Legal Tips for Members

One service that PELS provides to members and retirees of Local 375 is the preparation of correction deeds or deeds conveying a primary residence (or a partial interest in a primary residence) to a family member. And an important part of any deed transfer is the filing (recording) of the deed with the City Register (in New York City) or County Clerk (in any other New York county.) The related costs involved in a deed transaction, such as possible transfer taxes and instrument recording fees, are always the client’s own expense. Please be alerted that within the past months, Nassau County has increased some related fees in order to assist with a budget shortfall, and what once cost a person approximately $200.00 now costs, on average, $850.00 or more. There has been political infighting in Nassau County about these raised costs, and sooner or later the County may give the issue a second look. However, for the present, if you or someone you know wants to participate in a deed transfer in Nassau County and it is NOT an emergency transfer, it may be wise to put your plans on hold for a few months to see if the county legislature will yield to pressure and bring the fees back down to a reasonable level.

If you have a claim against someone for an amount of money of $5,000.00 or less, and you can’t work it out without bringing a lawsuit, New York’s Small Claims Part is where you want to go. There are many benefits for self-represented litigants in Small Claims Court. Evening sessions are available, filing costs are low, trials are speedy, and the rules of pleading and rules of evidence are very relaxed, making it relatively easy to file and prove a case. In fact, in many respects the process is almost identical to what you will see on the many reality-based court shows on television. A problem arises, however, when a person’s claim is over $5,000.00. In such a case, a choice must be made: Should the person proceed in Small Claims Court, knowing that they will only recover $5,000.00 no matter the value of the claim, or should the person proceed in the court’s “general” session instead? Unfortunately, in bringing a claim in a court’s general session, a claimant is subjecting the case to higher scrutiny as to evidence and pleadings, and becoming subject to mandatory disclosure rules, a protracted calendar that could delay the claim for years, and possible paperwork nightmares such as motion practice and other mandatory court filings and deadlines. And because of such complexities, it is seldom a good idea to appear in a court’s general part without the aid of retained counsel - but given the amount of work needed to process such a case to the court’s satisfaction, the cost of having an attorney might so greatly cut into a possible recovery that retaining an attorney makes little or no sense. As attorney fees have gone up, and as the small claims jurisdiction has remained at $5,000.00 this dilemma has become more and more pronounced. Although there may not be any ready answer to this problem unless the legislature raises the small claims limit, and although each case must be looked at as being different from the next, Local 375 PELS does offer attorney consultation services to assist the Union’s members in deciding which course of action might be the most advantageous to take.

New York City has recently enacted a consumer law intended to prevent employers from using the consumer credit history of an employee or applicant when making employment decisions. The Stop Credit Discrimination in Employment Act (the Act or SCDEA), which went into effect on September 3, 2015, makes it illegal for most employers to request or use an employee's or applicant's credit history for employment purposes, unless one of eight exceptions applies. These exemptions generally apply to more money sensitive employment situations such as where an employer may be required by state or federal law or regulation to use an individual's consumer credit history for employment purposes, where employee bonding is required by law, or where a non-clerical employee may have regular access to trade secrets, or may have responsibility for funds or assets worth $10,000 or more. Employers relying on these exemptions must inform the applicant or employee of the claimed exemption and must keep a record of that exemption in a log for five years. Civil penalties under the Act may range from $125,000 for inadvertent violations, up to $250,000 for violations that are the result of willful, wanton or malicious conduct. These penalties are in addition to other remedies available to individuals who may bring a claim under the NYCHRL, including, but not limited to, front and back pay, compensation, punitive damages and attorneys' fees.

New amendments to the New York Domestic Relations Law and Family Court Act have changed the way New York’s courts are required to respond to requests for spousal maintenance as part of a divorce. In 2010, New York State enacted divorce reform including no-fault divorces, and at the same time enacted guidelines and formulas governing temporary (pre-divorce) maintenance awards. Now, some five years later, following a study by the State Law Revision Commission, similar formulas have been adopted covering post-divorce maintenance awards. The previous law applied equal standards to divorcing parents with children paying child support, even if the maintenance payor was also the custodial parent. Now the new law will use a different formula requiring less maintenance for a maintenance payor who is also the non-custodial parent paying child support. The law has also clarified that maintenance is to be calculated prior to calculating child support; and in assessing child support guidelines calculations, maintenance is to be deducted from the payor’s income and added to the payee’s income. Under the 2010 law, temporary maintenance awards (pending litigation) would be in effect for the entire duration of the litigation. Now, the Court may determine the duration of the temporary maintenance award, considering the length of the marriage, and temporary maintenance awards may be shorter than the litigation. Unfortunately, however, the biggest change impacts awards of post-divorce maintenance payments to former spouses. In awarding post-divorce maintenance, courts may now consider a specific advisory schedule, which not only sets out presumptive maintenance award calculations using set mathematic formulas, but it also ties the length of a maintenance award to the length of the marriage. Because of the advisory schedule, in particular when considering more lengthy marriages, the new law might actually result in encouraging spouses to seek maintenance awards more frequently than in the past, making the payment of maintenance awards more likely in such cases, and making it more difficult to settle such cases without court intervention.