ONLY LIMITED DISCLOSURE OF DIGITAL ASSETS TO FIDUCIARY ABSENT A SPECIFIC DIRECTIVE

The better practice is, if it is your desire, to address disclosure of your full digital assets via a will, trust or other record. 

Estate of Murray, NYLJ October 21, 2019, Date filed: 2019-09-30. Court: Surrogate's Court, Suffolk, Judge: Surrogate Theresa Whelan, Case Number: 2018-1561/A:

"By this proceeding, petitioner, one of the duly appointed fiduciaries of the estate of this decedent, seeks an order granting her access to the account decedent maintained with Apple, Inc. so she can recover the personal data from the account. Jurisdiction has been obtained over those shown as necessary parties to this proceeding and no one has appeared in opposition to the relief requested by petitioner.

Decedent died on March 25, 2017 survived by his parents, Beatrice Murray and Michael Murray. Pursuant to decree dated May 7, 2018, decedent’s parents were appointed co-administrators of his estate and letters of administration issued accordingly.

Although both of decedent’s parents were issued letters of administration, the instant proceeding was commenced solely by Beatrice Murray. Petitioner asserts that when the decedent died, he was the user of an Apple iPhone 7 cell phone. The phone carrier assigned telephone number 631-6**-8*** to the device and an Apple ID was created using the email address P******12@gmail.com. The cell phone and presumably the account contains data associated with this Apple ID. Petitioner indicates that she was, and is, the owner of this cell phone, that decedent merely had permission to use the phone and that he was the only user of the Apple account associated with the aforementioned cell phone number and email address at the time of his death.

Petitioner is of the good faith belief that the data within the phone contains information in the form of telephone records, voice messages and text messages received and sent by the decedent which would assist in determining the source of drugs obtained by him. She indicates that information contained “in the data within the phone” as well as the contents of these electronic communications of the user is reasonably necessary for the administration of decedent’s estate. Thus, petitioner requests the disclosure of this data and electronic communications via access to the decedent’s Apple ID.
Upon information and belief, petitioner asserts that there are no other authorized users of this Apple iPhone 7 cell phone, using the telephone number 631-6**-8***. Further, petitioner asserts that under the facts of this case, no law, legal duty, or obligation, including, but not limited to any provision of state or federal law prohibits Apple from disclosing to petitioner the contents stored in decedent’s account.

Further, petitioner indicates that she submitted a written request to Apple, the custodian, to transfer ownership of the Apple ID and provide access to the data. Such request included a copy of the death certificate of her son, the user, and a copy of the letters of administration issued to petitioner. The custodian contacted petitioner and explained the procedure for transferring the Apple ID. A copy of the emails and text messages have been submitted in connection with this proceeding.

According to petitioner, a representative of Apple has indicated that Apple will continue with petitioner’s request to transfer ownership of the Apple ID to petitioner, which will allow access to the data from decedent’s cell phone, if a court order specifies that the decedent was the user of all accounts associated with the Apple ID, that the “requestor” (petitioner) is the legal representative of the decedent, that the requestor is the “agent” of the decedent and her authorization constitutes “lawful consent”, and that Apple is ordered by the court to assist in the recovery of decedent’s personal data from the Apple account (s).

Petitioner asserts that, as the duly appointed fiduciary, she is the legal personal representative of the decedent and that a court order would constitute “lawful consent” as those terms are set forth in the Electronic Communication Privacy Act (18 USC §§2510, et seq.) and the Stored Communications Act (18 USC §§2701, et seq.). Petitioner avers that under the circumstances presented, there is no state or federal law that prohibits disclosure of the contents stored in decedent’s account.
EPTL Article 13-A, which addresses access to digital assets, became effective in September of 2016. This article, as it relates to this proceeding, is applicable to an administrator acting for a decedent who died before, on or after its effective date (EPTL 13-A-2.1(a)(2)) and a custodian if the user resided in this state at the time of his death (EPTL 13-A-2.1(b)).

Pursuant to the relevant provisions of Article 13-A, where a user utilizes an “online tool”, which is a service provided by a custodian that permits a user to give directions for disclosure or nondisclosure of digital assets to a third party, such directive overrides a contrary directive contained in a will, trust, power of attorney or other record. Here, it is unclear whether Apple provides such tool or, if it is provided, whether decedent utilized it. It does not appear that decedent addressed disclosure of his digital assets via a will, trust or other record (EPTL 13-A-2.2 (b)).

Although no one has appeared in opposition to the requested relief, in this evolving area, the former surrogate of this county, John M. Czygier, Jr., expressed his concern regarding unintended consequences of permitting unfettered access to a deceased user’s digital assets (see Matter of White, NYLJ Oct. 3, 2017, at 25, col. 1). The undersigned acknowledges this concern and appreciates the delicate balance between a decedent’s right to privacy and a fiduciary’s duty to marshal estate assets.
Here, petitioner’s vague assertion that access to the content of the electronic communications held by Apple, Inc. as custodian is reasonably necessary to the administration of the estate is not supported by the record. Further, the Apple iPhone 7 that she claims ownership of is merely a portal for accessing the content and digital assets associated with a specific Apple ID. Absent from the record is an allegation supported by proof of a connection between the information petitioner seeks and the administration of this decedent’s estate. Rather, it appears that petitioner seeks the content of decedent’s electronic communications so she can conduct an investigation into facts and circumstances leading up to tragic loss of her son.

While the court is not unsympathetic to the concerns of petitioner and her desire to uncover the identities of those individuals she believes were, in part, responsible for the death of her son, she has not established a sufficient nexus to warrant granting the requested relief.

Further, the court notes that a distinction must be made between content based disclosure and non-content based disclosure with respect to a deceased user. Subject to other requirements, disclosure of content of electronic communications involves an affirmative act by the decedent whether online or via an instrument or document (EPTL 13-A-3.1), while disclosure of non-content based digital assets merely requires that the decedent did not prohibit the disclosure (EPTL 13-A-3.2).

Here, as it does not appear from the record that decedent prohibited disclosure of his digital assets, pursuant to EPTL 13-A-3.2, the court shall direct Apple, Inc. to disclose to petitioner solely the non-content information to wit: a catalogue of electronic communications sent or received by decedent and digital assets associated with decedent’s Apple ID, other than the content of electronic communications. In the event that greater access to this account appears warranted, the fiduciary may commence a new proceeding seeking same.

Based upon the foregoing the court finds that decedent was the user of the specific account associated with the subject Apple ID, that the petitioner is a duly appointed legal representative of this decedent, that disclosure of a catalogue of electronic communications sent or received by decedent and digital assets associated with subject Apple ID, other than the content of electronic communications, was not prohibited by decedent and does not require lawful consent under the EPTL Article 13 or the Stored Communications Act (18 USC §§2701, et seq.)"

NEW RULES - RETURN OF SECURITY DEPOSIT

The devil is in the detail.

Asquith v. REDEVELOP ALBANY, LLC, 2019 NY Slip Op 29295 - NY: City Court September 20 2019:

"With respect to the subject security deposit, the Court finds that defendant did not comply with the legal requirement that a landlord provide to a tenant who vacates an apartment a written statement itemizing the reasons for retaining all or a portion of the tenant's security deposit. General Obligations Law Section 7-108(1-e), which became effective on July 14, 2019, provides that:

"Within fourteen days after the tenant has vacated the premises, the landlord shall provide the tenant with an itemized statement indicating the basis for the amount of the deposit retained, if any, and shall return any remaining portion of the deposit to the tenant. If a landlord fails to provide the tenant with the statement and deposit within fourteen days, the landlord shall forfeit any right to retain any portion of the deposit."

It is undisputed that no such required itemized statement was given to plaintiff. The Court brought to the attention of Ms. Kelly during trial that the recently enacted law with respect to security deposits requires that written notification be given to a tenant within 14 days after the tenant has vacated the premises. When Empire did the move out inspection of the subject premises on August 5, 2019 (after the applicable statutory provision cited above took effect), an itemized statement was required to be provided to plaintiff by August 19, 2019, which was not done. Accordingly, pursuant to the General Obligations Law, defendant has forfeited the right to retain any portion of plaintiff's security deposit. Plaintiff's claim for the return of her $3525 security deposit is therefore granted."

WHAT IS LAP

LAP is the Lawyers Assistance Program of a Bar association.

Nassau County Bar Association Lawyer Assistance Program (LAP) offers assistance to lawyers, judges, law students and their family members who are struggling with alcohol or drug use, gambling and other addictions, depression, anxiety and stress, and other mental health issues. LAP also provides assistance with law office closings. LAP services are free and strictly confidential via Section 499 of the Judiciary Law and the Rule of Professional Conduct. LAP is completely independent of the grievance committees of the Appellate Division and Nassau County Bar Association.

For over 10 years, I have been an active member of Nassau County Bar Association Lawyer Assistance Program committee.

For more information, go to NCBA LAP

A JURISDICTIONAL DEFECT

Here the court discusses whether CPLR 2001 will cure a defect under CPLR 308.

Estate of Norman Perlman v Kelley, 2019 NY Slip Op 06475, Decided on September 11, 2019, Appellate Division, Second Department:

"The plaintiff commenced this action on December 31, 2015, by filing a summons and complaint. On January 21, 2016, the plaintiff filed an affidavit of service with the Kings County Clerk's Office, which stated that on January 14, 2016, service was effectuated upon the defendant pursuant to CPLR 308(2) by delivery of the summons and complaint to a paralegal who worked at the defendant's law office. The affidavit of service did not indicate that the summons and complaint had been mailed to the defendant. On or about March 17, 2016, the plaintiff moved for leave to enter a default judgment against the defendant. The affirmation of service attached to the motion papers stated, inter alia, that the plaintiff had mailed a "second copy" of the summons and complaint to the defendant on February 13, 2016. However, there is no evidence in the record that the plaintiff ever filed an affidavit of service with the Kings County Clerk's Office indicating that the summons [*2]and complaint had been mailed to the defendant. The defendant opposed the plaintiff's motion, contending, inter alia, that the motion was premature, and cross-moved pursuant to CPLR 3211(a) to dismiss the complaint. In an order dated February 22, 2017, the Supreme Court, inter alia, granted the defendant's cross motion to dismiss the complaint pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction. The plaintiff thereafter moved, inter alia, for leave to reargue his opposition to the defendant's cross motion. In an order dated June 15, 2017, the court, inter alia, granted reargument and, upon reargument, adhered to its original determination granting the defendant's cross motion. The plaintiff appeals.

CPLR 308(2) provides, in pertinent part, that personal service may be made upon a defendant by delivery of the summons upon "a person of suitable age and discretion at the actual place of business . . . of the person to be served and by . . . mailing the summons by first class mail to the person to be served at his or her actual place of business . . . , such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing whichever is effected later; service shall be complete ten days after such filing."

"Jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been strictly complied with'" (Josephs v AACT Fast Collections Services., Inc., 155 AD3d 1010, 1012, quoting Gray-Joseph v Shuhai Liu, 90 AD3d 988, 989; accord Munoz v Reyes, 40 AD3d 1059, 1059; Ludmer v Hasan, 33 AD3d 594, 594). "CPLR 308(2) requires strict compliance and the plaintiff has the burden of proving, by a preponderance of the credible evidence, that service was properly made" (Samuel v Brooklyn Hosp. Ctr., 88 AD3d 979, 980).

Here, the mailing of the summons to the defendant occurred more than 20 days after the delivery upon a person of suitable age and discretion. Additionally, the plaintiff never filed an affidavit of service with the Kings County Clerk's Office indicating that the mailing had been effectuated. Accordingly, the service of process upon the defendant did not comply with the strict requirements of CPLR 308(2), and the time for the defendant to serve an answer never began to run (see CPLR 3012).

Contrary to the plaintiff's contention, the delay in mailing was not a mere "technical infirmity" that may be overlooked by the court pursuant to CPLR 2001 (Ruffin v Lion Corp., 15 NY3d 578, 582 [internal quotation marks omitted]). "In deciding whether a defect in service is merely technical, courts must be guided by the principle of notice to the defendant—notice that must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections" (id. at 582 [internal quotation marks omitted]). As the Court of Appeals noted in Ruffin, a defendant's "actual receipt of the summons and complaint is not dispositive of the efficacy of service" (id. at 583). "For example, simply mailing the documents to defendant or e-mailing them to defendant's Web address would present more than a technical infirmity, even if defendant actually receives the documents, inasmuch as these methods in general introduce greater possibility of failed delivery" (id.).

A mailing sent within the wrong time frame, like a mailing sent by the wrong method (see id.; Brown v State of New York, 114 AD3d 632), increases the likelihood that a party will not receive proper notice of a legal proceeding. The first 20-day window set forth in CPLR 308(2) serves an important function. If the delivery and mailing required by that statute are not made within a short time of one another, there is a greater likelihood that one or both sets of pleadings will be mislaid, or, at the very least, that confusion will arise as to how much time the defendant has to respond—both of which appear to have occurred here. Further, the requirement that an affidavit of service be filed within 20 days of the delivery or mailing, whichever is effected later, also serves an important function. Timely filing of the affidavit of service is designed to give notice as to the plaintiff's claim of service and permit the defendant to calculate the time to answer. Where the affidavit of service claims that delivery but not mailing occurred within the 20-day period, yet the plaintiff intends to later claim that a timely mailing did occur, additional confusion is created, a defendant may be prejudiced by reliance upon the publicly filed affidavit which only partially [*3]disclosed the plaintiff's claim of service, and such prejudice may preclude the prospect that the failure to file the affidavit could be cured (cf. Khan v Hernandez, 122 AD3d 802, 803).

We therefore agree with the Supreme Court's determination that the plaintiff's failure to comply with the delivery and mailing requirements of CPLR 308(2) in the time prescribed by the statute was a jurisdictional defect, and that the plaintiff's late mailing of the summons and complaint after the statutory time period did not cure the defect in service. The plaintiff's remaining contentions are without merit. Accordingly, we agree with the court's determination, upon reargument, to adhere to its prior determination granting the defendant's cross motion to dismiss the complaint for lack of personal jurisdiction."

PERSONAL LIABILITY OF MANAGEMENT UNDER NYC HUMAN RIGHTS LAW

Doe v Bloomberg, L.P., 2019 NY Slip Op 06728, Decided on September 24, 2019, Appellate Division, First Department Kern, J.:

"The City HRL imposes strict liability on an "employer" for the discriminatory acts of the employer's managers and supervisors (see Administrative Code of the City of New York § 8-107[13][b][1]; Zakrzewska v New School, 14 NY3d 469, 480-481 [2010])[FN2]. Specifically, Administrative Code § 8-107(13)(b) provides:

"An employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of subdivision 1 or 2 of this section only where:

(1) The employee or agent exercised managerial or supervisory
responsibility . . . ."

However, the statute does not provide a definition of "employer" and the legislature has not provided guidance as to how "employer" should be defined under the statute. The legislature has also not provided guidance as to when an individual, in addition to the corporate employer, may be held strictly liable under the statute.

The Court of Appeals has held that section 8-107(13)(b)(1) of the Administrative Code holds corporate employers strictly liable for the discriminatory acts of their managers and supervisors (see Zakrzewska, 14 NY3d at 469). Additionally, pursuant to the plain language of the statute, where the only employer is an individual and there is no corporate employer, the individual may be held strictly liable for the discriminatory acts of his or her managers and supervisors as such individual is the only possible employer under the statute. However, the Court of Appeals has never addressed the issue of when an individual, in addition to the corporate employer, may be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code. Based on a review of the cases that have addressed the issue, we find that in order to hold an individual owner or officer of a corporate employer, in addition to the separately charged corporate employer, strictly liable under section 8-107(13)(b)(1) of the Administrative Code, a plaintiff must allege that the individual has an ownership interest or has the power to do more than carry out personnel decisions made by others and must allege that the individual encouraged, condoned or approved the specific conduct which gave rise to the claim.[FN3]
This Court has twice explicitly addressed the issue of when an individual may be held strictly liable, in addition to the corporate employer, under section 8-107(13)(b)(1) of the Administrative Code, and held that an individual will be held strictly liable under the statute if he or she encouraged, condoned or approved the specific discriminatory behavior alleged in the complaint. In Boyce v Gumley-Haft, Inc. (82 AD3d 491, 492 [1st Dept 2011]), this Court denied summary judgment to the individual owner of the corporate employer under section 8-107(13)(b)(1) of the Administrative Code because there were issues of fact as to whether he "encouraged, condoned or approved" the specific discriminatory conduct alleged by the plaintiff (82 AD3d at 492). This Court reiterated this standard in McRedmond v Sutton Place Rest. & Bar, Inc. (95 AD3d 671, 673 [1st Dept 2012]), a case in which we denied summary judgment to the individual officers of the corporate employer under section 8-107(13)(b)(1) of the Administrative Code because there were issues of fact as to whether they condoned or participated in the discriminatory conduct complained of by the plaintiff.

All of the federal cases cited by the parties which have addressed the specific issue before us now have also held that an individual will only be held strictly liable under section 8-107(13)(b)(1) of the Administrative Code if he or she participated, in some way, in the specific discriminatory conduct alleged in the complaint (see Marchuk v Faruqi & Faruqi, LLP, 100 F Supp 3d 302, 309 [SD NY 2015] [a plaintiff must establish "at least some minimal culpability on the part of (the company's individual shareholders)" in order to hold them liable as employers under the City HRL]; Zach v East Coast Restoration & Constr. Consulting Corp., 2015 WL 5916687, *1, 2015 US Dist LEXIS 138334, *1 [SD NY 2015] [denying plaintiff's motion to add the president of the corporate employer as an individual defendant under the City HRL because the proposed amended complaint failed to "allege any knowledge, participation, or involvement whatsoever" in the discriminatory conduct detailed in the complaint]; Burhans v Lopez, 24 F Supp 3d 375, 385 [SD NY 2014] [allowing plaintiffs' claims to proceed against the individual defendant as an employer under the City HRL on the ground that plaintiffs "sufficiently allege that (the individual defendant) was personally involved in the conduct in question"]).[FN4]

We note that the legislative history of section 8-107(13)(b)(1) does not address whether an individual owner or officer of a corporate employer may be held strictly liable, in addition to the corporate employer, absent a finding of culpability on the part of the individual. However, holding an individual owner or officer of a corporate employer liable under the City HRL as an [*3]employer, without even an allegation that the individual participated, in some way, in the specific conduct that gave rise to the claim, would have the effect of imposing strict liability on every individual owner or high-ranking executive of any business in New York City. The City HRL is not so broad that it imposes strict liability on an individual for simply holding an ownership stake or a leadership position in a liable corporate employer.

Moreover, interpreting section 8-107(13)(b)(1) of the Administrative Code to impose liability on an owner or officer of a corporate employer in his or her individual capacity without any inquiry into his or her personal participation in the conduct giving rise to the claim would be inconsistent with the principles underlying this State's corporate law (see Marchuk, 100 F Supp 3d at 309). "The law permits the incorporation of a business for the very purpose of enabling its proprietors to escape personal liability" (Walkovszky v Carlton, 18 NY2d 414, 417 [1966]). Indeed, a corporate owner or officer may be held individually liable for a tort committed by the corporation but only if the corporate officer or owner "participates in the commission of [the] tort" (American Express Travel Related Servs. Co. v North Atl. Resources, Inc., 261 AD2d 310, 311 [1st Dept 1999]). Moreover, a plaintiff who attempts to pierce the corporate veil and hold a corporate officer or owner liable for an obligation of, or a wrong committed by, the corporation must show complete domination of the corporation and that "the [individual], through [his] domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against [the plaintiff]" (Matter of Morris v New York State Dept. of Taxation and Fin., 82 NY2d 135, 142 [1993]). Thus, some participation in the specific conduct committed against the plaintiff is required in order to hold an individual owner or officer of a corporate employer personally liable in his or her capacity as an employer.

Based on the foregoing, we find that plaintiff's City HRL claims must be dismissed as against Mr. Bloomberg because plaintiff has failed to sufficiently allege that Mr. Bloomberg is her employer for purposes of the City HRL. She has failed to allege that Mr. Bloomberg encouraged, condoned or approved the specific discriminatory conduct allegedly committed by Mr. Ferris."

WHEN A CHILD ADMITS MOM OR DAD TO A NURSING FACILITY

Here the son was sued by the facility in the principal amount of $44,210.11 for room, board, and skilled nursing care services which it provided to the defendant's mother from January 29, 2010 through August 31, 2010. An admission agreement was signed by the defendant as "responsible party" and plaintiff claimed a breach by defendant's "failing to pay the moneys due toward the cost of his mother's care at the facility from his mother's assets and resources; to the extent those assets and resources may have been insufficient to cover the cost of her care, the plaintiff claims that the defendant breached the terms of the admission agreement by failing to timely file for Medicaid, leaving a gap in coverage for which the plaintiff has not been compensated."

JOPAL AT ST. JAMES, LLC v. Manning, 2019 NY Slip Op 32720 - NY: Supreme Court, Suffolk County, September 5, 2019:

"While a nursing facility may not require a third-party guarantee of payment to the facility as a condition to admission or a continued stay in the facility, it may, as here, require an individual who has legal access to a resident's income or resources to provide payment from such income or resources, without incurring personal liability (see 10 NYCRR § 415.3[b][1], [6]).

The plaintiff established its prima facie entitlement to summary judgment on its cause of action for breach of contract by demonstrating that the defendant accepted personal responsibility to utilize his access to his mother's funds to pay for her care, and then breached his contractual obligation by failing to apply available assets toward her care (see Troy Nursing & Rehabilitation Ctr. v Naylor, 94 AD3d 1353, 944 NYS2d 323, lv dismissed 19 NY3d 1045, 954 NYS2d 6 [2012]). The defendant, in opposition, failed to raise a triable issue of fact. The record, however, does not reveal the amount of his mother's funds to which he had access prior to her death. Irrespective of whether the defendant may also have failed to comply with his Medicaid obligations, he is liable only to the extent that her assets would cover outstanding payments owed to the plaintiff (see Prospect Park Nursing Home v Goutier, 12 Misc 3d 1192[A], 824 NYS2d 770 [2006]). Accordingly, the plaintiff is entitled to summary judgment, albeit only on the issue of liability (see Troy Nursing & Rehabilitation Ctr. v Naylor, supra; cf. Presbyterian Home for Cent. NY v Thompson, 136 AD3d 1421, 25 NYS3d 513 [2016]), and the defendant's cross motion—which is addressed solely to the cause of action for breach of contract, notwithstanding the breadth of relief requested in the notice of cross motion—is correspondingly denied."

GETTING EXTENSION OF STAY TO VACATE FOR EXTREME HARSHIP UNDER NEW TENANT LAW

N.Y.C. Hous. Auth. v. Jones Jr.,  NYLJ October 09, 2019, Date filed: 2019-09-25, Court: Civil Court, New York, Judge: Judge Timmie Erin Elsner, Case Number: 15234/18:

"Upon the foregoing papers, the Decision/Order of this Court is as follows: Respondents’ order to show cause is granted to the following extent: It is undisputed that respondents have been paying ongoing use and occupancy. The issue before the court is whether, pursuant to the amendments to RPAPL Section 753 enacted as part of the Housing Stability and Tenant Protection Act of 2019, the court can extend a stay which afforded respondents five months to vacate.
As set forth in RPAPL Section 753, the court can stay issuance [execution] of a judgment and warrant for a period of up to one year if it would “occasion extreme hardship to the applicant or the applicant’s family if the stay were not granted. In determining whether refusal to grant a stay would occasion extreme hardship, the court shall consider serious ill health, significant exacerbation of an ongoing condition, a child’s enrollment in a local school, and any other extenuating life circumstances affecting the ability of the applicant or the applicant’s family to relocate and maintain quality of life. The court shall consider any substantial hardship the stay may impose on the landlord in determining whether to grant the stay in setting the length or other terms of the stay.”

In this instance, respondent Cherity Wilson suffers from ovarian cancer. She has also been diagnosed with breast cancer. She is undergoing radiation three days per week and chemotherapy two days per week. These treatments are expected to continue for approximately three months. Ms. Wilson also suffers from a blood-clotting disorder which complicates her treatment. The respondents have three children, two of whom are nine and one who is eight. They are attending school in the area nearby the premises. Ms. Wilson has advised the court of the after-effects of radiation and the court believes these treatments increase the level of responsibility Mr. Jones has in caring not only for Ms. Wilson but also their children as Ms. Wilson is incapacitated following treatment.

It is also obvious to the court that treatment along with the uncertainty attendant with respondent’s complicated medical history places an incredible level of stress on this family’s emotional and potentially financial resources. Petitioner, on the other hand, is an institutional landlord who would suffer no hardship if respondents were allowed to remain in the premises for a substantial time period. Respondents are paying ongoing use and occupancy and their presence does not affect their neighbors in a negative way.

Respondents’ request for an extended stay is of the exact nature the amendments to the statute were enacted to address. It is uncontroverted that the court’s failure to extend a stay would cause an extreme hardship to respondents. Based upon the foregoing, execution of the judgment and warrant are stayed though January 31, 2020 to allow respondent Cherity Wilson to complete medical treatment. In the event respondents do not vacate, a notice of eviction may be served subsequent to the default. Respondents are to pay ongoing use and occupancy each month. APS [New York City Adult Protective Services] is to be notified prior to any eviction.

Petitioner is ordered to provide respondents who were deemed licensees of the former tenant of record with information on application for NYCHA housing and to place them on a priority list for such housing if they qualify for same. Said information must be supplied by October 15, 2019."

DESPITE'S MOM WRONGFUL ACCUSATIONS, CUSTODY REMAINS WITH HER - PART 2

Now the court deals with healing the strained relationship between the father, who was false accused of abuse, and the children. To get a better idea of the severity of the false accusations by the mother and some of her behavior which occurred during the trial, read the factual portion of this case.

L.S. v. E.C., NYLJ October 04, 2019,  Date filed: 2019-09-03,  Court: Family Court, Bronx Judge: Judge Ariel Chesler, Case Number: 199451:

"It is well settled that non-custodial parents have a right to visitation with their children, that such visitation is a joint right of the noncustodial parent and children, and that the noncustodial parent plays a valuable role in guiding and loving their children. (See Weiss v. Weiss, 52 NY2d 170, 175 [1981]). F.S.’s attorney advocates for continued visits with his father graduating to unsupervised and liberal visits. F.S.’s attorney also suggests that both children visit with their father together. A.S.’s attorney takes no specific position regarding visitation.
The evidence establishes that the children and father share a bond, and that despite everything that has occurred, the children exhibit resilience and a love for their father. Once supervised visits became more consistent it was evident both children enjoyed their time with their father and benefit from having him in their lives.

The welfare of the children, which is paramount, requires more visitation and contact with their father who will play a significant and meaningful role in their lives going forward. Indeed, as is demonstrated by the recent CFS reports, the more regular contact that occurs between the father and his children the more their relationship has improved. The CFS reports show that the children look forward to the visits, exhibit no trouble separating from their mother, enjoy their time with their father, show him affection and receive love from him, are upset when the visits end and, more so, at the prospect of lost visits. Time with their father is both meaningful and beneficial to the children.

As previously noted, Dr. Pino recommended therapeutic supervised visitation between A.S. and the father so they can develop a safe, comfortable, and healthy relationship and repair the rupture in their relationship. Dr. Pino stressed that the father should develop realistic ideas about reunification with A.S. She noted that the repair of the relationship may be a gradual and prolonged process. On the other hand, no similar therapeutic visits are recommended for F.S.

While the Court accepts Dr. Pino’s conclusion that the repair of the relationship between the father and A.S. will take time, and that therapeutic visits between A.S. and the father would be appropriate, the Court declines to order only supervised visitation between the father and his children at this time. Supervised visitation has already been taking place between the father and children since March 2019 and has gone very well. Nor is there any asserted need for therapeutic visits for F.S.

Moreover, it is noted that supervised visitation was initially ordered in 2016 and the father’s relationship with his children would be in a very different posture in 2019 had such visits been regularly held between 2017 and 2019. This Court will not reward the mother’s noncompliance with Court ordered visitation by further delaying reunification between the father and his children.

The proper course of action to restore the children’s relationship with their father is therapeutic visits between the father and A.S., and, in light of all the circumstances in this case, unsupervised time for the father with both children. Ultimately, the children should have a visitation schedule with the father which will graduate to liberal and unsupervised parenting time.

Accordingly, the Court orders A.S. to enroll in weekly therapeutic visitation with the father through Comprehensive Family Services. In addition, commencing September 8, 2019 the father shall have unsupervised visitation with both children on alternate Sundays from 10 AM until 4 PM until further order of the Court. The father shall also have phone access with the children every Tuesday and Thursday evening. The parties may modify this schedule on mutual consent in writing.

It is the order of the Court that visitation between the father and the children must continue and expand toward liberal, unsupervised and overnight visits, as well as vacation, holiday, and summer access. All counsel are to submit to the Court proposed visitation schedules, accounting for a graduated schedule toward liberal overnight parenting time of both children with their father."

DESPITE'S MOM WRONGFUL ACCUSATIONS, CUSTODY REMAINS WITH HER - PART 1

Here the mother falsely accused the father of sexual abuse of the 10 year old, one of the two children, the other being 7.

L.S. v. E.C., NYLJ October 04, 2019,  Date filed: 2019-09-03,  Court: Family Court, Bronx Judge: Judge Ariel Chesler, Case Number: 199451:

"The mother’s written summation argues she should be granted sole custody and the father given supervised visitation. In contrast, the father’s summation asserts the mother has alienated him from the children and is, thus, not fit to maintain custody of the children and that custody of the children should instead be transferred to the father. While A.S.’s attorney expressed A.S.’s desire that her mother maintain custody of her, A.S.’s attorney did not take a position regarding visitation with the father. F.S.’s attorney did not take a position regarding custody but strongly argued in favor of continued visits between F.S. and his father, graduating to unsupervised and liberal visitation.

Regarding custody of A.S., a petition to modify an existing order requires a two-part inquiry. The first or “controlling ‘material fact’ is whether or not there is a change in circumstances so as to warrant an inquiry into whether the best interests of the children would be served by modifying the existing custody arrangement.” (Robert OO. v. Sherrell PP., 143 AD3d 1083, 1084 [3d Dept 2016]; see also Sergei P. v. Sofia M., 44 AD3d 490 [1st Dept 2007]). Once a change in circumstances has been demonstrated, “the parent then must show that modification of the underlying order is necessary to ensure the child’s continued best interests.” (Matter of Menhennett v. Bixby, 132 AD3d 1177, 1179 [3d Dept 2015]; see also Christopher H. v. Taiesha R., 166 AD3d 548 [1st Dept 2018]).

Although none of the parties argue the modification standard, it is clear to this Court that there has been a substantial change in circumstances in that the abuse allegations, the interference in the father-child relationship by the mother, and the resulting separation and distance between the father and children drastically altered their relationship. Indeed, “[e]vidence of interference by the custodial parent in the relationship between the subject child and non-custodial parent, can also constitute a change in circumstances sufficient to modify an existing order.” (Matter of E.S. v. SS., 63 Misc 2d 1206(A) at *6 [Family Court, NY, Bronx County 2019]). Thus, with regard to both children the Court will proceed to the best interest standard and a consideration of the totality of circumstances.

No parent has a prima facie right to custody over another parent and custody awards must be based only on the child’s best interests and in promotion of the child’s health and happiness. (Domestic Relations Law §70[a]). No one factor is determinative of custody; rather, the Court is required to consider the totality of the circumstances. Among the factors to be considered are the respective ages of the children, the financial circumstances, the home environment of each parent, the parental fitness of each parent, the preferences of the children, and a goal of keeping siblings together. (See Eschbach v. Eschbach, 56 NY2d 167, 172 [1982]). When applicable, the Court must also consider the length of time of any prior custodial arrangement and ensure stability for the children. (See Friederwitzer v. Friederwitzer, 55 NY2d 89, 94 [1982]).

Furthermore, any parent who is awarded custody must be willing to facilitate a relationship between the children and the noncustodial parent. (See Matter of James Joseph M. v. Rosana R., 32 AD3d 725, 726 [1st Dept 2006]; Lohmiller v. Lohmiller, 140 AD2d 497, 498 [2d Dept 1988]). In fact, some courts have found that an unwillingness to facilitate that relationship is “an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [parent] is unfit to act as a custodial parent.” (See Entwistle v. Entwistle, 61 AD2d 380, 384 [2d Dept 1978]. Some courts have found the single act of a false allegation of sexual abuse by one parent against the other parent can be so egregious and damaging to the children that it, alone, may warrant a change in custody. (See, e.g., David K. v. Iris K., 276 AD2d 421, 422 [1st Dept 2000]). However, false allegations of sexual abuse do not warrant an automatic change in custody. (See John A. v. Bridget M., 16 AD3d 324 [1st Dept 2005], lv denied 5 NY3d 710 [2005]). Rather than a per se rule, a custodial parent’s interference with the relationship between a child and noncustodial parent “constitutes one fact, albeit an important one, in determining the best interests of the children…a failure to adequately consider all the pertinent information may result in a change of custody that, despite the custodial parent’s misconduct, is not in the best interests of the children.” (Id. at 336 [Saxe, J. concurring]).

Here, despite the mother’s sexual abuse allegations ultimately being unfounded, as both doctors testified, the mother continues to genuinely believe that the father abused A.S. As a result of this belief, the mother has compromised the relationship between the children and their father. Given this genuine belief, and the possibility of a delusional disorder as referenced by Dr. Pino, this Court questions whether it is right to grant custody to the father on this factor alone. As in John A., there is the “possibility that [the mother] could have sincerely, even if irrationally, believed that the father constituted a danger to the children.” (Id. at 337 [Saxe, J. concurring]).

Although the harm done to the children by the separation from their father is certainly great, removing the children from their mother may serve as more of a punishment for their mother’s behavior rather than a promotion of their best interest. (Matter of John A. v. Bridget M., 16 AD3d at 337 [Saxe, J. concurring]). To the contrary, this Court is concerned that removing the children from their mother’s custody would result in further traumatization and would thus not be in their best interest. “An award of custody, especially when it is a removal of custody from a parent with whom the children are closely bonded, should not result from one discrete fact, but requires a weighing of all relevant factors and a determination that the new award will be in the children’s best interests.” (Id. [emphasis in original]).

A review of the other relevant factors bears this out. In considering the totality of the circumstances, the court considers the fact that the children have resided with the mother their entire lives including the six years they have spent having little to no contact with their father. As to A.S., the parties divorce judgment provided that the mother would have custody and be the primary caretaker and the Court gives some weight to the prior agreement which has been in place since 2011. Since the parties’ divorce, the mother has also served as a competent primary caretaker as evidenced, among other things, by the fact that the children excel in school. A related factor is thus that the quality of the mother’s home environment appears to be positive and nurturing for the children.

Both parties appear to be generally able parents with homes both appropriate and supportive for the children. As to relative financial circumstances, it appears the father is more financially stable. However, the Court does not place great significance on the parties’ relative finances.

Another factor the Court considers is that a change in custody would be extremely disruptive to the children’s lives. Their home has always been with the mother and changing custody would take them away from their school, friends, pets and daily life as they have known it. Therefore, the factor of stability weighs against a change in custody. Indeed, a transfer of custody to the father would be far more traumatic for the children than remaining in the mother’s care. A.S. lived in the same residence as her father only from her birth until age four. F.S. has never lived in a home with his father. Were custody to be granted to the father, the children would be placed in the home of the father, someone with whom they have had only intermittent — albeit positive — interactions, and their step-mother, a stranger they have never met. Their time with their mother would be limited to visitation, which would be confusing and upsetting.

Further, A.S. has expressed through her attorney a desire to remain in her mother’s custody. CPS reported that F.S. appeared happy, active, and very attached to his mother. While not determinative, the expressed wishes of A.S. are significant, and the Court has given consideration to her age and maturity as well as her demeanor during the in camera proceeding. Given the position of A.S. and the other factors, which weigh against a transfer of custody, the Court also notes that it would not be in the best interests of the children to split them as they have a strong bond with one another and it would be in their best interests to continue living together.

Fortunately, the evidence also establishes that despite the separation and the mother’s interference with the relationship, the father and children share a bond that can be repaired and strengthened. Thus, despite the mother undermining the relationship the children appear to have a warm attachment to the father.

Having rejected the claims of sexual abuse, the Court considers whether the mother “can become reconciled to the children’s relationship” (John A., 16 AD3d at 339) with the father. The mother recognized the significance of the children having a relationship with their father and declared that she would facilitate that relationship, albeit with certain limitations. While the Court has reservations   —   given the mother’s track record of not complying with court ordered visitation — it is also noted that the mother has more consistently complied with Court ordered supervised visitation since March 2019. Therefore, it is the opinion of the Court that with appropriate therapeutic assistance and treatment, the mother will better fulfill her obligations as a custodial parent.

Based on the totality of the circumstances, the mother is granted sole physical and legal custody. This custody award is in no way meant to reward the mother. Despite her egregious, reprehensible behavior, it is in the children’s best interest to remain in her custody. While attending counseling or mental health treatment cannot be a condition for obtaining visitation rights, the Court has the authority to direct a parent to participate in psychological treatment as a component of a custody order. (See Matter of John A. v. Bridget M., 16 AD3d at 331). An order of probation outlining mandatory participation in therapeutic programs is authorized pursuant to Family Court Act §656 and the Court adopts the recommendations of Dr. Pino regarding the mother’s need for treatment. Accordingly, sole physical and legal custody are granted to the mother, subject to an order of probation that she attends individual psychotherapy to help her cope with anxiety and family therapy with A.S. in order to help in healing the relationship between A.S. and her father and to assist the mother in understanding A.S.’s needs, comply with visitation orders, and ceases disparagement of the father. (See also Jamel W. v. Stacey J., 136 AD3d 552 [1st Dept 2016]).

As this family moves forward, it is critical that the relationship between the subject children and their father be healed, and it is the mother’s responsibility as the custodial parent to encourage, foster and facilitate that healing. (See Alvarez v. Alvarez, 114 AD3d 889, 980 [2d Dept 2014]. In fact, “[o]ne of the primary responsibilities of a custodial parent is to assure meaningful contact between the children and the other parent.” (Matter of Raybin v. Raybin, 205 AD2d 918, 921 [3d Dept 1994]). In this regard, the Court has concerns based on the mother’s pattern of noncompliance with court-ordered supervised visitation. However, it should be emphasized that the issue of custody can be revisited if she continues to alienate the children from their father and violate any court ordered visitation. (John A., 16 AD3d at 335; see also Victor L. v. Darlene L., 251 AD2d 178, 179 [1st Dept 1998]). “It is in the mother’s power to maintain custody by refraining from further abuse of her power as the custodial parent.” (John A., 16 AD3d at 335 [Tom, J. P. and Friedman, J., concurring])."

TOMORROW OCTOBER 9 DEADLINE - NEW YORK SEXUAL HARASSMENT PREVENTION RULES

By October 9, 2019, all employers must conduct interactive sexual harassment prevention training with all current employees. New employees should be trained as quickly as possible. Sexual harassment prevention training MUST be completed at least once per year.

Employers may choose to use model training developed by the NY Department of Labor; however, to satisfy the “interactive” requirement, employers must engage employees with questions and must answer questions from participants.  The Department of Labor provides free resources here: https://www.labor.ny.gov/immigrants/sexual-harassment-prevention.shtm

WHO IS A BORROWER FOR PURPOSES OF RPAPL 1304

The facts: "On October 29, 2004, nonparty Solomon Forman borrowed the sum of $333,700 from nonparty Quicken Loans, Inc., and executed a promissory note evidencing the loan. As security for the obligation, Solomon Forman and his wife, the defendant Ann Forman (hereinafter the defendant), delivered a mortgage on certain real property located in Hauppauge (hereinafter the subject property) to nonparty Mortgage Electronic Registration Systems, Inc., acting as nominee for Quicken Loans, Inc. The subject property is a residential home which has been solely owned by the defendant since May 28, 2002. On March 18, 2006, Solomon Forman died."

Bank of N.Y. Mellon v Forman, 2019 NY Slip Op 07045, Decided on October 2, 2019, Appellate Division, Second Department:

"Where a loan is a home loan for the borrower's principal residence, the mortgage creditor contemplating a mortgage foreclosure action is required, pursuant to RPAPL 1304, to serve the borrower with notice of his or her default in a specified form at least 90 days prior to the commencement of the action (see RPAPL 1304[1], [2], [5]; Flagstar Bank, FSB v Jambelli, 140 AD3d 829, 830).

We agree with the defendant that under the circumstances of this case, she was a "borrower" for purposes of RPAPL 1304. While RPAPL 1304 provides that the notice shall be sent to the "borrower," that term is not defined in the statute (see RPAPL 1304). It is undisputed that only the defendant's deceased husband, Solomon Forman, is identified as a "borrower" in the note which is secured by the mortgage. That is not determinative in this case. In the mortgage instrument, the defendant is referred to as a borrower. On the first page of the mortgage instrument, under the heading entitled "Words Used Often in this Document," the defendant is identified, along with her husband, as " Borrower.'" The defendant is also designated as "Borrower" under her signature on the signature page of the mortgage instrument. While the plaintiff contends that this standard mortgage form mischaracterizes the defendant as a borrower, any ambiguities in the language of the document must be construed against the plaintiff, as the plaintiff is the party who supplied the document (see generally Computer Assoc. Intl., Inc. v U.S. Balloon Mfg. Co., Inc., 10 AD3d 699, 700).

Moreover, an RPAPL 1304 notice is a notice pursuant to the Home Equity Theft Prevention Act (Real Property Law § 265-a; hereinafter HETPA), the underlying purpose of which is "to afford greater protections to homeowners confronted with foreclosure" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 103). HETPA defines a "homeowner" as "any or all record title owners of the residential real property in foreclosure" (Real Property Law § 265-a[2][h]). The content of the RPAPL 1304 notice furthers the legislative intent "to provide a homeowner with information necessary . . . to preserve and protect home equity" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 107 [internal quotation marks omitted]; see Real Property Law § 265-a[1][d]). The "manifest purpose [of the RPAPL 1304 notice] is to aid the homeowner in an attempt to avoid litigation" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 107). Here, the defendant clearly is a homeowner, and in fact, she was the sole owner of the subject property.

Under these circumstances, where the defendant is referred to as a borrower in the mortgage instrument, and in light of the intent of the RPAPL 1304 notice, we find that the record is sufficient to establish that the defendant is a borrower for purposes of RPAPL 1304 (see generally Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95).

"[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition" (id. at 106; see Flagstar Bank, FSB v Damaro, 145 AD3d 858, 860; Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 910)."

AN ATTORNEY'S APPARENT AUTHORITY

NYC 4900 HOLDINGS LLC v. SIAD, 2019 NY Slip Op 51517 - NY: Appellate Term, 1st Dept. 2019:

"We find unavailing tenant's assertion that her former attorney lacked actual authority to enter into the December 21, 2017, two-attorney, so-ordered stipulation settling the underlying holdover summary proceeding. "Assuming arguendo that [the attorney] lacked the real authority to do so, as a matter of law, [he was] certainly clothed with apparent authority and the [landlord] reasonably relied upon that appearance of authority" (1420 Concourse Corp. v Cruz, 175 AD2d 747, 749 [1991], citing Hallock v State of New York, 64 NY2d 224, 231 [1984]). In this regard, counsel had appeared at every court appearance on tenant's behalf since at least July 2017, signed and submitted several stipulations of adjournment and other court papers, and engaged in settlement negotiations prior to execution of the underlying stipulation."

LANDLORD/TENANT - RENT ABATEMENTS

What is the decrease in value of an apartment infested with mice, cockroaches and badly in need of repairs?

Sheridan 1511 LLC v. Fofana, NYLJ October 02, 2019, ate filed: 2019-09-11, Court: Civil Court,  Judge: Judge Diane Lutwak, Case Number: 32176/2018:

"Accordingly, for the 19-month period from February 2018 through August 2019 Respondent is entitled to a 25 percent  abatement of the rent due to the unresolved infestation of mice. For the 13-month period from February 2018 through February 2019 Respondent is entitled to an additional 5 percent  abatement due to the cockroach infestation which Respondent testified he had resolved as of March 1, 2019.

Further, the court finds that other conditions existed at least as of the August 17, 2018 stipulation and continued through some point in January or February 2019 which warrant an additional 10 percent  abatement, see, e.g., Tower West Associates v. Derevnuk (114 Misc2d 158, 450 NYS2d 947 [Civ Ct NY Co 1982]), for this approximately 5-month period: defective flooring in the hallway, kitchen and bathroom; peeling paint throughout the apartment; defective light fixtures throughout the apartment. Petitioner offered no evidence or testimony about any attempts to make repairs during this time period; rather, it was Respondent who testified that Petitioner had substantially corrected these conditions by March 2019, with only the defective bedroom light fixtures remaining unresolved.
Respondent’s testimony was not clear and the record otherwise is insufficient to show dates after January 23, 2018 when the conditions existed involving the bathroom flushometer, kitchen cabinets, elevator, building entrance door, water leaks into the public lobby and public stairway; accordingly, the Court declines to award a further abatement for these items. See, e.g., Mantica R Corp NV v. Malone (106 Misc2d 953, 436 NYS2d 797 [Civ Ct NY Co 1981]). Although HPD wrote up violations of some of these items on April 27, 2018 and sent notice to the landlord on May 3, 2018, HPD’s records show that by June 8, 2018 it had received the landlord’s certification that the violations had been corrected."

MORTGAGE FORECLOSURE - HIGH-COST HOME LOAN OR SUBPRIME LOAN DEFENSE

Emigrant Bank v Brown, 2019 NY Slip Op 06746, Decided on September 25, 2019, Appellate Division, Second Department:

"In 2008, the defendant Eldwyn Brown executed a promissory note in the principal amount of $270,000, secured by a mortgage executed by Brown and the defendant Judy Purcell (hereinafter together the borrowers). The borrowers defaulted in making the mortgage payment due November 1, 2011, and all payments due thereafter. In December 2013, the plaintiff commenced this action against the borrowers and others. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the borrowers, for an order of reference, and to strike the borrowers' affirmative defenses. The Supreme Court denied the motion, and the plaintiff appeals.

"RPAPL 1302 . . . require[s] the complaint in any foreclosure action relating to a high-cost home loan or a subprime home loan' to contain an affirmative allegation that at the time the proceeding is commenced, the plaintiff . . . has complied with . . . [section six-l or six-m of the banking law]" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 105, quoting RPAPL 1302[1][b]). The statute further provides, in pertinent part, that "[i]t shall be a defense to an action to foreclose a mortgage for a high-cost home loan or subprime home loan that the terms of the home loan or the actions of the lender violate any provision of section six-l or six-m of the banking law" (RPAPL 1302[2]).

Banking Law § 6-l "imposes limitations and prohibits certain practices for high-cost home loans'" (Aries Fin., LLC v 12005 142nd St., LLC, 127 AD3d 900, 901, quoting Banking Law § 6-l[2]; see Lewis v Wells Fargo Bank, N.A., 134 AD3d 777, 778). A home loan is a "high-cost home loan" if, among other things, the total points and fees charged exceed five percent of the total loan amount and the total loan amount is $50,000 or more (see Banking Law § 6-l[1][g][ii]; Silver v CitiMortgage, Inc., 162 AD3d 812, 813). The "total loan amount" is "the principal of the loan minus those points and fees . . . that are included in the principal amount" (Banking Law § 6-l[1][h]). [*2]"Points and fees" include "all compensation paid directly or indirectly to a mortgage broker" and "[t]he cost of all premiums financed by the lender, directly or indirectly, for any credit life," and certain items, such as fees for title examination, title insurance, and property surveys, to be included "only if the lender receives direct or indirect compensation in connection with the charge or the charge is paid to an affiliate of the lender" (Banking Law § 6-l[1][f]).

Here, pursuant to RPAPL 1302(1)(b), the plaintiff alleged in its complaint that it "has been and is in compliance with . . . Section 6-l or 6-m of the New York State Banking Law." For their part, pursuant to RPAPL 1302(2), the borrowers alleged, as their sixth affirmative defense, that the loan was a "high-cost home loan," and that the "costs associated with the alleged financing exceed[ed] maximum thresholds mandated by state and federal statutes, laws, and regulations" governing such loans. Thus, in support of its motion, inter alia, for summary judgment on the complaint and dismissing the sixth affirmative defense, the plaintiff was required "to prove its allegation by tendering sufficient evidence demonstrating the absence of material issues as to [the applicability of, or] its . . . compliance with, [Section 6-l]" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 106; see Alvarez v Prospect Hosp., 68 NY2d 320, 324; U.S. Bank N.A. v Echevarria, 171 AD3d 979; Tribeca Lending Corp. v Lawson, 159 AD3d 936, 938). The plaintiff did not do so. Instead, in support of its motion, the plaintiff submitted no documentation on the issue and failed even to address the issue in its attorney's affirmation and affidavits in support of its motion (see Anesthesia Assoc. of Mount Kisco, LLP v Northern Westchester Hosp. Ctr., 59 AD3d 473, 479; Becker v Colonial Coop. Ins. Co., 24 AD3d 702, 705). Accordingly, because the plaintiff failed to meet its prima facie burden, we agree with the Supreme Court's denial of those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the borrowers and dismissing the borrowers' sixth affirmative defense, regardless of the sufficiency of the borrowers' opposition papers (see CPLR 3212[b]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; cf. U.S. Bank N.A. v Echevarria, 171 AD3d 979)."