ARE LOCAL "GOOD CAUSE EVICTION LAWS" VALID?

"ORDERED, that the GCEL enacted by the City of Poughkeepsie Common Council is deemed unconstitutional, thereby rendering it VOID and UNENFORCEABLE under New York State's "Preemption Doctrine"; and it is further"

LAKR KAAL ROCK, LLC v. Paul, 2023 NY Slip Op 23070 - Dutch Co. City Court 2023:

"As a preliminary matter, this Court is a court constitutionally enacted pursuant to the New York State Constitution [NY CONST. Art. IV, §17] with jurisdiction to adjudicate constitutional legal issues. People v. Jackson, 76 Misc 2d 872 affirmed 36 NY2d 726 (1975); People v. Zongone, 102 Misc 2d 265 (Yonkers City Court 1979)(court held that NY disorderly conduct statute was constitutional); People v. Milio, 112 Misc 2d 949 (Yonkers City Court 1982) citing National Psych. Assn. et al v. University of State of NY, 18 Misc 2d 722, 725-26 affirmed 10 AD2d 688 affirmed 8 NY2d 197 (court should declare statutes unconstitutional that affect life and liberty and where the invalidity of the statute is apparent on its face); People v. Jack Resnick and Sons, Inc., 127 Misc 2d 1031(Yonkers City Court 1985)(upholding local ordinance and finding that if the constitutional questions raised in a court of limited jurisdiction are debatable, the court must declare the ordinance constitutional, and must not substitute its judgment for that of the legislative body); People v. Trolio, 170 Misc 2d 1017 (Village of Scarsdale 1996)(finding code limiting leaf blowers constitutional).

Secondly, respondent incorrectly contends that petitioner is seeking declaratory relief from this Court. The instant proceeding was commenced by petitioner pursuant to R.P.A.P.L. § 711(1), and the constitutionality and enforceability of the GCEL is inextricably intertwined with the facts set forth within the instant summary proceeding and central to the issues.

Third, Corporation Counsel's Office was timely and properly notified pursuant to C.P.L.R. § 1012. There are no procedural timing requirements setting forth when or how notice must be provided under C.P.L.R. § 1012(b). Moreover, in local government challenges, there is nothing that even imposes the notice obligation on the party raising the constitutional issue. Rather it is only implied. The statutory requirement that a motion for intervention be "timely" under C.P.L.R. § 1012, adds an element of judicial discretion to the "right" to intervene. (Alexander Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C102:5) "The principal guideposts in the valuation of timeliness are whether disposition of the action will be unduly delayed and whether the original parties will be prejudiced." Id. citing Norstar Apts., Inc. v. Town of Clay, 112 AD2d 750, 751 (4th Dept. 1985). Cf. C.P.L.R. 1013. See, e.g., Halstead v. Dolphy, 70 AD3d 639 (2d Dept. 2010)(intervention was not sought until more than four years from action's commencement). Here, once petitioner constitutionally challenged the GCEL, the parties were ordered by this Court that Corporation Counsel's Office was to be notified by petitioner and provided an opportunity to intervene. It is undisputed that notice was timely provided by petitioner to Corporation Counsel's Office, and undisputed that Corporation Counsel consented to the documentation being emailed. O'Fallon affirmation, dated January 23, 2022 [sic], ¶ 1-14. Petitioner complied with this Court's Order, Corporation Counsel intervened on behalf of the City of Poughkeepsie, their papers have been considered, and the parties have not demonstrated prejudice in any way. Halstead v. Dolphy, supra (holding that intervention may occur at any time provided it does not unduly delay the action or prejudice existing parties).

Fourth, Corporation Counsel's erroneous claim that it has been deprived of its right to appeal an adverse decision as an intervenor^[3], is wrong. A successful intervenor acquires the same status as that of an original party. See, e.g., NY Central RR Co., v. Lefkowitz, 19 AD2d 548 (2d Dept. 1963)(holding that once intervenors become parties to an action, they are to all intents and purposes considered original parties); Halstead v. Dolphy, supra at 640; Berkoski v. Trustees of Inc. Village of Southampton, 67 AD3d 840 (2d Dept. 2009); Paez v. Varveris, 12 Misc 3d 101 (App. Term 2d Dept. 2006).

Fifth, the Court rejects the City's argument that petitioner has unclean hands.

Sixth, the Court rejects the City's argument that the motion should be decided without passing on the constitutionality of the GCEL. While courts must exercise judicial restraint, a court may not avoid a constitutional issue by interpreting a challenged statute in a manner that produces an absurd or unreasonable result. Matter of Shernise C., 91 AD3d 26 (2d Dept. 2011). Likewise, legislative enactments are to be construed so as to avoid constitutional issues if doing so is fairly possible. Matter of Waterways Dev. Corp. v. Town of Brookhaven Zoning Board of Appeals, 126 AD3d 708 (2d Dept. 2015). However, here, central to the proceeding, is the GCEL, and whether it is constitutional, or void and unenforceable. This Court cannot avoid addressing the legality surrounding the challenged statute without reaching an absurd result. A decision on this issue dictates the course of this proceeding. As such, the merits of the statute's constitutionality and enforceability are addressed below.

Finally, contrary to arguments made by Corporation Counsel [Longcore affirmation, dated January 4, 2023, ¶ 29], the function of the judicial branch is not to render decisions that ensure public debate and outcry, nor is it to ensure input from the media. Indeed, its role and decisions must be insulated from such things. The judiciary must exercise fairness and impartiality in its decisions. It must protect the rights of individuals, ensure equal justice, interpret and apply the law, and be a guardian of the Constitution. As such, to the extent that the City argues that the Court should decline to exercise its power to rule on this issue for these reasons, same is wholly rejected.

The GCEL's constitutionality and enforceability

The general rule of law is that municipalities have the right to enact ordinances that tend to preserve good order, peace, health, and the safety and welfare of its inhabitants. Second Class Cities Law § 30; Poughkeepsie City Code § 1-2. Questions as to the wisdom, need, or appropriateness of the statute are to be left to the Legislature. Olsen v. Nebraska, 313 U.S. 236, 246 (1941). Moreover, courts are bound to construe statutes as they have been drawn and are not to review the expediency, wisdom or propriety of a Legislature's actions if such matters are performed within its powers. Lawrence Construction Corp. v. State of New York, 293 NY 634, 639 (1944).

And while municipalities have broad authority to enact legislation that promotes the welfare of their constituents, the New York State Constitution limits that power to local governments to the extent that they may not adopt laws inconsistent with the provisions of the Constitution or any general law relating to its property, affairs, or government. NY Const. art. IX, 2(c). Pusatere v. City of Albany, Sup. Ct. Albany Co., June 30, 2022, Ryba, S.C.J. Index No. 909653-21, citing NY Const. art. IX, 2(c); Municipal Home Rule Law 10(1)(i), (ii); Nyack v. Daytop Vill. Inc., 78 NY2d 500, 505 (1991); see also, Albany Area Bldrs. Assn. v. Town of Guilderland, 74 NY2d 372, 377 (1989).

There is a strong presumption that a legislative statute is constitutional, and its invalidity must be demonstrated by the party opposing it beyond a reasonable doubt. People v. Pagnotta, 25 NY2d 333, 337 (1969). Only in rare cases should courts of the first instance — like here — find acts of the Legislature unconstitutional. People v. Zongone, supra citing People v. Mason, 99 Misc 2d 583, 587 (Richmond County 1979). Facial challenges to statutes are generally disfavored because legislative enactments carry a strong presumption of constitutionality. People v. Taylor, 9 NY3d 129, 150 (2007). Moreover, the burden of proof in demonstrating that the statute is unconstitutional rests with the one who seeks to invalidate it. People v. Bright, 71 NY2d 376, 382 (1988). And, in those instances, courts should declare statutes unconstitutional only as a last unavoidable resort. South Buffalo Ry. Co. v. Ahern, 303 NY 545, 555 affirmed 344 U.S. 367 (1953). Matter of Pratt v. Tofany, 37 AD2d 854 (2d Dept. 1971).

The Preemption Doctrine limits municipalities' law-making authority. People v. Torres, 37 NY3d 256, 265 (2021) citing Albany Area Bldrs. Assn., supra. Specifically, "Conflict Preemption" prohibits a local government from adopting any laws inconsistent with state law, while "Field Preemption" prohibits a local government from legislating in a field or area of the law where the "legislature has assumed full regulatory responsibility." People v. Torres, supra; Matter of Highway Super. Assn. of Rockland, Inc. v. Town of Clarkstown, 150 AD3d 731, 734 (2017).

Here, this Court finds that the GCEL passed by the City of Poughkeepsie is void and unenforceable under the New York State Constitution because the GCEL is inconsistent with duly enacted New York State Laws on eviction proceedings. NY Const., Art. IX, 2; Albany Area Builders Assn. v. Town of Guilderland, 74 NY2d 372, 377 (1989); People v. Torres, 37 NY3d 256, 265 (2021). Under the legal doctrine of Conflict Preemption, the GCEL is preempted by numerous New York State Laws. Pusatere v. City of Albany, Sup. Ct. Albany Co., June 30, 2022, Ryba, S.C.J. Index No. 909653-21.

The City of Poughkeepsie Common Council's GCEL, adopted in 2021, prohibits landlords from evicting tenants except under special circumstances. For example, it prevents landlords from evicting tenants who refuse to pay rent if they consider rent increases to be "unconscionable" — otherwise described as "predatory" rent increases. Moreover, the GCEL imposes a "good cause" requirement to institute a summary eviction proceeding; and it caps rental increases to 5% annually.

Under the legal doctrine of "Conflict Preemption," the GCEL is inconsistent with New York State Real Property Law § 226-c — which authorizes evictions based upon an expired lease or non-renewal lease — in that the GCEL precludes a landlord from evicting a tenant without good cause.

Moreover, the GCEL is inconsistent with New York State Real Property Law § 226-c(1)(a) — which authorizes rental increases of greater than 5% provided the tenant is given appropriate statutory notice — in that the GCEL prohibits a landlord from increasing rent by 5% in any twelve-month period without good cause.

In addition, the GCEL is inconsistent with New York State Real Property Law § 228 — which authorizes a landlord to evict based upon expiration of a tenancy — in that the GCEL requires a landlord to establish good cause to evict someone even if the lease has expired.

As well, the GCEL is inconsistent with New York State Real Property Actions and Proceedings Law § 711(1) — which authorizes a landlord to evict a tenant based upon an expired lease — in that the GCEL requires a landlord to establish good cause to evict someone even if the lease has expired.

"Conflict Preemption" — once again — prohibits a local government from adopting a law inconsistent with state law, and here the GCEL is in direct conflict with R.P.L. § 226-c(1)(a) and R.P.L. § 228, as well as R.P.A.P.L. § 711(1), because it strips a landlord's New York State statutorily enacted right to terminate, or otherwise not elect to renew a tenancy, without good cause. Moreover, it prohibits a landlord from increasing rent by more than 5% annually without good cause. Since the City of Poughkeepsie Common Council is prohibited from enacting a law inconsistent with general laws of New York State, the GCEL is void and unenforceable.

Even if this Court found that the GCEL was valid — which it has not — while respondent has the benefit of a strong presumption set forth in the GCEL, that presumption is rebuttable. Here, petitioner set forth sufficient evidence in admissible form to rebut the presumption that would have defeated respondent's motion to dismiss. In addition, even if this Court found the GCEL to be valid and enforceable, issues of fact have been raised in the papers, including market analysis of current rentals in several nearby apartment complexes, that would have defeated the motion to dismiss. Notwithstanding same, this Court would have had to reach an absurd result by not addressing these constitutional issues."

ON DISSOLVING A LLC

CHERNOMORDIK v. OCEAN SAND DEV., LLC, 2022 NY Slip Op 33846 - Kings Co. Supreme Court 2022:

"Concerning the causes of action, the first counts seek dissolution. In Matter of 1545 Ocean Avenue LLC, 72 AD3d 121, 893 NYS2d 590 [2d Dept., 2010] the court held that the sole basis for dissolution of a limited liability company were the grounds outlined in Limited Liability Company Law § 702, namely judicial dissolution upon proof that it is "not reasonably practicable to carry on its business in conformity with the articles of organization or operating agreement" (id). This is a more stringent standard than the dissolution of an ordinary corporation (Kassab v. Kasab, 195 AD3d 830, 145 NYS3d 836 [2d Dept., 2021]). Thus, the plaintiff must establish that "(1) the management of the entity is unable or unwilling to reasonably permit or promote the stated purpose of the entity to be realized or achieved, or (2) continuing the entity is financially unfeasible" (Long Island Medical & Gastroenterology Associates P.C. v. Mocha Realty Associates LLC, 191 AD3d 857, 143 NYS2d 56 [2d Dept., 2021]). Concerning disagreements among the members "it is only whore discord and disputes by and among the members are shown to be inimical to achieving the purpose of the LLC will dissolution under the "not reasonably practicable" standard imposed by LLC § 702 be considered by the court to be an available remedy to the petitioner" (Kassab v. Kasab, 60 Misc3d 1204(A), 109 NYS2d 832 [Supreme Court Queens County 2018]).

The operating agreement of the entity provides that its purpose is to "own, lease, develop, manage, and operate the premises located at Caberette, Dominican Republic (the "Property")" (see, Operating Agreement, `Preliminary Statement' [NYSCEF Doc. No. 43]) and formed the defendant entity to "purchase, lease or otherwise acquire, and to hold, develop, use, lease, licenses, maintain, sell, and otherwise deal with the Property" (id at ¶2.5(a)). Thus, the entity was formed fifteen years ago and the government of the Dominican Republic has rejected plans to develop the property three times. Therefore, the property has remained undeveloped ever since. The defendants assert that considering the impasse that exists the best option going forward is to "continue to hold the Property with the reasonable expectation that its value will skyrocket if and when the regulatory environment changes, as it tends to do from time to time in the Dominican Republic" (see, Memorandum of Law in Support, page 3 [NYSCEF Doc. No. 55]). However, that option is so speculative, so abstract and so theoretical and its success is not dependent upon the efforts of any of the parties but upon policy changes in a foreign government. While arguments the entity cannot conduct its business might be premature since the property is still being held by the entity, there can be no question the goal of the entity was not to hold the undeveloped property for such a long period of tithe. The defendants argue "the Operating Agreement does not even require Ocean Sand to do any development at all" and that the entity "is now holding on to it, biding its time and lying `dormant' so to speak, until Changing market conditions permit a sale or the government finally permits development" (see, Memorandum of Law in Support, page 5 [NYSCEF Doc. No. 55]). There can really be no dispute the entity has been forced to maintain the property in its current undeveloped state due to conditions beyond its control. That does not mean the entity is legitimately pursuing the goals of the operating agreement. Rather, the entity is trying to cope with the best of a bad situation. Therefore, there are surely questions whether the entity can ever achieve the goal of developing the property. Thus, the plaintiff may be able to establish the stated goal of the entity will never be achieved.

The defendants stress that dissolution would destroy any chance of ever recovering initial investments and that really the only option is to wait and hope for the ability to develop the property in the future. While that may be true, as noted, that may never happen. Thus, further discovery and an eventual trial is necessary to evaluate the ability to sell the property, the advantages that may be gained from owning the adjoining properties and the harsh reality the property may never be developed. Therefore, the motion seeking, to dismiss the dissolution claim is denied."

RESOLVING PARENTING TIME DISPUTE BETWEEN TWO PARENTS

SS v. MS, 2022 NY Slip Op 51090 - NY: Family Court 2022:

"In this custody and visitation proceeding brought under Article 6 of the Family Court Act, respondent M.S. ("Respondent") filed this motion pursuant to Domestic Relations Law ("DRL") 245, and articles 765, and 770 of the Judiciary Law seeking (1) a finding of contempt against Petitioner, (2) an Order of Commitment, (3) an award of sole legal and physical custody of the children to Respondent, (4) that Petitioner's parenting time be limited to supervised visitation only, and for such other and further relief as the court deems just and proper. This file was transferred to the undersigned by Referee Gail A. Adams due to the nature of the motion. Following review of the motion papers and exhibits cited above, procedural history, and court-maintained audio recordings of the proceedings, the motion is granted in part.

Background

Petitioner and Respondent are the parents of four children, born XX XX, 2013, XX XX, 2015, XX XX, 2017, and XX XX, 2021 (the "children"). Beginning on December 20, 2021, the parties have engaged in extensive litigation in this court and have filed multiple petitions including family offenses, petitions for enforcement of court orders, and petitions for custody. On December 20, 2021, Respondent filed a family offense petition against Petitioner (Docket no. O-06460-21) and a petition for custody of the children (Docket nos. V-06463-22, V-06464-22, V-06465-22, V-06466-22). On the same date, a full stay away temporary order of protection was issued in favor of Respondent and the children and against Petitioner. After an appearance before the court, the stay away provisions of the temporary order of protection were removed on December 22, 2022 and the court entered a temporary order of visitation that set a schedule for Petitioner to have parenting time with the children. The temporary order of visitation also orders that "[n]either parent is to remove the child[ren] from the New York City area during the pendency of this proceeding without prior approval of the court." Following another appearance before the court on January 13, 2022, the children were removed from the temporary order of protection and the temporary order of visitation was also continued.

On January 19, 2022, Petitioner filed a custody petition to enforce the temporary order of visitation and for sanctions against Respondent (Docket nos. V-06463-21/22A, V-06464-21/22A, V-06465-21/22A, V-06466-21/22A). Petitioner filed an amended petition to enforce the temporary order of visitation on March 21, 2022, in which she alleges that Respondent "has taken the children out of the New York City area to live on Long Island without notifying courts. He has since blocked me and refused to drop off our child [R.]. Our children also aren't in school." On March 22, 2022, Petitioner filed a motion, by order to show cause, to punish Respondent for contempt for allegedly withholding the children in Long Island and refusing to give Petitioner access to them. This matter was then referred to the undersigned. On March 29, 2022, at an appearance before this court, Respondent withdrew his custody petition and the motion for contempt was dismissed as moot.

On March 30, 2022, Petitioner filed the instant a petition seeking custody of the children (Docket nos. V-02267-22, V-02268-22, V-02269-22, V-02270-22) and filed a family offense petition against Respondent (Docket no. O-02261-22). On the same date, a full stay away order of protection was issued in favor of Petitioner and against Respondent. The temporary order of protection was continued on May 3, 2022.

On May 16, 2022, an on-the-record conference was held before Referee Brenes. At the appearance, Petitioner requested that any parenting time with Respondent be supervised. The attorney for the child opposed the request for supervised visits, noting that there were no safety concerns regarding Respondent's care of the children and the children expressed that they love their father and want to spend time with him. Referee Brenes denied the request, stating that there were no grounds for supervised visits, and ordered that beginning May 20, 2022, Respondent would have weekly parenting time with the children every Friday at 5:00 p.m. until Sunday at 6:00 p.m., with pickup to occur curbside at Petitioner's home.^[1] An order memorializing this direction was issued on May 16, 2022 (S.S. affidavit in support, exhibit A), but was not emailed to the parties until May 23, 2022, due to an administrative error. The written order states, in pertinent part, "[c]ommencing Friday, May 20, 2022, and every week thereafter, the father [] may have visits with the children ... commencing at 5pm until Sunday at 6pm."

On May 20, 2022, Respondent arrived at Petitioner's residence to pick up the children, but Petitioner refused to produce the children (id. ¶ 4). The police arrived and Respondent was arrested for violating the outstanding temporary order of protection (id.). On May 21, 2022, a criminal court temporary order of protection was issued in favor of Petitioner and against Respondent (S.S. affidavit in opp ¶ 6). The criminal court order contains orders that Respondent stay away from and refrain from all communication with Petitioner, except for communications or access permitted by a subsequent order issued by a family or supreme court in a custody, visitation or child abuse or neglect proceeding (Hazelwood affirmation in opp, exhibit A).

Petitioner also did not produce the children for the weekends of May 27, 2022, June 3, 2022, or June 9, 2022. She attests that she did not produce the children for parenting time on May 20, 2022 because she did not feel comfortable sending the children for parenting time without a copy of the court's order, and did not produce the children on the subsequent dates because of the criminal court order of protection (S.S. affidavit in support at 13).

Another conference was held with Referee Brenes on June 13, 2022. At the conference, Referee Brenes reiterated that Respondent was to have parenting time with the children and issued a second visitation order reflecting the same parenting time schedule set forth in the prior order. On June 14, 2022, there was another appearance before Referee Brenes for the purpose of assigning counsel to Petitioner. On June 17, 2022, Respondent picked up the children and exercised parenting time as directed in the order (S.S. affidavit in support ¶ 7). That weekend, Respondent took the children shopping and took the three older children to a salon, where they had their hair washed and cut (id.).

On June 24, 2022, June 25, 2022, and the weekends July 1, 2022 and July 8, 2022, Petitioner again refused to produce the children for parenting time with Respondent (S.S. affidavit in support ¶ 9).^[2] Petitioner argues that she did not send the children for parenting time on these dates for a variety of reasons. First, she attests that the children were very upset when they returned home from the June 17, 2022 visit with Respondent, and in particular M was upset that her hair was cut during the visit with Respondent (S.S. affidavit in support at 13). She offers no explanation regarding the June 24, 2022 visit. She attests that when she began preparing the children for the July 1, 2022 visit, the children reported that they did not want to visit with Respondent and Ivan had an anxiety attack when informed of the visit (S.S. affidavit in opposition ¶ 5). She then called ACS who purportedly stated she did not have to send the children to the visit if they did not want to go (id.). Petitioner further states that she did not send the children for parenting time with Respondent because she was waiting for the children to be interviewed by their attorney and, for the weekend of July 8, 2022, because the children wanted to attend their cousin's birthday party (id. ¶¶ 6-9).

The instant motion was filed, by order to show cause, on July 14, 2022 and the motion was assigned to the undersigned. Petitioner reports that she has consistently sent the children for parenting time with the Respondent since July 15, 2022, and Respondent does not contradict this representation (S.S. affidavit in opposition ¶ 11).

Discussion

Respondent's moves for an order of contempt for Petitioner's failure to produce the children for court-ordered parenting time for eight weekends between May 20, 2022 and July 10, 2022. He seeks relief pursuant to Domestic Relations Law ("DRL") 245, and articles 765, and 770 of the Judiciary Law for (1) a finding of contempt against Petitioner, (2) an Order of Commitment, (3) an award of sole legal and physical custody of the children to Respondent, (4) that Petitioner's parenting time be limited to supervised visitation only, and (5) for such other and further relief as the court deems just and proper.

Civil contempt is defined as "disobedience to a lawful mandate of the court" which prejudices the rights or remedies of another party to the litigation (see Judiciary Law § 753[A][3]). Civil contempt must be proven by clear and convincing evidence (El-Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015]). The Court of Appeals has described the elements necessary to support a finding of civil contempt as follows:

First, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. Second, it must appear, with reasonable certainty, that the order has been disobeyed. Third, the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party. Fourth, prejudice to the right of a party to the litigation must be demonstrated.

(id. [internal quotes and citations omitted]). "A motion to punish a party for civil contempt is addressed to the sound discretion of the court" (Bauman v Bauman, 208 AD3d 624, 626 [2d Dept 2022]). "A hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone" (Jaffe v Jaffe, 44 AD3d 825, 826 [2d Dept 2007]). "Generally, a court may, in its discretion, grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party" (Caro v Marsh USA, Inc., 101 AD3d 1068, [2d Dept 2012]).

The first element stipulated by the Court of Appeals is satisfied here because the temporary order of visitation, and continued orders, were clear and unequivocal. Petitioner's assertion to the contrary is incorrect (Hazelwood affirmation ¶ 17-19). Not only is the written language of the order clear, but Referee Brenes reiterated at both the May 16, 2022 and June 13, 2022 conferences that Respondent was to have parenting time with the children and stated that the order of protection is subject to the temporary order of visitation. At the May 16, 2022 conference she also denied Petitioner's May 16, 2022 request that the parenting time be supervised. Her instructions, both on the record and in the written order, were clear and unequivocal. Therefore, this element is satisfied.

Second, the order was disobeyed. Petitioner attests in her affidavit that she intentionally did not send the children for the court-ordered parenting time with Respondent (S.S. affidavit in opposition ¶ 5 ["On May 20, 2022, I still had not received an order from the court, and I did not send the children for visitation."; ¶ 7 ["On July 1, 2022, I did not send the children for visit with Mr. [S.] because the children's attorney had not yet spoken with the children to address the children's concerns."]). Assuming arguendo that the court excuses Petitioner's failure to produce the children for the weekend of May 20, 2022 and subsequent weekends when the criminal order of protection restricted Respondent's access to the children, the order was nevertheless violated on the weekends of June 24, 2022, July 1, 2022, and July 8, 2022. It is undisputed that Petitioner failed to produce the children on these dates, which prevented Respondent from exercising his court ordered parenting time. Petitioner's contention that Respondent must demonstrate that she "has failed to make good faith attempts to comply with the court's order" is unavailing because no such showing is required under New York law (see El-Dehdan, 26 NY3d at 36 ["Wilfulness is not an element of civil contempt ... civil contempt is established, regardless of the contemnor's motive, when disobedience of the court's order "defeats, impairs, impedes, or prejudices the rights or remedies of a party"]).

Moreover, Petitioner's explanations for violating the court's orders are contrary to the record and, even if accepted as true, do not excuse her failure to comply with the clear order of the court. Respondent did not raise any safety concerns at either the May 16, 2022 or June 13, 2022 conference with Referee Brenes, where the attorney for the children consistently reported, at each court appearance, that the children love their father and want to spend time with him. Additionally, Petitioner was appointed counsel on June 14, 2022, and was always represented by counsel thereafter. Therefore, she had the necessary counsel and resources to petition the court to suspend visitation if appropriate but did not do so. Instead, Petitioner opted to substitute her own judgment for that of the court, which had clearly directed, on two separate occasions, that Respondent was to have parenting time with the children every weekend. Therefore, the second element necessary for a finding of contempt is satisfied.

Petitioner was also aware of the court's orders. She attended each court conference where the orders were issued and, except the May 16, 2022 order, she was in receipt of the court's orders prior to the start of the parenting time in question. Although the court order was not immediately disseminated to Petitioner due to a clerical error, it is uncontroverted that Petitioner was present at the court conference wherein the parties were directed to comply with court-ordered visitation. Petitioner does not dispute that she was aware of the court's orders at any time. Therefore, the third element is met.

Finally, Respondent's rights were prejudiced because he was not permitted to exercise the court-ordered parenting time. The natural right to visitation is a joint right of the noncustodial parent and the child (Gottlieb v Gottlieb, 137 AD3d 614, 619 [1st Dept 2016]). "Consequently, it is presumed that parental visitation is in the best interest of the child, absent proof that such visitation would be harmful" (id.) By failing to produce the children for court-ordered visitation, Petitioner prejudiced Respondent's right to exercise parenting time with the children (see Matthew A. v Jennifer A., 73 Misc 3d 1215(A), *16 [Sup Ct Monroe County 2021]["To suggest that a father is not `harmed' or `prejudiced' by the willful and intentional destruction of his negotiated joint custody rights and his right to visit with his children is an argument that violates every principle in New York's family law."]). Therefore, Respondent has demonstrated this element of civil contempt.

Whereas Respondent has demonstrated all of the elements of contempt by clear and convincing evidence, the court finds that Petitioner is in contempt of the court for failing to comply with the courts temporary orders of visitation dated May 16, 2022 and June 13, 2022. Having made this determination, the court must now determine the appropriate penalty. The purpose of any penalty imposed is not to punish but rather, to compensate the aggrieved party and to coerce compliance with the court's mandate (State of NY v Unique Ideas, 44 NY2d 345, 350 [1978]; Larisa F. v Michael S., 122 Misc 2d 520, 521 (Fam Ct Queens County 1984]). Respondent seeks an order of commitment, an award of sole legal and physical custody to Respondent, that Petitioner's parenting time be limited to supervised visitation only, and for such other and further relief as the court deems just and proper.

With respect to the request for supervised visitation, Respondent did not raise any safety concerns on this motion regarding Petitioner's parenting that warrants limiting her parenting time to supervised visitation only. Additionally, although some courts have suggested that a change in custody may result from a finding of contempt under certain circumstances (see Heintz v Heintz, 28 AD3d 1154, [4th Dept 2006), this is strongly the minority position and is not an appropriate result here. Respondent withdrew his custody petition on March 29, 2022 after Petitioner filed her own motion for contempt and does not currently have a custody petition pending before this court. If Respondent wishes to seek an order of custody, he may do so by following the proper procedure.

Finally, the court must consider Respondent's request for an order of commitment. The violations in question here took place over a period of eight weekends and Petitioner has complied with the temporary order of visitation since that time. Therefore, an order of commitment, which is designed to compel compliance with the court's orders, would serve no purpose at this time (see Rubin v Rubin, 78 AD3d 812, 813 [2d Dept 2010]). Respondent should instead be compensated for what was lost—namely, valuable bonding time with the children. Therefore, it is the order of the court that Respondent shall have, in addition to the weekend parenting schedule currently in place, makeup overnight parenting time on the following school holidays: November 11, 2022, November 24, 2022, November 25, 2022, December 26, 2022 through January 2, 2023, January 16, 2023, February 20, 2023 through February 24, 2023, April 6, 2022, and April 7, 2022. The pickup and drop off schedule for these visits shall be as follows:

November 10, 2022 at 5:00 p.m. through November 13, 2022 at 6:00 p.m.

November 23, 2022 at 5:00 p.m. through November 27, 2022 at 6:00 p.m.

December 23, 2022 at 5:00 p.m. through January 2, 2023 at 6:00 p.m.

January 12, 2023 at 5:00 p.m. through January 16, 2023 at 6:00 p.m.

February 17, 2023 at 5:00 p.m. through February 26, 2022 at 6:00 p.m.

April 5, 2023 at 5:00 p.m. through April 9, 2023 at 6:00 p.m.

Any failure on the part of Petitioner to produce the children to Respondent on these dates, absent just cause, shall result in further findings of contempt punishable by an order of commitment."

RPAPL 1304 REDEFINED

One "defense" available to homeowners has been eliminated on February 14, 2023.

Bank of Am., NA v. Kessler, 2023 NY Slip Op 804 - NY: Court of Appeals 2023:

"The question presented here is whether the inclusion of concise and relevant additional information voids an otherwise proper notice to borrowers sent pursuant to Real Property Actions and Proceedings Law § 1304, thus barring a subsequently filed foreclosure action. We hold that it does not.

I.

As a result of the "Great Recession" of 2007-2009, an estimated 6 million Americans lost their homes (Tomasz Piskorski & Amit Seru, Debt Relief and Slow Recovery: A Decade After Lehman, Working Paper 25403, National Bureau of Economic Research [December 2018], available at https://www.nber.org/papers/w25403 [last accessed Jan. 17, 2023]). In the midst of that crisis, both chambers of the New York State Legislature voted unanimously to enact Governor Paterson's Program Bill (2008 NY Senate Bill S 8143-A, enacted as L 2008, ch 472), a portion of which is codified in RPAPL 1304. Section 1304(1) requires a "lender, assignee, or mortgage loan servicer" to send a notice 90 days before it may "commence[ ] legal action against [a] borrower." That notice "shall include" several pages of specific text set out in that subdivision. The prescribed template requires the lender to fill in certain information, including:

• How many days the borrower is in default;

• The total amount of the missed payments, penalties, and interest;

• A list of [five] government-approved housing counseling agencies in the borrower's area that provide free counseling, along with the explanation that the counselors are trained to help homeowners who are having problems making their mortgage payments;

• An encouragement to take immediate steps to try to achieve a resolution, with the disclaimer that the lender cannot assure a mutually agreeable resolution is possible;

• A warning that if the borrower fails to act within 90 days (or sooner if the borrower ceases to live in the home as the borrower's primary residence), the lender may commence legal action;

• A notification that the borrower has the right to remain in the home until the borrower receives a court order requiring the borrower to vacate; and

• A statement that the enclosure is not a notice of eviction (RPAPL 1304[1]).

Section 1304(2), added by the legislature in 2009 (see L 2009, ch 507, § 1-a), provides that `the notices required by this section shall be sent . . . in a separate envelope from any other mailing or notice."^[1]

Section 1304 was enacted to address the pre-foreclosure "lack of communication" between borrower and lender, which "often leads to needless foreclosure proceedings in cases where a foreclosure alternative might otherwise have been possible" (Senate Introducer's Mem in Support, Bill Jacket, L 2008, ch 472 at 10). The Senate Sponsor further explained that the required 90-day notice "urges borrowers to work with their lender or a housing counseling agency to address their situation," so as to "provide an opportunity for borrowers and lenders to try to reach a solution that avoids foreclosure" (Letter from Senator Hugh T. Farley to Kristin Rosenstein, July 31, 2008, Bill Jacket, L 2008, ch 472 at 6). However, section 1304 was not intended to extinguish a lender's right to foreclose: "if the borrower is unable to reach resolution with the lender in the prescribed time, the lender will have the opportunity to pursue legal action against the borrower" (id.).

In 2009, Mr. Kessler obtained a loan secured by a mortgage on his home^[2] . In September 2013, he defaulted on the loan, and has made no payments on it since. Following his default, Bank of America sent a notice to Mr. Kessler pursuant to RPAPL 1304. It is undisputed that Mr. Kessler received a seven-page notice containing all of the language required by the statute. However, the last page of the notice included the following language, not found in section 1304:

"Bank of America, N.A., the servicer of your home loan, is required by law to inform you that this communication is from a debt collector.^[3]

"If you are currently in a bankruptcy proceeding, or have previously obtained a discharge of this debt under applicable bankruptcy law, this notice is for information only and is not an attempt to collect the debt, a demand for payment, or an attempt to impose personal liability for that debt. You are not obligated to discuss your home loan with us or enter into a loan modification or other loan-assistance program. You should consult with your bankruptcy attorney or other advisor about your legal rights and options.

"MILITARY PERSONNEL/SERVICEMEMBERS: If you or your spouse is a member of the military, please contact us immediately. The federal Servicemembers Civil Relief Act and comparable state laws afford significant protections and benefits to eligible military service personnel, including protections from foreclosure as well as interest rate relief. For additional information and to determine eligibility please contact our Military Assistance Team toll free at 1-877-430-5434. If you are calling from outside the U.S., please contact us at 1-817-685-6491."

In 2017, Bank of America moved for summary judgment against Mr. Kessler. Mr. Kessler cross-moved to dismiss, arguing that the inclusion of the final two paragraphs in his notice, addressing bankruptcy status and military membership, violated section 1304's "separate envelope" provision. Supreme Court agreed and dismissed the complaint (see 2017 NY Slip Op 33343[U] [Sup Ct. Westchester County 2017]). The Appellate Division affirmed on the same ground, holding that including in the envelope sent to the borrower any language not required by the statute violates its separate envelope provision (see 202 AD3d 10 [2d Dept 2021]). The Appellate Division granted leave to appeal and certified the question of whether its order was properly made (see 2022 NY Slip Op 66274[U] [2d Dept 2021]).^[4]

II.

On this appeal, Bank of America challenges only the acceptance of the RPAPL 1304 defense by the courts below. In interpreting any statute, "our goal is to give force to the intent of the legislature and we therefore begin with the plain text—the clearest indicator of legislative intent. In a manner consistent with the text, we may look to the purpose of the enactment and the objectives of the legislature. We must also interpret a statute so as to avoid an unreasonable or absurd application of the law" (see Lubonty v U.S. Bank N.A., 34 NY3d 250 [2019] [internal quotation marks and citations omitted]).

The operative statutory language here contains two requirements: (1) the notice "shall include" the specified language and information; and (2) the notice must be sent "in a separate envelope from any other mailing or notice" (RPAPL 1304[1], [2]). As to the first requirement, subdivision (1) does not say that the notice must state only the cautionary language set forth in the statute, but rather that the notice "shall include" that language. Where the "natural signification of the words employed" "ha[s] a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add or take away from that meaning" (Tompkins v Hunter, 149 NY 117, 122-123 [1896]). The word "include" suggests that more can be added to the notice. As we explained in Red Hook Cold Stor. Co. v. Department of Labor of State of N.Y., "`[i]ncluding' may be used to bring into a definition something that would not be there unless specified, or it may be used to show the meaning of the defined word by listing some of the things meant to be referred to, but not by such listing excluding others of the same kind" (295 N.Y. 1, 8 [1945]). Here, the notice indisputably contains all of the mandatory language set forth in the version of section 1304(1) in effect at the time Bank of America commenced this action. The statute says that the notice "shall include" certain information; the notice here does so.

The question then is the constraint imposed by the requirement that the envelope not contain "any other mailing or notice." The bright line rule adopted by the lower courts effectively defines "any other mailing or notice" as "any additional material or information whatsoever." Although it might be possible to read "other notice" as the lower courts did—such that any deviation from the statutory language, however minor, would void the notice—that interpretation would stand in great tension with "shall include," a phrase that contemplates the addition of something else. The statute must be given "a sensible and practical over-all construction, which . . . harmonizes all its interlocking provisions" (Matter of Long v Adirondack Park Agency, 76 NY2d 416, 420 [1990]). Application of a bright line rule here would require the use of a highly constrained definition of "other," where it is more appropriately read to mean mailings or notices "of a different kind." Here, "other mailing or notice" more aptly refers other kinds of notices, such as pre-acceleration default notices, notices disclosing interest rate changes to borrowers with adjustable-rate mortgages (12 CFR 1026.20[c]), monthly mortgage statements (12 CFR 1026.41), or notices disclosing to the borrower a transfer of the loan servicer (12 CFR 1024.33[b]) (cf. People v First Meridian Planning Corp., 86 NY2d 608, 619 [1995] [rejecting a narrow interpretation of "other securities" when such a reading "would conflict with the general remedial purposes of the securities laws"]).

A bright-line rule would also lead to nonsensical results. For example, had Bank of America sent the required statutory language verbatim, but added, "THIS IS EXTREMELY IMPORTANT, PLEASE PAY ATTENTION!", a bright-line rule would require that the notice be deemed void and the foreclosure action dismissed. Indeed, Mr. Kessler's failure to challenge either the inclusion of the Fair Debt Collection Practices Act (FDCPA) disclaimer or the minor variations in the statutory language (discussed supra n 3) stands as a tacit recognition that the notice need not consist exclusively of the statutory text.

More importantly, to the extent there is any ambiguity about how to interpret the statute, application of a bright-line rule would contravene the legislative purpose. RPAPL 1304 is a remedial statute that should be read broadly to help borrowers avoid foreclosure. In expanding the protections of RPAPL 1304 to all home loans, the legislature sought to reduce the number of foreclosures by allowing the parties to "attempt to work out the default `without imminent threat of a foreclosure action'" (CIT Bank N.A. v Schiffman, 36 NY3d 550, 555 [2021], quoting Governor's Program Bill Mem No. 46R, Bill Jacket, L 2009, ch 507 at 10; see also Letter from Mayor of City of NY, Nov. 20, 2009, Bill Jacket, L 2009, ch 507 at 13 [noting that the bill was a "significant reform in ensuring that homeowners and tenants are aware of their rights upon being faced with the threat of foreclosure"]). Prohibiting lenders from concisely informing borrowers of additional rights they may have to avoid foreclosure is manifestly at odds with that purpose.

Thus, we hold that accurate statements that further the underlying statutory purpose of providing information to borrowers that is or may become relevant to avoiding foreclosure do not constitute an "other notice." The statutorily required language informs borrowers that they are at risk of losing their homes because they are in default. It warns them that the lender may commence foreclosure proceedings if they fail to take any action to resolve the default within ninety days. It assures them that they have the right to remain in their home until they receive a court order telling them to leave the property. It provides them with the contact information for housing counseling agencies. The subject matter of the mandated language is thus a disclosure to the borrower of 1) the possibility of foreclosure, 2) the borrower's rights, and 3) the options available to the borrower to attempt to remedy the situation. That language serves the express statutory purpose of providing borrowers with information that may help them avoid foreclosure during a 90-day window established by that statute.

Here, the additional two paragraphs are directly related to the notice's subject matter and further the statutory purpose by informing certain borrowers of additional protections they may have beyond those identified in the statutory notice language. The paragraphs relate to and supplement the statutory language as applied to two distinct groups of borrowers, and thus make most sense and are most helpful when read together with the notice. In addition, the paragraph relating to bankruptcy proceedings may be particularly useful to avoid confusing borrowers who are subject to the automatic stay in bankruptcy court and to avoid potential violation of such stays by the lender (see In re Ho, 624 B.R. 748, 752-753 [Bankr ED NY 2021] [holding bankruptcy disclosure a relevant factor in determining 90-day notice did not violate an injunction against proceeding against discharged debt]). The added language is specifically directed at that concern: it states that if the borrower is in bankruptcy, the section 1304 notice "is for information only and is not an attempt to collect the debt, a demand for payment, or an attempt to impose personal liability for that debt." It thus functions as both a protection for lenders and an explanation to borrowers of additional rights they may have. Moreover, a bright-line rule against any additional language in the same envelope could conflict with certain disclosure requirements under federal law (see e.g. CIT Bank, N.A. v Neris, 2022 WL 1799479, 2022 US Dist LEXIS 99040 [SD NY, June 2, 2022, 18 Civ. 1551 (VM)]; see also supra n 3, discussing the inclusion of an FDCPA warning in the notice at issue here).

III.

The Appellate Division's concern that a case-by-case analysis of section 1304 notices would involve "exactly the type of judicial scrutiny" of mortgage foreclosure correspondence that we rejected in Freedom Mtge. Corp. v Engel (202 AD3d at 17, citing 37 NY3d 1 [2021]) is misplaced.^[5] In Engel, we held that acceleration of the mortgage debt is revoked by a voluntary discontinuance of a foreclosure action; we adopted that bright-line rule to avoid "an exploration into the bank's intent, accomplished through an exhaustive examination of post-discontinuance acts" (id. at 30). Determining whether additional language in a section 1304 notice is permissible requires no examination of intent or extrinsic evidence, but rather an objective facial determination of the language's relevance, truth, falsity, or potential to mislead or confuse.

By contrast, in CIT Bank N.A. v Schiffman, we held that lenders could prove mailing of a section 1304 notice by submitting either evidence of actual mailing or "proof of a sender's routine business practice with respect to the creation, addressing, and mailing of documents of that nature" (36 NY3d at 556). Instead of a bright-line rule, we adopted "a workable rule that balances the practical considerations underpinning the presumption [established by proof of a sender's routine business practice] against the need to ensure the reliability of [that practice] . . . in the context of notices mailed pursuant to section 1304" (id. at 558).

Consistent with our approach in Schiffman, we hold that section 1304 does not prohibit the inclusion of additional information that may help borrowers avoid foreclosure and is not false or misleading. This is a workable rule that balances the practical considerations of the lender and borrower in a way that best advances the clear statutory purpose. Where a lender includes false, misleading, obfuscatory, or unrelated information in the envelope together with the 1304 notice, courts may void such notices. But where, as here, the additional information was not false, misleading, obfuscatory, or unrelated, it should not render the notice void. A bright-line rule would be both unfair and contrary to the statutory purpose, as it would deprive borrowers of information that could help them avoid foreclosure and penalize lenders who attempt to ensure their customers are better informed. It could also result in windfalls to borrowers resulting from clerical errors and bona fide attempts by lenders to assist borrowers in avoiding foreclosure.

Accordingly, the order of the Appellate Division insofar as appealed from should be reversed, with costs, defendant Andrew Kessler's motion for summary judgment dismissing the complaint as against him denied, plaintiff's motion for summary judgment granted in accordance with this opinion, case remitted to Supreme Court for further proceedings, and certified question answered in the negative.

Order insofar as appealed from reversed, with costs, defendant Andrew Kessler's motion for summary judgment dismissing the complaint as against him denied, plaintiff's motion for summary judgment granted in accordance with the opinion herein, case remitted to Supreme Court, Westchester County, for further proceedings, and certified question answered in the negative. Opinion by Judge Wilson. Acting Chief Judge Cannataro and Judges Rivera, Garcia, Singas and Troutman concur.

[1] That language was added by the legislature in 2009 as part of legislation whose principal change was to expand the borrower protections of the 2008 law from only subprime home loans to all home loans.

[2] The mortgage was originally executed in favor of MLD Mortgage, Inc., and was later assigned to Bank of America.

[3] Mr. Kessler challenges neither the inclusion of this sentence, although it does not comprise part of the required statutory language, nor the minor variations Bank of America made to the statutory language—an inconsistency his argument for a bright-line rule fails to address and an implicit acknowledgement that some changes will not void the notice.

[4] Because Supreme Court does not appear to have resolved defendant's request for attorney's fees, we treat that order as nonfinal and therefore deem it necessary to answer the Appellate Division's certified question (see NY Const, art VI, § 3[b][4], [5]; CPLR 5602[b][1]).

[5] For reasons unrelated to those before us now, Engel was recently legislatively overruled (see L 2022 ch 821 § 8-e)."

COMMON LAW AND EMPLOYMENT CONTRACT RENEWAL

Kushner v. CARTER LEDYARD & MILBURN LLP, 2023 NY Slip Op 30171 - NY Co. Supreme Court 2023:

"Where an employment agreement is for a definite term, upon expiration of that term, should the employee remain with the employer on the same terms, the common law recognizes a presumption that the parties intend to renew the contract and a one-year agreement to continue under the same terms is implied. (see Goldman v White Plains Ctr. for Nursing Care, LLC, 11 NY3d 173, 177 [2008]; Perlick v Tahari, Ltd., 293 AD2d 275, 276 [1st Dept 2002].) However, "the common-law rule cannot be used to imply that there was mutual and silent assent to automatic contract renewal when an agreement imposes an express obligation on the parties to enter into a new contract to extend the term of employment" (Goldman, 11 NY3d at 178). "The best evidence of what parties to a written agreement intend is what they say in their writing" (Banco Espírito Santo, S.A. v Concessionária Do Rodoanel Oeste S.A., 100 AD3d 100, 106 [1st Dept 2012] [internal quotation marks and citation omitted].)

Here, the common-law presumption is operative. The 2017 Agreement is for a definite term, "ending March 31, 2018" (2017 Agreement, ¶ 1). Thus, unless the parties expressed a contrary intention, their continued performance would have created an implied contract on the same terms for successive one-year terms. (see Goldman, 11 NY3d at 177; Perlick, 293 AD2d at 276). Defendant does not point to anything in the 2017 Agreement that rebuts this presumption. While the 2017 Agreement partially provides for a process to extend the relationship, stating that "[i]f the Firm wishes to enter into a further agreement ... it shall propose terms and conditions at least sixty (60) days before the Ending Date" (2017 Agreement, ¶ 1), it does not provide for what happens in the event that the firm fails to do so. Likewise, while it states that, "[i]f no further agreement is reached ... concerning [plaintiff's] relationship to the Firm," plaintiff "shall cease to be a Partner of the Firm" as of the ending date, it does not state how "further agreement" is to be reached or what form it should take (id.). Moreover, the 2017 Agreement does not: provide that all obligations between the parties are at an end upon the expiration of the initial term; contain an integration clause; and/or require that all changes be made in writing.

Generally, in cases holding that automatic renewal may not be implied, such language is present. For example, in Goldman, the court held that the common-law presumption was rebutted "where the employer and employee agree[d] that the contract memorializes their understanding, [could] be modified only in writing and expire[d] on a specified date absent additional negotiations for a new agreement" (11 NY3d at 178). The contract in that case also provided that, upon expiration, "the employer would have no further obligations to plaintiff other than compensating her for accrued salary and benefits" (id. at 177). Likewise, in Holahan v 488 Performance Group, Inc., the court held that the "breach of contract claim fail[ed] as a matter of law," because the employment agreement "unambiguously provided that any extension of the agreement needed to be in writing" and no such writing existed (140 AD3d 414, 414 [1st Dept 2016]; see A Great Choice Lawncare & Landscaping, LLC v Carlini, 167 AD3d 1363, 1364-1365 [3d Dept 2018] [concluding that there was no contract to breach following the end date, where "the employment agreement ma(de) clear that its terms constitute(d) the entire contract, provide(d) for no renewals beyond the one-year renewal term and only permit(ed) modifications to the agreement, such as extending its provisions, if made in writing"]; see also Wood v Long Is. Pipe Supply, Inc., 82 AD3d 1088, 1089 [2d Dept 2011] [finding that no employment agreement existed at the time of the plaintiff's termination, where the agreement "clearly expressed that the term of the plaintiffs employment was for five years [,] ... that the written agreement completely encompassed the agreement between them" and that "any changes to the contract were required to be in writing"].) Here, unlike the cited cases, nothing on the face of the agreement unambiguously indicates that the parties understood that the 2017 Agreement would end unless there was an express renewal. Accordingly, the common-law presumption of an automatic one-year renewal is applicable (see Goldman, 11 NY3d at 178 [explaining that the application of the common-law presumption of automatic renewal was appropriate in cases where "its application did not contradict any express provision of the agreements"].)

Plaintiff sufficiently alleges that the 2017 Agreement renewed for two successive one-year terms, once on April 1, 2018, and again on April 1, 2019, by alleging that he continued in his position as a partner and chair of the firm's tax department, receiving the previously agreed upon compensation, until January 2020 (see Perlick, 293 AD2d at 276 [finding that the plaintiff's breach of contract claim was viable if the writing at issue "constituted an employment contract with a term of one year" as then plaintiff would have been employed for two one-year terms]). Therefore, plaintiff's allegation that—in January 2020, during the second renewal period—CLM unilaterally reduced his monthly base salary by $5,000.00, states a claim for breach of contract.

However, the downward adjustment to plaintiff's salary in January 2020 also negates any implied agreement to renew the 2017 Agreement for a third one-year term. No such renewal can be implied as of April 1, 2020. (see Schiano v Marina, Inc., 103 AD3d 462, 463 [1st Dept 2013] [explaining that changes to the plaintiff's pay and responsibilities constituted "material changes," preventing automatic renewal of the employment agreement]; Curren v Carbonic Sys., Inc., 58 AD3d 1104, 1108 [3d Dept 2009] [finding that salary increases "constituted changes in material terms of the contract, further supporting the finding that the parties did not intend the contract to automatically renew"].) Upon the expiration of the second one-year term, on March 31, 2020, plaintiff became an at-will employee (see Schiano, 103 AD3d at 463). As of April 1, 2020, there was no contract in effect for defendant to breach. Therefore, plaintiffs allegation, that, in April 2020, defendant terminated the 2017 Agreement without sufficient notice and without cause, does not state a claim for breach of contract (see id. [explaining that once the plaintiff's employment became at-will, "her termination would not constitute a breach of contract"]; see also Curren, 58 AD3d at 1108-1109 [same])."

TERMINATION OF TEMPORARY MAINTENANCE IN SHORT TERM MARRIAGE?

FA v. SA, 2023 NY Slip Op 50059 - NY: Supreme Court 2023:

"The Court is called upon to determine whether or not, during the pendency of a matrimonial action, to terminate an award of temporary maintenance. Notwithstanding the parties' thirty-nine (39) month marriage, and notwithstanding that the order of temporary maintenance was issued in February, 2022, the Court concludes, based upon the specific facts of this case, that a termination of temporary maintenance during the pendency of this action would be improper at this time.

The relevant provisions regarding temporary maintenance are contained within the ambit of DRL § 236(B)(5-a), which reads, in relevant part:

5-a. Temporary maintenance awards.

a. Except where the parties have entered into an agreement providing for maintenance pursuant to subdivision three of this part, in any matrimonial action the court, upon application by a party, shall make its award for temporary maintenance pursuant to the provisions of this subdivision.

* * *

e. Notwithstanding the provisions of this subdivision, where the guideline amount of temporary maintenance would reduce the payor's income below the self-support reserve for a single person, the guideline amount of temporary maintenance shall be the difference between the payor's income and the self-support reserve. If the payor's income is below the self-support reserve, there shall be a rebuttable presumption that no temporary maintenance is awarded.

f. The court shall determine the duration of temporary maintenance by considering the length of the marriage.

g. Temporary maintenance shall terminate no later than the issuance of the judgment of divorce or the death of either party, whichever occurs first.

* * *

n. The temporary maintenance order shall not prejudice the rights of either party regarding apost-divorce maintenance award.

* * *

(emphasis added).

The Court notes that the parties were married on XXX XX, 2018, and that this action for divorce and ancillary relief was commenced on August 13, 2021, by the filing of a Summons with Notice with the Nassau County Clerk's Office (see NYSCEF Document No.: 01). To this end, the Court notes that the length of this marriage is approximately three (3) years, three (3) months, and seventeen (17) days, or approximately thirty-nine (39) months. The gravamen of the Defendant's argument is, in effect, that since he paid nine months of temporary maintenance, this is the "mid way" between the statutory duration for post-divorce maintenance (see S. Ahmed Affidavit Paragraph "4"). The Defendant therefore argues, in effect, that since he has reached the "midpoint" of the statutory advisory guidelines, the Court should adopt them for purposes of this application, and terminate his temporary maintenance obligation. His counsel posits that given the length of this marriage, the duration for maintenance ". . . would be 6 months to 1 year . . ." (see J. Goody Affirmation Paragraph "10"). The Court declines to adopt the arguments proffered for the reasons set forth hereinafter.

The Court notes that pursuant to DRL § 236(B)(5-a)(f):

f. The duration of post-divorce maintenance may be determined as follows:

(1) The court may determine the duration of post-divorce maintenance in accordance with the following advisory schedule:

Length of the marriagePercent of the length of the

marriage for which

maintenance will be payable

0 up to and including 15 years 15%-30%

More than 15 up to and including 20 years 30%-40%

More than 20 years 35%-50%

It is initially undisputed that this matter has not concluded. The Court initially rejects, as unavailing, the Defendant's contention that his maintenance should be terminated because the length of his payments have equated to the "midpoint" of the statutory provisions regarding post-divorce maintenance. The plain language of DRL § 236(B)(5-a)(f) clearly provides that the "durational" advisory schedule is not only advisory pursuant to DRL § 236(B)(5-a)(f)(1), but that such advisory schedule applies to post-divorce maintenance (emphasis added). Additionally, DRL § 236(B)(5-a)(n) provides that ". . . [t]he temporary maintenance order shall not prejudice the rights of either party regarding a post-divorce maintenance award . . ." (emphasis added). The Court therefore finds that the legislature clearly intended a differentiation between awards of temporary maintenance and post-divorce maintenance, and the Court does not find that the "advisory schedule" applies to awards of temporary maintenance. As the February Order directed the Defendant to pay temporary maintenance, the Court does not find that it is bound by the "advisory schedule" when determining an application for, or termination of, an award of temporary maintenance.^[1] As for the Defendant's argument in footnote "1" of his counsel's Affirmation that ". . . there are some judges who will put in duration of temporary maintenance in the Order . . ." (see J. Goody Affirmation Paragraph "10", footnote "1"), the Court rejects this argument inasmuch as no such duration for the temporary maintenance award was fixed within the February Order.

In the Court's analysis of the plain language of the statute, the Court notes that DRL § 236(B)(5-a)(g) provides that temporary maintenance shall terminate no later than the issuance of the judgment of divorce or the death of either party, whichever occurs first. The Court interprets this provision to mean that the only time that an award of temporary maintenance must terminate is either upon issuance of a judgment or divorce or death. This leads the Court to the inescapable conclusion that it has discretion as to whether or not to terminate an award of temporary maintenance during the pendency of an action prior to the issuance of a judgment or the death of a party. In furtherance of the aforesaid, DRL § 236(B)(5-a)(f) provides that ". . . [t]he court shall determine the duration of temporary maintenance by considering the length of the marriage . . ." Merriam-Webster's Dictionary defines "considering" as ". . .: in view of: taking into account . . ."^[2] Therefore, a fair reading of DRL § 236(B)(5-a)(f) leads this Court to the conclusion that while the Court shall consider (and take into account) the length of the marriage, it need not consider the length of the marriage as the dispositive or controlling factor in the duration of temporary maintenance. Put differently, this Court is not mandated to terminate an award of temporary maintenance based upon the length of a marriage, notwithstanding and irrespective of how short (or long) that marriage may be.

The Court has additionally analyzed pertinent case-law. The Second Department has held that the amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its unique facts. D'Alauro v. D'Alauro, 150 AD3d 675 (2d Dept. 2017) (emphasis added); see also Gafycz v. Gafycz, 148 AD3d 679 (2d Dept. 2017); see also Carr-Harris v. Carr-Harris, 98 AD3d 548 (2d Dept. 2012); see also Wortman v. Wortman, 11 AD3d 604 (2d Dept. 2004); see also DiBlasi v. DiBlasi, 48 AD3d 403 (2d Dept. 2008); see also Kaprov v. Stalinsky, 145 AD3d 869 (2d Dept. 2016). Additionally, the Court notes that the purpose of pendente lite maintenance is to ensure that a needy spouse is provided with funds for his or her support and reasonable needs pending trial. Jin c. v. Juliana L., 137 AD3d 1063 (2d Dept. 2016); see Coven v. Coven, 82 AD3d 1144 (2d Dept. 2011); see Fales v. Fales, 102 AD3d 734 (2d Dept. 2013); see Cooper v. Cooper, 7 AD3d 746 (2d Dept. 2004).

The Court has given consideration to the parties' approximate thirty-nine (39) month marriage, and the Court recognizes that while short in duration, the Court determines that termination is improper. In arriving at this conclusion, the Court exercises its discretionary authority and considers the unique facts (see supra and see infra) of this case (see D'Alauro v. D'Alauro, supra; see Gafycz v. Gafycz, supra). Indeed, the Court has given substantial weight to the specific unique facts and circumstances of this case, which is that the Defendant — indisputably — previously failed (and is currently failing) to comply with so much of this Court's February Order directing the payment of temporary maintenance. The Court notes that the Plaintiff was previously compelled to file an application seeking to adjudicate the Defendant to be in contempt of Court. Indeed, when the Court issued the October Order, it found:

ORDERED, that so much of Branch (a) of the Plaintiff's Order to Show Cause dated September 8, 2022 with respect to maintenance arrears and Branch (d) of the Plaintiff's Order to Show Cause dated September 8, 2022 be and are hereby GRANTED TO THE EXTENT that Defendant, S.A., is hereby adjudicated and deemed to be in contempt of court of this Court's Decision and Order dated February 17, 2022; and it is further

ORDERED, that Defendant is directed to appear before this Court in person for sentencing on December 7, 2022 at 11:00 a.m., however, the contemnor may purge his contempt if he pays the sum of $5,372.22 directly to the Plaintiff and provides proof of payment to this Court by the filing of same on NYSCEF on or before December 6, 2022 at 9:30 a.m.; and it is further

ORDERED, that the Defendant is on notice that in the event he fails to purge himself of contempt as provided, he is subject to additional penalties, including a period of incarceration . . .

The Defendant's argument: which is, in effect, that since he paid the temporary maintenance lump-sum, it equates to nine (9) months of payments and therefore should be terminated, is as troubling as it is flawed. While the Defendant may have purged his contemptuous conduct by his lump sum payment, he only did so only after such time as he was adjudicated to be in contempt of the February Order (see supra), and did so only after he was faced with the prospect of incarceration for civil contempt (see supra). The Defendant's past historical and continued noncompliance with the February Order — which provides clear and unequivocal directives for the support of his spouse — begs the question: if the purpose of pendente lite maintenance is to ensure that a needy spouse is provided with funds for his or her support and reasonable needs pending trial, what purpose does a temporary support order of maintenance serve if the temporary support is not timely paid? The answer is quite simple: it does not serve or further that purpose. A needy spouse should not be required to "chase" the payor spouse for timely payments. Inherent in a temporary order of support is that support should be received on a timely basis so as to enable the needy spouse to support himself or herself. If such support is not timely paid, the noncompliance fails to serve or further the purpose of the support order. The Defendant's logic and conduct, taken together, ostensibly countermands the intent of the February Order. His conduct, therefore, militates against termination of his temporary maintenance obligation.

Dovetailed with the aforesaid, the Court notes that a married person is chargeable with the support of his or her spouse. See Family Court Act § 412(1). Not only that, but a party is not free to disregard a court order and decide for himself the manner in which to proceed (see generally Skripek v. Skripek, 239 AD2d 488 (2d Dept. 1997)), and the importance of obedience to orders of a trial court cannot be overstated. Balter v. Regan, 63 NY2d 630 (1984) (Kaye, J., dissenting) (emphasis added). The Court additionally notes that any perceived inequities in the pendente lite award can be best remedied by a speedy trial, at which the parties' financial circumstances can be fully explored (see Sinanis v. Sinanis, 67 AD3d 773 (2d Dept. 2009); see also Swickle v. Swickle, 47 AD3d 704 (2d Dept. 2008)), and the Court at the time of trial has the discretion to retroactively modify pendente lite maintenance, after hearing the facts and circumstances established at trial. See Emmanuel D. v. Ximena D., 2021 NY Misc. LEXIS 5161 (Supreme Court Kings County 2021). The Court cannot overstate the inexorable conclusion: the Defendant's historical and continued noncompliance with so much of the February Order with respect to his temporary maintenance has thwarted the Plaintiff's right to timely receive the temporary maintenance as ordered, thereby prejudicing her rights to ensure that her needs are timely met; the Defendant's conduct has undermined the intent and purpose of so much of the February Order which provided for the support of the Defendant's spouse."

ON PARTITIONS AND HEIRS PROPERTY

 

ANTIOCO v. ANTIOCO, 2022 NY Slip Op 34420 - NY: Supreme Court 2022:

"nder RPAPL § 901, where there is no agreement preventing partition and a court has not made a determination as to use or possession of real property, "[a] person holding and in possession of real property as [a] joint tenant or tenant in common ... may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners" (see RPAPL § 901[1]; Ehrgott v Buzerak, 49 AD3d 681 [2d Dept 2008]; McNally v McNally, 129 AD2d 686 [2d Dept 1987]). However, the right to partition is not absolute, the court must weigh the equities between the parties before determining whether partition is appropriate (see Graffeo v Paciello, 46 AD3d 613 [2d Dept 2007]; Bufogle v Greek, 152 AD2d 527 [2d Dept 1989]). Furthermore, actual possession is not a prerequisite to a partition action, constructive possession, which follows title, is sufficient (see Garland v Raunheim, 29 AD2d 383 [1st Dept 1968]; Deegan v Deegan, 247 AD 340 [2d Dept 1936]; Bender v Terwilliger, 48 AD 371 [3d Dept 1900], affd 166 NY 590 [1901]; Diamond v Schwartz, 26 Misc 3d 1202(A) Sup Ct, NY County 2009, Tolub, J.).

Here, the court finds that plaintiff has sufficiently demonstrated the absence of any triable issues of fact regarding his ownership and right to possession of the Property, which is the prima facie showing needed to demonstrate a viable partition action under RPAPL § 901 (see RPAPL § 901[1]; Dalmacy v Joseph, 297 AD2d 329 [2d Dept 2002]). PSA has also established that the Property is "heirs property" under RPAPL § 993(2)(e), in that it meets all the requirements for "heirs property" as set forth in that provision, which plaintiff does not refute. The Act, which became effective on December 6, 2019, defines "heirs property" as

"real property held in tenancy in common which satisfies all of the following requirements as of the filing of a partition action: (i) there is no agreement in a record binding all of the co-tenants which governs the partition of the property; (ii) any of the co-tenants acquired title from a relative, whether living or deceased; and (iii) any of the following applies: (A) twenty percent or more of the interests are held by co-tenants who are relatives; (B) twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; (C) twenty percent or more of the co-tenants are relatives of each other; or (D) any co-tenant who acquired title from a relative resides in the property" (RPAPL § 993[2][e]).

Here, as PSA argues, the Property meets the definition of "heirs property" under RPAPL § 993(2)(e), in that there is no agreement between the co-tenants regarding partition of the Property; at least one of the co-tenants obtained their respective interests in the Property from a relative (EA); more than 20% of the interest in the Property is held by co-tenants who are relatives; and PSA, who acquired title from EA, resides in the Property (see RPAPL § 993[2][e]).

As the court has determined that the Property is "heirs property," in accordance with RPAPL § 993(3)(b) and (c),

(b) ... the property shall be partitioned in accordance with this section unless all of the co-tenants otherwise agree in a record, otherwise, it is understood

(c) ... that Section 993 supplements the general partition statute (RPAPL § 901) but replaces the provisions of RPAPL 901 that are inconsistent with this section."

Accordingly, RPAPL § 993 is controlling herein. Therefore, plaintiff's request for summary judgment is premature pursuant to RPAPL § 993(5), which mandates that a settlement conference be held prior to determination of a summary judgment motion (see RPAPL §§ 993(5)(a), (b) and (g). Further, all parties must be provided with notice, pursuant to RPAPL § 993(7)(a), stating that plaintiff, as owner of an undivided one-half (50%) interest in the Property, has sought a partition by sale of the Property, and that PSA, PA and WA, as co-tenants, have the right to avert the partition by purchasing all interest held by plaintiff; and a settlement conference must be held relative to the interests, rights and obligations of the parties regarding the Property, pursuant to RPAPL § 993(5). Thus, the court finds that plaintiff's motion is subject to denial with leave to renew in the event this action is not finally resolved during the settlement conference process (see RPAPL § 993[8])."

PETS, REPLEVIN AND INJUNCTIONS

Rodriguez v. Castano, 2022 NY Slip Op 34054 - NY Co. Supreme Court 2022:

"Plaintiff commenced this action for replevin seeking the alleged return of her dog, Kilo, from defendant, plaintiff's then live-in boyfriend. Plaintiff now moves pursuant to CPLR 7102 for an order of seizure of Kilo for the pendency of this action. The motion is opposed. For the following reasons, plaintiff's motion is granted in part.

According to plaintiff, her and defendant began dating in 2018 and moved in together in February 2020. Plaintiff alleges she purchased Kilo, a Yellow Miniature Australian Sheppard on June 27, 2020. On August 14, 2021, the parties got into a physical altercation, resulting in the parties' obtaining orders of protection against each other. As a result of the order of protection, plaintiff was required to leave the apartment she shared with defendant. According to plaintiff, she relocated to an apartment that did not allow dogs. Thus, plaintiff claims she had to leave the dog at the apartment with defendant. The charges against both parties were dismissed on September 23, 2021. In December 2021 the parties recommenced their romantic relationship, at which time plaintiff came into possession of Kilo for the first time since vacating the property. On July 22, 2022, the parties separated again, and on July 27, 2022, defendant vacated the shared apartment with Kilo.

In support of her motion, plaintiff argues that she has a superior right of possession of Kilo. According to plaintiff, she purchased Kilo for $1,200. Plaintiff further alleges that she is the sole registered owner on Kilo's microchip, on his New York City license, on the service animal certificate, and as listed on Kilo's veterinary records. Plaintiff further contends that she would benefit by having Kilo as her emotional support dog. Plaintiff states that she was diagnosed with depressive disorder, generalized anxiety disorder, and post-traumatic stress disorder, and that Kilo provided her with emotional support. To this end, plaintiff submits the November 27, 2020 letter from Dr. Blanca Iris Santana, PhD, MS, LCSWR, wherein Dr. Santana recommended that plaintiff "[t]ake the steps necessary to establish your rights and continue to use an emotional support animal as we explore and address the root causes of your diagnosis" (NYSCEF doc. no. 13). Plaintiff further argues that defendant lacks any valid defenses. Specifically, plaintiff contends that she did not abandon Kilo or otherwise signal to defendant that she was relinquishing ownership of Kilo to defendant. Plaintiff also requests that the court include a provision in permitting the New York City Sheriff to "break open, enter [defendant's apartment] and search for Kilo" (NYSCEF doc. no. 11, mem in support).

In opposition, defendant argues that he has a superior right to possession of Kilo in that it is best for all that Kilo remain with defendant. Defendant argues that they owned Kilo together until the parties ended their relationship in August 2021. Defendant contends that he cared for Kilo from September 23, 2021 through this action. Defendant further contends that plaintiff gave up her rights to Kilo by leaving the dog with defendant after the parties separated. Defendant also argues that plaintiff's claim that she suffers from mental disorder is misleading, to the extent that she never treated with Dr. Santana. Defendant further argues that plaintiff only obtained the certificate certifying Kilo as an emotional support dog so plaintiff could bring Kilo into establishments where dogs are usually not permitted.

"An order of seizure is not a final disposition of a matter but is a pendente lite order made in the context of a pending action where the movant has established, prima facie, a superior right in the chattel" (Americredit Fin. Servs., Inc. v Decoteau, 103 AD3d 761, 762 [2d Dept 2013]). On a motion for an order of seizure, a plaintiff must demonstrate a likelihood of success on its cause of action for replevin and the absence of a valid defense to its claim (see CPLR 7102[c], [d]; Siemens Med. Solutions USA Inc. v Magnetic Resonance Imaging Assoc. of Queens, P.C., 100 AD3d 620, 621 [2d Dept 2012]; Great Am. Ins. Co. v Auto Mkt. of Jamaica, N.Y., 133 AD3d 631, 631-632 [2d Dept 2015]). "To state a cause of action for replevin, a plaintiff must establish a superior possessory right to property in a defendant's possession" (Reif v Nagy, 175 AD3d 107, 120 [1st Dept 2019]).

Under New York Law, domestic pets have been viewed as personal property, or chattel (Schrage v Hatzlacha Cab Corp., 13 AD3d 150 [1st Dept 2004] [pets are treated as personal property under New York Law]; Travis v Murray, 42 Misc 3d 447, 452 [Sup Ct, New York County 2013]).

However, New York courts have developed a separate analysis for determining "superior right to possessory interest" where a domestic pet is the personal property at issue. In Raymond v Lachmann (264 AD2d 340 [1st Dept 1999]), the court, taking into consideration "[t]he 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," applied a "best for all concerned" analysis in determining the ownership of a ten-year-old cat. In Travis v Murray, a matrimonial dispute, the court refined the "best for all concerned" analysis, by taking "[i]nto consideration, and [giving] paramount importance to, the intangible, highly subjective factors that are called into play when a cherished pet is the property at issue" (Travis, 42 Misc 3d at 455). This approach takes into consideration "[i]ntangible 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 other" and which party is in the best position to meet the dog's daily physical and emotional needs (Mitchell v Snider, 51 Misc 3d 1229[A] [Civ Ct, New York County 2016]).

Here, the court finds that plaintiff is entitled to a preliminary order entitling her to possession of Kilo for the pendency of this action under either standard. Initially, it is clear from the documents submitted to the court that plaintiff is Kilo's owner, to wit, proof that plaintiff paid for Kilo and that Kilo was shipped to plaintiff. Plaintiff also submits documentation suggesting that plaintiff has superior possessory right to Kilo, including that plaintiff is listed as a client on Kilo's veterinary records, a microchip proof of ownership listing plaintiff as the account holder, Kilo's November 7, 2020 "service animal ... certificate of registration" listing plaintiff as his owner, and the "New York City license" approval listing plaintiff as the owner (Caputo v Assante, 42 Misc 3d 133[A], 2014 NY Slip Op 50054[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] [finding that plaintiff's submission, including veterinarian's bills all addressed to plaintiff and listing plaintiff as client, a microchip proof of ownership card listing plaintiff's name, and her testimony that she, rather than defendant, was the owner, constituted sufficient evidence to support the finding that plaintiff proved a superior possessory right to the dog]).

Plaintiff also demonstrates her likelihood of success on the merits when applying the "best for all concerned" test. Considering the above proof of purchase and related undertakings by plaintiff on behalf of Kilo, plaintiff is active in Kilo's life and concerned with Kilo's well-being. Plaintiff also demonstrates her ability to care for Kilo's physical and emotional needs by demonstrating that she would normally spend time with Kilo for several hours during the day, which defendant does not refute (NYSCEF doc. no. 12, pla aff at ¶ 25). Moreover, in light of plaintiff's diagnosis and Dr. Santana's recommendation that plaintiff continue to utilize Kilo as plaintiff's emotional support dog, plaintiff benefits from Kilo as her emotional support dog.

To the extent defendant argues that plaintiff abandoned Kilo, "[a]bandonment is not a defense" to plaintiff's claim for replevin (LeConte v Lee, 35 Misc 3d 286, 288 [Civ Ct, New York County 2011] [finding that the limited abandonment of the chattel, a two year old dog named Bubkas, is not a valid defense in the context of a motion to determine the superior possessory right to chattel], citing Valenza v Valenza, 67 AD2d 879 [1st Dept 1979]). Defendant does not cite to any caselaw supporting his argument that plaintiff relinquished her possessory rights as to Kilo or otherwise claim that plaintiff affirmatively relinquished her rights as to Kilo to defendant. Moreover, defendant does not dispute that plaintiff attempted to contact him after the restraining order was dismissed, to no avail. Further, the parties do not dispute that plaintiff was required to vacate the apartment where the parties resided as a result of the cross-restraining orders between them and that plaintiff was prohibited from contacting defendant, making it nearly impossible for plaintiff to contact defendant until the protective orders were dismissed. Thus, there is no basis to conclude that plaintiff abandoned Kilo or otherwise relinquished her possessory interest in Kilo. In light of the above, plaintiff also establishes that defendant lacks a valid defense to plaintiff's claim for replevin."