SPOUSE'S SPYWARE SPRINGS SANCTIONS

C.C. v A.R., 2021 NY Slip Op 01243, Decided on March 3, 2021, Appellate Division, Second Department:

"This appeal examines the proper sanction in a matrimonial litigation where one party installed spyware on the other party's phone, invoked Fifth Amendment protections on the issue, and intentionally destroyed evidence as to what the spyware actually intercepted. The Supreme Court properly determined, under the circumstances here, that it is proper to infer that the plaintiff violated the defendant's attorney-client privilege, and that the appropriate sanction is to strike the causes of action in the complaint relating to the financial issues of the case other than child support.

The parties were married in 2008, and have two children, both born in 2009. The plaintiff commenced this action for a divorce and ancillary relief by filing a summons and complaint in October 2014.

In May 2015, the defendant moved, ex parte, by order to show cause, to direct the plaintiff to immediately turn over his computing devices for forensic imaging and analysis. The defendant introduced evidence that the plaintiff had installed spyware onto her phone, and that he had repeatedly invoked his Fifth Amendment privilege against self-incrimination when questioned about such spyware during his deposition. The Supreme Court directed the Sheriff of the City of New York to serve the order to show cause on the plaintiff and to confiscate his computing devices. The court also enjoined the plaintiff from destroying or tampering with any records related to any spyware.

The Supreme Court subsequently appointed a referee to examine the plaintiff's computing devices. Both parties hired forensic experts to assist the referee in the process.

The defendant then moved to compel the plaintiff to disclose all spyware he had purchased, alleging that her expert had found yet another spyware program on her phone, called OwnSpy. This new spyware, the defendant claimed, had a wiretapping feature and could turn her phone into an open microphone. The spyware was installed on her phone from October 10, 2014, to October 31, 2014. The defendant alleged that, the day before the plaintiff commenced this action, he had used the program to listen to her session with a psychiatrist and a meeting with her attorney.

In an interim report, the referee noted that, of the 14 computing devices that were examined, 4 of them were locked. The experts were able to open one without a password. The plaintiff claimed that he could not remember the passwords to the other 3 locked devices. The experts were able to unlock 2 of the 3 remaining devices with the help of an outside firm, but one device remained inaccessible. Based upon the experts' interim reports, the referee determined that the plaintiff did use spyware against the defendant, and that the plaintiff did intercept the defendant's confidential communications. The referee also concluded that there was no forensic evidence that the plaintiff disseminated the information to any third party, or that he intercepted or disseminated any privileged communications. However, the report noted that 1 of the locked devices contained evidence that, one day after the court order was issued to seize the plaintiff's computing devices, the plaintiff installed and executed data-wiping programs on that device. Because of this, it was impossible to determine what data, if any, was deleted and rendered unrecoverable.

The referee's final report noted that there was evidence that the plaintiff had used the spyware feature to record conversations using the defendant's phone while she was in the vicinity of her attorney's office.

The defendant then moved to hold the plaintiff in contempt for spoliation of evidence and to preclude the plaintiff from introducing any evidence at trial. The plaintiff opposed the motion. In an order dated February 5, 2018, the Supreme Court found that the plaintiff knowingly and purposefully violated the defendant's attorney-client privilege. The court also found that the plaintiff engaged in spoliation of evidence when he used data-wiping applications on his computing devices while he was obligated to preserve evidence. The court determined that the spoliation was intentional and in bad faith, and accordingly, that the relevance of the destroyed evidence was presumed. The court concluded that the plaintiff's actions "gravely prejudiced the defendant." The court determined that, because of the spoliation issues and the fact that the plaintiff repeatedly invoked his Fifth Amendment privilege against self-incrimination, the most drastic spoliation sanctions were required. Accordingly, the court, inter alia, granted that branch of the defendant's motion which was to prelude the plaintiff from introducing any evidence at trial to the extent of striking the causes of action in the complaint seeking spousal support, equitable distribution, and counsel fees.

"A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a 'culpable state of mind,' and 'that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense'" (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547, quoting VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 45). "Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed" (Pegasus Aviation I., Inc. v Varig Logistica S.A., 26 NY3d at 547). Here, the Supreme Court properly drew the presumption of relevance in connection with the interception by the plaintiff of privileged communications between the defendant and her attorney in view of the plaintiff's invocation of his Fifth Amendment privilege against self-incrimination when questioned about it at his deposition, his intentional destruction of electronic records, and the evidence that he had utilized spyware to record the defendant's conversations when she was in the vicinity of her attorney's office. Although this presumption is rebuttable (see VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d at 45), the plaintiff did not provide any evidence to rebut it. Further, while the striking of pleadings is a drastic remedy, the court did not improvidently exercise its discretion in striking the causes of action in the plaintiff's complaint seeking financial relief other than child support. "Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence" (Morales v City of New York, 130 AD3d 792, 793; see CPLR 3126; McDonnell v Sandaro Realty, Inc., 165 AD3d 1090, 1094-1095). "The Supreme Court is empowered with 'broad discretion in determining the appropriate sanction for spoliation of evidence'" (Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717, 718, quoting De Los Santos v Polanco, 21 AD3d 397, 397). These sanctions can include "precluding proof favorable to the spoliator to restore balance to the litigation, requiring the spoliator to pay costs to the injured party associated with the development of replacement evidence, or employing an adverse inference instruction at the trial of the action. Where appropriate, a court can impose the ultimate sanction of dismissing the action or striking responsive pleadings, thereby rendering a judgment by default against the offending party" (Ortega v City of New York, 9 NY3d 69, 76 [citations omitted]).

Here, where the plaintiff violated the defendant's attorney-client privilege, the preclusion of documents is not an appropriate alternative sanction because the plaintiff will always be privy to any litigation strategy of the defendant that he gained through secretly intercepting her privileged communications (see Lipin v Bender, 84 NY2d 562, 572-573). As the plaintiff "chose the course of action that exacerbated the harm" (id. at 569), the defendant has been seriously compromised in defending herself in this divorce action. Accordingly, the Supreme Court providently exercised its discretion in striking the causes of action in the complaint seeking spousal support, equitable distribution, and counsel fees."

ALTERNATIVE DISPUTE RESOLUTION SERVICES AVAILABLE

 

LAW OF THE DEAD - DISPOSITION OF REMAINS

Who controls where and how you will be buried, cremated, etc.? How would you make sure that your wishes were followed? Your spouse wants you to be created, your son wants you to be buried, your daughter agrees with burial but not the cemetery your son wants, etc. And now that you have passed away, your family is falling apart and threatening litigation because no one agrees as to how, where, when the remains of Dad or Mom are to be laid to rest.

In addition to making pre-paid funeral plans, allow me to introduce you to Public Health Law ⸹ 4201 which provides that a funeral home, cemetery must follow the directions of certain individuals or entities in a priority order. The first priority is given to, at PHL 4201 (2) (a) (i), the person designated in a written instrument executed pursuant to the provisions of this section. And at PHL 4201 (3), the statute provides:

"3. The written instrument referred to in paragraph (a) of subdivision two of this section may be in substantially the following form, and must be signed and dated by the decedent and the agent and properly witnessed:

   APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS 

I, _____________________________________________________________________

   (Your name and address) 

being of sound mind, willfully and voluntarily make known my desire that, upon my death, the disposition of my remains shall be controlled by ___________________________________________________________________ . 

   (name of agent) 

With respect to that subject only, I hereby appoint such person as my agent with respect to the disposition of my remains. 

SPECIAL DIRECTIONS: Set forth below are any special directions limiting the power granted to my agent as well as any instructions or wishes desired to be followed in the disposition of my remains: ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________

  Indicate below if you have entered into a pre-funded pre-need agreement subject to section four hundred fifty-three of the general business law for funeral merchandise or service in advance of need:

  [] No, I have not entered into a pre-funded pre-need agreement subject to section four hundred fifty-three of the general business law.

  [] Yes, I have entered into a pre-funded pre-need agreement subject to section four hundred fifty-three of the general business law. ________________________________________________________________________ 

 (Name of funeral firm with which you entered into a pre-funded pre-need funeral agreement to provide merchandise and/or services) 

AGENT: Name: __________________________________________________________________ Address: _______________________________________________________________ 

Telephone Number: ______________________________________________________ 

SUCCESSORS:

  If my agent dies, resigns, or is unable to act, I hereby appoint the following persons (each to act alone and successively, in the order named) to serve as my agent to control the disposition of my remains as authorized by this document: 

1. First Successor 

Name: __________________________________________________________________ 

Address: _______________________________________________________________ 

Telephone Number: ______________________________________________________ 

2. Second Successor 

Name: __________________________________________________________________ 

 Address: _______________________________________________________________ 

 Telephone Number: ______________________________________________________ 

DURATION: This appointment becomes effective upon my death. 

PRIOR APPOINTMENT REVOKED:

  I hereby revoke any prior appointment of any person to control the disposition of my remains. 

Signed this day of , . ________________________________________________________________________ 

 (Signature of person making the appointment) 

Statement by witness (must be 18 or older) I declare that the person who executed this document is personally known to me and appears to be of sound mind and acting of his or her free will. He or she signed (or asked another to sign for him or her) this document in my presence. 

Witness 1: __________________

   (signature) Address: _________________ 

Witness 2: _________________

   (signature) Address: _________________ 

ACCEPTANCE AND ASSUMPTION BY AGENT:

  1. I have no reason to believe there has been a revocation of this appointment to control disposition of remains.

  2. I hereby accept this appointment.

  Signed this day of , .

  _______________________

  (Signature of agent)"

  

MARRIED WITHOUT LICENSE

Mowafy v. Ghaly, NYLJ February 26, 2021, Date filed: 2021-02-17, Court: Supreme Court, Richmond,  Judge: Justice Ralph Porzio, Case Number: 55344/2020:

"Plaintiff commenced these proceedings by filing a Summons and Complaint on October 16, 2020. Per the Plaintiff’s Complaint, the parties were alleged to be married on December 17, 2011, in Kings County, New York, in a religious ceremony by a “clergyman, minister, or leader of the Society for Ethical Culture.” The Plaintiff lists the grounds of divorce as Cruel and Inhuman treatment pursuant to Domestic Relations Law §170(1) and Adultery pursuant to Domestic Relations Law §170(3). There are three children of the marriage, Kenz (D.O.B. 1/10/14). Zahra (D.O.B. 11/27/2012) and Eman (D.O.B. 5/21/15). The Defendant filed an Answer on November 20, 2020 but denied that the parties were ever married.

Plaintiff filed an Order to Show Cause on January 12, 2021, seeking inter alia, pendente lite custody, child support, spousal maintenance and counsel fees. The Defendant filed an Order to Show Cause on January 13, 2021, seeking to dismiss the action as he contends that the parties were never married, and he was married to another person, Rosa Torres, at the time of the alleged marriage to the Plaintiff.

Based upon the filed affidavits, exhibits, and testimony, this Court finds that the Defendant was married to Rosa Torres on February 25, 2004, and they were divorced on November 25, 2015. The Plaintiff purports that she and the Defendant entered into an Islamic Marriage Contract on December 17, 2011. The Court notes that the Islamic Marriage Contract was not signed by the Defendant and further heard sworn testimony on the record from Rosa Torres regarding her marriage to the Defendant.

In New York, “while the Domestic Relations Law deems it necessary for all persons intending to be married to obtain a marriage license, a marriage is not void for the failure to obtain a marriage license if the marriage is solemnized.” See Hasna J. v. David N., 53 Misc. 3d 1142 (N.Y. Sup. Ct. September 28, 2016). Further, a marriage may be found valid if the parties have a “justified expectation” that the couple believed themselves to be married. Id. citing Matter of Farraj, 72 A.D.3d 1082 [2d Dept. 2010]. In this matter, though the Plaintiff had a justified expectation that the parties were married, the Court does not find that the Defendant had the same justified expectation, as he denies ever marrying the Plaintiff.

Further, assuming arguendo, that both parties had a justified expectation that they were married, the Defendant was married to Rosa Torres at the time of the Islamic Marriage Contract. As the Defendant was already married, the Plaintiff and Defendant’s attempt to marry using an Islamic Marriage Contract was void from its inception. See Lipschutz v. Kiderman, 76 A.D.3d 178 [2d Dept. 2010]. As a result, the marriage of the Plaintiff and Defendant cannot be validated through estoppel, agreement, or their “conduct in holding themselves out as husband and wife.” Id.

Based upon the foregoing, this Court hereby dismisses the action for divorce, realizing that the Plaintiff may file for child support, custody, and any other relief deemed necessary in the Family Court or any court of competent jurisdiction.

Though the Complaint has been dismissed, in light of the Plaintiff’s justified expectation and good faith belief that the parties were married, the Court is awarding counsel fees in the sum of $3,500, payable by the Defendant to the Plaintiff’s counsel. This award represents ten hours of legal work performed for both motion practice and court appearances at a rate of $350 per hour. The award is reasonable based upon the experience of counsel, the parties’ income disparity, and the amount of time expended. The total sum must be paid on or before March 17, 2021."

APPLICATION OF CEEFPA TO BE BROADLY CONSTRUED

CEEFPA is the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 and, according to this court, applies to a tax lien foreclosure action.

NYCTL 2016-A TRUST v. NEIGHBORHOOD YOUTH & FAMILY SERVS., INC., 2021 NY Slip Op 21023 - Bronx Supreme Court February 5, 2021:

"...Accordingly, as a threshold matter, this Court must determine if the present action is stayed, either because the present action constitutes a foreclosure proceeding or an eviction within the meaning of CEEPFA.

This Court does not find that the present applications seeking a writ of assistance, and use and occupancy, constitute a foreclosure action for the purposes of CEEPFA. CEEPFA specifically applies to tax lien proceedings. (Part B, Subpart B, § 1.) However, the hardship declaration set forth in that section applies only to the owner of the property. It does not appear that any post-foreclosure proceedings, as such, are subject to any stay under CEEPFA. With respect to foreclosures generally, the CEEPFA does not provide for any type of stay following the execution of judgment, i.e., the sale. (Part B, Subpart A, § 8.) Consequently, even if CEEPFA encompasses this type of post-tax lien sale, by its terms, no stay is provided.

With respect to evictions, CEEPFA defines an "eviction proceeding" as "a summary proceeding to recover possession of real property under article seven of the real property actions and proceedings law relating to a residential dwelling unit or any other judicial or administrative proceeding to recover possession of real property relating to a residential dwelling unit." Part A, § 8(a)(ii) of the Act further provides that, "In any eviction proceeding, if the tenant provides a hardship declaration to the petitioner, the court, or an agent of the petitioner or the court, prior to the execution of the warrant, the execution shall be stayed until at least May 1, 2021. If such hardship declaration is provided to the petitioner or agent of the petitioner, such petitioner or agent shall promptly file it with the court, advising the court in writing the index number of all relevant cases." Such a hardship declaration has been filed in this case, with the defendant tenant Norma Minor alleging both financial hardship and significant health risk. (See NYSCEF Doc. No. 198.)

The scope of the "CEEFPA" with respect to evictions outside of the context of summary proceedings has already been considered in one reported decision. In Jacob Cram Coop., Inc. v Ziolkowski, (2021 NY Misc. LEXIS 246, 2021 NY Slip Op 30174(U) [Sup Ct, NY Co] [Debra A. James, JSC]), the court considered the application of the CEEFPA in the context of an ejectment action pursuant to RPAPL Art. 6 pending in Supreme Court. The Court concluded that an action for ejectment pending in Supreme Court is subject to and governed by CEEFPA. The Court reasoned:

"Plaintiff argues that the Act does not apply here because throughout the relevant sections of the Act only `proceedings' are referenced, not actions, and plaintiff therefore argues that the clear legislative intent was only to apply to evictions related to summary proceedings governed by Article 7 of the RPAPL, and to exclude plenary actions for ejectment. Plaintiff further asserts that the CPLR makes clear delineations between actions and proceedings and the procedures applicable to one are not applicable to the other. Defendant, now currently represented at the time of the hardship filing, argues that the plain meaning of the statute applies to this case.

"The court agrees with defendant that in spite of the failure of the Legislature to specifically use the term "action" as applied to landlord-tenant disputes, the term "eviction proceeding" as defined therein includes New York's current hybrid common law/statutory (RPAPL Art. 6) actions for ejectment as applied to residential tenancies. Plaintiff's interpretation limiting the applicability of the statute is contrary to the Act's definition of "eviction proceeding" as including "any other judicial or administrative proceeding to recover possession of real property relating to a residential dwelling unit." Other than a plenary action for ejectment, the court is unable to discern any other "proceeding" that the legislature could have intended

"Finally, if the Legislature intended the Act to apply to summary proceedings only, it would have stated that clearly without the need to create and define a new and broadened term of `eviction proceedings.'" (Jacob Cram Coop., Inc. v Ziolkowski, supra, 2021 NY Misc. LEXIS 246, *2-4.)

This Court agrees with the foregoing. The statement of legislative intent shows that the applicability of CEEFPA is to be broadly construed. The Legislature has stated that:

"COVID-19 presents a historic threat to public health. Hundreds of thousands of residents are facing eviction or foreclosure due to necessary disease control measures that closed businesses and schools, and triggered mass-unemployment across the state: The pandemic has further interrupted court operations, the availability of counsel, the ability for parties to pay for counsel, and the ability to safely commute and enter a courtroom, settlement conference and the like.

"Stabilizing the housing situation for tenants, landlords, and homeowners is to the mutual benefit of all New Yorkers and will help the state address the pandemic, protect public health, and set the stage for recovery. It is, therefore, the intent of this legislation to avoid as many evictions and foreclosures as possible for people experiencing a financial hardship during the COVID-19 pandemic or who cannot move due to an increased risk of severe illness or death from COVID-19." (L. 2020, Ch. 381, Sec. 3).

The Court in Jacob Cram Coop., Inc. noted that CEEFPA contains a broad definition of eviction, ranging beyond summary proceedings under the RPAPL. This Court would add that the definition of "landlord" under the CEEFPA is similarly broad, and "includes a landlord, owner of a residential property and any other person with a legal right to pursue eviction, possessory action or a money judgment for rent, including arrears, owed or that becomes due during the COVID-19 covered period..." (CEEFPA, Part A, § 1(2).) This definition clearly encompasses a purchaser at a tax lien foreclosure sale as an "owner [or] person with a legal right to pursue [a] possessory action."

Because the defendant tenant has alleged both financial hardship, as well as significant health risk, the action is stayed at least until May 1, 2021.^[2] Other courts have noted that an allegation of significant health risk cannot be contested.

The defendants dispute whether the premises are subject to rent stabilization, and further, there are contested issues as to the condition of the premises and the existence of rent-impairing violations. Under these circumstances, use and occupancy pendente lite cannot be awarded without conducting a hearing. (See, e.g., Trump CPS LLP v Meyer, 249 AD2d 22, 670 NYS2d 854 [1st Dept. 1998] [ordering a hearing to determine reasonable value of use and occupancy where the parties disputed the appropriate amount]; Mushlam, Inc. v Nazor, 80 AD3d 471, 473, 916 N.Y.S.2d 25, 27-28 [1st Dept. 2020].) Because the action is stayed, no hearing can be conducted and no final determination can be made as to entitlement or amount of use and occupancy, if any.

Despite the foregoing, because the parties arguments concerned primarily the application of the CEEFPA, and no other issues relating to the statute, the foregoing is without prejudice to any appropriate application, by motion or otherwise, under CEEFPA."

DOG LAW

“Happiness is a warm puppy.” – Charles M. Schulz

Shallo v. Zarrour, NYLJ March 02, 2021, Date filed: 2021-02-25, Court: Supreme Court, Queens,  Judge: Justice Robert Caloras, Case Number: 712985/20:

"Plaintiff Madison Shalloo commenced this action for the replevin of a dog on August 14, 2020. In her complaint, Plaintiff alleges: she was in a relationship with defendant and that they shared an apartment in Long Island City, New York from November 30, 2017 to January 10, 2020; that in April 2018, she and the defendant agreed to purchase a dog together; that she located a breeder and was the contact person with the breeder; that on July 2, 2018, they purchased a Welsh Terrier puppy named Gryffin Shalloo; and that she reimbursed defendant for one-half of the cost of Gryffin. She had provided not less than 90 percent of Gryffin’s physical care, including feeding, walking, and grooming; that she has been solely responsible for the monetary cost of Gryffin’s food, treats, clothing and toys; that she has been solely responsible for any and all veterinary insurance and veterinary care for Gryffin, including requisite vaccinations, well care and sick care; and that since Gryffin was a puppy, he routinely visited with her parents at their home.

Plaintiff also alleges she ended her relationship with the defendant on January 12, 2020 and moved out of the parties’ apartment, leaving Gryffin with the defendant. Defendant had insisted on keeping the dog, but agreed to share the dog with her; that on January 28, 2020, defendant agreed to exchange the dog each week; that on January 30, 2020 the parties met with a therapist, in part to discuss their arrangement for sharing the dog, and it was agreed to exchange the dog every Sunday. Thereafter, on February 1, 9, 16, and 23, 2020, and on March 1, 2020, defendant released the dog into the care of her father either in the lobby of the defendant’s apartment building or at her parents’ home in Middletown, New Jersey. However, on March 8, 2020, defendant sent a text to her father advising him that he would no longer be exchanging Gryffin with the plaintiff, as it was his dog and he was keeping him.
Plaintiff also alleges: she is entitled to immediate possession of Gryffin; that a demand was made on her behalf by her counsel in letter dated June 3, 2020; that defendant’s counsel responded on June 16, 2020; that counsel for the parties exchanged emails between June 22, 2020 to June 27, 2020, and that defendant did not respond to the June 27, 2020 settlement offer.

Defendant in this pre-answer motion seeks to dismiss the complaint on the grounds of documentary evidence and failure to state a cause of action. Defendant argues that plaintiff Madison Shalloo is not the rightful owner of Gryffin, nor is she legally entitled to possess Gryffin; that indisputable documentary evidence clearly shows that Mr. Zarrour is the rightful owner of Gryffin; and the complaint fails to sufficiently plead a cause of action for replevin. It is further asserted that defendant Zarrour is the rightful and legal owner of Gryffin; that Zarrour “sourced” the breeder from whom Gryffin was purchased, coordinated the transport of Gryffin from the breeder to his apartment, and paid the breeder the full purchase and transportation price for Gryffin; and that when the parties ended their romantic relationship plaintiff moved out of defendant’s apartment and left Gryffin with him.
Plaintiff’s counsel, in opposition, asserts that defendant’s motion must be denied as a matter of law, as it does not meet the legal standards for summary judgment; that the documentary evidence submitted by defendant is insufficient to warrant dismissal of the action; that the complaint sufficiently states a cause of action for replevin; and that the best interests of Gryffin, or at least the best interests of all concerned, must be adjudicated.

Initially, as issue has not been joined, plaintiff’s counsel’s reference to the standards for summary judgment is clearly misplaced and shall be disregarded. “On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff’s allegations are accepted as true and accorded the benefit of every possible favorable inference” (S & J Serv. Ctr., Inc. v. Commerce Commercial Group, Inc., 178 AD3d 977, 977-78 [2d Dept 2019], quoting Gran Condominium III Assn. v. Palomino, 78 AD3d 996 [2d Dept 2010]; see Leon v. Martinez, 84 NY2d 83, 87 [1994]). “‘To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law’ ” (Burgos v. New York Presbyt. Hosp., 155 AD3d 598, 599 [2d Dept 2017], quoting Gould v. Decolator, 121 AD3d 845, 847 [2d Dept 2014]). “To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable” (JPMorgan Chase Bank, N.A. v. Klein, 178 AD3d 788, 790 [2d Dept 2019][internal quotations marks omitted]). ” ‘[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case’” (id. at 790, quoting Eisner v. Cusumano Constr., Inc., 132 AD.3d 940, 941 [2d Dept 2015]). Letters, emails, and affidavits are not documentary evidence (see McDonald v. O’Connor, 189 AD3d 1208 [2d Dept 2020]; Shah v. Mitra, 171 AD3d 971, 973 [2d Dept 2019]).

In considering a motion to dismiss a complaint for failure to state a cause of action, “the court must afford the pleading a liberal construction, accept as true all facts as alleged in the pleading, accord the pleader the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (LG Funding, LLC v. United Senior Properties of Olathe, LLC, 181 AD3d 664 [2d Dept 2020], quoting V. Groppa Pools, Inc. v. Massello, 106 AD3d 722, 722 [2d Dept 2013]; see CPLR 3211[a][7]; Monaghan v. R.C. Diocese of Rockville Ctr., 165 AD3d 650, 652 [2d Dept 2018]; Dorce v. Gluck, 140 A.D.3d 1111, 1112[2d Dept 2016]). If the court considers evidentiary material, a motion to dismiss pursuant to CPLR 3211(a)(7) must be denied “‘unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it’” (Sokol v. Leader, 74 AD3d 1180, 1182 [2d Dept 2010], quoting Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]; see also Ferrera v. City of New York, 164 AD3d 754, 755 [2d Dept 2018]).

The documentary evidence submitted herein in support of defendant’s motion is insufficient to establish that plaintiff is not the owner of the dog Gryffnn, or that she does not have a superior right of possession. Contrary to defendant’s counsel’s assertions the copy of a Certificate of Registry with United All Breed Registry and Pedigree Service — Blue Ribbon Division does not on its face establish that ownership of Gryffin was transferred by the breeder to Mr. Zarrour. In fact, this Certificate does not identify a breeder or prior owner of the dog. Furthermore, the subject Certificate naming Beleal Zarrour as the owner of Gryffin was issued on January 29, 2020, well after the dog was purchased in July 2018, and 13 days after the parties ended their relationship.

Defendant also submits a document containing information pertaining to Paypal credit payments made to Rachelle Tindle on June 10, 2018 in the sum of $200, on July 2, 2018 in the sum of $287, and on July 16, 2018 in the sum of $600, with a “ship to address” bearing defendant’s name and address. Said document does not identify Ms. Tindle as a dog breeder or as a prior owner of Gryffin, does not identify the purposes for which these payments were made, and does not identify what was being “shipped to” Zarrour. As such, this document is insufficient to establish that defendant Zarrour purchased Gryffin from Ms. Tindle.

Finally, defendant submits a copy a dog license issued by “NYC Health” to Beleal Zarrour for Gryffin that expired on January 29, 2021. Contrary to defendant’s counsel’s assertion, this document is not evidence of a dog license issued by the New York State Bureau of Veterinary and Pest Control Services. In New York City dog licenses are issued by the New York City Department of Health pursuant to section 161.04 of the New York City Health Code, upon application and payment of the required fee. At the most, the dog license submitted herein establishes that defendant Zarrour was issued a dog license for Gryffin by the City of New York Department of Health. However, as dog licenses are issued for periods of 1 to 5 years, said document on its face does not establish when the subject dog license was issued or that a dog license was issued to Zarrour at all times since Gryffin was first purchased in 2018.
The standard for recovery in a replevin action is a “superior possessory right in the chattel” (Pivar v. Graduate School of Figurative Art of N.Y. Academy of Art, 290 AD 2d 212, 213 [1st Dept 2002]). Although the complaint does not specifically recite the words “a superior right to possession” plaintiff’s allegations taken in their entirety assert such a claim. This Court therefore finds that the complaint states a cognizable claim for the repelvin of the dog named Gryffin (see generally, Raymond v. Lachmann, 264 AD2d 340 [1st Dept 1999]; Travis v. Murray, 42 Misc 3d 447 [Sup Ct, New York County 2013]; Finn v. Anderson, 64 Misc 3d 273, 275-77 [City Ct, Chautauqua County 2019]; Le Conte v. Lee, 35 Misc 3d 286 [Civ Ct, New York County 2011]; Webb v. Saunders v. Reeger, 50 Misc 2d 850 [Dist. Ct. Suffolk Co, 1966]; Papaspiridakos, 23 Misc 3d 1136 [A] [Sup Ct., Queens County 2009]).

In view of the foregoing, defendant’s motion to dismiss the complaint is denied. Defendant is directed to serve an answer within 20 days after the service of a copy of this order, together with notice of entry."

ALTERNATIVE DISPUTE RESOLUTION SERVICES AVAILABLE

 

ON AVVO

 

WRONGFUL PROLONGATION OF LIFE?

Wrongful death is recognized as a cause of action in New York. But what if a decedent's wishes as to cessation of health care is not followed. 

Lanzetta v. Montefiore Med. Ctr., 2021 NY Slip Op 21026 - NY: Supreme Court February 16, 2021:

".....

A "wrongful life" claim typically refers to a medical malpractice or negligence claim by a parent (or other guardian) on behalf of an impaired child based on the theory that the child would have been better  off had he or she never come into being (see B.F. v Reproductive Medicine Assocs. of New York, LLP, 136 AD3d 73, 76 [1st Dept 2015], affd 30 NY3d 608 [2017]). A "wrongful life" claim is not cognizable in New York "because, as a matter of public policy, an infant born in an impaired state suffers no legally cognizable injury in being born compared to not having been born at all" (30 NY3d at 614). As the Court of Appeals stated in its seminal "wrongful life" decision, Becker v Schwartz (46 NY2d 401, 412 [1978]), "a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson's choice of life in an impaired state and nonexistence. This comparison the law is not equipped to make."^[3]

In Cronin v Jamaica Hosp. Med. Ctr. (60 AD3d 803 [2009]), the Second Department concluded that a plaintiff's action for medical malpractice and negligence premised on the theory that the medical personnel of the defendant hospital wrongfully prolonged the plaintiff's decedent's life by resuscitating him twice in violation of do-not-resuscitate orders essentially sounded in "wrongful life." The CroninCourt stated that the defendant, which had moved for summary judgment dismissing the complaint, made a prima facie showing of entitlement to judgment as a matter of law on the ground that the plaintiff's decedent had not sustained any legally cognizable injury as a result of the defendant's conduct, and that the plaintiff had failed to raise a triable issue of fact (id. at 804). Notably, the Cronin Court held that "the status of being alive does not constitute an injury in New York" (id., citing Alquijay v St. Luke's-Roosevelt Hosp. Ctr., 63 NY2d 978, 979 [1984]; Becker v Schwartz, 46 NY2d at 412). The claim pursued by the plaintiff in Cronin has been characterized as one for wrongful prolongation of life (see Hodge, Wrongful Prolongation of Life — A Cause of Action That May Have Finally Moved Into the Mainstream, 37 Quinnipiac L. Rev. 167, 183-191 [2019]; Saitta & Hodge, Wrongful Prolongation of Life — A Cause of Action That Has Not Gained Traction Even Though a Physician Has Disregarded a "Do Not Resuscitate" Order, 30 Temp. J. Sci. Tech & Envtl. L. 221, 235 [Winter 2011]; 77 CJS Right to Die § 39).

Cronin, which is binding on this court (see People v Turner, 5 NY3d 476, 482 [2005]; Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663, 664-666 [2d Dept 1984]), compels the conclusion that plaintiff's decedent did not sustain a legally cognizable injury as a result of defendant Hochster's alleged failure to provide treatment in conformity with the directives in the 1993 living will and the directions of decedent's health care agent.

Plaintiff does not address Cronin; rather, plaintiff contends that defendant Hochster may be liable in tort under two statutes: Public Health Law §§ 2982 and 2994-f.

Public Health Law § 2982 is part of article 29-C of the Public Health Law ("the health care agents and proxies act"), which governs health care agents and proxies (see Public Health Law §§ 2980-2994). Under the health care agents and proxies act, an adult (i.e., the principal) may execute a health care proxy designating an agent to make health care decisions for the principal should he or she lose the capacity to make those decisions him- or herself (see Public Health Law §§ 2981-2983). A health care provider who is provided with a health care proxy relating to a patient must place the proxy in the patient's medical record, and, subject to certain exceptions, comply in good faith with the health care decisions of the health care agent (see Public Health Law § 2984[1], [2], [3], [4], [5]).

The health care agents and proxies act does not expressly create a private right of action in favor of a principal (or his or her estate) against a health care provider for violating the statutory duty to comply in good faith with the health care decisions of the principal's health care agent. Therefore, plaintiff can seek damages based on a violation of the health care agents and proxies act only if a private right of action is fairly implied in the act or its legislative history (see Cruz v TD Bank, N.A., 22 NY3d 61, 70 [2013]). The following three factors must be evaluated in gauging whether a private right of action is fairly implied from a statutory scheme: "(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme" (id., quoting Sheehy v Big Flats Community Day, 73 NY2d 629, 633 [1989]).

Plaintiff satisfies the first two factors relevant in determining whether a private right of action is fairly implied in the health care agents and proxies act because plaintiff's decedent was one of the class for whose particular benefit the act was enacted — adults who wish to appoint health care agents to make health care decisions for those adults should they lose the capacity to make health care decisions (seeGovernor's approval mem., 1990 New York State Legislative Annual, at 364; mem. in support of Sen. Michael J. Tully, Jr., 1990 New York State Legislative Annual, at 361-363) — and recognition of a private right of action would arguably promote a legislative purpose of the act — ensuring that an adult's medical treatment wishes will be honored if he or she loses the capacity to make medical treatment decisions (see Governor's approval mem., 1990 New York State Legislative Annual, at 364; mem. in support of Sen. Michael J. Tully, Jr., 1990 New York State Legislative Annual, at 361-363). However, plaintiff does not satisfy the third factor, which is the most important in determining whether an implied right of action exists: whether creation of such a right would be consistent with the legislative scheme (Cruz v TD Bank, N.A., 22 NY3d at 70).

The health care agents and proxies act was rooted in research by and discussions of a task force that had been convened by then-Governor Mario M. Cuomo to study "the ethical and legal issues raised by the process by which medical care decisions are made in cases involving persons without decision-making capacity" (mem. in support of Sen. Michael J. Tully, Jr., 1990 New York State Legislative Annual, at 362). The health care agents and proxies act, which was "based on th[e] [task force's] effort," was designed to accomplish the following goals: (1) protect and enhance the ability of competent adults to have their medical treatment wishes honored in the event that they lost their capacity to make medical treatment decisions; (2) provide guidance to patients, their families, and health care providers regarding health care proxies and their enforceability; and (3) establish important safeguards concerning the appointment of health care agents and the exercise of authority by them (id.; see Governor's approval mem., 1990 New York State Legislative Annual, at 364). Ultimately, the health care agents and proxies act "establish[ed] a process for the appointment of an agent, se[t] out the parameters of the agent's authority, and provide[d] standards for the exercise of that power" (mem. in support of Sen. Michael J. Tully, Jr., 1990 New York State Legislative Annual, at 363).

While the health care agents and proxies act "provides a whole range of procedural safeguards to ensure that the patient's rights and best interests are protected" (id.),^[4] neither Senator Tully, who sponsored the act, nor the Governor suggested in their respective legislative memoranda that a damages action was an appropriate remedy for a health care provider's failure to honor a health care agent's directives, which failure prolonged a patient's life. Moreover, at the time the Legislature passed the act, the common law in New York provided that the status of being alive did not constitute an injury (see Alquijay v St. Luke's-Roosevelt Hosp. Ctr., 63 NY2d at 979; Becker v Schwartz, 46 NY2d at 412), and the Court of Appeals has cautioned against inferring a significant alteration to existing law from legislative silence (Cruz v TD Bank, N.A., 22 NY3d at 72). If the Legislature had intended to impose new liability on health care providers for failing to comply with the directives of health care agents, it would have provided so in the health care agents and proxies act (see generally id.).

Plaintiff's reliance on Public Health Law § 2994-f, which is part of the Family Health Care Decisions Act ("FHCDA") in article 29-CC of the Public Health Law, is misplaced. The FHCDA, which provides a procedure for the selection of a surrogate health care decisionmaker for a hospitalized individual who lacks the capacity to make his or her own treatment decisions, is inapplicable when, as here, the hospitalized individual has, by way of a duly-executed health care proxy, designated a health care agent (see Public Health Law § 2994-b[2] ["Prior to seeking or relying upon a health care decision by a surrogate for a patient under this article [i.e., 29-CC], the attending practitioner shall make reasonable efforts to determine whether the patient has a health care agent appointed pursuant to article [29-C]. If so, health care decisions for the patient shall be governed by such article, and shall have priority over decisions by any other person except the patient or as otherwise provided in the health care proxy."] [emphasis added]).^[5]

Ultimately, the right of a competent adult to have his or her medical treatment wishes honored in the event that he or she loses the capacity to make medical treatment decisions is important, and the law recognizes that right and provides substantial processes that allow a competent adult to exercise that right. New York law does not, however, recognize a cause of action seeking damages for wrongful prolongation of life. Whether the law ought to do so under our common law is a matter for the appellate courts; whether it ought to do so by statute is a matter for the Legislature."

SUPREME COURT OPEN TO COMMERCIAL LANDLORDS?

Rather than pursue a non-payment in housing court, this commercial landlord, due to Covid restrictions and considerations, commenced an action for money damages only in Supreme Court, NY County on August 4, 2020 seeking rent due since March 2020. An Answer was filed in October 2020 and landlord moved for summary judgment on December 10, 2020. Here is the decision.

111 FULTON ST. INVS., LLC v. FULTON QUALITY FOODS LLC, 2021 NY Slip Op 30348 - NY: Supreme Court February 5, 2021:

"The motion by plaintiff for summary judgment against defendant Fulton Quality Foods LLC ("Fulton Quality") and dismissing this defendant's counterclaims is granted.

Background

Plaintiff is the landlord for a commercial space located on the ground floor in a building in Manhattan. Fulton Quality entered into a lease for the premises in 2011 for a twelve-year term. Fulton Quality runs a restaurant at the site. Plaintiff insists that Fulton Quality is in default of the lease and points to an October 30, 2019 letter allegedly sent to Fulton Quality that sets forth the basis of the default. Fulton Quality later cured its defaults but stopped making payments in March 2020. Another default letter was sent in June 2020. Plaintiff moves for summary judgment seeking the amount it claims is due.

In opposition, Fulton Quality raises numerous reasons why the motion should be denied. Fulton Quality argues that plaintiff failed to attach the pleadings to the motion, that there is no affidavit of merit and that plaintiff did not send bills and notices to both the tenant and its attorney in accordance with the lease.

Fulton Quality also claims that it has meritorious defenses that should compel the Court to deny the instant motion. It claims that the ongoing pandemic forced it to shut down its restaurant and, therefore, the purpose of the lease was frustrated. Fulton Quality also points to a "casualty clause" and the "eminent domain clause" of the lease as reasons to deny the instant motion.

In reply, plaintiff claims that the frustration of purpose defense fails as a matter of law, that Covid-19 was not a "casualty" and it was not a "taking" under the eminent domain provision of the lease.

Discussion

To be entitled to the remedy of summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). The failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers (id.). When deciding a summary judgment motion, the court views the alleged facts in the light most favorable to the non-moving party (Sosa v 46th St. Dev. LLC, 101 AD3d 490, 492, 955 NYS2d 589 [1st Dept 2012]).

Once a movant meets its initial burden, the burden shifts to the opponent, who must then produce sufficient evidence to establish the existence of a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557, 560, 427 NYS2d 595 [1980]). The court's task in deciding a summary judgment motion is to determine whether there are bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v Restani Constr. Corp., 18 NY3d 499, 505, 942 NYS2d 13 [2012]). If the court is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied (Tronlone v Lac d'Amiante Du Quebec, Ltee, 297 AD2d 528, 528-29, 747 NYS2d 79 [1st Dept 2002], affd 99 NY2d 647, 760 NYS2d 96 [2003]).

Procedural Issues

As an initial matter, the Court finds that plaintiff has met its prima facie burden. The fact that plaintiff did not attach a copy of the pleadings to the motion is of no moment because this an e-filed case and the docket is readily accessible. The Court also finds that the "certification" of Mr. Rosenberg, officer for plaintiff, satisfies the requirement that plaintiff file an affidavit of merit in support of its motion. Moreover, plaintiff established that it sent the proper notices concerning a default pursuant to the lease and that it has standing to bring this case.

Frustration of Purpose

The doctrine of frustration of purpose requires that "the frustrated purpose must be so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense"(Crown IT Services, Inc. v Koval-Olsen, 11 AD3d 263, 265, 782 NYS2d 708 [1st Dept 2004]). "[T]his doctrine is a narrow one which does not apply unless the frustration is substantial"(id.).

The Court finds that this doctrine is inapplicable. The record on this motion shows that Fulton Quality only made a partial payment of rent on March 1, 2020. Restaurants were not shuttered for indoor dining until March 20, 2020. Even if the Court were to entertain the notion that frustration of purpose could help a tenant avoid paying any rent while still operating a takeout business, it appears that Fulton Quality had financial issues before the pandemic devasted the restaurant industry. On March 1, 2020, the pandemic did not prevent Fulton Quality from paying its rent and it only paid $10,000 of the $34,097.23 due. While the pandemic certainly reduced Fulton Quality's ability to improve its business, it was not the cause of the initial failure to pay the full amount due. Therefore, this common law defense does not raise an issue of fact.

Casualty and Eminent Domain Clauses of the Lease

Fulton Quality insists that Section 10.1 of the lease (the casualty clause) renders its performance under the lease as impossible. The Court disagrees. That provision references damage to the building (such as a fire) that renders the commercial space unusable. A deadly infectious disease is not a "casualty." Throughout 2020, Fulton Quality was able to operate by doing takeout and delivery, outdoor dining if it acquired the proper permits and limited indoor dining during certain months. The physical space (and kitchen) was available to this defendant. That customers decided not to place as many orders does not lead to a conclusion that the pandemic qualifies as a casualty under the terms of the lease.

The Court also declines to find that pandemic-related restrictions qualifies as a taking sufficient to invoke Section 11.1 of the lease concerning Eminent Domain. No physical portion of the restaurant was taken for public or quasi-public use. Rather, governmental restrictions designed to save lives limited the operations of Fulton Quality. Under Fulton Quality's view, any regulation that limits the operation of a business would constitute a taking. The Court declines to endorse such a broad and expansive view of the definition of a taking.

Because Fulton Quality does not dispute the amount sought by plaintiff, the Court awards plaintiff the amount sought in its motion. The Court also dismisses the case against defendant Nikas as this Court has already found that plaintiff failed to properly serve this defendant (NYSCEF Doc. No. 26).

Accordingly, it is hereby

ORDERED that the motion by plaintiff for summary judgment, to strike the answer and counterclaims of defendant Fulton Quality Foods LLC is granted and the Clerk is directed to enter judgment in favor of plaintiff against this defendant in the amount of $410,864.71 plus interest from June 26, 2020 along with costs and disbursement upon presentation of proper papers therefor; and it is further

ORDERED that the issue of reasonable legal fees is severed and a hearing will be held by the court to determine the amount due to be scheduled by the clerk of this part; and it is further

ORDERED that the case is dismissed as against defendant Nikas for failure to timely serve this defendant."

EXPIRING MECHANIC'S LIEN

EMERALD SERVS. CORP. v. EMPIRE CORE GROUP LLC, 2021 NY Slip Op 30394 - NY: Supreme Court February 9, 2021:

"As discussed in Aztec Window & Door Mfg., Inc. v. 71 Vill. Rd., LLC, 60 A.D.3d 795, 796 (2d. Dept 2009) "Pursuant to Lien Law § 17, a mechanic's lien expires one year after filing unless an extension is filed with the County Clerk or an action is commenced to foreclose the lien within that time and a notice of pendency is filed in connection therewith (see MCK Bldg. Assoc. v. St. Lawrence Univ., 5 A.D.3d 911, 912). In the event neither of these conditions is accomplished within the statutory period, nor is a further extension of the lien obtained by order of the court, the lien automatically expires by operation of law, becoming a nullity and requiring its discharge (see Matter of Cook v. Carmen S. Pariso, Inc., 287 A.D.2d 208, 211)." As plaintiff did not complete either of said requirements during the statutory period, the statutory period, the Liens have expired by operation of law.

Plaintiff cross-moves seeking an Order allowing plaintiff to file extensions of said mechanic's liens, nunc pro tune. As discussed in Aztec, as plaintiff did not apply for extensions of the Liens within the statutory period, the expiration of same is automatic and this Court lacks the power, in its discretion, to grant plaintiff's motion. Plaintiff further argues that they are entitled to a toll of the relevant statutory timeframes pursuant to Executive Order 202.8, which provides, "In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020." The Court notes that said Executive Order has been superseded by Executive Order 202.67, which provides "The suspension in Executive Order 202.8, as modified and extended in subsequent Executive Orders, that tolled any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby continued, as modified by prior executive orders, provided however, for any civil case, such suspension is only effective until November 3, 2020, and after such date any such time limit will no longer be tolled."

As plaintiff filed the instant motion after November 3, 2020, its motion cannot be granted upon said grounds. The Court further notes that plaintiff filed the instant action on June 25, 2020 and failed to file a Notice of Pendency at that time. As such, plaintiff's arguments are without merit."

ALTERNATIVE DISPUTE RESOLUTION SERVICES AVAILABLE

 

PRO BONO

 

DIVORCE - THE IMPORTANT PENDENTE LITE ORDER

Important because it sets the tone of the litigation to push the parties into a quick settlement or trial mode and because the "aggrieved party" who seeks to appeal the order has many obstacles as noted in this recent case.

Barra v Barra, 2021 NY Slip Op 01022, Decided on February 17, 2021, Appellate Division, Second Department:

"The parties were married in 2006 and have one child together. In 2019, the plaintiff commenced this action for a divorce and ancillary relief and moved for pendente lite relief. The Supreme Court awarded the plaintiff the sum of $2,031.19 per month for pendente lite child support and directed the defendant to pay 50% of the mortgage, real estate taxes, and homeowner's insurance on the marital residence, where the plaintiff and the child reside.

The defendant contends that the Supreme Court erred in calculating his pendente lite child support obligation by considering the parties' combined income above the then-statutory cap of $148,000. "Modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances" (Otto v Otto, 13 AD3d 503, 503; Albanese v Albanese, 234 AD2d 489, 490). The defendant has failed to establish exigent circumstances so as to justify a downward modification of the pendente lite award of child support.

In any event, the Supreme Court was not required to calculate the defendant's child support obligation pursuant to the Child Support Standards Act (hereinafter CSSA) (see George v George, 192 AD2d 693; see also Domestic Relations Law § 236[B][7]). The CSSA "provides the formulas to be applied to the parties' income and the factors to be considered in determining a final award of child support. Courts considering applications for pendente lite child support may, in their discretion, apply the CSSA standards and guidelines, but they are not required to do so" (Davydova v Sasonov, 109 AD3d 955, 957 [emphasis, citation, and internal quotation marks omitted]). Any perceived inequity in the award of pendente lite child support can best be remedied by a speedy trial, at which the parties' financial circumstances can be fully explored (see Swickle v Swickle, 47 AD3d [*2]704).

The defendant also contends that the Supreme Court erred in directing him to pay the sum of $1,575.83 per month, representing his 50% responsibility for the mortgage, real estate taxes, and insurance on the marital residence, contending that such payment should have been reduced by the sum the court directed him to pay for pendente lite child support. The burden of repaying marital debt should be equally shared by the parties, in the absence of countervailing factors, and any such liability should be distributed in accordance with general equitable distribution principles and factors (see Westreich v Westreich, 169 AD3d 972; Minervini v Minervini, 152 AD3d 666; Gillman v Gillman, 139 AD3d 667). It is generally the responsibility of both parties to maintain the marital property and keep it in good repair during the pendency of a matrimonial action (see Brinkmann v Brinkmann, 152 AD3d 637; Goldman v Goldman, 131 AD3d 1107; Hymowitz v Hymowitz, 119 AD3d 736). Insofar as the court specifically indicated that it sought to preserve the marital asset in directing the defendant to pay his 50% share of the mortgage, real estate taxes, and homeowner's insurance, we perceive no improvident exercise of its discretion.

The defendant further contends that the Supreme Court erred in directing him to make the pendente lite child support payment to the Child Support Collection Unit, while making the payment of his 50% share of the mortgage, real estate taxes, and homeowner's insurance on the marital home to the plaintiff. The plaintiff had requested that the defendant's 50% share of the mortgage, real estate taxes, and homeowner's insurance be made directly to her. Thus, the court did not improvidently exercise its discretion in granting that application (see Caro v Marsh USA, Inc., 101 AD3d 1068; Nehmadi v Davis, 95 AD3d 1181; Clair v Fitzgerald, 63 AD3d 979; Frankel v Stavsky, 40 AD3d 918). Furthermore, the court did not improvidently exercise its discretion in directing the defendant to make the pendente lite child support payment to the Child Support Collection Unit insofar as this method was "'not too dramatically unlike the relief sought'" (Clair v Fitzgerald, 63 AD3d at 980, quoting Frankel v Stavsky, 40 AD3d at 919)."

NEW RULES RE: FAMILY EVICTIONS?

ALONI v. Oliver, 2021 NY Slip Op 50069 - NY: Appellate Term, 1st Dept. January 29, 2021:

"Petitioner's motion for summary judgment of possession should have been granted. The summary judgment record conclusively establishes that respondent was a licensee whose license to occupy the cooperative apartment he shared with petitioner, the sole proprietary lessee, was revoked by petitioner (see RPAPL 713[7]). No issue of fact was raised by respondent as to whether he had any possessory interest in the premises or any right to continued occupancy.

Contrary to the conclusion below, no issue of fact was raised as to respondent's purported "status as a family member or. . . licensee." Even accepting respondent's contention that he and petitioner resided together in the apartment in a family-like "romantic relationship," a licensee proceeding pursuant to RPAPL 713(7) is properly maintainable against respondent. The RPAPL contains no language exempting individuals with some familial relationship to a petitioner from eviction as licensees (see Heckman v Heckman, 55 Misc 3d 86 [App Term, 2nd Dept, 9th & 10th Jud Dists 2017]; see also Tausik v Tausik, 11 AD2d 144 [1960], affd 9 NY2d 664 [1961] [interpreting Civil Practice Act § 1411(8)]), and courts should not engraft such an exception into the statute "where none exists" (McKinney's Cons Laws of NY, Book 1, Statutes, § 76, Comment at 168 [1971 ed]).

Rosenstiel v Rosenstiel (20 AD2d 71 [1963]), which involved a summary licensee proceeding by a husband to remove his wife from the marital home, does not warrant a contrary result. In that case, the court held that the wife was not a licensee, i.e. one whose rights exist "by virtue of the `permission' of her husband or under a `personal' and `revocable privilege' extended by him" (20 AD2d at 76). Rather, the wife's rights "exist[] because of special rights incidental to the marriage contract and relationship" pursuant to which the husband has the obligation to maintain "a home or housing for the wife" (id at 77).

In the present case, however, although respondent initially claimed that he was the spouse of petitioner, an order rendered in a related action between the parties held that there was no legal marriage between petitioner and respondent, and that respondent has no right to support, maintenance, equitable distribution or exclusive use of the subject apartment (see Oliver v Aloni, Sup Ct, NY County, January 24, 2020, Sattler, J., index No. 350001/19). Thus, Rosenstiel is distinguishable. Moreover, Rosenstiel does not otherwise compel or suggest that a licensee proceeding cannot be maintained against a family member other than a spouse "whose rights as such have not been annulled or modified by any court decree or special agreement" (Rosenstiel at 73; see Young v Carruth, 89 AD2d 466 [1982]; Halaby v Halaby, 44 AD2d 495 [1974]; Tausik v Tausik, 11 AD2d 144 [1960]; Heckman v Heckman, 55 Misc 3d 86).

Braschi v Stahl Assoc. Co. (74 NY2d 201 [1989]) is inapplicable to the particular facts of this case. Braschi extended statutory rights to succeed to rent regulated apartments, which were held by family members, to nontraditional family members (see East 10th St. Assoc. v Estate of Goldstein, 154 AD2d 142, 145 [1990]). Manifestly, Braschi applies to cases commenced by a landlord against a remaining family member of a rent regulated apartment who seeks succession rights, and not to cases between a lessee and another occupant of the apartment (see Heckman v Heckman, 55 Misc 3d 86). "The expansive definition of family set forth in Braschi . . . has no bearing on interpreting different statutes with different statutory purposes" (Preferred Mut. Ins. Co. v Pine, 44 AD3d 636, 640 [2007]; see Raum v Restaurant Assoc., 252 AD2d 369, 370 [1998]), such as RPAPL 713(7).

Nor do we perceive any policy reason to deprive petitioner of the right to commence a statutory summary proceeding. The remedy provided by article 7 of the Real Property Actions and Proceedings Law was designed to be a "simple, expeditious and inexpensive means of regaining possession of his premises" (Metropolitan Life Ins. Co. v Carroll, 43 Misc 2d 639, 640 [App Term, 1st Dept 1964], quoting Reich v Cochran, 201 NY 450, 454 [1911]), with Civil Court as the preferred forum for resolution of such disputes (see Waterside Plaza v Yasinskaya, 306 AD2d 138 [2003]). These objectives are served by permitting petitioner to maintain "the modern and generally more satisfactory summary proceeding" (Young v Carruth, 89 AD2d at 469) to remove respondent from the premises, rather than relegating petitioner to the more cumbersome Supreme Court ejectment action. Summary proceedings "should not be so hypercritically restricted as to destroy the very remedy which they are designed to afford" (Reich, 201 NY 455)."

ARBITRATION OF DISCRIMINATION CLAIMS

Wilson v. PBM, LLC, 2021 NY Slip Op 593 - NY: Appellate Div., 2nd Dept. February 3, 2021:

"The plaintiff is an African-American male who was employed by the defendant PBM, LLC, doing business as Perfect Building Maintenance Corp. (hereinafter PBM), as a porter and freight elevator operator from 2002 until termination of his employment in August 2014. PBM is a privately held company that provides janitorial and related services to single- and multi-tenant properties in the northeast area. It is a member of the RAB, a multi-employer bargaining association. While at PBM, the plaintiff was a member of the Union. The terms and conditions of the plaintiff's employment during the relevant time period were governed by the CBA, which was effective January 1, 2012, to December 31, 2015. Section 30(A) of Article XVI of the CBA, which addresses arbitration, provides that discrimination claims "shall be subject to the grievance and arbitration procedure (Article V and VI) as the sole and exclusive remedy for violations." Section 30(B), the No-Discrimination Protocol, provides, inter alia, for arbitration procedures when the Union has declined to take an individual employee's employment discrimination claims set forth in section 30(A) to arbitration.

The plaintiff alleges that, at his workplace, he routinely experienced discrimination, was subjected to a hostile work environment, and was discharged from his employment due to his race. He asserts that beginning in or around December 2012, his direct supervisor began to routinely refer to him as "boy," and from July 2013 until February 2014, he observed "several nooses" hanging in the workplace. After filing a grievance with the Union, the plaintiff was reassigned to another building, without being given any explanation for the transfer. On February 7, 2014, the plaintiff filed a second grievance with the Union regarding the transfer and alleging racial discrimination. He was then reassigned a second time to a different building, where he was required to undergo a background check which revealed that he had prior criminal convictions that he had failed to report on his original employment application. The plaintiff's employment was terminated on August 4, 2014. The plaintiff filed another grievance on the basis that he was unjustly discharged. While the Union arbitrated the plaintiff's unjust discharge complaints, it declined to arbitrate the plaintiff's claims of racial discrimination. In October 2015, the plaintiff attempted without success to mediate the discrimination claims. Thereafter, in December 2015, the plaintiff commenced this action against PBM and several of PBM's employees to recover damages, alleging discrimination and hostile work environment based on race and retaliation under 42 USC § 1981, the New York State Human Rights Law (Executive Law § 296; hereinafter NYSHRL), and the New York City Human Rights Law (Administrative Code of City of NY, tit 8; hereinafter NYCHRL). The plaintiff also alleged causes of action to recover damages for negligence, negligent supervision and retention, and negligent training.

In May 2016, the defendants moved pursuant to CPLR 7503 to compel arbitration and/or, in effect, pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. They argued that the plaintiff's claims were subject to mandatory arbitration pursuant to the terms of the CBA. The Supreme Court granted the defendants' motion. The plaintiff appeals.

...

...As previously noted, the CBA contains the No-Discrimination Protocol, a pilot program originally initiated by the Union and the RAB in response to their dispute following Pyett, which specifically provides procedures for the plaintiff to arbitrate his discrimination claims in the circumstance when the Union has declined to pursue them. The plaintiff's additional argument that the CBA is not enforceable because it requires him to arbitrate his claims on his own when the Union declines to do so is equally unavailing, as he had access to the arbitral forum, whether through the Union, or on his own, to vindicate his statutory rights (see Glover v Colliers Intl. NY, LLC, 2014 WL 5410016, 2014 US Dist LEXIS 151227 [SD NY, No. 13-CV-8843 (JMF)]; Germosen v ABM Indus. Corp., 2014 WL 4211347, 2014 US Dist LEXIS 119092).

Many United States District Courts have decided cases involving collective bargaining agreements similar to the one herein. These courts have rejected arguments posited by parties similar to the substantive waiver argument presented by the plaintiff herein (see Hamzaraj v ABM Janitorial Northeast Inc., 2016 WL 3571387, 2016 US Dist LEXIS 83216 [finding that the plaintiff's statutory discrimination claims were subject to mandatory arbitration where the collective bargaining agreement at issue contained the Protocol. The court reasoned that there was no waiver of the plaintiff's statutory rights nor was he prevented from vindicating them in the arbitral forum, noting that even if the Union declined to take the plaintiff's discrimination claim to arbitration, the collective bargaining agreement provided a means for him to pursue his claim in arbitration independently]; Glover v Colliers Intl. NY, LLC, 2014 WL 5410016, *4, 2014 US Dist LEXIS 151227, *12-13 [finding that the plaintiff's ADEA claims were subject to mandatory arbitration. The court reasoned that "[a]lthough Pyett did leave open the possibility that an arbitration clause could be deemed unenforceable if it prevents plaintiffs from effectively vindicating their federal statutory rights in the arbitral forum, that potential escape hatch" did not apply as the agreement at issue provided for procedures for arbitration when the Union declined to bring an employee's claim to arbitration (internal quotation marks and citation omitted)]; Germosen v ABM Indus. Corp., 2014 WL 4211347, 2014 US Dist LEXIS 119092 [finding that the plaintiff's claims were subject to mandatory arbitration pursuant to the terms of the collective bargaining agreement]; Jenkins v Collins Bldg. Servs., Inc., 2013 WL 8112381, 2013 US Dist LEXIS 186412 [SD NY, No. 10-Civ-6305 (AKH)] [noting that the court had repeatedly concluded that under the supplemental collective bargaining agreement, which provides procedures for individual employees to arbitrate their statutory discrimination claims in those circumstances when the Union has declined to do so, individual employees are required to arbitrate their claims]).

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