VAGUE ALLEGATIONS IN CHILD SUPPORT ENFORCEMENT

Matter of Lisa S.-G. v. Lawrence S. Jr., Date filed: 2021-07-02, Court: Family Court, Nassau, Judge: Support Magistrate Sondra Toscano,  Case Number: F-07444-20/20A:

"DECISION AND ORDER The parties are divorced and have one child in common, S.S. (hereinafter “S.S.”). On December 15, 2020, the mother, Lisa S.-G. (hereinafter “Mother” or “Ms. S.-G.”), filed a violation petition against the father, Lawrence W. S., Jr. (hereinafter “Father” or “Mr. S.”). See Petition for Enforcement/Violation of an Order of Support (S.-G., 12/03/2020), Nassau County Family Court Docket Number F-07444-20/20A. In her violation petition, Ms. S.-G. alleged that Mr. S. has failed to pay child support and his pro rata share of child care and educational expenses as ordered. Id. She attached a copy of the parties’ Judgment of Divorce and attendant Stipulation of Settlement to her petition. See Judgment of Divorce (Fusillo, Ref., 10/18/2004), Nassau County Supreme Court Index Number 2004/201772; see also Settlement Agreement (S., 07/10/2004), Nassau County Supreme Court Index Number 2004/201772. On June 11, 2021, Mr. S. filed a motion to dismiss. See Not. of Motion to Dismiss (Claps, 05/30/2021), Nassau County Family Court Docket Number F-07444-20/20A; see also Mem. of Law (Claps, 05/30/2021), Nassau County Family Court Docket Number F-07444-20/20A; Aff. in Supp. of Mot. to Dismiss (S., 05/27/2021), Nassau County Family Court Docket Number F-07444-20/20A. He also sought an award of counsel fees. See id. Mr. S. maintained that Ms. S.-G. failed to attach a copy of the parties’ 2008 child support agreement which establishes that he does not owe Ms. S.-G. any arrears. Mr. S.’s exhibits include the parties’ 2008 agreement and a record of payments he made towards support. See Ex. B (S.-G./S. Agreement, 11/01/2008); see also Ex. D (S. Citigold Account, 03/12/2015-02/28/2021). Mr. S. also argued the theories of laches and equitable estoppel. See Mem. of Law (Claps, 05/30/2021), Nassau County Family Court Docket Number F-07444-20/20A. Finally, Mr. S. asserted that the $75,000.00 arrearage amount sought in Ms. S.-G.’s petition “cannot be arrived at using any calculation that has basis in fact.” See Aff. in Supp. of Mot. to Dismiss (S., 05/27/2021), Nassau County Family Court Docket Number F-07444-20/20A.

On June 28, 2021, Ms. S.-G. filed opposition papers. See Aff. in Opp’n to Mot. to Dismiss (Virdone, 06/28/2021), Nassau County Family Court Docket Number F-07444-20/20A. In her papers, Ms. S.-G. asserted that according to the parties’ 2004 Stipulation of Settlement, any subsequent agreement of the parties had to be endorsed by a court of law, or was to be considered non-binding. Id. She also maintained that Mr. S.’s other theories are without merit. Id.

On July 1, 2021, the motion was marked submit. Having considered the parties’ papers, counsel’s arguments, and the law, the Court’s determination follows:

DISCUSSION

MR. S.’S MOTION TO DISMISS IS GRANTED

A party to a family court action may file a motion to dismiss for failure to state a cause of action pursuant to New York Civil Practice Law and Rules (hereinafter “CPLR”) §3211(a)(7). See N.Y. C.P.L.R. §3211(a)(7) (McKinney’s 2021); see also N.Y. FAM. CT. ACT §165(a) (McKinney’s 2021) (FCA adopts and applies CPLR where FCA is silent). In its analysis, the Court must construe the petition liberally to determine whether, within the pleading’s four corners, there exists a cognizable cause of action. See Harris v. Barbera, 96 A.D.3d 904, 905 (2d Dep’t 2012); see also Martin v. Liberty Mutual Ins. Co., 92 A.D.3d 729, 730 (2d Dep’t 2012); Ruffino v. New York City Transit Auth., 55 A.D.3d 817, 818 (2d Dep’t 2008). The Court must accept all alleged facts within the pleadings to be true. See Martin, 92 A.D.3d at 730; see also Young v. Campbell, 87 A.D.3d 692, 693 (2d Dep’t 2011). In other words, a motion to dismiss for failure to state a cause of action may be granted only where, accepting the petition’s alleged facts as true, the moving papers establish conclusively that there is no claim for relief stated within the petition. See N.Y. C.P.L.R. §3221(a)(7) (McKinney’s 2021); see also Noble v. Graham, 8 A.D.3d 641, 641 (2d Dep’t 2004); Fields v. Leeponis, 95 A.D.2d 822, 822 (2d Dep’t 1983). Thus, in order to decide the instant motion to dismiss, the Court must determine whether Ms. S.-G. has sufficiently alleged that Mr. S. failed to pay his child support and pro rata obligations as ordered.

On July 10, 2004, the parties’ executed their Stipulation of Settlement. See Settlement Agreement (S., 07/10/2004) Nassau County Supreme Court Index Number 2004/201772. In that document, the parties agreed that Mr. S. would pay child support in the amount of $2,000.00 monthly, commencing on July 1, 2004. Id. The parties’ Stipulation of Settlement does not set forth the parties’ pro rata shares. Id.

On October 18, 2004, the parties’ Judgment of Divorce was issued. See Judgment of Divorce (Fusillo, Ref., 10/18/2004), Nassau County Supreme Court Index Number 2004/201772. The parties’ Judgment of Divorce mirrored their Stipulation of Settlement in regards to basic child support, directing Mr. S. to pay $2,000.00 monthly, effective July 1, 2004. The parties’ Judgment of Divorce does not set forth the parties’ pro rata shares for child care. Instead, the document refers the parties to their Stipulation of Settlement which, as previously mentioned, does not delineate their child care pro rata shares. The parties’ Judgment of Divorce dictates that a “provision for children [sic] educational expenses is not applicable.” Id.

On November 1, 2008, the parties entered into an agreement which, inter alia, reduced Mr. S.’s child support obligation to $1,500.00 monthly, commencing September 1, 2008. See S.-G./S. Agreement (11/01/2008). Although the agreement is signed by both parties, it is not endorsed by a court of law. To that end, the parties’ Stipulation of Settlement, prescribes in pertinent part:

“17. Modification. If the parties mutually agree [sic] permanently change the provisions of their decree of divorce, they must petition the Court to approve and order that change. In the event that the parties do not obtain a court order, the Court will not be bound by any alleged Agreement of the parties.”

Settlement Agreement (S., 07/10/2004), Nassau County Supreme Court Index Number 2004/201772. Given the terms and conditions of the parties’ 2004 Stipulation of Settlement, it appears that their 2008 agreement is not binding. Thus, Mr. S.’s argument that Ms. S.-G.’s petition must be dismissed for failure to attach the 2008 agreement is unpersuasive.

With regards to Mr. S.’s laches and equitable estoppel arguments, such defenses may not be asserted in proceedings seeking to collect child support arrears. See N.Y. FAM. CT. ACT §451(1) (McKinney’s 2021); see also Onondaga Cty. Dep’t of Soc. Servs. v. Marcus N.D., 170 A.D.3d 1561, 1561 (4th Dep’t 2019) (no excuses tolerated regarding child support arrears); Cook v. Miler, 4 A.D.3d 745, 746 (4th Dep’t 2004) (“New York’s statutory scheme does not permit courts to consider [ ] equitable defenses in a proceeding [ ] to collect child support arrearages.”). A court has no authority to reduce or annul child support arrears even where good cause exists for failing to seek a modification or ordering arrears to be paid will result in a grievous injustice. See N.Y. FAM. CT. ACT §451 (McKinney’s 2021); see also Adinolfi v. Callanan, 166 A.D.3d 966, 966 (2d Dep’t 2018); Caldwell v. Caldwell, 124 A.D.3d 649, 650 (2d Dep’t 2105); Fisher v. Nathan, 83 A.D.3d 938, 939 (2d Dep’t 2011); Madelowitz v. Bodden, 68 A.D.3d 871, 875 (2d Dep’t 2009). Even where paternity was not established and it was found that child support was improperly ordered against a party, the Second Department found that a court was prohibited from reducing or vacating arrears accumulated prior to the filing of an appropriate petition. See Westchester Cty. Dep’t. of Soc. Servs. v. Clarke, 188 A.D.3d 709, 710 (2d Dep’t 2020). Thus, the Court finds no merit to Mr. S.’s proffered defenses of laches and equitable estoppel.

Notwithstanding, the Court dismisses Ms. S.-G.’s petition for failure to comply with due process. Due Process is a cornerstone of our system of justice codified within the United States Constitution as part of the Fourteenth Amendment, Section 11 as well as the New York State Constitution as part of Article I, Section 6.2 See U.S. CONST. AMEND. XIV, §1; see also N.Y. CONST. ART. I, §6. Due process requires notice and an opportunity to be heard. See People v. Baxin, 26 N.Y.3d 6 (2015); see also Raynor v. Landmark Chrysler, 18 N.Y.3d 48 (2011); Anita L. v. Damon N., 54 A.D.3d 630 (1st Dep’t 2008); 167-69 Allen Street H.D.F.C. v. Ebanks, 22 A.D.3d 374 (1st Dep’t 2005); Tyk v. N.Y. Education Dep’t, 19 A.D.3d 427 (2d Dep’t 2005); Commissioner of Social Servs. of the City of N.Y. v. Remy K.Y., 298 A.D.2d 261 (1st Dep’t 2002); Dariff v. Moskowitz, 252 A.D.2d 584 (2d Dep’t 1998). Thus, where a parent receives notice of the proceedings and an opportunity to litigate his or her position at a hearing, due process has been met. See Raynor, 18 N.Y.3d at 59; Anita L., 54 A.D.3d at 631; 167-69 Allen Street H.D.F.C., 22 A.D.3d at 376; Matter of Tyk, 19 A.D.3d at 429; Remy K.Y., 298 A.D.2d at 262; Dariff, 252 A.D.2d at 585. With respect to the notice aspect of procedural due process, the means selected for providing notice must be reasonably calculated, under all of the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to defend the action. See Armstrong v. Manzo, 380 U.S. 545 (1965); see also Hiller v. Burlington & M.R.R. Co., 70 N.Y. 223, 227 (1877).

A child support enforcement action is a contempt proceeding under which penalties, such as incarceration, may be imposed. See N.Y. FAM. CT. ACT §454 et al. (McKinney’s 2021). New York State Family Court Act §437 provides that for the purposes of a violation hearing, a respondent is prima facie presumed to have sufficient means to pay support. See N.Y. FAM. CT. ACT §437 (McKinney’s 2021). Moreover, New York State Family Court §454(3)(a) dictates that failure to pay child support as ordered constitutes prima facie evidence that a support order has been willfully violated. See N.Y. FAM. CT. ACT §454(3)(a) (McKinney’s 2021); see also Gorsky v. Kessler, 79 A.D.3d 746, 746 (2d Dep’t 2010). The contempt nature of a child support enforcement proceeding, coupled with the presumptions set forth in the New York State Family Court Act, require notice of clear, specific allegations reasonably calculated to enable a respondent to develop and present a satisfactory defense. See Prinzo ex rel. Campbell v. Jenkins, 251 A.D.2d 709, 709 (3d Dep’t 1998); see also Commissioner of Social Servs. ex. rel. Rynkowski v. Pronti, 227 A.D.2d 705, 706 (3d Dep’t 1996). Vague allegations based upon a total sum of arrearages are insufficient. See Prinzo ex rel. Campbell, 251 A.D.2d at 709; see also Commissioner of Social Servs. ex. rel. Rynkowski, 227 A.D.2d at 706.

In her petition, Ms. S.-G. alleged that “[e]ach month respondent has failed to make payments in full under the existing Supreme Court order” and that he owes $75,000.00. Petition for Enforcement/Violation of an Order of Support (S.-G., 12/03/2020), Nassau County Family Court Docket Number F-07444-20/20A. She further alleged that Mr. S. was ordered to pay child support in the amount of $2,000.00 monthly and a 50 percent pro rata share of “child care/educational expenses.” Id. The parties’ divorce documents do not identify Mr. S.’s pro rata share for child care or educational expenses, which is inconsistent with her allegation of Mr. S.’s failure to pay his 50 percent pro rata share. Moreover, Ms. S.-G. has failed to provide a breakdown of what she maintains Mr. S. owes in child support arrears as opposed to child care and/or educational expenses. She further fails to set forth how she arrived at her total amount of claimed arrears owed. Ms. S.-G.’s allegations lack the requisite specificity required by due process to afford Mr. S. with the ability to prepare and present an adequate defense. Her vague allegations also fail to set forth a cause of action. Accordingly, her petition is dismissed, without prejudice.

MR. S.’S MOTION FOR COUNSEL FEES IS DENIED

In all support matters, at any stage of the proceedings, a court may grant attorneys fees pursuant to New York State Family Court Act §438(a). See N.Y. FAM. CT. ACT §438(a) (McKinney’s 2021); see also Matter of Anna Y. v. Alexander S., 142 A.D.3d 864, 864 (2d Dep’t 2016). Such an award is left to the sound discretion of the court. See Matter of Felix v. Felix, 110 A.D.3d 805, 805 (2d Dep’t 2013). The factors to be considered when calculating an appropriate award include “‘the parties’ ability to pay, the merits of the parties’ positions, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of counsel’s performance and the fees under the circumstances.’” Roberts v. Roberts, 176A.D.3d 1226, 1228 (2d Dep’t 2019); see also Felix, 110 A.D.3d at 805 (citing cases). The Court may also take into account whether one party has delayed the proceedings, or engaged in unnecessary litigation by failing to comply with discovery and other court orders. See Black v. Black, 140 A.D.3d 816, 816-17 (2d Dep’t 2016); see also Matter of Weiss v. Rosenthal, 135 A.D.3d 780, 781 (2d Dep’t 2016); Branche v. Holloway, 124 A.D.3d 553, 555 (1st Dep’t 2015). Under the terms and conditions of the parties’ 2004 Stipulation of Settlement, the parties’ 2008 agreement is not binding. Thus, the Court finds that Ms. S.-G.’s petition was not frivolous. Accordingly, the Court finds that an award of attorneys fees is not appropriate."

THE LAW'S DELAY

As the case below, illustrates, some things don't change and may get even worse post-Covid. This quote is from The Law's Delay (1890) by Samuel Williams Cooper: "In our own courts, one of the principal cause of delay is found in the fact that cases called for trial are continued or postponed because the counsel on one side leaves word that he is engaged in court elsewhere when he may be purposely absent in order to delay the cause. While an officer of the court is hunting him up another case is called for trial and occupies the time of the court until all chance of reaching the original case is gone for the term. In this way a defendant who has no real defense is free for three months longer in which time he may fail or remove or convey his property so that when a judgment is obtained it is worthless. The absence of witnesses without legal excuse is often ground for the same action. Strict rules on these points are in existence but their enforcement is always uncertain depending greatly upon the counsel interested and the condition of the calendar.".  And read Footnote 5 of the opinion.

Matter of F.W. (Monroe W.), 2020 NY Slip Op 02385, Decided on April 23, 2020 ,Appellate Division, First Department, Singh, J.:

We are asked to decide whether Family Court properly denied respondent's motion for an expedited hearing on a post-dispositional neglect proceeding. We find that Family Court should have granted the motion and held a prompt hearing in accordance with the parent's and the children's right to due [*2]process. Accordingly, we reverse.

On or about April 25, 2014, the Administration for Children's Services (ACS) filed a neglect petition against respondent Monroe W. (father) on behalf of his two young children. ACS alleged that the father perpetrated acts of violence against the mother in the children's presence. On November 19, 2014, Family Court entered a finding of neglect against the father. The children were initially released to the custody of their mother. They were later removed from her care and placed in nonkinship foster care.

The father moved by order to show cause (OSC) seeking a trial discharge of the children to him ^[FN1]. On March 7, 2016, the children were discharged to the father. However, a few months thereafter, the children were removed from the father's care and placed back in nonkinship foster care based on an allegation of excessive corporal punishment, which was later determined "unfounded" after an ACS investigation. On February 7, 2017, Family Court directed the agency to trial discharge the children to the father "unless significant barrier to reunification" existed.
Again, on January 24, 2018, ACS removed the children from the father's care based on an allegation of corporal punishment. The father filed another OSC seeking an "expedited hearing to determine whether the children [] can be returned to their home with their father."

On January 26, 2018, the parties appeared before Family Court, at which point the issue of whether the father was entitled to an expedited hearing arose. The Attorney for the Children (AFC) stated that she was not ready to participate in a hearing, as she had not yet spoken to the children and was "double booked," but she also did not believe that the father was entitled to an expedited hearing as the matter was post- disposition. In response, the court asked to be further briefed on the issue. The parties agreed.

Two weeks later, on February 14, 2018, the hearing commenced. It took six months to complete. Testimony at the hearing suggested that the children manifested negative effects from the family separation. The father testified that they would become upset at the end of their visits and tell him that they wanted to go home with him. The children's foster mother reported that the four-year-old child had begun wetting the bed.

At the April 4, 2018 court appearance, the father's counsel requested a decision on the motion seeking an expedited hearing. The court stated that the branch of a motion seeking an expedited hearing was now moot as the court "granted an expedited hearing" and they were "just in the midst of it." The father's counsel responded that the court had "granted the beginning of an expedited hearing and gave everyone a chance to do replies," referring to the directive of the court from January 2018. The court did not respond.

Throughout the next few months the father's counsel [*3]repeatedly asked for earlier dates for the continued hearing. Counsel did not move to renew the application seeking an expedited hearing. In his summation, the father's counsel did not ask for a ruling on the timing of the hearing, and instead stated that the "court was correct to grant an expedited hearing."

On August 7, 2018, Family Court issued its decision from the bench, finding that the allegations against the father were not credible, and directed a conditional trial discharge. The children, now ages five and seven, were finally discharged to the father on March 25, 2019.

In a subsequent memorandum decision dated September 24, 2018, the court denied the branch of the father's application for an expedited hearing. The court reasoned that Family Court Act (FCA) § 1089, which is triggered by the court's determination after a dispositional hearing that placement of a child with the Commissioner of ACS is in the child's best interest, does not qualify its references to a hearing, nor does it provide for an expedited hearing. Thus, in the absence of an express statutory provision granting a parent the right to a hearing within a specific time thereafter, Family Court rejected the father's argument that he was entitled to a hearing within a "matter of days," holding that the court has "broad discretion to determine the time to hold a hearing." The court also noted that the father was afforded due process at the fact-finding and dispositional hearing stages. The court did not address its earlier statement ^[FN2] that the motion seeking an expedited hearing was moot.

Initially, we agree with the parties that although the children were ultimately discharged to the father, after a six- month hearing, the issues raised on this appeal fall into an exception to the mootness doctrine in that they (1) are likely to reoccur; (2) typically evade review; and (3) involve "significant or important questions not previously passed on" (Matter of Hearst Corp v Clyne, 50 NY2d 707, 714-715 [1980]; see Matter of Elizabeth C. [Omar C.], 156 AD3d 193, 198-202 [2d Dept 2017]). Accordingly, while the merits of the court's ultimate trial decision are not before us on this appeal, we decide whether the court's denial of the father's motion for an expedited hearing was proper.

We begin our discussion with the undisputed principle that a parent's interest "in the care, custody, and control of their children[] is perhaps the oldest of the fundamental liberty interests" (Troxel v Granville, 530 US 57, 65 [2000]). Accordingly, parents are afforded the protections of the Due Process Clause of the 14th Amendment in protecting this interest (see id. at 66; see also Matter of Marie B., 62 NY2d 352, 358 [1984]). Similarly, the children have a parallel "right to be reared by [their] parent" (Matter of Bennett v Jeffreys, 40 NY2d 543, 546 [1976]).

We reject ACS's assertion that, in light of the prior finding of neglect against the father, the government has a greater interest in ensuring a correct adjudication, even if that may lengthen the proceeding. We agree that ACS has an interest in correct adjudication because "an erroneous failure to place the child [in foster care] may have disastrous consequences" (Matter of Tammie Z., 66 NY2d 1, 4-5 [1985]). This concern must be weighed against the "significant emotional harm" inflicted upon children by temporarily separating them from their parents (Vivek S. Sankaran, "Out of State and Out of Luck: The Treatment of Non-Custodial Parents Under the [*4]Interstate Compact on the Placement of Children," 25 Yale L & Pol'y Rev 63, 64 fn 7 [2006]).^[FN3]

We find that a parent's private interest in having custody of his or her children, the children's private interest in residing with their parent, and the undisputed harm to these interests are factors that merit equal consideration. On this record, ACS fails to establish that the lengthy delay was related to its interest in protecting the children. Rather, the hearing was prolonged over six months because of the court's and attorneys' scheduling conflicts. There is no indication that the completion of the hearing was caused by difficult legal issues, or by the need to obtain elusive evidence, or by some other factor related to an accurate assessment of the best interest of the children (see generally Federal Deposit Ins. Corp. v Mallen, 486 US 230, 242 [1988], citing Mathews v Eldridge, 424 US 319, 334-335 [1976]).

Even though this is a post-dispositional matter, the father is entitled to the strict due process safeguards afforded in neglect proceedings. "The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State" (Santosky v Kramer, 455 US 745, 753 [1982]). This rationale equally applies to the primacy of a parent's fundamental liberty interest, and the importance of procedural due process in protecting that interest, particularly when a parent and child are physically separated (cf. Matter of Elizabeth C., 156 AD3d at 203). Accordingly, we find that a parent is entitled to a prompt hearing on the agency's determination to remove the children from his or her physical custody through a failed trial discharge.

Finally, we note that the FCA is silent as to the specific procedural time frames that apply when a child has already been removed from a parent's physical custody after a fact-finding determination. We decline to impose a specific time frame as to what constitutes a "prompt" or "expedited" judicial review.^[FN4] Instead, we rely on the general precept that a post-deprivation hearing "should be measured in hours and days, not weeks and months,"^[FN5] based on the facts and circumstances of the matter (Egervary v Rooney, 80 F Supp 2d 491, 503 [ED Pa 2000], revd on other grounds sub nom. Egervary v Young, 366 F3d 238 [3d Cir 2004] [collecting and citing cases and concluding that a seven-month delay in judicial review of a child removal violated due [*5]process]).

Accordingly, order of the Family Court, Bronx County (Elenor C. Reid, J.), entered on or about September 27, 2018, which, to the extent appealed from as limited by the briefs, denied that branch of respondent father's motion for an "expedited hearing" to determine whether the subject children who were removed through a failed trial discharge should be returned to him, should be reversed, on the law, without costs, and that branch of the father's motion granted.

Footnotes

Footnote 1: A trial discharge "shall mean that the child is physically returned to the parent while the child remains in the care and custody of the local social services district" (Family Court Act (FCA) §§ 1055[b][i][E]; 1089[d][2][viii][C]). There is no time limit on how long a child may reside with a parent on trial discharge status (id.).

Footnote 2: We reject ACS' argument that since Family Court denied the father's request for an expedited hearing, the denial should have been appealed immediately. The transcripts and record do not reflect a denial until its written decision, dated September 24, 2018, which the father appeals from.

Footnote 3: Studies have established that "[e]ven short-term removals that are reversed can have lasting effects on vulnerable children" (Stephanie Clifford and Jessica Silver-Greenberg, Foster Care as Punishment: The New Reality of "Jane Crow," NY Times, July 21, 2017 [available at https://www.nytimes.com/2017/07/21/nyregion/ foster-care-nyc-jane-crow.html] [last accessed April 4, 2020]).

Footnote 4: Contrary to the father's argument, the FCA cannot be read to establish a right to a hearing within 30 days in cases such as this one. Any imposition of a defined time frame is a matter to be addressed by the legislature within the constraints of due process.

Footnote 5: We recognize that Family Court has a large caseload with competing deadlines which may cause slight delays. We do not hold that in every instance a hearing that takes "weeks and months" is inappropriate, especially when there is a sound basis for delay. Rather, there should be a case-by-case evaluation, but the court should value promptness whenever possible.

RENT OVERCHARGES UNDER THE JUNE ACT ADDRESSED BY COURT OF APPEALS

While we were in the beginning throes of the health crisis and tenants began to wonder how they will pay their rent, a reminder that 2 weeks ago, the New York Court of Appeals struck down the retroactive application of the rent overcharge provisions of the June 2019 Housing Stability and Tenant Protection Act on constitutional grounds. The full opinion (4-3) and the dissent can be found here:

MATTER OF REGINA METROPOLITAN CO., LLC v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL 2020 NY Slip Op 2127 - NY: Court of Appeals, April 2, 2020