, for the weekend of July 8, 2022, because the children wanted to attend their cousin's birthday party (id. ¶¶ 6-9).

The instant motion was filed, by order to show cause, on July 14, 2022 and the motion was assigned to the undersigned. Petitioner reports that she has consistently sent the children for parenting time with the Respondent since July 15, 2022, and Respondent does not contradict this representation (S.S. affidavit in opposition ¶ 11).

Discussion

Respondent's moves for an order of contempt for Petitioner's failure to produce the children for court-ordered parenting time for eight weekends between May 20, 2022 and July 10, 2022. He seeks relief pursuant to Domestic Relations Law ("DRL") 245, and articles 765, and 770 of the Judiciary Law for (1) a finding of contempt against Petitioner, (2) an Order of Commitment, (3) an award of sole legal and physical custody of the children to Respondent, (4) that Petitioner's parenting time be limited to supervised visitation only, and (5) for such other and further relief as the court deems just and proper.

Civil contempt is defined as "disobedience to a lawful mandate of the court" which prejudices the rights or remedies of another party to the litigation (see Judiciary Law § 753[A][3]). Civil contempt must be proven by clear and convincing evidence (El-Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015]). The Court of Appeals has described the elements necessary to support a finding of civil contempt as follows:

First, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. Second, it must appear, with reasonable certainty, that the order has been disobeyed. Third, the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party. Fourth, prejudice to the right of a party to the litigation must be demonstrated.

(id. [internal quotes and citations omitted]). "A motion to punish a party for civil contempt is addressed to the sound discretion of the court" (Bauman v Bauman, 208 AD3d 624, 626 [2d Dept 2022]). "A hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone" (Jaffe v Jaffe, 44 AD3d 825, 826 [2d Dept 2007]). "Generally, a court may, in its discretion, grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party" (Caro v Marsh USA, Inc., 101 AD3d 1068, [2d Dept 2012]).

The first element stipulated by the Court of Appeals is satisfied here because the temporary order of visitation, and continued orders, were clear and unequivocal. Petitioner's assertion to the contrary is incorrect (Hazelwood affirmation ¶ 17-19). Not only is the written language of the order clear, but Referee Brenes reiterated at both the May 16, 2022 and June 13, 2022 conferences that Respondent was to have parenting time with the children and stated that the order of protection is subject to the temporary order of visitation. At the May 16, 2022 conference she also denied Petitioner's May 16, 2022 request that the parenting time be supervised. Her instructions, both on the record and in the written order, were clear and unequivocal. Therefore, this element is satisfied.

Second, the order was disobeyed. Petitioner attests in her affidavit that she intentionally did not send the children for the court-ordered parenting time with Respondent (S.S. affidavit in opposition ¶ 5 ["On May 20, 2022, I still had not received an order from the court, and I did not send the children for visitation."; ¶ 7 ["On July 1, 2022, I did not send the children for visit with Mr. [S.] because the children's attorney had not yet spoken with the children to address the children's concerns."]). Assuming arguendo that the court excuses Petitioner's failure to produce the children for the weekend of May 20, 2022 and subsequent weekends when the criminal order of protection restricted Respondent's access to the children, the order was nevertheless violated on the weekends of June 24, 2022, July 1, 2022, and July 8, 2022. It is undisputed that Petitioner failed to produce the children on these dates, which prevented Respondent from exercising his court ordered parenting time. Petitioner's contention that Respondent must demonstrate that she "has failed to make good faith attempts to comply with the court's order" is unavailing because no such showing is required under New York law (see El-Dehdan, 26 NY3d at 36 ["Wilfulness is not an element of civil contempt ... civil contempt is established, regardless of the contemnor's motive, when disobedience of the court's order "defeats, impairs, impedes, or prejudices the rights or remedies of a party"]).

Moreover, Petitioner's explanations for violating the court's orders are contrary to the record and, even if accepted as true, do not excuse her failure to comply with the clear order of the court. Respondent did not raise any safety concerns at either the May 16, 2022 or June 13, 2022 conference with Referee Brenes, where the attorney for the children consistently reported, at each court appearance, that the children love their father and want to spend time with him. Additionally, Petitioner was appointed counsel on June 14, 2022, and was always represented by counsel thereafter. Therefore, she had the necessary counsel and resources to petition the court to suspend visitation if appropriate but did not do so. Instead, Petitioner opted to substitute her own judgment for that of the court, which had clearly directed, on two separate occasions, that Respondent was to have parenting time with the children every weekend. Therefore, the second element necessary for a finding of contempt is satisfied.

Petitioner was also aware of the court's orders. She attended each court conference where the orders were issued and, except the May 16, 2022 order, she was in receipt of the court's orders prior to the start of the parenting time in question. Although the court order was not immediately disseminated to Petitioner due to a clerical error, it is uncontroverted that Petitioner was present at the court conference wherein the parties were directed to comply with court-ordered visitation. Petitioner does not dispute that she was aware of the court's orders at any time. Therefore, the third element is met.

Finally, Respondent's rights were prejudiced because he was not permitted to exercise the court-ordered parenting time. The natural right to visitation is a joint right of the noncustodial parent and the child (Gottlieb v Gottlieb, 137 AD3d 614, 619 [1st Dept 2016]). "Consequently, it is presumed that parental visitation is in the best interest of the child, absent proof that such visitation would be harmful" (id.) By failing to produce the children for court-ordered visitation, Petitioner prejudiced Respondent's right to exercise parenting time with the children (see Matthew A. v Jennifer A., 73 Misc 3d 1215(A), *16 [Sup Ct Monroe County 2021]["To suggest that a father is not `harmed' or `prejudiced' by the willful and intentional destruction of his negotiated joint custody rights and his right to visit with his children is an argument that violates every principle in New York's family law."]). Therefore, Respondent has demonstrated this element of civil contempt.

Whereas Respondent has demonstrated all of the elements of contempt by clear and convincing evidence, the court finds that Petitioner is in contempt of the court for failing to comply with the courts temporary orders of visitation dated May 16, 2022 and June 13, 2022. Having made this determination, the court must now determine the appropriate penalty. The purpose of any penalty imposed is not to punish but rather, to compensate the aggrieved party and to coerce compliance with the court's mandate (State of NY v Unique Ideas, 44 NY2d 345, 350 [1978]; Larisa F. v Michael S., 122 Misc 2d 520, 521 (Fam Ct Queens County 1984]). Respondent seeks an order of commitment, an award of sole legal and physical custody to Respondent, that Petitioner's parenting time be limited to supervised visitation only, and for such other and further relief as the court deems just and proper.

With respect to the request for supervised visitation, Respondent did not raise any safety concerns on this motion regarding Petitioner's parenting that warrants limiting her parenting time to supervised visitation only. Additionally, although some courts have suggested that a change in custody may result from a finding of contempt under certain circumstances (see Heintz v Heintz, 28 AD3d 1154, [4th Dept 2006), this is strongly the minority position and is not an appropriate result here. Respondent withdrew his custody petition on March 29, 2022 after Petitioner filed her own motion for contempt and does not currently have a custody petition pending before this court. If Respondent wishes to seek an order of custody, he may do so by following the proper procedure.

Finally, the court must consider Respondent's request for an order of commitment. The violations in question here took place over a period of eight weekends and Petitioner has complied with the temporary order of visitation since that time. Therefore, an order of commitment, which is designed to compel compliance with the court's orders, would serve no purpose at this time (see Rubin v Rubin, 78 AD3d 812, 813 [2d Dept 2010]). Respondent should instead be compensated for what was lost—namely, valuable bonding time with the children. Therefore, it is the order of the court that Respondent shall have, in addition to the weekend parenting schedule currently in place, makeup overnight parenting time on the following school holidays: November 11, 2022, November 24, 2022, November 25, 2022, December 26, 2022 through January 2, 2023, January 16, 2023, February 20, 2023 through February 24, 2023, April 6, 2022, and April 7, 2022. The pickup and drop off schedule for these visits shall be as follows:

November 10, 2022 at 5:00 p.m. through November 13, 2022 at 6:00 p.m.

November 23, 2022 at 5:00 p.m. through November 27, 2022 at 6:00 p.m.

December 23, 2022 at 5:00 p.m. through January 2, 2023 at 6:00 p.m.

January 12, 2023 at 5:00 p.m. through January 16, 2023 at 6:00 p.m.

February 17, 2023 at 5:00 p.m. through February 26, 2022 at 6:00 p.m.

April 5, 2023 at 5:00 p.m. through April 9, 2023 at 6:00 p.m.

Any failure on the part of Petitioner to produce the children to Respondent on these dates, absent just cause, shall result in further findings of contempt punishable by an order of commitment."

RPAPL 1304 REDEFINED

One "defense" available to homeowners has been eliminated on February 14, 2023.

Bank of Am., NA v. Kessler, 2023 NY Slip Op 804 - NY: Court of Appeals 2023:

"The question presented here is whether the inclusion of concise and relevant additional information voids an otherwise proper notice to borrowers sent pursuant to Real Property Actions and Proceedings Law § 1304, thus barring a subsequently filed foreclosure action. We hold that it does not.

I.

As a result of the "Great Recession" of 2007-2009, an estimated 6 million Americans lost their homes (Tomasz Piskorski & Amit Seru, Debt Relief and Slow Recovery: A Decade After Lehman, Working Paper 25403, National Bureau of Economic Research [December 2018], available at https://www.nber.org/papers/w25403 [last accessed Jan. 17, 2023]). In the midst of that crisis, both chambers of the New York State Legislature voted unanimously to enact Governor Paterson's Program Bill (2008 NY Senate Bill S 8143-A, enacted as L 2008, ch 472), a portion of which is codified in RPAPL 1304. Section 1304(1) requires a "lender, assignee, or mortgage loan servicer" to send a notice 90 days before it may "commence[ ] legal action against [a] borrower." That notice "shall include" several pages of specific text set out in that subdivision. The prescribed template requires the lender to fill in certain information, including:

• How many days the borrower is in default;

• The total amount of the missed payments, penalties, and interest;

• A list of [five] government-approved housing counseling agencies in the borrower's area that provide free counseling, along with the explanation that the counselors are trained to help homeowners who are having problems making their mortgage payments;

• An encouragement to take immediate steps to try to achieve a resolution, with the disclaimer that the lender cannot assure a mutually agreeable resolution is possible;

• A warning that if the borrower fails to act within 90 days (or sooner if the borrower ceases to live in the home as the borrower's primary residence), the lender may commence legal action;

• A notification that the borrower has the right to remain in the home until the borrower receives a court order requiring the borrower to vacate; and

• A statement that the enclosure is not a notice of eviction (RPAPL 1304[1]).

Section 1304(2), added by the legislature in 2009 (see L 2009, ch 507, § 1-a), provides that `the notices required by this section shall be sent . . . in a separate envelope from any other mailing or notice."^[1]

Section 1304 was enacted to address the pre-foreclosure "lack of communication" between borrower and lender, which "often leads to needless foreclosure proceedings in cases where a foreclosure alternative might otherwise have been possible" (Senate Introducer's Mem in Support, Bill Jacket, L 2008, ch 472 at 10). The Senate Sponsor further explained that the required 90-day notice "urges borrowers to work with their lender or a housing counseling agency to address their situation," so as to "provide an opportunity for borrowers and lenders to try to reach a solution that avoids foreclosure" (Letter from Senator Hugh T. Farley to Kristin Rosenstein, July 31, 2008, Bill Jacket, L 2008, ch 472 at 6). However, section 1304 was not intended to extinguish a lender's right to foreclose: "if the borrower is unable to reach resolution with the lender in the prescribed time, the lender will have the opportunity to pursue legal action against the borrower" (id.).

In 2009, Mr. Kessler obtained a loan secured by a mortgage on his home^[2] . In September 2013, he defaulted on the loan, and has made no payments on it since. Following his default, Bank of America sent a notice to Mr. Kessler pursuant to RPAPL 1304. It is undisputed that Mr. Kessler received a seven-page notice containing all of the language required by the statute. However, the last page of the notice included the following language, not found in section 1304:

"Bank of America, N.A., the servicer of your home loan, is required by law to inform you that this communication is from a debt collector.^[3]

"If you are currently in a bankruptcy proceeding, or have previously obtained a discharge of this debt under applicable bankruptcy law, this notice is for information only and is not an attempt to collect the debt, a demand for payment, or an attempt to impose personal liability for that debt. You are not obligated to discuss your home loan with us or enter into a loan modification or other loan-assistance program. You should consult with your bankruptcy attorney or other advisor about your legal rights and options.

"MILITARY PERSONNEL/SERVICEMEMBERS: If you or your spouse is a member of the military, please contact us immediately. The federal Servicemembers Civil Relief Act and comparable state laws afford significant protections and benefits to eligible military service personnel, including protections from foreclosure as well as interest rate relief. For additional information and to determine eligibility please contact our Military Assistance Team toll free at 1-877-430-5434. If you are calling from outside the U.S., please contact us at 1-817-685-6491."

In 2017, Bank of America moved for summary judgment against Mr. Kessler. Mr. Kessler cross-moved to dismiss, arguing that the inclusion of the final two paragraphs in his notice, addressing bankruptcy status and military membership, violated section 1304's "separate envelope" provision. Supreme Court agreed and dismissed the complaint (see 2017 NY Slip Op 33343[U] [Sup Ct. Westchester County 2017]). The Appellate Division affirmed on the same ground, holding that including in the envelope sent to the borrower any language not required by the statute violates its separate envelope provision (see 202 AD3d 10 [2d Dept 2021]). The Appellate Division granted leave to appeal and certified the question of whether its order was properly made (see 2022 NY Slip Op 66274[U] [2d Dept 2021]).^[4]

II.

On this appeal, Bank of America challenges only the acceptance of the RPAPL 1304 defense by the courts below. In interpreting any statute, "our goal is to give force to the intent of the legislature and we therefore begin with the plain text—the clearest indicator of legislative intent. In a manner consistent with the text, we may look to the purpose of the enactment and the objectives of the legislature. We must also interpret a statute so as to avoid an unreasonable or absurd application of the law" (see Lubonty v U.S. Bank N.A., 34 NY3d 250 [2019] [internal quotation marks and citations omitted]).

The operative statutory language here contains two requirements: (1) the notice "shall include" the specified language and information; and (2) the notice must be sent "in a separate envelope from any other mailing or notice" (RPAPL 1304[1], [2]). As to the first requirement, subdivision (1) does not say that the notice must state only the cautionary language set forth in the statute, but rather that the notice "shall include" that language. Where the "natural signification of the words employed" "ha[s] a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add or take away from that meaning" (Tompkins v Hunter, 149 NY 117, 122-123 [1896]). The word "include" suggests that more can be added to the notice. As we explained in Red Hook Cold Stor. Co. v. Department of Labor of State of N.Y., "`[i]ncluding' may be used to bring into a definition something that would not be there unless specified, or it may be used to show the meaning of the defined word by listing some of the things meant to be referred to, but not by such listing excluding others of the same kind" (295 N.Y. 1, 8 [1945]). Here, the notice indisputably contains all of the mandatory language set forth in the version of section 1304(1) in effect at the time Bank of America commenced this action. The statute says that the notice "shall include" certain information; the notice here does so.

The question then is the constraint imposed by the requirement that the envelope not contain "any other mailing or notice." The bright line rule adopted by the lower courts effectively defines "any other mailing or notice" as "any additional material or information whatsoever." Although it might be possible to read "other notice" as the lower courts did—such that any deviation from the statutory language, however minor, would void the notice—that interpretation would stand in great tension with "shall include," a phrase that contemplates the addition of something else. The statute must be given "a sensible and practical over-all construction, which . . . harmonizes all its interlocking provisions" (Matter of Long v Adirondack Park Agency, 76 NY2d 416, 420 [1990]). Application of a bright line rule here would require the use of a highly constrained definition of "other," where it is more appropriately read to mean mailings or notices "of a different kind." Here, "other mailing or notice" more aptly refers other kinds of notices, such as pre-acceleration default notices, notices disclosing interest rate changes to borrowers with adjustable-rate mortgages (12 CFR 1026.20[c]), monthly mortgage statements (12 CFR 1026.41), or notices disclosing to the borrower a transfer of the loan servicer (12 CFR 1024.33[b]) (cf. People v First Meridian Planning Corp., 86 NY2d 608, 619 [1995] [rejecting a narrow interpretation of "other securities" when such a reading "would conflict with the general remedial purposes of the securities laws"]).

A bright-line rule would also lead to nonsensical results. For example, had Bank of America sent the required statutory language verbatim, but added, "THIS IS EXTREMELY IMPORTANT, PLEASE PAY ATTENTION!", a bright-line rule would require that the notice be deemed void and the foreclosure action dismissed. Indeed, Mr. Kessler's failure to challenge either the inclusion of the Fair Debt Collection Practices Act (FDCPA) disclaimer or the minor variations in the statutory language (discussed supra n 3) stands as a tacit recognition that the notice need not consist exclusively of the statutory text.

More importantly, to the extent there is any ambiguity about how to interpret the statute, application of a bright-line rule would contravene the legislative purpose. RPAPL 1304 is a remedial statute that should be read broadly to help borrowers avoid foreclosure. In expanding the protections of RPAPL 1304 to all home loans, the legislature sought to reduce the number of foreclosures by allowing the parties to "attempt to work out the default `without imminent threat of a foreclosure action'" (CIT Bank N.A. v Schiffman, 36 NY3d 550, 555 [2021], quoting Governor's Program Bill Mem No. 46R, Bill Jacket, L 2009, ch 507 at 10; see also Letter from Mayor of City of NY, Nov. 20, 2009, Bill Jacket, L 2009, ch 507 at 13 [noting that the bill was a "significant reform in ensuring that homeowners and tenants are aware of their rights upon being faced with the threat of foreclosure"]). Prohibiting lenders from concisely informing borrowers of additional rights they may have to avoid foreclosure is manifestly at odds with that purpose.

Thus, we hold that accurate statements that further the underlying statutory purpose of providing information to borrowers that is or may become relevant to avoiding foreclosure do not constitute an "other notice." The statutorily required language informs borrowers that they are at risk of losing their homes because they are in default. It warns them that the lender may commence foreclosure proceedings if they fail to take any action to resolve the default within ninety days. It assures them that they have the right to remain in their home until they receive a court order telling them to leave the property. It provides them with the contact information for housing counseling agencies. The subject matter of the mandated language is thus a disclosure to the borrower of 1) the possibility of foreclosure, 2) the borrower's rights, and 3) the options available to the borrower to attempt to remedy the situation. That language serves the express statutory purpose of providing borrowers with information that may help them avoid foreclosure during a 90-day window established by that statute.

Here, the additional two paragraphs are directly related to the notice's subject matter and further the statutory purpose by informing certain borrowers of additional protections they may have beyond those identified in the statutory notice language. The paragraphs relate to and supplement the statutory language as applied to two distinct groups of borrowers, and thus make most sense and are most helpful when read together with the notice. In addition, the paragraph relating to bankruptcy proceedings may be particularly useful to avoid confusing borrowers who are subject to the automatic stay in bankruptcy court and to avoid potential violation of such stays by the lender (see In re Ho, 624 B.R. 748, 752-753 [Bankr ED NY 2021] [holding bankruptcy disclosure a relevant factor in determining 90-day notice did not violate an injunction against proceeding against discharged debt]). The added language is specifically directed at that concern: it states that if the borrower is in bankruptcy, the section 1304 notice "is for information only and is not an attempt to collect the debt, a demand for payment, or an attempt to impose personal liability for that debt." It thus functions as both a protection for lenders and an explanation to borrowers of additional rights they may have. Moreover, a bright-line rule against any additional language in the same envelope could conflict with certain disclosure requirements under federal law (see e.g. CIT Bank, N.A. v Neris, 2022 WL 1799479, 2022 US Dist LEXIS 99040 [SD NY, June 2, 2022, 18 Civ. 1551 (VM)]; see also supra n 3, discussing the inclusion of an FDCPA warning in the notice at issue here).

III.

The Appellate Division's concern that a case-by-case analysis of section 1304 notices would involve "exactly the type of judicial scrutiny" of mortgage foreclosure correspondence that we rejected in Freedom Mtge. Corp. v Engel (202 AD3d at 17, citing 37 NY3d 1 [2021]) is misplaced.^[5] In Engel, we held that acceleration of the mortgage debt is revoked by a voluntary discontinuance of a foreclosure action; we adopted that bright-line rule to avoid "an exploration into the bank's intent, accomplished through an exhaustive examination of post-discontinuance acts" (id. at 30). Determining whether additional language in a section 1304 notice is permissible requires no examination of intent or extrinsic evidence, but rather an objective facial determination of the language's relevance, truth, falsity, or potential to mislead or confuse.

By contrast, in CIT Bank N.A. v Schiffman, we held that lenders could prove mailing of a section 1304 notice by submitting either evidence of actual mailing or "proof of a sender's routine business practice with respect to the creation, addressing, and mailing of documents of that nature" (36 NY3d at 556). Instead of a bright-line rule, we adopted "a workable rule that balances the practical considerations underpinning the presumption [established by proof of a sender's routine business practice] against the need to ensure the reliability of [that practice] . . . in the context of notices mailed pursuant to section 1304" (id. at 558).

Consistent with our approach in Schiffman, we hold that section 1304 does not prohibit the inclusion of additional information that may help borrowers avoid foreclosure and is not false or misleading. This is a workable rule that balances the practical considerations of the lender and borrower in a way that best advances the clear statutory purpose. Where a lender includes false, misleading, obfuscatory, or unrelated information in the envelope together with the 1304 notice, courts may void such notices. But where, as here, the additional information was not false, misleading, obfuscatory, or unrelated, it should not render the notice void. A bright-line rule would be both unfair and contrary to the statutory purpose, as it would deprive borrowers of information that could help them avoid foreclosure and penalize lenders who attempt to ensure their customers are better informed. It could also result in windfalls to borrowers resulting from clerical errors and bona fide attempts by lenders to assist borrowers in avoiding foreclosure.

Accordingly, the order of the Appellate Division insofar as appealed from should be reversed, with costs, defendant Andrew Kessler's motion for summary judgment dismissing the complaint as against him denied, plaintiff's motion for summary judgment granted in accordance with this opinion, case remitted to Supreme Court for further proceedings, and certified question answered in the negative.

Order insofar as appealed from reversed, with costs, defendant Andrew Kessler's motion for summary judgment dismissing the complaint as against him denied, plaintiff's motion for summary judgment granted in accordance with the opinion herein, case remitted to Supreme Court, Westchester County, for further proceedings, and certified question answered in the negative. Opinion by Judge Wilson. Acting Chief Judge Cannataro and Judges Rivera, Garcia, Singas and Troutman concur.

[1] That language was added by the legislature in 2009 as part of legislation whose principal change was to expand the borrower protections of the 2008 law from only subprime home loans to all home loans.

[2] The mortgage was originally executed in favor of MLD Mortgage, Inc., and was later assigned to Bank of America.

[3] Mr. Kessler challenges neither the inclusion of this sentence, although it does not comprise part of the required statutory language, nor the minor variations Bank of America made to the statutory language—an inconsistency his argument for a bright-line rule fails to address and an implicit acknowledgement that some changes will not void the notice.

[4] Because Supreme Court does not appear to have resolved defendant's request for attorney's fees, we treat that order as nonfinal and therefore deem it necessary to answer the Appellate Division's certified question (see NY Const, art VI, § 3[b][4], [5]; CPLR 5602[b][1]).

[5] For reasons unrelated to those before us now, Engel was recently legislatively overruled (see L 2022 ch 821 § 8-e)."

COMMON LAW AND EMPLOYMENT CONTRACT RENEWAL

Kushner v. CARTER LEDYARD & MILBURN LLP, 2023 NY Slip Op 30171 - NY Co. Supreme Court 2023:

"Where an employment agreement is for a definite term, upon expiration of that term, should the employee remain with the employer on the same terms, the common law recognizes a presumption that the parties intend to renew the contract and a one-year agreement to continue under the same terms is implied. (see Goldman v White Plains Ctr. for Nursing Care, LLC, 11 NY3d 173, 177 [2008]; Perlick v Tahari, Ltd., 293 AD2d 275, 276 [1st Dept 2002].) However, "the common-law rule cannot be used to imply that there was mutual and silent assent to automatic contract renewal when an agreement imposes an express obligation on the parties to enter into a new contract to extend the term of employment" (Goldman, 11 NY3d at 178). "The best evidence of what parties to a written agreement intend is what they say in their writing" (Banco Espírito Santo, S.A. v Concessionária Do Rodoanel Oeste S.A., 100 AD3d 100, 106 [1st Dept 2012] [internal quotation marks and citation omitted].)

Here, the common-law presumption is operative. The 2017 Agreement is for a definite term, "ending March 31, 2018" (2017 Agreement, ¶ 1). Thus, unless the parties expressed a contrary intention, their continued performance would have created an implied contract on the same terms for successive one-year terms. (see Goldman, 11 NY3d at 177; Perlick, 293 AD2d at 276). Defendant does not point to anything in the 2017 Agreement that rebuts this presumption. While the 2017 Agreement partially provides for a process to extend the relationship, stating that "[i]f the Firm wishes to enter into a further agreement ... it shall propose terms and conditions at least sixty (60) days before the Ending Date" (2017 Agreement, ¶ 1), it does not provide for what happens in the event that the firm fails to do so. Likewise, while it states that, "[i]f no further agreement is reached ... concerning [plaintiff's] relationship to the Firm," plaintiff "shall cease to be a Partner of the Firm" as of the ending date, it does not state how "further agreement" is to be reached or what form it should take (id.). Moreover, the 2017 Agreement does not: provide that all obligations between the parties are at an end upon the expiration of the initial term; contain an integration clause; and/or require that all changes be made in writing.

Generally, in cases holding that automatic renewal may not be implied, such language is present. For example, in Goldman, the court held that the common-law presumption was rebutted "where the employer and employee agree[d] that the contract memorializes their understanding, [could] be modified only in writing and expire[d] on a specified date absent additional negotiations for a new agreement" (11 NY3d at 178). The contract in that case also provided that, upon expiration, "the employer would have no further obligations to plaintiff other than compensating her for accrued salary and benefits" (id. at 177). Likewise, in Holahan v 488 Performance Group, Inc., the court held that the "breach of contract claim fail[ed] as a matter of law," because the employment agreement "unambiguously provided that any extension of the agreement needed to be in writing" and no such writing existed (140 AD3d 414, 414 [1st Dept 2016]; see A Great Choice Lawncare & Landscaping, LLC v Carlini, 167 AD3d 1363, 1364-1365 [3d Dept 2018] [concluding that there was no contract to breach following the end date, where "the employment agreement ma(de) clear that its terms constitute(d) the entire contract, provide(d) for no renewals beyond the one-year renewal term and only permit(ed) modifications to the agreement, such as extending its provisions, if made in writing"]; see also Wood v Long Is. Pipe Supply, Inc., 82 AD3d 1088, 1089 [2d Dept 2011] [finding that no employment agreement existed at the time of the plaintiff's termination, where the agreement "clearly expressed that the term of the plaintiffs employment was for five years [,] ... that the written agreement completely encompassed the agreement between them" and that "any changes to the contract were required to be in writing"].) Here, unlike the cited cases, nothing on the face of the agreement unambiguously indicates that the parties understood that the 2017 Agreement would end unless there was an express renewal. Accordingly, the common-law presumption of an automatic one-year renewal is applicable (see Goldman, 11 NY3d at 178 [explaining that the application of the common-law presumption of automatic renewal was appropriate in cases where "its application did not contradict any express provision of the agreements"].)

Plaintiff sufficiently alleges that the 2017 Agreement renewed for two successive one-year terms, once on April 1, 2018, and again on April 1, 2019, by alleging that he continued in his position as a partner and chair of the firm's tax department, receiving the previously agreed upon compensation, until January 2020 (see Perlick, 293 AD2d at 276 [finding that the plaintiff's breach of contract claim was viable if the writing at issue "constituted an employment contract with a term of one year" as then plaintiff would have been employed for two one-year terms]). Therefore, plaintiff's allegation that—in January 2020, during the second renewal period—CLM unilaterally reduced his monthly base salary by $5,000.00, states a claim for breach of contract.

However, the downward adjustment to plaintiff's salary in January 2020 also negates any implied agreement to renew the 2017 Agreement for a third one-year term. No such renewal can be implied as of April 1, 2020. (see Schiano v Marina, Inc., 103 AD3d 462, 463 [1st Dept 2013] [explaining that changes to the plaintiff's pay and responsibilities constituted "material changes," preventing automatic renewal of the employment agreement]; Curren v Carbonic Sys., Inc., 58 AD3d 1104, 1108 [3d Dept 2009] [finding that salary increases "constituted changes in material terms of the contract, further supporting the finding that the parties did not intend the contract to automatically renew"].) Upon the expiration of the second one-year term, on March 31, 2020, plaintiff became an at-will employee (see Schiano, 103 AD3d at 463). As of April 1, 2020, there was no contract in effect for defendant to breach. Therefore, plaintiffs allegation, that, in April 2020, defendant terminated the 2017 Agreement without sufficient notice and without cause, does not state a claim for breach of contract (see id. [explaining that once the plaintiff's employment became at-will, "her termination would not constitute a breach of contract"]; see also Curren, 58 AD3d at 1108-1109 [same])."