Suffolk County Bar Association Blog Featured

Rate this item
(6 votes)

JUST ‘TRI’ IT: TRI-PARENT CUSTODY ARRANGEMENTS ARISE IN THE WAKE OF PARENTAGE BY ESTOPPEL

 By: Christopher J. Chimeri

Notes: Christopher J. Chimeri is a partner with Quatela Chimeri PLLC, with offices in Hauppauge and Garden City, and he focuses on complex trial and appellate work in the matrimonial and family arena. He sits on the Board of Directors of the Suffolk County Matrimonial Bar Association and is a co-founder and immediate past co-chair of the Suffolk County Bar Association's LGBTQ Law Committee. From 2014-2020, he has been peer-selected as a Thomson Reuters Super Lawyers® "Rising Star.”

 

The “legacy” of the Court of Appeals’ 2016 decision in Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1 (2016) (and its companion case, Jennifer L.D. v. Estrelitta A.C-C.) is that there are six pathways to parentage in New York State: (1) biology, (2) adoption, (3) equitable estoppel, (4) judicial estoppel, (5) presumption of legitimacy, and (6) pre-conception parentage agreement. But, what happens where two biological, adoptive, or judicially determined parents are in the picture and a third person petitions and meets one of the aforementioned six pathways?

Footnote 3 in Brooke S.B., in which the Court stated: “[w]e note that by the use of the term "either," the plain language of Domestic Relations Law § 70 clearly limits a child to two parents, and no more than two, at any given time” does not end the inquiry, and courts are presented with this issue presently, both at the trial and appellate level.

Suffolk County’s own Justice H. Patrick Leis was the first to confront such an arrangement in the post-Brooke era. In Dawn M. v. Michael M., 55 Misc. 3d 865 [Sup. Ct. Suffolk Cty. 2017], three parties were intimate with one another and they considered themselves a family and decided to have a child together (id. at 866). Two of the three parties engaged in unprotected sex to conceive the child but all three agreed that they “would all raise the child together as parents” (id. at 867). That court likewise granted a three-parent custody and visitation order, finding that “tri-custody is the logical evolution of the Court of Appeals’ decision in Brooke S.B., and the passage of the Marriage Equality Act and Domestic Relations Law § 10-a which permits same-sex couples to marry in New York” (id. at 870).

The Second Department, without directly speaking to ‘tri-custody,’ also permitted three (3) individuals to have custodial rights to the same children. In a matter in which a biological mother, biological father, and non-biological father all maintained custody/visitation petitions in the Family Court and in two (2) separate opinions, the Second Department permitted first all petitions to proceed to trial and then, a decision to stand in which all three (3) petitioners had parental access. Matter of Frank G. v. Renee P.-F., 142 A.D.3d 928 (2d Dep’t 2016), In re Giavonna F. P.-G., 142 A.D.3d 931 (2d Dep’t 2016), lv. denied, 32 N.Y.3d 910 (2016); Matter of Renee P.-F. v. Frank G., 161 A.D.3d 1163 (2d Dep’t 2018). In the numerous cases that make up Frank G., a biological father and his partner entered into a surrogacy agreement (that was ultimately held invalid) with the non-biological partner’s sister. The sister birthed twins and the children were raised as children of the biological father and the non-biological father. After the pair split, both the biological mother and the non-biological father sought custody in family court, the mother, alleging to be the biological mother of the children notwithstanding the surrogacy agreement, citing DRL § 124, and the non-biological, non-adoptive father, alleging facts that qualified him as a parent under the Brooke S.B. pre-conception agreement test. In one of many decisions involving this family, the Appellate Division held that [non-biological father] had standing to seek custody under Brooke S.B., while also affirming the biological mother’s parental rights, thus creating a tri-parent arrangement despite not using the term. The biological father appealed, arguing that Footnote 3 of Brooke S.B. prohibited this, but leave was denied.

Consideration of a third parent necessarily connotes reliance on either Family Court Act § 418(a), (“no genetic market shall be ordered in a filiation proceeding upon written finding that it is not in the best interests of the child on the basis of res judicata, equitable estoppel or the presumption of legitimacy of a child born to a married woman”), or the common law applications of equitable estoppel. The Second and Third Departments, in Joseph O. v. Danielle B, et al., 158 A.D.3d 767 (2d Dep’t 2018) and Matter of Shanna O. v. James P., 176 A.D.3d 1334 (3d Dep’t 2019), respectively denied genetic marker tests to petitioning purported biological fathers because they were sperm donors. However, neither Appellate Division prohibited tri-parent arrangements nor spoke on whether, under different circumstances, a genetic marker test would have been proper.

Most recently, however, in Tomeka N.H. v. Jesus R. and Brenda S., 2020 N.Y. Slip Op. 2015 (4th Dep’t 2020), the Court concluded, over a two-justice concurrence and a spirited dissent, that the same-sex partner (Tomeka) of a child’s biological mother (Brenda) lacked standing to seek a tri-custodial arrangement with the biological mother (even with Brenda’s consent) and the biological father (who objected). Tomeka and Brenda were engaged in 2009 but did not marry as it was not legally possible to do so in New York at the time. When their relationship ended, the mother conceived a child with biological father, who did nothing to establish his status for several years and barely saw the child. Conversely, even prior to birth, Tomeka, who had renewed her relationship with the biological mother, assumed all the duties and responsibilities of parentage, the women gave the child a hyphenated last name, and Tomeka held herself out as a mother for over 7 years even though she and Brenda again split in approximately 2012. In 2013, the mother filed a paternity petition against the father, who objected to a genetic marker but was unsuccessful and an order of filiation was entered. As between the biological parents, they had a joint custody order, but during all of which Tomeka continued in her role as a parent to the child. In 2017, Tomeka filed for custody and visitation rights, not to the exclusion of either biological parent and with Brenda’s support, but the Family Court granted the father’s motion to dismiss the petition for lack of standing, which the Fourth Department affirmed, relying on footnote 3.

Tomeka is presently seeking Court of Appeals review.

 

 

SCBA High School Scholarship Essay Contest Winner

Skye A. McMorris, Hampton Bays High School

The tides are changing: soon there will be the dazzling induction of a new generation as my peers are inaugurated as the next voices of America. An issue of great concern to me is the lack of participation in elections, particularly among younger generations. Voter turnout hasn’t been statistically high recently and it’s time for us to transcend the belief that recurring political circumstances cannot be changed. Apathy is the worst mindset for a nation to undertake. We won’t be ready for the challenges this country faces tomorrow unless the youth start paying attention today. It’s crucial to stay apprised of current events as we step into our roles as citizens; there’s no future triumph without preparation in the present. Casting a ballot is an essential form of being an active citizen. If we share our opinions on social media and shout into the void of the internet, why wouldn’t we use our voice to influence our democracy? This country was created for the very purpose of achieving the rights to have representation in government. Have we forgotten the mission of our Founding Fathers? These revolutionaries fought for the notions of freedom and inalienable rights. In the last century, women and African Americans were still battling against obstacles to be able to claim their right to vote in the United States. The Selma to Montgomery March and the creation of the Voting Rights Act were only a little over fifty years ago. I want to be able to celebrate the hundredth anniversary of women being able to vote knowing that not only women, but all citizens, are using this Constitutional right. America’s history is deeply entrenched in the ideals of representation and the right to vote,but it has been nearly forgotten as people take our political freedoms for granted. Under-representation threatens our nation’s commitment to liberty and unless we begin acting now, it will be too late to overcome the precipice of stagnation.This generation must be a bulwark against the pernicious influence of those who wish to see us fail. Think of how political norms in traditionally “red” or “blue” states could be broken if the people who felt that their vote wouldn’t make a difference decided that they would be the difference. The cycle of inaction repeats itself far too often and idle hands can’t forge a prosperous nation. The ultimate predictor of our success will be the tenacity with which weconfront our challenges and whether we truly become captains of our own fate. If the sands of time weather away political activism and fervor, then revolutions will fade away and we will continue to repeat history. The youth of this bright nation need to take charge because we are the most current and socially aware generation in these modern times. If we believe that we are the cutting edge of this multifaceted country, we must take our place in history as the next revolutionaries and take a vote on the nation we want to build.

 

 

Note:  Jarrett M. Behar, a partner of the firm Certilman Balin Adler & Hyman, LLP, practices in the areas of commercial litigation, real estate development and construction law.  He is the co-chair of the Suffolk County Bar Association Transactional and Corporate Law Committee, an Officer and Associate Dean of the Suffolk Academy of Law and the Vice-President of the Commack Union Free School District Board of Education.  For additional information concerning this article, please feel free to contact Mr. Behar at This email address is being protected from spambots. You need JavaScript enabled to view it.

COVID-19, Commercial Contracts and Conditions Precedent

The COVID-19 pandemic has raised many questions concerning the effect of a failure in performance under a commercial contract that directly or indirectly arose from the pandemic.  In this article, I will examine the potential defense that the COVID-19 pandemic prevented the performance of a condition precedent contained in a commercial agreement, with a special focus on the prevention doctrine, which I will explain in detail below. 

Many commercial contracts contain condition precedents that require one event to occur to trigger the required performance of a specified contractual obligation.  The Court of Appeals has defined a condition precedent as “an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises.”[i]  Conditions precedent may be express or implied.[ii]  Express conditions must use unmistakable language (such as “if,” “unless” or “until”) and require literal performance, while constructive conditions arise from general promise language and only require substantial performance.[iii]  An example of a typical express condition precedent contained in a commercial contract would be a requirement that certain zoning approvals are obtained before the obligation to close on a real property sale arises or an express notice requirement necessary to trigger a contractual default. 

The Prevention Doctrine

Often a situation arises where a plaintiff sues for breach of contract and the defendant asserts the lack of occurrence of a condition precedent as a defense.  This is where the prevention doctrine, a variation of the implied covenant of good faith and fair dealing inherent in every contract, often comes in to play.[iv]  Typically “a party to a contract cannot rely on the failure of another to perform a condition precedent where he has frustrated or prevented the occurrence of the condition.”[v]  This will require “‘active conduct’” on behalf of this party that prevents or hinders the fulfillment of the condition precedent.[vi]  Moreover, whether the claimed defense comports with the intention of the parties as embodied in their written agreement will also be a significant factor.[vii]

For example, in a specific performance action where the defendant alleged that the plaintiff had failed to timely obtain a required final subdivision approval, the Court of Appeals reversed a dismissal of that claim by the Appellate Division on the grounds that the plaintiff had sufficiently alleged that the defendant was to blame for the untimely approval.[viii]  Specifically, the plaintiff’s allegations that the defendant had failed to obtain title to the property until long after the contract was signed and that the defendant had caused additional delays by improperly declaring the plaintiff in default were sufficient to withstand a grant of summary judgment.[ix]

Examples in Practice

The Appellate Division, Third Department dealt with a complicated fact pattern centering around two business partners transferring interests in their car dealerships to avoid the potential revocation of their franchise status due to one partner being charged with murdering his wife.[x]  Following four trials, the plaintiff was eventually acquitted and sued the defendant for failing to return his shares.[xi]  The Appellate Division reversed the dismissal of the plaintiff’s claim due to the failure of the franchisor to approve the transaction, a condition precedent to the return of the shares. [xii]  The court found that the plaintiff’s allegation that the approval could not be obtained due to the defendant’s recalcitrance was sufficient to invoke the prevention doctrine.[xiii]

On the other hand, in a case involving a tenant that sought to delay its obligation to pay rent based on the alleged failure of the landlord to timely deliver the space, the Appellate Division, Second Department found that the prevention doctrine was inapplicable.[xiv]  Specifically, the tenant alleged that the landlord had requested modifications to the lease, which it claimed had frustrated the performance of the lease and the commencement of the tenant’s rent obligations.[xv]  The court found that the requested modifications had no bearing on the tenant’s ability to perform and, in fact, that the tenant had caused the delay by failing to provide the landlord with its space layouts in a timely fashion.[xvi]  As a result, the prevention doctrine did not apply and the tenant was found liable for the rent.[xvii]

In addition, the Appellate Division First Department has twice found that the failure of a trustee of a mortgage backed security trust to send a notice to cure to the third-party loan servicers did not constitute “active conduct” sufficient to trigger the prevention doctrine, especially where the plaintiffs also had the right to send such notices under the relevant pooling and service agreements.[xviii]  Similarly, where a third-party allegedly prevented the performance of the condition precedent, the prevention doctrine has been held to be inapplicable.[xix]  

How Will This Play Out in the Post-COVID-19 World?

In looking ahead towards how the prevention doctrine might apply to breach of contract lawsuits arising out of the COVID-19 pandemic, parties that are refusing to perform a contractual obligation due to an alleged failure of a condition precedent should examine their role in the failure of that condition being performed and whether application of the doctrine would be consistent with the parties’ intent as embodied in the relevant agreement.  For example, if a seller issues a time is of the essence letter to a purchaser that has not obtained necessary municipal approvals required to trigger an obligation to close under the contract, it should be examined whether the delay was caused, in whole or in part, by the conduct of the purchaser, the seller, the municipality, the lack of availability of non-essential professions or some other third-party.  The answer to that question will be probative as to whether the prevention doctrine may nullify a defense related to the non-occurrence of the condition precedent.  Similarly, if a payment is being demanded or withheld based on a claim that the failure of a required condition precedent was the fault of the other party to the contract, a determination should be made as to whether that position can be reconciled with the rest of the agreement and the parties’ demonstrated intent.  Either way, parties should be careful not to use the COVID-19 pandemic as a sword, rather than a shield, when looking to see if it excuses performance based on the failure of a required condition precedent.

[i] Oppenheimer & Co., Inc. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 690 [1995] (quotation omitted).

[ii] See id.

[iii] See id. 690, 691.

[iv] See Thor Properties, LLC v. Chetrit Group, LLC, 91 A.D.3d 476, 477 [1st Dep’t 2012] (citation omitted).

[v] ADC Orange, Inc. v. Coyote Acres, Inc., 7 N.Y.3d 484, 490 [2006] (quoting Kooleraire Serv. & Installation Corp. v. Board of Educ. of City of N.Y., 28 N.Y.2d 101, 106 [1971]); see also Willoughby Rehabilitation v. Webster, 134 A.D. 811, 815 [2d Dep’t 2015] (citing Graff v. Billet, 101 A.D.2d 355, 356, aff’d 64 N.Y.2d 899 [1985]).

[vi] Fixed Income Shares: Series M v. Citibank, N.A., 157 A.D.3d 541 [1st Dep’t 2018] (quoting Amies v. Wesnofske, 255 N.Y. 156, 163 [1931]).

[vii] Kooleraire Serv., 28 N.Y.2d at 106; see also Thor Properties, 91 A.D.3d at 476; Consolidated Edison, Inc. v. Northeast Utilities, 426 F.3d 524, 529 [2d Cir. 2005] (interpreting New York law).

[viii] See ADC Orange, 7 N.Y.3d at 490. 

[ix] See id. At 490-491.

[x] See Harris v. Reagan, 161 A.D.3d 1346, 1347 [3d Dep’t 2018].

[xi] Id.

[xii] Id. at 1349-1350.

[xiii] Id.

[xiv] See Lager Assocs. v. City of N.Y., 304 A.D.2d 718, 719 [2d Dep’t 2003].

[xv] Id.

[xvi] Id.

[xvii] See id.

[xviii] See Fixed Income Shares: Series M, 157 A.D.3d at 542-543; Blackrock Balanced Capital Portfolio (FI) v. U.S. Bank N.A., 165 A.D.3d 526, 527 [1st Dep’t 2018].

[xix] See MHR Capital Partners, 12 N.Y.3d at 646.

 

 

 

COVID-19, Force Majeure Clauses and Commercial Lease Rental Obligations

One need look no further than the empty parking lots all over New York State to see the financial impact of the COVID-19 pandemic.  With most businesses shuttered or severely limited as result of Governor Cuomo’s Executive Order 202.6, many commercial landlords and tenants are thinking about the ability to collect and pay rent.[i]  The question then arises:  what legal obligations do tenants have through the duration of the Executive Order and the financial downturn that has resulted from the pandemic?  Similarly, what rights do landlords have to enforce the terms of their leases?  A review of caselaw and then a look at the specific language of the relevant lease will be instructive. 

First and foremost, under New York law, a commercial lease is interpreted under the same general analysis that applies to the construction of commercial contracts.[ii]  The Court of Appeals has stated multiple times, most recently in its 2019 decision that upheld the enforceability of a contractual waiver of a tenant’s right to seek a Yellowstone injunction, that “[t]his principle is particularly important in the context of real property transactions, where commercial certainty is a paramount concern, and where … the instrument was negotiated between sophisticated counseled business people negotiating at arm’s length ...”[iii]  In addition, as you would expect, the agreement to pay rent on a date certain is considered to be a material term of the lease.[iv]  Moreover, the Court of Appeals has been particularly loathe to overturn duly negotiated contractual terms, a result that would deprive one party of the benefit of their bargain.[v]

Based on that general framework then, the obligation to pay rent during the pendency of Executive Order 202.6 and the overall COVID-19 economic slowdown will likely be resolved by the terms of the relevant lease.  Specifically, the two questions that will need to be answered are:
(1) does the lease contain a force majeure clause; and, if so, (2) what situations does that clause cover? 

Force majeure clauses, which excuse nonperformance of contractual obligations due to circumstances that are beyond the parties’ control, are generally interpreted extremely narrowly.[vi]  It thus stands to reason that the absence of such a clause will preclude any as-of-right ability to obtain a rent abatement due to Executive Order 202.6 or the COVID-19 pandemic.  Indeed, the Appellate Division, Second Department once rejected a commercial tenant’s claim that an order of the Federal Petroleum Coordinator had frustrated the purpose of its lease and noted that the terms of lease were not rendered impossible where it remained in possession of the premises.[vii]

Even if the operative lease does contain a force majeure clause, expect it to be strictly construed by any court analyzing whether such clause will provide a defense to a tenant that has failed to pay its rent.  Thus, even where the operative force majeure clause provided that the tenant could be relieved of its obligations due to a “plant shutdown,” this clause did not apply where the plant shut down at issue was voluntary as a result of financial considerations brought about by new environmental regulations.[viii]  Similarly, where the relevant clause applied to governmental shutdowns, the parties were still ordered to conduct discovery as to whether the governmental shutdown at issue was due to the tenant’s failure to maintain the building and thus foreseeable, which would render the force majeure clause inapplicable.[ix]  As expected, a mere downturn in the economy is insufficient to invoke a force majeure clause even where it is broadly worded to include “‘any cause whatsoever’ beyond the party’s control …”[x]

Conversely, in cases where the use of the force majeure clause to avoid the payment of rent has been upheld, the circumstances have squarely fit within the strict language of the clause, were unforeseeable and outside of the parties’ control.  Thus, the Town of Hempstead amending its zoning code to restrict the operation of the tenant’s business was found to excuse the tenant’s performance where the relevant clause included governmental action that prevented either party from performing its obligations under the lease.[xi]  Likewise, where the clause excused performance due to a labor dispute, a league-wide lockout by the Commissioner of the National Hockey League was sufficient to excuse performance.[xii]  Finally, where the force majeure clause agreed to by the parties included “governmental prohibitions” as an event that would excuse performance, it was held that a judicial temporary restraining order was sufficient to invoke that clause.[xiii]

The final piece of this analysis relates to the current state of judicial remedies in New York State.  On March 20, 2020, the Governor issued Executive Order 202.8, which created a 90-day moratorium on residential and commercial evictions.  In addition, on March 22, 2020, the Chief Administrative Judge of New York State issued Administrative Order AO/78/20, which closed the courts to all but a narrow list of “essential matters” that are mostly limited to life and safety concerns.  Thus, a landlord’s ability to collect rent from a recalcitrant tenant is practically limited for the time being in that a breach of contract action to collect unpaid rent cannot be brought until the courts are reopened for general filings.  In addition, an eviction proceeding cannot be commenced until June 20, 2020 at the earliest and will likely be slowed down by a flood of actions when finally permitted.  These prohibitions have the potential to create a short-term monetary squeeze on landlords that have their own lending, taxing or fiduciary responsibilities.

Those practicalities aside, and assuming that the parties to a commercial lease have somewhat equal bargaining power, the straightforward legal principle is that only a force majeure clause that clearly applies to governmental acts such as Executive Order 202.6 will likely have a chance of excusing a tenant’s obligation to pay rent if that tenant’s business is truly and completely shuttered.  A situation where a tenant is still able to use his premises for remote business, shipping or internet and telephone orders, for example, will likely not be enough to invoke a force majeure clause unless that clause explicitly applies to partial abatements.  The caveat to this conclusion is that it is subject to further acts of the Governor or the New York State Legislature that may provide relief, a result that cannot be completely ruled out.  However, the law as it stands is clear, a tenant has no right to a common law force majeure abatement of its obligation to pay rent, and any such clauses contained in the relevant lease will generally be strictly construed. 

[i] See <https://www.bloomberg.com/news/articles/2020-03-24/u-s-retailers-plan-to-stop-paying-rent-to-offset-virus-closures>; <https://www.newsday.com/business/coronavirus/retail-tenants-landlords-rent-virus-1.43632329>

[ii] See Madison Ave. Leasehold, LLC v. Madison Bentley Assocs. LLC, 8 N.Y.3d 59, 66 [2006].

[iii] 159 MP Corp. v. Redbridge Bedford LLC, 33 N.Y.3d 353, 359 [2019] (quoting Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y.3d 470, 475 [2004]); see also Madison Ave. Leasehold, LLC, 8 N.Y.3d at 66; South Rd. Assoc., LLC v. International Bus. Machs. Corp., 4 N.Y.3d 272, 277-728 [2005].

[iv] See Madison Ave. Leasehold, LLC, 8 N.Y.3d at 65. 

[v] See 159 MP Corp., 33 N.Y.3d at 359 (citations omitted).

[vi] See Kel Kim Corp. v. Central Markets, Inc., 70 N.Y.2d 900, 902 [1987].

[vii] See Knorr v. Jack & Al, Inc., 179 Misc. 603, 604 [2d Dep’t 1942].

[viii] Macalloy Corp. v. Metallurg, Inc., 284 A.D.2d 227, 227-228 [1st Dep’t 2001].

[ix] Goldstein v. Orensanz Events LLC, 146 A.D.3d 492, 492-493 [1st Dep’t 2017].

[x] Urban Archaeology Ltd. V. 207 E. 57th Street LLC, 68 A.D.3d 562, 562 [1st Dep’t 2009].

[xi] Burnside 711, LLC v. Nassau Regional Off-Track Betting Corp., 67 A.D.3d 718, 719-720 [2dDep’t 2009].

[xii] Bouchard Transp. Co., Inc. v. New York Islanders Hockey Club, LP, 40 A.D.3d 897, 898 [2d Dep’t 2007].

[xiii] Reade v. Stoneybrook Realty, LLC, 63 A.D.3d 433, 434 [1st Dep’t 2009].

 

Contract Law: The COVID-19 Shutdown and the Impossibility of Performance Defense

As we are all painfully aware, Governor Cuomo has issued an Executive Order directing that all “non-essential” businesses statewide terminate their in-office personnel functions. In addition to the public health and policy issues that arise from this Order, a myriad of legal questions also follow.  While there are no concrete answers to many of these questions given the unprecedented nature of the COVID-19 pandemic, it is helpful to look to caselaw to anticipate how these issues may play out in the business disputes that are sure to emerge from this situation.  One such issue is the applicability of the defense of impossibility of performance that may be asserted against a party seeking to enforce its contractual rights against another party that has failed to perform its obligations. 

General contract law in New York (and most places) provides “that once a party to a contract has made a promise to perform, it must follow through or be liable for damages, even when unforeseen circumstances make that performance burdensome.”[i]  The defense of impossibility of performance has been typically applied very narrowly in light of the view that a contract, when distilled down, is really just an arm’s length allocation of risks between the parties.[ii]  As a result, the Court of Appeals has recognized that this defense should only be available in “extreme circumstances” and “only when the destruction of the subject matter of a contract or the means of performance makes performance objectively impossible.”[iii]  In addition, the event that produced the impossibility must not have been something that could have been foreseen or guarded against in the contract.[iv]

In a general sense, the COVID-19 pandemic was not foreseeable to parties that entered into contractual agreements through most of 2019. However, can the same be said about contracts that were entered into after the first case of COVID-19 was reported in China around December 31, 2019 or after the first case was reported in the United States around January 21, 2020?[v]  These questions will undoubtedly have to be answered by the courts as businesses become unable to perform their contractual obligations as a result of the COVID-19 pandemic and the ensuing governmentally-ordered restrictions.

One case resulting from a governmental act occurred in Orange County, New York when the purchaser in a sale of real property contract attempted to rescind the contract after the relevant jurisdiction enacted a moratorium on subdivision approvals and then enacted a revised zoning code that prohibited the type of subdivision contemplated in the agreement.[vi]  The Appellate Division, Second Department affirmed the trial court’s dismissal of the action and held that it was not unforeseeable that the town would change its zoning code in a manner rendering the planned subdivision impossible.[vii]  The court partially relied on its holding in an earlier case that found that sophisticated developers should either anticipate such a change or guard against it in the terms of the underlying contract.[viii]

Similarly, when a prospective purchaser attempted to use the impossibility of performance defense based on the loss of nearly of all of his personal assets as a result of the Bernie Madoff scandal, the court found that the default should not be excused and that the seller was entitled to retain the purchaser’s down payment as liquidated damages for the breach.[ix]

In a case concerning an executive order, the Appellate Division, First Department dealt with a company that had purchased insurance against an air traffic controller’s strike that would disrupt its necessary distribution chain.[x]  The policy provided that there would be no liability to the carrier unless the strike continued for seven days.[xi]  When a strike eventually occurred, it was unforeseeably terminated by declaration of President Reagan firing all of the air traffic controllers three days after the strike began.[xii]  Although the court found that there have been circumstances where governmental acts have truly made performance impossible, and that there was no way that the company could have reasonably anticipated that the President would end the strike by firing all of the air traffic controllers, the facts here did not constitute a sufficient impossibility of performance defense.[xiii]  Instead, the court relied on a strict interpretation of the contractual provision as written: three is less than seven.[xiv]

This is not to say that there is not law to support the use of the defense when an action truly renders performance impossible. The Appellate Division, First Department also dealt with a transportation company that had contracted with the City of New York to furnish, among other things, tugboat services for sanitation barges.[xv]  Subsequently, there was a portwide strike and there was no practical way for the company to provide the contracted for tugboat services to the City.[xvi]  As a result, the court found that the transportation company may not be liable to the City for its failure to provide the services as result of the impossibility of its performance and it reversed the trial court’s grant of summary judgment in favor of the City.[xvii]

Finally, in a case arising from the tragedy that took place on September 11, 2001, a court held that the untimely cancellation of an African safari could be excused by the impossibility of performance defense based on a claim that timely communicating the cancellation from Staten Island was impossible in the immediate aftermath of the terrorist attacks.[xviii]

Ultimately, the underlying facts leading to the assertion of an impossibility of performance defense will be determinative as to its potential success. It seems clear that the financial consequences of the COVID-19 pandemic will not, standing alone, be enough to excuse performance. However, if the performance is truly rendered impossible by the closure of a business that cannot operate as a result of the Governor’s stay-at-home order, then it may be possible that contractual performance will be excused, or, at the very least, the time to perform tolled until performance is no longer impossible.

 

[i] See Kel Kim Corp. v. Central Markets, Inc., 70 N.Y.2d 900, 902 [1987].

[ii] See id.

[iii] See id.

[iv] See id. (citing, inter alia, 407 E. 61st Garage v. Savoy Fifth Ave. Corp., 23 N.Y.2d 275 [1968]).

[v] See <https://www.nytimes.com/article/coronavirus-timeline.html>

[vi] See RW Holdings, LLC v. Mayer, 131 A.D.3d 1228, 1229 [2d Dep’t 2015].

[vii] See id.at 1230.

[viii] See id. (citing Pleasant Hill Developers, Inc. v. Foxwoods Enters., LLC, 65 A.D.3d 1203, 1206 [2d Dep’t 2009]).

[ix] See Sassower v. Blumenfeld, 24 Misc.3d 843, 845-46 [Sup. Ct. Nassau County 2009]. 

[x] See Metpath Inc. v. Birmingham Fire Ins. Co. of Penn., 86 A.D.2d 407, 408 [1st Dep’t 1982].

[xi] Id. at 409-410.

[xii] Id. at 408.

[xiii] See id. at 411-413. 

[xiv] See id. at 413-414.

[xv] See City of N.Y. v. Local 333, Marine Division Int’l Longshoreman’s Assoc., 79 A.D.2d 410, 411 [1st Dep’t 1981].

[xvi] Id. at 413. 

[xvii] See id. at 414.

[xviii] See Bush v. ProTravel Int’l, Inc., 192 Misc.2d 743, 7753-754 [Sup. Ct. Richmond County 2002].

SO YOU WANT TO BECOME A RESIDENTIAL LANDLORD, TIMES ARE A CHANGING

by Irwin Izen - Irwin S. Izen, is a partner at Falcon, Rappaport & Berkman, PLLC with offices at 265 Sunrise Hwy., in RVC and 655 Third Avenue in NYC specializing in transactional, real estate and business law.

This month’s transactional law column focuses on your client who inherits his uncle’s Port Jefferson single family home and consults with you on renting the property.

Ownership of the property is the first inquiry. Has the deed been transferred from the estate to your client, the beneficiary ?  While this may seem like a simple question, confirming ownership upon a review of the deed will no doubt generate further inquiry into limiting liability and how title should be held.

Owning the property individually is risky, but with sufficient insurance in place, is a simple option, particularly if financing the property is contemplated. A clever negotiating strategy is to allow for the permitted transfer into a single member entity, owned by your client.  Absent this provision, most clients will want you to answer the “age old” question of how do I limit my liability ?  Whether a LLC or Sub S Corp., both provide limited liability, but either way a separate ownership entity is recommended. While providing limited liability, there are some unintended business consequences resulting from separate entity ownership.

Once an entity, owns the property, a normal homeowners policy may be unavailable and a more costly commercial policy covering lost rent should be explored. Exemptions are inapplicable and other assessment issues arise with this type of ownership.  Along these same lines, an inquiry with the local “town rental permit” office is likely to produce a formal application and fee to be paid.  For the novice Landlord, that converted garage will be a problem and counsel will best be served to make such an inquiry if assisting in this application.  All existing structures must be in compliance, including the installation of smoke and CO2 detectors and providing ingress and egress access where necessary.

The rental permit process should not be ignored. Some towns have implemented local ordinances prohibiting realtors from listing illegal rentals and assessing fines if violated.  Likewise, for that projected AirBnB waterfront property flashing $$$ signs, what if any transient rental ordinances will the property be subject to.

Alas, with a proper permit in hand your client now seeks out qualified renters. Here are some cautionary thoughts under the newly enacted Housing Stability and Tenant Protection act of 2019 (HSTPA):

  1. The first indicia of a successful Landlord /Tenant relationship is the tenant’s ability to pay the rent. An entire tenant screening industry has emerged to assist landlords in evaluating candidates throughout the application process. A process which now prohibits screening from including any court or other summary proceeding inquiries. Other HSTPA provisions eliminate application fees while limiting background check charges and permitting tenants to bring their own background check if within 30 days of renting [RPL sec. 227-f, 238-(a)(1)(B)]. Furthermore, the HSTPA has created a rebuttable presumption that viewing court records or other negative screening information as it relates to prior summary proceedings, will subject the Landlord to possible civil penalties.
  2. Written leases should now be drafted acknowledging the newly enacted pre occupancy joint inspections, the security deposit limit [now limited to one month’s rent GOL sec. 7-108 (1-a)], the rent increase restrictions (if more than a one year term), the late fee cap (RPL 238-a(2)} and any other statutory requirements.
  3. A landlord may no longer make an oral rent demand. A written demand served on 14 days notice is now required for non payment. Service of the rent demand, if required to be via a process server, will increase costs and further delay the eviction.
  4. The tenant’s ability to pay right up until a hearing or the adjudication of the matter will render any non payment proceeding “moot”. No longer will your client be able to “refuse payment”and terminate the tenancy.  
  5. Upon vacating the premises, any claim to a portion of the security deposit must be detailed and sent in writing to the tenant with the burden of proof on the Landlord to prove the “reasonableness” of the security deduction [GOL sec. 7-108 (1-a)]. Good luck on getting a forwarding address upon the tenant vacating and expect every tenant to state “I never got the detailed letter,” so having on file a more permanent secondary “address” is suggested. You know that any certified mail sent will undoubtedly be returned unclaimed.  
  6. Rent has a definition and limits as per the HSTPA and receipts must be given for payments (RPL sec. 235-e).
  7. Mitigation is now a good faith obligation on behalf of the Landlord (no doubt a case by case basis which will clog the District Court) [RPL 227-e]. A tenant who vacates in violation of a rental agreement can allege the Landlord made no effort (regardless of any such effort) to re rent the premises and further muddy the court’s calendar. Landlords (caveat, those with proper rental permits) should be encouraged to at least list or advertise for rent and keep this documentation available in a mitigation hearing.                                                          
  8. Other procedural changes under the HSTPA affecting your client as a new landlord are related to the eviction process (a landlord’s worst nightmare). The 72 hour notice has been replaced with a 14 day notice. An adjournment by the tenant is now no less than 14 days unless agreed to between the parties and perhaps most distressing is the discretionary stay provisions of RPAPL sec. 753 which can be extended under certain hardships.                                                                                                                        
  9. With the landscape of Landlord/Tenant residential practice set to change under the HSTPA, the transactional attorney should get ahead of the change and review your residential leases for compliance while making sound suggestions in furtherance of anticipated summary proceedings which may now become more problematic. As with any new statute, the ability to argue a particular fact pattern in light of the new HSTPA affords you the opportunity to set the tone for how the HSTPA will be interpreted. Knowing what factual argument will be most persuasive under the new statute allows you to control the narrative and be better prepared for your action in the TransAction.

CIVILITY…CAN IT BE RESUSCITATED?

By Harvey Besunder, Esq., & Justin M. Block, Esq.

                         With civility being far less prevalent than ethical issues these days, it’s no wonder that our members tend to forget that the full name of this committee is “Professional Ethics and Civility”.  A vast majority of the committee’s time is spent addressing ethical inquiries submitted by our members.  Certainly, providing guidance on ethical issues is a very important task, and nobody could argue that it should take a back seat to anything.  It is critical, however, that we remember that civility should similarly be a central focus of the committee, and the bar in general.

                        Justice Ruth Bader Ginsburg famously said “You can disagree without being disagreeable.”  Never has this advice been more necessary that in the practice of law today.

                        It is almost axiomatic these days that, at some point, an adversary will shift from making legal arguments in support of his or her clients to ad hominem attacks, either in pleadings or in correspondence, spewing venom and invective about us, our legal skills, or perhaps even our backgrounds and ethnicity.  The natural instinct is to react in kind, pointing out to the Judge all of the things about our adversary that makes him or her a miserable human being and a terrible lawyer.  Oh, and he or she has bad breath too.  Our advice:  stop, take a moment, and remember that what we say and how we say it reflects on us. 

                        We are not recommending that you completely stifle your need to scream, pound your desk, or vent.  Those are not only necessary, they are expected.  Our advice is, however, to do that privately and not in legal papers or letters to the Court. Instead, take the high road.  As has so often been said, we are lawyers;  we don’t react, we respond.

                        In this regard, Judges are no different from our elementary school teachers.  When they see bad behavior, they will address it.  The role of the Judge is to decide cases, not to mediate disputes between lawyers who are unable to have normal civil discourse.  To compel our judiciary to try to get us to “talk nice to one another” not only distracts them from the task at hand, it also diverts already strained judicial resources.  It has been our experience that Judges are loathe to impose sanctions except in more extreme cases.  These days, with the economics of the legal profession adding stress to our lives, we posit the following question:  Who wants to take a chance on having a Judge decide we should take money out of our pockets because we were acting badly?

                        Similarly, having had numerous conversations with various Judges in many different courts, we have learned that it is virtually unanimous among the judiciary that vitriolic attacks on other lawyers (or Judges, for that matter) is never a winning strategy.  Judges are well aware that this sort of behavior is often the refuge of a lawyer who has no legitimate legal position to argue on behalf of his or her client.  The point of litigation is to convince the Judge that your position is correct.  When we stray from our lane and veer into the dangerous territory of incivility, we distract the Judges from our advocacy and cause them instead to focus on our own behavior.

                        That is not to say that improper or unethical conduct should not be brought to the attention of the Court or, under appropriate circumstances, the various committees governing the conduct of lawyers.  They absolutely should, provided that, under the current Rules of Professional Conduct, making a complaint is both necessary and appropriate.

                        Too many of us believe Carl Sandburg was right when he said “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”  In fact, the common corollary to this is “And when you are pounding the table and yelling like hell, make sure to throw some personal insults in there.  That’ll show ‘em.”  Again, not a way to prevail or even to distinguish ourselves, at least in the way we would like.

                        We have all heard it, whether from our inner voice or a mentor along the way.  Act like a lawyer.  Being mean-spirited and deviating from advocacy to abusive behavior is not acting as a lawyer.   Rather, it is childish bullying, and it has no place in the practice of law.

                        Way back in 1997, the Courts promulgated the Standards of Civility for the legal profession.[i]  In April of this year, the New York State Bar Association approved an update.  While we realize that these Standards are aspirational, we submit that the profession should be aware of them, and should strive to comport with these standards.  To paraphrase one of our favorite sayings, civility is not a character flaw.

 These can be found online at https://www.nycourts.gov/LegacyPDFS/IP/jipl/pdf/standardsofcivility.pdf

Note: Justin M. Block is of counsel to Sinnreich Kosakoff & Messina, LLP in Central Islip.  In addition to being the immediate Past President of the Suffolk County Bar Associatiion, he has been a member or chair of numerous committees, including over 20 years on the Professional Ethics and Civility Committee, serving twice as co-chair.  He is a frequent panelist at ethics programs.  Mr. Besunder served as President of the Suffolk County Bar Association, and has been a member and/or Chair of that Association's Condemnation Committee, Grievance Committee, Judiciary Committee, and Bench-Bar Committee.

 

 

 

 

 

 

 

 

Steady Referrals at Your Fingertips

by Paul Devlin, Esq.

Paul Devlin is an associate at Gentile & Tambasco where his practice focuses on personal injury litigation.  He is an active member of the SCBA serving on the Board of Directors; as co-chair of the membership services and activities committee and as a volunteer for the Suffolk Academy of Law.  

Paul Margiotta built his entire practice using the Lawyer Referral and Information Service (LRIS). The practice of law was a second career for him. Prior to obtaining his law license, Paul was president of the Nassau County Court Officer’s Benevolent Association, representing all Nassau County Court Employees. He wanted to hit the ground running in his new career so he accepted a position with the Town of Babylon Special Prosecutor’s office. One of the perks of the job was that he would be permitted to moonlight, i.e., he could work there full time and simultaneous build his solo practice. The biggest hurtle he faced in solo practice was client acquisition. How could he be at work all day and expect clients to find him and come to him at night? To solve this problem, he turned to the LRIS. This decision paid off in spades. The steady stream of clients that came to him through the LRIS were not fickle. They had called the SCBA and were serious about hiring a lawyer. In terms of hard numbers, he received about 7 referrals per week, and of those referrals he took on about 2-3 clients per week. The practice areas of the inquires varied from civil rights to school law, municipal law, contracts, litigation, and even personal injury. After a couple of years of this, he found that he was getting just as much work from prior clients who recommended him as he was getting from the LRIS. Today, he has a thriving practice in Bay Shore, The Margiotta Law Firm. He is also the Executive Director of the Suffolk County Traffic and Parking Violation Agency. He continues to participate in the LRIS and is now co-chair of the LRIS committee, along with former SCBA President Donna England.

For those readers interested in the LRIS but want to know more, the following is an overview of the system. Potential clients get routed to the LRIS in a few different ways. Countless attorneys have told me that when they have conducted an intake but are not interested in taking on a potential client, they recommend that the potential client call the Suffolk County Bar Association (SCBA), which routes them to the LRIS. Also, the SCBA has posted several signs in courthouses advising potential clients that they may call the SCBA if in need of a lawyer. The newest addition to the LRIS is The Community Lawyer. It is a cloud-based platform which has been in effect for just over a year. Potential clients and attorneys can access the system at scba.community.lawyer. Attorneys who are registered with the LRIS can update their profiles which are visible to potential clients. They can also upload their required proof of malpractice insurance and manage referrals they have received. When potential clients access the Community Lawyer website, they are asked a few questions to narrow their inquiry by location, practice area, and urgency. The potential client enters a brief description of their matter, and is given the option to pick one of up to three lawyers in the system. If potential clients call the SCBA rather than going online, they are routed to the administrator of the LRIS, Edith Dixon. She enters them into the Community Lawyer system manually and puts them through the Community Lawyer process just as if the potential client were to do the same for themselves online.

After a client chooses a lawyer, the lawyer will receive an alert and is responsible for arranging a half-hour consultation. The fee for the consultation is $25. The lawyer must collect the fee and turn it over to the SCBA. Payment to the SCBA may be made over the Community Lawyer platform. If the client retains the lawyer, the remainder of their attorney-client relationship is independent of the LRIS. If the attorney or client decides do not engage past the consultation, the client has the option to go back into the system and try another lawyer. In the last 12 months the LRIS has received approximately 3,500 inquiries. Below is a list of practice areas regarding inquiries in order of most popular to least popular. Only SCBA members in good standing are eligible to register for the LRIS for an annual fee of $125 plus $40 per practice area. Interested members may obtain an application in person at the SCBA or call 631-234-5511.  

Family, Landlord Tenant, Criminal, Social Security (Disability and Overpayment), Matrimony (Modest Means),Real Property,Negligence,Malpractice...and more.  Check the scba.com.community.lawyer for additional practice areas.

INSIDE THE COURTS

By: Hon. Stephen L. Ukeiley

 LANDLORD AND TENANT LAW: NEW LEGISLATION

 

            This is the first of a two-part series on recent law changes regarding rental properties. This Part concentrates on changes to the Real Property Actions and Proceedings Law (RPAPL) and provides an overview of some of the new laws.  Part II will focus on changes to the Real Property Law (RPL) and the General Obligations Law (GOL).

The Housing Stability and Tenant Protection Act of 2019

            On June 14, 2019, the Statewide Housing Stability and Tenant Protection Act of 2019 (the Act) was signed into law.  Part M within the Act, titled The Statewide Housing Security and Tenant Protection Act, pertains to all premises, regulated and unregulated, except where indicated otherwise in the statute.

  1. Rent Re-Defined

            With respect to residential premises, the term “rent” is now defined as “[t]he monthly or weekly amount charged in consideration for use and occupation of a dwelling pursuant to a written or rental agreement” (RPAPL § 702).  The statute further provides that “no fees, charges, or penalties other than rent” may be sought in a residential non-payment proceeding, thereby limiting the money judgment.  A lease provision to the contrary is void (id.).

  1. Payment of Rent Prior to Hearing (Non-payment Proceeding)

            RPAPL § 731 has been amended to provide that the payment of rent prior to the hearing renders a non-payment proceeding moot.  In other words, the full payment made prior to an adjudication on the merits equates to making the landlord whole, and, as a result, the tenancy continues.

  1. Foreclosed Premises

            With regard to holdover proceedings, the Act provides that where an occupant is evicted following either a property or tax foreclosure, the Court records relating to the lessee are sealed and “deemed confidential” (RPAPL § 757).  Unlike a non-payment proceeding, the occupant in a post-foreclosure holdover proceeding may not avoid the eviction by paying the amount awarded prior to the issuance of the judgment because the holdover proceeding was commenced for reasons other than the non-payment of rent.

  1. Rent Demand

            A Landlord may no longer make an oral rent demand (RPAPL § 711(2)).  Instead, a written rent demand must be provided on at least fourteen (14) days notice (formerly was three (3) days) demanding “[t]he payment of the rent, or possession of the premises”.  The rent demand must be formally served (id.).

  1. Proceeding Against the Estate

            The legislation permits a landlord to commence a summary proceeding against the Estate where the tenant passes away during the tenancy and rent is owed.  Any other occupant lawfully in possession may be named in the non-payment proceeding, but the warrant may not be used to remove them (RPAPL § 711 (2)).  The new law eliminated the requirement that a landlord wait three (3) months prior to commencing a summary proceeding where an administrator had not been named.

  1. Return Date and Service

           RPAPL § 732 now provides that where required by the rules of the local Appellate Division, the Notice of Petition and Petition in a non-payment proceeding is returnable within ten (10) days of service (was previously five (5) days).  If the tenant fails to appear, a judgment must be entered in favor of the landlord and, absent a circumstance permitting a longer stay pursuant to RPAPL § 753, the Court may stay issuance of the warrant of eviction up to ten (10) days from the date of service (RPAPL § 732(3)).  If the landlord prevails and the tenant appears, then the Court may stay issuance of the warrant of eviction up to five (5) days from the date of the determination (RPAPL § 732(2)).

            Otherwise, the Act amends the service provisions by eliminating the “5 and 12" Rule.  Instead, a landlord must cause the Notice of Petition and Petition to be served via formal service no fewer than ten (10) days but not more than seventeen (17) days prior to the return date (RPAPL§ 733).

  1. Answer

            Pursuant to RPAPL § 743, a tenant is not required to interpose an Answer.  Rather, the tenant may assert an Answer on the return date, either orally or in writing, and the Answer may include any legal or equitable defenses, and/or counterclaims.  The new legislation eliminated the opportunity to demand an Answer when the Notice of Petition and Petition were served between eight (8) and twelve (12) days prior to the return date.

  1. Adjournments

            Each party in a summary proceeding is entitled to one (1) adjournment.  RPAPL § 745(1) was amended to provide that when issue is joined (e.g., return date), the Court must grant a request for an adjournment, and, absent consent to a shorter period, the adjournment must be not less than fourteen (14) days.  The law further provides that “[a] party’s second or subsequent request for adjournment” is left to the discretion of the Court (id.).

  1. Unlawful Evictions

            Only the Sheriff, pursuant to a lawful order of the Court, may return possession of the property to the landlord. An unlawful eviction (e.g., the use of self-help and changing of the locks without the tenant’s permission or providing access) is now classified as a Class A Misdemeanor (up to one (1) year in jail).  An offender may be liable for civil penalties of $1,000 - $10,000 for each violation (RPAPL § 768).

  1. Warrant of Eviction

            The warrant of eviction must state the earliest date the eviction may occur (RPAPL § 749(1)).  In addition, the 72-Hour Rule has been eliminated.  Now, the Sheriff must formally serve a Fourteen (14) Day Notice prior to performing the eviction, and the warrant must be executed on a business day (Monday - Friday) between sunrise and sunset (RPAPL § 749(2)(a)).

  1. Stays

            RPAPL § 749(3) permits the Court, for good cause shown, (1) prior to execution, to stay execution of or vacate the warrant of eviction or (2) following execution, to restore the tenant to possession.  The provision further provides that where the full amount of rent is paid or deposited with the Court prior to the execution of the warrant, the warrant must be vacated unless the landlord demonstrates that the rent had been withheld in “bad faith”.

            RPAPL§ 753 governs stays on “issuance” of the warrant of eviction and collecting costs regarding residential premises for up to one (1) year (was previously six (6) months).  To grant the stay, the occupant must demonstrate: (1) the premises are used for residential purposes (other than hotels or rooming houses); (2) the application is made in good faith; and (3a) “due and reasonable efforts” were unsuccessfully taken to find similarly suitable alternative housing in the neighborhood or (3b) denial would cause “extreme hardship” to the applicant or the applicant’s family (RPAPL § 753(1)).  Outside a city of more than one (1) million residents, for those with a school-aged child, the term “neighborhood” is defined as “school district”.

            If the summary proceeding was predicated upon a breach of the rental agreement, the Court must stay issuance of the warrant of eviction for thirty (30) days to afford the tenant an opportunity to cure the breach (RPAPL § 753(4)).  A lease provision waiving the occupant’s rights under RPAPL § 753 is void as against public policy (RPAPL § 753(5)).

            Pursuant to RPAPL § 756, a summary proceeding involving residential property is stayed where the utilities are shut off due to the landlord’s failure to pay.  The stay remains in effect until such time as the utilities are paid and restored to “working order” (RPAPL § 756).

            In closing, the changes to the RPAPL are substantial. Counsel should thoroughly review the new laws and adjust accordingly.

Note: The Honorable Stephen L. Ukeiley is a Suffolk County Acting County Court Judge and Suffolk County District Court Judge. Judge Ukeiley is also an adjunct professor at the Touro College Jacob D. Fuchsberg Law Center and the author of numerous legal publications, including his most recent book, The Bench Guide to Landlord & Tenant Disputes in New York (Third Edition)©.

 

* The information contained herein is for informational and educational purposes only. This column should in no way be construed as the solicitation or offering of legal or other professional advice. If you require legal or other expert advice, you should consult with an attorney and/or other professional.

 

Read 5371 times

Leave a comment

Make sure you enter all the required information, indicated by an asterisk (*). HTML code is not allowed.