Jon Michael Probstein Esq.

Latest Articles

First the facts. Matter of John (Joseph G.), 2019 NY Slip Op 05132, Decided on June 26, 2019, Appellate Division, Second Department: “The appellant is a single, gay man who, in 2012 and under medical supervision, had embryos created using his sperm and eggs from an anonymous egg donor. The egg donor relinquished all rights to the eggs and any resulting children. The appellant had some of the embryos implanted in an unpaid (“compassionate”) gestational…
Despite the lease language, not all counterclaims were waived. 525 Jericho Realty v. Anuj Rani Grp., NYLJ July 03, 2019, Date filed: 2019-06-26, Court: District Court, Nassau, Judge: Judge Scott Fairgrieve, Case Number: LT-006565-18NA: “….Specifically, petitioner relies on paragraph 38 of the parties’ lease rider, entitled “Set-off and Counterclaim,” which reads as follows: “It is expressly understood and agreed by and between the parties hereto that the Tenant herein shall not be entitled to any…
To enforce a contract for the sale of land, there must be a contract. 443 Jefferson Holdings, LLC v Sosa, 2019 NY Slip Op 05376, Decided on July 3, 2019, Appellate Division, Second Department: “On January 4, 2013, the defendant and nonparty Aron Froimovits executed a handwritten, one-page agreement (hereinafter the agreement) whereby the defendant was to sell to Froimovits or his assignee two separate properties in Brooklyn, one located on Menahan Street (hereinafter the…
If it was a 27 year marriage, how many years should spousal maintenance last? Beyel v Beyel, 2019 NY Slip Op 05102, Decided on June 26, 2019, Appellate Division, Second Department: “The amount and duration of maintenance is committed to the sound discretion of the trial court, and each case is to be decided on its own unique facts (see Carr-Harris v Carr-Harris, 98 AD3d 548, 551; Wortman v Wortman, 11 AD3d 604
LLC v S&R Main Realty, LLC, 2019 NY Slip Op 05171, Decided on June 26, 2019, Appellate Division, Second Department: “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 NY2d 83, 87-88; see…
Something to consider in estate planning documents. Matter of Zhu, 2019 NY Slip Op 29146, Decided on May 16, 2019, Supreme Court, Westchester County Colangelo, J.: “Petitioners Monica Zhu and Yongmin Zhu (“Petitioners” or the “Zhus”) are the parents of Peter Zhu, now deceased. (“Peter” or the “Deceased”). Peter was a cadet at West Point Military Academy (“West Point”) in West Point, New York, scheduled to graduate later this year. On February 23, 2019, Peter…
The answer is no if the fact that the contractor is unlicensed is the sole basis for seeking recoupment. Rusin v Design-Apart USA, Ltd. 2019 NY Slip Op 05172 Decided on June 26, 2019 Appellate Division, Second Department; “The plaintiff and the defendant executed a contract, in which it was agreed that the defendant would furnish and install kitchen cabinets at the plaintiff’s home for a total cost in excess of $64,000. The plaintiff paid…
Bank of Am., N.A. v Shami, 2019 NY Slip Op 04901, Decided on June 19, 2019, Appellate Division, Second Department: “Notwithstanding the above, CPLR 3215(c) provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed.” The language…
In this case, an investor company bought the property after the homeowner defaulted but before the foreclosure action was begun. Citimortgage, Inc. v Etienne, 2019 NY Slip Op 03564, Decided on May 8, 2019, Appellate Division, Second Department: “Turning to the merits, OKL contends that the Supreme Court should not have awarded the plaintiff summary judgment because the plaintiff failed to establish, prima facie, that it gave proper notice to the borrower in strict accordance…
In this case, an investor company bought the property after the homeowner defaulted but before the foreclosure action was begun. Citimortgage, Inc. v Etienne, 2019 NY Slip Op 03564, Decided on May 8, 2019, Appellate Division, Second Department: “Turning to the merits, OKL contends that the Supreme Court should not have awarded the plaintiff summary judgment because the plaintiff failed to establish, prima facie, that it gave proper notice to the borrower in strict accordance…