Matter of Cassini, 2020 NY Slip Op 01057, Decided on February 13, 2020, Appellate Division, Second Department:


VIII. The Pathways for Replacing an Attorney of Record

CPLR 321 provides three pathways by which the attorney of record for a party may seek to be replaced. The client always has the option of discharging the attorney, in which event the discharge is immediate (see Farage v Ehrenberg, 124 AD3d 159, 165). Of course, some further action must be taken in order for the discharge to be made known to the other parties to the action and to the court.
First, pursuant to CPLR 321(b)(1), the attorney of record may withdraw or be changed by a stipulation signed by the outgoing attorney and signed and acknowledged by the client, with notice to be provided to the other parties to the action (see CPLR 321[a]). The use of a stipulation of substitution, which avoids expense and delay, is common where the client, the outgoing attorney, and the incoming attorney (who could be the client pro se) are entirely in agreement on the substitution (see Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C321:2 at 181 [2010 ed]). Since the client is, by executing the stipulation of substitution, in effect, consenting to the discharge of the attorney of record and simultaneous replacement with another, there is no entitlement to an automatic stay of proceedings by reason of the change in counsel (see Shurka v Shurka, 100 AD3d 566), although incoming counsel could always seek a stay from the court (see CPLR 2201).

Second, CPLR 321(b)(2) permits the attorney of record for a party to be changed by order of the court. This pathway requires the attorney of record to move, by order to show cause, [*13]on such notice as the court may direct, to be relieved ^[FN8]. Withdrawal is not, however, available for the mere asking, particularly when some significant court action is pending, such as the commencement of a trial. The attorney must demonstrate that good cause exists to end the relationship with the client, such as by showing an irretrievable breakdown in the relationship or a failure of cooperation by the client (see Farage v Ehrenberg, 124 AD3d at 165). Whether a stay of proceedings should be granted upon an order relieving counsel of record is a matter to be considered further.

Third, pursuant to CPLR 321(c), if an attorney dies, "becomes physically or mentally incapacitated," or is removed, suspended, or otherwise becomes disabled at any time before judgment, no further proceedings may be taken against the party for whom the attorney appeared, without leave of court, until 30 days after notice to appoint another attorney has been served upon the party either personally or in such manner as the court directs. Under this provision, where an attorney becomes functionally disabled from representing the client, a stay of all proceedings automatically attaches, with that stay remaining in effect until a notice to appoint a replacement attorney is served. However, the court has the authority to grant leave for proceedings to be conducted despite the stay.

Unlike CPLR 321(b)(1), where a substitution is with the outgoing attorney's consent, and CPLR 321(b)(2), where an attorney may seek to be relieved, CPLR 321(c) becomes applicable upon the occurrence of an event that is typically outside the outgoing attorney's control. By the terms of the statute, the termination of the stay is dependent upon service of a notice to appoint by the adverse party or parties, with the notice to be served personally or as the court directs. Nothing precludes the court from serving the notice to appoint.

IX. The Interplay Between CPLR 321(b) and (c)

In approaching our analysis of the interplay between CPLR 321(b) and (c), there are two anomalous circumstances in this matter which require notation. Both CPLR provisions address the replacement of an attorney of record, approaching the topic as if there is but one singular attorney who represents the party in question.

In this case, Marianne had two distinct attorneys of record. However, absent special circumstances, there may be only one attorney of record for a party in a single action (see Stinnett v Sears Roebuck & Co., 201 AD2d 362, 364; Matter of Kitsch Riker Oil Co., 23 AD2d 502; but see Itar-Tass Russian News Agency v Russian Kurier, Inc., 140 F3d 442, 452 [2d Cir] [recognizing second attorney of record for the purpose of charging lien]). Here, both RK and Sills Cummis described themselves and were simultaneously recognized without objection as being attorneys of record for Marianne, although Sills Cummis's role, as described by Kaplan, was to assist Reppert and RK. The controversy at issue herein might have been less confusing had Sills Cummis served strictly in an of counsel capacity to RK, with the latter firm being the sole attorney of record. It might further be said that, while Reppert's illness gave rise to appropriate cause for Reppert to withdraw under CPLR 321(b), it did not necessitate granting Sills Cummis's motion for leave to withdraw. Likewise, it could be argued, if Reppert was disabled for the purpose of CPLR 321(c), an automatic stay of proceedings was not triggered because of Sills Cummis's status as a second attorney of record. However, since none of the parties have addressed, much less given any significance to, the duality of counsel, we note the circumstance but do not comment further on it.

Additionally, RK is a law firm which had at least two attorneys affiliated with it, Reppert and Kelly. In dealing with death, removal, or disability of an attorney of record for a party, CPLR 321(c) postulates the existence of a singular individual who has died, has been removed or suspended, or has become disabled. It may be questioned whether, as here, CPLR 321(c) has any application at all to a circumstance where the attorney of record is a law firm composed of multiple individual attorneys. Where a client is represented by a law firm with multiple attorneys, it may be argued that the death, suspension, or disability of one attorney in that law firm does not trigger application of CPLR 321(c). However, the parties here do not argue that Kelly's unhampered ability to continue to represent Marianne precludes the application of CPLR 321(c) as the result of [*14]Reppert's personal circumstances.

Consequently, despite these anomalous facts, we approach our analysis upon the predicate that Reppert was, in effect, a solo practitioner and the exclusive attorney of record for Marianne. We do so because "[f]or us now to decide this appeal on a distinct ground that we winkled out wholly on our own would pose an obvious problem of fair play. We are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made" (Misicki v Caradonna, 12 NY3d 511, 519; see Green Tree Servicing, LLC v Molini, 171 AD3d 880, 882).

We see no reason why, in a circumstance where an attorney of record has become incapacitated, CPLR 321(c) would apply to the exclusion of the other pathways provided in CPLR 321 for replacing the attorney of record. Stated differently, where an attorney of record becomes disabled from further participating in the case, the attorney may seek to be replaced by consent through a stipulation of substitution (CPLR 321[b][1]), or the attorney could seek to be relieved by court order (CPLR 321[b][2]), or the party represented by the attorney could be compelled to replace the attorney by service of a notice to appoint by the adverse party (CPLR 321[c]). The statute does not make any one of these three pathways exclusive, though, as a practical matter, where an attorney has died or has become so incapacitated to be unable to execute an instrument, that attorney would not be able to effectively execute a stipulation of substitution or an affirmation in support of a motion for leave to be relieved. On the other hand, an adverse party may not always be in a position to know that the attorney of record for the other side has become disabled or disabled to such an extent as to preclude the attorney from continuing to provide representation to the client.

Where an attorney is allowed to be relieved by court order under CPLR 321(b)(2), it is preferable for the court to direct that the order be served by the adverse party, just as service of a notice to appoint by the adverse party or the court itself is required by CPLR 321(c). By directing that the adverse party serve the order upon the client previously represented by the relieved attorney, the court can assure that the client is on notice that his or her attorney is relieved of further representation and that a new attorney should be retained.

As will be discussed further infra, where an attorney seeks leave to withdraw under CPLR 321(b)(2), the court may stay proceedings pending the determination of the motion and after the determination. In contrast, where CPLR 321(c) is triggered, an automatic stay takes hold upon the occurrence of the triggering event. In both instances, it is preferable for the adverse party to serve notice of any stay and notice to appoint a new attorney upon the client of the relieved attorney in order to prevent the situation, as happened here, where a court-imposed stay lapsed before the client was on notice that a stay had been granted.

X. The Applicability of CPLR 321(c)

The most extensive treatment of CPLR 321(c) by our Court of Appeals is found in Moray v Koven & Krause, Esqs. (15 NY3d 384). In Moray, this Court affirmed the Supreme Court's order granting the defendant's motion pursuant to CPLR 3012(b) to dismiss the action for failure to timely serve a complaint, holding, inter alia, that the plaintiff's contention that the action had been stayed pursuant to CPLR 321(c) was raised for the first time on appeal and, thus, was not properly before us (see Moray v Koven & Krause, Esqs., 62 AD3d 765, revd 15 NY3d 384). The Court of Appeals reversed, stating:

"The command of CPLR 321(c) is straightforward: if an attorney becomes disabled, no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs' (emphasis added). As the Practice Commentaries explain, CPLR 321(c) brings about an automatic stay of the action,' which goes into effect with respect to the party for whom the [disabled] attorney appeared' (Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C321:3, at 183). As a result, [d]uring the stay imposed by CPLR 321(c), no proceedings against the party will have any adverse effect. It lies within the power of the other side to bring the stay to an end by serving a notice on the affected party to appoint new counsel within 30 days . . . If, at the end of the period, the party has failed to obtain new counsel (or elected to proceed pro se), the proceedings may continue against the party' (id.).

"The stay is meant to afford a litigant, who has, through no act or fault of his own, been deprived of the services of his counsel, a reasonable opportunity to obtain new counsel before further proceedings are taken against him in the action' (Hendry v Hilton, 283 App Div 168, 171 [2d Dept 1953] [discussing Civil Practice Act § 240, the predecessor statute to CPLR 321(c)])" (Morayv Koven & Krause, Esqs., 15 NY3d at 388-389 [footnote omitted]).

The Court applied the law to the facts.

"This lawsuit was automatically stayed by operation of CPLR 321(c) on January 24, 2008, the date when plaintiff's attorney was suspended from the practice of law. Defendant never acted to lift the stay by serving a notice upon plaintiff to appoint new counsel within 30 days. Thus, Supreme Court's order dismissing the action must be vacated (see e.g. Galletta v Siu-Mei Yip, 271 AD2d 486, 486 [2d Dept 2000] [ Since the judgment entered upon the defendants' default in appearing at trial was obtained without the plaintiff's compliance with CPLR 321(c), it must be vacated']; McGregor v McGregor, 212 AD2d 955, 956 [3d Dept 1995] [ The record reveals no compliance with the leave or notice requirements of CPLR 321(c). The appropriate remedy for a violation of CPLR 321(c) is vacatur of the judgment'])" (Moray v Koven & Krause, Esqs., 15 NY3d at 389).

The Court explained why it rejected two arguments the defendant made. First, the defendant pointed out that CPLR 321(c) permits further proceedings by leave of the court, and contended that the Supreme Court exercised that express statutory authority to hear and grant the defendant's motion to dismiss after the plaintiff's attorney was suspended from the practice of law. The Court of Appeals found that argument to be wanting:

"The drafter's notes on CPLR 321(c), however, state that the words without leave of the court' were designed to allow the court to vary the [30-day] rule in cases where the stay of proceedings would produce undue hardship to the opposing party, as where the time to take an appeal or other action would run or where a provisional remedy is sought and speed is essential' (4th Preliminary Rep of Advisory Comm on Prac and Pro, 1960 NY Legis Doc No. 20 at 191). No remotely comparable situation existed at the time Supreme Court dismissed this action. Moreover, Supreme Court did not mention CPLR 321(c), much less articulate a basis for exercising its discretion to relax the 30-day notice requirement" (Moray v Koven & Krause, Esqs., 15 NY3d at 390).

Second, the defendant contended that the plaintiff was foreclosed from raising CPLR 321(c) for the first time on appeal. The Court of Appeals did not agree:

"While we do not as a general rule resolve cases on grounds not raised in the trial court, the context here is unusual. We are dealing with a statute intended to protect litigants faced with the unexpected loss of legal representation. And there is no indication in this record that plaintiff sought to raise CPLR 321(c) only after having conducted his lawsuit pro se for some period of time after his attorney became disabled (cf. Telmark, Inc. v Mills, 199 AD2d 579, 580-581). As a general rule, unrepresented litigants should not be penalized for failing to alert a trial court to the existence of an automatic stay created for the very purpose of safeguarding them against adverse consequences while they are unrepresented. And as the Practice Commentaries point out, all it takes to end the automatic stay is service of a 30-day notice on the affected party" (Moray v Koven & Krause, Esqs., 15 NY3d at 390).

CPLR 321(c) applies to circumstances in which an event occurs which is personal to the attorney of record which involuntarily prevents the attorney of record from continuing to represent the party, notwithstanding the attorney's willingness to do so (see Hendry v Hilton, 283 App Div at 171). The statute is designed for the protection of a litigant who, through no fault of his or her own, has been deprived of the services of one's attorney of record and who, therefore, should be given a reasonable opportunity to obtain new counsel before further proceedings are taken against [*15]such party. The protection of the statute is confined to causes which, as to the client, may be said to arise from a force majeure or one over which the client has no control (see id.).

Moray involved the circumstance where the attorney of record was suspended from the practice of law. In McGregor v McGregor (212 AD2d at 956), the attorney of record was disbarred. Where the attorney of record has died, been disbarred, or has been suspended from practice, the fact of the attorney's inability to proceed further is readily established by a documentary record, such as a death certificate or court order. The disability of the attorney of record is also within the purview of CPLR 321(c), whether that disability be mental or physical (see Winney v County of Saratoga, 252 AD2d 882, 883). The disability, whatever its nature, must be such that effectually prevents the attorney from continuing the representation of the client (see Hendry v Hilton, 283 App Div at 171; see also Winney v County of Saratoga, 252 AD2d at 883). Whether such a disability has occurred, and when it occurred, may not always be readily known and, in particular, known to the adverse party. There also may be no available record that documents the nature and extent of the disability or establishes when the disability arose.

Here, in moving for leave to withdraw from representing Marianne, Reppert asserted that, for medical reasons, he had been unable to fully return to the practice of law full-time since July 2015. He offered to "provide an in camera affirmation for the Court to review or make [himself] available to discuss the medical issues privately that prevent [him] from continuing at this time with the Court." He asserted that he was "physically unable to provide the representation that is necessary to properly represent [his client]," Marianne. In an affirmation executed two week later, in support of Sills Cummis's motion for leave to withdraw, Kaplan asserted that his firm's role in the matter was ending "[n]ow that Mr. Reppert's health prevents him from continuing to represent Marianne before this Court." The objectants did not oppose the withdrawal motions. While it does not appear that the Surrogate's Court took Reppert up on his offer to share medical information with the court privately, the court, in granting Reppert's motions for leave to withdraw, made the specific finding and determination that Reppert was "unable to continue to represent [Marianne] due to health reasons." In making this finding and determination, the court provided the basis for a discretionary withdrawal of counsel under CPLR 321(b)(2) and simultaneously activated the automatic stay provisions of CPLR 321(c), as Reppert's judicially determined inability to continue to represent Marianne for health reasons constituted a finding of disability for the purpose of CPLR 321(c). Further, in making this finding in its orders, the court put the objectants on notice that Reppert was unable to continue his representation of Marianne and was thus disabled, leading to the applicability of CPLR 321(c).

The objectants argue that CPLR 321(c) does not apply because there was no force majeure and there is no evidence that Reppert was effectively prevented from practicing law. This contention is unpersuasive. The statements by Reppert and Kaplan made in affirmations submitted in support of the withdrawal motions are evidence that Reppert was unable to effectively continue with the representation of Marianne. While no medical testimony or documentation was provided, and the Surrogate's Court might well have denied the withdrawal motion for that reason (see Matter of Plaro Estates, Inc. v Assessor, 101 AD3d 886, 888; Winney v County of Saratoga, 252 AD2d at 883), or requested the submission of supporting medical documentation, the court evidently was satisfied that Reppert's condition was serious and substantial, as evidenced by its unchallenged finding that Reppert was unable to continue with the representation. In this regard, we note that the previous Surrogate had granted a lengthy delay in the trial partly due to Reppert's representation that he was required to undergo surgery. The finding by the court on the motions for leave to withdraw that Reppert's condition precluded his continued participation in the matter, coupled with the facts that Reppert's health condition was a cause over which Marianne had no control and was not due to any fault on her part, established the existence of a disability for the purpose of CPLR 321(c) (see Hendry v Hilton, 283 App Div at 171). Reppert's condition, contrary to the objectants' argument, constituted a force majeure, that is, an unexpected event that prevented him from doing or completing something he had agreed or planned to do (see Black's Law Dictionary [11th ed 2019]). The objectants contend that, even if Reppert was disabled, the statutory stay was not implicated because Marianne failed to oppose or object to RK's withdrawal motion. Again, we disagree.

Where counsel is permitted to withdraw, pursuant to CPLR 321(b)(2), over the client's objection, the 30-day stay of proceedings generally attaches since the court has effectively [*16]"removed" counsel for the purpose of CPLR 321(c) (Albert v Albert, 309 AD2d 884, 886; see Matter of Wiley v Musabyemariya, 118 AD3d 898, 899-900; Sarlo-Pinzur v Pinzur, 59 AD3d 607). However, none of our cases stand for the proposition that the CPLR 321(c) stay applies only where the client objected to counsel's motion for leave to withdraw. Indeed, CPLR 321(c) provides that the "removal" of the attorney of record brings about a stay, without regard to whether the removal was with or without the client's consent. It would make little sense to construe the statute as conferring a stay to protect a client who opposed counsel's application to withdraw due to disability, despite knowing of the attorney's incapacity, while denying a stay to a client who, recognizing that the attorney was disabled, did not object to the attorney's request to withdraw. Either way, the stay attaches, but subject to the court's authority to vary it in appropriate cases.

CPLR 321(c) expressly permits the court to grant leave to continue the proceedings, and deny a stay, in particular cases where the attorney of record has been removed or suspended. Certainly, where the attorney's withdrawal is caused by a voluntary act of the client, the court has the discretion to permit the matter to proceed without a stay (see Matter of Wiley v Musabyemariya, 118 AD3d at 899-900 [no stay where client voluntarily discharged attorney]; Sarlo-Pinzur v Pinzur, 59 AD3d at 608 [no stay where client refused to cooperate with counsel in preparing for trial]; Graco Constr. Corp. v Eves, 232 AD2d 370, 370-371 [no stay where client voluntarily discharged attorney on the first day of trial]). Likewise, a stay may be refused where the removal of counsel was the product of the client's own wrongful act (see RDLF Fin. Servs., LLC v Bernstein, 93 AD3d 421 [attorney, representing both himself and his law firm, was disbarred after pleading guilty to stealing client funds; no stay because his removal from the bar was the product of his own wrongdoing]). Here, however, there is nothing in the record indicating that Marianne's voluntary act or wrongdoing caused Reppert's withdrawal.

Also unavailing is the objectants' contention that the legislative purpose underlying the enactment of CPLR 321(c) is to protect an unknowing client whose counsel failed to inform the client of counsel's suspension or disability. Here, there is no evidence that Marianne knew that Reppert had a health impairment at the time she initially retained him some 10 years earlier. Nor is there any evidence as to whether and when Reppert advised Marianne of his health condition, apart from his disclosures to the court. In any event, the Court of Appeals has said that "[t]he stay is meant to afford a litigant, who has, through no act or fault of his own, been deprived of the services of his counsel, a reasonable opportunity to obtain new counsel before further proceedings are taken against him in the action'" (Moray v Koven & Krause, Esqs., 15 NY3d at 389, quoting Hendry v Hilton, 283 App Div at 171). Reppert's medical condition, which deteriorated well after he began representing Marianne in lengthy, protracted proceedings, was a cause over which Marianne had no control and was not due to fault on her part.

XI. The Duration of the Stay

CPLR 321(c) provides that, where an attorney becomes disabled, "no further proceeding shall be taken in the action against the party for whom he [or she] appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs." Where the stay has been violated, the remedy is to vacate the judicial determinations rendered in contravention of the statute (see Livore v Malik, 305 AD2d 641, 642; Galletta v Siu-Mei Yip, 271 AD2d at 486; McGregor v McGregor, 212 AD2d at 956; see also Moray v Koven & Krause, Esqs., 15 NY3d at 389; Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C321:3 ["A party against whom an order or judgment is entered in violation of CPLR 321(c) may have the order or judgment vacated"]). The stay provided for in CPLR 321(c) went into effect upon the Surrogate's Court's finding that Reppert was disabled, which was first made in its orders dated February 16, 2016, relieving RK in the Turnover and SNT Proceedings. Even if it is assumed that this finding was not imported into the Accounting Proceeding until the March 14, 2016, order relieving RK made in that proceeding, and that the stay did not take effect in that proceeding until March 14, 2016, there is no significant consequence as it does not appear that any judicial determinations were rendered in the interval between February 16 and March 14, 2016.

It is undisputed that no party sought leave of the Surrogate's Court to take further proceeding against Marianne and that no formal notice to appoint another attorney was served on her. The March 14, 2016, order, granting RK's withdrawal from representing Marianne in the Accounting Proceeding, did not explicitly state that Marianne had to find new counsel. In any event, [*17]no one served her with it. However, even though Marianne was never formally served with a notice to appoint, it does not necessarily follow that the statutory stay of proceedings continued on ad infinitum, as Marianne contends.

In Telmark, Inc. v Mills (199 AD2d 579), the Appellate Division, Third Department, found, on the facts presented, that there was no violation of CPLR 321(c)^[FN9]. There, the defendant's attorney notified the parties that he had been suspended from practice and had advised the defendant to obtain the services of another attorney. The defendant then sent a letter to the plaintiff's attorneys in which she acknowledged that her counsel had been suspended and directed that the plaintiff "send any papers directly to [her] until notified to the contrary" (Telmark, Inc. v Mills, 199 AD2d at 580 [internal quotation marks omitted]). The defendant then proceeded pro se, which she had the right to do (see id. at 580-581).

In Moray, the Court of Appeals referenced Telmark by stating:

"We are dealing with a statute intended to protect litigants faced with the unexpected loss of legal representation. And there is no indication in this record that plaintiff sought to raise CPLR 321(c) only after having conducted his lawsuit pro se for some period of time after his attorney became disabled (cf. Telmark, Inc. v Mills, 199 AD2d 579, 580-581 [3d Dept 1993])" (Moray v Koven & Krause, Esqs., 15 NY3d at 390).

Thus, in Moray, the Court of Appeals distinguished Telmark but did not overrule Telmark or call into doubt its conclusion on the facts there presented that there was no violation of CPLR 321(c).
Telmark is instructive in several respects. First, in Telmark, the defendant's attorney did give his client notice that she needed to appoint a new attorney. Second, the defendant responded to that notice by voluntarily electing to proceed pro se."

Hope for the best but prepare for the worst. In addition to all of the other concerns we have now and assuming you can still operate your business, this may be the time to examine your business succession plan - if your agreements are not be addressed right now at the very least consider adding another trusted individual as an officer or to add another signature to your business account.

An update on court changes that was sent from the attorney below: Please note the most recent information available regarding court functions (details subject to change at any time, per the courts): Bronx Supreme – CLOSED Open for Emergency Applications and Mental Hygiene Cases only. Civil – CLOSED Kings Supreme – Approval of Paper Motions only. Documents are dropped into bins for the clerks’ review, and then given back. Guardianship Department, Ex Parte Office, County Clerk all open. Subpoena Records Room – Clerks are approving requests, but they must be signed by judges and there are no judges to sign. All parts/courtrooms are closed except for trials currently underway. Surrogates Court Probate Department is closed, but there is a bin to drop-off files. Calendars adjourned to June at the earliest. Cashier, Administration, Accounting & Misc. Departments are closed. Call (347) 404-3720 for Essential Application Only Civil – CLOSED New York Supreme Notary and juries Departments – CLOSED Matrimonial papers can be bought but are not being reviewed. Motion support is only accepting Note of Issues with near-deadline dates and motions that are to be put on calendar 5 days before presenting. Civil All calendar parts are closed until at lest 04/15/2020 Cannot file calendar paperwork or opposition papers. Any orders pending for judge signature are unlikely to be signed. No judges are in the courthouse One clerk is handling all windows in Civil and two clerks handling all windows in L&T. These clerks are using their own discretion as to what is important or not. Able to file Summons and Complaints, Notice of Trials, Notice of Inquest, and L&T Notice of Petitions, and Petitions. Able to file some motions and answers, but part clerk was unsure as to whether they would be accepted moving forward. Queens Supreme Only Emergency Applications, OSC’s, Emergency Matrimonial Cases are open. Each department has drop-off bins. Trial Scheduling Part – Open with no judge. Motion Support – CLOSED County Clerk – Open for general filings and taking payment. Civil Open for Index Purchase in Civil and L&T departments This may change per clerk. Non-emergency OSCs, Motions or Subpoenas will not be accepted. General Submissions and Record Room - CLOSED Transcripts, Exemplifications & Judgments parts – CLOSED Richmond Supreme- CLOSED Surrogates – Open for filings to be dropped in a bin. Civil – CLOSED County Clerk – Open at this time. Nassau Supreme – CLOSED Filings for Nassau Supreme will be accepted at County Clerk County Clerk will be open 9:00 am – 12:00 pm, Tuesday, Wednesday and Thursday. Filings will be dropped in a bin, no review. District – CLOSED Suffolk Supreme – CLOSED District – CLOSED   Bronx Kings New York Queens Richmond Nassau Suffolk Supreme Purchase Index NO YES YES YES NO NO NO File Affidavits NO YES YES YES NO NO NO Civil Purchase Index NO NO YES YES NO NO NO File Affidavits NO NO YES YES NO NO NO L&T Purchase Index NO NO YES YES NO NO NO File Affidavits NO NO YES YES NO NO NO All eviction proceedings and pending eviction orders will be suspended statewide. Felony matters where the defendant is not in custody will be "administratively adjourned" until further notice. Felony matters where the defendant is in custody will be "administratively adjourned" or be conducted via video in New York City and other jurisdictions that have the technology. Supreme Court justices may still allow "essential applications," like civil commitments, guardianship and Mental  Hygiene law applications. Family Court may still allow issues tied to juvenile delinquency proceedings, family offenses and child protection proceedings. People arrested in New York City will now participate in arraignments via video conference as a part of the state court system's switch to limit courthouse traffic amid the spread of Coronavirus Criminal courthouses in each borough will have three video parts, which will together handle "all essential Criminal Court functions" until further notice , court officials said. Lawyers and judges will still appear in court, and separate video feeds will allow defense attorneys to talk to their clients while the client also participates in the overall hearing. Administrative Order of the Chief Administrative Judge of the Courts: Pursuant to a delegation of authority to me by Chief Judge of the State of New York in response to the 2020 Coronavirus public health emergency in this State, I hereby direct that, effective immediately and until further order, any temporary  orders of protection issued in any criminal or civil matter in any court of the Unified Court System that is due to expire on or after 03/19/2020 shall be extended under the same terms and conditions until the date the matter is re-calendared, unless the order is sooner terminated or modified by a judge or justice of the court that issued the order.     Samson Freundlich, Esq. Per Diem Services, Inc. 4 Brower Avenue, Suite 3 Woodmere, NY 11598(516)295-2237 www.perdiemservices.com

For NY residents, I am offering this as a service. This is important for those who should update their Power of Attorney or create one while we go through this crisis. It is now allowed under these conditions - email me at jmp@jmpattorney.com or call me at 212 972-3250/516 690-9780 and note that I am still open and available by telephone, video chat, teleconference, facetime or any other means by which we can communicate with you so that my service to you remains uninterrupted:

• Any notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology provided that the following conditions are met:
  
  • The person seeking the Notary's services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after; 
  • The video conference must allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing);
  • The person must affirmatively represent that he or she is physically situated in the State of New York; 
  • The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed; 
  • The Notary may notarize the transmitted copy of the document and transmit the same back to the person; and 
  • The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution."

Chief Administrative Judge Lawrence Marks has just issued an Administrative Order, stopping all non-essential filings, electronic and paper, effective immediately. Above is what is considered essential.

Generally, under New York law, the Department of Labor will not allow business owners and independent contractors to collect unemployment benefits even though they do not earn compensation. As long as an employee is working as a business owner, even without remuneration or profit, New York law considers him employed.

MATTER OF LASKER v. Commissioner of Labor, 2017 NY Slip Op 7924 - NY: Appellate Div., 3rd Dept. 2017:

"Claimant was president and a 50% shareholder of a corporation engaged in the check cashing business. The business was sold in November 2010, payable in 72 monthly installments, and the name of the corporation was changed. Claimant filed a claim for unemployment insurance benefits effective February 21, 2011 and began receiving benefits. The Department of Labor thereafter found that claimant was ineligible to receive unemployment insurance benefits, effective from February 21, 2011 until the reason for his ineligibility no longer exists, because he was not totally unemployed during the time that he received benefits, and charged him with recoverable overpayment, reduced his right to receive future benefits by 704 days and imposed civil penalties. Following a hearing, an Administrative Law Judge found that claimant was ineligible to receive benefits from February 21, 2011 to December 11, 2012, but otherwise upheld the Department's determinations. The Unemployment Insurance Appeal Board affirmed, and claimant now appeals.

We affirm. "[W]hether a claimant is totally unemployed for purposes of receiving unemployment insurance benefits is a factual question for the Board and its determination will be upheld if supported by substantial evidence" (Matter of Robinson [Commissioner of Labor], 125 AD3d 1038, 1039 [2015], lv dismissed 26 NY3d 953 [2015]; accord Matter of Roberson [Commissioner of Labor], 142 AD3d 1259, 1260 [2016]). "[A] corporate officer who performs activities in connection with the winding up of a corporation will not be considered totally unemployed, even if his or her activities in this regard are minimal" (Matter of Bigelow[Commissioner of Labor], 13 AD3d 1022, 1022-1023 [2004]; see Matter of Bunting [Commissioner of Labor], 61 AD3d 1229, 1229-1230 [2009]; Matter of DeAngelo [Commissioner of Labor], 54 AD3d 468, 468 [2008]; Matter of Downton [Commissioner of Labor], 45 AD3d 1088, 1089 [2007]). Following the sale of the business, claimant took measures in winding up the business during the time period in question, including changing the company name with the Department of State as required by the purchase agreement, distributing the monthly installment payments received from the purchaser of the business, and writing checks from the company account for accountant and counsel fees, taxes, insurance costs, a charitable contribution, office supplies and other business expenses. Under these circumstances, the Board's determination that claimant was not totally unemployed is supported by substantial evidence and will not be disturbed (see Matter of Bunting [Commissioner of Labor], 61 AD3d at 1229-1230; Matter of Downton [Commissioner of Labor], 45 AD3d at 1089). "Contrary to claimant's assertion, actual financial gain is not a prerequisite to a finding that a claimant is not totally unemployed" (Matter of DeAngelo [Commissioner of Labor], 54 AD3d at 469 [citation omitted]; see Matter of Rance [Hudacs], 196 AD2d 930, 930 [1993]).

To the extent that claimant challenges the finding of a recoverable overpayment and the assessment of penalties, the record reflects that claimant denied working as an officer of a corporation in his application for benefits, despite signing the purchase agreement as the seller's president and being listed as the corporation's chief financial officer of the renamed corporation with the Department of State. Further, he did not report any of his activities in winding up the business when certifying for benefits. Accordingly, we decline to disturb the Board's finding that claimant made willful false statements in order to obtain benefits and was therefore subject to a recoverable overpayment and penalties (see Matter of Connell [Commissioner of Labor], 82 AD3d 1437, 1439 [2011]; Matter of Bunting [Commissioner of Labor], 61 AD3d at 1230)."

               If you are a small business owner, this health crisis and the shutdowns makes rent payments an issue. And many small businesses ask about the force majeure clause.

               Force majeure means "superior force" and can be a clause in contracts that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, plague, or an event described by the legal term act of God (hurricane, flood, earthquake, volcanic eruption, etc.), prevents one or both parties from fulfilling their obligations under the contract. In practice, most force majeure clauses do not excuse a party's non-performance entirely, but only suspend it for the duration of the force majeure.

               For example, here is one force majeure clause I consulted on regarding an event contract:


Certainly, the coronavirus would apply here as an epidemic or quarantine restriction. Such a clause is typical in event contracts. But let us deal with the issue at hand. You have a small business that is either severely curtailed or shut down due to the Governor’s orders. No income and the rent is due.

               Not all leases contain a force majeure clause. For example, The Association of the Bar of the City of the City of New York, Committee on Real Property Law, Model New York City Retail Lease does not contain such a clause. Instead, section 23.3 provides:


And section 23.8 of the model form provides:


               But some leases do contain a force majeure clause. Commercial landlords and tenants should closely review their lease documents to determine (1) whether, and to what extent, the COVID-19 events, declarations and restrictions qualify as a force majeure performance excuse under the applicable lease, and (2) any applicable requirements for providing notice of nonperformance under that lease.

               The question I am being asked by both landlords and tenants is whether the force majeure provisions will excuse the timely payment of rent. Recently, in the NYLJ article, “Analyzing Force Majeure Clauses in Light of the Coronavirus Outbreak”, Justin T. Kelton.  NYLJ March 19, 2020, the author noted:




               The most recent Court of Appeals case involving a lease was Beardslee v. INFLECTION, LLC, 25 NY 3d 150 - NY: Court of Appeals 2015, but the court was deciding the obligations under an oil and gas lease. The court first noted that the Force Majeure clause had to be construed in accordance with regular contract principles:


(emphasis supplied)

               In this case, the court was construing the effect of the leases term clause, also known as a habendum clause, which establishes the primary and definite period during which the energy companies may exercise the drilling rights granted by the leases. The energy company tenant argued that the term was extended under the force majeure clause because of the governor’s executive order delaying fracking permits. What is noteworthy is:

               1. The court did not address the question of whether the State's Moratorium amounted to a force majeure event.

               2. The court did hold that under any force majeure event, the force majeure clause did not modify the habendum clause and extend the primary terms of the lease:


In fact, the court stated:



            So, it appears that the mere presence of a force majeure clause does guarantee an excuse of performance – it is a question of contract interpretation utilizing the regular rules of contract interpretation such as (1)  unambiguous provisions of a contract must be given their plain and ordinary meaning, and the interpretation of such provisions is a question of law for the court as gleaned from the four corners of the document itself, provided that its terms are clear and unambiguous and (2) whether an agreement is ambiguous presents a question of law for the Court and ambiguity exists when specific language in the contract is susceptible of two reasonable interpretations. Other arguments that attorneys have discussed include contract principles of impracticality of performance, frustration of purpose as well as unconscionability. Thus the small business owner may have these questions:

               1. Question: Should a tenant be aggressive and start an action on the issue of rent?  A commercial lease was involved in LIDC I, LLC v. SUNRISE MALL, 46 Misc. 3d 885 - NY: Supreme Court 2014. The tenant sought to Yellowstone[1]the landlord’s default notice for non-payment stemming from delays in construction of three restaurants plaintiffs planned to open in defendant's shopping center as a result of the Town’s stop work order. The injunction was denied. The court stated that it found that “the Town's actions were sufficient to invoke the force-majeure clause as a result of governmental action…However, it also finds that rent is excepted under the leases' force-majeure clause, and nonpayment of rent is the stated default “ Thus, the court held that the tenant “have no operating businesses generating income, and have not pointed to any other independent source of funds, or that access to sufficient funds to cure the rent default is imminent. The court accordingly finds that they have failed to satisfy that prong of the required showings for a Yellowstone injunction that they are prepared and have the ability to cure the rent default. (Definitions Personal Fitness, Inc. v 133 E. 58th St. LLC.) The application for such an injunction is therefore denied.”

               2. Question: Should a tenant be wait until a non-payment is proceeding?  There is a moratorium on evictions that for now extends to mid-June. And under the June 2019 Act, commercial tenants may have the benefits of the new provisions regarding notice and payment up to judgment. But see 41 E. 11th ST., LLC v. WSIP REALTY CORP., 2020 NY Slip Op 20017 - NY: City Court, Civil Court 2020:




               3. Question: What do other attorneys recommend? Here are some thoughts and opinions I received that came from various list serves, etc.:




                              B. And other suggestions:

"The Department of Financial Services (DFS) today issued an emergency regulation requiring that, during a specified time, New York State regulated financial institutions provide residential mortgage forbearance on property located in New York for a period of 90 days to any individual residing in New York who demonstrates financial hardship as a result of the COVID-19 pandemic, subject to the safety and soundness requirements of the regulated institutions. The emergency regulation also requires that, during a specified time, New York regulated banking organizations eliminate fees charged for the use of Automated Teller Machines (ATMs) that are owned or operated by the regulated banking organization, overdraft fees, and credit card late payment fees for any individual who demonstrates financial hardship as a result of the COVID-19 pandemic, subject to the safety and soundness requirements of the regulated banking organization. This emergency regulation is adopted pursuant to Governor Andrew M. Cuomo’s Executive Order No. 202.9"

For more information see: https://www.dfs.ny.gov/reports_and_publications/press_releases/pr202003241

Passing this on:

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Fruit of the poisonous tree is a legal metaphor in the United States used to describe evidence that is obtained illegally. The logic of the terminology is that if the source of the evidence or evidence itself is tainted, then anything gained from it is tainted as well. But that metaphor may not apply to contract law and in this cases, it appears the Court of Appeals abides by the maxim: "He who comes into equity must come with clean hands."

CENTI v. McGILLIN, 2019 NY Slip Op 9058 - NY: Court of Appeals December 19, 2019:

"The doctrine of waiver does not preclude consideration of defendant's challenge here to the enforceability of the loan on the ground that it was funded by illegal gambling proceeds. Nevertheless, that defense was properly rejected on the merits. Given our strong public policy favoring freedom of contract, agreements are generally enforceable by their terms (159 MP Corp. v Redbridge Bedford, LLC, 33 NY3d 353, 359-361 [2019]). There is an affirmed finding, supported by the record, that the parties entered into a bona fide loan agreement and the facts do not support voiding the agreement on public policy grounds.

Neither the terms of the agreement nor plaintiff's performance — i.e., loaning money to a friend — was intrinsically corrupt or illegal. Although the loan was funded by the parties' illegal gambling operation (for which both were criminally prosecuted), the record does not support a characterization of their conduct as "malum in se, or evil in itself" (Lloyd Capital Corp. v Pat Henchar, Inc., 80 NY2d 124, 128 [1992]) and the source of funds used for a loan is not typically a factor in determining its validity. Defendant argues the agreement should be deemed unenforceable because the courts should not assist a party in profiting from ill-gotten gains. But, here, where both parties were involved in the underlying illegality, neither enforcement nor invalidation of the contract would avoid that result. Indeed, if the loan is not enforced, defendant receives a windfall despite his participation in the criminal acquisition of the funds. We have been reluctant to reward "a defaulting party [who] seeks to raise illegality as a sword for personal gain rather than a shield for the public good'" (id., quoting Charlebois v Weller Assoc., 72 NY2d 587, 595 [1988]; cf. McConnell v Commonwealth Pictures Corp., 7 NY2d 465 [1960]). Although we do not condone plaintiff's illegal bookmaking business, for which he was prosecuted and fined, the circumstances presented here do not warrant a departure from this tenet."

Yesterday, I posted the case CENTI v. McGILLIN, 2019 NY Slip Op 9058 - NY: Court of Appeals December 19, 2019 where the Court of Appeals refused to deny the enforceability of a loan on the ground that it was funded by illegal gambling proceeds. Now contrast that case with Doe v. Doe, NYLJ March 26, 2020, Date filed: 2020-03-16, Court: District Court, Nassau, Judge: Judge Scott Fairgrieve, Case Number: SC-002118-19OB:

 "Plaintiff commenced a small claims case against Defendant for $650 for breach of contract. Defendant brought a counterclaim against Plaintiff for $325 for nonperformance. On November 27, 2019, the court dismissed both the claim and counterclaim for the reasons set forth herein.

Testimony of Parties

The parties orally agreed that Plaintiff would work on Defendant’s daughter’s college applications, for an agreed upon rate of $125 per hour for each hour working with Defendant’s daughter in person. For any hours that Plaintiff was working independently at his residence, the rate was $100 per hour. There was no written agreement. The understanding was that the Plaintiff would provide assistance to work on the Defendant’s daughter’s college essays. Defendant regularly paid Plaintiff for the services he provided. Plaintiff alleges that Defendant was content with the services rendered.

The essays were to be submitted through the Common App, which is an online platform to submit college applications. On September 22 and 23, 2019, Plaintiff independently worked on two essays for Defendant’s daughter’s application to the University of Georgia at his home for a rate of $100 per hour. He sent the essays to the Defendant and her daughter for review. Plaintiff said they were very happy with the product. On September 24, Defendant met with her daughter’s school guidance counselor to discuss the essays. Defendant testified…, “any college advisor is fully aware that you show it to your guidance counselor. The guidance counselor read them and said who wrote these, a 40-year old man?” (Transcript at p10). Defendant called the Plaintiff on the phone to express her concerns that the essays were not written by Defendant’s daughter.

The final bill due to the Defendant was for $650. This was comprised of four hours working independently at a rate of $100 per hour, and two hours of working with Plaintiff’s daughter at a rate of $125 per hour. Plaintiff believed that the Defendant would pay the total $650 that was due but was never paid.

Defendant testified that her understanding of the agreement was that the Plaintiff would only edit the essays. Defendant and her daughter felt pressured to use Plaintiff’s services because they were on a time constraint to get the college applications sent out. The school guidance counselor expressed his concern for having the Plaintiff write the essays because the student must certify that they wrote the essay. Plaintiff admitted that he knew that the Defendant’s daughter had to certify that she wrote the essays.

Decision

The Common App is used as a platform for students to easily apply to colleges. As per the Common App students must certify that their whole work is their own. The Plaintiff’s occupation of writing and editing essays for students puts him on notice of the certification. He knew that students would have to certify that the essays are their own work because he has written essays for students in the past. The Defendant is also on notice because she allowed the Plaintiff to work on her daughter’s essays on his own time. Both parties knew that the Plaintiff was writing the essays on behalf of the daughter with the intention of sending the essays to the schools. Thus, the parties entered into an illegal contract.

When both parties are equally at fault (in pari delicto), the courts tend to leave the parties as is. “The doctrine of in pari delicto, Latin for equality of fault, is grounded on two premises: (1) courts should not lend their good offices to addressing disputes among wrongdoers; and (2) denying relief to a wrongdoer is an effective means of deterring illegality.” (28 N.Y. Prac., Contract Law §7:13).
Both the Plaintiff and Defendant are at fault because they knew the essays were not the work product of the Defendant’s daughter. The Plaintiff worked on the essay on his own time, at his own house, not in the presence of the daughter. The Defendant agreed to allow the Plaintiff to work on the essays at his home. Therefore, they both knew the work was not performed by the Defendant’s daughter.
It is well settled that illegal contracts will not be enforced by the courts. In Carmine v. Murphy, 285 N.Y. 413 (1941), plaintiff allegedly sold and delivered alcoholic beverages to the defendant and demanded that the unpaid balance be paid in full. The plaintiff was not properly licensed to sell or distribute alcoholic beverages in the State of New York. The general rule is that no action can be based upon an illegal contract (Carmine v. Murphy, 285 N.Y. 413 (1941)). The Court held that the contract was illegal and unenforceable.

Additionally, in Parpal Restaurant, Inc. v. Robert Martin Company, 685 N.Y.S.2d 481 (2nd Dept. 1999), plaintiff brought an action seeking a permanent injunction barring a construction project from expanding streets abutting the plaintiff’s subleased premises. The contract was deemed illegal since it was created for the purpose of improper tax avoidance. Thus, the contract was unenforceable.
Furthermore, in Sabia v. Mattituck Inlet Marina and Shipyard, Inc., 805 N.Y.S.2d 346 (1st Dept. 2005), plaintiff sued defendant for breach of contract and fraud. Plaintiff alleged that a boat purchased from defendant was faulty. As per their original agreement, both parties attempted to avoid payment of sales tax on the purchase of the boat. “Since no right of action can arise from an illegal contract, plaintiffs are barred, as a matter of law, from suing on the alleged agreement for the purchase of the boat…” Id. at 347. The court ruled the scheme to be illegal and therefore unenforceable.

Similarly, here the oral contract between the Plaintiff and Defendant is illegal. Both parties knew that the essays must be the sole product of the Defendant’s daughter. The Plaintiff cannot write the essays and have the daughter assert that it is her own work. As per their agreement, the Plaintiff and Defendant attempted to create a scheme in which they would present the Plaintiff’s work as the work of the Defendant’s daughter. The schemes in the previously mentioned cases, were deemed illegal leading the court to rule the contracts were unenforceable. Here, the contract was illegal since it was based on a scheme to defraud the institutions of higher learning, which the daughter was applying to for admission. Thus, the contract is unenforceable.

In Stone v. Freeman, 298 N.Y. 268, 271 (1948), plaintiff brought suit against defendant to recover commissions for the sale of clothing. The plaintiff sold clothing to the defendant. The plaintiff used a broker and the defendant used a purchasing agent. The agreement between the broker and purchasing agent provided that the broker was to pay a portion of his commissions to the purchasing agent. This alleges a conspiracy since it is illegal to pay commissions or bonuses to a purchasing agent because they are on different sides of the contract. Due to this conspiracy, the contract was unlawful, thereby making it unenforceable. “A broker or agent who knowingly participates in a criminal scheme is a principal, and in pari delicto with the one who employs him, so that neither may sue the other.” (Id. at 271). The court held that the case should be dismissed.

Here, Plaintiff and Defendant were involved in an illegal agreement. Plaintiff and Defendant were in pari delicto. The present contract was illegal since both parties knew they were submitting plagiarized work. Plaintiff testified, “They have to certify the whole work is their own.” (Transcript at p14). Defendant testified that when her daughter sent in her application, she was not supposed to have a ghost writer (Transcript at p11). Therefore, they were both at fault and could not be granted a money judgement from the court.

According to The Common App, the college application process prepares students for independence that comes with college. This forces students to take responsibility for their work and be proud of their work product.

Since the agreement between the Plaintiff and Defendant is based on illegal conduct, the court refuses to aid a litigant who petitions relief. The law does not aid either party since they are equally at fault (28 N.Y. Prac., Contract Law §7:13).

Conclusion

The court will not grant a money judgement to the parties since the agreement is based on illegal conduct. Both the claim and counterclaim are dismissed with prejudice."

New York State Unified Court System has been using Skype for Business (SfB) for both internal videoconferencing and remote video appearances with external parties, such as attorneys, litigants, and witnesses.  This guide is for those who wish to join a court-organized videoconferencing call. 

Q1.  What are the minimum requirements for participating a SfB videoconferencing call?

A1. You must have a decent computer or smartphone with up-to-date operating system, and a high-speed Internet connections.

Q2. I don’t have a Microsoft Office365 Account, can I join a SfB videoconferencing call?

A2.  Yes, you can still fully participate in a SfB video call from a web browser without paying for a license.

Q3. Why is it important to have a decent computer with an up-to-date operating system?

A3. Videoconferencing requires more computer horsepower than regular applications, such as a word processor.  Obsolete Operating Systems, such as Windows 7, not only have security holes, but also may exhibit unpredictable behavior when joining a Skype call. 

Q4. Can I join a SfB videoconference call without a webcam?

A4. Most laptops or tablets, as well as smartphones, have built in webcams.  If you don’t have a webcam, you can still join the SfB meeting.  People can hear you, however, they cannot see you, which is not desirable in most court proceedings.

Q5. What would you recommend for the audio?

A5. Obviously, you don’t have a meaningful videoconferencing calls without the audio.  To achieve the best effects, we recommend the use of a USB headset.  You may use an external speakerphone or built-in speaker and microphone within your device, however it might pick up background noises.  In those cases, you should sit close to the microphone.

Q6. How can I know my Internet connection is good enough for a Skype video call?

A6. Most people have broadband (highspeed) connections from their service providers, such as Spectrum, Cablevision Lightpath (Xfinity), or Verizon Fios.  Under normal circumstance, those broadband connections are more than sufficient to support Skype video calls.   Keep in mind that when you are joining a Skype video call during the emergency, you are competing the same bandwidth with other people staying home working, learning and being entertained.  Sometimes you may see your video has a lag and a pixelization.  This is a sign of Internet traffic congestion.  The problem usually will clear up by itself after a few seconds, so please be patient.  In addition, please connect your computer to a network port in your router if possible.  A wired connection has better performance than a Wi-Fi connection.

Q7. How can I prepare myself for the Skype video calls?

A7. We cannot emphasize enough the importance of performing a test well ahead of time to ensure equipment compatibility and to familiarize with the interface.  You may send your cell phone number, email address, and preferred date and time for the test to skypetest@nycourts.gov.  We will schedule a test call, send you the invitation and conduct the test with you.

Q8.  Is Skype for Business secure?

A8.  All communications on Skype for Business are encrypted.  Microsoft designed the product with security in mind.  To learn more about security features:  https://docs.microsoft.com/en-us/skypeforbusiness/optimizing-your-network/security-guide-for-skype-for-business-online

Q9. Can you share documents with all the participants?

A9.  While you can use Skype for Business for document sharing, we recommend you contact the clerk handling your case about the best approach for sharing/sending documents.  If you have to, you can  share documents within SfB in two ways: either open the document and share the desktop for the parties to view, or share the document as an attachment for the parties to download, view and print.  Be aware that the document sharing feature might not work on all platforms.

Q10. Where I can find tutorial on using Skype for Business?

A10. Please click on the link below:

https://support.office.com/en-us/article/join-a-skype-for-business-meeting-3862be6d-758a-4064-a016-67c0febf3cd5#OS_Type=Windows

Q11.  What are the most common problems a user will encounter, and where I can get technical support during the video call?

A11.  Common issues include:








Q12. Can I use my Skype to join a SfB video call?

A12.  Many of you may be familiar with Skype, a videoconferencing and IM product targeted at the consumer market.  Skype for Business (SfB) is an enterprise platform for secure communications and collaboration.  For all intent and purpose, you cannot use Skype in court-organized SfB video calls.

Q13. Why can’t I use other products, such as FaceTime, for videoconferencing with the courts?

There are many videoconferencing products in the market. For example, FaceTime is excellent for point-to-point video calls if both ends use Apple products.  When using videoconferencing in a court proceeding, we must use SfB, a proven product current in use by the court system that is secure, scalable to support multi-party call, versatile to work with different computers and smartphones.  

Q13.  Whom should I contact to schedule a Skype video call with the judge and other parties?

A13. You should contact the clerk of the appropriate court for procedure on how to schedule and participate a videoconferencing call for courtroom proceedings or attorney/client consultation.  More information could be found at www.nycourts.gov

Q14. Can I join a Skype video call using an iPhone or Mac?

A14.  Yes, please go to Apple App Store to download the Skype for Business app (not the regular Skype app).

Q15. If I join the meeting from home, what should I do to achieve the best audio and visual experience?

A15.  Select a quiet room, preferably no windows behind you.  If you do have windows behind you has to be behind you, close the blinds.

Q16. How come I am unable to download the Skype web plug-in?

A16.  This is most likely a security setting on your computer that is set to prevent you from downloading the plug-in.  Please see technical support in your organization and let them know you need this mission critical application to work. 

Q17.  Can I join the meeting from multiple devices at the same time?

A17. Some of you have set up multiple devices at home to be ready for S4B video calls.  We want to commend you being prepared for equipment failure.  However, it is not a good idea to have two devices, such a smartphone and a laptop, joining the Skype call at the same time.  In addition to create confusions for everyone, this will waste Internet bandwidth, and cause feedback and echo for everyone. 

Q18.  How can I have the best Virtual Courtroom experience?

A18.  If at all possible, adding a second monitor will enhance the virtual court room experience.  One screen can be used for viewing the video feed of the call and the second screen can be used for document viewing or other work. Here are three common approaches to setting up dual monitors at home:

Many financial advisors claim that it's more important to save for retirement than it is to pay for your kids' college. But this can change when a court is involved in your divorce.

Messinger v Messinger, 2020 NY Slip Op 50215(U), Decided on February 11, 2020, Supreme Court, Monroe County, Dollinger, J.:

"Defendant brought this post-judgment application seeking contribution for college expenses for the parties' daughter. After an initial hearing, this Court preliminarily indicated that some contribution would be appropriate, but concluded that additional discovery was needed in order to calculate the appropriate amount. The Court issued an opinion confirming those details dated April 24, 2019. Thereafter, the matter was scheduled for an additional hearing. After exchanges of settlement proposals and a hearing, this Court now resolves the contributions of each parent and the issue of attorneys fees.

1. The College Expenses for the Daughter

As noted earlier, the couple made an agreement regarding the payment of college expenses for their son but not their younger daughter. In the record before this Court, both parents have access to ample resources to finance the college costs of their daughter. The parties anticipated financing college costs because they establish a 529 account for their children and the account has funds remaining after the education of their older son. In addition, the husband has a retirement pension from the State of New York and a substantial deferred compensation account. He also works part-time. The wife also receives a portion of the husband's pension, courtesy of equitable distribution, and has a substantial benefit in her marital share of the deferred compensation account, even though it is, upon information and belief, undistributed at this stage. She is also employed.

In short, both parents are working and generating income. Based on these facts, [*2]which are undisputed, it appears that both parents should share in some part of the college costs on a pro rata basis. Neither party disputes that this Court may direct parental contributions to the daughter's education even absent an agreement. Matter of Paccione v. Paccione, 57 AD3d 900 (2d Dept 2008); Matter of Rabasco v. Lamar, 106 AD3d 1095 (2d Dept 2013)(the court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice). The later two criteria are easily quantified here: the parents concede that the best interests of their daughter require a college education — as they agreed for their son — and intra-family justice — giving their daughter the same opportunity as their son — is evident.

In their agreement regarding the financing of their son's college education, the father agreed to finance the son's college costs, except for a $6,000 "student loan per annum." However, at that time, the father's income was significantly higher than his current income, The agreement, requiring the father to finance the college education for the son, was signed in 2014. In 2016, the last full year that the father worked, he earned in excess of $115,000. However, the father was nonetheless entitled to determine when to retire, an event that resulted in the distribution of the marital share of his state pension to his former wife and the mother of the child seeking college assistance. There is no evidence in the agreement that the parents anticipated the father's retirement in his late 50s but, conversely, there is nothing that restricted his ability to retire. Given all these facts and the conclusion that the parents each received a significant pension benefit when the father retired, this Court will consider only the current income of the parties in allocating the college costs for the daughter. In this Court's view, a proportional allocation of the parental cost of the daughter's college education is not unreasonable, accords with the current financial circumstances of the parents and has some semblance to the terms under which the parents financed the son's education.[FN1]

This Court also notes one other aspect of the parties's agreement. In their allocation of college costs for their son, the couple agreed that neither parent would pay child support for their college-aged son. Art. VIII (I)(1). The parents also agreed to a deviation from the presumptive amount of child support for one child for a number of factors including payment of the daughter's equestrian expenses and the father's payment of the full cost of health insurance. In addition, as another deviation factor, the couple agreed that the father would finance the son's college education without a contribution from the mother. The amount of the agreed deviation from the presumptive amount of child support for one child was from $1006 per month to $675 per month. Importantly, there is no language in the agreement that suggests that when the father began financing a contribution to the daughter's education that any similar deviation in the presumptive amount of child support was anticipated. In short, there is nothing in the agreement that indicates that payment of the daughter's college [*3]expenses would result in a downward deviation of the father's child support obligation. In New York, the courts have declined to link payment of college expenses with child support obligations. Cimons v. Cimons, 53 AD3d 125, 133 (2d Dept 2008)(tuition expenses are separate from child support).

In prior instances, this Court has imposed a cost sharing as follows: one-third to the student and the remaining two-thirds divided in a pro rata fashion to the parents according to annual income. The child's share is reduced by any grants or scholarships and if the amount of such grants or scholarships exceeds the student's one-third share, then that amount reduces the respective shares of the parents. This Court has also considered whether the Court should impose what is commonly-referred to as a SUNY-cap. Matter of Wheeler v. Wheeler, 174 AD3d 1507, 1508 (4th Dept 2019); Borrelli v. Borrelli, 63 Misc 3d 1202(A)(Sup.Ct. Monroe Cty 2019). In their agreement to cover the college costs of their son, the couple imposed a SUNY-cap, equivalent to the costs associated with State University College at Brockport. In this court's view, a similar cost containment feature should be imposed on the daughter's college education costs.

One other issue looms in the allocation of costs and involves the consequences of student loans obtained by the daughter. In other contexts, New York courts have required parents to shield their children from student loans. See Matter of Rashidi v Rashidi, 102 AD3d 972 (2nd Dept. 2013)(even though the judgment of divorce applied a SUNY cap and despite any language regarding the allocation of the student loans, the court held that the parents were liable to repay any loans incurred by the son); Bungart v. Bungart, 107 AD3d 751 (2nd Dept. 2013) (in the absence of a clear and unambiguous provision expressly authorizing the deduction of the children's student loans from the college expenses toward which the parties agreed to pay, a court should not take into account any college loans for which the student is responsible). In this instance, the Court will still require the daughter to seek loans up to $6,000 per year and be responsible for such loans. In that manner, the daughter is treated to the same allocation of loan debt given to her brother in the parent's agreement.
Based on these facts, the Court orders the parties to divide the daughter's college costs as set forth above: a SUNY-cap equivalent to the annual costs at the College at Brockport, one-third allocated to the daughter (offset by grants or scholarships and supplemented by loans up to $6,000 per year) and the parents pay, in pro rata shares based on their annual income, the remaining costs.[FN2] In addition, any 529 account allocation should be credited equally between the parents, as these sums were marital money contributed to these tax-deferred accounts.[FN3]

2. Attorneys fees for the effort to define the college contributions.

Defendant's counsel asks for an award of $9,663, while Plaintiff asks for an award in his favor of $6,540. As Defendant correctly contends, "the [ex]-husband is the monied spouse and, thus, there is a rebuttable presumption that the [ex]-wife is entitled to an award of attorneys' fees" (Hof v Hof, 131 AD3d 579, 581 [2d Dept 2015], citing Domestic Relations Law § 237). The Court perceives nothing in this proceeding that would rebut that presumption. As to the amount, "[t]he decision to award an attorney's fee in a matrimonial action lies, in the first instance, in the discretion of the trial court" (Piccininni v Piccininni, 176 AD3d 880, 881 [2d Dept 2019] [internal quotation marks omitted]). In exercising its discretion, the Court looks to "the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions and whether either party has delayed the proceedings or engaged in unnecessary litigation" (id.). Based on the evidence before the Court, the Court does believe there this proceeding was initiated by the father's refusal to pay a proportionate share of the college expenses and his insistence, conveyed through an email, on a reduction in child support to finance the costs. There is evidence that the father in an email before the proceeding was commenced proposed to the mother that he would reduce his child support by an amount necessary to cover the college expenses. In essence, the father's position would have required the mother to concede a further deviation in presumptive child support payable to the mother to cover the cost of daughter's college expenses. Nothing in the agreement justifies that posture by the father. This Court has, in the past, refused to countenance a parent who holds their breath while the child attends college, declines to finance the cost as it accrues and then, after their spouse has financed up-front costs, seeks to negotiate a lesser deal in the process of expensive litigation.

While this Court considers the father's posture to justify a fee award, it does not believe a fee award in the full amount requested is justified, given the relative financial circumstances of the parties. This Court also cannot ignore the fact that these parents jointly neglected to agree on a method of financing their daughter's college education, when it must have been readily apparent when they signed their separation agreement that their daughter — whose parents and older brother attended college — would follow in their footsteps. In that regard, both parents share some culpability in this proceeding and its lengthy delays.

Accordingly, in the Court's discretion, Defendant's request for fees is granted and she is awarded FIVE THOUSAND DOLLARS ($5,000.00) in attorney's fees, to be paid within 30 days of the date of this Decision. The father's request for fees is denied.
________________________
Footnote 1:Apparently, the wife has yet to receive her marital share of the husband's New York State deferred compensation account. However, she acknowledges that the sums in her share could exceed $150,000 and, in this Court's view, these sums could provide an adequate source of funding for the wife's contribution, as well as the father's.

Footnote 2:The parties, in their agreement defined college expenses for their son as including applications, fees, tuition, room, board, school fees, lab fees and books. The Court applies this agreed definition to the costs for the daughter as well.

Footnote 3:This Court is aware that the daughter has already matriculated for several semesters. However, the contributions of both parents should be applied to all past and future semesters and to the extent that an accounting of contributions by the respective parents is required to achieve the allocation set forth in this opinion, the parents should conduct that accounting and grant offsets or credits to future expenses as required before an order is submitted to the Court." 

“Death ends a life, but it does not end a relationship, which struggles on in the survivor’s mind toward some final resolution, some clear meaning, which it perhaps never finds.” ― Robert Woodruff Anderson, I Never Sang for My Father

Dean v Dean, 2020 NY Slip Op 20042, Decided on February 5, 2020, Supreme Court, Monroe County, Dollinger, J:

"This is a tale of two claims.

The first — a divorce claim by a deceased wife — is among the worst of claims and like Jacob Marley is as dead as a doornail. The second, the better, if not the best of the claims, has greater expectations. In an unusual twist, it is a claim for financial support during the decedent's lifetime — portable property in some eyes — which, artfully drafted by the decedent's attorney with Bob Cratchit-like skills, artfully dodges a motion to dismiss at this stage.

The facts in this proceeding have been previously set forth in prior decisions of this Court. In response to earlier motion practice, this Court's converted the pending divorce action to a proceeding for spousal support under Article 4 of the Family Court Act. Thereafter, the parties explored settlement, until, last spring, Plaintiff, long confined to a nursing home after a debilitating health crisis, died. The wife's counsel moved to substitute the wife's executor, appointed under Texas law in a Texas probate proceeding, as the plaintiff to continue the support proceeding and seek attorneys fees. Defendant now opposes the substitution of the Texas executor and further moves to dismiss the spousal support proceeding claiming it is abated as a matter of law when the divorce action terminated as a result of the wife's death.^[FN1]The former husband also seeks sanctions against the wife's estate and its counsel for a frivolous action under 22 NYCRR §130-1.1.

Initially, this Court notes that the wife's counsel's application to this Court contains a lengthy recitation of the twisted and bleak history of this action and complications in a coordinate Texas probate proceeding. These allegations are irrelevant to the narrow legal issue presented here and the Court declines to consider them in any respect in resolving this motion. The wife's counsel also makes repeated references to the husband's failure to settle the pending action when the wife was alive. This Court rejects those suggestions and the strikes any references to settlement discussions — or any reference to the husband declining to settle — for violation of CPLR 4547.

In addition, this Court notes that the husband's counsel, while not specifically moving to dismiss the pending maintenance and attorneys fees claims argues in an accompanying memorandum of law that this Court, as part of its "such other and further" requested relief should dismiss these claims as well. For the sake of judicial economy, this Court will consider the challenges to the maintenance and attorneys fees claims, now that the original plaintiff is deceased. This step is necessary to move this matter along, as the divorce action was filed six years ago and the Court has previously pushed both sides to accelerate their pace in this litigation.

At the outset, "upon the death of a party, an action is stayed until such time as a personal representative of the decedent is duly qualified" (Haynes v Haynes, 2003 NY Slip Op 50867(U) [Sup Ct Mar. 20, 2003], citing CPLR 1015, Matter of Estate of Einstoss, 26 NY2d 181 [1970]). Where, as here, a representative has been appointed - albeit by a Texas court - the Court may, and should, order substitution sua sponte pursuant to CPLR 1015 (see Paul v Ascher, 106 AD2d 619, 621 [2d Dept 1984]; Cohen v Romanoff, 28 Misc 3d 1220(A) [Sup Ct 2010]). Accordingly, the Court sua sponte substitutes the executor as Plaintiff on behalf of the deceased, and the caption is hereby amended accordingly.

Turning to the merits of the abatement question, "[a]t common law the general rule was that an action abated upon the death of one of the parties" (Joseph A. v Gina L., 126 Misc 2d 63, 65 [Fam Ct 1984]). For most actions, this rule was changed by statute (see e.g. EPTL 11-3.2). However, "[a]batement, notwithstanding remedial legislation, still occurs on the death of a party in a number of clearly identified instances," the quintessential example being divorce (Matter of S.B., 165 Misc 2d 632, 634 [Fam Ct 1995]). "The determinative factor is whether what is involved is personal in nature, or involves the personal status of a party" (id). There is perhaps no more personal a matter than marriage, and, since that relationship ipso facto terminates upon the death of either party, there is nothing left to dissolve, and the matter therefore abates. Because matters of support and equitable distribution are "ancillary" to the divorce action, they necessarily abate upon the abatement of the divorce action itself (In re Pavese, 195 Misc 2d 1, 9-10 [Sur Ct 2002]).

The Court can find no authority discussing whether a claim for spousal support under Article 4 of the Family Court Act abates upon the death of a party. However, the Court believes there is good reason to hold that it does not. Unlike a claim for maintenance, spousal support proceedings are not ancillary to divorce - they may be brought even where the parties remain married. Joseph M. v. Lauren J., 45 Misc 3d 1211 (A)(Sup.Ct. New York Cty 2014). Moreover, they are not personal to the spouse in the same way a divorce is, inasmuch as they may be originated and enforced by a County Department of Social Services when the spouse is a public charge (see Family Court Act § 422; see e.g. Ladd v Suffolk County Dept. of Social Services on Behalf of Ladd, 199 AD2d 393, 394 [2d Dept 1993]; Monroe County Support Collection Unit ex rel. Wills v Wills, 19 AD3d 1019 [4th Dept 2005]; cf Suffolk County Dept. of Social Services ex rel. Abdul-Qadir v Myrick, 85 AD3d 1041 [2d Dept 2011]). The same statute permits a child or relative to "originate a proceeding" to "compel a person chargeable with the support to support the petitioner as required by law." Family Court Act § 422(a). Finally, in other contexts, the New York courts have held that a trial court can retain jurisdiction over support issues even if the court lacks jurisdiction to adjudicate the divorce action. See Valji v. Valji, 130 AD3d 404 (1st Dept. 2015). In Venizelos v. Venizelos, 216 AD2d 206 (1st Dept. 1995), the trial court dismissed a divorce action for failure to meet the residency requirements of the Domestic Relations Law but retained jurisdiction and properly converted the action into a support proceeding under Article 4 of the Family Court Act. See also Bellizzi v. Bellizzi, 82 AD3d 1541 (3d Dep't 2011) (when wife sought and obtained an award of temporary spousal maintenance during the pendency of the divorce action, the court had authority to consider and award permanent spousal maintenance, even though husband's complaint for divorce was ultimately dismissed).

Accordingly, while the death of a spouse necessarily negates any future support obligation, this Court holds that it does not abate the claim for support that was necessary prior to the spouse's death. If the decedent was entitled to support under New York law and experienced hard times during the pendency of this action, that claim survives her death and can be maintained by her representative, the executor. The motion to dismiss the application to substitute the executor as the plaintiff in this action is denied.

This Court also considers whether the former wife's claim for attorneys fees, acrrued while bringing a claim for support, survives her death. In that regard, Section 438 of the Family Court Act permits this Court to award fees for an action under Article 4 of the Family Court Act. FAM CT ACT §438; Matter of Klein v. Klein-Annis, 49 AD3d 648 (2d Dept 2008); Giliya v. Warren, 30 AD3d 420 (2d Dept 2006). Because the statute grants this Court broad discretion in considering a fee award, the motion to dismiss, to the extent it seeks to extinguish any claim for attorneys fees, is denied.




Footnote 1:In a battle of metaphors, the husband's counsel in her affidavit cites the Monte Python "Dead Parrot" sketch in support of his claims. The wife's counsel retorts in Yiddish proverbs defining "chutzpa." Shunning such hijinks, this Court resorts to the more refined and loftier metaphorical standards of the former law clerk Charles Dickens as exhibited in the first paragraph above. See Dickens, Tale of Two Cities, Oliver Twist, Great Expectations."

Getting your security back can be a struggle.

Sikora v Shurtluff, 2020 NY Slip Op 50159(U), Decided on January 30, 2020, Appellate Term, Second Department:

In this small claims action by defendant's former tenant to recover a security deposit in the sum of $2,900, defendant counterclaimed to recover the sum of $3,695 for unpaid rent and damage to the apartment. At a nonjury trial, it was established that plaintiff had paid defendant $2,900 as a security deposit and that defendant had not returned any part thereof to plaintiff. It was undisputed that, in a prior nonpayment summary proceeding, defendant had obtained a final judgment against plaintiff for $1,450, representing one month of unpaid rent. Defendant testified that plaintiff had damaged the wood floors in the apartment, and presented an itemized bill for $1,000 for the repair of the floors, which bill was marked paid in full.

Following the trial, the District Court ruled on the record, "After due deliberation and consideration . . . I find in favor of the plaintiff in the amount of $450 representing the difference between the amount owed of $1450 plus the damages to the floor of a thousand dollars that's there. I order that the [final] judgment against [plaintiff] be vacated as satisfied." While it appears that the court meant to enter a judgment in favor of plaintiff for $450, a judgment was actually entered on July 20, 2018 in the amount of $1,950. While there is no indication in the record that the $1,450 nonpayment final judgment had previously been satisfied, it is undisputed in the parties' briefs that defendant had subsequently enforced that final judgment by levying against plaintiff's bank account to satisfy the final judgment in full.

Thereafter, defendant moved, in effect, to amend the July 20, 2018 judgment. In an order dated September 11, 2018, the District Court, among other things, granted defendant's motion "to the extent that judgment in favor of plaintiff is granted in the sum of $1,450, representing [plaintiff's] full security," without providing any further explanation for its determination. An amended judgment was entered on September 12, 2018 in the principal sum of $1,450.

In a small claims action, our review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UDCA 1807; see UDCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d at 126).

At the outset, we note that we are mindful of the fact that, in its oral decision, the District Court specifically found, among other things, that defendant was entitled to a setoff of $1,000 due to damage to the floors. This setoff was not reflected in the original judgment, and there was no reference to it in the amended judgment or in the accompanying order amending the judgment. We give effect to the District Court's findings of fact in its oral decision, as opposed to the unexplained amounts awarded in the original judgment and the amended judgment.

With respect to the $1,000 cost to repair the floor, defendant testified that the damage to her floor had been caused by plaintiff. Defendant submitted into evidence an itemized receipt [*3]that was marked paid in full, which constitutes prima facie evidence of the necessity and reasonable value of the services rendered (see UDCA 1804). Although plaintiff presented conflicting testimony, the court apparently found the testimony of defendant to be more credible than plaintiff's. We find that the oral determination that defendant was entitled to recoup her $1,000 expense in repairing the floor is supported by the record.

Plaintiff argues in her reply brief, for the first time, that defendant was required under the lease to provide plaintiff with an "itemized written statement of the reasons for, and the dollar amount of, any of the security deposit retained by" defendant in order for defendant to be entitled to deduct those amounts from the security deposit. Plaintiff failed to make this argument at trial, or in her main appellant's brief, and there is no indication in the record that the lease was admitted into evidence at trial. Consequently, this argument is not properly before this court (see Matter of Erdey v City of New York, 129 AD3d 546 [2015]; U.S. Bank N.A. v Dellarmo, 128 AD3d 680, 681 [2015]).

As the parties had previously litigated defendant's claim for rent and plaintiff's claim for breach of warranty of habitability in the nonpayment proceeding, and no appeal was taken from the final judgment entered therein, plaintiff's arguments regarding the determination in that proceeding with respect to various breaches of the warranty of habitability are also not properly before this court.

Contrary to plaintiff's contention, there is no provision in the General Obligations Law requiring a landlord to return the full amount of the security deposit to the tenant upon the landlord's failure to notify the tenant in writing of the banking institution into which the security deposit has been placed.

It is undisputed that plaintiff had given defendant a $2,900 security deposit. It is also undisputed that, in a prior proceeding, defendant had been awarded a final judgment for $1,450, representing one month's rent. Although the fact that defendant had enforced the $1,450 final judgment is dehors the record, this fact is also undisputed, as both parties annexed the same bank statement showing that plaintiff's bank account had been levied upon, implicitly agreeing that the final judgment had been fully satisfied. Thus, in the oral decision, the District Court improperly deducted $1,450 from the award to plaintiff, because it was, in effect, awarding defendant that amount for a second time. As such, substantial justice (see UDCA 1804, 1807) requires that the amended judgment be modified to delete what appears to be that setoff.

In view of the foregoing, plaintiff is entitled to her $2,900 security deposit less the sum of $1,000, representing the cost to fix the damage plaintiff caused to the floors, for a net award to plaintiff of the sum of $1,900."

This was published in the NYLJ on March 27 from Judge Sunshine of Supreme Court and I am only copying a portion of it and supplying my own emphasis:

"....In many ways it might be helpful for attorneys and clients to know what really is in a judge’s mind when determining custody and visitation disputes. To look at it from my eyes and not theirs.

One of the important things I think about in making a custody determination is if this is how this individual is behaving while a case is pending or about to commence, how will they behave when it is over? Simply put, when you behave a certain way and there is a judge in the equation, how will a parent behave when I am no longer involved in their lives? With parents who are not obeying court orders, or where no orders exist are engaging in “self-help”, attorneys may and should remind them that the actions they take today and during this crisis could well be determinative or dipositive at the time of final decision by a judge. The concept is well embodied in New York case law. One of the factors a court must consider in determining custody is which parent is likely to provide access to the other parent.

Those who think that there is a lack of consequences to not conducting themselves appropriately during this crisis are wrong.  Jurists agonize over many custody and parenting time decisions.  It is one of the most difficult life-impacting decisions a jurist can make. Often the court is presented with two good people, each convinced that their approach is better, unable to compromise or feeling that compromise leads to a sign of weakness. Sometimes the dispute is really about money—not wanting to pay child support; wanting to control how the other party spends support and maintenance or just being convinced that they could do a better job than the other—and, unfortunately, sometimes it’s a power imbalance or domestic violence that defined a relationship.

How they conduct themselves at parenting during a time of a pandemic crisis, one of which we have never before seen, will shape their relationship with each other as divorced parents in the future, the relationship they have with their children and most importantly the relationship that their children have with them. As adults we are all frightened over the events of the past few weeks and the uncertainty of the future. Through the eyes of a child, their world turned upside down—their school disrupted and social interactions with friends now almost impossible. One of the only things that should and can bring comfort to a child are parents cooperating. Not only is it the best interest of the child—the time-honored standard—it is the best interest in their divorce and their relationship to come. These events will have a lasting impact. For the last generation, it was the Great Depression and World War II; for my generation, it was the assassination of President Kennedy; for my children it was 9/11; and for the generation of children today, it is the events that now surround us. Let them have fond memories of how parents conducted themselves. If parents do not conduct themselves appropriately and sensibly, their children will remember throughout their lives how they acted and so will the judge deciding the case. ….

If your clients are not listening to you and think they are not accountable for their conduct—might I suggest you send this to them."