Cammarata & De Meyer P.C.

FOR THE PEOPLE

Cammarata & De Meyer P.C. offers aggressive representation in Divorce, Family Law, Criminal Defense, Personal Injury, Real Estate, and Wills, Trusts, Estates.

DWI or DUI Arrest? It can happen to anyone of us.

DWI or DUI arrest? DWI or DUI charges are serious! If convicted, the accused could face heavy fines and/or jail time. It can happen to any one of us. Merely having one or two glasses of wine when out to dinner at a local restaurant and starting the car is all it could take to be arrested. 

It happens to good people everyday who have never been arrested before. As a former NYC Police Officer turned lawyer, I offer an aggressive defense to any DWI/DUI matter. Simply put, I have an advantage over many attorneys; I wore the same uniform and was trained in the same academy as the arresting officer. Coming from a law enforcement background, I am able to formulate a cutting edge legal defense that may not be offered by another attorney. I know how police officers were trained, how they make arrests, and the mistakes they make doing so. 

If ever arrested for DWI or any criminal matter tell the police "I want to call my lawyer now." (and do not answer any incriminating questions once in custody)
Then call Cammarata Law and ask for me, Joe Cammarata 718-477-0020 #CammarataLaw

For a powerful cutting edge legal defense that makes sense visit:
www.cammaratalawpc.com

Buyers & Sellers of Real Estate Beware!

Joseph M. Cammarata Esq. has nearly two decades of real estate experience. He draws on knowledge previously acquired as a real estate developer, and real estate agent in New York and New Jersey. Mr. Cammarata has negotiated millions of dollars of real estate contracts dealing in the sale of land, sale of condos, sale of homes, and contracts with sub-contractors. It is this experience he offers his client's when dealing in real estate transactions as their legal advocate.

Buying or selling  real estate? It's worth the read to touch on the rights and responsibilities of each party in a NY real estate transaction.

"Caveat Emptor" is a latin phrase regarding real estate that translates to "buyer beware." NY adheres to the doctrine of Caveat Emptor and imposes NO duty on the seller or real property, or his agent to disclose any information concerning the property/premise when the parties deal at arms length, UNLESS there is some conduction the part of the seller or the seller's agent which would constitute an "active concealment." "The mere silence of a seller, without some act or conduct which deceived the purchaser, does not amount to concealment that is actionable as a fraud." Rozen v. 7 Calf Cr., LLC, 52 A.D.3d at 593. "To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller's agent thwarted the buyer's effort to fulfill his responsibilities fixed by the doctrine of caveat emptor. In other words, the seller does not interfere with the due diligence being conducted by the buyer in examining and inspecting the premise for its quality before closing on the property. NY has a 48 question disclosure form that must be filled out for real estate transactions. However, it can be waiver if the seller offers the $500 credit for not filling it out.

This post will explore the advantages and disadvantages of filling out the disclosure from the prospective of a seller and a buyer.

 

Sellers:

Sellers of Real Estate in NY State are required to fill out a 48 question detailed Disclosure Statement about the condition of the Real Property being sold. This disclosure MUST set forth to the buyer, all general information as well as structural, plumbing, electrical, mechanical and environmental conditions with the property. Some questions are simple; Is there asbestos present on the premises? This may be easily answered by referencing the year the property was built (new home). however, some other questions are complex such as questions asking whether or not there are "material defects" in the structural components of the home? These series of questions may expose the seller to liability.

 

If the seller fails to truthfully and properly answer the any of the 48 questions on the disclosure form, the seller can be liable to the buyer for damages. This can happen if the seller incorrectly answers a question which hinders or alters the investigation that the buyer does in determining if the property is free from defect via a home inspection. Even innocent omissions or mistakes can lead to great liability.

 

Cammarata Law urges its client's selling real estate to opt out of the 48 questions in the disclosure, and pay the $500 dollar credit toward the buyer of the property at closing in lieu of completing the complex disclosure act. This insulates the seller from some liability.

Most seller's heed the warning and risks associated with completing the disclosure and buck up the $500 dollars. However, some sellers feel the $500 may be better kept in their wallet. The problem with this is, that in the event that a defect was present in the home, and could have/should have been discovered by the seller, or they knew or should have known it was present, could lead to thousands of dollars in litigation costs and damages awarded to the buyer.

 

Buyers:

Buyers should request that the seller fill out the disclosure in lieu of giving the $500 credit. Filing out the disclosure would put the seller in a position of vulnerability in the event that a defect was later discovered by the buyer once in the house, that should have and could have been discovered or known by the seller. The answers can be used against the seller in the event that litigation regarding the property is necessary.

Unfortunately, mandating that seller fill out the disclosure may hinder the deal, and the seller may opt to deal with another buyer.

 

In sum, clients need to weigh all their options when determining whether or not to fill out the disclosure depending on what hat they wear at the time of the transaction (buyer or seller).

Below is the link to the NY property disclosure act.

 

Call today for a Real Estate Contract and Closing Representation.

Joe Cammarata Esq.      718-477-0020

https://www.dos.ny.gov/forms/licensing/1614-a.pdf

Dog Bite? You have options if you become dog bait.

Hypotheical:

"Joey Thumbs" was a neighborhood guy and former boxing contender. He had a Rotweiller named "Tyson" after his childhood boxing idol Iron Mike Tyson. Tyson never bit anyone before but Joey Thumbs knew Tyson would growl and show his teeth to people because he used to make jokes about it and bet against his friends on how long it would take for Tyson to act up. He would usually win on the over and under because he raised Tyson since he was a pup and knew everything about him.

James, a mail carrier was approaching "Joey Thumbs" house attempting to deliver mail when he noticed that Joe's Rottweiler "Tyson" was lying on the lawn taking in the sun, unleashed. Not taking any chances, because Tyson was known to "growl and show teeth at James from the window from time to time, James decided not to deliver the mail. He headed back to his mail truck because he wanted no trouble with the dog, he had a WWE event to attend that night and didn't want to miss it for anything. When James was about to enter his mail truck, he noticed that Tyson was charging him. Hungry because he had not yet had his lunch, Tyson took a chunk out of the rear end of James, similar to the chunk Mike Tyson took out of the ear of Evander Holyfield back in the day. Tyson never bit anyone before, but as stated above, Joey Thumbs knew Tyson used to growl and show his teeth to people because he used to make jokes about it and bet against his friends on how long it would take for Tyson to act up.

James went to the emergency room and was released that day with a few puncture marks and some swelling in his booty, but other than that was good spirits.

 

The issue is whether an owner of a dog is liable even if the dog never bit someone but has growled at strangers and bared their teeth on previous occasions?

 

Tort Law imposes strict tort liability on the keeper of a "wild animal" or a domestic animal known to be viscious. NY's highest court, the Court of Appeals, established the standard that an owner of a domesticated animal will only be liable if (1) the domesticated animal caused someone personal injury, and (2) the animal's owner knew or should have known that his or her domestic animal was viscous. Collier v. Zambito 1 N.Y. 3d at 444 (2004). the domestic animal is a dog, "vicious propensities" can be established by showing that the dog previously growled, bared its teeth, snapped at or bit someone Collier  1 N.Y. 3d at 447. This type of vicious puts the owner on notice that he or she possesses a vicious dog, and if that dog subsequently bites a third party, the owner is strictly liable for the tort. Proof of a previous attack is unnecessary where other factors are indicative of owner knowledge.

 

Here, it was clear that Joey Thumbs knew that Tyson had growled and bared his teeth at people in the past because he frequently bet the over and under with his friends on how long it would take Tyson to act up. Although Tyson never bit before, this satisfies the rule of being put on notice that the dog has vicious propensity and may bite someone. It was clear Thumbs had notice. In addition, Joe allowed Tyson to roam around the lawn without a leash knowing that he may act up. When James attempted to deliver the mail but walked away he became dog bait.

 

Therefore, Joey Thumbs would be liable for the actions of Tyson because he knew that Tyson had vicious propensities because had growled at people and bared his teeth, even though he never bit before.

***This is based on made up events, in real life Tyson was a great fun loving dog. RIP Tyson.

Call today for a consultation on a dog bite or any other personal injury claim including automobile accidents, slip and falls, and work related injuries.

Joe Cammarata Esq.      718-477-0020

Child Support- Who really pays?

Child Support- Who Really Pays?

Under NY Law, both parents are ultimately responsible for child support until the child reaches their 21st birthday unless the child is emancipated or dies. Emancipation is a complete severance of the parental relationship that occurs when the child voluntarily withdraws from the parental control of the guardian. Emancipation occurs when the child marries, joins the military, or attains independence from employment.

NY has adopted a uniform child support award system which is not based on need but rather a fixed percentage of both the parents incomes as per the most recent tax return.

The child support formula is applied to the parents combined income up to the first $141,000 (141K), and then prorated between the spouses in the same proportion as each parents income is to the combined parental incomes.

In addition, the formula is based on the number of children to be supported. It is completed by multiplying the combined parental income by:

17% for one child

25% for two children

29% for three children

31% for four children

35% or more for five or more children

 

An Example of the calculation:

John and Jane Doe were married happily until Jane stepped out of the marriage and did the dirty with the pool boy prompting a divorce. They had two children together, Bonnie and Clyde. John earns 80k annually and Jane earns 40k, for a combined total of 120k parental income. Because there are two children, the percentage of child support allocated to the children is 25%. The combined income is 120k, 25% of the income is 30k; that is the total amount allocated to child support.

Since John earns 2/3 of the combined income, he'll pay 2/3 of the 30k which equates to 20k. Jane is responsible for the other 10k.

***The court can deviate from this formula if it would be: Inappropriate, unjust to either spouse, or where spouses have opted out of the formula either in open court or a pre-marital agreement as discussed in one of my prior posts. Courts can also deviate from the formula if the child has special needs.

Although child custody is shared between both parents, it is the parent who has physical custody of the child for a majority of the year (183 overnight visits during the year) that is entitled to receive the child support payments from the other parent.

When parents share equal time with the child, then the parent with the greater income must pay the other parent child support because it assures the child will receive the max benefit of the parents incomes.

**Parents may be required to pay some additional costs such as, medical insurance and daycare.

Therefore, both parents are responsible for their proportionate share of costs in raising their children based on the statutory guidelines and discretion of the court.

Call today for a consultation regarding Divorce or Marital Agreements.

Joe Cammarata Esq.      718-477-0020

Marriage: Know what your getting yourself into and plan accordingly.

Matrimonial Agreements

If a person relies on the statistics of successful marriages and marriages ending in divorce, the odds are greatly against the notion of getting married and living happily ever after. When a marriage breaks down, the state relies on statutory guidelines and several factors that are balanced in determining the fairness of many issues associated with divorce ranging from: Alimony, distribution of property, custody of the children, child support, and many other important matters.

We can all agree it would be best to conduct diligence and prepare before we enter into a contract, or business relationship, and define the rights and liabilities of the parties involved. Otherwise, in the event the contractual relationship breaks down, legal disputes may arise and the battle begins to determine what the parties are entitled to, which ultimately cost the clients more money.

Similarly, when a person decides to get married, they should have a strategy in place that protects both spouses, and is geared toward the best interests of the children if the marriage ultimately fails.

NY recognizes three types of matrimonial agreements; Pre-nuptial, nuptial, and separation agreements. This article will discuss them in the relative order of pre-marriage to post marriage. I will discuss pre-nuptial and nuptial agreements first, followed by separation agreements.

 

A prenuptial agreement is entered into prior to the marriage. Pre-nuptial agreements are separate agreements where the two parties contract on certain issues in the event that the marriage were to break down. Obviously the goal is to have a happy and lifelong marriage, but it is prudent to plan for the unexpected.

 

A nuptial agreement is formed during the marriage. They usually occur when the spouses have a desire to agree to certain things after the marriage was formed. For example, if the husband obtained a law degree when married and the wife simultaneously acquired a nursing or medical degree. The spouses could agree in a nuptial agreement that each solely obtain the rights to their degree as separate property not marital property, which would avoid being subjected to equitable distribution by the courts. Other instances may include a change in net- worth.

A court can rescind a pre-nuptial or nuptial agreement if the agreement was unconscionable or a product of fraud. It can be rescinded within three years from when a spouse dies, or is served with papers seeking a dissolution of marriage, divorce, or an annulment. 

 

A separation agreement which is conditional on the spouses living apart. A separation agreement remains enforceable until: (1) it merges into a divorce decree, or (2) the supposes re-unite with the intent to fully resume the marital relationship. If the spouses attempt to reconcile, and co-habitate, the separation agreement may be deemed waived and/or unenforceable. 

 

All three types of marital agreements can address issues involving children and economics. The agreements can divide marital property, provide for custody, visitation, child support, and they can provide for maintenance and alimony.

In order for these agreements to be enforceable, they must be in writing, signed by both spouses. The signatures need to be acknowledged in the same manner as a deed (notarized), or it will not be recognized.

Even if one of the spouses waives financial support in the agreement, the court may order support (maintenance/alimony) if the spouse is unable to support themselves, and risks becoming a "public charge."

Therefore, it is very important to plan for the future before entering the marriage, during the marriage, and in event that the marriage fails and separation is inevitable.

Call today for a consultation regarding Marital Agreements.

Joe Cammarata Esq.      718-477-0020

Testamentary Guardianship: Every Parent should have one!

Sometimes death is the furthest thing from our minds, however it can happen unexpectedly. Every parent should have a plan in place if they were to die, including a last will and testament, a living will, and a testamentary guardianship. This post will discuss the testamentary guardianship and the great importance associated with having one.

 

A testamentary guardianship is when a parent (s) of a child designate (s) another person to care for their child in the event of their untimely death. This guardianship can be created in an estate planning document such as a will or a trust. This can ensure the child is cared for by someone the parents choose to take on this great responsibility, rather than having the court appoint someone. If both parents are living, they must both nominate the legal guardian, and consent is should be obtained by the nominated guardian; the court will probate the testamentary document before the appointment takes place.

 

Q. I am a married parent, should my spouse and I have a testamentary guardianship in place?

A. Yes. Every married couple should have a testamentary guardianship in place.

Although it may seem likely that one parent will survive the other in the event of one spouse's death, it is not always the case. It is possible that both parents can die simultaneously. For example, simultaneous death may occur in a transportation accident or a natural disaster. Spouse's usually travel together in an automobile on a regular basis, which may increase the possibility of this type of occurrence. For the above reasons, it is recommended that married couples should have a testamentary guardianship in place to protect the future of their children.

***If the parents die simultaneously, and their wills nominate different guardians, the court will determine which guardian will be appointed based on the best interests of the child.

 

Q. I am a single parent, should I have a testamentary guardianship in place?

A. Yes. Every single parent should have a testamentary guardianship in place.

A single parent who is widowed may establish a testamentary guardianship on their own. However, if the other parent is alive, the single parent should get the consent of the other parent to avoid the risk of the court invalidating the testamentary guardianship. Parents cannot use a testamentary guardianship to interfere or sever the parental rights of the other surviving parent. The courts will likely view the testamentary guardianship as a "nomination" not a "designation" because they will not interfere with the parental rights of there other surviving parent. 

 

Typically, courts will defer to the parents designation of legal guardian in their will or trust  because it is the last wishes of the deceased parent, and that person knew what is in the best interests of the child.

 

In sum, every parent should plan for the future well being of their child in the event of death of one or both of the spouses. A testamentary guardianship can ensure who will parent your child in the event of your death.  Otherwise, the court will appoint a guardian for your child who may have not been your choice.

Joseph M. Cammarata Esq.

Call me for assistance in setting up a testementary guardianship, a will, or a living will. 

718-477-0020

 

Cammarata & De Meyer P.C.     1110 South Avenue, Suite 2              Staten Island, NY 10314               P. 718-477-0020                        F. 718-494-3288