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.

Wednesday, October 22, 2014

Can I Get My Engagement Ring Back in New York?

Last week, the Nassau County District Court became the latest New York court to deal with the issue of the return of an engagement ring. In that case, the issue turned on whether the ring was given in contemplation of the parties’ marriage (in which case it would be returned to Plaintiff) or was it a complete gift (in which case the Defendant gets to keep it).  In this case, the Court found that the ring was a complete gift and Plaintiff was not entitled to the return of the ring.

The Plaintiff and Defendant dated on and off for nearly 10 years and had a child together. After their son was born, they moved in together, but did not discuss marriage at the outset. They lived together until an act of domestic violence caused Plaintiff to leave the apartment they shared.

In 2010, they went to Manhattan to look at diamond rings, and thus began the analysis of how the ring should be classified. The Defendant put down $1,000 in cash for the diamond and after it was mounted, she paid $4,500 for the ring and Plaintiff paid $4,700 for the ring. After they bought the ring, Plaintiff gave the ring to Defendant, through their son, at Rockefeller Center. According to Defendant, she wore the ring from time to time and when people asked if it was an engagement ring, she would say no, because she was never asked to marry Plaintiff.

Plaintiff had been married two times before and told Defendant that he did not want to get married again. During the hearing, Plaintiff testified that the money utilized for the ring was his money that he had given to Defendant, including the $1,000 initial payment. Plaintiff testified that he had proposed at Rockefeller Center, however Defendant said that the ring was given to her for being a good mother to their son.

The return of a gift made in contemplation of marriage is covered by Civil Rights Law Section 80-b,

Nothing in this article contained shall be construed to bar a right of action for the recovery of a chattel, the return of money or securities, or the value thereof at the time of such transfer, or the rescission of a deed to real property when the sole consideration for the transfer of the chattel, money or securities or real property was a contemplated marriage which has not occurred, and the court may, if in its discretion justice so requires, (1) award the defendant a lien upon the chattel, securities or real property for monies expended in connection therewith or improvements made thereto, (2) deny judgment for the recovery of the chattel or securities or for rescission of the deed and award money damages in lieu thereof.

The Court also recounted prior holdings of New York courts regarding the return of engagement rings,
The court starts with application of the traditional principle of New York law holding that an engagement ring is the property of the male donor when an engagement is terminated (see, Gagliardo v. Clemente, 180 AD2d 551, 580 NYS2d 278 [1st Dept 1992]; 11 NY Prac New York Law of Domestic Relations § 4:4, Courtship: Engagement Rings [2002], "Even prior to the enactment of the anti-heart balm legislation," cases held that "[t]he donee of the ring receives, at the time of the gift, only the right of possession. Firm ownership passes only upon the performance of the mar-riage").
This rule applies only to a ring given as an engagement ring (id., "If there were reasons other than a contemplated marriage why the gift was given, such as part of a birthday or holiday celebration, the ring may not be subject to return. Where there is a genuine dispute as to the circumstances under which the ring was given, a trial is necessary to determine the facts"). See also Poupis v. Brown, 90 AD3d 881, 935 NYS2d 127 (4th Dept 2009) holding issues of fact existed as to whether the ring and the transfer of the interest in the West Islip property were given solely in contemplation of marriage.
After reviewing the facts and testimony, the Court found that the ring was a gift and was not given in contemplation of the parties’ marriage. The Court believed that the ring was given to Defendant for being a good mother and the invoice for the ring did not detail that the ring was an engagement ring. In its findings, the Court noted that the parties were already in a domestic partnership by the time the ring was given as a gift and pointed to the fact that no engagement announcement was sent out and no wedding venue had been reserved by the parties.

The text of the decision can be found here.

Monday, October 20, 2014

New York Prenuptial Agreement

Last week, the Appellate Division reviewed a Nassau County case that dealt with the enforceability of a prenuptial agreement.  In doing so, the Court discussed the principles behind the agreements between spouses.

In this case, the Appellate Division was reviewing a prenuptial agreement from 1997 that was executed by the spouses 10 days before their marriage on Valentine’s Day. The agreement provided for waivers of interest in separate property, provided for alimony and for counsel fees if the agreement was not later challenged in court.

The Court discussed agreements between spouses,

An agreement between spouses which is fair on its face will be enforced according to its terms unless there is proof of unconscionability, or fraud, duress, overreaching, or other inequitable conduct (see Christian v Christian, 42 NY2d 63, 73; Petracca v Petracca, 101 AD3d 695, 697-698; Rabinovich v Shevchenko, 93 AD3d 774, 775). "An unconscionable bargain is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense" (Morandv Morand, 27 AD3d 626, 627; see Cioffi-Petrakis v Petrakis, 72 AD3d 868, 868-869).

In its review of the agreement on appeal, the Court found that they were unable to evaluate the fairness of the agreement because the husband had failed to provide financial disclosure as part of the agreement.  The husband attempted to rely upon his disclosures to his wife during the five years before they were married, but the Court found that as they were not included in the agreement itself, they were not to be considered when reviewing the agreement.

The Court was also concerned by the fact that the wife’s attorney was selected by her husband, paid by her husband and only met with her for a short time prior to the signing of the agreement.

This case demonstrates the importance of ensuring that your prenuptial agreement is properly prepared with ample time before your wedding so that any issues that arise can be addressed.

The full text of the decision can be found here.

Friday, October 17, 2014

Can a Dead Man Get Visitation?

This week, the Appellate Division issued an interesting decision regarding whether a person who is alive, but considered “civilly dead” under Civil Rights Law § 79-a(1), can pursue a visitation acting in New York Family Court.  The Court found that the civil death statute did not apply to the prisoner because he was sentenced under federal law, not state law, and that the law did not have a provision dealing with a person serving a death sentence.

A brief history of the case is explained by the New York Post,

A Suffolk County judge declared the unrepentant gangbanger “civilly dead” last year and barred his attempts to see his infant son… Wilson has been fighting to see the boy he sired with since-fired prison guard Nancy Gonzalez after several trysts with her behind bars.

In examining the case, the Appellate Division found that

Contrary to the Family Court’s determination, the civil death provision of Civil Rights Law § 79-a(1) does not apply to the petitioner since he was sentenced to death in federal court, rather than state court (see Matter of Malik, 108 Misc 2d 774 [Fam Ct, NY County]; Winston v United States, 305 F2d 253, 255 n 2 [2d Cir], affd sub nom. United States v Muniz, 374 US 150; see also Hayashi v Lorenz, 42 Cal 2d 848, 271 2Pd 18). Moreover, although CivilRights Law § 79-a(1) declares civilly dead any person sentenced to imprisonment for life, it contains no provision pertaining to a person subject to a sentence of death, and it is not for the courts to expand terms beyond the plain language of statutes (see Jones v Bill, 10 NY3d 550, 555; Bright Homes vWright8 NY2d 157, 161; Tompkins v Hunter, 149 NY 117, 122-123).

Based upon these findings, the Appellate Division reinstated the petition and remitted the case to the Family Court to determine if a declaration of paternity would be in the best interests of the children.

The full Decision & Order can be found here.

Monday, October 13, 2014

Divorce and the Unknown Spouse

Last week presented an interesting question: can you get divorced if you haven’t seen or heard from your spouse in over 40 years? The prospective client is preparing to retire and realized that there was this pesky thing hanging over his head: he and his wife separated in the early 1970’s and he hasn’t heard from his wife since then.

After speaking to a few other attorneys who advised him that he should just pay them a bunch of money so they could file for divorce, he and I discussed a more elementary question: does he even need to?

With the passage of 40 years, there are a lot of different possible outcomes to this story. The answer that others immediately gravitated to was to just file the paperwork and let the courts workout the solution. But instead of just going that route and incurring fees, he and I discussed finding out where his wife actually is.

Our next call was to a private investigator that I work with and, for significantly less than it costs to get a divorce, we are going to try to track down the prospective client’s wife. Maybe she is living around the corner? Maybe she has remarried? Maybe she already obtained a divorce? Maybe she left the country? Maybe she’s no longer alive?

Before going full steam ahead and paying significant money to serve a missing person by publication, sometimes it is better to find the person first.

Friday, October 10, 2014

Get That Personal Loan in Writing

The past few weeks have seen a couple of consultations regarding people who have loaned money to friends or family and that person has not paid it back. In the discussions we've had, the first question I always have is: did you sign a loan agreement or other document regarding the terms of the loan? Far too often, the answer to that question is no and we're left trying to plan alternate means of recovering the money for the client.

Whether you are going to be taking the loan or making the loan, it is always good practice to get it in writing when it comes to the amount loaned, the repayment terms and the interest rate (if interest is being charged). You can do your research as to what the maximum legal interest rate is in your state (currently 16% in New York and New Jersey, 12% in Connecticut) because if the interest rate is in excess of the rate allowed, the loan may be treated as void and you can lose your ability to recover any money that you have loaned.

Obviously, if you are loaning $10 to your brother, you don't need to get it in writing, with an interest provision or some kind of security for the return of your money. However, if you are starting a business or need a significant personal loan to help you get through some hard times, it's very important to make sure that the terms of the loan are in writing and you understand all of the terms and requirements of the loan. You don't want to borrow money and then one day receive notice of a lawsuit because the loan was do in full yesterday and you didn't pay it and are now in court.

Wednesday, October 8, 2014

Breach of Contract Action in New York Civil Court



Plaintiff commenced the instant action to recover damages for breach of contract in the amount of nineteen thousand three hundred and thirty six dollars ($19,336). A bench trial was held before this Court on September 19, 2014, with an OCI Spanish interpreter present. Plaintiff was represented by counsel and Defendant appeared pro se.

To recover damages for breach of contract, Plaintiffmust establish the existence of a contract, the Plaintiffs performance under the contract, and the Defendant's breach of the contract, resulting in damages (Kausal v EducationalProducts Information Exchange Institute, 105 AD3d 909 [2d Dept 2013]).

Defendant and Plaintiff entered into a contract for the sale of Defendant's beauty parlor. At trial Plaintiff presented a contract dated February 29, 2012, signed by the Plaintiff and the Defendant, in which Plaintiff purchased "Papi Caio Beauty Parlor" for $14,000. Plaintiff submitted proof of payment. Plaintiff argued that the Defendant breached the contract because the Plaintiff was ultimately unable to procure a new lease from the landlord of the premises where the beauty parlor was located and Plaintiff claimed she was unable to resell the business. Defendant argued that he did not breach the contract and that Plaintiffs failure to procure a new lease from the landlord was the result of her poor credit, unrelated to the contract of sale. In December 2012, pursuant to an  agreement between the parties, the Plaintiff returned the keys for the premises to the landlord.

Based on the testimony adduced at trial and the evidence submitted in support, the Court finds that Plaintiff failed to establish that the Defendant breached the contract. The contract between the parties consisted of one simple paragraph and did not contain any contingencies for the sale of the business other than payment. It did not include provisions subjecting the contract of sale to the Plaintiffs ability to secure anew lease from the landlord. Plaintiff signed and paid pursuant to the contract. She obtained ownership of the business and its accompanying assets and equipment. The lease was not part ofthe contract and Plaintiff signed and paid without any commitment regarding the status of the lease. Additionally, when Plaintiff returned the keys to the landlord in December 2012, it was her obligation to remove any equipment and property that she owned as the owner of the beauty parlor, assets which she ostensibly purchased from the Defendant. Plaintiff cannot seek damages for the equipment which she was free to take but failed to collect at the time that she turned over the keys to the landlord. Therefore, the Court finds that Plaintiff failed to establish a breach of contract and resulting damages.

Accordingly, Judgment in favor of Defendant. The case is dismissed.

Monday, October 6, 2014

Preparing to Have Your Deposition Taken

The upcoming weeks seem to have quite a few depositions on the calendar, those wonderful, all-day calendar items that can be as boring as a blank piece of paper or can end up with you hitting the front pages of thenewspaper due to your wild behavior. Before your deposition, it is important to take time to prepare for the experience, which is unlike anything you are likely to encounter in your day to day life.

The first thing to remember is that the purpose of the deposition is to elicit information regarding the lawsuit or controversy. It is also a chance for you to encounter the opposing attorney and their style of questioning (and their chance to test your ability to withstand questions as well) for the first time.

It is important that you appear professional and treat all present in a respectful manner. Remember that this is the time to tell the truth, but be sure to listen to the question that has been asked and answer that question. You will be doing yourself a disservice if you continually answer what you think the next question will be, rather than the one actually asked of you. If you don’t know the answer, can’t answer a question or can’t remember, it’s important that you tell the questioning attorney. You aren’t expected to know everything in the world, but if you start to guess, you can get yourself in a lot of trouble.

Before your deposition, think about the case, look at the pleadings and other documents. Give them all a review and think about what questions you think will be asked at the deposition. Those areas may or may not come up, but it will allow your mind to focus on the entire universe of the case.

In the end, remember that you are the one who was present, not the other lawyer. While lawyers can be prepared for almost anything, the other lawyer’s preparation is no substitute for your human experience of the history and events that you are being questioned about. No one else knows your life better than you do.

While this is a quick summary, there are a lot of other tips, tricks and work to be done to prepare for your deposition. You don’t need to do it alone – your attorney should set aside time to go through any questions or concerns you have going into your deposition.

Wednesday, October 1, 2014

Fall Leaves and the Fourth Quarter

The calendar has turned to October and the fourth quarter of the year is upon us. As the leaves begin to change and the pumpkins are being picked, it’s also a good time to get your planning done for the final weeks of the year. Gone are the hectic summer days of prenuptial agreements and last minute vacations that need to be scheduled with an emergency motion (instead of simply talking to your ex-spouse). Now the docket is busy with small businesses preparing for the final push of the year (and the holiday shopping season for those in the retail industry).

It also seems that since everyone went “back to school” for the fall, cases have been finally getting resolved that sat dormant throughout the summer. A few settlement checks have rolled in, including some that I didn’t even know were coming. All good news, but they can catch us off guard at times.

For a good listen, check out this podcast from Sam Glover and Daniel Gershburg. Find an hour in your day to settle in and listen to these two discuss a variety of topics – you won’t be sorry!