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Queens Bar BulletinQueens Bar BulletinQueens County Bar Association / 90-35 One Hundred Forty Eighth Street, Jamaica, NY 11435 / (718) 291-4500

www.qcba.org

Vol. 76 / No. 4 / February 2013

BY GEORGE POULOS

There you are after fighting a grueling battle inLandlord-Tenant Court and finally obtaining aFinal Judgment of Possession and Warrant ofEviction for a Landlord who has been hot on yourcase the past several months to get a residentialtenant evicted, and suddenly an official or unoffi-cial looking letter is faxed to you indicating thatdarn tenant filed a bankruptcy petition and is try-ing to stop the Marshal’s eviction. What do youdo, you cannot believe it! To top it off you nevereven got admitted to Federal Court and have neverelectronically filed anything before in your life. Inyears past you would probably have to refer the matter to abankruptcy lawyer to make a motion to Lift the automatic stayso that the landlord could continue the eviction proceedings. Afurther legal procedure, that will certainly aggravate an alreadyirate Landlord, and make the Landlord incur more legal costand lost rent.Fortunately for you, the landlord lobby in Congress heard

your predecessors, and along with the unfairness of stopping aneviction of a tenant who probably owes the Landlord over ayear’s back rent, Congress attempted to remedy the situationwithin The Bankruptcy Abuse Prevention and ConsumerProtection Act of 2005 (“BAPCPA”).Normally, most practioners instinctively know that when a

debtor files a bankruptcy petition it triggers an automatic stay ofany enforcement or collections. Specifically, 11 U.S.C § 362 (a)(3) stays any act to “obtain possession of property of the estateor of property from the estate or to exercise control over proper-ty of the estate.” At the same time however, the BankruptcyCode provides certain exceptions to the application of the auto-matic stay. (11 U.S.C. §362 (b))The one exception we are concerned with here is 11 U.S.C.

§ (b) (22), that provides that, subject to Section 362 (l) (small“L”), the filing of a bankruptcy petition does not trigger theprotection of the stay with respect to:

[T]he continuation of any eviction, unlawfuldetainer action, or similar proceeding by a lessoragainst a debtor involving residential property inwhich the debtor resides as a tenant under a lease orrental agreement and with respect which the lessorhas obtained before the filing of the bankruptcy peti-tion, a judgment for possession of such propertyagainst the debtor; (emphasis added)

In other words, subject to § 362 (l), if youobtained a judgment of possession against a resi-dential tenant (not Commercial) before the filingof the petition, the stay does not apply against thelandlord’s continued eviction efforts (i.e. the

Marshal from physically proceeding to eject the tenant).There is some heavy legalese written into these sections,and the bankruptcy code does have a habit of bouncing youaround from one section to another before you can get to ananswer. But the crescendo of the statute regarding residen-tial evictions is really focused on 11 U.S.C § 362 (l).

Section 362 (l) (1) provides:Except as otherwise provided in this subsection, subsection(b) (22) shall apply on the date that is 30 days after the dateon which the bankruptcy petition is filed, if the debtor fileswith the petition and serves upon the lessor a certificationunder penalty of perjury that-(A) under nonbankrupcty law applicable in the jurisdiction,there are circumstances under which the debtor would bepermitted to cure the entire monetary default that gave riseto the judgment for possession, after that judgment of pos-session was entered; and(B) the debtor (or an adult dependent of the debtor) hasdeposited with the Clerk of the court, any rent that would bedue during the 30-day period after the filing of the bank-ruptcy petition.

(Continued on page 10)

I N S I D E T H I S I S S U EBankruptcy; Residential Tenant . . . . . . 1

CPLR Update 2012, Part II . . . . . . . . . . . 1

The Docket . . . . . . . . . . . . . . . . . . . . . . . 2

New Members & Necrology . . . . . . . . . . 2

President’s Message. . . . . . . . . . . . . . . . 3

Flu Shot; No Prophylactics . . . . . . . . . . . 3

Editor’s Note: A Court for Drones?. . . . . 4

Happy Anniversary CLARO! . . . . . . . . . . 4

Books at the Bar . . . . . . . . . . . . . . . . . . . 5

Poetry Corner: The FLy. . . . . . . . . . . . . . 7

Photo Corner . . . . . . . . . . . . . . . . . . . . 8-9

(Continued On 3)

BANKRUPTCY FILING AFTER JUDGMENT OF POSSESSIONAGAINST RESIDENTIAL TENANT FOR NONPAYMENT OF RENT

Is there a stay of eviction after filing : ways to save the landlord costs and requirement ofmaking a lift stay motion

Photo CornerThomas J. Principe, Esq. – President,St. John’s Law School AlumniAssociation Board of Directors; Hon.Bernice D. Siegal – Past-President,Brandeis Association; Joseph Risi, Esq.– President, Queens County BarAssociation; Fearonce G. La Lande,Esq. – President, Macon B. Allen BlackBar Association; Donna Furey, Esq. –President, Queens County Women’sBar Association; George Poulos, Esq. –Past-President, Hellenic LawyersAssociation; Richard MichaelGutierrez, Esq. – Past-President, LatinoLawyers Association of Queens County.For more photos from QCBA’s HolidayParty see pages 10-11.

BY DAVID H. ROSEN, ESQ.

Jurisdiction

Licci v Lebanese Can. Bank,SAL, ___ NY3d ___, ___NYS2d ___, 2012 NY SlipOp 07854 [2012]Accepting certified

questions from the SecondCircuit,24 the Court ofAppeals has addressed thequestion of whether bank-ing contacts in New Yorkcan subject a foreign bankto personal jurisdiction here. The foreign bank inthis case had no branches, offices or employees inthe US. Its only contact in the US was a correspon-dent account with the defendant American ExpressBank (“AmEx”), in New York, and its only transac-tions in New York were the use of that correspon-dent account to move funds abroad.The plaintiffs alleged, originally in New York

Supreme Court, that the defendant LebaneseCanadian Bank (“LCB”) assisted the terrorist organ-ization Hezbollah in committing acts of terrorism inIsrael which killed or injured them or their familymembers. Specifically, plaintiffs claimed that LCBfacilitated the terrorist attacks by using its corre-spondent account with AmEx to enable internation-al money transfers through an entity known as theShahid Foundation, named in the complaint as a“financial arm” of Hezbollah. The action wasremoved to federal court, where the plaintiffs addedclaims for aiding and abetting international terror-ism and other wrongs under various federal andIsraeli statutes.25Personal jurisdiction over LCB was premised on

CPLR 302(a)(1), the long-arm statute, which requirestwo things: first, that the defendant transacts businessin NewYork, and second, that the cause of action aris-es from that transaction of business. LCB moved todismiss the complaint for lack of personal jurisdiction,and for failure to state a claim. Plaintiff submitted evi-dence linking Shahid with Hezbollah, including evi-dence that Shahid was “a financial front forHezbollah.” Plaintiffs alleged that LCB used its corre-spondent account with AmEx to transfer millions ofdollars to Hezbollah by way of Shahid, that the moneywas used to enable the terrorist attacks which injuredthem. Plaintiffs further alleged that LCBwas aware ofthe connection between Shahid and Hezbollah, that itsupported Hezbollah, and that it intentionally assistedHezbollah in order to facilitate Hezbollah’s goal ofdestroying the State of Israel.The District Court dismissed for lack of personal

jurisdiction. The maintenance of the correspondentaccount, by itself, is not sufficient to constitute trans-action of business in New York, and the execution ofthe money transfers by way of that account was not anadditional factor, since that was precisely the purposeof a correspondent account. As to the “arising from”prong of the jurisdictional test, the District Court could

CPLR Update-2012Part II

David H. RosenGeorge Poulos

THE QUEENS BAR BULLETIN – February 20132

If you or someone you know is having a problem withalcohol, drugs or gambling, we can help.To learn more, contact QCBA LAC for a

confidential conversation.Confidentiality is privileged and assured underSection 499 of the Judiciary Laws as amended by

Chapter 327 of the laws of 1993.

Lawyers Assistance CommitteeConfidential Helpline 718 307-7828

being the official notice of the meetings and programs listed below, which, unless otherwise noted, will be heldat the Bar Association Building, 90-35 148th St., Jamaica, New York. More information and any changes will bemade available to members via written notice and brochures. Questions? Please call (718) 291-4500.

PLEASE NOTE:The Queens Bar Association has been certified by the NYS Continuing Legal Education Board as anAccredited Legal Education Provider in the State of New York.

TH E DO C K E T . . .

NE W ME M B E R S

NE C R O L O G Y

March 2013Thursday, March 14 Cancer Screening - in front of Civil Court

Tuesday, March 19 Pro Bono Foreclosure Settlement Conferences Seminar

Wednesday, March 20 Military/Veteran’s Law Seminar

Friday, March 29 Good Friday - Office Closed

April 2013Monday, April 8 Judiciary, Past Presidents & Golden Jubilarian Night

Wednesday, April 10 Civil Court Seminar

Wednesday, April 17 Equitable Distribution Update

Thursday, April 18 Medical Malpractice Seminar

Thursday, April 23 Administrative & Federal Law Seminar

Thursday, April 24 Cooperative/Condominium Law Seminar

May 2013Thursday, May 2 Annual Dinner & Installation of Officers

Friday, May 3 Law Day Information Fair at Civil Court

Monday, May 27 Memorial Day - Office Closed

CLE Dates to be AnnouncedElder Law

Insurance

Juvenile Justice

Real Property

Supreme Court & Torts Section

Worker’s Compensation

CLE Seminar & Event Listing

Nathan BelofskyZamir Ben-DanJoseph BilinskiBianca CappelliniCatalina Delahoz-MirandaChristy DemelfiJoshua GlickSharon GolishAdina J. HalpernMark KandkhorovMik Kinkead

Stephanie LagoudisEunice LeeRussell D. MauroJonathan M. McCannChi MetuMargaret O’HoraJennifer B. PanJulie PenningtonDavid M. PyunCaroline RinaldyDennis P. Ryan

Vartges SaroyanMichael SchoenbergSwetal ShahDavid Donald Strachan, Jr.Sarah Ann TirgaryImoh UdofiaJonathan S. VisotzkyAllison WeinerRuofei Xiang

Daniel A. FerraraEmmanuel Richard Gold

Emil F. MastrodomenicoErwin B. Newman

Vincent F. Siccardi

Class of 2013Gregory J. BrownTracy Catapano-Fox

Mona HaasGregory J. NewmanGuy R. Vitacco, Jr.

Class of 2014Chanwoo Lee

Timothy B. RountreeZenith T. Taylor

Lourdes M. VenturaClifford M. Welden

Class of 2015Karina E. Alomar

Richard Michael GutierrezRichard Harris LazarusGary Francis MiretJames R. Pieret

2012-2013Officers and Board of Managers

of the

Queens County Bar AssociationPresident - Joseph Risi

President-Elect - Joseph F. DeFeliceVice President - Joseph Carola, IIISecretary - Jennifer M. Gilroy-Ruiz

Treasurer - Paul E. Kerson

Publisher:Long Islander Newspapers, LLC,under the auspices of QueensCounty Bar Association. TheQueens Bar Bulletin is publishedmonthly from October to May.All rights reserved. Material inthis publication may not bestored or reproduced in anyform without permission.

© 2013The Queens County

Bar Association.Advertising Offices:

Long Islander Newspapers149 Main Street, Huntington NY

(631) 427-7000

Arthur N. Terranova . . . Executive Director

Queens Bar Bulletin

EDITOR - PAUL E. KERSON

Associate Editors - Gary C. Di Leonardo, Stephen D. Fink,

Richard N. Golden, Manuel Herman, Ilene J. Reichman

“Queens Bar Bulletin”(USPS Number: 252-520) is published monthly exceptJune, July, August and September by Long IslanderNewspapers, LLC., 149 Main Street, Huntington, NY11743, under the auspices of the Queens County BarAssociation. Entered as periodical postage paid at thePost Office at Jamaica, New York and additional mailingoffices under the Act of Congress. Postmaster sendaddress changes to the Queens County Bar Association,90-35 148th Street, Jamaica, NY 11435.

Send letters and editorial copy to:Queens Bar Bulletin, 90-35 148th Street,Jamaica, New York 11435

Editor’s Note: Articles appearing in the QueensBar Bulletin represent the views of the respec-tive authors and do not necessarily carry theendorsement of the Association, the Board ofManagers, or the Editorial Board of theQueens Bar Bulletin.

QUEENS COUNTY BAR ASSOCIATIONSCHOLARSHIP FUND

Dear Member:

The Queens County Bar Association’s Scholarship Fund was creat-ed in 2005 to offer financial assistance to law students who are residents ofQueens County or who attend law school in Queens County.

The recipients of the QCBA Scholarship are carefully chosen basedon academic achievement, community service and financial need and isawarded at the Annual Dinner in May.

I know that times are hard, but I would hope that you could donateto this worthwhile purpose and your tax deductible donation (of any amount)will help to support and recognize those deserving law students who providecommunity service to the residents of Queens County. It also enhances thegood name of our Association.

As President of the Queens County Bar Association, I thank you foryour support of this valuable community-based program.

Sincerely,

JOSEPH RISIPresident

THE QUEENS BAR BULLETIN – February 2013 3

On behalf of the Queens County BarAssociation, congratulations to JusticeJoseph A. Zayas on his appointment asAdministrative Judge, Criminal Term andto Judge Joseph J. Esposito on his appoint-ment as Supervising Judge of the CivilCourt, Queens County.

We look forward to working closelywith both Justice Zayas and JudgeEsposito in our concerted efforts tomaintain the high standards of both theJudiciary and our Profession of Law. Iwish them both much health, happinessand continued success.

The Queens County BarAssociation isagain made proud by the appointmentsof these outstanding Jurists who will bea tremendous service to our’ Bench, Barand to our community.

The Queens County Bar Association ispleased to offer interesting and informa-tive CLE programs scheduled duringFebruary and March, 2013.

On February 20, 2013, the GrievanceCommittee and Professional EthicsCommittee will be presenting “EthicsUpdate 2013” moderated by PaulPavlides, Esq., Chair of the GrievanceCommittee and David A. Rosen, Esq.,Chair of the Professional EthicsCommittee.

The Queens County Bar Association ishonored to have Ms. Colette M. Landers,Esq., Assistant Counsel for the AppellateDivision Grievance Committee andMichael S. Ross, Esq., noted lecturer inthe area of Professional Ethics join as pre-

sentees in this CLE Ethicsupdate.

On February 25, 2013, TheQueens County BarAssociationis pleased to present a CLE pro-gram entitled Moving Beyondthe Legal Stoneage, moderatedby Hon. Richard H. Lazarus withguest speaker Arnie Herz, Esq.

It should be interesting tolearn how we as attorneyscan evolve beyond the“Lawyers as Gladiators”mindset. Never quite thought ofmyself, nor any attorney I know beingup to par as the new Spartacus! Thisseminar should prove to be bothinformative and evolutionary.

Our Association has scheduled forMarch 13, 2013 a presentation by the TortsSection Committee covering CPLR andEvidence Updates for 2013. Joining ourmoderator, Joseph Carola, III, Esq. will beVincent C. Alexander. Esq., Professor ofLaw at St. Johns University School of Lawand David H. Rosen, Esq., Chair, QueensCounty Bar Association ProfessionalEthics Committee.

On March 19, 2013 the QueensCounty Bar Association will be present-ing a free CLE Seminar for Pro BonoVolunteers, representing Homeowners atForeclosure Settlement Conferences.Volunteers who attend this program willbe issued their CLE Certificate uponcompletion of a pro bono volunteer serv-ice commitment to represent one home-

owner in the foreclosure set-tlement conference processin Queens County.

This CLE will be a greatopportunity to provide probono services to our commu-nity while earning CLE cred-its in Professional Practice.

Our Association is currentlyevaluating proposals which wehave received to enhance andimprove the Queens CountyBar Association Website.

We are seeking to achieve bettermarketing, communication, educationand member interaction to assist theQueens County Bar Association inbecoming one of today’s leading legalassociations.

Our goal is to better provide mem-bers the opportunity to register andsecurely pay for dues, CLE courses andview scheduled events while enhancingexisting social media to reflect a designthat will represent a fully functionaland well-designed website to promoteboth the Queens County BarAssociation, all our members and oursponsors.

It seems inevitable that QueensCounty will be included in the expandedauthorization of the e-filing programwith the enactment of Chapter 184 of theLaws of 2012 (See full text at

Our Association has been assured thatthe NYS Unified Court System willwork with our Bar Association to pro-

vide necessary training for attorneys andparalegals.

It is alleged that the NYSCEF Systemis intuitive and easy to use. The jury maystill be out on this claim but time willtell. Will we ever not be overloaded withpaperwork and triplicate copies ofeverything we produce?

Please take into consideration that e-filing provides an opt-out mechanism inmandatory e-filing cases for these attor-neys who certify in good faith that theymay lack the hardware, connection ortechnical knowledge necessary to partic-ipate. Be prepared for the future andanticipate what will be required of us aspractitioners.

The Queens County Bar Associationwill keep our members informed of theprogress of this program as shall pertainto Queens County.

We welcome any input, recommenda-tions or concerns our membership mayhave concerning e-filing to enable us tomake appropriate comments on yourbehalf.

Please do not hesitate to contact theQueens County Bar Association at (718)291-4500 or contact me by email [email protected] should youhave any suggestions or comments.

I look forward to seeing you at ourupcoming CLE Seminars and events.

Sincerely,Joseph Risi, PresidentQueens County Bar Association

BY MARIE-ELEANA FIRST

Influenza shot vaccines recently havegarnered much attention due to a myriad ofreasons. During the 2012-2013 winter sea-son, the rate of influenza has been increas-ing at an alarming rate within the UnitedStates,1 and there has been a major direc-tive by U.S. public health officials for allage-appropriate members of the public toreceive the vaccination. In addition toencouraging the general public to obtainthe vaccine,2 the Centers for DiseaseControl and Prevention has campaigned tohave health care workers receive theinfluenza vaccine.3 Moreover, federal lawnow mandates that anyone applying forimmigration status to the United Statesreceive the influenza vaccine.4 More peo-ple have now received the influenza vac-cine than last year.5 Additionally, whilecertain types of vaccines manufactured byNovartis were banned late last year in sixdifferent countries,6 the United StatesFood and Drug Administration over thepast year has approved four new seasonalflu vaccines by four different manufac-tures including Novartis' new flu vaccinein late November, 20127, as well as vac-cines by GlaxoSmithKline, AstraZenecaand, in January, 2012, the FDA green-lighted the first gene-based flu vaccine byProtein Sciences Corp.8

In light of the fact that the use, develop-ment and manufacturing of influenza vac-cines have significantly increased in theUnited States, while other countries haveexercised caution with respect to flu vac-cines’ dissemination to the public, now morethan ever it is incumbent for the governmentof the United States to mandate safeguards tospur drug manufactures to exercise cautionto ensure that influenza vaccines are as safeas possible with the least amount of hazards

to the American public.Unfortunately, a Supreme

Court ruling in February, 2011effectively exempted drug man-ufactures from liability andaccountability for the design oftheir vaccines, stripping themembers of the public of safetyand protection. The court inter-preted the language of the statute42 U. S. C. §300aa–22(b)(1)9, tomean that drug manufacturersare exempt from liability for thedesign of their vaccines, while eliminatingthe public’s ability to seek recourse for dam-ages in court. BRUESEWITZ ET AL. v.WYETH LLC, FKA WYETH, INC., ETAL. 562 U. S. ____ (2011)10 (held: theNational Childhood Vaccine Injury Act of1986 title III of Pub. L. 99-660, 100 Stat.3779 (42 U.S.C. 300 aa-14(c)) (NCVIA orAct) preempts all design-defect claimsagainst vaccine manufacturers brought byplaintiffs seeking compensation for injury ordeath caused by a vaccine’s side effects): Pp.7–19. This decision has in effect eliminateddrug manufacturers’ accountability andincentives for designing safe and effectivevaccines with minimal potential hazards, andwill have far-reaching deleterious effects onthe American public.

The case involved the parents of a littlegirl named Hannah who filed a vaccine-injury petition in the Court of FederalClaims, after their daughter became dis-abled after receiving a diphtheria, tetanus,and pertussis (DTP) vaccine manufacturedby Lederle Laboratories (now owned byrespondent Wyeth). After that court deniedtheir claim, they filed suit in Pennsylvaniastate court, alleging, inter alia, that thedefective design of Lederle’s DTP vaccinecaused Hannah’s disabilities, and thatLederle was subject to strict liability and

liability for negligent designunder Pennsylvania commonlaw. Wyeth removed the suit tothe Federal District Court. Thecourt granted Wyeth summaryjudgment, holding that the rel-evant Pennsylvania law waspreempted by 42 U. S. C.§300aa–22(b)(1), which pro-vides that “[n]o vaccine manu-facturer shall be liable in acivil action for damages aris-ing from a vaccine-related

injury or death associated with the admin-istration of a vaccine after October 1,1988, if the injury or death resulted fromside-effects that were unavoidable eventhough the vaccine was properly preparedand was accompanied by proper directionsand warnings.” The Third Circuitaffirmed. (Syllabus p.1). The SupremeCourt granted Certiorari.

Writing for the Court, Justice Scalia out-lined the details of the NCVIA, “TheNational Childhood Vaccine Injury Act of1986 (NCVIA or Act) title III of Pub. L.99-660, 100 Stat. 3779 (42 U.S.C. 300 aa-14(c)) that created a no-fault compensa-tion program to stabilize a vaccine marketadversely affected by an increase in vac-cine-related tort litigation and to facilitatecompensation to claimants who found pur-suing legitimate vaccine-inflicted injuriestoo costly and difficult. A party alleging avaccine-related injury may file a petitionfor compensation in the Court of FederalClaims, naming the Health and HumanServices Secretary as the respondent;…the claimant can.., accept the court’s judg-ment or reject it and seek tort relief fromthe vaccine manufacturer. Awards are paidout of a fund created by an excise tax oneach vaccine dose…manufacturers enjoysignificant tort-liability protections. Most

importantly, the Act eliminates manufac-turer liability for a vaccine’s unavoidable,adverse side effects Slip Op. p. 1 (held: theNational Childhood Vaccine Injury Act of1986 title III of Pub. L. 99-660, 100 Stat.3779 (42 U.S.C. 300 aa-14(c)) (NCVIA orAct) preempts all design-defect claimsagainst vaccine manufacturers brought byplaintiffs seeking compensation for injuryor death caused by a vaccine’s sideeffects): Slip Op. p. 2, Pp. 7–19

In support of its holding, the Courtplaced great emphasis on the semantics ofthe words of the statute, and reasoned thefollowing: “Section 300aa–22(b)(1)’s textsuggests that a vaccine’s design is not opento question in a tort action… The languageof the provision thus suggests the design isnot subject to question in a tort action.”Slip Op. p. 2 citing Pp. 7–8.11; “[T]here isno reason to believe that §300aa–22(b)(1)’sterm “unavoidable” is a term of art incor-porating Restatement (Second) of Torts§402A, Comment k, which exempts fromstrict liability rules “unavoidably unsafeproducts.” Slip Op. p. 2, citing Pp. 8–12);“The structure of the NCVIA and of vac-cine regulation in general reinforces what§300aa–22(b)(1)’s text suggests. Designdefects do not merit a single mention in theAct or in Food and Drug Administrationregulations that pervasively regulate thedrug manufacturing process.” Slip Op, p.2,3, citing Pp. 13–16.

In sharp contrast, Justice Sotomayorpoignantly rendered a cogent, well-rea-soned dissent that set forth why theMajority erred in its holding. Her dissentlogically and systematically sets forth thetrue intent of Congress in drafting 22(b),which Sotomayor concluded was intendedto protect the safety and well-being of thepublic from hazardous design defects.

PR E S I D E N T ’S ME S S A G E

Joseph Risi

Influenza Shot Vaccines: No Prophylactics for the American Public


Maria-Eleana First


BY MARK WELIKY*

January 25, 2013 marked the FifthAnniversary of the CLARO-QueensConsumer Debt Clinic. CLARO providesfree limited scope legal assistance to low-income residents of Queens County beingsued for credit card, student loan and med-ical debts. CLARO-Queens is one of fivesuch clinics serving all of the boroughs ofNew York City and the newest CLAROrecently opened in Westchester County.The clinics are staffed by volunteerlawyers and law students from New Yorkarea law schools. The CLARO-Queensclinic is held every Friday afternoon atQueens Civil Court in Jamaica.CLARO-Queens is a collaboration

between the Queens Volunteer LawyersProject, Inc., the pro bono arm of theQueens County Bar Association and theSt. John’s University School of Law andhas had the full support and cooperationof the New York State Access to Justice

Program of the NYS Unified CourtSystem. When we began CLARO-Queens in 2008 there were over 300,000thousand consumer debt cases filed inNewYork City that year. Of course, all ofthe plaintiffs for these cases are repre-sented by counsel, while nearly all of thedefendants proceed pro se because theycannot afford to hire private counsel.Although the volume of these cases hascome down since then, pro se debt defen-dants still face serious hurdles.Collection practices involving sewerservice as well as extensive motion anddiscovery practice are rampant in thisarea of law, despite the fact that nearly allof the defendants in these cases areunrepresented by counsel. To date,CLARO-Queens in nearly 250 clinic ses-sions has provided five-thousand freeconsumer debt consultations. CLAROvolunteers may assist a pro se litigant infiling an Answer for their case or in draft-ing an order to show cause to vacate a

default judgment or offer advice on nego-tiating a settlement and trial strategies.The overwhelming majority of the peoplewho come to CLARO have a favorableoutcome to their case; the case may bediscontinued/dismissed or a settlement isagreed upon for considerably less thanthe amount sued upon.Many thanks must go to April A.

Newbauer, then Attorney-in-Charge of theQueens Civil Division of the Legal AidSociety, now Judge Newbauer, who creat-ed the CLARO clinic concept with theBrooklyn Volunteer Lawyers Project in2006 and was instrumental in the creationof CLARO-Queens. Thanks must also goto then Supervising Judge of Queens CivilCourt, Bernice D. Siegal, now JusticeSiegal, for her help getting CLARO-Queens off the ground and to ProfessorsAnn Goldweber and Gina Calabrese of theElder Law Clinic at the St. John’sUniversity School of Law for their contin-uing support of this program. We have

also had the good fortune of having twoincredible St. John’s Law student coordi-nators, Fletcher Strong and ChristopherNewton who have provided invaluableservice and guidance for our volunteerlawyers and students. We also have hadthe luck to work with the great administra-tive staff at Queens Civil Court, led by theClerk of the County, Joseph Traynor,Deputy Clerk John Barry and SupervisingClerk Monica Dingle. Lastly, thanks aredue to Judge Fern A. Fisher, Deputy ChiefAdministrative Judge for New York CityCourts for her strong support of theCLARO initiative. Whoops! Almost for-got the hundreds of lawyers and studentswho have volunteered their time and serv-ice and made this program a resoundingsuccess – thanks to all of you!

* Mark Weliky, is the Pro BonoCoordinator for the Queens County BarAssociation and Executive Director of theQueens Volunteer Lawyers Project, Inc.

BY PAUL E. KERSON

Can the President, as Commander inChief, order a drone to kill a suspect-ed terrorist in another country?

What if the suspected terrorist is aU.S. Citizen? How about a suspectedterrorist within the U.S.? Can thePresident order a drone to kill himtoo?

Does the citizenship of the suspect-ed terrorist matter whether or not he islocated in the U.S. at the time of thestrike?

And if this is allowed, why limit themethod to drones? What about simplyauthorizing a U.S. soldier to do thekilling with a pistol? Is this ok in a for-eign country? Is this ok if the soldier isacting within the U.S.? Guam? WakeIsland? Puerto Rico? Guantanamo?Brooklyn?

We can probably all agree that thePresident, as Commander in Chief,cannot order a drone strike on a sus-

pected terrorist inBrooklyn.

But what about the NewYork City PoliceCommissioner? Since 9-11, we have been routinelystationing New York Citypolice officers in cities allover the world seekingintelligence about the nextattack on New York. Canthe New York City PoliceCommissioner order one of his far-flung officers to kill a suspected ter-rorist?

Does the Commissioner have tocheck with the White House beforeordering one of his far-flung officersto kill a suspected terrorist in a foreigncity? What about in Brooklyn? Shouldthe Commissioner have the power toorder one of his officers in the 103rdPolice Precinct in Jamaica to kill asuspected terrorist who just got off theAir Train because the President’s

drone missed him beforehe got on the flight fromAbu Dhabi?

After all, a terroristis a terrorist, right?

Wait a minute, yousay. Maybe the President,as Commander in Chief; orthe Commissioner mightmake a mistake and kill the“wrong” guy?

You mean to saythat the President, as Commander inChief, or the Commissioner, is notinfallible? You mean you think thatadequate cross-examination mightestablish the fact that the so-called“terrorist” might actually be the realbad guy’s cousin, who just looks likehim? No, that could never happen. Wedon’t need any elaborate system ofJudges, juries, prosecutors anddefense lawyers before we punishpeople with the death penalty. Thatstuff isn’t necessary after 9-11. Now

we just shoot first and ask no ques-tions later.

The Dustbin of History is filled withcountries like this. There was a time,not too long ago, when we went to warwith countries who did this kind ofthing, just because they did it.

Before the next drone strike, I hopethe President, as Commander in Chief,takes the time to watch that Greatestof American Propaganda Films –Casablanca.

“Round up the usual suspects,” saysthe morally bankrupt police commis-sioner. Guilt or innocence of anycrime, real or imagined, had no rele-vance to a local Commander in Chiefin a dictatorship.

Perhaps everyone in ourGovernment should be required towatch Casablanca every week untilthey get the message. Play it again,Sam, and keep playing it until we getthe message back. We seem to haveforgotten who we are.

A Court for Drones?

Happy Anniversary CLARO!

Paul E. Kerson

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There are two new essential and excellentbooks that ought to be within one arm’sreach of every practicing litigating attorneyin NewYork State. They are both by ErnestE. Badway. In Encyclopedia of New YorkCauses of Action, the elements of each andevery cause of action cognizable in NewYork and the elements of defenses are setforth. Badway, inLibrary of NewYork CivilDiscovery Forms, gives excellent formsand samples of discovery notices for a hostof causes of action. Both books are pub-lished by the NEW YORK LAW JOUR-NAL PRESS, both books are by ERNESTE. BADWAY, a NewYork litigator, and bothbooks are essential for your practice.

Encyclopedia of NewYorkCauses ofActionby Ernest E. BadwayAnnual Paperback, 400 pages,Includes Online Edition Access $189.95ISBN 9781576255360For more information contact Matt Clareat 800-517-9871 or visit www.lawcata-log.com/nycoa

New York Law Journal Releases2013 Edition Encyclopedia of New YorkCauses of Action: Elements and DefensesIn Print and Online

The Encyclopedia of New YorkCauses of Action: Elements andDefenses is a single volume desk refer-ence with online access. Prior editionsof Badway’s brilliant and comprehen-sive work has been cited by New YorkState judges. The Encyclopedia of NewYork Causes of Action: Elements andDefenses is a quick starting point forvirtually any civil case containing NewYork civil actions, legal principles anddefenses. The book compiles, out-lines, and indexes theories of recoveryunder New York law. There is nothinglike it available to New York Statepractitioners.

Over 450 Causes of Action AreArranged into 16 Sections:

* AGENCY OR FIDUCIARY BASEDCAUSES OF ACTION* ATTORNEYAND LEGALSERVICES BASED CAUSES OFACTION* BANKING, COMMERCIAL PAPERAND CREDITOR BASED CAUSESOF ACTION* CONSTITUTIONAL BASED CAUS-ES OF ACTION* CONTRACT OR QUASI-CONTRACT BASED CAUSES OFACTION* CORPORATE AND PARTNERSHIP BASEDCAUSES OF ACTION* DAMAGE RELATED BASED CAUSES OFACTION* EMPLOYER-EMPLOYEE BASED CAUSESOF ACTION* EQUITABLE BASED CAUSES OF ACTION* INSURANCE BASED CAUSES OF ACTION* JUDICIAL BASED CAUSES OF ACTION* REAL PROPERTY BASED CAUSES OFACTION* STATUTORY BASED CAUSES OF ACTION* TORT BASED CAUSES OF ACTION* TRUST AND ESTATE BASED CAUSES OFACTION* MISCELLANEOUS DEFENSES* FAMILYAND MATRIMONIAL CAUSES OFACTION

Where appropriate, the Cause of Actionwill reference authorities for defense,including statutes of limitation. TheEncyclopedia of New York Causes ofAction: Elements and Defenses, is a quickreference to unfamiliar subjects, a wel-come resource for firms without an exten-sive law library or research budget.

The Encyclopedia of New York Causes ofAction: Elements and Defenses is perfectfor any law library, solo practitioners, andsmall law firms. Save time analyzing clientproblems and preparing pleadings by pin-pointing the starting point of an actionbefore employing more costly research.The Encyclopedia of New York Causes ofAction: Elements and Defenses is an inex-pensive desk reference for virtually anycase that walks in your door!

The Encyclopedia of NewYork Causes of Action:Elements and Defenses is alsohelpful for managing partnersof major litigation depart-ments. The Encyclopedia ofNew York Causes of Action:Elements and Defenses enablesyou to bring your law firm’sassociates up to speed quickly,to reduce training time, toreduce hourly fees in preparingbriefs and pleadings, and to

reduce the research expense.The Encyclopedia of New York Causes

of Action: Elements and Defenses alsocontains an extensive common wordindex facilitating a direct review of thepotential universe of causes of actions,principles and defenses, and tables ofcases and statutes. The online productcontains links to the full text of decisionsand statutes. You also have the ability tosearch across the book, to download por-tions of text to PDF or MS Word, to high-light portions, and to save notes.

Library of New York Discovery Forms150 Sample Documents in print and onCD $249.95ISBN 978-1-57625-556-8For more information contact Matt Clareat 800-517-9871 or visit www.lawcata-log.com/nydiscoforms

New York Law Journal ReleasesLibrary of New York Civil Discovery Forms

Library of New York Civil DiscoveryForms is a comprehensive library of over150 documents selected from SMARTLITIGATOR NEW YORK, a complete,affordable, NY-specific case prep solu-tion. These forms have been created,tested, and used by attorneys in the dis-

covery process. Created by attorney-experts in various fields, the forms maybe edited to suit the unique facts and cir-cumstances of each case. The book con-tains requests and responses for all typesof discovery, including interrogatories,bill of particulars, document requests,subpoenas, deposition notices, and confi-dentiality documents.This soft cover book contains a printed

version of each form. Also included is aCD of forms, allowing for easy draftingand editing of Word documents.Chapter 1.AuthorizationsChapter 2.Discovery and InspectionChapter 3. SubpoenasChapter 4.Discovery Demands andResponsesChapter 5.Discovery Responses andObjectionsChapter 6. DepositionsChapter 7. AdmissionsChapter 8. Bill of ParticularsChapter 9. InterrogatoriesChapter 10. Information RequestsChapter 11. CommissionsChapter 12. Privilege, Protective Orders,ConfidentialityChapter 13. Discovery MotionsChapter 14. Verifications, Affidavits,AffirmationsI vouch for the usefulness of both

books. Please trust me: you will be con-sulting them frequently, and the cost of thebooks is a tax deductible expense or canbe depreciated [as your Certified PublicAccountant will advise you].

HOWARD L. WIEDER is the writer of both“THE CULTURE CORNER“ and the“BOOKS AT THE BAR“ columns, appearingregularly in THE QUEENS BAR BUL-LETIN, and is JUSTICE MARTIN E.RITHOLTZ’s PRINCIPAL LAW CLERK inSupreme Court, Queens County, Jamaica, NewYork

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Justice Sotomayor wrote, “Vaccine manu-facturers have long been subject to a legalduty, rooted in basic principles of productsliability law, to improve the designs oftheir vaccines in light of advances in sci-ence and technology. Until today, thatduty was enforceable through a traditionalstate-law tort action for defectivedesign….the [holding of the court] Courtexcises 13 words from the statutory text12,misconstrues the Act’s legislative history,and disturbs the careful balance Congressstruck between compensating vaccine-injured children and stabilizing the child-hood vaccine market. Its decision leaves aregulatory vacuum in which no oneensures that vaccine manufacturers ade-quately take account of scientific andtechnological advancements when design-ing or distributing their products….noth-ing in the text, structure, or legislative his-tory of the Vaccine Act remotely suggeststhat Congress intended such a result,”[Dissent, p. 1] .

Both the Majority and Dissent agreedon the jarring and disturbing fact that theFood and Drug Administration (“FDA”)(whose responsibility it is to approve thedesign of the vaccines) has never evenspelled out in regulations the criteria ituses to decide whether a vaccine is safeand effective for its intended use.13

Acknowledging this reality, Justice Scaliawrote: “Drug manufactures could oftentrade a little less efficacy for a little moresafety, but the safest design is not alwaysthe best one,”… ), [Majority at p. 13].Justice Sotomayor, on the other hand,frankly illustrated how the FDA is a “pas-sive agency” and “considers whether toapprove that vaccines design only if andwhen manufacturers come forward with aproposal” 14 “…[T]he FDA does not con-dition approval of a vaccine on it being themost optimally designed among reason-ably available alternatives, nor does it (orany other federal entity) ensure thatlicensed vaccines keep pace with techno-logical advances,”15

The Majority’s decision has in effecteliminated drug manufacturers’ accounta-bility and incentives for designing safe andeffective vaccines with minimal potentialhazards, and has far-reaching deleteriouseffects on the American public. New anduncharted methods of manufacturing arehappening at this very moment, with littlerestraints in place to bridle any over-reach-ing effects of manufacturers who, by thevery nature of the corporate and capitalis-tic enterprise are motivated by rapid pro-duction and garnering profits. Now, they

have no reason, as Justice Sotomayorpoints out, to exercise caution with respectto designing and developing vaccines toprevent potential hazards.

So how does this decision impact theAmerican people at the present moment?We, as a society will now be injected withnew vaccines that were recently approvedby the FDA: one such vaccine consists ofa new insect-based, genetically engineeredflu vaccine16; another is a vaccine grownin cultures of dog kidney cells17. The FDAhas approved these vaccines not becausethey are safe, but rather because they speedup flu vaccine production and becausemanufactures have asked permission tomanufacture them. Simply put, these vac-cines that have not be determined to besafe, will be injected into our bodies.

Lest we forget, history has demonstrat-ed that vaccines are dangerous and canhave disastrous consequences to the pub-lic at large. In 1976, Washington had amass swine flu vaccination program.Several hundred cases of a rare, lethal,paralyzing neurological disease calledGuillain-Barré syndrome (GBS) werereported afterwards; twenty-five deathsoccurred from the shots. "The vaccinesused to combat an expected swine influen-za pandemic in 1976 were shown to beassociated with GBS and were withdrawnfrom use," wrote Prof. Elizabeth Miller,head of the British government’s HealthProtection Agency (HPA) immunizationdepartment.18 The Center For DiseaseControl has also acknowledged that thisvaccine is linked to GBS.19 Moreover, thefact that the NCVIA was created to com-pensate victims and their families for vac-cine-related injuries (see p. 1, supra) sug-gests that vaccinations by nature areinherently dangerous.

In light of the foregoing, it is crucialthat we consider how we can protect our-selves, our rights and our health where thejudiciary branch of the government andthe FDA, (a regulatory agency) are failingus, and how we can work towards ensur-ing that the public as protected as much aspossible from the dangers that any and allvaccines may have.

1. According to the U.S. Centers for DiseaseControl and Prevention, influenza has official-ly reached epidemic proportions in the UnitedStates, with 7.3 percent of deaths during theweek of January 4, 2013 caused by pneumoniaand the flu. “Flu reaches epidemic level in U.S.says CDC,” Sharon Begley, Reuters Fri Jan 11,2013 5:57 p.m. EST. Majority at p. 13 citingHutt, Merrill, & Grossman, Food and DrugLaw, at 685, 891; Dissent at p. 18, citing 42 U.S. C. §262(a)(2)(C)(i)(I) - Regulation of bio-logical products: (“The Secretary shall approvea biologics license application . . . on the basis

of a demonstration that . . . the biological prod-uct that is the subject of the application is safe,pure, and potent”).

2. Dr. Melinda Wharton, Acting Director ofCDC’s National Center for Immunization andRespiratory Diseases, “Increasing flu activityshould be a wake-up call. For anyone who hasput off vaccination: It’s time to get your fluvaccine now.” (Of note is that a synchronicityof timing occurred where significant increasesin flu activity occurred in the United States thatoverlapped with National InfluenzaVaccination Week (NIVW) being observedDecember 2-8, 2012). “U.S. Flu Season Off ToEarly Start, CDC Urges Vaccination, EarlyVaccine Coverage Data Shows MillionsUnprotected Still,” December 3, 2012, Centerfor Disease Control and Prevention.

3. The government recommends that healthcare facilities increase the number of workerswho get the influenza vaccination; the Centersfor Disease Control reports findings that vac-cines among the health care work force helpreduce patient fatalities and aims to have 90%compliance for health care workers by 2020.Several nurses have recently been fired forrefusing to take the vaccine. “Some health careworkers don't want to get the flu vaccine formedical or religious reasons,” Janice Lloyd,USA TODAY January 16, 2013 2:35 p.m. EST

4. On November 13, 2009, the Centers forDisease Control and Prevention (CDC) adopt-ed specific vaccination criteria that would berequired for any person who seeks an immi-grant visa or adjustment of status for U.S. per-manent residence. In November 2010, TheAdvisory Committee on ImmunizationPractices (ACIP) indicated that the 2010-11seasonal flu vaccination is recommended foreveryone 6 months of age and older unlessthey have a specific contraindication to fluvaccine. Accordingly, the following age-appro-priate vaccination of influenza is required foradjustment of status applicants, based on theabove criteria or per INA Section 212 (8U.S.C. 1182)(a)(1). see 2009 TechnicalInstructions for Vaccination for Civil Surgeonsand Updates for Civil Surgeons - Guidancebased on 2010 Recommendations for theSeasonal Influenza (Flu) Vaccine.

5. Walgreen Co., which provides flu shots insome of its pharmacy locations, reported that ithad given 5.7 million flu shots so far this fluseason, up from 5.3 million in the prior year.Drugmakers Report Shortages of Flu Vaccine,Published January 10, 2013, FoxBusiness,Reuters

6. Certain types of the Novartis Flu Vaccineswere banned in late October, 2012 in Italy,Switzerland, Spain, Germany, Austria, France,Canada following particle contamination.Canada and Switzerland lifted the ban at theend of October. “Canada, Switzerland lift banon Novartis flu vaccines,”a Reuters, Zurich,Wed, Oct 31, 2012 12:09 EDT. Italy lifted theban on the Novartis flu vaccine on November

9, 2012. “Italy lifts ban on Novartis flu vac-cine,” Reuters, Rome, Fri Nov 9, 2012 1:04pm. EST

7. In late November, 2012 the U.S. Food andDrug Administration approved Novartis' newflu vaccine grown in cultures of dog kidneycells instead of the conventional chicken eggs,a faster and more reliable manufacturingprocess that could help build stockpiles in theevent of a pandemic. “Insight: U.S. govern-ment investment gives flu vaccines a shot inthe arm” Chicago Tribune, Julie SteenhuysenReuters January 19, 2013.

8. In the last 12 months, the U.S. Food andDrug Administration has approved two newseasonal flu vaccines that protect against fourpredominant strains of flu instead of three. Oneis a shot made by GlaxoSmithKline and theother is a nasal spray made by AstraZeneca.And this past week, the FDA green-lighted thefirst gene-based flu vaccine by ProteinSciences Corp, which uses genetic engineeringto grow portions of the virus in insect cells."This means there are going to be more manu-facturers and more types of vaccine availablein future flu seasons," FDA Commissioner Dr.Margaret Hamburg said in a teleconference onFriday. “Insight: U.S. government investmentgives flu vaccines a shot in the arm” ChicagoTribune, Julie Steenhuysen Reuters January19, 2013.

9. “No vaccine manufacturer shall be liablein a civil action for damages arising from avaccine related injury or death associated withthe administration of a vaccine after October 1,1988, if the injury or death resulted from sideeffects that were unavoidable even though thevaccine was properly prepared and was accom-panied by proper directions and warnings 42U.S.C. sec. 300aa-22(b)(1).

10. CERTIORARI TO THE UNITEDSTATES COURT OF APPEALS FOR THETHIRD CIRCUIT No. 09–152Argued October12, 2010—Decided February 22, 2011

11. Reaching this conclusion, the courtextensively discussed the placement of thewords “even though” and “unavoidable” in thestatutory text.” 562 U.S. __2011 Majority p. 7.

12. If Congress intended to exempt vaccinemanufacturers categorically from all designdefect liability, it more logically would haveprovided: “No vaccine manufacturer shall beliable in a civil action for damages arising froma vaccine-related injury or death associatedwith the administration of a vaccine afterOctober 1, 1988, if the vaccine was properlyprepared and was accompanied by properdirections and warnings.” There would havebeen no need for Congress to include the addi-tional 13 words “the injury or death resultedfrom side effects that were unavoidable eventhough.” (See TRW Inc. v. Andrews, 534 U. S.19, 31 (2001) (noting “cardinal principle ofstatutory construction that a statute ought,upon the whole, to be so construed that, if it


Influenza Vaccine(Continued from page 3)


can be prevented, no clause, sentence, or wordshall be superfluous, void, or insignificant”(internal quotation marks omitted)). (Dissent,p. 15)13. Majority at p. 13 citing Hutt, Merrill, &

Grossman, Food and Drug Law, at 685, 891;Dissent at p. 18, citing 42 U. S. C.§262(a)(2)(C)(i)(I) - Regulation of biologicalproducts: (“The Secretary shall approve a bio-logics license application . . . on the basis of ademonstration that . . the biological productthat is the subject of the application is safe,pure, and potent”).14. Dissent at Pp. 21-22 citing to Hurley v.

Lederle Labs, 863 F.2d 1173, 1177 (CA5 1988)(“[T]he FDA is a passive agency: it considerswhether to approve that vaccine designs only ifand when manufactures come forward with aproposal.”15. Dissent Pp. 21-22 citing to Hurley v.

Lederle Labs, 863 F.2d 1173, 1177 (CA5 1988)(“[T]he FDA is a passive agency: it considerswhether to approve that vaccine designs only ifand when manufactures come forward with aproposal.”16. Flublok, is produced by programming

insect cells to produce hemagglutinin, a fluvirus protein essential for entry of the virus intoyour body’s cells. Flublok is “the first the firsttrivalent influenza vaccine made using aninsect virus (baculovirus) expression systemand recombinant DNA technology,” “Insight:U.S. government investment gives flu vaccines

a shot in the arm,” Reuters, Julie Steenhuysen,Chicago Sat Jan 19, 2913 8:05 a.m EST and isapproved for use in adults only, ages 18-49.“This method allows for more rapid produc-tion, making more of the vaccine availablemore quickly in the event of a pandemic...17. In late November, 2012 the U.S. Food

and Drug Administration approved Novartis'new flu vaccine grown in cultures of dog kid-ney cells instead of the conventional chickeneggs, a faster and more reliable manufacturingprocess that could help build stockpiles in theevent of a pandemic. “Insight: U.S. govern-ment investment gives flu vaccines a shot inthe arm” by Chicago Tribune, JulieSteenhuysen Reuters January 19, 2013. Thistoo allows for speedier vaccine production,“First Genetically Engineered Flu VaccineNow on the Market,” Dr. Mercola, January 29,201318. “Health Officials Warn of H1N1

Vaccine's Link to Deadly Nerve Disease,” FoxNews. Published August 16, 200919. “Normally, about one person per

100,000 people per year will develop Guillain-Barré syndrome (GBS), an illness character-ized by fever, nerve damage, and muscle weak-ness. In 1976, vaccination with the swine fluvaccine was associated with getting GBS.Several studies have been done to evaluate ifother flu vaccines since 1976 were associatedwith GBS. Only one of the studies showed anassociation. That study suggested that one per-son out of 1 million vaccinated persons may beat risk of GBS associated with the vaccine.”Centers for Disease Control and Infection,“Seasonal Flu Shot.

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PO E T R Y CO R N E R

THE FLYBY JOSEPH DeFELICE

Buzz Buzz said the flyI am here all aroundRound your head,Near your eyesBuzz buzz said the fly

Try all that you mightwith all of your sightwith quickness of handcatch the fly will you not

Buzz buzz said the flyI am here on your armRound around goes the flyin your ear does it fly

Just buzzing aroundnear the one that it wantsyes the fly simply fliesin your hair or your nose

Oh swat all you mightwith all of your mightwith the buzz all aroundcatch the fly will you not

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* Mr. DeFelice practices Criminal and Immigration Law from his office inKew Gardens and is President-Elect of the Queens County Bar Assn.

Joseph DeFelice

Influenza Vaccine(Continued from page 6)


PH O T O CO R N E R

Alain Cesar, Tangier Harper, Anjana Nair andEdward Cherubin

Annamarie Brown, Hon. Morton Povman, LarryLitwack, Hon. Len Livote, Tom Principe and Hon.Seymour Boyers

David Adler and Louis Laurino

Diana Gianturco, Art Terranova and Hon. DarrellGavrin

Edward Guida, Hon. Darrell Gavrin and Joseph Risi George Nashak, Paul and Paula Pavlides

Hon. George Heymann, his daughter Briana, Yvetteand Richie Gutierrez

Hon. Jeff Lebowitz, Jessica Sin, Joe Risi and DaveAdler

Hon. Len Livote, Hon. April Newbauer and Joe Risi

Photos by Walter Karling

`


PH O T O CO R N E R

John Lopresto and John Scheich. Ken Brown, Hon. Maureen Healy, David Scott andJoe Carola

Kerry Katsorhis with his lovely daughters Nicoleand Valerie

Larry Litwack, Hon. Len Livote and Hon. SeymourBoyers

Lou Laurino, Greg Brown, Dave Adler and DavidCohen

Mona Haas, Hilary Gingold and Hon. MaureenHealy

Joe DeFelice and Jim Pieret Richard Lazarus, Hon. Darrell Gavrin and GeoNicholas

Joe Risi, Joe DeFelice and Kerry Katsorhis.

More toys donated for the foster agency Forestdale,Inc.

Some gifts given by attendees of Holiday Party

Photos by Walter Karling


find no relationship between the maintenanceof the account and the specific terrorist activi-ties of which plaintiffs complained. The harmto plaintiffs was caused by terrorist rockets, notmoney transfers. Therefore, the maintenanceof the accounts in New York, and the moneytransfers made through them, was “too attenu-ated” from the Hezbollah attacks to serve as abasis for personal jurisdiction. The courtdenied the plaintiffs’ request for limited disclo-sure on the jurisdictional issue.The Second Circuit found that New York

law as to jurisdiction premised on the use ofcorrespondent accounts was sufficientlyunsettled to require resolution by the NewYork Court of Appeals. Two questions werecertified. First was whether a foreign bank’smaintenance of a correspondent account at aNew York bank, and the use of that accountto make “dozens” of money transfers for aforeign client constitutes “transacting busi-ness” under New York law. Second, whetherthe plaintiffs’ claims of injury “arise from”LCB’s transaction of business in New York.Our Court of Appeals answered both ques-tions in the affirmative.As to “transacting business,” the Court

found that its most significant prior deci-sions were in Amigo Foods Corp., v MarineMidland Bank.26 A discussion of that caseis essential. It involved a shipment of pota-toes and a bank in Maine, Aroostook Trust.As with LCB in the present case,Aroostook’s only connection to New Yorkwas a correspondent account, with IrvingTrust. Amigo, a wholesaler, ordered thepotatoes from a Maine grower, Parent.Payment was to be made at Aroostook byway of a letter of credit fromAmigo’s bank,Marine Midland. Midland, for reasons ofconvenience and speed, delivered the letterof credit to Aroostook’s New York corre-spondent bank, Irving Trust. The transactionfell apart, with Amigo claiming that Parentwrongfully refused to accept payment andParent claiming that it never received pay-ment. Amigo sued the banks and Parent, andParent cross-claimed against the banks.Aroostook moved to dismiss for lack of per-sonal jurisdiction, asserting that it had nopresence in New York and took no actionsin New York at all. The Appellate Divisionheld that Irving was a correspondent bank,not an agent, and that there was no issuethat Aroostook transacted business here.The Court of Appeals, however, reversed

in favor of disclosure, since Amigo made anon-frivolous claim that Irving was indeedAroostook’s agent. The Court noted thatwhile a correspondent bank relationship, inand of itself, would not support long-armjurisdiction, disclosure would show what thecontext of the relationship actually was, andwhether or not Aroostook had transactedbusiness here so as to invoke the protectionsand benefits of New York’s laws. Uponremand and following disclosure, it becameclear that Amigo had directed its bank,Marine Midland, to wire the funds to Parent,that Marine Midland chose to deposit thefunds with Irving to the credit of Aroostookfor the benefit of Parent; that Parent directedAroostook to reject the payment; a directionwhich Aroostook relayed to Irving.Supreme Court denied Aroostook’s

motion to dismiss, and the AppellateDivision reversed and again dismissed thecomplaints as against Aroostook. The facts,as developed through disclosure, did not addanything to the relationship betweenAroostook and Irving beyond the mere factof a correspondent bank relationship.Aroostook’s position in this case was entire-ly passive, and it conducted no New Yorkactivities which could be said to haveinvoked the benefits and protections of NewYork’s laws. The Court of Appeals affirmed.The Second Circuit, in discussing the

import of Amigo Foods, had noted that thebest conclusion to be drawn was that the“transacting business” prong of CPLR 302(a)(1) “may be satisfied by the defendant’suse of a correspondent bank account in New

York, even if no other contacts between thedefendant and New York can be established,if the defendant’s use of that account waspurposeful.”27 The New York Court ofAppeals accepted that as an accurate state-ment of New York law. It is always neces-sary to examine the quality of a defendant’scontacts with New York. In Amigo Foods,the only possible basis for a finding of juris-diction would have been Aroostook’s use ofthe correspondent account with Irving, whenin fact the account was used by MarineMidland, not Aroostook.Accepting that correspondent accounts in

New York are used to send money world-wide for transactions with no other NewYork contact, and that this may result incomplicating a determination whether a for-eign bank’s use of such an account in a par-ticular case was purposeful or not,

“complaints alleging a foreign bank’srepeated use of a correspondent accountin New York on behalf of a client — ineffect, a ‘course of dealing’ — showpurposeful availment of New York’sdependable and transparent bankingsystem, the dollar as a stable and fungi-ble currency, and the predictable juris-dictional and commercial law of NewYork and the United States.”28

Comparison of the facts in Amigo Foodsand in the present case shows that while themere fact of a correspondent account will notsupport jurisdiction over a foreign bank whenthe defendant did not purposefully use thataccount (as in Amigo Foods), the purposefuluse of such an account will support jurisdic-tion (as in the present case). LCB here wasalleged to have used that correspondentaccount multiple times to transfer funds. Thelanguage of the certified question speaks of“dozens” of transfers,29 but it would seem thata single purposeful use of a correspondentaccount would be sufficient. The signal fact inAmigo Foods was not that there was only oneuse of the account, but that Aroostook had notitself made any use of the account.The second certified question was

whether or not the claims of foreign terror-ism “arise from” LCB’s transaction of busi-ness. Our Court of Appeals noted that thisrequires not causation, but only that there bean “articulable nexus” or a “substantial rela-tionship” between the transaction of busi-ness and the claim. This second prong of thejurisdictional test limits the first, so thatjurisdiction will be conferred only overthose claims “in some way arguably con-nected to the transaction”. Where even thisconnection is lacking, the cases refer to theclaims as being “too attenuated” from, or“merely coincidental” to it.30Here, and accepting the allegations of the

complaint as true, LCB used its correspon-dent account in New York to provide fundsfor Hezbollah to carry out terrorist attacks. Iftrue, LCB used the account in such a way asto violate duties owed to the plaintiffs underthe statutes under which plaintiffs make theirsubstantive claims. These claims provide asufficient “articulable nexus” and “substan-tial relationship” between the transaction ofbusiness and the claims to satisfy the “arisefrom” prong of the jurisdictional test.Whether the plaintiffs can in fact prove theseclaims at trial, is of course a different matter.The Court therefore answered both certi-

fied questions in the affirmative.

SPCA of Upstate N.Y., Inc. v AmericanWorking Collie Assn., 18 N.Y.3d 400, 940N.Y.S.2d 525 [2012]This was a defamation action, in which the

defendant Levitt published certain statementson a web site maintained by the defendantAmerican Working Collie Association(“AWCA”), which concerned the treatmentrendered to certain rescued dogs at plaintiff’sfacility in Queensbury, NY. Since AWCA hasneither offices nor employees in New York,and Levitt is a Vermont resident, and the state-ments were published to the web site fromVermont, the issue was whether New Yorkcould assert long-arm jurisdiction over them.After the dogs had been rescued, defen-

dant Levitt made several visits to the plain-

tiff’s facility, which totaled less than threehours, and several phone calls concerningthe care of the dogs. She and AWCA alsomade offers of assistance and donations forthat purpose. The critical statements on theweb site were made following the visits.CPLR 302, the long-arm statute, allows

jurisdiction over non-domiciliaries based ontortious acts, committed within the state orwithout the state but causing injury withinthe state (CPLR 302 [a][2,3]), but exceptsdefamation cases from the rule. Long-armjurisdiction in defamation cases may stillexist, however, where the defendant has pur-posefully transacted business within the stateand the claim arises from those transactions(CPLR 302[a][1]). This requires that there besome “articulable nexus” or “substantialrelationship” between the transaction and theacts constituting the claim. If the connectionis “diluted,” or “attenuated,” a jurisdictionalbasis will not exist. The line between the twois sometimes difficult to draw, as the 4 to 3split in this case demonstrates.In the context of defamation cases,

research activities within the state, togetherwith other activities directly related to thepublication, have been held sufficient to sup-ply the nexus.31 In Legros v. Irving 32 thedefamatory book was researched in NewYork, negotiations for and execution of thebook contract took place in New York andthe book was published here. InMontgomeryv. Minarcin 33 the defamatory broadcast wasresearched in New York, as well as written,produced and broadcast here.On the other hand, activities within the

state not directly related to the publicationhave been held insufficient. In Talbot v.Johnson Newspaper Corp., 34 one defendanthad attended college in NewYork. More thantwo years later, a co-defendant, her father,wrote letters to members of the collegeadministration concerning actions by a col-lege coach, which had supposedly been wit-nessed by the former student. The letters wererepublished in a local newspaper, as werestatements made by the student in a telephoneinterview. At the time of the action both stu-dent and father were California residents.Even assuming that the student’s pursuit of adegree in New York constituted the transac-tion of business, the Court of Appeals heldthat there was an insufficient nexus betweenthat and the allegedly defamatory statements.In Copp v. Ramirez 35 the defendants wereNew Mexico residents who had visited the9/11 site with the plaintiff for approximately60 hours before returning to New Mexico,where they made allegedly defamatory state-ments concerning plaintiff’s actions at thesite. Again, assuming that the visit to the siteconstituted the transaction of business, therewas an insufficient nexus between the activi-ties in New York and the statements com-plained of. The statements were made out-side New York and some years after thedefendants’ visit here, and so the connectionwas too attenuated to sustain jurisdiction.The majority here, in an opinion by Chief

Judge Lippman, found that the connectionbetween Levitt’s visits to New York and hertelephone calls, and her later postings to theAWCA web site was too attenuated to sus-tain jurisdiction. While her observationsconcerning alleged mistreatment of the dogswere made during these visits, the visitswere not undertaken for purposes of gather-ing information.The dissent, by Judge Pigott, found more

to Levitt’s activities than mere visits. Levittrepeatedly offered AWCA’s assistance withthe care of the rescued dogs, her visits werespecifically to check on the care being givento the dogs, and beyond Levitt’s activitiesthe AWCA sent members and volunteers toassist with the care of the dogs. The dissentfound in all of this both the purposeful activ-ities and the substantial relationship con-necting those activities to the web site post-ings to support jurisdiction.

LimitationsGress v Brown, ___ NY3d ___, ___ NYS2d___, 2012 NY Slip Op 08564 [2012]The issue here was whether challenge to a

wage freeze imposed by the Buffalo FiscalStability Authority (“BFSA”) was subject to

the two-year limitations period in the LivingWage Ordinance embodied in the City ofBuffalo Code, or to the four-month limitationsperiod applicable to Article 78 proceedings.Plaintiffs were at-will seasonal employees,

who ordinarily would have been entitled topay increases pursuant to the Living WageOrdinance.36 Since 2003, however, BFSA hashad the power to control and freeze the wagesof Buffalo city workers, and on April 21,2004, it exercised that authority with regard toall of Buffalo’s workers subject to its authori-ty. This class action for failure to pay increas-es due under the Living Wage Ordinance wascommenced in 2008. When BFSA’s wagefreeze was raised as a defense, the plaintiffsbrought BFSA into the action as a defendantand sought a declaration that they were notsubject to BFSA’s authority. BFSA, in turn,raised a limitations defense. Both SupremeCourt and the Appellate Division rejected thedefense, but the Court of Appeals reversed.The majority viewed the case as subject to

the rule that where a declaratory judgmentaction could have been brought in an alter-native form carrying a specific limitationsperiod, that specific limitations period willcontrol over the catch-all six-year limita-tions period of CPLR 213(1). The court willlook to the essence of the claim, or the statusof the defendant, in order to establish theavailability of an alternative form of action.Here, where the plaintiffs challengedBFSA’s suspension of their pay increases,their challenge could and therefore shouldhave been framed as an Article 78 proceed-ing, subject to the four-month limitationsperiod of CPLR 217. Hence, by waitingnearly four years before commencing suit,the plaintiffs acted untimely.The dissent pointed out that the essence of

the claim is that the plaintiffs were not sub-ject to BFSA’s wage-freezing authority, andthus the only thing that applied to them wasthe two-year limitations provision of theLiving Wage Ordinance. To which themajority replied that, whether it had theauthority or not, BFSA in fact did freeze theplaintiffs’ wages, in 2004, binding the plain-tiffs, the City and its Mayor. The vehicle tochallenge that administrative action was anArticle 78 proceeding.

Corsello v Verizon N.Y., Inc., 18 N.Y.3d 777,944 N.Y.S.2d 732 [2012]The Court of Appeals here confronted the

limitations questions in an “inverse condem-nation” case.The complaint alleged that Verizon had

placed a box on the plaintiffs’ building,which it used to facilitate telephone servicesto a number of buildings. Plaintiffs claimthat Verizon never informed them that theyhad a right to compensation, that it misledthem into believing that had a right to do so,and that in essence it tricked them. To adoptthe Court of Appeals’ pithy explanation ofthe technical aspects: “Plaintiffs claim, insubstance, that Verizon is using their build-ing as a substitute for a telephone pole, with-out paying plaintiffs for the privilege.”Verizon apparently had the right to position

its box on plaintiffs’ building by virtue ofTransportation Corporations Law § 27, whichalso provides that the corporation placing theequipment on someone’s property must payfor the privilege, which Verizon had not both-ered to do. The statute further provides that ifthe parties cannot reach agreement on theamount of compensation, it shall be fixed asunder the eminent domain procedure law. Theright of the corporation to invade the plaintiffs’property under color of state law amounts to aform of eminent domain, without the formalexercise of that power through a condemnationproceeding. The right of the property owner torecover the value of the taken property isknown as “inverse condemnation.” The Courtof Appeals determined here, as had the courtsbelow, that the property owner had stated avalid claim for “inverse condemnation.”Plaintiffs had also pleaded claims for tres-

pass, unjust enrichment and deceptive tradepractices in violation of General BusinessLaw § 349, and had sought class certification.Verizon moved to dismiss, on variousgrounds including limitations. In the

CPLR Update(Continued from page 1)



Appellate Division, the inverse condemna-tion claim had been dismissed as time-barred,but the General Business Law claim had beenfound timely. The unjust enrichment claimhad been sustained against a challenge that itwas duplicative of the other claims. Theapplication for class certification was denied.The trespass claim was not at issue on the

appeal, but the Court noted that, at least forpleading purposes, both claims could co-exist. Which would ultimately prove todescribe the facts (and govern the remedy)would depend on whether the invasion ofthe plaintiffs’ property turned out to be per-manent or temporary.We are concerned here, however, with the

issue of limitations. The Court of Appealsheld to the contrary of theAppellate Divisionon both limitations questions: the inversecondemnation claim was asserted timely, butthe General Business Law claim was not.The box was placed on plaintiffs’ property

long ago, when the telephone company wasstill the New York Telephone Company. TheAppellate Division held that the claim was ofan injury to property, and hence subject to the3-year limitations period of CPLR 214(4).Without more, the claim would indeed havebeen untimely. The Court of Appeals heldthat the claim is, however, saved by RealProperty Law § 261, which states:

“Whenever any wire or cable used forany telegraph, telephone, electric lightor other electric purpose, or for the pur-pose of communication otherwise thanby the aid of electricity, is or shall beattached to, or does or shall extendupon or over any building or land, nolapse of time whatever shall raise a pre-sumption of any grant of, or justify aprescription of any perpetual right to,such attachment or extension.”

TheAppellate Division had viewed this asmeaning no more than that Verizon couldnot claim title by adverse possession, or aprescriptive easement, and thus did not barthe limitations defense. The Court ofAppeals, however, gave it a broader inter-pretation, that Verizon could not unlawfullyattach its wires to the plaintiffs’ property andthen preclude their remedy by a limitationsdefense, by whatever theory the remedy wassought. The inverse condemnation claimwas therefore not time-barred.The General Business Law claim was

untimely, however. The claim of deceptionwas based on the allegations that Verizonaffixed the box to the building withoutinforming the plaintiffs of their right to com-pensation, and in falsely informing them thatit had a right to affix the box. The claim comesunder the 3-year limitations period of CPLR214 (2), as an action to recover on a liabilitycreated or imposed by statute. On its face, thecomplaint does not allege any such acts with-in 3 years of the commencement of suit. TheAppellate Division found that by concealingits wrongdoing, Verizon had prevented theplaintiffs from bringing suit, and was there-fore estopped from asserting the limitationsdefense. However, the Court of Appeals hasheld that where the defendant has done noth-ing more than fail to disclose his wrongdoing,there is nothing which prevented the plaintifffrom suing and hence no grounds for an estop-pel.37 The estoppel doctrine requires that thedefendant have taken actions which somehowprevented the plaintiff from suing timely, asby fraudulent misrepresentations after the actssued upon. Since there was no subsequentmisrepresentation here, other than the sued-upon misrepresentation itself, there was noestoppel and the claim was untimely.The Court of Appeals held, also, that the

unjust enrichment claim was indeed duplica-tive of the other claims, and that class certi-fication was properly denied on the groundsthat the plaintiffs’ claims were likely to bespecific to their building and not representa-tive of a class.

Hahn Automotive Warehouse, Inc. v

American Zurich Ins. Co., 18 N.Y.3d 765,944 N.Y.S.2d 742 [2012]Where an insurer and insured have a long-

running relationship, and where the insureromits to bill the insured for outstandingdeductibles and retroactively-calculated pre-miums for over 10 years, the claims arebarred by limitations. The 6-year periodaccrues and starts to run at the time when theinsurer had the right to demand payment, notat the time years later when it actually did so.Here, the plaintiff Hahn Automotive

(“Hahn”) and the defendant insurers(“Zurich”) had a business relationship fromthe early 1990’s until the mid-2000’s. Therewere multiple forms of policies involved,which fell into four categories, including (1)retrospective premium policies; (2) adjustabledeductible policies; (3) policies withdeductibles; and (4) claim services contracts.The first two categories were similar in thatthey both involved the payment of initial pre-miums, to be recalculated by Zurich on a reg-ular basis, with Hahn to pay additional sumsfor additional premiums or deductibles asbilled on an annual basis after an initial 18-month period. In the deductible category,Zurich was to pay the claims, and then billHahn for the deductible amounts, plus certainfees. The deductible amounts were to be billedon a monthly basis, payable within 20 days ofthe demands. The claim services contractsinvolved damage claims to automobiles, andwere to be paid on a per-claimant basis.It was not until Zurich performed an

internal audit in 2005 that it found that ithad not billed Hahn for deductibles orexpenses on two of the deductible policies(category 3) for 10 years, involving policiesissued in September 1995-1996. Zurich sentHahn an invoice in April of 2005, seekingpayment of $1.123 million, which Hahn didnot pay. In March of 2006 Zurich sent aninvoice for $751K, for adjustments due onthe retrospective premium policies (catego-ry 1) and adjustable deductible policies(category 2), reflecting adjustments claimedfrom March 1995 through March 2005.Also in March of 2006 Zurich sent anotherinvoice, this time for $71K, for bills on theclaim services contracts (category 4) that ithad neglected to send. When Hahn failed topay any of these invoices, Zurich applied tothe balance a $400K line of credit whichHahn had on deposit with it.Hahn commenced this action to recover

damages from the alleged misuse of the lineof credit, and a declaration that any bills fordebts arising more than six years from thecommencement of the action were time-barred by the contract limitations period.Zurich counterclaimed for breach of contractfor non-payment of the amounts billed in theinvoices. Both sides moved for summaryjudgment. Supreme Court agreed with Hahnthat any claims for unpaid bills accrued whenZurich could have demanded payment, andthat therefore the statute of limitations hadrun on all bills for which Zurich had the rightto demand payment more than six years priorto the commencement of the action. Thecourt also found that Zurich had not misusedthe line of credit, but did not dismiss Hahn’scauses of action related to it.The Appellate Division affirmed with

regard to the statute of limitations, and mod-ified by dismissing the claims related to theline of credit. There was a one-judge dissent,who concluded that the limitations periodfor the invoices did not begin to run untilHahn refused payment.In the Court of Appeals limitations was the

only issue, and the Court affirmed, 4-3. Thegeneral principle is that a cause of actionaccrues and the limitations period starts to runwhen all the facts necessary to state the causehave occurred, and in contract cases this gen-erally means at the time of breach. The Courtendorsed a line of Appellate Division casesholding that when the issue is money dueunder a contract, the cause of action accruesand the limitations period starts when theclaimant “had the right to demand payment,not when it actually made the demand.”38Applying that rule, the Court agreed with theAppellate Division majority that the limita-tions periods on Zurich’s claims began to runwhen it had the right to demand payment, not

years later when it finally did so. Therefore,any claim where it had the right to demandpayment more than 6 years prior to the com-mencement of the suit was time-barred.Otherwise, a party in Zurich’s position wouldbe able to delay the limitations period indefi-nitely, by the simple device of delaying itsdemand for payment.The dissent would have looked to the par-

ticular nature of the insurance contracts,where the insured does not know how muchit owes the insurer, if anything at all, until theinsurer recalculates the premium pursuant tothe policy and delivers an invoice. The major-ity’s rule creates the situation, which the dis-sent found “illogical,” that the cause of actionmay have accrued, and the limitations clockmay be ticking, before the insured has hadany opportunity to pay, that is, before anybreach has in fact occurred. The dissentviewed the recalculation provisions of theinsurance contract as creating “a running tallyof debits and credits, which remained openuntil such time as all claims or expenses for aparticular policy year were resolved”.39 Thedissent viewed the majority’s conclusion asbeing contrary to the view taken in retrospec-tive premium cases by the leading commen-tators 40 and cases nationwide.41

MiscellaneousCPLR 2310, which exempted subpoenas

issued by the NY State Labor RelationsBoard from the provisions of CPLR Article23, has been repealed.42 Henceforth, suchsubpoenas will be governed by Civil ServiceLaw §205.5, which incorporates the provi-sions of the CPLR by reference. (CivilService L. §205.5[k])

Mirvish v Mott, 18 N.Y.3d 510, 942N.Y.S.2d 404 [2012]While not stating broad principles from a

procedural standpoint, this decision is inter-esting for its comments on the Dead Man’sRule, CPLR 4519. It also illustrates that alimitations defense can be waived by anagreement to have a dispute determined onthe merits, even though the agreement neverexpressly mentions the limitations defense.This was a dispute over a bronze sculpture

by the sculptor Jacques Lipchitz. The factsare convoluted, and have here been simpli-fied somewhat for purposes of discussion.Petitioner, Mirvish, claims that the origi-

nal owner, the sculptor’s widow YullaLipchitz, gave the sculpture to her friend,Biond Fury, during her lifetime. The gift wasmade by a writing (on the back of a photo-graph of the sculpture) which was given byYulla to Fury in 1997. At that time the sculp-ture was in a warehouse, owned by theMarlborough Gallery.In 1998 the sculpture was removed from

the warehouse at the direction of the respon-dent, Mott, who is Yulla Lipchitz’ son, andwas sent to Paris for exhibition at the Louvre.Fury claimed that the removal was donewithout his authorization or knowledge.Yulla Lipchitz died in July of 2003, and

her will was admitted to probate thatAugust.Mott was named as the executor of the will.By letter date March 9, 2004, Fury claimedownership of the sculpture and demandedthat it be delivered to him. Fury then sold hisinterest in the sculpture to the petitioner,Mirvish, in September, 2005.This proceeding was commenced in the

Surrogate’s Court in July, 2006, seeking adeclaration that Mirvish as Fury’s assigneeis the owner of the sculpture, and assertingclaims in conversion, replevin, and con-structive trust. Mott’s answer included a lim-itations defense. Both sides moved for sum-mary judgment.In 2007, while the summary judgment

motions were pending, Mirvish filed anaction in Supreme Court againstMarlborough, claiming conversion and seek-ing the return of the sculpture. The action wassettled in August, 2007, with both sidesagreeing that the sculpture was to be held inescrow pending a final determination by aNewYork State court of the ownership issues.The settlement stipulation was also signed byMott as executor of Yulla Lipchitz’ estate.The Surrogate’s Court granted Mirvish’s

motion and denied Mott’s, finding that Yulla

Lipchitz did make a gift of the sculpture toFury, as shown by the writing on the photo-graph.In the Appellate Division,43 both sides

argued for summary judgment on the merits.The Appellate Division held that Mirvish’smotion was insufficient on the merits, since allof his proffered evidence came from Fury’saccount of his dealings with the deceasedYulla Lipchitz, and thus was barred by CPLR4519, the Dead Man’s Rule. Mott, on hismotion, argued that there was no evidence thatYulla Lipchitz gave up dominion and controlover the sculpture to Fury, and thus that wasever a completed gift. In support, Mott sub-mitted a letter from the Marlborough Galleryto the French Government, which reflectedthe arrangement to loan the sculpture to theFrench Government for display in Paris. Theloan was to be for three years or until YullaLipchitz died, with the sculpture to bereturned to family for sale. The AppellateDivision found that this was not dispositive,and at best raised a triable issue.The Appellate Division found that the

statute of limitations was dispositive infavor of the Mott, and sufficient to reversethe Surrogate’s Court. The court held thatthe action was subject to a 3-year limitationsperiod, since it sounded in conversion andreplevin, and that the claims accrued no laterthan 1998, when Mott first removed thesculpture from Marlborough’s warehouse onloan to the French government. The courtfound that the 2007 settlement of theSupreme Court action could not be consid-ered as a waiver of the limitations defense,since such a waiver must be explicit and thesettlement made no mention of limitations.The Court of Appeals reversed, and rein-

stated the Surrogate’s Court decree in favorof Mirvish. As to the sufficiency ofMirvish’s motion, the Court found that theSurrogate had correctly determined thatYulla’s writing evidenced an inter vivos gift,and the possession of the gift after thedonor’s death created a presumption ofdelivery during the donor’s life. The DeadMan’s Statute was no bar to the considera-tion of the writing or the presumption itspossession created.The Court of Appeals also found that the

limitations defense was in fact waived bythe 2007 settlement of the Supreme Courtaction, since that settlement evinced theagreement by all sides to have the courtsdetermine ownership on the merits.

Coleman v Daines, 19 N.Y.3d 1087, ___NYS2d ___, 2012 NY Slip Op 07222 [2012]The plaintiff initially applied to the New

York City Human Resources Administrationfor personal care attendant services inNovember, 2007, and again in January, 2008.Her application was finally granted in June,2008. She commenced this class actionclaiming that HRA and the Department ofHealth failed to decide her claim timely andviolated her rights under Social ServicesLaw § 133 to due process by not giving hernotice that temporary benefits were availableat the time of her application. Supreme Courtdismissed the petition as moot, since she wasin fact receiving the benefits she claimed.The Appellate Division reversed, and the

Court of Appeals affirmed, 4-3, holding thatthe case comes within the exception to themootness doctrine. The exception applies“where the issue to be decided, thoughmoot, (1) is likely to recur, either betweenthe parties or other members of the public;(2) is substantial and novel and (3) will typ-ically evade review in the courts.”44 Here,while the plaintiff is indeed receiving theservices she originally requested, her claimis that the respondents maintain a policy ofnot informing applicants of the availabilityof temporary assistance through Medicaid.This policy is alleged to been applied to allsimilarly situated claimants seeking thesame benefits as the plaintiff, it is likely torecur. The ramifications of such delays makethe issue “substantial,” and the brief natureof the alleged violation means that it willtypically avoid judicial review.The dissent would have held that an

amendment to the Social Services Law §




133, which now has enlarged the category ofrecipients entitled to temporary assistance,means that the issues are no longer likely torecur, and that therefore the exception to themootness doctrine does not apply.

PartiesSwezey v Merrill Lynch, Pierce, Fenner &Smith, Inc., 19 N.Y.3d 543, 950 N.Y.S.2d293 [2012]This case concerned the efforts of a large

class of victims of the Marcos regime in thePhilippines to recover for damages sufferedat the hands of the regime. Known as the“Pimentel class,” they recovered a judgmentagainst Marcos’ estate for almost $2 billion,but collecting has proven quite difficult. ThePhilippine Republic has undertaken its ownprogram to recover the assets stolen byMarcos and other members of his adminis-tration. In this turnover proceeding, a mem-ber of the Pimentel class seeks to enforce thejudgment against an asset, nominally anasset of the Marcos estate, to which thePhilippine Republic has a competing claim,as stolen property. Since the PhilippineRepublic is unwilling to have the validity ofits claim determined by a New York court,and has therefore asserted its sovereignimmunity as a bar to the assertion of juris-diction over it, the question becomeswhether dismissal of the turnover proceed-ing is required. Both the Appellate Divisionand now the Court of Appeals have deter-mined that dismissal is indeed required.The asset in question is a brokerage

account with Merrill Lynch in the name ofArelma, SA, a Panamanian corporation, nowworth some $35 million. The shares repre-senting ownership of Arelma have beendeposited in an escrow account in thePhilippine National Bank until a specialPhilippine court, the Sandiganbayan, deter-mines whether the assets are owned by theMarcos estate or the Republic. In the mean-time, the Republic requested that MerrillLynch transfer the funds in the brokerageaccount to that escrow account, whichMerrill Lynch refused to do because of thecompeting claims to the funds, includingthose of the Pimentel class. Merrill Lynchcommenced a federal interpleader action todetermine the competing claims, but theRepublic claimed sovereign immunity, andthe matter wound up dismissed by the USSupreme Court, since the Republic was arequired party under the FRCP.45 The HighCourt held that dismissal was required wherethe interests of the foreign sovereign wouldotherwise be injured, and that comityrequires that a foreign state be allowed to useits own courts to resolve its own disputes.At that point, the plaintiff, as noted a mem-

ber of the Pimentel class, commenced thisturnover proceeding against Merrill Lynch toexecute the $2 billion judgment against thefunds in the Arelma account. Then, theSandiganbayan rendered its determinationthat the funds used to establish the accountbelonged to the Republic, and not the Marcosestate. The Philippine National Bank andArelma moved for leave to intervene in theturnover proceeding, asserting that thePhilippine Republic was an indispensableparty, but could not be joined due to sover-eign immunity. Supreme Court granted leaveto intervene but denied the motion to dis-miss, finding that the matter could go for-ward without the Republic as a party. TheAppellate Division reversed and dismissed,finding that pursuant to CPLR 1001 the casecould not proceed without the Republic.The Court of Appeals noted that after oral

argument before it, the Philippines SupremeCourt affirmed the determination of theSandiganbayan. The plaintiff has taken theposition that as a non-party to that action,she is not bound by the determination.An person is a necessary party if his pres-

ence in the action is required for there to becomplete relief to the existing parties, orwho might be inequitably affected by thejudgment.46 CPLR 3211 (a)(10) sets forththe procedural vehicle for such a dismissal,

but the grounds upon which the court maydo so are governed by CPLR 1001 (b),which sets out five factors which the courtmust consider when the party may be joinedonly upon his consent or voluntary appear-ance.47 The court must consider all five fac-tors, but no single one of them is determina-tive. The aim is to guarantee that the absentparty is not prejudiced by judgments affect-ing their rights when they have not had theopportunity to be heard.The first question, of course, was whether

or not the Philippine Republic was a neces-sary party at all. Not in the sense that itspresence was required in order for thePimentel class to get the relief it wanted, butcertainly in the sense that the Republicmight be inequitably affected by the judg-ment. If the plaintiff prevailed and the fundsin the account were liquidated, there wouldbe nothing left to satisfy the Republic’sclaim that the funds in fact had been lootedfrom the Philippine people.The five statutory factors must therefore be

considered. The first factor, whether the plain-tiff has an effective remedy if the action is dis-missed for non-joinder, is in the plaintiff’sfavor. She will not have an available remedyin the event of dismissal, nor even a forum inwhich to press her claim to the assets.The second factor, prejudice to the absent

party, favors dismissal, strongly so in theCourt’s opinion. It is not merely that allowingexecution of the Pimentel judgment againstthese assets would affect the Republic’s claimto them. The Republic’s claim is based on sev-eral factors that reflect its national interest:Philippine law concerning forfeiture of stolenproperty that predates the Marcos regime; evi-dence that the billions of dollars purportedlyin the Marcos estate were in fact looted fromthe people of the Philippines; findings by thePhilippine Supreme Court and the SwissFederal Supreme Court that Marcos stolethese assets from the Republic; and the deter-mination of the Sandiganbayan, affirmed bythe Philippine Supreme Court, that the specif-ic funds in the account at issue belonged to thepeople of the Republic and not to Marcos.The third factor, concerning whether any

party could have minimized the prejudice ormight be able to do so in the future, does notspeak against dismissal. The Republic’sassertion of immunity is part of the law ofnations. As the US Supreme Court noted indismissing the federal interpleader action,the privilege of asserting sovereign immuni-ty would be diminished if determinationsaffecting its interests could be determined bya foreign court in its absence and over itsobjection.48 The highest courts of threenations, including our own, have shown thatforcing the determination of the claims tothe assets in the account at issue wouldadversely affect international comity and theself-interest of the various nations.The Court distinguished this case from

Saratoga County Chamber of CommerceInc. v. Pataki,49 a taxpayer declaratory judg-ment action where the plaintiffs sought adeclaration of the unconstitutionality of acompact entered into by the Governor withthe St. Regis Mohawk Indian Tribe to permitcasino gambling on the Tribe’s reservationand an injunction against the use of Statefunds to implement it. The State sought todismiss the action on several proceduralgrounds, including that of the absence of theTribe from the lawsuit, claiming that it wasan indispensable party. The State claimedthat the action should be dismissed due tothe Tribe’s absence.The State relied upon the second of the

factors (prejudice to the absent party). Theprejudice claimed was that an adverse judg-ment would remove the authority underwhich the Tribe operates the casino. Theplaintiffs relied upon the first factor, whichrequires the court to consider whether theplaintiff has another effective remedy if theaction is dismissed. The Court of Appealsfound the effective-remedy factor to bedeterminative, since the plaintiffs wouldhave no remedy if the action were dis-missed, and in fact no claim of unconstitu-tionality could ever be raised against anycompact with any entity beyond the jurisdic-tion of our courts.

That is to say, the essential issue inSaratoga County Chamber of Commercewas the extent of the constitutional powersof the Governor. Here, the issue is whichparty owns certain assets, and does not justi-fy an exception to the general rule, stated bythe US Supreme Court in the federal inter-pleader case, that

“where sovereign immunity is asserted,and the claims of the sovereign are notfrivolous, dismissal of the action mustbe ordered where there is a potential forinjury to the interests of the absent sov-ereign.”50

The fourth factor is the availability of aprotective order, which the Court notedwould effectively be accomplished by a dis-missal, since that would leave neither partyable to take over the funds in the account atthe present time, so that neither party wouldbe prejudiced at the expense of the other.The fifth factor, whether an effective

judgment can be entered without the missingparty, was in favor of dismissal due to thepossibility of conflicting judgments if theclaim went forward in the absence of juris-diction over a party such as the Republicwith a conflicting claim to the account. TheCourt noted that the determination of thePhilippine Supreme Court places theRepublic in a position to seek enforcementof that judgment here. If, however, the assetshave already been turned over to the plaintiffand the Pimentel class, the Republic mightturn to Merrill Lynch to satisfy its judgment.The possibility of duplicate liability againstthis party would not further the resolution ofthe dispute as a whole.Based on its consideration of all the fac-

tors, the Court held that the case could notbe decided in the absence of the Republic,and that in its absence dismissal wasrequired. The Court expressed its sympathyto the Pimentel class members. It noted,however, that their dispute was with theestate of Marcos, and could only be execut-ed against its lawful assets. If, as thePhilippines’ highest court has determined,the assets involved here belong to thatnation and not to the Marcos estate, the classmembers have no lawful claim to them.

PleadingsCPLR 3015(e), concerning complaints bybusinesses subject to licensing require-ments, has been amended to allow suchcomplaints as long as the business waslicensed when the claim arose. Under theexisting provision, a business such a homeimprovement contractor would have to keepits licenses in effect for as long as the litiga-tion continued.51

TrialHolstein v Community Gen. Hosp. ofGreater Syracuse, ___ NY3d ___, ___NYS2d ___, 2012 NY Slip Op 07857 [2012]In Duffy v Vogel,52 the Court of Appeals

determined that even in a civil case a party’sright to poll the jury after a verdict wasabsolute, and that a court’s failure to allowthe jury to be polled upon request was notsubject to harmless error analysis. The fail-ure required a reversal and a new trial.Here, however, after a plaintiff’s 5-1 ver-

dict, the defendant requested that the jury bepolled. When the court pointed out that eachof the jurors had signed the verdict sheet,counsel seemed to acquiesce by saying:“Okay. All right. Thank you,” after whichthe court dismissed the jury. Two weekspassed before the defendant moved to setaside the verdict and for a new trial on thegrounds of the failure to poll the jury.Supreme Court denied the motion, and theAppellate Division affirmed, as did theCourt of Appeals here.Counsel’s response made it reasonable for

the court to conclude that the request hadbeen withdrawn.

David H. Rosen served in the SupremeCourt, Queens County, as Principal LawClerk to Justice Arthur W. Lonschein from1980 to 2000, and as Court Attorney/Refereefrom 2001 to 2010. He is now in private

practice. Any comments may be addressed [email protected]

24. Licci ex rel. Licci v. Lebanese Canadian Bank,SAL, 673 F.3d 50, 74-75 [C.A.2 (N.Y.),2012]. Thespecific questions certified were:“(1) Does a foreign bank’s maintenance of a corre-spondent bank account at a financial institution in NewYork, and use of that account to effect ‘dozens’of mul-timillion dollar wire transfers on behalf of a foreignclient, constitute a ‘transact[ion]’ of business in NewYork within the meaning of N.Y. C.P.L.R. § 302(a)(1)?(2) If so, do the plaintiffs’ claims under theAnti–Terrorism Act, the ATS, or for negligence orbreach of statutory duty in violation of Israeli law,‘aris[e] from’ LCB’s transaction of business in NewYork within the meaning of N.Y. C.P.L.R. §302(a)(1)?25. Federal claims were pleaded under the Anti-Terrorism Act (USC § 2333 [a]); and the Alien TortStatute (28 USC § 1350).26. Amigo Foods Corp. v Marine Midland Bank-N.Y., 39 N.Y.2d 391, 384 N.Y.S.2d 124 [1976]; onappeal after remand, 61 A.D.2d 896, 402 N.Y.S.2d406 [1st Dept., 1978], aff’d for reasons stated in AD,46 N.Y.2d 855, 414 N.Y.S.2d 515 [1979]27. 673 F3d at 6628. 2012 NY Slip Op 07854, 8-929. The text of the questions is set out at note 1,supra.30. 2012 NY Slip Op 07854, 9-1031. See, Legros v. Irving, 38 A.D.2d 53, 327N.Y.S.2d 371 [1st Dept., 1971] (defamatory bookwas researched in New York, negotiations for andexecution of the book contract took place in NewYork and the book was published here);Montgomeryv. Minarcin, 263 A.D.2d 665, 693 N.Y.S.2d 293 [3rdDept., 1999] (defamatory broadcast was researchedin NewYork, as well as written, produced and broad-cast here).32. Legros v. Irving, 38A.D.2d 53, 327 N.Y.S.2d 371[1st Dept., 1971]33. Montgomery v. Minarcin, 263 A.D.2d 665, 693N.Y.S.2d 293 [3rd Dept., 1999]34. Talbot v. Johnson Newspaper Corp., 71 N.Y.2d827, 527 N.Y.S.2d 729 [1988]35. Copp v. Ramirez, 62 A.D.3d 23, 874 N.Y.S.2d 52[1st Dept., 2009]; lv. denied, 12 N.Y.3d 711, 882N.Y.S.2d 397 [2009]36. City of Buffalo Code § 96-1937. Ross v Louise Wise Services, Inc., 8 N.Y.3d 478,836 N.Y.S.2d 509 [2007]; Zumpano v Quinn, 6NY3d 666, 816 NYS2d 703 [2006]38. 18 NY3d 765, 770-771. The cases cited were:Minskoff Grant Realty & Mgt. Corp. v 211 Mgr.Corp., 71 AD3d 843, 845 [2d Dept 2010]; Kuo vWall St. Mtge. Bankers, Ltd., 65 AD3d 1089, 1090[2d Dept 2009]; Swift v New York Med. Coll., 25AD3d 686, 687 [2d Dept 2006]; Kingsley Arms, Inc.v Copake-Taconic Hills Cent. School Dist., 9 AD3d696, 698 [3d Dept 2004], lv dismissed 3 NY3d 767[2004]; Albany Specialists v Shenendehowa Cent.School Dist., 307 AD2d 514, 516 [3d Dept 2003])39. 18 NY3d 765, 77440. 6-35 Appleman on Insurance 2d § 35.341. The dissent cited: Continental Ins. Co. v CoyneIntl. Enter. Corp., 700 F Supp 2d 207 [ND NY2010]; Reliance Ins. Co. v Griffin Dewatering Corp.,2007WL 1165557, 2007 US Dist LEXIS 29110 [NDInd 2007]; Potomac Ins. Co. of Ill. v RichmondHome Needs Servs., Inc., 2006 WL 2521283, 2006US Dist LEXIS 62224 [SD NY 2006]; Liberty Mut.Ins. Co. v Precision Valve Corp., 402 F Supp 2d 481[SD NY 2005]; Transportation Ins. Co. v Star Indus.,Inc., 2005WL 1801671, 2005 US Dist LEXIS 43121[ED NY 2005]; Temploy, Inc. v Companion Prop. &Cas. Ins. Co., 2008 WL 4495782, 2008 US DistLEXIS 78572 [SD Ala 2008]; Brookshire GroceryCo. v Bomer, 959 SW2d 673 [Tex Ct App 1997];Continental Cas. Co. v Stronghold Ins. Co., Ltd., 77F3d 16, 22 [2d Cir 1996].42. L. 2002, ch. 333, eff. 8-01-201243. Mirvish v. Mott, 75 A.D.3d 269, 901 N.Y.S.2d603 [1st Dept., 2010]44. 19 NY3d 1087, 109045. Republic of the Philippines v Pimentel, 553 US851 [2008]46. CPLR 1001 (a)47.These are:1. whether the plaintiff has another effective remedyin case the action is dismissed on account of the non-joinder;2. the prejudice which may accrue from the nonjoin-der to the defendant or to the person not joined;3. whether and by whom prejudice might have beenavoided or may in the future be avoided;4. the feasibility of a protective provision by order ofthe court or in the judgment; and5. whether an effective judgment may be rendered inthe absence of the person who is not joined.48. Republic of the Philippines v Pimentel, 553 US at868-86949. Saratoga County Chamber of Commerce Inc. v.Pataki, 100 N.Y.2d 801, 766 N.Y.S.2d 654 [2003],cert. den. 157 L. Ed. 2d 430, 124 S. Ct. 570 [2003]50. Republic of Philippines v. Pimentel 553 U.S.851, 867, 128 S.Ct. 2180, 2191 [U.S.,2008]51. L. 2012, ch. 458, eff 10-03-201252. Duffy v Vogel, 12 N.Y.3d 169, 878 N.Y.S.2d 246[2009]



What does this mean to the Civil CourtLandlord-Tenant attorney? What this meansto you is that the standard Chapter 7 and 13voluntary petitions (a 3 page document) havea “Certification” section incorporated intothem, where a debtor must certify and checkoff four boxes wherein it is stated “landlordhas a judgment against the debtor for posses-sion of debtor’s residence” and the name andaddress of the landlord must be written. And,the debtor must claim that under applicablenonbankrupcty law there are circumstancesunder which the debtor would be permitted tocure the entire monetary default. Further, thedebtor must deposit with the Clerk of theBankruptcy Court any rent that would becomedue during the 30-day period after the filing ofthe petition (a month’s rent in advance). Andfinally, the debtor must serve the Landlordwith the Certification.

If the tenant/debtor complies with 362 (l), itgives a tenant a 30 day respite (safe harbor) butkeep in mind the tenant is required to pay thefirst month’s rent into Court (Bankruptcy CourtClerk). If you’re an attorney that representsLandlords - don’t youwishNewYork State andCity Courts had such a requirement! There areno technical rules of service and a bankruptcycourt is likely to find any method of actualservice on the Landlord or the Landlord’s attor-ney as good service. The tenant must strictlycomply with all four prongs of the certificationor the eviction proceeding is not stayed. Youcan at least mollify an irate Landlord by tellinghim or her that the tenant had to at least depositone month’s rent with the Court and that theLandlord will be entitled to that money. (Forpurposes of this article the terms “debtor” and“tenant” are used interchangeably as well as theterms ‘Landlord” and “lessor”)

What happens next after the initial 30 daysends. Well §362 (l) (2) states:

If, within the 30-day period after the filingof the bankruptcy petition, the debtor com-plies with paragraph (1) and files with courtand serves upon the lessor a further certifica-tion under penalty of perjury that the debtorhas cured, under nonbankrupcty law applica-ble in the jurisdiction, the entire monetarydefault that gave rise to the judgment underwhich possession is sought by the lessor,Subsection (b) (22) shall not apply, unlessordered to apply by the court under Paragraph(3). (emphasis added)

In other words, the tenant/debtor must file asecond certification within 30 days and pay theLandlord the entire monetary default in orderfor the eviction to be stayed. The first certifica-tion grants a tenant a 30 day breathing period.The tenant must then decide whether they wantor can pay the entire amount of the money dueto the Landlord. This situationmay satisfymostlandlords. It may be good to keep in mind that§ 362 (l) has been found to apply only to mon-etary defaults that gave rise to the judgment ofpossession and not to holdover proceedings orto other evictions that do not concern monetarydefaults. In re Harris, 424 BR 44. In addition, itis good to keep in mind that if there are personsresiding in a dwelling are not considered“Tenants” under New York state law (i.e.Squatter, licensee) there is no stay and theMarshal can continue the eviction unabated byany bankruptcy filing.

However, what if the Landlord does notagree that the tenant has fully complied withthe requirements of the Certifications - whatis one to do? The answer is § 362 (l) (3) (A)(B) which states that if the lessor files anObjection to either certifications under sub-sections (1) or (2) and serves the Objectionon the debtor, the Court shall hold a Hearingwithin 10 days. The Landlord does not needto file a motion to lift the stay – theObjection and filing of the proof of servicewill trigger an Expedited hearing within 10days. The Landlord/lessor would presumablyclaim that the entire amount of the moneydue was not paid or timely paid or that the

judgment of possession was not truly basedon monetary considerations.

If at the hearing on the lessor’s Objection,the Court upholds the Objection (finds infavor of the Landlord), § 362 (l) (3) (B) (i)directs that subsection (b) (22) {the sectionthat states the automatic stay does not applyto evictions} shall apply immediately andrelief from the stay provided under (a) (3)shall not be required to complete the processto recover full possession of the property;and, the Clerk of the Court Shall immediate-ly serve upon the lessor and the debtor a cer-tified copy of the Court’s Order upholdingthe lessor’s objections. (emphasis added)

So to review and not get too deep into theweeds, if a tenant files a bankruptcy petitionafter a lessor obtains a judgment of posses-sion, that tenant (who is now called a“debtor”) must file with the petition a certifi-cation that they have complied with the fourbasic requirements referred to earlier, in orderto obtain the 30 day breathing period (“safeharbor”). If the tenant does not comply withthe Certification filing requirements there isno stay of eviction. However, if there is aproperly filed certification, the lessor can filean Objection and obtain an ExpeditedHearing within 10 days. If the Objection isupheld, there is no automatic stay and anOrder is issued forthwith. The second part ofthe statute requires that the tenant file a sec-ond certification and cure (“pay”) the entiremoney default which gave rise to the judg-ment of possession within 30 days of the fil-ing of the petition in order for the automaticstay against eviction to continue. The Lessoris also given a second opportunity to file anObjection to the tenant’s second certificationand receive an Expedited Hearing on the mat-ter. In this manner the normal technical pro-cedural requirements of filing a formalmotion in the U.S. Bankruptcy Court to liftthe stay is not required under section 362 (l)(1) or (2).

WHAT HAPPENS IFCERTIFICATION NOT MADEWHEN FILING THE PETI TION?

The situation may arise when a tenant doesnot fill out the first certification when filingthe petition – then what? If you have beenbattling a knowledgeable and persistent ten-ant for a long time you probably believe thatthe tenant will file the petition at the moststrategically advantageous moment withoutinforming the Court about all the facts.

Fortunately for Landlords, Congress in theBAPCPA took care of that problem also. § 362(l) (4) states, that “if a debtor, in accordancewith paragraph (5), indicates on the petitionthat there was a judgment of possession of theresidential rental property in which the debtorresides and does not file a certification undereither § 362 (l) (1) (2) –

(A) subsection (b) (22) shall applyimmediately upon failure to file suchcertification, and relief from the stayprovided under subsection (a) (3) shallnot be required to enable the lessor tocomplete the process to recover full pos-session of the property; and(B) the clerk of the Court shall immedi-ately serve upon the lessor and the debtora certified copy of the docket indicatingthe absence of a filed certification andapplicability of the exception to the stayunder subsection (b) (22).”What is this statue saying to us? Firstly,

under sub (l) of 362 in order for the initial 30day stay to apply the debtor must file with thepetition the certification that the Landlord hasa judgment of possession for residential prop-erty, and pay the Court Clerk a month’s rent.Hence, if the debtor does not disclose that aLessor has a judgment of possession when fil-ing the petition, the lessor/Landlord andMarshal can continue the eviction unabateddue to any bankruptcy filing. You can safelyinstruct the Marshal to continue. If the ten-ant/debtor does file the petition stating thatthere is a judgment of possession but does notcomply with the balance of the certificationrequirements the same result applies. The les-

sor does not need to make a motion to lift thestay and can continue with the eviction.

Let’s assume the tenant does file a petitionafter receiving a Marshal’s 72 Hour Notice ofEviction and does not file or comply with thecertification requirements. The Landlordshould continue with the eviction and instructthe Marshal to continue with the eviction as ifthere was no bankruptcy filing. Of course, as apractical matter, the City Marshal, not havingaccess to the paper work involved in the filing,may be a little hesitant to move forward. But,guess what, Congress has appointed the Clerkof the Court to be a semi-watchdog in thesetypes of cases involving a judgment of posses-sion. The statute states the Clerk shall “imme-diately” serve the Landlord with a certifiedcopy of the docket sheet and notice of theapplicability of no stay under 362 (b) (22) ifthe certification is not filed or complied with.Presumably, this would occur if tenant files thecertification that there is an existing judgmentof possession, but the tenant does not depositany money with the Clerk of the Court, orcheck off all the boxes in the certification.

Expecting the Clerk of the Court to immedi-ately serve the Landlord on the date of the fil-ing of the petition and/or on the 30th day duedate for the second certification with a certi-fied copy of the docket sheet and a Notice ofthe Applicability of § 362 (b) (22), may be alittle much. The practicable steps would be fora practitioner to file a Notice of Appearancefor the Landlord and enroll in the ElectronicCase Filing systemwith the Bankruptcy Court.Through the bankruptcy court’s electronic fil-ing system (“PACER”) you can immediatelyget a copy of the petition and any certificationsfiled. After review of the certification, thepractioner can decide whether to make afriendly reminder phone call to the Clerk of theCourt asking that they be sent a certified copyof the docket sheet and notice of the applica-bility of (b) (22). As a practicable matter youcan download the docket sheet and it will havea time stamp, this should be enough for theCity Marshal to act. The mailing of the certi-fied copy of the docket sheet and Notice of (b)(22) applicability are not steps required to betaken prior to the eviction, but rather they seemas additional courtesy steps Congress gave tolessors so that they can have a legal impri-matur of their actions if questioned later. Forthe nervous Nelly types who feel compelled tocover their astute thinking, 362 (j) allows a les-sor to make a motion confirming that the auto-matic stay has been terminated.

So far so good, but what if the debtor filesa petition without a certification and a weeklater files an amended petition with a proper-ly filled out certification in an attempt toinstitute the automatic stay against eviction.And keep in mind that Bankruptcy Rule1009 (a) states a debtor may amend a peti-tion, list, schedule, or statement any timebefore the case is closed. As a matter ofcourse, debtors do amend schedules all thetime in bankruptcy cases in order to amendthe information contained in them. A lessorwith a pre-petition judgment of possession,however, is protected from a belated filing ofan amended petition or certification.

The plain language of § 362 (l) has beenfound to require that the certification be fullycompliedwith at the time of the filing of the peti-tion. The Honorable Elizabeth S. Stong, U.S.Bankruptcy Judge for the Eastern District, in herdecision of In re Harris, 424 B.R. 44 (Bkrtcy.E.D.N.Y. 2010), in a very important decision inthis area, cited with approval the decision of Inre Parker, 2008 WL 2081536 (Bank.D.D.C.May 8, 2008, which stated “[t]he stay ought notbe a moving target….” (emphasis added) JudgeStong went on to hold that in enacting § 362 (b)(22) and 362 (l) (4), Congress provided a mech-anism under which, from the outset of the casethat the landlord can know with certaintywhether or not the stay applies to their continuedenforcement of pre-petition judgments for pos-session of the debtor’s residence. Moreover, itwas found that there is nothing in § 362 that pur-ports to allow a debtor to amend or supplementthe petition in an effort to somehow resurrect theautomatic stay. This appears to mean that the

tenant does not get a do over. So when filing abankruptcy petition, if a tenant botches up fillingout the certification, the filing of an amendedcertification a few days later will not help them.

And, the Bankruptcy Courts of New Yorkhave strictly enforced § 362 (l) to the chagrinof two bankruptcy practioners who filed peti-tions on behalf of debtors without making theproper notifications and certifications. In onecase, In re James Green, 422 B.R. 469, in aChapter 13 case, where the attorney wasfound to have knowledge of the judgment ofpossession and did not file the proper certifi-cations and who, the Court, inferred from thehistory of the case, had the intent to causedelay was severely sanctioned. In that case itwas found that the failure to disclose thejudgment of possession and serve therequired certifications forced the Landlord tomove the Court to lift the automatic stay.Because it was the debtor’s second Chapter13 filing and the omission to disclose thejudgment of possession was not made untilthe eve of the sanctions hearing and becauseof his failure to appear at the Hearing, he wassanctioned $4,500.00.

In another Chapter 13 case, In re SaundraPlumeri, 434 B.R. 315, another attorney wassanctioned by the bankruptcy court for not dis-closing the judgment of possession and servingthe proper certifications on the Landlord. Thatattorney appealed to the U.S. District for theSouthern District of New York, which affirmedthe bankruptcy court’s decision. The facts in thatcase bear out that that therewere two years of lit-igation between the tenant and the Landlord.The tenant obtained a different attorney to file athird bankruptcy case. That attorney knew abouttheWarrant of Eviction and sent a faxed letter tothe Landlord and the City Marshal to cease allprosecution of the case and that the automaticstaywas issued by the bankruptcy court, withoutattaching a copy of the petition. Obviously, hadthe attorney sent the petition to the Landlord, itwould have seen that the certification was blankand there would have been no grounds to staytheMarshal’s scheduled eviction. The attorney’sletter merely referred the Landlord to the ECF(“PACER”) system in order for the Landlord toobtain copy of the petition. Five days later theLandlord moved to vacate the stay and soughtsanctions against the filing attorney. Four dayslater the attorney disclosed in an amended peti-tion the existence of the judgment of possession.That attorney’s principal defense was that heonly knew of theMarshal’s eviction notice – andthat mistakes are made in the Housing Court’sClerk’s office and he could not be sure that ajudgment of possession actually existed. Thedistrict court rejected that contention and thetone of the decision indicates that based on thefacts, the district court was surprised that thebankruptcy court only sanctioned that attorney$2,500.00.

To the bankruptcy practioner, whoa to he,that files a petition that does not disclose ajudgment of possession and attempts to stay aneviction. You better make sure you have noknowledge of any judgment, warrant or anymarshal’s notice. If the Landlord/lessor has tomake a motion to vacate the stay you are like-ly to get wacked with sanctions. From a prac-tical standpoint this does not mean, that if thereare extenuating circumstances, and you havetime, you cannot try to make a motion or orderto show cause asking the Court to implementthe automatic stay pursuant to 11 U.S.C.105(a) and/or 362 (a). However, if you haveextenuating circumstances you probably willget a more sympathetic ear in the HousingCourt, bankruptcy courts have their own caseloads and loathe getting involved with litigat-ed cases from the NYC housing courts.

WHAT ABOUT HOLDOVER CASESWhat if you as Landlord’s attorney have

obtained a judgment of possession but theeviction was primarily based and sought dueto nonmonetary grounds and the debtor filesa voluntary petition? Often times when theLandlord obtains a Judgment of Possession inhousing court, they are also awarded a sum ofmoney for rent, and Use and Occupancy for a

Bankruptcy Filing(Continued from page 1)



certain period. Can the tenant/debtor use thesafe harbor protection of 362 (l) to buy sometime by making the required certification andpayment into court? Unfortunately for ten-ants, the answer is no.

Firstly, one must remember, regarding resi-dential evictions, that the automatic stay doesnot apply pursuant 362 (b) (22), unless § 362(l) is applicable. §362 (l) by its terms is notapplicable unless the debtor resides as a tenantunder a lease or rental agreement. Hence, ifthe tenant does not reside at the premises inquestion when the petition is filed, there can-not be a stay. Of course, you, as counsel,should have proof positive that the debtor can-not claim they reside at the premises.Secondly, the language of the statute specifi-cally states that the debtor must have been atenant under a “lease” or “rental agreement”.Therefore, it follows that if the eviction or dis-possess proceedings against a “tenant, occu-pant, squatter, licensee” is brought where thereis no lease or rental agreement in existence atthe time of the judgment of possession isissued, then the lessor should argue forcefullyin its Objection that the debtor is not entitled toavail himself of the safe harbor provision of362 (l). Therefore, an eviction proceedingbrought by lessor against a month to monthtenant that was primarily based on the grounds(Holdover or other proceeding other than anon-payment eviction) that the lessor wantspossession of the premises regardless of anymoney owed, the tenant is not entitled to thesafe harbor provision. Any lease or rentalagreement for a period longer than a year mustbe in writing to satisfy the statute of fraudspursuant to General Obligations Law § 5-703(2). Diaz v. DeMartino, 2011WL452480 (NYSup.App.Term)

What if a situation arises where there is avalid lease or rental agreement in affect at thetime the judgment of possession is grantedfor Holdover and a money judgment is alsoawarded. Is a tenant who then files a bank-ruptcy petition entitled to the safe harbor pro-vision because money is also awarded? Theseminal case for this issue to date is by theHonorable Bankruptcy Judge Martin Glennfor the Southern District of New York in hisdecision In re Griggsby, 404 BR 83 (April 17,2009). {The holding in that decision was fol-lowed to the letter by a bankruptcy court inGeorgia, In re Paul, 473 BR 474 (June 8,2012)} The landlord sought to terminate arent stabilized lease due to the tenant accu-mulating excessive debris posing a health andfire risk by commencing a “Collyer-type”nuisance holdover proceeding in the CivilCourt of the City of New York, County ofNew York. In that case the Housing courtissued a judgment of possession that restedon the “Collyer Conditions” and arrears owedin the amount of $4,604.00. After a subse-quent Hearing the Housing Court entered anorder allowing the Landlord to execute thewarrant of eviction because the tenant had notcured the “Collyer Conditions”. The tenantdid not timely appeal that order.

The day before the scheduled eviction thetenant filed a Chapter 13 petition with thecertification and deposited a month’s rentwith the Clerk. The Clerk of the Courtpromptly issued a “Notice of Compliance” of362 (b) (22) (meaning the tenant was pre-sumptively entitled to a 30 day stay of evic-tion). The Landlord filed an Objection and forgood measure filed a separate motion tovacate the stay. The Landlord’s position wasthat 362 (l) by its terms applies only to evic-tions due to monetary default, and becausethe judgment of possession and warrant ofeviction were based upon non-monetary obli-gations, section 362 (l) does not apply(Meaning the tenant not entitled to the a stay).In addition, in its lift stay motion theLandlord also contended that it lacked ade-quate protection due to the “CollyerConditions” and that the debtor lacked aproperty interest under the § 541 of the

Bankruptcy Code and § 749 of the RPAPLbecause issuance of the warrant of evictioncut-off the Debtor’s interest in the apartment.Lots and lots of heavy issues to ponder?

The Judge in that case looked at the leg-islative history and found:

This section (361(l)) does not provideany new rights to either landlords or ten-ants relating to evictions or defenses tothe eviction under otherwise applicablelaw. H.R.REP. NO. 109-31, pt 1, at 74-75(2005) U.S. Code Cong & Admin.News2005, pp. 88, 142-43; see also In reWilliams, 371 BR 109

Next the Judge looked at state law andfound that RPAPL § 749 (3) states that theissuance of the warrant cancels the agree-ment (“lease”), and annuls the relationship oflandlord and tenant, but did not deprive acourt the power to vacate such warrant forgood cause prior to the execution thereof.(emphasis added) Bankruptcy Judge Glennadditionally found that prior bankruptcycourt decisions had found that debtors insimilar situations had been found to haveequitable interests in the tenancy, notwith-standing the issuance of the warrant of evic-tion, and were protected by the automaticstay prior to the enactment of the BAPCPA.Notwithstanding the fact that the debtor wasfound to have a equitable property interest inthe terminated rent stabilized lease, the Courtconcluded that § 362 (l) did not apply todebtor’s case and that there was no stay ofthe eviction pursuant to 362 (b) (22)

Specifically, that Court concluded that thesafe harbor provision did not apply becausethe prepetition judgment of possession andwarrant of eviction are based upon debtor’snon-monetary default that cannot be cured bythe payment of money– failure to cure the“Collyer Conditions.” Bankruptcy JudgeGlenn stated the issue is whether the 362 (l)safe harbor is triggered - if a prepetition judg-ment of possession rests in whole or in partupon a non-monetary default. The Judge inthat case came down squarely on the side ofthe Lessor (Landlord).

The New York City Housing Court, whichis part of the NYC Civil Court system, aftera case has been decided or where the partiesenter into a Stipulation, the Clerk of CivilCourt issues a preprinted form called a “Decision and Judgment” (CIV-LT50 form).Within that form, at the top there is a sectionwhich refers to a Stipulation entered intobetween the parties. Then there is a decretalparagraph which states a “Judgment ofPossession is granted in favor of :” and goeson to name the parties: “John Doe” against“ Jane Doe”. And there is a paragraphwhere it can be indicated that a moneyjudgment is granted along with costs anddisbursements for a certain sum on money.There is also a paragraph that sets anamount due for the Use and Occupancy permonth as per Order, Stipulation or Decisionof the Court. Then there are a few blanklines where the Judge can add some addi-tional language if it deems it necessary.Finally, there is a paragraph that states thatthe “Warrant to issue per stip/order”. At thebottom of the form there is a section thatdates the Entry of Judgment.

If a tenant fails to appear in the action, theHousing Court will not enter a money judg-ment. The Landlord must bring a separateaction in the Civil Court if it seeks to obtaina money judgment for rent owed. Also, oftentimes a landlord will waive back rent in orderto convert the case into a Holdover proceed-ing – thereby cutting off any of the tenant’spossessory interest in the premises.

Normally, in most joined cases there is aStipulation entered between the parties thatwill recite the amount of money owed, thatjudgment of possession is granted and agrace period before the Warrant of Evictioncan be issued.

Hence, if you represent a tenant and have afeeling the tenant may later file a bankruptcypetition, it may not be wise to allow the

Stipulation to convert a non-payment actioninto a holdover proceeding. Because if theStipulation or decision recites that the actionis converted into a Holdover, the opportunityto attempt to obtain a stay of eviction pursuant362 (l) may be deemed waived because thejudgment is not for a monetary default anymore.

The converse may also be true if you rep-resent a Landlord and if the Landlord waivesback rent to reach a Stipulation, can the ten-ant later argue that the judgment of posses-sion was really due to a monetary default(and not really for hold over reasons) - andthat they only owe the reduced amount ofmoney awarded in the Judgment which is notthe entire amount of the default which gaverise to the judgment of possession. These areweighty issues that probably have to bereached on a case by case basis.

It would behoove an attorney representing aLandlord to make clear in the Stipulation orthe Court issued Judgment - the amount of theentire amount of money owed in rent and Useand Occupancy to that date, and the anticipat-ed amount to be owed for future use and occu-pancy until the tenant actually vacates theapartment. And, moreover, that any reductionin money due the Landlord given in consider-ation of converting the case to a Holdover bestrictly subject to the terms of the tenantvacating the apartment. There will invariablybe a dispute in the future as to how muchmoney is actually necessary to be consideredas “curing” the entire monetary default thatgave rise to the judgment for possession

Again as a practical matter, if forced to filean Objection, you may need to attach copiesof the eviction petition, Stipulation, anyCourt Order, judgment of possession, andaffidavit from the lessor regarding the entiremonetary amount due the lessor and or rea-sons for the case to be considered a Holdoverrather than a non-payment proceeding. If thebasis for the judgment of possession is basedon holdover as opposed to merely money dueand it is not clearly indicated from the record,you, as an attorney for a lessor may, findyourself in front of a skeptical U.S.Bankruptcy Judge arguing whether thegrounds for the eviction were really for amonetary default or not.

What if you represent a lessor which ownsproperty after a foreclosure sale and obtained ajudgment of possession before a Chapter 13filing where the debtor files the certificationand proffers a check to the Clerk of the Courtfor a very small sum of money – thus implyingto the Clerk that the check submitted is theactual rental rate. The certification does notrequire the tenant/debtor to state the amount ofrent that will be due for the next 30 days. Thetenant’s actions in this instance will induce theClerk of the Court to believe that the tenant hascomplied with the 362 (l) certification require-ments. That is exactly what happened in In reMontalvo, 416 BR 381. The Mortgageeobtained a judgment of foreclosure and sale onNovember 27, 2006. On November 5, 2007the debtor and others were served with Noticeto Quit. On January 23, 2008, the state courtissued a Judgment awarding possession and awarrant of eviction. The debtor and her hus-band were serial filers filing at least 6 bank-ruptcy petitions and had not even pretended tocomplete any of the chapter 13 cases (an egre-gious example of serial filings).

In that decision Bankruptcy Judge AlanTrust was mostly concerned with the bank’sIn rem motion to prevent any further filings orstays regarding that specific property. Earlierin the case he had lifted the automatic stayagainst that debtor due to the secured credi-tor’s Objection to the tenant’s certification.

The debtor’s conduct and certification inthat case is instructive and very ingenious(albeit dishonest). The debtor filed a case onApril 22, 2009, and filed a Certification claim-ing that there existed a Landlord-Tenant rela-tionship between her and the Mortgagee, thatthere was a rental agreement and that therewere circumstances under nonbankrupcty lawthat would allow for the curing of the mone-tary default that gave rise to the judgment of

judgment of possession. Those certificationswere obviously false. Implicitly the debtor alsocleverly alleged that the rent was a ridiculous-ly low $300.00 per month for a whole house.The filing of the certification had the Clerk ofCourt dutifully issue a Notice of Compliancethat the 30 day safe harbor provision was ineffect (canceling any eviction date set by theMarshal/Sheriff). The debtor’s certificationrequired the lessor to file an Objection. Thisalso needless to say bought the tenant/debtormore time to stall the eviction.

The allegation of an extremely low rentshows the importance of reviewing the certi-fication and calling the Clerk and finding outhow much money was deposited with theCourt Clerk and making a prompt Objectionto any false statements contained in a ten-ant’s certification and proffered rental rate.

The bank’s attorney in that case did file anObjection and went one step further byreturning the proffered $300.00 check to theClerk of the Court. Obviously, the attorneysin the case were representing an institutionalclient and wanted to play it safe by returningthe check. However, it is hard to believe thatCongress would require a lessor to return anymoney deposited with the Court in order tocomply with the certification – even if it is afalse certification. Judge Trust vacated thestay and did grant the bank’s motion for the inrem relief it sought. It is an interesting ques-tion, whether under state law would a statecourt find that acceptance of use and occu-pancy proffered pursuant to the bankruptcycertification within a Chapter 7 or 13 caseconstitute grounds to vacate the warrant ofeviction. The answer is probably not becausenormal payments made post petition in abankruptcy case do not vitiate a state courtjudgment of foreclosure.

WHAT ABOUT THE TENANT’SPERSONAL PROPERTY

Although there might be some bad bloodbetween the Landlord and the Tenant, if thesituation arises where possession of the ten-ant’s personal property becomes an issue,advise your client to turn over possession ofall personal property. There is a case withconvoluted facts where the court held thatthe lessor could evict the tenant pursuant to362 (b) (22) and that there was no stay to theeviction, but the lessor was hit with sanctionsfor not turning over the personal propertywhich was deemed a violation of anothersubsection of the automatic stay and lessor’saffirmative duty to turn over the propertypursuant to § 542 (a). In re Barid, 2006 WL3922527 (Bankr. E.D.Tenn)

CAN THE TENANT FILE A CHAPTER13 CASE AND ASSUME THE LEASEAND PAY THE ARREARS OVER THELIFE OF THE PLAN

Right after the enactment of the BAPCPAin 2005, there were some early commentarythat debtors, notwithstanding 362 (b) (22),could still under a Chapter 13 case have acourt entertain the curing of the arrearsowed on the judgment while assuming theterms of lease over the life of a Chapter 13Plan. (11 U.S.C. § 365, 1322(b) (7)) Anothercommentator suggested that another subsec-tion, (2) of 362, might apply to prevent con-tinuation with enforcement of the judgmentof possession. And 362 (a) (2) does state thatthere is a stay of enforcement, against thedebtor or against any property of the estate,of a judgment obtained before the com-mencement of the case. The recent case law,however, appears to have completely shotdown those theories.

The Bankruptcy Court in In reWilliams, 371B.R. 102 (Bank E.D. Penn 2007) in its decisionwent carefully through the legislative history of362 (b) (22). That Court found it incredulous tosuggest that 362 (a) (2) applies to evictions pro-ceedings with pre-petition judgments of pos-session. That Court found Congress viewedonly 362 (a) (3) and (b) (22) applicable toattempts by lessors to enforce prepetition judg-ments of possession. That Court stated that




Congress could not have meant to enact stayexceptions, detailed cure provisions, and bur-densome deposit requirements that would notserve any purpose if the evictions could bestayed by other provisions of 362 (a).§362 (a) in pertinent part says, [e]xcept as

provided in subsection (b), a petition filedunder 301, operates as a stay. § 301 (a) statesthat a voluntary case under this chapter iscommenced by the filing with the bankruptcycourt of a petition …. And, subsection (b)says that the commencement of a voluntarycase under a chapter of this title constitutes anorder of relief. For individual debtors, 362 (b)(22) applies to all chapters, there is no distin-guishing between a Chapter 7, 11 or 13 filing.Furthermore, 362 (l) (5) (A) (B) states in

pertinent part that where a judgment of pos-session of residential property in which thedebtor resides as a tenant under a lease hasbeen obtained by the lessor, the debtor shallso indicate on the petition and shall providethe name and address of the lessor on thepetition and on any certification filed underthis section. It also provided that the standardforms used in bankruptcy proceedings shallbe amended to reflect these new require-ments. That section does not distinguishbetween the standard forms of Chapter 7 and13. Therefore, the requirements of 362 (l) areapplicable to Chapter 7 and 13 cases.

What this also means to the practioner isthat the standard forms have been amended toinclude the requirements of the certification.So as a practioner, it is important to get yourhands on a copy of the actually filed petitionand review the certification (the copy youreceive from the tenant/debtor may not beexactly the same as the one filed with theCourt). Review of the Certification or lackthereof on the petition will allow you to deter-mine what, if any, action you have to take toprotect the lessor.As stated previously, it is interesting to note,

that 362 does not distinguish between Chapter 7or 13. Normally, a debtor is able to repay arrearson secured and/or unsecured claims over a 60month period. However, under the circum-stances discussed in this article a debtor must“cure the entire monetary default that gave riseto in the judgment under which possession issought by the lessor” within 30 days no matterwhat. Is there an opening here for a creativeattorney representing a tenant to argue that thisphrase does not include post judgment use andoccupancy? There may be a month or two gapfrom the time the judgment of possession isissued and the filing of the bankruptcy petitionoccurs, will this sum of money for that periodbe counted as part of that which is necessary tobe paid for the curing the “entire monetarydefault which gave rise to the judgment”.To attorneys who represent tenants in the

Housing Court and judgment day is fastapproaching, the obvious course of action tobuy some time is to have your client file a

bankruptcy case prior to the issuance of thejudgment of possession (assuming there isgood reason and cause for the debtor to wantto remain in the premises and there is actualhope that debtor’s financial conditions willimmediately improve). If your client has thefinancial ability to make payments under aChapter 13 case, they may be able to pay theirarrears over a 60 month period, so long asthey are also able to stay current on themonthly rent payments. Otherwise, if judg-ment of possession is granted, the tenant willbe obligated to pay the entire amount ofmoney owed within 30 days of the filing ofthe bankruptcy petition.

FINAL OVERVIEWTo those who represent Landlords, if you

are able to get a Judgment of Possession priorto any bankruptcy filing, you are in the dri-ver’s seat. In reality, you may not need to doanything. If the system works like it’s supposeto, the tenant/debtor has to pay the firstmonth’s rent to the Clerk upon filing the peti-tion. If the debtor botches up his paper workwhen filing the petition you can call theClerk’s Office and tell them to issue the noticethat § 362 (b) (22) is applicable (that there isno stay of eviction) and send you a certifiedcopy of the docket sheet.And/ or the Landlordcan wait the 30 days and see if the entire mon-etary default is paid to the Landlord andwhether the second certification is filed prop-erly. If not, the Landlord can call the Clerkand ask that the 362 (b) (22) Notice of appli-

cability be issued with a certified copy of thedocket sheet. Or the Landlord can decide tofile an Objection after either certification andobtain a Hearing within 10 days to have anOrdered issued that the stay is lifted.If the tenant files a bankruptcy petition

before you obtain a judgment of possessionthe above provisions regarding 362 (l) do nothelp the Landlord. In order to continue withthe eviction you have to make a motion to liftthe stay and provide cause. If the judgmentof possession concerns a commercial leasethe above provisions do not apply. If thejudgment of possession is not based upon amonetary default the tenant is not entitled toa stay of the eviction (but you may want tofile an Objection in order to get an Orderallowing for the eviction to proceed). Also beaware, if a lessor believes that there is endan-germent to the property or it will be used toallow a controlled substance to be used there,362 (b) (23) is applicable. However, that dis-cussion is outside the scope of this article.So now that you have read this article you

are now an expert on this topic. Your head isalso probably spinning. So take two Adviland clip this article and /or scan it into yourcomputer until the situation arises.All the rel-evant statutes and recent case law from theNew York bankruptcy courts are cited herein.

Editor’s Note: George Poulos is owner ofthe firm, Law Offices of George Poulos,located in Astoria, NY and a longtime mem-ber of the Queens County Bar Association.


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