NEW YORK DIVORCE - A PRENUP WAIVER OF SPOUSAL MAINTENANCE ALSO NEEDS THE FULL CALCULATION

JM v. GV, 2025 NY Slip Op 25004 - NY King Co. Supreme Court 2025:

"....

Full Presumptive Maintenance Calculations

Parties are entitled to opt-out of the post-divorce maintenance computational formula established in Domestic Relations Law § 236 provided that the parties comply with Domestic Relations Law § 236(B)(3). Domestic Relations Law § 236(B)(3) states that:

"An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Such an agreement may include provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the general obligations law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment."

In the case at bar, under Section 6 of the prenuptial agreement, entitled "SPOUSAL MAINTENANCE", page 13, after recitation of the maintenance guidelines, the maintenance provision provides: "[defendant-husband] will neither seek nor require any maintenance, temporary, permanent or otherwise, or support for himself from [plaintiff] and, therefore, no provision for support or maintenance for [defendant-husband] is made herein." Further, the "Opting Out Provisions", on page 14, states: "[e]ach party acknowledges that he/she has been advised of the provisions of New York Domestic Relations Law §236, Part B, Section 5-a (the "Temporary Maintenance Presumption"), including as amended in June 2015 and signed into law in September 2015, as well as the provisions of New York Domestic Relations Law §236, Part B, Section 6 (Post-Divorce Maintenance Presumption"), which relate to the presumptive correct amount of temporary and post-divorce maintenance, and each party specifically waives and opts out of the application of the Temporary Maintenance Presumption, the Post-Divorce Maintenance Presumption as well as ongoing support or spousal maintenance of any kind."

Defendant contends that he waived his right to spousal support without knowledge of what he would potentially have been entitled to under the post-divorce maintenance formula contained in the Domestic Relations Law. In opposition, plaintiff's counsel makes the distinction between settlement in matrimonial cases and prenuptial agreements arguing that, for settlement in matrimonial cases "the parties are obligated to run the presumptive calculation and explain whether there's a conforming or a deviation from the guideline" [T. 7/16/2024, p.22, 17-19], however, plaintiff's counsel contends that there is no such affirmative requirement for prenuptial agreements. Plaintiff's counsel argues that prenuptial agreements should only be guided under the construction of contracts and are not bound by the maintenance guidelines statute. Defendant's counsel argues that "if a knowing waiver is needed in the context of a separation agreement or a stipulation of settlement by a Pro Se litigant, I am not sure why that wouldn't extend to a prenuptial agreement, which is going to be incorporated into a judgment that is enforced ultimately" [T. 7/16/2024, p.22, 17-19].

The Court rejects plaintiff-wife's contentions. Waiver of maintenance under the maintenance guidelines statute is predicated upon what can be termed "knowing waiver" of what the guidelines sum of maintenance would be but for the waiver. The statute expressly provides that the calculation must be fully articulated where there is a self-represented party (see Domestic Relations Law § 236(B)(6)(g)).

This requirement is intended to ensure that litigants who do not have the benefit of legal counsel have a full and fair opportunity to know what they may be entitled to under the maintenance guidelines statute in the form of an explicitly articulated sum. Only after such an articulated sum is detailed can a self-represented party or parties make a "knowing waiver" of that right. Without an expressly articulated sum resulting from the statutory calculation, any "waiver" by a self-represented litigant is, pursuant to the statute, not knowingly made.

To satisfy the knowing waiver aspect of the maintenance guidelines statute, both parties must provide their incomes and the full calculation, as of the time they enter into the prenuptial agreement, where either or both parties are self-represented because without the inclusion of incomes as of the date of the agreement and the full calculation under the guidelines statute formula, there could be no knowing waiver because the guidelines sum of maintenance would not be explicitly known and, as such, the parties could not expressly waive it (see generally Spiegel v. Spiegel, 206 AD3d 1178 [3 Dept.,2022]). Plaintiff argues, in effect, that it is harmless error that the calculation is not included because parties' incomes may change over time and there is no assurance that the calculation as of the date parties enter into a prenuptial agreement will remain relevant as of the date a party moves to enforce the prenuptial agreement; however, the statute requires only that waiver be knowing made at the time it is waived.

It would be antithetical to the protections of the maintenance guidelines statute to hold that the requirement for knowing waiver for self-represented litigants does not apply to prenuptial agreements.

Here, the prenuptial agreement recites the statutory formula; however, neither party's income as of the time they entered into the agreement is included. Without incomes provided, there was no way to include the full calculation of the maintenance guidelines sum and without that sum there could be no knowing waiver. Moreover, because the full presumptive maintenance calculations were not provided to the defendant, who was not represented by legal counsel, the entire provision related to spousal maintenance must be vacated. The Court notes in section 11, pages 18-19 of the parties' prenuptial agreement there is a severability clause, which would render the remainder of the agreement enforceable (see Spiegel v. Spiegel, 206 AD3d 1178, 1183 [3d Dept 2022]; see also Christian v. Christian, 42 NY2d 63, 73 [1977]); Matter of Wilson's Estate, 50 NY2d 59, 65 [1980]).

In light of the court's decision to vacate the spousal maintenance provision in the parties' prenuptial agreement, the Court need not address the defendant-husband's contention relating to whether the maintenance provision was unconscionable.

Compliance with General Obligations Law 5-311

It is well-established that there can be no waiver of maintenance where it would place either party at risk of becoming a public charge (see General Obligations Law 5-311). General Obligations Law 5-311 provides, as relevant hereto:

"... a husband and wife cannot contract to alter or dissolve the marriage or to relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge."

Here, the provision purporting to relieve the parties of any right to provide maintenance to the other provided no representation as to either parties' income as of the date of the agreement and made no affirmative representation as to whether the alleged waiver of support would not render either party a public charge. As such, the Court cannot find that the waiver did not also violate GOL 5-311 (see generally Bloomfield v. Bloomfield, 97 NY2d 188 [2001]). In Bloomfield, the Court of Appeals found that even if a party had knowingly waived a right to receive support under existing law at the time, the validity of support waivers in marital agreements are still governed by General Obligations Law 5-311 prohibition against contracts that relieve either spouse — husband or wife — from a requirement to support where doing so may make the other spouse a public charge (id. at 194). The Court notes that the general statement in section 10 ("Financial Disclosure") on page 18 of the parties' agreement that "[e]ach party is fully informed of the income, assets, property and financial prospects of the other" is insufficient, alone, to satisfy the obligation of the Court to ensure compliance with GOL 5-311.

The Court finds that defendant has made a prima facie showing that he is entitled to summary judgment on the issue of the prenuptial agreement and maintenance. Plaintiff's opposition is insufficient to defeat summary judgment on the issue of maintenance. As such, the Court grants partial summary judgment to the defendant on the issue of vacating the prenuptial agreement "waiver" of maintenance: the determination of and calculation of maintenance is hereby referred to the trial court, subject to any pendente lite application prior thereto.

......"

TENANTS CANNOT WAIVE PUBLIC POLICY RIGHTS - FAIR MARKET RENT APPEAL

Liggett v Lew Realty LLC 2024 NY Slip Op 03378 Decided on June 20, 2024, New York Court of Appeals:

"It is well settled that an agreement waiving a benefit of the Rent Stabilization Laws is void as against public policy. This rule is not altered by the tenant's status. Accordingly, the stipulation at issue here, which required the tenant to waive his right to file a Fair Market Rent Appeal (FMRA), is void and did not provide a path to deregulation of the subject apartment.

Defendant Lew Realty owns and operates a Manhattan apartment building where plaintiff K.E. Liggett has resided since October 2020 pursuant to a market lease. Liggett commenced this action when Lew Realty attempted to raise her rent in 2021, seeking a declaration that the apartment is rent stabilized and she is entitled to a rent stabilized lease, overcharges, and attorneys' fees.

Liggett's claim is premised on events that occurred decades earlier. In 1984, an initial rent registration for the apartment was filed with the Division of Homes and Community Renewal (DHCR), identifying Edward Brown as the rent controlled tenant of record. When Brown died in 1998—the sole recorded tenant of the apartment—he paid $141.23 in rent per month. Upon Brown's death, Edward McKinney claimed to be Brown's successor to the rent controlled apartment under Braschi v Stahl Associates Co. (74 NY2d 201 [1989]). Lew Realty disputed McKinney's status and commenced a holdover proceeding to evict him

McKinney and Lew Realty settled that proceeding in 2000 through a so-ordered stipulation ("Stipulation"), which provided that McKinney would take tenancy as the first rent stabilized tenant of the apartment rather than maintaining the apartment as rent controlled. Rent control and rent stabilization are both statutory mechanisms intended to "put[ ] a brake upon run-away rent increases" in New York City, though they operate differently (8200 Realty Corp. v Lindsay, 27 NY2d 124, 136 [1970]; see also Braschi, 74 NY2d at 208). Rent control, which applies only to housing built before 1947, subjects rental units to "stringent controls," including strict limits on rent amounts and broad eviction protections (Sullivan v Brevard Assocs., 66 NY2d 489, 492-494 [1985]; 8200 Realty Corp., 27 NY2d at 129; Braschi, 74 NY2d at 209). Rent stabilization, by comparison, gives landlords more leeway to "increase rents within reasonable limits" (8200 Realty Corp., 27 NY2d at 136—137). When a rent controlled unit becomes vacant, it is "automatically . . . subject to the less rigorous provisions of rent stabilization" (Braschi, 74 NY2d at 209, citing 9 NYCRR 2520.11 [a], 2521.1 [a] [1]; see also Sullivan, 66 NY2d at 494 [rent control governs an "ever-decreasing number" of units]).

The Stipulation between McKinney and the landlord provided that McKinney "agrees to accept and the landlord agrees to offer a rent stabilized lease" in McKinney's name at a rate of "$650 per month." It also stated that "$1,650 per month is a fair rent for [the] apartment being removed from Rent Control," a proviso apparently intended to set the initial legal regulated rent under the Rent Stabilization Laws (RSL). The Stipulation further provided that "[f]or as long as Ed McKinney is the tenant, his rent shall be $650 per month plus allowable rental increases." The effect of that provision, which neither party disputes, was to ensure that McKinney would pay a preferential rate of $650, with subsequent increases tied to this number for the duration of his tenancy. McKinney also agreed "not to challenge the rent," thereby waiving his right to challenge the amount of the initial rent through a Fair Market Rent Appeal (FMRA) proceeding. Lew Realty filed the lease with DHCR, registered $1,650 as the "legal regulated rent" and $650 as the "actual rent paid," and mailed McKinney notice of his right to file a FMRA as required by statute, notwithstanding that McKinney had already agreed not to avail himself of the process (see 9 NYCRR 2522.3 [a]).[FN1]

After McKinney vacated the apartment in 2001, Lew Realty renovated it. Lew Realty then took the $1,650 that McKinney had agreed to in the Stipulation (but did not pay) as the initial legal regulated rent and applied increases tied to the vacancy and renovation, as authorized under the RSL. It calculated that with these increases, the legal rent would exceed $2,000, and determined that the apartment was thus subject to luxury decontrol. Lew Realty reported the apartment to DHCR as deregulated, and the next tenant took occupancy of the apartment at an open market rate of $1,650 per month. The apartment has been on the open market since.

In November 2021, Liggett brought a lawsuit alleging that the Stipulation is void as against public policy, and that because the Stipulation led in short order to the deregulation of the apartment, the deregulation was invalid and the apartment remains rent stabilized. Lew Realty moved to dismiss, contending that the Stipulation is enforceable and the deregulation proper. Supreme Court denied the motion, holding that the Stipulation is unenforceable to the extent that it waives the protections of the rent laws.

The Appellate Division reversed and dismissed the complaint (211 AD3d 473 [1st Dept 2022]). Relying on Kent v Bedford Apartments Co. (237 AD2d 140 [1st Dept 1997]), the court concluded that although an agreement by a tenant to waive the benefit of any provision of the rent control law is void, this protection did not apply to McKinney because he was not an established tenant when he signed the Stipulation. The Appellate Division also concluded that because Liggett's claim implicates how rents are set, it is akin to an FMRA and therefore barred by the statute of limitations (see 9 NYCRR 2522.3 [c]). Two Justices dissented, concluding that the Stipulation is void because it undermines the statutory process for setting initial regulated rents by ensuring McKinney would have no incentive to challenge the higher legal rent, and by requiring him to affirmatively waive his right to file an FMRA.

We now reverse.

ew York's Administrative Code provides a specific process for setting the initial rent of an apartment leaving rent control and entering rent stabilization. Under 9 NYCRR 2521.1 (a), the initial regulated rent "shall be the rent agreed to by the owner and the tenant and reserved in a lease or provided for in a rental agreement subject to [*2]the provisions of this Code, and subject to a tenant's right to a Fair Market Rent Appeal to adjust such rent pursuant to section 2522.3 of this Title." The right to file an FMRA is held only by the first tenant of a rent stabilized apartment, so long as that tenant received mailed notice of this right (see 9 NYCRR 2522.3 [a]).

The Code does not allow for waiver of its statutory protections. It expressly provides that "[a]n agreement by the tenant to waive the benefit of any provision of the RSL or this Code is void" (9 NYCRR 2520.13; see also 9 NYCRR 2200.15 ["An agreement by the tenant to waive the benefit of any provision of the Rent Law or these regulations is void"]).

The right to file an FMRA is one such "benefit . . . of the RSL." As with all of the RSL's protections, this right is meant "not to protect just a tenant, but to ensure the viability of the rent regulation system which protects tenancies in general, provides predictability to landlords, and significantly enhances the social, economic and demographic stability of New York City" (390 W. End Assocs. v Harel, 298 AD2d 11, 16 [1st Dept 2002]). The availability of an FMRA provides a crucial check on the initial rent for a rent stabilized apartment. Because that amount serves as the baseline against which subsequent rent increases are calculated, it can affect the apartment's subsequent status and in turn, the overall stock of rent stabilized apartments in New York City.

By securing McKinney's explicit agreement "not to challenge the rent," the Stipulation waived his right to file an FMRA. That bargain circumvented the statutory process, and consequently the Stipulation is void in its entirety as a matter of law (9 NYCRR 2520.13; see also Jazilek v Abart Holdings LLC, 10 NY3d 943, 944 [2008]; Riverside Syndicate, Inc. v Munroe, 10 NY3d 18, 22 [2008]). Because the Stipulation is void, Lew Realty's registration statement based on the Stipulation is as well, and therefore "neither party is entitled to rely on it" (id. at 24) and it cannot serve as the basis for deregulation. It remains to be determined whether the apartment was properly deregulated on some other ground.

In concluding otherwise, the Appellate Division majority relied on Kent v Bedford Apartments Co., which held that the RSL's prohibition of a waiver of rights did not apply to a plaintiff not yet established as a rent stabilized tenant (237 AD2d at 140). Kent, however, is inconsistent with our subsequent case law. In Riverside Syndicate, we examined an agreement whereby tenants "waive[d] all right to challenge the legality of the rent" and agreed to pay more than the allowable amount, in exchange for impermissibly retaining a rent stabilized apartment under circumstances barred by the RSL (10 NY3d at 21). We held the agreement was "on its face" a pact to " 'waive the benefit' of rent stabilization," and "therefore void" (id. at 22). Notably, the tenants in Riverside were not tenants of record, and their settlement, which was so-ordered by the court, resolved a holdover proceeding (id. at 23). We confirmed this point in Jazilek, overturning an Appellate Division decision that relied on Kent and holding that "[a]lthough tenant was not 'of-record' upon entering . . . the so-ordered stipulation violat[ing] the Rent Stabilization Code," nonetheless the agreement was "void as against public policy" (10 NY3d at 944; see also 390 W. End Assocs., 298 AD2d at 14 [enforcing settlements that contravene the RSL "would essentially allow any landlord to evade rent regulations by the mere expedient of a private agreement"]).

Kent is in direct tension with our holdings in Jazilek and Riverside, and we clarify that it is no longer authoritative. Contrary to Kent's conclusion, McKinney's status vis-à-vis the apartment has no bearing on whether the Stipulation was void. Rather, the Stipulation is void because it purports to waive a benefit of the rent laws. Accordingly, Kent provides no basis to dismiss Liggett's claims here. For the same reasons, the Stipulation is not enforceable simply because it resolved a dispute between McKinney and Lew Realty and may have inured to McKinney's benefit (see e.g. Riverside, 10 NY3d at 21-22; Drucker v Mauro, 30 AD3d 37, 38 [1st Dept 2006] ["an agreement in purported or actual settlement of a landlord-tenant dispute which waives the benefit of a statutory protection is unenforceable as a matter of public policy, even if it benefits the tenant"]).[FN2]

Nor does the statute of limitations require dismissal of this action. Such a bar "does not make an agreement that was void at its inception valid by the mere passage of time" (Riverside, 10 NY3d at 24; see also Thornton v [*3]Baron, 5 NY3d 175, 181 [2005] [lease "(r)eflecting an attempt to circumvent the Rent Stabilization Law in violation of the public policy of New York . . . was void at its inception"]).

In sum, despite concerns about the substantial delay between the Stipulation's execution and this litigation's commencement, no statute of limitations bars plaintiff's claim that the apartment is subject to rent stabilization. We hold that the Appellate Division erred in concluding otherwise and in deeming Liggett's complaint untimely. On remand, Lew Realty may rely on other reasons, apart from the Stipulation, to establish that the apartment was not rent stabilized when Liggett took tenancy, such as by establishing the fair rent of the apartment when it first entered rent stabilization in 2000 and applying subsequent allowable increases pursuant to the rent history (see e.g. 9 NYCRR 2522.4; 2522.8). We do not address any issue related to Liggett's rent overcharge claims, as those issues are not before us (see Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 35 NY3d 332, 351 n 4 [2020]).

Accordingly, the judgment appealed from and the Appellate Division order brought up for review should be reversed, with costs, and defendant's motion to dismiss the complaint denied.

Judgment appealed from and Appellate Division order brought up for review reversed, with costs, and defendant's motion to dismiss the complaint denied. Opinion by Judge Halligan. Chief Judge Wilson and Judges Rivera, Garcia, Singas, Cannataro and Troutman concur.

Decided June 20, 2024

Footnotes

Footnote 1: Though Lew Realty filed the initial rent as required, there was no litigated proceeding before DHCR, and Lew Realty does not invoke collateral estoppel here (cf. Gersten v 56 7th Ave. LLC, 88 AD3d 189, 201 [1st Dept 2011]).

Footnote 2: While the Rent Stabilization Code authorizes a tenant to withdraw a complaint where there is "a negotiated settlement between the parties and with the approval of the DHCR, or a court of competent jurisdiction, or where a tenant is represented by counsel" (9 NYCRR 2520.13), McKinney did not file a complaint with DHCR." 

WAIVING RIGHT TO ARBITRATE?

Pierre v. Rochdale Village, Inc., No. 18-CV-6383 (MKB) (ST). Dist. Court, ED New York 2020:

".... Plaintiff argues that Defendant waived its right to compel arbitration by participating in this litigation to Plaintiff's prejudice and by delaying, stalling, and ignoring Plaintiff's alleged requests to arbitrate prior to the filing of this suit. (Pl.'s Opp'n 1-2, 5.)

Defendant contends that Plaintiff cannot establish prejudice, which is required for waiver, and that it did not have notice of Plaintiff's desire to arbitrate. (Def.'s Mem. 6; Def.'s Reply 3.)

1. Deciding the issue of waiver

"[O]rdinarily a defense of waiver brought in opposition to a motion to compel arbitration. . . is a matter to be decided by the arbitrator." Meyer, 159 F.3d at 80 (alteration in original) (quoting S & R Co. of Kingston v. Latona Trucking, Inc., 159 F.3d 66, 80 (2d Cir. 1998)); see also Howsam, 537 U.S. at 85 ("[T]he presumption is that the arbitrator should decide `allegations of waiver, delay, or a like defense to arbitrability.'" (quoting Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983))). However, "[w]hen the party seeking arbitration has participated in litigation regarding the dispute, the district court can properly decide the question of waiver." Meyer, 159 F.3d at 80-81 (citing Bell v. Cendant Corp., 293 F.3d 563, 569 (2d Cir. 2002)); Pacelli v. Augustus Intel., Inc., 459 F. Supp. 3d 597, 612-14 (S.D.N.Y. 2020) ("[C]ourts may properly adjudicate waiver-based objections to arbitration when the type of waiver alleged is that the party seeking arbitration has participated in litigation on the dispute."); Syngenta Crop Prot., LLC v. Ins. Co. of N. Am., Inc., No. 18-CV-715, 2018 WL 1587601, at *3 (S.D.N.Y. Mar. 29, 2018) ("[T]he Second Circuit has recently reaffirmed that `[w]hen the party seeking arbitration has participated in litigation regarding the dispute, the district court can properly decide the question of waiver.'" (quoting Meyer, 868 F.3d at 80-81)); see also Schreiber v. Friedman, 15-CV-6861, 2017 WL 5564114, at *9 (E.D.N.Y. Mar. 31, 2017) (same); Apple & Eve, LLC v. Yantai N. Andre Juice Co., 610 F. Supp. 2d 226, 231 (E.D.N.Y. 2009) (same).

"The Second Circuit [has] not. . . squarely addressed the question of whether litigation-conduct waiver is an issue to be decided by an arbitrator when the parties have agreed to have the arbitrator decide questions of arbitrability." LG Elecs., Inc. v. Wi-LAN USA, Inc., No. 13-CV-2237, 2014 WL 3610796, at *3 n.3 (S.D.N.Y. July 21, 2014) (declining to address the question of who should decide waiver when the issue "ha[d] not been adequately raised" and proceeding to decide waiver), aff'd, 623 F. App'x 568 (2d Cir. 2015); Pacelli, 459 F. Supp. 3d at 614 (citing LG Elecs., Inc., 2014 WL 3610796, at *3 n.3) (noting same). However, one court in this Circuit recently concluded that this question is nondelegable. Pacelli, 459 F. Supp. 3d at 614 ("[P]arties cannot delegate to arbitrators the question of whether, under the judge-made principle of litigation-conduct waiver, a party is barred from asserting its right to arbitration."); see also Id. at 614-15 (noting that "[t]he doctrine is based on prejudice from litigation and the interest of the courts in preventing their processes from being used improperly" and that courts are in the best position to evaluate this prejudice and vindicate this interest); cf. Republic of Ecuador, 638 F.3d at 394 (referring waiver issue to arbitral panel when parties clearly and unmistakably intended panel to decide questions about the validity of the agreement and waiver was based on conduct that "undermin[ed] the agreement" rather than on conduct, like litigation conduct, that waives the right to "tak[e] advantage of an admittedly binding arbitration clause"). But see CMS Inv. Holdings, LLC v. Castle, No. 14-CV-9381, 2016 WL 4557115, at *6 (S.D.N.Y. Aug. 31, 2016) (finding litigation-conduct waiver distinguishable from waiver claimed in Republic of Ecuador but "discern[ing] no relevant difference" and referring question of waiver to arbitrator).

The Court concludes that it may decide the issue of litigation-conduct waiver in this case. However, whether Defendant waived its right to arbitrate based on delay during the grievance procedure or lacked notice of Plaintiff's desire to arbitrate are procedural questions that are presumptively for the arbitrator to decide.^[7] See Howsam, 537 U.S. at 85 ("[I]ssues of procedural arbitrability, i.e., whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, are for the arbitrators to decide." (emphasis omitted) (quoting Revised Unif. Arb. Act of 2000 § 6(c) cmt. 2, 7 U.L.A. 13)); Republic of Ecuador, 638 F.3d at 394 ("[W]e have noted that `defenses to arbitrability such as waiver, estoppel, or delay' are `questions properly decided by arbitrators.'" (quoting Mulvaney Mech., Inc. v. Sheet Metal Workers Int'l Ass'n, Local 38, 351 F.3d 43, 46 (2d Cir. 2003) (per curiam))); Syngenta Crop Prot., LLC, 2018 WL 1587601, at *3 (distinguishing litigation-conduct waiver from waiver by delay and concluding that "[b]ecause [the plaintiff's waiver argument] is a `waiver, delay, or like defense to arbitrability,' involving out-of-court conduct, that gateway procedural dispute is presumptively one for the arbitrator" (citation omitted) (quoting Howsam, 537 U.S. at 84-85)).

2. Waiver by litigation conduct

Federal policy strongly favors arbitration, and waiver of the right to arbitrate "is not to be lightly inferred." Nicosia v. Amazon.com, Inc., 815 F. App'x 612, 614 (2d Cir. 2020) (quoting Thyssen, Inc. v. Calypso Shipping Corp., S.A., 310 F.3d 102, 104-05 (2d Cir. 2002) (per curiam)). Indeed, "the rule preferring arbitration, when agreed upon, ha[s] led to its corollary that any doubts concerning whether there has been a waiver are resolved in favor of arbitration." Louis Dreyfus Negoce S.A. v. Blystad Shipping & Trading, Inc., 252 F.3d 218, 228 (2d Cir. 2001) (alteration in original) (quoting Leadertex, Inc. v. Morganton Dyeing & Finishing Corp., 67 F.3d 20, 25 (2d Cir. 1995)). Nevertheless, a party waives its right to arbitration "when it engages in protracted litigation that prejudices the opposing party." Tech. in P'ship, Inc. v. Rudin, 538 F. App'x 38, 39 (2d Cir. 2013) (quoting Crysen/Montenay Energy Co. v. Shell Oil Co. (In re Crysen/Montenay Energy Co.), 226 F.3d 160, 162 (2d Cir. 2000)).

"To determine whether a party has waived its right to arbitration, [courts] consider `(1) the time elapsed from when litigation was commenced until the request for arbitration; (2) the amount of litigation to date, including motion practice and discovery; and (3) proof of prejudice.'" LifeTree Trading Pte., Ltd. v. Washakie Renewable Energy, LLC, 764 F. App'x 105, 107 (2d Cir. 2019) (quoting La. Stadium & Expo. Dist. v. Merrill Lynch, Pierce, Fenner & Smith Inc., 626 F.3d 156, 159 (2d Cir. 2010)). "There is no rigid formula or bright-line rule for identifying when a party has waived its right to arbitration; rather, the above factors must be applied to the specific context of each particular case." La. Stadium & Expo. Dist., 626 F.3d at 159. However, "[t]he key to a waiver analysis is prejudice. Waiver of the right to compel arbitration due to participation in litigation may be found only when prejudice to the other party is demonstrated." Sutherland v. Ernst & Young, LLP, 600 F. App'x 6, 8 (2d Cir. 2015) (quoting Thyssen, Inc., 310 F.3d at 105); see also Leadertex, Inc., 67 F.3d at 25 ("Although litigation of substantial material issues may amount to waiver, delay in seeking arbitration does not create a waiver unless it prejudices the opposing party." (citation omitted)).

A. Yearlong Delay

Although Plaintiff argues that Defendant waited approximately a year from the time Plaintiff filed the Complaint to raise the arbitration issue, (Pl.'s Opp'n 3), it is well established that delay alone cannot support a finding of waiver. See, e.g., Thyssen, Inc., 310 F.3d at 105 (collecting cases and noting that "[t]his Circuit has refused to find waiver. . . where delay in trial proceedings was not accompanied by substantial motion practice or discovery"); Rush v. Oppenheimer & Co., 779 F.2d 885, 887 (2d Cir. 1985) ("It is beyond question that defendants' delay in seeking arbitration during approximately eight months of pretrial proceedings is insufficient by itself to constitute a waiver of the right to arbitrate. . . ." (citing Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968))); Chehebar v. Oak Fin. Grp., Inc., No. 14-CV-2982, 2017 WL 946292, at *2 (E.D.N.Y. Mar. 7, 2017) (collecting cases finding no waiver despite delays from four months to three years).

Rather, the extent of delay must be considered "in conjunction with (1) the amount of litigation that occurred" during the delay and "(2) any proof that [the party opposing arbitration] was prejudiced by [the other party's] conduct during that period." PPG Indus., Inc. v. Webster Auto Parts, Inc., 128 F.3d 103, 108 (2d Cir. 1997) (citing Leadertex, Inc., 67 F.3d at 25); In re Arb. Between S & R Co. of Kingston & Latona Trucking, Inc., 984 F. Supp. 95, 103 (N.D.N.Y. 1997) ("Although delay alone is generally insufficient to deny a petition to arbitrate, it is. . . relevant in determining whether a party has been prejudiced." (citations omitted)), aff'd sub nom. S & R Co. of Kingston v. Latona Trucking, Inc., 159 F.3d 80 (2d Cir. 1998).

B. Amount of litigation to date

In assessing the amount of litigation for purposes of a waiver analysis, courts find relevant, inter alia, any motion practice engaged in by the parties and the extent of discovery the parties have exchanged. See, e.g., Tech. in P'ship, Inc., 538 F. App'x at 39 (affirming district court's finding of waiver where the party asserting waiver "had to defend two substantive motions to dismiss, then produce its witness for deposition, comply with an extensive document request, and participate in extended discovery disputes"); S & R Co. of Kingston, 159 F.3d at 83 (observing that the waiver analysis includes consideration of "the amount of litigation (including exchanges of pleadings, any substantive motions, and discovery)").

The lack of substantive motion practice in this case weighs against a finding of waiver. See Tech. in P'ship, Inc., 538 F. App'x at 39. Although Plaintiff has been forced to brief the arbitration issue, neither party has briefed the sufficiency of Plaintiff's allegations or the merits of his underlying Title VII claim or filed any other substantive motions. Cf. Rush, 779 F.2d at 888 (explaining that defendants' "motion [to dismiss] alone, however, does not waive the right to arbitrate"); Murray v. UBS Sec., LLC, No. 12-CV-5914, 2014 WL 285093, at *6 (S.D.N.Y. Jan. 27, 2014) (collecting cases finding that a defendant's filing of a motion to dismiss does not itself result in a waiver of the right to arbitration).

Similarly, the extent of discovery and other litigation activity in this case prior to Defendant's pre-motion conference letter raising the issue of arbitration weighs against a finding of waiver. Since Plaintiff filed the Complaint, Defendant has filed an answer,^[8] and the parties have participated in court-annexed mediation that was ultimately unsuccessful, (Minute Entry dated Aug. 15, 2019), and engaged in settlement negotiations, which also failed, (Minute Entry dated Dec. 9, 2019).^[9] No depositions were taken before Defendant raised the issue of arbitration; rather, discovery had been provided "only in anticipation of [the] mediation and a settlement conference," (Def.'s Mem. 6), and it had involved only minimal exchange of documents and responses to interrogatories, (Def.'s Reply 2). Indeed, Plaintiff notes that Defendant had been "reluctan[t] to participate fully in discovery," leading to "limited production." (Pl.'s Opp'n 2.) This limited activity does not support a finding of waiver.

C. Prejudice

Notwithstanding the above, "[t]he key to a waiver analysis is prejudice"; without prejudice, there can be no waiver of the right to arbitrate a dispute. Sutherland, 600 F. App'x at 8 (quoting Thyssen, Inc., 310 F.3d at 105); see Enron Power Mktg. Inc. v. Pub. Util. Dist. No. 1 of Snohomish Cnty. (In re Enron Corp.), 364 B.R. 489, 511 (Bankr. S.D.N.Y. 2007) ("[I]t is the presence or absence of prejudice that is determinative of the issue of waiver."). Moreover, "[p]rejudice is not presumed based on the timing of [an] arbitration demand and. . . participation in litigation — i.e., the first two prongs of the three-part waiver inquiry — standing alone." Nat'l Union Fire Ins. Co. of Pittsburgh v. NCR Corp., 376 F. App'x 70, 72 (2d Cir. 2010) (citing In re Crysen/Montenay Energy Co., 226 F.3d at 162-63).

The Second Circuit has recognized "two types of prejudice: substantive prejudice and prejudice due to excessive cost and time delay." Sutherland, 600 F. App'x at 8 (citing Thyssen, Inc., 310 F.3d at 105). Substantive prejudice exists when, for example, "a party loses a motion on the merits and then attempts, in effect, to relitigate the issue by invoking arbitration." Id. (quoting Kramer v. Hammond, 943 F.2d 176, 179 (2d Cir. 1991)). Prejudice due to excessive cost and time delay may be found "when a party too long postpones his invocation of his contractual right to arbitration[] and thereby causes his adversary to incur unnecessary delay or expense." Id. (quoting Kramer, 943 F.2d at 179); Nat'l Union Fire Ins. Co. of Pittsburgh, 376 F. App'x at 72 ("Prejudice. . . `refers to the inherent unfairness — in terms of delay, expense, or damage to a party's legal position — that occurs when the party's opponent forces it to litigate an issue and later seeks to arbitrate that same issue.'" (quoting In re Crysen/Montenay Energy Co., 226 F.3d at 162-63)); S & R Co. of Kingston, 159 F.3d at 83-84 ("Prejudice results `when a party seeking to compel arbitration engages in discovery procedures not available in arbitration, makes motions going to the merits of an adversary's claims, or delays invoking arbitration rights while the adversary incurs unnecessary delay or expense.'" (quoting Cotton v. Slone, 4 F.3d 176, 179 (2d Cir. 1993)) (citing PPG Indus., Inc., 128 F.3d at 109)). A court will not find waiver where "delay in trial proceedings was not accompanied by substantial motion practice or discovery." Sutherland, 600 F. App'x at 8 (quoting Thyssen, Inc., 301 F.3d at 105).

Relying on In re Crysen/Montenay Energy Co., 226 F.3d at 162-63, Plaintiff argues he will be prejudiced if compelled to arbitrate because he has "expended substantial time, energy, and resources into this litigation." (Pl.'s Opp'n 3.) Plaintiff also notes that, if the Court compels arbitration, he will "be forced to start over on his own." (Id.)

Although the Court is sympathetic to Plaintiff's position, the unfairness he alleges does not rise to the level of prejudice under the law. Apart from time spent learning the Federal Rules of Civil Procedure and the Court's rules as a pro se litigant, Plaintiff has not identified any specific costs incurred, let alone excessive costs. (Id.); Chehebar, 2017 WL 946292, at *2 (noting that costs incidental to the motion practice alone are insufficient). Further, there have been no substantive motions, no court decisions adverse to Defendant, and no discovery that would not otherwise be available in arbitration. (Def.'s Reply 2); Sutherland, 600 F. App'x at 8; S & R Co. of Kingston, 159 F.3d at 83-84. In addition, although Defendant did not move to compel arbitration until nearly one year after filing its answer, the docket reflects that Defendant moved soon after the court-ordered mediation on July 25, 2019, failed. (Def.'s Mot.)

Accordingly, viewing the facts in the light most favorable to Plaintiff, yet mindful that "[w]aiver is not to be lightly inferred," Nicosia, 815 F. App'x at 614 (quoting Thyssen, Inc., 310 F.3d at 104-05), the Court concludes that Defendant has not waived its right to arbitrate by way of its litigation conduct and therefore grants Defendant's motion to stay the action and compel arbitration. In addition to determining whether Plaintiff's claims are arbitrable, the arbitrator will decide any threshold procedural questions, including whether Defendant waived the right to arbitrate by delaying and ignoring Plaintiff's requests to do so prior to the filing of this suit."

As a footnote of my own to this case, I represented the Plaintiff in the mediation under the MAP program and there was substantial time and energy expended in that process.

COMMERCIAL LEASE - CAN ALL COUNTERCLAIMS BE WAIVED

Despite the lease language, not all counterclaims were waived.

525 Jericho Realty v. Anuj Rani Grp., NYLJ July 03, 2019, Date filed: 2019-06-26, Court: District Court, Nassau, Judge: Judge Scott Fairgrieve, Case Number: LT-006565-18NA:

"….Specifically, petitioner relies on paragraph 38 of the parties’ lease rider, entitled “Set-off and Counterclaim,” which reads as follows:

“It is expressly understood and agreed by and between the parties hereto that the Tenant herein shall not be entitled to any abatement of rent or rental value or diminution of rent or additional rent in any dispossess proceedings for the non-payment of rent or additional rent by reasons of any breach by the Landlord of any covenants contained in this Lease on its part to be performed. In any dispossess proceedings for non-payments of rent or additional rent, the tenant shall not have the right of set-off by way of damages, recoupment or counterclaim in damages which Tenant may have sustained by reason of the landlord’s failure to perform any of the terms, covenants or conditions contained in this Lease on its part to be performed. Tenant shall be relegated to an independent action for damages or for any other relief it may seek, including but not limited to claims for breach of Lease, reformation or rescission and such independent action shall not be at any time joined, or consolidated with, nor asserted in, any action for dispossess or for non-payment of rent or additional rent.”

Thus, petitioner argues that respondent is barred from asserting its counterclaim which seeks damages in the sum of $50,000.00 stemming from a leak in the roof of the premises. Petitioner further contends that the parties appeared before this court in a prior non-payment proceeding, under Index Number LT2764/17. In that proceeding, the parties entered into a stipulation dated October 17, 2017, where it was agreed that, inter alia, petitioner was to repair any roof leak damage within 60 days, at the landlords cost and expense. However, petitioner claims that its inability to repair the roof, as required pursuant to the stipulation, was through no fault of its own because respondent had failed to grant it access to make the necessary repairs.

In opposition, respondent’s counsel alleges that despite the terms of the lease, respondent’s counterclaim is “inextricably intertwined” with the petitioner’s claims herein and thus should be considered in the instant summary proceeding. Specifically, respondent claims that petitioner’s failure to make the roof repairs, pursuant to their lease and the 2017 stipulation, resulted in respondent’s partial constructive eviction and as such, resulted in a monetary loss of income, loss of customers and repeated interference with its quiet use and enjoyment of the premises. Respondent also contends that since the roof repairs were agreed to in a separate contract (i.e. a stipulation), its counterclaim may not be precluded. Finally, respondent refutes petitioner’s allegations that it denied petitioner access to the roof, so that repairs could be made. In fact, respondent argues that petitioner was granted access to make the necessary repairs, but failed to do so.

Commercial lease provisions proscribing counterclaims in summary proceedings are generally enforceable (see Titleserv, Inc. v. Zenobio, 210 AD2d 310 [2d Dept 1994]; Amdar Co. v. Hahalis, 145 Misc 2d 987, 987-88 [App Term, 1st Dept, 1990]). However, despite a no-counterclaim provision in a lease, it does not bar the plaintiff from asserting counterclaims in particular instances, upon the court’s discretion (see generally All 4 Sports & Fitness, Inc. v. Hamilton, Kane, Martin Enterprises, Inc., 22 AD3d 512, 513 [2d Dept 2005]). In Haskell v. Sarita, (109 Misc 2d 409, 413 [1981]), the Civil Court of the City of New York stated that it: “becomes the obligation of the court to examine the nature of each pleaded counterclaim when there is a proper motion to sever. A determination must be made whether any pleaded counterclaim alleges reduction or lack of essential services, or interference with the right to possession, use or enjoyment of the demised premises and might thus be inextricably related to the claim for rent.”

As explained in Rasch’s Landlord and Tenant, Including Summary Proceedings, section 43:40 [5th ed. 2018], entitled Waiver of Right to Interpose Counterclaim, “the primary purpose of the summary proceeding statutes is the speedy and inexpensive determination of landlord-tenant controversies, even where there may be some minimal delay inherent in the trial of a counterclaim, where it is so intertwined with a defense so as to be part and parcel thereof, the court should entertain the counterclaim, exercising its discretion to expedite disposition of the entire controversy, avoid multiplicity of other lawsuits between the parties to accomplish the same result, do speedy justice for all, and eliminate greater delay and expense” [internal citations omitted].

Moreover, in Ring v. Arts Intern., Inc., (7 Misc 3d 869, 880 [Civ Ct 2004]), the court found that:
“[a] principal example of a counterclaim within this exception in a commercial nonpayment proceeding is [a] counterclaim of actual or constructive eviction, to offset the obligation to pay rent, because the claim is inextricably entwined with the nonpayment of rent. (Johnson v. Cabrera, 246 AD2d 578, 579 [2d Dept 1998].)”

In discussing a partial constructive eviction, the Court of Appeals in Eastside Exhibition Corp. v. 210 E. 86th St. Corp., (18 NY3d 617, 622 [2012]), stated that:

 “[i]t is well settled that the withholding of the entire amount of rent is the proper remedy when there has been a partial eviction by a landlord (see Fifth Ave. Bldg. Co. v. Kernochan, 221 N.Y. 370, 372-373, 117 N.E. 579 [1917] ['Eviction…suspends the obligation of payment…because it involves a failure of the consideration for which rent is paid…If such an eviction, though partial only, is the act of the landlord, it suspends the entire rent because the landlord is not permitted to apportion his own wrong']). ‘The reason of the rule is, that the tenant has been deprived of the enjoyment of the demised premises by the wrongful act of the landlord; and thus the consideration of his agreement to pay rent has failed’ (Edgerton v. Page, 20 N.Y. 281, 284 [1859]). This is true even if a tenant remains in possession of the premises (see Barash, 26 N.Y.2d at 83, 308 N.Y.S.2d 649, 256 N.E.2d 707).”

In light of the parties’ stipulation of settlement and respondent’s allegations regarding an alleged partial eviction, the court finds that respondent’s counterclaim is “inextricably intertwined,” such that it warrants consideration by the court herein. Accordingly, based upon the foregoing, petitioner’s motion to dismiss respondent’s counterclaim is denied.

ON EMOTIONAL SUPPORT ANIMALS

For NYC tenants, this case has a happy ending for the dog owner because even though she failed to prove it was a support animal, the landlord failed to abide by the 3 month limitation of Section 27-2009.1(b) of the Administrative Code and thus waived the no-pet clause.

Westchester Gardens L.P. v Vargas 2019 NY Slip Op 29058, Decided on March 5, 2019, Civil Court Of The City Of New York, Bronx ,County Weissman, J:

"In Crossroads Apartments Associates v. Kenneth LeBoo, 152 Misc 2d 830 (City Ct, City of Rochester, NY, 1991) the Court succinctly set forth the law on no pet clauses in New York, [*2]saying "New York Courts have long recognized the validity of "no-pet clauses" in leases, and harboring a pet when a lease contains a "no-pet clause" constitutes a substantial breach of the lease agreement (Knolls Cooperative Section No. II v. Cashman, 14 NY2d 579, 248 N.Y.S.2d 875, 198 N.E.2d 255; Kingsview Homes Inc. v. Jarvis, 48 AD2d 881, 369 N.Y.S.2d 201; Lincoln Cooperative Apts., Inc. v. Zaifert, 23 AD2d 796, 258 N.Y.S.2d 903; East River Housing Corp. v. Matonis, 34 AD2d 937, 312 N.Y.S.2d 461; Pollack v. J.A. Green Construction Corp., 40 AD2d 996, 338 N.Y.S.2d 486). ... Landlords may also selectively enforce the "no-pet clause" (Megalopolis Property Assoc. v. Buvron, 121 Misc 2d 662, 468 N.Y.S.2d 819; 1036 Park Corp. v. Rubin, 92 AD2d 452, 458 N.Y.S.2d 595; Trump Village Section 3, Inc. v. Moore, 84 AD2d 812, 444 N.Y.S.2d 134)." (at 832). Thus petitioner was well within its right to institute the within proceeding.

Respondent claims that the dog is necessary for her well being, and for her to enjoy the use of her apartment. In support thereof she presented a letter from Urban Health Plan, Inc., signed by Claire Delgado, LCSW, stating respondent was under their care since May 16, 2018. The letter is dated May 31, 2018, indicates respondent suffered from "adjustment disorder with anxiety and unresolved grief", and "recommended that respondent be allowed to reside with her pet (1 dog) which she requires for emotional support. Please fulfill the patient's request in order to avoid exacerbation of her medical conditions." Respondent did not call any professional witness from Urban Health Plan, Inc., or anywhere else, to testify in her behalf. Thus the Court has only respondent's testimony and Ms. Delgado's letter to support her claim that the dog is an emotional support animal. She is asking this Court to find that petitioner must make a reasonable accommodation for her in that she needs the dog in order for her to enjoy the use of her apartment.

A reasonable accommodation may be required by the State's Human Rights Law if respondent can establish a need. The burden is on the party requesting the reasonable accommodation. One Overlook Avenue Corp. v. New York State Division of Human Rights, 8 AD3d 286 (ad2d, 2004), "To show that a violation of the Human Rights Law occurred and that a reasonable accommodation should have been made, the complainant must demonstrate that her son was disabled, that he was otherwise qualified for the tenancy, that because of his disability it was necessary for him to keep the dog in order for him to use and enjoy the apartment, and that reasonable accommodations can be made to allow him to keep the dog. Here, the complainant failed to demonstrate through either medical or psychological expert testimony or evidence that her son required a dog in order for him to use and enjoy the apartment. Accordingly, the respondent's determination was not supported by substantial evidence." (at 287, citations omitted). See also 105 Northgate Cooperative, et al. v. Donaldson, 54 AD3d 414 (AD2d Dept., 2008), and Lindsay Park Housing Corp., et al. v. New York State Division of Human Rights, et al., 56 AD3d 477 (AD2d Dept, 2008) "The Human Rights Law provides that it is an unlawful discriminatory practice to 'refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford said person with a disability equal opportunity to use and enjoy a dwelling' (Executive Law § 296[18][2] ). To establish a violation of the Human Rights Law for failure to provide a reasonable accommodation, the complainant must establish a disability, the accommodation may be necessary in order for the complainant to use and enjoy his or her apartment, and the building [*3]owner refuses to make such an accommodation. ..." (at 478, citations omitted).

The Court finds that respondent has failed to carry the burden of establishing that the dog is an emotional support animal necessary for her to enjoy the use of her apartment. Part of this determination is the fact that respondent lied when she, allegedly, notified petitioner that the dog was in her apartment by letter dated November 10, 2013 (respondent's exhibit 1 admitted into evidence without objection) only every other weekend while her sister, who traveled for work every other weekend, was traveling, claiming the dog was the sisters dog and she was only dog-sitting. She also claimed in her testimony the dog was actually with her since 2012, when she lived in another apartment in the same building...."

MORTGAGE FORECLOSURE - STANDING DEFENSE WAIVED BUT REVIVED

This mistake was costly as the bank appears to have "waived the waiver." A drafting suggestion may have been: "The standing defense was waived as defendant did not raise it in a pre-answer motion to dismiss or as an affirmative defense. But if (assuming arguendo) this court does not find the defense waived....

BAC Home Loans Servicing, LP v Alvarado, 2019 NY Slip Op 00584. Decided on January 30, 2019, Appellate Division, Second Department:

"The defense of lack of standing in an action to foreclose a mortgage is waived if the defendant does not raise it in a pre-answer motion to dismiss or as an affirmative defense (see CPLR 3018[b]; US Bank Nat. Assn. v Nelson, ___ AD3d ___, 2019 NY Slip Op 00494 [2d Dept 2019]; Bank of N.Y. Trust Co., N.A. v Chiejina, 142 AD3d 570, 572; One W. Bank, FSB v Vanderhorst, 131 AD3d 1028, 1028; see also Matter of Fossella v Dinkins, 66 NY2d 162, 167). Here, in opposition to the plaintiff's motion for summary judgment and in support of their cross motion to dismiss, the defendants argued that the plaintiff lacked standing to commence this action. The plaintiff, in its "reply . . . in further support of plaintiff's motion for summary judgment, and in opposition to defendant's [sic] cross-motion to dismiss," entirely disregarded the defendants' waiver of the standing defense. Instead, the plaintiff sought to establish that it had standing to commence the action. Now, having litigated the standing defense on the merits in the Supreme Court—both on the original motion and in opposition to reargument—the plaintiff argues on appeal that the issue of standing was waived. Having neglected to raise that dispositive issue in the Supreme Court, the plaintiff may not raise it for the first time on this appeal (see Hurley v Tolfree, 308 NY 358, 363; Robles v Brooklyn Queens Nursing Home, Inc., 131 AD3d 1032, 1033; see generally Arthur Karger, Powers of the New York Court of Appeals § 17.1 at 591-592, et seq. [3d ed rev 2005]), and we decline to address it (cf. Sega v State of New York, 60 NY2d 183, 190 n 2; HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822, 824).

The plaintiff also failed, on the merits, to establish prima facie that it had standing to commence the action. The loan servicer's affidavit, which asserted that the named plaintiff "was in possession of the Note at the time of commencement of this action," provided no specifics as to the date of delivery or the date of commencement. The plaintiff's conclusory assertion as to possession on the date of commencement is insufficient to establish standing (see Central Mtge. Co. v Jahnsen, 150 AD3d 661, 663; Deutsche Bank Natl. Trust Co. v Idarecis, 133 AD3d 702, 703-704; cf. Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361; U.S. Bank, N.A. v Noble, 144 AD3d 786, 788; Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 867). Moreover, the plaintiff's alternative ground for establishing standing is without merit (see U.S. Bank, N.A. v Noble, 144 AD3d at 788; Bank of N.Y. v Silverberg, 86 AD3d 274, 282). Accordingly, the Supreme Court should have denied the plaintiff's motion, inter alia, for summary judgment on the complaint and an order of reference."

DIVORCE - IS DELAY OF SALE OF MARITAL RESIDENCE A WAIVER

Kelly v Kelly, 2018 NY Slip Op 06726, Decided on October 10, 2018, Appellate Division, Second Department:

"Contrary to the plaintiff's contention, the defendant's delay in seeking to enforce her rights under the provisions of the parties' judgment of divorce pertaining to the disposition of the marital residence did not constitute a waiver. "Although a spouse may waive his or her rights under a judgment of divorce, [a] waiver must be an intentional relinquishment of a known legal right and will not be inferred from mere silence or inaction" (Andrews v Dolan, 158 AD2d 569, 570 [citation and internal quotation marks omitted]; see Cervera v Bressler, 85 AD3d 839, 842; Chapin v Chapin, 295 AD2d 389, 391).

We reject the plaintiff's contention that language in the judgment of divorce providing that the marital residence "should" be immediately listed for sale indicates that the Supreme Court merely suggested that the residence be sold or, in effect, made such sale optional. The judgment also provides that the property be listed "immediately," that the defendant "is entitled to" 25% of the equity in the house, and that the parties "shall cooperate" in effectuating the sale, which unambiguously express the court's directive that the marital residence be sold and the proceeds distributed to the parties (see Myers v Myers, 242 AD2d 372, 373). Therefore, the only reasonable construction of the judgment of divorce is that the marital residence was to be immediately sold (see Levy-Sitomer v Sitomer, 126 AD3d 511; Matter of Labrovic v Labrovic, 278 AD2d 419; Pottala v Pottala, 261 AD2d 806; Matter of Christodoulou v Christodoulou, 212 AD2d 607).

Accordingly, we agree with the Supreme Court's determination granting that branch of the defendant's motion which was to enforce the provisions of the judgment of divorce pertaining to the disposition of the marital residence."

MORTGAGE FORECLOSURE - WAIVING LACK OF JURISDICTION

In this case, three years after failing to appear, defendant retains counsel but it appears that defendant, after retaining counsel, does not make a motion to vacate default and file a late answer pursuant to CPLR 3012. Only a motion to dismiss for lack of jurisdiction is made after judgment of foreclosure.

U.S. Bank N.A. v Pepe, 2018 NY Slip Op 03168, Decided on May 2, 2018, Appellate Division, Second Department:

"In November 2009, the plaintiff commenced this action against Anthony Pepe (hereinafter the defendant), among others, to foreclose a mortgage. The defendant failed to timely appear or answer the complaint. Thereafter, the Supreme Court, upon the plaintiff's motion, issued a judgment of foreclosure and sale dated October 27, 2014. In June 2015, the defendant moved, inter alia, to vacate the judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction based on improper service. In opposition, the plaintiff argued that the defendant waived any objection to personal jurisdiction by appearing in the action. By order dated October 7, 2015, the Supreme Court referred the matter to a referee for a hearing to determine the validity of service of process. After the hearing, the referee issued a report in which she found that service was not properly made and that jurisdiction was not obtained over the defendant. The defendant moved pursuant to CPLR 4403 to confirm the referee's report, to vacate the judgment of foreclosure and sale, and to dismiss the action insofar as asserted against him for lack of personal jurisdiction. The plaintiff again argued in opposition that the defendant waived any objection to personal jurisdiction by appearing in the action. In an order dated September 7, 2016, the court granted the defendant's motion. The plaintiff appeals, and we reverse.

The filing of a notice of appearance in an action by a party's counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack [*2]of personal jurisdiction (see American Home Mtge. Servicing, Inc. v Arklis, 150 AD3d 1180, 1181-1182; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 984; National Loan Invs., L.P. v Piscitello, 21 AD3d 537, 537-538). Here, the defendant's counsel filed a notice of appearance dated September 4, 2012. The record does not show that the defendant asserted lack of personal jurisdiction in a responsive pleading. Moreover, the defendant did not move to dismiss the complaint for lack of personal jurisdiction until almost three years after appearing in the action, after the judgment of foreclosure and sale had been issued. Under those circumstances, the defendant waived any claim that the court lacked personal jurisdiction over him in this action (see American Home Mtge. Servicing, Inc. v Arklis, 150 AD3d at 1182)."

WAIVING IMPROPER SERVICE DEFENSE

Deutsche Bank Natl. Trust Co. v Acevedo, 2018 NY Slip Op 00407, Decided on January 24, 2018, Appellate Division, Second Department:

"[A]n objection that the summons and complaint . . . was not properly served is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship" (CPLR 3211[e]). Here, the defendant failed to move for judgment on the ground of lack of personal jurisdiction based on improper service within 60 days after his answer was served. Additionally, he failed to made an adequate showing of undue hardship that prevented the making of the motion within the requisite statutory period. Although the plaintiff, appearing by its former attorneys, wrote to the defendant's attorney, stating that the verified answer with affirmative defenses and counterclaims was rejected, this Court has indicated that a "purported rejection of the defendants' answer did not extend the 60-day time limit" (Dimond v Verdon, 5 AD3d 718, 719). Further, less than one month after the defendant's verified answer with affirmative defenses and counterclaims was served, the plaintiff's responsive pleading was served. Under these circumstances, the defendant waived his objection to personal jurisdiction based on improper service (see id. at 719; see also Warsowe Acquisition Corp. v DeNoble, 116 AD3d 949, 950; Reyes v Albertson, 62 AD3d 855, 855)."

ON "SELF HELP" ATTEMPT TO TERMINATE CHILD SUPPORT

Hastie v. Tokle, 122 A.D.3d 1129, --- N.Y.S.2d --- (Third Dept. 2014)(2014 WL 6475115)(Nov. 20, 2014):

......

" Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of two children (born in 1989 and 1990). Pursuant to a 2007 order, the father was directed to pay a single weekly amount for the support of both children. In January 2012, the mother filed a petition alleging that the father had willfully violated the 2007 order by failing to pay child support for a five-month period in 2011. As a defense to the violation petition, the father claimed that the mother had waived her right to child support after the older child had reached the age of 21 and the younger child allegedly had become emancipated. After a hearing, a Support Magistrate (Linen, S.M.) found the father to be in willful violation of the support order and directed judgment against him for arrears. Family Court thereafter confirmed the finding of a willful violation and also directed the father to, among other things, pay the mother's counsel fees. The father now appeals, and we affirm.

We reject the father's contention that the mother waived her right to receive child support. While a parent can expressly waive child support, such waiver must represent a "voluntary and intentional abandonment of a known right" (Matter of Williams v. Chapman, 22 AD3d 1015, 1017 [2005] [internal quotation marks and citations omitted]; see Matter of Dox v. Tynon, 90 N.Y.2d 166, 168 [1997]). Here, the mother sent the father a note in January 2011 indicating that the younger child had graduated from school and had become employed. The following month, the mother sent a second note indicating that both children would be "claiming themselves for the 2010 tax season." The father's attorney advised him that he could stop paying child support because these letters represented an admission by the mother that the children were both emancipated. His attorney then sent a letter to the mother advising her that the father's child support payments would be terminated as of March 2011.

Contrary to the father's arguments, we do not view the mother's notes as reflecting a voluntary and intentional abandonment of her right to receive continued child support, as there is nothing in the notes indicating that the mother agreed that the father was no longer required to pay such support. In addition, the record reflects that, when she received the letter from the father's attorney, the mother was not aware that she had any recourse. Nor did the mother's failure to immediately challenge the letter from the father's attorney by commencing an enforcement proceeding constitute a waiver of child support, as a "recipient may not impliedly ‘waive the right to unpaid child support simply by failing to demand payment or seek enforcement of support obligations' " (Matter of Williams v. Chapman, 22 AD3d at 1016, quoting Matter of Dox v. Tynon, 90 N.Y.2d at 168; accord Matter of Duffy v. Duffy, 30 AD3d 735, 736 [2006]).

In the absence of an express waiver, the father was required to apply to Family Court for a modification of his support obligation (see Matter of Wendel v. Nelson, 116 AD3d 1057, 1058 [2014]; Matter of Williams v. Chapman, 22 AD3d at 1017). Having failed to do so, the father was not entitled to resort to self-help and terminate his support payments based upon his own assessment of his continued legal obligation in view of the children's circumstances. Inasmuch as the father did not commence a modification proceeding, Family Court was precluded from reducing or annulling the arrears that accrued (see Family Ct Act § 451; Matter of Dox v. Tynon, 90 N.Y.2d at 168–169; compare Matter of Russo v. Irwin, 49 AD3d 1039, 1042 [2008]). Therefore, the proof that the father failed to make 26 weekly child support payments constituted prima facie evidence of a willful violation (see Family Ct Act § 454[3][a]; Matter of Richards–Szabo v. Szabo, 99 AD3d 1069, 1070 [2012]), in response to which the father failed to present competent evidence of his inability to pay. As a result, we discern no basis to disturb the finding that the father willfully violated the child support order or the consequent award of counsel fees (see Family Ct Act §§ 438[b]; 454[3]; Matter of Duffy v. Duffy, 30 AD3d at 737).
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WAIVING OBJECTIONS TO DISCOVERY COMPLIANCE

A link to an interesting post on an issue I am currently facing:

Creedon Gill: Waive Discovery

NEW YORK UNEMPLOYMENT INSURANCE - WAIVER

A discussion was had as to whether, in a severance agreement, an employee can waive his/her right to claim unemployment insurance.

Having never seen this issue before, I discovered that the Labor Law has a clear statement on this:

"Sec. 595. Benefit right inalienable.

1. Waiver agreement void. No agreement by an employee to waive his rights under this article shall be valid.
2. Assignment of benefits void. Benefits shall not be assigned, pledged, encumbered, released, or commuted and shall be exempt from all claims of creditors and from levy, execution, and attachment, or other remedy for recovery or collection of a debt. This exemption may not be waived."

However, a severance agreement can raise other issues as the Appeal Board noted:

"Voluntarily separating from employment to accept a severance package when continuing work is available does not constitute good cause for leaving employment (See, e.g., Matter of Cammisa, 38 A.D.3d1146 [3d Dept. 2007]; Matter of Campolattano, 687 A.D.2d 711 [3d Dept. 1999]; Matter of Standford, 54 A.D.3d 1095 [3d Dept. 2008]). "

TERMINATION LETTERS WHEN DISCHARGED

I have now seen several cases where employees who are discharged are asked to sign a piece of paper. Some of these papers are entitled "Exit Interview", "Exit Receipt" or whatever. In some circumstances, after an employee is fired or downsized, many companies have the employee sign an acknowledgment of wrongful conduct or a letter of resignation - this will adversely affect your claim for unemployment benefits. In other circumstances, after an employee is fired or downsized, many companies have the employee sign a waiver giving up the right to sue for wrongful termination in exchange for a severance package. Whether these documents are enforceable is not always clear and will depend on the specific circumstances of each case. To be unenforceable, the employee will usually have to show that the document was signed under duress or as a result of some other wrongful action by the employer. If you have been terminated and asked to sign any document, you should speak to a lawyer before doing so. If you have already signed such a document, a lawyer can determine whether it is enforceable. A lawyer can also represent you in court.