B.K. v. H.I. – a recent trial which I won to vacate child support and dismiss the wife’s petition for a violation of child support payments.

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.

G.M. v. M.M. (NY Sup. Ct. Westchester County, Dec. 17, 2015)

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.”

MG v. RG, Index No.: 55110/11 (Kings County) (Adams, Rachel Hon.)

Background

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.

Discussion
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.

Sanctions Ordered for Plaintiff, Counsel in Suit Against City

New York Law Journal

December 16, 2015

http://www.newyorklawjournal.com/id=1202744924340/#.Vnb7PnPvoMg.mailto

 

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:
http://www.newyorklawjournal.com/id=1202744924340/Sanctions-Ordered-for-Plaintiff-Counsel-in-Suit-Against-City#ixzz3uzxaR4Uw

New York City Asbestos Litigation Presiding Judge Rules Manufacturer Should Have Reasonably Anticipated Asbestos Litigation 10 Years Before First Lawsuit

ShareOn 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.

Background

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.

Comment

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.

AG v. LG

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,

against

L.G., Defendant.

XXX

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

plaintiff.

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

defendant.

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:

PlaintiffDefendant

Gross Income:$20,887.00$22,480.00

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

____________________

TOTAL:$23,887.00$19,480.00

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

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

PlaintiffDefendant

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.

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Are Tuition Expenses for Private School Recoverable in a Child Support or Divorce Order?

By: Avi Cohen

http://www.lawfirms.com/resources/divorce/are-tuition-expenses-private-school-recoverable-child-support-divorce-order

Are non-custodial parents obligated to contribute towards private/religious school expenses once child support has been determined by the court?  This is a question that many practictioners have tried to push for (and others defend against), and one that the NY courts have not drawn a line in the sand and ordered either party one way or the other.
The Family Court Act (“FCA”) section 413(1)(c)(7) provides in pertinent part: “Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate, the court may award educational expenses. The non-custodial parent shall pay educational expenses, as awarded, in a manner determined by the court, including direct payment to the educational provider.”

On its face, FCA 413 would seem to indicate that non-custodial should in fact be responsible for private school expenses. However, courts are free to use their own discretion in determining such orders.  For example, some of the factors the courts take into consideration include the parents’ educational background (i.e. whether they themselves enrolled in private school), the grade of the child, how long he/she has been attending the school, whether the education they are receiving is superior to that of the local public school in their district, the financial resources of the parents, etc.

Although there are numerous cases which have found against private school contributions, the following cases have concluded that the non-custodial parent should be partially responsible for private school expenses, based on the parents’ pro rata combined earnings.

In Matter of Overbaugh v. Schettini, 103 A.D.3d 972 (3rd Dep’t 2013), the Court directed that the father “pay 50% of the child’s private school tuition.”  Id. at 974.  Thus, where there are prior orders of support that are “silent as to the parties’ responsibility for the costs of a private secondary education, [a] Family Court may award educational expenses as justice requires, ‘having regard for the circumstances of the case and of the respective parties and in the best interests of the child.'” (Family Ct Act § 413 [1] [c] [7]; seeMatter of Wen v Wen, 304 AD2d 897, 898, 757 NYS2d 355 [2003]; see alsoMatter of Amos-Richburg v Richburg, 94 AD3d 1112, 1113, 942 NYS2d 613 [2012]Matter of Durso v Durso, 68 AD3d 1107, 1108-1109, 893 NYS2d 81 [2009]). The “Relevant factors . . . include the parents’ educational background, the child’s academic acuity and the financial situation of the parents.” (Matter of Wen v Wen, 304 AD2d at 898 [citations omitted]).  Id.

In Overbaugh, when trial was taking place, the child was beginning his fifth year at the private school. His father, “who attended private school as a child, was consulted regarding (and did not oppose) the initial decision to send the child to a private school—a decision that was based upon, among other things, the child’s prior performance at a public elementary school.”  Id. Additionally, “the father’s stepson and daughter from a subsequent marriage both attend private schools and, further, that the father has the financial resources to contribute to his son’s educational expenses ‘without impairing his ability to support himself and maintain his own household.'”  Id. at 975 (citation omitted.) Based on these circumstances, “the Support Magistrate appropriately concluded that the father should pay 50% of the child’s tuition, and [the] Family Court, in turn, properly denied the father’s objection thereto.”  Id.

Similarly, in a recent Family Court Order, a father consented to his son’s enrollment in a private school.  Kristina Lynn B. v. Joseph T.M., 958 N.Y.S.2d 293 (Fam. Ct. Albany Cty. 2013).  As a result, the Family Court perceived it as

an admission on his part that CBA was the best educational setting for his son.  On the other hand, the parents’ agreement that the mother would pay for CBA is not relevant to the outcome of these objections. The reason that is so is because Family Court has no authority to enforce contracts (seeBoden v. Boden, 42 NY2d 210, 366 N.E.2d 791, 397 N.Y.S.2d 701Brescia v. Fitts, 56 NY2d 132, 436 N.E.2d 518, 451 N.Y.S.2d 68). If it could, it would be possible that the Court would be asked to set aside the parents’ agreement beyond the first year because there was no agreement in writing required by the statute of frauds (GOL §5-701). Or, perhaps, the mother would have argued that the father’s acquiescence to the child’s enrollment in the 7th grade at the private school might be deemed a renewal of the agreement for which the father is estopped from registering an objection. Because Family Court is a court of limited jurisdiction, it has no authority to rule on such issues. Its jurisdiction is limited, in this case, to applying FCA §413(1) (c)(7) to the evidence. The interpretation of an oral contract between the parties or imposing equitable relief is beyond this Court’s authority.

Id. at 294.

The Magistrate’s finding that the father should be responsible for his proportional share of the son’s private school expenses possesses a sound and substantial basis.  Part of the reason for the change in schools was due to the fact that the “‘child had been diagnosed with an auditory processing disorder in 2009 … [and] has been suffering from a depression and other emotional difficulties which has required treatment with increasing dosages since 2009.'”  Id. (citation omitted.)  The Magistrate also concluded that “since the child’s transfer to private school, he has been thriving and his emotional state has improved resulting in a decrease in his medication. It was also established that the father’s income increased by 41% or $44,600 since the last support order, which was the judgment of divorce issued in 2007.”  Id. at 295.

The Court noted that the “language ofFCA §413(1)(c)(7) does not command any formula with respect to apportionment of private school tuition.”  Id.  Thus, the father was able to make a “plausible claim that the reference in FCA §413(1)(c)(7) to a determination ‘as justice requires’ would allow the Court to take into account that the mother reneged on her agreement to pay for the total cost of tuition.”  Id.  However, the Court did not read that phrase as “a green light by the Legislature for the Family Court to assume subject matter jurisdiction not specifically given to the Court by positive law [and] [e]ven if it could be read this way, the father’s consenting to allow his child to be enrolled in the selected school for two academic years would be a convincing counterweight to the argument suggested.”  Id.  Therefore, the Court ordered that the father was responsible for paying his proportional share of the tuition simply because the Magistrate findings support such a conclusion.  As a result, the father was ordered to pay 71% of the son’s tuition and other fees for the school year.

Finally, in Mahoney-Buntzman v. Buntzman, N.Y. Misc. LEXIS 2754, at **116-17 (N.Y. Sup. Ct. Weschester Cty. Oct. 3, 2006), the Court determined that although private school expenses don’t constitute mandatory “add-ons” under the Child Support Service Act, a father may be ordered by the court to contribute to his daughters’ college expenses if it “determines that such an award is appropriate.”(Matter of Calvello v. Calvello, 20 A.D.3d 525, 526-527, 800 N.Y.S.2d 429 [2d Dept. 2005]; seeFCA § 413[1][c][7]DRL § 240[1-b][c][7]).  Nonetheless, “a court does not have unfettered discretion in making such an award. Rather, consistent with CSSA, the Court ‘must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice.'” Id. at *116-117 (citations omitted).

In conclusion, there is a strong argument to be made that private school expenses can and will be ordered to be shared by the parents.  Know your rights prior to any order of support.  If there is a history of private school enrollment, superior quality of education and the length of time spent in private school, a court may find that it is, in fact, in the child’s best interests to continue enrollment in private school.

Salgado v Deglinnocenti

Source from: http://law.justia.com/cases/new-york/other-courts/2015/2015-ny-slip-op-51290-u.html

 

Salgado v Deglinnocenti 2015 NY Slip Op 51290(U) Decided on September 2, 2015 District Court Of Nassau County, First District Fairgrieve, 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 September 2, 2015
District Court of Nassau County, First District

Teresa Salgado and Carmino Salgado, Plaintiff(s)

against

Adele Deglinnocenti, Defendant(s)

CV-027833-13

Meltzer, Lippe, Goldstein & Breitstone, LLP

Attorneys for Plaintiffs

190 Willis Avenue

Mineola, New York 11501

516-747-0300

Hankin & Mazel, PLLC

Attorneys for Defendant

60 Cutter Mill Road, Suite 505

Great Neck, New York 11021

516-499-5800

Scott Fairgrieve, J.
Trial Decision

Plaintiffs commenced this action against defendant Adele Deglinnocenti to recover the sum of $6,800 allegedly given her as a loan to assist in paying her mortgage.

In her Answer dated December 20, 2013, Defendant denies liability for the loan and asserts a counterclaim for $25,000 based upon frivolous conduct.

Facts

Carmino Salgado (“Plaintiff”) testified at trial that he came to know Defendant through his business dealings with her husband, Benny Malluzio. They started doing a joint venture in Miami in “2010 or so”, for which Plaintiff provided the financing.

Plaintiff was asked by Benny Malluzio for a loan to his wife, Defendant Adele Deglinnocenti, to help pay the mortgage, which was in arrears. Plaintiff testified as follows:

Q.Now, this loan, describe, I guess describe the circumstances surrounding the loan, when you gave the loan to the Defendant.
A.I gave the loan to the Defendant at the request of her husband. And her husband asked me that he was behind along with Adele on the mortgage of the house. If I could help him with a check to alleviate, or to satisfy the mortgage to the bank. That they would get the money back to me within a month.
In 2011, Plaintiff spoke with Defendant via phone, and gave Plaintiff her name and the amount of the check. They also discussed that the check was to help with the mortgage.

Plaintiff testified that he issued a check to Defendant, dated June 13, 2011, in the sum of $6,800. The check, numbered 0691, is drawn on BCP Bank. In the memo section of the check, Plaintiff wrote “Loan to Benny.”

Plaintiff proffered a copy of the original check, which this court allowed into evidence, over objection by Defendant, as explained in the legal discussion portion of this decision. Plaintiff failed to subpoena the original check from the Bank.

Plaintiff delivered the check to Defendant’s residence located in Whitestone, Queens, New York. When Plaintiff gave the check to Defendant, the Defendant stated:

Q.And did the Defendant agree to these terms?
A.I was the understanding. She didn’t exactly agree to it. She said we will pay you within, you know, whatever time you say. She knew it was a loan, if that’s the question.
On cross examination, Plaintiff again stated that he spoke to Defendant on the phone to ask her name and the amount of the check. Plaintiff had never spoken to Defendant before the conversation about the loan.

Plaintiff testified that the loan agreement was not with Benny Malluzio. Plaintiff wrote “loan to Benny because that’s her husband’s name. And it would remind me what the check was for.”

Plaintiff stated that he spoke to Mr. Malluzio and he asked if Plaintiff could help his wife with the mortgage payments; the house was in the wife’s name. If the house was in the name of Mr. Malluzio, then he would have made the loan directly to him.

Plaintiff spoke to Defendant who gave him her name and the amount she needed.

On cross examination, Plaintiff first stated that he spoke to Defendant about paying him back within a month. However, when pressed on this subject, Plaintiff testified that he might not have had the foregoing conversation.

Q.On that conversation – – that two-minute conversation? Did you say anything further to her?
A.Yeah, that this was to help her out so she could pay me back within a month or so?
Q.You said that to her on the phone?
A.We had that conversation.
Q.You said that to her on the phone?
A.I might have not said it – –
Q.Under oath? Under oath?
A.No, I might not have said it. No I might not have said it.
Q.You might not have said it, okay.
A.But when I delivered the check it was discussed.
Q.Okay. You’ve got to make up your mind. Because this is a court of law.
A.Right.
* * *Q.I want to know if you remember saying it? If you’re not sure you said it? Tell the court.

A.I’m not sure I said it.
A day after the phone call, Plaintiff went to Defendant’s home in Whitestone to deliver the check. Defendant opened the door and Plaintiff gave her the check and stated “Here’s the check for your mortgage payment.” Plaintiff testified “I don’t remember [the] specific conversation I had with her.”

On redirect, Plaintiff again reiterated that he called Defendant and obtained her name and the amount for the check:

Q.Pursuant to a conversation you had with her? Did you have a conversation with – –
A.Yeah, I was calling because her husband instructed me to call her and we went through the scenario of what the check was for, and what the amount was for. And that’s how I got the amount right, and the name right.
Defendant testified that she neither met nor spoke with Plaintiff prior to the date of the trial. Her husband Ben told her a check was being dropped off by Mr. Salgado, and she was to deposit the check into their joint account. The check was placed in her mail box, but she never spoke to Plaintiff about the check.

Defendant denied making an agreement with Plaintiff about the check.

On cross examination, Defendant remembered depositing a check but not the specific check before the court. Her last name is Deglinnocenti and her husband never used this name.

Defendant did not recall receiving $6,800 from Plaintiff personally, but it was in her mail box.

Defendant stated at trial that the wording “for deposit only” on the back of the check didn’t look like her handwriting. Defendant stated the following concerning receiving the $6,800:

Q.So, $6,800 was to poof, it vanished? You never received $6,800 was your testimony.
A.I never received $6,800 from – – I’m sorry. Even with my glasses I can’t read this.

Law
The first question before this court was the admissibility of the copy of the $6,800 check into evidence. Defendant objected to the copy of the check being placed into evidence based upon the best evidence rule. Defendant urged that the original check had to be used and not a copy. Plaintiff never attempted to secure the original check from the bank for trial.

Over the objection of Defendant, this court allowed into evidence a copy of the check. This was the correct procedure to follow based upon the Second Department holding in Rotanelli v. Longo, 210 AD2d 392, 620 NYS2d 130 (2d Dept 1994). In Rotanelli, the Court held:

We find no error in the admission of the copy of the loan check into evidence. The defendant admitted that the plaintiff had tendered a check for $12,000 and that he had signed the check over to a business associate for investment in a limited partnership. Because there was no dispute as to the contents of the writing (i.e., the check), but only as to whether the money was intended as a gift or a loan, the best evidence rule did not prevent admission of the check into evidence (see, Richardson, Evidence, § § 568, 572 et seq. [Prince 10th ed.]).
See also NY Jur Evidence, § 246 and Edith L. Fisch, Fisch on New York Evidence, 2nd ed, § 87, Photographs and Reproductions, both explaining the widespread use of photographic reproductions of writings.

In the case at bar, the parties agree that a check was issued by Plaintiff for the mortgage. Plaintiff testified that he gave a $6,800 check to Defendant (Exhibit 1). Defendant denies having personally received Exhibit 1, but does admit that she found a check from Plaintiff in her mail box and deposited it into her joint account with her husband. Defendant denies writing “for deposit only” on Exhibit 1.

Based upon the above, the issue before the court is whether Exhibit 1 was a loan which Defendant agreed to repay or a loan to Defendant’s husband, Benny Malluzio, for which he is [*2]liable.

This court finds the case at bar very difficult to decide. However, based upon a thorough review of the testimony, it is the determination of this court that Plaintiff made the loan agreement with Benny Malluzio and not with the Defendant.

This court finds that Plaintiff did call Defendant and obtained the spelling of her name and the amount of the check. However, there was no express promise by Defendant to repay the loan. Instead, Defendant was a third party beneficiary of the loan agreement between Plaintiff and Benny Malluzio.

On cross examination, Plaintiff admitted that he might not have had a conversation with Defendant about paying him back within a month or so. In fact, Plaintiff testified, “I’m not sure I said it.”

In Crozier v. Sauers, 109 AD3d 507, 508, 970 NYS2d 323 (2d Dept 2013), the Second Department upheld the finding of the lower court that Defendant Sauers did not agree to be personally liable for the loan money, which was used by a corporation of which Defendant Sauers was an owner:

Here, the parties understood that the funds were intended to be used for corporate purposes, were advanced to the corporation, were deposited into the corporation’s account, and were actually used for corporate purposes. Furthermore, the plaintiff failed to adduce evidence that Sauers agreed to be personally responsible for repaying the loan prior to the advancement of the funds. Under the circumstances presented here, the Supreme Court’s determination that Sauers agreed to be personally liable for the debt alleged by the plaintiff was not warranted by the facts (see Melius v. Breslin, 46 AD3d 524, 525, 846 NYS2d 645; see also Glazer v. Ottimo, 84 AD3d 1023, 923 NYS2d 855; Kallman v. Pinecrest Modular Homes, Inc., 81 AD3d 692, 693, NYS2d 221; Knect v. Nassau County Native Ams. Inc., 41 AD3d 435, 436, 837 NYS2d 717).
Accordingly, the judgment must be reversed and the complaint dismissed insofar as asserted against Sauers.

In the instant case, the Plaintiff failed to sustain his burden of proof that a loan was agreed to between the parties. The fact that Defendant received a benefit of Plaintiff’s dealings with Benny Malluzio does not make her liable for the loan. Such was the case in Fountoukis v. Geringer, 33 AD3d 756, 822 NYS2d 644 (2d Dept 2006), wherein the Defendant Cohler was not liable because he didn’t request the money transfer:

Similarly, as to the cause of action for unjust enrichment, the plaintiff must look for recovery to Geringer, and not Cohler, since the $200,000 money transfer was performed at the behest of Geringer (see Schuckman Realty v. Marine Midland Bank, 244 AD2d [*3]400, 401, 664 N.Y.S.2d 73; Kagan v. K-Tel Entertainment, 172 AD2d 375, 376, 568 N.Y.S.2d 756).
Also on point is Kagan v. K-Tel Entertainment, Inc., 172 AD2d 375, 568 NYS2d 756 (1st Dept 1991), wherein the First Department ruled that a defendant cannot be held responsible if services were performed from which defendant received a benefit and s/he didn’t request the service:

Plaintiffs’ claim is without merit. As reflected in the common law of the various states, to recover under a theory of quasi contract, a plaintiff must demonstrate that services were performed for the defendant resulting in its unjust enrichment (Kapral’s Tire Svc. v. Aztek Tread Corp., 124 AD2d 1011, 1013, 508 N.Y.S.2d 777). It is not enough that the defendant received a benefit from the activities of the plaintiff (Armstrong v. I.T.T.S. Corp., 10 AD2d 711, 198 N.Y.S.2d 641); if services were performed at the behest of someone other than the defendant, the plaintiff must look to that person for recovery (Citrin v. Columbia Broadcasting, 29 AD2d 740, 286 N.Y.S.2d 706).
Applying the Kagan rationale to the case at bar, Plaintiff must look to Benny Mazullio for repayment of the loan because the agreement was between them. Plaintiff has failed to sustain his burden that Defendant agreed to repay the loan. This result is entirely consistent with the Second Department’s holding in JLJ Recycling Contractors Corp. v. Town of Babylon, 302 AD2d 430, 431, 754 NYS2d 897 (2003):

Contrary to the plaintiff’s contention, it was not entitled to recover the value of the services it provided to the Babylon Recycling Center, Inc., which benefited the defendant Town of Babylon. Under the theory of quantum meruit, if the services were performed at the behest of someone other than the defendant, the plaintiff must look to that party for recovery.

Conclusion
Based upon the above, the case is dismissed because Plaintiff failed to sustain his burden of proof that Defendant agreed to be responsible for the loan. The Defendant was a third party beneficiary of the loan agreement between Plaintiff and Mr. Malluzio.

So Ordered:

Hon. Scott Fairgrieve

A Manhattan Supreme Court judge has levied a $317,000 sanction against a law firm

Sourced from newyorklawjournal.com

A Manhattan Supreme Court judge has levied a $317,000 sanction against a law firm and two of its partners in a matrimonial case, saying they made “misrepresentations and knowingly false statements to the court.”

Justice Ellen Gesmer, ruling in the five-year-long case of L.G. v. M.G., 310479/10, said Abe Konstam and Madeline Nisonoff, partners at Mallow, Konstam, Mazur, Bocketti & Nisonoff, had prolonged the litigation by bringing frivolous motions directing their clients not to comply with a subpoena.

Konstam and Nisonoff, who jointly represent the husband and his parents, also were faulted for failing to notify their adversary that the husband did not wish to proceed with hearings until shortly before the issues were to be heard.
Gesmer said they had “concealed pertinent information relative to the parties’ matrimonial litigation” and ordered that her ruling be sent to the Departmental Disciplinary Committee.

The attorneys plan to appeal the sanction.

“The decision is clearly erroneous,” Konstam said in a brief interview Friday. “We have every expectation that it will be reversed on appeal.”

Konstam, in practice since 1975, said he was sanctioned by a court only once, over 30 years ago. He said Nisonoff, who was admitted in 1992, had never been sanctioned.

Gesmer had sanctioned the husband in the case in 2013, ordering him to pay $200,000 to the wife for violating the court’s orders and engaging in dilatory and deceptive tactics that required the wife to bring numerous motions.
The 2013 order also sanctioned the husband’s parents, ordering them to pay $213,000 for refusing to comply with the subpoena.
The order is under appeal.

Gesmer held a hearing in December on the attorney sanctions motion, which sought nearly $1 million, and found the partners’ testimony “not credible.” Konstam “was evasive and uncooperative, even when identifying the bills from his own law firm” and Nisonoff’s “statements were contradicted by her own exhibits,” the Aug. 21 opinion said.
Gesmer said Nisonoff admitted she had advised her clients not to comply with the subpoena “because she disagreed with the denial of her oral motion to quash on the previous day.”

The opinion recited the bitter and tragic nature of the case, noting that the couple had married in their late 20s, had a child, and then a year later the husband had a brain aneurism that resulted in his being in a coma for several weeks. He has lived in a rehabilitation facility since 2008.

Citing a breakdown in the marriage caused by the intervention of the husband’s parents, the wife sued for divorce in 2010.
Gesmer said the husband’s parents had taken charge of the matrimonial litigation. The opinion quoted an email they sent to the Konstam firm directing them to “go after [the mother] with a vengeance.”

The emails also disclosed that the husband did not share his parents’ desire to seek custody of and then visitation with the daughter. Gesmer noted it was the parents who had paid all of Konstam’s legal fees.

Emails produced by the wife’s attorney at the sanctions hearing showed the husband had wanted to discontinue a proceeding seeking visitation.

Gesmer said Konstam and the parents nevertheless went ahead with extensive briefings and a six-day trial on the issue.
A separate proceeding was brought by the husband repudiating an agreement to arbitrate any disputes with the wife before a Beth Din, the Jewish religious court. Gesmer said the husband initially denied ever signing the agreement but, after extensive motion practice, admitted the signature was his.

The judge noted that, despite his condition, the husband had “appeared at every court proceeding, submitted numerous sworn statements to the court, and testified both at his deposition and at trial. There has never been an application for an appointment of a guardian or a guardian ad litem.”

The wife is represented by Karen Rosenthal, a partner at Bender Rosenthal & Richter.

Mother Is Liable to Son for Bar Mitzvah Gift, Judge Says

Sourced from: http://m.newyorklawjournal.com/module/alm/app/ny.do#!/article/1753143982

Andrew Denney
08/28/2015

A 20-year-old man is entitled to $5,000 as an overdue bar mitzvah gift that he claimed his mother failed to deliver from his grandmother, a Nassau County court found.

Jordan Zeidman had sued his mother, Shirley Zeidman, over the gift from his maternal grandmother, Rachel Steinfeld, who had attended his October 2007 bar mitzvah. Steinfeld, who had not been invited, told Jordan Zeidman in front of his mother, who also had not been invited, that she would give him $5,000 “just like I gave to your brother and sister.”

According to Nassau District Court Judge Scott Fairgrieve’s decision in Zeidman v. Zeidman, CV-011924-14, Jordan Zeidman said he never received his grandmother’s gift. He had moved out of his mother’s house around the time of his bar mitzvah because of their “uneasy” relationship and said that the two had been estranged ever since.

After filing a small claims complaint against his mother, he submitted into evidence a bank document with statement of deposits into his college fund containing a handwritten note stating: “I owe Jordan $190.00 + $5,000 from Baba.”

Steinfeld is often referred to by relatives as “Baba,” which was confirmed by Steinfeld and both Jordan and Shirley Zeidman, according to court papers.

Steinfeld testified that she neither gave $5,000 to Jordan Zeidman directly, nor gave it to his mother to hold for him, but admitted giving $5,000 gifts to Jordan Zeidman’s brother and sister for their bar and bat mitzvahs.

Shirley Zeidman testified at a hearing that the handwriting on the note could be hers, but she denied receiving money from her mother to pass along to her son, who said he recognized his mother’s handwriting from when they lived together.

Fairgrieve ruled that Shirley Zeidman is liable for both conversion and unjust enrichment for failing to transfer the gift to her son. Citing Gruen v. Gruen, 68 N.Y.2d 48, 505 N.Y.S.2d 849 (1986), Fairgrieve wrote that the three elements necessary to establish an inter vivos gift are that there was an intent to make an irrevocable transfer of ownership, an actual delivery of the property and an acceptance of the gift by the donee.

The third element may be presumed if the purported gift is of significant value, which is the case in Zeidman, the judge wrote.
Fairgrieve said the evidence in the case shows that Steinfeld came to the bar mitzvah with the intention of giving a $5,000 gift to her grandson, and that the handwritten note on the bank document supports that the gift was made.

The note also proves that the plaintiff’s mother—who was considered a third party representing her son as a fiduciary agent—was liable for the gift, the judge wrote. He cited a Brooklyn Surrogate’s Court decision from 1956 in In re Gilligan’s Estate, 157 N.Y.S.2d 740, in which the court held that IOU slips in a decedent’s handwriting amounted to admissions of valid debts.

Steven Cohn, a Carle Place attorney who represented Jordan Zeidman, said in an interview that, with interest and court costs, the judgement against Shirley Zeidman should be about $12,000.

There is a three-year statute of limitation for conversion claims and a six-year limit for unjust enrichment claims (see Civil Practice Law and Rules §§214[3] and 213[2]). But Cohn said the statutes of limitation were extended because Jordan Zeidman was a minor when his mother deprived him of the gift.

Jeffrey Schecter of Jeffrey S. Schecter & Associates in Garden City represented Shirley Zeidman. He said his client would seek an appeal of the ruling.

Schecter questioned why Steinfeld would give Jordan Zeidman a $5,000 gift—considering “the way her grandchild was treating her daughter”—noting that his client and her son were estranged at the time of his bar mitzvah and that neither Jordan Zeidman’s mother nor his maternal grandmother were invited to the event.

“I believe that the decision is not supported by the facts,” said Schecter, who added that he sees the dispute in Zeidman as part of a larger post-matrimonial battle between his client and her ex-husband, Andrew Zeidman.

Jordan Zeidman’s mother and father had divorced in 1998. Their separation agreement required both parties to contribute pro rata to their son’s college fund, but the decision states that Shirley Zeidman has not done so.

Cohn represents Andrew Zeidman in the post-matrimonial proceedings. He said the issue is not directly related with Jordan Zeidman’s case, but he said Andrew Zeidman was involved in bringing Jordan Zeidman’s case to court.

“If your kid is having emotional problems dealing with his mother, wouldn’t you work with your son?” Cohn asked.