Wednesday, December 24, 2014

Merry Christmas

Merry Christmas to all who celebrate. To those who don't, have a wonderful and peaceful last week of 2014.

Friday, December 19, 2014

The Holiday Hustle

Less than a week to go before the holidays and everyone has an emergency that they appear to have neglected for months...

Monday, December 15, 2014

A Long Visitation Saga Comes to an Interim Closure - Part 2

A case that I have been involved with in a variety of capacities over the last decade reached another crossroads at the Appellate Division last week, with two appeals being decided by the Court. Here's the second of two decision handed down:

Decided on December 10, 2014 
Appellate Division, Second Judicial Department 

(Docket No. V-16300-10/12M) 

Appeal from an order of the Family Court, Queens County (Stephen J. Bogacz, J.), dated September 24, 2013. The order, upon, in effect, granting the father's motion to confirm a report of a Referee (Julie Stanton, Ct. Atty. Ref.), made after a hearing, and upon, in effect, denying the mother's cross motion to reject the Referee's report and for a new hearing, granted the father's petition to modify the visitation provisions of a prior order of that court dated September 28, 2012, so as to, inter alia, limit the mother to therapeutically supervised visitation with the subject children.
ORDERED that the order dated September 24, 2013, is affirmed, with costs.
"In determining visitation rights, the most important factor to be considered is the best interests of the child" (Matter of Hansen v Balkaran, 111 AD3d 827, 827). A visitation order may be modified upon a showing that there has been a change in circumstances since entry of the prior order such that modification is warranted to further the child's best interests (see id.Matter of Abranko v Vargas, 26 AD3d 490, 491). The determination of visitation is within the sound discretion of the trial court, and its determination will not be set aside unless it lacks a sound and substantial basis in the record (see Matter of Burrell v Burrell, 101 AD3d 1193Matter of Gilmartin v Abbas, 60 AD3d 1058Matter of Tercjak v Tercjak, 49 AD3d 772).
Here, the Family Court's determination that a change of circumstances had occurred, warranting modification of the visitation provisions of an order of that court dated September 28, 2012, to the extent of requiring that the mother's visitation occur under therapeutic supervision, has a sound and substantial basis in the record (see Matter of Paul A. v Shaundell, LL., 117 AD3d 1346Matter of Hansen v Balkaran, 111 AD3d at 827; Matter of Gabriel J. [Daniee A.], 100 AD3d 572Matter of Bullinger v Costa, 63 AD3d 735Matter of James Joseph M. v Rosana R., 32 AD3d 725, 726).
Contrary to the mother's contention, the Family Court did not condition her right to[*2]visitation on her participation in a psychiatric evaluation and therapy (see Matter of Hansen v Balkaran, 111 AD3d at 827).
The mother's remaining contentions are either unpreserved for appellate review or without merit.
Aprilanne Agostino

Clerk of the Court

Friday, December 12, 2014

A Long Visitation Saga Comes to an Interim Closure

A case that I have been involved with in a variety of capacities over the last decade reached another crossroads at the Appellate Division this week, with two appeals being decided by the Court. Here's the first of two decision handed down:

Decided on December 10, 2014 
Appellate Division, Second Judicial Department 

(Docket Nos. V-16300-10/12M, V-16301-10/12M, V-16384-10/12Q, V16385-10/12Q) 

Appeals from four orders of the Family Court, Queens County (Stephen J. Bogacz, J.), dated April 26, 2012, September 28, 2012, October 2, 2012, and December 10, 2012, respectively. The order dated April 26, 2012, dismissed, without prejudice, the mother's petition to modify a prior order of custody. The order dated September 28, 2012, among other things, in effect, confirmed a report of a Referee (Julie Stanton, Ct. Atty. Ref.) recommending, after a hearing and upon the mother's default, among other things, that the court grant the father's petition to modify a prior order of visitation. The order dated October 2, 2012, granted the father's petition to modify a prior order of visitation. The order dated December 10, 2012, denied the mother's motion to vacate the order dated September 28, 2012.

Motion by the respondent to dismiss all four appeals on the ground that they have been rendered academic. By decision and order on motion of this Court dated October 29, 2013, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and the briefs of the parties, and upon the argument of the appeals, it is,
ORDERED that the branch of the motion which is to dismiss the appeal from the order dated December 10, 2012, is granted, and the motion is otherwise denied as academic in light of our determination herein dismissing the remaining appeals on other grounds; and it is further,
ORDERED that the appeals from the orders dated April 26, 2012, and October 2, 2012, are dismissed as abandoned; and it is further,
ORDERED that the appeal from the order dated September 28, 2012, is dismissed on the ground that no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511); and it is further,
ORDERED that one bill of costs is awarded to the father.
Following the Family Court's issuance of an order dated December 10, 2012, additional proceedings were conducted and, following a hearing, the Family Court issued an order dated September 24, 2013, further limiting the mother's visitation with the subject children to only supervised therapeutic visitation during the daytime on alternate weekends (see Matter of Costigan v Renner, _____ AD3d _____ [decided herewith]). As a result, the appeal from the order dated December 10, 2012, has been rendered academic (see Matter of Solovay v Solovay, 94 AD3d 898;Matter of Gasparro v Edwards, 85 AD3d 1222Matter of Englese v Strauss, 83 AD3d 705).
Accordingly, we grant that branch of the father's motion which is to dismiss the appeal from the order dated December 10, 2012, on the ground that the appeal has been rendered academic, and do not address the merits of the mother's contentions on that appeal. Additionally, we dismiss the appeals from the orders dated April 26, 2012, and October 2, 2012, as abandoned, and we dismiss the appeal from the order dated September 28, 2012, on the ground that no appeal lies from an order entered upon the default of the appealing party.
Aprilanne Agostino

Clerk of the Court

Wednesday, December 10, 2014

What Does Your Home Screen Say About You?

In court the other day, my adversary was showing me a document on her ipad and we got to talking about our home screens. With the prevalence of “smart phones” these days, everyone’s device is populating with all kinds of apps to supposedly help us manage our workflow and be able to do more tasks on our phones.

For my adversary’s ipad, it was interesting to see that her home screen seemed to be the untouched initial layout that comes with your device. When we began talking, I asked her why she hasn’t moved apps around or organized them in a different fashion. She told me that she simply got used to having them where they are and never saw the need to move anything from its original location.

For me, a lot of times when I need to access an app, I simply pull down and use Spotlight to search for what I need (including for contacts and other items that aren’t apps). While I like to think that my apps are all organized into a logical progression, I’m not so sure that they are. Just when I thought I had given too much thought to my topic, I came across the Mac Power Users podcast and their November 30 edition where they discussedtheir iphone home screens.

I don't think I ever put that much thought into how my screens are organized or what my background image says about me. But now, I am wondering whether the layout I use makes any sense for someone who isn’t me…

Monday, December 8, 2014

New Construction and New Headaches

I can’t count how many times I  have walked by construction sites in my life without giving them a second thought. Sometimes they are creating a new or innovating building, or maybe restoring an old brownstone to its former glory. Other times, they just appear to be making a big mess, pushing dirt around and annoying the neighbors.

The past week or so, I’ve been forced to get involved in the fallout from construction near my office in New Jersey. For the most part, I’ve been able to stay out of the fray for the past few months, but this week, when it began to affect the ability of my clients to get to my office, I am stuck filing complaints with the town.

My office neighbors know I am a lawyer, so they are turning to me to begin to help them with their complaints to the town as well. They all seem to think that this is going to turn into a huge litigation case, but I have a feeling the end will be much quieter and everyone will just be brought into a room and forced to mediate our gripes.

There was enough year end planning on my plate, but now it seems I’m to be roped into this dispute whether I like it or not.

Friday, December 5, 2014

Small Business Year End Planning - Annual Corporate Meetings

With only a few weeks left in 2014, many of my small business clients are re-appearing to prepare for their year-end evaluations and preparations for 2015. As lawyers (and accountants even more so) know, this year-end period is a perfect time to get those last minute items off of your to-do lists and get the plate set for a prosperous 2015.

For my New York clients, they remember the requirements of New York Business Corporation Law § 602 for an annual meeting of shareholders and the corresponding minutes and notations in their corporate books.  In New Jersey, the corresponding provision is N.J.S.A. 14A:5-2, which similarly requires an annual meeting, but, if no other date is provided for in the company by-laws, shall be held at noon on the first Tuesday of April.

For small businesses (even those that are a sole proprietorship), this corporate requirement is often the last thing on the owners’ minds with all of the other things that go into the daily operations. But at the same time, it takes only a short conversation with your attorney to get the paperwork put together and executed and you can go about your business.

For more information or for assistance with your corporate books and records, please contact me by telephone at either (718) 568-0221 or (908) 698-0417, or through my website

Wednesday, December 3, 2014

Joint Ventures and Partnerships in New Jersey

The New Jersey Appellate Division recently dealt with a case involving the presence (or in this case, the lack thereof) of a joint venture or partnership, and the legal standards applied to those claims. The establishment of a joint venture or partnership can often be a tricky case that needs to be handled with care when brought before a court.

In Jones v. Belwood Aromatics, Inc., after the Plaintiff was fired, he claimed that he was entitled to an equity interest in Belwood based upon the statements of Defendants, which he claimed formed the basis for a finding that there was a joint venture or partnership between the parties.

The Appellate Division examined partnerships and joint ventures,
"The burden of proving the existence of a partnership was upon plaintiff, who alleged it . . . ." Lohmann v. Lohmann, 50 N.J. Super. 37, 45 (App. Div. 1958), certif. denied, 31 N.J. 187 (1959). A partnership is "an association of two or more persons to carry on as co-owners a business for profit . . . ." N.J.S.A. 42:1A-2. "[A] joint venture is virtually identical to a partnership, [although] its objective as a business venture is more limited. Presten v. Sailer, 225 N.J. Super. 178, 191 (App. Div. 1988). A partnership or joint venture need not be formalized in writing, and can be inferred from conduct. Id. at 191-93; Ruta v. Werner, 1 N.J. Super. 455, 460 (Ch. Div. 1948). The elements of an inferred partnership or joint venture "include agreement, sharing profits and losses, ownership and control of the partnership['s] property and business, community of power, rights upon dissolution and the conduct of the parties towards third persons, among others." Kozlowski v. Kozlowski, 164 N.J. Super. 162, 171 (Ch. Div. 1978), aff'd, 80 N.J. 378 (1979). Here, plaintiff argues that: (1) through his labor, he contributed to Belwood; (2) Beldner paid plaintiff fifty percent of Belwood's profits; (3) Beldner offered plaintiff a share in Belwood's sale price; and (4) Beldner often referred to plaintiff as a partner.
The court found that despite the Plaintiff’s arguments, he had been compensated for his labor through salary and bonuses, the bi-monthly payments were not profit sharing, the alleged verbal offers were not legally sufficient to give Plaintiff an interest in the company and that the promise was “illusory”, which the Court explained is 
An apparent promise, which according to its terms makes performance optional whatever may happen, or whatever course of conduct in other respects he may pursue, is in fact no promise, although often called an illusory promise. [Curtis Elevator Co. v. Hampshire House, Inc., 142 N.J. Super. 537, 542 (Law Div. 1976) (emphasis omitted) (citations omitted).] Illusory promises are disfavored, and courts will attempt to infer reasonable contract terms. Ibid.
The Appellate Division concluded, 
The remaining elements of a partnership weigh against a finding that Belwood was a partnership or joint venture. The parties never reached a formal written agreement. Plaintiff lacked authority or control over Belwood. He did not contribute financially to Belwood, and he did not own or control Belwood's property. As noted previously, he never accepted any legal or economic liability for Belwood. Lastly, plaintiff repeatedly undermined Belwood by working for its competitors, even against Beldner's express prohibition, and by seeking to sabotage the company after his termination. Accordingly, we affirm the trial court's conclusion that plaintiff failed to establish a partnership or joint venture, and thus we affirm the dismissal of plaintiff's complaint.
The full text of the opinion can be found here.

Monday, December 1, 2014

Denial of Alimony Modification in New Jersey

Years ago I had a collateral relationship with a case that has once again been submitted to New Jersey’s Appellate Division. This time, it was for a modification of an alimony award, which the lower court denied to the payor and which the Appellate Division upheld as “based on sufficient, credible evidence in the record and does not amount to an abuse of discretion.”

In the case at hand, the payor spouse returned to the Court on a cross-motion, claiming that she had experienced a significant decrease in income from her only source of revenue. The lower court denied the application on procedural grounds, her failure to provide the court with her prior Case Information Statements, and on substantive grounds, that she “failed to establish a prima facie showing of a permanent change in circumstances.” The payor appealed to the Appellate Division, who reviewed the law regarding modification of alimony awards,
Alimony awards may be modified. N.J.S.A. 2A:34-23. "The party seeking modification has the burden of demonstrating a change in circumstances warranting relief from the support or maintenance obligations." Innes v. Innes, 117 N.J. 496, 504 (1990). The party moving for modification must present a prima facie showing of changed circumstances to justify a plenary hearing on the matter. Miller v. Miller, 160 N.J. 408, 420 (1999). Only after such a showing is made will the court order discovery and conduct a hearing "to determine the supporting spouse's ability to pay." Ibid.
Alimony is generally set based on the marital standard of living. Lepis v. Lepis, 83 N.J. 139, 150 (1980) ("The supporting spouse's obligation is mainly determined by the quality of economic life during the marriage, not bare survival."). Alimony amounts thus "'contemplate [] continued maintenance at the standard of living [the spouse] had become accustomed to prior to the separation.'" Ibid. (quoting Khalaf v. Khalaf, 58 N.J. 63, 69 (1971)). These awards, however, can be modified based on the "changed circumstances" of the parties, which may include
(1) an increase in the cost of living; (2) increase or decrease in the supporting spouse's income; (3) illness, disability or infirmity arising after the original judgment; (4) the dependent spouse's loss of a house or apartment; (5) the dependent spouse's cohabitation with another; (6) subsequent employment by the dependent spouse; and (7) changes in federal income tax law.
[Id. at 151 (internal citations omitted).] Where, as here, the movant is arguing changed circumstances based on a reduction in income (Factor Two) to establish a prima facie case, she must show specifically "'that changed circumstances have substantially impaired the ability to support . . . herself.'" Crews v. Crews, 164 N.J. 11, 28 (2000) (quoting Lepis, supra, 83 N.J. at 157). This "must be understood to mean the ability to maintain a standard of living reasonably comparable to the standard enjoyed during the marriage." Crews, supra, 164 N.J. at 28.
Additionally, "it is not enough that an obligor demonstrate a reduction in income; the obligor must also demonstrate how he or she has attempted to improve the diminishing circumstances." Donnelly v.Donnelly, 405 N.J. Super. 117, 130 n.5 (App. Div. 2009); see also Aronson v.Aronson, 245 N.J. Super. 354, 361 (App. Div. 1991) (finding no prima facie case of changed circumstances when "what [movant] did was to allow his practice to continue to diminish unchecked while bemoaning his fate").
The movant must also show that the reduction in income is not merely temporary. Innes, supra, 117 N.J. at 504. In considering whether the reduction will be long-term, courts have looked at, among other factors, the time between the entry of the JOD and the motion for modification. Larbig, supra, 384 N.J. Super. at 19 (rejecting a motion for modification filed only twenty months after the entry of the JOD). However, there is no brightline rule to measure when a changed circumstance is sufficient to allow relief. Id. at 23. In Donnelly, we affirmed the family court's denial of movant's motion for modification, holding that "the trial judge properly exercised his discretion in concluding that [movant] had returned to court far too soon to obtain relief[,] [c]onsidering that th[e] [] motion [at issue] was filed only nine months after the denial of the first Lepis motion." Donnelly, supra, 405 N.J. Super. at 128. We concluded that the short timeframe meant that the movant "failed to demonstrate that his alleged change in circumstances was anything but temporary." Ibid.
Moreover, courts apply closer scrutiny to "'what constitutes a temporary change in income'" when the movant is self-employed. Ibid. (quoting Larbig, supra, 384 N.J. Super. at 23). In Donnelly, we also noted that a self-employed movant is "'in a better position to present an unrealistic picture of his or her actual income than a W-2 earner[,]'" and thus "'what constitutes a temporary change in income should be viewed more expansively when urged by a self-employed obligor[.]'" Id. at 128-29 (quoting Larbig, supra, 384 N.J. Super. at 23).

In denying the appeal, the Court deferred to the lower court, who “determined that plaintiff mismanaged the business and misused corporate assets during her romantic affairs with clients and [the company’s] business turnaround specialist.

The full text of the opinion can be found here.

Friday, November 21, 2014

Dismissal of Case for Failure to Prosecute in New York



On the Court's own initiative, pursuant to CPLR 3216, it is ORDERED that the complaint is dismissed, for failure to prosecute, without costs or disbursements.

The Court notes that this matter was before the Court for a Compliance Conference June 19, 2014. At that time, the plaintiff failed to appear. Thereupon, the plaintiff was served with a 90-day Notice pursuant to CPLR 3216, demanding that the plaintiff file a note of issue within 90 days of receipt. More than 90 days have elapsed, and the records of the Court indicate that no note of issue has been filed to date, and that no motion has been made to extend the time to file the note of issue.

Filed: October 27, 2014

Monday, November 17, 2014

Denial of Motion to Restore Case to Calendar in New York



The following papers numbered 1 to 7 read on this motion to vacate the dismissal and restore this case to the calendar.

Notice of Motion - Affidavits - Exhibits - Service 1-4
Answering Affidavits - Exhibits - Service 5-7
Replying Affidavits - Exhibits - Service

Upon the foregoing papers it is ORDERED that this motion by plaintiff to restore the within action to the calendar and to schedule a Compliance Conference is denied.

Plaintiff failed to appear at the Preliminary Conference originally scheduled for November 11, 2013, and rescheduled for December 2, 2013. Furthermore, plaintiff failed to appear at the Compliance Conference which was held on March 11, 2014.

Thereafter, the Court served plaintiff with a 90-day Notice pursuant to CPLR 3216, and the defendant also served plaintiff with a copy of said Notice and Compliance Conference Order on March 12, 2014.

When plaintiff failed to comply with said 90-day Notice, the Court dismissed the within action on August 6,2014.

In this motion, plaintiff purports to excuse her failure to file a Note of Issue, alleging that as a "pro se", she "did not know the importance of failing to file a Notice of Issue," and "believed that the Court would schedule another conference."

In effect, plaintiff is seeking to vacate the Court's dismissal order of August6,2014. It is well settled that "to vacate the dismissal of the action pursuant to CPLR 3216, the plaintiff was required to demonstrate a reasonable excuse for [her] defaults and a meritorious cause of action." (Bowman v. Kusnick, 35 AD3rd 643; 644; also see Parkin v.Ederer, 27 AD3rd 633; and Bettv v. Citv of New York, 12 AD3rd 472, 473)

Plaintiff has failed to demonstrate a reasonable excuse for her defaults. No excuse whatsoever has been given by plaintiff for her failure to appear at a Court ordered Preliminary Conference, Compliance Conference, besides her failure to file a Note of Issue. It further appears that plaintiff has not responded in any fashion to defendant's discovery demands, set forth in the aforementioned orders.

Finally, plaintiff has also set forth a meritorious cause of action.

In the absence of a satisfactory showing either of reasonable excuse or of merit, the motion must be denied.

Dated: November 3, 2014

Wednesday, November 12, 2014

A Billion Dollar Divorce

It is not often that we get to see inside the details of a high net worth divorce, let alone a divorce that results in one spouse paying the other $1 Billion. This week, the New York Times (and other papers) got a hold of the Findings of Fact and Conclusions of Law from the Oklahoma County District Court in the case of Sue Ann Hamm and Harold Hamm.

The document is astounding in the amount of detail required to recount the assets of the parties and the evidence submitted in what was an enormous trial conducted outside of the usual scrutiny of a high profile divorce.

The focus of the findings is on the standards in Oklahoma relative to marital and separate property.  In Oklahoma, property acquired during a marriage is presumed to be marital, including when separate property is placed into the joint ownership of the properties or is commingled with marital property.  Even the increase in value of separate property during a marriage may be considered marital depending upon the cause of the increase in value.

Although not a state where I am licensed, Oklahoma’s laws and decisions seem to be consistent with the states where I practice. It is a long read, but for those who like to  study these kinds of decisions, the Court has given us plenty to ponder.

A full copy of the Findings of Fact and Conclusions of Law can be found here.

Friday, November 7, 2014

The Importance of Debt Validation

It has been quite a week, with the mid-term elections finally concluded (we can all go back to regular commercials, at least for a week or two) and the news yesterday that the Sixth Circuit Court of Appealsupheld gay marriage bans in four states (Michigan, Ohio, Tennessee and Kentucky), which likely sets the issue up for another trip to the United States Supreme Court.

In more local news, a friend of mine engaged in a trial strategy (called “bold” by the New York Post) in his defense of a man accused of driving around Manhattan in under 30 minutes. Unfortunately for Mr. Tang, the jury found him guilty on all counts.

While the world enjoys some excitement, the majority of my week has been spent on debt validation cases and exploring the vast paperwork that comes when a consumer contests the debt claims of a collection agent. On paper, it can be a pretty boring way to spend your day, but when you find that discrepancy, it can make your day (and your client’s week).

Under the Fair Debt Collection Practices Act, the validation of debts is an important process to protect yourself.

§ 809.  Validation of debts   [15 USC 1692g]
(a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing --(1) the amount of the debt;(2) the name of the creditor to whom the debt is owed;(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.(b) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.(c) The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.
This week’s major discrepancy seems to be a loan taken out in my client’s name, in a state where he has never lived, and under a mis-spelling of his name. The documents don’t seem to indicate how the person who took the loan out got my client’s information with enough specificity to get the loan, but at least it is a start to get the case and investigation going.

The litigation to clear my client’s name will like take at least a year, but the upside is that we finally have something to go on and the process should work itself out to the right resolution in the end.

Wednesday, November 5, 2014

Quick Year End Planning Tips

As the year winds down, we have less than 60 days to go, it’s a good time to get your professional finances in order and plan for 2015. Does it look like you will have some extra cash on hand? Maybe it’s time to consider a little spending before the end of the year.

Or maybe you are like the bulk of my clients and you are staring at a stack of unpaid invoices from the past few months. Looking at those invoices, the extra cash in the business would make a difference come year-end, especially if you pay out year end bonuses to your employees. Or maybe you have a great idea for a holiday gift for your clients and professional contacts and the extra cash could add a little extra oomph to it.

So to help out, now is a good time to get back in touch with those people and companies that have open invoices and see if you can get them wrapped up before the end of the year. In the best-case scenario, your corporate coffers will be filled back up by Thanksgiving. In the worst-case scenario, you’ll have a list of folks who you may have to sue in 2015.

Either way, it’s best to get that year end planning done now so that you can look forward to starting 2015 on the best foot possible.

Monday, November 3, 2014

Cops Can Use Your Fingerprint to Unlock Your Phone

A Virginia judge has ruled that a suspect can be required to unlock his cell phone with his fingerprint, even though they can't be required to unlock the cell phone with a password (WSJ article here). While it seems that a lot of media has picked up on this decision (a timely tie-in to the release of the new iPhones that have the fingerprint scanning technology?), it helps to remember that this decision was issued by a Virginia Circuit Court judge, not the United States Supreme Court.

But if you want to further indulge in this discussion, check out my pal Eric Crusius discussing the matter on television yesterday:

Wednesday, October 29, 2014

Unnecessary Pre-Trial Conferences

Earlier this week, I had the pleasure of sitting through a totally unnecessary pre-trial conference. The case had already been settled. The agreements were drawn up. The parties were making their final edits. But the court still required us to show up and conduct the pre-trial conference anyway. To add to our motivations, the court advised us that even though we believed we had a settlement, all of our pre-trial conference documents were due, under threat of sanctions if we didn’t have them with us.

So rather than moving the court date back (which was the end result anyway), all of the attorneys were forced to get together and conference our pre-trial submissions, pre-mark exhibits, exchange witness lists and agree on the issues to be submitted to the court in our pre-trial memoranda of law. In the end, our conference ended up being more comical than substantive and we all took that jovial spirit to the court the next day for our pre-trial conference.

When we got to the courtroom and were ready to do our pre-trial conference, the judge was still engrossed in a trial that had already started and seemed a bit perturbed that we had even shown up. Putting the case in front of him on hold, the judge called us over for a quick sidebar and he asked why we were there, hadn’t we settled the case? When we told him yes, he just shrugged, sent us over to one of his clerks and told him to give us a date in 2015 (so we would have enough time to submit the paperwork and not have to come back and see the judge again on this case).

Somewhere in all this, there was some type of miscommunication. The attorneys got a jovial conference, but we all probably could have used the time for something else.

Monday, October 27, 2014

Last Week Was a Busy Week for New York Prenuptial Agreements

The day before the Appellate Division issued its opinion in McKenna v. McKenna last week, the Brooklyn Supreme Court (Presiding Justice Sunshine) issued its decision regarding a request to declare a prenuptial agreement null and void in Braha v. Braha.

In that case, the wife claims that as part of a “whirlwind engagement of less than three weeks”, her husband told her that his father was pressuring him into getting a prenuptial agreement, but the husband “lead her to believe that he would never seek to enforce it, explaining that it was being executed as a ‘show’ for his father.”  In furtherance of this alleged scheme, the wife claims that the parties tore up their copies of the agreements on their honeymoon cruise, thinking that those were the only copies.

Justice Sunshine presented the prevailing law on prenuptial agreements in New York,
"In general, New York has a strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements, including prenuptial agreements'" (Matter of Fizzinoglia, 118 AD3d 994, 995, 988 NYS2d 648 [2d Dept 2014], quoting Matter of Greiff, 92 NY2d 341, 344, 680 NYS2d 894). "Where, as here, the contract is clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence" (Rainbow v Swisher, 72 NY2d 106, 109, 680 NYS2d 894 [1988], citing Nichols v Nichols, 306 NY 490, 496 [1954]; accord Abramson v Gavares, 109 AD3d 849, 850, 971 NYS2d 538 [2d Dept 2013]; Monter v Balog, 104 AD3d 653, 653-654, 960 NYS2d 207 [2d Dept 2013]). Further:"As with all contracts, prenuptial agreements are construed in accord with the parties' intent, which is generally gleaned from what is expressed in their writing. Consequently, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms' (Greenfield v Philles Records, 98 NY2d 562, 569, 750 NYS2d 565 [2002]). Extrinsic evidence of the parties' intent may not be considered unless a court first finds that the agreement is ambiguous."(Van Kipnis v Van Kipnis, 11 NY3d 573, 577, 872 NYS2d 426 [2008]). "Whether an agreement is ambiguous is a question of law for the courts" (Kass v Kass, 91 NY2d 554, [*4]566, 673 NYS2d 350 [1998], citing Van Wagner Adv. v S & M Enters., 67 NY2d 186, 191, 501 NYS2d 628 [1986]; accord Boster-Burton v Burton, 92 AD3d 909, 910, 940 NYS2d 111 [2d Dept 2012]; Clark v Clark, 33 AD3d 836, 837, 827 NYS2d 159 [2d Dept 2006]).The burden of proof is on the party seeking to invalidate the agreement (see e.g. Weinstein v Weinstein, 36 AD3d 797, 798, 830 NYS2d 179 9 [2d Dept 2007], quoting Lombardi, 235 AD2d 400, 652 NYS2d 549 [2d Dept 1997]; Forsberg v Forsberg, 219 AD2d 615, 631 NYS2d 709 [2d Dept 1995]). "A party attacking the validity of the agreement has the burden of coming forward with evidence showing fraud, which will not be presumed, and must have as its basis evidence of overreaching — the concealment of facts, misrepresentation or some other form of deception" (Stawski v Stawski, 43 AD3d 776, 777, 843 NYS2d 544 [1st Dept 2007], citing Matter of Sunshine, 51 AD2d 326, 381 NYS2d 260 [1st Dept 1976], affd 40 NY2d 875, 389 NYS2d 344 [1976]). "The general rule with respect to prenuptial agreements places no special evidentiary or other burden on the party' who seeks to sustain the agreement" (Matter of Barabash, 84 AD3d 1363, 1364, 924 NYS2d 544 [2d Dept 2011], quoting Matter of Sunshine, 40 NY2d at 876]). In addressing the issue of the enforceability of the Prenuptial Agreement, it must also be recognized that as a general provision of contract interpretation, "a party who signs a document is conclusively bound by its terms absent a valid excuse for having failed to read it" (Arnav Indus. v Brown, Raysman, Millstein, Felder & Steiner, LLP, 96 NY2d 300, 304, 727 NYS2d 688 [ 2001], citing Gillman v Chase Manhattan Bank, 73 NY2d 1, 537 NYS2d 787 [1988]; Pimpinello v Swift & Co., 253 NY 159 [1930]; Metzger v Aetna Ins. Co., 227 NY 411 [1927]).
In applying the law to the Braha case, the Court found that the language used in the agreement was clear and unambiguous and the wife was represented by an attorney of her own choosing during the negotiation of the agreement. Further, the claim that the agreement was torn up and thrown into the ocean on the parties’ honeymoon was refuted by the husband’s ability to produce an original copy of the agreement in connection with the proceedings.

The full text of the decision can be found here.