Bits and Bytes™ Bits and Bytes,J Archive of Decisions and Legislation from February 14, 2005 to

1701 Pages·2017·10.25 MB·English

by  Joel Brandes

Bits and Bytes™

Bits and Bytes,J Archive of Decisions and Legislation from February 14, 2005 to December
1, 2018

This cumulative file may be searched using the search function. It contains every Decision
and all the Legislation that appeared in our Bits and BytesJ newsletter, since we published
the first issue on February 14, 2005, with the most recent issue appearing first.

Joel R. Brandes Consulting Services, Inc. is a creative writing and publishing
company. We provide expert matrimonial and family law content for client newsletters, law
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for legal journals and preparing presentations and materials for lectures and seminars.

The New York Matrimonial Trial Handbook by Joel R. Brandes is
available in Bookstores and online in the print edition at the Bookbaby
Bookstore, Amazon Barnes & Noble, Goodreads and other online
book sellers. It is also available in Kindle ebook editions and epub
ebook editions for all ebook readers in our website bookstore.

The New York Matrimonial Trial Handbook is divided into five parts: (1)
Preliminary Matters Prior to the Commencement of Trial, Conduct of
Trial and Rules of Evidence Particularly Applicable in Matrimonial
Matters; (2); Establishing Grounds for Divorce, Separation and
Annulment and Defenses; (3) Obtaining Maintenance, Child Support, Exclusive
Occupancy and Counsel Fees; (4) Property Distribution and Evidence of Value; and (5)
Trial of a Custody Case. There are thousands of suggested questions for the examination
and cross-examination of witnesses dealing with very aspect of the matrimonial trial.
Click on this link for more information about the contents of the
book and on this link for the complete table of contents.

The New York Matrimonial Trial Handbook was reviewed by Bernard Dworkin, Esq., in
the New York Law Journal. His review is reprinted on our website at
http://www.nysdivorce.com with the permission of the New York Law Journal.

December 1, 2018
Income Withholding Order Forms Revised

Effective August 31, 2018 revised Income Withholding Order forms promulgated
by the Office of Temporary and Disability Assistance were adopted by Administrative
Order AO/262/18 dated August 14, 2018 effective August 31, 2018 for use in Supreme
Courts.
The revised Income Withholding Order Forms are:

LDSS-5037 – IWO form for child support or combined child and spousal support
LDSS-5038 -- IWO form for Spousal Support Only cases
LDSS 5039 - Income Withholding for Support: General Information and Instructions form.

Appellate Division, Second Department

Party Claiming Court Bias Should Preserve Objection by Moving for The Court to Recuse
Itself.

In Matter of Berg v Berg, --- N.Y.S.3d ----, 2018 WL 5931432, 2018 N.Y. Slip Op.
07719 (2d Dept., 2018) the Appellate Division held that a party claiming court bias should
preserve an objection and move for the court to recuse itself. Here, although the father
did not move for the Family Court to recuse itself it reached the issue in the interest of
justice. The Court noted that when a claim of bias is raised, the ‘inquiry on appeal is
limited to whether the judge’s bias, if any, unjustly affected the result to the detriment of
the complaining party. Here, the record reflected that when the parties appeared before
the Family Court Judge, the Judge took an adversarial stance toward the father and
made numerous improper remarks to him. The Judge told the father, among other things,
that he “symbolizes everything that’s wrong with the world today,” and that he was
“[s]elfish, self-interested, [and] self-seeking.” The Judge repeated similar remarks
multiple times during the proceeding. The Judge also called the father “lazy” and
“arrogant,” and remarked that he was “the last guy that [the Judge would] want to be in a
fox hole with” because he would “fold like a cheap suit.” The Judge compared the
father’s accumulation of arrears to “an arsonist that starts a fire that kills one person,
that kills ten.” Additionally, the Judge made the matter personal by comparing the
father’s experiences to the Judge’s own. For instance, the Judge described his own past
misfortune, and detailed how he picked himself up to became a judge. At the conclusion
of the proceeding, the Judge committed the father to four times the period of
incarceration recommended by the Support Magistrate. Under the circumstances, the
bias of the Family Court Judge apparently unjustly affected the result of the proceeding
to the detriment of the father. The order of commitment was reversed, and the matter
remitted to the Family Court for further proceedings pursuant to Family Court Act §
439(a) before a different Judge.
Penalty Imposed for Civil Contempt Is Not Designed to Punish but To Compensate the
Injured Private Party or To Coerce Compliance with The Court’s Mandate

In Matter of Palmitesta v Palmitesta, --- N.Y.S.3d ----, 2018 WL 5931365, 2018 N.Y.
Slip Op. 07731 (2d Dept., 2018) the parties stipulation of settlement which was
incorporated but not merged into the parties’ judgment of divorce entered May 18, 2012,
provided that the mother would have custody of the children and that the father would
have parental access. In September 2015, the father moved to hold the mother in civil
contempt for her failure to comply with the parental access provisions of the stipulation.
Almost two years later, by order dated July 31, 2017, the Family Court, without a hearing,
in effect, denied the motion. The Appellate Division affirmed. It held that the primary
purpose of civil contempt is remedial. Any penalty imposed “is designed not to punish
but, rather, to compensate the injured private party or to coerce compliance with the
court’s mandate or both” (Matter of Department of Envtl. Protection of City of N.Y. v.
Department of Envtl. Conservation of State of N.Y., 70 N.Y.2d 233, 239). At the time the
father’s motion was decided, the mother was complying with the parties’ stipulation.
Although the mother may have failed to comply with the stipulation in the past, at the
time the father’s motion was decided, a civil contempt finding no longer could have
served its intended purpose of compelling obedience to the parties’ stipulation. The only
purpose of a civil contempt sanction at that point would have been to punish the mother,
but punishment is the purpose of criminal contempt, not civil contempt. Thus, it agreed
with the Family Court’s determination, in effect, denying the father’s motion.

Consent to DNA Test Did Not Obviate the Need for A Hearing on The Issue of Whether
the Acknowledgment of Paternity Should Be Vacated

In Matter of Andrew E v Angela NS, 165 A.D.3d 658, 85 N.Y.S.3d 115, 2018 N.Y. Slip
Op. 06530 (2d Dept., 2018) the father filed a petition to vacate the acknowledgment of
paternity on the ground of fraud, alleging, inter alia, “I do not believe that I have ever
executed an acknowledgment” of paternity. Although the parties consented to a DNA
test, the Family Court conducted a hearing on the issue of whether the acknowledgment
of paternity should be vacated on the ground of fraud, and denied the father’s petition.
The Appellate Division held that the parties’ consent to a DNA test did not obviate the
need for a hearing on the issue of whether the acknowledgment of paternity should be
vacated on the ground of fraud. Where, as here, a party seeks to challenge an
acknowledgment of paternity more than 60 days after its execution, “Family Court Act §
516–a(b) requires the court to conduct a hearing to determine the issues of fraud, duress,
or a material mistake of fact [in the execution of the acknowledgment of paternity] before
ordering a [genetic marker test].

Before Precluding Evidence Pursuant to CLR 3126, There Must Be Showing That Failure
to Comply with Court-Ordered Discovery Was Willful and Contumacious

In Maliah-Dupass v Dupass, --- N.Y.S.3d ----, 2018 WL 6072098, 2018 N.Y. Slip Op.
080188 (2d Dept.,2018) the plaintiff commenced the action for a divorce in 2012. On
August 21, 2012, the defendant served the plaintiff with discovery demands. Between
March 20, 2013, and December 14, 2014, the Supreme Court issued five compliance
conference orders, inter alia, directing the plaintiff to respond to the defendant’s
discovery demands. Pursuant to a compliance conference order dated June 19, 2014, the
defendant’s attorney sent a letter to the plaintiff’s attorney requesting specific items of
discovery. After the plaintiff failed to comply with the compliance conference order dated
December 14, 2014, directing her to comply with the June 19, 2014, order and the
defendant’s discovery demands, the defendant moved, inter alia, pursuant to CPLR 3126
to preclude the plaintiff from producing certain physical evidence or testimony at trial
and for interim counsel fees in the sum of $5,000. The court denied the defendant’s
unopposed motion on the ground that he did not comply with the requirements of 22
NYCRR 202.7.

The Appellate Division reversed and held that Supreme Court should not have
denied the defendant’s motion. It found that it was supported by the affirmation of his
attorney, which contained an adequate statement explaining his good faith effort to
resolve the issues raised by the defendant’s motion (see 22 NYCRR 202.7). It also held
that Supreme Court also should not have denied defendant’s motion to impose a penalty
upon the plaintiff pursuant to CPLR 3126. It noted that a court may prohibit a party “from
producing in evidence designated things or items of testimony” if the party “refuses to
obey an order for disclosure or willfully fails to disclose information which the court
finds ought to have been disclosed” (CPLR 3126[2]). Before a court invokes the drastic
remedy of precluding evidence, there must be a clear showing that the failure to comply
with court-ordered discovery was willful and contumacious. The willful and
contumacious character of a party’s conduct can be inferred from either (1) the repeated
failure to respond to demands or comply with court-ordered discovery, without a
reasonable excuse for these failures, or (2) the failure to comply with court-ordered
discovery over an extended period of time. Here, the defendant demonstrated that the
plaintiff failed to comply with court-ordered discovery over an extended period of time.
The willful and contumacious character of the plaintiff’s conduct may be inferred from
her failure to respond to the defendant’s letter dated July 16, 2014, despite two court
orders directing her to do so, and her failure to proffer any excuse for her failure.
Accordingly, that branch of the defendant’s motion which was to preclude the plaintiff
from producing physical evidence or testimony at trial relating to certain limited items
previously requested but not disclosed should have been granted.

The Appellate Division affirmed Supreme Court’s denial of that branch of the
defendant’s motion which was to direct the plaintiff to pay interim counsel fees in the
sum of $5,000, since the plaintiff was the less-monied spouse (see Domestic Relations
Law § 237[a]; Maliah–Dupass v. Dupass, 140 A.D.3d 832, 833, 33 N.Y.S.3d 391).

Appellate Divison, Third Department

Appellate Division Holds Family Court Properly Considered Father’s Responsive Papers
as Motion to Dismiss Without Requiring Him to File A Formal Notice of Motion

In Sprole v Sprole, --- N.Y.S.3d ----, 2018 WL 6070149, 2018 N.Y. Slip Op. 07998 (3d
Dept., 2018) the mother commenced a proceeding to modify a prior custody order
seeking, among other things, sole legal custody and primary physical custody of the
child. At the initial appearance on the petition, Family Court permitted the father’s
responsive pleadings to serve as a motion to dismiss, which motion the attorney for the
child joined, and provided the mother with an additional two weeks to provide a
response. Following receipt of the mother’s responsive papers and the father’s reply,
Family Court granted the father’s motion and dismissed the mother’s petition. The
Appellate Division affirmed. It rejected the mother’s contention that Family Court erred
when it considered the father’s responsive papers as a motion to dismiss the petition
without requiring him to file a formal notice of motion. In response to the mother’s
petition, the father filed an answer in which he sought, among other things, to dismiss
the petition for failure to allege a change in circumstances. Upon permitting the father’s
responsive pleading to serve as a notice of motion, Family Court provided the mother an
additional two weeks to respond to same. It held that the mother was clearly on notice of
the father’s argument alleging that she had failed to present adequate evidentiary proof
to demonstrate the requisite change in circumstances and she subsequently availed
herself of this opportunity to respond to the contention such that she was not prejudiced
by the lack of a formal motion (citing Matter of Charles AA. v. Annie BB., 157 A.D.3d 1037,
1038, 68 N.Y.S.3d 581 [2018]).

Order Dismissing Modification Petition Reversed Where Attorney for Child Did Not
Provide Effective Assistance of Counsel

In Matter of Payne, --- N.Y.S.3d ----, 2018 WL 6070232, 2018 N.Y. Slip Op. 07990 (3d
Dept., 2018) a custody modification proceeding the Appellate Division explained that
generally, an “attorney for the child must zealously advocate the child’s position” (22
NYCRR 7.2[d] ) and, where “the child is capable of knowing, voluntary and considered
judgment,” must be “directed by the wishes of the child, even if the attorney for the child
believes that what the child wants is not in the child’s best interests” (22 NYCRR 7.2[d][2]
). To this end, an attorney for the child in a custody case “must take an active role in the
proceeding” and “help the child articulate his or her position to the court”. As such, “an
attorney for the child is expected and empowered to fully participate and advocate by all
available means in presenting evidence on behalf of his or her client, and is fully vested
with the responsibility to present any witness testimony and evidence as may be helpful
in fulfilling the role of advocating for the child”. To effectively represent and protect a
child’s interests, the attorney for the child’s role is twofold: (1) help the child express his
or her wishes to the court, and (2) take an active role in the proceedings. By meeting with
the child and informing Family Court that the child did not want to continue visitation as
ordered, and by requesting and participating in the Lincoln hearing, the trial attorney for
the child met the first objective. Given the mother’s limited testimony, however, Family
Court understandably characterized the record as “thin.” In its view, the attorney for the
child should have taken a more active role in the proceedings by presenting witnesses
that could speak to the child’s concerns and/or conducting a more thorough cross-
examination of the mother. During his brief cross-examination of the mother, for
example, the trial attorney for the child did not attempt to elicit any further information
about his client’s behavior and demeanor relative to his visits with the father. It agreed
with the argument made by the appellate attorney for the child that the trial attorney for
the child did not provide effective assistance. Consequently, the order dismissing the
petition should be reversed and the matter remitted to Family Court for further
proceedings, including a new fact-finding hearing.
November 16, 2018

Matrimonial Rules and Forms Revised Effective September 30, 2018

By administrative order of the Chief Administrative Judge of the Courts section
202.50(b)(3) of the Uniform Civil Rules for the Supreme Court and the County Court (22
NYCRR § 202.50[b][3]), were amended effective September 30, 2018. The amended rules
read as follows:
Section 202.50. Proposed judgments in matrimonial actions; forms
(a) Form of judgments. Findings and conclusions shall be in a separate paper from the
judgment, which papers shall be labelled ”FINDINGS OF FACT AND CONCLUSIONS OF
LAW” and ”JUDGMENT,” respectively.

(b) Approved forms.

(1) Contested actions. The paragraphs contained in Chapter III, Subchapter B of Subtitle
D (Forms) of this Title, modified or deleted as may be necessary to conform to the law
and facts in a particular action, shall be used in the preparation of ”FINDINGS OF FACT
AND CONCLUSIONS OF LAW,” ”JUDGMENT,” or ”REFEREE'S REPORT OF FINDINGS OF
FACT AND CONCLUSIONS OF LAW.” Parenthesized portions indicate alternative
provisions.

(2) Uncontested Actions. Parties in uncontested matrimonial actions shall use the forms
and instructions in the Unified Court System Uncontested Divorce Packet as set forth in
section 202.21 (i)(2) of this Part, unless the court permits otherwise pursuant to that
section. The instructions to said Packets shall instruct litigants that they may include a
request for transfer of title to the marital home, cooperative apartment or condominium
apartment in their request for ancillary relief in the summons with notice or verified
complaint, and shall provide instructions as to what must be done to effectuate a
transfer. The instructions shall also advise litigants that, if they have a mortgage, they
should speak with an attorney as well as the bank before the transfer is made.

(3) Additional Requirement with Respect to Uncontested and Contested Judgments of
Divorce. In addition to satisfying the requirements of paragraphs (1) and (2) of this
subdivision, every judgment of divorce, whether uncontested or contested, shall include
language substantially in accordance with the following decretal paragraphs which shall
supersede any inconsistent decretal paragraphs currently required for such forms:

ORDERED AND ADJUDGED that the Settlement Agreement entered into between the
parties on the ___ day of _____, [ ] an original OR [ ] a transcript of which is on file with
this Court and incorporated herein by reference, shall survive and shall not be merged
into this judgment,* and the parties are hereby directed to comply with all legally
enforceable terms and conditions of said agreement as if such terms and conditions
were set forth in their entirety herein; and it is further

*In contested actions, this paragraph may read either [shall survive and shall not be
merged into this judgment] or [shall not survive and shall be merged into this judgment].
ORDERED AND ADJUDGED, that the Supreme Court shall retain jurisdiction to hear any
applications to enforce the provisions of said Settlement Agreement or to enforce or
modify the provisions of this judgment, provided the court retains jurisdiction of the
matter concurrently with the Family Court for the purpose of specifically enforcing, such
of the provisions of that (separation agreement) (stipulation agreement) as are capable of
specific enforcement to the extent permitted by law, and of modifying such judgment
with respect to maintenance, support, custody or visitation to the extent permitted by
law, or both; and it is further

ORDERED AND ADJUDGED, that any applications brought in Supreme Court to enforce
the provisions of said Settlement Agreement or to enforce or modify the provisions of
this judgment shall be brought in a County wherein one of the parties resides; provided
that if there are minor children of the marriage, such applications shall be brought in a
county wherein one of the parties or the child or children reside, except. in the discretion
of the judge, for good cause. Good cause applications shall be made by motion or order
to show cause. Where the address of either party and any child or children is unknown
and not a matter of public record, or is subject to an existing confidentiality order
pursuant to DRL section 254 or FCA section 154-b, such applications may be brought in
the county where the judgment was entered; and it is further

(4) Additional Requirement with Respect to Uncontested and Contested Judgments of
Divorce. In addition to satisfying the requirements of paragraphs (1), (2), and (3) of this
subdivision, every judgment of divorce, whether uncontested or contested, shall include
language substantially in accordance with the following decretal paragraph:

ORDERED AND ADJUDGED that pursuant to pursuant to the [ ] parties' Settlement
Agreement dated ___________________ OR [ ] the court's decision after trial, all parties
shall duly execute all documents necessary to formally transfer title to real estate or co-
op shares to the [ ] Plaintiff OR [ ] Defendant as set forth in the [ ] parties' Settlement
Agreement OR [ ] the court's decision after trial, including, without limitation, an
appropriate deed or other conveyance of title, and all other forms necessary to record
such deed or other title documents (including the satisfaction or refinance of any
mortgage if necessary) to convey ownership of the marital residence located at
_________________________, no later than ________________________; OR [ ] Not
applicable: and it is further
(c) Judgments submitted to the court shall be accompanied by a complete form UCS 111
(Child Support Summary Form).

By administrative order of the Chief Administrative Judge of the Courts the
Unified Court System Uncontested Divorce Packet Instructions and Judgment of Divorce
(Form UD-11) for use in undefended matrimonial actions pursuant to 22 NYCRR §§
202.21(i) and 202.50, were repealed and new versions of that form and instructions were
enacted as follows: Instructions (rev. 9/30/18); Judgment of Divorce (Form UD-11) (rev.
9/30/18).

The administrative order was effective for divorce submissions made on or after
September 30, 2018. However, divorce submissions made using the earlier version of the
divorce judgment were still accepted through October 30, 2018.
The following are links to the revised forms and instructions
Introduction to Uncontested Divorce Instructions (Rev. 9/30/18)
Judgement of Divorce (Form ud-11) (rev 9/30/18)
Uniform Uncontested Divorce Packet Forms Revised 9/30/18

See NYS Register October 31, 2018, p. 97

Appellate Division, First Department

Refusal to read order is not a defense to enforcement

In Matter of Rosa N v Luis F, --- N.Y.S.3d ----, 2018 WL 5913829, 2018 N.Y. Slip Op.
07682 (1st Dept., 2018) at the violation hearing, respondent admitted to sending petitioner
texts after receiving the order of protection, which he said he refused to read. The
Appellate Division held that Family Court properly rejected respondent’s defense based
on his refusal to read the order.

Appellate Division, Fourth Department

General rule regarding downward modification of support should not be inflexibly
applied where a parent quits a job for a sufficiently compelling reason

In Matter of Parmenter v Nash, --- N.Y.S.3d ----, 2018 WL 5875499, 2018 N.Y. Slip
Op. 07553 (4th Dept.,2018) the Appellate Division observed that as a general rule, a parent
who voluntarily quits a job will not be deemed without fault in losing such employment.
Nevertheless, it held that “the general rule should not be inflexibly applied where a
parent quits a job for a sufficiently compelling reason, such as the need to live closer to
a child. As one court has explained, a “parent who chooses to leave his [or her]
employment rather than [live] hundreds of miles away from his [or her] children is not
voluntarily unemployed or underemployed. Instead, he [or she] is a loving parent
attempting to do the right thing for his [or her] children. To punish such a parent by
requiring higher child support ... is neither good law nor good policy” (Abouhalkah v.
Sharps, 795 N.E.2d 488, 492 [Ind. Ct. App. 2003] ). “ The equities weighed heavily in
favor of the father given that the mother moved the child hundreds of miles away from
the father and created the difficulties inherent in long-distance parenting. The father quit
his job in Virginia and relocated to Onondaga County in order to rehabilitate his
relationship with his son, which had suffered since the child was moved to New York.
Under these circumstances, it concluded that the father demonstrated the requisite
change in circumstances necessary to reexamine his child support obligation.

Where parent is recieient of public assistance imputation of income is a proper basis to
refuse to cap unpaid child support arrears at $500 under Family Ct Act § 413[1][g]

In Matter of Mandile v Deshotel, --- N.Y.S.3d ----, 2018 WL 5875868, 2018 N.Y. Slip
Op. 07571 (4th Dept., 2018) the Appellate Division affirmed an order that, inter alia,
confirmed the determination of the Support Magistrate that the mother willfully violated a
prior child support order and awarded her judgment for arrears. It, among other things,
rejected the mother’s contention that the court erred in refusing to cap her unpaid child
support arrears at $500. It observed that “here the sole source of a noncustodial
parent’s income is public assistance, unpaid child support arrears in excess of five
hundred dollars shall not accrue ( Family Ct Act § 413[1][g] ). Although the mother
received public assistance and did not maintain employment, circumstantial evidence
suggested that she had access to, and received, financial support from her live-in
paramour. Inasmuch as a court need not rely upon a party’s own account of his or her
finances, but may impute income to a party based on money received from friends and
relatives” it concluded that the court did not err in denying the mother’s motion to cap
her arrears at $500 (cf. Edwards, 233 A.D.2d at 885, 649 N.Y.S.2d 618).

November 1, 2018

Court of Appeals

Court of Appeals Holds that ACS failure to offer or provide mother with certain services
claimed as “reasonable accommodations” under the Americans with Disabilities Act
(ADA) at time six-month permanency reporting period ended did not preclude finding it
made “reasonable efforts” toward family reunifications, as required by Family Court Act
§ 1089.

In Matter of Lacee L v Stephanie L, --- N.E.3d ----, 2018 WL 5046100, 2018 N.Y.
Slip Op. 06966 (2018) Stephanie L sought to raise the issue: can Family Court find that
the New York City Administration for Children’s Services (ACS) made “reasonable
efforts” toward family reunifications, as required by Family Court Act § 1089, if ACS
failed to provide “reasonable accommodations” required by the Americans with
Disabilities Act (ADA), which requires that governmental agencies make “reasonable
accommodations” to ensure disabled persons have access to their services (42 USC §
12131 [2] )? Judge Wilson, writing for the Court noted that Stephanie L. had not identified
any services allegedly required by the ADA that were not also required under New York
law.

Applying section 1089, Family Court ordered ACS to provide the services
Stephanie L. claimed as “reasonable accommodations” under the ADA. Family Court
noted that Stephanie appeared generally to have received those services. ACS did not
provide its services eagerly or promptly, and provided some only because of stern
admonitions from Family Court and vigorous follow up from Stephanie’s counsel. The
Appellate Division determined that Family Court “look[ed] to the ADA’s standards ...
evaluat[ed] the agency’s efforts in that light, [and] found that the agency tailored its
efforts to the mother’s needs” (Matter of Lacee L. (Stephanie L.—Dekodia L.), 153 A.D.3d
1151, 60 N.Y.S.3d 164 [1st Dept. 2017]). Family Court’s determination – affirmed by the
Appellate Division – that ACS had made “reasonable efforts” was supported by the
record. The Court affirmed.
The Court of Appeals held that although ACS must comply with the ADA, ACS’s
failure to offer or provide certain services at the time a six-month permanency reporting
period ends does not necessarily mean that ACS has failed to make “reasonable efforts.”
Family Court is not required to determine compliance with the ADA in the course of a
permanency proceeding. The ADA’s “reasonable accommodations” test is often a time-
and fact-intensive process with multiple layers of inquiry. That adjudication is best left to
separate administrative or judicial proceedings, if required (see 28 CFR §§ 35.107[b],
35.170; 42 USC § 12133). Family Court is charged with assessing whether reasonable
efforts were made to achieve the permanency goal “in accordance with the best interest
and safety of the child” (Family Court Act § 1089 [d]). The record reflected that Family
Court was working assiduously to evaluate and accommodate Stephanie L.’s need for
services tailored to her own disabilities as they related to parenting Lacee L. Stephanie L.
disclaimed any attempt to have brought an ADA claim in Family Court and did not prove
in any other forum an ADA violation, but instead argued that certain accommodations
would have been required under the ADA. The ADA contains no fixed time period for
compliance, and the reasonableness of efforts to provide an accommodation will vary
with the facts of each case. New York’s six-month measuring period is not a final
determination as to an agencies’ efforts to provide services, but a periodic checkpoint to
help ensure that at-risk children are not falling through bureaucratic fissures (see Family
Court Act § 1089). Family Court has substantial discretion to make factual determinations
that ACS’ inchoate attempts to provide services have been “reasonable.” In other words,
even as to accommodations that might be required under the ADA, the failure of ACS to
offer or deliver such accommodations by the end of a given measuring period does not
necessarily mean that ACS has violated the ADA or failed to make reasonable efforts
under New York law.

Appellate Division, Second Department

Voluntary Payments Made for The Support and Legal Obligations of a Spouse Should Be
Applied as A Credit to The Calculation of Arrears Owed by The Payor Spouse

In Stern v Stern, --- N.Y.S.3d ----, 2018 WL 5020059, 2018 N.Y. Slip Op. 06959
(2d Dept., 2018) in a preliminary conference order entered September 11, 2006, the
parties addressed pendente lite relief. At that time, the defendant was voluntarily making
payments to support the plaintiff and the children of the marriage, as well as paying the
expenses of the household. The preliminary conference order provided as to pendente
lite relief: “Status quo to be maintained. No motion at this time.” The stipulation was so-
ordered by the Supreme Court. As a result, there was no separate order concerning
spousal maintenance issued at that time. After a judgment of divorce was entered the
plaintiff moved pursuant to Domestic Relations Law § 244, inter alia, for a money
judgment against the defendant for unpaid maintenance arrears totaling $353,400, plus
prejudgment interest, after crediting payments made by the defendant under an interim
order dated January 22, 2009. The defendant opposed the motion, arguing, among other
things, that he was entitled to credits totaling $393,516.53 against his maintenance
obligation. The Supreme Court, inter alia, granted plaintiff a money judgment for unpaid
maintenance arrears of $353,400 and for an award of prejudgment interest on that sum,
retroactive to the date of default.

The Appellate Division held that voluntary payments made for the support and