CLAIMING IMPROPER SERVICE

BAC Home Loans Servicing, LP v Carrasco, 2018 NY Slip Op 02443, Decided on April 11, 2018, Appellate Division, Second Department:

"A process server's affidavit of service gives rise to a presumption of proper service (see Machovec v Svoboda, 120 AD3d 772, 772; Wells Fargo Bank, N.A. v Final Touch Interiors, LLC, 112 AD3d 813, 814). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits'" (Scarano v Scarano, 63 AD3d 716, 716 [citation omitted], quoting Simonds v Grobman, 277 AD2d 369, 370; see American Home Mtge. Servicing, Inc. v Gbede, 127 AD3d 1004, 1005; Edwards, Angell, Palmer & Dodge, LLP v Gerschman, 116 AD3d 824). Here, the affidavit of the defendant Andres H. Carrasco, which was submitted in support of his motion, inter alia, to dismiss the complaint insofar as asserted against him, set forth that he did not receive the pleadings, but did not deny the specific facts contained in the process server's affidavit (see U.S. Bank N.A. v Telford, 153 AD3d 881, 882; Bank of N.Y. v Samuels, 107 AD3d 653, 654; Christiana Bank & Trust Co. v Eichler, 94 AD3d 1170, 1171). Carrasco's conclusory assertion was inadequate to rebut the presumption of proper service (see U.S. Bank, N.A. v Peralta, 142 AD3d 988, 988-989; Bank of N.Y. v Espejo, 92 AD3d 707, 708). Accordingly, a hearing to determine the validity of service of process was not warranted under the circumstances of this case, the order directing that hearing must be reversed, and the order made after the hearing must be vacated (see Wells Fargo Bank, N.A. v Decesare, 154 AD3d 717; Washington Mut. Bank v Huggins, 140 AD3d 858, 859)."

NASSAU COUNTY EXPANSION OF CONSENSUAL E FILING

By notice dated April 3, 2018, an announcement was made regarding an update on the progress of the New York State Courts' Electronic Filing System ("NYSCEF"). As authorized under Chapter 237 of the Laws of 215, expansion of the consensual e-filing program has been proposed by the District Administrative Judge of the 10th Judicial District and the Nassau County Clerk lo take effect May 23, 2018. As of the effective date, the authorization will be to expand the consensual e-filing program to include newly filed matrimonial and CPLR Article 78 proceedings.

UNEMPLOYMENT INSURANCE - MISCLASSIFICATION

State of New York Supreme Court, Appellate Division,Third Judicial Department, Decided and Entered: March 29, 2018, 524951, In the Matter of the Claim of WALTER O. COWAN:

"Bimbo Foods Bakeries Distribution, Inc. (hereinafter the company) produces and distributes fresh baked goods under a variety of names and labels to chain stores and restaurants. Claimant entered into a distribution agreement with the company's predecessor in interest and purchased the rights to deliver those products in a specified geographic area.  After claimant ceased delivering for the company and sought a determination regarding unemployment insurance benefit coverage, the Department of Labor determined that claimant was an employee of the company and found it liable for additional unemployment insurance contributions. The company disputed the finding, asserting that claimant was an independent contractor.  Following a hearing, the Unemployment Insurance Appeal Board ultimately found that an employer-employee relationship existed and sustained the initial determination assessing additional unemployment insurance contributions on remuneration paid to claimant and other similarly situated individuals.  The company appeals.

"Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the . . . [B]oard, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion" (Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983] [citations omitted]; see Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d 433, 437 [2010]).  "An employer-employee relationship exists when the evidence demonstrates that the [purported] employer exercises control over the results produced by claimant or the means used to achieve the results" (Matter of Hertz Corp. [Commissioner of Labor], 2 NY3d 733, 735 [2004] [citation omitted]).  The control over the means employed is the more important factor to be considered (see Matter of Empire State Towing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d at 437; Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725, 726 [1984]).  "All aspects of the arrangement must be examined to determine whether the degree of control and direction reserved to the [purported] employer establishes an employment relationship" (Matter of Villa Maria Inst. of Music [Ross], 54 NY2d 691, 692 [1981] [citations omitted]).

Initially, we are unpersuaded by the company's contention that the Board erred in determining that claimant was an employee as a matter of law pursuant to Labor Law § 511 (1) (b).  Labor Law § 511 (1) (b) defines "[e]mployment" for unemployment insurance purposes to include "any service by a person for an employer . . . as an agent-driver or commission-driver engaged in distributing . . . bakery products."  According to the company, claimant did not earn a commission but earned revenue upon selling the bakery products that he purchased at prices set by him.  The record, however, supports the Board's finding that the actual relationship between the parties did not constitute that of a buyer and seller.  No money was exchanged in connection with claimant's alleged purchases and, pursuant to the terms of the distribution agreement, he was credited for returned stale products.  Further, any hypothetical change in pricing negotiated by claimant with customers would only have resulted in a smaller commission as calculated by a set percentage.  The company also asserts that the remuneration earned by claimant was not a "commission" as defined in Labor Law § 191-a (a), but overlooks that said definition is limited to issues relating to the payment of wages under Labor Law article 6 (see Klepner v Codata Corp., 139 Misc 2d 382, 385 [1988], affd 150 AD2d 994 [1989]).  In view of the foregoing, substantial evidence supports the Board's finding that claimant earned a commission and qualified as an employee under Labor Law § 511 (1) (b).

Additionally, we find that substantial evidence supports the Board's finding that the company exercised sufficient supervision, direction and control over claimant to establish an employer-employee relationship under common-law principles.  The company retained numerous rights under the distribution agreement, including the right to set the price of the products sold to claimant and the right to negotiate with chain outlets to determine price and terms of sale, and it retained the authority to sell distribution rights purchased by claimant or perform his delivery obligations under certain circumstances.  Claimant was further required to deliver fresh products and remove stale products in a defined area, sell any additional products provided by the company, cooperate with its marketing programs, remit settlement information to it each week, maintain certain chain outlet customers even if not profitable to him and not engage in any business activity that directly competed with the company or interfered with his obligations under the distribution agreement. In addition, claimant was interviewed by the company, relied on certain equipment and supplies provided by it, was paid on a weekly basis and was trained, instructed, supervised and monitored by a company manager regarding his deliveries. Considering the foregoing, we find no reason to disturb the Board's finding that the company exercised sufficient control over claimant and those similarly situated to establish an employer-employee relationship, despite evidence in the record that could support a contrary conclusion (see Matter of Mastroianni Bros., Inc. [Commissioner of Labor], 130 AD3d 1117, 1119 [2015]; Matter of Francis [West Sanitation Servs.-Sweeney], 246 AD2d 751, 752 [1998], lvs dismissed 92 NY2d 886 [1998], 93 NY2d 833 [1999]; Matter of Pepsi Cola Buffalo Bottling Corp. [Hartnett], 144 AD2d 220, 222 [1988]; Matter of Oakes [Stroehman Bakeries-Roberts], 137 AD2d 927, 928 [1988])."

CUSTODY ISSUES OF CHILDREN WITH SPECIAL NEEDS

Matter of Griffin v Danzy, 2018 NY Slip Op 02324 ,Decided on April 4, 2018, Appellate Division, Second Department:

"The parties, who were never married, have two children together, twins born in April 2012. The children, who were born prematurely, have several health issues, including chronic lung disease and asthma, and one child has a heart defect.

In July 2013, the father filed a petition for custody and visitation. Thereafter, temporary orders of visitation were issued, granting the father alternate weekend visitation with the children, initially supervised by the mother, and later with the assistance of the children's home health aide. After a hearing, the Family Court, inter alia, granted the father unsupervised, overnight visitation on alternate weekends, to commence gradually after the mother had provided the father with an updated list of the children's physicians and the father had contacted each physician regarding the children's diagnoses and medications. The mother appeals.

The court's paramount concern in adjudicating visitation rights is the best interests of the child (see Matter of Murphy v Lewis, 149 AD3d 748, 749; Matter of Anthony M.P. v Ta-Mirra J.H., 125 AD3d 868, 868; Matter of Morocho v Jordan, 123 AD3d 1037, 1037). "Supervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child" (Cervera v Bressler, 50 AD3d 837, 839 [internal quotation marks omitted]; see Matter of Murphy v Lewis, 149 AD3d at 750; Matter of Lopez v Lopez, 127 AD3d 974, [*2]974; Matter of Blazek v Zavelo, 127 AD3d 854, 854; Matter of Anthony M.P. v Ta-Mirra J.H., 125 AD3d at 868). "Since custody and visitation determinations necessarily depend[ ] to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the court's findings'" (Matter of James M. v Kevin M., 99 AD3d 911, 913, quoting Matter of Elliott v Felder, 69 AD3d 623, 623). Thus, the determination of whether visitation should be supervised is a matter within the sound discretion of the Family Court and should not be set aside unless it lacks a sound and substantial basis in the record (see Matter of Blazek v Zavelo, 127 AD3d at 854; Matter of Anthony M.P. v Ta-Mirra J.H., 125 AD3d at 868; Matter of Dolan v Masterton, 121 AD3d 979, 981; Irizarry v Irizarry, 115 AD3d 913, 915; Matter of Brian M. v Nancy M., 227 AD2d 404, 404; Matter of Gerald D. v Lucille S., 188 AD2d 650, 650).

Here, the record does not support a conclusion that overnight, unsupervised visitation would be detrimental to the children. Further, the requirements imposed by the Family Court's order, including requiring the mother to provide contact information for all of the children's doctors, requiring the father to contact each doctor to obtain information about the children's diagnoses and medications, and introducing the overnight visitation gradually, while ensuring the assistance of the children's home health aide, are designed to protect the children while encouraging the bond between the children and the father (see Matter of Anthony M.P. v Ta-Mirra J.H., 125 AD3d at 868). Accordingly, the court's visitation determination had a sound and substantial basis in the record, and will not be disturbed (see Matter of Blazek v Zavelo, 127 AD3d at 854; Matter of Dolan v Masterton, 121 AD3d at 981; Irizarry v Irizarry, 115 AD3d at 915; Matter of Gerald D. v Lucille S., 188 AD2d at 650).:

CHILD'S EXPOSURE TO PARENTS' DOMESTIC VIOLENCE

Matter of John M.M. (Michael M.), 2018 NY Slip Op 02326, Decided on April 4, 2018, Appellate Division, Second Department:

"The petitioner commenced this proceeding pursuant to Family Court Act article 10, alleging that Michael M. (hereinafter the father) neglected the subject child by committing acts of domestic violence against the child's mother in the presence of the child. After the close of the petitioner's case, the Family Court granted the father's motion to dismiss the petition for failure to establish a prima facie case and dismissed the petition. The petitioner appeals.

"To establish neglect, [a] petitioner must demonstrate, by a preponderance of the evidence, (1) that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired, and (2) that the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship" (Matter of Chaim R. [Keturah Ponce R.], 94 AD3d 1127, 1130; see Family Ct Act §§ 1012[f][i][B]; 1046[b][i]; Nicholson v Scoppetta, 3 NY3d 357, 368). Although the exposure of a child to domestic violence between parents may form the basis for a finding of neglect (see e.g. Matter of Jihad H. [Fawaz H.], 151 AD3d 1063, 1064; Matter of Moises G. [Luis G.], 135 AD3d 527; Matter of Andrew Y., 44 AD3d 1063, 1064), "exposing a child to domestic violence is not presumptively neglectful. Not every child exposed to domestic violence [*2]is at risk of impairment" (Nicholson v Scoppetta, 3 NY3d at 375 [emphasis omitted]; see Matter of Kiana M.-M. [Robert M.], 123 AD3d 720, 721).

Contrary to the Family Court's determination, viewing the evidence in the light most favorable to the petitioner and affording it the benefit of every inference which could be reasonably drawn from the evidence (see Matter of Jaivon J. [Patricia D.], 148 AD3d 890, 892), the petitioner presented a prima facie case of neglect against the father. At the fact-finding hearing, the petitioner presented, among other things, the hearsay testimony of a police officer who testified that the mother described the father throwing an object at her head, choking her, and throwing her to the ground at the side of their bed, causing her to lose consciousness. Certified hospital records that the petitioner also introduced into evidence generally corroborated the mother's statements, including her statement that the child, who was then 11 months old, was lying on the parents' bed throughout the assault. Accordingly, the court erred in granting the father's motion to dismiss the petition (see Matter of Isabella S. [Robert T.], 154 AD3d 606, 606-607; Matter of Jihad H. [Fawaz H.], 151 AD3d at 1064; Matter of Cody W. [Ronald L.], 148 AD3d 914, 916; Matter of Tamara D. [Randolph P.], 120 AD3d 813, 813; Matter of Kiara C. [David C.], 85 AD3d 1025, 1026). Since the court terminated the proceeding after the close of the petitioner's direct case upon an erroneous finding that a prima facie case had not been established, there must be a continued fact-finding hearing for the father to present his case, if he be so advised, and a new determination thereafter (see generally Matter of Jaivon J. [Patricia D.], 148 AD3d at 892; Matter of Marques B. [Eli B.], 133 AD3d 654, 655)."

DISPUTES WITH NEIGHBORS

This is an old case, 1980, but is still cited as authority, most recently in Coffey v. GERELLI, 2017 NY Slip Op 50817 - NY: Appellate Term, 2nd Dept. 2017 ("When the branches of a tree overhang the property of an adjoining landowner, the adjoining landowner may resort to self help to remove those branches (see 1 NY Jur 2d, Adjoining Landowners § 65). The right to self help extends to ordinary trimming and clipping, and does not extend to the destruction of, or injury to, the main support systems of the tree; nor does it extend past the adjoining landowner's property line").

Turner v. Coppola, 102 Misc. 2d 1043 - NY: Supreme Court, Nassau 1980:

"This is an action for omnibus relief due to an alleged nuisance. The adversaries own and reside upon adjoining lots in the Village of Malverne, Nassau County, New York.

As a first cause of action in equity, plaintiff alleges that leaves, twigs, branches, and buds from defendants' trees constantly fall upon plaintiff's property, cluttering the lawn, driveway, and sewer vents. Plaintiff further alleges a continuing hardship in excessive time, money, and labor expended to collect and transport this accumulated tree rubbish.

As a second cause of action in law, plaintiff alleges, pursuant to section 871 of the Real Property Actions and Proceedings Law, that some of defendants' tree branches overhang and encroach upon her premises, cause cosmetic damage to her garage, prevent her lawn from receiving adequate sunlight, and deprive her of the exclusive, safe use and enjoyment of her property.

Defendants' motion to dismiss the complaint for failure to state a cause of action is based upon an allegation of damnum absque injuria, or harm without injury in the legal sense.

The primary issue before this court is whether or not plaintiff has stated a cause of action, in equity or in law, for the alleged damages caused by defendants' trees which are in close proximity to plaintiff's property.

1045*1045The specific question raised is whether the overhanging branches and/or accumulated fallen leaves, branches, and buds, under the circumstances stated, constitute a nuisance or other actionable legal theory, entitling plaintiff to relief.

When plaintiff states in her affidavit in answer to defendants' motion for dismissal of the complaint that this action does not fall within the category of nuisance or negligence or self-help "by clipping off the offensive encroaching branches", this court agrees in part.

The essence of a private nuisance is interference with the use and enjoyment of land amounting to an injury in relation to a right of ownership in that land. (Kavanagh v Barber, 131 N.Y. 211; Mandell v Pivnick, 20 Conn Supp 99.) Since the trees in this case are not poisonous or noxious in their nature, they are not a nuisance per se, in such a sense as to sustain an action for relief. (Countryman v Lighthill, 24 Hun 405.)

Recovery for damages from overhanging branches depends upon the presence of actual injury to plaintiff or plaintiff's property. Upon the facts stated and the allegations made in the complaint, there is insufficient basis for an action as a private nuisance because real, sensible damage has not been shown to result from the overhanging tree branches or leaves. (Countryman v Lighthill, supra.) There is some difference of opinion as to the extent of damages required to constitute sensible or substantial damages, only that without this showing, an action in nuisance does not arise. The cases are in agreement that trees ordinarily are not nuisances, unless decayed or otherwise dangerously unsound. (Gibson v Denton, 4 App Div 198.) One standard for measuring the degree of damage in this area is definite offensiveness, inconvenience or annoyance to the normal person in the community where the customs of the community are to be taken into account. (Wade v Miller, 188 Mass 6; Restatement, Torts, § 822, comment g.)

Neither does plaintiff have an action in trespass. The majority of cases distinguish trespass from nuisance on the ground that trespass is an invasion of the plaintiff's interest in the exclusive possession of her land. If such an invasion also deprives plaintiff of the use and enjoyment of her land, then nuisance would jointly arise (Burk v High Point Homes, 22 Misc 2d 492) so long as the interference causes substantial harm for the nuisance action and intentional intrusion for the 1046*1046 trespass action. (Restatement, Torts 2d, § 166.) We do not find such interference or intrusion here.

Neither does plaintiff have an action in negligence. There is a large class of cases, in which injury is suffered by a party, where the law gives no redress. If a tree growing upon the land of one is blown down upon the premises of another, and in its fall injures his shrubbery, or his house, or his person, he has no redress against him upon whose land the tree grew (Sheldon v Sherman, 42 N.Y. 484) provided such injury arises from a fortuitous occurrence beyond the control of man, without his fault or negligence. Certainly, if liability does not ensue in negligence for falling trees, therefore it cannot ensue in negligence for falling leaves and overhanging branches which cause cosmetic damage to a garage or block the sun from a sod-covered lawn. In these cases, the party through whom such acts occur is not responsible for it. (Sheldon v Sherman, supra.)

Since our statutes do not accord a remedy to one whose personal enjoyment and use of private property is lessened by mere overhanging tree branches or falling leaves, there is no statutory ground for damages or abatement of the alleged injury.

Summary abatement by self-help under these circumstances is a sufficient remedy. (Countryman v Lighthill, supra.) Just as it has been established that a property owner may resort to self-help in the first instance to remove tree roots adversely affecting his land (Michalson v Nutting, 275 Mass 232; Colombe v City of Niagara Falls, 162 Misc 594; Ferrara v Metz, 49 Misc 2d 531) so it has been held with the removal of overhanging tree branches. We do not see this burden as an unreasonable one upon the plaintiff. Such a limitation upon the rights of a landowner is proper with respect to innoxious tree branches and leaves, as they are readily visible, unlike roots, and may be cut and collected without great difficulty. (Norwood v City of New York, 95 Misc 2d 55.) Indeed, such natural growth and shedding processes of trees are inherent in such an area, and to most people constitute a pleasurable reflection of seasonal changes.

Plaintiff's right to ordinary trimming and clipping of the overhanging branches does not extend to destruction or injury to the main support systems of the tree. (Spadaro v Putter, 108 NYS2d 343; Adams v Hahne, 59 Misc 2d 827, where controlled clipping of an encroaching hedge was allowed but 1047*1047 legal action was not.) In any event, plaintiff may not go beyond the property line to cut or destroy part or all of a tree on the adjoining land unless the tree becomes a private nuisance as to an abutting owner, due to its rotted and diseased condition. (Childers v New York Power & Light Corp., 275 App Div 133.)

Under the maxim de minimis non curat lex, we further believe that the alleged damages are not substantial enough to seriously interfere with the use and enjoyment of the plaintiff's premises (Ungrich v Shaff, 119 App Div 843) or to require this court's further attention.

Clashing land uses require an examination of the character of the neighborhood as well as the character of the defendants' and plaintiff's alleged harms and equities within a balancing framework. Using such a framework, upon these facts, this court is not persuaded that plaintiff has suffered unreasonable injury or that she carries an unreasonable burden by continued exercise of her right to cut off the offending, overhanging branches and bag or rake the offending leaves. Plaintiff moved into this neighborhood only eight years ago, with knowledge of the trees already there and of their visible maturity. If a valid nuisance does arise in the future, however, plaintiff would not be barred from complaining about it merely because the nuisance was there first. (Campbell v Seaman, 63 N.Y. 568.)

On the other half of the scale, it appears that defendants would bear an unreasonable burden in being held responsible for natural conditions over which they have little, if any, control. Certainly, mature trees, rooted and growing for many years before defendants or plaintiff moved into their respective homes, would qualify as such.

In conclusion, one whose land is intruded upon by tree branches and leaves, which are not poisonous or inherently injurious to the extent of sensible or substantial damages, or of reasonable foreseeability, has no cause of action against adjoining landowners of such trees, but may protect herself therefrom by reasonable cutting of branches to the extent that they invade her property and no more.

We have not considered the jurisdictional question raised by the defendants insofar as it relates to improper service of process for two reasons: (1) the objection is raised on the basis of an attorney's affidavit which consists mainly of hearsay 1048*1048 evidence which is not considered by this court; and (2) the objection is considered moot by the decision of this court."

DETERMINING PARENTING TIME

Matter of Bongocan v Javier L., 2018 NY Slip Op 02148, Decided on March 28, 2018, Appellate Division, Second Department:

"The essential consideration in determining custody is the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171; Matter of Sahadath v Andaverde, 145 AD3d 731), and no parent has a prima facie right to the custody of the child (see Domestic Relations Law §§ 70[a]; 240[1][a]; Friederwitzer v Friederwitzer, 55 NY2d 89, 93; Matter of Schultheis v Schultheis, 141 AD3d 721, 722; Matter of Wallace v Roberts, 105 AD3d 1053, 1053). In determining a custody arrangement that is in the child's best interests, the court must consider several factors, including "the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent" (Salvatore v Salvatore, 68 AD3d 966, 966; see Eschbach v Eschbach, 56 NY2d at 171-173). The court is to consider the totality of the circumstances, and the existence of any one factor is not determinative (see Eschbach v Eschbach, 56 NY2d at 174; Matter of Bowe v Bowe, 124 AD3d 645, 646; Matter of Bosede v Agbaje, 121 AD3d 675, 676). Where, as here, the court has conducted a complete evidentiary hearing on the issues of custody and visitation, its credibility findings "must be accorded great weight, and its custody and visitation determination will not be disturbed unless it lacks a sound and substantial basis in the record" (Iacono v Iacono, 117 AD3d 988, 988; see Matter of Klein v Theus, 143 AD3d 984; Matter of Sterling v Silva, 124 AD3d 669).

Here, upon determining that both parties were fit parents, the Family Court awarded them joint legal custody of the child, with primary residential custody to the mother, citing, inter alia, the fact that the mother has been the child's primary caretaker. The court's determination awarding the parties joint legal custody with primary residential custody to the mother has a sound and substantial basis in the record and, accordingly, we decline to disturb it (see Matter of Quinones v Quinones, 139 AD3d 1072; Matter of Lawlor v Eder, 106 AD3d 739, 740).

However, the Family Court improvidently exercised its discretion in conditioning part of the father's parental access to the child on the vagaries of the mother's work schedule. The extent to which the noncustodial parent may exercise parenting time should be determined on the basis of the best interests of the child consistent with the concurrent right of the child and the noncustodial parent to meaningful time together (see Chamberlain v Chamberlain, 24 AD3d 589, 592-593; Palumbo v Palumbo, 292 AD2d 358, 360; Cesario v Cesario, 168 AD2d 911). Here, in crafting an access schedule for the father, the court noted that the mother, a nurse for approximately 13 years, worked three nights per week. The court awarded, inter alia, the father visitation on alternate weekends and also gave the father overnight visitation with the child on the nights the mother was working. Although such schedule, in effect, would provide the father weekly access time to the child essentially equivalent to the mother's weekly access time with the child, we determine that it is not in the child's best interests to condition such access upon the mother's work schedule. Here, a more appropriate schedule, consistent with the parental rights and responsibilities of both parties, would be to award the father two weekday overnight visits per week during weeks that follow the weekends that he had the child, and three weekday overnight visits per week during weeks that follow the weekends that he did not have the child, with the days of such overnight visitation to be agreed upon by the parties, and the time that the father picks the child up from school/daycare to commence his overnight visitation and the time the following morning that the father drops the child off at school/daycare to be agreed upon by the parties."

BUT DOES THE MORTGAGE REMAIN AS A LIEN?

U.S. Bank N.A. v Joseph, 2018 NY Slip Op 02155, Decided on March 28, 2018, Appellate Division, Second Department:

"The appellants moved to dismiss the complaint insofar as asserted against them as time-barred pursuant to CPLR 3211(a)(5). They pointed out that almost nine years had elapsed since the acceleration of their loan, well beyond the six-year statute of limitations. The plaintiff opposed the motion, arguing, among other things, that the action was not time-barred because the limitations period had been sufficiently tolled under CPLR 204(a) by the bankruptcy stays and the temporary restraining order that was in effect during the pendency of the Josephs' motion to dismiss the first foreclosure action. The Supreme Court denied the appellants' motion.

"On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired" (Wells Fargo Bank, N.A. v Burke, 155 AD3d 668, 669; see Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815, 816). "The burden then shifts to the nonmoving party to raise a question of fact as to the applicability of an exception to the statute of limitations, as to whether the statute of limitations was tolled, or as to whether the action was actually commenced within the applicable limitations period" (Singh v New York City Health & Hosps. Corp. [Bellevue Hosp. Ctr. & Queens Hosp. Ctr.], 107 AD3d 780, 781 [citation omitted]).

An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4]). With respect to a mortgage payable in installments, separate causes of action accrue for each installment that is not paid and the statute of limitations begins to run on the date each installment becomes due (see Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 867; Wells Fargo Bank, N.A. v Burke, 94 AD3d 980, 982; Wells Fargo Bank, N.A. v Cohen, 80 AD3d 753, 754; Loiacono v Goldberg, 240 AD2d 476, 477). Once a mortgage debt is accelerated, however, the statute of limitations begins to run on the entire debt (see Amrusi v Nwaukoni, 155 AD3d 814; Stewart Tit. Ins. Co. v Bank of N.Y. Mellon, 154 AD3d 656, 659; Beneficial Homeowner Serv. Corp. v Tovar, 150 AD3d 657, 658).

Here, it is undisputed that the six-year statute of limitations began to run on February 1, 2006, when the plaintiff accelerated the mortgage debt (see Amrusi v Nwaukoni, 155 AD3d at 817). Moreover, since the plaintiff did not commence this action until January 14, 2015, more than six years later, the appellants sustained their initial burden of demonstrating, prima facie, that this action was untimely (see U.S. Bank N.A. v Martin, 144 AD3d 891, 891-892).

In opposition, the plaintiff failed to raise a question of fact as to whether the limitations period was tolled for sufficient periods to bring the action within the six-year limitations period. Under CPLR 204(a), "[w]here the commencement of an action has been stayed by a court or by statutory prohibition, the duration of the stay is not a part of the time within which the action must be commenced" (see Mercury Capital Corp. v Shepherds Beach, 281 AD2d 604, 604; Torsoe Bros. Constr. Corp. v McKenzie, 271 AD2d 682, 682). The bankruptcy stay of 11 USC § 362(c) operates under CPLR 204(a) to stay the commencement, or continuation, of a foreclosure action (see U.S. Bank, N.A. v McKenna, 149 AD3d 1136, 1137; U.S. Bank N.A. v Martin, 144 AD3d at 893; Mercury Capital Corp. v Shepherds Beach, 281 AD2d at 604). Thus, the periods during which bankruptcy stays were in effect were not part of the time counted in the calculation of the running [*3]of the statute of limitations, at least as to Barbara Joseph (see Deutsche Bank Natl. Trust Co. v Karlis, 138 AD3d 915, 917; Mercury Capital Corp. v Shepherds Beach, 281 AD2d at 604; Zuckerman v 234-6 W. 22 St. Corp., 267 AD2d 130, 130). Contrary to the plaintiff's contention, however, the time during which the temporary restraining order was in effect when the Josephs moved to dismiss the first foreclosure action did not toll the running of the statute of limitations. That order prevented the plaintiff from selling the property at auction, but only in the context of the first foreclosure action. The temporary restraining order did not prevent the plaintiff from discontinuing the first foreclosure action and commencing a new action (cf. Citibank, N.A. v McGlone, 270 AD2d 124, 125). Thus, the plaintiff was not entitled under CPLR 204(a) to have the time during which the temporary restraining order was in effect excluded from the statute of limitations, and the total time elapsed from the acceleration of the mortgage debt until the second foreclosure action was commenced exceeded six years, even when the periods attributable to the bankruptcy stays are excluded. Accordingly, the Supreme Court should have granted the appellants' motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred."

CONTRACT BY EMAIL

Kolchins v Evolution Mkts., Inc., 2018 NY Slip Op 02209, Decided on March 29, 2018, Court of Appeals, Stein, J.:

"In considering whether a binding contract exists, "[t]he first step . . . is to determine whether there is a sufficiently definite offer such that its unequivocal acceptance will give rise to an enforceable contract" (Matter of Express Indus. & Term. Corp. v New York State Dept. of Transp., 93 NY2d 584, 589-590 [1999]). In that regard, we recently reaffirmed that our decision in "Brown Bros. presents the template for deciding a case, such as this one, where the issue is whether the course of conduct and communications between [the parties have] created a legally enforceable agreement'" (Zheng v City of New York, 19 NY3d 556, 571 [2012], quoting Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397, 398 [1977]). Under Brown Bros.,

"it is necessary to look . . . to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds. In doing so, disproportionate emphasis is not to be put on any single act, phrase or other expression, but, instead, on the totality of all of these, given the attendant circumstances, the situation of the parties, and the objectives they were striving to attain"

(41 NY2d at 399-400). While the courts are charged with interpreting written instruments, "where a finding of whether an intent to contract is dependent . . . on other evidence from which differing inferences may be drawn, a question of fact arises" (id. at 400).

Of course, "[i]f an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract" (Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 482 [1989]). This "requirement of definiteness assures that courts will not impose contractual obligations when the parties did not intend to conclude a binding agreement" (id.). However, while a "mere agreement to agree, in which a material term is left for future negotiations, is unenforceable" (Joseph Martin, Jr., Delicatessen v Schumacher, 52 NY2d 105, 109 [1981]), the "terms of a contract [do not] need [to] be fixed with absolute certainty" to give rise to an enforceable agreement (Matter of Express Indus., 93 NY2d at 590; see Cobble Hill, 74 NY2d at 483). At the same time, "if the parties to an agreement do not intend it to be binding upon them until it is reduced to writing and signed by both of them, they are not bound and may not be held liable until it has been written out and signed" (Scheck v Francis, 26 NY2d 466, 469-470 [1970]; see Stonehill Capital Mgt. LLC v Bank of the W., 28 NY3d 439 [2016]).

Here, we conclude that, based on all the documentary evidence proffered by defendant, a reasonable fact-finder could determine that a binding contract was formed. Ertel's initial email to plaintiff stated that "[t]he terms of our offer are the same [as the] terms of your existing contract" — apart from "a clarification" concerning an issue that plaintiff characterizes as minor — and outlined the core terms that were included in the 2009 Agreement. He added that, if plaintiff had "[a]ny further questions" he should consult his "existing contract." Inasmuch as this email explained that "the terms of the offer" were to be nearly identical to the terms of plaintiff's existing contract, a reasonable fact-finder could interpret it as evincing an objective manifestation of defendant's intent to enter into a bargain, such that plaintiff was justified "in understanding that his assent to that bargain [was] invited and [would] conclude it" (Restatement [Second] of Contracts § 24 [1981]). Put differently, it could reasonably be inferred that Ertel's email constituted a valid offer by defendant. In response to that email, plaintiff wrote "I accept. pls [sic] send contract," to which Ertel replied, "Mazel. Looking forward to another great run."[FN4] Affording plaintiff the benefit of every favorable inference, this exchange — in essence, we "offer" and "I accept," followed by an arguably congratulatory exclamation, coupled with a forward-looking statement about the next stage of the parties' continuing relationship — sufficiently evinces an objective manifestation of an intent to be bound for purposes of surviving a motion to dismiss [FN5]. Although Ertel's email referenced one outstanding "clarification," the parties' further [*4]communications indicate that such clarification was incorporated into the first draft of the new agreement sent by Zeliger to plaintiff, and no evidence was offered to suggest that plaintiff resisted that change to the terms of the 2009 Agreement."