PRESENTATION ON OCTOBER 17

Small Claims Court – A Guide to Personal & Commercial Claims  October 17 @ 6pm Please join us on Wednesday, October 17 for a dinner meeting at Domenico's at 6p.m. Attorney, Jon Michael Probstein will present Small Claims Court - A Guide to Personal & Commercial Claims. Since 1977, the Law Offices of Jon Michael Probstein has been representing and assisting people & businesses in all legal matters. Admitted to practice in New York & and the federal courts (Southern and Eastern District) as well as the Second Circuit Court of Appeals, Mr. Probstein is special counsel to law firms in Los Angeles and New York, as well as operating his own practice in Nassau County. In addition, he serves as a Part 137 Arbitrator on attorney/client fee disputes and as an Arbitrator in Small Claims, District Court, Nassau County. A qualified Part 36 Guardian, Attorney, etc. in Queens, Nassau & Suffolk Counties, he is also a registered attorney for claims for veterans' benefits before the United States Department of Veterans Affairs (VA). To view Mr. Probstein's full bio please visit http://www.jmpattorney.com. Please bring your business cards for networking. We'll also pick one lucky member for Levittown Chamber of Commerce Spotlight on Business, which will appear in the Levittown Tribune. All are welcome to attend so bring a business associate, family, or a friend. Please R.S.V.P. via this e-mail or call the chamber office at 516-520-8000.

CHILD SUPPORT - LANGUAGE USED AS REASON FOR DEVIATION IN OPTING OUT CAN BE CRITICAL

Fasano v Fasano, 2018 NY Slip Op 06228, Decided on September 26, 2018, Appellate Division, Second Department:

"The parties were married in 1993 and have two children together. On October 25, 2012, the parties entered into a stipulation of settlement regarding a prior divorce action. The stipulation provided that although the defendant's monthly child support obligation using the Child Support Standards Act (hereinafter CSSA) calculation (see Domestic Relations Law § 240[1-b]) would be $1,994.45 on the first $130,000 of combined parental income and $2,575.61 on the total combined parental income, the parties had agreed that the defendant's monthly child support obligation would be $1,500. The stipulation also provided that there would be no "add-ons" or "additional health costs" added to these child support payments, even though the CSSA generally provides that each parent's share of unreimbursed health care expenses is to be prorated in the same proportion as each parent's income is to the combined parental income (see Domestic Relations Law § 240[1-b][c][5][v]; Castello v Castello, 144 AD3d 723, 727). The stipulation contained an [*2]explanation that the deviation from the CSSA calculation was necessary "to allow the [defendant] to retain the marital residence as a place for the children to be with him when they are together" and had "been agreed by the parties to be in the best interests of the children to provide them continuity and stability in their living and educational environments."

In December 2013, after the prior action had been discontinued, the plaintiff commenced this action for a divorce and ancillary relief, requesting that the terms of the stipulation of settlement be incorporated into the judgment of divorce. In June 2014, the plaintiff moved, inter alia, for an upward modification of the defendant's child support obligation, including an add-on for unreimbursed health care expenses. The plaintiff presented evidence that the defendant had recently sold the marital residence and was moving to another residence in a different school district. The plaintiff also presented evidence that one of the children had begun incurring significant unreimbursed health care expenses after being hospitalized for mental illness.

In an order dated March 3, 2016, the Supreme Court, inter alia, denied that branch of the plaintiff's motion which was for an upward modification of the defendant's child support obligation. A judgment of divorce entered June 23, 2017, among other things, incorporated but did not merge the stipulation of settlement, and awarded the plaintiff child support in the sum of $1,500 per month. The plaintiff appeals from these portions of the order and the judgment of divorce.

…...

The Supreme Court should have granted that branch of the plaintiff's motion which was for an upward modification of the defendant's child support obligation. The stipulation indicated that the parties' reason for deviating from the CSSA calculation was to allow the defendant to retain the marital residence as a place for the children to be with him when they were together. Under these circumstances, the defendant's actions in selling and moving away from the marital residence constituted a substantial change in circumstances (see Domestic Relations Law § 236[B][9][b][2][I]; Matter of O'Connor-Gang v Munoz, 143 AD3d 825, 827)."

NEW RULES - EVIDENCE: AUTHENTICITY OF DOCUMENTS

Signed into law August 24, 2018: The civil practice law and rules is amended by adding a new rule 4540-a to read as follows:

Rule 4540-a. Presumption of authenticity based on a party's production of material authored or otherwise created by the party.

Material produced by a party in response to a demand pursuant to article thirty- one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an adverse party. Such presumption may be rebutted by a preponderance of evidence proving such material is not authentic, and shall not preclude any other objection to admissibility.

According to the text of the bill in Assembly:

"This measure would add a new CPLR 4540-a to eliminate the needless
authentication burden often encountered by litigants who seek to intro-
duce into evidence documents or other items authored or otherwise
created by an adverse party who produced those materials in the course
of pretrial disclosure.

It is fundamental, of course, that the genuineness of a document or
other physical object must be established as a prerequisite to its
admissibility when the relevance of the item depends upon its source or
origin. See Barker & Alexander, Evidence in New York State and Federal
Courts § 9:1 (2d ed. 2011). But evidence of such authenticity should not
be required if the party who purportedly authored or otherwise created
the documents at issue has already admitted their authenticity. And if a
party has responded to a pretrial litigation demand for its documents by
producing those documents, the party has indeed implicitly acknowledged
their authenticity. Thus, in such cases, the presentation of evidence of
authenticity is a waste of the court's time and an unnecessary burden on
the proponent of the evidence. The producing party's simple objection to
admissibility for "lack of authentication" in such cases should be
summarily overruled.  But often it is not, thus warranting remedial
legislation. This measure, then, would codify and expand upon caselaw
that has been overlooked by many New York courts, practitioners, and
commentators.

The idea that a party's production of his or her own papers serves to
authenticate them is a specific application of the general rule that the
authenticity of a document may be established by circumstantial
evidence. See People v. Myers, 87 A.D.3d 826, 828 (4th Dep't 2011),
leave to appeal denied, 17 N.Y.3d 954 (2011). The New York Court of
Appeals recognized the probative value of a party's production of its
own documents in Driscoll v.  Troy Housing Auth., 6 N.Y.2d 513 (1959),
where the issue was the authenticity of an unsigned, undated "roster
card" describing the status of a civil service employee. The card was
produced by the civil service commission from its files, where it had
been kept for eight years. The Court held that "its authenticity must be
presumed, or we have presumed wrongdoing rather than honesty on the part
of the public official." Id. at 519. The Court's ruling was bolstered by
the presumption of regularity that attaches to the acts and records of
public agencies, but the authentication-by-production doctrine was also
recognized with respect to private documents in Ruegg v.  Fairfield
Securities Corp., 308 N.Y. 313, 320 (1955). There, the Court observed
that the authenticity of a copy of a letter "produced from defendant's
own files" was "unquestioned."

Several recent federal cases have likewise held that a party can satisfy
the requirement of authentication based on the opposing party's
production of its own papers during discovery proceedings. For example,
the court in Bieda v. JCPenney Communications, Inc., 1995 WL 437689 n.2
(S.D.N.Y. 1995), held that " the mere fact that Defendants here
produced most of the documents in question is at least circumstantial,
if not conclusive, evidence of authenticity." See also Denison v. Swaco
Geolograph Co., 941 F.2d 1416, 1423 (10th Cir.  1991); Snyder v. Whit-
taker Corp., 839 F.2d 1085, 1089 (5th Cir.  1988); FTC v. Hughes, 710
F.Supp. 1520, 1522-23 (N.D.Tex. 1989).

The act-of-production doctrine in Fifth Amendment jurisprudence provides
further support for the principle that a party who produces papers in
response to a litigation demand for papers written by him or her implic-
itly authenticates those papers. For example, the Court of Appeals noted
in People v. Defore that "a  criminal defendant is protected  by the
Fifth Amendment from producing his documents in response to a subpoena
duces tecum, for his production of them in court would be his voucher of
their genuineness." 242 N.Y. 13, 27 (1926), cert. denied, 270 U.S. 657
(1926) (internal quotation marks and citation omitted) (italics added).
See also U.S. v. Hubbell, 530 U.S. 27, 36 (2000) ("By producing docu-
ments in compliance with a subpoena, the witness would admit that the
papers existed, were in his possession or control, and were authentic.")
(internal quotation marks omitted); Fisher v. United States, 425 U.S.
391, ' 412 n.12 (1976) (collecting cases).

In furtherance of the foregoing principles, the proposed new CPLR 4540-a
creates a rebuttable presumption that accomplishes two goals.  First,
when the item at issue is one that has already been produced by a party
in the course of pretrial disclosure, and such item purportedly was
authored or created by that party, the opposing party is thereby
relieved of the need, ab initio, to come forward with evidence of its
authenticity. Second, the rebuttable nature of the presumption protects
the ability of the producing party, if he or she has actual evidence of
forgery, fraud, or some other defect in authenticity, to introduce such
evidence and prove, by a preponderance, that the item is not authentic.
A mere naked "objection" based on lack of authenticity, however, will
not suffice.  Shifting the burden of proof to the producing party makes
sense because that party is most likely to have better access to the
relevant evidence on the issue of forgery or fraud. Furthermore, the
presumption recognized by the statute applies only to the issue of
authenticity or genuineness of the item. A party is free to assert any
and all other objections that might be pertinent in the case, such as
lack of relevance or violation of the best evidence rule.

We note that adoption of the proposed new CPLR 4540-a would not preclude
establishing authenticity by any other statutory or common law means.
See CPLR 4543 ("Nothing in this article prevents the proof of a fact or
a writing by any method authorized by any applicable statute or by the
rules of evidence at common law.")."
 

TODAY - FORECLOSURE CLINIC

TOMORROW - OUR OFFICE IS A PROUD EXHIBITOR

DIVORCE - WHEN IS AN INHERITANCE COMMINGLED

Belilos v Rivera, 2018 NY Slip Op 06223, Decided on September 26, 2018, Appellate Division, Second Department:

"A married party's inheritance constitutes separate property that is not subject to equitable distribution (see Culen v Culen, 157 AD3d 926, 929; Renck v Renck, 131 AD3d 1146, 1148). Where, however, as here, "separate property has been commingled with marital property [in a joint marital account], there is a presumption that the commingled funds constitute marital property" (Maddaloni v Maddaloni, 142 AD3d 646, 652; see Renck v Renck, 131 AD3d at 1148; Chamberlain v Chamberlain, 24 AD3d 589, 593). "To overcome a presumption that commingled property is marital property, the party asserting that the property is separate must establish by clear and convincing evidence that the property originated solely as separate property and the joint account was created only as a matter of convenience, without the intention of creating a beneficial interest" (Renck v Renck, 131 AD3d at 1149).

Here, the plaintiff established through her own testimony, the defendant's testimony, and copies of checks from her uncle's estate, that during the marriage, she inherited the aggregate sum of $150,000 from her uncle. The plaintiff deposited the inheritance monies into one of the parties' joint accounts merely because she did not have any bank accounts titled solely in her name. The defendant admitted at the trial that, at his deposition, he testified that he intended to return the plaintiff's inheritance monies to her when the instant litigation settled, and that he intended to make things "right" with respect to the plaintiff's inheritance. Thus, contrary to the defendant's contentions, he recognized the separate character of the inheritance monies, such that the presumption that the commingled funds were marital was overcome (see Matter of Brandt v Peirce, 132 AD3d 665, 667; Chamberlain v Chamberlain, 24 AD3d at 593)."

REAL ESTATE - TIME OF THE ESSENCE

Rodrigues NBA, LLC v Allied XV, LLC, 2018 NY Slip Op 06129, Decided on September 19, 2018, Appellate Division, Second Department:

"The plaintiff (hereinafter the seller) and the defendant (hereinafter the buyer) entered into a contract for the sale of certain real property located in Queens. Pursuant to the contract of sale, the buyer made a down payment in the total sum of $375,000.

Although the contract of sale specified a date for the closing, the parties agreed to adjourn the closing to a later date. Eventually, the seller sent the buyer a "time of the essence" letter. The letter, which was dated June 21, 2016, set June 30, 2016, as the closing date. The buyer rejected that closing date, alleging that certain ongoing administrative proceedings involving the subject property violated the terms of the contract of sale. The buyer did not appear at the closing.

The seller commenced this action, inter alia, to recover damages for breach of the contract of sale. The seller sought to retain the down payment as liquidated damages as specified in the contract of sale. The buyer interposed an answer with related counterclaims. The buyer sought the return of the down payment, alleging that the seller breached the contract of sale.

The seller moved, among other relief, for summary judgment on the complaint and dismissing the buyer's counterclaims. The buyer opposed the motion. In the order appealed from, the Supreme Court denied those branches of the seller's motion which were for summary judgment on the complaint and dismissing the buyer's counterclaims. The court concluded that the time of the essence letter was a nullity because it did not provide the buyer with a reasonable amount of time in which to act and, in any event, that the seller failed to demonstrate that it was ready, willing, and able to perform on the scheduled date. The seller appeals.

"When, as here, a contract for the sale of real property does not make time of the essence, the law permits a reasonable time in which to tender performance, regardless of whether the contract designates a specific date for performance" (Point Holding, LLC v Crittenden, 119 AD3d 918, 919; see Revital Realty Group, LLC v Ulano Corp., 112 AD3d 902, 904). Where there is an indefinite adjournment of the closing date specified in the contract of sale, "some affirmative act has to be taken by one party before [it] can claim the other party is in default; that is, one party has to fix a time by which the other must perform, and [it] must inform the other that if [it] does not perform by that date, [it] will be considered in default" (Royce v Rymkevitch, 29 AD2d 1029, 1030; see Cave v Kollar, 296 AD2d 370, 371; Tarlo v Robinson, 118 AD2d 561, 566).

In order to make time of the essence, "there must be a clear, distinct, and unequivocal notice to that effect giving the other party a reasonable time in which to act" (Zev v Merman, 134 AD2d 555, 557, affd 73 NY2d 781; see Point Holding, LLC v Crittenden, 119 AD3d at 919; Revital Realty Group, LLC v Ulano Corp., 112 AD3d at 904). "What constitutes a reasonable time for performance depends upon the facts and circumstances of the particular case" (Ben Zev v Merman, 73 NY2d 781, 783). "Included within a court's determination of reasonableness are the nature and object of the contract, the previous conduct of the parties, the presence or absence of good faith, the experience of the parties and the possibility of prejudice or hardship to either one, as well as the specific number of days provided for performance" (id. at 783). "The determination of reasonableness must by its very nature be determined on a case-by-case basis" (id.). "[T]he question of what constitutes a reasonable time is usually a question of fact" (Hegeman v Bedford, 5 AD3d 632, 632).

Here, the seller failed to establish, prima facie, that the time of the essence letter provided the buyer with a reasonable time within which to close (compare Iannucci v 70 Wash. Partners, LLC, 51 AD3d 869, 871, 3M Holding Corp. v Wagner, 166 AD2d 580, Nissenbaum v Ferazzoli, 143 AD2d 823, 823, and Mazzaferro v Kings Park Butcher Shop, 121 AD2d 434, 435-436, with Woodwork Display Corp. v Plagakis, 137 AD2d 809, 813-814, Shannon v Simon, 128 AD2d 859, 860, and Perillo v De Martini, 54 AD2d 691, 692). Furthermore, the seller's submissions failed to eliminate triable issues of fact as to whether the property was the subject of ongoing administrative proceedings, in violation of the contract of sale, which could be completely resolved at the scheduled closing or within a reasonable time thereafter (cf. Ilemar Corp. v Krochmal, 44 NY2d 702, 703; Cohen v Kranz, 12 NY2d 242, 246). Under these circumstances, the seller failed to sustain its burden of demonstrating that it was ready, willing, and able to convey title in accordance with the contract of sale (cf. Vision Enters., LLC v 111 E. Shore, LLC, 92 AD3d 868, 870; Pinhas v Comperchio, 50 AD3d 1117, 1117). Since the seller failed to establish its prima facie entitlement to summary judgment on the complaint and dismissing the buyer's counterclaims, we agree with the Supreme Court's determination to deny those branches of its motion, without consideration of the sufficiency of the buyer's opposing papers (see Revital Realty Group, LLC v Ulano Corp., 112 AD3d at 904-905; Iannucci v 70 Wash. Partners, LLC, 51 AD3d at 872)."

FAMILY OFFENSE PETITIONS

Contrary to a popular belief that orders of protection for family offenses are always granted in Family Court, this case is instructive. Matter of Diaz v Rodriguez, 2018 NY Slip Op 06091, Decided on September 19, 2018, Appellate Division, Second Department:

"The petitioner filed a family offense petition alleging, inter alia, that her uncle, the respondent, had committed the family offenses of harassment in the second degree, menacing in the third degree, and disorderly conduct. After a hearing, the Family Court denied the petition and dismissed the proceeding. The petitioner appeals.

The allegations in a family offense proceeding must be "supported by a fair preponderance of the evidence" (Family Ct Act § 832; see Matter of Tulshi v Tulshi, 118 AD3d 716; Matter of Jarrett v Jarrett, 102 AD3d 695; Matter of Scanziani v Hairston, 100 AD3d 1007). The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's findings regarding the credibility of witnesses are entitled to great weight on appeal unless clearly unsupported by the record (see Matter of Tulshi v Tulshi, 118 AD3d at 716; Matter of Pearlman v Pearlman, 78 AD3d 711, 712; Matter of Gray v Gray, 55 AD3d 909).

The Family Court's determination that the petitioner failed to establish, by a fair preponderance of the evidence, that the respondent committed the family offenses alleged in the petition hinged on issues of credibility and is supported by the record (see Matter of Giresi-Palazzolo v Palazzolo, 127 AD3d 752). Accordingly, we find no basis to disturb the court's determination."

FORECLOSURE - STANDING AND REVERSE MORTGAGES

OneWest Bank, N.A. v FMCDH Realty, Inc,  2018 NY Slip Op 06101, Decided on September 19, 2018, Appellate Division, Second Department:

"Generally, in the context of a motion for summary judgment in an action to foreclose a mortgage, " a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default'" (Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 684, quoting Plaza Equities, LLC v Lamberti, 118 AD3d 688, 689; see U.S. Bank N.A. v Cruz, 147 AD3d 1103, 1103). When standing is at issue, the plaintiff must also prove its standing in order to be entitled to relief (see Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d at 684; Aurora Loan Servs., LLC v Taylor, 114 AD3d 627, 628, affd 25 NY3d 355; Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242). A plaintiff has standing in a mortgage foreclosure action when it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361; Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d at 684). "A holder' is the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession'" (Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d at 684, quoting UCC 1-201[b][21]; see Deutsche Bank Natl. Trust Co. v Webster, 142 AD3d 636, 638; Wells Fargo Bank, NA v Ostiguy, 127 AD3d 1375, 1376). Where the note has been indorsed in blank, the holder must establish its standing by demonstrating that the original note was physically in its possession at the time of the commencement of the action (see Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d at 685; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754).

Here, the document referred to by the plaintiff as the note is in fact the 14-page Cash Account Agreement. In support of its motion, the plaintiff, seeking to establish its standing, submitted the affidavit of its assistant secretary, who averred, based upon his review of the plaintiff's business records, that the plaintiff received the original Cash Account Agreement, indorsed in blank, on May 5, 2011, and had it in its possession at the time of the commencement of this action. The plaintiff also submitted proof of the borrower's death, and the default of her estate in repaying the underlying debt (see JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d 643, 645; Deutsche Bank Natl. Trust Co. v Naughton, 137 AD3d 1199, 1200; HSBC Bank USA, N.A. v Spitzer, 131 AD3d 1206, 1206-1207; Emigrant Mtge. Co., Inc. v Beckerman, 105 AD3d 895, 895).

In opposition, the defendant argued that, in a prior foreclosure action commenced in the Supreme Court, Nassau County, by Financial Freedom Acquisition, LLC, the lender had attempted to establish its standing based on the physical delivery of the Cash Account Agreement, to which an undated allonge, indorsed in blank by an unidentified representative of Freedom Financial and referring specifically to the borrower and the address of the subject premises, was affixed. In support of the instant motion, by contrast, the Cash Account Agreement submitted by the plaintiff did not include the previous allonge, but instead bore a different, undated indorsement in blank signed by Judith Clements, a vice president of Freedom Financial, which referred neither to the subject premises nor to the name of the borrower.

The Supreme Court accepted the prima facie showing made by the plaintiff, disregarding the absence of the prior allonge relied upon by the plaintiff's predecessor in interest in the prior action, and accepting the new indorsement in blank by Judith Clements. Because the plaintiff is seeking to establish standing on the basis that it is a valid holder in due course of the Cash Account Agreement, this Court requested a postargument submission on the threshold question of whether the Cash Account Agreement falls within the definition of a negotiable instrument as [*2]contemplated by section 3-104 of the Uniform Commercial Code.

Upon our review of the record, including the additional postargument submissions received from both sides, we conclude that the Cash Account Agreement does not constitute a negotiable instrument within the meaning of UCC 3-104. Therefore, the plaintiff cannot establish its standing merely by demonstrating that it was in possession of the original Cash Account Agreement, indorsed in blank, at the time the instant action was commenced."

CAN YOU SUE YOUR SPOUSE FOR MAKING YOUR DIVORCE SO NASTY

Chen v Dehjung Deborah Wang, 2018 NY Slip Op 06076, Decided on September 19, 2018. Appellate Division, Second Department:

"In January 2016, the plaintiff commenced this action against the defendant, his former wife, alleging prima facie tort, private nuisance, intentional infliction of emotional distress, and, in effect, negligent infliction of emotional distress. All of the allegations supporting the causes of action stem from the parties' acrimonious divorce, which was finalized in May 2016.

We agree with the Supreme Court's determination granting the defendant's motion for summary judgment dismissing the complaint. The defendant established her prima facie entitlement to judgment as a matter of law and, in opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557). The plaintiff's evidence does not support a meritorious cause of action alleging either prima facie tort (see Ahmed Elkoulily, M.D., P.C., v New York State Catholic Healthplan, Inc., 153 AD3d 768; Trulio v Village of Ossining, 153 AD3d 577), or private nuisance (see Berland v Chi, 142 AD3d 1121; Taggart v Costabile, 131 AD3d 243). Further, New York does not recognize a cause of action alleging the intentional infliction of emotional distress between spouses or former spouses based upon allegations of events that occurred during the marriage (see Xiao Yang Chen v Fischer, 6 NY3d 94, 100 n 2; Sareen v Sareen, 51 AD3d 765; Nacson v Semmel, 292 AD2d 432). In any event, the conduct complained of does not rise to the level of extreme and outrageous behavior required for a valid claim of intentional infliction of emotional distress (see Video Voice, Inc. v Local T.V., Inc., 156 AD3d 848; Brunache v MV Transp., Inc., 151 AD3d 1011)."

BOND REQUIRED FOR PRELIMINARY INJUNCTIONS

Chao-Yu C. Huang v Shih, 2018 NY Slip Op 06075, Decided on September 19, 2018, Appellate Division, Second Department:

"The plaintiff commenced this action for specific performance of a contract for the sale of certain real property in Queens. The plaintiff moved for a preliminary injunction, inter alia, restraining the defendants from selling, transferring, or encumbering the subject property. In an order entered March 17, 2015, the Supreme Court granted the plaintiff's motion for a preliminary injunction. In the order appealed from, the court determined that an undertaking was not required. The defendants appeal.

"[U]pon the granting of a preliminary injunction, a plaintiff shall give an undertaking in an amount to be fixed by the court'" (Mobstub, Inc. v www.staytrendy.com, 153 AD3d 809, 810, quoting CPLR 6312[b]). Thus, "[w]hile fixing the amount of an undertaking when granting a motion for a preliminary injunction is a matter within the sound discretion of the court, CPLR 6312(b) clearly and unequivocally requires the party seeking an injunction to give an undertaking" (Griffin v 70 Portman Rd. Realty, Inc., 47 AD3d 883, 884; see Putter v Singer, 73 AD3d 1147, 1149; Livas v Mitzner, 303 AD2d 381, 383)."

FOR CORPORATIONS - SECRETARY OF STATE SERVED BUT ADDRESS FOR SERVICE NOT CHANGED

Dwyer Agency of Mahopac, LLC v Dring Holding Corp., 2018 NY Slip Op 06001, Decided on September 12, 2018, Appellate Division, Second Department:

:CPLR 317 provides that a person served with a summons, other than by personal delivery to him or her, who does not appear, may be allowed to defend the action within one year after he or she obtains knowledge of entry of the judgment upon a finding of the court that he or she did not personally receive notice of the summons in time to defend and has a potentially meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Moran v Grand Slam Ventures, LLC, 160 AD3d 944, 945). However, the "mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action in time to defend for the purpose of CPLR 317" (Goldfarb v Zhukov, 145 AD3d 757, 758; see Moran v Grand Slam Ventures, LLC, 160 AD3d at 945; Thas v Dayrich Trading, Inc., 78 AD3d 1163, 1164). Here, the defendant failed to establish that it did not personally receive notice of the summons in time to defend the action. The affidavit of the defendant's "representative," who appears to be its attorney, stated that the complaint was not delivered "personally" to the defendant, but rather, "to an inaccurate address through the Secretary of State," which address had not been valid "for several years." This representative's affidavit does not appear to be based on personal knowledge. Furthermore, there is no allegation contained in this affidavit that the defendant, in fact, never received the summons and complaint, nor is there any detail as to where the defendant moved to and when, nor whether the defendant made any efforts to update its address on file with the Secretary of State. Under these circumstances, the defendant did not demonstrate lack of actual notice of the action (see Moran v Grand Slam Ventures, LLC, 160 AD3d at 945; Xiao Lou Li v China Cheung Gee Realty, LLC, 139 AD3d 724, 725-726).

In contrast to a motion pursuant to CPLR 317, on a motion pursuant to CPLR 5015(a)(1), the movant is required to establish a reasonable excuse for his or her default. In general, a defendant's failure to keep a current address on file with the Secretary of State does not constitute a reasonable excuse (see Gershman v Midtown Moving & Stor., Inc., 123 AD3d 974, 975; Sussman v Jo-Sta Realty Corp., 99 AD3d 787, 788; Bontempts v Aude Constr. Corp., 98 AD3d 1071, 1072; Castle v Avanti, Ltd., 86 AD3d 531). However, there is no per se rule that a corporation served through the Secretary of State, and which failed to update its address on file there, cannot demonstrate an "excusable default." Rather, a court should consider, among other factors, the length of time for which the address had not been kept current (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 143). Here, no evidence was presented as to how long the address was not updated. Accordingly, the defendant failed to establish a reasonable excuse for its default."

YELLOWSTONE INJUNCTION DENIED

146 Broadway Assoc., LLC v Bridgeview at Broadway, LLC, 2018 NY Slip Op 05990, Decided on September 12, 2018, Appellate Division, Second Department:

""A Yellowstone injunction maintains the status quo so that a commercial tenant, when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the cure period so that upon an adverse determination on the merits the tenant may cure the default and avoid a forfeiture' of the lease" (JT Queens Carwash, Inc. v 88-16 N. Blvd., LLC, 101 AD3d 1089, 1089-1090, quoting Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave. Assoc., 93 NY2d 508, 514; see Korova Milk Bar of White Plains, Inc. v PRE Props., LLC, 70 AD3d 646, 647). " To obtain a Yellowstone injunction, the tenant must demonstrate that (1) it holds a commercial lease, (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease, (3) it requested injunctive relief prior to both the termination of the lease and the expiration of the cure period set forth in the lease and the landlord's notice to cure, and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises'" (JT Queens Carwash, Inc. v 88-16 N. Blvd., LLC, 101 AD3d at 1090, quoting Barsyl Supermarkets, Inc. v Avenue P Assoc., LLC, 86 AD3d 545, 546). A plaintiff demonstrates that it has the desire and ability to cure its alleged default by indicating in its motion papers that it is willing to repair any defective condition found by the court and by providing proof of the substantial effort it has already made in addressing the default listed on the notice to cure (see Terosal Props. v Bellino, 257 AD2d 568).

In this case, the plaintiff failed to satisfy its burden of adducing evidence that it is willing and able to cure its default. While the plaintiff indicated in its motion papers that it is willing to install soundproofing to correct the violations of the noise regulations, it failed to demonstrate such willingness and its ability to do so since it did not make any effort to correct the problem between the last test conducted by its own expert on October 13, 2014, which found a violation of the noise regulations, and the submission of its reply papers to the Supreme Court on February 3, 2016. Accordingly, the Supreme Court improvidently exercised its discretion in granting the plaintiff's motion for a Yellowstone injunction."

IMPROPER AFFIDAVIT OF SERVICE NOT FRIVOLOUS

U.S. Bank, N.A. v Rosario, 2018 NY Slip Op 06050, Decided on September 12, 2018, Appellate Division, Second Department:

"The plaintiff commenced this action to foreclose a mortgage given by the defendants Roberto Rosario and Jose Lopez to secure a note. The plaintiff moved, in effect, for leave to enter a default judgment against Rosario and Lopez, upon their failure to timely appear or answer the [*2]complaint, and for an order of reference. The plaintiff subsequently withdrew the motion insofar as it related to Rosario. Rosario and Lopez cross-moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, contending, inter alia, that the Supreme Court lacked personal jurisdiction over Rosario. They also moved to impose sanctions against the plaintiff pursuant to 22 NYCRR 130-1.1. In an order dated October 2, 2015, the court denied the plaintiff's motion and granted the cross motion. Subsequently, in an order dated December 15, 2015, the court, after a hearing, awarded Rosario and Lopez an attorney's fee pursuant to 22 NYCRR 130-1.1 in the sum of $5,600. The plaintiff appeals.

In support of their cross motion, Rosario and Lopez argued that the process server's affidavit of service as to Rosario was "wholly devoid" of any reference to the mailing prong of CPLR 308(2) and that the requisite mailing "was not done." They further contended that inasmuch as personal jurisdiction was not obtained over Rosario (see CPLR 3211[a][8]), the complaint must also be dismissed as to Lopez (see CPLR 1001, 3211[a][10]; RPAPL 1311). However, in opposition to the cross motion, the plaintiff submitted an affidavit of service wherein the process server attested that three days after serving a person of suitable age and discretion at Rosario's place of business, he served the summons and complaint by mail (see CPLR 308[2]). Accordingly, the Supreme Court should have denied that branch of cross motion of Rosario and Lopez which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.

"An applicant for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear" (Wells Fargo Bank, N.A. v Mayen, 155 AD3d 811, 813 [internal quotation marks omitted]; see CPLR 3215[f]). Here, the plaintiff demonstrated its entitlement to a default judgment against Lopez and to an order of reference by submitting, inter alia, the mortgage, the unpaid note, the complaint, the affidavit of a representative of its servicing agent attesting to Lopez's default, and proof that Lopez failed to appear or answer within the time allowed (see CPLR 308[1]; 3215[f]; RPAPL 1321; Wells Fargo Bank, N.A. v Mayen, 155 AD3d at 813; Wells Fargo Bank, NA v Ambrosov, 120 AD3d 1225, 1226). In opposition, Lopez failed to submit evidence sufficient to defeat the plaintiff's facially adequate motion (see HSBC Bank USA, N.A. v Traore, 139 AD3d 1009, 1011). Accordingly, the Supreme Court should have granted the plaintiff's motion, in effect, for leave to enter a default judgment against Lopez and for an order of reference (see CPLR 3215[f]; RPAPL 1321).

Under the circumstances, the plaintiff's conduct was not frivolous within the meaning of 22 NYCRR 130-1.1 (see Joan 2000, Ltd. v Deco Constr. Corp., 66 AD3d 841). Accordingly, the Supreme Court should have denied that branch of the cross motion of Rosario and Lopez which was to impose sanctions against the plaintiff."

FREE MORTGAGE FORECLOSURE CLINIC TODAY

I will be volunteering today at the Nassau County Bar Association's free clinic for Mortgage Foreclosure, Bankruptcy and Superstorm Sandy issues, from 3pm to 6pm.

For more information, contact Nassau County Bar Association, 15^th and West Streets, Mineola, NY 11501 at (516) 747-4070

PRO BONO OPPORTUNITIES IN NASSAU COUNTY

Volunteer Lawyers Project

What is the Volunteer Lawyers Project?

Attorneys are encouraged to volunteer to provide free legal assistance to the poor in Nassau County through the Volunteer Lawyers Project. NCBA partners with the Nassau/Suffolk Law Services Committee to support VLP, which helps maximize the quantity and quality of pro bono assistance provided for the county’s low-income community.

What programs are part of the VLP?
Volunteer attorneys handle a wide array of cases including matrimonial matters, individual bankruptcy, personal injury and negligence defense, estate matters, release of accounts blocked by judgment creditors, and various other civil matters.

• The Landlord/Tenant Project’s Attorney of the Day Program assists thousands of men, women and children in court to prevent homelessness.

• The Bankruptcy Clinics assist families either with advice or the filing for a Chapter 7 bankruptcy, when appropriate.

• The Matrimonial Project assists hundreds of individuals in obtaining divorces, child support and custody.

L'SHANAH TOVA

ANOTHER TIME BARRED FORECLOSURE CLAIM

Karpa Realty Group, LLC v Deutsche Bank Natl. Trust Co., 2018 NY Slip Op 05921, Decided on August 29, 2018, Appellate Division, Second Department:

"Pursuant to RPAPL 1501(4), a person having an estate or an interest in real property subject to a mortgage can seek to cancel and discharge that encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage has expired, provided that the mortgagee or its successor is not in possession of the subject real property at the time the action to cancel and discharge the mortgage is commenced (see Lubonty v U.S. Bank N.A., 159 AD3d 962, 963). An action to foreclose a mortgage has a six-year statute of [*2]limitations (see CPLR 213[4]; Lubonty v U.S. Bank N.A., 159 AD3d at 963). "[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt" (Lubonty v U.S. Bank N.A., 159 AD3d at 963 [internal quotation marks omitted]).

Here, the plaintiff made a prima facie showing of its entitlement to judgment as a matter of law by establishing that the foreclosure action commenced by Deutsche Bank in 2008 was dismissed pursuant to CPLR 3216, and that the commencement of a new foreclosure action would be time-barred by the applicable six-year statute of limitations (see U.S. Bank N.A. v Martin, 144 AD3d 891, 891; JBR Constr. Corp. v Staples, 71 AD3d 952, 953). Thus, in opposition, Deutsche Bank was required to raise a triable issue of fact as to whether the statute of limitations was tolled or revived (see JBR Constr. Corp. v Staples, 71 AD3d at 953).

"General Obligations Law § 17-101 effectively revives a time-barred claim when the debtor has signed a writing which validly acknowledges the debt" (Lynford v Williams, 34 AD3d 761, 762; see Mosab Constr. Corp. v Prospect Park Yeshiva, Inc., 124 AD3d 732, 733). To constitute a valid acknowledgment, a "writing must be signed and recognize an existing debt and must contain nothing inconsistent with an intention on the part of the debtor to pay it" (Sichol v Crocker, 177 AD2d 842, 843 [internal quotation marks omitted]; see U.S. Bank N.A. v Martin, 144 AD3d at 892-893; Mosab Constr. Corp. v Prospect Park Yeshiva, Inc., 124 AD3d at 733). Contrary to Deutsche Bank's contention, a letter written by Aird that accompanied his second short sale package submitted to Deutsche Bank's loan servicer did not constitute an unqualified acknowledgment of the debt or manifest a promise to repay the debt sufficient to reset the running of the statute of limitations (see U.S. Bank, N.A. v Kess, 159 AD3d 767, 768-769; U.S. Bank N.A. v Martin, 144 AD3d at 892-893; Hakim v Peckel Family Ltd. Partnership, 280 AD2d 645; Sichol v Crocker, 177 AD2d at 843)."

TIME BARRED FORECLOSURE CLAIM

Yadegar v Deutsche Bank Natl. Trust Co., 2018 NY Slip Op 05957, Decided on August 29, 2018, Appellate Division, Second Department:

"Pursuant to RPAPL 1501(4), a person having an estate or an interest in real property subject to a mortgage can seek to cancel and discharge that encumbrance where the period allowed by the applicable statute of limitations for the commencement of an action to foreclose the mortgage has expired, provided that the mortgagee or its successor is not in possession of the subject real property at the time the action to cancel and discharge the mortgage is commenced (see RPAPL 1501[4]; Lubonty v U.S. Bank N.A., 159 AD3d 962, 963). An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4]; Lubonty v U.S. Bank N.A., 159 AD3d at 963). "[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the Statute of Limitations begins to run on the entire debt" (Lubonty v U.S. Bank N.A., 159 AD3d at 963 [internal quotation marks omitted]).

Here, the plaintiff met her prima facie burden for summary judgment on her complaint by establishing that the commencement of a new foreclosure action would be time-barred by the applicable six-year statute of limitations (see U.S. Bank N.A. v Martin, 144 AD3d 891, 891; JBR Constr. Corp. v Staples, 71 AD3d 952, 953). Thus, the burden shifted to the defendant to raise a triable issue of fact as to whether the statute of limitations was tolled or revived (see JBR Constr. Corp. v Staples, 71 AD3d at 953).

"General Obligations Law § 17-101 effectively revives a time-barred claim when the debtor has signed a writing which validly acknowledges the debt" (Lynford v Williams, 34 AD3d 761, 762; see Mosab Constr. Corp. v Prospect Park Yeshiva, Inc., 124 AD3d 732, 733). To constitute a valid acknowledgment, a "writing must be signed and recognize an existing debt and must contain nothing inconsistent with an intention on the part of the debtor to pay it" (Sichol v Crocker, 177 AD2d 842, 843 [internal quotation marks omitted]; see U.S. Bank N.A. v Martin, 144 AD3d at 892-893; Mosab Constr. Corp. v Prospect Park Yeshiva, Inc., 124 AD3d at 733).

Contrary to the defendant's contention, the plaintiff's letter accompanying her request for the defendant to authorize a short sale of the property, and the other documents relied on by the defendant, did not constitute an unqualified acknowledgment of the debt sufficient to reset the statute of limitations (see U.S. Bank, N.A. v Kess, 159 AD3d 767, 768; U.S. Bank N.A. v Martin, 144 AD3d at 892-893; Hakim v Peckel Family Ltd. Partnership., 280 AD2d 645; Sichol v Crocker, 177 AD2d at 843). The plaintiff's letter, while arguably acknowledging the existence of the mortgage, disclaimed any intent to pay it with the plaintiff's own funds (see Lew Morris Demolition Co. v Board of Educ. of City of N.Y., 40 NY2d 516, 520-521; U.S. Bank, N.A. v Kess, 159 AD3d at 768-769; Sichol v Crocker, 177 AD2d at 843). Thus, the defendant failed to raise a triable issue of fact in opposition to the plaintiff's motion for summary judgment and, with respect to its cross motion, the defendant failed to establish its prima facie entitlement to summary judgment dismissing the complaint insofar as asserted against it."

ON SEPTEMBER 29