Thursday, November 27, 2014

Omission or Redaction of Confidential Personal Information



 The Uniform Civil Rules of the Supreme and County Courts were amended to require the omission or redaction of Confidential Personal Information from papers filed with the court. See 22 NYCRR 202.5(e), relating to the omission or redaction of confidential personal information, effective January 1, 2015. Compliance with this rule is voluntary from January 1 through February 28, 2015, and mandatory thereafter. See 2014 New York Court Order (C.O. 00290), NY Order 14-0029. The rules do not apply to a matrimonial action. 22 NYCRR 202.5(e)(1). In addition, the rules do not apply in a proceeding in surrogate's court, or a proceeding pursuant to article 81 of the mental hygiene law, or as otherwise provided by rule or law or court order.

 The Civil Practice Law and Rules defines the term "matrimonial action" to include actions for a separation, for an annulment or dissolution of a marriage, for a divorce, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce and for a declaration of the validity or nullity of a marriage. The definition of “matrimonial action” in the civil practice law and rules does not include an action to set aside or declare void a prenuptial agreement, separation agreement or postnuptial agreement, an action to declare the validity of such an agreement, nor an action for a declaratory judgment with regards to, specific enforcement or breach of such an agreement. Nor does it include an action to declare the legitimacy of a child commenced in the Supreme Court, a visitation proceeding commenced pursuant to Domestic Relations Law § 72, or an action for child support. Thus, parties in such actions are required to comply with this rule.

 The parties are required to omit or redact confidential personal information (“CPI”) in papers submitted to the court for filing as defined in the rules Confidential personal information ("CPI") means: the taxpayer identification number of an individual or an entity, including a social security number, an employer identification number, and an individual taxpayer identification number, except the last four digits thereof; the date of an individual's birth, except the year thereof; the full name of an individual known to be a minor, except the minor's initials; and. a financial account number, including a credit and/or debit card number, a bank account number, an investment account number, and/or an insurance account number, except the last four digits or letters thereof. 22 NYCRR 202.5(e)(1).
  

Divorce - Grounds - Domestic Relations Law § 170 (7) - Two Appellate Divisions Hold that Statement under Oath That the Marriage Was Irretrievably Broken for a Period of Six Months Was Sufficient to Establish Cause of Action for Divorce.



In Hoffer-Adou v. Adou, --- N.Y.S.2d ----, 2014 WL 5471501 (N.Y.A.D. 1 Dept.) the Appellate Division affirmed an order which sustained the validity of the parties separation agreement. It also held that contrary to the husband's contention, the wife was entitled to a judgment of divorce under the no-fault provision of DRL § 170(7), since her statement under oath that the marriage was irretrievably broken for a period of six months was sufficient to establish her cause of action for divorce as a matter of law (citing Townes v. Coker, 35 Misc.3d 543, 547 [Sup Ct, Nassau County 2012] ). Supreme Court's granting of the divorce did not contradict DRL § 170(7)'s requirement that "[n]o judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce." The parties' separation agreement resolved the issues of child custody and support. Their subsequent commencement in the Family Court of proceedings concerning these issues did not render the court without authority to grant the divorce, since non-compliance with/or enforcement of, the separation agreement is not an element of Domestic Relations Law §170(7).

In Trbovich v Trbovich,--- N.Y.S.2d ----, 2014 WL 6497983 (N.Y.A.D. 4 Dept.) the Appellate Division affirmed an order which denied the plaintiff's motion for summary judgment seeking a divorce pursuant to Domestic Relations Law § 170(7). It agreed with plaintiff that the relationship has broken down irretrievably for a period of at least six months opposing spouse in a no-fault divorce action pursuant to Domestic Relations Law § 170(7) is not entitled to litigate the other spouse's sworn statement (citing Palermo v. Palermo, 35 Misc.3d 1211[A], 2011 N.Y. Slip Op 52506[U], affd for reasons stated 100 AD3d 1453; see e.g. Rinzler v. Rinzler, 97 AD3d 215, 218; A.C. v. D.R., 32 Misc.3d 293, 306), and indicated that to the extent that its decision in Tuper v. Tuper (98 AD3d 55, 59 n) suggested otherwise, it declined to follow it. Nevertheless, plaintiff was not entitled to summary judgment under Domestic Relations Law § 170(7) at this juncture of the litigation because the ancillary issues had not been resolved by the parties or determined by the court. [One judge dissented]

Wednesday, October 08, 2014

Family Court Act §451(1) amended


          Family Court Act §451(1) , which was amended, effective December 22, 2014,  provides that an application to modify an order of child support must be accompanied by "an affidavit and other evidentiary material sufficient to establish a prima facie case for the relief requested" in order to entitle the petitioner to a hearing on any material issues of fact.  No hearing is required if an affidavit has not been submitted even if material issues are present in the case.  The amendment removed the requirement of filing an affidavit with the petition by removing word “modify” from subdivision 1 and adding  a new subdivision 2, which provides: “ A proceeding to modify an order of support shall  be  commenced  by    the filing of a petition which shall allege facts sufficient to meet one  or more of the grounds enumerated in subdivision three of this section. Former subdivision  2 has been renumbered subdivision 3. See Laws of 2014, Ch 373, effective December 22, 2014.

Monday, September 08, 2014

Court of Appeals Establishes Rule for Third Party Discovery Subpoena




In Kapon v Koch, ___NY 3d ___, 2014 WL 1315590, 2014 N.Y. Slip Op. 02327 (2014) the Court of Appeals, in an opinion by Judge Pigott, held that where a subpoena is served by a party seeking discovery from a nonparty pursuant to CPLR 3101(a)(4), (1) the subpoenaing party must first sufficiently state the "circumstances or reasons" underlying the subpoena (either on the face of the subpoena itself or in a notice accompanying it), otherwise it may be challenged for facial insufficiency, and (2) the witness, in moving to quash, must establish either that the discovery sought is "utterly irrelevant" to the action or that the "futility of the process to uncover anything legitimate is inevitable or obvious." (3) Should the witness meet this burden, the subpoenaing party must then establish that the discovery sought is "material and necessary" to the prosecution or defense of an action, i.e., that it is relevant.

Wednesday, June 18, 2014

Family Offense Statute Declared Unconstitutional



In People v Golb, ___NY3d __,2014 WL 1883943 (2014) the Court of Appeals held that (Penal Law § 240.30(1)(a), aggravated harassment in the Second Degree   was unconstitutional, under both Federal and State law because it was vague and overbroad.  The statute, which is frequently invoked in family offense proceedings, provides that “[a] person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she ... communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm..” The Court noted that three federal judges have already found this statute unconstitutional.