Jan. 28 Klass presents “RPAPL Section 993: Uniform Partition of Heirs Property Act” for the General Practice Section and Committee on Professional Discipline CLE program

Man and woman arm in arm, with a young child, standing in front of a beautiful house.

Richard A. Klass will be presenting a lecture on “RPAPL Section 993: Uniform Partition of Heirs Property Act” for the General Practice Section and Committee on Professional Discipline CLE program in New York City.

The program will be held on Tuesday, January 28, 2020 from 9:00 am – 1:00 pm with registration beginning at 8:30 am This program will take place during the 143rd NYSBA Annual Meeting and Exposition.

Registration for the program is available at www.nysba.org/AM2020GEN. Please feel free to tell your networks about this program.

In addition, Richard Klass has written a new book in his series “Your Court Street Lawyer’s Quick Reference Guide” on this subject. It is called Hug of War Instead of Tug of War: RPAPL Section 993: Uniform Partition of Heirs Property Act. It will soon be available for download from his website at http://www.courtstreetlaw.com/publications/books/.

R. A. Klass
Your Court Street Lawyer

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Brandeis Society hosts annual luncheon for Chanukah

Published in the Brooklyn Daily Eagle
December 18, 2019

by Rob Abruzzese

Men and women in business attire posing for photo. From left: Hon. Katherine Levine, Hon. Ellen Spodek, Richard Klass, Hon. Jeffrey Sunshine, Hon. Anne Swern, Hon. Miriam Cyrulnik, Doron Leiby, Jeffrey Miller and Hon. Esther Morgenstern. Photo by Rob Abruzzese.
From left: Hon. Katherine Levine, Hon. Ellen Spodek, Richard Klass, Hon. Jeffrey Sunshine, Hon. Anne Swern, Hon. Miriam Cyrulnik, Doron Leiby, Jeffrey Miller and Hon. Esther Morgenstern.
Photo by Rob Abruzzese.

“The Brooklyn Brandeis Society held its annual Chanukah luncheon and membership party in Brooklyn Heights on Monday as members gathered together to share latkes and donuts while a pair of rabbis shared stories of their common history….

Two men in business attire, posing for photo. Todd Sandler, director of the Brooklyn Jewish National Fund, on left, and Richard Klass on the right. Photo by Rob Abruzzese.
Todd Sandler, director of the Brooklyn Jewish National Fund, on left, and Richard Klass on the right.
Photo by Rob Abruzzese.

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Client may claim that the statute of limitations for legal malpractice has not been triggered

It is important for an attorney to withdraw from an action once the attorney has terminated the attorney-client relationship. If not, then the client may claim that the statute of limitations for legal malpractice has not been triggered, as decided in Courtney v McDonald, 176 AD3d 645 [1st Dept 2019]:

Scales of justice illustrating article about legal malpractice.

The first cause of action in plaintiffs’ complaint alleges legal malpractice with respect to defendants representation of plaintiffs in two underlying actions—the 304 W 18th Street matter and the 175 W 12th Street matter. Contrary to defendants’ argument, the malpractice cause of action with respect to the 175 W 12th Street matter is not time-barred by the three-year statute of limitations applicable to legal malpractice claims (CPLR 214 [6]). Defendants failed to demonstrate that the attorney-client relationship ceased to exist within three years of August 28, 2017, the date plaintiffs filed this action. Although defendants sent a letter, dated August 7, 2014, unilaterally terminating their representation of plaintiffs, they failed to move to withdraw from representation in the foreclosure action (see CPLR 321 [b]) until more than a year after sending the subject letter. Accordingly, to the extent plaintiffs’ first cause of action concerns alleged legal malpractice by defendants in their representation of plaintiffs in the matter concerning 175 W 12th Street, the motion to dismiss that cause of action was properly denied.

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Legal malpractice action dismissed based upon doctrines of res judicata and collateral estoppel

The Appellate Division, in Kleinman v Weisman Law Group, P.C., 176 AD3d 1046 [2d Dept 2019], dismissed a former client’s legal malpractice action based upon the doctrines of res judicata and collateral estoppel. The court stated as follows:

In 2013, the defendant Weisman Law Group, P.C. (hereinafter the defendant firm), commenced an action against the plaintiff to recover unpaid legal fees in the Nassau County District Court. The plaintiff asserted a counterclaim, alleging that he was overbilled by the defendant firm. A judgment was entered in favor of the defendant firm and against the plaintiff. The plaintiff appealed the judgment of the Nassau County District Court to the Appellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts, which affirmed the judgment (see Weisman Law Group, P.C. v. Kleinman, 60 Misc.3d 133[A], 2018 N.Y. Slip Op. 51042[U], 2018 WL 3309514 [App Term, 2d Dept, 9th & 10th Jud Dists 2018] ). In 2016, the plaintiff commenced the instant action against the defendants asserting causes of action alleging, inter alia, breach of contract and legal malpractice.

Scales of justice illustrating article about legal malpractice.

The plaintiff contends that the doctrines of res judicata and collateral estoppel do not apply in the instant case, as the Nassau County District Court lacked subject matter jurisdiction over his counterclaim in the prior action. Contrary to the plaintiff’s contention, the Nassau County District Court did have jurisdiction over his counterclaim pursuant to Uniform District Court Act Section 208(b), as the counterclaim was for money only. The doctrine of res judicata precludes the plaintiff from litigating the claims set forth in his complaint, as a judgment on the merits exists in the prior action between the same parties involving the same subject matter (see Matter of Josey v. Goord, 9 N.Y.3d 386, 389, 849 N.Y.S.2d 497, 880 N.E.2d 18; Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269). New York has adopted the transactional analysis approach to res judicata, so that once a claim is brought to a final conclusion, all other claims between the same parties or those in privity with them arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy (see Matter of Josey v. Goord, 9 N.Y.3d at 389–390, 849 N.Y.S.2d 497, 880 N.E.2d 18; Matter of Hunter, 4 N.Y.3d at 269, 794 N.Y.S.2d 286, 827 N.E.2d 269; *124 O’Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158; Greenstone/Fontana Corp. v. Feldstein, 72 A.D.3d 890, 893, 901 N.Y.S.2d 643).

Furthermore, the plaintiff’s causes of action are barred by the doctrine of collateral estoppel, which precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same (see Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487; Williams v. New York City Tr. Auth., 171 A.D.3d 990, 97 N.Y.S.3d 692). The doctrine of collateral estoppel applies here, as the issues in both actions are identical, the issue in the prior action was actually litigated and decided, there was a full and fair opportunity to litigate the action, the issue previously litigated was necessary to support a valid and final judgment on the merits, and the defendant Rachel J. Weisman was in privity with the defendant firm (see Conason v. Megan Holding, LLC, 25 N.Y.3d 1, 17, 6 N.Y.S.3d 206, 29 N.E.3d 215; Williams v. New York City Tr. Auth., 171 A.D.3d at 991–992, 97 N.Y.S.3d 692; Karimian v. Time Equities, Inc., 164 A.D.3d 486, 83 N.Y.S.3d 227).

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…issue of collateral estoppel concerning a matter previously litigated…

In Gobindram v Ruskin Moscou Faltischek, P.C., 175 AD3d 586, 589-91 [2d Dept 2019], the state court considered the issue of collateral estoppel concerning a matter previously litigated in the federal bankruptcy court. The court held:

Scales of justice

“The doctrine of in pari delicto mandates that the courts will not intercede to resolve a dispute between two wrongdoers” (Kirschner v. KPMG LLP, 15 N.Y.3d 446, 464, 912 N.Y.S.2d 508, 938 N.E.2d 941). “[T]he principle that a wrongdoer should not profit from his own misconduct is so strong in New York that … the defense applies even in difficult cases and should not be weakened by exceptions” (id. at 464, 912 N.Y.S.2d 508, 938 N.E.2d 941 [internal quotation marks omitted] ). “The defense requires intentional conduct on the part of the plaintiff” (Sacher v. Beacon Assoc. Mgt. Corp., 114 A.D.3d 655, 657, 980 N.Y.S.2d 121; see Kirschner v. KPMG LLP, 15 N.Y.3d at 474, 912 N.Y.S.2d 508, 938 N.E.2d 941).

Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party, whether or not the tribunals or causes of action are the same (see Buechel v. Bain, 97 N.Y.2d 295, 303, 740 N.Y.S.2d 252, 766 N.E.2d 914; Shifer v. Shifer, 165 A.D.3d 721, 723, 85 N.Y.S.3d 92). There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling (see Buechel v. Bain, 97 N.Y.2d at 303–304, 740 N.Y.S.2d 252, 766 N.E.2d 914; Shifer v. Shifer, 165 A.D.3d at 723, 85 N.Y.S.3d 92).

Here, the federal courts in the plaintiff’s bankruptcy proceeding finally adjudicated a mixed issue of law and fact identical to that raised by the in pari delicto defense asserted by the defendants in the current legal malpractice action, i.e., the plaintiff’s culpability in connection with the filing of the inaccurate bankruptcy petition. Those courts found that the plaintiff knowingly and intentionally made a false and fraudulent statement under oath by swearing that he had read the SOFA and that it was true and correct, and that the plaintiff’s alleged reliance on the defendants to accurately prepare the bankruptcy submissions did not negate his fraudulent intent. These findings established that the plaintiff was in pari delicto with the defendants to the extent that he alleges they acted negligently in preparing and filing the inaccurate bankruptcy petition. Accordingly, we agree with the Supreme Court’s determination granting that branch of the defendants’ motion which was to dismiss so much of the legal malpractice cause of action as sought to recover damages for the defendants’ preparation and filing of the inaccurate bankruptcy petition based on the doctrines of collateral estoppel and in pari delicto.

However, we disagree with the Supreme Court’s determination granting that branch of the defendants’ motion which was to dismiss so much of the legal malpractice cause of action as sought to recover damages for the defendants’ failure to amend the bankruptcy petition. The findings of the federal courts regarding the knowing and fraudulent conduct on the plaintiff’s part related solely to the initial filing; they made no determination that the plaintiff acted knowingly and fraudulently in failing to file an amended petition. Accordingly, that part of the plaintiff’s legal malpractice cause of action is not subject to dismissal on the grounds of collateral estoppel and in pari delicto.

As an alternative ground for affirmance (see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545–546, 470 N.Y.S.2d 564, 458 N.E.2d 1241), the defendants contend that the legal malpractice cause of action should have been dismissed in its entirety pursuant to CPLR 3211(a)(7), since the parties’ evidentiary submissions on the motion established that the plaintiff hired subsequent counsel who had ample opportunity to rectify their alleged error in this regard (see e.g. Perks v. Lauto & Garabedian, 306 A.D.2d 261, 262, 760 N.Y.S.2d 231). This contention lacks merit.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511; see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720). “When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether [she or] he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, … dismissal should not eventuate” (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17).

Here, the record reveals that the plaintiff did not retain the services of new counsel until December 2011. By that time, the bankruptcy trustee had already noted inconsistencies in the petition and requested an accounting relating to the omitted tax refund transfers, and the plaintiff’s creditors had commenced the adversary proceeding. Giving the plaintiff the benefit of every favorable inference (see Leon v. Martinez, 84 N.Y.2d at 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511), this time line suggests that the defendants, not the subsequent attorney, represented the plaintiff at the time when a voluntary amendment to the petition could have significantly reduced the prospect of a finding that the plaintiff made a false and fraudulent statement in the bankruptcy petition (see In re Tully, 818 F.2d 106, 111 [1st Cir.]; Matter of Kilson, 83 B.R. 198, 203 [D. Conn.]). Accordingly, at this preliminary stage of the litigation, the defendants have failed to conclusively demonstrate that the plaintiff’s subsequent attorney had a sufficient opportunity to correct their alleged error in failing to amend the petition, such that they did not proximately cause any damages flowing from that error (see generally Tooma v. Grossbarth, 121 A.D.3d 1093, 1096, 995 N.Y.S.2d 593; Grant v. LaTrace, 119 A.D.3d 646, 647, 990 N.Y.S.2d 227).

We find unpersuasive the defendants’ additional alternative contention that the legal malpractice cause of action was properly dismissed pursuant to CPLR 3211(a)(3) because that cause of action belongs to the bankruptcy estate and the plaintiff lacked standing to assert it. “On a defendant’s motion to dismiss the complaint based upon the plaintiff’s alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing” (BAC Home Loans Servicing, LP v. Rychik, 161 A.D.3d 924, 925, 77 N.Y.S.3d 522; see CPLR 3211[a][3]; MLB Sub I, LLC v. Bains, 148 A.D.3d 881, 881–882). “[T]he motion will be defeated if the plaintiff’s submissions raise a question of fact as to its standing” (U.S. Bank N.A. v. Clement, 163 A.D.3d 742, 743, 81 N.Y.S.3d 116 [internal quotation marks omitted]; see MLB Sub I, LLC v. Bains, 148 A.D.3d at 882, 50 N.Y.S.3d 410).

Here, in response to the defendants’ prima facie showing that the plaintiff’s legal malpractice cause of action was the property of the bankruptcy estate (see Wright v. Meyers & Spencer, LLP, 46 A.D.3d 805, 849 N.Y.S.2d 274; Williams v. Stein, 6 A.D.3d 197, 198, 775 N.Y.S.2d 255; In re Strada Design Assoc., Inc., 326 B.R. 229, 237–240 [S.D. N.Y.]), the plaintiff raised a question of fact as to whether the bankruptcy trustee had abandoned the cause of action in accordance with Bankruptcy Code (11 USC) § 554(a) and had authorized the plaintiff to pursue it. Accordingly, dismissal of the legal malpractice cause of action for lack of standing is not available at this juncture.

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Richard A. Klass Selected for the Fifth Time for the New York Metro Super Lawyers List

2019 Super Lawyers logo

We are pleased to announce that Richard Klass, has been selected to the 2019 New York Metro Super Lawyers list. This is an exclusive list, recognizing no more than five percent of attorneys in the New York Metro area.

Super Lawyers, part of Thomson Reuters, is a research-driven, peer influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Attorneys are selected from more than 70 practice areas and all firm sizes, assuring a credible and relevant annual list.

The annual selections are made using a patented multiphase process that includes:

·  Peer nominations

·  Independent research by Super Lawyers

·  Evaluations from a highly credentialed panel of attorneys

The objective of the Super Lawyers lists is to create a credible, comprehensive and diverse listing of outstanding attorneys to be used as a resource for both referring attorneys and consumers seeking legal counsel.

For more information about Super Lawyers, go to SuperLawyers.com. Super Lawyers is a registered trademark of Thomson Reuters.

R. A. Klass
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“Slow Down, You Move Too Fast”

Simon & Garfunkel,
The 59th Street Bridge Song (Feelin’ Groovy)

Rabbit with yellow fur standing next to gray and yellow turtle illustrating article by Richard Klass about nonresident plaintiffs posting Security for Costs.

A foreign company sued a New York State resident, seeking to force the sale of his house in order to satisfy its judgment.  The company existed under New Jersey law with a New Jersey corporate address.  The house was located in Nassau County.

Petition to Sell House

The judgment creditor’s petition to sell real property alleged that there was sufficient equity in the house exceeding the homestead exemption and existing mortgage lien.  The petition further alleged that attempts to execute on the judgment debtor’s personal property failed and the creditor had otherwise been unable to satisfy its judgment.  Combined, these allegations would normally be enough to satisfy the pleading requirements under CPLR 5203, 5206 and 5238.

In response to the petition, the debtor/homeowner retained Richard A. Klass, Your Court Street Lawyer, to defend the proceeding in order to retain his house.  The defenses put up included the fact that the mortgage lender had already begun foreclosure proceedings and there was a question as to the validity of the claim that there was any net equity in the property.  Further, since the house was owned by the debtor with his wife as a “ tenancy by the entirety, ” the house could not be sold without consideration of her property rights.

Stopping the Creditor in its tracks

Sometimes, a debtor needs a respite from the continual attacks by creditors.  One way to accomplish this is by a bankruptcy filing, in which the automatic stay imposed upon filing stops the pecking at a debtor’s assets by creditors.  Another way to slow down a creditor is to temporarily stay the lawsuit while the debtor and his family “ circle the wagons ” to either gather up strong defenses or develop an orderly plan in which debts will be repaid or settled.  An effective method of getting this pause is by requesting that the judge stay the lawsuit of a non-New York State creditor until the plaintiff/creditor posts security for the costs of the action.

Security for Costs

New York court rules require nonresident plaintiffs maintaining lawsuits in New York courts to post security for the costs for which they would be liable if their lawsuits were unsuccessful.  CPLR 8501(a) provides that, “ except where the plaintiff has been granted permission to proceed as a poor person or is the petitioner in a habeas corpus proceeding, upon motion by the defendant without notice, the court or judge thereof shall order security for costs to be given by the plaintiffs where none of them is a domestic corporation, a foreign corporation licensed to do business in the state or a resident of the state when the motion is made. ” CPLR 8502 provides that until security for costs is given pursuant to court order, all proceedings other than to review or vacate such order shall be stayed, and that if the plaintiff shall not have given security for costs at the expiration of 30 days from the date of the order, the court may dismiss the complaint upon motion by the defendant.

Security for costs is a device ordinarily used against a nonresident plaintiff to make sure if he loses the case, he will not return home and leave the defendant with a costs judgment that can be enforced only in the plaintiff’s home state.  By directing a nonresident to post a bond, the defendant is protected from frivolous lawsuits and is assured that, if successful, he will be able to recover costs from the plaintiff.

In rebuffing a challenge to the constitutionality of the requirement of security for costs imposed upon a nonresident plaintiff, the court in Clement v. Durban, 147 AD3d 39 [2016] aff’d 32 NY3d 337 [2018] cert denied 139 S.Ct. 2649 [2019] held that the court rules do not deprive nonresident plaintiffs of reasonable and adequate access to New York courts and, thus, are constitutional.  Where nonresidents are subject to different treatment than New York residents, there must be reasonable grounds for diversity of treatment (so as to prevent discrimination against citizens of other states).  Disparity of treatment of nonresidents is permitted in situations where there are valid, independent reasons for it; in this situation, deterring frivolous or harassing lawsuits and preventing prevailing defendants from having to chase plaintiffs into foreign jurisdictions to collect their judgments are considered valid reasons.

Upon motion by the defendant requesting that the plaintiff post a bond as security for costs, the judge granted the motion and directed the nonresident plaintiff to post security in the amount of $10,000 for costs.  The plaintiff did not do so within the 30 day period after the order and, accordingly, the court dismissed the lawsuit.

Richard A. Klass, Esq.

©2019 Richard A. Klass. Credits: Photo of Richard Klass by Rob Abruzzese, 2019. Marketing agency: The Innovation Works, Inc. (www.TheInnovationWorks.com)  Image at top of page: Shutterstock

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[ nonresident plaintiffs ]

Order of Attachment / Slash and Burn

Somewhat gory staged photo of a man with clown makeup, sitting on the ground, holding a hatchet, with blood on his shirt. Illustrates a case study about an order of attachment

[Reader Advisory:
This case study begins with a graphic and possibly upsetting description of violent events leading up to a criminal case. Then, the narrative continues with a discussion of the accompanying civil case. If the reader prefers to begin with the discussion of the civil case, they may skip to the second heading “Order of Attachment.”]

He Drove from New York to Florida.

“Jeff” drove to his ex-wife, “Lauren”‘s Florida condominium and attacked her in her home. Jeff handcuffed Lauren’s arms and legs so she was unable to move. Then, Jeff repeatedly cut, beat, suffocated, threatened and tortured his ex-wife for over six hours. Throughout this ordeal, Jeff forced Lauren to answer intimate questions by threatening her with a knife he held up to her neck, putting tape over her mouth and suffocating her by putting a pillow over her face. Jeff referred to this as “phase one” of his plan. He threatened to do her more harm during “phase two” of his planned attack.

While being held against her will, Lauren continuously pled with Jeff for her life and safe release to no avail. Lauren’s son-in-law saw the ordeal as it was taking place because Jeff was broadcasting it online. He called the police, who arrested Jeff before “phase two” could take place and, luckily, before further harm could be done to Lauren.

In the criminal case, the jury rendered verdicts against Jeff, finding him guilty of aggravated battery with a deadly weapon; kidnapping; aggravated assault with a deadly weapon; and assault. Jeff was sentenced to 15 years in prison.

Order of Attachment

Lauren retained a personal injury attorney to sue Jeff in a civil action in New York for the intentional torts he committed against her. Jeff owned a couple of buildings in New York and a half-interest in the Florida condominium. The attorney hired Richard A. Klass, Your Court Street Lawyer, as special counsel to seek to ” attach ” Jeff’s properties to ensure that he wouldn’t sell, mortgage or dispose of them in order to evade payment of monetary damages to Lauren.

An ” Order of Attachment ” is a provisional remedy used by a judge to ensure that there will be assets and property belonging to the defendant to pay any prospective judgment to be awarded to the plaintiff after trial. The operative rule, CPLR 6201, provides, in relevant part:

An order of attachment may be granted in any action, except a matrimonial action, where the plaintiff has demanded and would be entitled, in whole or in part, or in the alternative, to a money judgment against one or more defendants, when:

3. the defendant, with intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered in plaintiff’s favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts;

As held by the Second Department in Mineola Ford Sales Ltd. v Rapp, 242 AD2d 371, 371 [2d Dept 1997], ” In order to obtain an order of attachment under CPLR 6201(3), the plaintiff must demonstrate that the defendant has or is about to conceal his or her property in one or more of several enumerated ways, and has acted or will act with the intent to defraud his or her creditors, or to frustrate the enforcement of a judgment in favor of the plaintiff (see, Arzu v. Arzu, 190 A.D.2d 87, 91, 597 N.Y.S.2d 322; Societe Generale Alsacienne De Banque, Zurich v. Flemingdon Dev. Corp., 118 A.D.2d 769, 772, 500 N.Y.S.2d 278). The moving papers must contain evidentiary facts-as opposed to conclusions-proving the fraud (Societe Generale Alsacienne De Banque, Zurich v. Flemingdon Dev. Corp., supra; see also, Rothman v. Rogers, 221 A.D.2d 330, 633 N.Y.S.2d 361; Rosenthal v. Rochester Button Co., 148 A.D.2d 375, 376, 539 N.Y.S.2d 11). In addition to proving fraudulent intent, the plaintiff must also show probable success on the merits of the underlying action in order to obtain an order of attachment (see, CPLR 6212[a]; Societe Generale Alsacienne De Banque, Zurich v. Flemingdon Dev. Corp., supra; Computer Strategies v. Commodore Business Machs., 105 A.D.2d 167, 172, 483 N.Y.S.2d 716). “

In her request for the Order of Attachment, Lauren provided recordings of jailhouse telephone conversations between Jeff and another party which demonstrated that Jeff intended on quickly transferring his various real estate interests, seemingly to avoid a prospective judgment against him. The judge decided to issue the Order of Attachment in order to keep Jeff’s real estate in place to ensure that Lauren would have available assets from which to collect her potential judgment.

Out-of-State Property May Be Attached.

As to the Florida condominium unit jointly owned by Lauren and Jeff, the judge determined that he had jurisdiction to issue an injunction to prevent Jeff from disposing of his interest in it. While generally a New York State court has jurisdiction over only property located within the State, it can exercise jurisdiction over property in another state under certain circumstances. See, Gryphon Domestic VI, LLC v. APP International Finance Company, B.V., 41 AD3d 25 [1st Dept. 2007] (New York court can restrain transfers of property outside the state so long as it has jurisdiction over the transferor).

The defendant Was Deemed a New York Domiciliary.

Jeff made a request of the judge to dismiss the lawsuit against him, claiming that the court did not have jurisdiction over him because he was now considered a Florida resident (because he ‘resides’ in jail in Florida). This request was challenged by showing the judge that Jeff’s last residence before entering prison was New York.

In Farrell v Lautob Realty Corp., 204 AD2d 597, 598 [2d Dept 1994], the Second Department held that:

…it is long-established law in New York that a person does not involuntarily lose his domicile as a result of imprisonment. …As stated by the Court of Appeals: ” [A] patient or inmate of an institution does not gain or lose a residence or domicile, but retains the domicile he had when he entered the institution ” (Matter of Corr v Westchester County Dept. of Social Servs., 33 NY2d 111, 115).

Further, the fact that the prison is located in a different state from the defendant’s previous state of domicile is irrelevant to the above jurisdictional rule. See, Poucher v. Intercounty Appliance Corp., 336 F.Supp.2d 251, 253 (E.D.N.Y.2004) (” It is well-established that a prisoner does not acquire a new domicile when he is incarcerated in a state different from his previous domicile.”)

Notice of Attachment

The judge granted the Order of Attachment in favor of Lauren. This allowed a Notice of Attachment to be filed against each of Jeff’s properties. A Notice of Attachment is similar to a Notice of Pendency (Lis Pendens) in that it serves as notice to others that there is a pending lawsuit that may affect the ownership of real estate. Once the Order of Attachment was granted, the parties entered into a settlement agreement, where Jeff agreed to transfer to Lauren one of his buildings and his half-interest in the condominium.

Prior results do not guarantee a similar outcome.
Image at top of page: Shutterstock

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Richard A. Klass awarded General Practice Section Award

Richard A. Klass, Esq., Principal, wearing colorful tie and dark blue suit coat.

The New York State Bar Association’s General Practice Section Award is given annually, or at the discretion of the General Practice Section, to honor an individual who is outstanding, innovative, and has made significant contributions to improve the daily practice of law for general practitioners in New York State.

We are pleased to announce that Richard A. Klass, Your Court Street Lawyer, is the recipient of the 2018 General Practice Section Award. It will be presented at the General Practice Section’s Annual Meeting, on January 15, 2019.

This award recognizes a person who has contributed their time and expertise to improve the daily practice of law for general practitioners in New York State, and who has demonstrated a strong dedication to the profession. Consideration is also given for involvement in NYSBA and/or General Practice Section activities.

Past Recipients of the General Practice Section Award:

2017 – Martin Minkowitz
2016 – Robert L. Ostertag
2015 – Willard H. DaSilva
2014 – Leonard E. Sienko, Jr.

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Richard A. Klass Selected for the Fourth Time for the New York Metro Super Lawyers List

Super Lawyers logo for Richard A. Klass Selected for the Fourth Time for the New York Metro Super Lawyers List

We are pleased to announce that Richard Klass, has been selected to the 2018 New York Metro Super Lawyers list. This is an exclusive list, recognizing no more than five percent of attorneys in the New York Metro area.

Super Lawyers, part of Thomson Reuters, is a research-driven, peer influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Attorneys are selected from more than 70 practice areas and all firm sizes, assuring a credible and relevant annual list.

The annual selections are made using a patented multiphase process that includes:

  • Peer nominations
  • Independent research by Super Lawyers
  • Evaluations from a highly credentialed panel of attorneys

The objective of the Super Lawyers lists is to create a credible, comprehensive and diverse listing of outstanding attorneys to be used as a resource for both referring attorneys and consumers seeking legal counsel.

For more information about Super Lawyers, go to SuperLawyers.com. Super Lawyers is a registered trademark of Thomson Reuters.

R. A. Klass
Your Court Street Lawyer

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