NY CHILD CUSTODY - AFC RIGHT TO APPEAL

Matter of Abdoch v Abdoch, 2026 NY Slip Op 03219, (May 21, 2026 NY Court of Appeals):

"The question of whether an attorney for the child (AFC) has the authority to appeal a custody determination made pursuant to Family Court Act article 6 has divided the Appellate Division. We hold that under the plain language of the Family Court Act, an AFC has the authority to appeal a custody determination when the subject child is aggrieved. We therefore reverse the Appellate Division order dismissing the appeal and remit for further consideration.

In proceedings pursuant to article 6 of the Family Court Act, the child may be represented by an attorney appointed at the court's discretion (see Family Ct Act § 249 [a]). The AFC must zealously represent the child's interests, including by advocating for the child's wishes in Family Court (see 22 NYCRR 7.2 [d] [1]-[3]). When an AFC has been appointed by Family Court, their appointment continues without further action by that court when either "the attorney [*2]on behalf of the child files a notice of appeal, or . . . a party to the original proceeding files a notice of appeal" (Family Ct Act § 1120 [b]).

The Appellate Division Departments have split over whether an AFC can appeal a custody determination on behalf of their client when neither parent-party has appealed. The Second Department has endorsed the AFC's authority to appeal on behalf of their client, emphasizing that the Family Court Act expressly "recognizes that an [AFC] has the right to pursue an appeal on behalf of the child" because it permits the AFC to file a notice of appeal (Matter of Newton v McFarlane, 174 AD3d 67, 72-73 [2d Dept 2019]). The First and Third Departments have adopted the Second Department's reasoning (see Matter of Kylie P. [Carlos P.—Karen G.], 213 AD3d 463, 463 [1st Dept 2023]; Matter of Amber B. v Scott C., 207 AD3d 847, 848 n 1 [3d Dept 2022]). The Fourth Department has taken a different approach, dismissing appeals taken solely by an AFC when neither parent-party appeals or otherwise indicates their support for the child's appeal, reasoning that a "child in a custody matter does not have 'full-party status' " and therefore cannot force their parent to " 'litigate a petition that [they] ha[ve] since abandoned' " (Matter of Lawrence v Lawrence, 151 AD3d 1879, 1879 [4th Dept 2017], quoting Matter of McDermott v Bale, 94 AD3d 1542, 1543 [4th Dept 2012], and Matter of Kessler v Fancher, 112 AD3d 1323, 1324 [4th Dept 2013]; cf. Matter of Muriel v Muriel, 228 AD3d 1345, 1346-1347 [4th Dept 2024] [reaching the merits of an AFC's appeal because the mother had attempted to file her own appeal and supported the AFC's appellate arguments]).

This appeal concerns a Family Court proceeding involving mother, father, and their four children. Mother and father had an agreed-upon custody order providing that the children lived primarily with mother. Father petitioned to modify the custody order, and mother opposed in a competing petition. The attorney appointed to represent the four children opposed father's petition and advocated that the children wished to continue living primarily with mother. Family Court issued an order determining that modification was warranted and awarding the parents joint custody "with designated zones of influence" and shared residency. The AFC noticed an appeal from Family Court's order. Although mother did not file her own appeal, she appears to have filed a letter with the Appellate Division supporting the children's appeal. Father did not appear in connection with the appeal. The Appellate Division dismissed the appeal, following Fourth Department precedent holding that children in custody matters cannot appeal independent of [*3]the parent-parties (see 235 AD3d 1251, 1251 [4th Dept 2025], citing Lawrence, 151 AD3d at 1879). We granted the AFC leave to appeal to this Court (see 44 NY3d 902 [2025]).

We hold that the Family Court Act authorizes an AFC to appeal on behalf of their client. Family Court Act § 1120 (b) provides that the AFC's appointment continues when "the attorney on behalf of the child files a notice of appeal." In turn, section 1115 provides that an appeal is taken by filing a notice of appeal, which begins the appellate process (see Family Ct Act § 1115). Reading these two sections in harmony, the Family Court Act clearly authorizes an AFC to appeal a Family Court decision on behalf of their client (cf. Matter of Marian T. [Lauren R.], 36 NY3d 44, 49 [2020], quoting Matter of Mestecky v City of New York, 30 NY3d 239, 243 [2017] [when " 'statutory language . . . is but one component in a larger statutory scheme, it must be analyzed in context and in a manner that harmonizes the related provisions and renders them compatible' "]). To hold otherwise would render section 1120 (b)'s relevant language without practical effect.

The Family Court Act plainly authorizes an AFC to appeal on behalf of the subject child even though the child is not a full party to the custody proceedings. However, the subject child—like any appealing party—must still meet the CPLR's aggrievement requirement and other applicable jurisdictional requirements (see CPLR 5511 [only an "aggrieved party" may appeal]; Family Ct Act § 165 [a] [Family Court proceedings follow the provisions of the CPLR unless a different procedure is set forth in the Family Court Act]). Here, the children were aggrieved as the AFC argued against modifying the original custody order designating mother as the primary custodial parent and advocated that the children wished to remain primarily with her, but Family Court modified the custody order by awarding mother and father joint custody and shared residency.

We hold only that an AFC is authorized to appeal a custody determination on behalf of an aggrieved child. We have no occasion to address how a parent's participation or failure to participate in an appeal may bear on other issues raised on such an appeal.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to the Appellate Division for consideration of the facts and issues raised but not determined on appeal to that Court.

Order reversed, without costs, and matter remitted to the Appellate Division, Fourth Department, for consideration of the facts and issues raised but not determined on appeal to that Court. Opinion by Judge Singas. Chief Judge Wilson and Judges Rivera, Garcia, Cannataro, Troutman and Halligan concur.

Decided May 21, 2026"

DIVORCE - LEGAL FEES DURING AN APPEAL WITH STAY

Kaplan v. Kaplan, Date filed: 2023-03-30, Court: Supreme Court, Nassau, Judge: Justice Stacy D. Bennett, Case Number: 800273/20:

"CPLR §5519(a)(2) provides that a stay may be obtained without court order where “the judgment or order directs the payment of a sum of money, and an undertaking in that sum is given that if the judgment or order appealed from, or any part of it, is affirmed, or the appeal is dismissed, the appellant or moving party shall pay the amount directed…” CPLR §5519(c) provides “the court from or to which an appeal is taken or the court of original instance may stay all proceedings to enforce the judgment or order appealed from pending an appeal or determination on a motion for permission to appeal in a case not provided for in subdivision (a) or subdivision (b), or may grant a limited stay or may vacate, limit or modify any stay imposed by subdivision (a), subdivision (b)…” (emphasis added).

This Court recognizes that there is an incongruity in the interplay between CPLR §5519 and DRL §237, DRL §237 allows for an award of legal fees to the “less monied” spouse in order to level the playing field and create a sense of equality between the parties however CPLR §5519 allows for a party with significantly more in resources to create a delay in the payment of legal fees for potentially years, creating the precise issue that the DRL §237 seeks to ameliorate. In Wechsler v. Wechsler, 8 Misc.3d 328 (Sup. Ct., N.Y. Co., 2005), the Court (Gische, J.) articulated the injustice associated with the utilization of CPLR §5519(a)(2) within the context of an award of interim attorney’s fees. The Court stated, in relevant part:

By appealing a decision awarding a non-monied spouse interim counsel fees, and then bonding the award to stay enforcement pending appeal, a monied spouse can compromise a nonmonied spouse’s ability to litigate the ongoing case proceeding at the trial level. The effect of the stay is to prevent the non-monied spouse from receiving money to pay professionals as the case continues. Thus, the monied spouse achieves indirectly what it could not do directly, depriving the nonmonied spouse of the ability to pay for representation while the case is ongoing.

In Karg v. Kern, 125 A.D.3d 527 (1st Dept., 2015), the First Department affirmed the lower court’s vacatur of an automatic stay of interim matrimonial counsel fees. The First Department held that the CPLR §5519 stay “prevent[ed] an even playing field in the litigation.”

In B.N. v. M.N., 76 Misc.3d 1202(a), 172 N.Y.S3d 919 (Sup. Ct., Nassau Co. 2022), an award of interim legal fees was the subject of an appeal, and the payor-husband posted an undertaking in the amount of the interim legal fees thereby creating a stay of enforcement of the Order. The Court (Dane, J.) initially made the threshold determination as the court of original instance, it had the authority pursuant to CPLR §5519(c) to vacate the stay imposed by the posting of the bond. Following a determination that the court had the power to vacate the stay, the court held that it was incumbent upon the Court to ensure that counsel fees pursuant to DRL §237 are “timely paid” and the Court relied, in large part upon the determination in Wechsler, that “the fact that the stay is automatic does not remove it from the purview of the court’s discretion to otherwise vacate, limit or modify the stay.”

This Court is vested with the power and authority to vacate or modify the stay created by the husband by virtue of his posting of a bond pursuant to CPLR §5519. The trial of this matter was concluded, and a Judgment of Divorce was issued. To the extent that the wife requires an award of fees associated with the pending appeal, the wife has legal remedies with respect to same. The fees awarded to the wife pursuant to the Decision and Order After Trial were not awarded as interim fees, but rather fees awarded after the parties submitted their respective post-trial briefs. There was no “unequal playing field” as a result of the financial inequity of the parties and the posting of the bond did not compromise the legal representation the wife received during the parties’ divorce. Indeed, while the husband enjoys the benefit of a stay with respect to his court-ordered counsel fee obligation, the Judgment of Divorce remains in full force and effect and to the extent that enforcement of that Order is necessary (other than the payment of attorney’s fees to wife’s counsel) the wife has the right to pursue same and seek relief pursuant to DRL §238.

This Court acknowledges the disjunction that exists by virtue of the self-imposed stay created by CPLR §5519(a)(2) and the award of interim attorney’s fees pursuant to DRL §237 to a “less monied” spouse in order to ensure that “the matrimonial scales of justice are not unbalanced by the weight of the wealthier spouse’s wallet.” See O’Shea v. O’Shea, 689 N.Y.S.2d 8 (1999). This case is distinguishable from the cases cited above as the award of legal fees was made at the conclusion of the matrimonial matter whereas the vacatur of the §5519(a)(2) stay in Wechsler, Karg and B.N., supra, was the result of a determination by the Court that the legal fees awarded were necessary to avoid an unfair advantage to the monied spouse during a divorce.

Based upon this Court’s determination the legal fees awarded within the Decision and Order After Trial were not awarded as and for prospective legal fees to “even” the litigation playing field relative to the prosecution/defense of a matrimonial action, this Court declines to vacate the stay pursuant to CPLR §5519(a)(2). Accordingly, the wife’s application to vacate the automatic stay of the Decision and Order After Trial dated July 29, 2022 and the Judgment of Divorce dated December 22, 2022 is hereby DENIED."

FOIL LITIGATION

I have been receiving various questions on this issue. Only after all administrative remedies have been fully exhausted, may an Article 78 proceeding be entertained. And as noted by the 2nd Dept:

"FOIL requires that public agencies `make available for public inspection and copying all records' except where they fall within one of the statute's enumerated exemptions" (Matter of Kosmider v Whitney, 34 NY3d 48, 54 [2019], quoting Public Officers Law § 87[2]; see Matter of New York Times Co. v District Attorney of Kings County, 179 AD3d 115, 121 [2019]). Public Officers Law § 89(3)(a) provides, in pertinent part: "Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied.... An agency shall not deny a request on the basis that the request is voluminous or that locating or reviewing the requested records or providing the requested copies is burdensome because the agency lacks sufficient staffing or on any other basis if the agency may engage an outside professional service to provide copying, programming or other services required to provide the copy, the costs of which the agency may recover.... If an agency determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part. Upon payment of, or offer to pay, the fee prescribed therefor, the entity shall provide a copy of such record and certify to the correctness of such copy if so requested, or as the case may be, shall certify that it does not have possession of such record or that such record cannot be found after diligent search" (emphasis added)."

MATTER OF LEPPER v. Village of Babylon, 190 AD 3d 738 - NY: Appellate Div., 2nd Dept. 2021

A MASSACHUSETTS CASE - TERMINATION OF PARENTAL RIGHTS

 

IN RE ADOPTION OF GHITA, Mass: Appeals Court 2022:

"By the Court (Neyman, Ditkoff & Hand, JJ.^[12])

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

The mother appeals from a decree issued by a Juvenile Court judge terminating her parental rights to her daughter pursuant to G. L. c. 119, § 26, and G. L. c. 210, § 3.^[2] We conclude that the trial judge properly found that the Department of Children and Families (DCF) made reasonable efforts toward reunification. Further concluding that the mother had adequate representation and that the DCF attorney did not have a disqualifying conflict of interest, we affirm.

1. Background.

a. Pretrial activity.

The mother has a long history with DCF. We, however, largely limit our discussion to the events since the birth of the child in November 2018. One day after the child was born, a hospital social worker called DCF to report possible neglect of the child after the mother tested positive for marijuana^[3] and refused to provide her home address to the hospital. Two social workers responded, but the mother refused to let them in to see her.^[4] The nurse supervisor tried to explain to the mother that the social workers just wanted to talk with the mother about her plan for the baby, but the mother began yelling and swearing and told the nurse supervisor that she would assault the social workers if they entered the hospital room.

Subsequently, the mother packed up her belongings, tore up the child's birth certificate, pulled the IV out of her own arm, kissed the child on the head, and left the hospital without the child and against medical advice. DCF assumed custody of the child and, upon her discharge from the hospital, placed her in a foster home. The child has lived in the same preadoptive foster home without disruption since her initial placement.

The mother first visited the child on December 13, 2018. The mother appropriately soothed the child, changed her diaper without issue, and was affectionate, providing a blanket as a gift after the visit. DCF offered the mother nearly weekly visits, but the mother attended subsequent visits only sporadically. When the mother attended visits, she had appropriate interactions and was nurturing, but her ability to respond to the child's needs was minimal.

On March 15, 2020, DCF closed its offices because of the COVID-19 pandemic. From March to July 2020, the mother was offered weekly video or phone visits with the child, but she refused them.^[5] On July 15, 2020, DCF reopened its offices. The social worker offered the mother in-person visits, with COVID-19 protocols requiring the mother to call the social worker the morning of each visit to confirm that she had no COVID-19 symptoms, to wear a face mask the entire visit, and not to share snacks with the child.^[6] The mother did not attend any of the six visits offered biweekly between DCF's reopening and the trial. As of the trial, the last time the mother had visited the child, either in person or virtually, was March 2, 2020.

DCF assigned the mother eleven action plan tasks that have remained largely unchanged since the child's birth. The tasks include individual therapy, an anger management course, medical and psychological evaluations, weekly visits with the child, and finding stable housing. Since the child's birth, the mother has struggled with inadequately treated mental health issues and housing instability.

When the child was born, the mother denied that she was currently receiving mental health services. The mother has been diagnosed with mood and personality disorder, borderline personality disorder, posttraumatic stress disorder, and bipolar disorder, and has a history of trauma and domestic violence. Although she was previously prescribed Wellbutrin and Adderall, there is no evidence that the mother has taken either medication since the child's birth. On December 12, 2018, the mother rejected DCF's recommendation that she attend treatment and therapy. The mother became angry when social workers attempted to discuss mental health services with her. The mother told the social worker that she was seeing a therapist after the child's birth, but the mother never provided a release for the therapist's records, and the social worker was unable to confirm that the mother was seeing the therapist.

The mother has consistently refused to give DCF her address. During 2018 and 2019, DCF attempted to schedule several home visits with the mother, but she did not keep any of the scheduled visits. Specifically, in December 2018, DCF attempted to schedule a home visit, but the mother kept indicating that she needed to check with the father then never followed up with DCF. She refused to give DCF access for a home visit, saying it was none of DCF's business. In January 2019, the mother reported that she was living with the father, despite having told her social worker that she no longer lived there, but she refused to disclose the address to DCF.^[7]

In February 2019, the father alleged that the mother tried to hurt herself with a knife and then swung it at him when he tried to retrieve it. The father obtained an abuse prevention order against the mother. That same month, the mother was admitted to a psychiatric facility after she cut herself and then attempted suicide after being goaded by the father.

Sometime before February 28, 2019, the mother reported that she was no longer living with the father and had moved in with a friend. The mother did not disclose this friend's address to DCF, and the mother was asked to leave the friend's house sometime before July 2019 because of the friend's involvement in a probate matter.

In October 2019, the mother was "couch surfing." In July 2020, the mother reported that she had found housing with three roommates and told her social worker that she had been living there for over a year but refused to provide her address.^[8]

DCF has attempted to engage the mother in her action plan. Sometime before November 2019, a social worker offered to go over the mother's action plan with her, but she refused. Between November 2018 and November 2019, the mother was provided a copy of her action plan at least twice.

In November 2019, DCF assigned a new social worker to the mother. The mother told the social worker that she was not interested in receiving services or getting referrals because she did not need them. The new social worker never made any referrals for the mother, but the social worker told the mother that, if she wanted services, then the social worker would readily make referrals for the action plan items. Specifically, the social worker would have referred the mother to individual therapy, medication maintenance, a psychological evaluation, an anger management course, and parenting classes. In May 2020, the mother asked for information about anger management classes in the area, and the social worker provided the information and a copy of the mother's action plan to her.^[9] The mother never made DCF aware of her participation in any anger management classes.

With the exception of attending some visits with the child, the mother has not engaged on any of the action items in her plan, nor has she signed any releases for DCF. The mother's refusal to engage in services is consistent with her previous involvement with DCF.

b. Trial.

On October 14, 2020, the judge held a best interests hearing.^[10] The mother was not present. Counsel for the mother informed the judge that the mother was outside the court house. Counsel indicated that he had spoken with the mother at 6:30 A.M. that morning and had spent two hours per day for the three prior days texting and speaking over the phone with the mother. Around 9 A.M. on the morning of trial, the mother sent the trial counsel a list of questions she wanted counsel to ask. The mother expressed anxiety about what she believed was going to happen at trial.

The judge offered that the mother could attend by telephone, and the mother's counsel told the judge that the mother had already refused his suggestion that she attend by telephone, but that he would like to try again. The judge decided to deal with preliminary matters to give the mother more time to appear.

After preliminary matters were complete, the judge gave the mother's counsel an opportunity to go talk with her and see if she was willing to participate in person or by telephone. The judge noted that the parties "have worked very hard to accommodate Mother's mental health needs, her anxiety."

The mother's counsel told the judge that he spoke to the mother for about five minutes, and the mother represented that she was not in a mental state fit to come into the court room. Her counsel reported that he asked the mother what she wanted him to report to the judge on her behalf, and counsel told the judge that the mother said, "[S]he does not have adequate legal representation. DCF has not given her the referrals she needs, and that she believes DCF counsel has a conflict of interest because [DCF counsel has] represented [DCF] in all her cases." The mother's counsel did not formally move to continue the trial.

The DCF attorney asked the judge to draw a negative inference from the mother's absence from court, and the mother's counsel countered that the mother was "under no mental condition to come to court." The judge ultimately "drew a negative inference from her failure to appear that if she had appeared, she would have no evidence to counter [DCF]'s evidence."^[11]

The judge found the mother unfit and terminated her parental rights to the child. This appeal followed.

2. Standard of review.

On review of a judge's decision to terminate parental rights, we give substantial deference to the trial judge's decision, and "reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011). "A finding is clearly erroneous when there is no evidence to support it, or when, `although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Adoption of Talik, 92 Mass. App. Ct. 367, 370 (2017), quoting Custody of Eleanor, 414 Mass. 795, 799 (1993). An abuse of discretion exists where the reviewing court concludes that "the judge made a `clear error of judgment . . . such that the decision falls outside the range of reasonable alternatives.'" Commonwealth v. Wood, 90 Mass. App. Ct. 271, 275 (2016), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

3. Reasonable efforts.

"Before seeking to terminate parental rights, [DCF] must make `reasonable efforts' aimed at restoring the child to the care of the natural parents." Adoption of Ilona, 459 Mass. at 60, quoting Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002). This duty to make reasonable efforts, however, presumes the mother's fulfillment of her own responsibilities, including action plan compliance and maintaining meaningful contact with DCF. See Adoption of Eduardo, 57 Mass. App. Ct. 278, 282 (2003) ("Because the mother failed to make use of the services offered to strengthen and then reunify her family and denied her mental health needs by refusing both evaluation and treatment, she cannot successfully argue that [DCF's] reasonable efforts failed to accommodate properly her mental health needs or to strengthen her family"). Despite this requirement, "even where [DCF] has failed to meet this obligation, a trial judge must still rule in the child's best interest." Adoption of West, 97 Mass. App. Ct. 238, 242 (2020), quoting Adoption of Ilona, supra at 61.

Here, the mother rejected DCF referrals, was not compliant with her action plans, and failed to provide DCF with important information. The mother refused treatment and therapy on December 12, 2018, told a social worker that she did not need services or referrals on or after November 2019, and became angry when social workers attempted to discuss mental health services with her. The mother requested information on anger management classes once, but she did not provide DCF any reason to believe she attended the class. The social worker would have referred the mother to individual therapy, medication maintenance, a psychological evaluation, an anger management course, and parenting classes if the mother had been willing to take referrals.

During 2018 and 2019, DCF attempted to schedule several home visits with the mother, but she did not keep any of the scheduled visits. Before November 2019, a social worker offered to go over the action plan with the mother, but she refused. The mother was provided a copy of her action plan at least twice. The mother never signed any releases for DCF. Accordingly, the judge reasonably found that DCF met its obligation to make reasonable efforts to restore the child to the care of the mother under the circumstances.

4. Representation.

"A parent facing termination of parental rights is entitled to the effective assistance of counsel." Adoption of Ulrich, 94 Mass. App. Ct. 668, 672 (2019). In assessing whether a parent received effective assistance of counsel, "[f]irst, we look to determine whether the `behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer' and, if so, we further inquire `whether [counsel's conduct] has likely deprived the [parent] of an otherwise available, substantial ground of defence.'" Adoption of Yvette (No. 1), 71 Mass. App. Ct. 327, 345 (2008), quoting Care & Protection of Stephen, 401 Mass. 144, 149 (1987).

Here, the mother has not shown any deficiency in her counsel's performance. The mother's counsel was in regular contact with her before and during the trial. When the mother did not appear at the trial, her counsel explained to the judge that the mother was outside and did not feel that she was in a mental state fit to come into the court room. Counsel suggested to the mother that she could attend by telephone, and, when the mother declined, counsel raised the mother's three issues on her behalf.

The mother's counsel appropriately opposed the judge's decision to draw a negative inference from the mother's absence, explaining that the mother was "under no mental condition to come to court." Although counsel did not formally move to continue the trial, the judge had already expressed that the parties had "worked very hard to accommodate Mother's mental health needs, her anxiety."

Because counsel's performance did not fall measurably below that which might be expected of an ordinary fallible lawyer, we need not assess whether counsel deprived the mother of any substantial ground of defense. We note, however, that the mother has not argued that she had any substantial ground of defense that was not presented to the judge, and no such ground is apparent from the record.

5. Conflict of interest by DCF attorney.

The mother argues that the DCF attorney had a conflict of interest because she had represented DCF in other cases against the mother. Generally, an attorney is disqualified from representing a party when the attorney has previously represented an adverse party on a similar or related issue. See Commonwealth v. Colon, 408 Mass. 419, 431 (1990) ("Generally, conflicts on the part of a district attorney arise when the prosecutor formerly was employed by the defendant or when the prosecutor's freedom from private influence is in question"). Similarly, a DCF attorney may be disqualified if that attorney or her colleagues have a personal stake in the outcome of the proceedings. See Adoption of Natasha, 53 Mass. App. Ct. 441, 442, 449 (2001) (local Department of Social Services office had conflict of interest when supervisor from that office was proposed adoptive parent of child). But see Adoption of Eduardo, 57 Mass. App. Ct. at 280-281 (Department of Social Services was rightfully not disqualified as petitioner even though mother had separate suit against department because judge was aware of other suit and there was no showing that department acted with bias against mother).

Here, the DCF attorney had never represented the mother, and there is no indication that the attorney or her colleagues had any personal stake in the litigation. The information that the DCF attorney had acquired from representing DCF in other cases was not disqualifying. Such information, in fact, is admissible. See Adoption of Luc, 484 Mass. 139, 145 (2020). There is no basis to disqualify a DCF attorney merely because she previously represented DCF in proceedings against the mother. Indeed, even a judge will not be disqualified merely based on the judge's previous judicial involvement in proceedings against a parent. See Care & Protection of Martha, 407 Mass. 319, 329 (1990) (judge may preside over termination hearing even if judge also presided over removal hearing); Adoption of Gabrielle, 39 Mass. App. Ct. 484, 486 (1995) ("Even knowledge of damaging information against a party does not disqualify a judge from continuing to sit on a case"). Accord Commonwealth v. Adkinson, 442 Mass. 410, 415 (2004). Accordingly, we discern no abuse of discretion in the trial judge's decision to terminate the mother's parental rights.

Decree affirmed.

[1] A pseudonym.

[12] The panelists are listed in order of seniority.

[2] The judge also terminated the parental rights of the father. He did not appeal.

[3] Shortly after birth, the child tested negative for marijuana.

[4] Earlier, the mother had indicated she would not speak to social workers because they would take the child away. To the social workers, the mother expressed that she was tired and wanted to relax.

[5] The mother indicated that she did not want people listening to her conversations with the child and did not think phone calls were meaningful because the child was too young to speak.

[6] The social worker asked the mother if she would be willing to wear a gown over her clothes during visits but did not require this.

[7] The mother claimed that she was not on the father's lease, so visits or mail from DCF could cause the father to lose his apartment.

[8] The mother indicated that she did not want DCF to ruin her roommates' lives.

[9] At the mother's request, the social worker also provided a copy of the action plan to the mother's counsel.

[10] On the motion of the mother's counsel, the judge held the hearing in person.

[11] Although the mother did not raise this issue on appeal, this negative inference is inconsistent with the judge's finding that the "Mother's mental health issues prevented her from entering the courthouse and participating in this trial." See Adoption of Talik, 92 Mass. App. Ct. 367, 372 (2017), quoting Singh v. Capuano, 468 Mass. 328, 334 (2014) (in deciding whether to draw adverse inference, judge "is to consider whether such an inference is `fair and reasonable based on all the circumstances and evidence before' her"). We see no prejudice, however, in light of the substantial evidence of the mother's parental unfitness. See Adoption of Luc, 484 Mass. 139, 148 (2020) ("We need not decide whether the judge erred in admitting . . . documents because, even assuming error, there was no resulting prejudice").?

A MASSACHUSETTS CRA CASE

"MATTER OF BERTRAND, 486 Mass. 1004 - Mass: Supreme Judicial Court 2020:

"The petitioner, a child who was the subject of a child requiring assistance (CRA) petition, see G. L. c. 119, § 39E, filed by his mother in the Juvenile Court, appeals from the judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3, seeking review of certain orders issued by the Juvenile Court. We affirm.

In addition to seeking review of the Juvenile Court's orders in the CRA case, the child also sought an order from the single justice directing the Juvenile Court to dismiss the CRA petition. He also requested that a committee be formed to promulgate procedural rules concerning CRA cases. Before filing his petition in the county court, however, the child had already sought and been denied substantially the same relief from a single justice of the Appeals Court by means of an appeal filed pursuant to G. L. c. 119, § 39I. See Millis Pub. Schs. v. M.P., 478 Mass. 767, 775 (2018). The child had thus already pursued the remedy that the Legislature has provided for parties aggrieved by orders in CRA cases. Further, while this matter has been pending before this court, the underlying CRA petition was dismissed in the Juvenile Court, on the mother's motion and with the child's agreement.^[2]

The single justice did not err or abuse his discretion when he elected not to exercise the court's extraordinary power of general superintendence in these 1005*1005 circumstances. A single justice is not required to employ the court's extraordinary superintendence power when there is an adequate alternative remedy. Such a remedy existed here, namely, an appeal to a single justice of the Appeals Court as provided by G. L. c. 119, § 39I, and indeed the child pursued it. The fact that he did not win the relief he sought in that appeal does not render the legislatively prescribed remedy inadequate, nor does it entitle him to further review as a matter of right pursuant to G. L. c. 211, § 3. Where the child has failed to demonstrate any inadequacy in the statutory appeal framework, the single justice was warranted in denying review.^[3]

Judgment affirmed.

[1] A pseudonym. The parties to this appeal are the child and his mother. The Juvenile Court Department of the Trial Court was also named as a party in the child's G. L. c. 211, § 3, petition, but it is a nominal party only. See S.J.C. Rule 2:22, 422 Mass. 1302 (1996).

[2] We need not and therefore do not decide whether a child's appeal pursuant to G. L. c. 119, § 39I, from a CRA adjudication becomes moot when the CRA petition is dismissed in the trial court during the pendency of the appeal. Cf. Matter of F.C., 479 Mass. 1029, 1029-1030 (2018) (addressing mootness argument in context of appeal from civil commitment order). That is not what happened here. The appeal was decided by the Appeals Court single justice before the parties agreed to dismiss the CRA petition.

[3] A single justice of the Appeals Court has the discretion to report to a panel of the Appeals Court any appeal that presents novel, systemic, or otherwise important issues. See, e.g., Millis Pub. Schs. v. M.P., 478 Mass. 767, 775 (2018). The Appeals Court single justice in this case expressly considered but declined to exercise that option; he was well within his discretion to do so."

FOR WHOM THE STATUTE TOLLS

The difference between a toll and a suspension is explained here.

Brash v. Richards, 2021 NY Slip Op 3436 - NY: Appellate Div., 2nd Dept. June 2, 2021:

"The respondent Neil M. Richards moves, and the respondent Harrison Mu separately moves, to dismiss this appeal as untimely taken and on the ground that no appeal lies from an order determining a motion in limine. These motions raise the issue of whether a series of executive orders issued by Governor Andrew Cuomo, as a result of the COVID-19 pandemic, constitute a toll or, alternatively, a suspension of filing deadlines applicable to litigation in the New York courts. For the reasons that follow, we conclude that the subject executive orders constitute a toll of such filing deadlines. As a result, this appeal was timely taken.

A toll suspends the running of the applicable period of limitation for a finite time period, and "[t]he period of the toll is excluded from the calculation of the [relevant time period]" (Chavez v Occidental Chem. Corp., 35 NY3d 492, 505 n 8; see Foy v State of New York, 71 Misc 3d 605 [Ct Cl]). "Unlike a toll, a suspension does not exclude its effective duration from the calculation of the relevant time period. Rather, it simply delays expiration of the time period until the end date of the suspension" (Foy v State of New York, 71 Misc 3d at 608).

In this case, a copy of the order appealed from was served upon the appellant, with written notice of its entry, on October 2, 2020. CPLR 5513(a) provides that an appeal must be taken within 30 days of service of a copy of the order or judgment appealed from and written notice of its entry. The appellant served and filed a notice of appeal on November 10, 2020. According to the respondents, the notice of appeal was untimely served and filed, because, in their view, Governor Cuomo suspended filing deadlines in civil litigation in the New York courts until November 3, 2020. In contrast, the appellant argues that Governor Cuomo tolled such filing deadlines, meaning that the appellant had 30 days from November 3, 2020, to serve and file the notice of appeal. As a result, the appellant maintains that the notice of appeal, served and filed on November 10, 2020, was timely.

Executive Law § 29-a(1) provides that the Governor "may by executive order temporarily suspend specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster." Executive Law § 29-a(2)(d) provides that any such order "may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions."

On March 20, 2020 Governor Cuomo issued Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8), which provided:

"I hereby temporarily suspend or modify, for the period from the date of this Executive Order through April 19, 2020 the following:

"In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020."

Governor Cuomo later issued a series of nine subsequent executive orders that extended the suspension or tolling period, eventually through November 3, 2020 (see Executive Order [A. Cuomo] Nos. 202.14, 202.28, 202.38, 202.48, 202.55, 202.55.1, 202.60, 202.67, 202.72 [9 NYCRR 8.202.14, 8.202.28, 8.202.38, 8.202.48, 8.202.55, 8.202.55.1, 8.202.60, 8.202.67, 8.202.72]). These subsequent executive orders either stated that the Governor "hereby continue[s] the suspensions, and modifications of law, and any directives, not superseded by a subsequent directive," made in the prior executive orders (Executive Order [A. Cuomo] Nos. 202.14, 202.28, 202.38, 202.48, 202.67, 202.72 [9 NYCRR 8.202.14, 8.202.28, 8.202.38, 8.202.48, 8.202.67, 8.202.72]) or contained nearly identical language to that effect (see Executive Order [A. Cuomo] Nos. 202.55, 202.55.1, 202.60 [9 NYCRR 8.202.55, 8.202.55.1, 8.202.60]). While most of the subsequent executive orders did not use the word "toll," Executive Order (A. Cuomo) No. 202.67 (9 NYCRR 8.202.67) issued on October 5, 2020, provided that the:

"suspension in Executive Order 202.8, as modified and extended in subsequent Executive Orders, that tolled any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby continued, as modified by prior executive orders, provided however, for any civil case, such suspension is only effective until November 3, 2020, and after such date any such time limit will no longer be tolled."

Finally, Executive Order (A. Cuomo) No. 202.72 (9 NYCRR 8.202.72), issued on November 3, 2020, reiterated that the "toll" would no longer be in effect as of November 4, 2020 (see Executive Order [A. Cuomo] No. 202.72 [9 NYCRR 8.202.72]).

Governor Cuomo's March 20, 2020 executive order, Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8), expressly and plainly provided that the subject time limits were "hereby tolled," and two of the subsequent executive orders referred to the temporary alternation of the subject time limits as a "toll[ ]" (Executive Order [A. Cuomo] Nos. 202.67, 202.72 [9 NYCRR 8.202.67, 8.202.72]; see Foy v State of New York, 71 Misc 3d 605; Kugel v Broadway 280 Park Fee LLC, Jan. 28, 2021 at 17, col 2, 2021 NYLJ LEXIS 25 [Sup Ct, NY County]).

The respondents contend that even though Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8) purported to toll the limitations periods, Governor Cuomo did not have the statutory authority to do so, as Executive Law § 29-a, while expressly granting the Governor the authority to suspend statutes, does not expressly grant the Governor the authority to "toll" them. This contention is unpersuasive. As stated above, Executive Law § 29-a(2)(d) provides that an order issued pursuant thereto "may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions." This language in Executive Law § 29-a(2)(d) indicates that the Governor is authorized to do more than just "suspend" statutes during a state disaster emergency; he or she may "alter[ ]" or "modif[y]" the requirements of a statute, and a tolling of time limitations contained in such statute is within that authority (see Foy v State of New York, 71 Misc 3d 605).

Furthermore, although the seven executive orders issued after Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8) did not use the word "toll," those executive orders all either stated that the Governor "hereby continue[s] the suspensions, and modifications of law, and any directives, not superseded by a subsequent directive," made in the prior executive orders (Executive Order [A. Cuomo] Nos. 202.14, 202.28, 202.38, 202.48 [9 NYCRR 8.202.14, 8.202.28, 8.202.38, 8.202.48]) or contained nearly identical language to that effect (see Executive Order [A. Cuomo] Nos. 202.55, 202.55.1, 202.60 [9 NYCRR 8.202.55, 8.202.55.1, 8.202.60]). Since the tolling of a time limitation contained in a statute constitutes a modification of the requirements of such statute within the meaning of Executive Law § 29-a(2)(d), these subsequent executive orders continued the toll that was put in place by Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8).

Therefore, the subject executive orders tolled the time limitation contained in CPLR 5513(a) for the taking of an appeal until November 3, 2020. Accordingly, the notice of appeal, which was served and filed on November 10, 2020, well within 30 days of November 3, 2020, was timely.

In addition, contrary to the respondents' contentions, the order appealed from is appealable as of right, as it decided motions made upon notice and affected a substantial right of the parties (see CPLR 5701[a][2][v]; Parker v Mobil Oil Corp., 16 AD3d 648, affd 7 NY3d 434)."

CHALLENGING A CPS REPORT

 

Gutierrez v. NEW YORK STATE OFF. OF CHILDREN & FAMILY SERVS., 2021 NY Slip Op 31578 - NY Co. Supreme Court, May 21, 2021:

"CAROL R. EDMEAD, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 10, 11, 12, 13, 14, 15, 17 were read on this motion to/for VACATE — DECISION/ORDER/JUDGMENT/AWARD.

Upon the foregoing documents, it is

ORDERED that, pursuant to CPLR 7804(g), the application by petitioner Johnny Gutierrez seeking to vacate and annul a determination by respondent (motion sequence number 001) is respectfully transferred to the Appellate Division, First Department, for disposition pursuant to said subsection. This proceeding involves an issue as to whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law, is, on the entire record, supported by substantial evidence (CPLR 7803[4]); and it is further

ORDERED that petitioner shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B), who is directed to transfer the file to the Appellate Division, First Department; and it is further

ORDERED that such service upon the Clerk of the Court shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh)].

Petitioner Johnny Gutierrez (Gutierrez) seeks a judgment to vacate a decision by the respondent New York State Office of Children and Family Services (OCFS) which was issued after an administrative hearing on the allegations contained in child abuse reports investigated by the non-party New York City Administration for Children's Services (ACS; motion sequence number 001). This matter is respectfully transferred to the Appellate Division, First Department, pursuant to CPLR 7804(g).

FACTS

On October 21, 2017, two separate complaint reports were made to the State Central Register maintained by OCFS that alleged maltreatment by Gutierrez of his three children, who were respectively aged 10, 4, and 1 years old. See verified petition, ¶ 16; verified answer, ¶¶ 89-92; exhibit C (administrative record). Those reports were transmitted to ACS, which conducted timely investigations of them, and issued determinations on December 21, 2017 that found both reports were "indicated," as that term is defined in Social Services Law (SSL) § 412(7).^[1] Id.; verified answer, ¶¶ 93-94; exhibit C. Gutierrez requested an administrative review of the findings in ACS's reports, and a hearing was held before an OCFS administrative law judge (ALJ) on May 20, 2019. Id.; verified answer, 95-99; exhibit C. Both Gutierrez and ACS submitted documentary evidence and testimony at the hearing. Id.; exhibit B (hearing transcript). On December 16, 2019, the OCFS ALJ issued a "decision after hearing" (DAH) that found as follows:

"The request of [appellant] Johnny Gutierrez that the indicated reports (SCR Case Id #: 26834224, Intake Stage Id #: 31629637, 31629640, dated 10/21/2017, 10/21/2017) be amended to unfounded and sealed is denied. The Appellant has been shown by a fair preponderance of the evidence to have committed maltreatment. However, while the report will not be amended to unfounded and sealed, the specific allegation of choking/twisting/shaking of [child's name redacted] in the first report ((SCR Case Id #: 26834224, Intake Stage Id #: 31629637) will be amended to unsubstantiated.

"As so amended, such maltreatment is relevant and reasonably related to childcare employment, the adoption of a child or the provision of foster care. Accordingly, the existence of the indicated reports may be disclosed to provider and licensing agencies making inquiry regarding the Appellant pursuant to SSL § 424-a."

Id.; verified answer, ¶¶ 95-99; exhibit A (DAH). Gutierrez thereafter commenced this Article 78 proceeding on November 20, 2020 seeking an order to vacate the OCFS's DAH and amend the subject ACS reports from "indicated" to "unfounded." See verified petition. OCFS filed an answer on January 6, 2021 that requests that Gutierrez's petition be transferred to the Appellate Division, First Department, for review under the "substantial evidence" standard. See verified answer. Despite delays occasioned by the Covid-19 national pandemic, this matter is now fully submitted (motion sequence number 001).

DISCUSSION

A trial court's usual role in an Article 78 proceeding is to determine whether, upon the facts before an administrative agency, a challenged agency determination had a rational basis in the record or was arbitrary and capricious. See Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 (1974); Matter of E.G.A. Assoc. Inc. v New York State Div. of Hous. & Community Renewal, 232 AD2d 302 (1st Dept 1996). A determination will only be deemed arbitrary and capricious if it is "without sound basis in reason, and in disregard of the facts." See Matter of Century Operating Corp. v Popolizio, 60 NY2d 483, 488 (1983), citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d at 231. However, if there is a rational basis for the administrative determination, there can be no judicial interference with the agency's determination. Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d at 231-232.

Nevertheless, if an Article 78 petition challenges "a determination made as a result of a hearing held, and at which evidence was taken," on the ground that that determination was not supported by "substantial evidence," CPLR 7804(g) mandates that the trial court transfer the petition to the appropriate Appellate Division to be reviewed under that standard. CPLR 7804 (g) also provides that "the court shall first dispose of such other objections as could terminate the proceeding," and only if the determination of those objections does not dispose of the matter shall the court shall make the transfer order. Here, the court finds that transfer to the Appellate Division, First Department is appropriate.

First, the administrative record makes it clear that the DAH was rendered after "a hearing held, and at which evidence was taken." CPLR 7804(g); see verified answer, exhibit C. Second, the petition itself specifically argues that "[t]he ALJ wrongly concluded that the October 21, 2017 report[s] of maltreatment was supported by substantial evidence." See verified petition, ¶¶ 50-54. Thus, the two statutory criteria required for transfer are present in this case.

Gutierrez nevertheless also argues that "[t]he ALJ's failure to consider the relevant OCFS Guidelines that weighed in favor of the Petitioner constitutes an error of law." See verified petition, ¶¶ 35-48. This argument facially asserts that the DAH was an arbitrary and capricious ruling because the ALJ improperly departed from the OCFS guidelines when deciding how much weight to accord to Gutierrez's evidentiary submissions. Id., ¶ 39. However, review of the totality of Gutierrez's argument makes it clear that Gutierrez's overriding intention is actually to contest the sufficiency of the ALJ's factual findings, rather than to challenge his application of the governing procedural and/or evidentiary law. Thus, "`regardless of the terms used by petitioner [in the petition], a substantial evidence issue has been raised' in this case. Matter of Blue v Zucker, 192 AD3d 1693, 1694 (4th Dept 2021), quoting Matter of Bulmahn v New York State Off of Medicaid Inspector Gen., 106 AD3d 1504, 1505 (4th Dept 2013), lv den 22 NY3d 860 (2014).

Further, Appellate Division precedent uniformly recognizes that a petitioner's objection that an agency ruling is arbitrary and capricious because it is affected by an "`error of law' is not an objection that could have terminated the proceeding within the meaning of CPLR 7804(g)." Matter of Blue v Zucker, 192 AD3d at 1694; Matter of Quire v City of New York, 189 AD3d 467, 467 (1st Dept 2020), quoting Matter of OTR Media Group, Inc. v Board of Stds. & Appeals of the City of N.Y., 132 AD3d 607, 607 (1st Dept 2015); citing Matter of G & G Shops v New York City Loft Bd., 193 AD2d 405, 405 (1st Dept 1993). Instead, that precedent holds that petitions advancing that argument should be transferred to the appropriate Appellate Division for de novo review under the "substantial evidence standard." Matter of Quire v City of New York, 189 AD3d at 467. The court finds that that is clearly the appropriate course of action in this case. Therefore, the court determines that Gutierrez's Article 78 petition should be transferred to the Appellate Division, First Department, pursuant to CPLR 7804(g) for review under the "substantial evidence" standard.

DECISION

ACCORDINGLY, for the foregoing reasons it is hereby

ORDERED that, pursuant to CPLR 7804(g), the application by petitioner Johnny Gutierrez seeking to vacate and annul a determination by respondent (motion sequence number 001) is respectfully transferred to the Appellate Division, First Department, for disposition pursuant to said subsection. This proceeding involves an issue as to whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law, is, on the entire record, supported by substantial evidence (CPLR 7803[4]); and it is further

ORDERED that petitioner shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141 B), who is directed to transfer the file to the Appellate Division, First Department; and it is further

ORDERED that such service upon the Clerk of the Court shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh)].

[1] The currently effective version on SSL § 412(7) specifically provides that "[a]n `indicated report' means a report made pursuant to this title if an investigation determines that some credible evidence of the alleged abuse or maltreatment exists."

DIVORCE - THE IMPORTANT PENDENTE LITE ORDER

Important because it sets the tone of the litigation to push the parties into a quick settlement or trial mode and because the "aggrieved party" who seeks to appeal the order has many obstacles as noted in this recent case.

Barra v Barra, 2021 NY Slip Op 01022, Decided on February 17, 2021, Appellate Division, Second Department:

"The parties were married in 2006 and have one child together. In 2019, the plaintiff commenced this action for a divorce and ancillary relief and moved for pendente lite relief. The Supreme Court awarded the plaintiff the sum of $2,031.19 per month for pendente lite child support and directed the defendant to pay 50% of the mortgage, real estate taxes, and homeowner's insurance on the marital residence, where the plaintiff and the child reside.

The defendant contends that the Supreme Court erred in calculating his pendente lite child support obligation by considering the parties' combined income above the then-statutory cap of $148,000. "Modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances" (Otto v Otto, 13 AD3d 503, 503; Albanese v Albanese, 234 AD2d 489, 490). The defendant has failed to establish exigent circumstances so as to justify a downward modification of the pendente lite award of child support.

In any event, the Supreme Court was not required to calculate the defendant's child support obligation pursuant to the Child Support Standards Act (hereinafter CSSA) (see George v George, 192 AD2d 693; see also Domestic Relations Law § 236[B][7]). The CSSA "provides the formulas to be applied to the parties' income and the factors to be considered in determining a final award of child support. Courts considering applications for pendente lite child support may, in their discretion, apply the CSSA standards and guidelines, but they are not required to do so" (Davydova v Sasonov, 109 AD3d 955, 957 [emphasis, citation, and internal quotation marks omitted]). Any perceived inequity in the award of pendente lite child support can best be remedied by a speedy trial, at which the parties' financial circumstances can be fully explored (see Swickle v Swickle, 47 AD3d [*2]704).

The defendant also contends that the Supreme Court erred in directing him to pay the sum of $1,575.83 per month, representing his 50% responsibility for the mortgage, real estate taxes, and insurance on the marital residence, contending that such payment should have been reduced by the sum the court directed him to pay for pendente lite child support. The burden of repaying marital debt should be equally shared by the parties, in the absence of countervailing factors, and any such liability should be distributed in accordance with general equitable distribution principles and factors (see Westreich v Westreich, 169 AD3d 972; Minervini v Minervini, 152 AD3d 666; Gillman v Gillman, 139 AD3d 667). It is generally the responsibility of both parties to maintain the marital property and keep it in good repair during the pendency of a matrimonial action (see Brinkmann v Brinkmann, 152 AD3d 637; Goldman v Goldman, 131 AD3d 1107; Hymowitz v Hymowitz, 119 AD3d 736). Insofar as the court specifically indicated that it sought to preserve the marital asset in directing the defendant to pay his 50% share of the mortgage, real estate taxes, and homeowner's insurance, we perceive no improvident exercise of its discretion.

The defendant further contends that the Supreme Court erred in directing him to make the pendente lite child support payment to the Child Support Collection Unit, while making the payment of his 50% share of the mortgage, real estate taxes, and homeowner's insurance on the marital home to the plaintiff. The plaintiff had requested that the defendant's 50% share of the mortgage, real estate taxes, and homeowner's insurance be made directly to her. Thus, the court did not improvidently exercise its discretion in granting that application (see Caro v Marsh USA, Inc., 101 AD3d 1068; Nehmadi v Davis, 95 AD3d 1181; Clair v Fitzgerald, 63 AD3d 979; Frankel v Stavsky, 40 AD3d 918). Furthermore, the court did not improvidently exercise its discretion in directing the defendant to make the pendente lite child support payment to the Child Support Collection Unit insofar as this method was "'not too dramatically unlike the relief sought'" (Clair v Fitzgerald, 63 AD3d at 980, quoting Frankel v Stavsky, 40 AD3d at 919)."

A DISSENT ON ISSUE OF PRESERVING DOMESTIC VIOLENCE CLAIM IN CHILD CUSTODY HEARING

Did the Mother preserve her claim for appeal purposes that the court failed to consider the effects of domestic violence on the best interests of the parties two young children in granting father primary physical custody, as required by Domestic Relations Law § 240 (1) (a)?

See the dissent in Jesse Cole v. Samantha Cole, Appellant. No. 67 SSM 8, New York State, Court of Appeals, Decided: June 23, 2020:

https://www.nycourts.gov/ctapps/Decisions/2020/Jun20/SSM8mem20-Decision.pdf.

A PRO SE HOMEOWNER SUCCEEDS ON APPEAL AGAINST THE BANK

In fact, the same homeowner had a similar issue in a Florida action and succeeded to have the foreclosure dismissed pro se. See Elsman v. HSBC Bank USA, 182 So.3d 770, 771 (Fla. 5th DCA 2015). However, in this subsequent case, the Second Department did not dismiss the case but merely denied the bank's summary judgment motion, leaving the assumption that the pro se homeowner failed to cross-move to dismiss.

Wells Fargo Bank, N.A. v Elsman, 2020 NY Slip Op 00321, Decided on January 15, 2020, Appellate Division, Second Department:

"The plaintiff, Wells Fargo Bank, N.A. (hereinafter Wells Fargo), commenced this action to foreclose a mortgage against, among others, the defendant Kenneth M. Elsman (hereinafter the defendant), in 2012. The mortgage at issue secured a note of $468,900 with property located in Baldwin. In his answer, the defendant, inter alia, alleged lack of standing as an affirmative defense.

By notice of motion dated May 1, 2014, Wells Fargo moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. In an order entered January 15, 2015, the Supreme Court granted Wells Fargo's motion.

By notice of motion dated September 16, 2015, Wells Fargo moved for a judgment of foreclosure and sale. In an order and judgment of foreclosure and sale entered May 3, 2016, the Supreme Court, inter alia, granted the motion for a judgment of foreclosure and sale, confirmed the report of the referee, and directed the sale of the subject premises. The defendant appeals.

"[I]n order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must submit the mortgage and unpaid note, along with evidence of the default" (Zarabi v Movahedian, 136 AD3d 895, 895-896). Where, as here, the plaintiff's standing to commence the action is placed in issue by a defendant, the plaintiff must establish its standing to be entitled to relief (see U.S. Bank N.A. v Godwin, 137 AD3d 1260, 1261).

A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced (see U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753-754). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" (Dyer Trust 2012-1 v Global World Realty, Inc., 140 AD3d 827, 828).

Here, Wells Fargo failed to establish, prima facie, that it had possession of the note prior to the commencement of the action, and thus failed to establish that it had standing to foreclose the mortgage (see U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754; see also Deutsche Bank Natl. Trust Co. v Barnett, 88 AD3d 636, 638; cf. Aurora Loan Servs., LLC v Taylor, 25 NY3d 355). Wells Fargo did not attach a copy of the note and allonge to the complaint when the action was commenced to establish, prima facie, that it had possession of the note at that time (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355; cf. JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d 643). Moreover, the affidavit of Wells Fargo's vice president of loan documentation was insufficient to establish that Wells Fargo possessed the note at the time the action was commenced (cf. Aurora Loan Servs., LLC v Taylor, 25 NY3d 355). Therefore, the Supreme Court should have denied Wells Fargo's motion for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference."

MORTGAGE FORECLOSURE - RPAPL 1304 ON APPEAL

Once again this homeowner defense prevails on appeal.

HSBC Bank USA, N.A. v Sawh, 2019 NY Slip Op 08556, Decided on November 27, 2019. Appellate Division, Second Department:

"On January 5, 2007, the defendant Vishnu Sawh (hereinafter the defendant) executed a note in the principal sum of $679,672. The note was secured by a mortgage on certain residential property located in South Ozone Park. The defendant allegedly defaulted by failing to make the monthly payment due on December 1, 2011, and all subsequent payments thereafter.

In 2013, the plaintiff commenced the instant foreclosure action against the defendant, among others. The defendant interposed an answer in which he alleged that the plaintiff failed to comply with RPAPL 1304. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer, and to appoint a referee to calculate amounts due.

In support of the motion, the plaintiff submitted, inter alia, the affidavit of Jerrell Menyweather, an assistant secretary employed by Nationstar Mortgage LLC, the plaintiff's loan servicer.

By order dated February 20, 2015, the Supreme Court granted the plaintiff's motion. Upon completion of the referee's report, the plaintiff moved to confirm the report and for a judgment of foreclosure and sale.

In an order dated October 25, 2016, the Supreme Court granted the plaintiff's motion. On February 2, 2017, the court entered a judgment of foreclosure and sale directing the sale of the subject property.

The defendant appeals.

RPAPL 1304(1) provides that, "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower . . . , including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower." "The statute further provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower" (Citibank, N.A. v Conti-Scheurer, 172 AD3d 17, 20; see RPAPL 1304[2]). "Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action" (Citibank, N.A. v Conti-Scheurer, 172 AD3d at 20; see Citimortgage, Inc. v Banks, 155 AD3d 936, 936-937; HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822, 825-826). "By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing, which can be established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure" (Citibank, N.A. v Conti-Scheurer, 172 AD3d at 20-21 [internal quotation marks omitted]; see Bank of Am., N.A. v Bittle, 168 AD3d 656, 658; Wells Fargo Bank, NA v Mandrin, 160 AD3d 1014, 1016).

Here, the plaintiff failed to establish, prima facie, that it complied with RPAPL 1304 (see Citibank, N.A. v Conti-Scheurer, 172 AD3d at 21; Wells Fargo Bank, N.A. v Trupia, 150 AD3d 1049, 1050-1051). Although Menyweather stated in his affidavit that the RPAPL 1304 notices were mailed by regular and certified mail, and attached copies of the notices, the plaintiff failed to attach, as exhibits to the motion, any documents establishing that the notices were actually mailed (see Citibank, N.A. v Conti-Scheurer, 172 AD3d at 21; U.S. Bank N.A. v Offley, 170 AD3d 1240, 1242; Wells Fargo Bank, N.A. v Taylor, 170 AD3d 921, 923; Bank of N.Y. Mellon v Zavolunov, 157 AD3d 754, 756). The plaintiff failed to submit a copy of any United States Post Office document indicating that the notice was sent by registered or certified mail as required by the statute (see Citibank, N.A. v Conti-Scheurer, 172 AD3d at 21). Further, although Menyweather attested that he had personal knowledge of the loan servicer's records, and that those records included the records of the prior servicer, Bank of America, Menyweather did not attest to knowledge of the mailing practices of Bank of America, the entity that allegedly sent the 90-day notices to the defendant (see id.; Wells Fargo Bank, N.A. v Moran, 168 AD3d 1128, 1128). Since the plaintiff failed to provide evidence of the actual mailing, or evidence of a standard office mailing procedure designed to ensure that the items were properly addressed and mailed, sworn to by someone with personal knowledge of the procedure, the plaintiff failed to establish its strict compliance with RPAPL 1304 (see Citibank, N.A. v Conti-Scheurer, 172 AD3d at 21).

Because the plaintiff failed to satisfy its prima facie burden with respect to RPAPL 1304, those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike that defendant's answer, and for an order of reference should have been denied, regardless of the sufficiency of the defendant's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853)."