ON STATUTE OF LIMITATIONS

Caiola v Fenestra Am., LLC, 2018 NY Slip Op 01592, Decided on March 14, 2018, Appellate Division, Second Department:

"On August 22, 2005, the plaintiff and the defendant entered into a contract under which the defendant agreed to manufacture and deliver a number of custom-made wooden doors to the plaintiff's home in Hampton Bays. The defendant did not install the doors. Sometime in 2006, the plaintiff noticed that water was leaking into his home through the doors. In 2012, following multiple conversations and exchanges of correspondence with the plaintiff, the defendant sent the plaintiff a letter criticizing the manner in which the doors had been installed and offering to, among other things, replace "the ocean-facing door units on the second floor" so that they could be re-installed in a different manner.

In 2013, approximately seven years after the defect was discovered, the plaintiff commenced this action to recover damages for breach of contract and breach of warranty. The defendant subsequently moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. In the order appealed from, the Supreme Court granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired" (Coleman v Wells Fargo & Co., 125 AD3d 716, 716; see Beizer v Hirsch, 116 AD3d 725, 725). If the moving defendant does so, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period (see Celestin v Simpson, 153 AD3d 656, 657; Coleman v Wells Fargo & Co., 125 AD3d at 716). The applicable limitations period in this case is four years after the causes of action accrued [*2](see UCC 82-725[1]; New York Methodist Hosp. v Carrier Corp., 68 AD3d 830).

Here, the defendant established, prima facie, that the plaintiff commenced this action more than four years after the causes of action accrued (see UCC 2-725[1], [2]; see also Schwatka v Super Millwork, Inc., 106 AD3d 897, 898). In opposition, the plaintiff failed to raise a question of fact as to whether General Obligations Law § 17-101 applied to renew the limitations period (see Romanelli v Disilvio, 76 AD3d 553, 554-555; see also Boone Assoc., L.P. v Leibovitz, 13 AD3d 267, 267; Sitkiewicz v County of Sullivan, 256 AD2d 884, 886). Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred."

WHAT CAN HAPPEN WHEN A HOME LACKS A CERTIFICATE OF OCCUPANCY

Town of N. E. v Vitiello, 2018 NY Slip Op 01497, Decided on March 7, 2018, Appellate Division, Second Department:

"The defendants constructed a residence on property they owned in the Town of North East. Following the denial of an application for a certificate of occupancy, the defendants applied to the Town of North East Zoning Board of Appeals (hereinafter the ZBA) for a variance to allow the issuance of a certificate of occupancy for the residence without meeting certain requirements regarding direct access to, or road frontage on, a public street. By decision dated April 28, 2005, the ZBA granted the variance subject to specified conditions. The defendants did not challenge that decision. Thereafter the plaintiff commenced this action to enjoin the defendants from occupying or otherwise using the residence until such time as a certificate of occupancy was issued. The Supreme Court, inter alia, granted judgment in favor of the plaintiff, and the defendants appeal.

Where a town seeks to enforce its building and zoning laws, it is entitled to a permanent injunction upon demonstrating that the party sought to be enjoined is acting in violation of the applicable provisions of local law (see Town Law §§ 135, 268; Hasson v S.B.J. Assoc., LLC, 117 AD3d 904, 905; Town of Brookhaven v Mascia, 38 AD3d 758, 759). Here, the plaintiff established its entitlement to a permanent injunction, where the evidence at trial demonstrated that the ZBA granted the defendants a variance to allow the issuance of a certificate of occupancy subject to specified conditions, and that the defendants failed to satisfy those conditions. In particular, a certificate of occupancy had not been issued, and the defendants were occupying the residence in [*2]violation of sections of the Town Code of the Town of North East which required the issuance of a certificate of occupancy before any building or structure may be used or occupied (see Town Code of the Town of North East former §§ 38-10, 98-60)."

MARIJUANA ABUSE AND PARENTAL NEGLECT

Matter of Joseph I. N. (Amy S. R.), 2018 NY Slip Op 01469, Decided on March 7, 2018, Appellate Division, Second Department:

"The petitioner filed petitions to terminate the mother's and father's parental rights to the three subject children on the ground of permanent neglect. After a fact-finding hearing, the Family Court dismissed the petitions. The petitioner appeals.

"In proceedings to terminate parental rights based on permanent neglect, the agency must establish as a threshold matter that it made diligent efforts to encourage and strengthen the parental relationship" (Matter of Daria S.H.-A. [Yolanda H.], 154 AD3d 669, 670; see Social Services Law § 384-b[7][a]). Here, the petitioner established by clear and convincing evidence that it exercised diligent efforts to encourage and strengthen the mother's and father's relationship with the children (see Matter of Daria S.H.-A., 154 AD3d at 670; Matter of Hector V.P., 146 AD3d 889, 890). These efforts included, among other things, the development of a service plan that required the parents to complete a drug treatment program, a parenting skills program, and a mental health evaluation. The plan also required the parents to obtain suitable housing and to participate in family visits with the petitioner. In addition, the petitioner provided the parents with numerous referrals to drug treatment programs, scheduled supervised visitation, and consistently advised the parents that completion of the service plan was necessary for reunification with the children (see Matter of Hector V.P., 146 AD3d at 890; Matter of Chanel C. [Vanessa N.], 118 AD3d 826, 827).

The petitioner also met its burden by establishing by clear and convincing evidence that the mother and father permanently neglected the children by failing to plan for the future of the children, in that, over the course of more than two years, they failed to complete a drug treatment program (see Social Service Law § 384-b[4][d]; [7][a]; Matter of Chanel C. [Vanessa N.], 118 AD3d at 827-828; Matter of Dustin H. [Patricia B.], 68 AD3d 1112, 1113). The parents' longtime abuse of marijuana was a significant obstacle to their reunification with their children, and neither parent completed a drug treatment program, despite the agency's diligent efforts, including multiple referrals to drug treatment programs (see Matter of Dustin H. [Patricia B.], 68 AD3d at 1113; Matter of Ebony Starr B., 14 AD3d 507, 508). Significantly, one or more of the children have been in foster care at various times since 2009, and the parents have been unsuccessful in completing a drug treatment program during this time. The children are entitled to permanency after the passage of such an extended period of time, during which the parents have failed to complete the programs required for them to be reunified with the children (see Family Ct Act § 1086). Thus, upon a finding of permanent neglect, we remit the matter to the Family Court, Kings County, for a dispositional hearing to be conducted as expeditiously as possible, to determine the best interests of the children (see Family Ct Act §§ 623, 625[a], 631; Matter of Ebony Starr B., 14 AD3d at 508)."

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CUSTODY - POOR CARETAKING AND JUDGMENT

Hogan v Hogan, 2018 NY Slip Op 01454, Decided on March 7, 2018, Appellate Division, Second Department:

"In making a custody determination, the primary concern is the best interests of the child. In determining the child's best interests, the court must consider the totality of the circumstances. Factors to be considered include the relative fitness of the parents, the quality of the home environment, the parents' financial status, the parental guidance given to the child, the ability of each parent to provide for the child's emotional and intellectual development, and the effect an award of custody to one parent might have on the child's relationship with the other parent (see Eschbach v Eschbach, 56 NY2d 167, 171-173; Matter of Sahadath v Andaverde, 145 AD3d 731, 732; Matter of Tejada v Tejada, 126 AD3d 985, 985; Cuccurullo v Cuccurullo, 21 AD3d 983, 984). A custody determination depends to a great extent upon an assessment of the character and credibility of the parties and witnesses. Since the hearing court is able to observe witnesses and evaluate evidence firsthand, its determination is generally accorded deference on appeal and will not be disturbed unless it lacks a sound and substantial basis in the record (see Eschbach v Eschbach, 56 NY2d at 173; Matter of Sahadath v Andaverde, 145 AD3d at 732; Matter of Monasterska v Burns, 121 AD3d 903; Matter of Perez v Martinez, 52 AD3d 518, 519). Furthermore, in determining custody, while the express wishes of a child are not controlling, they are entitled to great weight, especially here, where the child's age and maturity make her input particularly meaningful (see Matter of Cannella v Anthony, 127 AD3d 745, 746).

There is a sound and substantial basis in the record for the Supreme Court's award of sole legal and physical custody of the child to the father. There was evidence in the record that the mother's theft of the PTA funds, her poor decision-making about her failing business, certain postings on her blog and Flickr account, and unstable housing circumstances demonstrated poor caretaking ability and parental judgment. Additionally, the relationship between the mother and the then 14-year-old child had drastically deteriorated after the mother's arrest and later incarceration. The mother's unwise decision to seek election to the position of second vice president of the PTA at the child's new school, and her subsequent election to that position, rekindled the negative publicity about her earlier theft of funds from the PTA at the child's former school. The unfavorable news articles prompted the mother to resign her position and further cemented the rift between the child and the mother. Additionally, the court-appointed forensic psychologist recommended that the father have sole legal and physical custody of the child. The attorney for the child supported that position (see Matter of Wosu v Nettles-Wosu, 132 AD3d 688, 689) and informed the court that the child wished to reside with the father."

FORECLOSURE - WHEN DEATH DID NOT TOLL THE STATUTE OF LIMITATIONS

U.S. Bank, N.A. v Kess, 2018 NY Slip Op 01498, Decided on March 7, 2018, Appellate Division, Second Department:

"The plaintiff commenced this mortgage foreclosure action on February 2, 2015, against, among others, the defendant Philip Kess, individually and on behalf of the estate of Winifred Kess. Kess moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him, individually and in his representative capacity, on the ground that the six-year statute of limitations had run. In support of the motion, he submitted, among other things, the complaint in a prior action commenced by the plaintiff in May 2008 to foreclose the same mortgage (hereinafter the 2008 foreclosure action), in which the plaintiff elected to call due the entire amount secured by the mortgage, and proof that the 2008 foreclosure action was voluntarily discontinued by the plaintiff in October 2014. The plaintiff opposed the motion, arguing that the statute of limitations was tolled for 18 months pursuant to CPLR 210(b) by the June 4, 2013 death of Kess's wife, who was named as a defendant in the 2008 foreclosure action. In the order appealed from, the Supreme Court denied that branch of Kess's motion, finding that the death of Kess's wife tolled the statute of limitations for 18 months, thereby making the instant action timely.

In support of his motion, Kess demonstrated that the six-year statute of limitations (see CPLR 213[4]) began to run on May 6, 2008, when the plaintiff accelerated the mortgage debt and commenced the 2008 foreclosure action (see Albertina Realty Co. v Rosbro Realty Corp., 258 NY 472, 476; Deutsche Bank Natl. Trust Co. v Gambino, 153 AD3d 1232, 1233; U.S. Bank N.A. v Martin, 144 AD3d 891, 892; EMC Mtge. Corp. v Smith, 18 AD3d 602, 603). Since the plaintiff did not commence the instant foreclosure action until more than six years later, Kess sustained his initial burden of demonstrating, prima facie, that this action was untimely (see U.S. Bank N.A. v Martin, 144 AD3d at 892; Lessoff v 26 Ct. St. Assoc., LLC, 58 AD3d 610, 611). The burden then shifted to the plaintiff to present admissible evidence establishing that the action was timely or to raise a [*2]question of fact as to whether the action was timely (see U.S. Bank N.A. v Martin, 144 AD3d at 892; Lessoff v 26 Ct. St. Assoc., LLC, 58 AD3d at 611).

Contrary to the Supreme Court's determination, the plaintiff failed to establish that the action was timely or to raise a question of fact with respect thereto. CPLR 210(b) provides that "[t]he period of eighteen months after the death . . . of a person against whom a cause of action exists is not a part of the time within which the action must be commenced against his [or her] executor or administrator." The statute plainly is limited in scope to the executor or administrator of the decedent's estate and does not extend to other defendants in the same action (see Laurenti v Teatom, 210 AD2d 300, 301; Anselmo v Copertino 134 Misc 2d 956 [Sup Ct, Suffolk County]). Consequently, CPLR 210(b) could not extend the statute of limitations period as to Kess individually. Furthermore, the plaintiff failed to establish that Kess was the administrator or executor of his deceased wife's estate, a point which Kess denied in reply to the plaintiff's opposition. Thus, the Supreme Court erred in finding that the action was timely pursuant to CPLR 210(b).

In addition, the purported loan modification application submitted by the plaintiff in opposition to the motion was not an acknowledgment of the debt and an unconditional promise to repay the debt sufficient to reset the running of the statute of limitations (see Sichol v Crocker, 177 AD2d 842, 843; see also National Loan Invs., L.P. v Piscitello, 21 AD3d 537, 538; Albin v Dallacqua, 254 AD2d 444, 445; see generally Petito v Piffath, 85 NY2d 1, 8)."

DIVORCE - VIOLATING THE AUTOMATIC ORDERS IS CIVIL CONTEMPT

Spencer v Spencer, 2018 NY Slip Op 01348, Decided on February 28, 2018, Appellate Division, Second Department:

"Turning to the issue of whether these automatic orders constitute unequivocal mandates of the court during the pendency of a matrimonial action, although neither the Court of Appeals nor any appellate court has yet addressed this issue, the legislative history of Domestic Relations Law § 236(B)(2)(b) supports the conclusion that the automatic orders constitute unequivocal mandates of the court (see Mem in Support of 2009 NY Assembly Bill A2574, Bill Jacket, L 2009, ch 72; Sponsor's Mem in Support, 2009 NY Senate Bill S2970). There can be no real dispute that the Legislature intended that a violation of the automatic orders "would be redressed by the same remedies available for violations of any order signed by a judge" (P.S. v R.O., 31 Misc 3d 373, 376 [Sup Ct, NY County]). Indeed, the introductory language of 22 NYCRR 202.16-a expressly provides that a charge of contempt is available as a remedy for a party's violation of the automatic orders during the pendency of a matrimonial action:

"The notice shall state legibly on its face that automatic orders have been entered against the parties named in the summons or in the summons and complaint pursuant to this rule, and that failure to comply with these orders may be deemed a contempt of court. The automatic orders shall be binding upon the plaintiff immediately upon filing of the summons, or summons and complaint, and upon the defendant immediately upon service of the automatic orders with the summons. These orders shall remain in full force and effect during the pendency of the action unless terminated, modified or amended by further order of the court or upon written agreement between the parties" (22 NYCRR 202.16-a[b] [emphasis added]).

As noted in the Assembly's Memorandum in Support of Legislation, the automatic orders are needed at the very commencement of and during the pendency of a matrimonial action "to prevent both parties from dissipating assets, incurring unreasonable debts, or removing a party or the children from health or life insurance policies" (Mem in Support of 2009 NY Assembly Bill A2574, Bill Jacket, L 2009, ch 72 at 6; see Sponsor's Mem in Support, 2009 NY Senate Bill S2970). Public policy concerns compel our conclusion that the automatic orders are unequivocal mandates that, upon proper proof, can be enforced through resort to the remedy of contempt of court. Such determination gives teeth to both Domestic Relations Law § 236(B)(2)(b) and 22 NYCRR 202.16-a, as the spectre of being held in contempt can be a powerful deterrent to misconduct by the parties, as well as a valuable tool to induce compliance with and enforcement of the terms of the automatic orders during the pendency of the matrimonial action.

Certain Supreme Court cases that have dealt with civil contempt motions that have been made during the pendency of a matrimonial action also have concluded that the automatic orders constitute unequivocal mandates of the court for the purposes of seeking a remedy of civil [*3]contempt (see Westreich v Westreich, 44 Misc 3d 1217[A], 2014 NY Slip Op 51170[U], *16-17 [Sup Ct, Nassau County]; Sykes v Sykes, 35 Misc 3d 591, 595 [Sup Ct, NY County]; P.S. v R.O., 31 Misc 3d at 376). For example, in P.S. v R.O. (31 Misc 3d at 376), the court reasoned that 22 NYCRR 202.16-a, which has language identical to that set forth in Domestic Relations Law § 236(B)(2)(b), is a lawful mandate of the court. In concluding that the court rule constitutes an unequivocal mandate of the court, the court observed that

"[t]he court rules are promulgated by the Chief Administrator of the Courts on behalf of the Chief Judge of the Court of Appeals under the authority vested in them by Judiciary Law § 211(1)(b) and 212(2)(b), and by article VI, § 30 of the New York State Constitution, to adopt rules to regulate practice and procedure in the courts. Thus, the court rules constitute lawful mandates of the court" (P.S. v R.O., 31 Misc 3d at 376).

The defendant's contention that Domestic Relations Law § 236(B)(2)(b) constitutes a legislative, not a court, mandate (see e.g. Buoniello v Buoniello, 2010 NY Misc. LEXIS 6641 [Fam Ct, Suffolk County]), precluding civil contempt as a remedy for a violation of that section, ignores the existence of 22 NYCRR 202.16-a. A party cannot violate Domestic Relations Law § 236(B)(2)(b) without also violating 22 NYCRR 202.16-a; the two provisions essentially mirror each other. Indeed, we note that, as a matter of course, that section of the Domestic Relations Law and 22 NYCRR 202.16-a each are referred to as "the automatic orders" and are treated in tandem with each other. And, as noted herein, the defendant's contention that the automatic orders are not unequivocal mandates subjecting him to civil contempt, but rather constitute administrative rules, is contrary to the express language of 22 NYCRR 202.16-a, against public policy, and without merit."

MORTGAGE FORECLOSURE - AGAIN FOLLOW THE HEARSAY RULES

OneWest Bank, FSB v Berino, 2018 NY Slip Op 01318, Decided on February 28, 2018, Appellate Division, Second Department:

""Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default" (Plaza Equities, LLC v Lamberti, 118 AD3d 688, 689). Additionally, "[w]here, as here, standing is put into issue by a defendant, the plaintiff must prove its standing in order to be entitled to relief" (Aurora Loan Servs., LLC v Taylor, 114 AD3d 627, 628 [internal quotation marks omitted], affd 25 NY3d 355). A plaintiff in a mortgage foreclosure action has standing where it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361; U.S. Bank N.A. v Handler, 140 AD3d 948, 949). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754).

Here, OneWest failed to meet its prima facie burden of establishing that it had standing as the holder or assignee of the note at the time it commenced the action (see Wells Fargo Bank, N.A. v Talley, 153 AD3d 583, 584; Arch Bay Holdings, LLC v Albanese, 146 AD3d 849, 852). In support of its motion, OneWest submitted the affidavit of Jillian Thrasher, an employee of its loan servicer, who averred that OneWest was the holder of the note, which is endorsed in blank, and assignee of the mortgage at the time the action was commenced. However, OneWest failed to demonstrate the admissibility of the records that Thrasher relied upon under the business records exception to the hearsay rule (see CPLR 4518[a]), since she did not attest that she was personally familiar with OneWest's record-keeping practices and procedures (see Arch Bay Holdings, LLC v Albanese, 146 AD3d at 853; Aurora Loan Serv., LLC v Baritz, 144 AD3d 618, 620; Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 685; U.S. Bank N.A. v Handler, 140 AD3d at 949; Aurora Loan Servs., LLC v Mercius, 138 AD3d 650, 652). Insofar as the Supreme Court reached its determination that OneWest had standing by, sua sponte, "independently tak[ing] judicial notice of the FDIC website," this Court has repeatedly cautioned against such independent Internet investigations, especially when conducted without providing notice or an opportunity for the parties to be heard (see First United Mtg. Banking Corp. v Lawani, 147 AD3d 912, 913; HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 818). Since OneWest failed to meet its prima facie burden, the court should have denied the subject branches of its motion without regard to the sufficiency of the Berino defendants' opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324)."

POWER OF ATTORNEY AND/OR SKLAR POWER OF ATTORNEY

The standard General Power of Attorney will provide under the section "Grant of Authority" the following:

"To grant your agent some or all of the authority below, either (1) Initial the bracket at each authority you grant, or (2) Write or type the letters for each authority you grant on the blank line at (P), and initial the bracket at (P). If you initial (P), you do not need to initial the other lines. I grant authority to my agent(s) with respect to the following subjects as defined in sections 5-1502A through 5-1502N of the New York General Obligations Law:

..........

( ) (K) health care billing and payment matters; records, reports, and statements;

........."

Although HIPAA was intended to protect consumers, the law may be abused by agency or health provider or insurance staff as a way to obstruct the medical advocate of an individual access to  health information, or to refuse to provide even general information regarding agency practices.

The new Power of Attorney form in New York State contains a clause giving the agent the authority to examine, question, and pay medical bills on behalf of the principal, so long as the principal has executed a health care proxy.

In addition, it is possible to execute a POA exclusively for purposes of executing HIPAA releases, known as a "Sklar POA. See NY Public Health Law §18(1)(G)

MORTGAGE FORECLOSURE - FAILURE TO ENTER DEFAULT WITHIN ONE YEAR

Wells Fargo Bank, N.A. v Pietro A. Cafasso, 2018 NY Slip Op 01351, Decided on February 28, 2018, Appellate Division, Second Department:

"The plaintiff commenced this mortgage foreclosure action against the defendant Pietro A. Cafasso, among others, in January 2011. Cafasso defaulted in answering the complaint, and thereafter failed to appear at a settlement conference in August of 2011. On or about October 8, 2015, the plaintiff moved for leave to enter a default judgment against, among others, Cafasso, and to appoint a referee to compute the amount due to the plaintiff. Cafasso opposed the motion, arguing that inasmuch as more than four years had elapsed since his default in answering, the complaint should be dismissed pursuant to CPLR 3215(c). In two orders, both entered February 9, 2016, the Supreme Court, inter alia, granted the plaintiff's motion and appointed a referee to [*2]compute the amount due under the mortgage. Cafasso appeals.

Cafasso correctly contends that the Supreme Court improperly granted those branches of the plaintiff's motion which were for leave to enter a default judgment against him and to appoint a referee to compute the amount due to the plaintiff, and that the complaint should be dismissed. CPLR 3215(c) generally provides that where a plaintiff fails to take proceedings for the entry of judgment within one year after a default, the court shall dismiss the complaint as abandoned. "The one exception to the otherwise mandatory language of CPLR 3215(c) is that the failure to timely seek a default on an unanswered complaint or counterclaim may be excused if sufficient cause is shown why the complaint should not be dismissed'" (Giglio v NTIMP, Inc., 86 AD3d 301, 308, quoting CPLR 3215[c]). "This Court has interpreted this language as requiring both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious" (Giglio v NTIMP, Inc., 86 AD3d at 308; see Pipinias v J. Sackaris & Sons, Inc., 116 AD3d 749, 751-752). " The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court'" (Pipinias v J. Sackaris & Sons, Inc., 116 AD3d at 752, quoting Giglio v NTIMP, Inc., 86 AD3d at 308; see Park Lane North Owners, Inc. v Gengo, 151 AD3d 874). Under the circumstances at bar, the Supreme Court improvidently exercised its discretion in finding that the plaintiff proffered a reasonable excuse for the delay, since the plaintiff's conclusory and unsubstantiated assertions that unspecified periods of delay were attributable to the effects of Hurricane Sandy, compliance with a then newly enacted administrative order, and changes in loan servicers and counsel were insufficient for this purpose (see HSBC Bank USA, N.A. v Grella, 145 AD3d 669, 672; U.S. Bank, N.A. v Dorvelus, 140 AD3d 850, 852)."

UNEMPLOYMENT INSURANCE - MISCONDUCT CHARGE MUST HAVE PRIOR WARNING OF ADVERSE CONSEQUENCE

MATTER OF JELIC, 2018 NY Slip Op 588 - NY: Appellate Div., 3rd Dept. 2018:

"The employer contends that claimant engaged in disqualifying misconduct by virtue of her repeated tardiness and attendance problems and, consequently, she was not entitled to receive unemployment insurance benefits. Preliminarily, we note that "[w]hether a claimant's actions rise to the level of disqualifying misconduct is a factual issue for the Board to resolve, and not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct" (Matter of Humphreys [Cayuga Nation of Indians-Commissioner of Labor], 153 AD3d 1017, 1017 [2017] [internal quotation marks and citations omitted]; see Matter of Morris [Lenox Hill Neighborhood House Inc.-Commissioner of Labor, 110 AD3d 1333, 1334 [2013]). The Board's determination in this regard will not be disturbed if it is supported by substantial evidence (see Matter of Mejia [Metropolitan Cable Communications Inc.-Commissioner of Labor], 125 AD3d 1042, 1042 [2015]; Matter of Andrews [A.C. Roman & Assoc.-Commissioner of Labor], 118 AD3d 1216, 1216-1217 [2014]).

The record reveals that, although claimant's tardiness and attendance problems began in December 2014, she was not served with any notices of discipline until May 4, 2015, just after her work-related injury. Claimant's immediate supervisor testified that she instructed claimant on the proper procedure for entering her work hours into the computer system and told her that she had to be at work between the hours of 9:00 a.m. and 5:00 p.m. In fact, claimant received emails in December 2014 and March 2015 reminding her of these requirements. She was not, however, advised that adverse employment consequences would result if she did not follow the proper protocol. Likewise, the notices of discipline did not set forth the disciplinary measures that would be taken if claimant continued to engaged in the objectionable behavior. Furthermore, claimant's termination occurred shortly after she was placed on suspension without affording her an opportunity to correct her behavior^[1]. Under the circumstances presented, although the employer had cause to discharge claimant, she did not exhibit a willful and wanton disregard of the employer's interest rising to the level of disqualifying misconduct (see generally Matter of Chirico [City of Syracuse-Commissioner of Labor], 136 AD3d 1137, 1138 [2016]; Matter of Rahaman [New York Convention Ctr. Operating Corp.-Commissioner of Labor], 101 AD3d 1206, 1207 [2012]). Accordingly, inasmuch as substantial evidence supports the Board's decision, we find no reason to disturb it. We have considered the employer's remaining arguments and find them to be unpersuasive."

CAN GUARDIAN COMMENCE A DIVORCE ACTION ON BEHALF OF WARD

DE v. PA, 2016 NY Slip Op 51230 - NY: Supreme Court 2016:

"However, defendant also contends that Ms. K. cannot maintain this divorce action for plaintiff, as the guardian of the person and property of an incompetent person cannot maintain an action of absolute divorce against the incompetent person's spouse. In re Wechsler, 3AD3d 424 (1st Dept. 2004); Mohrmann v. Kob, 291 NY 181 (1943).

In Mohrmann, 291 NY 181, the Court of Appeals determined that then present Civil Practice Act Section 1147 prohibited the committee of the property of an incompetent person to prosecute an action for divorce on behalf of the incompetent person, as that section limits the right to maintain an action to procure a judgment of divorce to a husband or wife.^[2] The Mohrmann Court wrote

[i]t has been suggested that the authority granted to the committee of the property of an incompetent person by section 1377 of the Civil Practice Act is broad enough in scope to include an action for divorce on behalf of the incompetent. We think that when the Legislature by section 1147 of the Civil Practice Act limited to a husband or a wife' the right to maintain an action against the other party to the marriage to procure a judgment divorcing the parties and dissolving the marriage by reason of the defendant's adultery', the statutory restriction thus placed upon the right to bring such an action was not relaxed by the provisions of section 1377. The committee of the property of an incompetent has the duty of protecting the property of his ward and for that purpose has been given by section 1377 a general power to maintain in his own name any action which the person with respect to whom he is appointed might have maintained if the appointment had not been made.' A statute conferring upon the committee of the property of an incompetent a general power should not be construed to include the right to choose for the incompetent whether or not to ask the courts to dissolve the marriage tie in order to free the incompetent from its incidental obligations. It is our view that when the Legislature by section 1377 authorized the committee of the property of an incompetent person to bring any action or special proceeding' in behalf of the incompetent, the use of the word any' did not include an action for divorce which the Legislature has always treated separately and completely.

Mohrmann, 291 NY at 188-189.

Many years later in In re Wechsler, 3 AD3d 424 (1st Dept. 2004), the First Department, citing to Mohrmann as being dispositive on the issue, held that the guardian of the incompetent husband could not institute a no-fault divorce proceeding in Pennsylvania against the wife, despite the grant of authority to the guardian to "maintain any civil judicial proceeding." The Wechsler Court wrote that in Mohrmann the Court of Appeals "noted that whether to pursue divorce proceedings is a personal decision in which the element of volition is implicit." In re Wechsler, 3 AD3d 424. The Court further opined that "absent statutory authority permitting a guardian to commence a divorce on behalf of a ward, the courts may not assume to grant such power (citations omitted). Id. at 425.

Counsel for plaintiff claims that defendant's argument fails, as plaintiff has not been adjudged to be an incompetent person, and that there is no medical evidence to support her claim that plaintiff is incapacitated. In reply, counsel for defendant maintains that Ms. K.'s appointment as temporary conservator is proof contrary to such an assertion by plaintiff's counsel.

At this juncture, the issue of plaintiff's competency is before the Connecticut court. By order dated June 2, 2016, Ms. K.'s appointment as temporary conservator of the estate and person of plaintiff was extended to July 2, 2016. On June 23, the Connecticut court will be holding a hearing regarding Ms. K.'s petition pursuant to which she is seeking to be appointed as conservator of plaintiff.

Based on the foregoing, in the event that the Connecticut court finds plaintiff to be incompetent, Ms. K., as his conservator will not be able to continue to prosecute this action for divorce on his behalf. Once plaintiff is found to be incompetent, Ms. K. can no longer maintain the action, as the Court of Appeals has held that the statute providing for an action for divorce (currently DRL §170) limits the right to maintain an action to procure a judgment of divorce to a husband or wife. Therefore, even assuming arguendo, that plaintiff was competent when the action commenced, if he is found to be incompetent at a later stage in the proceedings, the action must be dismissed."

PRENUPITAL AGREEMENT - DEFECTIVE ACKNOWLEDGMENT CURED

Matter of Koegel, 2018 NY Slip Op 00833, Decided on February 7, 2018, Appellate Division, Second Department:

"3. Curability of Acknowledgment Defect

At the outset, John is correct that Matisoff is not controlling here. Matisoff does not provide support for Irene's position that the defective certificates of acknowledgment utterly refute the allegations in the petition that she is not entitled to an elective share of the decedent's estate due to the waiver set forth in the prenuptial agreement.

In Matisoff, a case involving a postnuptial agreement in which the parties waived any rights of election provided by the EPTL, "it [wa]s undisputed . . . that the document was not acknowledged by the parties or anyone else" (90 NY2d at 130).

The case at bar differs from Matisoff since here, there were certificates of acknowledgment of the signatures of Irene and the decedent, albeit the certificates did not contain the required language for acknowledgment as currently required by the Real Property Law. Similarly, Irene's reliance on D'Elia is misplaced since the agreement in that case was not at all acknowledged at the time of execution. Thus, this Court's statement in D'Elia that "[i]t is uncontroverted that the parties' postnuptial agreement was not properly acknowledged at the time that it was executed" (14 AD3d at 478) was not referring to a defective acknowledgment, as occurred here, but instead, to the absence of any acknowledgment, presenting this Court with the same situation which arose in Matisoff (see e.g. Ballesteros v Ballesteros, 137 AD3d 722, 723 [the "Promissory Note," drafted by the wife in 2009, after the parties were married, pursuant to which the husband agreed to purchase a condominium for the wife in the event that they divorced, was unenforceable since the "Promissory Note" was an agreement between spouses, which did not have a certificate of acknowledgment attached to it although the husband had the document signed by a notary]). In that vein, Irene's reliance on First and Fourth Department cases is also unavailing, as those cases are distinguishable for the same reason (see Filkins v Filkins, 303 AD2d 934, 934 ["It is undisputed that no written certificate of acknowledgment was attached when the parties entered into the agreement in 1995"]; Schoeman, Marsh & Updike v Dobi, 264 AD2d 572, 573 [legal malpractice counterclaim related to the Matisoff matrimonial action]; cf. Anonymous v Anonymous, 253 AD2d 696, 697 [the First Department found that the Supreme Court erred in granting renewal to the husband with respect to the wife's prior motion to declare a prenuptial agreement to be unenforceable, due to the husband's failure to submit an acknowledgment with the agreement, where the husband could have submitted the certificate of acknowledgment on the prior motion. Moreover, the First Department questioned the appearance of the "alleged acknowledgment in affidavit form which was executed and which surfaced some 12 years after the fact in the midst of a contested matrimonial action in light of the required formalities of Domestic Relations Law § 236(B)(3)"]).

Here, given the presence of executed acknowledgments, admittedly without certain language required by the Real Property Law, rather than an absence of any acknowledgment at all, the decision in Galetta is more on point and instructive than Matisoff and D'Elia with respect to the issue at bar. Further, the Surrogate's Court correctly found that the Court of Appeals, in Galetta, left open the issue of whether a defective acknowledgment can be cured.

In Galetta, the parties executed a prenuptial agreement before different notaries at different times one week before their wedding took place in July 1997 (21 NY3d at 189). As here, it was undisputed that the signatures on the document were authentic and there was no claim that the agreement was procured through fraud or duress (see id. at 189-190).

The certificate of acknowledgment relating to the wife's signature contained the proper language (see id. at 190). However, in the acknowledgment relating to the husband's signature, the certificate failed to indicate that the notary "confirmed the identity of the person executing the document or that the person was the individual described in the document" (id.). The husband filed for divorce and the wife separately filed for divorce and for a declaration that the prenuptial agreement was unenforceable (see id.).

The wife moved for summary judgment on her cause of action seeking declaratory relief, contending that the agreement was invalid because the certificate of acknowledgment relating to the husband's signature did not comport with the Real Property Law requirements. The husband opposed the motion on the basis that the language of the acknowledgment substantially complied with the Real Property Law. He also submitted an affidavit from the notary who had witnessed his signature in 1997 and executed the certificate of acknowledgment (see id.). "The notary, an employee of a local bank where the husband then did business, averred that it was his custom and practice, prior to acknowledging a signature, to confirm the identity of the signer and assure that the [*7]signer was the person named in the document. He stated in the affidavit that he presumed he had followed that practice before acknowledging the husband's signature" (id. [emphasis added]).

The Supreme Court denied the wife's motion, finding that the acknowledgment substantially complied with the requirements of the Real Property Law. A divided Fourth Department affirmed the order albeit on the different ground that, although the acknowledgment was defective, the deficiency could be cured after the fact and that the notary's affidavit raised a triable issue of fact as to whether the agreement had been properly acknowledged when executed (see 96 AD3d 1565, revd 21 NY3d 186).^[FN5]

With respect to the issue of whether the certificate of acknowledgment accompanying the husband's signature was defective, the Court of Appeals determined that without stating " to me known and known to me,'" the certificate failed to indicate either that the notary knew the husband or had ascertained through some form of proof that the husband was the person described in the prenuptial agreement (21 NY3d at 193). The Court noted that:

"At the time the parties here signed the prenuptial agreement in 1997, proper certificates of acknowledgment typically contained boilerplate language substantially the same as that included in the certificate accompanying the wife's signature: before me came (name of signer) to me known and known to me to be the person described in and who executed the foregoing instrument and duly acknowledged to me that s/he executed the same'" (id. [footnote omitted]).

The Court pointed out that the " to me known and known to me to be the person described in the document'" language "satisfied the requirement that the official indicate that he or she knew or had ascertained that the signer was the person described in the document" (id.). It also observed that "[t]he clause beginning with the words and duly acknowledged' established that the signer had made the requisite oral declaration" (id.). Given the failure to include this language in the acknowledgment of the husband's signature, the Court of Appeals agreed with the Fourth Department that the acknowledgment did not conform with statutory requirements (see id. at 194).

Since the Court of Appeals determined that the certificate was defective, it then turned to address the question of "whether such a deficiency can be cured and, if so, whether the affidavit of the notary public prepared in the course of litigation was sufficient to raise a question of fact precluding summary judgment in the wife's favor" (id.). However, in looking at the proof submitted by the husband, the Court of Appeals stated that it "need not definitively resolve the question of whether a cure is possible because, similar to what occurred in Matisoff, the proof submitted here was insufficient" (id. at 197).

The Court of Appeals analyzed in detail the affidavit of the notary submitted by the husband in opposing the wife's summary judgment motion. The Court pointed out that the notary only recognized his own signature and had no independent recollection of notarizing the subject document (see id.). Given these statements, the Court found that the husband could not rely on the notary's custom and practice to fill in the evidentiary gaps because "the averments presented by the notary public in this case [we]re too conclusory to fall into this category" (id.).^[FN6]

Further, the Court stated that if the notary had recalled acknowledging the husband's signature, "he might have been able to fill in the gap in the certificate by averring that he recalled [*8]having confirmed [the husband's] identity, without specifying how" (id. at 198). However, since the notary did not recall acknowledging the husband's signature and was attempting to rely on custom and practice evidence, the Court stated that "it was crucial that the affidavit describe a specific protocol that the notary repeatedly and invariably used—and proof of that type is absent here" (id.).

The situation at bar is akin to the hypothetical described by the Court of Appeals in Galetta, where the notaries here, the decedent's law partner and Irene's attorney, actually recalled acknowledging the signatures at issue. In such a situation, the Court of Appeals explained that the confirmation of the identity of the signer, through an affidavit, is sufficient without having to explain how the identity was confirmed (see id.).

Although, in support of her motion, Irene submitted the prenuptial agreement with the defective acknowledgments to demonstrate that the agreement was invalid, the Surrogate's Court properly declined to dismiss the petition on the basis of documentary evidence in light of John's submission in opposition to her motion. To supplement the allegations of the petition, in opposition, John submitted affidavits which showed that the petition may be meritorious in spite of the documentary evidence. In response to the assertion that the prenuptial agreement was invalid as improperly acknowledged, the affidavits of Donovan and Jacobsen specifically stated that each observed the document being signed, took the acknowledgment in question, and personally knew the individual signer signing before him. In so doing, the defect in the acknowledgment was cured in order to give vitality to the expressed intent of the parties set forth in the prenuptial agreement.

Accordingly, the Surrogate's Court properly denied Irene's motion pursuant to CPLR 3211(a)(1) and Domestic Relations Law § 236(B)(3) to dismiss the petition. Therefore, the order is affirmed."