This was a case of slip and fall into The Gap.

A Brooklyn mom scored a $125,000 payout from the clothing giant after her toddler took a nasty tumble while wearing a pair of Gap sneakers that she says started coming apart at the seams, court papers reveal. Gap Metallic Logo Trainers in Night Sky.

Chaya Kleinman purchased a pair of “night sky”-colored toddler shoes from — on sale for $24.99 — for her daughter Adina in November, according to the Brooklyn Supreme Court papers.

 But instead of a good deal, the Marine Park mom got the scare of a lifetime.

Little Adina was in her kitchen the morning of Dec. 4 wearing the tiny trainers when she tripped and split her forehead open on a cabinet, “causing her to bleed profusely,” papers say.

She’d only worn the “metallic logo trainers” five times when the front sole of the right shoe began to wear off to the point that it became detached, according to the lawsuit.

“Initially, I did not think much of it at the time, other than feeling anger and frustration because I had just purchased new shoes from [The Gap] which I discovered to be defective,” Kleinman says in an affidavit.

Adina was rushed to Coney Island Hospital to stitch up the two-centimeter gash, which later became infected.

After retaining a lawyer, Kleinman and her husband agreed to the lump-sum settlement, “as we believe it represents an excellent recovery for Adina under the circumstances,” she says in papers.

Of the payout, $5,000 will be put aside for future plastic surgery Adina may need, $80,000 will be placed in a savings account for the girl once she turns 18, and Kleinman’s attorney, Avinoam

Cohen, will collect a $40,000 fee.

“I can’t comment at this time,” Cohen said Tuesday. “I wouldn’t want to say anything that would jeopardize the settlement.”

A spokeswoman for Gap Inc., as well as a lawyer for the company, declined to comment.

A.R., Plaintiff v. G.R., Defendant
Referee Marie F. McCormack, Esq.
Decided: May 3, 2016
Counsel for the Plaintiff: Joseph A. Brancato, Jr., Esq.
Counsel for the Defendant: Keith H. Richman, Esq.
Before the Court is a post-judgment hearing. The plaintiff/former wife (“plaintiff”) filed an order to show cause for contempt and/or for a money judgment against the defendant/former husband (“defendant”) for alleged failure of the defendant to comply with certain provisions of the parties’ stipulation of settlement (“stipulation”), dated October 1, 2012, which was incorporated, without merger, into the parties’ judgment of divorce (Bennett, J.), entered on March 12, 2013. The issues raised in the order to show cause were referred to a hearing, and the parties consented to the undersigned Referee hearing and determining this matter. The matter was referred to the undersigned Referee by order (Zimmerman, J.) dated August 5, 2014. A hearing was held on the following dates: 9/30/14, 10/9/14, 2/10/15, 4/28/15, 8/19/15, 11/13/15, 12/4/15, and 12/14/15. The parties agreed to waive a hearing regarding counsel fees and agreed to have counsel fees determined on papers. Additionally, the parties agreed to have the issue of the apportionment of college expenses determined on papers. Post-trial memoranda and counsel fee submissions were submitted on February 19, 2016. The Court requested two additional submissions, regarding the tax impact of personal property loss and insurance reimbursement for personal property loss, and such documents were submitted on 4/20/16. The plaintiff is represented by Brancato, Brancato §Brancato, by Joseph A. Brancato, Jr., and the defendant is represented by Richman & Levine, P.C. by Keith H. Richman, Esq.
The parties were married in 1991, and this divorce action was commenced on March 30, 2009. The parties were married approximately seventeen years at the time of
commencement, and the judgment of divorce was entered on March 12, 2013. As a result of an order of protection, the defendant was ordered to vacate the marital residence in June of 2009, and the plaintiff had exclusive use and occupancy of the marital residence until its sale in November of 2014. There are two children of the marriage, J., who was born in 1993, and is now twenty-two years old, and G., who was born in 1995, and is now twenty years old. The parties’ children have been residing with the defendant since prior to the start of the school year in 2009.
The parties signed the stipulation on October 1, 2012. At the time of the signing of the stipulation, the martial residence, which was located on the canal in Massapequa, New York, had already been listed for sale at a price of $1,399,000.00. Unfortunately, on October 29, 2012, less than one month after signing the stipulation, Super Storm Sandy (“Sandy”) occurred, causing widespread devastation to Long Island, and particularly to homes near the water. The marital residence sustained extensive damage due to Sandy, and this was the primary genesis of the parties’ post-judgment legal disputes.
The parties could not agree on a listing price for the marital residence, post-Sandy. The plaintiff claims that she acted reasonably as to the repair and sale of the marital residence after Sandy. She asserted that she reduced the listing price, post-Sandy, to reflect the changed circumstances and that she otherwise complied with the stipulation. In view of this, she claims that she is entitled to certain reimbursements for carrying charges and repairs to the marital residence.
In contrast, the defendant claims that the vast majority of the aforesaid expenses incurred by the plaintiff were the result of the plaintiff’s breach of certain provisions of the stipulation, in failing to reduce, reasonably, the listing price of the marital residence, given the devastation caused by Sandy, and in failing to sell the marital residence “as is.” He further claims that the plaintiff did not prepare, in a proper manner, the marital residence for the impending storm. He claims that the plaintiff’s own actions caused her to incur unnecessary expenses in relation to the marital residence, and thus, she is not entitled to reimbursement for the aforesaid expenses.
Ultimately, the marital residence was sold on November 25, 2014, with a sales price $500,000.00. The parties also received $250,000.00 in insurance proceeds. The proceeds of the sale were placed in escrow and are being held by the plaintiff’s attorney. There is currently $317,072.03 being held in escrow pending the decision and order of this Court. The central focus of the instant hearing was the division of these proceeds. The plaintiff seeks reimbursement for: carrying charges on the marital residence up until the time it was sold, onehalf the cost of repairs to the marital residence due to Sandy, foreclosure fees, one-half the fee for the public adjuster, college expenses and the legal fees she incurred in bringing this application. Additionally, she seeks enforcement of the stipulation with regard to preparation of a Qualified Domestic Relations Order (“QDRO”). The defendant is claiming that the plaintiff is not entitled to the reimbursements which she seeks, and further, he is claiming that he is entitled to reimbursements for his personal property, which was left in the marital residence.
Both the plaintiff and the defendant testified. In addition, Nicholas B., a public adjuster, Carolyn S., one of the listing brokers for the marital residence, Robert L., the co-listing broker for the marital residence, and R.A., who is the son of the former wife from a previous marriage, also testified. The relevant portions of the testimony will be discussed below. As to credibility, the Court had the opportunity to assess the credibility of all witnesses. The Court found both parties to be fairly credible; however, there were some portions of the testimony where the plaintiff was vague, particularly relating to the pricing of the home and the status of the personal property.
The Plaintiff’s Testimony
The plaintiff testified that she is entitled to reimbursement for one-half the carrying charges of the marital residence for the period July 1, 2012 through January 1, 20131, as set forth in the parties’ stipulation. The plaintiff presented evidence of those carrying charges at the hearing. The defendant does not dispute that he owes the plaintiff this reimbursement. Accordingly, the plaintiff is entitled to credit of $11,849.18 (one-half of $23,968.36) from the proceeds.
The plaintiff further testified that she is entitled to reimbursement for one-half the carrying charges for the marital residence for the period commencing January 1, 2013.
Article XI, ¶6 of the parties’ stipulation states:
Commencing January 1, 2013, the Husband shall contribute his fifty (50 percent) share of said expenses on a monthly basis through the date of closing.
The “said expenses” are delineated in the stipulation and consist of the mortgage payment, real estate tax, homeowners insurance obligations, and landscaping charges. She asserted that she is entitled to this reimbursement in that she was compliant with the terms of the stipulation. She stated that she acted reasonably with regard to the sale of the marital residence, post-Sandy. The plaintiff claimed that she agreed to even greater reductions than were required by the stipulation. The plaintiff asserted that she was required to make certain repairs to the marital residence (for example, heating and electrical repairs) in order that she could live in home pending a sale, and additionally, the repairs were necessary in order for a potential buyer to obtain a mortgage. The marital residence sustained severe damage due to Sandy, and she submitted an engineer’s report detailing the damage. She also provided detailed bills regarding the repairs made.
The plaintiff continued to pay one-half (her share) of the monthly payment on the primary mortgage, as the defendant was not contributing to these payments. She continued to do so until September 2013, when the lender refused to accept partial payments. The total amount she paid on the primary mortgage after January 1, 2013 was $7,839.63. She continued to pay one-half (her share) of the monthly payment on the home equity loan until February 2013, when the lender refused to accept partial payment. The total amount she paid after January 1, 2013 on the home equity loan was $378.66. She thus claimed that the defendant owes her $4,109.14 (one-half the amount that she paid). The plaintiff further asserted that the defendant also owes her 50 percent of the insurance premiums for the post-January 1, 2013 period, which equal $1,153.74 (defendant’s 50 percent share). She claimed that as a result of the defendant’s failure to make mortgage and home equity payments post January 1, 2013, the lenders initiated foreclosure proceedings, resulting in foreclosure fees totaling $7,823.64 ($2,534.59 for the primary mortgage and $5,289.05 for the home equity loan); and thus, she claims, she should be reimbursed for these charges from the proceeds in escrow.
The Defendant’s Testimony
The marital residence was already listed for sale at the time the stipulation was signed, and the stipulation provided for periodic reductions in the purchase price, if needed to effectuate a sale. The defendant claimed that the problem arose, however, when Sandy caused substantial damage to the marital residence, and consequently substantially reduced its market value. Not only did Sandy damage the marital residence itself, but it also wreaked havoc on the waterfront real estate market. These assertions were confirmed by the testimony of the real estate broker, Carolyn S., in that she testified that there was great uncertainty regarding the pricing of waterfront homes. Obvious concerns for buyers were potential flood damage and the cost of flood insurance for such waterfront homes. Sandy thus caused a dispute between the parties regarding an appropriate listing price for the home. The defendant claimed that Sandy was a catastrophic event that made performance of the stipulation with regard to the sales price impossible to implement. The stipulation states, in pertinent part,
The parties acknowledge that the residence is on the market for sale at a listing price of $1,399,000.00. which listing price shall be reduced by five (5 percent) percent every thirty (30) days until the price is listed at $1.1M, unless otherwise agreed upon by the parties in writing. After 1 full year of a listing price at $1.1, the house will be decreased by 5 percent every 3 months until sold.
(Stipulation, Article XI, ¶3 [punctuation as in original]). The defendant claimed that it was impossible to follow the terms of the stipulation as to sales price, as Sandy greatly reduced the market value of the residence. According to his testimony, the defendant wanted to list the home “as is” for a greatly reduced price, immediately after Sandy. In November of 2012, six days after Sandy, the defendant wrote an email, which is in evidence, to Carolyn S., the real estate broker, stating that “I want this house sold as is. Look at the house and call me with a price.” The
defendant testified that he wanted the house sold for $500,000.00 and additionally he anticipated $250,000.00 in insurance proceeds. The defendant claimed that he does not owe the plaintiff for carrying charges incurred after January 1, 2013 because the marital residence should have been sold immediately after Sandy (October 29, 2012). He argued that if the marital residence was listed immediately at a substantially reduced price, it would have been sold by January 1, 2013, and there would not have been carrying charges after this date. The defendant further asserted that if the marital residence was sold “as is”, the $39,276.74 in repair expenses incurred by the plaintiff would have been unnecessary, and therefore, his position was that he does not have to reimburse her for one-half of the cost of these repairs.
The defendant further claimed that if the martial residence was sold in late 2012, the wife would not have incurred foreclosure expenses, as the residence would have been sold prior to the incurring of such expenses.
Additionally, the defendant claimed that he should not be responsible for the charges of the public adjuster. He testified that he did not sign the agreement with the public adjuster, and further, he was not consulted with regard to the hiring of the adjuster. Moreover, he claimed that there was no proof offered that the public adjuster was necessary. Further he asserted hat the parties would have received the full $250,000.00 in insurance proceeds, even if the public adjuster had not been hired.
The defendant also asserted that the plaintiff did not prepare, properly and in a reasonable manner, the marital residence for the impending storm. He claimed that as a result, the residence sustained damage that would have been preventable. Moreover, he testified that this lack of preparation also caused destruction to his personal property, which he valued at $55,000.00, according to his 2012 tax return, which is in evidence.
It is well settled that a stipulation of settlement in a matrimonial action is an enforceable contract between the parties (Petrovovich v. Obradovic, 40 AD3d 1063,1065 [2d Dept 2007]). In Etzion v. Etzion, 84 AD3d 1015, 1016 (2d Dept 2011), the Court stated,
[p]arties are free to enter into agreements that ‘not only bind [ ]them, but which the courts are bound to enforce’ (Greve v. Aetna Live-Stock Ins. Co., 30 NYS 668, 670 [1894]). Marital contracts are ‘subject to principles of contract [construction and] interpetation’ (Rainbow v. Swisher, 72 NY2d 106,109 [1988]; see Matter of Meccico v. Meccico, 76 NY2d 822, 823-824 [1990]; Girardin v. Girardin, 281 AD2d 457, 457 [2001]).
“Where such an agreement is clear and unambiguous on its face, the parties’ intent must be construed within the four corners of the agreement and not from extrinsic evidence” Khorshad v. Khorshad, 121 AD3d 857, 857 [2d Dept 2014][internal quotation marks
omitted][citations omitted]). “[C]ontract language is unambiguous where it ‘has a definite and precise meaning, unattended by danger of misconception in the purport of [contract] itself, and concerning which there is no reasonable basis for difference of opinion'” (Chase Manhattan Bank v. Traffic Stream (BVI), 86 F.Supp.2d 244, 256 (S.D.N.Y. 2000) quoting Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 [2d Cir 1992] [alteration in original]). “Nor does ambiguity exist where one party’s view strain[s] the contract language beyond its reasonable and ordinary meaning” (Chase Manhattan at 257 quoting Seiden Assocs., Inc. at 428 [internal quotations omitted][alteration in original].
The defendant argues that the clause of the contract regarding the initial listing price of $1,399,000.00 was impossible to perform due to Sandy and the resultant destruction to the marital residence and the waterfront real estate market. The doctrine of impossibility of performance has been described as follows:
Impossibility excuses a party’s performance only when the destruction of the subject matter of the contract or the means of performance makes performance objectively impossible. Moreover, the impossibility must have been produced by an unanticipated event that could not have been foreseen or guarded against in the contract.
(Chase Manhattan at 255 quoting Kel Kim Corp. v. Central Markets, Inc., 70 NY2d 900, 902 (1987). Furthermore, “[u]nder New York law, where ‘the risk which causes the alleged impossibility of performance is foreseen, accounted for, and allocated in the contract, failure to perform cannot be excused.” Chase Manhattan at 255 quoting Bank of Am. Nat’l Trust & Savings Assoc. v. Envases Venezolanos, S.A., 740 F.Supp. 260, 267 (S.D.N.Y. 1990).
Here, the husband claims that the following provision of the stipulation was impossible to perform:
3. The parties acknowledge that the residence is on the market for sale at a listing price of $1,399,000.00. which listing price shall be reduced by five (5 percent) percent every thirty (30) days until the price is listed at $1.1M, unless otherwise agreed upon by the parties in writing. After 1 full year of a listing price at $1.1, the house will be decreased by 5 percent every 3 months until sold.
(Stipulation, Article XI, ¶3 [punctuation in original]). The husband asserts that due to the damage caused by Sandy to both the marital residence itself and the waterfront real estate market, it was impossible to sell the marital residence at $1,399,000.00 or even at 1.1 million. He argues that, therefore, the parties were bound by other provisions of the stipulation to act reasonably and to cooperate with each other to list and to sell the martial residence. He points to pertinent
language from the parties’ stipulation to support his position. The stipulation states, “[t]he parties shall use their best efforts and work together to sign a contract of sale with prospective purchaser as soon as possible.” (Stipulation, Article XI, ¶3). The stipulation further states,
4. Both parties shall cooperate with each other on a timely basis to use their best efforts to maximize the sales price of said premises available in the market and mutually agree upon a gross offering price. They shall list said premises with a broker that they mutually agree upon and shall proceed in a cooperative manner in all respects in dealing with each other, the real estate broker and/or brokers and prospective purchasers in connection with the selling of the marital residence…
(Stipulation, Article XI, ¶4).
The defendant argues that the above provisions of the stipulation required both parties to have cooperated and to have reduced the listing price in a reasonable manner in light of the circumstances. The testimony of both brokers indicated that there was a great reduction in market value in waterfront property, and, in particular, the area in which the marital residence was located. The broker, Ms. S., testified that it was a very erratic market after Sandy and there was a lack of sales after Sandy. There were “bottom feeders”-buyers looking for people in a desperate situation. Mr. L., the co-listing broker, wrote an email dated April 27, 2013 supporting this position. He wrote, “[the highest sale price for a damaged home has been $850,000.00 and it only had exterior damage-the house was elevated.” It should be noted that the marital residence had interior and exterior damage and it was not elevated. The defendant provided evidence that he wanted the marital residence sold “as is.” He desired to list the house at $500,000 and collect the insurance proceeds of $250,000.00. His position on the price was supported by Ms. S., who wrote, “[i]mmediately after Sandy in its damaged condition the property would have sold max $500,000.” Had the marital residence been sold immediately after Sandy, the parties would not have had to spend any money on repairs or incur mortgage costs. He argues that the plaintiff refused to cooperate with him, she did not consult him before hiring the public adjuster, and she did not consult him before making repairs. He indicated that she would not even grant him access to the house to inspect it until late April of 2013 (nearly six months after Sandy), and that was the one and only time she granted him access to the house.2 The defendant further argues that the plaintiff had exclusive use and occupancy and that she benefitted from delaying the sale. In addition, the defendant claims that the plaintiff did not prepare, properly, the house for the impending storm, thus the house and its contents sustained damage that could have been, to a large extent, avoidable. In this regard, he claims that she violated the following provision of the stipulation: “6. Until such time as the house is sold, the parties shall maintain the premises in good and reasonable care…” (Stipulation, Article XI, ¶6).
In contrast, the plaintiff asserts that the doctrine of impossibility of performance does not apply in that the risk was foreseen and addressed in the stipulation, as follows: “11. In the event of a fire or major destruction at the premises prior to closing of title, the parties agree to utilize the insurance recovery toward the repair of the home…” (Stipulation, Article XI, ¶11). She claims that, even though she was not required to do so, she reduced the purchase price at reasonable intervals, at the suggestion of the brokers. She stated that the divorce was acrimonious, and cooperation between the parties was not possible. The plaintiff further claims that the repairs were necessary in order to attract potential buyers and also to make the home habitable. She claims that she required the services of the public adjuster in order to obtain the full insurance proceeds.
The evidence regarding the listing price history of the marital residence was not entirely clear. The full real estate file was not available because it was maintained by the company for which the broker had previously worked. At the time of Sandy (October 29, 2012), the listing price was $1,399,000.00. There is an email which demonstrates that the plaintiff approved a reduction to $899,990.00 on April 28, 2013. The evidence did establish that on April 11, 2014, Mr. L., the co-listing broker recommended a listing price of $699,000.00, and that sometime in April of 2014, the listing price was reduced to $599,000.00. After this reduction, a contract of sale was signed on May 21, 2014, about one month after the reduction to $599,000, according to the testimony. The house sold for $500,000.00, and the closing took place on November 25, 2014, over two years after Sandy.
This Court finds that the doctrine of impossibility of performance is applicable herein. Sandy was an extraordinary weather event that could not have been foreseen and that caused mass devastation to homes on Long Island, particularly waterfront homes. Additionally, Sandy caused damage to the market for waterfront homes. Although the contract anticipated that insurance proceeds would be used if “major destruction” of the home occurred, this clause did not anticipate the devastation to the waterfront home market which resulted from Sandy. In other words, even if the home was repaired, fully, with insurance proceeds, its value was substantially reduced due to the occurrence of Sandy. The testimony of the real estate brokers, and other evidence revealed that there was a great reluctance to purchase waterfront property, particularly homes that were not raised, such as the marital residence.
As it was impossible to list and sell the marital residence pursuant to initial portion of Article XI, ¶3 of the stipulation, this Court now turns to other applicable provisions of the stipulation.3 The stipulation states, “[t]he parties shall utilize their best efforts and work together to sign a contract of sale with a prospective purchaser as soon as possible.” (Stipulation, Article XI, ¶3). The stipulation further requires that the parties “shall proceed in a cooperative manner in all respects in dealing with each other, the real estate broker and/or
brokers and prospective purchasers in connection with the selling of the marital residence…” (Stipulation, Article XI, ¶4). This language is clear and unambiguous. It requires the parties to cooperate and to work together to sell the marital residence as soon as possible. The stipulation also requires the parties “to use their best efforts to maximize the sales price of said premises available in the market and mutually agree upon a gross offering price.” (Stipulation, Article XI, ¶4). The stipulation therefore required the parties to cooperate and to sell the marital residence as soon as possible, given the market conditions. The stipulation did not require that the marital residence shall be sold for any price, but rather, a reasonable price, given the market conditions. The evidence will thus be evaluated in light of the aforesaid requirements of the stipulation.
Carrying Charges from July 1, 2012 through January 1, 2013
As set forth above, the defendant does not dispute that he was responsible for one-half the carrying charges for the period from July 1, 2012 through January 1, 2013. Accordingly, the plaintiff is entitled to credit of $11,849.18 (one-half of $23,968.36) from the escrow funds.
Carrying Charges Post-January 1, 2013
Before the Court can address this issue, it must determine whether the plaintiff cooperated with the defendant in the sale of the marital residence. This Court finds that she did not. She did not communicate with him regarding the listing price of the residence. She did not permit him access to the home, despite his requests, until late April of 2013, nearly six months after Sandy. She did not consult with him regarding the repairs made to the martial residence. She did not consult with him regarding the hiring of the public adjuster. The evidence established that there was no contact with the defendant prior to the hiring of the public adjuster. The evidence further demonstrated that the plaintiff did not even discuss or consider the defendant’s desire to sell the marital residence, “as is”, immediately after Sandy. His expressed intent was to sell the marital residence for $500,000.00 and additionally obtain the insurance proceeds of $250,000.00, which would yield gross proceeds from the sale in the amount of $750,000.00. The contract of sale was not entered into until May of 2014. An email from one of the co-listing brokers indicated that as late as December 5, 2013, over thirteen months post-Sandy, the house was still listed at $899,000.00. The plaintiff was not acting reasonably with regard to the listing price of the marital residence. The evidence demonstrates that, due to the plaintiff, it was listed for an unreasonable price for an unreasonable period of time. The Court notes that the plaintiff benefitted from the delay in sale, as she had exclusive use and occupancy of the marital residence pending the sale, and the defendant was responsible for one-half the carrying charges. The email from the broker suggesting the $899,000.00 listing price was sent on April 27, 2013. The Court infers that this suggestion did not take into consideration the input of the defendant, but rather, it reflected the plaintiff’s position. It would have been reasonable to list the home at this price for one month. By May 31, 2013, the house should have been listed at $550,000.00, the price suggested by the defendant plus enough to cover the price of the repairs. This would have given the plaintiff seven months to sell the home at the price that she had chosen. By that time, it was clear that the listing price was too high, and the defendant’s desired.

Lawsuit Over Divorce Case Proceeds Against Phillips Nizer
Christine Simmons

A Manhattan judge has refused to dismiss a legal malpractice suit against Phillips Nizer that alleges the firm failed to share information provided to an inexperienced attorney in a divorce case that would have altered litigation strategy.

Acting Supreme Court Justice Nancy Bannon said the firm’s former client, Elizabeth Berardi, has shown she has causes of action to recover for legal malpractice and negligent supervision and for a judgment declaring that the firm overbilled her by virtue of alleged malpractice.

The parties now will continue with discovery in Berardi v. Phillips Nizer, 157690/2012.

Phillips Nizer partner George Berger, who represents the 70-attorney firm, said they are contemplating an appeal. “We don’t feel the judge dealt with the majority of the firm’s arguments on the merits,” he said in an interview Monday.

Berardi retained Phillips Nizer in 2000 in drafting and negotiating a postnuptial agreement with her then-husband, Eugene Berardi, who owned interest in several bus companies, including Adirondack Transit Lines and Pine-Hill Kingston Bus Corp.

The agreement provided that, in the event of a divorce, she would be entitled to a 49 percent interest in closely held corporations and a limited liability company in which he held a majority interest. Eugene Berardi would have an interest in the other 51 percent.

The agreement, signed in December 2000, did not specify whether Elizabeth would or could sell her interests to the husband or to others, or whether she would simply continue to hold the interests as a minority shareholder.

Less than five years later, Elizabeth Berardi retained Phillips Nizer to handle her divorce proceedings. According to court papers, the firm arranged to have then-litigation partner Helen Davis Chaitman, who allegedly had no matrimonial experience, serve as the principal attorney. Partner Elliot Wiener, who is also a defendant in the malpractice suit, was the senior matrimonial lawyer on the case.

Eugene Berardi moved to vacate the postnuptial agreement, which Phillips Nizer opposed. The agreement was upheld in 2006 and, following a trial, the court issued a judgment in 2009.

Elizabeth Berardi discharged Phillips Nizer in April 2010. About two years later, she filed suit, asserting there were agreements made before 2000 by prior shareholders and members of the businesses that limited her ability to freely sell or trade her interest in those entities, thus diminishing their market value. She said Phillips Nizer and Wiener knew or should have known about the restrictions but failed to advise her of the effect.

In particular, she claims that Chaitman received notice of the shareholder agreements in 2005 but did not share that information with Wiener for about least two years. As a result, Berardi said, Phillips Nizer and Wiener did not have sufficient facts in responding to Eugene Berardi’s motion to set aside the postnuptial agreement.

But for Phillips Nizer’s alleged malpractice, she claims, she would have permitted the postnuptial agreement be set aside, allowing her to seek equitable distribution and placing her in a position to request a cash buyout.

She also argues Phillips Nizer had a conflict of interest in defending the postnuptial agreement that it had drafted.

In a separate claim alleging overbilling, she said 39 professionals, including 23 firm attorneys, billed for their time. The firm charged her more than $1.4 million, while her ex-husband was charged about $395,000 in legal fees, she claims.

In moving to dismiss, Phillips Nizer claimed the case is an attempt to avoid paying for legal services and is “masquerading” as a malpractice action. The firm argued the case should be dismissed because the claims are barred by the statute of limitations, contradicted by documentary evidence and legally insufficient.

The firm has filed counterclaims against Berardi, seeking $741,695 in unpaid legal fees.
Phillips Nizer submitted 99 exhibits in defense, but in her May 9 ruling, Bannon said “most of the exhibits” from the firm do not constitute documentary evidence.

Justice Bannon

“In any event, none of them conclusively refute the allegations in the complaint or establish a defense,” she said.

Addressing the statute of limitations, the judge said, Phillips Nizer failed to satisfy the burden of establishing that the claim alleging that it negligently supervised the non-matrimonial lawyer was time-barred.

Bannon’s ruling noted that Berardi’s amended complaint asserted that the non-matrimonial lawyer had possession and knowledge of the agreements at a time when that knowledge, if shared, would have altered Berardi’s litigation strategy, and due to the failure of the firm’s internal procedures, the knowledge was withheld from the lead attorney and Berardi herself.
Bannon found that the amended complaint stated a cause of action to recover damages for legal malpractice, as the allegations, if proven, satisfy all the elements of the action.

Further, Bannon found the amended complaint stated a cause of action sounding in negligent supervision, partly based on an alleged violation of §5.1 of the Rules of Professional Conduct, “which may constitute evidence of tortious misconduct.”

The judge continued the claim for a judgment, declaring that the firm overbilled.
Berardi is represented by Lee Pollock and Theresa Maguire, partners of Pollock & Maguire in White Plains.

“We believe that Phillips Nizer’s own documents will demonstrate that they pursued this minority shareholder status for her but didn’t recognize what the ramifications of that status would be, until after they achieved the result,” Maguire said in an interview Monday.

Chaitman, who is not a party in the malpractice suit, now practices at her own firm, four-attorney Chaitman LLP. She declined to comment.
– See more at:

Mark Hamblett

Intimate partner violence should have prevented a judge from awarding a man more than $283,000 in fees and costs in an international child custody dispute, a federal appeals court said Friday.

The U.S. Court of Appeals for the Second Circuit vacated the award under The International Child Abduction Remedies Act (ICARA) to petitioner Abdullah Naghash Souratgar, who had prevailed in a custody action against Lee Fair Jen over their son.
Because the record showed that Souratgar “committed multiple, unilateral acts of intimate partner violence” against Lee, the court said the award of costs was, in the words of ICARA, “clearly inappropriate.”

Judges Robert Katzmann, Raymond Lohier and Christopher Droney made that decision in Souratgar v. Fair, 14-904, reversing Southern District Judge P. Kevin Castel’s ruling in February 2014.
Souratgar, an Iranian national, and Lee, a Malaysian national, were married in Singapore in 2007. Lee was pregnant in 2008 when she said Souratgar began abusing her, including punching and kicking her and subjecting her to sexual assault—allegations, most of which, Souratgar denied.
Their son, Shayan, was born in January 2009. Lee left the home with Shayan in 2011 and left Singapore with him in 2012.

Souratgar petitioned in New York for the return of Shayan and, after a nine-day hearing that both attended, Castel concluded that Souratgar had made out a prima facie case under the Hague Convention on the civil aspects of international child abduction for the return of Shayan. As part of his ruling, Castel found Lee failed to establish affirmative defenses, including that she had been abused.

The Second Circuit affirmed (NYLJ, June 17, 2013) and the case went back to Castel, who then awarded $283,067.

ICARA, 22 U.S.C. §9007(b)(3), is domestic implementing legislation for the Hague convention. It states that the costs incurred by a successful petitioner in seeking the return of an abducted child, including legal fees and transportation, shall be paid by the respondent “unless the respondent establishes that such order would be clearly inappropriate.”

Under Article 13(b) of the convention, a signatory state, in this case the United States, need not order the return of a child “if there is a grave risk that his or her return would pose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

Castel rejected Lee’s claim under 13(b), finding no danger to the child. The judge said he was skeptical of the abuse allegations, saying “both parties have exaggerated their claims.” While he credited some of Lee’s claims of violence, in the end, he determined that Lee failed to establish “that the past abuse of her was causally related to her decision to leave Singapore with her son.”

But Katzmann, writing for the panel, said, “Where, as here, the respondent’s removal from the habitual country is related to intimate partner violence perpetrated by the petitioner against the respondent, the petitioner bears some responsibility for the circumstances giving rise to the petition,” a concept it said was “analogous to the equitable doctrine of unclean hands.”

While ICARA’s fee-shifting provision adds an additional deterrent to the law’s “overall purpose of discouraging parents from taking their custody battles across international borders,” Katzmann noted, Congress never said that fees must be awarded; it added the caveat that a judge should not award fees if they are “clearly inappropriate.”

Such an award, based on the record, was clearly inappropriate here, he said, and thus the lower court exceeded its discretion.

The circuit differed from Castel’s finding that the abuse was not causally related to Lee’s decision to take Shayan out of the country. “We find that Lee’s testimony shows, and Souratgar does not genuinely dispute, that her departure was related to Souratgar’s history of intimate partner violence.”

“Finally, we note that intimate partner violence in any form is deplorable,” Katzmann wrote. “It can include a range of behaviors, from a single slap to a lethal blow. However, we need not determine in the matter at hand what quantum of violence must have occurred to warrant a finding that fees are ‘clearly inappropriate,’ given the repeated violence established in the record here. Those determinations we leave to be resolved as they arise in future cases.”

But “given the record in this case, we cannot envision a scenario where an award of expenses would not be clearly inappropriate,” he said.

In a concurrence, Lohier wrote to “emphasize that the majority opinion is extremely narrow in scope and confined to its particular facts, and to counsel district courts and panels of our court not to draw from it any rule or presumption against awarding fees whenever a winning petitioner engages in acts of repeated ‘unilateral violence’ against the losing respondent.”

“As my colleagues in the majority recognize, such a presumption would conflict with traditional principles of equity that already permit district courts to consider such deplorable conduct in determining fee awards,” Lohier said.

Robert Arenstein, who represented Souratgar, said there was no domestic violence in the case, and the allegations were a pretext for Lee to leave the country.

“I’m not happy with this decision,” Arenstein said. “What it’s going to do is dissuade lawyers from handling Hague cases because they’re not going to be awarded fees. The circuit didn’t even remand the case. It seems like the domestic violence lobby has gotten to the Second Circuit.”

Gary Serbin, partner and Nicole Schiavo, senior associate, at Hogan Lovells represented Lee.
– See more at:

Case Conclusion Date: 01.07.2016

Practice Area: Child Support

Outcome: After nearly a year of conferences and document discovery, my firm was able to dismiss the petitioner’s violation petition and it was held that wife did not meet her burden of proof regarding child support arrears. As such, her case was dismissed

Description: In this action to vacate child support arrears for my client, as well as defend a claim for willful violation of a child support order.

In this action for divorce, the Supreme Court of the County of Westchester concluded that the husband dissipated marital assets by supporting a second family using income received by his spouse.  Specifically, in stated in dicta:
“In determining an equitable disposition of property the court must consider, inter alia,the wasteful dissipation of assets by either party. DRL 236[B][5][d][12]. Renck v.Renck, 131 AD3d 1146 [2d Dept 2015]. Further, it has been repeatedly held that economic misconduct may properly be considered by the trial court. Contino v. Contino, 140 AD2d 662 [2d Dept 1988]; DiBella v. DiBella, 140 AD2d 292 [2d Dept 1988]; Langdon v. Langdon, 138 AD2d 358 [2d Dept 1988]; Mahon v. Mahon, 129 AD2d 684 [2d Dept 1987]. The courts have long recognized that economic fault, which consists of dissipation or secreting of assets, or other conduct which unfairly prevents the court from making an equitable distribution of marital property, has generally been considered relevant to the distribution. Owens v. Owens, 107 AD3d 1171 [3d Dept 2013]; Blickstein v. Blickstein, 99 AD2d 287 [2d Dept 1984].

A spouse who alleges that the other engaged in waste and dissipation of marital assets bears the burden of establishing that conduct by a preponderance of the evidence. Heymann v. Heymann, 102 AD3d 832, 834 [2d Dept 2013]; Epstein v. Messner, 73 AD3d 843, 846 [2d Dept 2010]; Raynor v. Raynor, 68 AD3d 835, 838[2d Dept 2009].

Here, plaintiff has met her burden of proving, by a preponderance of the evidence, that the defendant committed wasteful dissipation of marital assets with regard to his financial support of a second family, and this constituted financial misconduct as related to marital assets. There can be no dispute that income received by a spouse during the marriage is marital property. DRL, § 236[B][1][c]. In fact, defendant concedes that marital funds were used to support his second family. Plaintiff introduced into evidence examples of defendant’s diversions of marital income, from the parties’ joint checking account, for A.S’s rent, cable television bill, and other expenses. Although not easily quantified, the court believes that defendant’s conduct in dissipating marital funds for so many years during this long-term marriage justifies a finding that there should be a disproportionate distribution of the equity in the marital residence. Kerley v. Kerley, 131 AD3d 1124 [2d Dept 2015]. Clearly, the record supports that defendant’s conduct meets the test of Factors 12 and 14 of DRL §236 [B][5]b], respectively: i.e. the wasteful dissipation of marital property [Factor12]; and any other factor which the court shall expressly find to be just and proper, i.e., the so called “wild card” factor [Factor 14]. In this regard, the court finds Factors 12 and 14 are significant factors applicable to the disposition of the marital residence.

The court finds that it is fair and reasonable that plaintiff be awarded sole and exclusive title and possession to the marital residence located in XXX, with her entitlement to one hundred (100%) of the equity. Henery v. Henery, 105 AD3d 903[2d Dept 2013]. This is justified by the wasteful dissipation of marital assets by defendant, and the unilateral placing of his own interests above those of his rightful dependants.

To implement this distribution, defendant’s counsel shall include a provision in the Judgment of Divorce providing for the transfer of title to the marital premises from plaintiff and defendant, to plaintiff alone. This shall be accomplished by defendant executing a bargain and sale deed with covenant against grantor’s acts, and the ancillary documents required to be filed together with the recording of the deed. Defendant’s attorney shall prepare the transfer documents required to effectuate the conveyance of the marital residence, and defendant shall incur any and all expenses relative to the conveyance and the recording of the deed. In the event defendant fails to sign the deed within 30 days of the Judgment of Divorce being served upon him with notice of entry, the court directs the Westchester County Clerk to sign the deed in his stead upon presentation by plaintiff without further application to the court.

Upon the conveyance of title, plaintiff shall be solely responsible for the payment of the mortgages, real estate taxes and all other expenses relative to the upkeep and maintenance of the marital residence.”


Plaintiff commenced the above action for divorce with the filing of the summons with [*2]notice on September 2, 2011. Defendant appeared in the action and filed an answer on February 14, 2012. As of the date of commencement of the action, there were no unemancipated children of the parties and by stipulation of settlement dated June 16, 2013, the parties resolved grounds for divorce and all ancillary issues. On June 13, 2013, both parties and their counsel appeared before the Court and after allocution proceeded to inquest. The judgment of divorce was signed September 25, 2013 and entered in the Office of the County Clerk on October 17, 2013.

Defendant’s initial post judgment application filed by his current counsel, Ilasz & Associates on April 21, 2014 sought to compel his prior counsel to turn over defendant’s entire matrimonial file (mot. seq. 4). Contemporaneously with that application, defendant filed a separate legal malpractice action against his prior counsel in the divorce action, the instant non-parties here (RG v Poplawski, Zenon et. al. 4734/14) . By order dated October 1, 2014, this Court denied defendant’s application to compel the release of prior counsel’s matrimonial file, without prejudice to his right to address his request in the context of the pending malpractice action before Hon. Wayne Saitta.

Thereafter, defendant filed an order to show cause to vacate the September 25, 2013 judgment of divorce (mot. seq. 5) alleging defendant’s incapacity at the time of the Court’s allocution. On plaintiff’s default, that application was referred to the Special Refree to hear and determine. While the motion to vacate the divorce judgment (mot. seq. 5) was pending before this Court, defendant moved in the malpractice action to appoint defendant’s sister Dorota Barbara Powroznik as defendant’s guardian pursuant to Mental Hygiene Law §81.18.[FN2] That application was denied and the entire action was dismissed by Hon. Saitta, without prejudice to commence an Article 81 proceeding (order dated July 9, 2015). Defendant failed to disclose to this Court the July 9, 2015 order issued in the legal malpractice action and at the July 17, 2015 appearance. In light of Hon. Saitta’s order and the instant applications, this Court’s referral order to the Special Referee has since been stayed.

Having reviewed the papers in support and in opposition to the respective applications, the Court grants the non-party motion to quash and denies defendant’s motion for contempt for the reasons set forth herein.

The non party subpoenas at issue state:

“WE COMMAND YOU, that all business and excuses being laid aside, you and each of you appear and attend at the office of Ilasz & Associates, One Maiden Law- 9th Floor, New York, New York 10038 on the 5th day of August, 2015 at 9:30 o’clock in the forenoon and at an recessed or adjourned date to give testimony in this action on the part of the plaintiff(s) and that you bring with you, and produce at the time and place aforesaid true copies of:
A) All documents comprising defendant’s entire legal file regarding any of the affairs and [*3]matters of the defendant, including, but not limited to, all billing statements, records of payment, etc.
now in your custody or control and all other writings or things, in whatever form maintained, whether electronic or otherwise, now in your custody, as well as all other deeds, evidence and writings, which you have in your custody or power, concerning this matter”Pursuant to CPLR §3101(a) “there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by….(4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required.” Here, the subpoenas state only the documents sought and set forth no circumstances and/or reasons for same as required by CPRL §3101(a). Simply put, defendant’s subpoenas fail to state on their face or via an accompanying notice, “the circumstances or reasons such disclosure is sought or required” (In the Matter of Kapon v Koch, 23 NY3d 32 [2014]). While courts are permitted to overlook this procedural defect where the subpoenaing party’s opposition papers to a motion to quash articulate the need for the discovery sought (Velez v Hunts Point Multi Service Center, Inc., 29 AD3d 104 [2010]) the Court declines to do so here in light of myriad defects contained in the subpoenas such that remedying the instant defect under CPLR § 3101(a) does not entirely cure the remaining defects contained in the subpoenas as discussed below.
As to additional defects, pursuant to CPLR §3106(b), where the person to be examined is not a party, he shall be served with a subpoena and, unless the court orders otherwise…such subpoena shall be served at least twenty days before the examination. Here, as supported by defendant’s affidavits of service annexed to his motion for contempt, the subpoenas were served on July 27, 2015, nine days prior to the August 5, 2015 examination date commanded in the subpoenas. Further, although the subpoena includes “WITNESS, Honorable Rachel Adams, one of the Justices of said Court, 360 Adams Street, Brooklyn, New York, on the 20th day of July, 2015”, the subpoenas were not issued by this Court and this Court did not, either on motion or on written notice, dispense with the twenty (20) day service requirement in CPRL §3106(b).

Further, pursuant to CPLR §8001(a) – (b), any person whose attendance is compelled by a subpoena…shall receive for each day’s attendance fifteen dollars for attendance fees….If a witness who is not a party…is subpoenaed to give testimony, or produce books, papers and other things at an examination before trial, he shall receive an additional three dollars for each day’s attendance. The subpoenas command Poplawski to “appear and attend…to give testimony” and to bring and produce copies of the aforestated items. Contrary to defendant’s contention that a note appears next to the signature lines of the subpoenas indicating that delivery of the items sought will be accepted in lieu of an appearance, the Court finds that the affirmative command contained in the subpoena directs the non parties to appear “and” produce the documents sought and does not make clear that mere production of documents would satisfy the subpoena. The parties do not dispute, as annexed to Poplawski’s moving papers, that each subpoena was accompanied by a $15 money order, while the fee for a non-party appearance is an additional three dollars per day, or $18.

Even if the Court accepted defendant’s argument that mere production of documents suffices, such subpoenas would then need to comply with CPLR §3120 “discovery and production of documents and things for inspections, testing, copying or photographing” which [*4]requires notice specifying the time, which “shall not be less than twenty days after service of the notice or subpoena.” Thus, defendant runs into the same service issues regardless of whether the Court considers Poplawski’s application under CPLR §3106(b) or CPLR §3120 (2).

Notwithstanding the facial deficiencies in defendant’s subpoenas, the Court takes note that the very documents the defendant now seeks by way of subpoenas are the same documents defendant previously sought to compel and which relief this Court denied prior to the instant motion to vacate the divorce judgment and prior to the dismissal of the action before Hon. Saitta. This Court’s October 2014 order was made without prejudice to defendant’s right to seek same in the context of the legal malpractice action wherein the instant non-parties are the named defendants. Taking judicial notice of the filings in that action, it is clear that since denying defendant’s motion to compel, he has not sought this relief in the other action. The Court finds persuasive, Poplawski’s argument that, under the guise of defendant’s application to vacate the judgment of divorce, defendant is using the instant subpoenas as a vehicle to obtain prior counsel’s matrimonial file.

Lastly, defendant’s lack of capacity during the divorce proceedings is the premise of defendant’s post judgment application to vacate the divorce judgment. Defendant’s counsel has remained steadfast in their position that defendant currently lacks capacity to appear in this action without a guardian and that his current mental state is unchanged from his mental state throughout the divorce action. Thus, the Court finds merit in Poplawski’s argument that defendant’s counsel should not be permitted to seek relief from affirmative legal steps taken on defendant’s behalf (i.e. issuing subpoenas) while at the same time raising the issue of defendant’s competency, which issue remains unresolved.

The Court denies without prejudice to renew on proper papers Poplawski’s request for sanctions pursuant to 22 NYCRR 130.1(c). This section provides that any party or attorney may be awarded “costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees resulting from frivolous conduct.” The Court finds merit in Poplawski’s request as the technical defects in the subpoenas evidence a patent failure to comply with multiple provisions of the CPLR and, notwithstanding Poplawski’s July 29, 2015 letter request to withdraw the subpoenas, defendant proceeded and in fact filed a contempt application. However, Poplawski’s papers fail to include in any affirmation or supporting documentation the actual expenses and/or reasonable attorney’s fees incurred in connection with the instant applications. As such, the Court has no basis from which to assess an award of sanctions.

In light of the above, Poplawski’s motion to quash the subpoenas is granted. From there it follows that defendant’s motion for contempt for failure to comply with same must be denied.

As indicated on the record and pursuant to the Court’s order issued on the last court date, the referral to the Special Referee is stayed. This order remains in effect, pending the appropriate application before the assigned justice in the Article 81 Part to appoint a guardian, if appropriate, with the specific authority to pursue the post judgment order to show cause pending before this Court (mot. seq. 5).

This constitutes the decision and order of the Court. Poplawski’s counsel is directed to serve the within decision and order on notice to defendant’s counsel within fourteen (14) days of entry in the Office of the County Clerk.

New York Law Journal

December 16, 2015


A federal judge has taken the rare step of ordering a plaintiff and his lawyer to pay some of New York City’s costs for defending a meritless civil rights lawsuit.
Southern District Judge Shira Scheindlin said Patricio Jimenez brought a “galling” lawsuit for false arrest against police officers who handcuffed him for attacking his wife, Maribel Jimenez, who later recanted her claim of domestic assault.
Scheindlin held Jimenez and his attorney, Gregory Mouton, jointly and severally liable to pay $19,075 to the city to cover part of its costs for having to defend the suit.
“Litigation is not a sport, litigation is not a lottery,” Scheindlin said in an opinion filed Dec. 9. Maribel Jimenez was taken to Harlem Hospital on Dec. 26, 2012 and a police officer who interviewed her at the hospital filed a Domestic Incident Report and a complaint report describing how Patricio Jimenez came home drunk, pulled Maribel’s hair in the bathroom, slapped her hard three times and twisted her arm behind her back. On Jan. 21, 2013, two detectives interviewed her at her home. They also filed a report that detailed how Maribel Jimenez was attacked. But Maribel Jimenez, despite having told several people she had been assaulted, recanted her story, and she insisted she had told the detectives she had not been hit.
The couple went to the police station on Jan. 30, 2013, where she claimed Patricio Jimenez did not assault her. Police arrested him on the spot. The criminal case against him was dismissed on March 7, 2013. After prosecutors were forced to drop the charges, Patricio Jimenez filed
suit under 42 U.S.C. §1983 for false arrest, denial of due process and malicious prosecution.
In granting summary judgment for the city on Sept. 24, Scheindlin took note of the detectives’ report, the ambulance worker’s report, and the affidavit of Hannah Cohen, a volunteer advocate with the Mount Sinai Sexual Assault and Violence Intervention Program who testified that “Mrs. Jimenez informed me, in no uncertain terms, that she was assaulted by her domestic partner.”
To credit Mrs. Jimenez’s denial she had been assaulted, “this court would need to accept that the ambulance driver, the emergency room staff, the volunteer domestic violence advocate, and no fewer than three police offices all acted in concert, and without any apparent motive, to fabricate several official documents each telling essentially the same story,” Scheindlin said, calling the conspiracy “simply too fantastic to be credible.”

“Mrs. Jimenez may decline to testify in order to prevent her husband from being prosecuted for domestic assault, but it is galling to then use that recantation as a predicate to sue the city for false arrest and related claims,” she wrote.

Law Department Senior Counsel Tobias Zimmerman moved for sanctions and asked the court to order Jimenez and counsel to pay $96,662.50 to cover the costs of defending the city for 18 months in Jimenez v. The City of New York, 14-cv-2994. Scheindlin granted the sanctions motion, citing her authority to award fees under 42 U.S.C. 1988 and impose sanctions under Rule 56(h) of the Federal Rules of Civil Procedure, as well as the power to punish any attorney who multiplies proceedings “unreasonably and vexatiously” under 28 U.S.C. §1927 and her inherent power to sanction a party or an attorney for acting in bad faith.

Read more:

On November 5, 2015, Judge Peter H. Moulton, presiding judge over the New York City Asbestos Litigation (NYCAL), ruled in Warren v. AmChem Products, et al., 190281/2014, that J-M Manufacturing Company, Inc., was subject to spoliation sanctions for the destruction of corporate documents in two separate incidents. The judge imposed the sanction that the plaintiff is entitled to a jury instruction allowing the jury to infer that the missing documents would have supported the plaintiff’s claims.


Plaintiff/decedent Richard Warren filed suit against numerous defendants, including J-M Manufacturing Company, Inc., claiming he developed mesothelioma as a result of exposure to asbestos fibers during the course of his employment, including alleged work with J-M’s asbestos cement pipe, commonly called Transite. During discovery, the plaintiff filed a motion for spoliation sanctions, arguing that J-M had improperly engaged in the “massive destruction of documents.” Indeed, the plaintiff and the defendant agreed that on two occasions J-M documents were lost. In 1990, an unknown number of documents were lost when the corporate headquarters were moved from Stockton, CA, to Livingston, NJ. In 1997, an employee discarded 27 bankers’ boxes during the renovation of a J-M production facility in Stockton.

Court Ruling

Spoliation is “the intentional destruction, mutilation, alteration, or concealment of evidence, usually a document. If proved, spoliation may be used to establish that the evidence was unfavorable to the party responsible.” (Black’s Law Dictionary, 8th ed. 2004.) In imposing sanctions, Judge Moulton found the plaintiff successfully established the elements for spoliation sanctions. The court found that the plaintiff established that J-M (1) had an obligation to preserve the evidence at the time it was destroyed, (2) destroyed the documents with culpable state of mind, and (3) destroyed evidence relevant to the plaintiff’s claim or defense, such that the trier of fact could find that the evidence would support that claim or defense.

Judge Moulton rejected the position that a defendant doesn’t anticipate litigation until they have been served with a complaint, or have notice of a claim. The court was persuaded that in 1983 J-M knew the hazards and long latency periods of mesothelioma when it became aware of pending workers’ compensation claims for asbestos exposure. Further, the court found that the documents lost in 1990 were lost because of “gross negligence.” The court stated that the 1997 document loss occurred due to J-M’s bad faith, i.e., even though they had a document retention policy, they failed to instruct employees to preserve relevant evidence. Judge Mouton determined that after he found a culpable state of mind was present, the relevance of the documents was presumed and the burden shifted to J-M to show that the “innocent party had access to the evidence or that the evidence would not have supported the claim.” J-M was not able to meet this claim despite pointing out that the documents were likely irrelevant or duplicative of the thousands of other documents produced in discovery.

Judge Moulton held that the plaintiff is entitled to the “strongest adverse inference” due to J-M’s “bad faith and disturbing behavior.” He concluded that the plaintiff is entitled to a jury instruction allowing the jury to infer that the missing documents would have supported the plaintiff’s claims.


This decision places the burden on a company to suspend routine document retention/destruction and preserve relevant documents without any concrete knowledge of forthcoming litigation. It presents a significant adverse ruling for defendants in asbestos litigation that have lost or destroyed documents, or otherwise have incomplete historical archives. Any such defendant runs the risk of a motion for spoliation sanctions and a negative jury instruction.

J-M’s conduct was not recently discovered by plaintiff’s bar; a corporate representative disclosed the existence of the missing documents when the company was first sued in 2000. The fact that J-M was first sued as an asbestos defendant in 2000 was not disputed by the parties, but J-M was unsuccessful in using it as a defense. Plaintiffs’ efforts at attacking defendants via spoliation rulings are a recent occurrence in some asbestos litigation. Companies that may have discarded relevant documents in the ordinary course of business are still emerging as defendants in asbestos litigation. Those companies are potentially subject to sanction despite never having been sued in third-party asbestos litigation.

It is worth noting that the court relied heavily on recent cases that discussed the scope of the litigation hold with regard to electronically stored information such as emails or other computer files, not the paper documents at issue in this case. Judge Moulton stated in a footnote that the law regarding preservation of relevant evidence is substantially the same today as it was in 1982, the year he found that J-M should have instituted a litigation hold. He also noted that the “propriety of an adverse inference charge in cases involving willfully or grossly negligent destruction of evidence was recognized as early as 1898.” (Emphasis added.)

Substantially similar motions also were filed against J-M Manufacturing in three other cases in Erie County, NY; Madison County, IL; and Los Angeles County, CA. The only other motion decided to date was denied by the California trial judge who, in an oral decision, summarily rejected the plaintiff’s spoliation claims because there was no showing that anyone had requested the missing documents in discovery. Unfortunately, the California decision is bereft of the legal analysis that would permit determination of how two trial courts came to inconsistent decisions. The Erie County motion was withdrawn after the case settled.

A.G. v L.G. 2015 NY Slip Op 51310(U) Decided on August 24, 2015 Supreme

Court, Essex County Muller, J. Published by New York State Law Reporting

Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will

not be published in the printed Official Reports.

Decided on August 24, 2015

Supreme Court, Essex County

A.G., Plaintiff,


L.G., Defendant.


Whitson & Rogers, Elizabethtown (Debra A. Whitson of counsel), for


Anderson & Soloski, LLP, Plattsburgh (Tina J. Soloski of counsel), for


Robert J. Muller, J.

The parties were married on April 26, 2008 and have one child, L.M.G. Defendant vacated the marital residence in June 2015 and plaintiff then commenced this action for a no-fault divorce on July 16, 2015, simultaneously filing a motion by Order to Show Cause for the following pendente lite relief: (1) temporary maintenance; (2) sole physical and legal custody of the parties’ child; (3) temporary child support; (4) an Order directing defendant to maintain a life insurance policy naming plaintiff as irrevocable beneficiary; and (5) interim counsel fees. Defendant subsequently appeared, filing an answer and affirmation in opposition to the motion. Oral argument was heard on August 19, 2015, at which time the parties resolved the relief requested in items (1), (2) and (4) above.[FN1] Counsel shall submit a proposed Order on consent reflecting this resolution within ten (10) days of the date of this Decision and Order. Each remaining item of relief will be addressed in seriatim.

Temporary Child Support

Plaintiff is employed at Elizabethtown Community Hospital and defendant operates a dairy farm in the Town of Willsboro, Essex County. According to the parties’ 2014 tax return, plaintiff earns $20,887.00 per year and defendant earns $113,305.00 per year. Based upon these figures, plaintiff has calculated the presumptively correct amount of temporary child support to be $254.00 per week (see Domestic Relations Law § 240 [1-b] [c]).

Defendant opposes plaintiff’s request for temporary child support in this amount, contending as follows:

“My income is produced solely from the sale of milk generated on the farm. I sell milk exclusively to AgriMark, Inc., who pays me bi-weekly. “My income is not consistent. It depends exclusively upon milk production and the price that AgriMark, Inc., will pay for milk. My income as it appears on my 2014 state and federal tax returns is not reflective of my typical annual income. It also is not reflective of my anticipated earnings for 2015. In 2014, milk prices were significantly higher than they are for2015.”

In support of these contentions, defendant has submitted two monthly statements from AgriMark, Inc. — one dated July 18, 2014 and the other dated July 20, 2015 — which statements demonstrate a reduction in the price of milk from $24.7519 per hundred pounds in 2014 to $17.5105 per hundred pounds in 2015. Defendant has also submitted copies of the parties’ 2012 and 2013 tax returns which list his annual income as $17,802.00 and $54,653.00, respectively. Finally, defendant has submitted a detailed list of his income and expenses to date for 2015, projecting that his income for the year will be approximately $22,480.00. Defendant requests that the Court calculate temporary child support using plaintiff’s annual salary of $20,887.00 and his projected annual salary of $22,480.00.

In view of the evidence submitted by defendant in support of his contention that his annual income in 2014 does not reflect his typical annual income, as well as the evidence submitted in support of his projected 2015 income, the Court finds that an income of $22,480.00 should be used in calculating temporary child support. Accordingly, the presumptively correct amount of temporary child support from defendant to plaintiff is $63.69 per week:


Gross Income:$20,887.00$22,480.00

Spousal maintenance:+ $,3000.00— $3,000.00



Combined Parental Income:$43,367.00 ($23,887.00 + $19,480.00)

Combined Child Support:$7,372.39 ($43,367.00 x .17)


Percentage of Combined

Child Support:55.08%44.92%

[*2]Annual Child Support:$4,060.71$3,311.68

(55.08% of $7,372.39)(44.92% of $7,372.39)

Weekly Child Support:$78.09$63.69[FN2]

The Court therefore awards plaintiff temporary child support in the amount of $63.69 per week, with payments to begin on Monday, August 31, 2015 and continue on each Monday thereafter pending the issuance of an Order awarding permanent child support. By Order issued on even date herewith, the issue of permanent child support is referred to the Support Magistrate of the Family Court of Essex County for determination (see Family Court Act §§ 461 [c], 464 [a]).

Interim Counsel Fees

Plaintiff seeks interim counsel fees in the amount of $3,000.00, which amount she paid to her attorneys as an initial retainer. In support of this request, plaintiff has submitted a copy of the retainer agreement and an affidavit wherein she states that “[b]ecause of the complexity of the issues in this case, including the necessity [of] valu[ing] a farm business, [she] is requesting an interim award of counsel fees in the amount of $3,000[.00].” Notably, however, counsel for plaintiff has not submitted an affirmation of services in support of the request, nor has plaintiff submitted a statement of net worth.

Uniform Rules for Trial Courts (22 NYCRR) § 202.5 (k) (2) provides that no motion for counsel fees pendente lite “shall be heard unless the moving papers include a statement of net worth . . . .” Uniform Rules for Trial Courts (22 NYCRR) § 202.5 (k) (3) further provides that no such motion “shall be heard unless the moving papers also include the affidavit of the movant’s attorney stating the moneys, if any, received on account of such attorney’s fee from the movant or any other person on behalf of the movant, the hourly amount charged by the attorney, the amounts paid, or to be paid, to counsel and any experts, and any additional costs, disbursements or expenses, and the moneys such attorney has been promised by, or the agreement made with, the movant or other persons on behalf of the movant, concerning or in payment of the fee.

Based upon the foregoing, the Court finds that plaintiff is not entitled to the requested award of interim counsel fees.

Therefore, having considered the Affidavit of A.G. with exhibits attached thereto, sworn to July 15, 2015, submitted in support of the motion; Affidavit of L.G. with exhibits attached thereto, sworn to August 13, 2015, submitted in opposition to the motion; and oral argument having been heard on August 19, 2015 with Debra A. Whitson, Esq. appearing in support of the motion and Tina J. Soloski, Esq. appearing in opposition thereto, it is hereby

ORDERED that the aspect of plaintiff’s motion seeking temporary child support is granted to the extent that she is awarded temporary child support in the amount of $63.69 per [*3]week, with payments to begin on Monday, August 31, 2015 and continue on each Monday thereafter pending the issuance of an Order awarding permanent child support; and it is further

ORDERED that the issue of permanent child support is referred to the Support Magistrate of the Family Court of Essex County for determination by Order issued on even date herewith; and it is further

ORDERED that the aspect of plaintiff’s motion seeking interim counsel fees is denied; and it is further

ORDERED that counsel shall submit a proposed Order on consent reflecting the parties’ resolution of the remaining aspects of plaintiff’s motion within ten (10) days of the date of this Decision and Order.

The foregoing constitutes the Decision and Order of this Court.

The original of this Decision and Order is returned to counsel for plaintiff for filing and service with notice of entry. The above-referenced submissions have been filed by the Court.