THE PANDEMIC AND UNEMPLOYMENT

MATTER OF MANGIERO, 197 AD 3d 1458 - NY: Appellate Div., 3rd Dept. 2021:

"Claimant filed an original claim for unemployment insurance benefits effective March 9, 2020. In a series of determinations, the claim was denied upon the grounds that claimant did not have a valid original claim for regular unemployment insurance benefits and was ineligible for pandemic unemployment assistance pursuant to the federal Coronavirus Aid, Relief, and Economic Security Act (see 15 USC § 9021, as added by Pub L 116-136, 134 US Stat 323). Following a hearing, the denial was upheld by an Administrative Law Judge. The Unemployment Insurance Appeal Board affirmed, and claimant appeals.

We affirm. As claimant admittedly performed no paid work during her base period or alternate base period, substantial evidence supports the Board's finding that she "did not have sufficient covered earnings to file a valid original claim pursuant to Labor Law § 527" (Matter of Ankhbara [Commissioner of Labor], 105 AD3d 1244, 1244-1245 [2013]; see Matter of Kelly [Commissioner of Labor], 145 AD3d 1306, 1307 [2016]). The issue accordingly turns to whether claimant was entitled to pandemic unemployment assistance, which was made available to covered individuals for "weeks of unemployment, partial unemployment, or inability to work caused by COVID-19" 1459*1459 beginning in January 2020 (15 USC § 9021 [c] [1] [A]). A covered individual is defined, in relevant part, as a person who is ineligible "for regular compensation or extended benefits under [s]tate or [f]ederal law or pandemic emergency unemployment compensation under [15 USC §] 9025" and who is, despite being otherwise able and available to work, unable or unavailable to do so because of one or more specified factors relating to the COVID-19 pandemic (15 USC § 9021 [a] [3] [A] [i], [ii]).

Claimant was ineligible for regular unemployment insurance benefits given her failure to work during the relevant period and contended that she was unable and unavailable to work due to one of the qualifying factors for pandemic unemployment assistance, namely, that she was "unable to reach [her] place of employment because [she was] advised by a health care provider to self-quarantine due to concerns related to COVID-19" (15 USC § 9021 [a] [3] [A] [ii] [I] [ff]).^[*] The statutory directive that an applicant be "unable to reach the place of employment" presupposes that he or she has a place of employment to reach, however, removing from its scope individuals such as claimant who were not working or scheduled to start working at the time they were directed to self-quarantine (15 USC § 9021 [a] [3] [A] [ii] [I] [ff]). The Board read the statutory language in that manner and in accord with guidance from the United States Department of Labor—the federal agency tasked with providing operating instructions for the joint federal-state pandemic unemployment insurance program (see 15 USC § 9032 [b]) and from which we take judicial notice—that an individual "must have an attachment to the labor market and must have experienced a loss of wages and hours or [be] unable to start employment following a bona fide job offer" in order to obtain pandemic unemployment assistance (United States Department of Labor, Employment and Training Administration, Unemployment Insurance Program Letter No. 16-20, Change I at I-6, http://wdr.doleta.gov/directives/attach/UIPL/UIPL_16-20_Change_1.pdf). Thus, as "`the federal agency expressly concurs in the state's interpretation of the statute, and the interpretation is a permissible construction of the statute,' the interpretation is entitled to deference," and it follows that substantial evidence supports the Board's finding 1460*1460 that claimant was not entitled to pandemic unemployment assistance (Cricchio v Pennisi, 90 NY2d 296, 309 [1997], quoting Perry v Dowling, 95 F3d 231, 237 [2d Cir 1996]).

Finally, we have examined and rejected claimant's complaints about the conduct of the Administrative Law Judge, "as the record does not provide factual support demonstrating bias or proof that the administrative outcome flowed from any such bias" (Matter of Timberlake [Commissioner of Labor], 153 AD3d 1457, 1459-1460 [2017] [internal quotation marks, citations and brackets omitted]; see Matter of Boudreau [Commissioner of Labor], 253 AD2d 939, 939 [1998]).

Ordered that the decision is affirmed, without costs.

[*] We will not consider evidence submitted by claimant regarding her medical restrictions that was not part of the record before the Board (see Matter of Green [Village of Hempstead—Commissioner of Labor], 80 AD3d 954, 956 [2011]) and that is, in any event, irrelevant to the dispositive issue of whether she had a place of employment that she was prevented from reaching."

AFTER DIVORCE, CHILD WANTS TO CHANGE LAST NAME

MATTER OF DZ (" G"), 2021 NY Slip Op 21282 - Suff Co. Supreme Court 2021:

"JAMES HUDSON, J.

The Petitioner and Respondent have two different last names that both begin with the letter Z. To preserve the privacy of the parties, they will be referred to as Ms. DZ and Mr. SZ. Their daughter will be referred to as "G."^[1]

The matter at hand is a petition brought by Ms. DZ to change the surname of "G" to Ms. DZ's current married name (Civil Rights Law Sec.60 et. seq.). Additionally, the Petition seeks to change "G's" middle name. The Petitioner Ms. DZ and the Respondent Mr. SZ were married in 2006 and divorced in 2008. Prior to their separation, however, the couple was blessed with a daughter "G" who is now 14½ years old. On her Birth Certificate the child was given the Respondent's surname. "G's" Father, Mr. SZ has opposed the application.

The differing averments of the Petitioner and Respondent could only be resolved in an evidentiary hearing (In re Kobra, 46 Misc 3d 54, 56, 2 N.Y.S.3d 313, 314 [App. Term. 2nd Dept. 2014]). On August 20th, 2021 the Parties appeared before the Court and gave testimony. Prior to hearing from Ms. DZ and Mr. SZ, however, the Court heard the testimony of "G".

The Court was concerned that asking "G" to speak in front of her Parents would place an inordinate emotional burden on her. It has long been established that in custody proceedings the trial Court possesses the authority to interview a child outside of the presence of their parents (Lincoln v. Lincoln, 24 NY2d 270, 247 N.E.2d 659, 661 [1969]). In the case In re Eberhardt, 83 AD3d 116, 920 N.Y.S.2d 216 (2nd Dept. 2011), this rule was expanded to include name change petitions.

"Pietas erga parentes"^[2] or in the modern tongue "reverence towards one's parents" is a timeless virtue despite it being described by the immortal Cicero in antiquity. The Court notes this because "G's" testimony (which has been sealed pursuant to a companion Order) revealed a young person who possesses this virtue in abundance. She loves her parents very much and is also highly intelligent. Her outstanding academic achievements are a credit to them. In a lengthy interview, she was able to clearly articulate her observations and feelings concerning the petition.

Ms. DZ testified in open Court after her daughter spoke in camera (Transcript p.60). She stated, inter alia, that she and her current husband Mr. JZ, have raised "G" from "when she was a toddler" and identifies as a member of his family (Transcript p.60). It was detailed that it's upsetting for "G" to have to explain her different last name on her passport. "G" uses her mother's current married name at home and wants to start High School with the same last name as her half siblings in the custodial household. Ms. DZ spoke of her husband's fatherly interaction with "G." By way of example, Mr. JZ has attended all of "G's" soccer matches, taught her to ride a bicycle and taken her fishing (Transcript p.64). Ms. DZ emphasized that her marriage with Mr. SZ only lasted six months. After the marriage ended, Mr. SZ had supervised visitation for a period of time which was exercised in an "inconsistent" fashion (Transcript p.66). "G's" first sleep over with her Father occurred when she was 10 (ten) years old and the child has expressed a reluctance since that time for visits with Mr. SZ. She also indicated that Mr. SZ never regularly paid child support and is now $8,500.00 in arrears. Ms. DZ also submitted documents for the Court's review (Petitioner's Exhibits 1, 2 and 3).

Petitioner's Exhibit 1 is a printout of a series of text messages between the Petitioner and Respondent. It demonstrates the acrimonious relationship between the former spouses. They read in pertinent part:

(The following dialogue took place after Ms. DZ communicated "G's" wish to have her surname changed):

Ms. DZ: "This is "G's" wish."

Mr. SZ: "So you want me to pay 1200/month Not see or hear from her and have her change her last name." (sic)

Ms. DZ: "Nothing to do with what I want. If you don't consent the paper work is being filed but it would be great to get your consent for "G."

Mr. SZ: "Take me off child support and I'll sign it. I guess you have your answer then."

Petitioner's Exhibit 2 is a document indicating that Mr. SZ is $8,500.00 in arrears for his child support payments.

Petitioner's Exhibit 3 was a printout of Mr. SZ's criminal record. It indicated that on August 31st, 2006 he had committed the Misdemeanor of Assault 3rd Degree and pled guilty to same on May 23rd, 2007. The Exhibit also indicated that on January 30th, 2007 he had committed the Misdemeanor of Reckless Endangerment in the 1st Degree, to which he also pled guilty onMay 23rd, 2007. There is also a more recent conviction (by plea of guilt) to the Misdemeanor of Reckless Driving. All of these offenses occurred in our sister State of Connecticut. Ms. DZ contends that there was a history of domestic violence between herself and Mr. SZ during their brief marriage.

Mr. SZ did not object to these documents being received into evidence.

Mr. SZ then offered his testimony before the Court. He also submitted documentary Exhibits consisting of papers attached to his written opposition to the Petition. They were considered, over Petitioner's objection as Respondent's evidence.

Mr. SZ strongly objected to "G's" last name being changed. He stated:

"I don't want to give up on my daughter. I don't want her to say, oh, Dad, where were you? But it's become so just difficult. I've been to Court, hired lawyers, seen therapists, drug counselors, police, jail. It's like when is it ever going to end? It's like the nightmare that doesn't go away. So, I don't want to leave "G" I don't want her not to know me. She doesn't refer to me as Dad. She calls me [by his first name]. And, I guess I put her in the situation, so I can't be that upset. But, her mother just makes it worse" (Transcript p.85-86).

Mr. SZ gave instances of his attempts to contact his daughter which were blocked by his ex-wife. This culminated (in 2020) in his bringing an action to hold Ms. DZ in contempt of Judge Budd's Order of Custody and Visitation dated May 31st, 2012. His documentary Exhibit, however, does not support his allegation of wrong doing on Ms. DZ's behalf. The submitted papers are silent on the topic of parental alienation. Instead, they demonstrate that Mr. SZ was subjected to supervised visitation, under the aegis of Dr. Vanessa Gomez, being Ordered by the Court (Transcript pp.8-11).

These documents included the following:

(1) The Judgment of Divorce granted in Connecticut on May 2nd, 2008 by Justice Mary Louise Black. The Judgment incorporated a Separation Agreement with provisions for custody and visitation;

(2) The Custody and Visitation Order from Suffolk County Family Court (Judge Marlene Budd) dated May 31st, 2012. The Court awarded custody to Ms. DZ but provided for alternate weekend visitation as well as certain other Holidays. This Order also provided, inter alia, that Ms. DZ had to consult with Mr. SZ for all significant (e.g. health, education) decisions and;

(3) motion papers dated May 13th, 2020 from Suffolk County Family Court reflecting an application by Mr. SZ to have Ms. DZ punished for contempt of the 2012 Custody and Visitation Order. This was resolved in supervised visitation for Mr. SZ being Ordered by the Court (Transcript pp.8-11).

Regarding the significance of Mr. SZ's criminal convictions brought to the Court's attention he stated: "Most of my criminal record there that you see in your paperwork is when she's called the police on me. And some of it's true, some of it's not true" (Transcript p.85 line 10). To this the Court responds "Habemus optimum testem, confitentem reum" (1 Phil. Ev. 397) (1). "We have the best evidence, a confessing defendant." We respectfully remind Mr. SZ that his confession to the criminal behavior listed above was made before a Judge, historically the most favored form of admission (see Sir Michael Foster, Discourse on High Treason, Article 3, Section 3, Clauses 1 and 2 [1762]). The Court was concerned when Mr. SZ volunteered that the incidents involved Ms. DZ. Far from being a mitigating factor, they weigh against the Respondent. Having sat in the Matrimonial Part, the Court is sadly aware of the circumstances which precipitate a failed marriage. Disagreement and discord are understandable. Domestic abuse, however, is not, nor is it tolerable.

As to the issue of Mr. SZ's child support arrears, he offered the following explanation:

"I've been paying my child support. I don't pay now because I'm so fed up with it and so angry. She doesn't let me talk to her; she doesn't let me see her. When she refers to me, she calls me. I'm not good enough for her, her mother, whatever it is. So, I'm-I'm liable to pay every month. My money is good enough to take, but I'm not good enough to let her let me see her. So, that's why I don't feel like paying" (Transcript p.87 line 9-19).

Mr. SZ said that Ms. DZ had improperly influenced "G" against him and that this Petition was the product of his ex-wife's manipulation of their child. Mr. SZ then stated that he had, in fact been paying his child support payments for years and that "there's always been money" in the bank account set up for that purpose (Transcript p.90 line 19). This prompted a question from the Court:

"The Court: So, are you in arrearages or not?"

Mr. SZ: "I'm in arrearage, yes, but that's only because she got me so aggravated that I don't feel like paying."

The Court: "Have you been able to pay?"

Mr. SZ: "Yeah, I've been able to pay." (Transcript pp.90-91).

Since the testimony of the Petitioner and the Respondent are at a variance, the Court must sift the differing averments and find the truth.

Determination of the credibility of witnesses is viewed as the province of the Trial Judge (Morales v. Inzerra, 98 AD3d 484, 949 N.Y.S.2d 433 [2nd Dept. 2012]; Tornheim v. Blue & White Food Prod. Corp., 88 AD3d 867, 931 N.Y.S.2d 340 [2nd Dept. 2011]). Based upon the estrangement between Petitioner and Respondent, the Court is cognizant of the bias that informs both of their sworn statements. Each testified as truthfully as they could, but it is understandable that they remember their interactions with advantages. The documentary proof submitted by both the Parties, however, serves to support the contentions of Ms. DZ more than Mr. SZ.

In deciding whether to grant a Name Change Petition the Court must make the following determination: "that the petition is true, and that there is no reasonable objection to the change of name proposed, and if the petition be to change the name of an infant, that the interests of the infant will be substantially promoted by the change" (Civil Rights Law § 63).

In re Eberhardt, supra. offers great guidance to the Court: "As in any case involving the bests interests standard, whether a child's best interests will be substantially promoted by a proposed name change requires a court to consider the totality of the circumstances." (Id. at 221) citing Matter of John Phillip M.-P., 41 AD3d 720, 721, 839 N.Y.S.2d 502 [2nd Dept.2007]; Matter of David Robert T., 10 AD3d 453, 780 N.Y.S.2d 912 [2nd Dept.2004]; Matter of Cinquemani v. Guarino, 290 AD2d 554, 736 N.Y.S.2d 623 [2nd Dept.2002]; see generally Eschbach v. Eschbach, 56 NY2d 167, 171, 451 N.Y.S.2d 658, [1982]).

What does totality of the circumstances mean? The Eberhart Court counseled the lower Court as follows:

"Among the myriad of factors or circumstances that a court may consider in determining whether a proposed name change substantially promotes the child's best interests, there are several that warrant special mention:

(1) the extent to which a child identifies with and uses a particular surname;

(2) the child's expressed preference, if of sufficient age and maturity to articulate a basis for preferring a particular surname;

(3) whether the child's surname differs from the surname of the custodial parent;

(4) the effect of the proposed name change on the child's relationship with either parent;

(5) whether the child's surname is different from any of her siblings and the degree to which she associates and identifies with siblings on either side of her family;

(6) whether the child is known by a particular surname in the community;

(7) the misconduct, if any, of a parent, such as the failure to support or visit with the child; and

(8) the difficulties, harassment, or embarrassment that the child may experience by bearing the current or proposed surname." (Id. at 221).

In setting forth these factors, the Eberhardt Court noted that these were non-exhaustive and relied (as do we) on the authority found in Matter of John Phillip M.-P., supra. at 318-319; Gubernat v. Deremer, 140 N.J. at 141-142, 657 A.2d 856; In re Wilson, 162 Vt. 281, 285, 648 A.2d 648; In re Change of Name of Andrews, 235 Neb. 170, 177, 454 N.W.2d 488; Bobo v. Jewell, 38 Ohio St.3d 330, 335, 528 N.E.2d 180; In re Marriage of Schiffman, 28 Cal.3d at 647, 169 Cal.Rptr. 918, 620 P.2d 579).

It must be decided if Mr. SZ's objection to the Petition is a reasonable one. The Court is aware of a body of case law which holds that the Father's name is to be considered preeminent (see Matter of Goldstein, 104 AD2d 616, 479 N.Y.S.2d 385 [2nd Dept. 1984]; Matter of Pollack, 2 AD2d 756, 756, 153 N.Y.S.2d 282 [2nd Dept. 1956]; In re Petras, 123 Misc 2d 665, 672, 475 N.Y.S.2d 198, 203-04 (Civ. Ct. Queens Cty 1984]). These cases bear examination. The Court in Matter of Goldstein opined that:

"Depriving a child of his or her father's surname is normally a far-reaching action [cite omitted] Applications for the change of an infant's surname are usually granted only where the natural father is guilty of misconduct, abandonment, or lack of support (Id.at 616) citing Matter of Williams, 86 Misc 2d 87; Matter of Robinson, 74 Misc 2d 63; Matter of Fein, 51 Misc 2d 1012; Matter of Baldini, 17 Misc 2d 195; Matter of Wittlin, 61 NYS2d 726, 728." (Id. At 616)

Matter of Pollack, supracautioned that: "To deprive a son of his father's surname is a serious and far-reaching action." (Id. at 756)

In re Petras, 123 Misc 2d 665, 672, 475 N.Y.S.2d 198, 203-04 (Civ. Ct. Queens Cty 1984) echoed Pollack's declaration that: "Deprivation of a father's surname is a serious and far reaching action." The Petras Court added the rationale: "More so in our American society with respect to a male child that normally carries a surname throughout life." (Id. at 672).

The Court notes that the aforementioned cases are not of recent vintage and reflect a bias in favor of the patronymic. Such a cultural practice, when privately agreed upon, will not be disturbed. When haled into Court, however, the neutral appraisal of the law cannot countenance what is simply gender discrimination. As stated in In Re Eberhardt:

"To the extent the father's objection was based on traditional values, meaning that it is Anglo-American custom to give a child the father's name (see Gubernat v. Deremer, 140 N.J. 120, 129-137, 657 A.2d 856; In re Marriage of Schiffman, 28 Cal.3d 640, 643, 169 Cal.Rptr. 918, 620 P.2d 579; Rio v. Rio, 132 Misc 2d 316, 317-322, 504 N.Y.S.2d 959), the objection is not reasonable, because neither parent has a superior right to determine the surname of the child (see Swank v. Petkovsek, 216 AD2d 920, 629 N.Y.S.2d 129; Matter of Bell v. Bell, 116 AD2d 97, 99, 500 N.Y.S.2d 387; Matter of Cohan v. Cunningham, 104 AD2d 716, 480 N.Y.S.2d 656; Rio v. Rio, supra. at 319." (Id. at 123).

When the enumerated Eberhardt factors are applied against a fair reading of the submitted proof, all favor the Petitioner's request and bear no further discussion save two: the effect of the proposed name change on the child's relationship with either parent and the misconduct, if any, of a parent, such as the failure to support or visit with the child. These will be analyzed ad seriatim.

As noted above, the corroborated testimony of Ms. DZ show that "G" identifies as a member of Mr. JZ's family and wishes to have the same name as her half-siblings. As Justice Luft wrote in her eloquent opinion Matter of Mark L.S., 66 Misc 3d 343, 115 N.Y.S.3d 627 (Sup. Ct. Suffolk Cty 2019): "As a rule, feelings of embarrassment or alienation are considered extremely pertinent factors in the best interests analysis" (Id. at 346; citing In re Altheim, 12 AD3d 993, 784 N.Y.S.2d 910[3d Dept. 2004]).

Matter of Mark L.S. is in accord with the holding in Matter of Caraballo, 13 Misc 3d 1229(A), NY Slip Op. 52054(U), 2006 WL 3041684 [Civ. Ct. NY Cty 2006] wherein the Court stated that sharing the surname by the child with the custodial parent "is a legitimate point of concern because it minimizes embarrassment, harassment and confusion in school and social contacts" (Id. citing Matter of Shawn Scott C., 134 AD2d 345, 520 N.Y.S.2d 821 [2d Dept., 1987]; Learn by Houck v. Haskell, 194 AD2d 859, 598 N.Y.S.2d 595 [3d Dept., 1993]; Mercado v. Townsend, 225 AD2d 555, 638 N.Y.S.2d 762 [2d Dept., 1996]; see also In re Kobra, 37 Misc 3d 1216(A), 961 N.Y.S.2d 358 [Civ. Ct. Kings Cty 2012], appeal granted, order rev'd, 46 Misc 3d 54, 2 N.Y.S.3d 313 [App. Term. 2014]).

It must be conceded that the Court in Trevellian v. Wilson, 19 Misc 3d 137(A), 866 N.Y.S.2d 96 [App. Term 2008] reached a contrary conclusion on the basis that: "[i]t is no longer uncommon in today's society for a child to have a different surname than that of a parent, and, to the contrary, it has become commonplace for siblings to have different surnames." (Id.). This Court finds the facts of the instant case to be distinguishable from those presented in Trevellian and thus declines to adopt its holding.

The question of misconduct on the part of Mr. SZ mandates close review because he has earnestly and believably expressed deep love for "G" during this proceeding. He has not had the visits with his daughter that he would wish. It appears that this was occasioned both by his own behavior and the actions of his ex-wife. The fact remains that at a critical point in her young life, "G" formed a stronger parental bond with Mr. JZ than with him. Mr. SZ's anguished testimony acknowledges this state of affairs. The ultimate factor, however, is "G's" well-being.

Mr. SZ's testimony regarding the financial support for "G" considerably undermines his position. In the case of Matter of Pollack, supra., the Court was impressed by the Father's promise to pay arrearages in child support when permitted visitation. Here Mr. SZ has made it clear that his good name may be alienated for a price-no further child support. The Court had hoped that this accusation by Petitioner would be denied or explained. Instead, Mr. SZ let it stand unrefuted, thus indicating his agreement. This was corroborated by his words from the witness stand in which he acknowledged both his ability to pay child support and willful refusal to do so based upon his ex-wife's behavior. It is readily apparent that only his daughter suffered as a result of this treatment. To use such behavior in the form of a threat to hang as a financial Sword of Damocles over "G's" head can only be considered misconduct for the purposes of the application. We find this to be a "justifiable basis for changing a child's surname" (In re Cruz, 49 Misc 3d 155[A], 29 N.Y.S.3d 846 [App. Term. 2nd Dept. 2015]).

Considering all of these factors the Court is constrained to find that the forgoing has proven both that there is no reasonable objection to the proposed name change and that "G"'s best interest will be substantially by allowing her to change her middle name and surname this time.

Accordingly, the Petition must be granted.

Simultaneously with the signing of this order, the Court is executing a Name Change Order (Civil Rights Law Sec. 63) and a further Order partially sealing the record pertaining to "G's" testimony (22 NYCRR Sec.216.1).

This Memorandum is also the Order of the Court.

[1] The names have been abbreviated to protect the child's identity

[2] On Moral Duties (De Officiis) Marcus Tullius Cicero. The term "pietas can also be translated as: piety; dutifulness; affection, love; loyalty; gratitude" (Pocket Oxford Latin Dictionary)."

WHEN MEDIATION IS A CONTRACTUAL PREREQUISITE

ALLIED CONSTR. CORP. v. PARSONS TRANSPORATION GROUP OF NY, INC., 2022 NY Slip Op 50126 - NY: Supreme Court 2022:

"This action arises from a dispute over payment for construction-management services provided by plaintiff, Allied Construction Corp., to defendant Parsons Transportation Group of New York in connection with a public-works project owned by defendant New York City Transit Authority. Plaintiff contends that Parsons failed to pay approximately $400,000 that Parsons owed to plaintiff under the terms of their construction agreement. Plaintiff brought this action to foreclose on several mechanic's liens securing payment from Parsons and to collect on a payment bond guaranteed by defendants Federal Insurance Company, Fidelity & Deposit Company of Maryland, and Zurich American Insurance Company. Plaintiff's complaint also asserts claims against Parsons sounding in breach of contract, unjust enrichment, and an account stated.^[1]

Three days after filing the original summons and complaint, plaintiff brought this motion to compel Parsons to arbitrate their dispute under terms set forth in the underlying construction agreement. (See NYSCEF No. 11.) The motion is denied without prejudice.

DISCUSSION

As a threshold matter, although it may appear incongruous that plaintiff is the party seeking to compel arbitration (and to stay its own action pending arbitration), plaintiff has not waived its right to arbitrate by bringing this suit. Plaintiff asserts that it brought the action to preserve its mechanic's liens and its right to payment under the payment bond. (See NYSCEF No. 18 at ¶ 13 [amended complaint]; NYSCEF No. 14 at ¶ 7 [affidavit of plaintiff's principal]; NYSCEF No. 12 at ¶¶ 7-12, 14 [attorney affirmation].) A suit of this kind, in the nature of an effort to preserve the status quo pending arbitration, is not an arbitration waiver. (See Tradesource Inc. v Ancor, Inc., 281 AD2d 538, 538 [2d Dept 2001]; see also Glickenhaus & Co. v Taylor, 163 AD2d 59, 60 [1st Dept 1990] [explaining that "[t]here is neither waiver nor an election of remedies where plaintiff moves in court for protective relief in order to preserve the status quo while at the same time exercising its right under the contract to demand arbitration"] [internal quotation marks and ellipsis omitted].)

This conclusion is not altered by the fact that plaintiff's complaint asserts a series of contractual claims for the same money sought in the lien-foreclosure and payment-bond causes of action. (See Riggi v Wade Lupe Constr. Co., 176 AD2d 1177, 1179 [3d Dept 1991], citing Matter of Assael v Assael, 132 AD2d 4, 9-12 [1st Dept 1987]; Bridas S.A. Petrolera Indus. y Comercial v International Std. Elec. Corp., 128 Misc 2d 669, 677 [Sup Ct, NY County 1985]; CEGF & G Plumbing Corp. v Transcorp Constr. Corp., 2006 WL 8422810, at *1 [Sup Ct, NY County Sept. 29, 2006].) Nor does plaintiff's limited availment of the judicial forum—i.e., filing a complaint and moving to compel arbitration three days later—constitute an arbitration waiver by litigation conduct.^[2]

Nonetheless, plaintiff's motion to compel arbitration must be denied, on two independent grounds.

First, the construction agreement under which plaintiff is moving to compel provides that in the event of a dispute that the parties cannot resolve on their own, they "shall submit to non-binding mediation prior to commencing arbitration or an action in a judicial forum." (NYSCEF No. 4 at § 7.14[b] [emphasis added].) Having engaged in (unsuccessful) mediation is thus a precondition to commencing an arbitral proceeding. Plaintiff does not, however, represent (either in the complaint or the papers supporting the motion to compel) that the parties previously engaged in mediation. Failure to establish that this precondition has been satisfied forecloses plaintiff's request on this motion to compel arbitration.^[3] (See Matter of County of Rockland v Primiano Constr. Co., 51 NY2d 1, 7-8 [1980]); Matter of Brenda DeLuca Trust v Elhannon, LLC, 108 AD3d 902, 904 [3d Dept 2013].)

Second, plaintiff has moved to compel under CPLR article 75. (See NYSCEF No. 11 at 1.) But CPLR 7503, governing requests to compel arbitration, provides that a party "may apply for an order compelling arbitration" only if it is "aggrieved by the failure of another to arbitrate." (CPLR 7503[a].) Plaintiff does not represent that it has asked Parsons to arbitrate or commenced an arbitration under the applicable arbitral rules. Absent a failure or refusal by Parsons to arbitrate, this court lacks authority to compel arbitration in the first instance. (See Matter of Cullman Ventures (Conk), 252 AD2d 222, 229 [1st Dept 1998].)

This court does not determine here that plaintiff cannot establish that it has satisfied the necessary contractual and statutory preconditions to arbitration—merely that plaintiff has not done so on this motion.

Accordingly, for the foregoing reasons, it is

ORDERED that plaintiff's motion to compel arbitration is denied without prejudice.

[1] Plaintiff recently amended its complaint (see NYSCEF No. 18); the amendment, though, appears limited to adding another exhibit in support of the complaint's allegations (see NYSCEF No. 23).

[2] Indeed, the record does not reflect whether plaintiff has even served defendants with copies of its pleadings.

[3] As a "prerequisite to entry into the arbitration process," rather than a "procedural prescription for the management of that process," compliance with the contractual mediation requirement is for the court to decide, rather than the arbitrator. (Matter of County of Rockland v Primiano Constr. Co., 51 NY2d 1, 8-9 [1980].)"

PROBATING THE REMOTE EXECUTED WILL

 

MATTER OF HOLMGREN, 2022 NY Slip Op 22049 - NY: Surrogate's Court, Queens 2022:

"Before the Court is a petition by decedent's brother to probate an attorney-drawn and supervised instrument dated June 22, 2021, purporting to be the Last Will and Testament of the decedent. The sole distributee of the estate, decedent's mother, has executed a waiver and consent in favor of its admission.

While written opinions are generally not warranted in uncontested matters, the within instrument presents the Court with its first opportunity to formally address what may likely be a recurrent scenario regarding the adequacy of affidavits submitted with instruments executed under the auspices of New York Executive Order 202.14 (the Order), which, for the brief period of April 7, 2020 to June 25, 2021, permitted the remote execution of wills.

The Order, occasioned by the extraordinary circumstances surrounding the then-emerging Covid-19 Pandemic, did not, as many wrongfully assume, replace the formal execution requirements of EPTL 3-2.1. Rather, it solely authorized the use of audio-visual technology to satisfy the "presence" requirements contained in the statute.

The long established formalities governing the proper execution of a will are set forth in EPTL 3-2.1 Briefly, this statute requires the testator to sign the will in the presence of at least two attesting witnesses (or acknowledge testator's signature to each attesting witness); to declare to the attesting witnesses that the instrument signed is testator's last will and testament (the so-called "publication" requirement); that the witnesses, within 30 days, both attest the testator's signature was affixed or acknowledged "in their presence"; and that the witnesses, at the request of the testator, sign their names and affix their addresses at the end of the will (see EPTL 3-2.1[a][2]-[a][4]).

In the pre-pandemic world the above requirements, which contemplated physical presence and in-person interaction, were not considered onerous, much less potentially hazardous to one's health. Indeed will execution ceremonies of the not so distant past were routinely carried out in law office conference rooms, cramped offices, small kitchens, and even hospital wards without the slightest thought given to the proximity of the participants or the potential exposure to viral disease. Any mention of the adequacy of the air filtration system, the availability of masks or hand sanitizer, or of a concern regarding a participant's sneeze or cough potentially exposing others present to microbes would have— at a minimum—raised eyebrows. No longer.

With the public's aversion to personal interaction increasing in tandem with its demand for estate planning, the remote witnessing provision provided a welcomed respite to in-person execution ceremonies, permitting New York residents to engage in increasingly relevant end-of-life planning in a manner consistent with social distancing guidelines. Good intentions aside, however, virtual witnessing is not without its own inconveniences.

According to the Order, the "presence" requirements incident to the act of witnessing can only be "virtually" satisfied provided the following conditions are met:

(1) the testator has to be either personally known to the attesting witnesses or must present valid photo identification to the witnesses during the video conference; (2) the video conference must allow for direct interaction between the testator, witnesses, and if applicable, the supervising attorney (no-prerecorded videos); and (3) the witnesses must receive a legible copy of the signature page(s) the same day the papers are signed.

In addition to the foregoing conditions, the Order includes provisions whereby the attesting witnesses may sign the transmitted copy of the signature page(s) and transmit them back to the testator and further provides that the witnesses may repeat the witnessing of the original signature page(s) as of the date of execution provided they are presented with the original signature pages and the electronically witnessed copies within 30 days of the remote execution ceremony.

While not required at the time of execution by statute or by the Order, best practice considerations plainly include the execution and annexation to the instrument of a contemporaneous "self-proving affidavit" whereby the attesting witnesses swear to "such facts as would if uncontradicted establish the genuineness of the will, the validity of its execution and that the testator at the time of execution was in all respects competent to make a will and not under any restraint" (SCPA 1406).

Although the instrument before the Court appears to contain such a contemporaneous affidavit from the attesting witnesses, the Court finds that the affidavit fails to establish all of the facts necessary to prove the validity of the will's execution pursuant to the Order under which it was authorized.

Initially, the affidavit is deficient in that it states that the attesting witnesses were "acquainted" with the testator. In the past, such language has proven adequate for traditional in-person executions (which oftentimes utilize institutional witnesses who have just met the testator, such as law firm employees). Yet the Order specifically requires that the testator either be personally known to the witnesses, or, that the testator display valid photo identification to the witnesses during the ceremony.

Since the term "personally known" obviates the need for the testator to produce any proof of identification to the witnesses whatsoever, it implies a quantum of familiarity between the attesting witnesses and the testator that goes beyond that of "acquaintance." A mere introduction to a law firm paralegal or so-called "friend of a friend" does not satisfy a standard that allows for the dispensation of confirmatory photo identification. Therefore as the affidavit annexed to the instrument only recites that the witnesses were "acquainted" with the testator and is otherwise silent regarding whether the testator produced valid photo identification during the execution ceremony, it is insufficient to demonstrate compliance with the Order.

In addition, the affidavit is deficient in that it does not state that the audio-visual technology referenced was in working order and allowed for direct interaction between the testator and the witnesses in real time.

Also, and significantly, the affidavit does not indicate that a legible copy of the signature page was transmitted to the witnesses on the same day that the witnesses observed the signing. Instead, the affidavit nebulously states the decedent "thereafter" scanned and emailed the signature page to the witnesses.

When presented with an affidavit intended to conclusively establish the genuineness of a testamentary instrument, the court should not have to resort to surmise or presumptions. The affidavit should clearly spell out that the transmittal of the signature pages occurred on the same date that the instrument was signed.

Of additional interest in this proceeding is the fact that the Court has been presented with an original instrument bearing the original signatures of the testator and both attesting witnesses. Clearly then, the witnesses were, at some point, apparently presented with the original instrument and it was re-signed pursuant to the permissive provisions of the Order. Compliance with the Order requires the presentation to the witnesses of both the original signature pages and the electronically witnessed copies within 30 days of the remote execution ceremony. The affidavit annexed to the Will does not even address the apparent re-signing of the original by the witnesses.

As the SCPA is explicit in that "[b]efore admitting a will to probate the court must inquire particularly into all of the facts and must be satisfied with the genuineness of the will and the validity of its execution" (SCPA 1408) the Court would be hard pressed to find the offered instrument, which bears original ink signatures of the testator and each attesting witness, passed muster in the absence of proof of how such document even came into existence.

Lastly, other facts that have been furnished by petitioner indicate that there are counterparts of the offered instrument that have not been filed with the Court. Where, as here, a will is executed in duplicates, all duplicates should be provided to the Court, not for the purpose of admitting each separately, but rather, to provide assurance that the instrument was not revoked and that each contains the complete will of the testator (see Matter of Lewis, 25 NY3d 456 [2015]; Crossman v Crossman, 95 NY 145 [1884]).

While mindful that the overriding intent of the Order was to provide an avenue of relief and accommodation for the bar and public in the midst of a pandemic, a corresponding adaptation of the standards employed by the Court in assessing the validity of such instruments is unnecessary, and the expectation that submission of affidavits establishing strict compliance with the specific strictures of the Order cannot be considered onerous.

Accordingly, the admission of the offered instrument shall be held in abeyance pending review by the Court of supplemental affidavits from the attesting witnesses addressing all of the requirements set forth in the remote witnessing Order, affidavit(s) detailing the apparent re-signing by the witnesses of the testator's original signature page, including the creation and chain of custody of said original, and the production of all signed counterparts of the offered instrument.

This is the decision and order of the Court."

WHO GETS THE DOG?

Mundo v Weatherson, 2022 NY Slip Op 50125(U), Decided on February 25, 2022, Civil Court Of The City Of New York, New York County, Ally, J:

"Plaintiff commenced this action by service of summons and complaint, seeking to recover possession of a Chihuahua dog named Maximus. In the complaint, plaintiff alleges that Maximus (valued at approximately $2,500), is being wrongfully detained by defendant because plaintiff holds superior right to possession. On August 17, 2020, plaintiff filed an amended complaint asserting causes of action for replevin, declaratory judgment, and intentional infliction of emotional distress.

Defendant joined issue by service of a verified answer on September 16, 2020. In his answer, defendant claims that defendant is Maximus' legal owner and therefore entitled to sole and exclusive possession. Defendant further alleges that plaintiff breached a pre-existing agreement between the parties whereby they agreed to jointly share custody of Maximus in two-week intervals. Finally, defendant contends that plaintiff fails to state a cause of action for intentional infliction of emotional distress.

On November 30, 2020, plaintiff moved by order to show cause for a preliminary injunction requiring defendant to return Maximus to plaintiff pending resolution of the action. In an order dated December 1, 2020, the Hon. Sabrina Kraus directed the parties to continue the joint custody arrangement in two-week intervals pending the resolution of the action on its merits.

A bench trial was held before this Court on January 2, January 6, and January 27, 2022. At trial, both parties were represented by counsel. On February 4, 2022, the trial concluded with the submission of written trial memoranda.

Findings of Fact

Based upon the credible testimony at trial, the Court adduced the following facts:

In summer of 2016, plaintiff and defendant were involved in a romantic relationship. Over the course of their relationship, the parties had discussed getting a dog. Defendant, a [*2]veterinarian, had previously owned dogs and had a preference for adopting a rescue dog as an alternative to buying one. Plaintiff, who had never owned a dog, was interested in getting a dog but had specific preferences for size and temperament that he believed would suit the parties' living situation and lifestyle.

In June 2016, defendant was completing his veterinary internship at the Animal Medical Center (AMC) when a colleague informed him that a patient's owner, Vanessa Corchado, was concerned about her ability to care for her dog (then named Oreo) due to the costs and requirements of necessary specialized care. Defendant was further informed that Corchado was exploring the possibility of rehoming Oreo. Oreo remained at AMC receiving care for several days. Upon Corchado's return to AMC, defendant discussed with her the possibility of defendant taking over ownership of Oreo and Corchado agreed.

Typically, AMC protocol governing relinquished animals requires the animal to stay within the hospital for a duration of time before going to a shelter, whereupon aspiring adopters were required to complete an application for approval to adopt. To circumvent this protocol, however, defendant arranged for a same-day exchange directly with Corchado. After sending photos and other information about Oreo to plaintiff, defendant met with Corchado at a location down the street from AMC. Corchado gave Oreo over to defendant and defendant provided Corchado with his contact information. Defendant then contacted plaintiff to arrange for plaintiff to retrieve Oreo, and defendant returned to work. Upon retrieving Oreo, plaintiff brought Oreo to his home and rechristened him Maximus. As the parties at the time did not reside together, Maximus lived with plaintiff in plaintiff's home for a few weeks before defendant moved in.

For the most part, the parties split the various tasks associated with dog ownership. Plaintiff arranged for Maximus to be neutered, microchipped, and ensured Maximus was caught up on vaccinations. Defendant, in his capacity as a veterinarian, examined Maximus and provided other specialized treatment Maximus required. Defendant also paid for food and vaccinations, for which he was able to receive a discounted rate. Plaintiff set up the microchip monitoring account and New York City license. Plaintiff also generally took responsibility for bringing Maximus to the veterinarian for routine checkups and procedures.

Both parties took Maximus to their respective workplaces on a semi-regular basis, and both parties took Maximus on walks and other activities. Plaintiff often brought Maximus on trips to his friends' summer house on Fire Island, both with and without defendant. Elizabeth Wheaton, a close friend of plaintiff, testified that Maximus was around enough that the vacation house had its own dog bed and other supplies ready for plaintiff's visits. When the couple traveled and were unable to bring Maximus along, plaintiff's friends or family served as dog sitters, guided by a detailed document drafted by plaintiff known as "Max's Playbook."

The parties ended their romantic relationship approximately three years later in June 2019. Plaintiff moved out of their shared apartment in August 2019 and Maximus remained with plaintiff while defendant finalized his new living arrangements. The parties then commenced a voluntary "joint custody" arrangement whereby each party would have Maximus for two or three weeks at a time before bringing the dog to the other party in turn. This arrangement continued relatively amicably until January 2020. Around that time, plaintiff testified, he discovered that defendant had been unfaithful during their relationship. On the day plaintiff was scheduled to bring Maximus to defendant's home, plaintiff instead left Maximus at home and went to confront defendant about the alleged infidelity. Maximus would remain in plaintiff's care for the next six months.

In July 2020, plaintiff brought Maximus to AMC for a routine checkup. Unbeknownst to plaintiff, defendant had been notified about the upcoming appointment by staff at AMC. While Maximus was at AMC, defendant entered the facility through a separate entrance. When the appointment was finished, AMC released Maximus to defendant, who left with Maximus again through a separate exit. Plaintiff, who had not been permitted into the clinic area due to covid-19 restrictions, only learned about defendant having collected Maximus upon inquiring about the wait to staff. Plaintiff commenced the instant action shortly thereafter.

Certain facts or events were disputed by the parties through conflicting testimony at trial. Plaintiff contends that the bulk of Maximus' daily care fell to him: plaintiff testified that he managed the dog's licensing, researched pet insurance, and managed his regular veterinary appointments. Plaintiff also claims that he walked Maximus the majority of the time and brought Maximus to his workplace on a regular basis. Plaintiff maintains that while defendant did sometimes bring Maximus to the clinic, when defendant did so Maximus was often confined to a kennel and was not as free to walk about as he did so at plaintiff's workplace. As corroboration, plaintiff presented the testimony of Ivan Carriel, a doorman at the building where the parties resided with Maximus, Elizabeth Wheaton, a close friend of plaintiff, and Emma Hansen, a colleague of plaintiff.

Defendant maintains that Maximus was always understood to be "his" dog, both as a condition of obtaining Maximus from his previous owner and throughout his relationship with plaintiff. Defendant asserted that contrary to plaintiff's testimony, defendant was equally responsible for walking Maximus and other daily tasks. Defendant also presented the testimony of Vanessa Corchado, who he asserts only relinquished Maximus upon defendant's representation that he would be the dog's sole owner.

Analysis

Replevin

Traditionally, New York courts have treated companion animals as personal property; as with other personal property, courts resolved disputes by evaluating which party had the superior possessory right to the animal (Travis v Murray, 42 Misc 3d 447 [Sup Ct, New York County 2013]). Accordingly, the appropriate action to recover possession of a companion animal in non-matrimonial contexts lies in replevin (see, e.g. LeConte v Lee, 35 Misc 3d 286 [Civ Ct, New York County 2011]).

More recently, however, courts have recognized the myriad ways in which companion animals are much more than simple possessions. In Raymond v Lachmann, the First Department acknowledged "the cherished status accorded to pets in our society, the strong emotions engendered by disputes of this nature, and the limited ability of the courts to resolve them satisfactorily" (264 AD2d 340, 341 [1st Dept 1999]). In doing so, the court established that simple adherence to traditional principles of property ownership is outmoded and inappropriate where a treasured pet is involved, and that a court must also consider those intangible and subjective factors invariably involved.

An applicable standard was further developed by the court in Travis v Murray (42 Misc 3d 447 [Sup Ct, New York County 2013]), a matrimonial dispute. In an eloquent and detailed discussion, the Travis court examined the wide variety of approaches taken by the courts in several jurisdictions, including that in Raymond. The Travis court ultimately concluded that a refinement of the "best for all concerned" standard applied by the Raymond court struck the best balance between a strict property analysis and the more extensive interests analysis involved in [*3]child custody cases. This standard has been subsequently applied by several courts (see, e.g. Mitchell v Snider, 51 Misc 3d 1229[A][Civil Ct, New York County 2016]; Ramseur v Atkins, 44 Misc 3d 1209[A][Civ Ct, New York County 2014]; Hennet v Allan, 43 Misc 3d 542 [Sup Ct, Albany County 2014])).

Following the "best for all concerned" approach, this Court will therefore examine not just those factors that would weigh towards the parties' respective possessory rights, but also "intangible factors such as why each party would benefit from having the dog in his or her life and why the dog has a better chance of prospering, loving, and being loved in the care of one party or the (Mitchell v Snider, 51 Misc 3d 1229[A] at *2 [Civ Ct, New York County 2016]). Relevant facts include those that reflect each party's ability to meet the dog's physical and emotional needs, including financial circumstances, access to outdoor activities, opportunities for exercise and socialization, access to veterinary care and necessary supplies, and the time required to meet the dog's need's on a daily basis.

Based upon the evidence adduced at trial, the Court finds first that the traditional markers of ownership are non-dispositive. Maximus was obtained without payment, and the costs and tasks associated with ownership (such as vaccinations, licensing, insurance) were split between the parties. It is important to note that the issue of ownership may have been clearer had Maximus been properly adopted according to AMC protocol. Notwithstanding, it is evident that both parties intended to and did benefit from circumventing the established rules to obtain Maximus more quickly and without cost.

While defendant repeatedly maintained that he was only ever understood to be the sole owner and Maximus simply "shared" with plaintiff, the parties' subsequent conduct (dividing of expenses and documentation, sharing in Maximus' daily care, holding out to other members of the community that Maximus was "their" dog) further points to shared ownership. Whether certain documents had the name of one or the other party is less relevant where clearly each party contributed both effort and money, and where both parties were recognized by others as co-owners.

The Court acknowledges that each party has, in turn, resorted to a bad faith tactic in an effort to retain possession of Maximus: first plaintiff, in failing to return Maximus in accordance with their informal shared custody agreement, then defendant in surreptitiously removing Maximus from his veterinary appointment. While the above behavior is not excusable, the Court also recognizes that each party cares deeply for the Maximus and derives much from Maximum's companionship. And unlike in other cases examined by this Court, there is no clear discrepancy in the parties' intentions; for example, neither party seeks to exploit Maximus for income-generating practices such as breeding. And it is clear that the party who emerges unsuccessful from this litigation will feel the loss of a dear companion. Nonetheless, the Court must make the—albeit difficult—determination of which party would benefit most from retaining possession of Maximus and which party is in the position to best provide for Maximus' physical and emotional needs.

Each party has demonstrated the knowledge and financial capacity to provide for Maximums' needs, and each is prepared to commit his time and energy to do so. However, based upon the evidence adduced at trial, the Court finds that plaintiff has met his burden to show that possession of Maximus should be awarded to him. Plaintiff has testified that his work schedule provides him a substantial amount of time to spend with Maximus and the ability to bring him to work on a frequent basis. Indeed, plaintiff's colleague testified that Maximus appeared [*4]comfortable at the office and was afforded freedom to roam when he wanted. Plaintiff's longtime friend, Elizabeth Wheaton, testified that plaintiff structured his non-work hours around Maximus' needs, ensuring that Maximus' needs were met before all else. She further testified that Maximus so frequently accompanied their group of friends that their own friends and family were well acquainted with the dog. Finally, the testimony established that when plaintiff and defendant were not able to bring Maximus someplace, Maximus' care fell to plaintiff's friends or family, guided by a lengthy and detailed document drafted by plaintiff himself.

Defendant testified that his work hours allow more limited time to spend with Maximus, and that he brought Maximus to work less frequently. There was no testimony as to who would care for Maximus in the event that defendant had to travel or otherwise was unable to care for him. During the period of time that plaintiff held Maximus past his agreed-upon time period, defendant did not make efforts to recover him until collecting him from the veterinary appointment several months later. To the extent that defendant, a veterinarian, currently provides the specialized care that Maximus requires, he conceded that such care could readily be provided by another veterinarian and facility.

In sum, plaintiff has shown that he has intimate knowledge of Maximus' physical and emotional needs and that he has the ability to spend significant time caring for and socializing Maximus. Plaintiff has further shown that he can care for Maximus while at work and on vacation, and that Maximus has become such an ingrained part of plaintiff's life that his friends and family have themselves taken on parts of Maximus' care.

As such, the Court finds that plaintiff has established that awarding plaintiff possession of Maximus would be in the best interest for all concerned. The Court therefore awards full possession of Maximus to plaintiff.

Intentional Infliction of Emotional Distress

With regard to plaintiff's cause of action for intentional infliction of emotional distress, the Court finds that plaintiff has not met his burden. To prevail in an action for intentional infliction of emotional distress, a plaintiff must show:

(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.

(Chanko v American Broadcast Companies, Inc, 27 NY3d 46, 56 [2016]). Here, the Court finds that the evidence adduced at trial is not sufficient to establish that defendant's conduct satisfied the elements of the cause of action. Accordingly, this cause of action is dismissed.

Conclusion

Based upon the foregoing, the Court finds that plaintiff has established the awarding possession of Maximus to plaintiff is in the best interests for all concerned. Accordingly, it is hereby

ORDERED and ADJUDGED, that plaintiff is awarded full possession of Maximus to the complete exclusion of defendant; and it is further

ORDERED, that the two-week alternate sharing arrangement shall cease with service of this order with notice of entry upon defendant; and it is further

ORDERED, that plaintiff's cause of action for intentional infliction of emotional distress [*5]is dismissed with prejudice.

This constitutes the decision, order and judgment of this Court.

EXCEPTIONS TO GOL 5-321

TITUMIR v. BARKER AVE. ESTATES LLC, 2022 NY Slip Op 50073 - NY: Supreme Court 2022:

"It has long been held that absent a violation of law or some transgression of public policy, people are free to enter into contracts, making whatever agreement they wish, no matter how unwise they may seem to others (Rowe v Great Atlantic & Pacific Tea Company, Inc., 46 NY2d 62, 67-68 [1978]). Consequently, when a contract dispute arises, it is the court's role to enforce the agreement rather than reform it (Grace v Nappa, 46 NY2d 560, 565 [1979]). In order to enforce the agreement, the court must construe it in accordance with the intent of the parties, the best evidence of which being the very contract itself and the terms contained therein (Greenfield v Philles Records, Inc., 98 NY2d 562, 569 [2002]). It is well settled that "when the parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms" (Vermont Teddy Bear Co., Inc. v 583 Madison Realty Company, 1 NY3d 470, 475 [2004] [internal quotation marks omitted]). Moreover, "a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield at 569). Accordingly, courts should refrain from interpreting agreements in a manner which implies something not specifically included by the parties, and courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing (Vermont Teddy Bear Co., Inc. at 475). This approach serves to preserve "stability to commercial transactions by safeguarding against fraudulent claims, perjury, death of witnesses [and] infirmity of memory" (Wallace v 600 Partners Co., 86 NY2d 543, 548 [1995] [internal quotation marks omitted]).

The proscription against judicial rewriting of contracts is particularly important in real property transactions, where commercial certainty is paramount, and where the agreement was negotiated at arm's length between sophisticated, counseled business people (Vermont Teddy Bear Co., Inc. at 475). Specifically, in real estate transactions, parties to the sale of real property, like signatories of any agreement, are free to tailor their contract to meet their particular needs and to include or exclude those provisions which they choose. Absent some indicia of fraud or other circumstances warranting equitable intervention, it is the duty of a court to enforce rather than reform the bargain struck (Grace v Nappa, 46 NY2d 560, 565 [1979]).

Leases are nothing more than contracts and are thus subject to the rules of contract interpretation, namely, that the intent of the parties is to be given paramount consideration, which intent is to be gleaned from the four corners of the agreement, and that of course, the court may not rewrite the contract for the parties under the guise of construction, nor may it construe the language in such a way as would distort the contract's apparent meaning (Tantleff v Truscelli, 110 AD2d 240, 244 [2d Dept 1985]).

In the absence of fraud or other wrongful act, a party who signs a written contract is presumed to know and have assented to the contents therein (Pimpinello v Swift & Co., 253 NY 159, 162 [1930]; Metzger v Aetna Ins. Co., 227 NY 411, 416 [1920]; Renee Knitwear Corp. v ADT Sec. Sys., 277 AD2d 215, 216 [2d Dept 2000]; Barclays Bank of New York, N.A. v Sokol, 128 AD2d 492, 493 [2d Dept 1987]; Slater v Fid. & Cas. Co. of NY, 277 AD 79, 81 [1st Dept 1950]). In discussing this long-standing rule the court in Metzger stated that [i]t has often been held that when a party to a written contract accepts it as a contract he is bound by the stipulations and conditions expressed in it whether he reads them or not. Ignorance through negligence or inexcusable trustfulness will not relieve a party from his contract obligations. He who signs or accepts a written contract, in the absence of fraud or other wrongful act on the part of another contracting party, is conclusively presumed to know its contents and to assent to them and there can be no evidence for the jury as to his understanding of its terms. This rule is as applicable to insurance contracts as to contracts of any kind. (Metzger at 416 [internal citations omitted]).

Generally, pursuant to GOL § 5-321, a provision in a lease seeking to exempt a party for his own negligence is void and unenforceable as against public policy (Great N. Ins. Co. v Interior Const. Corp., 18 AD3d 371, 372 [1st Dept 2005], affd, 7 NY3d 412 [2006]; Tormey v City of New York, 302 AD2d 277, 278 [1st Dept 2003]; Gibson v Bally Total Fitness Corporation, 1 AD3d 477, 479 [2d Dept 2003]; Radius, Ltd. v Newhouse, 213 AD2d 614, 615 [2d Dept 1995]). To be sure, GOL § 5-321 states that

[e]very covenant, agreement or understanding in or in connection with or collateral to any lease of real property exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the demised premises or the real property containing the demised premises shall be deemed to be void as against public policy and wholly unenforceable.

However, case law has carved an exception to the prohibition described in the GOL §5-321. Specifically, it is well settled that an indemnification agreement in a lease shall be enforceable even if the lessor seeks to have the lessee indemnify him for his own negligence when the lease is the product of "sophisticated parties negotiating at arm's length," and "have agreed to allocate the risk of liability to third parties between themselves, essentially through the employment of insurance" (Great N. Ins. Co. at 372; see Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153, 161 [1977]. In explaining why GOL §5-321 does not apply in the foregoing circumstances, the court in Hogeland stated that [t]he legislative history and the statute's express invalidation of any agreement `exempting the lessor from liability for damages for injuries resulting from the negligence of the lessor' strongly suggests that is was directed primarily to exculpatory clauses in leases whereby lessors are excused from direct liability for otherwise valid claims which might be brought against them by others. It and several parallel provisions prohibit agreements which free landlords (or others in comparable relationships) from all responsibility to a tenant (or others) for negligence; the former are thus compelled at their own peril to retain the incentive to act prudently. It is against this background of declared purpose that the indemnification clauses before us must be considered. So analyzed, Berenson is not exempting itself from liability to the victim for its own negligence. Rather, the parties are allocating the risk of liability to third parties between themselves, essentially through the employment of insurance. Courts do not, as a general matter, look unfavorably on agreements which, by requiring parties to carry insurance, afford protection to the public (internal citations omitted)(Hogeland at 160-161). Thus, in both Hogeland and Great N. Ins. Co., the lessees were obligated to indemnify the lessors, even though they had been found negligent Hogeland at 158; Great N. Ins. Co. at 372)."

PART 137 AND SURROGATE COURT FEE APPLICATIONS

 

MATTER OF HART, 2022 NY Slip Op 22018 - NY: Surrogate's Court, Rockland 2022:

"I. Motion for Summary Judgment for Failure to Comply with Part 137

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient admissible evidence to eliminate any material issues of fact from the case. See Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957). The movant bears the burden of proving entitlement to summary judgment, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 (1985). Once sufficient proof has been offered, the burden then shifts to the opposing party who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form that raises a triable issue of fact. See Zuckerman v. City of New York, 49 NY2d 557 (1980).

Here, Counterclaimants allege that Petitioner failed to comply with the notice provisions of 22 NYCRR § 137, which divests the Court of jurisdiction and requires dismissal of the fee petition. In the initial petition filed in this matter on December 10, 2014, the proposed engagement letter was attached as Exhibit D to the attorney affirmation. The "Agreement to Provide Legal Services" does not include the required Part 137 language. The answer with counterclaims does not specifically raise the failure to include Part 137 language in the proposed engagement letter as an affirmative defense or objection. Instead, in the first objection and point of law, the Counterclaimants allege that "Petitioner, admittedly a New Jersey law firm, is not authorized to practice law in New York State and failed to meet its responsibility to obtain from the Estate and/or administrator either a written retainer agreement and/or a letter of engagement as it was required to by NYCRR § 1215.1." Amended Verified Answer, Affirmative Defenses, and Respondents' Counterclaims to Petition at ¶6. The same issue is raised as the first affirmative defense. See id. ¶7. The second affirmative defense also cites the failure to obtain a letter of engagement in violation of NYCRR § 1215.1 and argues that Petitioner may only recover (if at all) on the basis of quantum meruit. The answer does not raise the issue that is the focus of this motion, the failure to provide the notice required by 22 NYCRR § 137.6(a)(1).

Petitioner does not claim that the Part 137 notice was sent. Instead, Petitioner argues that the Part 137 arbitration rules do not apply in this case because the Surrogate's Court Procedure Act provides an alternate process per SCPA §2110. Therefore, there is no dispute on the one fact issue raised by Counterclaimant in the motion (whether the notice was sent), making it appropriate for a ruling on summary judgment.

A. History of SCPA § 2110

Warren's Heaton on Surrogate's Practice reviews the history of the Surrogate's authority to fix attorney's fees. See 8 Warren's Heaton on Surrogate's Court Practice § 106.01. Prior to 1916, if a fiduciary disputed the fees charged by the estate's attorney, the attorney would bring an action at law against the fiduciary in their individual capacity. However, in In re Rabell, 175 A.D. 345 (2d Dept. 1916), the Appellate Division held that if a fiduciary refused to pay the full compensation of the attorney, the Surrogate's Court had jurisdiction to fix the amount of the fee and direct its payment from the estate in a special proceeding. In a subsequent matter, the New York County Surrogate's Court found that it had jurisdiction to determine the value of the services an attorney rendered to an estate and direct payment of fees out of the estate assets. In re Shipman, 116 Misc. 405 (Surr. Ct. NY Co. 1921), aff'd, 200 A.D. 896 (1st Dept. 1922), aff'd, 234 NY 499 (1922). In 1923, the Legislature enacted former Surrogate's Court Act § 231-a (the predecessor to SCPA § 2110), which embodied the procedure set forth in Rabell and Shipman.

SCPA § 2110 authorizes the Court to fix and determine the compensation of an attorney at any time during the administration of the estate. SCPA § 2110(2) directs that the proceeding shall be instituted by petition of, inter alia, an attorney who has rendered services to the estate. The Uniform Rules for Surrogate's Court require that an attorney file an affidavit of services in any proceeding to determine attorney's fees. See 22 NYCRR § 207.45(a). The Court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of the administration of an estate. See Matter of Stortecky v. Mazzone, 85 NY2d 518 (1995); Matter of Vitole, 215 AD2d 765 (2d Dept. 1995); Matter of Verplanck, 151 AD2d 767, 767 (2d Dept. 1989) (surrogate "bears the ultimate responsibility to decide," the reasonableness of compensation for legal services rendered to an estate); SCPA § 2110(3) (allowing Court to direct attorney to refund fees in excess of fair value of services rendered).

This power of the Surrogate to set fees is superior to the parties' consent to a requested fee. See Stortecky, 85 NY2d at 526 ("[T]he Surrogate had the authority to inquire into the reasonableness of counsel's fee even though agreed upon by the executor and assented to by the beneficiaries."). The Court is not bound by the terms of a retainer agreement. See Matter of Williams, 168 AD3d 753, 753 (2d Dept. 2019) ("the Surrogate bears the ultimate responsibility of deciding what constitutes a reasonable legal fee, regardless of the existence of a retainer agreement"); In re Guattery, 278 AD2d 738 (3d Dept. 2000) (absence of written retainer agreement did not prevent Surrogate from fixing attorney's fees); Estate of Paula M. Venezia, 2008 NY Misc. LEXIS 6644, 240 N.Y.L.J. 77 (Surr. Ct. Kings Co. 2008) (citing Matter of Schanzar, 7 AD2d 275 (1st Dept. 1959)).

The Surrogate also has the jurisdiction to determine attorney malpractice issues in a SCPA § 2110 proceeding to fix attorney's fees. See In re Estate of Tarka, 293 AD2d 396, 396 (1st Dept. 2002) ("The court's jurisdiction extended to . . . allegations of malpractice inasmuch as such claims allegedly arose in connection with the administration of the estate."); Haskel & Lancaster, 2001 NYLJ LEXIS 160, NYLJ, Jan. 5, 2001 at Pg. 2, (col. 6) (Surr. Ct. Nassau Co. 2001) (Radigan, J.).

B. History of 22 NYCRR § 137

Effective March 4, 2002, the Rules of the Chief Judge were amended to require attorneys to provide clients with a written letter of engagement. See NYCRR § 1215.1.^[2] The regulation instructs that the engagement letter address three topics: the scope of services to be provided; an explanation of the fees to be charged; and, "where applicable," a notification that the client may have a right to arbitrate fee disputes pursuant to 22 NYCRR § 137.^[3] Part 137 contains the regulations for the New York State Fee Dispute Resolution Program, which "provides for the informal and expeditious resolution of fee disputes between attorneys and clients through arbitration and mediation." 22 NYCRR § 137.0. To ensure that clients are aware of their right to arbitrate, 22 NYCRR § 137.6(a)(1) requires an attorney to forward a written notice to their client called "Notice of Client's Right to Arbitrate."

Certain matters are exempted from the Part 137 rules. Included among the exemptions are "claims involving substantial legal questions, including professional malpractice or misconduct" and "disputes where the fee to be paid by the client has been determined pursuant to statute or rule . . . or where the fee has been determined pursuant to a court order." §137.(b)(3),(5). Failure to provide the client with written notice of their right to elect to submit the fee dispute to arbitration, and the failure to allege in the complaint that either the notice was served or that arbitration is inapplicable, has been held to require dismissal of the complaint. See Zisholtz & Zisholtz, LLP v. Mandel, 165 AD3d 1312 (2d Dept. 2018); Pascazi Law Offices, PLLC v. Pioneer Natural Pools, Inc., 136 AD3d 878 (2d Dept. 2016). However, dismissal is without prejudice to refile after the proper service of the notice, should the offer of fee arbitration not be accepted by the client.

Incredibly, only three published cases have considered the interplay of SCPA § 2110 and the Part 137 Rules. In the Estate of Marie A. Henriques, the New York County Surrogate's Court dismissed without prejudice a fee petition filed by a law firm that had represented a respondent party, Antonio Henriques, because the estate and the firm agreed to pursue arbitration per Part 137. See 2014 NYLJ LEXIS 2051, NYLJ, Aug. 20, 2014 at Pg. p.22, col.1 (Surr. Ct. NY Co. 2014). A second case found the Part 137 Rules inapplicable because the fees in dispute were over $50,000, and therefore exempt from the Dispute Resolution Program. See Estate of Clarke, 2004 NYLJ LEXIS 3128, NYLJ, Jul. 15, 2004 at Pg. 21, col. 3 (Surr. Ct. Bronx Co. 2004). Finally, in a Surrogate's Court case in New York County, the Court denied a client's motion to compel arbitration of a fee dispute. See Estate of Julia Elizabeth Taschereau, 2006 NY Misc. LEXIS 6303 (Surr. Ct. NY Co. July 31, 2006). The Taschereau decision noted that the attorney's retainer agreement referred to the option for arbitration per Rule 137 but did not have all of the required language. See id. *11. However, the Court also noted that arbitration would not be available because there were claims of malpractice. See id. *12. Finally, the Court dismissed the attorney's cross-motion for determination of his fees because he had not brought the petition per SCPA § 2110. See Taschereau *13.

In a matter more akin to the one before this Court, the Kings County Surrogate's Court rejected a respondent's argument that the petitioning law firm was required to submit to fee dispute arbitration prior to filing an SCPA § 2110 application. See Estate of Rose Mary McGushin, 2013 NYLJ LEXIS 7294, NYLJ, Apr. 1, 2013 at p.23, col.4 (Surr. Ct. Kings Co. 2013). The Court distinguished between a fee dispute and "a petition that is an application to determine the reasonableness of the petitioner's compensation," noting that the Surrogate's Court had both the authority and the obligation to determine legal fees. Id. at *7. The opinion did not specifically mention the Part 137 Rules, but flatly rejected the argument that any type of mandated fee arbitration must precede filing of a SCPA § 2110 petition.

Finally, the treatise most frequently cited on Surrogate's Court practice, Warren's Heaton, concludes that SCPA § 2110 fee petitions should be exempt from Part 137. See 9 Warrren's Heaton on Surrogate's Court Practice § 119.04[8] "Legal Fees Not Subject to Arbitration." The treatise notes that enforcement of an arbitration award for legal fees performed on behalf of an estate would likely be referred to Surrogate's Court, where an independent inquiry into the reasonableness of the award would be conducted. The treatise concludes that it is "unlikely that the Surrogate's Court would defer to the arbitrator's award for legal fees." Id. (citing Raymond v. Davis, 248 NY 67 (1928)).

C. Conclusion

While this Court certainly appreciates the benefits of alternative dispute resolution, and in fact, routinely orders matters to mediation per the 2020 Presumptive Mediation rules, this Court must agree with the Kings County Surrogate's Court that failure to comply with the Part 137 Rules for arbitration of fees disputes does not require dismissal of a SCPA § 2110 petition nor divest this Court of subject matter jurisdiction over the petition. First, as that Court pointed out, Part 137 Rules are aimed at "fee disputes" filed by complaint. A fee petition in Surrogate's Court is not necessarily a fee dispute at all. It is a petition for the setting of fees, which is frequently uncontested.

Second, § 2110 gives the Surrogate the obligation to ensure that fees charged to an estate are fair and reasonable, regardless of the fiduciary's consent to the fees. Given the Surrogate's obligation to supervise the fees paid by an estate to its attorneys, the requirement that the matter be sent to arbitration would directly conflict with the Surrogate's duty. In fact, there are a number of subjects where an arbitration agreement is not enforceable because arbitration would be improper delegation of the Court's authority. See Matter of Aimcee Wholesale Corp. (Tomar Prods.), 21 NY2d 621(1968) (enforcement of NYS antitrust laws); Bidermann Indus. Licensing v. Avmar N.V., 173 AD2d 401(1st Dept. 1991) (disqualification of an attorney from representing a particular party); Durst v. Abrash, 22 AD2d 39 (1st Dept. 1964), aff'd 17 NY2d 445 (1965) (usury claims asserted by borrowers); Glauber v. Glauber, 192 AD2d 94 (2d Dept. 1993) (custody of and visitation with children). Specifically within the field of trusts and estates, the probate of a will, distribution of the estate, appointment of an administrator, accounting proceedings generally, kinship proceedings, will construction, guardianships, and controversies relating to the conduct of a fiduciary are all areas where New York Courts have held arbitration agreements unenforceable. See 9 Warren's Heaton on Surrogate's Practice § 119.04[1]-[7].

Arbitration of a matter that ends in an unenforceable settlement does not serve the goals of a "more efficient, affordable and meaningful civil justice process." "Court System to Implement Presumptive, Early Administrative Dispute Resolution for Civil Cases," Unified Court System Press Release, May 14, 2019. This Court concludes that since it has the duty to review and approve fees even in the face of the consent of the parties, an arbitration agreement on fees would be similarly unenforceable. Therefore, a party cannot be penalized for failure to offer participation in an alternate dispute resolution process that would still require application to the Surrogate's Court for approval of fees.

Finally, the Court finds that even if the Part 137 Rules did apply to Surrogate's Court fee petitions, Counterclaimants cannot raise failure of the Petitioner to comply with the Part 137 Rules at this late date in this matter. The purpose of Part 137 is to provide an informal and expeditious resolution of disputes. This matter has been before the Court for seven years. The fee dispute has already been to the Appellate Division and has been the basis for eight motions before this Court. The failure to provide the Part 137 Notice was first raised in the last year. It was not mentioned in the Answer or in the many, many prior motions. Dismissing the fee petition because the Petitioner failed to serve a notice for optional arbitration, which would have been declined by the Counterclaimants so that they could pursue their malpractice claims, and which would have resulted in an unenforceable agreement, if accepted, would be a waste of time, money, professional resources, and paper of almost epic proportions. In fact, the Court suspects that this entire motion is an effort at wasting Petitioner's time and money.^[4] Therefore, even if the Part Rule 137 applied, in the interest of justice, the Court declines to dismiss this SCPA § 2110 fee petition for failure to provide notice of the Part 137 Rules."