TRIAL BY AFFIDAVIT

"Effective July 1, 2022, section 202.20 of the Uniform Rules for the New York State Trial Courts was revised to provide for the direct testimony by affidavit upon the request of a party in a bench trial or evidentiary hearing. On January 23, 2023, the Chief Administrative Judge of the Court issued an Administrative Order creating four 18-month pilot projects in the use of prepared direct testimony in the form of an affidavit in lieu of live direct testimony in contested matrimonial actions. The Administrative Judge for the Civil Branch of the First Judicial District, the Administrative Judge for the Third Judicial District, the Administrative Judge for the Eighth Judicial District and the Administrative Judge for the Ninth Judicial District were authorized to designate one of their parts for the pilot project and then adopt and, if necessary, amend a set of procedures to be implemented in those designated parts which are in accordance with the description provided in Attachment A. (The January 23, 2023 Administrative Order and its Attachment A are attached). Following the disposition in custody or visitation matters using one or more affidavits in lieu of live direct testimony, the parties, their counsel and any attorney for the children are to complete a survey assessing their satisfaction (or dissatisfaction) and those surveys will be used to present a report in the aggregate. 

Pursuant to the Administrative Order, the pilot project applies to all matrimonial actions, including those involving custody, visitation and parenting time, but proceedings for an order of protection and exclusive occupancy are expressly excluded. 

For affidavits in lieu of live direct testimony to be used in custody and visitation matters, all parties must be represented by counsel, all parties and their counsel must consent, and there cannot be any pending orders of protection. The affidavits must be in numbered question/answer format (similar to a deposition or trial transcript) and the opposing party has the opportunity to submit objections thereto. After conferences among counsel to hopefully resolve pending objections, a final redlined written direct testimony affidavit (in numbered question/answer format) is to be uploaded in advance of trial, so that any remaining objections can be ruled upon by the court on the record before or, if appropriate, during the trial.

The pilot program is designed to potentially streamline the presentation of evidence, ease calendar congestion, reduce litigation costs and promote settlement. The substance of a particular affidavit must be predicated on that witness' personal knowledge but, in the case of an expert witness, it may include appropriate opinion testimony and their credentials. Exhibits may be referred to and appended to the
direct testimony of a witness if the exhibits have been duly authenticated or if on consent.

CPLR 4011 provides trial judges with wide latitude and discretion as to trial procedure "in order to achieve a speedy and unprejudiced disposition of the matter at issue in a setting of proper decorum." Judges who have implemented affidavits in lieu of live direct testimony applaud its use because of it shortens the length of bench trials, rejecting concerns that a party's attorney essentially "testifies" for his
client by preparing the affidavit to be submitted. See, Campaign For Fiscal Equity v. State of New York, 182 Misc.2d 676, 699 N.Y.S.2d 663 (Sup.Ct. New York Co. 1999)

Judges in the commercial division have been authorized by Rule 32-a of the Rules of the Commercial Division since 2016 to require a party in bench trials to submit the direct testimony in affidavit form if the witness is under that party's control. Submission of direct testimony by affidavit does not affect the rights to cross-examination and redirect. Judge Timothy S. Driscoll, a proponent of granting judges the discretion to direct the use of direct testimony by affidavit in conjunction with the discretion to limit the number of trial hours explained how his use of these tools has increased the efficiency of the courts, allowed witnesses more assurance as to the precise date when they will be required to appear, permitted counsel to better manage their cases and encouraged litigators to eliminate extraneous issues. (See Judge Driscoll's July 2017 article from Business Law Today attached hereto) 

During the pandemic, when virtual trial time was extremely limited, Judge Chesler addressed the constraints on trial time in a custody modification hearing by directing the parties to submit their direct testimony in affidavit, exchange proposed exhibits in advance of trial, and by advising the attorneys in advance of the number of virtual trial hours that would be available for the hearing. In response to the attorneys' objections in their written summations to the procedures implemented, Judge Chesler cited CPLR 4011 as providing her the discretion to fashion "innovative procedures" to meet the challenges posed by the pandemic. In the decision in Lynch v. Lynch, 71 Misc.3d 1206(A), 142 N.Y.S.3d 925 (Fam.Ct. Bronx Co. 2021 ), Judge Chesler stressed that the direction to submit direct testimony in prepared affidavits and setting time limits for cross-examination were authorized by CPLR 4011 and did not deprive the parties of due process. 

Judge Douglas E. Hoffman, who presides over one of the pilot projects and is a strong proponent of the use of prepared direct examination of witnesses by affidavit, has established a set of procedures to be followed in appropriate actions where each party has consented to written direct testimony of one or more witnesses. Judge Hoffman urges parties to meaningfully discuss the use of what he refers to as a "valuable litigation tool" and, if they consent, deadlines are set for the submissions of numbered question/answers for each witness. The affidavits are to be limited to 50 pages for parties and 15 pages for non-party witnesses, unless otherwise directed by the court. Opposing parties may file written objections to the admissibility of the prepared direct and the court may rule on those objections prior to trial or by written decision or orally from the bench before or during trial."

DAMAGES FOR BREACH OF AGREEMENT TO AGREE

CRESCO LABS NY, LLC v. FIORELLO PHARMS., INC., 2023 NY Slip Op 3305 - NY: Appellate Div., 1st Dept. 2023:

"Plaintiffs were limited to out-of-pocket damages for any breach of the parties' letter of intent (LOI), which was merely an agreement to agree (Goodstein Constr. Corp. v City of New York, 80 NY2d 366, 371-373 [1992]). Goodstein applies where an agreement to agree includes exclusivity and confidentiality provisions, and the defendant is accused of breaching them (see also Garda USA, Inc. v Sun Capital Partners, Inc., 194 AD3d 545 [1st Dept 2021]). In Garda, this Court held that recovery for breach of a preliminary agreement's confidentiality provision could not be based on "the theory that it would have acquired" the company at issue, as the "defendant[] w[as] not bound to go forward with the transaction" (id. at 547). This principle applies here.

Contrary to plaintiffs' arguments, an award of cover damages was not foreseeable at the time of contracting. Plaintiffs maintain that the LOI's text establishes that the parties contemplated cover damages for a breach of the exclusivity provision because (1) the exclusivity provision was not terminable at will, (2) the parties' exclusivity obligations were mutual, and (3) the LOI provided that it was "intended to be binding." While it is undisputed that the exclusivity provision was binding for 30 days, it does not follow that the parties reasonably contemplated cover damages as the remedy for breaching it. In fact, the text of the LOI and the surrounding circumstances support a finding that the parties did not contemplate cover damages at the time of contracting. That the parties entered only a preliminary agreement with no obligation to close a transaction and no specific damage provision for breach conclusively shows that defendant did not wish to assume the risk of covering whatever replacement transaction plaintiffs might pursue (Goodstein, 80 NY2d at 371-373)."

ATTORNEY ISSUE WITH ATTEMPT TO TERMINATE GUARDIANSHIP

IMHO, if the application is being contested - the only real change is that the state picks up the legal fees but, with 18-B rates, it will be less than the private rate.

MATTER OF JESSICA LM, 2023 NY Slip Op 23264 - NY: Surrogate's Court, Suffolk 2023:

"Before the court is an application by Jessica L.M. ("Jessica"), who was previously found by this court to be a person with a developmental disability, to terminate her SCPA 17-A guardianship, and revoke the letters of guardianship of the person issued to Paul M. and Deborah M., Jessica's parents.

The record reflects that by decision dated April 2, 2001, and decree dated April 10, 2001, Paul M. and Deborah M., Jessica's parents, were appointed the co-guardians of the person and property of Jessica. The letters of co-guardianship of the property were revoked by order of the court dated June 27, 2007. The petition currently before the court indicates that Paul M. passed away on February 1, 2022. No appeal was ever taken with respect to any of the foregoing orders.

Jurisdiction has been obtained over all persons listed in the petition as necessary parties. Deborah M., the current SCPA 17-A guardian filed opposition to the relief requested.

By her petition, Jessica seeks to terminate her guardianship on the grounds that the guardianship is not necessary, is not in her best interests, and is not the least restrictive means of providing Jessica with the support she may require (US Const Amends V & XIV; NY Const, art I, § 6). Jessica also asserts that she is not a person with a developmental disability within the meaning of SCPA 17-A, that the current guardianship was based on insufficient evidence and violated her due process rights, and that the guardianship is not in her best interests.

In support of their original guardianship petition, the co-guardians submitted affirmations from two examining physicians which indicated that Jessica had been diagnosed with the following: Asperger's syndrome, attention deficit/hyperactivity disorder, bipolar disorder, learning disorder, anxiety disorder, and mild cerebral palsy. The co-guardians also submitted Neuropsychological Evaluations which indicated that Jessica's overall abilities fell within the very superior range, with a Wechsler Intelligence Full Scale IQ of 133 in 1991 and within the average range in 2000, with a Wechsler Intelligence Full Scale IQ of 106.

The court has previously decided several similar uncontested petitions, and in those cases, a guardian ad litem was appointed to verify the allegations set forth in the petition. However, in this case, objections have been filed and issue has joined, leaving the court faced with the question of whether or not to appoint a guardian ad litem, particularly since petitioner is represented by counsel. In addition, the court had further concerns in this matter as to whether or not petitioner's counsel, who is based in Rochester, New York, had been freely retained. Thus, with the consent of all counsel, a hearing on the narrow issue of petitioner's representation was held before the court. Since the petitioner urged that any determination with respect to her should be based upon the provisions and protections of Mental Hygiene Law Article 81, it was agreed that the provisions of MHL §81.10 would be utilized at such hearing. After the hearing the court allowed the parties to submit briefs.

Petitioner's attorney submitted a brief reiterating her argument that Jessica has never been lawfully determined to have a lack of capacity such that she is unable to choose her own counsel, that Jessica demonstrated through her testimony a clear ability to understand the nature and consequences of her decisions as well as her process in retaining counsel, and that Jessica freely and independently chose her counsel.

Mental Hygiene Law (MHL) 81.10(a) provides, in relevant part, that in addition to the court having the ability to appoint counsel, the subject of a MHL Article 81 proceeding has the right to choose and engage legal counsel of the person's choice. However, the court must determine that retained counsel has been chosen freely and independently by the alleged incapacitated person (Id.).

The ability to have counsel of one's own choosing, however, is not absolute. The Court of Appeals of New York has held that

". . . although an individual possesses no absolute right to representation by an attorney of his choice (Greene v Greene, 47 NY2d 447, 452; People v Hall, 46 NY2d 873, cert den 444 U.S. 848; United States v Hobson, 672 F2d 825, and cases cited in footnote, at p 829, cert den 459 U.S. 906; United States v Cunningham, 672 F2d 1064, 1071; United States v Armedo-Sarmiento, 524 F2d 591, 592; United States v Sexton, 473 F2d 512, 514), any restriction imposed on that right will be carefully scrutinized. (United States v Hobson, supra; People v Doe, 98 Misc 2d 805.) An individual's right to select an attorney who he believes is most capable of providing competent representation implicates both the First Amendment guarantees of freedom of association (N.A.A.C.P. v Button, 371 U.S. 415; NY Const, art I, '9) and the Sixth Amendment right to counsel (cf. Faretta v California, 422 U.S. 806; NY Const, art I, '6) and will not yield unless confronted with some overriding competing public interest (Matter of Kelly, 23 NY2d 368, 378, n 3; People v Doe, supra; Matter of Gopman, 531 F2d 262, 268)" (In re Abrams, 62 NY2d 183, 196).

Therefore, while mindful of the restrictions placed on the court by the holding in Abrams, the court is nevertheless bound, given the nature of a guardianship proceeding, to make some inquiry, when the facts so indicate, to determine whether retained counsel is "chosen freely and independently by the alleged incapacitated person" (Matter of Caryl S.S. (Valerie L.S.), 45 Misc 3d 1223(A), 1223A). This is particularly necessary in a proceeding such as the one at bar, where findings have already been made with respect to petitioner's capacity and co-guardians have been appointed.

As previously noted, the question before the court appears to be one of first impression in the context of a SCPA 17-A Guardianship proceeding. As such, no case law could be located to guide the court. Moreover, there is precious little case law decided under MHL §81.10(a) with respect to this issue. Finally, there appears to be no guidance on the issue provided in the Law Revision Commentaries.

It appears that the facts herein are most analogous to those in Matter of Caryl S.S. (Valarie L.S.), supra. In that proceeding, the court found it "troubling" that the attorney purportedly selected by the AIP (alleged incapacitated person), had no prior relationship with the AIP, was brought into the case by the AIP's son, who is alleged to have exerted undue and improper influence over the AIP. The court then disqualified that attorney from further representation and appointed independent counsel for the AIP.

In the within proceeding, Jessica testified that she previously had disputes with her mother, who is the appointed guardian herein, over who would provide care and assistance (or, as Jessica put it, her "staff"). She also testified that it was her staff who advised her that she could terminate her guardianship, found the entity who currently employs her counsel herein, and served as liaison between counsel and her. She never discussed counsel's experience with such matters. Moreover, she similarly testified that she did not independently seek to interview any other attorneys or law firms to provide her with services, nor had she ever utilized the services of an attorney before for any purpose.^[1]

This court, like the court in Matter of Caryl S.S. (Valarie L.S.), supra, is troubled by the facts elicited during the course of the testimony of the subject of the proceeding. The same entity that was one of the major points of dispute between Jessica and her guardian seem to have (1) suggested to her that she could remove her mother's involvement in her decision making by terminating her guardianship; (2) found her attorneys who would represent her in such an application; and (3) had the attorneys make first contact with Jessica, the client, instead of Jessica making the effort to contact them.

As in Matter of Caryl S.S. (Valarie L.S.), supra, while it may not be unusual for an attorney to be contacted or selected by a relative or, as here, an acquaintance, it is unusual when that entity is at risk of being discharged by the guardian and makes such efforts in what could be construed as an attempt to preserve a relationship that benefits it financially.

The court does not, and cannot on the limited inquiry conducted herein, find any wrongdoing on the part of either the agency providing services or counsel. However, the testimony provided by the subject of the proceeding does provide the basis for a determination that Jessica merely acquiesced in the selection of counsel made by her "staff." Although the petition herein alleges that Jessica is a college graduate who has lived on her own since 2008 and makes decisions for herself with minimal assistance from others, her testimony makes it clear that she played a minimal role in the decision-making process with respect to selecting an attorney. Further, it appears that the process was managed by her "staff," an entity that could conceivably benefit financially from the termination of the guardianship, given that the current guardian and Jessica seem to have disagreements as to who would provide care to Jessica.

For these reasons the Court finds and determines that counsel herein has not been chosen freely and independently by Jessica, and as a result Jessica's current counsel is disqualified from representing her in this proceeding. As the testimony confirmed that petitioner is receiving governmental services, and thus may not be financially able to engage private counsel, the court shall appoint independent counsel from the 18-B Assigned Counsel Plan by separate order."

AIRBNB AND NYC

 

This is from an email from another attorney:

Local Law 18: A Dramatic Change to Short-Term Rentals in New York City   On January 9, 2022, the New York City Council passed the Short-Term Rental Registration Law (“Local Law 18”), which contains sweeping changes directly impacting the ability of a unit owner to rent out his or her apartment on short-term rental websites, such as Airbnb, VRBO, Booking.com and others that collect a fee for short-term rental listings. The law took effect on September 5, 2023. This law now requires all short-term rental hosts to register with the Mayor’s Office of Special Enforcement (“OSE”), which oversees the enforcement of Local Law 18. Although not a de-facto ban on all short-term rentals in NYC, Local Law 18 imposes significant and burdensome requirements on short-term rental hosts, which will likely severely impact these hosts’ ability to rent out their apartments on a short-term basis. For example, under this new law, a host must reside as a permanent occupant in the dwelling unit used for short-term rentals and must maintain a common household with the short-term tenant. In other words, a host must occupy the apartment with the short-term tenant and the short-term tenant must have access to all parts of the dwelling unit. A registered host is therefore prohibited from renting out the entirety of the registered dwelling unit, a significant departure from the business model of short-term rental companies, which permits unit owners to rent out the entire dwelling unit to a short-term tenant. Any violation of Local Law 18 will result in serious and escalating fines issued to the registered host. Under the law, a short-term tenant will not be fined. Under the new law, short-term booking services (such as Airbnb, VRBO and booking.com) are prohibited from processing any transactions for unregistered short-term rentals. Local Law 18 also requires OSE to maintain a prohibited buildings list (“PBL”), which includes buildings where short-term rentals are prohibited by law (i.e. New York City Housing Authority buildings) or by application of the owner of the building. Short-term listings for units in “Class B” multiple dwellings, which have been approved by New York City for legal short-term occupancies, are exempt from the registration requirement, as are rentals for 30 consecutive days or more. Under the OSE guidelines, Local Law 18 also defines owners as a board of a cooperative or condominium corporation, manager or agent of a building. Therefore, the board, agent or manager of a condominium or cooperative may notify OSE that short-term rentals are prohibited in their buildings, as a result, for example, of the terms of the proprietary lease or by-laws, and request that the building be placed on the PBL. In order for an owner to ensure that their building is placed on the PBL, the applicant must certify that leases and other occupancy agreements for dwelling units within the entire building prohibit short-term rentals and will need to provide the following information: (i) the name of the person making the application; (ii) a working phone number for the applicant; (iii) an email address for the applicant; (iv) the address of the building the applicant seeks to add to the list;  (v) an explanation of the relationship between the owner and the applicant; and (vi) any proof or documentation requested by OSE to substantiate the request where OSE has cause to require further verification. As Local Law 18 has only recently come into effect, OSE has been delayed in processing the vast number of applications that have been received. As a result, OSE has sought further proof and documentation on a significant number of applications. To ensure that the application process is streamlined, we strongly recommend to our clients that they consult with one of the leading attorneys in this field at SSRGA. If you have any questions, please feel free to contact your trusted SSRGA attorney.   Maria I. Beltrani, Esq.   mbeltrani@ssrga.com 212-743-7074  Matthew A. Ulmann, Esq.   mulmann@ssrga.com 212-743-7024

SETTLEMENT AND CPLR 5003-A

 

JDT v. CHAIMOWITZ, 2023 NY Slip Op 3940 - NY: Appellate Div., 2nd Dept. 2023:

"Under CPLR 5003-a(a), "[w]hen an action to recover damages has been settled, any settling defendant . . . shall pay all sums due to any settling plaintiff within twenty-one days of tender, by the settling plaintiff to the settling defendant, of a duly executed release and a stipulation discontinuing the action . . . on behalf of the settling plaintiff." Where a settling defendant fails to pay all sums as required under CPLR 5003-a(a), "any unpaid plaintiff may enter judgment, without further notice, against such settling defendant who has not paid" (id. § 5003-a[e]; see Cunha v Shapiro, 42 AD3d 95, 101). Such judgment shall include "interest on the amount set forth in the release from the date that the release and stipulation discontinuing action were tendered" (CPLR 5003-a[e]). "[T]ender . . . shall mean either to personally deliver or to mail, by registered or certified mail, return receipt requested" (id. § 5003-a[g]; see Cunha v Shapiro, 42 AD3d at 101). "Where mailing is utilized, `tender' is defined as occurring upon the defendant's actual receipt of the general release and stipulation of discontinuance, and not on the date of mailing" (Cunha v Shapiro, 42 AD3d at 101 n 3; see Levine v American Multi-Cinema, Inc., 208 AD3d 1230, 1232).

Here, the plaintiffs contend that the duly executed releases were delivered to counsel for J. Anthony by email on June 4, 2019, and mailed to counsel for J. Anthony by priority mail on June 28, 2019. However, the plaintiffs failed to submit any proof demonstrating that they either personally delivered the duly executed releases to counsel for J. Anthony, or that they mailed the duly executed releases to counsel for J. Anthony by registered or certified mail, return receipt requested, as required by CPLR 5003-a(g) (see Cunha v Shapiro, 42 AD3d at 101; Nationwide Affinity Ins. Co. of Am. v Ramales, 68 Misc 3d 1214[A], 2020 NY Slip Op 50931[U] [Civ Ct, Queens County]). Although the plaintiffs submitted a receipt from the United States Postal Service that stated that delivery occurred on July 1, 2019, there is no return receipt in the record. Since the plaintiffs failed to establish under CPLR 5003-a that they tendered the duly executed releases to counsel for J. Anthony, the Supreme Court properly denied their motion pursuant to CPLR 5003-a to direct the entry of a judgment awarding them interest on the total amount of the two settlement payments made by J. Anthony, plus statutory costs and disbursements."