FREE CLINIC ON NOVEMBER 2 FOR VETERANS

 

A MILLION DOLLAR AWARD OF SANCTIONS

And this is one real Family Feud:

Shapiro v Kurtzman 2023 NY Slip Op 23326 Decided on October 5, 2023 Supreme Court, Rockland County Marx, J., Index No. 7875/2001:

Paul I. Marx, J.

The Court fervently hopes that this Decision and Order is the last activity in this decades long dispute. The sole remaining issue in this case is the amount of sanctions to be assessed against Plaintiff [FN1] for initiating and continuing this action, which the Court found constituted frivolous conduct under Court Rule § 130-1.1, and which required Defendant to incur substantial legal and associated fees to defend. Not surprisingly, the parties dispute the amount which is recoverable by Defendant under the law.

Familiarity with this long running dispute is assumed,[FN2] however, the Court mentions here [*2]that Milton B. Shapiro was Defendant Deborah Shapiro Kurtzman's father and business partner in various real estate entities, Custom Builders Corp. ("Custom"), Eagle Valley Corp. ("Eagle Valley"), Pascack Industries ("Pascack"), Rosman Center, LLC ("Rosman") and 303-9W Co., LLC ("303-9W") (collectively, the "Real Estate Entities"). A dispute arose between Shapiro and Kurtzman, which led to Kurtzman commencing an action against the members of 303-9W and Shapiro, seeking to recover her share of the profits of 303-9W. Shapiro asserted as an affirmative defense that Kurtzman was not entitled to the full amount of the distribution she sought, because she owed Shapiro monies which he and his wife Sonya Shapiro, made in the form of capital contributions to the LLC. Shapiro claimed that these advances allowed Kurtzman to have the membership interest in the LLC which she held. Thereafter, Shapiro commenced the instant action against Kurtzman, seeking to recover the amounts he allegedly loaned to their other joint businesses, contending that these infusions of capital enabled her to hold interests in those businesses ("the Loan Case"). Kurtzman then filed a second action against Shapiro in 2002, in connection with Rosman, and a third action against him in 2010 in connection with their other Real Estate Entities. All four actions have concluded, except for the reservation in this action of Kurtzman's right to proceed with her fee application and request for sanctions.

The Court held that Kurtzman was entitled to sanctions because nearly ten years after the institution of this action, and after having amended the complaint twice to allege that Kurtzman owed him monies in connection with the claimed loan, Shapiro submitted an affidavit in opposition to a motion to dismiss based on statute of limitations, attesting that the loan had not, in fact, become due.

On August 10, 2021, the Court found that

Shapiro engaged in frivolous conduct by commencing and prosecuting the action sub judice. That conduct was clearly frivolous as defined by 22 NYCRR § 130-1.1, because it was (1) without any reasonable basis in law or fact (in fact, Shapiro defeated the predicate facts for his claim of breach), (2) could not be supported by a good faith argument for an extension, modification, or reversal of existing law and (3) [predicated] on false statements. (Decision and Order at 17-18)

The Court set the matter for a hearing. The parties subsequently agreed that the matter could be decided on updated submissions, and a briefing schedule was set. The Court held oral argument on July 7, 2022.

At oral argument, because there are no reported decisions from New York state courts addressing the specific issue raised in this case — what fees are recoverable where a party is sanctioned for frivolous conduct where some of the fees incurred were also relevant to non frivolous claims — the parties identified two decisions of the United States Supreme Court which offer guidance on the issue, Fox v Vice, 563 US 826, 840-841 [2011], and Goodyear Tire and Rubber Co v Haeger, 581 US 101 [2017]. The Court noted that there was a question as to the extent to which Goodyear modified Fox and which of the two controlled in the case at bar. July 7, 2022, Tr p. 6-7.

Shapiro argues that Kurtzman's entitlement to fees is limited because much of the legal work involved in this action was also applicable to the non-loan cases brought by Kurtzman. Shapiro contends that Kurtzman cannot recoup fees paid on non frivolous matters, or which overlapped with those which were adjudged frivolous. Kurtzman, on the other hand, argued that this is an exceptional case which justifies the Court ignoring that limitation and awarding her all of the fees incurred because all fees incurred flowed from Shapiro's frivolous conduct in asserting that Kurtzman owed him monies. Both parties focused on cases from the United States Supreme Court for support of their respective position. At the conclusion of the oral argument, the Court requested further specification from Kurtzman as to the amount of fees attributable to this case (as distinguished from the non loan cases), as follows:

Mr. Weiss, I would like you to have somebody prepare, or you prepare since you have to certify it, a further submission including only those items that are attributable solely to the loan litigation. That would be consistent with Fox versus Vice. To the extent that you [*3]think Goodyear expands that and you want to make an argument for that, you can submit a separate summary of those charges if you'd like, and then I can pick and choose those that I think are appropriate, without hopefully having to go through it line by line. Transcript July 7, 2022 P. 9.

The Court continued:

In addition, I would appreciate it if you could calculate for me interest on the amounts that you're claiming at the following dates: One, from inception; two, from the time of the application to Judge Apotheker, . . . Three, the date of the subsequent application to Justice Walsh. . . Id.

The parties submitted further briefing specifically directed to the allocation of the fees. The Court has considered the additional briefing and the parties' prior submissions, and now determines the amount of attorney's fees to award as sanctions against Shapiro for his frivolous conduct.

DISCUSSION

In the absence of New York law on the issue of fee allocation under circumstances such as those present here, the parties have referred the Court to Fox v Vice, 563 US 826, 840-841 [2011], and Goodyear Tire and Rubber Co v Haeger, 581 US 101 [2017].

In Fox v Vice, a decision authored by Justice Elena Kagan, the high court held that only the fees directly related to a frivolous claim can be awarded as a sanction. The plaintiff in Fox initially brought the action in state court, asserting state law claims and federal civil rights claims under 42 USC § 1983, based upon the defendant's alleged interference with Fox's right to seek the office of police chief in Vinton, Louisiana. The defendant moved the case to federal court based on the section 1983 claims, and discovery proceeded in federal court. When defendant moved for summary judgment at the close of discovery, Fox conceded that his federal civil rights claims had no validity. The federal court dismissed the federal civil rights claims with prejudice and remanded the case to state court to decide the remaining state law claims.

Prior to remand in Fox, the defendant moved for an award of fees pursuant to 42 USC § 1988, which allows an award of reasonable attorney's fees to a prevailing party, including a prevailing defendant, "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation." Fox, 563 US at 833. The trial court determined that the defendant was entitled to all fees incurred by him, because the claims arose out of the same transaction and were inextricably interrelated, and the parties had focused on the federal claims. Fox's state law claims had not been adjudicated; thus, they were deemed to be non-frivolous claims for purposes of the fee award. The Supreme Court framed the issue in terms of "how to allocate fees in a lawsuit having both frivolous and non-frivolous claims, because Section 1988 only allowed recovery of fees that would not have been paid but for the frivolous claims. The high court determined that "if the defendant would have incurred th[e] fees [at issue] anyway, to defend against non-frivolous claims, then a court has no basis for transferring the expense to the plaintiff." Id. at 836 (emphasis in original). Thus, the court held that "[t]he dispositive question is not whether attorney costs at all relate to a non-frivolous claim, but whether the costs would have been incurred in the absence of the frivolous allegation." Id. at 838. The court gave the example of "a defendant's attorney conduct[ing] a deposition on matters relevant to both a frivolous and a non-frivolous claim—and more, that the lawyer would have taken and committed the same time to this deposition even if the case had involved only the non-frivolous allegation." Id. at 836. Such fees would not be recoverable.

Six years later, Justice Kagan again addressed the issue of awardable sanctions in Goodyear, in connection with frivolous conduct concerning a discovery abuse which implicated a federal court's " 'inherent powers' . . . 'to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.' " Goodyear, supra at 107. The Haegers sued Goodyear Tire & Rubber Company, claiming that the Goodyear tire on the family's motorhome failed and caused it to swerve and flip over on the highway. The case was marked by several years of often contentious discovery and slow responses by Goodyear to discovery requests, which included its [*4]complete failure to provide its internal test results of the type of tire at issue. The case settled, and the attorney representing the Haegers later discovered that Goodyear had turned over its test results in another action involving the same type of tire. The test results revealed that the tire became unusually hot when a vehicle was traveling at speeds between 55 and 65 miles per hour. Goodyear admitted that it withheld the information from the Haegers in the face of their repeated requests for all testing data. As a result, the Haegers moved for sanctions against Goodyear for its discovery abuses, contending that they were entitled to an award of the attorney's fees and costs they had incurred during the underlying action. The trial court determined that Goodyear was repeatedly untruthful in its responses to the Haegers' repeated requests for the test data from early on in the case, thereby entitling them to recover all of the fees and costs they had expended throughout the litigation.

In Goodyear, the Supreme Court reiterated the but-for test established in Fox, which limits an award of fees to those fees which would not have been incurred in the absence of the frivolous allegation, and it applied the same principle to frivolous conduct. The court held that "the Haegers [could not] demonstrate that Goodyear's non-disclosure so permeated the suit as to make that misconduct a but-for cause of every subsequent legal expense . . .". 581 U.S. at 114. Notably, however, Goodyear expressed the concept that all fees incurred in "exceptional cases", such as where an action was commenced and continued in complete bad faith, could be awarded.

In exceptional cases, the but-for standard even permits a trial court to shift all of a party's fees, from either the start or some midpoint of a suit, in one fell swoop. Chambers v. NASCO offers one illustration. There, we approved such an award because literally everything the defendant did — "his entire course of conduct" throughout, and indeed preceding, the litigation — was "part of a sordid scheme" to defeat a valid claim. 501 U.S., at 51, 57, 111 S. Ct. 2123 (brackets omitted). Thus, the district court could reasonably conclude that all legal expenses in the suit "were caused ... solely by [his] fraudulent and brazenly unethical efforts." Id., at 58, 111 S. Ct. 2123. Or to flip the example: If a plaintiff initiates a case in complete bad faith, so that every cost of defense is attributable only to sanctioned behavior, the court may again make a blanket award. [Goodyear, 581 U.S. at 110].

In Chambers v NASCO, Inc., 501 U.S. 32, 45—46 [1991], which the Supreme Court referenced in Goodyear, the Court held that "a court may assess attorney's fees when a party has " 'acted in bad faith, vexatiously, wantonly, or for oppressive reasons.' " (citations omitted). As relevant here, the high court upheld the District Court's finding that the plaintiff's conduct was " 'part of [a] sordid scheme of deliberate misuse of the judicial process' designed 'to defeat NASCO's claim by harassment, repeated and endless delay, mountainous expense and waste of financial resources.' " Id. at 56-57. The court found that the trial court need not have "tailor[ed] the sanction to the particular wrong", given the extent to which Chambers' bad faith conduct so permeated the litigation "due to the frequency and severity of Chambers' abuses of the judicial system . . .". Id. at 56. "[H]is entire course of conduct throughout the lawsuit evidenced bad faith and an attempt to perpetrate a fraud on the court, and the conduct sanctionable under the Rules was intertwined within conduct that only the inherent power could address." Id. at 51. The Supreme Court found that requiring the trial court to parse out different conduct to attribute it to different rules supporting a sanction "[i]n circumstances such as these in which all of a litigant's conduct is deemed sanctionable . . . would serve only to foster extensive and needless satellite litigation . . .". Id. at 50—51. Under such circumstances, the court held that "[i]t was within the court's discretion to vindicate itself and compensate NASCO by requiring Chambers to pay for all attorney's fees." Id. at 57.

Here, Plaintiff, a lawyer, initiated this action, characterized by admittedly shifting theories of alleged liability, and continued it for over a decade, simply to defeat his daughter's entitlement to her business profits from companies jointly owned by them. When confronted with a motion to dismiss based on statute of limitations, Shapiro shifted his theory to effectively negate one of the elements of his claim—now asserting that the loan which he alleged was past due, had never [*5]come due. Shapiro's conduct fits exactly within the course of conduct in Chambers which was found to warrant a broad award of sanctions. Shapiro's conduct was undeniably in furtherance of a sordid scheme of deliberate misuse of the judicial process, undertaken with the intent to defeat Kurtzman's claim to a share of the profits from the Real Estate Entities. Shapiro knowingly engaged in harassment, dramatically changed the factual predicate underlying this action several times, though the facts were within his personal knowledge, all of which resulted in mountainous expense and a waste of financial and judicial resources. Consequently, there can be no dispute that the action was initiated and continued in bad faith. Plaintiff's course of conduct thus compels the determination that this is an exceptional case warranting an award commensurate with that conduct.

In this Decision and Order, therefore, the Court intends to make an award to Defendant to rectify the result of Plaintiff's conduct. To do otherwise would negate the intention of Rule § 130-1.1 and the Court's inherent authority to redress wrongful and pervasive litigation conduct.

The Parties' Arguments

Relying on Goodyear, Defendant argues that the instant matter is an exceptional case where all legal fees can be assessed against Plaintiff, notwithstanding that the legal services rendered also had applicability in the related joined actions. She contends that all four of the actions involved Milton Shapiro's fatally flawed attempt to collect monies allegedly owed by Kurtzman to him, either directly in this action, or indirectly via affirmative defenses seeking a setoff in the other three actions. Thus, she argues, the Court can, and should, include all fees incurred by her.

Plaintiff contends that applying the "exceptional case" rule to the instant matter to allow the fees incurred in all four actions would be errant because this action is the only one in which there was a reservation of rights with respect to counsel fees; the other three cases having resolved or settled without any such reservation. Plaintiff contends that where fees incurred in frivolous actions for legal work overlaps with non-frivolous actions, the fees from non-frivolous actions cannot be awarded. Finally, Plaintiff submits that the Notice of Motion which supported the instant application was entitled "Deborah G. Kurtzman's Notice of Motion for an Award of Attorneys' Fees in Index # 7875/2001", thus limiting the fees to which Defendant is entitled.

At the July 7, 2022, conference, the Court stated that the sanctions award will be in the instant matter only. Consequently, the Court will not award any fees incurred by Defendant in prosecuting her claims in the other three actions. However, the Court also declines to disqualify the work which overlaps predicated on the same loans at issue in this case. To be sure, it would be patently unfair for Shapiro to avoid the consequences of his meritless conduct simply because he asserted the same baseless claims in the other cases.

Shapiro's counsel has doggedly maintained that the issues before the Court arise solely from the instant case, yet he now seeks to consider the other cases to defeat a substantial portion of the fee award in this case. The Court rejects his claim that Kurtzman cannot collect any fees incurred to defend against Shapiro's affirmative defenses in the other cases because they were useful and valid defenses. The Court declines to entertain Shapiro's request to adjudicate the merits of his loan claims asserted as affirmative defenses and render an advisory opinion he believes will assist him in defeating Kurtzman's fee award. Simply put, Shapiro cannot have it both ways, simultaneously asserting that Kurtzman cannot seek to recoup the fees expended in the other cases and asserting that some of the legal work done in those cases is duplicative of the work in this case, and therefore not recoverable.

There appear to be no New York cases which address the instance of a sanctions award for one of several joined cases where the conduct in only one of the cases was held to be frivolous. The Court reiterates that the sanctions award will be in the instant matter only. However, the Court's award includes fees that may have overlapped with the other actions because only Plaintiff's conduct in this case may be considered. Therefore, the Court will not reach into the other settled actions to determine whether Plaintiff's assertion of the alleged loans made to Defendant as affirmative defenses in the other actions was not frivolous conduct as [*6]Defendant suggests. Moreover, because this is an exceptional case in the vein contemplated by Goodyear, the Court is relieved of "the grind of segregating individual expense items . . . because all fees in the litigation ... meet the applicable test: They would not have been incurred except for the misconduct." 581 US at 111.

In Posner v S Paul Posner 1976 Irrevocable Family Trust, 12 AD3d 177 [1st Dept 2004], an action brought under the Debtor Creditor Law, the appellate court indicated its tacit approval of an award of fees which were "inextricably intertwined" with other issues. Here, some of the fees incurred in the defense of this action were "inextricably intertwined" with issues in the joined cases, but in all cases, the legal work was directed at rejecting Plaintiff's bogus claim that Defendant owed him money pursuant to an overdue note. Simply stated, the fact that the legal services may have also been useful in opposing the same frivolous conduct in other actions does not render them non-compensable in this case.

Court Rule § 130-1.1(a) provides full justification for the Court's determination. It provides, in pertinent part:

The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart. (Emphasis by italics added).

The Court takes especial notice of the fact that this rule imbues the trial court with the discretion to make an award for fees which have "result[ed] from frivolous conduct" — bringing an action on a loan which had not yet come due. In this case, every fee incurred by Defendant in this action flowed directly from Plaintiff's pursuit of this baseless suit. As such, all fees incurred to defend against this suit "resulted" from the frivolous conduct and are recoverable, if reasonable.

Other Issues Presented

Relying on the plain language of Rule § 130-1.1, Defendant contends that she is entitled to the fees incurred by her, interest on the fees, and counsel fees for securing the fees associated with the action because the action has been determined to be frivolous. Plaintiff raises various roadblocks to the sanctions award, arguing that the rate charged by Kurtzman's lawyers is excessive for the locality, that Kurtzman's lawyers used block billing, that some charges were overbilled, that any claim for fees associated with appeals is barred because only the appellate court can order fees related to appeals, and that the law prohibits an award of fees incurred to prove the fees incurred by virtue of the frivolous conduct, so called "fees on fees".

Plaintiff variously asserts that: (1) Defendant is only entitled to a "reasonable amount' without specification as to what that amount might be, (2) Defendant is not entitled to interest on the monies spent because there was no demand for payment of the fees incurred, (3) the Court's prior decision which reinstated the action after it had been dismissed for Plaintiff's discovery failures conditioned on payment of $10,000 in sanctions bars any further award of fees for that portion of the case, and (4) the fees sought are excessive.

Thus, in addition to disagreeing about the amount of fees which Plaintiff is to be directed to pay to Defendant, the parties disagree about whether Defendant is entitled to the fees she incurred in securing the sanctions award, fees associated with the various appeals and interest. These issues will be addressed separately below, with prevailing case law in mind.

In Fox v Vice, supra, the Supreme Court emphasized that

the determination of fees "should not result in a second major litigation."[FN3]The fee applicant (whether a plaintiff or a defendant) must, of course, submit appropriate documentation to meet "the burden of establishing entitlement to an award." But trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time. And appellate courts must give substantial deference to these determinations, in light of "the district court's superior understanding of the litigation." We can hardly think of a sphere of judicial decision making in which appellate micromanagement has less to recommend it. 563 U.S. at 838 (internal citations omitted).

Against this backdrop and recognizing that Defendant's request for sanctions has spanned an entire decade, including two separate appeals of Supreme Court trial decisions concerning the issue of frivolity,[FN4] the Court addresses the request.

The Amount of Fees To Be Awarded

Defendant has submitted outlines and spreadsheets of the fees incurred by her, along with copies of the more recent fee statements. The spreadsheets lay out various options for the Court to consider — along with interest calculations. By contrast, Plaintiff provides no guidance to the Court as to a specific amount which she submits is fair — stating instead that she is willing to pay a reasonable amount. She leaves it to the Court to determine which entries on Defendant's counsel's fee statements should be rejected. She provides color coded annotations appended to the entries on Defendant's counsel's fee statements and asks the Court to, essentially, perform a line-by-line analysis of those entries. In doing so, Plaintiff seeks to turn the Court into the green eye shaded accountant which the highest court specifically eschewed. Indeed, each argument advanced by Plaintiff in opposition to a substantial fee award requires the Court to evaluate, on a line-by-line basis, Defendant's counsel's fee statements. The Court declines this invitation.

The Reasonableness of Defendant's Counsel's Rates

Any analysis of counsel fees begins with an examination of the reasonableness of the rate charged by counsel. Factors to be considered in such cases include the prevailing rate in the community, the difficulty or complexity of the litigation, the experience and qualifications of counsel and the tactics of the adversary.

In general, factors to be considered include "(1) the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; (2) the lawyer's experience, ability, and reputation; (3) the amount involved and benefit resulting to the client from the services; (4) the customary fee charged for similar services; (5) the contingency or certainty of compensation; (6) the results obtained; and (7) the responsibility involved." Moreover, the determination must be based upon a demonstration of the hours reasonably expended on the litigation and what is reasonable compensation for the attorney based upon the prevailing rate for similar work in the community (The determination of a reasonable attorney's fee is left to the sound [*7]discretion of the trial court RMP Cap. Corp. v. Victory Jet, LLC, 139 AD3d 836, 839—40 [2nd Dept 2016] (internal citations omitted).

Plaintiff asserts that the rates charged by Defendant's counsel were excessive, arguing that the rate charged "exceeded the rate charged by the most expensive practitioners in Rockland County at that time." Plaintiff contends that the evidence at the hearing held before Judge Apotheker demonstrated that the hourly rate charged by Defendant's attorneys exceeds that which is usual and customary for Rockland County. In support of that assertion, Plaintiff contends that retired Appellate Division Associate Justice Howard Miller testified at the hearing held before Judge Apotheker that he was not aware of any firms in Rockland County which were billing at rates equal to or higher than that billed by Kurtzman's lead attorney, David Kohane, Esq., who was billing at a rate of $550 per hour in 2013 and $450 per hour in 2008. Rather, Shapiro argues, based on the testimony of Richard Sarajian, Esq., an attorney and managing partner of a well-known Rockland County firm, that $365 per hour was the prevailing rate for complex litigation in Rockland County.

Defendant responds that Plaintiff has misrepresented Judge Miller's testimony and that the rates charged by her counsel are reasonable for the complexity of the litigation. Defendant notes that Judge Miller testified about a number of firms in the area who charged the same or more than her counsel during the relevant period.[FN5] Defendant quotes Judge Miller's testimony (on examination by Shapiro's counsel) as follows:

Q — Is there a range that you ascribe to attorneys in Rockland County who handle complex litigation?A — A range I would say of about 375 to 450 would be the range of my inquiry. (R1777).

The Court has examined the hourly rates charged by Defendant's counsel in light of all of the other factors surrounding this case, including counsel's experience, training, expertise, and reputation, as well as the time and labor required to address the various and sundry issues created by Plaintiff's frivolous conduct. Notwithstanding the arguments asserted by Shapiro, the Court concludes that the rates charged were not unreasonable and were in fact, commensurate with the complexity and prolixity of the litigation.

It must be recalled that Plaintiff was a well-known lawyer in Rockland County. It is completely understandable that Defendant sought counsel from outside of Rockland County. That counsel's rate may have varied from what Plaintiff's counsel believes was/is reasonable is not persuasive. To be sure, Defendant's counsel's dedication throughout this litigation is to be commended. Counsel have diligently and professionally navigated this litigation for many years. Thus, as a matter of discretion, the Court will not adjust the hourly rates sought by Kurtzman's counsel.

Fees for Appeal of Apotheker Order

Plaintiff rejects Defendant's request for counsel fees associated with the appeal from Judge Apotheker's decision which held Plaintiff to have engaged in frivolous conduct and subsequently awarded counsel fees to Defendant, asserting that only the appellate court can award fees associated with an appeal. Plaintiff cites the trial court's decision in Galasso Langione & Botter, LLP v Liotti, 22 Misc 3d 450 [Sup Ct, Nassau County 2008].

Defendant submits that this Court has the authority to make such an award. In support of Defendant's contention, she cites to Cinque v Schieferstein, 5 AD3d 198 [1st Dept 2004] in which the appellate division affirmed an award of counsel fees by the trial court for responding to a prior appeal.

Contrary to Plaintiff's arguments, it is the trial court which enjoys the authority to assess fees associated with appeals if those appeals emanate from conduct adjudged to be frivolous by [*8]the trial court. Aborn v Aborn, 196 AD2d 561 [2nd Dept 1993] abrogated on other grounds by McSparron v McSparron, 87 NY2d 275 [1995]. When considering a party's request for an award of fees associated with an appeal the Appellate Division in Aborn supra, held

Finally, the wife's request for counsel fees incurred in connection with the defense of this appeal is not properly before this Court. The application for an award of appellate counsel fees should be decided at the trial level, as the Appellate Division is not the appropriate forum for such a request. Aborn, 196 AD2d at 564 (citing Taft v Taft, 135 AD2d 809; Gutman v Gutman, 24 AD2d 758).

Of course, this rule is not applicable to situations where the appellate court determines that the appeal itself is frivolous. In those cases, not present here, it is the appellate court which can sanction counsel for frivolous acts.[FN6] Thus, the distinction is that the appellate court is vested with the authority to award counsel fees for frivolous conduct on the appellate level, while the trial court is vested with the authority to assess sanctions for such conduct which originates at the trial level, even if it includes fees for appeals.

To the extent that Plaintiff cites to the Galasso trial court decision for the contrary proposition, this court rejects that attempt. Galasso merely held that expenses sought must be related to the frivolous conduct to be properly before the court, and if they were related to other aspects of the action, they were not. In Galasso, the Court stated:

[t]hus, fees and expenses incurred in connection with work which culminated in the second decision are not recoverable because they were incurred in connection with other aspects of this litigation. Similarly, fees and expenses in connection with Liotti's appeal and his application for a stay were not incurred in pursuit of the dismissal of the third-party action. Galasso Langione & Botter, LLP v Liotti, 22 Misc 3d at 452 aff'd, 81 AD3d 880 [2nd Dept 2011].

The cited paragraph in the trial court decision in Galasso concludes: "In any event, if related to an appeal, such fees and expenses fall within the purview of the Appellate Division." This statement is completely unsupported and is dicta which this court will not follow. Indeed, this statement by the Galasso court appears to ignore the higher court's holding to the contrary in Aborn.

Plaintiff also relies on Condo v Condo, 68 Misc 3d 574 [Sup Ct. NY Cty 2020]. Again, this reliance is misplaced. Condo involved a request made to the trial court for fees associated with alleged frivolous appeals. There, the court properly held that fees associated with frivolous appeals are the province of the appellate court.

Here, the appeal of Judge Apotheker's Decision and Order was necessitated by Plaintiff's initiation and continuation of his frivolous claims, i.e. it emanated from Shapiro's frivolous conduct, notwithstanding that Kurtzman's counsel failed to follow proper procedure by seeking relief in her reply papers. So, too, was the appeal of Judge Walsh's errant Decision and Order which denied Defendant's motion for an adjudication of frivolity. But for Plaintiff's commencement and continuation of this matter, the hearing before Judge Apotheker and the subsequent appeals would not have been necessary. Thus, the fees incurred by Defendant for the appeal of Judge Apotheker's Decision and Order are recoverable. As such, the Court has allowed the claim for fees for that work.

The Court recognizes that at the July 7, 2022, appearance the Court indicated a disinclination to award these monies. Tr p. 7. However, upon further consideration, the Court finds an award of the fees for the Apotheker appeal to be warranted.

[*9]Fees on Fees

Plaintiff complains that Defendant is seeking to recover "fees on fees" by asking the court to award the fees incurred by her in connection with the sanctions application(s) and award. Defendant argues that such fees are appropriate under the circumstances to make her whole. Plaintiff asserts that Defendant should be deprived of the fees incurred in demonstrating Plaintiff's frivolity and in seeking to recoup the damages incurred as a result of that frivolous conduct.

This Court disagrees with Plaintiff. If Defendant is not awarded the fees incurred in demonstrating the frivolity of Shapiro's conduct and in defending against the claims, Defendant will unjustly bear the expense of Plaintiff's initiation and continuation of this meritless action. Moreover, the law is clear that a party is entitled to recover the expenses associated with proving the value and reasonableness of their fees when challenged by the opposing party. To hold otherwise would permit the erosion of that to which defendant is rightfully entitled.

In Posner v S. Posner 1976 Irrevocable Family Trust, supra, the Appellate Division, First Department, held that it was proper for a sanctioning court to include not only the fees incurred which were directly related to the sanctionable conduct, but also the associated with proving the value of the services.

Nor was it error to include in the award the fees incurred by the Estate in proving the value of its attorneys' services, i.e., a fee on a fee (cf. Senfeld v I.S.T.A. Holding Co., 235 AD2d 345, 345-346 [1997], lv denied 92 NY2d 818 [1998]; Kumble v Windsor Plaza Co., 161 AD2d 259, 261 [1990], lv denied 76 NY2d 709 [1990]). In the latter regard, we reject plaintiff's argument that Baker v Health Mgt. Sys. (98 NY2d 80 [2002]), which interpreted a statute narrower than Debtor and Creditor Law § 276-a, created a per se rule against fees on fees. Posner v S. Paul Posner 1976 Irrevocable Fam. Tr., 12 AD3d at 179.

While Plaintiff characterizes Kurtzman's request to be reimbursed for the fees incurred in proving the amount of the fees paid to defend the action, as "fees on fees", and, therefore, not recoverable, these fees are recoverable as necessary to prove her damages — including the value of the services rendered by her attorneys. Notably, in Galasso, cited by Plaintiff, the appellate division affirmed the trial court's award of counsel fees, including the fees incurred with preparation for and attendance at calendar calls and a hearing to determine the amount and reasonableness of the fees sought. Since the parties have stipulated that this Court may rely on they record adduced before Judge Apotheker, this court can award the fees associated with the hearing to establish the fees.

Interest

CPLR § 5001 provides for interest to be awarded in certain cases, as follows:

(a) Actions in which recoverable. Interest shall be recovered upon a sum awarded because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property, except that in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court's discretion.(b) Date from which computed. Interest shall be computed from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred. Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date.(c) Specifying date; computing interest. The date from which interest is to be computed shall be specified in the verdict, report or decision. If a jury is discharged without specifying the date, the court upon motion shall fix the date, except that where the date is certain and not in dispute, the date may be fixed by the clerk of the court upon affidavit. The amount of interest shall be computed by the clerk of the court, to the date the verdict [*10]was rendered or the report or decision was made, and included in the total sum awarded.

The parties disagree over whether Defendant is entitled to interest on this Court's award. Plaintiff opposes any award for interest. Plaintiff submits that "Shapiro was never asked to pay fees. It cannot be in breach for failure to pay fees until such time as the fees are approved by the Court. . . . Shapiro is not declining to pay any justly due amount, once that is determined." Shapiro Opposition p.21. Shapiro also argues that an award of sanctions is not subject to interest because it is not "breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property".

Defendant asserts that without interest on the monies expended by her, she will suffer unwarranted harm because she has lost the opportunity to use the monies expended on this litigation for other purposes unrelated to her father's frivolous conduct.

Shapiro's argument that she was never asked to pay fees, and, therefore, interest does not attach is misplaced and simply incorrect. Kurtzman has applied to several courts to have Shapiro's actions determined to be frivolous and to be reimbursed for the costs of defense.

Shapiro fails to appreciate that the language of Court Rule § 130-1.1 provides for an award of all fees resulting from the frivolous conduct, in the discretion of the trial court. Here, given that Plaintiff's conduct in filing and continuing the entire action has been determined to be frivolous, this Court construes that language to include Defendant's efforts to be made whole by including interest. It is readily apparent that if Defendant is denied interest on the sanctions award made hereunder, that she will have lost the opportunity to use her monies for other purposes. This is generally referred to as "opportunity cost". By being compelled to pay her counsel to defend a frivolous action which Plaintiff should have not brought in the first instance, Defendant could not allocate the monies she expended to other purposes. Simply stated, unless interest is awarded, Defendant would not be in the same position she would have been if Plaintiff had not engaged in frivolous conduct by filing and pursuing this action for more than ten years. Defendant should suffer no loss because of Plaintiff's misguided conduct and unsupported claims.

CPLR § 5001(b) permits the Court to select an operative date from which interest will run. As noted above, the Court requested Kurtzman's counsel to specify the amount of interest from various dates, inception of the action, the date Shapiro's affidavit revealed his frivolous conduct and the date of the application to Justice Walsh. The Court, in the exercise of discretion, holds that interest on the sanctions award shall run from the date on which Shapiro submitted his affidavit in opposition to Kurtzman's motion for summary judgment based on the statute of limitations (October 14, 2011). This date provides the most identifiable time when Shapiro's frivolous conduct became known to the Court and the parties. Awarding interest from inception of the action would grant Kurtzman interest in advance of having incurred her legal expenses. Awarding interest from the date of the application to Justice Walsh would ignore the reality of when Shapiro's conduct became evident.

The Prior Fee Award to Kurtzman

As Shapiro admits in its papers, "during the course of [this case], Kurtzman moved for sanctions, including dismissal of the case, for discovery violations", failing to respond to a demand for interrogatories and other discovery devices. Shapiro Opposition, March 1, 2022, p 18. In a Decision and Order dated July 12, 2004, the Hon. William E. Sherwood (JSC, ret.) granted dismissal. Justice Sherwood subsequently vacated the dismissal order upon a showing that Shapiro's counsel was incompetent due to Alzheimer's Disease, conditioned on Shapiro's payment of $10,000 to Kurtzman as a sanction pursuant to CPLR § 3126. The reinstatement order was affirmed by the Appellate Division in Shapiro v Kurtzman, 50 AD3d 771 [2nd Dept 2008].

Shapiro now argues that "although unclear from the vacatur order, such award of fees was for the purpose of making the non-moving party whole for her fees incurred as a result of the litigation" Id. Thus, she asserts, "any of the time attributable to the discovery/sanction motion, the motion to vacate the order of dismissal and the appeal therefrom is not compensable since a [*11]sanction was already established and paid." She continues, "[I]f the award was not compensatory, it would have been classified as a sanction and paid to the Lawyer's Fund for Client Protection." Id. p. 19.

Shapiro submits that Seaman v Wyckoff Heights Medical Center, 51 AD3d 1002 [2nd Dept 2008] prohibits this court from assessing further sanctions in connection with the dismissal and reinstatement of the action and the related appeal because the affirmance of Justice Sherwood's vacatur order is law of the case. She argues that "[t]his Court may not revise, supplement, or amend the Appellate Division's Order by imposing further or duplicative, sanctions for that same conduct merely upon a finding that sanctions could have been awarded for other reasons. Thus, to the extent there is now a request for fees for the litigation surrounding the vacatur of the dismissal order, such request is clearly out of bounds."

Shapiro's argument that the $10,000 paid to Kurtzman constituted full restitution is misplaced. Those monies were paid to Kurtzman to rectify a discovery issue created by Shapiro's counsel's disability. Those monies were not paid because of the frivolity of the conduct, but rather as partial compensation for fees incurred as a result of Shapiro's discovery failures.

However, the Court recognizes that Shapiro previously paid Kurtzman $10,000 in counsel fees as a condition of vacating the dismissal of the action. The Court also recognizes that the $10,000 sanction was attributable to discovery failures and was not predicated on the frivolity of the entire action. Thus, any sanction that this Court authorizes with respect to the dismissal order, or any legal work associated with the appeal that ensued is reflective of the additional unnecessary work performed based on the underlying case lacking merit. To ensure that there is not a duplication of sanctions however, to the extent that Kurtzman's award herein includes fees for the dismissal motion, vacatur and appeal, Shapiro is entitled to a $10,000 credit.

This is the only reasonable method for dealing with the prior discovery sanction award, lest the Court be placed in the position of having to review, like the green eye shaded accountant, all of Kurtzman's legal bills.

Fees Awarded

Defendant submits that she is entitled to $921,345.99 for fees arising solely from the instant litigation on the trial level, and $96,881.17 for the Apotheker Appeal. To these amounts, Defendant calculates interest through February 10, 2023, as requested by the Court (1) from inception of the litigation in amounts of $812,694.61 and $69,695.29 (totaling $1,900,617.06), (2) from October 14, 2011, the date Shapiro's frivolous conduct was finally exposed, in the amount of $695,321.34 and $69,695.29, (totaling $1,783,243.79), and (3) from the date the application for fees was submitted to Justice Walsh, January 12, 2018, in the amounts of $362,704.20 and $44,313.18, (totaling $1,425,244.54), respectively.

Plaintiff has voiced exception to a number of specific items claimed as excessive. In order to avoid becoming the green eye shaded accountant which the United States Supreme Court specifically cautioned courts against, the Court focuses on the specific objections raised by Plaintiff. The Court will evaluate the items specifically objected to in Plaintiff's brief without engaging in a line-by-line analysis of Defendant's fee statements.

In her "Opposition to Fee Application" dated March 1, 2022, Shapiro specifically challenges the fees sought by Kurtzman for the following:

(1) $14,007.75 for the argument of the appeal of the order which vacated the dismissal of the action. Shapiro asserts that the fees related to the appellate argument are not compensable because "it is well known that oral arguments before the Second Department, if held, are limited to five to ten minutes." Shapiro Opposition at 23. Shapiro complains that much of the time claimed for the oral argument is attributable to the fact that an attorney other than the one who did most of the appellate briefing argued it. Shapiro further asserts that the issue on this appeal was a simple one — whether Justice Sherwood erred in vacating his prior order dismissing Shapiro's action for discovery abuses when it was learned that his attorney was mentally unfit. Shapiro claims, therefore, that this duplicative effort should not be awarded, particularly because Shapiro prevailed in the appeal.

The Court disagrees. First, the suggestion that the length of oral argument before the Second Department should have any bearing on whether the fees are reasonable is ludicrous on its face. Counsel arguing an appeal must be familiar with all aspects of the case being argued and all precedent cited by both sides to be prepared for oral argument. Counsel cannot predict what issue or question of law the appellate panel may raise or where a question from the appellate panel may lead. But for Shapiro's institution and continuation of the frivolous action, none of these expenses would have been incurred. It is not unusual for a lawyer different than the one who wrote the briefs to argue an appeal. Shapiro does not get to dictate to Kurtzman or her lawyers which lawyer performs what tasks under the umbrella assassination of duplication of efforts. Nor is the fact that Shapiro prevailed on the appeal, resulting in the reinstatement of the action, a disqualifying factor. At bottom, all of the work involved sprang from Shapiro's baseless, deliberate and unrelenting efforts to defeat Kurtzman's claims.

(2) $63,030.00 for a motion for summary judgment which "led to a cross motion to preclude". Shapiro notes that both the motion and cross motion were denied. Shapiro also challenges the charges for the second motion for summary judgment which resulted in the revelation of Shapiro's frivolous conduct, for which Kurtzman was charged $37,200. Shapiro argues that charges in excess of $100,000 for two motions for summary judgment are "unreasonable, if not absurd".

Shapiro dissects the time records submitted to assail the fees sought. First, Shapiro argues that the first motion for summary judgment was denied as premature. Next, Shapiro notes that "while the interrelated overlapping issues concerning father and daughter's business relationships may have been complex, the issues that Kurtzman presented through its motions for summary judgment were not." Id. at 24. Shapiro continues, "it is respectfully submitted that while there may have been some nuances in statutes of limitations analysis, the basic analysis is simple. One must determine the accrual date of the loan and count six years." Ironically, Shapiro then argues that Plaintiff "first pleaded the note as a demand note due upon extension of credit. Later, Shapiro's position morphed to time notes (due upon a condition subsequent which occurred), and finally it morphed to a time note (due upon a condition subsequent which did not yet occur, and not due at the time of the commencement of the Loan case.") Id.

Shapiro's description of the simplicity of the case is undermined by her own admission of its metamorphosis. Far from being a simple matter, Shapiro's changing theories rendered the matter a complex one, where Kurtzman needed to address the shifting sands beneath Shapiro's claims. The Court respectfully declines Shapiro's invitation to delve into a line-by-line analysis of the fees associated with the summary judgment motions. Having embarked on this frivolous course of conduct over the span of more than a decade, Shapiro shall bear the cost incurred by Kurtzman to respond.

(3) Shapiro contends that the balance of the fees incurred "involved discovery, attendance at regularly scheduled status conferences, and strategy meetings". Id. at 22. Shapiro asserts that this time overlapped with one or more of the cases, rendering the time not compensable. The Court has already addressed the overlap of legal services and will not do so further here.

The Court has evaluated the fee statements and analyses submitted by both parties and concludes that an award of $1,018,227.16 is appropriate. This is the amount that the Court finds to have been reasonably incurred by Kurtzman to defend against Plaintiff's frivolous conduct and ensuing damages. This amount consists of the litigation expenses incurred of $921,345.99 plus the appellate expenses associated with the Apotheker appeal, $96,881.17. Interest shall be assessed as set forth above.

Summary

It is hereby:

ORDERED that Defendant Deborah Shapiro Kurtzman shall have Judgment against Plaintiff, Susan Hito Shapiro as Executor of the Estate of Milton B. Shapiro, in the sum of [*12]$1,008,227.16 [FN7] as and for fees incurred as a result of Plaintiff's frivolous conduct in initiating and continuing this action, and it is further

ORDERED that said amount shall bear interest at the statutory rate of 9% per annum from October 14, 2011, to be calculated by the Clerk of the Court together with costs and disbursements as provided by law.

Dated: October 5, 2023
White Plains, New York
HON. PAUL I. MARX, J.S.C. Footnotes

Footnote 1: The action was instituted by Milton B. Shapiro, who died during its pendency. Shapiro was substituted by his co-executors, Susan Hito Shapiro, his daughter, and Benjamin Ostrer, Esq. Mr. Ostrer died after the case was remitted to this Court by the Appellate Division to resolve the sanctions issue. The parties initially asserted that the action was stayed until a substitute executor was appointed by the Surrogate's Court. This Court determined that Milton Shapiro's Will provided for a single executor to act on his/her/their own in the event of the death or disability of the co-executor. Thus, the Court proceeds to resolve the issue.

Footnote 2: If the reader is not familiar with the underlying saga, this Court's Decision and Order dated August 10, 2021, provides more of the history of the litigation.

Footnote 3: Given the advanced age of this litigation, and the extensive efforts that Kurtzman has gone to in order to recover her fees and the equally extensive efforts to which Shapiro has gone to deprive her of those fees, it appears that the Fox Court was prescient.

Footnote 4: An appeal followed the decisions of Judge Charles Apotheker dated February 21, 2012, and February 11, 2014, which determined Plaintiff's action to be frivolous and granted sanctions to Defendant in the amount of $626,566.37 after a lengthy hearing. The Appellate Division reversed both decisions and vacated the award of counsel fees primarily because the request for sanctions came in Defendant's reply papers. See Shapiro v Kurtzman, 149 AD3d 1117 [2nd Dept 2017]. An appeal also followed the decision of Justice Thomas E. Walsh II, dated February 14, 2019, which denied Defendant's motion seeking a determination that the action was frivolous. The Appellate Division reversed Justice Walsh and remitted the matter to Rockland County Supreme Court for determination of the motion. See Shapiro v Kurtzman, 189 AD3d 901 [2nd Dept 2020].

Footnote 5: Judge Miller testified that several firms charged $500 per hour at the time. [Jacobowitz & Gubits (R1760), Don Tracy (R1777), John Edwards (R1777), Bruce Rogers (R1781), Robert Fenster (R1782), Harvey Barr (R1782), and DelBello Weingarten ($550 per hour) (R1783)].

Footnote 6: "Under part 130 of the Rules, frivolous appellate litigation may be found to exist where the appellate arguments raised are completely without merit in law or fact, where the appeal is undertaken primarily to delay or prolong the litigation or to harass or maliciously injure another, or where the party or attorney asserts material factual statements that are false (22 NYCRR 130-1.1 [c]; see Matter of Wecker v D'Ambrosio, 6 AD3d 452 [2004]; Levy v Carol Mgt. Corp., 260 AD2d 27 [1999])." Yenom Corp. v 155 Wooster St., Inc., 33 AD3d 67, 70 [1st Dept 2006].

Footnote 7: $921,345.99 + $96,881.17-$10,000=$1,008,227.16 

FREE LAW CLINIC TODAY - I WILL BE THERE

 

A "VERY CONTESTED" POST DIVORCE PROCEEDING ON CHANGE OF CUSTODY

 

KW v. WB, 2023 NY Slip Op 51095 - West. Co. Supreme Court 2023:

"ANAR RATHOD PATEL, J.

The Court presided over an eleven (11)-day non-jury trial in this matter on the following dates: April 5, 7, 10, 11, 12, 17, 18, 19, 20, 27, and 28, 2023, as to the relief sought in Defendant's Motion Sequence Numbers 20, 24, and 27, seeking, inter alia, sole legal and physical custody of the parties' children, the right to travel with the children without the consent of Plaintiff and approval of the Court, and that Plaintiff be held in contempt of Court for violation of the parties' stipulation as to custody and access. Plaintiff was represented by [Redacted], Esq. and [Redacted], Esq. of the law firm of [Redacted]^[1]; Defendant was represented by [Redacted], Esq.; the Children were represented by Attorney for the Children [Redacted], Esq.

The Court bifurcated the trial as to the issues of custody, access, international travel, and contempt, and the financial issues related to any modification of child support and counsel fees. The Court refers to its prior Decision and Order on Motion Sequence Number 24 regarding international travel, rendered from the bench and on the record in open court on June 2, 2023, whereby the Court granted Defendant's motion seeking modification of the parties' March 2019 Stipulation, and Revised Judgment of Divorce. See NYSCEF Doc. No. 445. Accordingly, this Decision After Trial addresses Motion Sequence Numbers 20 and 27 as related to the issues of custody and access.

Parties filed the consolidated trial transcripts ("Tr.") on May 30, 2023, and post-trial memoranda on July 6 and 7, 2023. See NYSCEF Doc. Nos. 388, 436-428. After considering the procedural history of this case, the papers in support of and in opposition to Motion Sequence Numbers 20 and 27 (see NYSECF Doc. Nos. 3-48, 177-199, 206-213, 221, 223-228), the testimony of the parties in addition to the twelve (12) witnesses at trial, the documents and audio recordings admitted into evidence, and the post-trial submissions, the Court hereby makes the following findings of fact and reaches the following conclusions of law.

Relevant Factual and Procedural History

The parties were married on June 3, 2015, and are the parents of O.B., born [Redacted], 2013, and A.B., born [Redacted], 2015 (collectively, the "Children"). Plaintiff commenced a divorce proceeding by the filing of a Summons and Complaint on July 14, 2017. Pursuant to the parties' "Stipulation and Order Regarding Custody, Access and Child Support," dated March 22, 2019 ("March 2019 Stipulation"), the parties agreed that Plaintiff Mother would have custody of the Children, who would reside primarily with Plaintiff. Both parties agreed to consult each other as to decisions on major issues affecting the Children's health, education, religion, and general welfare, with Plaintiff retaining final decision-making authority. Ct. Ex. 1 (March 2019 Stipulation) at 4. The parties further recognized and agreed that their Children shall be afforded certain rights including, among others: "the right not to be told details to the underlying litigation between the parties"; "the right not to have a parent denigrate or otherwise engage in conduct or words intended to cause the child(ren) to hold the other party in lower esteem"; "the right to be free of being told untruths to or about the other party"; and "the right to be insulated from the conflicts and tactics by and between the parties." Id. at 9. The parties further agreed to a graduated access schedule as to Defendant whereby, commencing July 1, 2019, Defendant would enjoy access time with the Children on alternating weekends, Wednesday overnights, and alternating Monday night dinners. Id. at 11.

The parties were divorced by Revised Judgment of Divorce dated April 24, 2019, which incorporated but did not merge the March 2019 Stipulation. Six (6) different judges have presided over this case during the past approximately five (5) years, including this Court (Patel, J.), and—to date—thirty-five (35) motions have been filed.

May 26, 2019 Child Protective Services ("CPS") Report

On May 26, 2019, approximately one month after the Revised Judgment of Divorce was entered, Plaintiff filed a report with CPS alleging that (a) Defendant failed to properly supervise the Children during the weekend of May 17, 2019, and (b) Defendant scrubs O.B.'s penis too roughly when bathing him resulting in O.B. having contracted four (4) penis infections while in Defendant's care. Def. Ex. C (5/26/19 Office of Children and Family Services ("OCFS") Case No. 27287517). At the time of this report, O.B. was five years old and A.B. was three years old. The Westchester County Department of Social Services ("DSS") assigned the investigation to case worker [Redacted], who met in person with Plaintiff on May 28, 2019, at which time the case notes state the following:

• "Mother stated that there was a history of [domestic violence ("DV")] which is part of the reason for the divorce"

• "Mother stated the children stated that the father was sleeping, and they walked out of the house and a neighbor brought them inside. Mother stated that she didn't know what to do, so she had a conversation with her therapist and the therapist reported that it is for her to call CPS"

• "Mother stated that in addition to that, the children visit with the father for weekend visits [sic] and it appears that [O.B.] has infection or irritation in the penis"

• "Mother stated her daughter is reported to be using the bathroom too much so took [sic] [A.B.] to urologist and [sic] they found her to be medically clear. Mother stated that all the medical professionals" had told her that "it could be just stress related that she [sic] is using the bathroom too much and the routine of her visiting her dad"

• "In addition, mother stated that father has mental health issues that father is reported to be diagnosed with bipolar"

Id. The day before making the report to CPS, Plaintiff brought O.B. to [Redacted] complaining of "painful penis." Def. Ex. DD ([Redacted] Medical Records, O.B.). O.B. was seen by [Redacted], D.O. The visit history notes state, "Mom first noticed this 3 days ago. It was the day she picked him up from his dad's house, and wondered if dad washed him too [sic] hard in the bath." The [Redacted] records indicate that O.B. had a history of penis infections starting in/around January 2018. By e-mail dated May 30, 2019, Plaintiff provided her consent to [Redacted] personnel to speak with "social services" about the Children's health. Id.

Additionally, prior to making the report to CPS, Plaintiff brought A.B. to [Redacted] on May 8, 2019, complaining of "frequent urination." Def. Ex. DE ([Redacted] Medical Records, A.B.). A.B. was seen by [Redacted], D.O. The visit history notes state, "[p]atient has been having episodes of frequent urination in school and at home for the last few weeks mother reports she does not think the frequent urination is behavioral." Id. The records further indicate that [Redacted] "would not treat for a UTI [Urinary Tract Infection] at this point." Id. Thereafter, on May 20, 2019, Plaintiff brought A.B. to [Redacted], P.C. The reason for the appointment was "urinary frequency" and the history of present illness is described as "about two weeks ago she developed frequency and urgency (after being with father over a weekend)." Id. The urinalysis test did not show evidence of a urinary tract infection.

The OCFS file indicates that, during the course of the investigation, CPS case workers met with the parties (separately) multiple times, the Children, the daycare provider for A.B. ([Redacted]), the [Redacted] treating pediatrician ([Redacted]), the nurse for the Children's pediatrician ([Redacted]), Defendant's therapist ([Redacted]), and the [Redacted] Police Department; CPS also reviewed a letter from Plaintiff's therapist ([Redacted]). Regarding the allegation of failure to supervise, the case notes indicate that Defendant denied that he fell asleep, stated that he and the Children were "getting ready to go outside to ride a bike," but that he was using the bathroom and the Children went outside ahead of him. Id. He informed the case worker that he looked at the lock and, realizing that O.B. was tall enough to reach the lock, he went to the store to purchase a lock with a chain and a child safety lock, installed the locks, and also installed additional child safety locks throughout his home—as verified by the case worker. Id. Regarding O.B.'s penis infections, the case notes indicate that Defendant informed the case worker that he had communicated previously with O.B.'s pediatrician, who provided a soap and cream for O.B. Id. Defendant denied the history of DV and of mental illness. Id.

The CPS investigation was completed on July 18, 2019. By letter dated August 7, 2019 from OCFS to Defendant, Plaintiff's report was determined to be "unfounded," meaning that "CPS did not find believable proof (credible evidence) that a child was abused or maltreated." Def. Ex. B1 (8/7/19 OCFS Letter).

September 10, 2019 CPS Report

On September 10, 2019, [Redacted] filed a report with CPS to report the allegation that Defendant "put his fingers in his son, [O.B.'s] buttocks. The child asked his father not to do this, but father continued." Def. Ex. G (9/10/19 OCFS Case No. 2735817). The [Redacted] records for this visit indicate that Plaintiff brought O.B. for treatment on September 10, and Plaintiff stated to [Redacted] in private the following:

• "children were returned from school after a weekend with the children's father"

• "[O.B.] told mom, that according to mom, that `Pappa had put his finger in my butt for a long time.'"

• "mom states that, one time in the past, [O.B.] would not sit in the bath after a weekend with dad though he did not tell mom why"

• "mom states that [O.B.] has had penis infections in the past that mom states that she felt were due to dad scrubbing too hard on the penis area"

• "mom states that dad was sexually abused by dad's mom as a child"

Def. Ex. DD. The records indicate that [Redacted], a mandatory reporter, reported the incident to CPS and was advised that CPS would "look into the accusation in conjunction with the concurrent custody battle going on." Id.

The call narrative included in the OCFS file states that Plaintiff brought O.B. to [Redacted] on September 10, and he was seen by [Redacted]. "The child told mother the above information and mother reported this today to the doctor." Def. Ex. G. On the same day, the case worker met with Plaintiff who stated that, on the prior day, she was giving O.B. a bath and observed that he could not sit still in the bathtub, and sat on his side. According to Plaintiff, "[O.B.] disclosed that his father has been inserting his fingers in his buttocks." Id. Plaintiff indicated that she would file a police report with the [Redacted] Police Department in order to initiate a referral to the Child Advocacy Center (CAC). The narrative further states that until the forensic interview of O.B. is completed, "the visits with the father will discontinue." Id.

On September 11, Plaintiff filed an incident report with the [Redacted] Police Department. Def. Ex. D1 ([Redacted] Police Department Records). The investigation report states that Plaintiff "believes her ex-husband, [Redacted], might have sexually abused their 5 year old son [O.B.]." Id.

On September 13, CAC conducted an interview of O.B. and, per the OCFS Investigation Conclusion Narrative, O.B. did not make any disclosure and stated that "my mother told me to say [sic] that" and "Dad did not really poke my butt." Def. Ex. DD. The [Redacted] Police Department Investigative Report states that, "Throughout the interview [O.B.] changed his story a few times from his mom told him to say certain things to she didn't tell him." Def. Ex. D1. Plaintiff was thereafter informed by the police detective that criminal charges against Defendant would not be pursued. Id.

September 23, 2019 CPS Report

On September 23, 2019, [Redacted], Owner of [Redacted] Daycare, filed a report with CPS to report the allegation that Defendant was sexually abusing the parties' daughter, A.B. Def. Ex. G. The September 20 and 23 CPS reports were consolidated into one investigation. The call narrative included in the OCFS file states that the source—[Redacted]—indicated that Defendant told her on September 20 that "mother told him that A.B. stated: `papa put his fingers in my vagina'." Id. Defendant Father told [Redacted] that A.B. revealed this information to Plaintiff Mother on September 18, and Defendant then told [Redacted] that should A.B. repeat such statements that she should let Defendant know so that he could alert his attorney. [Redacted] further reported that A.B. was "drawing boobies," and when asked about the drawing, A.B. stated "my mommy told me to draw boobies." Id.

On October 2, CAC conducted a forensic interview of A.B., at which no disclosure of sexual abuse was made. Accordingly, Plaintiff was informed that the allegation of sexual abuse as to A.B. was unsubstantiated.

Although not directly relevant to the allegations underlying the September 23 CPS Report, the case notes reference an incident whereby, on October 2, Defendant reported to the case worker that A.B. told him that a boy at daycare "put a finger in her vagina," and that Defendant stated, "you see how my ex-wife is manipulating my children and putting things in their mind." Id. The next day, October 3, [Redacted] reported to the case worker that Defendant came to the daycare that day and "loudly he blamed the Day Care for having a boy who is touching his daughter [A.B.'s] vagina." Id. [Redacted] further stated that because Defendant is behind on daycare payments and is late to pick A.B., the child will not be attending after next week. Following this interaction, on October 4, Plaintiff called the case worker, referenced the incident from the prior day involving Defendant and [Redacted], and said "I'm afraid to send my children this weekend with him." Id.

The OCFS file indicates that, during the course of the investigation, CPS case workers met with the parties (separately) multiple times, the Children, [Redacted], and [Redacted]. The case notes indicate, in addition to the aforementioned, that Plaintiff reported that Defendant was violent and "diagnosed with bipolar disorder." Id.

The investigation of the September reports was completed on October 21, 2019. By letter dated November 22, 2019 from OCFS to Defendant, the reports were determined to be "unfounded," meaning that "CPS did not find believable proof (credible evidence) that a child was abused or maltreated." See Ct. Ex. 3 (Mot. Seq. No. 20) at Ex. E (11/22/19 OCFS Letter).

In response to the allegations made by Plaintiff against Defendant, Defendant filed a criminal complaint against Plaintiff on November 20, 2019, with the [Redacted] Police Department alleging that Plaintiff made false allegations against him including "making false reports to CPS alleging abuse by him towards their children." Def. I2 ([Redacted] Police Department Records). He later filed a civil suit on December 20, 2019, alleging that Plaintiff falsely accused him of sexually abusing their children and coaching the Children to further her accusations. Ct. Ex. 24 (12/20/19 Civil Suit).

The Parties' Relevant Post-Judgment Motions

Against the backdrop of the CPS investigations, on October 4, 2019, Plaintiff prevented Defendant from exercising his weekend access with the Children. Def. Ex. B (12/28/22 Revised Notice to Admit). On October 7, Defendant filed an emergency Order to Show Cause seeking, inter alia, make-up parenting time from the missed October 4-7 weekend. Ct. Ex. 29 (10/7/19 Mot. Seq. No. 11). On October 8, 2019, Plaintiff filed an order to show cause seeking, inter alia, that the Court enjoin Defendant from having unsupervised access with the Children, direct an updated forensic evaluation, and appoint an Attorney for the Children. Ct. Ex. 30 (10/8/19 Mot. Seq. No. 12). The Court granted Plaintiff's application to enjoin Defendant from having unsupervised visits with the Children, and directed that Supervised Visitation Experts (SVE) supervise vitiation ("October 8 Order"). On October 22, Defendant moved by cross-motion seeking, inter alia, to vacate the Court's prior order directing supervised access and granting Defendant temporary legal and physical custody of the Children. Ct. Ex. 31 (10/22/19 Mot. Seq. No. 13).

Defendant did not have access with the Children from October 4 until November 2—the date of the first supervised visit. Ct. Ex.16 (11/24/19 SVE Report). The observation narrative of the November 2 visit states, "Children ran to their father and greeted him warmly [with] lots of hugs and kisses," and the Children "did not want to leave." Id. at 4. O.B. asked repeatedly "Are you our dad?" and A.B. asked "Are you our real dad?" Id. The SVE Report indicates that additional supervised visits occurred on November 6, 9, 16, 20, and 23, 2019, and without incident.

On November 15, Plaintiff moved by order to show cause seeking, inter alia, to quash subpoenas issued by Defendant's counsel to CAC and CPS regarding the May and September 2019 investigations. Ct. Ex. 32 (11/15/19 Mot. Seq. No. 15).

On November 27, the parties appeared before the Hon. Lewis J. Lubell, at which time Defendant consented—pursuant to Plaintiff's Motion Sequence Number 12—to a limited mental health evaluation conducted by [Redacted] to be completed on an expedited basis by December 20. See Ct. Ex. 3 (Mot. Seq. No. 20) at Ex. J (11/27/19 Tr.). On December 19—after [Redacted] submitted his report to the Court, Plaintiff filed an order to show cause seeking to stay or otherwise enjoin the mental health evaluation. Ct. Ex. 33 (12/19/19 Mot. Seq. No. 16). On December 24, Defendant filed an emergency order to show cause seeking a modification of the October 8 Order to reinstate unsupervised access of Defendant commencing during the Christmas holiday. Ct. Ex. 34 (12/24/19 Mot. Seq. No. 17). Defendant further sought an order directing the Westchester County Attorney and CPS to provide complete records of the May and September 2019 CPS investigations to the Court for in camera review. Id. On December 24, pursuant to the Court's recommendation, Defendant arranged for his father and sister, who traveled from Europe, to supervise the visits; Plaintiff arranged for the Children's babysitter to also supervise the visits.

The parties appeared before Judge Lubell on January 14, 2020, at which time the Court terminated [Redacted]'s appointment, terminated the October 8 Order regarding supervised visitation, and implemented a temporary, limited access schedule whereby Defendant would have one overnight with the Children every two weeks, Wednesday evening access, and every other Saturday and Sunday access with the Children ("January 14 Order"). See Ct. Ex. 35 (1/28/20 Mot. Seq. No. 18) at 4; see also Ct. Ex. 3 (Mot. Seq. No. 20) at Ex. M (1/14/20 Tr.).

On January 27, Defendant filed an order to show cause seeking to hold Plaintiff in contempt for violation of the January 14 Order and for an order appointing [Redacted] as neutral forensic evaluator to conduct an evaluation of both parties. Ct. Ex. 35 (1/28/20 Mot. Seq. No. 18). Defendant's Affidavit details his access time with the Children from the period of October 8, 2019 (when Plaintiff filed Mot. Seq. No. 12) through January 15, 2020, and concludes that "I have only been able to enjoy my entire designated access time with our children five (5) times of the twenty-nine (29) visits." Id. at 7.

In February 2020, the case was re-assigned to the Hon. David F. Everett. At the February 13 appearance, through her counsel, Plaintiff maintained that Defendant was sexually abused by his mother from the time he was eight until fourteen (14) years old, and said abuse "might have risen to the level of intercourse." Ct. Ex. 3 (Mot. Seq. No. 20) at Ex. Q (2/13/20 Tr. at 9:21-10:4). Plaintiff's counsel described the alleged incidents that prompted the CPS investigations and stated, "On none of these occasions did my client call CPS or try to have the visits changed or curtail his visits." Id. at 11:13-15.

On or about March 9, the Court (Everett, J.) appointed [Redacted] to conduct an expedited evaluation of Defendant only. [Redacted] submitted the "Forensic Mental Health Evaluation" on June 9 ("[Redacted] Report"). Ct. Ex. 17 (6/9/20 [Redacted] Report). On June 26, 2020, Defendant's full access, as per the March 2019 Stipulation, was restored. See Ct. Ex. 3 (Mot. Seq. No. 20) at 17.

On September 11, Defendant filed the first of the three instant motions, Motion Sequence Number 20, to modify custody and child support. Ct. Ex. 3. On October 13, Plaintiff moved by order to show cause seeking to find Defendant in default for failure to pay child support and an award of attorney's fees. NYSCEF Doc. No. 70 (11/6/20 Mot. Seq. No. 21). The Court granted Plaintiff's application for attorney's fees in light of the anticipated costs and fees associated with Defendant's application to modify the custody provisions of the March 2019 Stipulation, and referred the issue of support arrears to a previously ordered custody hearing. NYSCEF Doc. No. 101 (2/3/21 Decision and Order).

On October 28, 2020, the Court appointed [Redacted], Esq. as Attorney for the Children ("AFC"). NYSCEF Doc. No. 68 (10/28/20 Order). On November 20, 2020, the Court appointed [Redacted] as neutral forensic evaluator to conduct an evaluation of the parties and the Children as to issues of custody, visitation/access, decision making, and interference with parental rights. NYSCEF Doc. No. 73 (11/20/20 Order). For reasons unknown to this Court, on January 20, 2021, the Court appointed [Redacted] to conduct an evaluation of the parties and the Children as to issues of custody/access, visitation, decision making, and interference with parental rights. NYSCEF Doc. No. 97 (1/20/21 Order). NYSCEF Doc. No. 97 (1/20/21 Order). [Redacted] submitted the "Child Custody Evaluation of [O.B.] and [A.B.]" on December 8, 2021 ("[Redacted] Report"). Ct. Ex. 18 (12/8/21 [Redacted] Report).

On August 4, 2021, Defendant filed the second instant motion, Motion Sequence Number 24, seeking the right to travel with the Children during his scheduled access time without consent of Plaintiff and the approval of the Court. Ct. Ex. 7 (8/4/21 Mot. Seq. No. 24). Plaintiff moved by cross-motion seeking, inter alia, to dismiss Defendant's application. Ct. Ex. 8 (8/23/21 Mot. Seq. No. 25). By Decision and Order (Loehr, J.) dated March 29, 2022, Plaintiff's cross-motion was denied without prejudice and the status of the pending motions was to be addressed at a pre-hearing conference before the Court on April 25, 2022. Ct. Ex. 10 (3/29/22 Decision and Order.).

On September 2, 2022, Defendant filed the third instant motion seeking, inter alia, to enforce the parties' March 2019 Stipulation by directing that Plaintiff cease and desist from disparaging Defendant to the parties' Children and granting Defendant sole legal and physical custody of the Children. Ct. Ex. 11 (9/2/22 Mot. Seq. 27).

The Forensic Reports

During the life of this matter, four forensic reports have been conducted, of which two were conducted post-Judgment: "Child Custody Evaluation" by [Redacted] (November 5, 2017) ("[Redacted] 2017 Report"), "Updated Child Custody Evaluation" by [Redacted] (March 7, 2019) ("[Redacted] 2019 Report"), the [Redacted] Report, and the [Redacted] Report. The Court admitted each of the reports into evidence at trial and neither party called the evaluators to testify at trial, nor did the parties challenge any of the reports by an independent forensic expert at trial. See Def. Exs. 26 ([Redacted] 2017 Report), 27 ([Redacted] 2019 Report), 17 ([Redacted] Report), and 18 ([Redacted] Report). While the Court accords some weight to the opinion and recommendations of the forensic reports, "they are not determinative and do not usurp the judgment of the trial judge." Koslowski v. Mangialino, 36 AD3d 916, 917, 830 N.Y.S. 2d 557 (2d Dept. 2007).

The limited scope of the [Redacted] Report was to assess whether Defendant suffered from a mental illness, needed to be in treatment, and posed a danger to himself or to the Children. Ct. Ex. 17 (6/9/20 [Redacted] Report) at 2. [Redacted] conducted sixteen (16) clinical interviews of Defendant, as well as psychological testing of Defendant and reviewed self-report questionnaires. He conducted seven (7) collateral interviews of Plaintiff, and twenty (20) collateral interviews of other individual sources. [Redacted] also reviewed voluminous documents provided by the parties, as well as the two prior forensic reports by [Redacted].

The [Redacted] Report concluded that there is no evidence to suggest that Defendant has suffered or currently suffers from a mental disorder with psychotic features:

"though this evaluation coupled with psychological testing does not suggest that he suffers from a major depressive episode at present His current providers do not perceive any evidence to suggest that he suffers from significant depression at present and do not see any indications that [Redacted] is at risk of hurting himself or others at present. Furthermore, the undersigned is not aware of any evidence corroborating the mother's allegations of a more severe mental disorder (e.g., bipolar illness with psychotic features) In sum, there is no collateral evidence by any of the father's past or current providers ([Redacted], [Redacted], [Redacted], [Redacted]) suggesting that the father presents with a severe mental disorder or psychotic features." Id. at 332.

The [Redacted] Report does not identify any "red flags" suggesting that Defendant poses a danger to the Children as alleged by Plaintiff:

"The mother's concerns about the safety of the children, while present all along, have been accentuated following the marital separation. It would appear that the father's parental behavior has at times been less than optimal (e.g., allowing the children to ride their bikes into the streets unsupervised). However, these and other allegations (inappropriate sexual behavior with the children) have been investigated at least twice by CPS. Both of these investigations determined that the charges were unfounded. The undersigned's contact with important collateral sources (the children's pediatricians, who were contacted by CPS workers, Supervised Visitation Experts, school officials) do not raise any significant red flags regarding the father posing any kind of danger to the children." Id. at 33.

The [Redacted] Report also addressed the allegations raised in the May and September 2019 CPS investigations:

"[Redacted] again raised the same allegations that the father inappropriately touched [O.B.] in his anus and therefore posed a danger to his son. As noted, these allegations were previously investigated and dismissed by CPS. [Redacted] argues that CPS did not conduct a sufficiently thorough investigation. This may be so, but [Redacted] would not provide consent for the undersigned to speak to CPS workers to verify and/or shed more light on her concerns. [Redacted]'s refusal to let the undersigned contact CPS workers is not typical of how a concerned parent would respond if there were imminent danger, raising question marks about her overall reliability on this issue. Lastly, by [Redacted]'s own account, following the lifting of the supervision of the father's visits with the children, there have not been any significant incidents suggesting that [Redacted] poses a significant danger to the children (neither physical harm nor egregious neglect)." Id. at 34.

[Redacted] conducted four (4) examinations of Plaintiff, eight (8) examinations of Defendant, and two (2) examinations of the Children—once with their mother and once with their father. See Ct. Ex. 18 (12/8/21 [Redacted] Report). He conducted psychological testing of the parents and reviewed Child Behavior Checklists completed by each parent as to each child. [Redacted] conducted eleven (11) collateral interviews, and reviewed records including, but not limited to, the two prior forensic reports by [Redacted], the [Redacted] Report, documents provided by both parties such as legal documents, notes from the CPS investigations, letters from providers, school records, and pediatric records.

[Redacted] opines on the CPS investigations as follows:

"[Redacted] seems disingenuous when claiming CPS investigations were instigated by others such as pediatricians when in fact [Redacted] was always the driving engine Without even a green card at the time when any of these allegations arose, [Redacted] feared severe legal consequences and possible deportation if the allegations of mistreatment of his children including child sexual abuse stuck." Id. at 51.

"The allegations against him, which are profoundly disturbing and instigated directly or indirectly by [Redacted], appear contrived, grossly exaggerated, or calculated to gain leverage over [Redacted] or to do him harm in questioning his parental ability or rights." Id. at 56.

The [Redacted] Report specifically addresses the allegations made by Plaintiff regarding the alleged four penis infections experienced by O.B.:

"The matter of alleged penis infections for [O.B.] are still mentioned by the mother. Such allegations persist in promoting a disservice to the integrity of [Redacted]. The pediatric records reviewed by this evaluator only report the claim from the mother of penis infections. There is mention that [Redacted]'s penis had redness, which, according to [Redacted], may have been from the method in which [Redacted] cleaned the penis of his son during bathing. Such a conclusion makes no sense if there were actually an infection, which always implies a sexually transmitted disease in young children, which lab reports would document as to the specific nature of the infection. None of this happened. Therefore, the reasonable conclusion is that no examining physician ever thought this was necessary to investigate medically. Had there been a valid concern of a sexually transmitted disease with the father as a suspect, [Redacted] would have been denied access to his children and likely arrested and incarcerated. None of this happened because the allegation is without merit." Id. at 51.

The [Redacted] Report concludes that "both parents were observed by this evaluator to be wonderful caregivers to the children In spite of the acrimonious relationship between [Redacted] and [Redacted] and their high level of mutual mistrust, each parent recognizes the strengths of the other in regard to care of the children." Id. at 5. The [Redacted] Report further concludes, "Both parents are fit caretakers, but [Redacted] has shirked her responsibility as the primary custodial parent with the obligation of supporting [Redacted]'s role except when it suits her needs." Id. at 56.

The [Redacted] Report recommends that it is in the best interests of the Children for Defendant to have equal, or near equal, access time with the Children and that the parents have joint decision-making authority. The Report states, "If the mother cannot honor the responsibility of protecting the father's access to the children free of the threat of future reckless allegations to authorities, then custody should be reversed to avoid future harm to the father and his reputation as well as the risk of parental alienation." Id.

Pre-Trial Proceedings

This matter was reassigned to this Court (Patel, J.) in October 2022. The parties appeared before this Court on October 13, at which time the trial was scheduled to commence on January 30, 2023. NYSCEF Doc. No. 229 (10/13/22 Court Notice). On January 13, 2023, counsel for Defendant informed the Court that she was unable to comply with the Court's Part Rules regarding pre-trial submissions despite efforts to meet and confer with counsel for Plaintiff; she informed the Court that she had not received a response from her outreach to counsel for Plaintiff since approximately November 21, 2022. NYSCEF Doc. 244 (1/13/23 [Redacted] Letter). The Court directed all parties to appear on January 26, on which date the Court addressed the issues raised in the January 13 Letter, among others, and issued further directives as to pre-trial submissions. NYSCEF Doc. Nos. 247 (1/19/23 Court Notice); 309 (1/26/23 Tr.). The Court also ruled on Plaintiff's motions in limine (Mot. Seq. No. 28), see NYSCEF Doc. Nos. 251-252. Among other rulings, the Court denied Plaintiff's application to bar the introduction of evidence concerning the CPS/OCFS May and September 2019 CPS investigations, and directed that said records be provided to the Court for in camera review.

Parties appeared for trial on January 30, at which time Plaintiff moved to discharge her attorney, which application was granted. See NYSCEF Doc. No. 274 (1/20/23 Tr.); see also NYSCEF Doc. Nos. 261-262, 269 (Mot. Seq. No. 29). The Court adjourned the trial to commence on April 5, 2023, to allow Plaintiff sufficient time to retain new counsel. The Court also conferenced with the parties as to the collective application of Defendant and the AFC to amend the existing parenting schedule to afford Defendant greater access time with the Children. The Court determined that a temporary amendment to the parenting schedule pending trial that allows for equal access to both parents is in the best interests of the Children. The Court issued an Order Regarding Interim Parenting Schedule on January 31, 2023, whereby the Court set forth an interim parenting schedule and further ordered that neither parent shall disparage the other parent so as to prejudice the Children against the other parent and that the parties shall comply with Paragraph 11 of the March 2019 Stipulation regarding certain enumerated rights that shall be afforded to their Children. NYSCEF Doc. No. 270 (1/31/23 Order).

For completeness, the Court refers to its Decision and Order as to Motion Sequence Number 30, rendered from the bench and on the record in open court on March 10, 2023, whereby the Court denied the Motion to Quash a Subpoena brought by Non-Party Westchester County Department of Social Services ("DSS"). NYSCEF Doc. No. 353 (3/10/23 Tr.). The Court directed DSS to produce the full and complete case records investigating the allegations of child neglect as to the Children to the Court for in camera review. Id.; see also NYSCEF Doc. No. 346 (3/28/23 Protective Order).

The Court further refers to its Decision and Order as to Motion Sequence Number 32, rendered from the bench and on the record in open court on June 22, 2023, whereby the Court denied the Motion to Quash a Subpoena brought by Non-Party New York State Office of Children and Family Services (OCFS). NYSCEF Doc. No. 445 (6/22/23 Tr.). The Court directed OCFS to produce the full and complete case records investigating the allegations of child neglect as to the Children to the Court for in camera review. Id.

Trial Proceedings

Both parties testified at trial. Defendant called the following nine (9) witnesses at trial: [Redacted] (Supervised Visitation Experts (SVE)), [Redacted] ([Redacted], the Children's pediatrician), [Redacted] (the Children's pediatrician), [Redacted] (clinical social worker), [Redacted] (Defendant's therapist), [Redacted] ([Redacted] Daycare), [Redacted] ([Redacted] Police Department), [Redacted] ([Redacted] Police Department), and [Redacted] (Department of Social Services case worker). Plaintiff called the following three (3) witnesses: [Redacted] (friend of Plaintiff), [Redacted] (friend of Plaintiff), and [Redacted] (sister of Plaintiff).

May 26, 2019 CPS Report

Defendant testified that during the weekend of May 17-19, when he exercised his parenting time, he planned to take the Children for a bike ride to the playground next to his home. Before departing, he went to the bathroom and when he returned, he realized the Children were not in the home. He then saw they were outside with the neighbor and "it appears that [O.B.] had managed for the first time to reach the top lock." Tr. 268:20-269:5. That "very afternoon," Defendant testified that he purchased a chain lock and installed it higher such that it was out of the Children's reach and installed additional child safety locks throughout his home. Tr. 269:8-13.

Plaintiff learned from the Children about this incident. Tr. 1073:10, 1074:1-8. She testified that she was concerned because she had never seen Defendant's home, and therefore looked it upon Google Maps and saw that there "was an open gate where the train runs," which caused her concern because O.B. is interested in trains. Tr. 1075:9-14. Plaintiff did not contact Defendant about this incident prior to filing her report with CPS on May 26, see Tr. 268:8-10, because they had already e-mailed about the weekend and Defendant "didn't mention anything about the bikes." Id. at 1327:25-1328:9. She testified that she called CPS because she discussed it with her family and "the only thing I could [think] of that could be helpful to make sure that the kids were going to be safe when they were at his house, and that he wasn't going to leave them unattended." Tr. 1349:3-8.

[Redacted], Plaintiff's sister, testified that Plaintiff and the Children told her about this incident, and she discussed with Plaintiff whether Plaintiff should call CPS. [Redacted] recommended that Plaintiff call CPS "to investigate and make sure the kids are being kept safe," and if CPS determined they were unsafe, she believed that CPS would order supervised visits. Id. at 1296:2-13. She could not recall whether she recommended that Plaintiff call Defendant directly to find out what had transpired. Id. at 1296:23-25.

Plaintiff testified that she informed the assigned case worker that Defendant was bipolar. Tr. 1078:1-9. She stated that she was aware of Defendant's diagnosis based on psychological testing that he underwent during the marriage. Tr. 1080:13-14. Plaintiff testified that she also reported to the case worker that O.B. had penis infections and A.B. had urology issues "because they were odd issues." Tr. 1106:14-23.

Defendant testified that he learned from the case worker that the "reporter said that [O.B.] had had frequent penis infections following my access" and that A.B. "had had frequent urination at her daycare following my access with the children." Tr. 269:19-270:4. Defendant did not dispute that O.B. had experienced penis irritation throughout his life, and that he had consulted with O.B.'s primary pediatrician "multiple times over the year" regarding this "chronic" issue. Tr. 270:15-23. This fact is corroborated by the [Redacted] records which show that O.B. was treated for penis infections on the following dates: January 24, 2018, April 2, 2018, January 11, 2019, May 25, 2019, January 27, 2020, February 7, 2020, and April 27, 2021. Tr. 271: 7-21. Defendant's testimony established that O.B. had also had overnight access with Plaintiff prior to the dates of treatment, contrary to Plaintiff's report that O.B.'s penis infections developed while in his father's care.

[Redacted] testified that A.B. experienced urinary problems—meaning, she asked to go to the bathroom several times but was not actually urinating—at different points in time and the first of which was on May 6, 2019. She stated that A.B.'s urinary problems occurred on both parties' access days, Tr. 850:25-851:3, although Plaintiff told [Redacted] that "she is always concerned when [A.B.] comes home from Dad's," to which [Redacted] responded that she was not qualified to ask those questions of A.B. Tr. 773:1-10; see also Def. Ex. F ([Redacted] Daycare Records).

Defendant received a letter on August 8, 2019, stating that the May CPS investigation report was "unfounded," and after which "[Redacted] became much more aggressive towards me." Tr. 279:10-11. For example, Defendant testified to a September 2, 2019 incident where O.B. came home with a box of "no" tickets that O.B. would give to his father when he does "bad things." See Def. Ex. K ("no" ticket). Plaintiff denied that she said anything to O.B. about tickets and his father, and explained that O.B. even wrote tickets to her "to be silly" because it was a system his kindergarten teacher used in class. Tr. 974:18-975:24.

At trial, when asked whether she believes her allegations against Defendant reported to CPS as to inadequate guardianship are true, Plaintiff answered in the affirmative. Tr. 1407:1-5.

September 10, 2019 & September 23, 2019 CPS Reports

Defendant testified that on the morning of September 9, he received an email from Plaintiff stating that she saw her attorney that day regarding a late child support payment and that "[g]oing forward if you do not pay the daycare and child support as well as the other items I will seek relief from the court to enforce the order." Def. Ex. P (9/19/12 Email). Plaintiff stated in her email that she would seek relief from the court to enforce the order if payment was not received by September 15 and on a going forward basis. Id.

That evening, Plaintiff testified that O.B. was in the bath and unable to sit and crying, and when Plaintiff inquired, O.B. said that "his dad stuck his finger in his butt" and would not stop. Tr. 1109:8-17, 1251:21-23. Plaintiff testified that she "was concerned because that's a very strange statement to come from my son who had never spoke like that and talked, and because he was so clear the way he told me, and because he was crying and in pain." Tr. 1109:19-25. Plaintiff stated that O.B.'s school did not contact her on that day, which was a Monday, concerning any discomfort experienced by O.B. Tr. 1271:16-21.

[Redacted] testified that Plaintiff brought O.B. to his office on September 10, and asked to speak in private during which she stated to [Redacted] that O.B. told her his father had put his finger in his butt. Tr. 11:14-19. [Redacted] did not question O.B. directly regarding this allegation. Id. at 143:13-21. He conducted a physical examination of O.B. and there were no physical findings of sexual abuse. Id. at 114:25-115:3. He further testified that Plaintiff told him that Defendant was sexually abused by his mother as a child. Id. at 112:4-5. Based on the foregoing, [Redacted] testified that he called the hotline for child abuse because he had to consider the possibility of sexual abuse against a child. Id. at 114:3-6.

Plaintiff did not contact Defendant regarding this incident. Tr. 342:20-343:1. Defendant further testified as to his belief that "it is absolutely not a coincidence that the day before, on September 9th, she went to see her attorney [ ] to try to get him to file a motion against me because I was late on the child support. And to me, again, the timing doesn't seem to be a coincidence that it is the very next day on September 10th that she makes the false allegation." Tr. 693:1-9.

[Redacted], the assigned case worker, first interviewed Plaintiff on September 10, and, when asked if there was anything unusual about the interview, she testified that Plaintiff read from her notes maintained on her cellphone as opposed to telling her what had transpired. Tr. 1420:16-24. [Redacted] testified that Plaintiff wrote the note on her cellphone on September 10 at 8:55 a.m.—the same day of the interview. Plaintiff testified that she told [Redacted] that Defendant "had been diagnosed with bipolar and psychotic thinking when we were married" and was sexually abused by his mother; she also told her that O.B. is autistic. Tr. 1115:10-1116:7. Plaintiff acknowledged that she did not bring an application to suspend Defendant's access time in connection with this incident of alleged sexual abuse. Tr. 1276:15-23.

[Redacted] testified that, on September 11, Plaintiff filed a complaint with the [Redacted] Police Department alleging that Defendant had sexually abused his five-year old son.Thereafter, he set up an interview of O.B. with CAC. Id. at 298:15-25. CAC conducted the interview on September 13, at which [Redacted] was present along with the CAC interviewer, an Assistant District Attorney, and [Redacted]. As stated in his Investigative Report, see Def. Ex. D1 (9/11/19 [Redacted] Police Dept. Records), "[t]hroughout the interview [O.B.] changed his story a few times from his mom told him to say certain things to she didn't tell him. [O.B.] is on the autism spectrum so it was hard to get a good read on the interview." Id. Therefore, he spoke with Plaintiff and "explained that we do not feel there is enough for criminal charges at this time." Id.; see also Tr. 301:17-24. [Redacted] testified that he suggested interviewing Defendant, but Plaintiff requested that he did not "because she thought it might make things worse between them at the time." Tr. 302:2-4. He further testified that he did not interview Defendant because "nothing during the interview of [O.B.] gave me the impression that something bad happened at that point." Id. at 9-10. When asked if he believed that [O.B.] was coached by Plaintiff, [Redacted] answered "yes." Id. at 308:17-21; 309:15-17. Plaintiff testified that she told O.B. prior to the interview that he should "just tell them the truth," Tr. 1113:20-25, and denied coaching him. Tr. 1275:1.

[Redacted] testified that O.B. understood the questions during the CAC interview. She stated that, during a subsequent interview of Plaintiff, Plaintiff stated that O.B. is autistic and therefore did not understand the questions during the interview. Tr. 1426:2-4, 18-23 ("Because according to mom during the forensic interview at the Child Advocacy Center, her son [O.B.] did not make a disclosure because he did not understand the questions, but it was not the truth, because he did understand the questions"). She stated that during her weekly home visits during the course of the investigation, she did not notice that O.B. was autistic; in fact, she only learned of O.B.'s autism after Plaintiff told her. [Redacted] went on to testify that O.B. was coached by his mother as to what to say during the interview. Tr. 1426:25-1427:4.

[Redacted] was also assigned to the September 23 CPS report. She continued making weekly home visits and spoke with [Redacted] and the Children's medical providers about the allegations of sexual abuse of A.B.

Defendant testified that on September 19, A.B., who was three years old at the time, came into his room in the morning and told him, "Mommy said I should take your phone and call the policeman because mommy said you put your finger in my vagina," and "Mommy said I can get a new dad." Tr. 329:1-5. Defendant testified that in light of the first CPS investigation and his "horror" at A.B.'s statements, he began recording the conversation. Def. Ex. V2 (9/19/19 audio recording).

Plaintiff denied that she discussed with A.B. that she should call the police or spoke to the Children about a new dad. Tr. 1049:14-25. Plaintiff further denied discussing with A.B. about her father touching her vagina. Tr. 1118:14-21. Plaintiff testified that she did not make this report to CPS, nor did she not seek to suspend Defendant's access time in connection with this incident. Tr. 1276:15-23.

The following day, on September 20, [Redacted] testified that she observed A.B. drawing scribbles, and when asked to elaborate, A.B. stated, "They are boobies, mommy told me to draw boobies." Tr. 779:3-16. Plaintiff testified that she did not tell A.B. to draw boobies. Tr. 1179:23. When Defendant came to pick up A.B. that day, [Redacted] testified that Defendant told her that "he had been accused, that there was allegations that he had put his finger in [A.B.'s] vagina, and he said he just wanted me to know that this was said and that if I could document anything like that." Tr. 780:3-11; see also Def. Ex. F. [Redacted] called OCFS that day and left a message. She testified that, "I know as a mandated reporter, if a child says something to me, it has to be reported, but it was coming from the father, not the child so I had called my licenser asking what I should do, and she suggested that I make the call." Tr. 781:4-11. She then filed a CPS report on September 23. [Redacted]'s contemporaneous notes regarding this incident state "coincidence? On dry erase board today said draw boobies," Def. Ex. F, and she testified that it was "really bizarre that [A.B.] made the comment earlier on Friday and then [she] had this conversation [with Defendant] Friday evening." Tr. 781:12-21.

Defendant testified that on September 25 and 26, A.B. made comments that a boy at school had "bitten her vagina," and his belief that such comments were not true but the result of coaching by Plaintiff Mother. Tr. 348:9-23, 360:1-9, 622:5-13. He took a recording of A.B. making these comments. See Def. Ex. V2 (9/25/19 Audio, "but, Papa, [Redacted] bite me. He bite me on my vagina."). Defendant informed [Redacted] of these comments, who in turn, conveyed these comments to [Redacted]. Tr. 553:1-3.

When asked why she ultimately determined the reports were unfounded, [Redacted] testified that, in particular, the evidence gathered from the treating pediatrician indicated that the Children themselves did not make complaints during the visits. Additionally, during the CAC interview of O.B., he stated that he was told what to say by his mother. [Redacted] also testified that her "face-to-face contact" with Plaintiff was compelling in that "[s]he wasn't cooperating with the investigation" and that, at times, she had difficulty getting in touch with Plaintiff and scheduling visits. [Redacted] testified that, "[d]uring the first interview she did not respond as quick as it was supposed to be about the facts that occurred the night before with her son, [O.B.], instead she stated that she wrote everything that happened the night before; however, the date was 9/10 and it was 8:55 a.m. in the morning, so she would have all that information the same date that the report was called." Tr. 1439:1-1440:2.

When asked at trial whether she believes that allegations of sexual abuse perpetrated by Defendant against O.B. are true, Plaintiff answered "I don't know." Tr. 1407:6-9. Plaintiff testified that she did not make any allegations against Defendant regarding sexual abuse of A.B., and therefore she does not "believe anything happened with [A.B.]." Tr. 1407:22-24.

Defendant adamantly denied that he had sexually abused either of his children. He testified that he filed both a criminal and civil complaint against Plaintiff alleging that she levied false allegations against him, coached the children to repeat and reinforce the false allegations, and directly or indirectly took proactive steps to initiate CPS investigations. See Tr. 336:24-338:8.

October 2, 2019 Daycare Incident

[Redacted] testified that on October 2, she made the decision to terminate the daycare contract for A.B. because of nonpayment and late pick-ups. She sent an email to both parents notifying them of the termination. Tr. 792:21-793:5. That day, she had multiple calls with Plaintiff, during which time she was crying and asked [Redacted] to reconsider her decision. Tr. 794:23-795:7. Defendant came to pick up A.B. on October 2, and [Redacted] described that they had a very uncomfortable exchange about the termination. [Redacted] testified that she felt uncomfortable and intimidated. Tr. 796:2-5; see also Def. Ex. F ("Dad came to pickup, very angry, aggressive").

The next day, October 3, Defendant came to drop off A.B. and offered to pay in advance and "was not taking no for an answer, so we had to ask him to leave." Tr. 796:17-24. Defendant acknowledged that he had an argument with [Redacted], but believed that the termination was a direct result of Plaintiff's coaching of A.B. and the litigation between the parties, rather than the result of late payments. Tr. 367:4-10, 711:7-15 ("when I offered to pay more money, she kept refusing. So, to me, that kind of validated my thought that it was actually not because of the late payments that we were terminated, but because of all like the successive CPS investigation[s] and background coaching"). [Redacted] had a subsequent conversation with Plaintiff regarding the termination and recounted the incident with Defendant. Tr. 797:8-14. Plaintiff then told [Redacted] that Defendant "was bipolar and that she thought maybe he could have been off his medications." Tr. 797:23-798:1.

Plaintiff testified that she withheld Defendant's access time as of October 4, and went to the police station to file a report about the incident because she felt Defendant was "unstable" and she was very concerned about the Children and their safety. Tr. 1121:2-15; 1215:5-12. She attempted to make a police report because "I could be held in contempt for that, and I wanted to document the incident because I was very concerned about the Children," Tr. 1121:6-8. [Redacted] of the [Redacted] Police Department testified that Plaintiff attempted to file a complaint against Defendant in connection with an incident at A.B.'s daycare involving Defendant. See Def. Ex. H1 (10/4/19 [Redacted] Police Dept. Incident Report). He advised Plaintiff that third-party complaints cannot be filed at the police department, and that she would have to collect first-party/witness statements, which could then be filed. Tr. 566:2-6. [Redacted] testified that Plaintiff did not return with a first-party statement. Tr. 566:13-14.

On the same day, [Redacted] received calls from Plaintiff "in a panic" asking her to go to the police station, to which [Redacted] stated she could not. Later on, [Redacted] and another police officer came to the daycare. [Redacted] indicated that she did not feel she was in physical danger and did not complete any paperwork to file a sworn statement, complaint and/or restraining order. Tr. 799:1-18; see also Def. Ex. F ("Mom waited in her car until police left and then calling my cell that she needs paperwork completed and brought back to police"), Def. Ex. H1. During a subsequent call, [Redacted] testified that Plaintiff said she was very worried for the Children's safety. See id. [Redacted] testified that Plaintiff's then-attorney reached out to her to sign an affidavit describing the incident, but she declined to sign it because it was inaccurate. Tr. 816:12-17. [Redacted]'s contemporaneous notes state that "seems like mother may be using my bad interaction with father as a pawn in their custody battle." Def. Ex. F. The [Redacted] Police Department close out the matter the same day. Def. Ex. H1.

Supervised Visitation and Interference with Access

Plaintiff testified that on October 4, 2019, she sought Defendant's consent for supervised visitation because she was concerned for the Children's safety in light of the October 2 incident between Defendant and [Redacted]. Tr. 1215:2-12. On October 8, the Court (Lubell, J.) directed that SVE supervise visitation between Defendant and the Children. Ct. Ex. 16 (11/24/19 SVE Report). The supervised visits occurred on November 2, 6, 9, 16, 20, and 23, 2019. [Redacted] testified that, prior to scheduling the visits, she conducted intake appointments of the parents. She testified that Defendant was expeditious in scheduling the intake appointment and cooperative in answering her questions. By contrast, [Redacted] testified that Plaintiff "took a while" to schedule her intake appointment, stating she had to speak to her attorney. Tr. 51:11-25. At the intake appointment, Plaintiff was vague in responding to questions and repeatedly indicated she needed to speak to her attorney. Id. Plaintiff did however emphasize that "the children were horrified of their father" and that O.B. was "very autistic." Tr. 52:1-10. Plaintiff denied that she told [Redacted] that the Children were horrified to see their father. Tr. 1000:10-12.

At the first supervised visit on November 2, [Redacted] testified that the Children "actually ran to him And they kissed him and hugged him, and we didn't see any apprehension or them being afraid of their father at that time, or any other time." Tr. 58:12-16. Defendant testified that during the visit, the Children asked him if he was their "real dad." Tr. 374:10-17. [Redacted]'s testimony and report corroborate that the Children asked Defendant "Are you our real dad?" Tr. 80:7-11. Plaintiff denied discussing with the Children whether Defendant was their read dad. Tr. 1056:12-15.

[Redacted] testified that the supervised visitation between Defendant and the Children proceeded smoothly and agreed that "at all times the children were comfortable with [Redacted]" and not afraid of him. Tr. 79:23-80:3. Nevertheless, [Redacted] testified that "[Redacted] called each and every time to inform that the children were stressed, and that the children were uncomfortable with their father," but—when asked—she could not provide any further explanation or detail. Tr. 66:10-22.

Defendant testified that he sought to restore his unsupervised access in late October 2019, see Court. Ex. 31 (Mot. Seq. No. 13) and, at a November 2019 appearance, he reluctantly consented to a forensic valuation by [Redacted], which he understood would be completed in three weeks—in December 2019. Tr. 378:8-18. Defendant testified that on the eve of the report's submission to the Court, Plaintiff filed an emergency order to show cause seeking to enjoin [Redacted]'s evaluation on the basis of purported bias and prejudice by [Redacted] against the Court. See Ct. Ex. 33 (Mot. Seq. No. 16). Plaintiff testified that she taped a session with [Redacted] during which he made the remarks at issue. Tr. 1281:4-11. As a result, [Redacted]'s report was thrown out, Defendant's access was not restored in full, and Defendant filed a motion on December 24 to arrange for supervised access during the holidays—to which Plaintiff finally consented. Tr. 392:15-393:3.

Defendant testified that, as a result of the foregoing, the restoration of his unsupervised access with the Children was delayed, a limited, unsupervised access schedule was implemented on January 14, 2020, and the Court directed the appointment of a new forensic evaluation by [Redacted] as to Defendant only. Tr. 395:20-23; 396:8-13. He further testified that during the period of October 8, 2019 through at least January 15, 2020, Plaintiff interfered with more than half of his visits prompting him to move for contempt. Tr. 398:23-399:12; see also Ct. Ex. 35 (Mot. Seq. No. 18). In response to his moving to restore his access, Defendant testified that Plaintiff recycled the allegations that he sexually abused the Children—allegations that CPS had deemed as unfounded—and that his mother sexually abused him. Tr. 400:13-17; 403:6-13.

Defendant testified that it was not until June 26, 2020, that his access was fully restored. Tr. 441:22-25. Defendant maintains that, thereafter, Plaintiff became increasingly aggressive towards him by, for example, threatening to relocate to [Redacted] and refusing to pick up Defendant's telephone calls during his telephone access time with the Children. Tr. 424:15-425:24. In January 2021, the Court issued an order appointing [Redacted] to conduct a comprehensive custody evaluation. Tr. 443:9-14. Defendant testified that although the [Redacted] Report was submitted to the Court on December 8, 2021, and a trial date in May 2022, Plaintiff caused delays throughout these proceedings, including having substituted counsel three times. Defendant testified that despite the recommendations of the [Redacted] Report, Plaintiff continued to interfere with the Children's relationship with him as evidenced by the continuation of disturbing and disparaging statements by the Children to him—thereby prompting him to file a motion for contempt. Tr. 496:10-14, 502:12-18; see also Ct. Exs. 11-14 (Mot. Seq. No. 22).

In January 2023, the Court amended the access schedule to be 50/50 so that the Children are with each parent for an approximately equal amount of time. When asked how the Children have adjusted, Plaintiff testified that they seem "dysregulated" and "have more tantrums than usual." Tr. 1127:18-25.

Allegations Regarding Defendant's Mental Health and Abuse

Plaintiff testified that she stated numerous times to various parties, including the forensic evaluators, CPS case workers, and [Redacted], that she was concerned about Defendant's mental health and particularly where it concerns the Children. Tr. 1392:19-2. She acknowledged that both the [Redacted] and [Redacted] Reports did not find that Defendant was a danger to himself or the Children. When asked if she still has concerns about Defendant's mental health, Plaintiff testified that she could not answer "yes" or "no." Tr. 1392:16-21. Rather, Plaintiff testified that her statements as to Defendant's bipolar diagnosis are true. Tr. 1408:2-4.

Defendant testified that he had never received a psychiatric diagnosis and/or that he had a personality disorder. He further testified that he was not prescribed any psychiatric medications during the marriage or around the time of the May 2019 CPS report. Tr. 327:9-25.

[Redacted] testified that he has been Defendant's therapist for approximately the last ten (10) years, during which time he has never diagnosed Defendant with bipolar disorder, nor would he offer such a diagnosis. Tr. 235:1-8. He is aware that Plaintiff described Defendant as bipolar, a fact which he learned from the parties' couples' therapist, [Redacted]. Tr. 234:18-23. The Court notes that the [Redacted] Report, admitted into evidence, states that on "May 18, 2017 according to [Redacted], [Redacted] diagnosed [Redacted] with a Bipolar Disorder with Psychotic Features and believed that he should be on medication." Ct. Ex. 17 at 6. The Report goes on to state that during [Redacted]'s collateral interview of [Redacted], she "denied diagnosing [Redacted] with any psychiatric condition (such as bipolar with psychotic thinking as alleged by the mother) and further noted that she typically does not diagnose her clients in her practice." Id. at 8. Plaintiff testified that she was aware that [Redacted] denied making a bipolar diagnosis of Defendant to [Redacted] and [Redacted]. Tr. 1302:18-21.

[Redacted] testified that he has been treating Defendant regarding his complex Post-Traumatic Stress Disorder (PTSD) that stems from his childhood "with an emotionally abusive alcoholic mother who, unfortunately, died in front him when he was a kid and got compounded by his emotionally abusive relationship with" Plaintiff. Id. at 209:5-11. When elaborating upon Defendant's anxiety, [Redacted] testified that Defendant "is afraid that once this court case is over, another pretense will be made to bring him back to court or take away his access to his children. He is very afraid that some other allegation is going to come up that isn't true." Tr. 231: 15-23. [Redacted] testified that Defendant has not demonstrated any symptoms consistent with a personality order. Id. at 220:4-7.

Plaintiff testified that she told various third parties, including [Redacted] and [Redacted], that Defendant was sexually abused by his mother. Tr. 1116:1-7, 1249:2-15, 1339:9-12. Defendant denies such allegations. Tr. 349:2-21. [Redacted] testified that Defendant has never reported that he was sexually abused by his mother. Tr. 209:12-21. He testified that the only incident that was "remotely like that" occurred when Defendant intervened between his parents fighting and his mother "opened her bathrobe at him, exposed herself to him, as a way to silence him and stop him from being in the middle." Id. [Redacted] further testified that, based on what Defendant has told him, he does not believe Defendant was sexually abused by his mother. Tr. 236:15-18.

Allegations Regarding Plaintiff's Coaching of the Children

Defendant introduced into evidence audio recordings of the Children that he recorded on dates spanning from September 2019 through July 2022.^[2] Defendant made these recordings, generally, after hearing the Children make statements that caused him concern and panic. For example, the Children made the following statements:

• A.B. states on September 19, 2019 that "She [Plaintiff] said I could get a new dad"

• A.B. states on September 25, 2019 that "[Redacted] bite me. He bite me on my vagina. Today, and I asked [Redacted] if he go on time out because he bit my vagina"

• A.B. asks on November 2, 2019 "You're our real dad?"

• A.B. states on December 12, 2019 "Mommy says you have to wipe me and [O.B.]"

• A.B. states on August 16, 2020 "She [Plaintiff] said you don't go in heaven"

• A.B. states on July 26, 2021 that "Because she thinks that we won't come back from France and you guys said agreement that we can't go to France"; O.B. states "Papa can we go to France?"

See Def. Ex. V2 (audio recordings). Defendant maintains that the content of these recordings evidences that Plaintiff coached the Children, and that he "was terrified that I was being set up." Tr. 361:1. He testified that these types of disparaging statements have continued throughout this litigation, and he does not believe that Plaintiff is capable of ceasing making these statements to their Children. See Tr. 496:10-14, 502:12-18. The Court refers to the testimony of [Redacted] and [Redacted] as to their opinions that Plaintiff has coached O.B. as described supra at page 15.

Plaintiff denied that she discussed with the Children getting a new dad, anybody biting A.B.'s vagina, or the concept of heaven. Tr. 1049:14-25, 1050:6-10, 1060:10-11. In fact, Plaintiff wholly denied making statements to the Children that constitute the twenty-six (26) audio recordings admitted into evidence. Tr. 1322:2-6. Regarding travel to France, Plaintiff testified that she discussed with the Children that the parties "have an agreement that you go when you are older." Tr. 1062:1-12.

Lincoln Hearing

During the trial, counsel placed on the record their respective positions as to a Lincoln hearing. Tr. at 573-582. Each of the parties agreed that the decision as to whether to conduct a Lincoln hearing is left to the discretion of the Court. The AFC stated that the Children present as very young for their ages (O.B. is nine (9) years old and A.B. is seven (7) years old) and, in her recent meetings with her clients, the Children have not been as forthcoming. Defendant's position was that the Court should not interview the Children in light of the allegations that Plaintiff has coached the Children. Plaintiff argued in favor of conducting a Lincoln hearing so that the Court could determine the veracity of the allegations of coaching.

The decision to conduct a Lincoln hearing to determine the best interests of the child in a custody dispute is within the discretion of the trial court. See Matter of Desroches v. Desroches, 54 AD3d 1035, 1036, 864 N.Y.S.2d 551, 553 (2d Dept. 2008). Here, given the ages of the Children, the observation that both Children present as young and immature for their ages, the fact that O.B. has been diagnosed with autism, that the AFC did not request an interview of the Children, and the Court's determination that a Lincoln hearing would not offer anything of value to the extensive proof that has been presented at trial, the Court declined to conduct a Lincoln hearing. Tr. 1465:11-1466:1; see also Picot v. Barrett, 8 AD3d 288, 777 N.Y.S.2d 698, 699 (2d Dept. 2004).

Post-Trial Submissions

Plaintiff

Plaintiff argues that she was not permitted to enter crucial evidence at trial including, for example, the Children's school records and their son's autism history records, as well as testimony of school personnel and the parties' former marriage counselor and former psychologist. The Courts refers to the January 26, 2023 appearance, NYSCEF Doc. No. 309 (1/26/23 Tr.), wherein the Court held that, among other bases, the Children's educational records are irrelevant at trial because neither Plaintiff nor Defendant accuses the other of failing to meet the educational needs of the Children. Rather, the basis of Defendant's application for a modification of custody is parental alienation and willful interference with his parental rights and access.

Plaintiff asserts that the Court made inconsistent rulings regarding the admission of educational records of O.B., including Individual Education Program (IEP) records. The Court refers to its rulings at trial wherein, the IEP records portion of the [Redacted] records was excluded because they were not the records of [Redacted]; however, the IEP records were then admitted based upon stipulation of the parties. Tr. 1022:4-11.

Plaintiff also takes issue with the Court's position that it would not allow evidence related to the events preceding the Revised Judgment of Divorce and which did not have a nexus to the instant motions. Contrary to Plaintiff's assertion that the Court admitted into evidence two letters from pediatrician [Redacted] that pre-dated the Judgment of the Divorce, the Court refers to its ruling at trial wherein it excluded both letters. Tr. 176:14-25.

Plaintiff asserts that she should continue to have primary custody of the Children based, in part, on the fact that she is not working during her time with the Children, and she can therefore attend to O.B.'s educational challenges.^[3] Plaintiff argues that Defendant would delegate childcare to sitters given his work schedule. Plaintiff further states that Defendant has not established how "he would make life better for the children if he was awarded custody." NYSCEF Doc. No. 437 (Pl. Post-Tr. Sub.) at 14. Rather, Plaintiff contends that the testimony at trial demonstrates that "kids are doing well in school, happy and thriving." Id. She maintains that she has always been the primary caregiver, and that she would continue to foster a relationship between the Children and Defendant. Id. at 25.

Regarding the three CPS investigations, Plaintiff states that she made one report based on her genuine concern for the Children and was not the source in the other two investigations. Id. at 23. She contends that the Children have not, in fact, been alienated from their father, that she has not coached the Children in any respect, and that she has not made false or disparaging statements about Defendant to the Children. Id. at 15.

Defendant

Defendant argues that there has been a substantial change in circumstances such that a modification of legal custody, physical custody, and terms as to international travel is required in the best interest of the Children. Defendant further seeks an order of the Court directing Plaintiff to engage in therapy and "such other relief that will deter Plaintiff's future weaponization of the legal system." Id. at 26. Defendant maintains that Plaintiff has engaged in an "insidious and malicious strategy to destroy the children's relationship with their father." NYSCEF Doc. No. 438 (Def. Post-Tr. Sub.) at 3. Defendant lays out a history of Plaintiff levying false allegations against him both pre- and post-judgment including allegations that he sexually abused each of the Children, he was sexually abused by his mother, he failed to supervise the Children, and he suffers from bipolar disorder. Defendant argues that the testimony at trial and OCFS case records establish that each of these allegations is demonstrably false. Defendant further argues that Plaintiff has demonstrated a history of interfering with Defendant's access and with his relationship with the Children. Defendant further seeks a new access schedule as follows:

• Father shall have access starting on Thursday after school (or 3pm if there is no school) through Tuesday before school (with mother having Sunday dinner during Father's weekend), Mother shall have access starting on Tuesday pick up after school (or 8am if there is no school) through Wednesday after school (or 3pm if there is no school), and Father shall have access starting on Wednesday after school through Friday after school (or 3pm if there is no school).

• Mother shall have access starting Friday after school through Sunday 8:00 PM, Father shall have access starting on Sunday 8:00 PM through Tuesday before school (or 8:00 AM if there is no school), and Mother shall have access starting on Tuesday before school through Thursday after school (or 3:00 PM if there is no school) (Tr 514:5-15).

Attorney for the Children

The AFC states her role pursuant to 22 N.Y.C.R.R. §§ 7.2(c), (d) to zealously advocate for her clients' position. She states that, "My clients are a very young 7 and 9 year old. Their wants and desires change. They love both parents. Sometimes they want more time with [sic] their Father and sometimes they want more time with their Mother." NYSCEF Doc. No. 436 (AFC Post-Tr. Sub) at 21, n. 19.

The AFC agrees with Defendant that there has been a change in circumstances as evidenced by Plaintiff's numerous allegations of sexual abuse and inadequate guardianship against Defendant—which allegations were unfounded by CPS and unsubstantiated by the testimony and documentary evidence at trial. The AFC maintains that Plaintiff actively tried to suspend Defendant's access and/or have his access supervised. Id. at 23. The AFC contends that the parties' March 2019 Stipulation should be modified and that "Plaintiff's inability to understand what she has done wrong and what she is still doing wrong, clearly gives this Court the right to change custody from the Mother to the Father with the Father having final custody and decision making authority." Id. at 25. Regarding the access schedule, the AFC argues that it should be flipped such that Plaintiff has the schedule that Defendant has had pursuant to the March 2019 Stipulation, subject to the parties' work schedules.

Legal Analysis

"In any child custody dispute, the court's paramount concern is to determine, under the totality of the circumstances, what is in the best interests of the child." Matter of Olea v. Diaz, 194 AD3d 721, 722, 143 N.Y.S.3d 583 (2d Dept. 2021); see Eschbach, 56 NY2d at 171. There is "no prima facie right to custody of the child in either parent." DRL § 70(a); DRL § 240(1)(a). Factors to be considered include, inter alia, "(1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well-being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires." Matter of Montebello v. Montebello, 184 AD3d 565, 566, 123 N.Y.S.3d 539 (2d Dept. 2020) (internal quotation marks omitted); see Matter of Olea, 194 AD3d at 722. Importantly, the parent's ability to place the child's needs above his or her own in fostering a continued relationship with the non-custodial parent is an appropriate consideration. Janecka v. Franklin, 150 AD2d 755, 756, 542 N.Y.S.2d 206 (2d Dept. 1989) ("mother's "unbridled" anger and hostility toward the defendant would substantially interfere with her ability to place the needs of the children before her own in fostering a continued relationship with the noncustodial parent").

The weight to be afforded to each of the various factors is within the discretion of the trial court and requires an evaluation of testimony, character, and sincerity of all the parties involved. See Bourne v. Birstow, 66 AD3d 621, 622, 886 N.Y.S.2d 502 (2d Dept. 2009). Because custody determinations depend to a great extent upon assessment of character and credibility, deference is accorded to the trial court's credibility findings, which shall not be disturbed unless they lack a sound and substantial basis in the record. See Matter v. Dolan Masterton, 121 AD3d 979, 980, 995 N.Y.S.2d 123 (2d Dept. 2014). The trial court's assessment of the credibility of witnesses and evidence is afforded great weight on appeal. See Alper v. Alper, 77 AD3d 694, 909 N.Y.S.2d 131 (2d Dept. 2010).

"`Modification of a court-approved stipulation setting forth terms of custody or [parental access] is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the best interests and welfare of the child.'" Greenberg v. Greenberg, 144 AD3d 625, 629, 41 N.Y.S.3d 49 (2d Dept. 2016). Priority is generally given to the first award of custody, whether it was the result of a court order or a stipulation. Nevertheless, "an agreement between the parties is but one factor to be weighed by the court in deciding whether a change of custody is warranted." Eschbach v. Eschbach, 56 NY2d 167, 171, 436 N.E.2d 1260 (1982). And, "where the first award is the result of a stipulation, as here, it is entitled to less weight than a disposition after a plenary trial." Matter of Carl J.B. v. Dorothy T., 186 AD2d 736, 373, 589 N.Y.S2d 53 (2d. Dept. 1992) (internal citations omitted).

Credibility

Defendant presented as sincere and logical in his answers throughout his testimony. His frustration at the events that have transpired at the behest of Plaintiff was palpable. Defendant was eager to answer questions; often times, the Court and his counsel instructed him to slow down so that those present and the court stenographer could follow his testimony. The substance of his testimony was clear and consistent, and the Court did not identify any actual or apparent contradictions in his testimony. He appeared to answer each question truthfully and thoughtfully.

Plaintiff presented as calm and mild-mannered in her demeanor. She conveyed an attentiveness and sincerity when talking about the Children. However, her answers on both direct and cross-examination meandered and were evasive and convoluted. See Tr. 1172:8-17; 1196:12-19. In that respect, Plaintiff was an uncooperative witness. The Court, declining to engage in Plaintiff's verbal gymnastics, repeatedly directed Plaintiff to answer only the question posed. See Tr. 981:3-4; 1191:15; 1194:14-16; 1217:12-17. Certain of Plaintiff's answers were conflicting and inconsistent revealing an inability or an unwillingness to be candid and forthcoming with the Court. For example, Plaintiff maintains her concern that Defendant may abscond to France with the Children yet provides no reliable evidence that forms the basis of her belief. See 6/2/23 Tr. at 18:3-4 ("this Court finds that Plaintiff's purported concerns are completely without merit."). A second example involves Plaintiff's allegation that Defendant received a diagnosis of bipolar disorder where she concedes that the source ([Redacted]) denied making a bipolar diagnosis of Defendant. See Tr. 1302:18-21.

Most concerning to this Court, however, is that Plaintiff's actions and testimony as to the allegations against Defendant are irreconcilable with her contemporaneous actions—it is implausible that a parent who suspects, believes, or is told that his/her child has been abused by the other parent would not immediately seek to suspend access, file a criminal complaint, cooperate with the CPS investigation, and consent to full and unfettered access to the underlying records and reports of said allegations by forensic evaluators and the trier of fact. The Court's finding is consistent with [Redacted]'s observations:

"she tries to absolve herself of responsibility in these allegations against [Redacted] by stating, `I remind the Court, I never curtailed Defendant's access and I never filed a Motion to do so. Even after the incident with my son on September 9, 2019 when [O.B.] told me his father put his finger in his anus, four penis infections, leaving our young children (one autistic) riding their bikes unsupervised, and [A.B.]'s bizarre urology issues directly after his weekend visitation, I did not stop the visits or file any motions.' This statement made by [Redacted] makes no sense and hardly exonerates her from responsibility for creating this mayhem. Obviously, if she actually thought that [Redacted] sexually abused the children and created penile infections for their son, any responsible parent, especially one with custodial responsibilities, would have moved heaven and earth to prevent [Redacted] from ever having access to his children. In fact, this is not what transpired." Ct. Ex. 18 at 51.

Substantial Change in Circumstances

A substantial change in circumstances warranting modification of a custody agreement has been found where one party makes repeated, unfounded, and unsubstantiated allegations of sexual abuse against the non-custodial parent, see, e.g., Honeywell v. Honeywell, 39 AD3d 857, 858, 835 N.Y.S.2d 327 (2d Dept. 2007) ("mother's repeated and unfounded allegations of sexual abuse against the father constituted conduct so inconsistent with the best interests of the child as to per se raise a strong probability that she is unfit to act as a custodial parent"); where one party attempts to alienate the children from the other parent, see, e.g., Stern v. Stern, 304 AD2d 649, 649, 758 N.Y.S.2d 155 (2d Dept. 2003) (affirming award of sole custody to father because the mother's "conduct in alienating the children from their father is an act so inconsistent with the best interests of the children"); where one party attempts to impede the other parent's relationship with the children, such as by interfering with the other parent's visitation/access, see McClurkin v. Bailey, 78 AD3d 707, 708, 911 N.Y.S.2d 99 (2d Dept. 2010) (finding a sufficient change of circumstances to award father sole custody where mother interfered with visitation rights, phone access time, and made unfounded reports of child abuse against father); and where "the parties' relationship is so acrimonious that it effectively precludes joint decision-making." Picado v. Doan, 90 AD3d 932, 933, 934 N.Y.S.2d 495 (2d Dept. 2011). Here, Defendant has established there has been a substantial change in circumstances since the parties entered into the March 2019 Stipulation.

In its June 2, 2023 Decision and Order (Mot. Seq. No. 24), this Court held that Defendant had established that there has been a substantial change in circumstances, finding that "[a]lthough the record is clear that the parties' relationship has been tenuous and acrimonious throughout the proceedings—and prior to the dissolution of the marriage, the testimony and evidence offered at trial demonstrate that (1) Plaintiff has levied serious allegations against Defendant that have resulted in involvement of the judicial system and Child Protective Services, (2) that have negatively impacted Defendant's access and visitation with the Children; and (3) that have negatively interfered with the Children's relationship with their father." NYSCEF Doc. No. 402 (6/2/23 Tr.) at 15-16.

Repeated and Unfounded Allegations

The record establishes that Plaintiff made and repeated the following allegations as to Defendant to third-parties:

  Statement                                                                                                                Third-Party

  Defendant is bipolar with psychotic tendencies                                                                      [Redacted], [Redacted], [Redacted], [Redacted], [Redacted], [Redacted],
                                                                                                                    [Redacted]

  Defendant was sexually abused by his mother                                                                         [Redacted], [Redacted], [Redacted], [Redacted]

  Defendant failed to supervise the Children                                                                          [Redacted], [Redacted], [Redacted]

  O.B. suffered from penis infections that followed visits with Defendant and/or developed while in Defendant's     [Redacted], [Redacted], [Redacted], [Redacted], [Redacted], [Redacted],
  care                                                                                                                [Redacted]

  Defendant sexually abused O.B.                                                                                      [Redacted], [Redacted], [Redacted], [Redacted], [Redacted]

  A.B. suffered from urinary issues that followed visits with Defendant                                               [Redacted], [Redacted], [Redacted], [Redacted], [Redacted]

The testimony and evidence offered at trial demonstrate that each of these statements is demonstrably false. Furthermore, the CPS investigations into the allegations involving the Children determined that the reports were unfounded. The testimony of Defendant and [Redacted], the [Redacted] (which considered evaluations by [Redacted] and [Redacted]) and [Redacted] Reports, and the fact that the purported source ([Redacted]) of Plaintiff's allegation denied having made such diagnosis establish that Plaintiff's allegation that Defendant is bipolar with psychotic tendencies and/or received such diagnosis is false.

The testimony of Defendant and [Redacted] demonstrate that Plaintiff's allegation that Defendant was sexually abused by his mother is unsubstantiated.

The May 2019 CPS investigation and Defendant's testimony demonstrate that Plaintiff's allegation that Defendant failed to supervise the Children on the weekend of May 17, 2019 is unsubstantiated. Further, the Court finds it troubling that [Redacted] testified that, despite having no experience with CPS, she believed that if CPS determined the Children were unsafe, they would order supervised visits. In fact, Plaintiff's friend, [Redacted], testified that in/around April 2019, Plaintiff told her that she was seeking to have Defendant's access terminated or supervised. See Tr. 1097:20-25.

The testimony of [Redacted] and [Redacted], the two CPS investigations, [Redacted] Records, and the [Redacted] and [Redacted] Reports demonstrate that Plaintiff's allegations that O.B. suffered from penis infections following visits with Defendant and/or developed while in Defendant's care are unsubstantiated, as is any suggestion that Defendant sexually abused O.B. The [Redacted] Report addressed this allegation directly: "Such allegations persist in promoting a disservice to the integrity of [Redacted] if there were actually an infection, which always implies a sexually transmitted disease in young children, which lab reports would document as to the specific nature of the infection Had there been a valid concern of a sexually transmitted disease with the father as a suspect, [Redacted] would have been denied access to his children and likely arrested and incarcerated. None of this happened because the allegation is without merit." Ct. Ex. 18 at 51. Furthermore, the testimony of Defendant, [Redacted], [Redacted], and [Redacted], the CPS investigations, the CAC interview of O.B., and the [Redacted] and [Redacted] Reports demonstrate that Plaintiff's allegation that Defendant sexually abused O.B. (by inserting his fingers into O.B.'s anus) is unsubstantiated.

The testimony of [Redacted] and [Redacted], the two CPS investigations, [Redacted] Records, and the [Redacted] and [Redacted] Reports demonstrate that Plaintiff's allegations that A.B. suffered from urinary issues following visits with Defendant are unsubstantiated. Despite Plaintiff's position that she did not make direct allegations of sexual abuse involving A.B., see, e.g., Ct. Ex. 4 (Pl. Aff. Mot. Seq. No. 20) at 7 ("I made no allegations regarding the same"), it is apparent to this Court that Plaintiff raised the specter of sexual abuse by alleging that A.B. suffered from "bizarre urinary issues" and possibly from an infection—which was never diagnosed even after Plaintiff took A.B. to a second doctor for testing—following visits with Defendant.

Accordingly, the Court finds that Plaintiff made repeated and unfounded allegations against Defendant, including allegations that he sexually abused the Children, thereby establishing a sufficient change in circumstances. See Fargasch v. Alves, 116 AD3d 774, 775, 983 N.Y.S.2d 607 (2d Dept. 2014) (mother's unfounded allegations of sexual abuse of a child established a change in circumstances).

Alienation

An attempt by one parent to alienate the children from the other parent is a factor in determining whether a change in circumstances exists. "The judicial refrain is unmistakable: a concerted effort by one parent to interfere with the other parent's contact with the child is so inimical to the best interests of the child, that it, per se, raises a strong possibility that the interfering parent is unfit to act as a custodial parent." J.F. v. D.F., 61 Misc 3d 1226 (A), 112 N.Y.S.3d 438, 2018 NY Slip Op. at *4 (Sup. Ct. 2018). Here, Defendant has established that Plaintiff has engaged in alienation thereby supporting his application for a change in custody.

Defendant offered credible evidence and testimony that Plaintiff demeaned Defendant to the Children and to others as discussed supra. The evidence further demonstrates that Plaintiff has inappropriately involved the Children in this litigation—for example, the fact that the Children were told about an "agreement." The examples of such statements as captured in audio recordings abound: "Mommy said I need to grab your phone and then I need to call the policeman," "She said I could get a new dad," "Are you our real dad?" (this statement was corroborated by [Redacted]), "Mommy said we need to choose," "anyone else goes to heaven but not you," "She said you only do work and never play with me," "Mommy just random married with you," "Mommy say Papa scary." Some of these statements were also repeated by the Children to the AFC. Ct. Ex. 6 at 2 ("Some of what [Redacted] stated has been told to me by my clients. I have placed some of my client's statements, said to their Father, on the record.").

Plaintiff disputes that she made any of these statements to the Children and argues that there "is no smoking gun here." NYSCEF Doc. No. 437 at 23. The Court disagrees. Logic dictates that young children at the ages of three and five could not possibly articulate these words or concepts in a vacuum. For example, the idea that the Children would need to "choose", "get a new dad," or are subject to an "agreement" logically flow from the premise that they either heard these comments or were told these comments by their mother, who they explicitly identify as the source of these comments.

Additionally, Plaintiff argues that there has been no actual alienation—a conclusion conceded by Defendant—and therefore, there can be no such finding. Plaintiff does not offer any case law to support her contention that because children enjoy a positive relationship with the other parent despite efforts to alienate the children, there can be no such finding. However, the Court's finding is that Plaintiff's efforts to alienate the Children from their father failed—fortunately. Ultimately, the nature of these statements made by Plaintiff to the Children about their father is a form of alienation which reflects adversely on her fitness as a parent, and violates the parties March 2019 Stipulation.

Interference

Courts have found that interference with another parent's visitation and access time constitutes a change in circumstances. See, e.g., Tori v. Tori, 103 AD3d 654, 654, 958 N.Y.S.2d 510 (2d Dept. 2013); Goldstein v. Goldstein, 68 AD3d 717, 720, 889 N.Y.S.2d 661 (2d Dept. 2009). Here, the record sets forth that Plaintiff directly interfered with Defendant's visitation rights and access time by filing an application on October 8, 2019 that repeated unfounded and unsubstantiated allegations that O.B. "told Affiant that his father placed his fingers in his anus," that "our daycare provider, [Redacted], advised that Defendant has become belligerent, threatening, and intimidating [Redacted]," that "[a]fter his rant, he left A.B. in the care of [Redacted] who contacted the local police to make a report of the foregoing." Ct. Ex. 30 at 2, 4.

Having the benefit of a full and complete trial, this Court finds that the overwhelming evidence establishes that Plaintiff's application was premised on unsubstantiated allegations that resulted directly and indirectly (through delays perpetuated by Plaintiff) in Defendant's losing his agreed-upon access time between October 4, 2019 through June 26, 2020.

Joint Custody No Longer Suitable: Deterioration of the Parties' Relationship

The record establishes that the parties' relationship has become so acrimonious that they cannot communicate or engage effectively in decisions that foster the best interests of the Children. See O'Connell v. McDermott, 80 AD3d 701, 701-702, 915 N.Y.S.2d 143 (2d Dept. 2011) ("joint custody is encouraged `as a voluntary alternative for relatively stable, amicable parents behaving in a mature civilized fashion'") (internal citations omitted). Examples of the deterioration of their relationship include: Plaintiff did not contact Defendant about the "bike incident" prior to filing the CPS report; Plaintiff's efforts to alienate the Children from Defendant; Plaintiff's involvement of law enforcement and CPS to thwart Defendant's access with the Children; the commencement of numerous court proceedings and motions in this case since the entry of the Revised Judgment of Divorce; and the parents' inability to engage regarding an access schedule for the Children where the Court directed that the parties share equal access. The Court notes that Plaintiff declined to even participate in a discussion during the January 30, 2023 appearance as to an access schedule that best served the Children.

Accordingly, the trial testimony establishes a change in circumstances supporting Defendant's application for a modification of custody.

Best Interests of the Child

The Court, having found a change in circumstances that warrants a modification of custody, turns to the determination of the best interests of the Children. While the Court may, in its discretion, consider a variety of factors that bear upon the best interests of the child in a custody determination, the following non-exhaustive factors are of particular relevance here: the demonstrated willingness to prioritize the needs of the children over the parties' own needs and to foster a relationship with the non-custodial parent. See Matter of Murray v. Hall, 294 AD2d 504, 504-505 (2d Dept. 2002). Furthermore, New York courts have found that a parent's false accusations of sexual abuse by the other parent, see, e.g., Altieri v. Altieri, 156 AD3d 667, 669, 66 N.Y.S.3d 323 (2d Dept. 2017), Honeywell, 39 AD3d at 858, and/or efforts to alienate the child from the other parent, see, e.g., Vargas v. Gutierrez, 155 AD3d 751, 753, 64 N.Y.S.3d 76 (2d Dept. 2017); Stern, 304 AD2d at 649, are inconsistent with the best interests of the child.

In her post-trial submission, Plaintiff ostensibly argues that the Court should consider other factors. Contrary to Plaintiff's assertions, the Court finds that there was no evidence or credible testimony to support a finding that—since the Revised Judgment of Divorce was entered—Defendant is mentally or emotionally unstable, has perpetrated domestic violence or exposed the Children to domestic violence, or has abused or neglected the Children in any respect.

This Court rejects Plaintiff's contention that the custody arrangement set forth in the March 2019 Stipulation should remain on the basis that Plaintiff has been the primary caregiver for the Children and is better able to attend to the needs of the Children—specifically, the special needs of O.B., and because the Children "have been doing very well under her care and thriving." NYSCEF Doc. No. 437 at 14. Plaintiff's argument that Defendant, due to his work schedule, is likely to delegate parenting to third-party caregivers is also rejected, as Plaintiff herself testified to having morning and afternoon sitters in addition to backup sitters. Tr. at 1006. Plaintiff entirely misses the mark by failing to acknowledge that her actions have directly interfered with Defendant's access with the Children and that her efforts to alienate the Children is the basis, among others, for the instant trial.

The Court finds that each party is a loving and concerned parent, and that the Children love both of their parents. Both parents are "fit caretakers," as observed by [Redacted], capable of attending to the Children's needs, including educational needs and O.B.'s special needs. See Ct. Ex. 18 at 56. However, Plaintiff is unable to compartmentalize her negative emotions towards Defendant in a manner that prioritizes the needs of the Children over her own. Plaintiff repeatedly levied unfounded and unsubstantiated allegations against Defendant, and those accusations required the Children, at ages three and five, to be "subjected to intrusive physical examinations" and interviewed by CAC, CPS, and forensic evaluators. See Aponte v. Jagnarain, 205 AD3d 803, 169 N.Y.S.3d 105 (2d Dept. 2022). "These are acts `of interference with the parent-child relationship so inconsistent with the best interests of the child as to raise a strong probability that the mother is unfit to act as custodial parent'." Kortright v. Bhoorasingh, 137 AD3d 1037, 1038, 27 N.Y.S.3d 235 (2d Dept. 2016). In that respect, the Court agrees with [Redacted]'s observation that Plaintiff has systematically used the Children as pawns in her campaign to strip Defendant of his parental rights and access. It is unfathomable to this Court that a parent would proactively inject their children into custody proceedings and subject them—in their most vulnerable incarnations—to physical examinations and third-party investigations and interviews.

Likewise, Plaintiff has placed her own self-interest above the interests of the Children as evidenced by her interference with Defendant's visitation rights and demeaning and disparaging comments made to the Children about Defendant, that were repeated by the Children to their father and third parties. This Court agrees with the recommendations of the [Redacted] Report, which states that "[Redacted] has shirked her responsibility as the primary custodial parent with the obligation of supporting [Redacted]'s role except where it suits her need." Ct. Ex. 18 at 34.

By contrast, despite Defendant's admitted frustration and resentment towards Plaintiff, he is not seeking to suspend Plaintiff's access to the Children, nor does he claim that Plaintiff is an unsuitable parent. The credible testimony and evidence at trial establishes that Defendant is a loving and caring parent and presents no danger to the Children, consistent with the [Redacted] and [Redacted] Reports. See, e.g., Ct. Ex. 18 at 34 ("there is no evidence to suggest that [Redacted] presents a clear danger to the children"). [Redacted] testified that Defendant is attentive to the Children's needs; his demeanor is loving and gentle. Tr. 216:11-25. [Redacted] testified that Defendant is a "on-hands father," "well-prepared," "knew exactly what to get the children," and managed the Children well, including O.B. who is autistic. Tr. 54:15-23; 58:19-59:4.

The Court further finds that Defendant is more likely to foster a relationship with Plaintiff. "One of the primary responsibilities of a custodial parent is to assure meaningful contact between the children and the noncustodial parent, and the willingness of a parent to assure such meaningful contact between the children and the other parent is a factor to be considered in making a custody determination." Wright v. Perry, 169 AD3d 910, 911-912, 95 N.Y.S.3d 108 (2d Dept. 2019) (internal citations omitted). Here, Defendant has established that Plaintiff's false allegations, purposeful actions to alienate the Children from him, and interference with his contact with the Children demonstrates her unwillingness to foster a relationship with Defendant. Notably, Plaintiff does not allege that Defendant has not and cannot foster a relationship between the Children and their mother, or that he has failed to abide by the Children's enumerated rights contained in the March 2019 Stipulation. In fact, Defendant credibly testified, "I never ever want my children to know what [Redacted] did. I don't want them to be mad at their mother or realize the horrible thing she did. I just want them, again, to be able to grow up peacefully and not being subjected to such abuse." Tr. 512:5-8. Defendant has demonstrated a superior ability to handle the antagonist nature of the parties' relationship in a manner that serves the best interests of the Children.

Accordingly, the Court finds that it is in the best interests of the Children to grant Defendant's application to modify the March 22, 2019 Stipulation Article III (Custody and Visitation) so as to award him sole legal custody and primary physical custody of the Children, subject to the access schedule as set forth below.

Access Schedule

In fashioning an access schedule, the Court is guided by a schedule that serves the best interests of the Children. In doing so, the Court considers the stability and predictability of the schedule, the number of exchanges, and the ages of the Children. The Court directs that the parties adhere to the following:

Week 1:

           Thursday               Friday        Saturday      Sunday             Monday                                                    Tuesday            Wednesday

  Father   Start after school
   or 3:00 p.m. if no     Overnight     Overnight     Overnight          End before school or 3:00 p.m. if no school                            Start after school or 3:00 p.m. if no school
   school Overnight                                                                                                                             Overnight

  Mother                                                                         Start after school or 3:00 p.m. if no school              Overnight    End before school or 3:00 p.m. if no school

Weel: 2

            Thursday    Friday                                          Saturday     Sunday       Monday                                          Tuesday        Wednesday

  Father    Overnight   End before school or 3:00 p.m. if no school                  Start at     End before school or 3:00 p.m. if no school                    Start after
                                                                                     7:00 p.m.                                                                   school or 3:00
                                                                                     Overnight                                                                   p.m. if no school
                                                                                                                                                                 Overnight

  Mother                Start after school or 3:00 p.m. if no school    Overnight    End at       Start after school or 3:00 p.m. if no school    Overnight      End before
                        Overnight                                                    7:00 p.m.    Overnight                                                      p.m. if no school

In the event that one party cannot exercise their overnight access time with the Children, the other party shall be given the right of first refusal. The Court further modifies the March 22, 2019 Stipulation regarding telephone/Facetime, see Ct. Ex. 1 at 12, as follows: Each parent shall have the right to initiate communication with the Children by telephone, FaceTime, or similar means at 7:00 p.m. when the parent is not exercising his or her access time.

Decision-Making

The Court directs that, following meaningful consultation with Plaintiff, Defendant shall have final decision-making authority as to all major decisions including medical/dental/psychological/psychiatric treatment, religion, education, and extra-curricular activities. Meaningful consultation shall mean that each party shall convey to the other party his/her opinions on whatever decisions affecting the children need to be resolved via Our Family Wizard, setting forth the issue that needs to be resolved and that parent's proposed resolution at least three (3) days in advance of such decision being made.

Final decision on that issue shall not be made until after consideration of the other parent's position, and a written response to same is made. The parties are encouraged to consider deferring to the professional in whatever field requires determination. In case of a medical emergency, each parent shall immediately, or as soon as practicable, notify the other. In such cases, the parent who has custody of the child is authorized to make emergent decisions consistent with the recommendations of the then present medical provider.

Fostering Parent/Children Relationships

Neither party is to unreasonably interfere with the Children's desires to communicate with the other parent when not in that parent's custody. Neither party shall disparage the other party in the presence of the Children, or allow any third-party to do so. The parties shall afford the Children the enumerated rights as outlined in the March 2019 Stipulation at Paragraph 11.

Civil Contempt and Sanctions

Defendant seeks a finding of civil contempt against Plaintiff based upon the false allegations made against him, interference with his access with the Children, and violation of the Children's Bill of Rights. See Ct. Ex. 11 (Mot. Seq. No. 27). "A motion to punish a party for civil contempt is addressed to the sound discretion of the court, and the movant bears the burden of proving contempt by clear and convincing evidence." Matter of Hughes v. Kameva, 96 AD3d 845, 846 (2d Dept. 2012); see Cassarino v. Cassarino, 149 AD3d 689, 690 (2d Dept. 2017). The movant must establish that: (1) a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) the movant was prejudiced by the offending conduct. See Judiciary Law § 753[A][3]; El-Dehdan v. El-Dehdan, 26 NY3d 19, 29 (2015).

Defendant further seeks the imposition of financial sanctions on Plaintiff pursuant to 22 NYCRR 130.1.1(c), which provides that the Court may, in its discretion, award fees, costs, and sanctions upon "any party or attorney in a civil action or proceeding who engages in frivolous conduct." Defendant acknowledges that the award of counsel fees under this theory is intended to be punitive and to punish past conduct. Defendant further states that "[t]here is no sanction or amount of money that can make up for the time my children and I lost (76 overnights) while I proved to the Court's satisfaction the falsity of Plaintiff's allegations so that our access was fully restored." Ct. Ex. 11 at 6.

The Court, in its discretion, declines to make a finding of civil contempt against Plaintiff or impose sanctions on her. Although the Court finds that Plaintiff's conduct violates the March 2019 Stipulation and has delayed and prolonged these proceedings in a manner that has wasted judicial resources, such a ruling would only frustrate an end to this litigation and fuel the existing acrimony. Further, the Court has yet to resolve the financial issues in this matter, which will include a determination as to Defendant's application for counsel fees and recalculation of child support.

Conclusion

The Court finds that it is Plaintiff's deliberate and reckless actions that have resulted in the post-judgment custody dispute presented to the Court, and said actions have only served to harm the Children. Plaintiff has systematically and surgically waged a campaign to discredit Defendant and force him out of the Children's lives. This campaign involved law enforcement, social services, medical professionals, childcare providers, and the judicial system—each of whom is charged with protecting the Children as their roles require and has, in fact, discharged those respective duties. This campaign inserted the Children into the parties' disputes, and directly harmed Defendant by limiting his access with the Children for prolonged periods of time, subjecting him to investigation and reputational damage, and forcing him to incur financial costs to litigate this dispute. Despite the overwhelming evidence in this proceeding, Plaintiff refuses to accept the falsity of her allegations. The Court is guided by "what is for the best interests of the child[ren] and what will best promote [their] welfare and happiness," Eschbach v. Eschbach, 56 NY2d 167, 171, 436 N.E.2d 1260 (1982), and accordingly, has awarded sole legal and primary physical custody to Defendant.

While the Court has declined to find Plaintiff in civil contempt, impose sanctions, or grant such other relief as may be available, the Court cautions Plaintiff that if her actions persist, the Court will be forced to consider further modification as to custody and access so as to serve the best interests of the Children.

Accordingly, it is hereby,

ORDERED that the Court grants Defendant's Motion Sequence Numbers 20 and 27 to the extent that the Court modifies the parties' Stipulation and Order Regarding Custody, Access and Child Support, dated March 22, 2019 ("March 2019 Stipulation") and Revised Judgment of Divorce so as to award sole legal and primary physical custody of the parties' children, O.B. (born [Redacted], 2013) and A.B. (born [Redacted], 2015) (collectively, the "Children") to Defendant [Redacted], subject to the access schedule set forth herein and effective October 12, 2023; and it is further

ORDERED that the Court denies Defendant's Motion Sequence Number 27 seeking to adjudge Plaintiff in contempt based upon her violation of the March 2019 Stipulation and the April 24, 2019 Revised Judgment of Divorce; and it is further,

ORDERED that the Court grants Defendant's Motion Sequence Number 27 seeking to enforce Article III of the March 2019 Stipulation and the April 24, 2019 Revised Judgment of Divorce by directing that Plaintiff immediately, now and in the future, cease and desist disparaging the Defendant to the Children and influencing the Children so as to prejudice the Children against Defendant; and it is further,

ORDERED that parties shall appear for a pre-trial conference on December 8, 2023 at 9:30 a.m. in Courtroom 1002 as to the branches of Defendant's Motion Sequence Numbers 20, 24, and 27 seeking to recalculate child support in light of the Court's modification of custody as set forth herein, and seeking an award of reasonable counsel fees, expert fees, and related expenses in connection with this application, pursuant to Article IX, Paragraph 10 of the March 2019 Stipulation, DRL § 238 and 22 New York Codes, Rules and Regulations (NYCRR) 130-1.1(c); and it is further,

ORDERED that all other relief requested and not decided herein in denied.

The foregoing constitutes the Decision and Order of this Court.

[1] On July 14, 2023, after completion of the trial and submission of post-trial submissions, Plaintiff filed a Consent to Change Attorney Form whereby she substituted herself pro se in place of [Redacted]. NYSCEF Doc. No. 443.

[2] The admissibility of the audio recordings was raised at trial by Plaintiff, who argued that the recordings contain inadmissible hearsay and are unreliable because, inter alia, they were made by Defendant on his cell phone. The Court overruled these objections on the basis that Defendant's counsel laid the proper foundation for each of the recordings offered into evidence, see Lipton v. New York City Transit Authority, 11 AD3d 201, 782 N.Y.S.2d 269 (1st Dept. 2004) (audiotapes admissible where investigator who made the tape and participated in the conversation testified that the recording completely and accurately reproduced the conversation, and where the court found the recording sufficiently audible to justify its admission), and the content was not being offered for the truth of the matter asserted, but rather to explain Defendant's actions in connection with the allegations being levied against him and certain incidents, including the October 2, 2019 daycare incident, as well as to evidence Defendant's argument that Plaintiff coached the Children. See, e.g., Mateo v. Tuttle, 26 AD3d 731, 809 N.Y.S.2d 699 (4th Dept. 2006).

[3] During a September 26, 2023 appearance, Plaintiff stated to the Court that she recently (approximately two weeks prior) commenced new full-time employment as a graphic designer for an architecture firm."