FREE PUBLIC SEMINAR - ANIMAL LAW

Free Public Education Seminar - Current Issues in Animal Law - at the Nassau County Bar Association - Monday, January 11, 2010; 7:00 – 9:00 p.m. Learn about laws affecting: Pets and rental housing, co-ops, condos, defenses to eviction proceedings, Protecting individuals with service animals, Including the family pet in your estate plan, Your rights in a dangerous dog proceeding, Veterinary Malpractice and Negligence, The Pet Lemon Law, Animal Custody and Visitation in Divorce, Animal Cruelty and Abuse, Evacuation plans for your pets. Animal Cruelty and Abuse. Spay/Neuter Laws. Animal Custody and Visitation in Divorce Evacuations plans for your pets. For more information, click on the title above.

FREE MORTGAGE FORECLOSURE CLINIC DECEMBER 15 - NASSAU COUNTY

On December 15, Nassau residents caught in the growing mortgage foreclosure crisis can have their questions answered by attorneys at a free clinic sponsored by the Nassau County Bar Association at the NCBA headquarters, 15th and West Streets, Mineola, NY. Attorneys have volunteered to provide one-on-one guidance, advice and direction to any Nassau County homeowner who is concerned about foreclosure matters or is already in the foreclosure process involving property in Nassau County. Attorneys have volunteered to review individual foreclosure issues with Nassau homeowners, help them sort things out, and give advice or refer them to agencies and programs, right in the same room, that may be able to help. This is not legal representation. The attorneys will help the homeowner find out if indeed, they need a credit counselor or a lawyer, and get them in touch with available resources. In addition to meeting one-on-one with a volunteer attorney, housing counselors from the Nassau County Homeownership Center and representatives from Nassau/Suffolk Law Services -- which provides free legal services for those who meet certain income guidelines -- will be on hand to provide assistance. Reservations are required by calling the Bar Association at 516-747-4070 between 9:30 a.m. - 4:30 p.m.

SELF HELP - DEALING WITH SELF REPRESENTED

By clicking on the title above, you will view an article from the Law Society of Upper Canada but it deals with some of the issues attorneys faced when the other side is self-represented: however, I feel the advice given also applies to a lawyer dealing with another attorney and to the litigants themselves. In my experience, self represented clients often appear as Landlords in Landlord/Tenant court and in District Civil Court here in Nassau County, as well as small claims court. And of course, as mentioned last week on my Facebook page, you are aware of the self-represented parties in a Suffolk County mortgage foreclosure case who were able to get the action, and the mortgage, dismissed.

TRIALS - ADJOURNMENTS

Sometimes, a litigant is ill, or a lawyer has another matter, and a hearing or trial is scheduled. Lately, I have been under the weather and had to reschedule hearings and appointments....what is the rule on adjounments:

"In the Matter of Steven B., Respondent. Administration for Children's Services of the City of New York, Respondent; Makeba S., Appellant.

Decided May 11, 2006, 2006 NY Slip Op 03642 [6 NY3d 888] May 11, 2006 Court of Appeals

OPINION OF THE COURT
Memorandum.

The order of the Appellate Division should be affirmed with costs.

The grant or denial of a motion for "an adjournment for any purpose is a matter resting within the sound discretion of the trial court" (Matter of Anthony M., 63 NY2d 270, 283 [1984] [citations omitted]). Contrary to appellant mother's claims, Family Court's refusal to grant her application for an adjournment fails to constitute an abuse of discretion. Mother's need for an adjournment to call additional witnesses resulted from her lack of due diligence in preparing for the hearing. Moreover, the witnesses she wished to call were not identified or would testify cumulatively. Under these circumstances, Family Court acted within its discretion in refusing to adjourn the hearing. Mother's remaining contentions lack merit.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum."

MATRIMONIAL ACTIONS - APPEAL OF PENDANTE LITE ORDER

A recent issue and it comes up often in matrimonial actions: an action for divorce is started and the parties seek temporary relief immediately, i.e., custody, visitation, maintenance, support, legal fees, health insurance, etc. What if one party is not happy with the temporary order? Here is a recent case from the Second Department (which covers Nassau):

"SINANIS v. SINANIS, 2008-10966 [2d Dept 11-10-2009]2009 NY Slip Op 08210, Appellate Division of the Supreme Court of New York, Second Department. Decided on November 10,2009.

In an action for a divorce and ancillary relief, the defendant
appeals (1), as limited by his notice of appeal and his brief, from
stated portions of an order of the Supreme Court, Westchester County
(Tolbert, J.), entered November 14, 2008, which, inter alia, granted
that branch of his motion which was for a downward modification of
pendente lite child support only to the extent of reducing his
support obligation from $1,200 per week to $700 per week retroactive
to September 1, 2008, and directed him to pay the
plaintiff's attorneys an interim counsel fee in the sum of
$10,000, and (2) from stated portions of an order of the same court
entered March 5, 2009, which, inter alia, upon reargument, adhered
to the prior determination granting that branch of his motion which
was for a downward modification of pendente lite child support only
to the extent of reducing his support obligation from $1,200 per
week to $700 per week, retroactive to September 1, 2008, and
directing him to pay the plaintiff's attorneys interim counsel fees
in the sums of $10,000 and $15,000, and directed him to deposit
marital funds in the sum of $139,000 in escrow.

ORDERED that the appeal from the order
entered November 14, 2008, is dismissed, as the portions of
that order appealed from were superseded by the order
entered March 5, 2009, made upon reargument; and it is further,

ORDERED that the order entered March 5, 2009, is affirmed insofar
as appealed from; and it is further,
Page 2

ORDERED that one bill of costs is awarded to the plaintiff.

Maniatis Dimopoulos & Lombardi, LLP, Scarsdale, N.Y.
(Constantine G. Dimopoulos of counsel), for appellant.

Fuchs & Eichen, Harrison, N.Y. (Charna L. Fuchs of counsel), for
respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, RANDALL T. ENG, JOHN M.
LEVENTHAL, JJ.

DECISION & ORDER

The defendant seeks further modification of his pendente lite
child support obligation, which the Supreme Court reduced from the
sum of $1,200 per week to the sum of $700 per week. However,
"[m]odifications of pendente lite awards should rarely be made by an
appellate court and then only under exigent circumstances, such as
where a party is unable to meet his or her financial obligations or
justice otherwise requires" (Barone v Barone, 41 AD3d 623, 624;
see McGarrity v McGarrity, 49 AD3d 824, 825; Zheng v
Pan, 23 AD3d 378, 379). Here, the record indicates that in
addition to his salary of approximately $187,000 per year, the
defendant has sufficient resources available to pay child support in
the sum of $700 per week as well as the carrying charges for the
marital residence in accordance with the modified pendente lite
order, and he has not demonstrated that such payments will leave him
unable to meet his own financial obligations (see Ruane v
Ruane, 55 AD3d 586, 588; Krigsman v Krigsman,
288 AD2d 189, 191; see also Zheng v Pan, 23 AD3d at 379).
Accordingly, any perceived inequities in the pendente lite award can
be best remedied by a speedy trial, at which the parties' financial
circumstances can be fully explored (see Swickle v Swickle,
47 AD3d 704, 705; Stubbs v Stubbs, 41 AD3d at 833; Barone v
Barone, 41 AD3d at 624).

Contrary to the defendant's contention, the court properly made
the downward modification of his pendente lite child support
retroactive only to the approximate date upon which his application
for a downward modification was made
(see Rosenberg v Rosenberg, 215 AD2d 365, 366), rather than
from the date upon which the plaintiff's initial application for
pendente lite child support was made. "While a party in a
matrimonial action may request the downward modification of a
temporary child support award when that party can demonstrate
financial hardship, such a downward modification may operate only
prospectively" (Fruchter v Fruchter, 29 AD3d 942, 944; see
Shapiro v Shapiro, 35 AD3d 585, 587; Petek v Petek,
239 AD2d 327, 328).

In view of the disparity in the parties' financial circumstances,
the court properly directed the defendant to pay interim counsel
fees totaling $25,000 (see Lauria v Usak-Lauria,
65 AD3d 1017; Mueller v Mueller, 61 AD3d 652, 654; Mbanefo v
Mbanefo, 60 AD3d 648, 649; Stubbs v Stubbs, 41 AD3d at 833).
Furthermore, under the circumstances of this case, the court
properly directed that payment of interim counsel fees be made from
either the defendant's income or separate property.

Finally, the court providently exercised its discretion in
directing the defendant to deposit marital funds in the sum of
$139,000 in escrow to protect the plaintiff's right to equitable
distribution (see DiSanto v DiSanto, 279 AD2d 603).

MASTRO, J.P., BALKIN, ENG and LEVENTHAL, JJ., concur."

It is clear to me that the motion for relief pendente lite is of extreme importance and a lot of work and time and detail should be put into it, with the unfortunate effect of extremely high legal fees. It also appears to me that when there is a huge fight over the pendente lite order, it is likely that the action will continue to be quite litigious and expensive.

CHANGE OF COUNSEL

This is an issue that came up in a recent consultation. Client wanted to change counsel but old counsel would not release files to Client because of unpaid legal fees. Here is the latest New York State Bar Association Ethics Opinion on this issue which is under the old Rules of Professional Responsibility:

"Opinion 766 — 9/10/03 (35-02)- New York State Bar Association Committee on Professional Ethics - September 10, 2003

Topic: Disposition of files of former client Overrules: N.Y. State 398
(1975)

QUESTION

What is a lawyer's obligation to a former client who requests the files
that were generated in the course of the prior representation?

OPINION DR 9-102(C) provides:

A lawyer shall:

* * * (4) Promptly pay or deliver to the client . . . as requested by
the client . . . the funds, securities, or other properties in the
possession of the lawyer which the client . . . is entitled to
receive.

The question of which "funds, securities, or other properties in the
possession of the lawyer" the client (or successor counsel) is entitled to
receive is generally a question of law, not ethics. See N.Y. State 623
(1991) ("Which documents may be deemed to belong to the lawyer is not
always easy to ascertain; in certain instances, the lawyer's ownership of
such documents may be a complex issue of both law and fact."); Nassau Bar
Op. 94-19 (funds in IOLA account); Nassau Bar Op. 96-13 (funds in escrow
account). The duty to deliver "to the client all papers and property to
which the client is entitled" is also a requirement of withdrawal from
employment. See DR 2-110(A)(2).

Accordingly, the Bar's attention is directed to Sage Realty Corp. v.
Proskauer Rose Goetz & Mendelsohn, 91 N.Y.2d 30 (1997), in which the
Court of Appeals abandoned the distinction "between documents
representing the `end product' of an attorney's services, which belong to
the client, and the attorney's `work product' leading to the creation of
those end product documents, which remains the property of the attorney,"
opting instead for the "majority" view wherein, "upon termination of the
attorney-client relationship, where no claim for unpaid legal fees is
outstanding," the client is "presumptively accord[ed] . . . full access
to the attorney's file on a represented matter with narrow exceptions."
91 N.Y.2d at 34 (citations omitted). The Court cited the final draft of
the American Law Institute Restatement (Third) of the Law Governing
Lawyers § 58 (proposed final draft No. 1, 1996), as follows:

The draft Restatement provides that a former client is to be accorded
access to "inspect and copy any documents possessed by the lawyer
relating to the representation, unless substantial grounds exist to
refuse" (id., § 58[2])

[emphasis supplied].

Even without a request, an attorney is obligated to deliver to the
client, not later than promptly after representation ends, "such
originals and copies of other documents possessed by the lawyer relating
to the representation as the . . . [former] client reasonably needs"
(id., § 58[3], comment d). 91 N.Y.2d at 35. The Committee recognizes
that, consistent with the now rejected "minority view," N.Y. State 398
(1975) suggested that "the client is not entitled to require delivery of
the firm's work product" unless, in the context of the particular
circumstances, the "firm's duty" to the former client or the
"professional courtesy" to be accorded to successor counsel, "are
necessary" to guard the client's interest" (citations omitted).

To the extent that N.Y. State 398 thus reflects a presumption of
non-accessibility that a former client must overcome with respect to a
certain class of documents, that view has been plainly rejected by the
Court of Appeals in Sage Realty and is no longer valid. See also Gamiel
v. Sullivan & Liapakis, P.C., 289 A.D.2d 88 (2001); Getman v. Petro
& Ingalsbe, 266 A.D.2d 688 (1999).

With regard to who bears the cost of file assembly and delivery, we
also note the Court of Appeals statement in Sage Realty that "as a
general proposition, unless a law firm has already been paid for
assemblage and delivery of documents to the client, performing that
function is properly chargeable to the client under customary fee
schedules of the firm, or pursuant to the terms of any governing retainer
agreement." 91 N.Y.2d at 38. Of course, the fee for such services may not
be excessive. DR 2-106(A). See also Deane v. Skadden, Arps, Slate,
Meagher & Flom, N.Y.L.J., Aug. 17, 1998 (Sup.Ct. N.Y. County).

CONCLUSION

As a matter of ethics, upon request by a former client, a lawyer must
promptly turn over or provide access to the files which the former client
is entitled to possess. As a matter of New York law, a former client is
entitled to any document related to the representation unless substantial
grounds exist to refuse access. The lawyer may charge such former client
reasonable fees for assembling and delivering such files, as reflected by
customary fee schedules or any governing retainer agreement."

ATTORNEY MISCONDUCT

A recent consultation revealed that an attorney engaged in misconduct which resulted in damages to the client. A recent litigation revealed that an attorney did not carry malpractice insurance and as a result of poor office practices, may have damaged the client's litigation. This statement is not meant to justify misconduct but I merely point out that the recession has truly hit the legal profession and some attorneys are driven to actions that they would not normally take. Even in good economic times, drugs, alcohol, divorce, depression, etc. can lead an attorney to take actions which may or may not rise to the level of misconduct. And then, there are just attorneys who, for whatever innocent or non-innocent reason, engage in misconduct. When faced with this situation and while you are contemplating what legal steps you can take to undo the damage, consider this from the Nassau County Bar Association:

"State of New York Grievance Committee - This is the official body charged with assuring that lawyers adhere to the ethics of the profession as set forth in the Code of Professional Responsibility. The Grievance Committee receives and investigates complaints and may take formal disciplinary action.

For further information, contact:
The Grievance Committee
for the Tenth Judicial District
150 Motor Parkway, Suite 102
Hauppauge, NY 11788
(631) 231-3775

New York Lawyers' Fund For Client Protection - The New York Lawyers' Fund was created by New York State Legislation to protect legal consumers from dishonest conduct in the practice of law. If your money has been misappropriated in the practice of law, you may be eligible for reimbursement from the Lawyers' Fund.

For further information, contact:
The New York Lawyers' Fund
119 Washington Avenue Albany
New York 12210
(518) 434-1935 (800) 442fund."

DOMESTIC VIOLENCE

As the Tiger Woods incident begins to unfold, it is good to remind ourselves that domestic violence, also known as domestic abuse, spousal abuse, child abuse, elder abuse or intimate partner violence (IPV), can be broadly defined a pattern of abusive behaviors by one or both partners in an intimate relationship such as marriage, dating, family, friends or cohabitation. Domestic violence has many forms including physical aggression (hitting, kicking, biting, shoving, restraining, throwing objects), or threats thereof; sexual abuse; emotional abuse; controlling or domineering; intimidation; stalking; passive/covert abuse (e.g., neglect); and economic deprivation. Popular emphasis has tended to be on women as the victims of domestic violence. Many studies show that women suffer greater rates of injury due to domestic violence, and some studies show that women suffer higher rates of assault. Yet, other statistics show that while men tend to inflict injury at higher rates, the majority of domestic violence overall is reciprocal. If you are afraid for your safety or have been beaten by your partner: Dial 911 or call the National Domestic Violence Hotline at 1-800-787-3224. You may or may not need an attorney and many domestic violence organizations have pro bono services available.

CLIENT RESPONSIBILITIES

Sometimes, as a lawyer, it is the client who does not get back to you on time, who does not return calls, or does so at 11pm, etc., etc., the list is endless and can be the subject of a book. These type of actions, although understandable, make representation harder. This is an informational statement adopted by the NY State Bar Association"

Reciprocal trust, courtesy and respect are the hallmarks of the attorney-client relationship. Within that relationship, the client looks to the attorney for expertise, education, sound judgment, protection, advocacy and representation. These expectations can be achieved only if the client fulfills the following responsibilities:

The client is expected to treat the lawyer and the lawyer's staff with courtesy and consideration.

The client's relationship with the lawyer must be one of complete candor and the lawyer must be apprised of all facts or circumstances of the matter being handled by the lawyer even if the client believes that those facts may be detrimental to the client's cause or unflattering to the client.

The client must honor the fee arrangement as agreed to with the lawyer, in accordance with law.

All bills for services rendered which are tendered to the client pursuant to the agreed upon fee arrangement should be paid promptly.

The client may withdraw from the attorney-client relationship, subject to financial commitments under the agreed to fee arrangement, and, in certain circumstances, subject to court approval.

Although the client should expect that his or her correspondence, telephone calls and other communications will be answered within a reasonable time frame, the client should recognize that the lawyer has other clients equally demanding of the lawyer's time and attention.

The client should maintain contact with the lawyer, promptly notify the lawyer of any change in telephone number or address and respond promptly to a request by the lawyer for information and cooperation.

The client must realize that the lawyer need respect only legitimate objectives of the client and that the lawyer will not advocate or propose positions which are unprofessional or contrary to law or the Lawyer's Code of Professional Responsibility.

The lawyer may be unable to accept a case if the lawyer has previous professional commitments which will result in inadequate time being available for the proper representation of a new client.

A lawyer is under no obligation to accept a client if the lawyer determines that the cause of the client is without merit, a conflict of interest would exist or that a suitable working relationship with the client is not likely.

CLIENT'S RIGHTS

A recent consultation revealed that a claimant was denied unemployment insurance benefits after a hearing. The claimant claimed inadequately representation by a pro bono law organization who only spent 5 minutes of consultation with claimant prior to the hearing. My advice when faced with such a problem, fire the lawyer and seek an adjournment to get better representation, even if that means representing yourself. Being represented by an unprepared attorney can be, at times, no better than no representation. Even when represented by a pro bono organization, legal aid, etc., a client has rights. So let me repeat them here:

Section 1210.1 of the Joint Rules of the Appellate Division (22NYCRR§1210.1)

You are entitled to be treated with courtesy and consideration at all times by your lawyer and the other lawyers and personnel in your lawyer's office.

You are entitled to an attorney capable of handling your legal matter competently and diligently, in accordance with the highest standards of the profession. If you are not satisfied with how your matter is being handled, you have the right to withdraw from the attorney-client relationship at any time (court approval may be required in some matters and your attorney may have a claim against you for the value of services rendered to you up to the point of discharge).

You are entitled to your lawyer's independent professional judgment and undivided loyalty uncompromised by conflicts of interest.

You are entitled to be charged a reasonable fee and to have your lawyer explain at the outset how the fee will be computed and the manner and frequency of billing. You are entitled to request and receive a written itemized bill from your attorney at reasonable intervals. You may refuse to enter into any fee arrangement that you find unsatisfactory. In the event of a fee dispute, you may have the right to seek arbitration; your attorney will provide you with the necessary information regarding arbitration in the event of a fee dispute, or upon your request.

You are entitled to have your questions and concerns addressed in a prompt manner and to have your telephone calls returned promptly.

You are entitled to be kept informed as to the status of your matter and to request and receive copies of papers. You are entitled to sufficient information to allow you to participate meaningfully in the development of your matter.

You are entitled to have your legitimate objectives respected by your attorney, including whether or not to settle your matter (court approval of a settlement is required in some matters).

You have the right to privacy in your dealings with your lawyer and to have your secrets and confidences preserved to the extent permitted by law.

You are entitled to have your attorney conduct himself or herself ethically in accordance with the Code of Professional Responsibility.

You may not be refused representation on the basis of race, creed, color, religion, sex, sexual orientation, age, national origin or disability.

SELF HELP?

Well, we usually suggest that you consult with a lawyer and eventually retain one (we do come in handy once in a blue moon) but before you do, arm yourself with some knowledge. Click on the title and it will send you to Nolo.com which has a wealth of legal articles, etc. Can you represent yourself without a lawyer? Yes! By now, I'm sure many of you have heard of the Suffolk County case in which earlier this week, a lender's "unconscionable, vexatious and opprobrious" conduct in attempting to foreclose on a Long Island home prompted a state judge to cancel the mortgage on the property, and the homeowners defended the action pro se...without an attorney. Happy Thanksgiving!

LANDLORD/TENANT MATTERS IN NASSAU COUNTY

As a follow up to yesterday's blog, I want to thank some of the attorneys who have discovered the following cases and law:

Paragraph 5 (e) of the HUD Tenancy Addendum (available at http://www.hud.gov/offices/adm/hudclips/forms/files/52641-a.pdf ) provides:

"The owner may not charge or accept, from the family or from any other source, any payment for rent of the unit in addition to the rent to owner..Rent to owner includes all housing services, maintenance, utilities and appliances to be provided and paid by the owner in accordance with the lease."

Does this supersede provisions in the lease that permit the landlord to collect late fees or legal fees from the tenant? One helpful case from the Second Department is Spring Valley Homes Assoc. v Logan, 2003 NY Slip Op. 51224(U), *3-4, 2003 WL 22038359 (App Term, 9th & 10th Jud Dists 2003), citing 42 USC 1427f (a) (1). In that case, the Appellate Term held that "[e]ven where there is an agreement between the parties providing for the recovery of attorney's fees as 'additional rent', a landlord is not, under the statutory scheme, entitled to collect same from a Section 8 tenant in a summary proceeding."

The Nassau County District Court already decided Douglas v Nole, 20 Misc 3d 1119(A), 2008 NY Slip Op 51394(U) (Nassau Dist Ct 2008), published online at
http://www.nycourts.gov/reporter/3dseries/2008/2008_51394.htm, in which the court held:

"Finally, in her petition, the Petitioner requests reimbursement for legal fees as "additional rent." However, this Court finds that approval of attorney fees is improper. According to Community Properties v. McCloud, 2003 NY Slip Op 51088(U)[App Term, 9th & 10th Jud Dists], supra);"[A] landlord may not collect costs, penalties and other non-rent items as "added rent" from a Section 8 benefits recipient unless specifically provided in the Section 8 lease" (citing Matter of Binghamton Hous. Auth. v. Douglas, 217 AD2d 897, 898 [NY App Div 3rd Dept 1995]; Porter v. Chester Hous. Auth. v. Turner, 189 Misc 2d 603, 604 [NY App Term 2nd Dept 2001].)"

But note that Spring Valley Homes Assoc. v Logan, decided a month after Community Props. v McCloud by a panel including two of the three judges in the earlier case, went further by disallowing any recovery of attorney's fees in a summary proceeding, regardless of what the lease provides, citing the Section 8 statute. As you are aware, many Section 8 housing recipients are single/divorced/separated mothers who cannot make ends meet. Thus, a ruling that any Section 8 housing, whether a project or voucher program, cannot have a lease which provides for late charges or legal fees will be extremely helpful in attempts to resolve their rent issues.

LANDLORD/TENANT MATTERS IN NASSAU COUNTY

In this blog, I am asking lawyers and others familiar with Landlord/Tenant law in New York for help. Yesterday, in Nassau County Landlord/Tenant court I was faced with the issue of whether a landlord is entitled to collect legal fees and late charges for a non-payment in a rental which is paid both by Section 8 and the Department of Social Services. It appears that in NJ, the issue has been addressed at least with respect to legal fees and late charges with Section 8 housing but not tenant voucher rent. Here is a posting at the AccessEvictions.com web site:

"In an important decision the New Jersey Court of Appeals held that landlords and their attorneys violated the Fair Debt Collections Practices Act (FDCPA) by demanding in eviction pleadings more rent than allowed under both state and federal law.[1]

The lease in question defined late fees and other charges as additional rent. The court held both the landlord and its attorney violated both state and federal law by demanding an amount that included the additional amounts as rent.

The case is important because it has implication for landlords in every American jurisdiction, not just New Jersey. Several courts have held that attorneys who regularly perform evictions for landlords are debt collectors for the purposes of the FDCPA.[2] And although evictions are brought through state law processes, the Section 8 program is governed by federal law. [3]

Under New Jersey landlord-tenant law the tenant may avoid eviction by paying the actual rent due and owing, regardless of any outstanding non-rent or extraneous charges. [4]

Also, the court held that federal law defines “rent” for project based section 8 housing in such as way that these items are not included as rent irrespective of the terms of a lease defining them as additional rent.[5]

Plaintiffs’ leases expressly provide that in addition to the monthly rental rate, tenants are obligated to pay at least three forms of “additional rent”: late fees, court costs, and attorneys’ fees incurred by Sasil. Because the apartments are subsidized by HUD, plaintiffs’ legal “rent” obligation is strictly defined by federal statute and regulations as thirty percent of their “adjusted” monthly household income.[6]

Landlords of project based Section 8 tenants and their attorneys should be wary of this holding and very careful how much rent is demanded in eviction pleadings.

By Scott Eller

Further reading:

After ‘Romea’ Attorney Compliance With FDCPA in Landlord/Tenant Cases, Arthur Gussaroff and Allison Hertog, New York Law Journal April 29, 1998.
Landlord’s Beware: Fair Debt Collection Practices Act Applies to Eviction Actions, Posted on April 30, 2007 by Thomas S. Onder.

--------------------------------------------------------------------------------
[1] Hodges v. Feinstein, Raiss, Kelin & Booker, LLC, 893 A.2d 21, 383 N.J.Super. 596

(N.J.Super.App.Div. 03/08/2006).

[2] See, for example, Romea v. Heiberger & Associates, 163 F.3rd 111 (2nd Cir.1998); Hairston v. Whitehorn & Delman, 97 Civ. 3015 (1998).

[3] See 42 U.S.C.A. § 1437a; (a)(1); 42 U.S.C.A. § 1437f; 24 C.F.R. 5.601; 24 C.F.R. 982.310; 24 C.F.R. 247.4.

[4] The court cited N.J.S.A. 2A:42-9.

[5] The court cited 42 U.S.C.A. § 1437a(a)(1); 24 C.F.R. 5.601(2006). Note that this authority does not apply to the tenant-based voucher program. See U.S.C.A. § 1437a(a)(1); 42 U.S.C.A. § 1437f(7); 4 C.F.R. 247.1. It is thus unclear whether the holding in Hodges would be different in case with similar facts involving the tenant-based voucher program, rather than the project based program.

[6] Hodges, 2007.NJ.0000059< http://www.versuslaw.com> at 2."

LANDLORD/TENANT MATTERS IN NASSAU COUNTY

Today I will be in Nassau County Landlord and Tenant Court as part of the Landlord/Tenant Project's Attorney of the Day Program, which assists thousands of men, women and children in court to prevent homelessness. To take advantage of this program, and assuming you meet income eligibility standards, when you appear on the return date of your summary proceeding, wait for the calendar call, and then when your name is called, advise the clerk you are requesting a lawyer. The clerk will send you to a room, where information will be taken regarding your income, etc., and if you are eligible, an attorney will represent you.

MORTGAGE FORCLOSURE - DEC. 15

FREE Mortgage Foreclosure Legal Consultation Clinics on December 15 - Nassau residents caught in the growing mortgage foreclosure crisis can have their questions answered by attorneys at a free clinic sponsored by the Nassau County Bar Association at the NCBA headquarters, 15th and West Streets, Mineola, NY. Attorneys have volunteered to provide one-on-one guidance, advice and direction to any Nassau County homeowner who is concerned about foreclosure matters or is already in the foreclosure process involving property in Nassau County. Attorneys have volunteered to review individual foreclosure issues with Nassau homeowners, help them sort things out, and give advice or refer them to agencies and programs, right in the same room, that may be able to help. This is not legal representation. The attorneys will help the homeowner find out if indeed, they need a credit counselor or a lawyer, and get them in touch with available resources. In addition to meeting one-on-one with a volunteer attorney, housing counselors from the Nassau County Homeownership Center and representatives from Nassau/Suffolk Law Services -- which provides free legal services for those who meet certain income guidelines -- will be on hand to provide assistance. Reservations are required by calling the Bar Association at 516-747-4070 between 9:30 a.m. - 4:30 p.m. All clinics 4-6 p.m. I will be one of the volunteer attorneys.

ELDER ABUSE

Another matter I faced when I was a volunteer attorney this week at the Nassau County Bar Association Senior Clinic was a problem of elder abuse. There are many forms of Elder Abuse: physical, emotional, financial, etc. Click on the title above: it will lead you to The National Center on Elder Abuse (NCEA), directed by the U.S. Administration on Aging, which is committed to helping national, state, and local partners in the field be fully prepared to ensure that older Americans will live with dignity, integrity, independence, and without abuse, neglect, and exploitation. The NCEA is a resource for policy makers, social service and health care practitioners, the justice system, researchers, advocates, and families.

DEALING WITH UNLICENSED CONTRACTORS

Yesterday, I was a volunteer attorney giving free 30-minute private consultations to Nassau County residents 65 years of age and over at the Nassau County Bar Association, 15th and West Streets, Mineola, NY. And one matter that came to me was a couple who contracted with an unlicensed contractor for the installation of some major equipment in their home. Although the warnings about dealing with unlicensed contractors have been many, still the attraction of low prices capture many into the trap. And usually, the work performed is substandard, not completed, unsafe, etc. The likelihood of suing for damages and collecting on a judgment is minimal: these contractors usually have no assets in their name, operate through shell corporations, etc. So again - DON'T DEAL WITH UNLICENSED CONTRACTORS. AND ASK LICENSED CONTRACTOR FOR A COPY OF THEIR INSURANCE BINDER AND THEN CALL THE INSURANCE COMPANY TO SEE IF IT IS STILL VALID. By clicking on the title above, the link will send you to a site on the NYC Department of Consumer Affairs website which explains what to do when you have dealt with unlicensed contractors and what to look for when you are seeking home improvement work.

UNEMPLOYMENT INSURANCE - HEARINGS

This is another post I recently made to the NYS Department of Labor Facebook page and is just a reminder to all:

"Hello: Just another suggestion as I am an attorney representing claimants in hearings in Nassau County: if there is a dispute regarding your benefits, and you receive a questionnaire from the Department of Labor, please retain a copy of it with your answers, or if questions are asked over the phone, please take notes. For hearings, it is best to know what you stated to the Department of Labor and avoid inconsistent statements."

And may I add, if possible, go the hearing office as soon as you get your hearing date and try to obtain a copy of the papers that your employer submitted to the Department of Labor. These papers can clarify the issue for your attorney and can also be used for you, i.e., on issues of credibility if there are inconsistent statements, etc.

UNEMPLOYMENT INSURANCE - HEARINGS

This is a post I recently made to the NYS Department of Labor Facebook page and is just a reminder to all:

"Hello: I am an attorney and I represent many claimants in hearings in Nassau County. I would just like to let claimants know that, in my opinion: (1) if you request a hearing regarding a denial or benefits, or (2) if your employer requests a hearing regarding the granting of benefits, and if you want someone to represent you at the hearing, I feel it is best to contact the attorney early and not just a few days before the hearing date. Personally, I like to prepare my cases, review the file, meet with you, research the law, etc....and for me, I cannot do that on 2 days notice. Also, at times, you should consult an attorney while you are still employed and are having issues with your employment. It may help you later when your right to benefits is being disputed. I am posting this because lately, I have received many calls to the effect: "I have a hearing tomorrow - can you represent me?""

UNEMPLOYMENT INSURANCE - SELF EMPLOYED

A recent consultation revealed the following: Claimant ran a business on weekends as well as being full time employed on weekdays. The weekend business had income of over $10,000 and was operated as a corporation. Claimant's weekday job was terminated and Claimant applied for benefits but was denied on the grounds that Claimant was self-employed. This is from the Department of Labor website:

"The unemployment Insurance Law provides in Section 591 that benefits "shall be paid only to a claimant who is totally unemployed." Section 522 of the law defines total unemployment as "the total lack of employment on any day" and specifies that such employment includes "that not defined" in the Unemployment Insurance Law. This last mentioned specification has been interpreted by the Courts to mean that a self-employed claimant is not totally unemployed within the meaning of Section 522 of the law. This principle has been established by the Court in Matter of Emery (A-750-1207) and reiterated in Matter of Bunzl (A-750-1404). Following these Court decisions, it has been applied in rendering benefit determinations and in Appeal Board and Referee decisions. Thus, for the purposes of determining whether a claimant is totally unemployed, but for this purpose only, self-employment has the same significance as employment (as an employee) under a contract of hire. Neither these Court decisions nor the law define what is meant by "self- employment." Does it include any gainful work which an individual performs while not in an employer-employee relationship, however casual and sporadic such activity might be, including one-time undertakings, or however minute the effort and time which he devotes to it? Or does it require that the characteristics be present which commonly identify the existence of a going business, such as a physical establishment, continuous operations, sustained solicitation of customers, etc.? Is it necessary that a person, to be "self-employed" in this sense performs work in connection with the business or does it suffice that he is an owner or co-owner?"