The Powerful Impact of The Non-Foreclosure Notice of Pendency
October 01, 2004
RPAPL ' 1331 and RPAPL ' 1403 Notices of Pendency are requisite elements for foreclosing a mortgage. <i>See, Chiarelli v. Kotsifos</i>, 5 A.D.3d 345 (a notice of pendency is a prerequisite to obtaining a judgment in a mortgage foreclosure action); <i>Campbell v. Smith</i>, 309 A.D.2d 581, 582 (a notice of pendency is required in a foreclosure action under RPAPL Article 13). In contrast, an ex parte CPLR Article 65 Notice of Pendency (the "Notice") is not required but it is a significant tool in an action claiming title to, or an interest in or the use or enjoyment of, another's land. The filer does not have to make a meritorious showing or post a bond. Article 65 provides mechanisms for the defendant-owner to vacate the Notice that caused an unilaterally imposed restraint on its realty. But, recent case law establishes the near futility of such efforts if the plaintiff has satisfied the minimal statutory requisites for filing the Notice.
How to Win a Hague Convention Child Abduction Case
October 01, 2004
Here are some tips for attorneys and clients faced with instituting or defending child abduction proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, whether in the United States or internationally.
Brooklyn Courthouse Scandal Prosecutions Under Way
October 01, 2004
The first of the criminal trials based on the alleged corruption uncovered last year in Brooklyn matrimonial court began Aug. 17 with the prosecution of a court officer and of Judge Gerald P. Garson's former clerk. The criminal case against Garson, who is accused of accepting bribes from an attorney to steer cases to him, is expected to go to trial next year. There will be a delay in Garson's case's commencement because the prosecution will probably appeal dismissal of six of the seven counts brought against him, including the charge of fixing case outcomes.
First Decision on DOMA's Constitutionality
October 01, 2004
On Aug. 17, a bankruptcy judge in Washington State became the first federal judge in the country to rule on the constitutionality of the federal Defense of Marriage Act (DOMA), 1 U.S.C. ' 7. U.S. Bankruptcy Judge Paul B. Snyder held in <i>In re Kandu</i>, No. 03-51312, 2004 Bankr. LEXIS 1233 (8/17/04) that DOMA was not unconstitutional. And, while it may seem that a law this contentious should have garnered at least a few case-law decisions in the 8 years following its enactment, the <i>Kandu</i> case has become the unlikely first because previous litigants lacked standing; they had not actually been married to a same-sex partner.
Divorce and the Foreign-National Spouse
October 01, 2004
New York is still one of the major destination states in this country for newly arriving immigrants. Many of them come as newlyweds to the state, or are married after they've lived here, either legally or illegally, for some time. Of course, newly married immigrant spouses of American citizens or permanent citizens can apply for residency, but in the first years of marriage, that status, when granted, is not permanent but conditional. Family lawyers dealing with divorcing aliens or their spouses must therefore be prepared to advise their clients of the problems that can arise when immigration status is at stake along with the usual questions of who gets the dining set and the better car. <b><i>Part One of a Two-Part Article.</i></b>
Cases of Note
October 01, 2004
Recent cases of interest to the Internet law community. This month:<br>U.S. Supreme Court Mulls RIAA, Verizon Dispute <br>PA Internet Child Pornography Act Struck Down
<b><i>Commentary</b></i> Is Suing Your Customers A Good Idea?
October 01, 2004
Four thousand two hundred and eighty lawsuits and counting. <br>That's how many lawsuits have been brought by the major record labels against music fans for using peer-to-peer (P2P) file-sharing software (like KaZaA or Morpheus) to swap music over the Internet. The 1-year anniversary has just been reached in the recording industry's unprecedented litigation campaign against its own customers. The campaign appears to have hit its stride, with the Recording Industry Association of America (RIAA) announcing roughly 500 new suits each month.
RIAA Escalates Battle
October 01, 2004
The Recording Industry Association of America (RIAA) recently announced that it has filed a new round of lawsuits against 762 people it suspects of distributing its songs for free over Internet peer-to-peer (P2P) networks like KaZaA and eDonkey. <br>As of press time, the RIAA has sued roughly 5400 people over the past year in an effort to discourage the online song copying that it believes has cut into CD sales. And it's also pressing Congress to help.
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