A. Cohen Law Firm has filed its second federal lawsuit against BMW after its automatic-closing doors crushed another customer’s finger.

The recently filed suit received coverage from several major news outlets, including the New York Daily News and the New York Post. It focuses on BMW’s faulty SCAD (Soft Closing Automatic Doors) technology, which shuts BMW car doors when they are ajar. The technology, however, has no sensor and will crush human fingers if they are in the way.

“Customers spend lots of money to drive what BMW calls the ‘Ultimate Driving Machine.’ It should be called the ‘Ultimate Danger Machine,’ ” Avi Cohen, founder of A. Cohen Law Firm, told the New York Post.

Cohen represents Alexis Fields, a resident of Smithtown on Long Island, in the latest suit, which was filed this month in the Eastern District of New York. Her thumb was crushed when she was getting out of her BMW 750Li at a strip mall. A. Cohen Law Firm also has an ongoing lawsuit in a similar case in which Godwin Boateng’s thumb was cut off by a BMW automatic-closing door.

“They’re responsible,” Cohen told the New York Daily News. “They [BMW] created this medieval-style device that essentially crushes people’s fingers or even decapitates people’s fingers.”

If you have encountered a similar problem with BMW’s doors, please call our offices at 516-341-7770 for a consultation.
News Coverage

• New York Post – “‘Ultimate danger machine’ BMW nearly cost me my thumb: suit”

• New York Daily News – “Long Island woman claims BMW’s automatic car-door closer nearly severed her thumb in $10M suit”

• Law360 – “BMW Soft-Close Doors Are A ‘Guillotine,’ NY Couple Says”

• ConsumerAffairs – “A growing number of drivers claim that BMW’s ‘soft close’ doors are severing their fingers”

CBS New York: Family: School Didn’t Protect Son With Autism From Violent Bullying

Catching up with old colleague from my days at Kasowitz, Benson, Torres & Friedman; Senator and former Vice-Presidential candidate, Joseph Lieberman.

Avi Cohen, founder of A. Cohen Law Firm, P.C., spoke with USA Today about lawsuits that will likely result from the Southwest Airlines flight that was forced to make an emergency landing after engine failure. One passenger, Jennifer Riordan, died after the engine exploded in midair, blew out a window, and sent shrapnel into the plane.

“There are no apologies that would make the family of Jennifer Riordan whole again, nor will they be able to provide a defense for this gruesome death,” Cohen told USA Today, noting damages to Riordan’s family could total in the tens of millions of dollars.

Southwest also handled the tragedy in an impersonal way, referring to her as our “deceased customer,” Cohen said. “Jennifer Riordan was a mother, a wife, a person. The response sounded more corporate than personal,” he said.

“Southwest passengers could collect millions after deadly ordeal” – USA Today

More than 30 major media outlets have covered A. Cohen Law Firm’s suit against BMW and its flawed SCAD (Soft Closing Automatic Doors) technology. The doors, which close automatically if they are slightly ajar, severed the thumb of the firm’s client Godwin Boateng and a lawsuit has been filed in federal court on his behalf.

The BMW doors with the SCAD technology have no sensor that detects an object in their path, such as a finger, that would stop the doors from closing. This basic safety feature would have prevented the loss of Boateng’s thumb. “There has to be some sort of mechanism to protect you from that outcome,” Avi Cohen told the New York Post, noting BMW has turned its car door into nothing short of “a guillotine.”

Here is some of the coverage of A. Cohen Law Firm has received for its case against BMW. If you have encountered a similar problem with BMW’s doors, please call our offices at 516-341-7770 for a consultation.

News Coverage:

• “My $70K BMW cut off my thumb” – New York Post, 3.26.18
• “Claim: BMW SUV’s self-closing door cut off man’s thumb” – Fox News, 3.26.18
• “Lawsuit: BMW door severed Valley Stream man’s thumb” – Newsday, 3.26.18
• “New York software engineer sues after his thumb was SEVERED by his $70,000 BMW X5’s automatic door” – Daily Mail, 3.26.18
• “Software Engineer Claims BMW Automatic Door Chopped Off His Thumb” – Gizmodo, 3.26.18
• “Man Sues BMW After X5’s Automatic Soft-Closing Door Cut Off His Thumb” – Carscoops, 3.26.18
• “Man Claims Automatic Closing Door On His X5 Removed His Thumb” – AutoSpies, 3.26.18
• “This Man Lost Mother’s Fingers Because Pinned Door BMW X5” – Mobil123.com, 3.27.18
• “BMW X5 Owner Suing After Thumb Severed by Self-Closing Door” – The Drive, 3.27.18
• “New York man sues BMW after car’s self-closing door severs thumb” – KABC-TV, 3.27.18
• “Driver says BMW’s self-closing doors severed his thumb” – ConsumerAffairs, 3.27.18
• “Software Engineer Claims BMW Automatic Door Chopped Off His Thumb” – Gizmodo Australia, 3.27.18
• “New York man sues BMW after car’s self-closing door severs thumb” – ABC7 San Francisco, 3.28.18
• “Man sues BMW after car’s self-closing door severs thumb” – ABC7 Chicago, 3.28.18
• “BMW X5 chops a man’s finger with self-closing door. Man sues BMW in turn” – Financial Express, 3.29.18
• “Lawsuit: BMW door severed man’s thumb” – Napa Valley Register, 3.28.18
• “BMW X5 Soft-Close Electric Door Allegedly Cuts Off Owner’s Thumb” – Yahoo News, 3.30.18
• “BMW Sued After An X5’s Self-Closing Door Cut Off Someone’s Thumb!!!” – Top Speed, 3.31.2018
• “BMW X5 Soft-Close Electric Door Allegedly Cuts Off Owner’s Thumb” – Motor1.com, 3.30.18

After an 18 day trial in which a judgment of divorce was entered, the wife discovered that the husband had sold their marital residence in light of the mandatory Notice of Automatic Orders precluding him from doing so.

The Appellate Division for the Second Department held that with respect to a wife’s post-divorce judgment motion to hold the husband in civil contempt for violating certain orders that were issued during the pendency of their divorce action, the trial court properly determined that orders based on Domestic Relations Law § 236(B)(2)(b) and 22 NYCRR 202.16-a constituted unequivocal mandates of the court for purposes of holding a spouse in contempt. However, the trial court erred in finding the husband in civil contempt based on his violation of those orders, as it was not an available remedy under Judiciary Law § 753 because the wife had sought civil contempt after entry of the divorce judgment and it was only a remedy that was available during the pendency of the action.

See Spencer v. Spencer, 2018 NYLJ LEXIS 718 (2d Dep’t Mar. 9, 2018)

http://nypost.com/2016/07/05/mom-gets-125k-after-her-kid-falls-wearing-gap-sneakers/

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 Gap.com — on sale for $24.99 — for her daughter Adina in November, according to the Brooklyn Supreme Court papers.

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
XXXXXX/09
Referee Marie F. McCormack, Esq.
Decided: May 3, 2016

ATTORNEYS
Counsel for the Plaintiff: Joseph A. Brancato, Jr., Esq.
Counsel for the Defendant: Keith H. Richman, Esq.

DECISION AND ORDER AFTER HEARING

PROCEDURAL HISTORY

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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.

BACKGROUND

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

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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.

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THE TESTIMONY

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.

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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

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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.

DISCUSSION

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

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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

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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).

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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
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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
05/17/2016

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: http://m.newyorklawjournal.com/#/article/1202757787703/Lawsuit-Over-Divorce-Case-Proceeds-Against-Phillips-Nizer?kw=Lawsuit%20Over%20Divorce%20Case%20Proceeds%20Against%20Phillips%20Nizer&cn=20160517&pt=Daily%20News&src=EMC-Email&et=editorial&bu=New%20York%20Law%20Journal&_almReferrer=

http://m.newyorklawjournal.com/#/article/1202753243950?kw=Abusive%20Husband%27s%20Award%20Found%20%27Clearly%20Inappropriate%27&cn=20160328&pt=Personalized&src=EMC-Email&et=editorial&bu=New%20York%20Law%20Journal&slreturn=20160228073641&_almReferrer=

Mark Hamblett
03/28/2016

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: http://m.newyorklawjournal.com/#/article/1202753243950?kw=Abusive%20Husband%27s%20Award%20Found%20%27Clearly%20Inappropriate%27&cn=20160328&pt=Personalized&src=EMC-Email&et=editorial&bu=New%20York%20Law%20Journal&slreturn=20160228073641&_almReferrer=