BRINGING AN ACTION ANONYMOUSLY IN FEDERAL COURT

 

Doe v. FREYDIN, Dist. Court, SD New York 2021:

"NAOMI REICE BUCHWALD, District Judge.

Plaintiff Jane Doe brings this action against her former employers, Arthur Freydin, his wife Sarah McLoughlin, and their companies Basic Creative, LLC and Tandem Marketing, Inc. (collectively, "defendants"), asserting various claims under New York State and City law for alleged sexual assault, sexual harassment, and surreptitious recording. Before the Court is plaintiff's motion to proceed anonymously under the pseudonym Jane Doe and for a protective order mandating that defendants keep plaintiff's identity confidential. For the following reasons, plaintiff's motion is denied.

I. BACKGROUND

Plaintiff is a recent college graduate who began working for defendants in February 2021, first as a babysitter for McLoughlin and shortly thereafter as an assistant for Freydin at Basic Creative, LLC and Tandem Marketing, Inc., entities owned and operated by Freydin and McLoughlin. Compl. ¶¶ 38-39 (ECF No. 7). Plaintiff alleges that as a condition of her employment, defendants required plaintiff to live in their apartment 4-to-5 nights per week and that plaintiff began doing so on or around August 28, 2021. Id. ¶ 40.

Plaintiff's claims against defendants center on the following allegations. First, plaintiff alleges that while she was working as an assistant, Freydin required plaintiff to pose for photographs in a state of undress while Freydin applied kinesiology tape to her neck and back, purportedly to demonstrate the application of the tape as part of the company's marketing efforts. Compl. ¶¶ 42-43. Second, plaintiff alleges that Freydin and McLoughlin placed hidden cameras in the bedroom and bathroom designated for her use when she was living at their residence and secretly recorded her. Id. ¶¶ 46-48. Plaintiff also alleges that defendants sexually harassed her and subjected her to a controlling work environment. Id. ¶¶ 44-45, 88.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 10(a), which requires that the title of a complaint name all the parties to a litigation, "serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly." Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 188-89 (2d Cir. 2008). Nonetheless, in limited circumstances, courts may grant an exception to this rule and allow a plaintiff to proceed under a pseudonym when the plaintiff's "interest in anonymity" outweighs "both the public interest in disclosure and any prejudice to the defendant." Id. at 189. In Sealed Plaintiff, the Second Circuit articulated a non-exhaustive list of ten factors for courts to consider when conducting this balancing test. Id.^[1] However, the district court need not "list each of the factors or use any particular formulation as long as it is clear that the court balanced the interests at stake in reaching its conclusion." Id. at 191 n.4.

III. DISCUSSION

Plaintiff argues that the first factor weighs in her favor because her claims involve "sexual assault, sexual harassment and unlawful, surreptitious recording of Plaintiff in areas demanding the utmost privacy — the bedroom and bathroom[,]" Pl's Mem. at 5 (ECF No. 10), and thus are "highly sensitive and of a personal nature." Sealed Plaintiff, 537 F.3d at 190. "[W]hile this factor supports granting Plaintiff's motion . . . the nature of Plaintiff's allegations alone does not suffice to permit her to proceed anonymously." Doe v. Gong Xi Fa Cai, Inc., No. 19 Civ. 2678 (RA), 2019 WL 3034793, at *1 (S.D.N.Y. July 10, 2019); see also Doe v. Skyline Automobiles Inc., 375 F. Supp. 3d 401, 406 (S.D.N.Y. 2019) (concluding the first Sealed Plaintiff factor is not dispositive). Indeed, courts in this District have denied motions to proceed anonymously in numerous cases involving allegations of sexual harassment and sexual assault. See, e.g., Rapp v. Fowler, No. 20 Civ. 9586 (LAK), 2021 WL 1738349, at *1 (S.D.N.Y. May 3, 2021) (denying motion to proceed anonymously in case involving statutory rape); Doe v. Townes, No. 19 Civ. 8034 (ALC) (OTW), 2020 WL 2395159, at *1 (S.D.N.Y. May 12, 2020) (denying same motion in case involving sexual assault); Doe v. Weinstein, 484 F. Supp. 3d 90, 98 (S.D.N.Y. 2020) (same); Skyline Automobiles, 375 F. Supp. 3d at 404 (denying same motion in case where plaintiff was "drugged and brutally raped").

Although plaintiff argues otherwise, the second and third factors, which consider the risk of harm to plaintiff if her identity is disclosed, do not favor her.^[2] To start, plaintiff argues that there is "great risk" of defendants retaliating against her by, for example, providing negative references to her prospective employers, and that such retaliation would deter potential witnesses from coming forward. Pl's Mem. at 5-6. This argument has no purchase where, as here, the defendants already know the plaintiff's identity. See Doe v. United States, No. 16 Civ. 7256 (JGK), 2017 WL 2389701, at *3 (S.D.N.Y. June 1, 2017) (explaining that allowing plaintiff to proceed anonymously "would do nothing to protect him" from retaliation since defendant knows plaintiff's identity) (citations omitted).

In this regard, to justify the exceptional relief of proceeding anonymously, plaintiff must establish with sufficient specificity the incremental injury that would result from disclosure of her identity. See Gong Xi Fa Cai, 2019 WL 3034793, at *2 (finding anonymity was not warranted "absent more direct evidence linking disclosure of [plaintiff's] name to a specific physical or mental injury"); Fowler, 2021 WL 1738349, at *5 (explaining that at issue on a motion to proceed anonymously is whether public disclosure would cause unique harm above and beyond any harm caused by the underlying events); see also Skyline Automobiles, 375 F. Supp. 3d at 406 ("Courts in this District have held that speculative claims of physical or mental harms are insufficient to bolster a request for anonymity.") (citation omitted); Abdel-Razeq v. Alvarez & Marsal, Inc., No. 14 Civ. 5601 (HBP), 2015 WL 7017431, at *3 (S.D.N.Y. Nov. 12, 2015) ("[T]he potential for embarrassment or public humiliation does not, without more, justify a request for anonymity.").

The single case plaintiff cites in support of her claim of psychological injury, Doe v. Smith, cuts against plaintiff, who, unlike the plaintiff in Smith, has not submitted any corroborating medical testimony. See 105 F. Supp. 2d 40, 43-44 (E.D.N.Y. 1999). In Smith, the court concluded that the plaintiff satisfied her burden of demonstrating harm only after she submitted "specific evidence predicting that revelation of her identity will likely cause psychological and emotional pain so intense that it would threaten her stability, her safety, and even her life." Id. (citing affidavit submitted by plaintiff's doctor); see also Doe No. 2. v. Kolko, 242 F.R.D. 193, 196 (E.D.N.Y. 2006) (concluding plaintiff's submissions, which included psychiatrist's declaration, "are sufficiently particularized and specific to establish a serious risk of harm to plaintiff's mental health"). As such, plaintiff's bald assertion that disclosure of her identity would subject her to "further mental harm, harassment, ridicule and personal embarrassment," Doe Aff. ¶ 4 (ECF No. 9 Ex. 1), supported only by her own affidavit, is insufficient.

Furthermore, it is not lost on the Court that plaintiff has chosen to inflict upon others the precise harm she now seeks to avoid: "having her name publicly tied to [defendants'] heinous acts." Pl's Mem. at 9-10. Specifically, plaintiff's Complaint needlessly exposes identifying information about numerous non-parties, including defendants' ten-year-old son and his grandmother, another family member, and an ex-colleague, in total disregard of their privacy interests. See, e.g., Compl. ¶¶ 39, 50, Ex. A.

Short of total anonymity, "there are [] alternative mechanisms for protecting the confidentiality of the plaintiff," Sealed Plaintiff, 537 F.3d at 190 (tenth factor), that can mitigate the potential harms of disclosure, such as "sealing and redacting certain documents containing sensitive information. . . ." Gong Xi Fa Cai, 2019 WL 3034793, at *3 (internal quotation marks, citations, and alteration omitted). Plaintiff thus fails to establish that disclosure of her identity presents a severe risk of harm.

"In considering the sixth factor," which evaluates the prejudice to defendants absent disclosure, "courts have examined difficulties in conducting discovery, the reputational damage to defendants, and the fundamental fairness of proceeding anonymously." Fowler, 2021 WL 1738349, at *6 (internal quotation marks and citations omitted). Although defendants know who plaintiff is, concealment of plaintiff's identity from the public can still hamper defendants' ability to conduct discovery. See id. at *7. In addition, plaintiff levies serious, reputation-threatening accusations against defendants that have already garnered significant media attention.^[3] "[C]ourts have found that defending against such allegations publicly, while a plaintiff is permitted to make her `accusations from behind a cloak of anonymity,' is prejudicial." Gong Xi Fa Cai, 2019 WL 3034793, at *2 (quoting Doe v. Shakur, 164 F.R.D. 359, 361 (S.D.N.Y. 1996)). As such, the sixth factor also weighs against plaintiff.^[4]

With respect to the seventh factor, which asks whether plaintiff's identity has thus far been kept confidential, plaintiff asserts that although there has been press coverage about her case, she has been identified only as Jane Doe and remains anonymous to the general public. Pl's Mem. at 7. Assuming, arguendo, that plaintiff's representation is accurate, this factor weighs in her favor even though defendants know who she is. See Gong Xi Fa Cai, 2019 WL 3034793, at *2 (finding seventh factor favors plaintiff where only defendants knew plaintiff's identity). Ultimately, however, the seventh factor is not significant enough to tip the scales. See Weinstein, 484 F. Supp. 3d at 97.

By contrast, factors eight and nine, which consider the public interests at stake, strongly weigh against permitting plaintiff to https://nypost.com/2021/10/11/married-nyc-businessman-secretly-recorded-live-in-assistant-in-bathroom-lawsuit-claims/. proceed anonymously. Plaintiff argues, without support, that the issues in this case are legal in nature, such that "there is an atypically weak public interest in knowing litigants' identities." Sealed Plaintiff, 537 F.3d at 190 (ninth factor). To the contrary, this is precisely the type of case involving "particular actions and incidents," where open proceedings would "benefit the public as well as the parties and also serve the judicial interest in accurate fact-finding and fair adjudication." Weinstein, 484 F. Supp. 3d at 97-98 (internal quotation marks and citation omitted). Indeed, in cases such as this one, "[w]hen the allegations involve workplace harassment, courts more commonly find that the public interest counsels against anonymity." Gong Xi Fa Cai, 2019 WL 3034793, at *2. Finally, as this court explained in Fowler:

"Though . . . the public generally has an interest in protecting those who make sexual assault allegations so that they are not deterred from vindicating their rights, it does not follow that the public has an interest in maintaining the anonymity of every person who alleges sexual assault or other misconduct of a highly personal nature."

2021 WL 1738349, at *8 (emphasis in original).

Plaintiff seeks to rely on New York Civil Rights Law § 50-b to bolster her argument that the public interest disfavors disclosure. Pl's Mem. at 8. New York Civil Rights Law § 50-b provides that "[t]he identity of any victim of a sex offense as defined [in the relevant statutes] . . . shall be confidential." However, plaintiff provides no authority supporting the application of this state law in a federal case. In any event, it is far from clear that plaintiff's allegations rise to the level of a "sex offense" such that she would be entitled to relief under § 50-b.^[5]

IV. CONCLUSION

As the foregoing demonstrates, plaintiff has not met her burden of demonstrating that her "interest in anonymity" outweighs the prejudice to defendants and "the customary and constitutionally-embedded presumption of openness in judicial proceedings." Sealed Plaintiff, 537 F.3d at 189 (quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685 (11th Cir. 2001)). Accordingly, plaintiff's motion to proceed anonymously and for a protective order mandating that defendants keep plaintiff's identity confidential is denied. Given the sensitivity of the allegations at issue, the Court stays this Order for seven days to enable plaintiff and her counsel to consider this ruling.

SO ORDERED.

[1] The Sealed Plaintiff factors are: "(1) whether the litigation involves matters that are highly sensitive and of a personal nature; (2) whether identification poses a risk of retaliatory physical or mental harm to the . . . party seeking to proceed anonymously . . .; (3) whether identification presents other harms and the likely severity of those harms . . .; (4) whether the plaintiff is particularly vulnerable to the possible harms of disclosure . . . particularly in light of [her] age; (5) whether the suit is challenging the actions of the government or that of private parties; (6) whether the defendant is prejudiced by allowing the plaintiff to press [her] claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court; (7) whether the plaintiff's identity has thus far been kept confidential; (8) whether the public's interest in the litigation is furthered by requiring the plaintiff to disclose [her] identity; (9) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants' identities; and (10) whether there are any alternative mechanisms for protecting the confidentiality of the plaintiff. . . ." 537 F.3d at 189-90(internal quotation marks and citations omitted).

[2] The related fourth factor does not weigh in plaintiff's favor, either. As an adult, plaintiff cannot, and does not, contend that she is "particularly vulnerable to the possible harms of disclosure . . . in light of [her] age." Sealed Plaintiff, 537 F.3d at 190.

[3] See, e.g., Rebecca Rosenberg, "Married NYC businessman secretly recorded live-in assistant in bathroom, lawsuit claims," N.Y. Post (Oct. 11, 2021),

[4] Plaintiff does not address the related fifth factor, which distinguishes between suits against private parties and suits against the government. Courts are more reluctant to permit anonymity where, as here, a suit involves private individuals, because allegations of misconduct "`may cause damage to their good names and reputations,' among other things." Skyline Automobiles, 375 F. Supp. 3d at 406 (quoting North Jersey Media Group, Inc. v. Doe Nos. 1-5, No. 12 Civ. 6152 (VM) (KNF), 2012 WL 5899331, at *7 (S.D.N.Y. Nov. 26, 2012)).

[5] Since all of plaintiff's claims are brought under New York State and New York City statutes and common law, there would appear to be no barrier to plaintiff discontinuing this lawsuit and re-filing in New York state court in a direct effort to rely on § 50-b, should plaintiff disagree with this Court's reading of the provision."

CHILD SUPPORT: THE CONSTRUCTIVE EMANCIPATION OF A COLLEGE STUDENT

Matter of Jenulis v. Ting; Date filed: 2021-09-07; Court: Family Court, Suffolk; Judge: Support Magistrate Darlene Jorif-Mangane; Case Number: F-01252-21/21A&B:

"COMBINED FINDINGS OF FACT Darlene Jorif-Mangane, being the Support Magistrate before whom the issues of support in the above-entitled proceeding were assigned for determination, makes the following findings of fact: Arlene Ting, Petitioner, filed a petition on February 5, 2021 and Stephen Jenulis, Respondent, filed a petition on March 16, 202, both seeking to modify a Judgment of Divorce dated June 20, 2016 and entered on July 1, 2016 which provided for the support of the following children:

Name Date of Birth

Allison Jenulis      June 4, 1999

Kyle Jenulis  August 16, 2000

Arlene Ting and Stephen Jenulis were married on September 5, 1998, and were divorced on June 20, 2016. The following child resides with Arlene Ting: Kyle Jenulis. Both parties appeared with counsel and the court conducted a hearing. The court received the following evidence on the consent of both parties:

Court Exhibit 1     Judgment of Divorce dated June 20, 2016 and entered on July 1, 2016 and a Stipulation of Settlement dated September 17, 2015.

Court Exhibit Arlene Ting’s financial disclosure affidavit and 2020 income tax return.

Court Exhibit 3     Stephen Jenulis’ financial disclosure affidavit, 2020 income tax return and pay stub.

Petitioner submitted copies of text messages between Respondent and Kyle as Petitioner’s Exhibit 2.

Petitioner testified that Respondent is her ex-husband and that the parties were divorced in 2016. She stated that they have 2 children, Allison and Kyle. Petitioner reported that Allison was in her last semester of college at SUNY Stony Brook and would graduate in May of 2021. She stated that Allison will turn 22 in June of 2021. Petitioner testified that Allison majored in chemistry and chemical engineering and has attended college continuously for 4 years. She stated that Allison is taking 2 classes for a total of 7 credits in her final semester because she took classes in the summer of 2020 for a total of 6 credits. Petitioner acknowledged that Allison did not attend college on a full time basis for the Spring 2021 semester.

Petitioner testified that the child Kyle is attending Suffolk Community College on a full-time basis. She stated that Kyle graduated from high school in 2018 and then attended SUNY Albany for 1.5 years through the Fall of 2019. Petitioner testified that Kyle was dismissed from SUNY Albany for academic reasons and he then enrolled at Suffolk Community College for the Spring of 2020. She stated that Kyle took 11 credits for the Fall of 2020 and 12 credits for the Spring of 2020. Petitioner reported that Kyle graduated with an Associates degree at the end of the Spring 2021 semester.

Petitioner testified that at the time that the parties signed the Stipulation of Settlement, they were sharing parenting time 50/50 with the children living with the parties full time on alternating weeks. She stated that the parties’ Stipulation of Settlement provided that neither party would pay child support to the other. The parties agreed that Petitioner would be responsible for Allison’s expenses and Respondent would be responsible for Kyle’s expenses. It was further agreed that the parties would share Kyle’s expenses when Allison was emancipated. Petitioner acknowledged that one of the definitions of emancipation in the Stipulation of Settlement is reaching the age of 21 years or 22 years if the child is attending college on a full-time and continuous basis in a program leading to a four year degree.

Petitioner reported that Allison went to college and lived on campus so the parties were sharing parenting time on a 50/50 basis for Kyle. She stated that Alliston stopped living on campus in early December of 2020 and began living with Petitioner on a full time basis in January of 2021. She stated that Kyle lived on campus when he attended SUNY Albany but that the parties would share parenting time on a 50/50 basis during school breaks except for the summer of 2020. Petitioner testified that Kyle resided with her on a full time basis during the summer of 2019 before returning to SUNY Albany. She stated that as of January of 2020 Kyle has been living with her on a full time basis.

Petitioner testified that the children follow the house rules and that they go to school, to work and to the gym. She stated that she pays for all of Allison’s expenses including, food, clothing, toiletries, hair cuts, car insurance and cell phone. She reported that she pays for all of Kyle’s expenses except for his cell phone. Petitioner testified that Respondent carries the health, dental and vision insurance for the children and that she is responsible for all of the co-pays. She reported that Respondent has not contributed to the children’s living expenses except for Kyle’s cell phone. Petitioner testified that she has asked Respondent to contribute to the children’s living expenses. She stated that Respondent contributes his 40 percent share of the children’s college expenses. Petitioner testified that both children have cars and work part-time but she was unaware of how much they earn. She reported that both children are in therapy. Allison has been attending for 2 years and Kyle just started approximately 1.5 months ago. Petitioner testified that she pays the co-payments for both children. She stated that she and Respondent recommended and encouraged the children to participate in therapy and that Respondent made participation a rule for his household.

Petitioner testified that she is employed as a chemist at Estee Lauder and earned $131,000.00 in 2020.

Petitioner testified that she does not have a relationship with Respondent and that they only communicate via email. She stated that she has encouraged the relationship between Respondent and the children since the parties divorced. Petitioner reported that Kyle and Respondent had arguments in the summer of 2019 and that she encouraged them to work things out. She stated that she has conversations with Kyle in which she encourages him to see Respondent and respond to Respondent’s text messages. She reported that Kyle has seen Respondent at holiday events such as going to his grandmother’s home on Easter. Petitioner testified that Allison also encourages Kyle to spend time with Respondent

Allison testified that she is 22 years old. She stated that she graduated from SUNY Stony Brook in May of 2021 with a degree in chemistry and chemical engineering. She reported that she took 2 classes in the Spring of 2021 for a total of 7 credits. Allison testified that she informed Respondent that she was only taking 2 classes and that Respondent was fine with it. She stated that she took 2 classes in the summer of 2020 for a total of 6 credits because she needed those classes for her degree. She stated that those classes were not offered every semester. Allison acknowledged that 7 credits is not a full time course load.

Kyle testified that he was 20 years old on his first day of testimony. He stated that he just graduated with an associates degree from Suffolk Community College with a 3.4 grade point average. He reported that he attended University of Albany for 3 semesters but had to leave after he was academically disqualified because of his low grades. Kyle testified that he enrolled full time at Suffolk Community College in January of 2020. He stated that he was one credit below full time in the Fall of 2020 but returned to full time in the Spring of 2021. He stated that he dropped a class toward the end of the Fall 2020 semester because his grade was not good and he did not want it on his transcript. Kyle reported that he applied to Hofstra University, SUNY Old Westbury and Farmingdale State College to obtain a bachelor degree. Kyle testified that he was accepted by Farmingdale State College and will attend full time for the Fall of 2021 and major in business management. He testified that he is projected to graduate in the Spring of 2023.

Kyle testified that he has been living with Petitioner since he left University of Albany. He stated that prior to that he split his time between Petitioner’s and Respondent’s homes. Kyle reported that he speaks to Respondent “here and there”. He did not recall telling Respondent that he did not want to speak to Respondent.

Kyle testified that he wanted to join a fraternity when he was at University of Albany and that Respondent disagreed with him joining. Kyle stated that he joined anyway. He reported that he lived with fraternity brothers while he was at school. He testified that he visited the University of Albany after he left against his father’s wishes. He stated that he went back because he was still paying rent and that he needed to get his belongings in case he found someone to take over the lease. Kyle reported that Respondent helped him to speak to a counselor at Suffolk Community College to get enrolled. He stated that he told Respondent about his Spring 2021 grades.

Kyle testified that he works at a restaurant 25 to 30 hours per week when he is not in school and approximately 12 hours per week when he is attending school.

Kyle testified that he has not spent time alone with his father in the past year. He stated that he saw Respondent at his grandmother’s home for Easter and his grandmother’s birthday.

Kyle testified that Respondent last gave him cash years ago. He stated that Respondent pays his phone bill and part of his car insurance. Kyle reported that Respondent attended Allison’s graduation. He stated that he informed Respondent that he graduated from Suffolk Community College but that Respondent did not offer to celebrate with him and did not give him a gift. Kyle testified that his step-brother, Justin, had a graduation celebration that Allison was invited to but not him. He stated that it did not feel good to not be invited but he understood that Justin “might have had some feelings about me not coming”. Kyle reported that Respondent encouraged him to apply for a summer job at Adventure Park in 2020 and that he got the job. He stated that Respondent planned a family gathering that he thought was a dinner but it was a lunch and he was unable to attend because he had to work. Kyle testified that Respondent told him in a text that he wanted to emancipate Kyle approximately 1 year ago. He stated that he found out that Respondent had filed a petition to emancipate him in February or March of this year when Petitioner showed him the petition. He reported that he reviewed the petition and the documents submitted to the court because Petitioner informed him that he might have to testify in court. He stated that Petitioner did not share her petition for child support. Kyle testified that is important to him for Respondent to be proud of me but that Respondent has not shown any support for me in a while. He stated that he would love to have a relationship with Respondent but that it is confusing to have Respondent see him at family gatherings where Respondent wants to talk to him and hug him but also wants to emancipate him.

Kyle acknowledged that Respondent has sent him over 400 communications over the past 18 months. He stated that he has not invited Respondent to spend time with him or volunteered to spend time with Respondent. He testified that he has not given Respondent a birthday or Father’s Day card for the past 2 to 3 years. Kyle testified that Respondent has never gone months without contacting him. He reported that most of Respondent’s texts are invitations to family dinners and activities.

Kyle testified that he does not pay rent to Petitioner. He stated that his family pays for tuition. He reported that he pays for his own gas, personal luxuries, clothes and haircuts. He stated that Petitioner likes to help him pay for his work clothes and haircuts. Kyle stated that he is 21 years old and is an adult.

Respondent testified that he filed the instant petition to have Kyle deemed to be constructively emancipated. He stated that Kyle was 14 years old when the parties got divorced. Respondent reported that he was a part of the process that resulted in Kyle attending University of Albany and that he was supportive of Kyle attending. He stated that Kyle wanted to travel to Canada with friends during his freshman year. Respondent stated that he had reservations about the timing of the trips which was 2 weeks before finals. He also had concerns about the cost and the different drinking laws in Canada. Respondent testified that he did not give Kyle permission to go on the trip but Petitioner allowed Kyle to go and helped him pay for the trip. Respondent testified that in the Spring of 2019 he had reservations about Kyle’s participation in an unsanctioned fraternity that was not approved by the university. He stated that Petitioner was concerned about how his participation would impact his grades but she “did not push back on his decision making”. He stated that he conveyed his reservations to Kyle but that Kyle continued to participate. He reported that Kyle texted him on Thanksgiving vacation to warn Respondent that he had bruises that he got while on campus and the severity of the bruises. Respondent said that he observed Kyle with bruises on his face, hands and elbows. Respondent testified that Kyle was academically dismissed at the end of the Fall 2019 semester. Respondent testified that he supported Kyle’s decision to enroll in Suffolk County Community college and the he assisted Kyle in making a schedule with an advisor.

Respondent testified that he objected to Kyle drinking and using drugs during his freshman year and when he returned home. He stated that his household rules include doing chores, having sit down dinners, working, not coming home very late and no vaping in the home. When Kyle returned home, Respondent stated that he informed Petitioner that Kyle was vaping and that he had found a vaping device in Kyle’s room. Respondent testified that Petitioner informed him that she had been aware that Kyle was vaping since January of 2019. He reported that Petitioner had never previously informed him that she was aware that Kyle was vaping. Respondent reported that he suspected that Kyle was drinking in 2019 because Kyle would take alcohol at family parties or come home looking like he was under the influence. He stated that there were times when he was concerned that Kyle was asking for money for gas and using it to purchase alcohol.

Respondent testified that Kyle wanted to go to University of Albany on the Friday before he was supposed to start classes at Suffolk Community College in 2020. He stated that he was concerned that Kyle was going backward when he was supposed to be starting over at Suffolk Community College. Respondent reported that he advised Petitioner that he was concerned about Kyle’s mental health and that Petitioner felt that it would make matters worse if they stopped Kyle from going to visit University of Albany. He stated that Petitioner allowed Kyle to go on the visit.

Respondent testified that another household rule was that Kyle would participate in therapy. He stated that he asked that Kyle see a therapist when he returned from Albany and while he was attending Suffolk Community College. He reported that he discussed therapy with Petitioner via email and she agreed that therapy would be a good idea. He testified that Kyle did not start attending therapy until a couple of weeks before the trial began.

Respondent testified that he asked Kyle to follow a parenting scheduled when he was home from school and asked Petitioner to have Kyle follow the schedule. He reported that Kyle has refused to follow the parenting schedule. Respondent testified that he invited Kyle to many family events and dinners at his home but Kyle would either decline or not respond at all. He stated that he had scheduled parenting time with Allison but Kyle would not make a schedule. Respondent reported that both children drive and can get to a parent’s home when they want to. He stated that he attended Allison’s graduation and invited Allison and Kyle to a dinner celebration but Kyle declined. He reported that he did not attend Kyle’s graduation from Suffolk Community College because he did not find out about the graduation until the trial. Respondent acknowledged that his step-son had a graduation celebration that Allison was invited to but not Kyle. He stated that Kyle informed him via text that he would be attending Farmingdale State College. Respondent testified that he has seen Kyle 3 times in the last year. Once was at his father’s funeral in August of 2020. The second time was in January of this year when Kyle came to Respondent’s home to pick up his ski clothes and Christmas gifts. The third time was at Easter of this year at his mother’s home but Kyle did not speak to him.

Respondent testified that he has always been there for Kyle. Respondent testified that he is proud that Kyle is getting back on track, that he obtained academic scholarships, that he works and that he interacts eloquently with peers and adults. He stated that Kyle should be emancipated because he wants to make his own decision without input from Respondent and without any parental intervention.

The parties’ Stipulation of Settlement provides that there would not be an order of support based on the fact that the parties’ would equally share custody of the two children. The parties further agreed that Petitioner would be responsible for Allison’s expenses and Respondent would be responsible for Kyle’s expenses. Upon Allison’s emancipation, the parties would equally share Kyle’s expenses.

ALLISON

Petitioner seeks an order of support for the child Allison on the grounds that Allison has been residing with Petitioner on a full-time basis since December of 2020. Article XXIX (Termination Events) of the Stipulation of Settlement provides that any child support obligation established under the agreement shall continue with respect to each child until a child attains the age of 21 years, or 22 years if attending college on a full time basis.

In Ayers v. Ayers, 92 A.D.3d 623, 624-625 (App. Div. 2d Dept. 2012) the court held that

a stipulation of settlement entered into by parties to a divorce proceeding constitutes a contract between them subject to the principles of contract interpretation (see Rainbow v. Swisher, 72 N.Y.2d 106 (1988); De Luca v. De Luca, 300 A.D.2d 342 (App.Div. 2d Dept. 2002); Girardin v. Girardin, 281 A.D.2d 457(App. Div. 2d Dept. 2001). Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used (see Slatt v. Slatt, 64 N.Y.2d 966 (1985); see also De Luca v. De Luca, 300 A.D.2d at 342). A court may not write into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms, and it may not construe the language in such a way as would distort the apparent meaning (see Cohen-Davidson v. Davidson, 291 A.D.2d 474, (App. Div. 2d Dept. 2002).

The child Allison turned 21 years of age on June 4, 2020. Petitioner filed the instant petition on February 5, 2021. At that time, Allison was attending SUNY Stony Brook for the Spring 2021 semester and carrying 7 credits. Both Petitioner and Allison acknowledged that carrying 7 credits is not a full time course load. The Stipulation of Settlement is clear that any support obligation terminates after 21 years of age if a child is not attending college on a full time basis. Given that Allison had turned 21 years of age and was no longer attending college on a full time basis, Respondent’s support obligation was terminated and Petitioner is not entitled to an order of support.

KYLE

Petitioner seeks an order of support for the child Kyle on the grounds that he has resided with her on a full-time basis since December of 2019. Petitioner filed the instant petition on February 5, 2021. Respondent filed a petition on March 16, 2021seeking to have the child Kyle declared emancipated based on Kyle’s refusal to maintain a relationship with Respondent.

Family Court Act §413(1)(a) mandates that a parent is obligated to support a child until the child is 21 years of age unless the child is emancipated prior to reaching that age. Emancipation events include joining the military, getting married, becoming self-supporting and economically independent, and abandoning the parent. Matter of Roe v. Doe, 29 N.Y.2d 188 (1971); Matter of Parker v. Stage, 43 N.Y.2d 128 (1977); Matter of Thomas B. v. Lydia D., 69 A.D.3d 24 (App. Div. 1st Dept. 2009); Matter of Donnelly v. Donnelly, 14 A.D.3d 811 ( App. Div. 3d Dept. 2005); Matter of Columbia County Dept. of Social Servs. v. Richard O., 262 A.D. 3d 913 App. Div. 3d Dept. 1999. Upon the child’s emancipation, the support obligation is suspended or terminated. Matter of Commissioner of Social Servs. v. Jones-Gamble, 227 AD2d 618 (App. Div. 2d Dept.1996). In addition, the courts have held that a child of employable age will be deemed to be emancipated when s/he abandons the parent’s home, without the parent’s consent, for the purpose of avoiding parental control. Under these circumstances the child forfeits the right to support. Matter Roe v. Doe 29 N.Y.2d 188 (1971); Parker v. Stage 43 N.Y.2d 128 (1977); Alice C. v. Bernard G.C. 193 A.D.2d 97 (App. Div. 2d Dept. 1993); Bailey v. Bailey 15 A.D.3d 577 (App. Div. 2d Dept. 2005)

In Matter of Jurgielewicz v. Johnston, 114 A.D.3d 945 (App. Div. 2d Dept. 2014), the court held that [u]nder the doctrine of constructive emancipation, a child of employable age who actively abandons [***2] the noncustodial parent by refusing all contact and visitation may forfeit any entitlement to support. A child’s mere reluctance to see a parent is not abandonment” (Matter of Barlow v. Barlow, 112 AD3d at 818; see Matter of Grucci v. Villanti, 108 AD3d 626, 626-627, 969 NYS2d 493 [2013]; Schulman v. Schulman, 101 AD3d at 1099; Matter of Glen L.S. v. Deborah A.S., 89 AD3d at 857; Matter of Turnow v. Stabile, 84 AD3d 1385, 1386, 924 NYS2d 292 [2011]). ” ‘[W]here it is the parent who causes a breakdown in communication with his [or her] child, or has made no serious effort to contact the child and exercise his [or her] visitation rights, the child will not be deemed to have abandoned the parent’ ” (Matter of Glen L.S. v. Deborah A.S., 89 AD3d at 857, quoting Matter of Alice C. v. Bernard G.C., 193 AD2d 97, 109, 602 NYS2d 623 [1993]; see Matter of Barlow v. Barlow, 112 AD3d 817, 976 NYS2d 573 [2013]; Schulman v. Schulman, 101 AD3d at 1099; Matter of Dewitt v. Giampietro, 66 AD3d 773, 774, [**735] 887 NYS2d 210 [2009]). Such a breakdown in communication between a parent and a child may result from the parent’s “malfeasance, misconduct, neglect, or abuse” (Matter of Barlow v. Barlow, 112 AD3d at 818, citing Matter of Wiegert v. Wiegert, 267 AD2d 620, 699 NYS2d 597 [1999]). Where a child justifiably refuses to continue a relationship with [***3] a parent due to such parental conduct, the child will not be deemed to be self-emancipated (see Matter of Barlow v. Barlow, 112 AD3d 817, 976 NYS2d 573 [2013]; Labanowski v. Labanowski, 49 AD3d 1051, 857 NYS2d 737 [2008]). “The burden of proof as to emancipation is on the party asserting it” (Schneider v. Schneider, 116 AD2d 714, 715, 498 NYS2d 23 [1986]; see Matter [****2] of [*946] Barlow v. Barlow, 112 AD3d 817, 976 NYS2d 573 [2013]; Schulman v. Schulman, 101 AD3d at 1099; Matter of Glen L.S. v. Deborah A.S., 89 AD3d at 857; Matter of Turnow v. Stabile, 84 AD3d at 1386).

In Matter of Roe v. Dow, 29 N.Y.2d 188 (1971) the 20-year-old daughter disobeyed her father by taking up residence with a female classmate in an off-campus apartment. Upon learning of his daughter’s actions, the father cut off all further support and instructed her to return to New York. Ignoring her father’s demands, the daughter sold her automobile, and elected to finish out the school year, living off the proceeds realized from the sale. Upon her return to New York, she chose to reside with the parents of a classmate on Long Island. Under these circumstances, the Court of Appeals concluded that the daughter was no longer entitled to support, holding that “where, as in the case at bar, a minor of employable age and in full possession of her faculties, voluntarily and without cause, abandons the parent’s home, against the will of the parent and for the purpose of avoiding parental control she forfeits her right to demand support.

Kyle was 20 years old when the instant petition was filed. He turned 21 years of age on August 16, 2021. It is clear that Kyle and Respondent have had a strained relationship since Kyle was dismissed from University of Albany. Both Petitioner and Respondent testified that Respondent disagreed with Kyle’s decision to join a fraternity and return to University of Albany for a visit after he was dismissed. Both Kyle and Respondent testified that Respondent helped Kyle secure admission to Suffolk County Community College. Thereafter, Respondent continued to try to have a relationship with Kyle by texting him and inviting him to family dinners and events. Respondent created a parenting schedule that Kyle did not adhere to. Both Kyle and Respondent testified that Kyle has not spent time with Respondent except for seeing him at events at other family member’s homes or events. Respondent testified that he has only seen Kyle in the last year at family events outside of his home and one time in January of 2021 when Kyle came to his home to pick up his ski equipment. Kyle did not inform Respondent that he was graduating from Suffolk Community College and did not invite Respondent to the graduation. Petitioner testified that she has encouraged Kyle to work on his relationship with Respondent.

Both Kyle and Respondent testified that Respondent told Kyle that he was emancipated approximately one year ago and the text messages in evidence substantiate that testimony. The court notes that Respondent’s statement regarding emancipation came after Respondent made numerous attempts to connect with Kyle that went ignored. The court also notes that it was not an appropriate response but it was an understandable response. The text messages also demonstrate that Respondent continued to reach out to Kyle and make arrangements to spend time together. Kyle continued to make himself unavailable to spend time with Respondent.

Kyle testified that he was accepted to Farmingdale State College during the pendency of this case and that he informed Respondent. He stated that he is enrolled full time. Petitioner did not submit any evidence to substantiate that Kyle is enrolled as a full time student.

Although Kyle has not refused all contact with Respondent, his contact with Respondent immediately prior to the filing of Petitioner’s petition and since the filing of Respondent’s petition has been minimal at best. Moreover, he has refused all meaningful visitation despite Respondent’s efforts.

In light of Kyle’s abandonment of his relationship with Respondent and the failure of Petitioner to submit evidence that Kyle is enrolled in college on a full time basis, the court finds the Kyle is emancipated and Petitioner is not entitled to an award of support.

Petitioner has not demonstrated sufficient change in circumstances to warrant the relief requested in that: both children are deemed emancipated as detailed above. Accordingly, the petition seeking an order of support for the 2 children is dismissed with prejudice.

Respondent has demonstrated sufficient change in circumstances to warrant the relief requested in that: both children are deemed emancipated and Respondent is not obligated to pay child support."

SUPPORT FOR DISABLED CHILD TO 26

On October 8, 2021, the governor  signed into law Assembly Bill A898B, Senate Bill S4467B which expands a parents’ duty to support a disabled adult child until the age of 26. Specifically, the legislation amended the Domestic Relations Law (“DRL”) by adding a new section, § 240-d and modified the Family Court Act by adding a new section, 413-b.

According to the Senate Bill:

"Currently, the legal obligation to pay child support in New York State ends when the child turns 21-years old: However, many individuals with lifelong disabilities may rely upon the care and support of their
parents well past the age of 21.

This bill would allow single parents to petition the courts for the continuation of child support if their child is severely and permanently mentally or physically disabled, and unable to live independently. This
legislation will provide an opportunity for single parents to seek support while housing and caring for a disabled child, and will ensure that these children have access to the resources needed for their care."

NEW RULES ON TIME BARRED DEBT COLLECTION AND MORE

According to The Consumer Financial Protection Bureau (CFPB), two final rules issued under the Fair Debt Collection Practices Act (FDCPA) will take effect as planned, on November 30, 2021. And one of them deals with the attempted collection of old debts which would be subject to the statute of limitations.

At the CFPB website (emphasis supplied):

"Two final rules under the FDCPA will take effect in November. The first rule, issued in October 2020, focuses on debt collection communications and clarifies the FDCPA’s prohibitions on harassment and abuse, false or misleading representations, and unfair practices by debt collectors when collecting consumer debt. The second rule, issued in December 2020, clarifies disclosures debt collectors must provide to consumers at the beginning of collection communications. The second rule also prohibits debt collectors from suing or threatening to sue consumers on time-barred debt. Additionally, the second rule requires debt collectors to take specific steps to disclose the existence of a debt to consumers before reporting information about the debt to a consumer reporting agency."

VETERANS DAY

The United States Congress adopted a resolution on June 4, 1926, requesting that President Calvin Coolidge issue annual proclamations calling for the observance of November 11 with appropriate ceremonies. A Congressional Act (52 Stat. 351; 5 U.S. Code, Sec. 87a) approved May 13, 1938, made November 11 in each year a legal holiday: "a day to be dedicated to the cause of world peace and to be thereafter celebrated and known as 'Armistice Day'".

RE-FORECLOSURE AND WILFUL NEGLECT

 

US BANK NA v. LOMUTO, 2021 NY Slip Op 5363 - NY: Appellate Div., 2nd Dept. 2021:

"In January 2009, the plaintiff commenced an action to foreclose a mortgage on certain real property in Stony Point (hereinafter the underlying foreclosure action), naming the mortgagor and owner, Robert S. Wilson, but not the property's co-owner, Amanda Lomuto, among the defendants. The plaintiff obtained a judgment of foreclosure and sale, which was affirmed by this Court (see U.S. Bank N.A. v Lomuto, 140 AD3d 852). During the pendency of the appeal in the underlying foreclosure action, Wilson died and Lomuto was substituted as a defendant in her capacity as a personal representative of Wilson's estate, in place of Wilson (see id.). Pursuant to the judgment of foreclosure and sale in the underlying foreclosure action, the property was sold at public auction to the plaintiff as the successful bidder.

Thereafter, the plaintiff commenced this action against Lomuto (hereinafter the defendant) to reforeclose the mortgage pursuant to RPAPL 1503 and 1523. The plaintiff moved for summary judgment on the amended complaint and pursuant to CPLR 3211(b) to dismiss the defendant's affirmative defenses. The defendant opposed the motion. By order dated December 5, 2017, the Supreme Court granted the plaintiff's motion and directed the defendant to give the plaintiff's attorney written notice of her desire and intent to redeem the property within 10 days from the mailing to her attorney of a copy of the order, and then to redeem the premises within 30 days thereafter. The defendant did not redeem, and now appeals from the order.

RPAPL 1311 requires the plaintiff in a mortgage foreclosure action to join, as a party defendant, any person "whose interest is claimed to be subject and subordinate to the plaintiff's lien." "The absence of a necessary party in a foreclosure action leaves that party's rights unaffected by the judgment and sale, and the foreclosure sale may be considered void as to the omitted party" (6820 Ridge Realty v Goldman, 263 AD2d 22, 26). "[I]n such cases, the purchaser of the foreclosed property has two potential remedies—the commencement of a strict foreclosure action pursuant to RPAPL 1352, or a reforeclosure action pursuant to RPAPL 1503" (id. at 26). "In contrast to RPAPL 1352, which governs strict foreclosure, RPAPL 1503 permits a reforeclosure action to be maintained even where[, as here,] an action against the defendant to foreclose the mortgage under which the foreclosure sale was held or to extinguish a right of redemption would be barred by the Statute of Limitations" (id. at 27).

To prevail in a reforeclosure action, the plaintiff must demonstrate that the defect in the original foreclosure action "was not due to fraud or wilful neglect of the plaintiff and that the defendant or the person under whom he claims was not actually prejudiced thereby" (RPAPL 1523[2] [emphasis added]).

Here, there is no dispute that the defect in the underlying foreclosure action was the plaintiff's omission of the defendant as a party, despite the plaintiff having ordered a full title search and mortgage foreclosure certificate (see HSBC Bank USA, N.A. v Guardian Preserv. LLC, 160 AD3d 1236, 1236-1237). Pursuant to the language of RPAPL 1523, in order to establish its entitlement to summary judgment, the plaintiff had the burden of demonstrating, prima facie, both that the defect in the underlying foreclosure action was not the result of fraud or the wilful neglect of the foreclosure plaintiff, and that the defect did not prejudice the defendant (see RPAPL 1523[1], [2]). To that end, the plaintiff submitted, inter alia, copies of the note and mortgage, executed on September 2, 1987, bearing the signature of Robert S. Wilson as the sole borrower/mortgagor, and the results of a title search conducted by Prime Title Search, LLC, certified as of November 10, 2008, naming Wilson as the sole mortgagor and holder of title to the property, and failing to reflect a quitclaim deed, executed in December 2001, transferring ownership of the property from Wilson to Wilson and the defendant. Approximately two months after the title search was performed, in January 2009, the plaintiff commenced the underlying foreclosure action, failing to join the defendant. "Under these facts, there is simply no reason why [the] plaintiff would willfully omit a necessary party and, viewing the evidence in the light most favorable to [the] defendant, [the] plaintiff demonstrated the absence of willful neglect as it reasonably relied on the [title search] that failed to uncover [the] quitclaim deed" (HSBC Bank USA, N.A. v Guardian Preserv. LLC, 160 AD3d at 1237).

In opposition, the defendant submitted an affidavit in which she attested, among other things, that there had been a prior action to foreclose the mortgage, entitled Federal Home Loan Mtge. Corp. v Wilson (hereinafter the prior foreclosure action), filed under Index No. 3724/06, in the Supreme Court, Rockland County, which was commenced in 2006, in which both she and Wilson were named among the defendants, and which was resolved when she and Wilson obtained a loan modification. However, when the plaintiff commenced the subsequent, underlying foreclosure action, in 2009, the plaintiff named only Wilson among the defendants, and not her, despite the fact that she was named as a defendant in the prior foreclosure action, that Wells Fargo Bank, N.A., doing business as America's Servicing Company (hereinafter ASC), remained the loan servicer, and that ASC was aware of her ownership interest in the property having reviewed her financial information and documentation for every loan modification application. As exhibits to her opposition, the defendant attached, inter alia, copies of the summons and complaint in the prior foreclosure action, in which she was named as a defendant along with Wilson. Contrary to the plaintiff's contention, the evidence of the prior foreclosure action in which the defendant was named as a party raised a triable issue of fact as to whether the plaintiff's failure to name her as a defendant in the underlying foreclosure action was the result of "wilful neglect" (RPAPL 1523[2]; see McWhite v I & I Realty Group LLC, 2019 NY Slip Op 31552[U] [Sup Ct, Kings County]). Accordingly, since the plaintiff was entitled to summary judgment only in the absence of triable issues of fact as to wilful neglect and prejudice (see RPAPL 1523[2]), the Supreme Court should have denied the plaintiff's motion for summary judgment on the amended complaint and pursuant to CPLR 3211(b) to dismiss the affirmative defenses, regardless of whether the defendant raised a triable issue of fact as to the issue of prejudice."

CAN YOU GET A DIVORCE WHEN YOU ARE ALSO MARRIED TO SOMEONE ELSE?

Well, you can get it annulled but still there will be equitable distribution. It will be interesting to see how this case plays out.

ER v. JR, 2021 NY Slip Op 50993 - Nassau Co.  Supreme Court October 21, 2021:

"The Defendant moves by Notice of Motion for an Order dismissing the Plaintiff's cause of action in its entirety, based upon documentary evidence and the failure to state a cause of action.

The Plaintiff ER (the "Wife") and the Defendant JR (the "Husband") (the "Parties") were married in a religious ceremony in Westbury, New York on February 27, 2016. During the marriage, the Parties resided with the Husband's parents at their home in Levittown, New York. There are no children of the marriage, and none are expected.

The Wife alleges that the Husband became physically and emotionally abusive after her first pregnancy resulted in miscarriage. She moved out of the marital residence in November of 2019. On May 3, 2021, she filed the instant action for divorce on the grounds of irretrievable breakdown of the relationship (DRL §170[7]). The Wife's Verified Complaint states claims for maintenance and equitable distribution of marital property, among other things (NYSCEF Doc. 1).

The Husband now moves to dismiss the action on the grounds that the marriage is void. He asserts that on May 17, 2015, he married an individual named YV in San Salvador. He asserts further that the marriage between him and YV was never terminated by way of divorce or annulment, and that he has spoken with her as recently as January of 2021, indicating that she is not deceased. Therefore, he argues, insofar as he was previously married and remained married at the time of his marriage to the Wife, the marriage to the Wife is void.

As proof of the foregoing, the Husband submits: (i) his Affidavit, attesting to the facts alleged (NYSCEF Doc. 6); (ii) the Apostille Certificate of Marriage from San Salvador, along with a certified translation (NYSCEF Doc. 9); (iii) the Apostille Birth Certificate of YV amended after marriage, along with a certified translation (NYSCEF Doc. 10); and (iv) the Apostille Certificate of Marriage from the United States, along with a certified translation (NYSCEF Doc 11).

According to the Husband, the above proof establishes that he was already married at the time of his marriage to the Wife, and that the latter marriage is void. Therefore, he argues, the Wife does not have a valid cause of action for divorce, and dismissal is warranted pursuant to CPLR §3211(a)(7). Morever, he argues, the documentary proof submitted in support of the motion is sufficient to warrant dismissal of the instant divorce action pursuant to CPLR §3211(a)(1).

The Wife opposes the motion on the grounds of insufficient proof. She contends that the Husband has failed to prove that he did not divorce YV or annul the marriage between them, or that YV is still alive. In the alternative, the Wife argues that even if the Parties' marriage is deemed void, she still is entitled to pursue her claims for maintenance and equitable distribution. The Wife asserts that she deserves both. The Husband defrauded her, by holding himself out as a person eligible to marry. She relied upon that in entering the marriage. Moreover, the Parties lived as a married couple for three years. They accumulated assets and liabilities together. They filed joint tax returns. They held themselves out as Husband and Wife to family and friends. Accordingly, the Wife argues, whether or not the marriage between the Parties is valid, the action should not be dismissed.

Dismissal pursuant to CPLR §3211(a)(1) lies when "a defense is founded upon documentary evidence." To prevail on a CPLR §3211(a)(1) motion, the moving party must show that "the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim." Fontanetta v Doe, 73 AD3d 78, 83 (2d Dept. 2010) (internal quotation omitted). The documentary evidence must utterly refute plaintiff's allegations. AG Capital Funding Partners, L.P. v State Street Bank and Trust Co., 5 NY3d 582, 591 (2005); Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 (2002).

On a motion to dismiss pursuant to CPLR §3211(a)(7), the court must give the pleadings a liberal construction, accept the facts as alleged in the complaint as true, and accord plaintiffs the benefit of every possible favorable inference. Chanko v American Broadcasting Cos. Inc., 27 NY3d 46 (2016); AG Capital Funding Partners, L.P. v State Street Bank and Trust Co., 5 NY3d 582, 591 (2005); Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 (2002). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus." EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 (2005). See also Vasomedical, Inc. v. Barron, 137 AD3d 778 [2d Dept. 2016]; Zellner v. Odyl, LLC, 117 AD3d 1040, 1041 [2d Dept. 2014]).

When the moving party submits evidentiary material in support of his or her motion, "the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one" Quiroz v Zottola, 96 AD3d 1035, 1037 (2d Dept. 2012) quoting Sokol v Leader, 74 AD3d 1180, 1181-1182 (2010). A motion to dismiss pursuant to CPLR §3211(a)(7) must be denied "unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it." Id.

The Court finds that the Husband is not entitled to dismissal of the action based upon the documentary proof (CPLR §3211[a][1]). The certified documents submitted as exhibits to the motion prove only that there was a prior marriage. To prove that the prior marriage remained in existence at the time of the marriage between the Parties, the Husband submits only his affidavit. It is well settled that affidavits are not documentary proof. See Fontanetta v Doe, 73 AD3d at 85. In the absence of proof that the prior marriage remained in existence at the time of the Parties' marriage, the Court finds that the documentary evidence does not resolve all factual issues as a matter of law, and conclusively dispose of the plaintiff's claim. Id., at 83.

Turning to the alternate basis for dismissal — i.e., failure to state a claim (CPLR §3211[a][7]), the Court is required to accept the facts alleged by the Wife as true and to accord the Wife the benefit of every favorable inference. Here, the Wife alleges that the Parties were married to each other on February 27, 2016. The Wife is entitled to an inference that the marriage was a valid one. Although the Husband presents compelling evidence of a prior marriage, the Husband's affidavit, standing alone, is insufficient to eliminate any issue of fact as to whether the prior marriage remained in existence at the time of the Parties' marriage. "[A]ffidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action." Sokol v Leader, 74 AD3d at 1182. Moreover, on a motion to dismiss pursuant to CPLR §3211(a)(7), "the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party." Id., at 1181. Thus, the Wife was not required to demonstrate, for example, that the prior marriage had terminated by the time of the Parties' marriage, in order to survive the Husband's motion to dismiss.

That is not to say that the Wife will ultimately be able to sustain or prevail on her cause of action for divorce. Rather, the Court merely finds that the evidence was not sufficient to dispose of the cause of action in the context of a motion to dismiss. The matter may be more conclusively resolved on a full evidentiary record in the context of an application for summary judgment or at trial.

In any event, the Court finds that dismissal is not warranted, whether or not the Parties' marriage is ultimately declared to be void. As stated by the Appellate Division, Second Department, in DeLyra v DeLyra, and affirmed by the Court of Appeals:

While a spouse need not seek a declaration nullifying a void marriage (see, Maiorana v. Salerno, 133 N.Y.S.2d 521; Ray v. Ray, 193 Misc. 131, 83 N.Y.S.2d 126), nevertheless, the Legislature has provided that the parties to such a marriage can have it declared void during their lifetimes (see, Domestic Relations Law § 140[a]). Further, the Legislature has envisioned circumstances where it might be appropriate to grant economic relief to a spouse who has participated in a ceremonial marriage and has lived in a "marital" relationship, despite the fact that the parties' marriage was void and a valid marital relationship never existed between the parties. The Domestic Relations Law specifically provides that in an action to declare the nullity of a void marriage, a spouse may seek certain economic relief, including: (1) sequestration of the defendant's property, both real and personal, and whether tangible or intangible, within the State (Domestic Relations Law § 233), (2) a determination of any question as to the title to property arising between the parties and a direction, between the parties, concerning the possession of property (Domestic Relations Law § 234), (3) alimony (Domestic Relations Law § 236[A]) or maintenance (Domestic Relations Law § 236[B][6]), (4) counsel fees and expenses to carry on the action (Domestic Relations Law § 237), (5) expenses in enforcement proceedings (Domestic Relations Law § 238), and (6) post-judgment security for payments by the defendant or sequestration of the defendant's property (Domestic Relations Law § 243). Indeed, as noted by some commentators, "the availability of economic relief may be a strong inducement for bringing a `matrimonial action' to have [the] nullity [of the marriage] declared during the lifetimes of both parties"(1 Foster, Freed & Brandes, Law and the Family New York § 3.16 at 83 [2d ed 1987]).

DeLyra v. DeLyra, 141 AD2d 75, 79 (2d Dept. 1988), aff'd, 74 NY2d 872 (1989). In the case at bar, even if the Parties' marriage is deemed void, the Wife nonetheless has a claim for economic relief."

DIVORCE - WHEN CAN COURT ORDER SALE OF MARITAL HOME

There were two dissents.

TAGLIONI v. Garcia, 2021 NY Slip Op 5936 - NY: Appellate Div., 1st Dept. 2021:

"At issue on this appeal is whether the parties consented to the pendente lite sale of their jointly owned marital home, a townhouse located in Manhattan. There were preliminary discussions with Supreme Court at the January 28, 2021 and March 30, 2021 conferences to sell the townhouse for $6 million. However, the parties could not reach an agreement as to the material conditions for the sale. Nor did the wife or her attorney consent to the sale on the terms proposed by the husband. Accordingly, Supreme Court should not have ordered the sale of the townhouse.

As stated by this Court in Schorr v Schorr (106 AD3d 544, 544 [1st Dept 2013]), "It is well-settled that, prior to entry of a judgment altering the legal relationship between spouses by granting divorce, separation or annulment, courts may not direct the sale of marital property held by spouses as tenants by the entirety, unless the parties have consented to sell" (quoting Moran v Moran, 77 AD3d 443, 444 [1st Dept 2010]). Moreover, "courts must respect conditions placed on a party's consent to the sale of such property, and lack the authority to direct a sale where those conditions have not been met" (Harrington v McManus, 303 AD2d 368, 368 [2d Dept 2003]; see Kahn v Kahn, 43 NY2d 203, 209-210 [1977]; Kayden v Kayden, 234 AD2d 345 [2d Dept 1996]; Berk v Berk, 170 AD2d 564, 565 [2d Dept 1991]).

We find that the record "did not reflect a meeting of the minds and did not contain specific terms" (Schorr, 106 AD3d at 544; see Kahn, 43 NY2d at 209) sufficient to evince the wife's consent to the ordered sale. The record establishes that, contrary to the determination of the court below, the parties did not agree to listing their jointly owned townhouse at $6 million or to the sale of the townhouse. Although the parties identified targets of their negotiations, neither the wife nor her counsel ever explicitly agreed to the contemplated sale pendente lite. As indicated during the parties' conferences before the court and by the parties' competing proposed orders, the wife's negotiating targets remained at all times contingent on stipulation of other disputed material terms.

At the January 28, 2021 status conference, the wife's attorney described her position, in relevant part:

"So, to be clear, our client at the end of this case, she is agreeing, she's not planning on keeping this family townhome. She has no intention of keeping it. Her concern is that this litigation is going to go on for another couple of years minimally, and that essentially she needs a place to live with her daughters. . . . So what we're proposing is, is that if this townhouse is sold on a pendente lite basis, that plaintiff [husband] as the monied spouse should pay for a reasonable rental for our client in Manhattan" (emphasis added). Although the wife's counsel stated that she "will speak with my client about what the Court just suggested about the proceeds," there is no suggestion in the record that the parties agreed to or ever attempted to negotiate the "reasonable rental" condition proposed by the wife's counsel. After multiple exchanges between the judge and counsel, Supreme Court unilaterally stated that the terms of the sale were as follows: "[The husband] wants this townhouse, and I already said I think this townhouse needs to go on the market 30 days after these repairs are done, so I think your client [the wife] should agree to that." Notably, the wife, by her counsel, did not assent to this term.

At the March 30, 2021 status conference, the parties indicated that little progress had been made. Early in the conference, the husband's counsel stated: "We had prepared a stipulation. We have now learned that the problem is that [the wife] has no intention of selling the townhouse and that she has changed her position." Significantly, the record contains no executed stipulation by the parties or their attorneys to sell the townhouse.^[1]

Rather, following the March 30, 2021 status conference, the parties submitted, at the direction of the court, competing proposed orders. The husband's proposed order contained many of the conditions imposed by Supreme Court in the order on appeal, including scheduled mandatory price reductions and required acceptance of certain offers. The wife's proposed counter order, on the other hand, contained no proposed initial list price, no procedure for list price reduction or reevaluation, and no required acceptance of offers at any price level. As to a potential sale, the wife's proposed counter order provided that the property "should either be listed for sale or the Wife shall advise the Husband in writing that she intends to buy-out his interest in the Townhouse" and, further, that "[t]he Townhouse will only be sold under the terms of an agreed Stipulation between the parties."

The order on appeal reflects that Supreme Court adopted the husband's order with minimal revisions, essentially rejecting the wife's preconditions to the sale of the townhouse and imposing its own additional conditions. The dissent faults the wife's attorney for not raising the issue of the sale of the townhouse being conditioned on the husband paying for a "reasonable rental" at the March 30 conference. However, that issue was expressly raised at the January 28 conference and was never resolved, evincing that there was never a meeting of the minds on the material terms of the sale. The husband's counsel acknowledged the parties' differences when counsel informed the court that they had "now learned that the [wife] has no intention of selling the townhouse and that she has changed her position." Thus, even assuming arguendo that the dissent is correct that the wife initially agreed to the sale of the townhouse, she revoked her consent because the parties were unable to agree on the material terms of the sale (see Harrington, 303 AD2d at 368-369.)

Additionally, the court erred in imposing conditions on the sale of the property that were not discussed or agreed to on the record, namely, that the townhouse be listed before the repairs were made, that the price be reduced in specified amounts at set dates, and that the parties accept a purchase price offer of 95% or more of the list price (see Harrilal v Harrilal, 128 AD2d 502, 503-504 [2d Dept 1987]).

Finally, we have already rejected the husband's argument that the appeal should be dismissed because the wife is not aggrieved; in a prior order, we denied the husband's motion to dismiss the appeal on that basis. In any event, the argument is unavailing. The order, which largely tracked the husband's proposed order, adversely affected the wife's interests.

Accordingly, the order of the Supreme Court, New York County (Michael L. Katz, J.), entered May 18, 2021, which, to the extent appealed from, directed the sale of the parties' jointly owned marital residence, should be reversed, on the law and the facts, without costs, and the ordered listing and sale rescinded in its entirety.

All concur except Webber, J.P. and Scarpulla, J. who dissent in part in a separate Opinion by Webber, J.P.

WEBBER, J.P. (dissenting in part).

I agree that Supreme Court erred in imposing additional conditions on the sale of the marital townhouse that were not discussed or agreed to on the record, namely, that the townhouse be listed before the repairs were made, that the price be reduced in specified amounts at set dates, and that the parties accept a purchase price offer of 95% or more of the list price (see Harrilal v Harrilal, 128 AD2d 502, 503-504 [2d Dept 1987]).

However, I disagree with the majority that the record "did not reflect a meeting of the minds and did not contain specific terms" to evince the wife's consent to the sale of the jointly owned townhouse, which was the marital residence (see Kahn v Kahn, 43 NY2d 203 [1977]; Schorr v Schorr, 106 AD3d 544 [1st Dept 2013]). In my opinion, a review of the record as a whole establishes that the parties agreed to sell the townhouse pendente lite, for a list price of $6 million within 30 days of the completion of the necessary repairs. The plan was articulated by the wife's attorney during the January 28, 2021 status conference. At that conference, the wife's attorney stated that her client was prepared to immediately do the repairs that the brokers had recommended.

"The court: But all I'm saying if the plan is to sell the townhouse, we know that kind of a niche market that sometimes you don't just have an open house and necessarily get an offer that minute. It has to be marketed a certain way. It doesn't make sense to get that process going and. . . . money can be put in escrow. There is a support issue in a support order in effect and I just don't know if it makes sense to delay that.

Ms. Schanfield: I understand, your honor. Our client is prepared to immediately do the repairs that the brokers had recommended."

Her acknowledgment that she was prepared to go forward with the repairs recommended by the brokers confirms her acquiescencein the sale of the townhouse (see Frisina v Frisina, 178 AD2d 460, 460 [2d Dept 1991]).

This was further confirmed by the husband's attorney, who stated that the parties had a deal, and that the repairs were the issue that was holding the parties back. Although the wife now contends that her agreement to the sale of the townhouse was conditional on the husband paying for her Manhattan rental, she failed to engage in any discussion of this issue on the record and made no mention of it during the March 30, 2021 conference. While the majority notes that during the January 28, 2021 status conference, the wife's attorney described her position, "that if this townhouse is sold on a pendente lite basis, that plaintiff [husband] as the monied spouse should pay for a reasonable rental for our client in Manhattan," the majority ignores what preceded the noted quote:

"So, to be clear, our client at the end of this case, she is agreeing, she's not planning on keeping this family townhome. She has no intention of keeping it. Her concern is that this litigation is going to go on for another couple of years minimally, and that essentially she needs a place to live with her daughters. . . . (emphasis added) So what we're proposing is, is that ifthis townhouse is sold on a pendente lite basis, that plaintiff [husband] as the monied spouse should pay for a reasonable rental for our client in Manhattan."

Thus, counsel was raising the wife's concern of being without a residence should the litigation continue for a number of years and not that she did not agree to the sale of the townhouse.

The majority also incorrectly asserts that there is no suggestion in the record that the parties agreed to or ever attempted to negotiate the "reasonable rental" condition proposed by the wife's attorney. However, if theparties had not agreed to or negotiated this condition, the wife's attorney never stated thaton the record. Rather, on March 30th, counsel asserted that there was water damage in the townhouse, that the wife had consented to manage the repairs if she had access to the monies, that the husband was not releasing the monies, that there was a history of the wife not being reimbursed, and that the new insurance policy was inadequate. Clearly, if the "reasonable rental" condition was still an issue, counsel would have argued on March 30th that the parties did not agree or negotiate the "reasonable rental" condition. Instead, counsel stated that circumstances had changed because the children "had no place to go" and not because of any issue with the "reasonable rental" condition.

Further, during the March 30, 2021 conference, the court specifically reiterated the previously agreed upon sale of the townhouse.

"So I know that I've read the transcripts over this morning and we talked about necessary repairs to the townhouse and we [sic] very specific necessary repairs meant repairs that the broker said needed to be done, and Ms. Garcia was going to contact the workers to do it, she was going to obtain written estimates and forward them to Mr. Taglioni, and then we came to an understanding if any of the work turned out to be more than ten percent above the estimate, then Ms. Garcia was going to forward that documentation to Mr. Taglioni so he could have input and approve it. And then within 30 days after that, the townhouse was going to go up for sale."

The court closed the conference with the following statement:

"That's another issue that was discussed ad nauseum and it should get done. I mean, the point of these conferences is not to go backwards, it's to go forwards. So the deal was that there was going to be a buyout of East Hampton, the deal was the townhouse was going to be sold after necessary repairs. The deal was that the Chubb monies were going to be used for the repairs of the townhouse. There's no reason to keep on revisiting these issues, just get it done."

Neither the wife nor her counsel challenged this assertion, in fact, counsel thanked the judge.

Finally, in her proposed counter order, the wife never offered any alternative terms regarding the listing and sale of the townhouse, nor did she state any objections to the sale. Upon review of the terms set forth in the husband's proposed order, she neither suggested any different terms regarding the listing and sale of the townhouse in her counter order or objected to the sale of the townhouse.

While the majority points to the wife's inclusion in the counter order of a statement that the sale of the townhouse would be pursuant to the terms of an agreed stipulation between the parties as an indication of disputed material terms, such a conclusion is not supported by the record as a whole. Further, as noted by the husband, any proposed terms of a proposed stipulation, if different from the proposed order, would properly be presented in the counter order.

For the reasons stated above, in my opinion, Supreme Court properly implemented the parties' contemplated agreement as to the sale of the townhouse (see Kahn v Kahn, 43 NY2d at 210).

All concur except Webber, J.P. and Scarpulla, J. who dissent in a separate Opinion by Webber, J.P.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

[1] The dissent refers to the court's "specific[ ] reiterat[ion]" of "the previously agreed upon sale of the townhouse" during the March 30, 2021 conference. Although the court indeed referred to what "the deal was," the full context of the record shows that this phrase referred not to any concrete agreement but to the court's desire for resolution."

A PRIVATE DISPUTE IS NOT A PUBLIC WRONG

General Business Law 349 provides that deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful and subparagraph (h) gives a private consumer a cause of action for damages and legal fees.

FRANCIOSA v. FLORIDA CONCEPTS POOLS INC., 2021 NY Slip Op 21291 - Westchester Supreme Court October 28, 2021:

"Plaintiff Arthur Franciosa commenced this action on August 18, 2020, naming as defendants Florida Concept Pools Inc. and Latham Pool Products Inc., claiming that he had entered into a purchase sale agreement with both defendants for a particular "Pacific Blue" color of fiberglass pool, but was delivered a pool of the wrong color. His causes of action claimed breach of contract, fraud, negligence in the sale, supply and delivery of the pool, and a violation of General Business Law § 349(a). An amended complaint filed on January 4, 2021 added as a defendant Kenneth Lauro Sr., the president of Florida Concepts Pools. A previous decision and order of this Court denied the motion of Florida Concepts Pools for dismissal based on asserted irregularities in the manner in which the complaint was amended.

In now moving pursuant to CPLR 3211, defendants Florida Concepts Pools and Kenneth Lauro Sr. contend that the causes of action for fraud and pursuant to General Business Law 349 must be dismissed for failure to comply with the strict pleading requirements of CPLR 3016. They cite the complaint's allegation in support of plaintiff's fraud claim, that defendant Florida Concept Pools Inc., and/or its president Kenneth Lauro Sr. made material misrepresentations with the intent to induce the reliance of the plaintiff that he could provide the fiberglass pool in Pacific blue that plaintiff had contracted for and paid for. While acknowledging plaintiff's allegation that the moving defendants misrepresented that they could "provide the fiberglass pool in Pacific Blue that plaintiff had contracted and paid for," defendants argue that in the absence of specific details as to the date, time, place or manner of such misrepresentation, the fraud claim may not be maintained.

The moving defendants also assert that the General Business Law claim is not sufficiently supported by the allegation that defendants represented that they were selling a Pacific Blue pool, then knowingly delivered a different color pool. The affirmation submitted by the moving defendants' counsel in support, further remarks on "the patent falsity of the claim that the plaintiff had already paid for the pool at the time of the supposed misrepresentations," and relies on the affidavit of defendant Lauro describing the series of events leading up to the dispute, to contend that the dispute was all plaintiff's fault.

.......,

However, the cause of action alleging a violation of General Business Law § 349 must be dismissed. To state such a claim, the alleged misconduct must have a "broad impact on consumers at large," and consequently, "the statute does not apply to private contract disputes unique to the parties" (see Wilner v Allstate Ins. Co., 71 AD3d 155, 163 [2d Dept 2010], citing Anesthesia Assoc. of Mount Kisco, LLP v Northern Westchester Hosp. Ctr., 59 AD3d 473, 480 [2d Dept 2009]). Regardless of whether any misrepresentations were affirmatively made, this private dispute does not fall within the coverage of General Business Law § 349."

AN UPDATE ON ERAP

 

"Important Update on ERAP

Federal funding provided to New York State for the Emergency Rental Assistance Program is almost fully committed to eligible New Yorkers who applied. While applications are still being accepted by OTDA, funding is not likely to be available except in the categories below:

  Tenants in the following areas, where allocations have not yet been exhausted, are still encouraged to apply:

        Dutchess County

        Erie County

        Nassau County (not including the towns of Hempstead or Oyster Bay)

        Niagara County

        Oneida County

        Saratoga County

        Suffolk County (not including the towns of Brookhaven or Islip)

        Westchester County (not including the city of Yonkers)

    Households in any part of the state with income over 80 percent and up to 120 percent of area median income can still apply for state-funded emergency rental assistance.

    Landlords in any part of the state with a tenant who has declined to submit an application for the Emergency Rental Assistance Program, or has vacated with arrears, can still apply through the Landlord Rental Assistance Program."

See https://otda.ny.gov/programs/emergency-rental-assistance/

DOCTORS AS EMPLOYEES OR INDEPENDENT CONTRACTORS?

 

MATTER OF DeROBERTS PLASTIC SURGERY v. Commissioner of Labor, 2021 NY Slip Op 5372 - NY: Appellate Div., 3rd Dept. 2021:

"DeRoberts Plastic Surgery (hereinafter DPS), a professional corporation and medical practice that specializes in plastic surgery and related procedures, was founded and organized by Dean DeRoberts, a board-certified plastic surgeon. To provide services to its patients, DPS retains the services of, among others, anesthesiologists, surgical technicians and nurses (hereinafter collectively referred to as the medical professionals). As a result of an audit for the years 2011, 2012 and 2013, the Department of Labor issued a determination that assessed DPS additional unemployment insurance contributions based upon remuneration paid to, among others, the medical professionals. The Unemployment Insurance Appeal Board ultimately sustained the Department's determination assessing additional unemployment insurance contributions for the medical professionals, finding, in relevant part, that DPS exercised or reserved the right to exercise sufficient supervision, direction or control over the services performed by the medical professionals so as to establish an employment relationship for purposes of additional unemployment insurance contributions. DPS appeals.

We affirm. "Whether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the appeal board, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion" (Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]; see Matter of Vega [Postmates Inc.-Commissioner of Labor], 35 NY3d 131, 136 [2020]; Matter of Thomas [US Pack Logistics, LLC-Commissioner of Labor], 189 AD3d 1858, 1859 [2020]). "Substantial evidence is a minimal standard requiring less than a preponderance of the evidence. As such, if the evidence reasonably supports the Board's choice, we may not interpose our judgment to reach a contrary conclusion" (Matter of Vega [Postmates Inc.-Commissioner of Labor], 35 NY3d at 136-137 [internal quotation marks, brackets and citations omitted]). "Where, as here, the work of medical professionals is involved, the pertinent inquiry is whether the purported employer retained overall control over the work performed" (Matter of Dillon [Commissioner of Labor], 163 AD3d 1307, 1308 [2018] [internal quotation marks and citations omitted]; see Matter of Salamanca Nursing Home [Roberts], 68 NY2d 901, 903 [1986]; Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d at 736; Matter of Millennium Med. Care, P.C. [Commissioner of Labor], 175 AD3d 755, 756 [2019]). "Further, an organization which screens the services of professionals, pays them at a set rate and then offers their services to clients exercises sufficient control to create an employment relationship" (Matter of Williams [Summit Health, Inc.-Commissioner of Labor], 146 AD3d 1210, 1210 [2017] [internal quotation marks, brackets and citations omitted]; see Matter of Ryan [La Cruz Radiation Consultants, Inc.-Commissioner of Labor], 138 AD3d 1324, 1325 [2016]).

The record reflects that DPS screened the medical professionals that it retained by requiring them to provide proof of licensure or certification, as well as proof of insurance, before securing their services, and that DPS maintained a credential file on each medical professional that it used. DPS advertised for patients, established the fees that patients would pay for their selected procedures and required patients to pay a deposit and the entire amount of the fee in advance of undergoing the procedure. Upon scheduling a procedure for a patient, DPS would send an email to its pool of credentialed medical professionals, informing them of the date and time of the procedure and seeking coverage for that procedure. Once a team of medical professionals was assembled, DPS would send a follow-up email confirming the details of the procedure.

Although the medical professionals would bring some of their own personal equipment to the scheduled procedures, DPS provided the supplies, equipment and operating space "used in the rendition of services and paid all expenses of maintenance thereof" (Matter of Myron Goldstein, P.C. [Roberts], 61 NY2d 937, 938 [1984]). Each medical professional would arrive prior to the start of the procedure and would remain until each of their assigned responsibilities were completed. DPS managed the billing and collection of fees, as well as any refunds owed to patients, and coordinated the scheduling of in-office appointments, consultations, procedures and follow-up visits with patients. DPS also set the rate of payment for the nurses and surgical technicians using industry standard rates. If the cost of a procedure exceeded the amount that the patient paid for a procedure, DPS would typically bear the cost of that expense by taking it out of the surgeon's fee. DPS was responsible for the outcome of the medical procedures and would handle any patient complaints. Notwithstanding evidence in the record that might support a contrary conclusion, we find that the foregoing constitutes substantial evidence to support the Board's determination that DPS retained sufficient overall control over the work performed by the medical professionals to establish an employment relationship (see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d at 736-737; Matter of Roccosalvo [Gaiton-Commissioner of Labor], 191 AD3d 1060, 1061-1062 [2021]; Matter of Millennium Med. Care, P.C. [Commissioner of Labor], 175 AD3d at 757-758; Matter of Williams [Summit Health, Inc.-Commissioner of Labor], 146 AD3d at 1210-1211; Matter of South Shore Med. Servs. [Hudacs], 183 AD2d 1093, 1094 [1992]). To the extent that we have not addressed any of DPS's remaining contentions, they have been considered and found to be without merit."

REFORECLOSURE AND WILFUL NEGLECT UNDER RPAPL 1503

US BANK NA v. LOMUTO, 2021 NY Slip Op 5363 - NY: Appellate Div., 2nd Dept. 2021:

"In January 2009, the plaintiff commenced an action to foreclose a mortgage on certain real property in Stony Point (hereinafter the underlying foreclosure action), naming the mortgagor and owner, Robert S. Wilson, but not the property's co-owner, Amanda Lomuto, among the defendants. The plaintiff obtained a judgment of foreclosure and sale, which was affirmed by this Court (see U.S. Bank N.A. v Lomuto, 140 AD3d 852). During the pendency of the appeal in the underlying foreclosure action, Wilson died and Lomuto was substituted as a defendant in her capacity as a personal representative of Wilson's estate, in place of Wilson (see id.). Pursuant to the judgment of foreclosure and sale in the underlying foreclosure action, the property was sold at public auction to the plaintiff as the successful bidder.

Thereafter, the plaintiff commenced this action against Lomuto (hereinafter the defendant) to reforeclose the mortgage pursuant to RPAPL 1503 and 1523. The plaintiff moved for summary judgment on the amended complaint and pursuant to CPLR 3211(b) to dismiss the defendant's affirmative defenses. The defendant opposed the motion. By order dated December 5, 2017, the Supreme Court granted the plaintiff's motion and directed the defendant to give the plaintiff's attorney written notice of her desire and intent to redeem the property within 10 days from the mailing to her attorney of a copy of the order, and then to redeem the premises within 30 days thereafter. The defendant did not redeem, and now appeals from the order.

RPAPL 1311 requires the plaintiff in a mortgage foreclosure action to join, as a party defendant, any person "whose interest is claimed to be subject and subordinate to the plaintiff's lien." "The absence of a necessary party in a foreclosure action leaves that party's rights unaffected by the judgment and sale, and the foreclosure sale may be considered void as to the omitted party" (6820 Ridge Realty v Goldman, 263 AD2d 22, 26). "[I]n such cases, the purchaser of the foreclosed property has two potential remedies—the commencement of a strict foreclosure action pursuant to RPAPL 1352, or a reforeclosure action pursuant to RPAPL 1503" (id. at 26). "In contrast to RPAPL 1352, which governs strict foreclosure, RPAPL 1503 permits a reforeclosure action to be maintained even where[, as here,] an action against the defendant to foreclose the mortgage under which the foreclosure sale was held or to extinguish a right of redemption would be barred by the Statute of Limitations" (id. at 27).

To prevail in a reforeclosure action, the plaintiff must demonstrate that the defect in the original foreclosure action "was not due to fraud or wilful neglect of the plaintiff and that the defendant or the person under whom he claims was not actually prejudiced thereby" (RPAPL 1523[2] [emphasis added]).

Here, there is no dispute that the defect in the underlying foreclosure action was the plaintiff's omission of the defendant as a party, despite the plaintiff having ordered a full title search and mortgage foreclosure certificate (see HSBC Bank USA, N.A. v Guardian Preserv. LLC, 160 AD3d 1236, 1236-1237). Pursuant to the language of RPAPL 1523, in order to establish its entitlement to summary judgment, the plaintiff had the burden of demonstrating, prima facie, both that the defect in the underlying foreclosure action was not the result of fraud or the wilful neglect of the foreclosure plaintiff, and that the defect did not prejudice the defendant (see RPAPL 1523[1], [2]). To that end, the plaintiff submitted, inter alia, copies of the note and mortgage, executed on September 2, 1987, bearing the signature of Robert S. Wilson as the sole borrower/mortgagor, and the results of a title search conducted by Prime Title Search, LLC, certified as of November 10, 2008, naming Wilson as the sole mortgagor and holder of title to the property, and failing to reflect a quitclaim deed, executed in December 2001, transferring ownership of the property from Wilson to Wilson and the defendant. Approximately two months after the title search was performed, in January 2009, the plaintiff commenced the underlying foreclosure action, failing to join the defendant. "Under these facts, there is simply no reason why [the] plaintiff would willfully omit a necessary party and, viewing the evidence in the light most favorable to [the] defendant, [the] plaintiff demonstrated the absence of willful neglect as it reasonably relied on the [title search] that failed to uncover [the] quitclaim deed" (HSBC Bank USA, N.A. v Guardian Preserv. LLC, 160 AD3d at 1237).

In opposition, the defendant submitted an affidavit in which she attested, among other things, that there had been a prior action to foreclose the mortgage, entitled Federal Home Loan Mtge. Corp. v Wilson (hereinafter the prior foreclosure action), filed under Index No. 3724/06, in the Supreme Court, Rockland County, which was commenced in 2006, in which both she and Wilson were named among the defendants, and which was resolved when she and Wilson obtained a loan modification. However, when the plaintiff commenced the subsequent, underlying foreclosure action, in 2009, the plaintiff named only Wilson among the defendants, and not her, despite the fact that she was named as a defendant in the prior foreclosure action, that Wells Fargo Bank, N.A., doing business as America's Servicing Company (hereinafter ASC), remained the loan servicer, and that ASC was aware of her ownership interest in the property having reviewed her financial information and documentation for every loan modification application. As exhibits to her opposition, the defendant attached, inter alia, copies of the summons and complaint in the prior foreclosure action, in which she was named as a defendant along with Wilson. Contrary to the plaintiff's contention, the evidence of the prior foreclosure action in which the defendant was named as a party raised a triable issue of fact as to whether the plaintiff's failure to name her as a defendant in the underlying foreclosure action was the result of "wilful neglect" (RPAPL 1523[2]; see McWhite v I & I Realty Group LLC, 2019 NY Slip Op 31552[U] [Sup Ct, Kings County]). Accordingly, since the plaintiff was entitled to summary judgment only in the absence of triable issues of fact as to wilful neglect and prejudice (see RPAPL 1523[2]), the Supreme Court should have denied the plaintiff's motion for summary judgment on the amended complaint and pursuant to CPLR 3211(b) to dismiss the affirmative defenses, regardless of whether the defendant raised a triable issue of fact as to the issue of prejudice."