GUARDIAN AD LITEM - WHO PAYS?

If your defendant is in need of a Guardian Ad Litem, this may be an extra cost in the litigation.

41-43 Lawrence Realty LLC v Thompson, 2019 NY Slip Op 51068(U), Decided on June 26, 2019, District Court Of Nassau County, First District Fairgrieve, J.

"As provided by CPLR 1202(a), "[t]he court in which an action is triable may appoint a guardian ad litem at any stage in the action upon its own initiative...." Also, pursuant to CPLR 1204:

"A court may allow a guardian ad litem a reasonable compensation for his services to be paid in whole or part by any other party or from any recovery had on behalf of the person whom such guardian represents or from such person's other property. No order allowing compensation shall be made except on an affidavit of the guardian or his attorney showing the services rendered."

In the instant matter, petitioner's counsel acknowledges that he received the subject order on February 4, 2019. He further states that he only skimmed the order and did not see the provision that the petitioner would be required to pay the legal fees of the guardian ad litem pursuant to CPLR 1204. He further argues that since the order was issued by the court sua sponte, the petitioner did not have an opportunity to oppose the inclusion of this provision. However, petitioner's counsel fails to explain why he waited almost two (2) months to challenge same. Regardless, as previously stated, the court may sua sponte allow a guardian ad litem to be paid in whole or part by any other party (see CPLR 1202[a] and 1204), and petitioner's attorney has not provided any legal authority in support of the instant motion. Accordingly, the petitioner's motion is denied in all respects.

In his cross motion, Mr. Imbroto asserts that he expended 15.9 hours on this matter, and that his hourly billing rate is $375.00 per hour, for a total $5,962.00. He also separately sets forth each of the dates, the amount of time expended and a description of the services rendered. In his motion, petitioner's counsel argues these fees are "way out of line" and that guardian ad litems in the City of New York "are paid a $675.00 flat fee whether they are appointed by motion or sua sponte" (Notice of Motion, ¶ 6).

"In determining reasonable compensation, the responsibility, time and attention required, the result obtained, and the funds available to the person who must bear the cost of the guardian ad litem must be considered" (Alias v Olahannan, 15 AD3d 424, 425 [2d Dept 2005]). Based upon all of the circumstances presented herein, the court determines that the guardian ad litem's fee should be reduced to a rate of $250.00 per hour. Accordingly the petitioner shall pay to Mr. Imbroto the amount of $3,975.00, representing 15.9 hours at a rate of $250.00 per hour, in reasonable compensation for services rendered."

PAYING RENT LATE FOR HABITUAL BREACH OF WARRANTABILITY

The tenants here did not owe any rent, only late fees--charged 31 of 34 times they paid rent late. And they did this intentionally to prod the landlord to get work done as the wood floor sagged, the bathroom was never properly fixed after the ceiling collapsed, and there was water damage and mold.

156 E. 37th St. LLC v. Eichner, NYLJ 2/20/19, Date filed: 2019-02-06, Court: Civil Court, New York, Judge: Judge Jack Stoller, Case Number: 63915/2018:

"New York State implies into every residential lease a warranty that the demised premises are habitable, RPL §235-b(1), and any purported modification of this warranty is void as a matter of public policy. RPL §235-b(2). “The only meaningful weapon a tenant has against a landlord for refusing to maintain the premises in a habitable condition is to withhold rent.” Semans Family Ltd. Pshp. v. Kennedy, 177 Misc 2d 345, 348 (Civ. Ct. NY Co. 1998), citing 520 E. 86th St., Inc. v. Leventritt, 127 Misc 2d 566, 570 (Civ. Ct. NY Co. 1985)(Saxe, J.). See Ansonia Assocs. v. Ansonia Residents’ Asso., 78 AD2d 211, 220 (1st Dept. 1980)(referring, in dicta, to a “right” to withhold rent), Whitby Operating Corp. v. Schleissner, 117 Misc 2d 794, 800 (S. Ct. NY Co. 1982).1 Respondents proved the persistence of ongoing conditions in the subject premises in need of repair, which Petitioner’s own rebuttal witness essentially corroborated, and Respondents proved, particularly by their unrebutted letters in evidence, that they intended to prompt Petitioner to repair the conditions by withholding rent, even if they eventually paid the monthly rent before Petitioner could commence a nonpayment proceeding.

A warranty of habitability defense implicates a “clear public policy interest.” Windy Acres Farm, Inc. v. Penepent, 40 Misc 3d 63, 64-65 (App. Term 2nd Dept. 2013). To the extent that terms of a landlord/tenant relationship impair the ability of a tenant to withhold rent, then, such terms impermissibly modify the statutory warranty of habitability, as follows:

The New York City Housing Authority may not administratively penalize a tenant who withholds rent to enforce the warranty of habitability. Law v. Franco, 180 Misc 2d 737 (S. Ct. Bronx Co. 1999);

While a landlord otherwise has a cause of action for a judgment against a tenant when a tenant’s nonpayment of rent compels the landlord to commence an excessive number of nonpayment proceedings, Adams Tower L.P. v. Richter, 186 Misc 2d 620, 621-22 (App. Term 1st Dept. 2000), bona fide habitability defenses that caused a tenant to withhold rent preclude an eviction on that ground. Chama Holding Corp. v. Taylor, 37 Misc 3d 70, 71 (App. Term 1st Dept. 2012), Hudson St. Equities v. Circhi, 9 Misc 3d 138(A)(App. Term 1st Dept. 2005), citing Bennett v. Mantis, N.Y.L.J., Sept. 13, 2000, at 22:1 (App. Term 1st Dept.), 31-67 Astoria Corp. v. Cabezas, 55 Misc 3d 132(A) (App. Term 2nd Dept. 2017), Time Equities Assocs. LLC v. McKenith, 2019 NY Slip Op. 50123(U), 4 (Civ. Ct. NY Co.), Wonforo Assocs. v. Maloof, 2002 NY Slip Op. 50316(U), 11 (Civ. Ct. NY Co.);

A conditional limitation providing for the forfeiture of a tenancy upon nonpayment of rent is void as against public policy as it deprives tenants of their right to interpose a breach of warranty of habitability claim. Windy Acres Farm, Inc., supra, 40 Misc 3d at 64-65, Reinozo v. Eskander, 2017 N.Y.L.J. LEXIS 2151, *4 (Civ. Ct. Queens Co.);

A landlord may not invoke a lease rider forfeiting a rent credit on nonpayment where the tenant has asserted a good-faith claim of breach of the warranty of habitability. 1461 Amsterdam Ave. LLC v. Carrasquillo, 2015 NY Slip Op. 30831(U), 3 (Civ. Ct. NY Co.);

A landlord may not maintain a holdover eviction proceeding on no alleged cause against an unregulated tenant in retaliation for the tenant withholding the rent to enforce the tenant’s “rights under the warranty of habitability….” Barr v. Huggins, 41 Misc 3d 605, 613 (Civ. Ct. Bronx Co. 2013).

A late fee clause in a lease does not per se offend public policy, and may give rise to a cause of action for a money judgment in a summary proceeding, Brusco v. Miller, 167 Misc 2d 54, 55-56 (App. Term 1st Dept. 1995), as Petitioner seeks herein. However, as applied in this matter, the late fee would penalize Respondents as Respondents withheld rent over repairs. Petitioner’s application of the late fees to these particular facts would therefore impermissibly modify the warranty of habitability just as readily as a conditional limitation or a lease rider forfeiting a rent credit would. Accordingly, the Court finds that the late fee clause, as applied herein, is unenforceable as a matter of public policy.

A separate ground for rendering purported late fees unenforceable is that 5 percent per month, or 60 percent per year, amounts to an excessive and usurious charge. Cleo Realty Assocs., L.P. v. Papagiannakis, 151 AD3d 418, 419 (1st Dept. 2017).

Finally, although Petitioner charged a monthly rent at a so-called “holdover rate” after the expiration of Respondents’ most recent lease and before Respondents vacated, the lease in evidence does not entitle Petitioner to that relief.

Without the late fees and the holdover rate, Respondents do not owe anything to Petitioner. The Court therefore dismisses this proceeding with prejudice."

NASSAU COUNTY MATRIMONIAL MOTION FEES

According to an email received today:

"Please be advised that, effective immediately, the Clerk at the Matrimonial Center can no longer accept payment of any kind, including for motion fees.  All fees need to be paid at the county clerk. 

Jennifer Rosenkrantz
Chair, Matrimonial Law Committee NCBA"

NEW RULES - ACCESS TO HEALTH RECORDS

On September 13, Governor Cuomo signed into law legislation amending the public health law and mental hygiene law to prohibit a charge from being imposed for providing, releasing, or delivering medical records that are used to support the application of a government benefit or program.

As per the Senate  Bill:

"JUSTIFICATION : State law guarantees access to medical records for inspection or copying and provides a fee waiver for patients who cannot afford to pay. All too often, in practice, this does not occur. Complicated process for establishing eligibility and the outsourcing of copying services means that eligible low income New Yorkers are often required to pay for access to their own medical records in contravention of the law. Individuals applying for Social Security disability benefits (including Supplemental Security Income or SSI) need medical records to document their claims. These claimants cannot afford to pay the statutory rate of seventy five cents per page for these records, which often number in the 100s of pages. As a result, low income disabled individuals' ability to access federal disability benefits is consistently undermined. Current law does provide free access; however, the fee waiver is routinely ignored and is poorly enforced. Patients are denied free access for reasons such as medical providers do not tell patients that the fee may be waived, provider forms for requesting copies do not include fee waiver sections, complicated processes for determining patient indegence, and outsourcing of copying to companies that do not understand or enforce fee waiver protections."

S6078 - Details

See Assembly Version of this Bill:

A7842

Law Section:

Public Health Law

Laws Affected:

Amd §§17 & 18, Pub Health L; amd §33.16, Ment Hyg L

THE INTERN

 

A recent article in the New York Law Journal discusses the controversy over New York State Bar Association Committee on Professional Ethics Opinion 1090 (3/31/2016) which concluded:

"A law firm may bill a client for work performed by a student-intern despite the fact that the law firm does not pay the intern, because the intern receives academic credit for the work, as long as (i) the internship program complies with applicable law, (ii) the educational institution does not object to the client charges, and (iii) the charge is not excessive."

See http://www.newyorklawjournal.com/id=1202765491993/New-York-State-Bar-Ethics-Panel-Approves-Practice-of-Law-Firms-Billing-for-Work-by-Unpaid-Interns

AND EVEN MORE RE: SUPERSTORM SANDY

From the Town of Hempstead website:

"Hempstead Town is waiving building department permit fees (building permit and plumbing permit fees) for “in-kind” reconstruction and replacement of homes damaged by Hurricane Sandy in unincorporated areas of the town through September 30, 2014. In addition, the town will waive permit fees through September 30, 2014 for storage pods, and/or private trailers placed on property of single and two-family dwellings being repaired or replaced due to the effects of Hurricane Sandy. Residents of incorporated areas should check requirements of their local villages."

MORE RE: SUPERSTORM SANDY

From the Town of Hempstead website:

"Now extended through September 30, 2014, the Hempstead Town Clerk’s Office is waiving fees for replacement birth, death and marriage certificates, as well as marriage transcripts lost in Superstorm Sandy. Residents must show a FEMA claim or homeowner’s/flood insurance claim in order to take advantage of the fee waiver. Nassau County residents who have lost records in the storm (deed and mortgage documents) can call the Nassau County Clerk at (516) 571-6377 to inquire about replacement records (New York State fees apply)."