LANDLORD AND TENANT AND ERAP AND DELAY

KENNEDY PLAZA TOWER, LLC v. Leffler, 2023 NY Slip Op 50854 - Utica City Court 2023:

"The only new substantive argument contained within the tenant's motion relates to whether the landlord can continue with this eviction proceeding despite a pending ERAP application. In this matter the tenant submitted ERAP relief on February 21, 2022 [Application Number: 01BVH] and neither party contests the absence of an ERAP determination. On June 9, 2023, the attorney for the landlord argued that despite the pending ERAP application, any stay relative to this proceeding is not applicable under the New York Emergency Rental Assistance Program of 2021. On August 3, 2023, counsel further argued that Kennedy Tower LLC has accepted no money through ERAP, both parties have complied with requests made by the program for certain documentation, and ERAP would consider such application `last' due to the subsidized nature of the housing. Mr. Levitt also argued that even if ERAP paid funds, it would not cover a substantial amount of back rent due, which in turn allows for this summary proceeding to continue. The tenant argued the petitioner `had no grounds' to be in court as they previously accepted funds from New York State in excess of $100,000.00 in violation of the `law' and administrative orders. Mr. Leffler added that the petitioner and counsel did not have `clean hands' requiring dismissal of the action.

Upon review of all applicable statutes and arguments of the parties, the court has determined to lift the stay as it relates to this proceeding as no grounds exist to preclude the issuance of a warrant of eviction. To support this conclusion the court relies upon the plain language of Part BB, Section 8, as amended by L 2021, c417, part C, subpart A, Section 4 entitled "Restrictions on Eviction" which sets forth the following:

"proceedings for a holdover or expired lease, or non-payment of rent or utilities that would be eligible for coverage under this program shall not be commenced against a household who has applied for this program or any local program administering federal emergency rental assistant program funds unless or until a determination of ineligibility is made."

the statute goes onto state:

"[If such eviction proceedings are commenced] . . against a household who has applied or subsequently applies for benefits under this program or any local program administering federal emergency rental assistance program funds to cover all or part of the arrears claimed by the petitioner, all proceedings shall be stayed pending a determination of eligibility."

The court will breakdown each provision to allow for comprehensive findings herein. The initial language concerning restrictions on evictions, precludes a summary proceeding from being commenced if an ERAP application has been made, while the second provision provides for a stay of actions where an ERAP application is made after commencement. It is important to further recognize Section 9 of ERAP which states "payments shall be made for rental payments or rental and utility arrears accrued on or after March 13, 2020. No more than 12 months of rental and/or utility assistance for arrears and 3 months of prospective rental assistance may be paid on behalf of any eligible household". The court agrees with the finding in Greenburgh Housing Authority v. Porter, ___ NYS3d ___, 2023 WL 2640351, 2023 NY Slip Op 23076 [Town of Greenburgh Just. Ct. 2023]) that when reading the "Restriction on Eviction" portion of the statue in conjunction with the "Payments" portion, the statute prohibits "the commencement of a non-payment [or holdover] proceeding against a renter who has applied for ERAP and has fifteen months or less of arrears". In the event the tenant had more than fifteen months of arrears the landlord may commence a summary proceeding in spite of a pending ERAP application as there are certain months not eligible for coverage under the program.

Turning to the second provision, the statute provides for a stay of the proceedings post-commencement, and the parties are awaiting a determination of eligibility of an ERAP application. Tenants, however, cannot enjoy perpetual stays while awaiting ERAP determinations. The plain language of the statute supports this determination as it clearly connects the stay to the eligibility window of fifteen months. Although caselaw finds itself in a sort of REM phase of jurisprudence, trial level courts have provided some lucid decisions on this issue. In EG Mt. Vernon Preservation LP v. Duncan, 77 Misc 3d 1226(A) [Mount Vernon City Ct., 2023], it was held "Equity and fairness dictates that a lift of the stay is warranted for the months due and owing over the 15 months that ERAP would cover" and the intent of the legislation "was only to provide a stay of evictions for occupants eligible for coverage". After undergoing an analysis of the ERAP statute, the court in Horizon Realty of Mt. Vernon, LLC v. Dabbs, 77 Misc 3d 1233(A) [Mount Vernon City Ct., 2023], also held that while "some 18 months after submitting his [ERAP] application, respondent's application remains pending. His eligibility has not been determined and he has not received a provisional approval letter. Based upon equity considerations, this court lifts the ERAP stay at this time." Here, the underlying proceeding is based upon the tenant holding over, the circumstances are quite similar, and the same principles apply. As such, since the ERAP application in this matter was made on February 21, 2022, the maximum period of eligibility would only extend to May of 2023.

Therefore, since the applicable stay window has passed, the court shall proceed in determining whether it should issue a warrant of based upon the proof submitted. While the petitioner has not received any rent from the tenant in over three years, any eligibility for subsidies through the Officer of Temporary and Disability Assistance or Section 8 does not preclude lifting the stay imposed by ERAP. (Bay Park Two-LLC v. Pearson, 77 Misc 3d 534 [Civ. Ct., Kings County, 2022])"

FORECLOSURE SALE HAS SURPLUS BUT HOMEOWNER CANNOT BE FOUND

MATTER OF EMIGRANT MTGE. CO. v. Long, 2023 NY Slip Op 32400 - NY: Supreme Court 2023:

"In this proceeding pursuant to CPLR 2601, Emigrant Mortgage Company (Emigrant) petitions for permission to deposit, into the court, the surplus proceeds that it obtained upon the foreclosure and sale of shares in a residential cooperative corporation. The respondent borrowers, whose shares had been foreclosed, do not oppose the petition. The petition is granted.

On January 4, 2000, Emigrant initiated a loan to Marcia Long and Anne Long (together the borrowers) in the principal amount of $125,000.00. Emigrant secured repayment of the loan by perfecting a security interest in the shares of capital stock and a proprietary lease that had been issued by residential cooperative corporation 325 East 80th Apts. Corp. in connection with Apartment 4H, 325 East 80th Street, New York, New York. Emigrant perfected the security interest by filing a UCC-1 financing form with the New York City Register on January 14, 2000, as amended January 18, 2000, supplemented March 28, 2006, and further supplemented March 20, 2008. The borrowers thereafter defaulted on their loan obligations by failing to pay the regular monthly installments of principal and interest as they became due.

Where a cooperative tenant-shareholder defaults "on a security agreement which underlies a loan related to the purchase of shares in a cooperative, the remedies found in UCC article 9 are available to the lender" (Fridman v Dime Say. Bank of N.Y., 204 AD2d 387, 388, [2d Dept 1994]). On June 27, 2022, after providing notice to the borrowers, Emigrant thus conducted a non-judicial foreclosure with respect to the shares and proprietary lease pursuant to UCC 9-610, which provides that, when a debtor defaults on a security agreement, the secured party "may sell, lease, license, or otherwise dispose of any or all of the collateral" (UCC 9-610[b]; see LI Equity Network, LLC v Village in the Woods Owners Corp., 79 AD3d 26, 30 [2d Dept 2010]). At the auction, Emigrant sold the collateral to Zeev Sheinfeld for the sum of $395,000.00. From the proceeds of the sale, the sum of $86,588.78 was paid to Emigrant in satisfaction of the borrowers' loan obligations, and an additional sum was paid to Emigrant's attorneys as and for their fees. There are no other lienholders with respect to the shares and proprietary lease. A surplus in the sum of $304,427.87 currently remains, subject to any further request for an award of attorneys' fees that Emigrant may submit to the court.

Emigrant's attorneys thereafter attempted to contact the borrowers so that they could be paid the portion of the surplus that was owed to them. On or about October 3, 2022, Emigrant's attorneys contacted Plymouth Management Group (PMG), which manages the subject cooperative apartment building. Although PMG provided counsel with a cell phone number for Anne Long, and Emigrant's attorneys left a voicemail, they never received a response. On November 14, 2022, Emigrant's attorneys performed an online search, obtained last known addresses and possible email addresses for both Marcia Long and Anne Long, and immediately mailed and emailed them a letter at the addresses obtained from the search, advising them of the surplus and providing them with information necessary for Emigrant to release the surplus to them. The borrowers nonetheless failed to respond. This proceeding ensued.

Shares in a residential cooperative corporation are considered personal property rather than real property (Matter of Pollack, 18 AD3d 555, 557 [2d Dept 2005]). In connection with the foreclosure and sale of personal property that had been the subject of a security interest, UCC 9-615(d) provides that, with certain exceptions not applicable here, the "secured party shall account to and pay a debtor for any surplus." UCC article 9 does not, by its terms, compel the secured party to deposit the surplus into court where the payees cannot be located (cf. RPAPL 1354[4] [requiring that any surplus remaining after a mortgagee's lien has been satisfied from the proceeds of sale of real property must be paid into court]), but research has revealed no authority prohibiting a court from exercising its jurisdiction pursuant to CPLR 2601 to direct such a deposit under the circumstances presented here. CPLR 2601(b) provides, in pertinent part, that

"[a]ll moneys and securities paid into court shall be delivered either by the party making the payment into court ... or to such other county treasurer as the court specially directs.... The commissioner of finance of the city of New York shall be considered the treasurer of each of the counties included within the city."

The court concludes that there is sound basis for directing Emigrant to deposit the surplus of the foreclosure sale in this case with the Commissioner of the New York City Department of Finance, who shall hold the deposit in trust for Marcia Long and Anne Long, who, in turn, shall be entitled to the payment of the amount so deposited upon their compliance with the provisions of the New York City Administrative Code and the Rules of the City of New York applicable to claims upon such funds."

PET CUSTODY LAW - CATS

And note the footnote which addresses the recent DRL amendment Domestic Relations Law § 236[B][5][d][15]) which provides: "(15) IN AWARDING THE POSSESSION OF A COMPANION ANIMAL, THE COURT SHALL CONSIDER  THE  BEST INTEREST OF SUCH ANIMAL. "COMPANION ANIMAL", AS USED IN THIS SUBPARAGRAPH, SHALL HAVE THE SAME MEANING AS IN SUBDIVISION FIVE  OF SECTION THREE HUNDRED FIFTY OF THE AGRICULTURE AND MARKETS LAW;"

Pron v Tymshan 2023 NY Slip Op 50809(U) Decided on July 21, 2023 Civil Court Of The City Of New York, New York County Ally, J.:

"Plaintiff commenced this action by summons and complaint on August 31, 2022, seeking to recover possession of an Abyssinian cat named Murchik (also called Moorchick) from defendant. Plaintiff also sought damages in the sum of $5,000. Defendant joined issue by service of her answer on November 23, 2022, asserting that defendant is Murchik's true owner and therefore entitled to possession.

On February 17, 20223, plaintiff moved for an order of seizure pursuant to CPLR § 7102. By decision and order dated May 9, 2023, the motion court denied the application and directed an immediate trial. A bench trial commenced before the undersigned on June 5, 2023, at which plaintiff was represented by counsel and defendant appeared pro se. The trial concluded on June 6, 2023 with the Court reserving decision.

Findings of Fact

Based upon the credible testimony at trial, the Court adduced the following facts: Plaintiff purchased Murchik on August 19, 2014 from a store called Pets on Lex (plaintiff's ex 1). At the time of his purchase, Murchik was eleven months old. Consistent with the tenets of the purchase contract, plaintiff ensured that Murchik received the requisite veterinary examinations and vaccinations.

Murchik resided with plaintiff continuously until January 2020, when plaintiff lost her job and subsequently, her apartment. Unable to find stable housing, plaintiff first attempted to bring Murchik with her to a shelter; however, plaintiff sought other arrangements after determining that shelter conditions were dangerous for the cat. Plaintiff was eventually connected through a mutual friend to Igor Khenkin, who agreed to care for Murchik at his home in Rego Park, Queens.

Khenkin testified that prior to taking Murchik, plaintiff gave him detailed instructions on how to feed and care for Murchick, warning him specifically to keep doors and windows closed. [*2]He cared for Murchik from May 2020 through May 2021, during which time plaintiff lived in various shelters in the Bronx and Upper West Side. Khenkin averred that during this period, he never believed that plaintiff had relinquished ownership of Murchik and believed he was "babysitting" the cat for as long as plaintiff needed (tr at 18: 23-25). Khenkin further testified that plaintiff offered to compensate him for "babysitting" several times, but he refused. While Murchik was with Khenkin, plaintiff was only able to visit him two or three time due to the difficulty she had traveling from her shelters to Rego Park.

In May 2021, defendant asked plaintiff to look after the plants in her Upper East Side apartment while defendant was traveling. Because defendant's apartment was closer to where plaintiff was staying, defendant agreed to relocate Murchik to the apartment so that plaintiff could spend more time with him. While plaintiff continued to live in a shelter, she could visit Murchik every day when defendant was traveling and a few times a month when defendant was not. Plaintiff also contributed towards Murchik's food, toys, and other supplies by sending money to defendant through Venmo and ordering from Amazon.com directly to defendant's apartment (plaintiff's exhibits 5, 6).

Plaintiff testified that, as with Khenkin, she warned defendant that Murchik should not be left unaccompanied with open windows. Defendant, however, testified that she left the windows open for Murchik's health and safety because otherwise the apartment was too hot. On August 11, 2022, Murchik was found in the basement of defendant's apartment building after having fallen from defendant's open fifth-story window. Defendant brought Murchik to the Veterinary Emergency Group ("VEG") the same night, where the examining veterinarian observed a hip fracture and dislocation, dried blood on his nose, skin wounds, pain on abdominal palpation, heart mumur, and decreased muscle mass (plaintiff's exhibit 7). Based on the VEG treatment recommendation, plaintiff and defendant brought Murchik to Garden State Veterinary Specialists for evaluation (plaintiff's exhibit 13). Murchik underwent a successful surgery on August 17, 2022 (id.).

Both sets of veterinary records relating to Murchik's fall list defendant as "owner" and as the recipient of the invoices/bills (plaintiff's exhibits 7, 13). Plaintiff testified that although she accompanied defendant to the second set of appointments and the surgery, defendant completed all the paperwork because defendant's English was better. The veterinary services were paid for by credit taken by defendant and totaled over $5,000.00 (plaintiff's exhibit 13). Plaintiff testified that these costs were ultimately split between the parties, which was not denied nor confirmed by defendant. In a subsequent text exchange between the parties, however, defendant stated to plaintiff, "I have incurred expenses that we have to take care of" (plaintiff's exhibit 8).

A few days after Murchik's surgery, plaintiff asked defendant to return Murchik to Khenkin's home because she believed defendant's apartment to be unsafe. Defendant refused. In a text exchange between the parties, defendant insisted that she became Murchik's "legal owner" and that plaintiff had given him away (plaintiff's exhibit 8). In response, plaintiff denied having gifted Murchik to defendant and state her intention to take Murchik that night (id.).

Plaintiff, accompanied by Khenkin, arrived at defendant's apartment that night. When [*3]defendant again refused to return Murchik, plaintiff called the police. The police responded to defendant's apartment but ultimately took no action, advising all present that the issue of Murchik's ownership would have to be determined in civil court. Plaintiff commenced the instant proceeding shortly thereafter on August 31, 2022.

Each party testified to her respective emotional bond with Murchik. Plaintiff stated that Murchik was her "companion," "friend," and "part of [her] family" (tr at 30: 22-23). She testified that prior to 2020, Murchik slept in bed with her and she often took Murchik for walks in Central Park. Plaintiff additionally claimed that she has been diagnosed with anxiety and depression, and that her treating psychiatrist has recommended the assistance of an emotional support animal (see also plaintiff's exhibit 3).

Defendant also attested to her strong emotional bond with Murchik. She testified that since Murchik came into her care, she expended significant time and resources to help him recover from his surgery, to cure what appeared to be a sinus infection, and that when feeding him always made sure to include foods he liked such as fish, chicken, and shrimp (tr at 112: 14-25; 113: 1-4).

On December 1, 2022, plaintiff signed a lease for an apartment in Brooklyn, where she has since resided with her mother (plaintiff's exhibit 9). Plaintiff testified that she is now fully employed as a personal shopper and is financially capable of caring for herself, her mother, and Murchik.

In April 2023, defendant relocated from the Upper East Side apartment to Brooklyn and brought Murchik with her. Defendant testified that she previously traveled frequently for both work and leisure: two weeks after Murchik's surgery, defendant traveled to Italy, a month later to the Dominican Republic, and a few months after that to Rome and Barcelona. However, defendant also averred that since changing jobs in February 2023, she was no longer required to travel for work and that her husband was available to care for Murchik when she traveled for leisure. Murchik was residing with defendant in her Brooklyn home as of the date the trial concluded.

Discussion

Traditionally, New York courts have treated companion animals as personal property; as with other personal property, courts resolved disputes by evaluating which party had the superior possessory right to the animal (Travis v Murray, 42 Misc 3d 447 [Sup Ct, New York County 2013]). More recently, however, courts have recognized the myriad ways in which companion animals are much more to their owners than simple possessions. As developed first in Raymond v Lachmann (264 AD2d 340, 341 [1st Dept 1999]) and refined by the court in Travis v Murray [*4](42 Misc 3d 447 [Sup Ct, New York County 2013]),[FN1] courts have increasingly applied a "best for all concerned" standard that balances a strict property analysis with the more extensive interests analysis involved in child custody cases (see, e.g. Mitchell v Snider, 51 Misc 3d 1229[A][Civil Ct, New York County 2016]; Ramseur v Atkins, 44 Misc 3d 1209[A][Civ Ct, New York County 2014]; Hennet v Allan, 43 Misc 3d 542 [Sup Ct, Albany County 2014])).

Following the "best for all concerned" approach, this Court will examine not just those factors that would weigh towards the parties' respective possessory rights, but also "intangible factors such as why each party would benefit from having the [pet] in his or her life and why the [pet] has a better chance of prospering, loving, and being loved in the care of one party or the other" (Mitchell v Snider, 51 Misc 3d 1229[A] at *2 [Civ Ct, New York County 2016]. Relevant facts include those that reflect each party's ability to meet the animal's physical and emotional needs, including financial circumstances, access to outdoor activities, opportunities for exercise and socialization, access to veterinary care and necessary supplies, and the time required to meet these needs on a daily basis.

First, the Court finds that the traditional markers of possessory right weigh in favor of plaintiff. It is undisputed that plaintiff purchased Murchik on her own and was solely responsible for Murchik's care for over five years. It was only when plaintiff lost her job and housing that she left Murchik in others' care. Despite having no permanent home, plaintiff continued to financially support Murchik by ordering supplies and making payments to defendant through Venmo at least through August 2022.

While defendant cared for Murchik for over one year, there is nothing in evidence that indicates plaintiff ever intended to permanently relinquish Murchik to defendant or that would otherwise give defendant a reasonable basis to believe so. It is undisputed that there was no agreement between the parties, that defendant never purchased Murchik from plaintiff, and that plaintiff never stated explicitly to defendant that Murchik was a gift. Though defendant testified that plaintiff's financial contributions only covered a portion of the care costs, that plaintiff made the payments is a clear sign of plaintiff's intent to maintain ownership. Further, to the extent that defendant argues that plaintiff abandoned Murchik when she left him at defendant's apartment, the Court notes that "[a]bandonment is not a defense" to replevin (Leconte v Lee, 35 Misc 3d 286, 288 [Civ Ct, New York County 2011][finding that the limited abandonment of a dog named Bubkas was not a valid defense in the context of a motion to determine the superior possessory right to chattel], citing Valenzia v Valenzia, 67 AD2d 879 [1st Dept 1979]).

With regard to those "intangible factors," the evidence is less dispositive. Both parties [*5]have attested to their ability and willingness to provide for Murchik's needs. Both parties are currently gainfully employed and have stable residences. Both parties have demonstrated knowledge of what Murchik's care entails, including his preferred food, how much litter to buy, and a willingness to comply with veterinarians' recommendations. Each party introduced into evidence photos depicting her interacting with Murchik, and in each of the photographs Murchik appears calm, comfortable, and safe (plaintiff's exhibit 2; defendant's exhibit A)

Notwithstanding the parties' respective arguments, the Court does not find that either party poses substantially more risk to Murchik's health and safety than the other. Defendant contends that plaintiff and Khenkin did not adequately care for Murchik because the cat demonstrated symptoms of a sinus infection while he moved to defendant's apartment. However, absent the direct testimony of a veterinarian or other expert, the Court is not able to directly attribute Murchik's condition to his treatment or neglect by any party.

Murchik's recent injuries and subsequent surgery give the Court slightly more cause for concern. Plaintiff asserts that Murchik's fall and resultant injuries were the direct cause of defendant's carelessness in leaving the window open after being warned not to. While defendant disputes her culpability in these events, there is no dispute that Murchik suffered injuries resulting from a long fall that could have been prevented with more attention. Notwithstanding, the conduct of the parties in ensuring Murchik received emergency treatment indicates that both care very much about his health and wellbeing.

While neither party has demonstrated a clear advantage with regard to Murchik's health and care, the Court acknowledges that Murchik was in plaintiff's exclusive care for over five years, and that even when living in shelters she continued to financially contribute to Murchik's care. The Court also acknowledges that defendant spent significant time and resources on Murchik, particularly relating to his surgery and recovery. However, plaintiff has otherwise established a clear possessory right under the traditional analysis and has consistently manifested her desire to support Murchik and her intent to retrieve him when her circumstances stabilized. Defendant's efforts to care for Murchik, while commendable, are not sufficient to overcome plaintiff's showing, especially as plaintiff has demonstrated that she is now financially able provide for Murchik's physical and emotional needs. The Court finds therefore that returning Murchik to plaintiff is in the best interest for all concerned.

Plaintiff's remaining claim for money damages totaling $5,000 is dismissed, as the evidence at trial did not establish any bases for damages.

Conclusion

It is clear that both parties have developed a close emotional connection to Murchik. It is also clear that both parties were distressed and saddened by the injuries he suffered and that both were willing to take him to get the treatment he required. Both parties have demonstrated that at present, they have the financial ability to provide for Murchik's physical care and the willingness to provide for his emotional needs. However, plaintiff has established her initial purchase of Murchik, over five years of exclusive care, and her consistent desire to support him and intent to eventually retrieve him. Plaintiff has further demonstrated that she is now able to financially provide for Murchik's physical needs and that she has the knowledge and familiarity with him to keep him safe and to provide for his emotional needs. As such, the Court finds that returning Murchik to plaintiff is in the best interest for all concerned.

Accordingly, it is hereby

ORDERED and ADJUDGED that plaintiff is awarded full possession of Murchik to the complete exclusion of defendant; and it is further

ORDERED and ADJUDGED that plaintiff's claim for money damages is dismissed; and it is further

ORDERED that defendant is directed to deliver Murchik to plaintiff within fourteen days of the date of entry of this decision and order; and it is further

ORDERED that plaintiff shall serve upon defendant a copy of this decision and order with notice of entry within seven days thereof.

This constitutes the decision, order and judgment of this Court.

New York, NY
July 21, 2023
Hon. Shahabuddeen A. Ally, A.J.S.C. Footnotes

Footnote 1:The Court observes that as applied to matrimonial cases, Travis has since been superseded by statute as recognized in L.B. v C.C.B., 77 Misc 3d 429 [Sup Ct, Kings County 2022]). The superseding statute codifies the requirement that a court consider "the best interest" of a companion animal when awarding possession in a divorce or separation proceeding (Domestic Relations Law § 236[B][5][d][15])." 

NEIGHBOR DISPUTES - WHEN CAUSE OF DISTURBANCES INVOLVE DISABILITY AND MENTAL HEALTH

River Place II, LLC v. Daniel C. Hurd, Date filed: 2023-06-26, Court: Civil Court, New York, Judge: Judge Karen May Bacdayan, Case Number: 301012-21:

DECISION/ORDER This is a nuisance holdover proceeding that was settled with a probationary stipulation on July 12, 2023. (NYSCEF Doc No. 25.) Petitioner claimed that respondents were engaging in loud and violent arguments inside their apartment and in the common areas which disturbed other tenants and caused them to fear for their safety. Pursuant to the agreement, a judgment entered and a warrant issued. Execution of the warrant was stayed for respondents to refrain from the type of behavior alleged in the notice of termination. (NYSCEF Doc No. 1 at 5, notice of termination.) The stipulation also provided that respondents “have the right to seek a hearing if they dispute the allegations in any motion to restore.” (NYSCEF Doc No. 25, probationary stipulation 5.) Respondents allegedly breached the stipulation, and petitioner caused a notice of eviction to be served on April 3, 2023 with an earliest eviction date of April 18, 2023. On April 11, 2023, respondent, Daniel Hurd,1 filed an order to show cause to stay execution of the warrant. (NYSCEF Doc No. 29.)

Respondent’s Order to Show Cause

Respondent’s order to show cause seeks a stay of the execution of the warrant, a hearing, reinstatement of the probationary period, and a satisfaction of judgment piece and if not an order from the court that the clerk mark the file as such, reinstatement of the probationary period. Referring to paragraph 5 of the stipulation, respondent invokes his “right to know what they claim and be heard on that.” (NYSCEF Doc No. 30, Hurd affidavit 35.)

In his affidavit, respondent claims that he was sober for 10 months without incident until he was attacked on the street May 23. 2023. His briefcase containing his cell phone and medication was stolen, and he was thrown to the ground, suffering cuts and abrasions. (Id. 11.) He was unable to refill his prescriptions because they had just been filled. (Id. 12.) Over the next two days, the trauma from the attack and the lack of medication caused him to have a mental breakdown. “I was losing cognitive skills. I had barely slept, not eaten and without medication…. I started becoming paranoid, having hallucinations and other bipolar symptoms. I remember very little about what I did in the days after the attack.” (Id. 17.) Two days after the attack, he recounts that he lost touch with reality. He believed his apartment was his childhood home, that his partner, Ali Reza, was his father, and that he had been beaten by Reza. (Id. 18.) “Out of concern” for respondent, Reza called security. (Id. 19.) Security called the police. When the police arrived, respondent reported to them that the cuts and bruises from the attack were caused by Reza. The police arrested Reza on charges of domestic violence. (Id. 20.) Respondent now vehemently denies that Reza “never hit me or abused me physically in any way.” (Id.) Respondent was alone for the next couple of days while Reza was being detained. and he “spiraled.” (Id. 21.)

Respondent attaches affidavits from three professional healthcare workers, and a letter from his neighbors to support his account of the incident. A letter from a psychiatrist. Dr. Leonid Izrayelit, states that respondent suffers from “bipolar disorder” and that the “traumatic event [on March 23, 2023] induced acute stress disorder with psychotic episode, as well as exacerbation of bipolar disorder.” (NYSCEF Doc No. 33, Izrayelit letter.) “Currently,” Dr. Izrayelit states “[respondent] is stabilized on his medications, rational, with no signs of psychosis or mania. Mr. Hurd is not an acute danger to self or others.” (Id.) Respondent provides another letter, dated April 6, 2023, from Dr. Jason Kindt, who is employed by the Mount Sinai Friedman Health Center. According to the Mount Sinai website. Dr. Kindt is a primary care doctor.2 Kindt states that he is aware of respondent’s “psychiatric emergency with a disturbance at home,” but he “do[es] not expect any further disruptions as he adjusts to his new medical plan.” (NYSCEF Doc No. 34. Kindt letter.) Allyne Spinner, a licensed clinical social worker and clinical director at First Steps to Recovery, provided a letter stating that respondent has been a client since 2021 and “has 9 months of sobriety.” Due to his assault, Spinner states respondent “had a psychotic break” and “as a result of the result of the assault he should not be evicted.” (NYSCEF Doc No. 35, Spinner letter.) Finally, respondent provides a copy of an April 4, 2023 email from his neighbors, which states that they live in apartment PHB-S60B and have been respondent’s neighbors for 10 months as of the date the email was received. (NYSCEF Doc No. 36, Solomon email.) Respondent’s neighbors’ testimonial states

“[My partner] and I both understand the important role that medications play in many of our lives!! In the time we have been neighbors, we have heard some arguments coming from your home, but we have heard that from other neighbors and even ourselves at times lol. One thing we want to make 100 percent crystal clear, there was NEVER any feeling of being in danger or any feeling of threat or any indication of possible impact to public safety at all!!!” (Id.)

Petitioner’s Opposition

In opposition, petitioner attaches an affidavit from Janelle Allende who is the property manager for the building and employed by petitioner’s managing agent. Allende cites to 36 alleged incidents between May 2020 and June 2021, all predating the commencement of the probationary period under the stipulation. (Id. 3; NYSCEF Doc Nos. 48-49. petitioner’s exhibit F and G, incident logs.) She avers to only four alleged post-probationary stipulation incidents, each of which she claims breached the probationary agreement, and three of which occurred on March 25, 2023 or March 26, 2023: 1) An October 11, 2022 incident during which respondent and his partner, Reza, purportedly had an altercation requiring the police to be called; 2) a March 25, 2023 incident at 10:34 p.m. during which Reza was arrested on domestic violence charges; 3) a March 26, 2023 incident occurring at 3:58 a.m. during which respondent “screamed into his cellphone” in the common areas of the building; and 4) a March 26, 2023 incident occurring at about 4:00 a.m. during which respondent allegedly banged loudly on the elevator door creating “unreasonably loud noises.” (Id. 8.) Allende avers that [p]etitioner would not have agreed to enter into the Probationary Stipulation if it did not explicitly state that Respondents do not have a right to cure a violation thereof (emphasis added).” (Id. 7.)

Another affidavit from Danush Delihasani, a concierge, describes receiving a complaint from another resident on March 25, 2023 at approximately 9:42 p.m. (NYSCEF Doc No. 41, Delihasani affidavit 2.) The resident had called to report an altercation in the subject premises. After calling security, Delihasani proceeded to the premises with a security officer where he heard respondent “screaming for help.” (Id. 3.) “It was clear from the various other noises emanating from the Premises that Respondents were engaged in a physical fight with each other.” (Id. 4.) He states that he witnessed the police leading Reza out of the building in handcuffs. (Id. 6.) An affidavit from Lorvens Augustine, the security officer who accompanied Delihasani, to the apartment, recounts hearing respondent “screaming for help” and that he personally witnessed the police escort Reza from the premises. (NYSCEF Doc No. 42, Augustine affidavit.) Also attached to petitioner’s opposition are four emails from other residents in the building, all pre-dating the probationary stipulation. (NYSCEF Doc Nos. 44-47.) Finally, petitioner attaches an “incident log” comprises approximately four pages of notes made by various building employees after the date of the probationary stipulation in response to complaints lodged by other residents. (NYSCEF Doc No. 59.) The rest of the log is irrelevant to the probationary period. Regardless, petitioner has focused in its opposition on only four incidents, three of which occurred on March 25, 2023 and March 26, 2023, and one of which occurred in October 2022, but which is not explicated in the supporting affidavits.

At oral argument, petitioner opposed respondent’s request for an adjournment or a hearing as causing unnecessary delay which is prejudicial to other residents and staff who fear for their safety.

DISCUSSION

In recent years, courts have become increasingly amenable to finding that a handicapped tenant is entitled to protection under the Fair Housing Act in the form of a reasonable accommodation if necessary to maintain their tenancy and an equal opportunity to use and enjoy a dwelling. (See generally 42 USC §3604, Fair Housing Act ["FHA".) No specific diagnosis is required to entitle a tenant to protection under the FHA, and in fact a handicap may even be deduced from the "observations of a lay person." (Prospect Union Assocs. v. DeJesus, 167 AD3d 540, 543 [1st Dept 2018].) In these decisions, a reasonable accommodation has been granted in the form of a stay on the execution of a warrant of eviction. In some cases the stay is for a finite amount of time; in others, the execution of the warrant is permanently stayed. The failure of a landlord to provide a reasonable accommodation is an unlawful discriminatory act under the FHA. (42 USC §3604 [f] [2] [A], [f] [3] [B].) In order to determine whether a reasonable accommodation is warranted in cases such as this one, the court must hold a hearing. In Prospect Union Assocs. v. DeJesus, 167 AD3d 540, 544 (1st Dept 2018) the Appellate Division First Department held:

“Housing Court failed to consider whether with ongoing supportive services and suitable monitoring tenants can continue to live an orderly existence in the apartment without harming or affecting their neighbors (RCG-UA Glenwood, LLC v. Young, 9 Misc 3d 25 [App Term, 2d Dept, 9th & 10th Jud Dists 2005] [tenant offered evidence of his improved behavior after enrollment in a treatment program]). We remand for a hearing to determine whether the accommodations proposed by the guardian are reasonable, whether they will curtail the risk of the nuisance recurring, and whether there should be a permanent stay of eviction (see Matter of Strata Realty Corp. v. Pena, 166 AD3d 401 [1st Dept 2018]).”

Landlords are not obligated to accommodate dangerous tenants at the expense of the health and safety of other residents. However, landlords are required to demonstrate that there is no reasonable accommodation that “will eliminate or acceptably minimize the risk posed by the handicapped tenant.” (529 W. 29th LLC v. Reyes, 63 Misc 3d 65, 67 [App Term, 1st Dept 2019], citing Sinisgallo v. Town of Islip Hous. Auth., 865 F Supp 2d 307, 341 [EDNY 2012]. “The overarching guiding factor…is that a landlord is obligated to provide a tenant with a reasonable accommodation if necessary for the tenant to keep his or her apartment.” (De Jesus at 543.)

In 529 W. 29th LLC v. Reyes, 63 Misc 3d 65, 67 (App Term, 1st Dept 2019), the tenant was facing eviction for lighting fires during psychotic episodes. The Appellate Term First Department upheld the trial judge who found, through the testimony of a licensed clinical psychologist, that the tenant suffered from schizophrenia and unspecified mood disorder. Thus, the tenant was properly considered “handicapped within the meaning of the FHA.” (Reyes at 66.) A psychologist testified that Reyes took “prescribed medication for his illness and is seen frequently by medical and social service providers…and has shown marked improvement since he started in [a] program.” The court founds this testimony compelling, and ordered a stay of execution of the warrant for a six-month probationary period. On appeal, the Appellate Term found this exercise of discretion to be an “objectively reasonable” accommodation. (Reyes at 68.)

Guided by this controlling caselaw, it would be erroneous for the court to accept petitioner’s allegations at face value and, together with respondent’s explication of the issues he purportedly faced on March 25, 2023 and March 26, 2023 and based on the negotiated “no cure” provision of the two-attorney stipulation, allow for the warrant of eviction to execute without a hearing. However, respondent’s attorney was careful to barter for respondent’s right to seek a hearing; and “[c]ourts are obliged to interpret a contract so as to give meaning to all of its terms (internal quotation marks and citations omitted.).” (150 Broadway N.Y. Assocs., L.P. v. Bodner, 14 AD3d 1 [1st Dept 2004].)

Here, on the other hand, the “no cure” proviso and the “right to seek a hearing” proviso of the stipulation are incompatible and cannot be reconciled. A party cannot have a right to seek a hearing which a judge may grant in their discretion, and simultaneously stipulate to what the judge must determine. It would be a pointless waste of judicial resources to hold a hearing if the ultimate outcome is already pre-determined by a stipulation. It would render our judicial system meaningless if litigants could decide to strip judges of their decision-making power. Here, there may have in fact been a breach of the probationary stipulation. However, respondent has averred that said breach was a direct result of a handicap. Thus, under the FHA and controlling case law in this judicial department, petitioner must demonstrate that there is no reasonable accommodation that “will eliminate or acceptably minimize the risk posed by the handicapped tenant,” and the court must determine what, if any, reasonable accommodation is warranted.

Moreover, while respondent does not so argue, the court finds the “no cure” provision of the stipulation to be void as against public policy. “A contractual provision [may] be unenforceable where the public policy in favor of freedom of contract is overridden by another weighty and countervailing public policy.” (159 MP Corp. v. Redbridge Bedford, LLC, 33 NY3d 353, 360 [2019].) “Public policy is found in the State’s Constitution, statutes and judicial decisions….” (Schultz v. Boy Scouts of Am., Inc., 65 NY2d 189 [1985].) Given the plethora of housing protections for the disabled provided by federal laws, New York State and New York City Human Rights Laws, and judicial opinions such as De Jesus and Reyes, supra, it is evident that the no cure provision in the parties’ stipulation — which abridges respondent’s right for the court to determine if, under the circumstances, he should be afforded a reasonable accommodation — violates the strong public policy to protect persons with disabilities from housing discrimination.

Accordingly, it is

ORDERED that the parties shall appear in Part F, Room 523, of the New York County Civil Courthouse on August 11, 2023 at 2:15 for a hearing on whether respondent is entitled to an accommodation, and, if so, what that accommodation should be; and it is further

ORDERED that the parties shall exchange witness lists one week prior to the hearing date.

This constitutes the decision and order of this court.

So Ordered:

Dated: June 26, 2023

Footnotes

1. Hurd, upon whose affidavit this decision is made, is referred to as "respondent" hereinafter. Undertenant, Ali Reza, is referred to as "Reza."

2. Kindt professional profile available at utm_medium=physician_listing&utm_campaign=YEXTMD&utm_term=primarycare&y_source=1_MTE4MzUwMzgtNDgzLWxvY2F0aW9uLndlYnNpdGU%3D (last accessed June 23, 2023)."

CHILD SUPPORT: HEALTH COVERAGE AND AGE 29 LAW

The moral of this case: draft the language carefully: If the goal is to have a parent provide health insurance for a child to age 26 or as long as permitted under the Affordable Care Act, then the language in an agreement should so specify. If the goal is to have a parent provide health insurance for a child to age 29 or as long as permitted under the Age 29 Law, then the language in an agreement should so specify.

BD v. ED, 2023 NY Slip Op 3971 - NY: Appellate Div., 1st Dept. 2023:

"HIGGITT, J.

Defendant appeals from an order of the Supreme Court, New York County (Ariel D. Chesler, J.), entered May 24, 2022, which, to the extent appealed from as limited by the briefs, denied defendant mother's motion to direct plaintiff father to pay for continued medical insurance coverage under New York State's Age 29 Law for the parties' eligible children, to reimburse the daughter for payments already made, and for counsel fees.

This appeal involves the interplay of the specific language of a stipulation of settlement and agreement between parties in a matrimonial action relating to the plaintiff father's obligation to maintain and pay for health insurance for the parties' adult daughter, and a 14-year-old New York State insurance law — the Age 29 Law (L 2009, ch 240) — that expands access to health insurance for unmarried children of insureds. The stakes here: whether plaintiff's obligation to maintain and pay for the daughter's health insurance terminated when she turned 26 years old (when her coverage as a dependent under plaintiff's employer-subsidized family-health-insurance policy terminated) or whether that obligation continues through the age of 29 (when her ability to obtain coverage pursuant to the Age 29 Law ceases). Based on the clear and unambiguous language chosen by the parties to frame plaintiff's obligation to maintain and pay for health insurance for the daughter and the demands of the Age 29 Law, we conclude that plaintiff is obligated to pay for health insurance coverage that his daughter obtained pursuant to that law.

I.

The parties married on May 26, 1996, and have two children: a daughter, T.D., and a son, A.D., who is one year younger than T.D.

In June 2013, plaintiff commenced this divorce action. On December 8, 2014, the parties entered into a so-ordered stipulation resolving their disputes. By a written stipulation of settlement and agreement (the agreement), effective February 17, 2015, the parties augmented the terms of the so-ordered stipulation.^[1] Article VI of the agreement addresses child support. Section 6.3 is at the center of this appeal.

That provision, which concerns the children's medical insurance and expenses, provides that

"The Children are currently covered under [plaintiff's] medical insurance (United Healthcare Choice Plus, Health Plan [xxxxx] xxx-xxxxx-xx, Member ID: xxxxxxxxx, Group Number: xxxxxx). [Plaintiff] shall keep and maintain for the benefit of the Child such health and medical insurance plans greater than or equal to the coverage presently provided by his employer until the latter of (i) each Child is emancipated pursuant to this Agreement; (ii) each Child is no longer allowed by law to be covered under a parent's insurance."

At the time the parties entered into the agreement, T.D. was 19 years old, and was covered as a dependent under the family health insurance policy (the family policy) plaintiff maintained through his employer, which the employer subsidized.

The judgment of divorce was entered in May 2015.

II.

In March 2022, when T.D. was 26 years old, defendant sought an order, among other things, directing plaintiff to maintain and pay for health insurance for T.D., and to reimburse T.D. for any health insurance premiums she had paid. Defendant, pointing to § 6.3 of the agreement, contended that plaintiff was obligated to maintain and pay for T.D.'s health insurance until she "is no longer allowed by law to be covered under a parent's insurance"; the Age 29 Law requires health insurers to provide coverage for an unmarried child of an insured through age 29; and, therefore, the daughter was allowed by law to be covered under plaintiff's insurance.^[2]

Plaintiff opposed defendant's motion, maintaining that § 6.3 is ambiguous and that the parties never contemplated that he would be responsible for the children's health insurance after they turned 26. Plaintiff asserted that it was customary for a child's health insurance to end when the child reaches age 26. Twenty-six is not a random number: under the Affordable Care Act (42 USC § 18001 et seq.), health insurers are generally required to make health insurance coverage available to the children of insureds until the children reach age 26.

In opposition to the motion, plaintiff submitted an affidavit describing the significant financial consequences to him of maintaining coverage for T.D. pursuant to the Age 29 Law, because his employer would not subsidize coverage for the daughter pursuant to that law. Plaintiff also submitted the affidavit of his counsel during the divorce proceedings, who averred that there were no discussions during his representation of plaintiff that the obligation to maintain health insurance for the children would continue after they turned 26. Counsel further averred that, although the Age 29 Law went into effect in 2009, approximately six years before the parties entered into the agreement, neither he nor plaintiff was aware of that law, and that the reference to the "law" in § 6.3 was to the Affordable Care Act.^[3] Plaintiff also submitted correspondence from an individual in his employer's human resources department and an individual employed by his insurer that indicated that, upon turning 26 years old, T.D. was no longer eligible for coverage under his family plan, although she was able "to purchase continued coverage" pursuant to the Age 29 Law through the employer's plan.

In a thorough decision, Supreme Court denied defendant's motion (B.D. v E.D., 75 Misc 3d 828 [Sup Ct, NY County 2022]). The court concluded that the phrase until "each Child is no longer allowed by law to be covered under a parent's insurance" in § 6.3 is ambiguous, i.e., is susceptible of more than one meaning. The court found that the pertinent language of § 6.3 could be read to require plaintiff to maintain health insurance for T.D. as long as she is allowed by law to be a dependent under plaintiff's family plan, which would be until she turns 26. Alternatively, the language could be read to require plaintiff to maintain health insurance for T.D. through age 29 pursuant to the Age 29 Law. The court determined that "a practical and reasonable interpretation of the language is that [p]laintiff would be obligated to maintain health insurance for the children so long as they could legally be dependents under his plan" (id. at 835). Had the parties intended to place on plaintiff the burden of maintaining health insurance for T.D. pursuant to the Age 29 Law, the court observed, they could have specified so. Because it found § 6.3 ambiguous, the court considered the affidavits and other extrinsic evidence, and highlighted plaintiff's matrimonial counsel's averments that the provision of coverage after a child turned 26 was not contemplated by the parties.

III.

On her appeal, defendant argues that the agreement unambiguously required plaintiff to maintain health insurance for T.D. pursuant to the Age 29 Law because T.D. was allowed by that law to be covered under plaintiff's insurance. Defendant argues, too, that if the parties intended to limit plaintiff's obligation under § 6.3 to that imposed by the Affordable Care Act, they could have referred to that specific law. Similarly, defendant asserts that plaintiff's obligation under § 6.3 is not limited to maintaining and paying for coverage for T.D. so long as she is his dependent. Because the agreement is unambiguous, contends defendant, consideration of extrinsic evidence, such as the affidavits submitted by plaintiff and his prior counsel, is not permissible.

Lastly, defendant insists that if the agreement is ambiguous, further proceedings before the trial court are necessary to ascertain the meaning of the ambiguous language.

Plaintiff counters that the agreement unambiguously supports his reading of the document: that plaintiff was not responsible for maintaining T.D.'s health insurance after she turned 26. Plaintiff argues that, upon reaching 26 years old, T.D.'s coverage under his family policy terminated consistent with the requirements of the Affordable Care Act, and the new policy afforded to T.D. pursuant to the Age 29 Law was not provided "under [plaintiff's] insurance" within the meaning of § 6.3. Plaintiff also argues that if the agreement is ambiguous, his evidence demonstrates that the parties intended to limit his obligation to maintain health insurance for T.D. until she reached 26. Plaintiff notes that the scope of coverage under T.D.'s policy pursuant to the Age 29 Law is different from that afforded under his family policy; that she carries the policy pursuant to the Age 29 Law in her own name (as opposed to being a dependent on plaintiff's family policy), and that her policy pursuant to the Age 29 Law costs $1,300 per month and plaintiff's employer pays no portion of it. Ultimately, according to plaintiff, the policy pursuant to the Age 29 Law is an independent policy, not coverage "under [plaintiff's] insurance."

IV.

A stipulation of settlement resolving a matrimonial action is a contract, and is therefore subject to basic contract interpretation principles (see Rainbow v Swisher, 72 NY2d 106, 109 [1988]).

A contract is interpreted in accordance with the intent of the parties and the best evidence of their intent is what they express in their written agreement (Schron v Troutman Sanders LLP, 20 NY3d 430, 436 [2013]; Greenfield v Philles Records, 98 NY2d 562, 569 [2002]). Clear, unambiguous contractual terms must be enforced according to their plain meaning (Greenfield v Philles Records, 98 NY2d at 569; see Ellington v EMI Music, Inc., 24 NY3d 239, 244 [2014]); when the terms are clear and unambiguous, the court cannot look beyond the four corners of the contract (Ellington v EMI Music, Inc., 24 NY3d at 244; see Kass v Kass, 91 NY2d 554, 566 [1998]).

A contract is unambiguous if, on its face, it is reasonably susceptible of only one meaning (see White v Continental Cas. Co., 9 NY3d 264, 267 [2007]; Greenfield v Philles Records, 98 NY2d at 569-570; see also Ellington v EMI Music, Inc., 24 NY3d at 244). Whether a contract is ambiguous is determined by examining the entire agreement and considering the relation of the parties and the circumstances under which the agreement was entered, with the wording to be considered in light of the obligation as a whole and the intention of the parties manifested thereby (see Kass v Kass, 91 NY2d at 566). A court should not strain to find an ambiguity in contractual terms (see Uribe v Merchants Bank of N.Y., 91 NY2d 336, 341 [1998]).

The language at the center of the parties' dispute — "each Child is no longer allowed by law to be covered under [plaintiff's] insurance" — contains two separate phrases that have engendered controversy in this litigation. The first is "allowed by law," and the second is "covered under [plaintiff's] insurance."

With regard to the first phrase, in light of the context of the agreement as a whole, the meaning of that phrase is clear and unambiguous: plaintiff must maintain and pay for health insurance for T.D. so long as any relevant law permits coverage. To limit the law or laws applicable in § 6.3 would distort the meaning of the phrase "allowed by law" (see Consedine v Portville Cent. School Dist., 12 NY3d 286, 293 [2009]). If the parties, both of whom were represented by counsel at all relevant times, wanted plaintiff's obligation under § 6.3 to be tied to or controlled by any particular law or laws, they could have specified the normative authority that defined plaintiff's duties. They chose not to do so. Relatedly, if plaintiff wanted to limit his § 6.3 obligation, he could have bargained for express limitations; he opted to assent to broad terms.

As disclosed above, two relevant laws have been identified by the parties that inform the meaning of § 6.3: the federal Affordable Care Act and New York's Age 29 Law.

As observed by Supreme Court (and the parties do not dispute), "[u]nder the Affordable Care Act, effective September 23, 2010, plans and insurers that offer coverage to children on their parents' plan were required to make the coverage available until the adult child reaches the age of 26" (75 Misc 3d at 830 [internal citation omitted]).

New York's Age 29 Law, which was effective approximately one year before the Affordable Care Act, amended various sections of the State's Insurance Law to "expand[] access to health insurance by allowing unmarried children through age 29, regardless of financial dependence, to be covered under a parent's group health insurance policy" (Assembly Mem in Support, Bill Jacket, 2009, ch 240, Purpose [emphasis added]).^[4] Specifically, the Age 29 Law "expands access to health insurance through a COBRA-like benefit for young adults by requiring commercial insurers, non-profit corporations and HMOs to offer an option to continue coverage for unmarried young adults through age 29, regardless of financial dependence, under a parent's group health insurance policy" (id., Statement of Purpose [emphasis added]).^[5] Pursuant to the Age 29 Law, a parent's health insurance serves as the basis for coverage for an eligible adult child who has otherwise aged off of the parent's policy.

While T.D., upon turning 26 years old, was no longer able to obtain health insurance pursuant to the Affordable Care Act, T.D. was able to (and did) obtain health insurance pursuant to the Age 29 Law.^[6] That is to say, owing to the Age 29 Law, T.D., by virtue of the fact that plaintiff has health insurance through his employer, was "allowed by law" to obtain health insurance coverage under plaintiff's insurance.

Plaintiff's contention that the parties needed to specify that plaintiff's obligation was tied to the Age 29 Law because that law is "unique" is without merit. That the Age 29 Law may be "unique" is irrelevant; however one chooses to characterize that law, it is no less a "law" under § 6.3.

The second § 6.3 phrase at issue — "covered under [plaintiff's] insurance" — is similarly clear and unambiguous. That phrase, read in light of the context of the agreement as a whole, plainly refers to health insurance coverage under plaintiff's employer's medical insurance plan (or such other insurance plan under which plaintiff obtains health insurance coverage). Like the agreement's reference to the "law," the reference to "a parent's insurance" is broad, and unrestricted by any particular qualifier (such as a specific policy or type of policy).^[7]

Reading the phrase "under [plaintiff's] insurance" to mean health insurance coverage under plaintiff's employer's health insurance plan is consistent with § 6.6, which provides that, "[i]n the event that [plaintiff] is no longer able to maintain health insurance coverage for the benefit of the child through his employer or subsequent employer, [plaintiff] agrees that he shall be 100% responsible for securing and paying for the continued coverage of comparable health insurance, for the benefit of the children, for as long as required hereunder [see § 6.3]." Clearly the parties contemplated that plaintiff might not be able to maintain health insurance for T.D. under the family plan, and they planned for that contingency, requiring plaintiff to maintain health insurance for T.D. "greater than or equal to the coverage presently provided by his employer [under the family plan]" (§ 6.3) and to be "100% responsible for securing and paying for the continued coverage of comparable health insurance" (§ 6.6) (see Nomura Home Equity Loan, Inc., Series 2006-FM2 v Nomura Credit & Capital, Inc., 30 NY3d 572, 581 [2017] [court should read a contract as a harmonious and integrated whole]). To read "under [plaintiff's] insurance" in § 6.3 to mean "under [plaintiff's family plan]" would leave § 6.6 with little to no force (see Two Guys from Harrison-N.Y., Inc. v S.F.R Realty Assoc., 63 NY2d 396, 403 [1984]).

Ultimately, the practical and reasonable interpretation of § 6.3 is that, to the extent plaintiff can maintain health insurance for T.D. through his employer, he is required to do so as long as any relevant law permits coverage for T.D. As he acknowledges in his brief (and as the evidence he submitted in opposition to the motion establishes), T.D. has coverage under the same health insurance plan provided by plaintiff's employer to its employees. Thus, by virtue of the fact that plaintiff has health insurance through his employer, Age 29 Law coverage is available to T.D.

Because the agreement is clear and unambiguous, reference to extrinsic evidence is not permissible (see Consedine v Portville Cent. School Dist., 12 NY3d at 293). We note that extrinsic evidence cannot be used to cast doubt on the meaning of clear and unambiguous contractual terms (see Brad H. v City of New York, 17 NY3d 180, 186 [2011]). Moreover, that one party attaches a particular, subjective meaning to a term or phrase that differs from the term's or phrase's plain meaning does not render the term or phrase ambiguous (see Moore v Kopel, 237 AD2d 124, 125 [1st Dept 1997]; see also Vesta Capital Mgt. LLC v Chatterjee Group, 78 AD3d 411, 411 [1st Dept 2010]).

While plaintiff complains of the costs associated with a policy provided pursuant to the Age 29 Law and points out that, consistent with that law, his employer does not subsidize any portion of those costs, we enforce the plain language of the agreement regardless of any economic hardship that plaintiff may encounter (see JFK Holding Co. v City of New York, 21 NY3d 722, 728 [2013]). Of course, we may not rewrite the plain contractual language in an effort to right some perceived inequity in the parties' bargain (see Greenfield v Philles Records, 98 NY2d at 570 ["a court is not free to alter the contract to reflect its personal notions of fairness and equity"]).

In light of our determination that the aspects of defendant's motion seeking to compel plaintiff to pay for T.D.'s coverage pursuant to the Age 29 Law and to reimburse T.D. for any payments she has made for such coverage should be granted, we remand the matter to Supreme Court to consider anew that aspect of defendant's motion seeking attorneys' fees.

Accordingly, the order of the Supreme Court, New York County (Ariel D. Chesler, J.), entered May 24, 2022, which, to the extent appealed from as limited by the briefs, denied defendant mother's motion to direct plaintiff father to pay for continued medical insurance coverage under New York State's Age 29 Law for the parties' eligible children, to reimburse the daughter for payments already made, and for counsel fees, should be modified, on the law, to grant defendant's motion to the extent of directing plaintiff to pay for Age 29 Law health insurance for the parties' daughter, T.D., until she is no longer eligible for coverage pursuant to that law, and to reimburse T.D. for payments she has made for such coverage, the matter remanded for further proceeding consistent with this decision and order, and otherwise affirmed, without costs.

Order, Supreme Court, New York County (Ariel D. Chesler, J.), entered May 24, 2022, which, to the extent appealed from as limited by the briefs, denied defendant mother's motion to direct plaintiff father to pay for continued medical insurance coverage under New York State's Age 29 Law for the parties' eligible children, to reimburse the daughter for payments already made, and for counsel fees, modified, on the law, to grant defendant's motion to the extent of directing plaintiff to pay for Age 29 Law health insurance for the parties' daughter, T.D., until she is no longer eligible for coverage pursuant to that law, and to reimburse T.D. for payments she has made for such coverage, the matter remanded for further proceeding consistent with this decision and order, and otherwise affirmed, without costs.

All concur.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

[1] The agreement was incorporated in but not merged into the judgment of divorce.

[2] Additionally, defendant wanted the order to direct plaintiff to secure health insurance pursuant to the Age 29 Law for A.D., if and when he is eligible for the benefits of that law. Because A.D.'s eligibility for coverage pursuant to the Age 29 Law have neither been conceded by the parties nor established by the record adduced before the motion court, we do not pass upon whether plaintiff has any obligation to maintain and pay for health insurance for A.D. pursuant to that law.

[3] Plaintiff cross-moved for counsel fees and costs. The cross-motion was denied, and plaintiff did not appeal from that determination.

[4] The Age 29 Law amended, among other provisions, Insurance Law §§ 3216 (commercial insurers providing individual health insurance policies), 3221 (commercial insurers providing group health insurance policies), and 4304 and 4305 (not-for-profit corporations and HMOs) to require that the age 29 option be made available to the relevant individuals.

[5] With respect to commercial insurers that provide group health insurance coverage, the legislation aimed to provide "an option to continue coverage to unmarried children who have `aged off' of their parents' group health insurance policies. The `dependent children' may continue to be covered under their parents' group policy through age 29" (id., Summary of Provisions).

[6] To qualify for a policy pursuant to the Age 29 Law, the unmarried child must live, work or reside in New York State, and must not be insured or eligible for coverage under any employer-sponsored insurance offered by the child's employer (id., Summary of Provisions).

[7] Plaintiff notes that § 6.3 opens with an express reference to his family plan and, therefore, the parties expressed their intention that his obligation was limited to providing T.D. coverage under that particular policy. That reference was to the policy under which the children were then "currently" covered; the remainder of § 6.3 and §§ 6.4 and 6.6 make plain that plaintiff's obligation was not linked to any particular policy."