IS THIS DOCUMENT A CONTRACT FOR SALE OF LAND

A family dispute in which Dad and his wife is trying to evict Son and his wife from their home. Son claims to be an "owner" of the property due to a writing which Son claims is a contract of sale. 

Templar v Templar, 2021 NY Slip Op 31611(U), May 14, 2021, Supreme Court, Wayne County, Docket Number: 84778, Judge: Daniel G. Barrett:

"The Plaintiffs, Kathleen and Paul Templar, have brought this action seeking to
evict the Defendants, Jeramie and Jessica Templar from 232 East DeZeng Street, Clyde,
New York. The parties are married to each other and Defendant, Jeramie Templar, is the
son of Plaintiff, Paul Templar.

Each of the Plaintiffs and Defendant, Jessica Templar, testified in this case.

Defendant Jeramie Templar, although present at the hearing, did not testify and no reason
was given for his non-participation in this hearing.

There is no dispute that the Plaintiffs are record owners of the property located at
232 DeZeng Street. The Defendants are relying upon a writing signed by all parties dated
December 1, 2016, as a land contract which prevents the Plaintiffs from evicting them.
This writing will be evaluated at a later point in this Decision.

The testimony of the Plaintiffs is consistent. Plaintiff Kathleen Templar moved to
her daughters house in Canastota in March of 2016 to help the daughter run her business.
This was a temporary move not a permanent relocation. She left various personal effects
at 232 East DeZeng Street including her mother's ashes, family antiques and other items.
She left these various articles of personal property in the first floor bedroom, parlor,
rooms upstairs and the attic. One of the rooms was locked.

In December 2016 Plaintiff Paul Templar moved to Canastota to be with his wife.
He, likewise, left various personal effects, family antiques, military documents and his
military uniform. These items were left in the same places as Kathleen Templar's
belongings-the first floor bedroom, parlor, rooms on the second floor and the attic. One
of these rooms was locked.

The Plaintiffs allowed the Defendants to move into 232 DeZeng Street when
Plaintiff, Paul Templar, temporarily moved to Canastota to be with his wife. The
Plaintiffs entertained the idea of maintaining a life use of the residence with the property
passing to the Defendants after their passing. This was simply a verbal discussion,
nothing was committed to in writing. The Plaintiffs clearly intended to return to 232
DeZeng Street to live.

The previously referenced writing dated December 1, 2016, was executed by all of
the parties and labeled as Exhibit 10 and duly admitted into evidence.

The house needed a new furnace. A grant program was available but it was not
available unless the applicant owned the premises. According to the Plaintiffs that is the
reason Exhibit 10 came into existence. The Plaintiffs testified they did not prepare
Exhibit 10. Defendant, Jessica Templar, testified the Plaintiffs had already executed the
writing before it was presented to her. Plaintiffs testified they signed Exhibit 1 O so that
the Defendant would qualify for the grant to replace the furnace. A new furnace, in fact,
was installed.

While residing in Canastota, at times unsolicited, Defendant Jeramie Termplar
would transport the Plaintiffs' personal property to Canastota on a regular basis. The
Plaintiffs did not request that he do that nor did they give him permission to empty their
house. Defendant, Jessica Templar, refuted this testimony. She testified that the
transport of the personal property was done at the request of the Plaintiffs.
While the Plaintiffs were residing in Canastota, Defendant, Jeramie Templar told
the Plaintiff, Paul Templar, he needed the key to the locked door so that the room could
be winterized. The key was not returned and the lock was replaced by the Defendants.
No key to open this door was ever presented to the Plaintiffs.

In June 2019 the Plaintiffs intended to move back into 232 DeZeng Street. They
were forbidden to do so by the Defendants. The Plaintiffs were barred from moving their
personal belongings back into the house and they have had to seek a residence elsewhere.
According to the Verified Complaint, the Plaintiffs served a 30 Day Notice to
Vacate on the Defendants on July 10, 2019.

The Defendants, per the testimony of Defendant Jessica Templar, asserted that
Exhibit 10 is a land contract. Exhibit 10 was not prepared to qualify for a new furnace
grant. It was her understanding she was purchasing an interest in land.

ANALYSIS
This case pivots on the legal significance of Exhibit 10. Exhibit 10 is very brief
and is reproduced here in its entirety:

Kathleen and Paul Templar have entered into a
rent to own agreement with Jessica and Jeramie
Templar. Jessica and Jeramie are living in the
house at 232 East DeZeng Street at this time, as
of December 1, 2016. Kathleen and Paul Templar
reside at 2990 State Route 31, Canastota.

The phrase in the first sentence "have entered into a rent to own agreement" gives
one the impression that there is a separate agreement that has already been executed. But
this is not the case. The next two sentences tell us where the Defendants and Plaintiffs
resided on December 1, 2016.

Since we are dealing with an interest in real property the Statute of Frauds has to
be satisfied. "The essential terms of a real estate contract typically include the purchase
price, the time and terms of payment, the required financing, the closing date, the quality
of title to be conveyed, the risk of loss during the sale period, and adjustments for taxes
and utilities ... [W]here a contract's material terms are not reasonable definite, the contract
is unenforceable" (Matter of Licata, 76 A.D. 3d 1076, 1077 [2 "d Dep't 2010] 443;
Jefferson Holdings, LLC v Sosa, 174 A.D. 3d 486, 487 [2"d Dep't 2019]).

It is argued that parol evidence will provide the missing links to save this contract.

In Pfiel v Cappiello, 29 A.D. 3d 1187, [3 rd Dep't 2006] quoting the following portion of
the decision in the case of Wacks v King shows this is not accurate:

GOL 5-703(2) provides, in relevant part, that a contract for
the sale of any real property, or interest therein, is void
unless the contract or some note or memorandum thereof,
expressing the consideration, is in writing, subscribed by the
party to be charged. To that end, the underlying instrument
must designate all parties, identify and describe the subject
matter and state all essential terms of a complete agreement.
Where as here, the subject matter of the agreement is real
property, the writing must describe the property involved
with such definiteness and exactness as will permit it to
be identified with reasonable certainty. Finally, the
determination of whether an instrument satisfies the
Statute of Frauds is based solely on the language of the
document itself, without consideration of parol evidence.

Also, to satisfy the Statute of Frauds, a memorandum subscribed by the party to be
charged, must designate the parties, identify and describe the subject matter, and state all
of the essential terms of a complete agreement. A writing is not a sufficient
memorandum unless the full intention of the parties can be ascertained from it alone,
without recourse to parol evidence, Dahan v Weiss, 120 A.D. 3d 540 [2"d Dep't 2014].
"Parol evidence, that is evidence outside the four corners of the document, is
admissible if a court finds an ambiguity in the contract. As a general rule, extrinsic
evidence is inadmissible to alter or add a provision to a written agreement." §3: 19 Statute
of Frauds, generally. 11 PT I West's McKinley's Forms Real Property.

It is also argued that this Court should look at the text messages between the
parties. This is not permissible because of parol evidence and it is not permissible as a
writing that would satisfy the Statute of Frauds, (see Vista Developers Corp. v VFP
Realty. LLC, 17 Misc. 3d 914, 847 N.Y.S. 2d 416).

All the parties who testified, Plaintiffs and Defendant Jessica Templar, testified
they did not prepare Exhibit 10. Defendant Jeramie Templar did not testify. The Court is
permitted to draw a negative inference as a result of his not testifying and find that he
prepared Exhibit I 0. In that event the contract can be interpreted against the interests of
the Defendants.

Based on the foregoing the Court finds that there is no contract for the sale of the
real property and the Plaintiffs are entitled to a warrant of eviction. Counsel for Plaintiffs
to prepare a warrant of eviction which may be served on or after June 25, 2021."

LANDLORD TENANT LAW - WHEN SEEKING SUBSTITUTED SERVICE AFTER A REFUSAL OF SERVICE

 

Latchman v. Hardnett, NYLJ April 28, 2021, Date filed: 2021-04-21,  Court: Civil Court, Queens, Judge: Judge Sergio Jimenez, Case Number: 51153/20:

"DECISION AND ORDER Petitioner, Seeraj Latchman, owns the premises located at 101-66 125th Street Apt. 4C in South Richmond Hill, New York 11419. Respondent (Mary Hardnett) has allegedly lived in the subject premises since 2013. Petitioner brought this holdover petition seeking possession of the premises following a termination of tenancy due to alleged improper conduct by respondent or her family. The proceeding was first on the court’s calendar on January 30, 2020 and was adjourned to February 27, 2020. On that date, it was set for settlement or trial on March 27, 2020. Before that appearance could take place, the court system was slowed by the global pandemic emergency. The proceeding was administratively stayed until January 22, 2021 where it was assigned to the HMP part which connected respondent with counsel and adjourned the proceeding to Part D on February 23, 2021. Thereafter, respondent filed the instant motion seeking dismissal and after being fully briefed, the court held virtual arguments on April 6, 2021. Following said argument, the court reserved decision. Respondent’s Motion and Petitioner’s Opposition

The instant motion seeks dismiss pursuant CPLR §3211(a)(7) and/or (8) the proceeding for failure to properly serve the notice of termination, notice of petition and petition correctly, for failure to serve a proper notice to cure, for failure to serve a proper notice of termination, partially dismissing the claim about fights and loud noises for not being in the notice to cure, dismissing the claim seeking money as a substantial obligation of the lease and, in the alternative, granting leave to file the included answer and granting discovery. Petitioner opposes all branches of the notice but withdraws the claim for money and does not oppose the answer being submitted and for discovery if what respondent seeks exists.

Respondent argues that the service was improper for two reasons. First, that the address read “Richmond Hill” not “South Richmond Hill,” and that, therefore, the service, as a matter of law, cannot be proper. She avers in her affidavit that she has never lived in Richmond Hill but rather all her correspondence has always come to “South Richmond Hill.” Respondent’s counsel states that there are separate post offices in Richmond Hill and in South Richmond Hill. Petitioner opposes this argument stating that they are interchangeable with the use of the correct zip code. In Rochdale Holding Corp. v. Neuendorf, 784 N.Y.S. 2d 924 (2004), the court held “the fact that the mail was addressed to zip code 10022, rather than zip code 10021, did not render service defective” where the correct street address and county were set forth. Here not only were the street and county correct but the zip codes also matched. The court agrees with petitioner, the United States Postal Service, which handles billions pieces of mail per year, has a mechanism for addressing these types of situations.

Secondly, respondent argues that the service did not comply with RPAPL §735 because it could not have been conspicuous placement service because the attempts to serve were both made outside of work hours and then not displayed, but rather slid under the door. It is undisputed that the service attempts were Friday night at 8:20pm and Saturday at 1:42pm, both done by Petitioner’s attorney. In the Second Department at least two attempts at personal service are required, one during normal working hours and one attempt when a person working normal business hours could reasonably be expected to be home are required to satisfy the reasonable application standard. See Martine Associates LLC v. Minck, 5 Misc3d 61 (App Term 2d Dept 9th & 10th Jud Dists, 2004); Gristmill Realty, LLC v. Roa, 69 Misc.3d 142(A) (App. Term 2d Dept, 9th & 10th Jud Dists, 2020); Tinker LTD Partnership v. Berg, 906 N.Y.S.2d 784 (2010). As such, the requirements for conspicuous service have not been satisfied.

Petitioner counters stating that due to a refusal of service, the standard shifts to a different one and becomes one of substituted service. Respondent’s attorney’s affidavit of service does not make a claim of substituted service. However, statements both on Petitioner’s affidavit in opposition to the motion to dismiss and the Petitioner’s attorney’s oral arguments raise a possible claim of substituted service. Respondent’s affidavit claims that on the second attempt, the knocking on the Respondent’s door resulted in an answer from inside the apartment, who refused to accept service. RPAPL 735 does not require consent to accept service and refusal will not vitiate a substitute service. However, appellate courts have found that a person being served must be aware that he is being served with process. Bossuk v. Steinberg, 58 NY2d 916 (1983); Spector v. Berman, 119 AD2d 565 (App Div 2d Dept, 1986); Hall v. Wong, 119 AD3d 897 (App Div 2d Dept, 2014); First Owner Corp. v. Riverwalk Garage Corp., 784 N.Y.S.2d 844 (2004). The claims of substituted service were not made on the affidavit of service nor did the Attorney who served the papers provide the court with an affirmation sustaining any possible claim of substituted service. Neither party could point to any specific exception to RPAPL §735 that would allow an exception to its strict mandates following a refusal of service. Therefore, a sole claim of refusal made by someone an unknown person to the server is insufficient as a matter of law to change the nature of the service itself.

Respondent also brought to the court’s attention that regardless of how service was effectuated that there would be a problem regarding the mailing because they allege that since it was marked as sent from the South Richmond Hill post office, that office was not open after the purported attempt at service and therefore must have been sent before the attempted service. However, as this was not raised in the papers, the court will not consider such an argument. It is undisputed that the service attempts were Friday night at 8:20pm and Saturday day at 1:42pm, both were done by petitioner’s counsel himself, both outside of working hours. Nothing presented converted this conspicuous placement service to substituted service as pled in the affidavit of service. As such, service was defective as a matter of law. No traverse hearing is required as the service attempts were facially defective. Doji Bak, LLC v. Alta Plastics, 51 Misc 3d 148(A)(App Term 2d Dept, 2016).

The court grants respondent’s motion in part and denies the motion in part. The court grants respondent’s motion to dismiss the proceeding on failure to serve the notices correctly as stated above. All other aspects of the motion are denied as moot or without merit. Petition is dismissed, the clerk is instructed to enter a judgment of dismissal in favor of the respondent. Nothing in this order precludes Petitioner from seeking remedy in this or another court following proper service. This constitutes the Decision and Order of the Court."

A RELOCATION REQUEST LEADS TO A CHANGE IN CUSTODY

 

MATTER OF HOLLY F. v. Daniel G., 2021 NY Slip Op 2575 - NY: Appellate Div., 3rd Dept. April 29, 2021:

"Pursuant to a 2017 order, Holly F. (hereinafter the mother) and Daniel G. (hereinafter the father) had joint legal custody of a child (born in 2009), with the mother having primary physical custody and the father having parenting time. In 2018, the mother commenced the first of these proceedings seeking permission to relocate with the child to West Virginia where her husband lived. The father opposed and cross-petitioned for primary physical custody of the child. Following fact-finding and Lincoln hearings, which were held over the course of 3½ months, Family Court, among other things, denied the mother's relocation request and granted the father primary physical custody of the child. The mother appeals. We affirm.

A change in circumstances exists based upon the mother's proposed relocation of the child and, therefore, the issue distills to whether the mother proved by a preponderance of the evidence that such relocation served the best interests of the child (see Matter of Kristen MM. v Christopher LL., 182 AD3d 658, 659 [2020]; Matter of Tanya B. v Tyree C., 168 AD3d 1154, 1154 [2019]). Family Court's findings and credibility assessments are accorded great deference and will not be disturbed when supported by a sound and substantial basis in the record (see Matter of James TT. v Shermaqiae UU., 184 AD3d 975, 977 [2020]; Matter of Michael BB. v Kristen CC., 173 AD3d 1310, 1311 [2019]).

In denying the proposed relocation, Family Court found that the mother gave little thought to the impact that relocation would have on the child's relationship with the father and that there was no evidence to support the mother's claim of improved financial circumstances in West Virginia. The hearing evidence discloses that the mother worked two days a week at a local veterinary clinic for minimum wage. During the middle of the hearing, the mother moved to West Virginia and left the child with the maternal grandparents. There was no indication that the mother was working in West Virginia, notwithstanding her earlier testimony that she had a job offer there. Indeed, the mother admitted that her husband was paying most of the bills. The mother's husband testified that he operated a crane business but he did not provide concrete testimony about his earnings.

The child, meanwhile, had been attending the same school in New York for three years and was doing well. There was also proof that the father had extended family in New York, who could assist him in taking care of the child, and that, when the mother previously relocated to Florida to pursue a different romantic interest before returning to New York, the father had followed the mother to Florida to maintain his relationship with the child. Because Family Court's findings are supported by a sound and substantial basis in the record, the determination denying the mother's proposed relocation request will not be disturbed (see Matter of Cook-Lynch v Valk, 126 AD3d 1062, 1064 [2015]; Matter of Julie E. v David E., 124 AD3d 934, 937 [2015]).

Regarding the issue of physical custody, once again, because there was a change in circumstances in view of the mother's proposed relocation, the issue is whether Family Court's determination to give the father primary physical custody was in the best interests of the child (see Matter of LeVar P. v Sherry Q., 181 AD3d 1008, 1009-1010 [2020]).^[1] The record discloses that the father could financially support himself and the child and he maintained suitable housing. Taking into account that the mother was financially dependent on her husband, as well as her various relocations, the court did not err in awarding the father primary physical custody of the child (see Matter of Smith v McMiller, 149 AD3d 1186, 1188 [2017]; Matter of Basden v Faison, 141 AD3d 910, 911-912 [2016]; Matter of Gentile v Warner, 140 AD3d 1481, 1483 [2016]). Finally, we note that, although not determinative, the court's determination is in accord with the position of the attorney for the child (see Matter of Coleman v Millington, 140 AD3d 1245, 1247 n [2016]).

Garry, P.J., Lynch, Clark and Colangelo, JJ., concur.

ORDERED that the order is affirmed, without costs.

[1] Although Family Court did not make any express findings as to whether awarding the father primary physical custody of the child furthered the best interests of the child, remittal is unnecessary because "the record is sufficiently developed for us to exercise our authority to make independent findings consistent with the best interests of the child" (Matter of Kathleen K. v Daniel L., 177 AD3d 1130, 1131-1132 [2019])."

ALTERNATIVE DISPUTE RESOLUTION SERVICES AVAILABLE

 

WHO CAN SELL THIS HOUSE: A TALE OF ADVERSE POSSESSION

Estate of Pagliaro, NYLJ April 16, 2021,  Date filed: 2021-03-18, Court: Surrogate's Court, Suffolk, Judge: Surrogate Theresa Whelan, Case Number: 2019-4706/A:

"Background

The following facts are not materially in dispute. The petitioner, Thomas Wyly, is the administrator of the Estate of Ann F. Wyly, his mother. The decedent in the above captioned matter was Ann’s aunt. The decedent immigrated to the United States from Poland in the early 1900′s. The decedent married Thomas Pagliaro and purchased two adjacent lots located at 303 Linton Avenue and 311 Linton Avenue, Lindenhurst, New York (Lindenhurst property). She lived with her husband at the Lindenhurst property until her husband’s death in 1959. The decedent continued to live at the property until she died on December 11, 1978. The decedent died intestate with no children. The title of the Lindenhurst property remains in the name of the decedent.

After decedent’s husband died, Ann visited decedent more frequently to take her shopping, to medical appointments, and helped her with personal care and in maintaining the Lindenhurst property. Petitioner and his brothers also visited the decedent as children and teenagers and never saw or heard of any other relatives visiting her except their maternal grandmother, Katarzyna Lezanski (Ann’s mother). As such, petitioner believed that the members of his family were decedent’s only surviving relatives.

After decedent died in 1978, for approximately 26 years, petitioner’s parents, Ann and Theodore, paid all the expenses and maintenance costs relating to the Lindenhurst property until Ann passed away on October 6, 2004. Petitioner’s brother, Robert, then assumed payment of the expenses and maintenance of the Lindenhurst property, including, but not limited to, paying property taxes, and hiring landscapers. After Robert was seriously injured in a car accident he moved into petitioner’s home in Massachusetts. Consequently, he was unable to visit the Lindenhurst property as often as he did when he was living in New York. However, Robert continued to pay the expenses of the Lindenhurst property until his death on March 1, 2015, which was shortly after moving to Massachusetts. Neither Ann nor Robert had a will.

Petitioner and his brother, James, then decided to sell the Lindenhurst property. It was at that time, petitioner discovered that the property was still titled in the name of decedent. As a result, petitioner filed a petition for letters of administration for Frances Pagliaro’s estate. In connection with his petition, Thomas hired a genealogist to prepare the decedent’s family tree. The genealogical report took approximately three years to complete as it involved extensive research for descendants both in the United States and Poland. The report revealed that the decedent had five other siblings in Poland when she immigrated to the United States. The report also revealed that decedent was survived by nephews, nieces, grandnieces, grandnephews, a great-grandniece and a great-grandnephew. Respondent, decedent’s great-grandnephew, was the only person who appeared in the administration proceeding and expressed a willingness to serve as the fiduciary. As a result, the court issued letters of administration to respondent on January 9, 2020. While the report was pending, petitioner paid the expenses and costs of maintaining the Lindenhurst property. In addition, he hired an attorney to remove squatters who destroyed the property during Robert’s stay in Massachusetts, even though the question of the property’s ownership had not been resolved.

Arguments

Petitioner moves for summary judgment pursuant to CPLR 3212 to quiet title to the Lindenhurst property by adverse possession. The petitioner has submitted affidavits in support of his motion stating that his family, beginning with his parents, had maintained and possessed the Lindenhurst property for more than 40 years and that the possession was continuous, exclusive, open, notorious, hostile and under a claim of right.

In support of his application, the petitioner asserts that his family had always believed that the decedent had given the Lindenhurst property to Ann and they had treated it as their own. In his affidavit, the petitioner states that he had heard decedent stating that it was her wish that Ann gets the Lindenhurst property after decedent died. After the death of decedent, Ann undertook numerous acts that were consistent with that of a property owner, including paying the taxes and expenses of the property and arranging for landscaping services and snow removal from 1978 until her death in 2004, a total of 26 years. Petitioner asserts that the tax records from the Suffolk County Comptroller support his claim that Ann had been paying the property taxes from 1985 through 2004. Further, after Ann’s death, Robert assumed payment of the expenses and taxes related to the Lindenhurst property for the next 11 years. Additionally, petitioner hired an attorney after receiving complaints from the town about the deteriorating conditions of the Lindenhurst property and successfully removed squatters that occupied the property after Robert moved to Massachusetts.

In opposing the motion, respondent argues that given the familiar relationship between decedent and petitioner’s family, as well as the support the Wyle family provided to the decedent, the possession was not hostile.

Respondent further asserts that the 20 year statutory period for a co-tenancy by adverse possession is applicable to this case, not the 10 year statute of limitation as petitioner contends. Respondent argues that since decedent died without a will, the Lindenhurst property passed to decedent’s sister Katarzyna and their other five siblings as tenants in common under the laws of intestacy. After the passing of Katarzyna, her share of the property vested in Ann who then became a tenant in common with the other heirs of decedent. Respondent further argues that the 20 year statutory period of continuous occupancy by Ann and her family restarts with the passing of each of the decedent’s heirs. Essentially, he argues that Ann was a tenant in common with various heirs of decedent at different times as the interests of the property passed to the heirs of each successive co-tenant who passed away. As such, petitioner has not met his burden of continuous possession for the statutory period.

Discussion

The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hospital, 68 NY2d 320; see also Matter of Pollock, 64 NY2d 1156). Failure to make out a prima facie case requires a denial of the motion regardless of the sufficiency of opposing papers (Winegarad v. NYU Medical Center, 64 NY2d 851). Once the movant meets his burden, the burden of going forward shifts to the opposing party to produce evidentiary proof in admissible form to establish the existence of material issues of fact requiring a trial (see Romano v. St. Vincent’s Medical Center, 178 AD2d 467, see also Friends of Animals, Inc., v. Associated Fur Manufactures Inc., 46 NY2d 1065).

Petitioner seeking to obtain title by adverse possession pursuant to Real Property Actions and Proceedings Law (RPAPL) §501 must establish by clear and convincing evidence that his possession was (1) actual, (2) open and notorious, (3) exclusive, (4) continuous for the statutory period of 10 years and (5) hostile and under claim of right (Speziale v. Grabeklis, 303 AD2d 746). Permissive use negates the element of hostility required for adverse possession (see Air Stream Corp., supra). Possession is hostile when it constitutes “an actual invasion of or infringement upon the owner’s rights” (Sinicropi v. Town of Indian Lake, 148 AD2d 799). However, hostile possession “does not require a showing of enmity or specific acts of hostility” (Katona v. Low, 226 AD2d 433, 434). “Hostility can be inferred simply from the existence of the remaining four elements,” open, notorious, exclusive and continuous for the full 10 year statutory period (Matter of Clanton, 153 AD3d 787). All that is required is a showing that the petitioner’s possession and the use of the property was under a claim of right (see Estate of Becker v. Murtagh, 19 NY3d 75). “By definition, a claim of right is adverse to the title owner and also in opposition to the rights of the true owner” (Walling v. Przybylo, 7 NY3d 228, 232).

Ann’s dominion and control over the property coupled with her paying the taxes and expenses of the property constitute an actual invasion or infringement of the rights of respondent and the absent heirs and thus, hostile to their rights as owners (see Ziegler v. Serrano, 74 AD3d 1610). She, and subsequently Robert, have continuously possessed the property and otherwise used it as owners for over 40 years, unlike respondent and the other heirs who have not paid or maintained the property. In fact, they did not make any claims to, nor have they been involved with, the Lindenhurst property during the entire period of time that petitioner and his family were in possession of the property. Their involvement with the property only arose after underlying administration proceeding was commenced.

With petitioner having made a prima facie showing that the property was acquired by adverse possession, the burden shifts to respondent to produce evidence rebutting the presumption of adversity (Air Stream Corp. v. 3300 Lawson Corp., 99 AD3d 822). Respondent has failed to come forward with evidence in admissible form sufficient to rebut petitioner’s claim of adverse possession. Respondent’s opposition consists only of conclusory statements that the possession was not hostile. While permission to possess the property negates an adverse possession claim, respondent has not presented competent evidence that the absent heirs gave Ann and petitioner’s family permission to use the property.

Further, respondent has not produced any evidence that he had any involvement with the Lindenhurst property during those years that petitioner and his family had maintained and paid the expenses of the property. By claiming that petitioner and his family “assumed ownership” of the property “in an illegal matter inconsistent with New York State Law,” respondent is essentially acknowledging that petitioner and his family had occupied the property exclusively and that their occupation was hostile to the interests of the decedent’s absent heirs.

The court further finds respondent’s assertion that the co-tenancy 20 year statutory period that is applicable to Ann’s possession is without merit. First, respondent has not established that Ann was a co-tenant with decedent’s absent heirs. Second, even if the court were to apply the 20 year statutory period, she had met this requirement as her possession of the Lindenhurst property lasted for over 25 years, namely from 1978 to 2014. Additionally, the court finds respondent’s contention that the statutory period restarts with each passing heir is also without merit. The changing of the ownership of the tenants in common does not negate the fact that Ann and subsequently Robert had possessed the property and that their possession and use of the property was exclusive, continuous and under a claim of right adverse to the interests of the absent heirs.

With respondent having failed to raise a triable issue of fact, petitioner is entitled to summary judgment to quiet title to the Lindenhurst property by adverse possession.

Having determined that Ann has acquired title by adverse possession, it is not necessary to determine whether Robert acquired title by adverse possession and whether petitioner had satisfied the good faith basis requirement in the 2008 amendment of RPAPL §501. In the amendment, the legislature defines “under claim of right” as a “reasonable basis for the belief that the property belongs to the adverse possessor.” The change to RPAPL §501 does not apply retroactively. Thus, the amendment is not applicable to Ann’s possession where the alleged adverse possessor’s property right vested prior to the amendment (see Hogan v. Kelly, 86 AD3d 590)."

A MOTION IN LIMINE

90th ST. CORP. v. 203 W. 90th ST. RETAIL, LLC, 2021 NY Slip Op 30827 - NY Co.: Supreme Court March 10, 2021:

"A motion in limine may be used as a means to exclude or admit evidence before trial (see Woodie v Azteca Intl. Corp., 60 AD3d 535, 536 [1st Dept 2009]). However, in the present instance, the relevance and admissibility of several of the items the parties speak of now has been, as a practical matter, already resolved by virtue of the disposition remaining in the wake of the court's summary judgment decision. For instance, the email dated March 31, 2015, at 6:14 p.m., from John R. Ramsen, sent to Michael S. Cole (Defendant's Bates No. LB000038) (NYSCEF Doc 153), which Defendant objects to in its cross-motion in limine, does not contain any information relevant to the second counterclaim — the only counterclaim left to be tried — and is, therefore, irrelevant and inadmissible at trial. The Olshever Emails (NYSCEF Doc 183), which Defendant objects to, are also not relevant to the second counterclaim and are, therefore, also inadmissible at trial.

Defendant does not object to the admissibility of the remaining ten of the eleven emails Plaintiff seeks to admit into evidence (NYSCEF Docs 154-164). Therefore, those items are deemed admissible at trial.

Lastly, Plaintiff seeks to strike the Errata Sheet. CPLR 3116(a) provides relevant guidance as follows:

Signing. The deposition shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness before any officer authorized to administer an oath. If the witness fails to sign and return the deposition within sixty days, it may be used as fully as though signed. No changes to the transcript may be made by the witness more than sixty days after submission to the witness for examination.

The Ruiz deposition was held on October 24, 2017, and he signed the Errata Sheet on December 28, 2017. Plaintiff asserts that this was untimely because the signing took place more than sixty days after the deposition. Nevertheless, Defendant's counsel has affirmed that she did not receive a copy of the deposition transcript until November 2, 2017, as evidenced by the transcript transmittal letter of the same date from Plaintiff's counsel (NYSCEF Doc 178). Plaintiff's counsel does not deny that the transcript was transmitted to Defendant's counsel on November 2, 2017. Therefore, the court finds that the Errata Sheet was timely signed within sixty days of Plaintiff's transmission of the deposition transcript to Defendant's counsel.

But, Plaintiff asserts another, separate, ground for the striking of the Errata Sheet; to wit, that it seeks to change the substance of Mr. Ruiz' actual deposition testimony, a usage that is improper as a post-deposition way of extricating one's self from clear and unambiguous live testimony (see, e.g., Torres v Bd. of Educ. (137 AD3d 1256 [2d Dept 2016]). The court has compared the Errata Sheet to the recorded testimony and is prepared to analyze same hereinbelow. But first, it is important to note that Mr. Ruiz' deposition was defended by not one; but two, attorneys from Defendant's legal team (see NYSCEF Doc 131 at 2). Yet — at no time did either of those two attorneys object to the form of any of the questions cited in the Errata Sheet (NYSCEF Doc 164) on the grounds of confusion, or language difficulty on Mr. Ruiz' part, or on any other grounds. Moreover, no interpreter was requested by those attorneys, and Mr. Ruiz' answers, as recorded, were completely responsive to the questions, and with no complaint whatsoever from him as to his comprehension. Nor did Mr. Ruiz, either on his own or at the request of either of Defendant's two attorneys, ask Plaintiff's counsel for an opportunity to go back on the record for purposes of any clarification. In fact, at the outset of the deposition, Mr. Ruiz was asked by Plaintiff's counsel to let him know if he does not understand any question (NYSCEF Doc 131 at 2). With that preface, the following observations are made by this court, referencing a sampling of the items dealt with in the Errata Sheet:

Transcript Page 22, Line 23, contains a straight answer from Mr. Ruiz — "No" — to the question whether he saw certain "personal property or other materials" (NYSCEF Doc 131). The Errata Sheet (NYSCEF Doc 164) seeks to constrict that answer to "fixtures" only.

Transcript Page 22, Line 25, contains a straight answer from Mr. Ruiz — "Completely clean" — to the question whether the Premises in June 2015 [the month after Defendant's vacatur from the Premises] was "completely clean." The Errata Sheet seeks to constrict that answer to "fixtures" only.

Transcript Page 25, Line 19, contains a straight answer from Mr. Ruiz — "It was outside the premises" — to the question of how the compressor was installed. The Errata Sheet seeks to inject equivocation into Mr. Ruiz' straight answer by adding qualifiers like "I believe" and "I am not sure." The same is true at Transcript Page 25, Line 23, where Mr. Ruiz testifies that the compressor was attached to the roof by "Screw." The Errata Sheet injects equivocation by adding the qualifier "I'm guessing."

Such injections of equivocation and uncertainty permeate the Errata Sheet (see NYSCEF Doc 164 at 3 ["I am not sure," "I do not know," "I'm guessing"], 4 ["I thought it might have been," "I thought the compressor might have been," "I am guessing"], 5 ["I am guessing"]). In each of those instances, Mr. Ruiz' actual answers were direct and unequivocal (see, Transcript [NYSCEF Doc 131] at 26-27). Indeed, when Mr. Ruiz found it appropriate to qualify his answers to certain questions, or to indicate directly that he did not see something asked about, he was perfectly able to do so on the record (see NYSCEF Doc 131 at 26 ["I didn't see the installation...."], 27 ["No, I did not," "I didn't see the installation," "I don't know how...."]).

Defendant submits an affidavit from Mr. Ruiz (NYSCEF Doc 172) which attests that English is his second language and that he is "sometimes confused by or misunderstand[s] the English language" (id. ¶¶ 4, 7). While it is true that a genuine need by a witness to make substantive changes to a deposition transcript can be accommodated by the law in appropriate circumstances (see Cillo v Resjefal Corp., 295 AD2d 257 [1st Dept 2002]), this court's review of the transcript — and the direct and unambiguous responsive answers provided by the witness — do not lead this court to the conclusion that amendment of the transcript is the appropriate avenue in this particular circumstance, especially since, as noted above, neither of Defendant's two attorneys objected at deposition, or moved to strike, or asked for an interpreter, or asked for an on-the-record-opportunity to allow the witness to correct the record. Rather, the appropriate avenue at this post-deposition stage for Defendant to offer Mr. Ruiz' accurate observations is to explore them further during examination at trial and to allow Mr. Ruiz to explain to the trier of fact why his actual observations might in any way diverge from the literal answers he testified to at deposition.

For this reason, Plaintiff's motion in limine to strike the Errata Sheet is granted."

WHEN CONSENT OF BIOLOGICAL FATHER TO ADOPTION NOT NECESSARY

Matter of Gabriella U. (Amanda T.--James S.) 2021 NY Slip Op 02581 Decided on April 29, 2021 Appellate Division, Third Department:

"Appeal from an order of the Family Court of Sullivan County (Meddaugh, J.), entered January 17, 2020, which, among other things, granted petitioners' application, in a proceeding pursuant to Domestic Relations Law article 7, to determine that respondent's consent was not required for the adoption of his child.

Petitioner Amanda T. (hereinafter the mother) and respondent (hereinafter the father) are the unmarried parents of the subject child (born in 2012). Petitioner Joseph T. (hereinafter the stepfather) married the mother in 2018. In June 2019, petitioners commenced the first proceeding seeking an order permitting the stepfather to adopt the child, alleging that the father's consent was not required. Thereafter, the father commenced the second proceeding seeking visitation with the child. Following a fact-finding hearing, Family Court granted petitioners' application, finding that the father's consent was unnecessary for the adoption to proceed, and dismissed the father's petition for visitation. The father appeals, and we affirm.

Pursuant to Domestic Relations Law § 111 (1) (d), a biological father's consent for the adoption of a child born out of wedlock is required "only if such father shall have maintained substantial and continuous or repeated contact with the child." "Such contact 'must be evinced by (1) financial support by the father of a fair and reasonable sum according to his means and (2) either visiting the child at least monthly when physically and financially able to do so or, if physically or financially unable to visit monthly, by regular communication with the child or the person having custody of the child'" (Matter of Raheem A. v Judith B., 189 AD3d 1716, 1717 [2020], lv denied 36 NY3d 908 [2021], quoting Matter of Lillyanna A. [William ZZ.—John B.], 179 AD3d 1325, 1326 [2020], lv denied 35 NY3d 908 [2020]). "As the statute makes clear, Domestic Relations Law § 111 (1) (d) imposes a dual requirement upon the biological father — satisfaction of both the support and contact/communication provisions — and the father's unexcused failure to satisfy either of these requirements is sufficient to warrant a finding that his consent to the proposed adoption is not required" (Matter of Bella FF. [Margaret GG.—James HH.], 130 AD3d 1187, 1187-1188 [2015] [citations omitted]; see Matter of Raheem A. v Judith B., 189 AD3d at 1717).

At the fact-finding hearing, the mother testified that the father has not seen the child, who at the time was almost seven years old, since October 2015, when the child was almost three years old. The mother testified that, prior to this, the father had seen the child only once in 2015 following his release from prison. The mother gave conflicting testimony as to whether, in 2015, the father frequently asked to see the child or only asked to see the child once. The mother also testified that the father has not provided financial support for the child since 2015. The mother testified that the father [*2]has not sent any gifts, letters or cards to the child or called the child. She testified that she has had sole custody of the child since the father did not appear for the court proceeding to adjudicate same.

The father testified that he left the mother before the child was born but returned when the child was two months old to try "to make amends." The father testified that he pleaded guilty to the crime of attempted stalking in 2013 and served 27 months in jail. The father acknowledged that an order of protection was put in place against him in favor of the mother in 2013, which was removed in 2015. He testified that within a few days after being released from prison in 2015, he visited with the child at the grandmother's house, he had frequent contact with the child and that he tried to give the mother what money he could for the child. The father testified that he and the mother stopped communicating in early 2016 and that they had numerous conversations about visiting with the child and spending time with her but that the mother always told him it was not a good time. The father could not specify what month any of these communications took place. The father testified that he moved to Pennsylvania for work at the end of 2016 and did not make any efforts to communicate with or support the child once he moved, and that the last time he saw the child was in 2016. The father testified that he filed a petition for visitation in 2017 after he returned to New York and the mother did not cooperate with his attempts to communicate with the child, but that the petition was dismissed because he did not appear, as he was either in prison or out of town. The father testified that he has not made any child support payments since 2017. The court took judicial notice of a current order of protection against the father in favor of the mother and the child. The father testified that he was in jail for almost the entirety of 2017, with his current prison sentence beginning in December 2017. The father pleaded guilty to the crime of criminal sexual act in the first degree and expects to be released in January 2029, although he denied committing the crime.

We agree with Family Court that the father's consent was unnecessary for the adoption to proceed. The testimony of the mother established that the father had not had contact with the child since 2015, which was four years prior to the commencement of the adoption proceeding. Although there were inconsistencies between when and whether the father made attempts to see the child, Family Court credited the testimony of the mother, "a determination with which we accord deference" (Matter of Raheem A. v Judith B., 189 AD3d at 1719). Testimony also established that the father did not send the child any letters or gifts. The mother testified that she did not receive child support from the father after 2015, and the father did not offer any evidence that he was unable to pay child support (see Matter [*3]of Lillyanna A. [William ZZ.—John B.], 179 AD3d at 1327). Even if this Court were to fully credit the father's testimony, by his own admission he had not attempted to contact the mother or pay support since 2017, two years before the adoption proceeding. There is also no indication that anyone prevented the father from contacting the child or paying support during the relevant time. Significantly, the father's incarceration did not excuse his failure to maintain contact or pay support (see Matter of Raheem A. v Judith B., 189 AD3d at 1719; Matter of Jaedyn U. [Keaysie T.—Patrick U.], 188 AD3d 1532, 1533 [2020]). Therefore, Family Court correctly found that the father's consent to the adoption was not necessary (see Matter of Raheem A. v Judith B., 189 AD3d at 1719; Matter of Lillyana A. [William ZZ.—John B.], 179 AD3d at 1327).

Finally, in light of the final order of adoption, which was entered by Family Court in July 2020, the father's appeal from the dismissal of his visitation petition is moot since he no longer has standing to seek visitation (see Matter of Morgaine JJ., 31 AD3d at 933; cf. Matter of Carrie B. v Josephine B., 81 AD3d 1009, 1010 [2011], appeal dismissed 17 NY3d 773 [2011])."

REASONABLE ACCOMMODATIONS FOR SENIOR TENANTS?

 

Nuredin v. Koufa Realty Corp., NYLJ April 28, 2021, Date filed: 2021-04-15, Court: Civil Court, Queens, Judge: Judge Enedina Pilar Sanchez, Case Number: HP604/20:

"Petitioner filed this HP case seeking an order to correct violations pursuant to the New York City Housing Maintenance Code. The subject premises are located at 31-14 42nd Street, Apartment #4, Astoria, New York 11103. The parties are represented by counsel and have appeared via Microsoft Teams video conferencing pursuant to the Administrative Orders in place during this COVID-19 pandemic. After numerous conferences, including a stipulation addressing conditions and violations in need of repairs, petitioner moves by notice of motion seeking an order directing respondents to provide a “reasonable accommodation to the bathtub and bathroom commode located at the subject premises pursuant to the New York City Administrative Code §8-107(15).”1

In summary, petitioner argues that the claw foot bathtub in the apartment is an old fashioned tub; that petitioner cannot easily use this tub and respondents must replace it.

It is undisputed that petitioner is a rent-controlled tenant and has resided in the apartment for close to 60 years. There is no dispute that petitioner has reached an age where daily activities take more time. Petitioner is 87 years old and states that getting in and out of the bathtub is not as simple as before. “She can only bathe herself when her neighbors, who have showers in their apartments, are kind enough to let petitioner use their showers.” Pet. Affidavit.

The question is whether respondents are required to replace the existing claw foot tub with a walk-in shower to accommodate petitioner’s reduced mobility.

Petitioner states that the landlord was asked to provide this accommodation and she submitted a letter from her physician. Petitioner then filed a complaint with the New York City Commission on Human Rights (“CCHR”). After a pre-complaint investigation process, CCHR recommended a reasonable accommodation in the form of a bathtub that “has a cut-out on the side, or a walk-in shower.” (Respondent’s Cross-Motion Exhibit B.) CCHR, however, has not taken any action to enforce its recommendation. CCHR closed the case on June 6, 2020 as the “Accommodation [was] Provided.” (Resp. Exhibit B.)

The accommodation was not provided. Petitioner seeks an order from this Court directing respondent to replace the claw foot tub pursuant to New York City Administrative Code §8-107(15).

Petitioner’s Argument:

This Court has jurisdiction pursuant to Civil Court Act §110 to enforce the housing maintenance code and therefore to direct the respondent to replace a claw foot tub with a walk-in shower as a reasonable accommodation for petitioner’s impaired mobility. Petitioner relies upon case law where the landlord was directed to provide a wheelchair ramp at the building entrance. See, Espino v. New York City Housing Authority, 60 Misc.3d 667(2018).

Respondents’ Argument:

Respondents cross-move for access to the subject premises to correct the violations or in the alternative to dismiss of the case. Violations exist in the apartment and respondents state that petitioner refuses to grant access for other repairs until the claw foot tub is replaced with a walk-in shower. Respondents argue that there are no violations of the Housing Maintenance Code or the Building Code to support the entry of an order directing the owner to replace the claw foot tub with a walk-in shower.

Legal Discussion:

The power of the Housing Court to issue an order pursuant to Civil Court Act §110 is broad and consistent with the objective found in the very language of the Act. Section 110 provides, the court shall hear matters involving the enforcement of state and local laws for the establishment and maintenance of housing standards, including, but not limited to, the multiple dwelling law and the housing maintenance code, building code and health code of the administrative code of the city of New York.

Petitioner cites Espino v. New York City Housing Authority, supra, in support of the argument that petitioner is entitled to an order directing respondent to replace the claw foot tub with a walk-in shower in order to fulfil the mandates of New York City Human Rights Law. In Espino v. New York City Housing Authority, the Court specifically relied upon Section 27-357 (d) of the Building Code, which section provides, that at minimum one primary entrance shall be accessible and usable by individuals who use wheelchairs.

Petitioner has not cited any provision of the Housing Maintenance Code, the Building Code, the Health Code, or the Multiple Dwelling Law to support her position. Absent such a provision, this Court does not have any basis to issue such an order creating a reasonable accommodation.2 Issuing such an order would be directing changes to residential premises on an ad-hoc basis. Respondent shows that the accommodation sought by petitioner is possible, but that it is not mandated by the Housing Maintenance Code

The Court takes judicial notice of the DHPD inspection report found on the DHPD website, www.nyc.gov/hpd. The inspection report confirms that conditions in the apartment are in violation of the Housing Maintenance Code (HMC), however, there are no violations regarding the bathtub. The relief sought by petitioner, the replacement of the claw foot tub, does not correlate to violations or requirements of the Housing Maintenance Code or the Building Code.

The broad powers of the Housing Court do not include the power to make a declaratory judgment. Petitioner seeks an order that a condition or a disability faced by an occupant requires a modification or an alteration, and that is not provided for by the existing laws enforced pursuant to Civil Court Act Section 110.3

The Court is familiar with the case law referenced in petitioner’s moving papers. Petitioner’s motion does not support the request to have the Court issue an order directing respondents to replace the claw foot tub with a walk-in shower as a reasonable accommodation. The finding and recommendation from the agency do not constitute an administrative order.

Furthermore, the definition of a disability as discussed in Espino v. New York City Housing Authority, supra, is connected to the mandates of the Building Code requiring that at least one primary building egress be accessible and usable by individuals who use wheelchairs.

The Court’s broad powers to enforce the various codes include the power to make a finding that a violation exist. Such a finding would need to correlate to a provision in the Housing Maintenance Code, the Building Code, the Multiple Dwelling Law, or the Health Code. (See, HMC Bathrooms §27-2066.) Petitioner, however, has not presented any evidence that the claw foot tub constitutes a violation under applicable codes.

In conclusion, petitioner’s motion for a reasonable accommodation directing respondent to replace the claw foot tub with a walk-in shower must be denied.

Respondent’s cross-motion is also denied. The allegations regarding refusal to grant access were denied by petitioner with sufficient details.

The parties are directed to arrange access dates to correct the violations in the subject premises. All work shall follow COVID-19 safety protocols.

Upon default, petitioner may restore this case to the calendar for all appropriate relief.

This constitutes the Decision and Order of this Court/

Dated: April 15, 2021

Footnotes

 

1. The Court is informed that the issue of the bathroom commode is resolved.

2. The Court notes that there may be other options that will have a more practical outcome for both sides and still allow petitioner use of her tub.

3. The Court is mindful that as residents age and live a longer life in our community, the need to change or modify the housing stock may become the norm.

 

ALTERNATIVE DISPUTE RESOLUTION SERVICES AVAILABLE

 

A DIFFERENT APPROACH TO COVID AND THE COMMERCIAL NON-PAYING TENANT AND THE GUARANTOR

Compare this case with COVID AND THE COMMERCIAL NON-PAYING TENANT AND THE GUARANTOR

267 DEV., LLC v. BROOKLYN BABIES & TODDLERS, LLC, 2021 NY Slip Op 30796 - Kings Co. Supreme Court March 15, 2021:

"Plaintiff, 267 DEVELOPMENT LLC, moves this Court for an Order pursuant to CPLR § 3212 (a), CPLR § 3211 (a) (7) and/or CPLR § 3211(a) (1) granting summary judgment in its favor and dismissing the affirmative defenses and counterclaim contained in Defendants' answer. Defendants cross-move for summary judgment pursuant to CPLR § 3212 dismissing Plaintiff's 4th and 5th causes of action and for summary judgment in its favor on their counterclaim for commercial tenant harassment.

BACKGROUND

Plaintiff owns the property that is leased to Defendants and commercial tenant, Brooklyn Babies and Toddlers, LLC ("BB") with Defendant, Mary Ann O'Neil acting as guarantor. Governor Cuomo signed Executive Orders § 202.3, § 202.6 and § 202.7 closing certain businesses throughout New York State in response to the Covid-19 pandemic. BB was one of the businesses forced to close pursuant to these Executive Orders. Additionally, Governor Cuomo initiated a moratorium on residential and commercial evictions and foreclosures in 2020 that has been extended through May 21, 2021.

Plaintiff commenced the instant action against BB, as Tenant, and Mary Ann O'Neil, as guarantor, seeking payment in the amount of $93,554.94 in total as rent arrears and attorneys' fees pursuant to their 10-year lease agreement. In opposition to Plaintiff's motion for summary judgment, Defendants rely in part upon New York City Administrative Code § 22-1005 ("§ 22-1005"), also referred to as Local Law 55. Pursuant to § 22-1005, commercial Landlords cannot seek monies for lease arrears from a non-tenant who personally guarantees a lease agreement on behalf of a business that meets the criteria as set forth in the provision. Specifically, this law refers to businesses that were forced to close as a result of the Executive Orders signed by Governor Cuomo.

However, this newly enacted provision protects only the guarantors of commercial leases and not the Tenant itself. While Governor Cuomo has signed executive orders that establish a moratorium on residential as well as commercial evictions and foreclosures, there is no law preventing a Landlord from seeking arrears from a commercial Tenant. On September 23, 2020 the New York City Council amended § 22-1005 and extended the prohibition against enforcement of guarantor provisions in commercial leases, through March 31, 2021. Additionally, the amendment clarifies its intent by stating that it applies to all personal guarantor agreements, regardless of whether those agreements were contained in the original lease or not.

Defendants contend that Plaintiff's motion must be denied because the lease has been suspended as a result of force majeure, frustration of purpose and/or impossibility of performance. In the case at bar, a force majeure clause was not included in the lease agreement and therefore cannot be asserted as a defense to a breach of contract claim. Gen. Elec. Co. v. Metals Res. Grp. Ltd., 293 A.D.2d 417, 418 (1st Dept 2002). Defendants also argue alternatively that since their business was closed by the Governor's Order, performance under the contract was made objectively impossible.

New York law recognizes the common law doctrine of impossibility as an avenue to excuse performance when there have been extraordinary intervening events. It is not enough to show that an event has rendered performance prohibitively expensive or impractical. Rather, the party invoking the doctrine must prove that the subject matter of the contract or the means of performance have been "destroyed," such that performance is "objectively impossible." Kel Kim Corp.v Central Markets, 70 N.Y.2d 900, 902 (1987). The Court of Appeals explained therein, "the impossibility must be produced by an unanticipated event that could not have been foreseen or guarded against in the contract." Id. at 902. Impossibility excuses a party's performance only when the destruction of the subject matter of the contract or the means of performance makes performance objectively impossible. Kolodin v Valenti, 115 AD3d 197, 200 (1st Dept 2014).

The doctrine of impossibility was applied after the September 11th terrorist attacks in Bush v. Protravel International, Inc., 192M.2d 743, 747-748 (Civ. Ct., Richmond County 2002). Telephone communications had been disrupted throughout New York City after 9/11. As a result, the Plaintiff in the aforementioned case was precluded from timely canceling travel reservations. The Civil Court found that performance of the travel contract was rendered impossible for a period of time immediately following the 9/11 attack where New York City was in virtual lockdown. Id. at 747.

In a recent article entitled, "New York Contract Law Remedies in the Face of Disruption Caused by COVID-19", Ropes & Gray Newsletter 200:100, 2020 by Gregg Weiner, Adam Harris, Christian Reigstad, Dielai Yang and Andrew Todres, the issues before this Court were discussed and the authors concluded:

In the context of the coronavirus outbreak, impossibility may provide grounds for excusing performance if, for example, government responsive measures such as shutdowns, travel bans, or quarantines entirely preclude a party from performing its contractual obligations. However, even then, the party invoking the doctrine must show that the measures were unforeseeable and the risk associated with them could not have been built into the contract. The sheer magnitude of COVID-19's impact has left businesses large and small scrambling in search of relief from contractual obligations. Affected parties to contracts governed by New York law may be able to use the doctrines of force majeure, impossibility, or frustration of purpose to exit contracts or protect themselves from liability for non-performance.

In the case at bar this Court finds that the shutdown of BB's business has precluded it from performing its contractual obligations. The government shutdown was unforeseeable and could not have been built into the contract. Under the circumstances presented, this Court finds that performance under the subject lease was made impossible.

Defendants cross-move for summary judgment on their counterclaim for "commercial tenant harassment." New York City Administrative Code § 22-902(a) was also amended to define commercial tenant harassment. The amendment sets forth that a landlord may be held liable for "commercial tenant harassment" for attempting to enforce a personal liability guarantee that they know or reasonably should know is not enforceable pursuant to § 22-1005. § 22-902(a)(11)(14). Defendants claim that Plaintiff's inclusion of the 4th and 5th causes of action in their complaint against Ms. O'Neil constitutes commercial tenant harassment under the law. After review of the submissions in the instant motion, this Court agrees and finds that Defendants are entitled to summary judgment on their counterclaim for commercial tenant harassment."

NOT MARRIED BUT "DIVORCED"?

Equitable distribution of the marital residence is only available to married couples but if you are not married, and there is a "cohabitive residence", other remedies may exist when there is a split.

Whalen v McElroy 2021 NY Slip Op 50379(U) Decided on April 30, 2021 Supreme Court, Westchester County Ruderman, J.:

"Plaintiff Charles Whalen initiated this action to impose a constructive trust on 115 Hunter Avenue, Sleepy Hollow, New York (115 Hunter), which is currently owned and occupied by defendant Grace McElroy f/k/a Grace C. Behrens. He also asserts causes of action for unjust [*2]enrichment, replevin, and conversion. In the verified complaint, plaintiff alleges that he and defendant became involved in a romantic relationship in 2008, and that he resided at 115 Hunter with her from the fall of 2011 until December 2018, when defendant ended the relationship and demanded that he vacate the premises.

Plaintiff maintains that, while residing with defendant at 115 Hunter, he made substantial expenditures of time and money toward improvement and maintenance of the premises in reliance on defendant's promise that they would be married and that they would jointly own the property. Specifically, plaintiff alleges that he installed a new modulating hydronic heating system, installed a new "on demand" hot water boiler, repaired the toilet and shower in the second-floor bathroom, replaced windows and insulation, painted the exterior of the house, repaired the foundation, replaced the kitchen range, performed electrical work in the living room, repaired the roof, rear deck, and driveway, maintained the landscaping, and renovated the basement, which included demolition, painting, electrical work, and the installation of flood management systems. Plaintiff further asserts that he paid for each item himself. Additionally, in his last two causes of action, plaintiff claims that he kept personal property at the premises, which he was unable to retrieve before moving out.

As a result, plaintiff seeks a judgment (1) imposing a constructive trust on 115 Hunter, (2) awarding $302,500 for improvements he made to the property and payments he made toward cable and utilities, (3) ordering the return of certain personal property listed in Exhibit A to the verified complaint, and (4) awarding $81,500 in damages for conversion.

Defendant moves to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, and to cancel the notice of pendency pursuant to CPLR 6514. She argues that plaintiff's claims for a constructive trust and unjust enrichment fail because he does not indicate when the alleged promise took place or in what manner, nor does he claim with any specificity when the work was done. Defendant further notes that plaintiff failed to allege that defendant made the purported promises without intending to honor them.

Additionally, defendant contends that a constructive trust cannot exist and damages for unjust enrichment cannot be awarded because the claimed expenses were undertaken for the benefit of both parties, since plaintiff was living in the home that he allegedly improved, and he benefited from the payment of cable and utility bills. Defendant also takes the position that the formation of an implied contract by an unmarried couple's cohabitation is inconsistent with New York's abolition of common law marriage. If the first cause of action is dismissed, defendant contends that the notice of pendency should be cancelled as well.

Defendant also argues that plaintiff's third and fourth causes of action, for replevin and conversion respectively, should be dismissed because plaintiff failed to specifically identify certain general household items listed in Exhibit A to the complaint. To the extent that some items were properly identified, defendant argues that plaintiff failed to state when and how he became the owner of such items.

In opposition, contrary to defendant's position, plaintiff argues that a constructive trust can be based on cohabitation between two unmarried parties with the promise of marriage and an interest in the property. He also contends that the fact that certain claimed expenditures were partially for his own benefit does not preclude claims for a constructive trust or unjust enrichment. Finally, he takes the position that Exhibit A to the complaint sufficiently identifies the items subject to his replevin and conversion claims.

In reply, defendant notes that she acquired 115 Hunter before she met plaintiff and began a romantic relationship with him. She further indicates that plaintiff did not pay any costs associated [*3]with acquiring the property, nor did he make payments toward the mortgage or any other carrying costs other than cable and utilities. Defendant reiterates that the expenses for which plaintiff seeks recovery were made for his own benefit as well as hers, and that he did so without any promise on the part of the defendant.

Analysis

On a motion to dismiss a complaint under CPLR 3211 (a) (7), the complaint is liberally construed, the facts as alleged in the complaint are accepted as true, and the party whose pleading is challenged must be afforded the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87 [1994]). "[T]he criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (id. at 88).

To impose a constructive trust, plaintiff must establish "(1) a confidential or fiduciary relation, (2) a promise, (3) a transfer in reliance thereon and (4) unjust enrichment (Sharp v Kosmalski, 40 NY2d 119, 121 [2d Dept 1976]). "However, as these elements serve only as a guideline, a constructive trust may still be imposed even if all of the elements are not established" (Rowe v Kingston, 94 AD3d 852, 853 [2d Dept 2012]). "Where the party has no actual prior interest in the property, he or she will be required to show that an equitable interest developed through the expenditure of money, labor and time in the property" (Rock v Rock, 100 AD3d 614, 615 [2d Dept 2012]).

Defendant does not dispute that a confidential relationship existed between her and plaintiff. Since it is undisputed that plaintiff and defendant were in a romantic relationship for approximately ten years, and cohabitated for over six years, and no marital or familial relationship is essential to the existence of a confidential relationship (see Sharp, 40 NY2d at 121), the first element is satisfied.

Although a promise to marry cannot be enforced (see Civil Rights Law § 80-a), plaintiff satisfied the second factor through the allegation that defendant promised him that he would ultimately share a partial interest in 115 Hunter. Relying on Mance v Mance (128 AD2d 448 [1st Dept 1987]), defendant asserts that plaintiff was required to plead that plaintiff never intended to honor or act on her alleged promise in order to satisfy the second factor; this is incorrect. Although Mance imposes this element in relation to a cause of action for fraud, it does not hold that the same is required for a constructive trust claim (see id. at 448, 449). Defendant has not provided authority for the proposition that plaintiff was required to plead that she never intended to honor the alleged promises to plaintiff.

Moreover, plaintiff met the third factor through the allegation that he improved and maintained the premises in reliance on the promise that he would acquire a partial interest in the premises. "The transfer concept extends to instances where funds, time and effort were contributed in reliance on a promise to share in the result" (Sylvester v Sbarra, 268 AD2d 424, 424 [2d Dept 2000] [internal quotation marks and citation omitted]).

With respect to the fourth factor, "[t]o prevail on a claim of unjust enrichment, a party must show that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered" (Cruz v McAneney, 31 AD3d 54, 59 [2d Dept 2006] [internal quotation marks and citation omitted]). Plaintiff has satisfied each of these elements through his allegations that he significantly improved the value of defendant's property at his own expense in reliance on defendant's promise as discussed above. Therefore, plaintiff has sufficiently pleaded the fourth factor for a constructive trust claim, as well as his second cause of action for unjust enrichment.

Defendant's reliance on Morone v Morone (50 NY2d 481 [1980]) for the proposition that the Court should not impose an implied contract between an unmarried cohabitating couple is misplaced. Notably, plaintiff does not seek to enforce a contract against defendant, or to be compensated for household services, and Morone does not involve a constructive trust claim. Morone analyzes claims of an express and implied contract for personal services between two unmarried, cohabitating people. Morone is further distinguishable from the instant matter in that it relates to contracts as opposed to the alleged improvement of property in exchange for a promise. Additionally, the alleged promise here was not for personal services, but for concrete, significant improvements to defendant's property.

Nevertheless, defendant relies principally on Morone's holding that a contract will not be implied between an unmarried cohabitating couple because the nature of the relationship results in certain personal services being rendered gratuitously (see id. at 488). However, the Court concluded that an express agreement between an unmarried cohabitating couple is enforceable (see id. at 487). Similarly, here, the alleged promise at issue is an explicit one — that the couple would be married and plaintiff would then jointly own 115 Hunter. Therefore, Morone does not preclude plaintiff's claim for a constructive trust, and the branches of defendant's motion to dismiss the first and second causes of action are denied.

The branch of defendant's motion to dismiss the third and fourth causes of action must be denied as well. "Two key elements of conversion are (1) plaintiff's possessory right or interest in the property and (2) defendant's dominion over the property or interference with it, in derogation of plaintiff's right" (Petrone v Davidoff Hutcher & Citron, LLP, 150 AD3d 776, 777 [2d Dept 2017] [internal quotation marks and citation omitted]). "A cause of action sounding in replevin must establish that the defendant is in possession of certain property of which the plaintiff claims to have a superior right" (Nissan Motor Acceptance Corp. v Scilapi, 94 AD3d 1067, 1068 [2d Dept 2012]).

The facts alleged in the complaint sufficiently establish that plaintiff left certain items at his former residence that he has been unable to retrieve. Such items were specifically listed in Exhibit A to the verified complaint. Since plaintiff has claimed to have a superior possessory right to property under defendant's control, and that defendant is interfering with that right, the branches of defendant's motions seeking to dismiss the third and fourth causes of action are denied."

EVICTIONS AND FORECLOSURE MORATORIUM TO AUGUST 31

Not yet signed by the Governor, but here is the information from the NYS Senate:

"BILL NUMBER: S6362A

SPONSOR: KAVANAGH
 
TITLE OF BILL:

An act to amend chapter 381 of the laws of 2020 establishing the
"COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020", in
relation to extending the effectiveness thereof; and to amend chapter 73
of the laws of 2021 relating  to  establishing the  "COVID-19 Emergency
Protect Our Small Businesses Act of 2021", in relation to extending the
effectiveness thereof

 
PURPOSE:

Extends through August 31, 2021 the effectiveness of the statutory limi-
tations on eviction of residential and certain commercial tenants expe-
riencing financial hardship, limitations on certain foreclosures and tax
sales, and related provisions, which may otherwise expire after May 1,
2021.

 
SUMMARY OF PROVISIONS:

The bill would amend various provisions of Chapter 381 of the Laws of
2020 and Chapter 73 of the Laws of 2021, to extend various provisions
through August 31, 2021. The provisions that are extended include those
that:

*Allow residential tenants suffering a financial or health-related hard-
ship to file a hardship declaration, under penalty of perjury, with
their landlord or a court to prevent the filing of an eviction or stay
any eviction proceeding in progress, with exceptions for tenants who
persistently and unreasonably engage in behavior that substantially
infringes on the use and enjoyment of other tenants or occupants or
causes a substantial safety hazard to others;

*Allow mortgagors who own ten or fewer residential dwellings to file a
hardship declaration with their mortgage lender, other foreclosing
party, or a court to prevent the filing of a foreclosure action or stay
any foreclosure action in progress;

*Allow property owners who own ten or fewer residential dwellings to
file a hardship declaration to prevent local governments from engaging
in any tax lien sale or tax foreclosure;

*Allow commercial tenants that are residents of the state, independently
owned and operated, and not dominant in their field, and employ 50 or
fewer persons, to file a hardship declaration to prevent the filing of
any eviction or stay any eviction proceeding in progress;

*Allow mortgagors for properties where the owner or mortgagor owns ten
or fewer commercial units, is a business that is resident of the state,
independently owned and operated, and not dominant in its field, and
employs 50 or fewer persons to file a hardship declaration with their
mortgage lender, other foreclosing party, or the court to prevent the
filing of a foreclosure action or stay any foreclosure action in
progress; and

- Allow an eligible commercial property owner to file a hardship decla-
ration with any village, town, city, school district, county, or other
entity or person that conducts tax foreclosures or tax lien sales, to
stay such foreclosure or lien sale.

 
JUSTIFICATION:

Measures necessary to contain the spread of COVID-19 have brought about
widespread economic and societal disruption, placing the state in
unprecedented circumstances. Millions of residents have experienced
financial hardship due to such measures, which closed businesses and
schools and triggered high levels of unemployment and reductions of
income across the state. The pandemic has also interrupted court oper-
ations, and hampered the ability of parties to litigation to safely
travel to and enter a courtroom, retain and pay for counsel, participate
in settlement conferences, and engage in other activities that enable
New Yorkers to protect their rights and settle disputes.

On December 28, 2020, the legislature found that absent statutory action
to restrict residential evictions and foreclosures, hundreds of thou-
sands of residents would be at risk of losing their homes and that such
housing instability would exacerbate the already severe negative effects
of the COVID-19 pandemic, threatening the wellbeing of all New Yorkers.
In response, the legislature passed and the governor signed into law
chapter 381 of the laws of 2020, establishing the COVID-19 Emergency
Eviction and Foreclosure Prevention Act of 2020, to prevent residential
evictions among those who have experienced financial hardship during the
COVID-19 pandemic and those who cannot move due to an increased risk of
severe illness or death. That act also prevented residential foreclo-
sures among homeowners and small landlords who have experienced such
financial hardship. The eviction restrictions do not apply if a tenant
is persistently and unreasonably engaging in behavior that substantially
infringes on the use and enjoyment of other tenants or occupants or
causes a substantial safety hazard to others.

In January of 2021, the Legislature found similarly that absent legisla-
tive action thousands of small businesses would also face eviction or
mortgage or tax foreclosure due to measures necessary to contain the
spread of COVID-19. The legislature further found that ensuring small
businesses can survive in this unprecedented time is to the mutual bene-
fit of all New Yorkers and will help the state address the pandemic,
protect public health, and set the stage for recovery. To avoid mass
evictions and foreclosures of small businesses, the legislature passed
the COVID-19 Emergency Protect our Small Businesses Act of 2021 in Janu-
ary and the Governor signed the bill into law on March 9, 2021.

Most of the provisions of the COVID-19 Emergency Eviction and Foreclo-
sure Prevention Act of 2020 and the COVID-19 Emergency Protect our Small
Businesses Act of 2021 expire on May 1, 2021. On March 28, 2021, the
U.S. Centers for Disease Control and Prevention (CDC) issued an Order
extending through June 30, 2021 restrictions on residential evictions
that had been in place pursuant to prior CDC Orders issued on September
4, 2020 and January 29, 2021. In the March 28, 2021 Order, the CDC stat-
ed that the national rate of new COVID-19 cases "remains almost twice as
high as the initial peak in April of 2020 and transmission rates are
similar to the second peak in July 2020." The CDC further noted that
preliminary research in "states that implemented and lifted eviction
moratoria" has indicated "that evictions substantially contribute to
COVID-19 transmission." The CDC found that "the fundamental public
health threat that existed on September 4, 2020, and January 29, 2021
-the risk of large numbers of residential evictions contributing to the
spread of COVID-19 throughout the United States -- continues to exist.
It is imperative that public health authorities act quickly to ward off
an unprecedented wave of evictions, which would threaten new spikes" in
transmission "at a critical juncture in the fight against COVID-19."
The March 28, 2021 CDC Order explicitly provided that it does not
preclude states from "imposing additional requirements that provide
greater public health protections and are more restrictive" than the
CDC's requirements. Restrictions in New York and other states apply to
residential foreclosures as well as evictions, and many states, includ-
ing Connecticut, Hawaii, Illinois, Minnesota, Oregon, and Washington
have joined New York in enacting restrictions on filings of eviction
cases against tenants experiencing a hardship during the pandemic, as
well as restricting the actual execution of evictions.  As noted above,
New York has also enacted similar restrictions on commercial evictions
and foreclosures.

Current data demonstrates the need for continuing emergency public
health measures in New York. According to the CDC, New York's current
rates of COVID-19 transmission are among the highest in the nation.  In
its weekly data summaries, the CDC classifies transmission rates as
"high" if there are 100 or more new cases per 100,000 people. As of
April 15, 2021, the statewide rate in New York was 233 per 100,000
people. In its March 28, 2021 Order, the CDC stated that 37% of counties
nationally had a high rate of transmission and an additional 30% had a
"substantial" rate (50-99.9 cases per 100,000 people). As of April 15,
2021, CDC data show that 87% of counties in New York -- 54 of 62 coun-
ties, including all of the state's most populous counties -- had a high
rate of transmission and all of the other eight counties had a substan-
tial rate of transmission. No county in New York had a "moderate" or
"low" rate.

In April of 2021, the legislature passed and the governor signed into
law budget legislation directing the commissioner of the state office of
temporary and disability assistance to implement, as soon as practica-
ble, the COVID-19 Emergency Rental Assistance Program (CERAP). The
program will provide rental and utility assistance for households obli-
gated to pay rent on their primary residence who have experienced finan-
cial hardship due directly or indirectly to the COVID-19 pandemic. Such
assistance will cover up to twelve months of rent and utility arrears
and, for rent-burdened households, up to three additional months of
prospective rent. The budget authorized spending more than $2.4 billion
for CERAP, including federal relief funds and additional state funds.
The State budget also allocated $600 million for the Homeownership
Relief and Protection Program to provide assistance with mortgage, util-
ity, home energy, and other homeownership expenses during the pandemic.
To assist small businesses, the budget also included a historic $1
billion investment of state assistance to supplement federal aid,
providing $800 million for small business grants and $200 million in
small business tax credits. These programs and the federal and state
funds that support them will mitigate the adverse effects of the pandem-
ic on residential and commercial tenants and landlords.  Stabilizing
housing and small businesses, and minimizing court proceedings, continue
to be to the mutual benefit of all New Yorkers in that these steps will
help the state address the COVID-19 pandemic, protect public health, and
foster a full and equitable recovery. As such, an extension of approxi-
mately four months of the provisions of the COVID-19 Emergency Eviction
and Foreclosure Prevention Act of 2020 and the COVID-19 Emergency
Protect our Small Businesses Act of 2021 are necessary to protect the
public health, safety, and general welfare of the people of the state of
New York.

 
LEGISLATIVE HISTORY:

This is a new bill. It amends the effective dates of Chapter 381 of the
Laws of 2020 and Chapter 73 of the Laws of 2021.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

No direct, additional costs.

 
EFFECTIVE DATE:
This act shall take effect immediately and shall be deemed to have been
in full force and effect on May 1, 2021; provided, however, that the
amendments to parts A and B of chapter 381 of the laws of 2020 made by
this act shall not affect the expiration of such parts and shall be
repealed therewith; and provided further, that the amendments to parts A
and B of chapter 73 of the laws of 2021 made by this act shall not
affect the expiration of such parts and shall be deemed to expire there-
with."

MORE ON "BAD NEIGHBORS" - WHAT TO DO WHEN THEY SMOKE IN THEIR APARTMENT

On August 28, 2017, New York City Mayor Bill De Blasio signed Local Law 147,1 which went into effect on August 28, 2018. Local Law 147 amended that section of the Administrative Code of the City of New York (“NYC Administrative Code”) known as The Smoke Free Air Act (SFAA) to require that all class A multiple dwellings—i.e., buildings with three or more residential dwelling units—adopt a written smoking policy for the building that is disclosed to all residents and incorporated into all leases, purchase agreements, and building governing documents. Local Law 147 does not dictate the contents of a building’s smoking policy. See § 17-506.1 Obligation of owners of class A multiple dwellings to adopt and disclose a smoking policy.

And since secondhand smoke in your home can be a difficult problem to live with, the following has been posted by the NYC Department of Health and Mental Hygiene;

See When Secondhand Smoke Enters Your Home: Frequently Asked Questions (FAQ)